# State of Tennessee v. Antonio Maurice Jackson

> Court of Criminal Appeals of Tennessee · June 3, 2022

URL: https://www.frixlaw.com/law-library/cases/6347090

## Case

- **Court:** Court of Criminal Appeals of Tennessee
- **Decided:** June 3, 2022
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Presiding Judge John Everett Williams
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6347090

## How later opinions describe it (automated extraction)

- holding that the factor is applicable “when there is proof that the defendant’s conduct in committing the offense created a high risk to the life of someone other than the victim”
- holding that the verdict acquitting the defendant of attempted first degree murder in his first trial was final prior to retrial on a felony murder charge

## Opinion text

06/03/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
February 9, 2022 Session Heard at Lipscomb University1

STATE OF TENNESSEE v. ANTONIO MAURICE JACKSON

Appeal from the Criminal Court for Davidson County
No. 2018-C-1717, 2017-A-845 Mark J. Fishburn, Judge
___________________________________

No. M2020-01098-CCA-R3-CD
___________________________________

The Defendant, Antonio Maurice Jackson, was convicted of three counts of second
degree murder and two counts of aggravated assault after a bench trial. The trial court
merged the homicide offenses and imposed an aggregate sentence of twenty-five years in
prison. On appeal, the Defendant challenges the trial court’s decision to admit the
preliminary hearing testimony of a witness; the trial court’s various evidentiary decisions;
the trial court’s rulings on self-defense; the trial court’s refusal to require the State to
make an election on various charges; the trial court’s decision to convict the Defendant of
second degree murder in Count 3 after announcing a verdict of acquittal from the bench
and entering it in the minutes; and the sentencing determination. After a thorough review
of the record, we conclude that the principles of double jeopardy prohibited the trial court
from revisiting its acquittal, and we accordingly reverse the Defendant’s conviction for
second degree murder in Count 3. The Defendant’s remaining convictions and sentences
are affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed in
Part; Reversed in Part

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which TIMOTHY L.
EASTER and JILL BARTEE AYERS, JJ., joined.

Jim Todd and Katie Hagan, Nashville, Tennessee, for the appellant, Antonio Maurice
Jackson.

1
Oral argument in this case was heard before students in the Fred D. Gray Institute for Law,
Justice and Society on the campus of Lipscomb University, Nashville, Tennessee.
Herbert H. Slatery III, Attorney General and Reporter; T. Austin Watkins, Assistant
Attorney General; Glenn Funk, District Attorney General; and Janice Norman and Brian
Ewald, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

FACTUAL AND PROCEDURAL HISTORY

The Defendant was engaged in a drug transaction in a motel room at around 6:30
a.m. on December 3, 2016, when he ultimately produced a firearm, hit Mr. Roger Reid
with it, breaking Mr. Reid’s cheekbone and nose, and held Mr. Reid and the homicide
victim, Mr. Casey Lucas (“the homicide victim”), at gunpoint. When Ms. Hailey Haslam
arrived at the motel room and the Defendant brandished his weapon at her, the homicide
victim jumped on top of the Defendant. Ms. Haslam and Mr. Reid fled the room during
the ensuing struggle, and the homicide victim was shot nine times. The Defendant was
initially indicted for various offenses, but the State obtained a superseding indictment
charging the Defendant with: (1) the first degree premeditated murder of the homicide
victim; (2) the felony murder of the homicide victim during the perpetration of or attempt
to perpetrate a robbery; (3) the felony murder of the homicide victim during the
perpetration of or attempt to perpetrate first degree murder; (4) the felony murder of the
homicide victim during the perpetration of or attempt to perpetrate kidnapping; (5) the
especially aggravated robbery of the homicide victim of cash and/or cocaine
accomplished with a deadly weapon where the victim suffered serious bodily injury; and
(6) the especially aggravated robbery of Mr. Reid of a wallet and a cell phone
accomplished with a deadly weapon where Mr. Reid suffered serious bodily injury. The
Defendant proceeded with a bench trial. The defense theory at trial was that Mr. Reid,
Ms. Haslam, and the homicide victim were attempting to rob the Defendant of his
necklace, that he acted in self-defense in brandishing the weapon, and that the weapon
discharged during the struggle when the homicide victim jumped on the Defendant.

Prior to trial, the Defendant moved for a bill of particulars, arguing that in the
felony murders charged in Counts 2, 3, and 4, the State was required to elect whether the
homicide was committed during the perpetration of the underlying felony or during the
attempt to perpetrate the underlying felony. He also asserted that the State was required
to identify the victim of each underlying felony. The Defendant argued that the count
charging the especially aggravated robbery of the homicide victim should also specify
whether the homicide victim was being robbed of cash or cocaine. The trial court denied
the motion.

-2-
Approximately three weeks prior to trial, the prosecutor informed the court that
the State would seek admission of Ms. Haslam’s preliminary hearing testimony if she did
not appear to testify. The prosecutor noted that the State had attempted to telephone Ms.
Haslam, who was served with a subpoena approximately six months before trial, but had
received no response. The defense opposed the admission of the testimony. Ms. Haslam
did not appear on the first day of trial, and after listening to the arguments of the parties,
the trial court ruled that the State had not at that point introduced sufficient evidence of
its good faith efforts to locate the witness. The following day, the State presented the
testimony of Mr. Steve Turner, an investigator in the District Attorney’s office, who
testified regarding his extensive but unsuccessful efforts to locate Ms. Haslam prior to
serving her the subpoena. Although he was unsuccessful in locating her by visiting
various addresses and relatives, he was able to serve the subpoena when she was arrested
in February 2019 in Woodbury, Tennessee. Mr. Turner acknowledged that his only
efforts to locate Ms. Haslam after serving the subpoena were to call her grandmother the
morning he testified. Detective Derry Baltimore testified that when Ms. Haslam did not
appear on the first day of trial, he followed up on information from her bonding
companies by making several telephone calls, but he was not able to locate her. He also
sought the assistance of the Sheriff’s Department in DeKalb County to visit an address,
but the Sheriff’s Department was likewise unsuccessful. Ms. Haslam had not appeared at
a hearing on an aggravated robbery charge in Rutherford County the previous week.

The trial court found that Ms. Haslam had been served with a subpoena, that the
contacts listed on her bonds could not find her, and that Ms. Haslam had failed to appear
in Rutherford County the previous week. The court concluded, “So, while I think
certainly, the efforts to locate her could have started sooner… the overall record indicates
that those efforts had been going on by a number of authorities, none of which have been
successful in … finding her.” The court found Ms. Haslam unavailable. It further found
that the Defendant had the opportunity to cross-examine her at the preliminary hearing
and that she was only in the room for seventeen seconds so “[t]here wasn’t a whole lot to
explore.” The court determined that her preliminary hearing testimony was admissible.

At trial, the homicide victim’s father, Mr. Mark Lucas, testified that on December
3, 2016, the homicide victim was thirty years old and living with his mother and Mr.
Lucas. Ms. Haslam, who was the homicide victim’s girlfriend, and her two toddler
children were also living in the home. The homicide victim had been injured at work
when a barn collapsed on him in March 2016, and he had limited mobility and pain at the
time of his death. He received some workman’s compensation, had begun working again
on a limited basis, and received financial support from his parents. The homicide victim
and Ms. Haslam would occasionally spend the night away from the house. The victim’s
father agreed that the victim was charged with robbery in 2014 even though he received
financial support from his parents.
-3-
The State entered the transcript of Ms. Haslam’s testimony from the preliminary
hearing as an exhibit at trial. According to the transcript, Ms. Haslam testified that she
had been dating the homicide victim for approximately three months and that they were
living with his mother. The homicide victim, Ms. Haslam, and her children checked into
a Super 8 motel around 9:00 p.m. on December 2, 2016, and they watched television and
put the kids to bed. The room was a nonsmoking room, and both the homicide victim
and Ms. Haslam stepped outside to smoke during the evening. She stated that they also
both used cocaine in the elevated exterior corridor outside the room. The homicide
victim had cocaine in what she described as a small amount, for “personal use.” At some
point, a man named Mario arrived at the motel room. Mario was the homicide victim’s
coworker, and Ms. Haslam testified that Mario did not, to her knowledge, come to buy
drugs. The homicide victim and Mario were drinking beer, and Ms. Haslam was
unhappy that a stranger was in the motel room with her children. She testified that at
around 3:00 a.m. on December 3, 2016, she asked her friend to pick her up from the
motel, and she left with her children. After she left, the homicide victim kept trying to
contact her through her cell phone, but she was angry and did not answer. Detective
Joseph Chadwick High of the Metropolitan Nashville Police Department (“MNPD”),
who testified as an expert in the analysis of call detail records, confirmed through the
telephone records that between 2:30 a.m. and the time of the shooting, there were a series
of outbound calls and text messages from the homicide victim’s phone to Ms. Haslam’s
phone. It was not possible to determine from the records if the parties spoke, but the calls
were of very short duration. There was one inbound call from Ms. Haslam at 3:19 a.m.

While Ms. Haslam was gone from the motel room, the homicide victim left the
room and met with Mr. Reid. Mr. Reid, who was serving a sentence in West Virginia at
the time of trial, testified that on the morning of December 3, 2016, he was at the Knights
Inn motel with a prostitute, and the homicide victim came to Mr. Reid’s motel room at
the prostitute’s invitation. Mr. Reid had been acquainted with the homicide victim for
approximately two weeks, and he testified that the three ingested cocaine, which the
homicide victim had brought.

Meanwhile, in the early morning hours of December 3, 2016, the Defendant made
plans to spend time with his friend, Ms. Danielle Owens, who was living with her
teenaged daughter and young son on the west side of Nashville. Ms. Owens testified that
she woke up that day around 5:00 a.m. and saw that the Defendant had sent her a
message through a social media app. Ms. Owens called the Defendant, and he asked her
to give him a ride. Detective High confirmed that the phone records indicated that Ms.
Owens called the Defendant at 5:12 a.m. in a call lasting approximately five minutes.
The records introduced through Detective High showed that the Defendant called the
homicide victim at 5:18 a.m. on December 3, 2016, immediately after he had spoken with
Ms. Owens, in a call that lasted approximately nine minutes.
-4-
Mr. Reid confirmed that the homicide victim received a call or text message and
that the homicide victim told Mr. Reid and the prostitute that he had to go back to his
motel room at the Super 8 motel. Mr. Reid stated that the homicide victim wanted to
meet a friend who “had some clothes or something that he was supposed to look at or
whatever the case was.” Mr. Reid, the prostitute, and the homicide victim walked across
the street to the Super 8 motel, but the prostitute discovered that “someone was coming
over and they were supposed to be trading clothes for whatever, and she said she didn’t
want to be there for that.” The two men escorted her back to the Knights Inn and
returned to the Super 8 motel on foot.

Ms. Owens testified that after speaking to the Defendant in the early morning, she
drove to the southeast side of Nashville, where she picked the Defendant up at an
apartment complex. The Defendant instructed her to go to a main road near his house,
and she assumed he wanted to go home. Instead, he asked her to stop by the Super 8
motel to retrieve his keys from his brother. Ms. Owens parked in the rear of the motel,
but at the Defendant’s direction, she moved her car so that it was near the front lobby.
The Defendant made a call to determine which room to visit, and he left Ms. Owens in
the car, where she took some “selfies,” which were introduced into evidence. The
Defendant’s phone records indicated that the Defendant called the homicide victim at
6:14 a.m. in a call that lasted fewer than thirty seconds.

Video surveillance of the motel where the shooting occurred was introduced
through MNPD Detective Desmond Sumerel. The video shows that Ms. Owens’s vehicle
arrived at 6:14 a.m. at the Super 8 motel, and she backed into a spot at the same time that
the homicide victim and Mr. Reid were arriving on foot. Shortly before 6:16 a.m., the
homicide victim and Mr. Reid reached the motel room, which was located on an elevated
exterior corridor. Shortly before 6:17 a.m., the Defendant approached the motel room,
peeked in through the cracked door, looked up and down the exterior corridor, then
entered.

Mr. Reid testified that after he and the homicide victim entered the motel room, he
went to the bathroom, and when he emerged, the Defendant was in the room. Mr. Reid
was not acquainted with the Defendant, who was standing by the door, wearing “a do-
rag, … a chain and a jacket.” The Defendant asked who Mr. Reid was, and Mr. Reid
responded, “[W]hy does it matter[?] [Y]ou’re not here to see me.” Mr. Reid testified
that the Defendant told them he had seen a police vehicle and was concerned “like we
were trying to set him up.” Mr. Reid sat at the table near the door, putting marijuana into
a “Swisher Sweet” cigarillo while the homicide victim and the Defendant talked about
“business ideas,” such as investing in a clothing store. The homicide victim asked the
Defendant why he had not brought the clothes, and the Defendant responded he did not
want to remove them from the car because the police were in the parking lot.
-5-
The homicide victim then asked the Defendant if he still wanted cocaine and if he
had money, and the Defendant responded he wanted less cocaine than discussed. The
Defendant then insisted that the homicide victim and Mr. Reid “do a line” of cocaine to
demonstrate they were not police, and they each consumed cocaine on the nightstand
between the two beds. Mr. Reid returned to the table near the door and continued
“rolling up [his] blunt of marijuana.” The homicide victim prepared some cocaine for the
Defendant, but the Defendant had no way to transport it. Mr. Reid took out the foil lining
of his cigarettes and gave it to the Defendant as a container for the cocaine. The
homicide victim “gave him the stuff,” but Mr. Reid did not see what quantity of cocaine
was exchanged. Mr. Reid testified that the homicide victim had some amount of money
that evening.

The occupants of the room heard a noise outside the door, and the Defendant
began “acting all paranoid.” Mr. Reid peeked out the window and saw that it was merely
a motel occupant walking past, and the Defendant also walked to the window and looked
outside. The video surveillance shows two faces peering out of the hotel room at 6:17
a.m. Ms. Owens testified that, while she was in the parking lot, a police vehicle drove
through the parking lot, and she sent a text message to the Defendant that the police were
there. The video surveillance shows the patrol car drive past Ms. Owens at 6:17 a.m.
Ms. Owens testified that the Defendant responded to her text message by asking if she
wanted to “come in” and that she responded, “[N]o, I’m ready to go.” The Defendant
replied that he was coming. The telephone records show a series of text messages
exchanged between the Defendant’s phone and Ms. Owens’s phone between 6:19 and
6:25 a.m.

Mr. Reid testified that, after the drug exchange, the Defendant asked him if he was
“strapped,” and Mr. Reid and the homicide victim both told the Defendant that they had
no firearms. Mr. Reid sat again at the table to smoke marijuana. He turned around to
look at the Defendant, who “smacked [him] in the face with the gun.” The Defendant
ordered Mr. Reid to get on the ground, pointing the gun at the back of his head, and told
the homicide victim to “give him all the sh*t.” The homicide victim “threw the coke on
the bed,” and the Defendant said, “I know you’ve got more.” The Defendant ordered the
homicide victim to strip, and the homicide victim began to undress. The Defendant
ordered Mr. Reid to strip as well, but Mr. Reid said to the Defendant that “if he wanted
me to strip he had to take my clothes off himself.” The Defendant took Mr. Reid’s cell
phone from his hip, reached into Mr. Reid’s pants and removed his wallet, and attempted
to unbuckle his belt.

Meanwhile, Ms. Haslam asked her friend to drive her and her children back to the
motel. She testified at the preliminary hearing that she tried to call the homicide victim
and send him a text message on her arrival but received no response. The telephone
-6-
records show that Ms. Haslam attempted to contact the homicide victim at 6:27 a.m., and
she arrived in the parking lot shortly thereafter. At 6:29 a.m., the video surveillance
shows Ms. Haslam leave the vehicle in which she had arrived. Ms. Haslam testified that
upstairs, the door to the motel room was locked, so she knocked and saw someone look
through the window. At that point, Ms. Haslam thought that maybe another woman was
in the room. The video surveillance shows Ms. Haslam knocking, the curtains parting,
and the door subsequently opening at 6:30 a.m. Ms. Haslam testified that the door was
opened by someone standing behind it, and she entered.

Ms. Haslam saw a Black man whom she did not know lying face-down, and she
saw the homicide victim squatting down toward the back of the room, near the head of
the man lying on the floor. The homicide victim was not wearing pants. As soon as Ms.
Haslam entered the room, a man behind the door grabbed her by her jacket and put a gun
to her head. He walked her to the bed farthest from the door and bent her over the bed.
When Ms. Haslam asked the homicide victim what was happening, the Defendant said,
“Don’t say anything b***h or I’ll kill you.” The homicide victim told her they were
being robbed, and the man on the floor urged her to cooperate. Ms. Haslam stated she
did not resist. Ms. Haslam heard the gun, which was at her head, “clicking back, like he
was fixin’ to shoot it.” The homicide victim then “jumped up and got on top of him, and
he was like, ‘[R]un, go get help.’” Ms. Haslam fled the room. According to the
surveillance video, she only remained in the room for approximately seventeen seconds,
and at 6:30 a.m., the video shows Ms. Haslam dash out of the door, fleeing the room.

Ms. Haslam testified that she heard gunshots while she was on the exterior
stairway. The shots were back-to-back, and there were “so many I thought that he was
behind me running after me trying to shoot me.” She did not see where the man who was
lying on the ground went. Ms. Haslam ran to the lobby and asked the people in the lobby
to call the police. The man in the lobby did not appear to believe her when she said
someone shot her boyfriend. The video from the motel lobby shows Ms. Haslam arriving
and attempting to seek help. At one point in the video, she makes a motion as though
holding a gun to her head. The video shows the clerk viewing the motel’s video
monitoring system with Ms. Haslam. The surveillance video then captures Ms. Haslam
leaving the parking lot on foot at 6:39 a.m.

Mr. Reid’s testimony of the shooting was similar to Ms. Haslam’s testimony. He
testified that, as he was lying on the floor after being hit by the gun, a knock sounded at
the door, and the Defendant opened the door while hiding behind it. Mr. Reid was not
acquainted with the homicide victim’s girlfriend, Ms. Haslam, but he knew that the
homicide victim had been expecting her. Mr. Reid testified that Ms. Haslam walked in
and that the Defendant shut the door and put the gun to the back of her head, telling her
that “if she screamed, he’ll blow her f**king brains out.” The Defendant forced her over
-7-
to the second bed and tried to force her down on the bed, but she “fought him off a little
bit.” The homicide victim then charged the Defendant, and “[t]hey were wrestling for the
gun.” Ms. Haslam fled immediately, and Mr. Reid, after a moment of hesitation,
followed. The video confirms that Mr. Reid fled a few seconds after Ms. Haslam. Mr.
Reid testified that when he reached the bottom of the stairs, he heard three shots. The
surveillance video captures a bystander, who was sitting on the ground smoking a
cigarette a few doors down, suddenly standing up in reaction to some stimulus around the
time Mr. Reid reached the bottom of the stairs. The bystander moved quickly back into
his room. Mr. Reid testified that, looking up, he thought he saw the Defendant at the top
of the steps looking over the rail, then heard more gunshots. He stated that when he
heard the additional shots, “I thought I was being shot at, but I wasn’t.”

Ms. Owens, who had remained in the parking lot, saw a white woman run “really
fast” in front of her car. The Defendant arrived about a minute later, with his jacket
pulled over his head. At 6:31, the video surveillance shows the Defendant leave the room
with his jacket drawn over his head. Ms. Owens began to drive away, and she testified
that the Defendant was “super calm” and acted normal. However, Ms. Owens noticed a
drop of “fresh” blood on his pants. When she asked the Defendant about it, the
Defendant moved his arm, and “blood [was] like coming from somewhere.” The
Defendant explained, “the b***h bit me, the white boy bit me, the b***h bit me.” Ms.
Owens inquired further, and the Defendant said he had gone to get money from a “white
boy,” that his ex-girlfriend arrived, and that he “mushed” his ex-girlfriend in the head.
Ms. Owens testified, “I don’t know if he said she bit his finger off or she bit his nail off.
That’s what he’s saying, but it was a lot of blood.”

Suspecting that something nefarious had taken place, Ms. Owens stopped at a
shopping plaza and told the Defendant he had to leave her car. Ms. Owens felt hysterical
and returned home, where she took photographs of the blood in her car before she and her
daughter cleaned the car. Ms. Owens then contacted Mr. Joshua Dyer, through whom she
had met the Defendant. Ms. Owens’s call records indicate she called a number ending in
5911 at 6:41 a.m. Ms. Owens testified that Mr. Dyer came to her home and called the
Defendant to ask about the blood. The Defendant had contact with the 5911 number at
7:33 for three seconds, at 7:42 for approximately three minutes, and 8:05 a.m. for
approximately one minute. Detective High testified that the phone records also indicated
that the Defendant placed several calls to Ms. Owens prior to 7:30 a.m. Ms. Owens
testified that Mr. Dyer spoke to the Defendant and that he felt the Defendant was not
being truthful. Ms. Owens then called the Defendant, and he repeated that he had been
bitten by an ex-girlfriend. Ms. Owens asked him to let her listen in on a call between him
and the ex-girlfriend to confirm that he was being truthful, but the Defendant instead
offered her the ex-girlfriend’s phone number. When Ms. Owens tried to call the number
provided by the Defendant as his ex-girlfriend’s, it was not working. The records show
-8-
that Ms. Owens called the Defendant at 7:41 and 7:58 a.m., in calls lasting approximately
four minutes each. Immediately after the 7:58 call, she called a number ending in 7178,
and Detective Baltimore testified that this was the number the Defendant had provided
Ms. Owens as belonging to the Defendant’s ex-girlfriend.

Mr. Dyer suggested to Ms. Owens that they go to the motel to see if there was a
police presence there so that they could determine if anything criminal had occurred.
However, en route to the motel, Ms. Owens’s daughter forwarded a news article about a
fatal shooting at the motel. Ms. Owens returned home and contacted the authorities. The
parties stipulated that she called police at 8:41 a.m. Law enforcement arrived at her
home, and she gave consent to search the vehicle and turned over the photographs of the
blood in the vehicle. Law enforcement collected swabs from the areas where the
photographs showed blood. Ms. Rachel Mack, an expert in serology and DNA analysis,
testified that the DNA recovered from the car was consistent with the Defendant’s DNA.
Fingerprints from the vehicle were of no value. Ms. Owens went to the police
department to give a statement. She spoke to the Defendant through Facetime on her way
home from the police department but had no further contact with him.

On cross-examination, Ms. Owens denied that she had ever taken drugs with the
Defendant or that she was going to the Super 8 to buy drugs. She stated that she was on
probation out of Louisiana at the time and had a “blunt” in the car, and she said that was
why she was nervous and sent the Defendant a text message about the police. She denied
that she had a series of back-and-forth text messages with the Defendant between 6:20
and 6:25 a.m. Ms. Owens reiterated that the Defendant asked her, “[D]o you want to
come in,” but on redirect examination, she agreed she had stated at the preliminary
hearing that he asked, “[A]re you trying to come in or are you trying to come up.” Ms.
Owens testified at trial that he had said “one of the two.”

Mr. Reid testified that, after escaping from the motel room, he ran across a four-
lane road to Quarters Inn, where the police were responding to an unrelated incident. The
surveillance video shows Mr. Reid fleeing across four lanes of traffic, falling in his haste
to escape, and nearly being struck by a vehicle. Mr. Reid testified that he told the police
he needed help and that his friend had been shot, and the police did not believe him.
Officer Justin McCormick confirmed that Mr. Reid ran up shouting, “[H]elp me, help
me,” in a panicked state with blood coming from his forehead. Mr. Reid told Officer
McCormick that he had been shot at, robbed, and struck by a handgun. Officer
McCormick had not heard shots fired, and he agreed with Mr. Reid’s testimony that law
enforcement were initially skeptical that a shooting had occurred. Officer Dezmond
Hughes likewise testified that a “frantic” Mr. Reid, suffering from a head wound, said
someone was shooting at him. Officer Hughes had not heard gunshots, but went to the
room at the Super 8 and discovered the homicide victim’s body. Officer Hughes
-9-
attempted to perform CPR, but he testified that photographs of the scene showed the
homicide victim in the same position in which Officer Hughes found him.

Mr. Reid was taken to a hospital, and he was interviewed after he received medical
treatment. Mr. Reid testified that he was bleeding quite a bit, and he suffered a fractured
nose, fractured cheekbone, and an injury to his forehead. Detective Sumerel testified that
he prepared a photographic lineup and that Mr. Reid was able to identify the Defendant.
Detective Sumerel returned Mr. Reid’s wallet and cell phone to him later in the day. Mr.
Reid testified that he did not speak to Ms. Haslam prior to the interview, although he saw
her sitting in the hallway at the police station. Officer McCormick also testified that Mr.
Reid did not interact with Ms. Haslam at the scene.

Mr. Reid acknowledged that he told the police that he was homeless although he
was not. He agreed that the room at the Knights Inn was not under his real name. Asked
why he used a false name, he stated he did not have identification, but he acknowledged
his identification card was in his wallet. He clarified that he had told the police he used a
false name because of lack of identification but that his true reason was because he
intended to use drugs in the room with a prostitute. He stated he was planning to pay the
homicide victim for cocaine but never did. He agreed that at the preliminary hearing, he
said he wanted the homicide victim to give the prostitute cocaine. He agreed that he told
an officer he was struck with a gun after entering the room, but he clarified he did not say
he was struck directly after he entered the room. Officer McCormick stated that Mr. Reid
said that, as soon as he entered the room, he was struck on the back of the head with a
gun and was subsequently hit on the face with the gun. Mr. Reid acknowledged telling
police that he was smoking a cigarette outside the room when a man with a bag of clothes
came up and telling police that he invited the man to show him the clothes in the room.
He agreed this was a lie and that the surveillance videos contradicted his statement.
Officer McCormick testified that Mr. Reid said something about a man asking him to go
into a hotel room regarding a clothing line. Mr. Reid also agreed that he told a detective
that he got a call from a man selling clothes. According to Mr. Reid, he did not at first
tell the police that drugs were involved, but he began to tell the truth after he started to
feel at ease during the interview at the police station. Mr. Reid acknowledged that his
wallet, cigarettes, and cell phone were left in the motel room, “neatly stacked” on the
table. He agreed he had said he was hit in the face and on the back of the head, and he
testified he no longer remembered how many times he was hit.

Detective Baltimore testified that Mr. Reid had not seen the surveillance footage at
the time he was interviewed, and he confirmed that Mr. Reid told him that Mr. Reid was
smoking outside when a man offered to show him a bag of clothes. He agreed that the
surveillance tape showed that this was not true. Detective Baltimore acknowledged that
Mr. Reid said it was a robbery and that his wallet and cell phone were taken, although
- 10 -
both were recovered from the crime scene. He testified he did not believe Mr. Reid knew
his possessions had been recovered at the time of the interview. He agreed there was no
blood immediately where Mr. Reid claimed to have been sitting when struck, but he
noted that one of the bloodstains was consistent with Mr. Reid’s statement that he was
lying on the floor nearby. Mr. Reid told Detective Baltimore he was homeless. Detective
Baltimore was not aware that Mr. Reid had multiple phones.

Officer Pamela Caulder, who was leaving the scene of an unrelated disturbance at
the Quarters Inn, was alerted that shots had been fired at the Super 8. She recalled that
she had just seen a woman running across the street toward a gas station. As she pulled
into the gas station, bystanders immediately pointed to Ms. Haslam who “was frantic and
extremely frightened. She was hunched down on the side of the building and seemed to
be distraught.” Officer Caulder testified that Ms. Haslam exhibited “broken speech,” and
she said, “they’re after me, did anybody get me, will anybody get me.” Ms. Haslam was
fearful and crouched down in the police vehicle and was reluctant to go with police. She
kept asking about the wellbeing of a third person. Officer Caulder stated that Ms.
Haslam remained in the police vehicle for approximately an hour before she was
transported to the police station and that Ms. Haslam had no contact with any other
witnesses. Officer Rickie Corman transported Ms. Haslam to the police station, and Ms.
Haslam was “crying incessantly,” “trembling,” “shaking,” and kept repeating, “[H]e
saved my life.”

Detective Baltimore interviewed Ms. Haslam, who was crying but able to give
information. Ms. Haslam said that the Defendant shot at her and was trying to kill her.
He did not recall her saying that the homicide victim told her they were being robbed.
Instead, she said the homicide victim told her to cooperate. Ms. Haslam and Mr. Reid did
not have contact prior to their interviews, but their descriptions of events were consistent.
Ms. Haslam did not specifically say that the Defendant was behind the door, and
Detective Baltimore could not recall if she said she heard the gun being cocked.
Detective Sumerel prepared a photographic lineup, and Ms. Haslam picked an individual
other than the Defendant. Detective Sumerel testified that she was “wavering” between
the Defendant’s photograph and the other man’s photograph, but when asked to make her
best guess, she picked the other man. He acknowledged he did not note her hesitation on
the form. Detective Baltimore agreed that, according to Ms. Haslam’s telephone records,
the person she called from the hotel lobby was the homicide victim, and Detective High
confirmed that she did not call 911.

The Defendant turned himself in approximately two to three days after the crime.
He had an injury on his left thumb and scratches on the back of his hand. He did not
have his cell phone. Detective High testified that at 4:44 p.m. on December 4, 2016, a
call from Ms. Owens was forwarded directly to the Defendant’s voicemail, with no tower
- 11 -
data available, which could indicate that the Defendant’s cell phone was turned off. All
the remaining calls made to the Defendant’s phone, through December 10, 2016, were
also forwarded directly to voicemail with no tower data available.

Detective Baltimore acknowledged he did not execute a search warrant on the
Defendant’s residence in an attempt to locate the weapon. Detective Baltimore also
interviewed the woman from the Knights Inn whom Mr. Reid described as a prostitute.
She told Detective Baltimore that she did not want to be at the Super 8 because she was
“not comfortable.” He did not recall if he asked her if her discomfort stemmed from the
homicide victim and Mr. Reid’s planning a robbery.

Officer Kenneth Wolfe and Officer Charles Linville, MNPD crime scene
investigators, testified regarding the crime scene and introduced panoramic and
interactive photographs of the scene. The room was in disarray, with a chair knocked
over. On the bed, officers found children’s toys and baggies containing suboxone film
and a white pill. No cocaine or marijuana were recovered. On the table, Mr. Reid’s
wallet, cigarettes, and cell phone were stacked on top of one another. The homicide
victim’s body was between the two beds, and he was holding a necklace in his fingers. A
cross pendant was on the floor between the bed and nightstand, and the homicide victim’s
phone with a pink case was on the nightstand. The nightstand had some damage, and
some wood fragments from it were on the ground. There was a three-inch lock-blade
knife on the floor, underneath a pair of shoes and near a watch. Ms. Mack testified that
the watch contained DNA with multiple contributors, and the homicide victim was the
major contributor to the DNA recovered from the back of the watch. The homicide
victim’s pants were on the bed nearest the door. The homicide victim’s wallet,
containing two United States $2 bills and two Bahamian $1 bills, was recovered from his
pants. A black stocking cap was on the floor. Mr. Reid’s wallet, cell phone, and
cigarettes were not processed for fingerprints. The carpet and sheets were not vacuumed
for evidence, and Officer Wolfe could not identify the white dots on the carpet. A
package of “Swisher Sweet” cigars from the table was processed, and the fingerprints on
it did not match the Defendant’s fingerprints. There was a small bloodstain on the
window unit and a stain on the carpet between the beds, near a chair. Ms. Mack analyzed
bloodstains from the floor of the motel room, and they were from an unknown individual
who was not the homicide victim or the Defendant. According to her report, which was
introduced into evidence, a bloodstain from the exterior stairs contained the Defendant’s
DNA.

A total of seven Winchester and three Federal .40 caliber Smith & Wesson
cartridge casings were recovered. Two projectiles and two fragments were recovered
from the room. Detective Baltimore collected six projectiles which had been retrieved
during the autopsy. Ms. Bridget Chambers, a forensic scientist with the MNPD, testified
- 12 -
as an expert in the field of firearms analysis. All ten casings were fired from the same
weapon, and Ms. Chambers testified it was not uncommon for one gun to have multiple
brands of ammunition. Analysis of the projectiles did not yield any conclusions about
their origin.

Detective Sumerel acknowledged that he did not recall if police attempted to
retrieve fingerprints from Mr. Reid’s wallet or cell phone. He did not inspect Mr. Reid’s
wallet to see if it contained cash. He agreed that surveillance tapes from earlier in the
evening were not recovered and that he did not know what time Ms. Haslam left or who
else had been in the motel room that evening. He agreed that Ms. Haslam had a phone in
her hand in the motel lobby but that she did not call 911.

Dr. Erin Carney, an expert in the field of forensic medicine, performed the
homicide victim’s autopsy and concluded that he died from multiple gunshot wounds and
that the manner of death was homicide. Dr. Carney’s report indicated that she had
identified eight gunshot wounds, one of which was a graze wound. However, she
testified that “upon further examination of the clothing,” she believed there was a ninth
graze wound on the back of the homicide victim’s neck. Six bullets were recovered from
his body, one from the lung, one in the left torso, two in the back, and one in the hip or
thigh area. One bullet exited the homicide victim’s body. The most serious gunshot
wound traveled front to back, left to right, and downward, consistent with the homicide
victim leaning over, kneeling or otherwise being positioned lower than the weapon. This
projectile passed through his aorta, pulmonary trunk, and lodged in his lung, and it would
have caused him to “bleed out” in one to two minutes. The bullets which entered the
homicide victim’s body traveled front to back and left to right, with some also traveling
downward. Dr. Carney could not determine the order in which the shots were fired. The
homicide victim suffered a blunt force injury to his head, and he had scratches on his
forehead and chest. Dr. Carney concluded these were perimortem because they were
bleeding slightly. The homicide victim also had scratches on his back, and abrasions on
his hand, elbow, knee, leg, buttock, and back of the knee. Dr. Carney could not
determine the range at which the weapon was fired. The homicide victim’s blood
contained cocaine, cocaine metabolites, and marijuana metabolites. She agreed that
cocaine consumption could affect the homicide victim’s ability to realize he was shot and
that the penetrating wounds which did not go through his heart would not necessarily
have stopped him from moving, depending on his pain threshold.

The Defendant moved for the State to elect whether the predicate felonies in the
felony murder charges were based on an attempted or completed felony, and the trial
court denied the motion. The Defendant also moved for acquittal on all charges, and the
trial court granted the acquittal as to felony murder in the commission of or attempt to

- 13 -
commit kidnapping, noting that there had been no proof of confinement beyond that
necessary to effect the robbery.

The Defendant called Detective Baltimore back to the stand, and Detective
Baltimore testified that when he asked Ms. Haslam if she had “any idea why [the
perpetrator] would be there,” Ms. Haslam said that the homicide victim had just received
a check for thirteen thousand dollars related to his work injury, and she said, “Maybe
they were trying to rob him or something like – or something. I have no idea.” Ms.
Haslam also stated, “[A]ll I know is that [the homicide victim] told me, if I don’t be
quiet, the guy was going to shoot me, and if it wasn’t for him, I wouldn’t be alive right
now.” Asked if she thought it was a robbery, she said, “I think it was.” Detective
Baltimore agreed that Ms. Haslam did not tell him that the homicide victim told her they
were being robbed and that she concluded her speculation that it was a robbery with “I
have no idea.” Ms. Haslam told Detective Baltimore that the Defendant said, “[S]hut up
or I’ll kill you right now,” and she told him that she believed Mr. Reid was not the
Defendant’s accomplice because the Defendant was pointing the gun at herself, the
homicide victim, and also at Mr. Reid.

The Defendant’s testimony was that he thought he was being robbed and felt he
acted in self-defense. He testified that he and two of his brothers had moved to
Tennessee in 2009, to live near his third brother, who was a professional football player.
In 2016, the Defendant’s brother who played football no longer lived in the state but had
rented a house to serve as the residence of the Defendant and another brother. The
occupants of the home paid for utilities, and the Defendant also paid child support. The
Defendant worked at a moving company, and he testified that his brother the football
player was generous with money and would give him money on occasion, including to
help with the Defendant’s child support obligation.

On December 2, 2016, after coming home from work, the Defendant, who did not
have a car or a license, drove his cousin’s car to a gas station near the motel and bought
beer and a pack of “Swisher Sweet” cigarillos, which he intended to use to “[r]oll
marijuana.” The Defendant did not know the homicide victim but met him at the gas
station when the homicide victim, seeing the “Swisher Sweets,” asked the Defendant if
the Defendant had “any smoke.” The Defendant told the homicide victim he did not.
The homicide victim then volunteered that he could obtain drugs, pills, or cocaine, and
the Defendant saved the homicide victim’s phone number in his cell phone. The
Defendant noted he was wearing a “couple of necklaces” while at the gas station, in
particular the black chain with a black cross with diamonds in it, which was recovered
from the homicide victim’s hand in the motel room. The Defendant returned home and
smoked marijuana with his brother and cousin in the car, then sent messages to Ms.
Owens, in whom he was romantically interested. Sometime after 9:00 p.m., he drove his
- 14 -
cousin’s car to a friend’s apartment. As he parked, he heard something fall to the
floorboard, and he realized his brother’s gun was in the car. Because the locks on the car
did not work, he put the gun into his pocket. Ms. Owens did not reply to his message
until the morning. They spoke on the telephone, and she agreed to come pick him up and
take him to her house. The Defendant explained that he did not want to drive more than a
short distance because he had no license.

The Defendant had tried to contact a friend to obtain cocaine prior to Ms. Owens’s
call at 5:12 a.m., but he had not received a reply. He recalled that he had saved the
homicide victim’s phone number the previous evening and decided to contact the
homicide victim to see if he had cocaine. The homicide victim agreed to procure cocaine
for the Defendant. When Ms. Owens arrived, the Defendant asked her to drive him to the
motel to get “some high,” which he explained was cocaine. When they arrived, he
contacted the homicide victim to find out the motel room number.

The Defendant said that when he walked into the room, the homicide victim
appeared to be ingesting cocaine that was on the nightstand between the beds. The
Defendant and homicide victim stayed near the nightstand and spoke for four or five
minutes, in part about whether the homicide victim could provide Percocet pills for Ms.
Owens, who had asked for the pills. The Defendant confirmed Ms. Owens’s testimony
that she sent him a text message that the police were on the premises, but the Defendant
stated he was not nervous about the police because he “was just there to get a half a gram
of cocaine.” He asked Ms. Owens if she wanted to come up to the room, but she
declined. At that point, Mr. Reid, wearing gloves, emerged from the bathroom, and Mr.
Reid did not respond when the Defendant asked who he was. Mr. Reid stood by the
window while the Defendant spoke to the homicide victim.

The Defendant testified that Mr. Reid suddenly grabbed the Defendant from the
back by his jacket and shoulder and that the Defendant was “snatched back real hard.”
The Defendant testified that he thought the homicide victim and Mr. Reid were trying to
“jump on [him] and take [his] necklace.” When Mr. Reid grabbed the Defendant, the
Defendant recalled that he had the gun and hit Mr. Reid on the head with it. Mr. Reid fell
on the ground, and the Defendant pointed the gun at the homicide victim and asked him
what was happening. The Defendant stated that the homicide victim began to walk
toward the bathroom, pulling his shirt up and pants down to show he was unarmed. The
Defendant denied ordering the homicide victim or Mr. Reid to disrobe. He said that Mr.
Reid got up and was walking back and forth by the front door. The Defendant was
moving the gun back and forth between the homicide victim, who remained toward the
back of the room, and Mr. Reid, who was near the door. Ms. Haslam then walked
through the door, angry and screaming.

- 15 -
The Defendant testified that he was standing between the beds, away from the
head of the bed, and that he turned his attention to the two people near the door, at which
point the homicide victim grabbed him around the neck. The Defendant stated he was
five feet and six or seven inches tall. Dr. Carney testified that the homicide victim was
five feet, eleven inches tall. They “tussled back and forth with the gun,” and the
Defendant heard the gun discharge. He stated that the homicide victim “[p]robably” had
hands on the gun when it fired. The Defendant denied taking anything from the motel
room, and he did not see any drugs other than those on the nightstand. He denied taking
Mr. Reid’s wallet or cell phone. He said he did not intend to kill, rob, or cause harm to
anyone. He stated that when he went outside, he pulled his jacket over his head because
he thought the jacket was his hoodie.

The Defendant did not tell Ms. Owens about the shooting because she was
panicking. He did not recall telling Ms. Owens that someone bit him. After Ms. Owens
asked him to leave her car, he called one of his brothers to pick him up but did not tell his
brother about the shooting. The Defendant recalled speaking with Mr. Dyer, but
according to the Defendant, the substance of their conversation was Mr. Dyer’s warning
him that Ms. Owens was at the police station. The telephone records indicate that the
Defendant and Mr. Dyer had contact at 7:42 a.m. and 8:05 a.m. and that Ms. Owens
called the police at 8:41 a.m. That night, he told one of his brothers about the shooting,
and his brother advised him to hire an attorney. The Defendant later turned himself in
with his attorney.

On cross-examination, the Defendant stated that his brother the football player did
not give him an allowance but gave him money when he needed it. In 2018, he was
working at a hotel in Nashville, and his brother was assisting him financially in the same
manner. When asked about child support, the Defendant stated he had not asked his
brother for $22,000 to pay back child support and that he did not think he asked his
brother for $15,000 in 2016 when the child support was first assessed against him. He
agreed he had only paid $883 in child support between 2016 and 2018, and he explained
that he had custody of his child “most of the time” and did not feel he should pay child
support. He at first denied lying about his finances in a December 2018 uniform affidavit
of indigency but later acknowledged that he had lied to the court when he indicated in the
affidavit that he had zero income or assets.

On cross-examination, the prosecutor questioned the Defendant about the events
surrounding the shooting, asking him, “[Y]ou know that you’re not allowed to have a
gun, right?” The Defendant responded that he did not at the time think he was breaking
the law by taking the gun, but he agreed he did have two felony convictions.

- 16 -
The Defendant testified that his nine-minute call with the homicide victim
consisted entirely of the Defendant’s asking if he could buy half a gram of cocaine, and
that they did not agree on a price but that he knew it would cost him $25. He denied
being one of the two people peering out of the window of the motel room at 6:17 a.m.
He stated that although Mr. Reid “went down” between the beds, where the Defendant
was standing, when the Defendant hit him with the gun, Mr. Reid subsequently stood up
and went between the beds and the table near the door.

The Defendant denied ever firing the gun, stating that it “went off.” He stated that
“[a]ll ten times it went off, we [were] fighting over the gun.” He said he did not
intentionally pull the trigger. He denied saying he had “mushed” his ex-girlfriend’s head
and did not recall if he said someone bit him. He denied giving Ms. Owens a phone
number which allegedly belonged to the person who bit him. He said that he put the gun
into a kitchen drawer at his home and that he did not seek treatment for his injury.

The trial court excluded evidence regarding Ms. Haslam’s participation in a 2019
aggravated robbery. The Defendant presented the testimony of Mr. Kai Ramos and Ms.
Hailey Khan regarding a 2014 assault committed by the victim. After hearing all of the
proposed testimony, the trial court ruled that it would admit testimony that the victim
assaulted Mr. Ramos but would exclude testimony related to a purported robbery.

Mr. Ramos, who was serving a federal sentence in confinement, testified that the
homicide victim assaulted him in 2014. He testified that he was arguing with Ms. Hailey
Khan when the homicide victim jumped on him and put him in a choke hold. Mr. Ramos
got the upper hand and released the homicide victim, who indicated that he only jumped
on Mr. Ramos because he “thought [Mr. Ramos was] going to hit [Ms. Khan].” After
being released, the homicide victim again tackled Mr. Ramos. The homicide victim
ultimately pled guilty to simple assault.

Ms. Khan, who was also in confinement, testified that Mr. Ramos was her
boyfriend in 2014. Her memory of the events was “foggy” because she was under the
influence of opiates and alcohol that day. Ms. Khan confirmed that the homicide victim
came up behind Mr. Ramos and choked him.

The Defendant argued that the law of self-defense should be applied to the
offenses. The trial court ruled that self-defense was fairly raised as to the offense against
Mr. Reid, concluding that if the Defendant’s testimony were credited, Mr. Reid assaulted
the Defendant first. The trial court ruled however, that self-defense was not fairly raised
as to the homicide victim because there was no evidence that the homicide victim
committed any violent act and no evidence that Mr. Reid’s actions could be imputed to

- 17 -
the homicide victim. The court noted that, if a jury were present, it would instruct on
self-defense as to Mr. Reid but not as to the homicide victim.

In determining guilt, the trial court made oral findings of fact. The court found
that the Defendant had a belief he was being robbed but that the belief was not
reasonable. It noted that the Defendant’s own testimony contained no mention of either
Mr. Reid or the homicide victim demanding any of the Defendant’s property and that the
proof established that Mr. Reid and the homicide victim were both unarmed. The court
found that the Defendant’s “cheap” necklace was torn off during a struggle, and it noted
the Defendant never told anyone he was being robbed after the shooting. The trial court
found the State had not proven premeditation beyond a reasonable doubt, and it convicted
the Defendant of the lesser included offense of second degree murder in Count 1. The
trial court likewise found, that although there was some evidence that the Defendant
committed the homicide in the attempt to commit a robbery, the robbery was not
established beyond a reasonable doubt, and it convicted the Defendant of the lesser
included offense of second degree murder in Count 2, charging felony murder. The trial
court, noting it had already found in the felony murder count that the predicate felony of
robbery had not been established, convicted the Defendant of aggravated assault by both
serious bodily injury and a deadly weapon committed against the homicide victim in
Count 5 and aggravated assault committed against Mr. Reid in Count 6. The court noted
that the Defendant was engaged in an unlawful activity and had a duty to retreat, and it
found that the Defendant had an opportunity to flee but did not do so. The court made a
credibility determination in favor of Mr. Reid’s testimony that the Defendant initiated the
altercation by striking Mr. Reid with the gun, and it did not credit the Defendant’s
testimony that Mr. Reid assaulted him. The court noted that, having found the Defendant
to be the first aggressor, it rejected the theory of self-defense as the finder of fact.

In Count 3, charging felony murder in the attempt to commit first degree
premeditated murder, the trial court found that although the Defendant had threatened
Ms. Haslam’s life and pulled back the slide to chamber a round, the State had not
established beyond a reasonable doubt that the Defendant was actually attempting to
murder Ms. Haslam. The parties asked the court to clarify its ruling in Count 3, and the
trial court stated that it found the Defendant not guilty, observing, “there wouldn’t be a
lesser included offense that it could go to that would fall under felony murder. Is there?”
The parties did not respond, and a sentencing hearing was set. The court’s minutes for
that day reflected that the Defendant was found guilty of the lesser included offenses set
out above in Counts 1, 2, 5, and 6, “BUT NOT GUILTY OF FELONY MURDER.”

At sentencing, the State noted that the trial court had acquitted the Defendant
during the bench trial of felony murder committed in the attempt to commit first degree
murder in Count 3, but that the court had clarified later that it was finding the Defendant
- 18 -
guilty of the lesser included offense of second degree murder. The trial court agreed that
the proceedings had adjourned and that the court sent the parties the correction by email.

The Defendant’s mother, Ms. Alma Jackson, testified at sentencing that the
Defendant’s brothers, friends, and father were present in court to support him, that he had
a good character, and that he had not been in any legal trouble for a lengthy period of
time. She stated the Defendant was a “humble child” and said, “[T]his is not his
character.” Prior to moving to Nashville, he lived with her and did some work such as
laying tile. The Defendant gave an allocution stating that he was “sorry about what
happened,” that he went to buy drugs and did not intend for the offenses to happen, and
that he apologized to the homicide victim’s family.

The homicide victim’s mother, Ms. Evelyn Lucas, gave a victim impact statement.
She said that the homicide victim was a particularly kind and giving person. She noted
that the homicide victim always asked her to give food to a homeless man they saw on
their way home from school, that he sometimes would save his own lunch money to buy
the man something, and that he would pull over on the interstate to help stranded
motorists. She noted that he asked her to fix plates of food for people he knew who were
struggling on Thanksgiving and that at the funeral home, people shared other stories of
good deeds the homicide victim had performed. The homicide victim’s father said that
the homicide victim’s death had a profound effect on the whole family and said that on
some days, he could not leave the house.

The State argued that a number of enhancement factors applied. The defense
noted that the trial court had acquitted the Defendant of the robbery charges, and in doing
so had concluded that the Defendant did not intend to commit a robbery, but that the
court nevertheless did not consider self-defense. The trial court responded, “Oh, but I
did, actually, consider self-defense. I didn’t accept that that was the way it was initiated.”
The court also noted that self-defense would not have applied because the Defendant had
a duty to retreat. The defense noted that the trial court had stated it would not consider
self-defense, and the court responded that it had “already kind of gone over it in my
head” and “already negated it.” The court stated, that “there was no reason to address it
because I had already kind of evaluated it and I did not think it applied because he made
no effort to retreat from that situation” and because the force used was beyond that
necessary for the Defendant to extricate himself.

The parties agreed that the Defendant was a Range II offender for the aggravated
assault convictions and a Range I offender for the murder convictions. The trial court
found as enhancement that the Defendant had a history of criminal behavior in addition to
that necessary to establish the range, citing several misdemeanor offenses and the
Defendant’s admitted marijuana use through 2019. The court found that there was more
- 19 -
than one victim, noting that Ms. Haslam was not the victim of any of the conviction
offenses and that Mr. Reid was not a victim of the homicides. For the murder
convictions, the trial court found the Defendant possessed a firearm. It found the
Defendant had no hesitation about committing a crime when the risk to human life was
high, noting that the Defendant was aware that he was bringing a firearm to a drug
transaction, but the court gave the factor little weight due to the inherent dangerousness
of the offenses. The trial court did not find any mitigating factors submitted by the
Defendant,2 noting that although the homicide victim jumped onto the Defendant, the
Defendant had previously gained complete control of the room and had an opportunity to
flee. The trial court sentenced the Defendant to twenty-five years in prison for each of
the second degree murder convictions and to concurrent ten-year terms for each of the
aggravated assault convictions. The homicide convictions were merged.

The Defendant filed a motion for a new trial, raising numerous issues, including
those raised on appeal. The trial court entered an order denying the motion.3 The court
concluded that the evidence was sufficient, that it had not committed error in admitting
Ms. Haslam’s testimony, that it did not err in limiting testimony from Mr. Ramos or Ms.
Khan, that the Defendant was not entitled to any relief regarding election because the
court had convicted him of the lesser included offenses of second degree murder and
aggravated assault, and that the Defendant’s prior record was relevant to self-defense.
The court found it had not erred in its determination regarding self-defense, noting that
the Defendant was required to but failed to retreat and that the Defendant’s response was
“far greater than necessary to avoid death or serious bodily injury.” The trial court found
it had not erred in sentencing. The Defendant appeals.

ANALYSIS

On appeal, the Defendant asserts that the trial court erred in: 1) finding that Ms.
Haslam was unavailable and admitting her testimony from the preliminary hearing; 2) its
evidentiary decisions, including limiting testimony regarding the homicide victim’s
robbery charge, excluding Mr. Richardson’s testimony, admitting evidence regarding the
Defendant’s affidavit of child support, admitting Mr. Reid’s testimony regarding the
homicide victim’s reason for returning to the Super 8, and allowing the Defendant to be
cross-examined regarding his prior felony convictions; 3) failing to consider self-defense
in the homicide offenses and failing to rule on the issue of retreat regarding the offense
against Mr. Reid; 4) failing to require the State to elect between the attempted and
completed predicate felony for the felony murder counts, to elect the victim of the

2
The Defendant referenced a sentencing memorandum that is not included in the record.
3
The amended motion was filed in June 2020, and the record does not reflect whether a hearing
was held.
- 20 -
predicate felony in the felony murder counts, or to elect the item taken during the robbery
of the homicide victim; 5) imposing a conviction for second degree murder after having
acquitted the Defendant on Count 3; and 6) sentencing, including the application of
enhancement and mitigating factors.

I. Admission of Ms. Haslam’s Prior Testimony

The Defendant asserts that the trial court erred in finding Ms. Haslam unavailable
and allowing her testimony from the preliminary hearing to be introduced at trial,
contending that the State failed to demonstrate adequate efforts to locate Ms. Haslam and
arguing that he did not have an adequate opportunity and similar motive to cross-examine
her at the preliminary hearing, resulting in a violation of his rights under the
Confrontation Clause. See U.S. Const. amend. VI. The State responds that the
prosecution demonstrated adequate efforts and that there was no confrontation violation.
We conclude that the record as a whole demonstrates adequate good faith efforts and that
the Defendant had a prior opportunity and similar motive to cross-examine Ms. Haslam.

Approximately three weeks prior to trial, the prosecutor told the trial court that the
State was not certain it could locate Ms. Haslam, who had been served with a subpoena in
jail in February for the August trial. The prosecutor stated that the State had attempted to
contact her by phone: “The voicemail that we called says [‘H]ey, this is Hailey.[’] We
left messages, but we haven’t received any return calls.” The court indicated that Ms.
Haslam should be made aware she could be arrested for noncompliance with the
subpoena, and the State indicated it would file a motion to have her declared unavailable
if she did not appear.

On the first day of trial, the prosecutor noted that Ms. Haslam had been served
with a subpoena, that there were warrants for her arrest out of Rutherford County and
Cannon County, that the State had verified she was not in custody, and that the State’s
investigator and victim/witness coordinator had attempted to contact her by phone
multiple times without success. The prosecutor stated that she personally had attempted,
together with the victim/witness coordinator, to call Ms. Haslam and that she had left
messages identifying herself and asking Ms. Haslam to call her back but had received no
response. The defense opposed the motion. Defense co-counsel testified that she had
attempted to contact Ms. Haslam, who had an aggravated robbery charge and a drug
charge in Rutherford County. Co-counsel had spoken with Ms. Haslam’s Rutherford
County defense attorney the prior week, and the attorney had expected Ms. Haslam to
appear for her court date on that day. The parties noted Ms. Haslam had missed her court
appearance. Co-counsel stated that two separate bonding companies would have
information regarding Ms. Haslam’s whereabouts. Co-counsel also testified that Ms.
Haslam had failed to appear on a violation of probation charge in Cannon County. The
- 21 -
trial court ruled that the State had not, at that point, introduced sufficient evidence to
satisfy the requirement of good faith efforts to locate the witness under Rule 804.

The following day, the State’s investigator, Mr. Turner, testified regarding his
attempts to locate Ms. Haslam. Prior to serving her with the subpoena in February 2019,
he had gone to addresses in Alexandria, Smyrna, Murfreesboro, and Woodbury,
Tennessee, locations which were based on information that she was staying with family
members and on information from prior arrests. Ms. Haslam’s grandmother said that Ms.
Haslam sometimes stayed there, but despite several attempts to visit the grandmother at
different times of day, Mr. Turner was never able to find Ms. Haslam. When Ms. Haslam
was in custody in Woodbury, Tennessee, he was able to serve her on February 19, 2019,
with a subpoena for trial on August 26, 2019. He stated that after serving the subpoena,
the only effort he had made to contact her was to call her grandmother on the morning of
the second day of trial.

Detective Baltimore testified that when Ms. Haslam did not appear on the first day
of trial, he attempted to locate her by following up on information from her bonding
companies, and he made several telephone calls. Ms. Haslam’s grandmother told
Detective Baltimore she was “kind of worried about” Ms. Haslam and had been looking
for her. Detective Baltimore asked the Sheriff’s Department of DeKalb County to visit
the Alexandria address previously investigated by Mr. Turner early in the morning in
hopes of catching Ms. Haslam asleep, but the Sheriff’s Department could not locate her.
Detective Baltimore called the number listed as a “good number” on the subpoena, but
the person who answered said it was the wrong number. He testified that Ms. Haslam
had always appeared for prior court hearings in the case.

The prosecutor noted that when the trial was previously continued, Ms. Haslam
was late but ultimately appeared, despite an outstanding warrant. The prosecutor also
stated that the State had tried to trace the surety on Ms. Haslam’s bond but that it was her
grandmother, with whom they had had extensive contact about attempting to locate Ms.
Haslam. The trial court found that Ms. Haslam had been served with a subpoena, that the
contacts listed on her bonds could not find her, and that Ms. Haslam had failed to appear
in Rutherford County the previous week. The court found that although the State’s
efforts to locate her “could have started sooner,” “a number of authorities” were looking
for Ms. Haslam without success and further efforts by the prosecution would have been
unsuccessful. The defense objected, arguing that admitting the testimony would be a due
process violation because the defense did not have discovery at the time Ms. Haslam was
cross-examined at the preliminary hearing and was accordingly unable to impeach her.
The trial court concluded that that the Defendant had an adequate opportunity to cross-
examine Ms. Haslam, noting she was in the motel room for only seventeen seconds.

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Generally, prior testimony is hearsay, or as a statement, other than one made by
the declarant while testifying, offered for the truth of the matter asserted. State v. Jones,
568 S.W.3d 101, 128 (Tenn. 2019); Tenn. R. Evid. 801(c). Hearsay is generally not
admissible. Tenn. R. Evid. 802. However, under Tennessee Rule of Evidence 804,
former testimony of an unavailable witness may be admissible under some
circumstances. A witness is unavailable when, as pertinent here, the witness “is absent
from the hearing and the proponent of a statement has been unable to procure the
declarant’s attendance by process.” Tenn. R. Evid. 804(a)(5). When the declarant is
unavailable, the Rule against hearsay does not exclude former testimony, which is
“[t]estimony given as a witness at another hearing of the same or a different proceeding
…, if the party against whom the testimony is now offered had both an opportunity and a
similar motive to develop the testimony by direct, cross, or redirect examination.” Tenn.
R. Evid. 804(b)(1). This Rule applies to preliminary hearing transcripts. Tenn. R. Evid.
804, Advisory Comm’n Cmt. A trial court’s decision to admit prior testimony is
reviewed for abuse of discretion. State v. Summers, 159 S.W.3d 586, 597 (Tenn. Crim.
App. 2004). The trial court’s factual findings are binding on the appellate court unless
the evidence preponderates against them, but the determination of whether a statement is
hearsay or whether it fits into an exception to the rule against hearsay are questions of
law reviewed de novo. Kendrick v. State, 454 S.W.3d 450, 479 (Tenn. 2015).

“Intertwined with the rules on the admissibility of hearsay is the constitutional
right to confront witnesses.” Jones, 568 S.W.3d at 128. The Sixth Amendment to the
United States Constitution guarantees the accused the right “to be confronted with the
witnesses against him.” U.S. Const. amend. VI. The Tennessee Constitution provides
the corresponding right “to meet witnesses face to face.” Tenn. Const. art. I, § 9. The
same standards apply in interpreting a defendant’s confrontation rights under the
Tennessee and United States Constitutions. See State v. Hutchison, 482 S.W.3d 893, 905
(Tenn. 2016). The Confrontation Clause governs only testimonial hearsay, and it applies
only to testimonial statements offered for the truth of the matter asserted. State v.
Dotson, 450 S.W.3d 1, 63-64 (Tenn. 2014). Prior testimony is inadmissible under the
Confrontation Clause unless the witness appears at trial or the witness is unavailable and
the defendant had a prior opportunity to cross-examine the witness. Jones, 568 S.W.3d at
128-29 (citing Crawford v. Washington, 541 U.S. 36, 68 (2004)). A trial court’s
determination regarding whether a witness is unavailable is reviewed for abuse of
discretion. Id. at 129. Whether the admission of hearsay statements violated a
defendant’s confrontation rights is a question of law subject to de novo review. State v.
Davis, 466 S.W.3d 49, 68 (Tenn. 2015).

To preserve a defendant’s right to confrontation, the State must make a good faith
effort to secure the presence of the witness. State v. Sharp, 327 S.W.3d 704, 712 (Tenn.
Crim. App. 2010) (citing State v. Henderson, 554 S.W.2d 117, 120 (Tenn. 1977)). “Good
- 23 -
faith” is “‘[t]he lengths to which the prosecution must go to produce a witness ... [and] is
a question of reasonableness.’” Id. (citing Ohio v. Roberts, 448 U.S. 56, 74 (1980),
overruled on other grounds by Crawford, 541 U.S. at 60).

In State v. Summers, the State had not established that the witness was actually
served with a subpoena, but the record showed that he was aware of the proceedings and
that he intentionally fled and hid to avoid testifying. 159 S.W.3d at 596-98. The
witness’s mother testified that he left town without telling her of his destination, and an
investigator and detective “testified about the attempts they made to find” the witness.
Id. at 596-97. The witness’s attorney informed him of the consequences of absenting
himself. Id. at 597. This court concluded that this evidence was sufficient to support a
finding that the State made good faith efforts to locate him but was not able to do so. Id.
at 598. In making the determination regarding good faith efforts, Tennessee courts have
considered evidence that a witness was evading contact with the State and evaluated
whether the record contained evidence of reasonable efforts to contact the witness. See
e.g., Jones, 568 S.W.3d at 129 (sufficient efforts were made when the State contacted
multiple jurisdictions in Florida, contacted the witness, who said he would not testify,
introduced evidence regarding law enforcement’s attempts to locate him, requested
certificates from the court to ensure his presence, arranged for a summons which a court
found the witness was evading, and attempted to contact the witness through relatives and
a girlfriend); State v. Justin L. Kiser, No. E2019-01296-CCA-R3-CD, 2020 WL 3251172,
at *10 (Tenn. Crim. App. June 16, 2020), perm. app. denied (Tenn. Nov. 16, 2020)
(noting despite waiver that evidence of good faith efforts was sufficient when the witness
had no permanent address and was avoiding contact with the State due to a warrant, and
when the detective contacted the witness’s family members, a local sheriff’s office, and
ultimately the United States Marshals); State v. Charles Lee Warner, No. M2016-02075-
CCA-R3-CD, 2018 WL 2129509, at *16 (Tenn. Crim. App. May 9, 2018) (efforts were
sufficient when the witness was served with a subpoena a month before trial while in
custody and when the detective, on discovering the witness had been released, contacted
the witness’s father, went to his last known address, visited motels and a home assistance
community, and interviewed members of the homeless community in an attempt to
locate him); State v. Bobby Jackson, No. W2009-02232-CCA-R3-CD, 2011 WL
1849096, at *1, 7 (Tenn. Crim. App. May 11, 2011) (the State presented evidence of
good faith efforts when the witness coordinator testified that the unavailable witness
planned to go to Mexico and that he attempted to locate the witness in Mexico by calling
the number the witness gave and when a detective used various databases to attempt to
locate the witness and visited the witness’s local address and “no one knew where [the
witness] had gone”); State v. Calvin Eugene Bryant, Jr., No. M2009-01718-CCA-R3-CD,
2010 WL 4324287, at *18 (Tenn. Crim. App. Nov. 1, 2010) (evidence that a detective
visited a number of previous addresses and made numerous calls beginning a week

- 24 -
before trial and that the witness was aware he needed to cooperate with police was
sufficient to establish good faith efforts).

On the other hand, in Sharp, the State had been aware for a number of months that
the witness had moved out of Tennessee. 327 S.W.3d at 712. The State had repeatedly
tried to contact the witness at one telephone number over a period of six to eight months
but took no other steps to locate her. Id. This court concluded that the telephone calls
did not constituted a “good faith effort” to locate the witness. Id. Likewise, in State v.
Armes, the prosecution did not make sufficient good faith efforts to locate the witness
when the witness had previously failed to appear and when the State merely issued
subpoenas one week and one day before trial and neither was actually served on the
witness. 607 S.W.2d 234, 236-37 (Tenn. 1980); see State v. Tommy Brown, Jr., No.
W2006-02529-CCA-R3-CD, 2008 WL 141128, at *4 (Tenn. Crim. App. Jan. 11, 2008)
(the trial court did not abuse its discretion in finding that the State failed to make good
faith efforts when the State was aware that the witness was in Missouri but failed to issue
an out-of-state subpoena and instead relied on the witness’s mother’s assurance that he
would appear).

In the case at bar, the State’s efforts exceed those found inadequate in Sharp,
Armes, and Tommy Brown, Jr. Prior to serving the subpoena, Mr. Turner had visited
numerous addresses at various times in an attempt to locate Ms. Haslam, but she was
successful in evading him until her arrest in February 2019. Ms. Haslam was served
with a subpoena in jail six months prior to trial and knew when trial would take place.
The State had attempted to contact her prior to trial by telephone at a number where the
outgoing voice message used her name, and Mr. Turner called her grandmother. Ms.
Haslam had outstanding warrants in two counties. The week before trial, she failed to
appear for a hearing on her charge for aggravated robbery in Rutherford County. When
Ms. Haslam did not appear on the first day of trial, Detective Baltimore contacted her
bonding company, and he made several telephone calls following up on information they
provided. He contacted Ms. Haslam’s grandmother, who was worried about Ms. Haslam
and could not locate her. Detective Baltimore requested the Sheriff of DeKalb County to
visit an address associated with Ms. Haslam early in the morning in hopes of catching her
asleep, but they could not locate her. While we agree with the trial court that the State’s
efforts to locate Ms. Haslam immediately prior to trial could have begun sooner, the trial
court also essentially found that Ms. Haslam was evading contact and that further efforts
to locate her would have been futile. See Hardy v. Cross, 565 U.S. 65, 70 (2011) (noting
that “‘the great improbability that such efforts would have resulted in locating the
witness, and would have led to her production at trial, neutralizes any intimation that a
concept of reasonableness required their execution’” (quoting Roberts, 448 U.S. at 76)).
“[T]he Sixth Amendment does not require the prosecution to exhaust every avenue of
inquiry, no matter how unpromising.” Id. at 71-72. We conclude that the State showed
- 25 -
that it made a good faith effort to contact Ms. Haslam and took reasonable steps in doing
so. See Sharp, 327 S.W.3d at 712. Accordingly, the trial court did not err in determining
that the State was unable to procure the witness by process under Tennessee Rule of
Evidence 804(a)(5) or that it made adequate good faith efforts to secure the witness in
order to satisfy the Defendant’s right to confrontation.

The Defendant argues that even if Ms. Haslam was unavailable, the preliminary
hearing testimony should have been excluded because he did not have an adequate
opportunity to cross-examine the witness at the time. The State responds that the
preliminary hearing testimony was properly admitted. “A preliminary hearing transcript
‘is precisely the type of former testimony contemplated under [Rule 804(b)(1)].’” State
v. Bowman, 327 S.W.3d 69, 88-89 (Tenn. Crim. App. 2009) (quoting State v. Michael
Dwayne Hatfield, No. 03C01-9307-CR-00233, 1994 WL 102072, at *3 (Tenn. Crim.
App. Mar. 29, 1994)); see Tenn. R. Evid. 804(b)(1), Advisory Comm’n Cmts. This is
because “[i]n a preliminary hearing, as at trial, the primary issue is whether or not the
defendant committed the offense.” State v. Christopher Terrell Shipp, No. M2016-
01397-CCA-R3-CD, 2017 WL 4457595, at *5 (Tenn. Crim. App. Oct. 5, 2017) (citing
State v. Howell, 868 S.W.2d 238, 251 (Tenn. 1993); State v. Brian Eric McGowen, No.
M2004-00109-CCA-R3-CD, 2005 WL 2008183, at *11 (Tenn. Crim. App. Aug. 18,
2005)). “Complete identity of the issues is not necessary,” so long as the issues are
sufficiently similar to give a similar motive for cross-examination. Howell, 868 S.W.2d
at 251. “‘[T]he Confrontation Clause guarantees only an opportunity for effective cross-
examination, not cross-examination that is effective in whatever way, and to whatever
extent, the defense might wish....’” Davis, 466 S.W.3d at 68 (quoting United States v.
Owens, 484 U.S. 554, 559 (1988)). Indeed, “[c]ourts of this state have consistently
upheld the admission of testimony from a preliminary hearing when the defendant had an
opportunity to cross-examine a witness who was subsequently deemed unavailable.”
Charles Lee Warner, 2018 WL 2129509, at *17 (citing cases).

The Defendant asserts that he was charged only with criminal homicide at the time
of the hearing and that new issues were raised by the charges on which he was
subsequently indicted. However, the record does not reflect the charges at the time of the
hearing, and it establishes only that the Defendant was indicted in March 2017 for
numerous offenses, including the attempted first degree murder of Ms. Haslam, prior to
the superseding indictment returned in 2018. See Tenn. R. App. P. 24(b) (noting that the
appealing party bears the burden of providing an adequate record). In any case,
“[c]omplete identity of the issues is not necessary” so long as the issues are sufficiently
similar to give a similar motive for cross-examination. Howell, 868 S.W.2d at 251
(upholding the admission of hearing testimony from a different state when the
defendant’s identity as the killer of the two victims was at issue in both the Oklahoma
and Tennessee trials). The primary issue at both the preliminary hearing and the trial was
- 26 -
the nature of the circumstances surrounding the shooting of the homicide victim. Ms.
Haslam was cross-examined regarding the use of drugs in the hotel, her motivation for
leaving in the middle of the night with her children, her entry into the hotel lobby, and the
fact that she did not see the shooting. We conclude that the issues were sufficiently
similar to give the Defendant a similar motive for cross-examination.

The Defendant also asserts that he did not have access to certain discovery
materials and was not able to impeach Ms. Haslam with her prior statements to law
enforcement, her failure to identify the Defendant from a photographic lineup, her
statement that she believed the Defendant was running after her trying to shoot her, or her
failure to call 911 in the hotel lobby. In Christopher Terrell Shipp, the unavailable
witness had identified the defendant, with whom she was acquainted, as the perpetrator,
but the defense did not, at the time of the preliminary hearing, have access to the
witness’s prior statement to law enforcement that the defendant had a facial tattoo. 2017
WL 4457595, at *5. The testimony at trial was that he had no tattoo but a “shadowing
close to his cheek bones.” Id. at *2. This court noted that “‘[c]omplete identity of the
issues is not necessary’” under Rule 804 and that the defendant thoroughly cross-
examined the witness regarding the identity of the shooter at the preliminary hearing. Id.
at *5, 7 (quoting Howell, 868 S.W.2d at 251). We noted that while the witness was not
cross-examined about her statement, she was thoroughly cross-examined about the
identity of the shooter and that the jury heard testimony that she had told police that the
defendant had a tattoo on his face. Id. at *7. Accordingly, this court concluded that the
preliminary hearing testimony was properly admitted under both Rule 804 and the
Confrontation Clause. Id. at *6, 7.

Likewise, Ms. Haslam’s statements to law enforcement and failure to identify the
Defendant in a photographic lineup were introduced through the detectives, and security
footage and telephone records established that the Defendant was not shooting at Ms.
Haslam from the balcony and that she did not call 911. We conclude that the trial court
properly admitted the testimony under Tennessee Rule of Evidence 804(b)(1) because the
Defendant “had both an opportunity and a similar motive to develop the testimony by
direct, cross, or redirect examination.” Tenn. R. Evid. 804(b)(1). Likewise, the
Defendant’s right to confrontation was not violated when he had the opportunity and
similar motive to cross-examine Ms. Haslam about the offense during the preliminary
hearing. See Charles Lee Warner, 2018 WL 2129509, at *17 (rejecting the argument that
lack of discovery at the preliminary hearing violated the defendant’s right to
confrontation because he could not meaningfully cross-examine the witness); State v.
Robert Echols, No. W2013-02044-CCA-R3-CD, 2014 WL 6680669, at *13 (Tenn. Crim.
App. Nov. 26, 2014) (rejecting under a plain error analysis the contention that testimony
from the preliminary hearing was not admissible due in part to lack of discovery and

- 27 -
concluding that the defendant had an opportunity and similar motive to cross-examine the
witness).

II. Evidentiary Rulings

The Defendant challenges various evidentiary rulings made by the trial court.
Questions regarding the admissibility of evidence are generally within the discretion of
the trial court. State v. Franklin, 308 S.W.3d 799, 809 (Tenn. 2010). A trial court abuses
its discretion when it applies an incorrect legal standard, reaches an illogical conclusion,
bases its decision on a clearly erroneous assessment of the evidence, or employs
reasoning that causes an injustice to the party complaining. State v. Herron, 461 S.W.3d
890, 904 (Tenn. 2015).

A. Limitation on Testimony Regarding the Homicide Victim’s Robbery Charge

The Defendant objects that the trial court limited testimony from Mr. Ramos and
Ms. Khan to evidence regarding the homicide victim’s attacking Mr. Ramos from behind
and did not admit testimony regarding the robbery. The State argues that the evidence
was properly excluded under Tennessee Rule of Evidence 404(b). We conclude that the
trial court did not err in excluding the evidence.

Prior to trial, the defense sought to admit testimony regarding the homicide
victim’s prior involvement with a robbery, and the trial court found that evidence
regarding the robbery would be admissible if the issue of the homicide victim’s being the
first aggressor was fairly raised. The court noted during the cross-examination of the
homicide victim’s father that it would not consider the evidence for propensity but that
“robbery, being a crime of violence against another person, could have some relevancy to
first aggressor.” The court clarified later during the trial that it would consider violent
conduct but not the planning of the robbery, reiterating that while the planning was
propensity evidence, “[h]is acting on the plan is relevant to the case.”

The Defendant testified that the homicide victim jumped on him from behind and
that he felt Mr. Reid and the homicide victim were trying to rob him of his necklace. He
then sought to introduce testimony that the homicide victim had been involved in a prior
robbery during which he jumped on a man from behind. The trial court listened to all of
the proffered testimony and determined it would only consider the assaults.

Mr. Ramos testified that in 2014, he was romantically involved with Ms. Khan and
was test driving her vehicle. Mr. Ramos’s cell phone had broken, and Ms. Khan had his
contacts in her phone. Mr. Ramos argued with Ms. Khan, telling her to give him her
phone while they were in a driveway. The homicide victim then attacked Mr. Ramos
- 28 -
from behind and put him in a chokehold. Mr. Ramos put the homicide victim in a
headlock and punched him in the face. The homicide victim signaled surrender,
explaining his attack by saying, “I thought you were going to hit her.” When Mr. Ramos
released the homicide victim and turned to Ms. Khan to ask for his jacket, the homicide
victim again tackled him from behind. The two rolled on the ground, and Mr. Ramos’s
wallet fell out. The homicide victim grabbed the wallet, fled in the truck, and was
arrested for robbing Mr. Ramos. According to Mr. Ramos, the police told him that they
thought Ms. Khan “was in on it” after looking at text messages between the two. The
homicide victim pled guilty to simple assault. After hearing the testimony, the court
clarified that it would have permitted a jury to consider the homicide victim attacking Mr.
Ramos from behind twice but would have excluded the testimony regarding the taking of
the wallet.

Ms. Khan testified that she was under the influence of opiates and alcohol that day
and had an imperfect memory of the incident. She agreed that they were in a truck that
was for sale, but she did not recall if Mr. Ramos was test driving it and did not recall an
argument about a cell phone. She believed that the homicide victim was with them
because he was acquainted with Mr. Ramos, and she did not recall a prior acquaintance
with the homicide victim. Ms. Khan confirmed that the homicide victim came up behind
Mr. Ramos and choked him. Regarding the wallet, Ms. Khan said, “I don’t know how
the wallet got on the ground, if the wallet fell out on the ground, I pulled it out of his
pocket. I’m not sure. I know that I handed the wallet to [the homicide victim].” Ms.
Khan elaborated that the homicide victim asked her for the wallet and she gave it to him,
feeling herself in danger. She was arrested shortly thereafter on an unrelated charge and
did not speak to Mr. Ramos again. The court noted that, after hearing Ms. Khan’s
testimony, it did not believe that a robbery was adequately established by clear and
convincing evidence and that in any event, it would consider as admissible the testimony
regarding the physical attack rather than the subsequent taking of the wallet.

At trial, the parties analyzed the admissibility under Rule 404(b) concerning
“[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a
person.” We note that “[t]he word ‘person’ in Rule 404(b) has been construed to refer
solely to the defendant in a criminal prosecution.” Tenn. R. Evid. 404(b), 2005 Advisory
Comm’n Cmt. (citing State v. Stevens, 78 S.W.3d 817, 837 (Tenn. 2002)). However,
statute now effectively applies the rule to a deceased victim or other witness in a criminal
case. State v. William Eugene Moon, No. M2019-01865-SC-R11-CD, __ S.W.3d __,
2022 WL 1160781, at *7 (Tenn. Apr. 20, 2022). Under Tennessee Code Annotated
section 24-7-125:

In a criminal case, evidence of other crimes, wrongs, or acts is not
admissible to prove the character of any individual, including a deceased
- 29 -
victim, the defendant, a witness, or any other third party, in order to show
action in conformity with the character trait. It may, however, be admissible
for other purposes. The conditions which must be satisfied before allowing
such evidence are:

(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.

T.C.A. § 24-7-125. A trial court’s decision to admit evidence under Tennessee Code
Annotated section 24-7-125 is reviewed for abuse of discretion if the trial court
substantially complied with the procedural requirements of the statute. William Eugene
Moon, 2022 WL 1160781, at *7 n.11.

The trial court also analyzed the proffered evidence as relevant to whether the
homicide victim was the first aggressor, and the Defendant asserts it is admissible under
Rule 404(a). Under Rule 404(a):

(a) Character Evidence Generally. Evidence 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, except:
…
(2) Character of Alleged Victim. In a criminal case, and subject to
the limitations imposed by Rule 412, evidence of a pertinent trait of
character of the alleged victim of the crime offered by an accused or by the
prosecution to rebut the same, or evidence of a character trait of
peacefulness of the alleged victim offered by the prosecution in a homicide
case to rebut evidence that the alleged victim was the first aggressor….

Tenn. R. Evid. 404(a). The method of proving a character trait under Rule 404(a), when
such evidence is admissible, is governed by Tennessee Rule of Evidence 405. See State
v. John D. Joslin, No. 03C01-9510-CR-00299, 1997 WL 583071, at *36 (Tenn. Crim.
App. Sept. 22, 1997). Rule 405 states:

- 30 -
(a) Reputation or Opinion. In all cases in which evidence of
character or a trait of character of a person is admissible, proof may be
made by testimony as to reputation or by testimony in the form of an
opinion. After application to the court, inquiry on cross-examination is
allowable into relevant specific instances of conduct. The conditions which
must be satisfied before allowing inquiry on cross-examination about
specific instances of conduct are:
(1) The court upon request must hold a hearing outside the jury’s
presence,
(2) The court must determine that a reasonable factual basis exists
for the inquiry, and
(3) The court must determine that the probative value of a specific
instance of conduct on the character witness’s credibility outweighs its
prejudicial effect on substantive issues.

(b) Specific Instances of Conduct. In cases in which character or a
trait of character of a person is an essential element of a charge, claim, or
defense, proof may also be made of specific instances of that person’s
conduct.

Tenn. R. Evid. 405; see Tenn. R. Evid. 405 Advisory Comm’n Cmt. (noting that specific
instances under subsection (b) must be an essential element of a cause of action or
defense, e.g., whether “the defendant who called a defamed plaintiff a ‘crook’ can prove
the plaintiff embezzled funds”).

“When a defendant relies on a theory of self-defense and that the alleged victim of
a violence crime was the first aggressor, the defense may present evidence of the victim’s
prior history of violent conduct.” State v. Eddie Smith, No. W2018-01509-CCA-R3-CD,
2020 WL 3572071, at *11 (Tenn. Crim. App. June 30, 2020), perm. app. denied (Tenn.
Dec. 3, 2020) (citing State v. Ruane, 912 S.W.2d 766, 781-82 (Tenn. Crim. App. 1995),
abrogated on other grounds by State v. Rogers, 992 S.W.2d 393, 401 (Tenn. 1999)).
Prior violent acts by the victim may be admissible as substantive evidence of the
defendant’s state of mind if the defendant was aware of them, or if the defendant was
unaware of them, they may be admissible for the limited purpose of corroborating a self-
defense claim that the victim was the first aggressor. John D. Joslin, 1997 WL 583071,
at *36. Evidence which is admitted solely to corroborate other evidence that the victim
was the first aggressor does not fall under Rule 404(a)(2) or 405. State v. Chancy Jones,
No. W2010-02424-CCA-R3-CD, 2012 WL 1143583, at *7 (Tenn. Crim. App. Apr. 5,
2012). Because the Defendant was unaware of the prior assault, the evidence here was
purely corroborative of the Defendant’s testimony that the homicide victim jumped onto
him.
- 31 -
Before corroborating evidence regarding the victim being the first aggressor may
be introduced, there must be some evidence raising the issue that the victim was the first
aggressor. Eddie Smith, 2020 WL 3572071, at *11. Prerequisites to the admission of
prior violent acts by the victim are that:

(1) the issue of self-defense must be raised by the proof and not simply by
statements of counsel; (2) there must be a factual basis underlying the
defendant’s claim that the victim had first aggressor tendencies; and (3) the
trial court must determine whether the probative value of the evidence is
outweighed by the danger of unfair prejudice.

Id. at *12.

Here, the trial court admitted the evidence of the assault to corroborate the
Defendant’s testimony that the homicide victim jumped on him. See Eddie Smith, 2020
WL 3572071, at *12. Regarding the taking of property, Mr. Ramos testified that his
wallet fell out and that the homicide victim grabbed it and ran, while Ms. Khan testified
that it was possible that she took Mr. Ramos’s wallet or that it fell out and that she
subsequently handed it to the homicide victim. The trial court noted that it was “not sure
it was established by clear and convincing evidence, what happened,” and it ruled that it
would only consider the evidence regarding the assault. The trial court did not err in
excluding the evidence of the robbery under Tennessee Code Annotated section 24-7-
125, which requires proof of the other crime, wrong, or act to be clear and convincing.
T.C.A. § 24-7-125(3).

Furthermore, the trial court also properly excluded it as relevant to whether the
homicide victim was the first aggressor. In Eddie Smith, the defense sought to introduce
the prior convictions of the victim for aggravated robbery, aggravated burglary, and
vandalism. Eddie Smith, 2020 WL 3572071, at *12. This court concluded that certified
convictions were not sufficient to show that the victim had first aggressor tendencies
because the documents established only the fact of the conviction, and it was possible
that the victim had committed violent acts without being the first aggressor. Id. On the
other hand, this court in Eddie Smith concluded that testimony regarding the facts
underlying a domestic assault charge was sufficient to make the evidence admissible
because the testimony established the victim’s aggression. Id. at *13. This court noted
that “‘the trial court must determine the underlying facts of the alleged act of
aggression.’” Id. at *12 (quoting State v. Laterral Jolly, No. 02C01-9207-CR-00169,
1993 WL 523590, at *4 (Tenn. Crim. App. Dec. 15, 1993)); see Chancy Jones, 2012 WL
1143583, at *7 (orders of protection were not relevant to the claim that the victim was the
first aggressor when there was no evidence of the underlying factual basis of the orders).
Here, the trial court determined that the act of aggression related to tackling had taken
- 32 -
place and would be admissible. There was conflicting evidence regarding the
circumstances surrounding the taking of property and whether the taking involved force,
and the court determined that the evidence regarding the taking of the wallet would not
be admissible. We conclude that the court did not abuse its discretion in excluding the
evidence because the court found that the facts surrounding the taking were not
adequately established.

B. Exclusion of Mr. Richardson’s testimony regarding Ms. Haslam

The Defendant argues that the trial court erred in excluding the testimony of Mr.
Juston Richardson regarding Ms. Haslam’s participation in a robbery committed against
him in 2019. The State responds that the evidence was properly excluded as propensity
evidence. We agree that the evidence was offered for propensity and that did not meet
the requirements for admission to corroborate that Ms. Haslam was the first aggressor.

The Defendant sought to introduce Mr. Richardson’s testimony to support his
theory that Ms. Haslam left with her children because she had conspired with the
homicide victim and Mr. Reid to rob the Defendant. While the defense noted that Ms.
Haslam was not in the room initially and that the evidence did not fit with first aggressor
evidence, the defense also argued that the evidence should be admissible as “evidence of
a pertinent character trait.” Tenn. R. Evid. 404(a)(1), (2). The court asked, “You’re
arguing that this goes to her character for what?” Defense counsel replied, “Committing
aggravated robberies.” The State objected that the evidence was being impermissibly
offered for propensity, and the defense responded that it would be admissible under
404(b) as a common scheme or plan. The trial court noted that there was nothing about
the aggravated robbery that would make it admissible as a common scheme or plan, and
that the Defendant had not articulated a non-propensity rationale to admit the evidence
under 404(a). The Defendant agreed he was “changing [his] argument” to proceeding
under 404(b). The following day, the trial court observed that it had sent the parties an
email regarding the law on common scheme or plan, and the defense agreed that the
evidence was not admissible under State v. Moore, but stated that it wanted to offer the
evidence under a different theory. See State v. Moore, 6 S.W.3d 235, 240 (Tenn. 1999)
(noting that common scheme or plan may be a “signature” crime, an offense that is part
of a larger, continuing plan or conspiracy, or offenses that are part of the same criminal
transaction); State v. Robert E. Huse, No. M2019-02087-CCA-R3-CD, 2021 WL
1100758, at *18 (Tenn. Crim. App. Mar. 23, 2021), no perm. app. filed. The defense
requested to make a proffer of Mr. Richardson’s testimony under the theory that Ms.
Haslam, Mr. Reid, and the homicide victim conspired to rob the Defendant.

The trial court noted that there was no evidence in the record to show that Ms.
Haslam was the first aggressor toward the Defendant. The court observed that, on the
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contrary, her testimony indicated she left around 3:00 a.m., and her telephone records
corroborated numerous contacts with the homicide victim’s telephone between this time
and the shooting. The Defendant’s own testimony established that he had no plan to meet
the homicide victim until he spontaneously called the homicide victim at 5:18 a.m. Ms.
Haslam, Mr. Reid, and the Defendant all testified that Ms. Haslam did not enter the room
until after the Defendant was holding the others at gunpoint, and Ms. Haslam and Mr.
Reid both testified that they were entirely unacquainted.

The trial court ruled that the issue of first aggressor was not fairly raised with
respect to Ms. Haslam but permitted the defense to make an offer of proof. Mr.
Richardson testified that in June 2019, he was the victim of an aggravated robbery in
which Ms. Haslam was a defendant. While the events are not clear from the testimony of
Mr. Richardson, who was reluctant to testify, Mr. Richardson stated that Ms. Haslam’s
boyfriend held him at gunpoint, that another man who was with Ms. Haslam came to the
driver’s side door and stabbed him, that a camera from an ATM captured footage of Ms.
Haslam running away with her boyfriend’s gun, and that police found “a clip with a
bunch of bullets” in the car in which Ms. Haslam eventually fled. After Mr. Richardson’s
testimony, the defense clarified that it was seeking to admit the evidence under a
common scheme or plan showing a “distinctive design” pursuant to Rule 404(b). The
court noted that there was no evidence that Ms. Haslam was involved in planning a
robbery against the Defendant and that there was in any case no distinctive design in the
offenses. See State v. Jones, 450 S.W.3d 866, 895 (Tenn. 2014).

On appeal, the Defendant argues that the evidence is admissible “to show that Ms.
Haslam was no stranger to robberies being committed by her boyfriends.” As noted
above, the word “person” in Rule 404(b) has been construed to refer solely to the
defendant in a criminal prosecution.” Tenn. R. Evid. 404(b), 2005 Advisory Comm’n
Cmt. (citing Stevens, 78 S.W.3d at 837). However, the analogous statutory provision,
Tennessee Code Annotated section 24-7-125, “appl[ies] Rule 404(b) standards” to other
witnesses. State v. Reynolds, 635 S.W.3d 893, 921 n.23 (Tenn. 2021); see William
Eugene Moon, 2022 WL 1160781, at *7. Under Tennessee Code Annotated section 24-
7-125, propensity evidence of prior bad acts is inadmissible. Such evidence may be
admissible if the court determines “that a material issue exists other than conduct
conforming with a character trait.” T.C.A. § 24-7-125(2). The Defendant’s argument
falls squarely within the realm of propensity evidence—that is, he seeks to show that Ms.
Haslam may have been involved in a robbery in 2016 because she was subsequently
involved in a robbery in 2019. See T.C.A. § 24-7-125(2); State v. Rodriguez, 254 S.W.3d
361, 375-76 (Tenn. 2008). Insofar as the Defendant renews his argument at trial that the
evidence is admissible for the purpose of showing a common scheme or plan, we
conclude that the trial court properly excluded the evidence because identity was not a
material issue and because the offenses were not of a distinctive design, part of a larger,
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continuing plan or conspiracy, or part of the same criminal transaction. See Moore, 6
S.W.3d at 239-41 (concluding that the evidence was not admissible when identity was
not at issue and the crimes did not display “‘such unusual particularities’ as to indicate
the presence of a distinct modus operandi, nor were the offenses so ‘strikingly’ similar
that they may be regarded as the stamp or signature of the appellant”).

In his reply brief, the Defendant argues that the robbery should have been
admissible not as propensity evidence but as evidence of first aggressor relevant to self-
defense. However, the trial court did not err in concluding the evidence was not
admissible on the issue of first aggressor. Here, the trial court found that there was
simply no evidence that the Defendant was acting in self-defense against Ms. Haslam or
that she was the first aggressor, because all the evidence established that she left the hotel
room hours before the Defendant initiated contact with the homicide victim and because
she only entered the room for seventeen seconds, during which time the testimony of all
witnesses, including the Defendant, agreed that all the occupants of the room were being
held at gunpoint by the Defendant. Eddie Smith, 2020 WL 3572071, at *12 (stating that
prior to the admission of corroborating evidence of the victim as the first aggressor, “the
issue of self-defense must be raised by the proof and not simply by statements of
counsel”). Accordingly, the trial court did not abuse its discretion by excluding the
evidence as relevant to the issue of Ms. Haslam being the first aggressor.

The Defendant also cites to Tennessee Rule of Evidence 608 as a basis for
admitting the testimony. However, the Defendant did not argue that the evidence was
admissible on this basis in the trial court, and the issue is accordingly waived. See Tenn.
R. App. P. 36(a); State v. Howard, 504 S.W.3d 260, 277 (Tenn. 2016) (“It is well-settled
that a defendant may not advocate a different or novel position on appeal.”). The
Defendant is not entitled to relief.

C. Admission of Affidavit of Indigency and Evidence Regarding Child Support

The Defendant challenges the trial court’s decision to admit evidence regarding
the Defendant’s child support obligations and the affidavit he completed regarding child
support, arguing that he was not given proper notice under Tennessee Rule of Evidence
608(b)(3). We agree with the State that the argument raised on appeal is waived because
the defense objected only to relevance at trial.

At trial, the Defendant introduced evidence tending to negate a financial motive
for the crime by testifying that he was employed and that his brother the football player
would give him money as he needed it. On cross-examination, he testified he was
employed “off and on” at a hotel in 2018. The prosecutor questioned the Defendant
about a judgment for back child support that was first assessed against him in 2016, prior
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to the homicide, and the Defendant stated he asked his brother for part of the money but
not the entire judgment, explaining that he did not feel he should owe any money because
he had custody of the child “most of the time.” The prosecutor asked if he had lied on his
2018 uniform affidavit of indigency, and the Defendant denied having been untruthful.
The prosecutor asked the Defendant to identify the affidavit, and defense counsel
objected based on relevance. The court ruled that the affidavit was relevant to the
Defendant’s credibility. The Defendant then agreed he listed zero income or assets at the
time he filled out the affidavit in December 2018 and that this was a lie.

Tennessee Rule of Evidence 608 provides:

(b) Specific Instances of Conduct. Specific instances of conduct of
a witness for the purpose of attacking or supporting the witness’s character
for truthfulness, other than convictions of crime as provided in Rule 609,
may not be proved by extrinsic evidence. They may, however, if probative
of truthfulness or untruthfulness and under the following conditions, be
inquired into on cross-examination of the witness concerning the witness’s
character for truthfulness or untruthfulness or concerning the character for
truthfulness or untruthfulness of another witness as to which the character
witness being cross-examined has testified. The conditions which must be
satisfied before allowing inquiry on cross-examination about such conduct
probative solely of truthfulness or untruthfulness are:

(1) The court upon request must hold a hearing outside the jury’s
presence and must determine that the alleged conduct has probative value
and that a reasonable factual basis exists for the inquiry;

(2) The conduct must have occurred no more than ten years before
commencement of the action or prosecution, but evidence of a specific
instance of conduct not qualifying under this paragraph (2) is admissible if
the proponent gives to the adverse party sufficient advance notice of intent
to use such evidence to provide the adverse party with a fair opportunity to
contest the use of such evidence and the court determines in the interests of
justice that the probative value of that evidence, supported by specific facts
and circumstances, substantially outweighs its prejudicial effect; and

(3) If the witness to be impeached is the accused in a criminal
prosecution, the State must give the accused reasonable written notice of
the impeaching conduct before trial, and the court upon request must
determine that the conduct’s probative value on credibility outweighs its
unfair prejudicial effect on the substantive issues. The court may rule on
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the admissibility of such proof prior to the trial but in any event shall rule
prior to the testimony of the accused. If the court makes a final
determination that such proof is admissible for impeachment purposes, the
accused need not actually testify at the trial to later challenge the propriety
of the determination.

Tenn. R. Evid. 608(b).

The Defendant objects that the affidavit and testimony were improperly admitted
due to a lack of notice under Rule 608(b)(3). However, we agree with the State that this
issue is waived. The Defendant objected only to relevance at trial, and the motion for a
new trial asserted only generally that there was error in the admission of the evidence.
See Tenn. R. App. P. 36(a); Howard, 504 S.W.3d at 277. The Defendant also renews his
objection to the evidence based on relevance. However, cross-examination regarding the
Defendant’s 2016 child support obligation was relevant to rebut the Defendant’s prior
testimony that he was financially solvent and therefore had no motivation to commit a
robbery. Cross-examination regarding untruthfulness on the affidavit was relevant to
credibility. We conclude that there was no abuse of discretion.

D. Admission of the Homicide Victim’s Statement to Mr. Reid

The Defendant asserts that the homicide victim’s statement to Mr. Reid regarding
his reason for returning to the Super 8 was inadmissible hearsay. The State argues that
the testimony was not hearsay because it was not offered for the truth of the matter
asserted. Because the trial court clearly stated that it would not consider the evidence for
the truth of the matter asserted, the evidence was properly admitted.

A trial court’s factual findings and credibility determinations regarding a ruling on
hearsay are binding on the appellate court unless the evidence preponderates against
them. Kendrick v. State, 454 S.W.3d 450, 479 (Tenn. 2015). This court determines de
novo whether a statement qualifies as hearsay or is admissible under one of the hearsay
exceptions. Id. Hearsay is “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Tenn. R. Evid. 801(c). Hearsay is generally not admissible. Tenn. R. Evid.
802.

At trial, Mr. Reid testified that he and the homicide victim left the Knights Inn and
went to the homicide victim’s room at the Super 8. The prosecution asked Mr. Reid if he
knew why they were going to the Super 8, and Mr. Reid replied, “Well, when he told me
what we were going there for, yes.” The trial court sustained a hearsay objection. The
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State then argued that the homicide victim’s statement to Mr. Reid was not being offered
for the truth of the matter asserted but “what Mr. Reid understood was happening at that
time and why he’s going to the hotel room.” The court allowed it for that limited
purpose, and Mr. Reid testified that the homicide victim “said that he was going to meet
one of his friends that, apparently, they had some clothes or something that he was
supposed to look at or whatever the case was.” The Defendant argues that this statement
was admitted for the truth of the matter asserted, that the two were going to the room for
“an innocent purpose.” The State argues that the statement was offered for the effect on
the listener, Mr. Reid.

“A statement introduced for its effect on the listener is not hearsay.” State v.
Eddie Harris, No. W2017-01706-CCA-R3-CD, 2018 WL 6012620, at *9 (Tenn. Crim.
App. Nov. 15, 2018) (citing State v. Venable, 606 S.W.2d 298, 301 (Tenn. Crim. App.
1980); Neil P. Cohen et al., Tennessee Law of Evidence §8.01, at 8-23 (5th ed. 2005));
see, e.g., State v. Hawkins, 519 S.W.3d 1, 42 (Tenn. 2017) (concluding that the victim’s
statement that she would contact the police was not hearsay when offered to show the
defendant’s motive to harm her). Here, the statement was not offered to show that the
homicide victim was planning to meet the Defendant for the purpose of looking at
clothing. See, e.g., Tenn. R. Evid. Rule 803(3) (providing a hearsay exception for
“statement of the declarant’s then existing state of mind, emotion, sensation, or physical
condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health)”);
State v. Robinson, 239 S.W.3d 211, 223 (Tenn. Crim. App. 2006) (concluding that the
victim’s hearsay statement that he planned to meet a man at a particular location for a
rendezvous with a girl was admissible under Rule 803(3) to prove conduct in conformity
with the plan). Instead, the State offered the statement to show that, regardless of
whether the homicide victim and Defendant had any actual arrangement about clothing,
Mr. Reid was induced, after hearing the statement, to accompany the homicide victim to
the Super 8. The trial court explicitly stated that it would only consider the evidence for
this limited purpose. Accordingly, the testimony was properly admitted for a non-
hearsay purpose.

E. Cross Examination Regarding Prior Felonies

The Defendant asserts that “the trial court erred in allowing the state to impeach
[the Defendant with] his prior felony convictions.” The State responds that the evidence
was properly admitted as impeachment, as proof of intent, and because the Defendant
opened the door to it. We conclude that the trial court did not err in admitting the
convictions under Tennessee Rule of Evidence 404(b).

Prior to the Defendant’s testifying, the State had filed a notice of intent to use as
impeachment the Defendant’s prior felony convictions in Florida for aggravated fleeing
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and possession of a controlled substance. It subsequently filed an amended motion in
which it also sought to use an underlying arrest report showing that the Defendant was
initially charged with aggravated robbery instead of aggravated fleeing, attaching the
convictions and arrest report. The State argued that the convictions should be admissible
for impeachment, were relevant to the self-defense issue on which the court had not yet
ruled, and were relevant to the first aggressor testimony which the defense sought to
introduce. The trial court ruled that the convictions were too old to be admissible for
impeachment under Tennessee Rule of Evidence 609 but did not make a ruling regarding
admissibility for other purposes.

Under Tennessee Rule of Evidence 609(b), “Evidence of a conviction … is not
admissible if a period of more than ten years has elapsed between the date of release from
confinement and commencement of the action or prosecution,” unless certain conditions
are met and the court finds that the probative value of the evidence substantially
outweighs its prejudicial effect. Tenn. R. Evid. 609(b). The trial court properly found
that the convictions, which occurred in 2002 and 2004, were stale, and it declined to
admit them for general impeachment purposes. Insofar as the Defendant asserts the
convictions were admitted for impeachment, he is mistaken.

At trial, the prosecutor questioned the Defendant about putting the gun in his
pocket, asking him, “[Y]ou know that you’re not allowed to have a gun, right?” The
Defendant responded, “No, I actually didn’t think I had [any] felonies. I thought I beat
my felonies.” Defense counsel objected, and the prosecutor argued that the evidence was
relevant to the Defendant’s credibility and “whether or not he knew that he is committing
a crime when he takes this gun.” The trial court determined that the testimony was
admissible not for impeachment “but for the purpose of whether or not—what knowledge
he had,” clarifying that it found the proof relevant to guilty knowledge under Rule
404(b). The Defendant then testified that he did not at the time think he was breaking the
law by taking the gun, but he agreed he did have two felony convictions.

Under Tennessee Rule of Evidence 404(b), evidence of other crimes is not
admissible for propensity, but may be admissible for other purposes. Prior to admitting
the evidence,

(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

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(4) The court must exclude the evidence if its probative value is outweighed by the
danger of unfair prejudice.

Tenn. R. Evid. 404(b).

In this case, the convictions were not introduced as impeachment under Rule 609
but as evidence of other crimes under Rule 404(b). While the trial court heard the parties
on the issue during the bench trial and determined that the evidence was relevant to a
material issue other than propensity, it did not explicitly state that the convictions were
shown by clear and convincing evidence or explicitly weigh the prejudicial and probative
value. When the trial court fails to substantially comply with the procedural requirements
of Rule 404(b) but the record is sufficient to make a determination regarding
admissibility, the reviewing court determines the admissibility of the evidence de novo.
State v. Sexton, 368 S.W.3d 371, 402 (Tenn. 2012), as corrected (Tenn. Oct. 10, 2012);
State v. DuBose, 953 S.W.2d 649, 653 (Tenn. 1997).

Here, the crimes were established by clear and convincing evidence because the
State attached to its motion and later introduced certified copies of the Defendant’s prior
convictions, and the Defendant did not contest that he had two felony convictions. Under
Rule 404(b), evidence of other crimes is not admissible to show a defendant’s proclivity
for criminal activity, but it may be admissible if it bears on a material issue, such as
“identity (including motive and common scheme or plan), intent, or rebuttal of accident
or mistake.” Tenn. R. Evid. 404, Advisory Comm’n Cmt. Courts have also concluded
that evidence is admissible on the material issues of guilty knowledge, completion of the
story, opportunity, and preparation. State v. Jones, 568 S.W.3d 101, 132 (Tenn. 2019).
The State’s theory at trial was that the Defendant arranged a drug transaction and armed
himself because he intended to commit a robbery during the transaction. The trial court
determined that the prior convictions were relevant to guilty knowledge regarding the
Defendant’s decision to carry a gun. The Defendant’s decision to arm himself despite an
awareness that he was prohibited from carrying a weapon was probative of his
preparation for and of his intent to commit a robbery (an offense of which he was
ultimately acquitted). It was also relevant to the material issue of whether the Defendant
was engaged in unlawful activity, triggering a duty to retreat.4 See State v. Perrier, 536
S.W.3d 388, 404 (Tenn. 2017) (holding that “the defendant’s possession of a firearm
when he was a convicted felon … is encompassed within ‘unlawful activity’”). The
prejudicial value of the evidence in a bench trial was extremely minimal because the trial
court was already aware of the existence of the convictions and because the court stated it
would only consider the evidence as relevant to issues other than propensity. We
conclude that the trial court did not err in admitting the evidence.

4
The Defendant’s nexus argument is addressed infra.
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6347090. Public record. Not legal advice.