State of Tennessee v. Shatara Evette Jones

03/25/2024

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

January 9, 2024 Session

STATE OF TENNESSEE v. SHATARA EVETTE JONES

Appeal from the Criminal Court for Davidson County

No. 2016-D-1979 Jennifer Smith, Judge

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No. M2022-01620-CCA-R3-CD

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In this delayed appeal, Defendant, Shatara Evette Jones, appeals her conviction for first

degree murder for which she received a mandatory life sentence. On appeal, Defendant

challenges: 1) the trial court’s restricting her right to cross-examine a State’s witness; 2)

the trial court’s denial of her motion to dismiss, pursuant to State v. Ferguson, based on

the State’s failure to preserve evidence; 3) the trial court’s denial of her motions to suppress

her statement to police and cell phone data; 4) the trial court’s exclusion of evidence of the

victim’s gang involvement and a rap video in which he is depicted holding a gun; 5) the

trial court’s omission of an instruction in the written jury instructions; and 6) the

sufficiency of the evidence of her conviction. We affirm the judgment of the trial court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ROBERT L.

HOLLOWAY, JR., and JILL BARTEE AYERS, JJ., joined.

Erin D. Coleman (on appeal) and Nathan Cate (at trial), Nashville, Tennessee, for the

appellant, Shatara Evette Jones.

Jonathan Skrmetti, Attorney General and Reporter; Caroline Weldon, Assistant Attorney

General; Glenn R. Funk, District Attorney General; and Doug Thurman and Kristen

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

OPINION

Trial

On May 27, 2016, Defendant asked Tondrick Chandler to drive her to the Knollcrest

Apartment Complex to “[p]ick up some money.” Mr. Chandler picked up Defendant

around 5:00 p.m. Defendant sat in the front passenger seat and began sending text

messages from her cell phone. When they arrived at the apartment complex, Defendant

directed Mr. Chandler to park beside a dumpster. Mr. Chandler backed his maroon Dodge

Caravan minivan into a parking space beside a dumpster, where he spotted a large mirror

that he wanted to sell for scrap. Defendant remained inside the vehicle while Mr. Chandler

loaded the mirror into his vehicle. Mr. Chandler returned to the driver’s seat and adjusted

the radio and chatted with Defendant. Soon after, he saw the victim, 14-year-old Ladarrius

Gentry, approach the passenger side of the vehicle. Mr. Gentry dropped a baggie of pills

in Defendant’s hand. Defendant then withdrew a firearm from her jacket and said, “‘This

is what I got for you.’” She then shot at the victim. The victim began to run, and Defendant

got out of the vehicle and continued to fire at him. Defendant returned to the vehicle and

ordered Mr. Chandler to drive her to Dodge City, which he did.

Mr. Chandler did not contact the police that day. He saw a photo of his vehicle on

the news that night and went to the police station the following morning and spoke to

detectives. Mr. Chandler had never seen the victim before, and he did not know Defendant

had been carrying a gun. On cross-examination, Mr. Chandler testified that he saw the

victim put his hands in his pockets and lean into the vehicle before Defendant shot him.

On redirect, Mr. Chandler answered that he did not see the victim try to take anything from

Defendant.

Sergeant Ryan Sabel, of the Metro Nashville Police Department (“MNPD”), was

the first officer to respond to the shooting. When he arrived at 5:48 p.m., he saw a small

crowd of people gathered around the victim and giving aid to him. The victim had a

gunshot wound to his torso, and he had “a very faint pulse.” After the victim was

transported to the hospital, Sergeant Sabel secured the scene.

MNPD Detective Anthony Heil arrived at the apartment complex shortly thereafter

and determined that security cameras had recorded the incident. Detective Heil reviewed

the video footage, which showed that a maroon minivan entered the complex at 5:37:50

p.m. At 5:39:34 p.m., the victim appeared to retrieve an item near the dumpster and walk

down the sidewalk. He appeared to look at his cell phone as he walked. At 5:41:05 p.m.,

the victim approached the maroon minivan. Eight seconds later, the victim fled from the

minivan. Defendant exited the vehicle and chased the victim with her arm outstretched,

pointing a gun toward him. The surveillance video of the parking lot at Knollcrest

Apartments was admitted into evidence and shown to the jury.

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MNPD Crime Scene Investigator Kayla Fulton documented and collected evidence

found at the scene, which included three Hornady .380 automatic cartridge casings, a cell

phone “in pieces” on the sidewalk, an empty beer bottle, a shirt, a sweatshirt, and blood.

MNPD Detective Christopher Cote, the lead detective in the case, arrived at the

scene at around 7:30 p.m. He spoke to the victim’s cousin and mother. The victim’s

mother identified the cell phone found at the scene as the phone she bought for the victim.

Detective Cote sent the cell phone to be analyzed by Detective Chad Gish. Detective Gish

determined that the last phone number the victim called belonged to Defendant, who was

saved in the victim’s contacts list as “Duce Dirty.” The victim placed the call at 5:41 p.m.,

and the call lasted approximately seven seconds. Detective Cote also searched Facebook

and discovered that the phone number was associated with an account belonging to “Duce

Dirty.” The Facebook profile photo of “Duce Dirty” looked “very, very similar” to

Defendant.

The following morning, Detective Cote learned that MNPD Chaplain James Duke

“had been in touch with [Defendant] and was willing to bring her into the Madison Precinct

to talk.” Detective Cote spoke to Defendant that morning, and Defendant was arrested that

afternoon. MNPD Detective James Bledsoe interviewed Mr. Chandler the same day. Mr.

Chandler told Detective Bledsoe the location of the maroon minivan. Detective Bledsoe

later located the minivan at a housing complex at 2480 25th Avenue North in Nashville.

He saw a cartridge casing “just sitting there” “between the edge of the windshield wiper

and the windshield.” It was a Hornady .380 casing. The vehicle was processed for

evidence. MNPD Crime Scene Investigator Mark Rosenfeld recovered latent fingerprints

from pink cups and a bag of chips inside the vehicle; however, a forensic examination of

the latent fingerprints did not reveal a match to Defendant. Investigator Rosenfeld also

swabbed the door handles for trace DNA samples; however, the swabs were not analyzed

for DNA.

On May 28, 2016, Detective Bledsoe and MNPD Lieutenant William Mackall went

to Defendant’s grandmother’s house and retrieved Defendant’s cell phone. Upon the

issuance of a search warrant, a data extraction of the phone was performed, which revealed

that Defendant began searching for news articles about the shooting within “a couple of

hours” after it occurred. She also accessed MNPD’s Twitter account, which contained a

statement prepared by the public affairs office about the incident. All of the text messages

and phone calls between Defendant’s phone and the victim’s phone had been deleted from

Defendant’s phone but were later recovered.

Detective Cote testified that he and MNPD Detective Garrett Kidd interviewed

Bertha Tipton, “a witness who was sitting in her window and stated she observed what

happened.” Detective Cote testified that Detective Kidd wrote a report about what Ms.

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Tipton said in her interview. He testified there “may have been” a recording of the

interview, but he did not know what happened to the recording. He testified, “I do recall

that it didn’t record at the time. Detective Kidd made a notation later on that it didn’t record

or something like that.”

Dr. Miguel Laboy, of the Nashville Medical Examiner’s Office, performed an

autopsy on the victim and concluded that the victim died from multiple gunshot wounds

and determined that the manner of his death was homicide. The victim suffered three

gunshot wounds: one to the chest from an indeterminate range; one to the back from an

indeterminate range; and one to the right thigh from an indeterminate range.

At the conclusion of the State’s case-in-chief, the trial court granted Defendant’s

motion for judgment of acquittal as to count two of the indictment, finding that there was

no evidence that Defendant killed the victim during the perpetration or attempt to perpetrate

a theft.

Defendant did not testify or present any additional proof. The jury found Defendant

guilty of first degree murder, and the trial court imposed a mandatory life sentence.

Defendant filed a motion for new trial, which the trial court dismissed as untimely.

Defendant subsequently filed a limited petition for post-conviction relief and a second

petition for post-conviction relief, both alleging ineffective assistance of counsel based on

trial counsel’s failure to file a timely motion for new trial. Upon examining the second

petition, the trial court concluded that it was not in proper form because it was not signed

or verified under oath by Defendant. The trial court granted Defendant thirty days to cure

the defect, but Defendant did not file a verified petition, and the trial court dismissed her

petition.

Defendant subsequently filed a pro se petition for post-conviction relief, again

claiming ineffective assistance of counsel based on trial counsel’s failure to file a timely

motion for new trial, and the trial court appointed counsel. Appointed counsel filed a

second motion for new trial, which the trial court denied after a hearing, and the trial court

entered an order granting Defendant a delayed appeal.

Analysis

Exclusion of Hearsay Evidence

Defendant asserts that the trial court improperly limited trial counsel’s cross-

examination of Mr. Chandler by ruling that the statement by Defendant to Mr. Chandler,

“He tried to rob me” was inadmissible hearsay. Defendant argues that the court prevented

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her from laying an appropriate foundation to permit the statement as an excited utterance.

Defendant also denies that the hearsay statement was self-serving. The State contends that

the trial court “properly acted as a gatekeeper” in excluding the statement.

During his cross-examination of Mr. Chandler, defense counsel asked Mr. Chandler

about Defendant’s behavior after she shot the victim. Defense counsel asked if Defendant

was “flustered, scared[.] . . . Excited, nervous in that moment[,]” and Mr. Chandler

answered affirmatively. Defense counsel then asked for a bench conference, at which he

explained, “I will lay the foundation for what I expect to [be] an excited utterance.

[D]efendant’s statement immediately on getting back in the vehicle is [‘]he robbed me, he

tried to rob me.[’]” The State argued that defense counsel had not laid the foundation for

an excited utterance and that the statement was self-serving.

After hearing the arguments of counsel, the trial court determined that defense

counsel had not laid a proper foundation “for any sort of excitement” and excluded the

testimony. The trial court recessed for the day after Mr. Chandler’s testimony and

addressed the issue again the next morning:

THE COURT: So before we adjourned yesterday, the Court excluded a

statement that was reportedly made by [D]efendant to the witness, Tondrick

Chandler, to the effect that the victim had tried to rob her before the shooting.

Defense counsel at that time had argued that it was admissible as [an] excited

utterance under Rule 803(2). The Court and the counsel had a bench

conference about that and the Court excluded that as [a] self-serving

statement. And it is well noted that the statement arose out of a circumstance

that the defendant herself had created.

The Court did look a little bit further at that issue after we adjourned

yesterday and will now reaffirm it, but with some additional findings that I

think is appropriate for clarity and for completeness.

Those findings that are the shooting in question was a startling event for

purposes of Rule 803(2), that the statement was offered by the defense -- that

the statement offered was related to the shooting to the extent that it reported

a justification for the shooting. Number three, that the statement was self-

serving. And number four, that Tondrick Chandler’s testimony that

[D]efendant appeared to be upset and/or excited was inadequate in itself to

establish that the statement was so spontaneous as to preclude the absence of

reflection or fabrication. And number five, that that finding is particularly

so given the absence of any proof at this point in the trial to support any

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allegation that a[] robbery or an attempted robbery occurred on the day of the

shooting.

“‘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 unless the statement in question falls

under one of the exceptions contained in the Rules of Evidence or other law. Tenn. R.

Evid. 802. For instance, hearsay is admissible when the declarant makes “[a] statement

relating to a startling event or condition” and “was under the stress of excitement caused

by the event or condition.” Tenn. R. Evid. 803(2). To qualify as an “excited utterance,”

the statement must be made “at a time so near [the startling event or condition] as to

preclude the idea of deliberation and fabrication.” State v. Gordon, 952 S.W.2d 817, 820

(Tenn. 1997). The “time interval” between the statement and the startling event “is but one

consideration in determining whether a statement was made under stress or excitement[.]”

Id. The declarant’s demeanor is also highly relevant. State v. Banks, 271 S.W.3d 90, 117

(Tenn. 2008).

“The standard of review for rulings on hearsay evidence has multiple layers.”

Kendrick v. State, 454 S.W.3d 450, 479 (Tenn. 2015). The “factual and credibility

findings” made by the trial court when considering whether a statement is hearsay, “are

binding on a reviewing court unless the evidence in the record preponderates against them.”

Id. (citing State v. Gilley, 297 S.W.3d 739, 759-61 (Tenn. Crim. App. 2008)). After giving

appropriate deference to these findings, “the next questions—whether the facts prove that

the statement (1) was hearsay and (2) fits under one the exceptions to the hearsay rule—

are questions of law subject to de novo review.” Id. “If a statement is hearsay, but does

not fit one of the exceptions, it is inadmissible, and the court must exclude the statement.

But if a hearsay statement does fit under one of the exceptions, the trial court may not use

the hearsay rule to suppress the statement.” Kendrick, 454 S.W.3d at 479; see also Gilley,

297 S.W.3d at 760-61.

Defendant complains that she was “never actually given the opportunity to lay the

foundation for [t]his evidence” and that defense counsel was “interrupted before he had the

opportunity to put on sufficient evidence to lay the foundation for an excited utterance.”

However, defense counsel was not interrupted, but rather he requested a ruling on the issue

before any objection by the State and before laying the proper foundation for the excited

utterance hearsay exception. Furthermore, Defendant did not request to make an offer of

proof following the adverse ruling by the trial court.

We conclude that the record does not preponderate against the trial court’s findings

that although the shooting was a startling event for purposes of the excited utterance

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exception, Mr. Chandler’s testimony that Defendant was excited or scared was inadequate

to preclude the idea that the statement was deliberate or fabricated.

Defendant also argues that her constitutional right to confront witnesses was

unreasonably restricted by the trial court’s exclusion of the statement as hearsay. The

Confrontation Clause of the Sixth Amendment and article I, section 9 of the Tennessee

Constitution provide criminal defendants with the right to physically face witnesses and

the right to cross-examine witnesses. See State v. Brown, 29 S.W.3d 427, 430-31 (Tenn.

2000) (citing Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987); State v. Middlebrooks, 840

S.W.2d 317, 332 (Tenn. 1992)). The Sixth Amendment and the Due Process Clause of the

Fourteenth Amendment guarantee a criminal defendant the right to present a defense. See

id. at 432 (citing Taylor v. Illinois, 484 U.S. 400, 408 (1988); Washington v. Texas, 388

U.S. 14, 23 (1976); Chambers v. Mississippi, 410 U.S. 284, 302 (1973); State v. Sheline,

955 S.W.2d 42, 47 (Tenn. 1997)).

Generally, the propriety, scope, manner and control of the cross-examination of

witnesses rest within the sound discretion of the trial court. State v. James, 315 S.W.3d

440, 460 (Tenn. 2010) (citing State v. Caughron, 855 S.W.2d 526, 540 (Tenn. 1993); State

v. Dishman, 915 S.W.2d 458, 463 (Tenn. Crim. App. 1995)). “This Court will not disturb

the limits placed upon cross-examination by the trial court, unless the trial court has

unreasonably restricted the right.” State v. Gentry, 538 S.W.3d 413, 429 (Tenn. 2017).

The right of cross-examination “is subject to the restrictions created by the applicable

statutes, rules of evidence, rules of criminal procedure, and the common law rules created

by the appellate courts.” State v. Adkisson, 899 S.W.2d 626, 644-45 (Tenn. Crim. App.

1994).

The Tennessee Supreme Court has recognized that “[p]rinciples of due process

require that a defendant in a criminal trial have the right to present a defense and to offer

testimony.” State v. Flood, 219 S.W.3d 307, 315-16 (Tenn. 2007) (citing Chambers, 410

U.S. at 294; Brown, 29 S.W.3d at 431). A defendant’s right to present a defense is not

without limits, and he or she must comply with established rules of evidence and procedure.

Chambers, 410 U.S. at 302. In determining whether the exclusion of evidence violates a

defendant’s constitutional right to present a defense, this Court must consider:

(1) Whether the excluded evidence is critical to the defense;

(2) Whether the evidence bears sufficient indicia of reliability; and

(3) Whether the interest supporting exclusion of the evidence is substantially

important.

Flood, 219 S.W.3d at 316 (citing Brown, 29 S.W.3d at 434-35; State v. Rice, 184 S.W.3d

646, 673 (2006); State v. Rogers, 188 S.W.3d 593, 614 (Tenn. 2006)).

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Defendant cannot bypass the rules of evidence by asserting a constitutional

violation. We have determined that the trial court properly excluded the statement as

hearsay. Furthermore, we cannot say that the hearsay statement was critical to the defense.

There was no evidence presented to support the contention that the victim attempted to rob

Defendant before she shot him. Finally, we agree with the trial court that the statement

was self-serving. Defendant asserts, “it is highly unlikely” that Defendant made the

statement that the victim tried to rob her “for the express purpose of lessening her criminal

liability[.]” We disagree. Given the absence of any proof that the victim attempted to rob

Defendant, we agree with the trial court that Defendant’s statement was an attempt to

provide a justification for the shooting. For these reasons, Defendant is not entitled to relief

on this issue.

Ferguson Motion

Relying on State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999), Defendant argues that

her due process rights were violated when the State failed to preserve a recording of a

police interview of a witness for the State. The State responds that even if the recording

existed, Defendant could not establish that she would have been entitled to receive it.

At the conclusion of the State’s case-in-chief, counsel for Defendant made an oral

motion to dismiss the indictment, pursuant to State v. Ferguson, based on the State’s failure

to preserve a recorded interview with witness Bertha Tipton. The trial court determined

that “the Ferguson factors do not support dismissal” and that there was “no proof to suggest

that the State deliberately destroyed or misplaced the recording[,]” noting that Detective

Cote testified “the failure to record may have been the result of an equipment failure or at

most negligence.” The trial court found that even if the State had a duty to preserve the

recording, Defendant had not demonstrated “that the evidence would have played a

significant role in the defense, given the available video evidence coupled with the

eyewitness testimony of Tondrick Chandler.”

In considering whether Defendant would be unable to obtain comparable evidence

by other reasonably available means, the trial court noted that Detective Kidd had prepared

an investigative supplement that summarized a telephone interview with Ms. Tipton, which

stated that she was beside her window when she heard gunshots, and when she looked up,

she saw a person wearing a gray hoodie and shorts, pointing a handgun at someone. The

trial court found that nothing in the report indicated any interaction between the victim and

Defendant before the shooting or that “Ms. Tipton’s vantage from her apartment would

have given her a better view of the incident than the multiple video cameras located at the

apartment complex, which provided comparable evidence that is available to [D]efendant

and has been presented to the jury.”

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“Every criminal defendant is guaranteed the right to a fair trial under the Due

Process Clause of the Fourteenth Amendment to the United States Constitution and the

‘Law of the Land’ Clause of Article I, section 8 of the Tennessee Constitution.” Johnson

v. State, 38 S.W.3d 52, 55 (Tenn. 2001). “To facilitate this right, a defendant has a

constitutionally protected privilege to request and obtain from the prosecution evidence

that is either material to guilt or relevant to punishment.” Ferguson, 2 S.W.3d at 915; see

Brady v. Maryland, 373 U.S. 83, 87 (1963).

In Ferguson, our supreme court addressed “the factors [that] should guide the

determination of the consequences that flow from the State’s loss or destruction of evidence

which the accused contends would be exculpatory.” Ferguson, 2 S.W.3d at 914. First, a

reviewing court must determine whether the State had a duty to preserve the lost or

destroyed evidence. Id. at 917. “For this duty to arise, the [evidence] must be expected to

play a significant role in [the defendant’s] defense.” State v. Merriman, 410 S.W.3d 779,

792 (Tenn. 2013). “Specifically, [the evidence] must have potential exculpatory value and

be of such a nature that [the defendant] would be unable to obtain comparable evidence by

other reasonably available means.” Id.; State v. Crass, 660 S.W.3d 506, 513 (Tenn. Crim.

App. 2022).

If the trial court concludes that the State lost or destroyed evidence that it had a duty

to preserve, the trial court must then consider three factors to determine the appropriate

remedy for the State’s failure: (1) the degree of negligence involved; (2) the significance

of the destroyed evidence, considered in light of the probative value and reliability of

secondary or substitute evidence that remains available; and (3) the sufficiency of the other

evidence used at trial to support the conviction. Ferguson, 2 S.W.3d at 917; Merriman,

410 S.W.3d at 785. “If the trial court concludes that a trial would be fundamentally unfair

without the missing evidence, the trial court may then impose an appropriate remedy to

protect the defendant’s right to a fair trial, including, but not limited to, dismissing the

charges or providing a jury instruction.” Merriman, 410 S.W.3d at 785-86. This Court

reviews a trial court’s decision concerning the fundamental fairness of the trial under a de

novo standard. Merriman, 410 S.W.3d at 790. However, we review the trial court’s

remedy under an abuse of discretion standard. Id.; Crass, 660 S.W.3d at 514.

With respect to Defendant’s argument that the State should have preserved a

recording of Ms. Tipton’s statement to police, Defendant has not shown that a recording

actually existed. Detective Cote testified that Detective Kidd wrote a report summarizing

Ms. Tipton’s interview. He testified that there “may have been” a recording of the

interview, but he did not know what happened to the recording. He then testified, “I do

recall that it didn’t record at the time. Detective Kidd made a notation later on that it didn’t

record or something like that.” The burden is on Defendant to show that evidence alleged

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to have been lost or destroyed by the State actually existed. See State v. Martin, No.

W2017-01610-CCA-R3-CD, 2018 WL 4677575, at *16 (Tenn. Crim. App. Sept. 28, 2018)

(denying Ferguson relief when “the Defendant failed to prove that a second lineup ever

existed”), no perm. app. filed. Ferguson simply does not apply to evidence that never

existed. “[T]his [C]ourt has repeatedly refused to grant Ferguson relief when there was no

proof that the alleged evidence existed.” State v. Sparks, No. M2005-02436-CCA-R3-CD,

2006 WL 2242236, at *5 (Tenn. Crim. App. Aug. 4, 2006) (citations omitted), no perm.

app. filed; see also State v. Morton, No. E2019-01755-CCA-R3-CD, 2022 WL 2301439,

at *33 (Tenn. Crim. App. June 27, 2022), perm. app. denied (Tenn. Nov. 16, 2022).

Moreover, even if a recording of Ms. Tipton’s statement existed, Defendant cannot

demonstrate that the State had a duty to preserve it. Tennessee Rule of Criminal Procedure

16(a)(2), which deals with information not subject to disclosure to the defendant, excludes

from discovery “statements made by state witnesses or prospective state witnesses.” Tenn.

R. Crim. P. 16(a)(2). In any event, we agree with the trial court’s analysis that the evidence

would not have played a significant role in the defense. Stronger evidence of Defendant’s

guilt was presented to the jury, including surveillance video of the shooting, Mr. Chandler’s

testimony, and cell phone data.

We conclude that Defendant has not shown that a recording of Ms. Tipton’s

statement existed, and even if it did exist, the State did not have a duty to preserve it.

Accordingly, we affirm the trial court’s denial of Defendant’s motion to dismiss the

indictment.

Motions to Suppress

Defendant contends that the trial court erred by not suppressing the contents of her

cell phone and her recorded statement to police. As to her cell phone, Defendant asserts

that Detective Cote’s affidavit failed to establish probable cause to search her cell phone

because it was overbroad and unspecific. As to her statement to police, Defendant

acknowledges that the State did not introduce the statement at trial, but she argues that the

State’s decision not to introduce the incriminating statement “greatly prejudiced” her

defense. The State responds that the trial court properly denied both motions to suppress.

In reviewing the trial court’s ruling on a motion to suppress, the party prevailing in

the trial court “is entitled to the strongest legitimate view of the evidence adduced at the

suppression hearing as well as all reasonable and legitimate inferences that may be drawn

from that evidence.” State v. Bell, 429 S.W.3d 524, 529 (Tenn. 2014). This Court must

uphold the trial court’s findings of fact unless the evidence preponderates against them. Id.

at 528. “Questions of credibility of the witnesses, the weight and value of the evidence,

and resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier

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of fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). We review the trial court’s

application of the law to the facts de novo without a presumption of correctness to the trial

court’s conclusions of law. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001).

A. Cell Phone Data

Prior to trial, Defendant filed a motion to suppress the data recovered from her cell

phone, arguing that Detective Cote’s affidavit failed to establish probable cause for a search

warrant. In the affidavit, Detective Cote stated that an analysis of the victim’s phone found

at the scene of the shooting revealed phone calls and text messages “just prior to the

homicide” between the victim’s phone and a contact saved as “Duece [sic] Dirty” with the

phone number associated with Defendant’s cell phone. The messages indicated that they

had arranged a meeting to conduct a drug transaction. Detective Cote stated that Defendant

had admitted to shooting the victim but claimed she did so in self-defense and that the

victim had tried to rob her. The affidavit identified the cell phone to be searched by its

specific model, IMEI number, and phone number. Detective Cote also described the

information he intended to retrieve from the cell phone, including text messages, address

book entries, call history, and deleted content.

The trial court concluded that the affidavit established probable cause for the

issuance of a search warrant. The court found that “the affidavit stated that there had been

communications in the form of text messages and phone calls between [D]efendant and the

victim ‘just prior to the homicide.’” The trial court also found that the facts set forth by

Detective Cote in his affidavit presented a “clear nexus” between Defendant’s cell phone

and the homicide. The court rejected Defendant’s argument that the search of her cell

phone was overly broad and denied her motion to suppress the contents of her cell phone.

Initially, we note that Defendant’s argument in support of the issue of whether the

trial court “erred by denying the motion to suppress [Defendant]’s cell phone statement”

begins with her assertion that “there remains a question as to method of authentication of

the cell phone presented at trial[.]” Defendant cites Tennessee Rule of Evidence 901 and

asserts Detective Cote’s testimony was insufficient to authenticate Defendant’s cell phone

records because “Detective Cote had insufficient knowledge to authenticate the cell

phone’s owner.” The State responds that Defendant waived consideration of the issue by

not including it in her motion for new trial. See Tenn. R. App. P. 3(e) (“[N]o issue

presented for review shall be predicated upon error in the admission or exclusion of

evidence, . . . , unless the same was specifically stated in a motion for a new trial; otherwise

such issues will be treated as waived.”). We agree with the State.

Defendant’s motion for new trial simply states, “The [c]ourt erred by denying the

motion to suppress [Defendant’s] cell phone.” In a motion for new trial, the defendant

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must set forth the factual grounds on which he or she relies, the legal grounds for the trial

court’s ruling, and a concise statement as to why the trial court’s decision was in error.

State v. Lowe-Kelley, 380 S.W.3d 30, 33-34 (Tenn. 2012) (quoting State v. Hatcher, 310

S.W.3d 788, 802 (Tenn. 2010) (internal quotation marks omitted)). The contents of the

motion should direct the attention of the trial court and prevailing party to the asserted

error, and the movant should specify the issues with sufficient certainty to enable the

appellate court to determine whether the issue was first raised in the trial court. Waters v.

Coker, 229 S.W.3d 682, 689 (Tenn. 2007) (citing State v. Gauldin, 737 S.W.2d 795, 798

(Tenn. Crim. App. 1987)). Grounds not raised in a motion for new trial are waived for

purposes of appeal. See Waters, 229 S.W.3d at 689 (citing Boyd v. Hicks, 774 S.W.2d 622,

625 (Tenn. Ct. App. 1989)). Defendant has waived consideration of the issue of whether

the cell phone records were properly authenticated at trial.

Regarding Defendant’s challenge to the sufficiency of the affidavit in support of the

search warrant, we conclude that the evidence does not preponderate against the trial

court’s finding that there was a “clear nexus” between Defendant’s cell phone and the

homicide and that the affidavit was specific and not overly broad.

Both the federal and state constitutions require probable cause for the issuance of a

warrant. U.S. Const. amend. IV; Tenn. Const. art. I, § 7; State v. Henning, 975 S.W.2d

290, 294 (Tenn. 1998). Probable cause is defined as “a reasonable ground for suspicion,

supported by circumstances indicative of an illegal act.” Henning, 975 S.W.2d at 294. A

finding of probable cause necessary for the issuance of a search warrant must be based

upon evidence included in a written and sworn affidavit. Id.

The affidavit must state facts and not merely conclusory allegations. State v. Tuttle,

515 S.W.3d 282, 300 (Tenn. 2017); Henning, 975 S.W.2d at 294. “Probable cause

generally requires reasonable grounds for suspicion, supported by circumstances indicative

of an illegal act.” State v. Williams, 193 S.W.3d 502, 507 (Tenn. 2006) (citing State v.

Stevens, 989 S.W.2d 290, 293 (Tenn. 1999)). The determination of probable cause is made

based upon consideration of the totality of the circumstances. Tuttle, 515 S.W.3d at 289.

The issuing magistrate should use common sense when determining whether the affidavit

supports a finding of probable cause. State v. Carter, 160 S.W.3d 526, 533 (Tenn. 2005).

Our standard of review in determining whether a search warrant is based upon

probable cause is “whether, in light of all the evidence available, the magistrate had a

substantial basis for finding probable cause.” State v. Meeks, 876 S.W.2d 121, 124 (Tenn.

Crim. App. 1993). “In reviewing the existence of probable cause for issuance of a warrant,

we may consider only the affidavit and may not consider any other evidence known by the

affiant or provided to or possessed by the issuing magistrate.” Carter, 160 S.W.3d at 533.

A supporting affidavit must establish a nexus between the criminal activity, the place to be

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searched, and the things to be seized. State v. Saine, 297 S.W.3d 199, 206 (Tenn. 2009)

(citing State v. Reid, 91 S.W.3d 247, 273 (Tenn. 2002)). “Courts also should consider the

nature of the property sought, the normal inferences as to where a criminal would hide the

evidence, and the perpetrator’s opportunity to dispose of incriminating evidence.” Reid,

91 S.W.3d at 275. “[U]nlike an affidavit in support of an arrest warrant, an affidavit

seeking issuance of a search warrant need not implicate a particular person in the crime

under investigation.” Tuttle, 515 S.W.3d at 301 (citations omitted).

Defendant appears to suggest that detectives were only able to identify her as the

owner of the cell phone after the extraction of the cell phone’s data, which “ultimately led

investigators to connect [Defendant] with the instant case.” Defendant relies on testimony

by Detective Gish, in explaining an internet search about the shooting on Defendant’s cell

phone “a couple of hours after the homicide had occurred,” that detectives “didn’t know

who [D]efendant was at the time. We didn’t know who had killed the victim.” However,

our reading of the cited testimony shows that Detective Gish was describing the search

history found on Defendant’s phone, which included a news article about the shooting

shortly after the shooting occurred. He testified detectives did not know Defendant’s

identity “at the time” of the internet search. Regardless, however, detectives need not

identify Defendant as the owner of the cell phone to obtain the search warrant for the cell

phone based on that phone number’s connection to the offense. Regarding detectives’

identification of Defendant, the proof at trial clearly established that investigators identified

Defendant based on a search of the victim’s phone found at the scene, which revealed that

Defendant was the last person with whom the victim communicated. After her interview

with police, in which Defendant admitted to having shot the victim, detectives obtained a

search warrant for the contents of Defendant’s cell phone.

The affidavit in support of the search warrant expressly provided that there were

phone calls and texts between the victim’s phone and Defendant’s phone immediately prior

to the shooting, that they had arranged to meet to conduct a drug transaction, and that

Defendant had admitted to shooting the victim. We agree with the trial court’s conclusion

that the affidavit established a “clear nexus” between Defendant’s cell phone and the

homicide. We also agree with the trial court’s conclusion that the affidavit stated with

specificity the information sought and was not overly broad. Defendant is not entitled to

relief on this issue.

B. Defendant’s Statement

Regarding her statement to police, Defendant acknowledges that the State did not

introduce the statement as evidence at trial, but nonetheless argues that the trial court erred

by not suppressing it. Defendant also recognizes that the State’s disclosure of evidence

pursuant to Rule 16 of the Tennessee Rules of Criminal Procedure does not obligate the

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State to present that evidence at trial. Defendant appears to suggest that the State’s

compliance with Rule 16 in providing the statement in discovery somehow prejudiced her

defense because the State “knew or should have known that [t]rial [c]ounsel would place

great weight on the use of this evidence by the State at trial[.]”

Prior to trial, Defendant filed a motion to suppress her statement, arguing that her

“formal recorded statement was impermissibly tainted by her previous confession obtained

while in custody and without the benefit of Miranda warnings.” Defendant asserted she

was only arrested “due to the dissemination of privileged communications made to a

clergyman[.]” The State filed a response to Defendant’s motion, asserting that Chaplain

Duke did not arrest or question Defendant about the incident; therefore, any statements by

Defendant to Chaplain Duke were not the result of a custodial interrogation. The State

further asserted that the clergy-penitent privilege applies only to statements by the

Defendant, not her mother, for the purpose of seeking spiritual counsel.

At a hearing on the motion, MNPD Chaplain James Duke testified that at the time

of the offense, in addition to being a police officer and chaplain, he was a pastor at the

church Defendant’s mother attended. On May 28, 2016, Defendant’s mother called him

“very upset” and told him Defendant had shot someone who tried to rob her. Chaplain

Duke called the MNPD’s public information office to verify that there was a shooting at

the apartment complex. He then contacted Defendant’s mother to arrange a meeting with

her and Defendant. Chaplain Duke was “off duty” and arrived in his personal vehicle. He

testified, “I was going more or less as a pastor to assist the mother and intended to help

[Defendant] as well, because she attended the church too and everything.” Defendant

agreed to go to the police station to give a statement to police. Chaplain Duke drove

Defendant to the police station. He testified, “the only thing I said to her, ‘well, just go tell

your side of the story because it sounds like self[-]defense to me.’”

Detective Cote testified at the hearing that by the morning of May 28, he had

identified Defendant as a possible suspect through a search of the victim’s phone and

surveillance video of the shooting. Detective Cote learned that “Chaplain Duke was in

contact with [Defendant] and she would like to come in and talk willingly.” Detective Cote

and Detective Bledsoe conducted a recorded interview with Defendant at the police station.

Detective Cote advised Defendant of her Miranda rights, and Defendant signed a waiver

form. During the interview, Defendant admitted that the phone number found on the

victim’s phone belonged to her and that her nickname was “Duce Dirty.”

In its written order denying Defendant’s motion to suppress, the trial court found

that Defendant was not under arrest when she met with Chaplain Duke, that she met with

him voluntarily, and there was “no proof” that Defendant “made any statement to

[Chaplain] Duke about the incident, let alone any communication that would have been

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subject to the clergy-penitent privilege.” The trial court further found that even if

Defendant had made a statement to Chaplain Duke, there was no proof that the

communication was made for the purpose of seeking spiritual counsel.

On appeal, Defendant has abandoned any issue of whether her communication with

Chaplain Duke was privileged or whether her statement to detectives should have been

suppressed. See State v. Adkisson, 899 S.W.2d 626, 635 (Tenn. Crim. App. 1994) (“When

. . . a party abandons the ground asserted when the objection was made and asserts

completely different grounds in the motion for a new trial and in this Court, the party

waives the issue.”). In her brief, Defendant argues instead that the State “violated the spirit

of Rule 16,” which requires the State to disclose a defendant’s statement “if the [S]tate

intends to offer the statement in evidence at trial.” Tenn. R. Crim. P. 16(a)(1)(a).

Defendant asserts that the adverse ruling by the trial court led her to prepare her trial

strategy with the expectation that the statement would be presented during the State’s case-

in-chief.

The State relies on dicta in State v. Henry, No. M2013-02490-CCA-R3-CD, 2015

WL 226113, at *17 (Tenn. Crim. App. Jan 16, 2015), no perm. app. filed, and argues that

it had no obligation to present Defendant’s statement at trial because the statement was

self-serving. However, the State offers no argument in support of its assertion that

Defendant’s statement was self-serving. In her statement to Detectives Cote and Bledsoe,

Defendant both admitted that she shot the victim and claimed that the victim tried to rob

her. She said she went to the apartment complex with Mr. Chandler to look for “scrap

wood.” While Mr. Chandler was retrieving a mirror from the dumpster, she saw a man

with “little dreads” wearing a “wife-beater” and “peeking behind [] the trash can.” The

victim, wearing a black hoodie, then approached the vehicle and “grabbed [her] necklace”

and was “pulling on her.” She said, “he tried to go in my pockets but I was really scared

so I just gave him my stuff. And then I just reached down for the gun and I just shot him

like that.” Then, “the dude with the little hair, like the little dreads, he ran through the

building like that and he was shooting back. And so that why I hop outta the van and start

shooting.”

In State v. Henry, the defendant challenged the State’s failure to introduce all of his

statements to police pursuant to Tennessee Rule of Evidence 106, the rule of completeness.

Id. at *16. Defendant Henry had given both a recorded statement at the scene and a

subsequent unrecorded statement at the hospital. Noting that Rule 106 applies only to

recorded or written statements, a panel of this Court concluded that the trial court did not

abuse its discretion by preventing the defendant from questioning the detective about the

substance of the hospital statement. Id. at *16-17. The panel further concluded that “the

State had no obligation to present the defendant’s self-serving statement.” Id. at *17.

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Our supreme court has held that the self-serving declarations of a criminal defendant

are not admissible. Moon v. State, 242 S.W. 39, 54 (1921). In Hall v. State, 552 S.W.2d

417, 418 (Tenn. Crim. App. 1977), this Court, quoting Wharton’s Criminal Evidence, 13th

Edition, section 303, explained the reasoning for this rule as follows:

“A declaration made by a defendant in his own favor, unless part of the res

gestae or of a confession offered by the prosecution, is not admissible for the

defense. A self-serving declaration is excluded because there is nothing to

guarantee its testimonial trustworthiness. If such evidence were admissible,

the door would be thrown open to obvious abuse: an accused could create

evidence for himself by making statements in his favor for subsequent use at

his trial to show his innocence.”

First, we disagree with the State that Defendant’s statement to Detectives Cote and

Bledsoe was self-serving as it was detrimental to Defendant in that it was incriminating

and contained statements that were contradicted by other evidence. Additionally, we

observe that the rule against self-serving declarations by a defendant applies when the

defendant attempts to introduce the statement. Here, Defendant complains that the State

did not introduce her statement at trial. Nonetheless, we are aware of no authority and

Defendant cites none that supports the proposition that the prosecution must introduce at

trial an inculpatory statement by Defendant. Defendant is not entitled to relief on this issue.

Motions in Limine

Defendant contends that the trial court erred by granting the State’s motions in

limine to exclude evidence of the victim’s alleged gang involvement and a rap video, which

depicted the victim holding a gun. Defendant argues that the evidence would have been

helpful to establish self-defense, that the victim was the first aggressor, and that she feared

the victim. The State asserts that the trial court properly excluded the evidence.

It is well-established “that trial courts have broad discretion in determining the

admissibility of evidence, and their rulings will not be reversed absent an abuse of that

discretion.” State v. McLeod, 937 S.W.2d 867, 871 (Tenn. 1996). Tennessee Rule of

Evidence 401 defines “relevant evidence” as “evidence having any tendency to make the

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

probable or less probable than it would be without the evidence.” Generally, relevant

evidence is admissible, while irrelevant evidence is inadmissible. Tenn. R. Evid. 402.

However, relevant evidence may be excluded if its probative value is “substantially

outweighed by the danger of unfair prejudice.” Tenn. R. Evid. 403.

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Generally, “[e]vidence of a person’s character or trait of character is not admissible

for the purpose of proving action in conformity therewith on a particular occasion[.]”

Tenn. R. Evid. 404(a); see also Tenn. R. Evid. 404(b). However, when a defendant relies

on a theory of self-defense, contending that the alleged victim of a violent crime was the

first aggressor, the defense may offer evidence of the victim’s prior history of violent

conduct. 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). To be clear, this

Court has created “a distinction between evidence of prior acts of violence by the victim

used to corroborate the defense theory that the victim was the first aggressor and that used

to establish the defendant’s fear of the victim.” Id. at 779.

In cases in which a defendant’s fear of the victim is relevant, the defendant must be

aware of the prior violent acts before testimony concerning the acts will be admitted from

the defendant. Williams v. State, 565 S.W.2d 503, 505 (Tenn. 1978); see also State v. Hill,

885 S.W.2d 357, 361 n.1 (Tenn. Crim. App. 1994). If the defendant is aware of the prior

violent acts, she may testify about what she observed or had been told about the prior acts.

Id. If the State questions the defendant’s basis of knowledge concerning the prior violent

acts, then the defendant may introduce the corroborating witnesses in rebuttal. Id. These

witnesses may only testify as to what they told the defendant, not as to what they personally

observed. Id.

In cases where it is alleged that the victim was the first aggressor and the defendant

is unaware of the victim’s prior bad acts, the defendant may offer evidence through the

testimony of a third person to support this assertion. Ruane, 912 S.W.2d at 780. However,

the evidence is “‘at minimum, subject to the balancing test set forth in Tennessee Rule of

Evidence 403.’” State v. Sherrill, No. M2009-01979-CCA-R3-CD, 2011 WL 1564009, at

*7 (Tenn. Crim. App. Apr. 21, 2011) (quoting State v. Houston, No. W2006-00095-CCA-

R3-CD, 2007 WL 1890650, at *8 (Tenn. Crim. App. June 29, 2007), perm. app. denied

(Tenn. Nov. 19, 2007)). Finally, before a trial court can admit evidence of the victim’s

prior violent acts to corroborate the defendant’s claim that the victim was the first

aggressor, three requirements must be satisfactorily met: (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 for the defendant’s claim that the victim had first aggressor tendencies; and (3) the

probative value of the evidence must outweigh the danger of unfair prejudice. Ruane, 912

S.W.2d at 781.

The State filed a motion in limine to exclude evidence of the victim’s alleged gang

involvement. At a pretrial hearing, the trial court considered the arguments of counsel and

found there was no evidence “that [the victim’s] gang affiliation played some role in

[D]efendant’s conduct on the day of the homicide.” In a written order excluding the

evidence, the trial court determined that it was not relevant to any issue in the case and that

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there was no evidence to suggest that the shooting was gang-related or that Defendant “felt

apprehension or fear on the day of the shooting due to any alleged gang ties of the victim.”

The court added, “I’m not saying that doesn’t -- that you couldn’t show that. I’m just

saying there is nothing in front of me right now that raises that.”

On appeal, Defendant argues that the trial court should have allowed evidence of

the victim’s gang involvement to rebut evidence that Defendant was untruthful and that

she “devised the narrative of a robbery to justify the charges against her.” The State asserts

that Defendant “points to no [] examples in her brief, and none can be found in the record”

of the State’s putting either Defendant’s or the victim’s character at issue “at any point

during the trial.” In fact, Defendant’s brief asserts that the State raised questions about

Defendant’s truthfulness when it “questioned Detective Cote, inquiring as to whether he

saw anything on the surveillance video that would indicate [Defendant] was acting in self-

defense, if he had any reason to believe she was being robbed, or whether her interview

had provided any reason to believe [Defendant] had acted in self-defense.”

We note that Defendant cites to a volume and page of the transcript on which this

testimony does not appear. Rather, the record shows this testimony was elicited during an

offer of proof by the defense, during which Detective Cote1 testified, upon questioning by

the State, that he had no reason to believe that Defendant acted in self-defense and that her

statement contained inconsistencies. During the offer of proof, defense counsel asked

Detective Cote if he did “any follow-up investigation on whether [the victim] was out there

robbing people” and whether he found “evidence of [the victim] googling crimes

committed by people he was associated with[.]” Detective Cote responded that

investigators had looked at the victim’s cell phone and social media accounts and “didn’t

see anything that was pertinent to the case.”

Because the testimony inaccurately cited by Defendant was presented during an

offer of proof, the State is correct that it did not open any “evidentiary doors” during trial

about Defendant’s character. To the extent Defendant asserts that the evidence was

relevant to establish her fear of the victim, Defendant did not testify that she was aware of

any prior incident of violent conduct by the victim.

To the extent Defendant asserts that the evidence was relevant to show the victim

was the first aggressor, the first consideration, whether the issue of self-defense was raised

by the proof, was only marginally satisfied, if at all. Mr. Chandler testified that he saw the

victim drop a bag of pills in Defendant’s hand, then Defendant drew her firearm and said,

1

We note that the transcript states that Detective “[CHAD GISH] [was] called as a witness to offer

proof on behalf of the defense,” however, the immediately preceding discussion between the trial court and

the parties indicates that it was Detective Cote whose testimony was offered by the defense.

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“‘This is what I got for you.’” Defendant then shot at the victim, who ran away from the

vehicle, and Defendant got out of the vehicle and continued to fire at him. Surveillance

video of the incident showed the victim approach the passenger side of Mr. Chandler’s

vehicle, the victim fleeing on foot, and Defendant exiting the vehicle and chasing the victim

while pointing a gun toward him. The second consideration, whether there is a factual

basis for Defendant’s assertion that the victim had first aggressor tendencies, has not been

established. Defendant presented no proof on which the trial court could find that the

victim had first aggressor tendencies.

We agree with the trial court there was no proof offered that the shooting was gang-

related or that the victim’s alleged gang involvement had any relevance to the issues at

trial. Accordingly, the trial court did not abuse its discretion by excluding evidence of the

victim’s gang involvement. Finally, any testimony suggesting that the victim’s gang ties

were the cause of the shooting, without further explanation, would have likely confused

the jury.

Next, Defendant contends that she should have been able to present a rap video

created by the victim in which the victim is holding a gun. She argues that the video would

have bolstered her self-defense claim and demonstrated that the victim was the first

aggressor. In its order granting the State’s motion to exclude the evidence, the trial court

found that the video was not relevant and that “Defendant’s suggestion that the victim had

the gun from the video in his possession at the time of the shooting is little more than

speculation, which presents a danger of misleading the jury,” because no firearm was

recovered at the crime scene, and Defendant admitted in her statement to police that she

never saw the victim with a gun before the shooting. The court further concluded that

“evidence of the victim’s prior possession of a weapon amounts to inadmissible propensity

evidence under Tenn[essee] R[ule of] Evid[ence] 404.”

Applying the same analysis and Ruane factors above, we conclude that the trial

court did not abuse its discretion in excluding the evidence. The issue of self-defense was

only marginally raised by the defense, and no proof was presented that the victim had first

aggressor tendencies. Further, we agree with the trial court that the evidence would likely

have confused the issues and misled the jury. Defendant is not entitled to relief on this

issue.

Sufficiency of the Evidence

Defendant contends that the evidence was insufficient to establish that she

committed first degree murder. When a defendant challenges the sufficiency of the

evidence, the relevant question for this Court is “whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found the

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essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.

307, 319 (1979) (emphasis in original). On appeal, “‘the State is entitled to the strongest

legitimate view of the evidence and to all reasonable and legitimate inferences that may be

drawn therefrom.’” State v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003) (quoting State v.

Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Therefore, this Court will not re-weigh or

reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).

Instead, it is the trier of fact, not this Court, who resolves any questions concerning “the

credibility of witnesses, the weight and value to be given the evidence, as well as all factual

issues raised by the evidence.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

A guilty verdict removes the presumption of innocence and replaces it with a

presumption of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). The burden is

then shifted to the defendant on appeal to demonstrate why the evidence is insufficient to

support the conviction. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This Court

applies the same standard of review regardless of whether the conviction was predicated

on direct or circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011).

“Circumstantial evidence alone is sufficient to support a conviction, and the circumstantial

evidence need not exclude every reasonable hypothesis except that of guilt.” State v.

Wagner, 382 S.W.3d 289, 297 (Tenn. 2012).

First degree murder is the premeditated and intentional killing of another. T.C.A. §

39-13-202(a)(1). A premeditated act is one “done after the exercise of reflection and

judgment.” T.C.A. § 39-13-202(d). Premeditation requires a finding that “the intent to kill

must have been formed prior to the act itself. It is not necessary that the purpose to kill

preexist in the mind of the accused for any definite period of time.” Id.

Premeditation is a question of fact for the jury’s determination. State v. Davidson,

121 S.W.3d 600, 614 (Tenn. 2003). It may be established by any evidence which could

lead a rational trier of fact to infer that premeditation was established by the proof as

required by statute. Id. at 615. Courts frequently look to the circumstances surrounding a

killing to discern the presence of evidence sufficient to support a finding of premeditation.

State v. Larkin, 443 S.W.3d 751, 815 (Tenn. Crim. App. 2013).

Factors tending to support the existence of premeditation include: “the use of a

deadly weapon upon an unarmed victim; the particular cruelty of the killing; declarations

by the defendant of an intent to kill; evidence of procurement of a weapon; preparations

before the killing for concealment of the crime, and calmness immediately after the

killing.” Bland, 958 S.W.2d at 660. The factors listed in Bland are not exhaustive,

however. State v. Adams, 405 S.W.3d 641, 663 (Tenn. 2013). The nature of the killing or

evidence establishing a motive for the killing may also support a conclusion that the crime

was premeditated. Id. Lack of provocation by the victim, failure to render aid, and

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destruction or secretion of evidence may also support an inference of premeditation.

Larkin, 443 S.W.3d at 815-16 (citing State v. Thacker, 164 S.W.3d 208, 222 (Tenn. 2005);

State v. Lewis, 36 S.W.3d 88, 96 (Tenn. Crim. App. 2000)). “Under Bland, shooting a

retreating victim alone provides circumstantial evidence of premeditation.” State v.

Dickson, 413 S.W.3d 735, 746 (Tenn. 2013).

The evidence viewed in the light most favorable to the State established that

Defendant, armed with a gun, asked Mr. Chandler to drive her to an apartment complex to

meet the victim. She exchanged text messages with the victim to arrange a drug sale. After

the victim gave Defendant a baggie of pills, Defendant pulled out her gun and said, “This

is what I have for you.” She fired her gun at the victim. The victim ran away, and

Defendant exited the vehicle and continued firing, striking the victim in the chest, back,

and thigh, killing him. Defendant then returned to the vehicle and ordered Mr. Chandler

to drive her away from the scene. Defendant did render aid or call for help. This evidence

is sufficient to sustain Defendant’s first degree murder conviction.

Jury Instructions

Defendant asserts that she was denied a fair trial by the trial court’s failure to give

complete written instructions to the jury. Specifically, Defendant asserts that the written

jury charge did not include an instruction as to the judgment of acquittal. The State

responds that Defendant has waived the issue by failing to include the written instructions

in the appellate record. The State further asserts that the trial court gave a proper oral

instruction to the jury pursuant to State v. Little.

As to the State’s waiver argument, the record contains both a transcript of the trial

court’s oral instructions to the jury and the trial court’s written jury instructions. Contrary

to the State’s assertion, Defendant has not waived consideration of the issue by failing to

include the jury instructions in the record. See Tenn. R. App. P. 24(b).

Addressing the merits of the issue, the procedural posture presented here is

analogous to State v. Little, 402 S.W.3d 202 (Tenn. 2013), in which our supreme court

considered whether a trial court should instruct the jury on charges dismissed as a result of

the granting of a motion for judgment of acquittal. Id. at 214. The supreme court concluded

that “the trial court did not err by failing to inform the jury that the [d]efendant had been

acquitted of the robbery charges after those charges were dismissed at the conclusion of all

the proof.” Id. at 215. The court held, “it is sufficient for the trial court to inform the jury

that the dismissed charges have been removed from the indictment, that no instruction

concerning the dismissed charges will be provided, and that the jury should not speculate

as to the removal of the dismissed charges or the absence of instructions on the dismissed

charges.” Id. The court further stated that an instruction limiting the jury’s consideration

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of the acquitted charge to possible motive for the remaining charge may be appropriate

when requested by the defendant. Id.

After the trial court granted Defendant’s motion for judgment of acquittal as to count

two of the indictment, the court instructed the jury as follows:

The second count of the indictment in this case charged [D]efendant with

killing the victim during the perpetration or attempt to perpetrate a theft.

The jury is instructed that that Count 2 has been removed from the indictment

and you are directed not to speculate on any reason for that. It’s strictly for

a legal reason and not to -- for you to be considering that for any reason.

The underlying allegation of theft, however, you may consider that solely to

the extent that it might bear on motive in the case. But it is not going to be

considered by you as a separate offense.

Defendant asserts that these oral instructions by the trial court do not comport to the

instructions prescribed by the supreme court in State v. Little because they were not

included in the written instructions and because the trial court did not inform the jury that

no instructions on the dismissed charge would be provided or that it should not speculate

as to the absence of such instructions. We disagree. The above instructions by the trial

court sufficiently informed the jury as to the dismissed charge. Defendant is not entitled

to relief on this issue.

CONCLUSION

Based on the foregoing, the judgment of the trial court is affirmed.

____________________________________

TIMOTHY L. EASTER, JUDGE

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