State of Tennessee v. Uel Pearson

02/28/2024

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs February 6, 2024

STATE OF TENNESSEE v. UEL PEARSON

Appeal from the Circuit Court for Gibson County

No. 19-685 Clayburn Peeples, Judge

___________________________________

No. W2023-00254-CCA-R3-CD

___________________________________

The defendant, Uel Pearson, was convicted by a Gibson County jury of first-degree murder,

attempted first-degree murder, and employing a firearm during the commission of a

dangerous felony after having been previously convicted of a dangerous felony for which

he received an effective term of life imprisonment plus thirty years. On appeal, the

defendant argues that: (1) the evidence is insufficient to sustain his convictions; (2) the trial

court erred in excluding the recorded interviews of two witnesses; and (3) the trial court

erred in denying his motion for new trial based on juror misconduct. After reviewing the

record and considering the applicable law, we affirm the judgments of the trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which JOHN W. CAMPBELL, SR.,

and KYLE A. HIXSON, JJ., joined.

W. Taylor Hughes, Alamo, Tennessee (on appeal), and Marcus A. Lipham, Jackson,

Tennessee (at trial), for the appellant, Uel Pearson.

Jonathan Skrmetti, Attorney General and Reporter; G. Kirby May, Assistant Attorney

General; Amy P. Weirich, District Attorney General Pro Tem; and Christopher J. Lareau

and Robert Bradford Reasonover, Assistant District Attorneys General Pro Tem, for the

appellee, State of Tennessee.

OPINION

Facts and Procedural History

The defendant and a co-defendant, Lillo Harrell, were indicted for the first-degree

murder of Rontavious Maurice McKinley, the attempted first-degree murder of Sharonda

Simmons, and employing a firearm during the commission of a dangerous felony after

having been previously convicted of a dangerous felony, arising out of a home invasion-

shooting in which Mr. McKinley was killed and Ms. Simmons suffered multiple gunshot

wounds. The State’s proof at trial showed that Mr. McKinley and his girlfriend, Ms.

Simmons, were lying in bed in Ms. Simmons’ bedroom around 12:30 a.m. on October 11,

2016, when the bedroom door opened, the light turned on and quickly off, and a man with

stocking hose over his face started shooting.

Lieutenant Greg Bookout with the Milan Police Department responded to a shooting

call on Patton Street in Milan, Tennessee, at 12:39 a.m. on October 11, 2016. He was met

by witnesses outside the home who directed him to a bedroom at the back of the house.

Lieutenant Bookout found two victims in the bedroom, Ms. Simmons was lying on the bed

and Mr. McKinley was unresponsive on the floor next to the bed. In what Lieutenant

Bookout described as a “brutal scene,” he noted that both victims had been shot multiple

times. Ms. Simmons told Lieutenant Bookout that someone had come into the room and

shot them but that was the only information she could provide. Lieutenant Bookout was

wearing a body camera that night, the footage of which was played for the jury. Lieutenant

Bookout was unable to develop any suspects while on the scene.

The State played a number of 911 calls for the jury through the testimony of Kirby

Jaco, keeper of records for Gibson County 911. Thereafter, the State introduced, and read

into the record, the transcript of the preliminary hearing testimony of Ms. Simmons who

was determined to be an unavailable witness under Tennessee Rule of Evidence 804(a)(5).

According to her prior testimony, Ms. Simmons stated that at the time of the

shooting, she lived in a house on Patton Street with her friend, Ayanna Boyce. On the

night of October 10, 2016, Ms. Simmons, Ayanna Boyce, Makayla Boyce, and the

defendant were present in the home. Ms. Simmons and Ayanna Boyce were in their

respective bedrooms, and Makayla Boyce was a guest staying on the couch in the living

room. Ayanna Boyce and the defendant were in a relationship, and he was visiting her that

evening.

Ms. Simmons’ boyfriend, Mr. McKinley, arrived around 11:00 or 11:30 p.m., and

Ms. Simmons went into the kitchen to prepare something for him to eat. The defendant

was leaving at the same time Mr. McKinley arrived, and the two of them had a brief

exchange of words. The defendant said to Mr. McKinley that he looked familiar, and Mr.

McKinley responded, “‘You know me’ and kind of laughed it off.” The defendant then

walked out the door.

Ms. Simmons and Mr. McKinley retired to her bedroom to go to sleep. While they

were lying in bed but yet to have fallen asleep, possibly around 12:00 or 12:30 a.m.,

-2-

someone kicked in the bedroom door, briefly flicked the light on and off, and started

shooting. Ms. Simmons saw that the shooter had stocking hose over his face, but she was

unable to identify him through the stockings. Ms. Simmons was shot eleven times and had

to receive medical treatment for her injuries.

Teresa Garrett, one of Ms. Simmons’ neighbors, had exterior video surveillance

cameras on her house that captured two individuals running from Ms. Simmons’ home

after the shooting. Ms. Garrett provided the footage to law enforcement, and the video and

a map of the street were introduced at trial during her testimony.

Sharon Gillespie, a dispatcher and correctional officer for the Milan Police

Department, participated in the prisoner intake process when the defendant was brought

into jail on November 2, 2016. The defendant provided information to Ms. Gillespie,

including his phone number, which she recorded on the booking sheet. The booking sheet

was introduced at trial.

Lieutenant Jason Williams with the Milan Police Department responded to the scene

after the initial officers to begin investigating the shooting. When Lieutenant Williams

arrived, Ms. Simmons was in an ambulance in front of the house, Ayanna Boyce and

Makayla Boyce were outside the home, and Mr. McKinley had already been transported to

the hospital. The scene was “pretty chaotic” and there was a lot of blood, particularly in

the bedroom where the shooting took place. Officers took numerous photographs of the

scene, as well as collected evidence such as shell casings and bullet fragments.

During his investigation at the scene, Lieutenant Williams learned from the

witnesses that the defendant had been present in the home briefly prior to the shooting.

Lieutenant Williams obtained the defendant’s phone number from Ayanna Boyce and

requested a search warrant for the defendant’s cellphone records. The defendant’s

cellphone records revealed that he texted the statement, “That ‘N word’ here” to another

number at 11:52 p.m. Lieutenant Williams researched the number the defendant had texted

and learned that it belonged to Lawrence Douglas. Based on a timeline review of the

defendant’s phone records, the witnesses’ statements, and the neighbor’s surveillance

footage, Lieutenant Williams believed the defendant was one of the subjects who fled the

victims’ home.

In addition to the defendant and Lawrence Douglas, officers developed two

additional suspects during the course of the investigation, the defendant’s brother, Tabeel

Pearson,1 and Lillo Harrell. One witness thought Tabeel Pearson had a necklace like that

1

At times, this individual will be referred to only as “Tabeel” to avoid confusion between him and the

defendant. We mean no respect by this practice.

-3-

worn by one of the suspects, but officers did not find any connection between Tabeel and

the homicide. Mr. Harrell matched the build of one of the suspects in the surveillance

video and was a known associate of the defendant.

Based on the text message exchange with the defendant, officers began searching

for Lawrence Douglas in order to bring him in for questioning. Officers eventually located

and conducted a traffic stop of Mr. Douglas on November 1, 2016. Mr. Douglas initially

lied and told officers “he didn’t have nothing to do with it. He wasn’t there.” However,

when confronted with evidence from the investigation, “that’s when [Mr. Douglas] started

telling some of the truth.” Lieutenant Williams elaborated that “after [Mr. Douglas] finally

got over [the] ‘I wasn’t there; I didn’t do it’ attitude[,] . . . he started to tell [the truth] . . .

[and] just added a little bit each time.” Mr. Douglas eventually provided information

leading officers to seek arrest warrants for the defendant and Mr. Harrell.

During the interview, Mr. Douglas said that after he received the text message from

the defendant, the defendant and Mr. Harrell came to his house and had Mr. Douglas drive

them to a Gangster Disciple party on Cherry Street. Lieutenant Williams knew the location

to be about a block from the location of the homicide. While at the gang party, Mr. Douglas

overheard the defendant tell other gang members that he had “just run into . . . the opposite

position” and was going to “tak[e] care of business.” The defendant and Mr. Harrell then

had Mr. Douglas drive them to the corner of Ennis and Carroll Streets to “handle the

business.” Mr. Douglas observed the two men pull stocking hose down over their heads

and exit the car with guns. He saw them head down Carroll Street toward Patton Street.

After a brief time, they came running back and got in his car.

Officers obtained a search warrant for the defendant’s residence and, during its

execution, found a black sweatshirt with a king playing card on the front of it. The

sweatshirt matched the clothing Mr. Douglas told the officers in his interview that the

defendant directed Mr. Douglas to say the defendant was wearing when the defendant was

formulating an alibi. Officers also searched Mr. Harrell’s residence and, during which,

found a Gangster Disciple bible, which contained the by-laws and members of the gang,

and a gun magazine with ammunition. The ammunition found in Mr. Harrell’s house

matched the brand and caliber recovered from the crime scene. A handgun was recovered

from Mr. Douglas during the traffic stop, but it did not match the caliber of the casings

found at the scene.

Prior to the cross-examination of Lieutenant Williams, defense counsel indicated

his intent to use the video recording of Mr. Douglas’ interview to impeach Lieutenant

Williams’ testimony. The State objected on grounds that the contents of Mr. Douglas’

recorded interview would be hearsay and that Mr. Douglas had yet to testify. Defense

counsel explained that the purpose of using the recorded interview was to “show the . . .

-4-

pattern of the interrogation as the story changes.” The court found that use of the recorded

interview might be appropriate after Mr. Douglas testified.

On cross-examination, Lieutenant Williams acknowledged that the none of the

possible latent fingerprints or swabs for possible DNA from the crime scene implicated the

defendant. DNA testing of the pistol and magazine recovered during the traffic stop of Mr.

Douglas returned an inconclusive profile. The nine-millimeter magazine and ammunition

recovered from Mr. Harrell’s home matched the brand and caliber from the crime scene,

but the DNA profile obtained from those items was inconclusive.

Lawrence Douglas testified that he was interviewed by Lieutenant Williams on

November 1 or 2, 2016, regarding his involvement in the crime and that he had testified

consistently in two prior hearings in March 2017. He acknowledged he met with

prosecutors and hoped to receive some sort of favorable treatment for his testimony but

stated he had not been promised anything.

Mr. Douglas stated that he was formerly a member of the Gangster Disciples gang

but was inactive at the time of the offense due to a financial situation. Mr. Douglas

described his history with the gang and the forms of punishment used by the gang. He also

explained the organizational structure for the Gangster Disciples and the roles of each rank

within the gang. In 2016, before he went inactive, Mr. Douglas held the rank of Assistant

Chief Enforcer. The defendant held the rank of Chief Enforcer, and Mr. Harrell held the

rank of Chief of Security. Both men were ahead of Mr. Douglas in rank. Tabeel Pearson,

the defendant’s brother, was also an Enforcer.

According to Mr. Douglas, the defendant had a known “beef” with Jason Cox, a

member of the Rollin’ 60s Crips, because Mr. Cox was rumored to have shot the defendant.

Mr. Douglas knew the deceased victim, Mr. McKinley, and knew that Mr. McKinley was

friends with Mr. Cox. Mr. Douglas did not know whether Mr. McKinley was a member

of the Crips.

Mr. Douglas recalled that on the night of October 10, he received a text message

from the defendant saying, “That n****r is here.” Mr. Douglas responded, “Where he at?”

The defendant then texted Mr. Douglas asking where he was, and Mr. Douglas said he was

at home. The defendant and his brother, Tabeel, showed up at Mr. Douglas’ home. The

defendant had been drinking and was armed with a gun. Mr. Harrell arrived while they

were outside talking on the porch and spoke with the defendant and Tabeel on the steps.

Mr. Harrell left, and the defendant and Tabeel got into Mr. Douglas’ car for Mr. Douglas

to drive them to a Gangster Disciples party on West Cherry Street.

-5-

When they arrived, the defendant and Tabeel got out of the car, but Mr. Douglas

was instructed to get back in the car because he was not an active member at the time. Mr.

Douglas explained that inactive members were not allowed to be present for private

conversations amongst active members. However, Mr. Douglas overheard the defendant

say, “I don’t care. I don’t care if they 20, 40, 60, 80, 100. I don’t care.” Mr. Douglas

understood the defendant’s statement to mean “there was something extra going on” and

that the numbers described different sects of the Crips.

Mr. Douglas got out of his car to tell the defendant that he was going to leave, but

the defendant instructed him to stay because Mr. Douglas was his ride. While he was

waiting, Mr. Douglas saw the defendant and Mr. Harrell put stocking hose over their faces

and walk in the direction of a house across the street. Both men were armed with guns. As

the defendant and Mr. Harrell walked away, Mr. Douglas stood talking to Tabeel Pearson

and said to him, “Look, my car don’t go that fast, you know what I’m saying?” and “[M]y

car don’t go over 20 at the time unless you just really play with it.” Tabeel then checked

the doors of some nearby cars and said, “Ain’t no doors open. Ain’t no keys.” Tabeel

walked away, and Mr. Douglas drove off.

However, as Mr. Douglas was driving down the street, the defendant and Mr. Harrell

came up to his car with guns so he stopped. Mr. Harrell got into the back seat and the

defendant got into the front seat, and Mr. Douglas drove them to Mr. Harrell’s house.

During the drive, Mr. Harrell bragged, “I got him.” When they got to Mr. Harrell’s house,

they got into a verbal altercation because Mr. Harrell and the defendant wanted to leave

their guns in Mr. Douglas’ car but Mr. Douglas wanted them to take the guns. As they

were “going back and forth,” Mr. Douglas heard sirens and told them to leave. Mr. Harrell

put the guns in a plastic garbage bag Mr. Douglas had in the back seat and left the bag in

the car. Mr. Douglas then left and drove home.

The next day, Mr. Harrell showed up at Mr. Douglas’ house to get the guns and

bragged about what had happened. Mr. Harrell and Mr. Douglas got into a verbal

altercation because Mr. Douglas felt that the other men tried to “put[] it on [him]” by

leaving the guns in the car. Mr. Douglas learned who had been killed from Facebook and

the news. Mr. Douglas was not aware of “any beef” between the defendant and the

deceased victim, Mr. McKinley.

About a week later, the defendant contacted Mr. Douglas and, after a brief exchange,

Mr. Douglas went to the defendant’s house. The defendant had a gun in his hand when he

came to the door. The defendant gave Mr. Douglas some money and asked Mr. Douglas

to throw away the clothes the defendant was wearing on the night of the homicide for him.

The defendant instructed Mr. Douglas that, “If anybody asks, tell them I was with you.”

Mr. Douglas elaborated that he was supposed to say that the defendant was at Mr. Douglas’

-6-

house with him and that the defendant was wearing jeans and a pullover with a king playing

card on it.

Mr. Douglas recalled that on November 1 or 2, 2016, he was arrested at a traffic

stop and brought to Lieutenant Williams and another officer for questioning. Mr. Douglas

admitted that he initially lied to the officers about the incident and said that he was at home

and the defendant was with him. Mr. Douglas explained that he lied because he had ties to

the defendant – the defendant was Mr. Douglas’ son’s godfather and his son was named

after the defendant.

During the interview process, the officers confronted Mr. Douglas with the text

messages sent to him by the defendant, and the interrogation went into the next day.

“[W]hen [he] saw everything was going to fall on [him] for something [he] didn’t do[,]”

Mr. Douglas began to tell the truth. Mr. Douglas ultimately chose his son and family over

the defendant. Mr. Douglas said that once he told truth during his interview, his statement

did not change. Mr. Douglas acknowledged that he was charged in the case with accessory

after the fact and criminal responsibility.

On cross-examination, Mr. Douglas testified that while he was being interrogated,

the officers brought his son to the holding cell window for him to see, but he “never got to

touch [his] son.” After a series of other questions, defense counsel announced its intent to

show the video recorded interview of Mr. Douglas to impeach his testimony. Defense

counsel asserted that Mr. Douglas stated twice that his story had not changed since

November 1 and had also said that “he never held his child.” The State responded that Mr.

Douglas admitted to lying and changing his story so a prior inconsistent statement was no

longer admissible. The trial court asked defense counsel to explain how the video would

add to Mr. Douglas’ testimony that he changed his story once he realized he was in trouble.

Defense counsel indicated that Mr. Douglas’ story changed during the interview from

November 1 to November 2. The trial court directed defense counsel to clear up the timing

of Mr. Douglas’ change of story through further cross-examination. Thereafter, in response

to questioning by defense counsel, Mr. Douglas stated that his story did not change “[a]fter

[he] came back and [he] talked to the . . . detective.” Mr. Douglas clarified, “First you

asked me have I changed my story. I told you I have. I told you no since the 1st, do you

see what I’m saying? That was the day after they talked to me, sir.”

The trial court then conducted a brief bench conference to revisit the issue of

impeaching Mr. Douglas’ testimony regarding contact with his son during the interview.

The court directed defense counsel to re-question Mr. Douglas about the contact, and, in

response to those questions, Mr. Douglas stated that he only remembered seeing his son

from the cell, he did not remember touching him. Defense counsel was then permitted to

show a still frame from the video of Mr. Douglas’ interview showing Mr. Douglas holding

-7-

his baby. Defense counsel also introduced a flash drive of Mr. Douglas’ interview into

evidence, but the recording was not used at trial beyond the cross-examination of Mr.

Douglas regarding his contact with his son.2 Mr. Douglas said that he did not consider the

contact with his son as a threat or coercive tactic by the officers.

Dr. Marco Ross, the Chief Medical Examiner for the West Tennessee Regional

Forensic Center, testified concerning the autopsy of Mr. McKinley. The autopsy revealed

that Mr. McKinley was shot eight times, including on the right side of his head and right

side of his chest. Mr. McKinley’s cause of death was determined to be multiple gunshot

wounds and manner of death was homicide.

Following the conclusion of the proof, the jury convicted the defendant, as charged,

of first-degree murder, attempted first-degree murder, and employing a firearm during the

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

felony. The trial court conducted a sentencing hearing, after which it imposed a sentence

of life imprisonment plus thirty years. This appeal followed.

Analysis

I. Sufficiency

The defendant challenges the sufficiency of the evidence. The defendant does not

challenge the elements of any of the offenses but, instead, challenges the proof establishing

his identity as one of the perpetrators. The State argues the evidence is sufficient to sustain

the defendant’s convictions. We agree with the State.

When the sufficiency of the evidence is challenged, the relevant question of the

reviewing court is “whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn.

R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury

shall be set aside if the evidence is insufficient to support the findings by the trier of fact

of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn.

1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All questions

involving the credibility of witnesses, the weight and value to be given the evidence, and

all factual issues are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d 620,

623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the trial judge,

2

The trial court later instructed the jury that “Exhibit number 14 is an audio tape of an interview of

Lawrence Douglas, only a small part of which was entered into evidence. You may listen to that part again,

but not the entire interview.”

-8-

accredits the testimony of the witnesses for the State and resolves all conflicts in favor of

the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our Supreme

Court has stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and the

jury see the witnesses face to face, hear their testimony and observe their

demeanor on the stand. Thus the trial judge and jury are the primary

instrumentality of justice to determine the weight and credibility to be given

to the testimony of witnesses. In the trial forum alone is there human

atmosphere and the totality of the evidence cannot be reproduced with a

written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 212 Tenn. 464,

370 S.W.2d 523 (1963)). “A jury conviction removes the presumption of innocence with

which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal a

convicted defendant has the burden of demonstrating that the evidence is insufficient.”

State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

Guilt may be found beyond a reasonable doubt where there is direct evidence,

circumstantial evidence, or a combination of the two. State v. Matthews, 805 S.W.2d 776,

779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977);

Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The standard of review for

sufficiency of the evidence “‘is the same whether the conviction is based upon direct or

circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting

State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The jury as the trier of fact must

evaluate the credibility of the witnesses, determine the weight given to witnesses’

testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d 331,

335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)).

Moreover, the jury determines the weight to be given to circumstantial evidence and the

inferences to be drawn from this evidence, and the extent to which the circumstances are

consistent with guilt and inconsistent with innocence are questions primarily for the jury.

Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)).

This Court, when considering the sufficiency of the evidence, shall not reweigh the

evidence or substitute its inferences for those drawn by the trier of fact. Id.

“The identity of the perpetrator is an essential element of any crime.” Rice, 184

S.W.3d at 662 (citing State v. Thompson, 519 S.W.2d 789, 793 (Tenn. 1975)). The burden

is on the State to prove the identity of the defendant as the perpetrator beyond a reasonable

doubt. State v. Cribbs, 967 S.W.2d 773, 779 (Tenn. 1998). The identification of the

defendant as the perpetrator is “a question of fact for the jury upon its consideration of all

-9-

competent proof.” State v. Bell, 512 S.W.3d 167, 198 (Tenn. 2015) (citing State v. Thomas,

158 S.W.3d 361, 388 (Tenn. 2005)).

At trial, the State presented the jury with the theory that even if it was not the

defendant who directly discharged his firearm into Ms. Simmons’ bedroom, the defendant

was guilty of the crime under a theory of criminal responsibility. Under Tennessee law, a

person may be charged with an offense if “he or she is criminally responsible for the

perpetration of the offense.” Tenn. Code Ann. § 39-11-401. A person is criminally

responsible for the conduct of another if, “[a]cting with intent to promote or assist the

commission of the offense, or to benefit in the proceeds or results of the offense, the person

solicits, directs, aids, or attempts to aid another person to commit the offense[.]” Id. § 39-

11-402(2). Criminal responsibility is not a separate crime; rather, it is “solely a theory by

which the State may prove the defendant’s guilt of the alleged offense, . . ., based upon the

conduct of another person.” State v. Lemacks, 996 S.W.2d 166, 170 (Tenn. 1999).

“Under a theory of criminal responsibility, an individual’s presence and

companionship with the perpetrator of a felony before and after the commission of an

offense are circumstances from which his or her participation in the crime may be inferred.”

State v. Caldwell, 80 S.W.3d 31, 37-38 (citing State v. Ball, 973 S.W.2d 288, 293 (Tenn.

Crim. App. 1998)). To be criminally responsible for the acts of another, the defendant

must “in some way associate himself with the venture, act with the knowledge that an

offense is to be committed, and share in the criminal intent of the principal in the first

degree.” Id. (citing State v. Maxey, 898 S.W.2d 756, 757 (Tenn. Crim. App. 1994)).

In addition, while the defendant does not specifically make such argument, inherent

in his assertion on this issue is that Mr. Douglas’ accomplice testimony was not sufficiently

corroborated. It is well-established that “a conviction may not be based solely upon the

uncorroborated testimony of an accomplice.” State v. Shaw, 37 S.W.3d 900, 903 (Tenn.

2001) (citing State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994)). This Court has defined

the term “accomplice” to mean “one who knowingly, voluntarily, and with common intent

unites with the principal offender in the commission of a crime.” State v. Allen, 976 S.W.2d

661, 666 (Tenn. Crim. App. 1997). The test of whether a witness qualifies as an accomplice

is “whether the alleged accomplice could be indicted for the same offense charged against

the defendant.” Id. It is not in dispute that Mr. Douglas qualified as an accomplice.

Our supreme court has described what is required to establish sufficient

corroboration as follows:

[T]here must be some fact testified to, entirely independent of the

accomplice’s testimony, which, taken by itself, leads to the inference, not

only that a crime has been committed, but also that the defendant is

- 10 -

implicated in it; and this independent corroborative testimony must also

include some fact establishing the defendant’s identity. This corroborative

evidence may be direct or entirely circumstantial, and it need not be adequate,

in and of itself, to support a conviction; it is sufficient to meet the

requirements of the rule if it fairly and legitimately tends to connect the

defendant with the commission of the crime charged. It is not necessary that

the corroboration extend to every part of the accomplice’s evidence.

Shaw, 37 S.W.3d at 903 (quoting Bigbee, 885 S.W.2d at 803). The corroborating evidence

need only be “slight.” State v. Griffs, 964 S.W.2d 577, 589 (Tenn. Crim. App. 1997).

Whether sufficient corroboration exists is for the jury to determine. Shaw, 37 S.W.3d at

903.

Viewed in the light most favorable to the State, the direct and circumstantial

evidence was sufficient to establish the defendant’s involvement in the shooting. Ms.

Simmons saw the defendant at her home approximately an hour or hour and a half before

the incident and observed the defendant and Mr. McKinley have a verbal exchange. Upon

learning of the defendant’s presence at the scene, Lieutenant Williams obtained the

defendant’s cellphone records and discovered that the defendant texted the statement,

“That ‘N word’ here” to Mr. Douglas shortly after leaving Ms. Simmons’ home. After the

text exchange with Mr. Douglas, the defendant and two other members of the Gangster

Disciples, Tabeel Pearson and Mr. Harrell, showed up at Mr. Douglas’ home and engaged

in a discussion. Mr. Douglas drove the defendant to a gang party, which was near the

victims’ home, and the defendant met up with Mr. Harrell again. Mr. Douglas heard the

defendant discussing with other gang members about “something extra going on” involving

the Crips. Mr. Douglas described Mr. McKinley’s connection to a member of the Crips,

Jason Cox, with whom the defendant “had a beef.” Mr. Douglas saw the defendant and

Mr. Harrell put stocking hose over their faces and walk in the direction of a house across

the street. Both men were armed with guns. According to Ms. Simmons, the shooter was

wearing stocking hose over his face. A short while later, the defendant and Mr. Harrell ran

back to Mr. Douglas’ car. Footage from a neighbor’s surveillance camera showed two

suspects fleeing Ms. Simmons’ home. When the men got back into Mr. Douglas’ car, Mr.

Harrell bragged, “I got him.” According to Mr. Douglas, the defendant later attempted to

fabricate an alibi and told him of the clothing to say the defendant was wearing on the night

of the homicide. During the investigation, Lieutenant Williams recovered that distinctive

clothing from the defendant’s home.

Moreover, Mr. Douglas’ testimony was sufficiently corroborated by the defendant’s

text messages, Ms. Simmons’ description of the shooter, the neighbor’s surveillance

footage showing two individuals running from the victims’ home, and officers’ recovery

of the distinctive clothing mentioned in the defendant’s fabricated alibi. This evidence

- 11 -

fairly and legitimately tended to connect the defendant with the commission of the crime

sufficient to corroborate the testimony of Mr. Douglas. Therefore, we conclude that the

evidence is sufficient to sustain the jury’s verdict, and the defendant is not entitled to relief.

II. Videotaped Witness Interviews

The defendant argues that the trial court erred in excluding the recorded interviews

of two witnesses, Lawrence Douglas and Sharonda Simmons. The State responds that the

trial court properly denied the defendant’s use of Mr. Douglas’ recorded statement, and the

defendant’s claim concerning use of Ms. Simmons’ recorded statement is waived. We

agree with the State.

A. Lawrence Douglas

The record shows that the defendant attempted to use the video recording of Mr.

Douglas’ interview with the police on two occasions at trial; namely, during the cross-

examinations of Lieutenant Williams and Mr. Douglas to impeach their testimonies. The

defendant asserts that the recording qualified as a prior inconsistent statement and that the

denial of its use limited his Sixth Amendment right to cross-examine witnesses provided

by the Confrontation Clause. He also asserts the video should have been allowed to show

a pattern of coercion used during the interview process.

“Generally, questions concerning the admissibility of evidence rest within the sound

discretion of the trial court, and this Court will not interfere with the exercise of that

discretion in the absence of a clear showing of abuse appearing on the face of the record.”

State v. McCoy, 459 S.W.3d 1, 8 (Tenn. 2014).

Tennessee Rule of Evidence 613(b) provides in pertinent part that “[e]xtrinsic

evidence of a prior inconsistent statement by a witness is not admissible unless and until

the witness is afforded an opportunity to explain or deny the same and the opposite party

is afforded an opportunity to interrogate the witness thereon, or the interests of justice

otherwise require.” When presented with a prior inconsistent statement, a witness “has

several possible responses: the witness can admit, deny, or not remember making all or

part of the statement.” Neil P. Cohen et al., Tennessee Law of Evidence § 6.13[5][a] (6th

ed. 2011). If the witness admits making the prior inconsistent statement, extrinsic proof of

the statement would be cumulative and, therefore, inadmissible. Id.; State v. Martin, 964

S.W.2d 564, 567 (Tenn. 1998) (“Extrinsic evidence of a prior inconsistent statement

remains inadmissible when a witness unequivocally admits to having made the prior

statement.”). Tennessee Rule of Evidence 803(26) provides an exception to the rule against

hearsay allowing for a prior inconsistent statement of a testifying witness to be considered

as substantive evidence if otherwise admissible under Rule 613(b) and if: (1) the declarant

- 12 -

testified at trial and was subject to cross-examination about the statement; (2) the statement

is an audio or video recorded statement, a signed written statement, or a statement given

under oath; and (3) the trial court determines after a jury-out hearing by a preponderance

of the evidence that the witness made the prior statement under circumstances indicating

trustworthiness. Tenn. R. Evid. 803(26)(A)-(C).

Lieutenant Williams testified that Mr. Douglas initially lied and told officers “he

didn’t have nothing to do with it. He wasn’t there.” However, when confronted with

evidence from the investigation, “that’s when [Mr. Douglas] started telling some of the

truth.” Lieutenant Williams elaborated that “after [Mr. Douglas] finally got over [the] ‘I

wasn’t there; I didn’t do it’ attitude[,] . . . he started to tell [the truth] . . . [and] just added

a little bit each time.”

Mr. Douglas repeatedly acknowledged at trial that he initially lied to the police in

his interview but, after being confronted with the evidence, he began telling the truth about

the homicide and the actions of the various players. He stated that he had remained

consistent in his story once he told the truth. Accordingly, Mr. Douglas was impeached

about his truthfulness during the interview process and extrinsic evidence from the

recording was inadmissible as cumulative. Further, any assertion by the defendant that the

recording should have been entered as substantive evidence fails because it does not meet

the conditions of admissibility under Rule 613 nor did the defendant request a jury-out

hearing for the court to determine by a preponderance of the evidence that the statement

was trustworthy. See Tenn. R. Evid. 803(26)(C).

Even if this Court were to determine that the video could have been used to impeach

Mr. Douglas, Rule 613 would not have permitted the playing of the entire recorded

statement as urged by the defendant. Only the portions of the statement that a witness

denies or cannot recall making would be admissible under Rule 613(b). State v. Foust, 482

S.W.3d 20, 41 (Tenn. Crim. App. 2015) (citing Martin, 964 S.W.2d at 567). As another

panel of this Court has recently explained, “Rule 613 does not require the playing of an

entire recorded statement that could include statements not previously brought to the

attention of the witness, statements that may be consistent with the witness’s trial

testimony, and statements that the witness remembers and readily agrees to have made.”

State v. Gardner, 2023 WL 4994967, at *22 (Tenn. Crim. App. Aug. 4, 2023), perm. app.

denied (Tenn. Dec. 19, 2023).

With regard to use of the recorded interview to impeach Lieutenant Williams’

testimony, such use during Lieutenant Williams’ testimony was clearly hearsay and

inadmissible pursuant to the rules of evidence. See Tenn. R. Evid. 801(c) and 802.

Moreover, the defendant’s suggestion that use of the recording should have been allowed

to show a pattern of coercion during the interview process is without support in the record.

- 13 -

The defendant never questioned Lieutenant Williams as to any coercion, and Mr. Douglas

testified that he did not view the detectives as engaging in threatening or coercive tactics.

The defendant is not entitled to relief on this issue.

B. Sharonda Simmons

The defendant also argues that the trial court improperly denied him the opportunity

to use Sharonda Simmons’ recorded interview at trial, during which he alleges Ms.

Simmons “made statements regarding another potential suspect.” In the defendant’s brief,

however, appellate counsel acknowledges that counsel “is unable to locate anywhere in the

record where trial counsel attempted to introduce the video interview of Witness Simmons.

Likewise, counsel is unable to locate in the record where the trial court erred by ruling that

the evidence was inadmissible.” The defendant undisputedly raised this claim for the first

time in his motion for new trial. Moreover, while the defendant discussed his purposes for

wanting to utilize the video, the defendant did not introduce the video at the motion for

new trial hearing.

This issue is waived. This Court is not required to grant relief “to a party responsible

for an error or who failed to take whatever action was reasonably available to prevent or

nullify the harmful effect of an error.” Tenn. R. App. P. 36(a). The defendant never sought

admission of the video interview; therefore, he cannot argue that its exclusion was

erroneous. Similarly, the defendant’s brief is inadequate because he did not provide

specific references to the record where the erroneous action occurred or the matter was

called to the attention of the trial court. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which

are not supported by argument, citation to authorities, or appropriate references to the

record will be treated as waived in this court.”). The defendant is not entitled to relief on

this issue.

III. Juror Misconduct

The defendant lastly argues that the trial court erred in denying his motion for new

trial based on his allegation of juror misconduct. The State responds that the trial court

properly denied the defendant’s motion. We agree with the State.

Every criminal defendant enjoys the right to a trial “by an impartial jury.” U.S.

Const. amend. VI; Tenn. Const. art. I, § 9. “Jurors must render their verdict based only

upon the evidence introduced at trial, weighing the evidence in light of their own

experience and knowledge.” State v. Adams, 405 S.W.3d 641, 650 (Tenn. 2013) (citing

Caldararo ex rel. Caldararo v. Vanderbilt Univ., 794 S.W.2d 738, 743 (Tenn. Ct. App.

1990)). The validity of a jury verdict will be considered questionable “[w]hen a jury has

been subjected to either extraneous prejudicial information or an improper outside

- 14 -

influence.” Id. (citing State v. Blackwell, 664 S.W.2d 686, 688 (Tenn. 1984)). Extraneous

prejudicial information includes “information in the form of either fact or opinion that was

not admitted into evidence but nevertheless bears on a fact at issue in the case.” Id.

(citations omitted). Improper outside influence is “any unauthorized private

communication, contact, or tampering directly or indirectly, with a juror during a trial about

the matter pending before the jury.” Id. at 650-51 (quoting Remmer v. United States, 347

U.S. 227, 229 (1954)).

The challenging party “must produce admissible evidence to make an initial

showing that the jury was exposed to extraneous prejudicial information or subjected to an

improper outside influence.” Id. at 651 (citing Caldararo, 794 S.W.2d at 740-41). If

successful, “a rebuttable presumption of prejudice arises and the burden shifts to the State

to introduce admissible evidence to explain the conduct or demonstrate that it was

harmless.” Id. (citing Walsh v. State, 166 S.W.3d 641, 647 (Tenn. 2005)). A violation of

the constitutional right to an impartial jury presents a mixed question of law and fact which

this Court reviews de novo, affording a presumption of correctness only to the trial court’s

findings of fact. Adams, 405 S.W.3d at 656 (citing Fields v. State, 40 S.W.3d 450, 458

(Tenn. 2001)).

In his motion for new trial, the defendant alleged that a juror provided information

concerning misconduct to his trial counsel, and counsel submitted his own affidavit in

support of the allegation. In his affidavit, counsel stated that he spoke with a juror, Candace

Paige, over the phone and that Juror Paige told him that during its deliberations, the jury

“did our research, and you weren’t his first lawyer.” However, Juror Paige testified at the

motion for new trial hearing, and her testimony did not support the allegation. Trial counsel

specifically asked Juror Paige if she or any other juror researched or learned of information

during the trial that was not introduced into evidence, and Juror Paige denied the allegation.

Counsel did not present any other evidence in support of this allegation.

Counsel’s affidavit, which is unsupported by testimony or other evidence, is not

sufficient evidence to meet the defendant’s burden of proving that the jury was exposed to

extraneous prejudicial information. Accordingly, the trial court did not err in denying the

defendant’s motion for new trial based upon juror misconduct.

Conclusion

Based on the forgoing authorities and reasoning, we affirm the judgments of the trial

court.

- 15 -

____________________________________

J. ROSS DYER, JUDGE

- 16 -