Opposition Brief — Landon Hank Black, Petitioner v. Tennessee

Supreme Court briefApr 23, 2025

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No. 24-6586

In the Supreme Court of the United States

LANDON HANK BLACK,

PETITIONER

STATE OF TENNESSEE,

RESPONDENT

___________________________

ON PETITION FOR WRIT OF CERTIORARI

TO THE TENNESSEE COURT OF CRIMINAL APPEALS

APPENDIX

Jonathan Skrmetti

Attorney General & Reporter

J. Matthew Rice

Solicitor General

Benjamin A. Ball

Senior Assistant Attorney General

Counsel of Record

OFFICE OF THE TENNESSEE

ATTORNEY GENERAL

P.O. Box 20207

Nashville, TN 37202

(615) 741-7859

Ben.Ball@ag.tn.gov

INDEX OF APPENDICES

APPENDIX 1: State v. Black, No. 119789

(Jury Instructions provided at Petitioner’s trial) ............................................1

APPENDIX 2: State v. Black, No. E2022-01741-CCA-R3-CD

(Petitioner’s Opening Brief filed July 27, 2023)............................................ 30

APPENDIX 3: State v. Black, No. E2022-01741-CCA-R3-CD

(Petitioner’s Reply Brief filed February 14, 2024) ...................................... 125

Appendix 1

THE COURT:

(Jury present:)

THE COURT:

Folks, please rise for our jury.

A11 right, everyone.

You may be

seated.

State waive the call of the jury?

MR. ALLEN:

We do.

THE COURT:

Defense waive the call?

MS. AKERS:

Yep.

MR. BOSCH:

We do.

THE COURT:

Welcome back, folks.

Thanks for

1.1

that break.

before you begin

presentation of the legal instructions.

told you, the instructions that I'm going to give you

are contained in writing, so

these with you in the jury room.

you have to memorize everything I'm getting ready to

read to you.

these in the courtroom.

This will be the last part of the trial

your deliberations.

It is the

And as I

you're going to have

So don't feel like

But I want to go through each one of

If you promise not to fall asleep, I'll have

Officer Thompson turn the lights down.

follow along as I read the instructions, we're going

to start in the first paragraph.

And if you'll

The evidence and the argument in this case

have been completed.

And I will now instruct you as

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001

to the law.

stated in these instructions, and it is your duty to

consider all of them.

The law applicable to this case is

The order in which these instructions are

given is no indication of their relative importance.

You should not single out one or more of them to the

exclusion of others, but should consider each one in

the light of and in harmony with the others.

The Presentment is the formal written

accusation charging the defendant with a crime.

is not evidence against the defendant and does not

create any inference of guilt.

The defendant, Landon Hank Black, is charged

in Presentment number 119789 with the offense of

first-degree murder.

a plea of not guilty.

To this offense he has entered

The elements of the offense the State is

required to prove are as follows:

First Count, first-degree murder.

Any person who commits the offense of

first-degree murder is guilty of a crime.

find the defendant guilty of this offense, the State

must have proven, beyond a reasonable doubt, the

existence of the following essential elements:

For you to

(1) that the defendant unlawfully killed

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002

Brandon Lee; and

(2) that the defendant acted intentionally.

A person acts intentionally when it is the

person's conscious objective or desire to cause the

death of the alleged victim.

objective need not be to kill a specific victim.

you find, beyond a reasonable doubt, that the

defendant intended to cause the result, the death of

a person, and that he did so with premeditation, then

the killing of another, even if not the intended

victim, would be first degree murder; and

A defendant's conscious

(3) that the killing was premeditated.

A premeditated act is one done after the

exercise of reflection and judgment.

means that the intent to kill must have been formed

prior to the act itself.

the purpose to kill preexist in the mind of the

accused for any definite period of time.

state of the accused at the time he allegedly decided

to kill must be carefully considered in order to

determine whether the accused was sufficiently free

from excitement and passion as to be capable of

premeditation.

Premeditation

It is not necessary that

The mental

If the design to kill was formed with

premeditation, it is immaterial that the accused may

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003

have been in a state of passion or excitement when

the design was carried into effect.

premeditation can be found if the decision to kill is

first formed during the heat of passion, but the

accused commits the act after the passion has

subsided.

Furthermore,

There are lesser-included offenses that you

may consider should you find the defendant not guilty

of that charged offense.

The first one is

second-degree murder.

If you have a reasonable doubt as to the

defendant's guilt of first-degree murder, as charged

in this Presentment, then

guilty as to this offense, and then

to determine his guilt or innocence of second-degree

murder, a lesser-included offense.

your verdict must be not

you shall proceed

Any person who commits second-degree murder

is guilty of a crime.

guilty of this offense, the State must have proven,

beyond a reasonable doubt, the existence of the

following essential elements:

For you to find the defendant

(1) that the defendant unlawfully killed

Brandon Lee; and

(2) that the defendant acted knowingly.

Knowingly means that a person acts with an

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004

awareness that his conduct is reasonably certain to

cause the death of the alleged victim.

The requirement of knowingly is also

established if it is shown the defendant acted

intentionally, as defined above under first-degree

murder.

The distinction between voluntary

manslaughter and second-degree murder is that

voluntary manslaughter requires that the killing

result from a state of passion produced by adequate

provocation from the alleged victim sufficient to

lead a reasonable person to act in an irrational

manner.

And Voluntary Manslaughter is the next

lesser.

If you have a reasonable doubt as to the

defendant's guilt of second-degree murder, a

lesser-included offense, then

not guilty as to this offense, and then you shall

proceed to determine his guilt or innocence of

voluntary manslaughter, a lesser-included offense.

your verdict must be

Any person who commits voluntary manslaughter

is guilty of a crime.

guilty of this offense, the State must have proven,

beyond.a reasonable doubt, the existence of the

For you to find the defendant

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005

following essential elements:

(1) that the defendant unlawfully killed

Brandon Lee; and

(2) that the defendant acted intentionally or

knowingly; and

(3) that the killing resulted from a state of

passion produced by adequate provocation from the

alleged victim sufficient to lead a reasonable person

to act in an irrational manner.

Passion means any of the emotions of the mind

reflecting anger, rage, sudden resentment, terror or

similar feelings rendering the mind incapable of cool

reflection.

Next, we have reckless homicide.

If you have a reasonable doubt as to the

defendant's guilt of voluntary manslaughter, a

lesser-included offense, then

not guilty as to this offense, and then you shall

proceed to determine his guilt or innocence of

reckless homicide, a lesser-included offense.

Any person who commits the offense of

your verdict must be

reckless homicide is guilty of a crime.

find the defendant guilty of this offense, the State

must have proven, beyond a reasonable doubt, the

existence of the following essential elements:

For you to

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(1)

that the defendant killed Brandon Lee;

(2)

that the defendant acted recklessly.

Recklessly means that a person acts

recklessly when the person is aware of, but

consciously disregards, a substantial and

unjustifiable risk that the alleged victim will be

killed.

that its disregard constitutes a gross deviation from

the standard of care that an ordinary person would

exercise under all the circumstances as viewed from

the accused person's standpoint.

and

The risk must be of such a nature and degree

The requirement of recklessly is also

established if it is shown that the defendant acted

intentionally or knowingly, as defined above.

And, lastly, is criminally negligent

homicide.

If you have a reasonable doubt as to the

defendant's guilt of reckless homicide, a

lesser-included offense, then

not guilty as to this offense, and then you shall

proceed to determine his guilt or innocence of

criminally negligent homicide, a lesser-included

offense.

your verdict must be

Any person who commits criminally negligent

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homicide is guilty of a crime.

defendant guilty of this offense, the State must have

proven, beyond a reasonable doubt, the existence of

the following essential elements:

(1)

For you to find the

that the defendant's conduct resulted in

the death of Brandon Lee; and

(2)

negligence.

that the defendant acted with criminal

Criminal negligence means that a person acts

with criminal negligence when the person ought to be

aware of a substantial and unjustifiable risk that

the alleged victim will be killed.

of such a nature and degree that the failure to

perceive it constitutes a gross deviation from the

standard of care that an ordinary person would

exercise under all the circumstances as viewed from

the accused person's standpoint.

The risk must be

The requirement of criminal negligence is

also established if it is shown that the defendant

acted intentionally, knowingly, or recklessly, as

defined above.

Order of consideration.

In reaching your verdict, you shall, first,

consider the offense charged in the Presentment.

you unanimously find the defendant guilty of that

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offense beyond a reasonable doubt, you shall return a

verdict of guilty for that offense.

unanimously find the defendant not guilty of that

offense or have a reasonable doubt of the defendant's

guilt of that offense, you shall then proceed to

consider whether or not the defendant is guilty of

the next lesser-included offense in order from

greatest to least within that Count of the

presentment.

If you

You shall not proceed to consider any

lesser-included offense until you have first made a

unanimous determination that the defendant is not

guilty of the immediately preceding greater offense

defendant's guilt of that offense.

you unanimously have a reasonable doubt of the

If you have a reasonable doubt of the guilt

of the defendant as to all offenses charged and

included in that Count of the Presentment, you shall

return a verdict of not guilty.

Self-Defense.

Included in the defendant's plea of not

guilty is his plea of self-defense.

was in a place where he or she had a right to be, he

or she would have a right to use force against the

alleged victim when, and to the degree, the defendant

reasonably believed the force was immediately

If a defendant

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necessary to protect against the alleged victim's use

of unlawful force.

If a defendant was in a place where he or she

had a right to be, he or she would also have a right

to use force intended or likely to cause death or

serious bodily injury if the defendant had a

reasonable belief that there was an imminent danger

of death or serious bodily injury, the danger

creating the belief of imminent death or serious

bodily injury was real, or honestly believed to be

real at the time and the belief of danger was founded

upon reasonable grounds.

In this case, the law of self-defense

requires the defendant to have employed all means

reasonably in his power, consistent with his own

safety, to avoid danger and avert the necessity of

taking another's life.

duty to retreat in this case, if, and to the extent,

that it can be done so -- or to be done in safety.

This requirement includes the

In determining whether the defendant's use of

force in defending himself was reasonable, you may

consider not only his use of force but also all the

facts and circumstances surrounding and leading up to

it.

were reasonable grounds for the defendant to fear

Factors to consider in deciding whether there

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010

death or serious bodily injury from the alleged

victim include, but are not limited to, any previous

threats of the alleged victim made known to the

defendant; the character of the alleged victim for

violence, when known to the defendant; the animosity

of the alleged victim for the defendant, as revealed

by -- to the defendant by previous acts and words of

the alleged victim; and the manner in which the

parties were armed and their relative strengths and

sizes.

The burden is on the State to prove, beyond a

reasonable doubt, the defendant did not act in

self-defense.

must prove, beyond a reasonable doubt, the defendant

did not act in self-defense.

and circumstances you find the defendant acted in

self-defense or if you have a reasonable doubt as to

whether the defendant acted in self-defense, you must

find him not guilty.

To convict the defendant, the State

If from all the facts

Flight.

The flight of a person accused of a crime is

a circumstance which, when considered with all the

facts of the case, may justify an inference of guilt.

Flight is the voluntary withdrawal of oneself for the

purpose of evading arrest or prosecution for the

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crime charged.

beyond a reasonable doubt the defendant fled is a

question for your determination.

Whether the evidence presented proves

The law makes no precise distinction as to

the manner or method of flight.

it may be a hurried or concealed departure, or it may

be a concealment within the jurisdiction.

it takes both a leaving the scene of the difficulty

and a subsequent hiding out, evasion, or concealment

in the community, or a leaving of the community for

parts unknown to constitute flight.

It may be open, or

However,

If flight is proved, the fact of flight alone

does not allow

guilty of the crime alleged.

by a defendant may be caused by a consciousness of

guilt, you may consider the fact of flight, if flight

is so proven, together with all of the other evidence

when you decide the guilt or innocence of the

defendant.

person may take flight and such flight may be

explained by proof offered or by the facts and

circumstances of the case.

you to find that the defendant is

However, since flight

On the other hand, an entirely innocent

Whether there was flight by the defendant,

the reasons for it, and the weight to be given to it

are questions for you to determine.

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Admission against interest.

Evidence has been presented -- excuse me --

introduced in this trial of a statement or statements

by the defendant made outside the trial to show an

admission against interest.

interest is a statement by the defendant which

acknowledges the existence or truth of some fact

necessary to be proven to establish the guilt of the

defendant or which tends to show guilt of the

defendant or is evidence of some material fact, but

not amounting to a confession.

An admission against

While this evidence has been received, it

remains your duty to decide if, in fact, such

statement was ever made.

was not made by the defendant, you should not

consider it.

the defendant, you must judge the truth of the facts

stated.

If you believe a statement

If you decide the statement was made by

In so determining, consider the circumstances

under which the statement was made.

whether any of the other evidence before you tends to

contradict the statement in whole or in part.

must not, however, arbitrarily disregard any part of

any statement, but rather, should consider all of any

statement you believe was made and is true.

Also, consider

You

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013

You are the sole judge of what weight should

be given each statement -- such statement.

decide a statement was made, you should consider it

with all the other evidence in the case in

determining the defendant's guilt or innocence.

If you

Video Redactions.

Video recordings have been introduced as

evidence in this case.

Some portions of the videos

may have been redacted.

You shall not speculate as

to the content of any redacted portion or draw any

conclusions from the fact that redactions may have

been made.

Inference of concealment or destruction of

evidence.

Any attempt by a person to conceal or destroy

evidence is a circumstance which, when considered

with all the facts of the case, may justify an

inference of guilt.

means strong enough of itself to warrant conviction,

yet, it may become one of a series of circumstances

from which guilt may be logically inferred.

While that inference is by no

Whether the evidence presented proves beyond

a reasonable doubt that the defendant so acted is a

question for your determination.

proven, this fact alone does not allow

If this fact is

you to find

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the defendant is guilty of the crime alleged.

However, since an attempt by a defendant to destroy

or conceal evidence may be caused by a consciousness

of guilt, you may consider this fact, if it is so

proven, together with all of the other evidence when

you decide the guilt or innocence of the defendant.

On the other hand, a person entirely innocent

of a particular crime may attempt to destroy or

conceal evidence and this may be explained by proof

offered or by the facts and circumstances of the

case.

crime is not proof of premeditation.

Concealment or destruction of evidence of a

Whether there was any attempt to destroy or

conceal evidence by the defendant, the reasons for it

and the weight to be given to it are questions for

you to determine.

Here are some legal definitions.

Force means compulsion by the use of physical

power or violence.

Violence means evidence of physical force

unlawfully exercised so as to damage, injury or

abuse.

violence.

alleged victim is physical force directed toward the

body of the victim.

Physical contact is not required to prove

Unlawfully pointing a deadly weapon at an

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Deadly weapon means a firearm or anything

manifestly designed, made or adapted for the purpose

of inflicting death or serious bodily injury or

anything that, in the manner of its use or intended

use, is capable of causing death or serious bodily

injury.

Imminent means near at hand; on the point of

happening.

Serious bodily injury means bodily injury

that involves a substantial risk of death, protracted

unconsciousness, extreme physical pain, protracted or

obvious disfigurement, or protracted loss or

substantial impairment of a function of a bodily

member, organ or mental faculty.

Bodily injury includes a cut, abrasion,

bruise, burn or disfigurement, and physical pain or

temporary illness or impairment of the function of a

bodily member, organ or mental faculty.

At times during the trial, I have ruled upon

the admissibility of evidence.

yourself with these rulings.

rulings, the instructions, nor by any other remark do

I mean to indicate any opinion as to the facts or as

to what your verdict should be.

You must not concern

Neither by these

The statements, arguments and remarks of the

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attorneys are intended to help you in understanding

and applying the law, but they are not evidence.

should disregard any statements made that you believe

are not supported by the evidence.

You

You are the exclusive judges of the facts in

this case.

law, under the direction of the Court.

the law to the facts in deciding this case, you

should consider all of the evidence in light of your

own observations and experience in life.

Also, you are exclusive judges of the

In applying

The law presumes that the defendant is

innocent of the charge against him.

remains with the defendant throughout every stage of

the trial and it is not overcome unless, from all the

evidence in the case, you are convinced beyond a

reasonable doubt that the defendant is guilty.

This presumption

The State has the burden of proving the guilt

of the defendant beyond a reasonable doubt, and this

burden never shifts, but remains on the State

throughout the trial of the case.

not required to prove his innocence.

The defendant is

Reasonable doubt is that doubt created by an

investigation of all the proof in the case and an

inability, after such investigation, to let the mind

rest easily as to the certainty of guilt.

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reasonable doubt is a doubt based upon reason and

common sense, after careful and impartial

consideration of all the evidence in this case.

Absolute certainty of guilt is not demanded

by the law to convict of any criminal charge, but

moral certainty is required.

required as to every element of proof necessary to

constitute the offense.

that, a doubt that is reasonable after an examination

of all the facts of this case.

has not proven every element of the offense beyond a

reasonable doubt, then

not guilty.

And this certainty is

A reasonable doubt is just

you find the State

you should find the defendant

The State must prove, beyond a reasonable

doubt, all the elements of the crime charged, that

the crime, if in fact committed, was committed by

this defendant in Knox County, Tennessee, and that it

was committed before the finding and returning of the

Presentment in this case.

Some of you have taken notes during the

trial.

refer to your notes, but only to refresh

memory of the witnesses' testimony.

discuss the testimony of the witnesses with

fellow jurors, but each of you must rely upon your

Once

you retire to the jury room, you may

your own

You are free to

your

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own individual memory as to what a witness did or did

not say.

You should not view

your notes as

authoritative records or consider them as a

transcript of the testimony.

no more weight than the unrecorded recollection of

another juror.

Your notes should carry

Expert witness.

During the trial, you heard the expert

testimony of Brian Dalton, who was described to us as

an expert in the field of firearms and tool mark

examinations; Darinka Mileusnic-Polchan, who was

described to us as an expert in the field of forensic

and anatomic pathology; and Timothy Allen, who was

described to us an expert in the field of psychiatry.

The Rules of Evidence provide that if

scientific, technical or other specialized knowledge

might assist the jury in understanding the evidence

or in determining a fact in issue, a witness

qualified as an expert by reason of special

knowledge, skill or experience may testify and state

his or her opinions concerning such matters and give

reasons for his or her testimony.

Merely because an expert witness has

expressed an opinion does not mean, however, that you

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are bound to accept this opinion.

any other witness, it is up to you to decide whether

you believe this testimony and choose to rely upon

it.

The same as with

Part of that decision will depend on your

judgment about whether the witness's background or

training and experience is sufficient for the witness

to give the expert opinion that you heard.

also decide whether the witness's opinions were based

on sound reasons, judgment and information.

You must

You are to give the testimony of an expert

witness such weight and value as you think it

deserves along with all the other evidence in the

case.

It is your job to decide what the facts of

this case are.

You must decide which witnesses you

believe and how important you think their testimony

is.

truthful.

reject everything a witness said.

believe all, none or part of any person's testimony.

In deciding which testimony you believe, you

The law presumes that all witnesses are

However, you do not have to accept or

You are free to

should rely on

experience.

judging whether you believe a witness, but it may

your own common sense and everyday

There is no fixed set of rules for

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020

help you to think about these questions:

Was the witness able to see or hear clearly?

How long was the witness watching or listening?

anything else going on that might have distracted the

witness?

How did the witness look and act while testifying?

Did the witness seem to be making an honest effort to

tell the truth, or did the witness seem to evade the

questions?

regarding the witness' intelligence, respectability

or reputation for truthfulness?

have any bias, prejudice, or personal interest in how

the case is decided?

threats, suggestions, or other influences that

affected how the witness testified?

the witness have any special reason to tell the

truth, or any special reason to lie?

reasonable does the witness's testimony seem when you

think about all the other evidence in the case?

Was

Did the witness seem to have a good memory?

Has there been any evidence presented

Does the witness

Have there been any promises,

In general, does

A11 in all, how

Sometimes the testimony of different

witnesses will not agree and you must decide which

testimony you accept.

the disagreement involves something important or not,

and whether

mistaken.

You should think about whether

you think someone is lying or is simply

People see and hear things differently,

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021

and witnesses may testify honestly but simply be

wrong about what they thought they saw or remembered.

It is also a good idea to think about which

testimony agrees best with the other evidence in the

case.

deliberately lied about something that is important

to how

not to accept anything that witness said.

other hand, if you think the witness lied about some

things but told the truth about others, you may

simply accept the part you think is true and ignore

the rest.

However, you may conclude that a witness

you decide the case.

If so, you may choose

On the

A witness may be impeached by proving that he

or she has made some material statements out of court

which are at variance with his or her evidence on the

witness stand.

inconsistent statements may be considered by you only

for the purpose of testing the witness' credibility

and not as substantive evidence of the truth of the

matter asserted in such out-of-court statements.

Further, a witness may be impeached by a

However, proof of such prior

careful cross-examination involving the witness in

contradictory, unreasonable and improbable

statements; however, immaterial discrepancies or

differences in the statements of witnesses do not

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affect their credibility unless it should plainly

appear that some witness has willfully testified

falsely.

When a witness is thus impeached, the jury

has the right to disregard his or her evidence and

treat it as untrue, except where it is corroborated

by other credible testimony or by the facts and

circumstances proved in the trial.

The defendant has not taken the stand to

testify as a witness, but you shall place no

significance on this fact.

innocent, and the burden is on the State to prove his

guilt beyond a reasonable doubt.

to take the stand in his own behalf, and his election

not to do so cannot be considered for any purpose

against him, nor can any inference be drawn from such

fact.

The defendant is presumed

He is not required

We're almost done.

The guilt of the defendant, as well as any

fact required to be proved, may be established by

direct evidence, by circumstantial evidence or by

both combined.

Direct evidence is defined as evidence which

proves the existence of the fact in issue without

inference or presumption.

Direct evidence may

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consist of testimony of a person who has perceived,

by the means of his or her senses, the existence of a

fact sought to be proved or disproved.

Circumstantial evidence consists of proof of

collateral facts and circumstances which do not

directly prove the fact in issue, but from which that

fact may be logically inferred.

It is your duty to decide how much weight to

give the direct and circumstantial evidence.

makes no distinction between the weight that you

should give to either one or say that one is any

better evidence than the other.

all the evidence, both direct and circumstantial, and

give it whatever weight you believe it deserves.

Thus, the important thing for you to keep in mind is

whether a piece of evidence is convincing beyond a

reasonable doubt and not whether it is direct or

circumstantial.

The law

You should consider

The verdict must represent the considered

judgment of each juror and each juror must agree

thereto.

Your verdict must be unanimous.

It is your duty, as jurors, to consult with

one another and to deliberate with a view to reaching

an agreement, if you can do so without violence to

your own individual judgment.

Each of you must

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decide the case for yourself, but do so only after an

impartial consideration of the evidence with your

fellow jurors.

In the course of your deliberations, do not

hesitate to reexamine your own views and change your

opinion if convinced it is erroneous.

surrender your honest conviction as to the weight or

effect of the evidence solely because of the opinion

of your fellow jurors, or for the mere purpose of

returning a verdict.

But do not

You can have no prejudice, or sympathy, or

allow anything but the law and the evidence to have

any influence upon

your verdict with absolute fairness and impartiality

as you think justice and truth dictate.

your verdict.

You must render

If you find that the State has proven the

defendant guilty beyond a reasonable doubt, then you

should find him guilty.

find that the State has not proven, beyond a

reasonable doubt, the defendant's guilt, or if you

have a reasonable doubt as to his guilt, then

must find him not guilty.

On the other hand, if you

you

During your deliberations, you must not

communicate with or provide any information to anyone

by any means about this case outside the jury

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025

deliberation room.

device or media, such as a telephone, cell phone,

internet or any social media site to conduct any

research about this case until you have returned your

verdict and the trial has concluded.

When

You may not use any electronic

you retire to the jury room, you will

first select one of your members as foreperson who

will preside over your deliberations.

provided with forms for all possible verdicts in this

case.

your foreperson will sign the verdict forms.

you have reached a verdict, you will return with it

to this courtroom, and your foreperson will deliver

it to the Court.

You will be

The jury will complete the verdict forms and

When

So there's one Count, so there's one verdict

form.

booklet, it says, "We, the jury, find the defendant,

Landon Hank Black" -- and you'll circle the

appropriate letter.

proven guilty, beyond a reasonable doubt, of

first-degree murder, then you'd circle the letter A.

The foreperson would sign it and date it.

It looks like this.

At the end of the

If you find that he's been

Today is October 8th, 2021.

If you unanimously find him not guilty of

that, you would then consider whether or not he's

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026

guilty of second-degree murder.

guilty of that, you'd circle B and sign it.

If you find him

If he's not guilty of that, then

consider the next lesser.

through all the lessers.

you'd

And you work your way down

If you believe he is not guilty, then you'd

circle the letter F, not guilty.

date it.

Again, sign it and

All right.

So those are the instructions, folks.

We can have the lights back on.

As I

said, they are in this booklet.

verdict form.

you.

us know -- so that way you don't all have to look at

one -- we'll take the original back from you and

we'll make as many copies as you would like, so you

can look at those separate and apart.

The last page is the

I'm going to send one copy back with

However, if you'd like additional copies, let

There are -- have been a number of exhibits

that have been introduced.

clothing that purports to have, potentially,

biological material on it.

Ziploc bag.

there.

exhibits, and if you'd like to take that out and look

at it, you certainly can.

One is an item of

It's in a -- it's in a

I would suggest that you leave it in

However, you have a right to examine the

Please let Officer

Page 1978

027

Thompson know that you'd like to do that.

bring you some gloves in to you.

that's going to handle that to have gloves.

also going to assist you by putting some paper down

to let you -- to view that.

room, let you view it.

back in and repackage it for you.

We'd like anybody

He's

He'll step out of the

When you're done, he'll step

We do that just make sure everybody's safe.

We'll

Okay?

Now, there's also been some videos, as you

are aware.

that's connected to the large-screen TV.

as a monitor for that computer.

the disk in there that you'd like to watch.

a VLC media player that will play any of these

videos.

play, just let us know, we'll come in there and help

you.

There's a computer in the jury room

That works

Just turn it on, put

There's

If you have any difficulty getting those to

You've also seen the attorneys zoom in on

those.

players, you probably already know how to do that.

If not, let us know, we can come in and show

to do that, as well, to.

If any of you know how to use VLC media

you how

Now, I believe I have fully instructed you as

to the law.

However, if you have a question during

Page 1979

028

Appendix 2

029

IN THE COURT OF CRIMINAL APPEALS FOR TENNESSEE

AT KNOXVILLE

STATE OF TENNESSEE

)

LANDON HANK BLACK

Knox Crim. 119789

E2022-01741-CCA-R3-CD

ON APPEAL AS OF RIGHT FROM THE JUDGMENT OF THE

KNOX COUNTY CRIMINAL COURT

BRIEF OF THE APPELLANT

JONATHAN HARWELL, BPR #022834

Assistant Public Defender

1101 Liberty Street

Knoxville, Tennessee 37919

Telephone: (865) 594-6120

Attorney for Appellant

July 2023

Oral Argument Requested

030

ment received by the TN Court of Criminal Appeals.

ERIC LUTTON

District Public Defender

TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................... 2

TABLE OF CITATIONS AND AUTHORITIES ....................................... 7

STATEMENT OF THE ISSUES ............................................................. 11

STATEMENT OF THE CASE ................................................................ 14

OVERVIEW. ................................................................................... 15

II.

THE STATE’S EVIDENCE AT TRIAL. ..................................... 19

Testimony of Brian Lee. ............................................................ 19

Testimony of Beth Tremaine. .................................................... 19

9-1-1 Call. .................................................................................. 20

Testimony of Neil Tremaine. ..................................................... 20

Testimony of Thomas Thurman. ............................................... 20

Initial response. ...................................................................... 20

Security videos. ....................................................................... 21

Questioning of Taylor Hodge. ................................................. 21

Other investigative efforts...................................................... 21

Publication of security videos. ................................................ 22

Efforts to locate Mr. Black. ..................................................... 25

Mr. Lee’s gun. ......................................................................... 25

Cross-examination. ................................................................. 25

Testimony of Chandler Jackson. ............................................... 26

Testimony of Clark Longmire. .................................................. 28

Testimony of Mallory Hayes. .................................................... 30

Testimony of Kelsey Murrell....................................................... 31

J. Testimony of Kaitlyn Murrell. .................................................... 33

Testimony of Robert Blake Norman. ........................................ 34

Testimony of Justice Hall. ......................................................... 34

031

ment received by the TN Court of Criminal Appeals.

STATEMENT OF THE FACTS .............................................................. 15

M. Testimony of Carrie Phillips. .................................................... 37

Testimony of Taylor Hodge. ...................................................... 38

Testimony of Jarrett Norman. .................................................. 41

Testimony of Firearms Expert. ................................................. 42

Testimony of Medical Examiner. .............................................. 42

Testimony of T-Mobile Representative. .................................... 42

Testimony of Dylan Williams. ................................................... 43

Testimony of Carlos Figueira. ................................................... 43

III.

EVIDENCE PRESENTED BY THE DEFENSE. ....................... 43

Testimony of Richard Qulia. ..................................................... 43

Proffer and ruling. .................................................................. 44

Testimony to the jury. ............................................................ 44

Testimony of Dr. Timothy Allen................................................ 44

Stipulation. ................................................................................ 46

IV.

CLOSING ARGUMENTS. .......................................................... 46

Initial Closing Argument for the State. .................................... 46

Closing Arguments for the Defense. ......................................... 47

Rebuttal Argument for the State. ............................................. 50

VERDICT. ................................................................................... 51

ARGUMENT ........................................................................................... 52

I. THE STATE WAS ALLOWED TO ATTACK THE INTEGRITY OF

DEFENSE COUNSEL THROUGH EVIDENCE AND ARGUMENT.52

Introduction. .............................................................................. 52

Summary of Relevant Facts. ..................................................... 52

The meeting at the mall. ........................................................ 52

Meeting with witnesses. ......................................................... 53

Closing arguments. ................................................................. 54

032

ment received by the TN Court of Criminal Appeals.

S. Testimony of Knox County Officer.............................................. 42

Summary of Applicable Law. .................................................... 55

Application of Law to Facts. ...................................................... 56

Summary of Applicable Law. .................................................... 58

Limitations on closing argument. .......................................... 58

Standard of review.................................................................. 59

Application of Law to Facts. ...................................................... 60

Introduction. ........................................................................... 60

Speculation. ............................................................................ 60

Factual errors. ........................................................................ 62

Information beyond the record. .............................................. 62

Burden shifting. ...................................................................... 63

Name-calling of the defendant. .............................................. 64

Denigration of the defense...................................................... 64

Legal error. ............................................................................. 65

Emotional plea. ....................................................................... 66

10.

The combined errors require reversal. ................................ 67

III. THE STATE INFRINGED ON MR. BLACK’S RIGHT TO

REMAIN SILENT. ............................................................................... 67

Summary of Applicable Law. .................................................... 67

Application of Law to Facts. ...................................................... 68

IV. THE TRIAL COURT ERRED IN ALLOWING THE STATE TO

PRESENT ITS THEORY OF THE CASE THROUGH THE

OPINIONS OF THE INVESTIGATOR INTERPRETING THE

VIDEOS. THE COURT ERRED IN REFUSING TO ALLOW THE

DEFENSE WITNESSES TO OFFER AN OPINION AS TO WHAT HE

SAW ON THE VIDEO.......................................................................... 71

Summary of Applicable Law. .................................................... 71

Lay opinion testimony. ........................................................... 71

033

ment received by the TN Court of Criminal Appeals.

II. THE STATE’S CLOSING VIOLATED NUMEROUS

PROHIBITIONS ON PROPER ARGUMENT. .................................... 58

Expert opinion evidence. ........................................................ 71

Constitutional right to present a defense. ............................. 72

Standard of review.................................................................. 72

Application of Law to Facts. ...................................................... 72

1. The trial court erred in allowing Investigator Thurman to

narrate the State’s theory of the case from the witness stand. .... 72

2. The trial court erred in refusing to allow the defense to

present opinion evidence that a frame in the video was consistent

with a firearm. ................................................................................ 75

Summary of Applicable Law. .................................................... 76

General rule for relevant evidence. ........................................ 76

Special rule for prior bad acts. ............................................... 77

Standard of review.................................................................. 77

Application of Law to Facts. ...................................................... 77

VI. THE TRIAL COURT ERRED IN INSTRUCTING THE JURY

THAT MR. BLACK HAD A DUTY TO RETREAT PRIOR TO USING

FORCE IN SELF-DEFENSE. .............................................................. 79

Statement of Relevant Facts. .................................................... 79

Finding under Perrier. ............................................................ 79

Self-defense instruction given to the jury. ............................. 80

Summary of Applicable Law. .................................................... 80

The self-defense regime established in Perrier. ..................... 80

Right to accurate instruction.................................................. 81

Standard of review.................................................................. 82

Application of Law to Facts. ...................................................... 82

1. The trial court erred in instructing the jury that Mr. Black

had a duty to retreat before engaging in self-defense. .................. 82

034

ment received by the TN Court of Criminal Appeals.

THE TRIAL COURT ERRED IN ADMITTING EVIDENCE

THAT MR. BLACK HAD SEX WITH JUSTICE HALL DAYS AFTER

THE HOMICIDE. ................................................................................. 76

2. The erroneous instruction was not harmless beyond a

reasonable doubt. ........................................................................... 84

The right to a jury trial was violated. .................................... 85

VII. THE TRIAL COURT ERRED IN REFUSING TO GIVE A

MODIFIED SEQUENTIAL INSTRUCTION. ..................................... 86

Summary of Applicable Law. .................................................... 86

Application of Law to Facts. ...................................................... 86

VIII. THE JURY INSTRUCTIONS INCORRECTLY DEFINED

VOLUNTARY MANSLAUGHTER. ..................................................... 89

IX. THE COURT ERRED IN INSTRUCTING THE JURY THAT,

TO ESTABLISH MANSLAUGHTER, THE ELEMENT OF STATE OF

PASSION HAD TO BE PROVEN BY THE STATE. ........................... 91

THE CUMULATIVE EFFECT OF THESE ERRORS

REQUIRES A NEW TRIAL ................................................................. 92

Conclusion ............................................................................................... 93

035

ment received by the TN Court of Criminal Appeals.

CERTIFICATE OF COMPLIANCE ........................................................ 94

TABLE OF CITATIONS AND AUTHORITIES

Cases

Berger v. United States, 295 U.S. 78 (1935)............................................ 60

Blackburn v. Murphy, 737 S.W.2d 529 (Tenn. 1987) ............................. 71

Boyd v. Commonwealth, 439 S.W.3d 126 (Ky. 2014).............................. 73

Boyde v. California, 494 U.S. 370 (1990) ................................................ 82

Bruno v. Rushen, 721 F.2d 1193 (9th Cir. 1983) .................................... 58

Darden v. Wainwright, 477 U.S. 168 (1986) ........................................... 60

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) .................. 71

Donnelly v. DeChristoforo, 416 U.S. 637 (1974) ..................................... 76

Fortune v. State, 837 S.E.2d 37 (S.C. 2019) ............................................ 58

Griffin v. California, 380 U.S. 609 (1965)............................................... 68

Holmes v. South Carolina, 547 U.S. 319 (2006) ..................................... 72

McDaniel v. CSX Transp., Inc., 955 S.W.2d 257 (Tenn. 1997)............... 71

Nicholas v. Heidle, 725 F.3d 516 (6th Cir. 2013) .................................... 89

Patterson v. New York, 432 U.S. 197 (1977) ........................................... 91

State v. Banks, 271 S.W.3d 90 (Tenn. 2008) ..................................... 55, 72

State v. Berry, 141 S.W.3d 549 (Tenn. 2004) .......................................... 77

State v. Brandon Scott Donaldson, No. E2020-01561-CCA-R3-CD, 2022

WL 1183466 (Tenn. Crim. App. Apr. 21, 2022) ................. 88, 90, 91, 92

State v. Brown, 29 S.W.3d 427 (Tenn. 2000) .......................................... 72

State v. Brown, 836 S.W.2d 530 (Tenn. 1992) ........................................ 92

State v. Buck, 670 S.W.2d 600 (Tenn. 1984) ........................................... 59

State v. Clark, 452 S.W.3d 268 (Tenn. 2014) .......................................... 79

036

ment received by the TN Court of Criminal Appeals.

Mullaney v. Wilbur, 421 U.S. 684 (1975) ................................................ 91

State v. Cole-Pugh, 588 S.W.3d 254 (Tenn. 2019) .................................. 81

State v. Cribbs, 967 S.W.2d 773 (Tenn. 1998) ....................................... 66

State v. Davis, 266 S.W.3d 896 (Tenn. 2008) .......................................... 87

State v. Dotson, 450 S.W.3d 1 (Tenn. 2014) ............................................ 77

State v. DuBose, 953 S.W.2d 649 (Tenn. 1997) ....................................... 77

State v. Enix, 653 S.W.3d 692 (Tenn. 2022) ........................................... 59

State v. Farmer, 927 S.W.2d 582 (Tenn. Crim. App. 1996) .................... 59

State v. Gann, 251 S.W.3d 446 (Tenn. Crim. App. 2007) ....................... 57

State v. Goltz, 111 S.W.3d 1 (Tenn. Crim. App. 2003)............................ 59

State v. Hester, 324 S.W.3d 1 (Tenn. 2010)............................................. 92

State v. Jackson, 444 S.W.3d 554 (Tenn. 2014) ...................................... 68

State v. James Lee Simpson, No. M2021-01031-CCA-R3-CD, 2022 WL

16544456 (Tenn. Crim. App. Oct. 31, 2022) ........................................ 83

State v. Johnson, 401 S.W.3d 1 (Tenn. 2013) ......................................... 59

State v. Jones, 568 S.W.3d 101 (Tenn. 2019) .......................................... 59

State v. Perrier, 536 S.W.3d 388 (Tenn. 2017) ................................ passim

State v. Robinson, 146 S.W.3d 469, 490 (Tenn. 2004) ............................ 76

State v. Shannon Bruce Foster, No. E2020-00304-CCA-R3-CD, 2021 WL

3087278 (Tenn. Crim. App. July 22, 2021) ......................................... 84

State v. Sims, 45 S.W.3d 1 (Tenn. 2001) ................................................. 82

State v. Stevens, 78 S.W.3d 817 (Tenn. 2002) ......................................... 72

State v. Thacker, 164 S.W.3d 208, 253 (Tenn. 2005) .............................. 66

State v. Thomas, 158 S.W.3d 361 (Tenn. 2005) ...................................... 64

State v. Transou, 928 S.W.2d 949 (Tenn. Crim. App. 1996) .................. 68

State v. Tyshon Booker, No. E2018-01439-CCA-R3-CD, 2020 WL

1697367 (Tenn. Crim. App. Apr. 8, 2020) ...................................... 83, 84

037

ment received by the TN Court of Criminal Appeals.

State v. Lindsay, 326 P.3d 125 (Wash. 2014) ......................................... 58

State v. Vana Mustafa, No. M2020-01060-CCA-R3-CD, 2022 WL

2256266 (Tenn. Crim. App. June 23, 2022) ......................................... 84

State v. West, 767 S.W.2d 387 (Tenn. 1989) ........................................... 64

State v. Zackary James Earl Ponder, No. M2018-00998-CCA-R3-CD,

2019 WL 3944008 (Tenn. Crim. App. Aug. 21, 2019) ......................... 65

United States v. Fields, 763 F.3d 443 (6th Cir. 2014) ............................ 92

United States v. Holmes, 413 F.3d 770 (8th Cir. 2005) .......................... 57

United States v. Kilpatrick, 798 F.3d 365, 379 (6th Cir. 2015) .............. 73

United States v. Murrah, 888 F.2d 24 (5th Cir. 1989)............................ 55

Watkins v. State, 140 Tenn. 1, 203 S.W. 344 (1918) ............................... 57

Statutes

Tenn. Code Ann. § 39-11-611 .................................................................. 80

Tenn. Code Ann. § 39-13-202 .................................................................. 86

Other Authorities

Wayne R. LaFave, et al, 6 Criminal Procedure (4th ed.)........................ 88

Rules

Tennessee Rule of Evidence 403 ............................................................. 76

Tennessee Rule of Evidence 404 ................................................. 77, 78, 79

Tennessee Rule of Evidence 702 ............................................................. 71

Tennessee Rule of Evidence 703 ....................................................... 71, 72

Tennessee Rules of Evidence 602 ........................................................... 73

038

ment received by the TN Court of Criminal Appeals.

Tenn. Code Ann. § 39-13-210 .................................................................. 86

Constitutional Provisions

Tennessee Constitution, Article I, § 9..................................................... 68

039

ment received by the TN Court of Criminal Appeals.

United States Constitution, Fifth Amendment ...................................... 67

STATEMENT OF THE ISSUES

1. The State introduced irrelevant evidence that wrongly implied that

defense counsel might have assisted the defendant in fleeing from

law enforcement. The State also suggested that defense counsel

had confused or indoctrinated some witnesses by meeting with

them prior to trial and that defense counsel had told a witness not

to cooperate with the State. The State then directly attacked

defense counsel in closing argument, saying that counsel had

“tricked” witnesses. Did the trial court err in allowing the State to

repeatedly impugn the integrity of defense counsel?

3. The State questioned a defense expert about the fact that the

defendant had not spoken to him about the events surrounding the

shooting. Did this line of questioning infringe on the defendant’s

right to remain silent?

4. The State was allowed to present its version of the case through the

lead investigator, who narrated the publication of security videos

with his own opinions and characterizations. The jury could have

watched the videos just as he did. Was the introduction of this lay

opinion evidence error? In the defense case, a defense expert was

precluded from offering an expert opinion as to what he saw in the

video for the reason that the jury could watch the video just as well

as he could. Was this inconsistent holding error?

5. The trial court admitted evidence that, a few days after the

homicide, the defendant met with a female friend at a hotel and had

sex. Was admission of this irrelevant but prejudicial fact error?

040

ment received by the TN Court of Criminal Appeals.

2. In closing argument, the State offered broad speculation, went

beyond the record, and misstated the evidence. It also shifted the

burden to the defense and engaged in name-calling. It also

misstated the legal standard, denigrated the defense, and

encouraged the jury directly to consider issues of emotion. Does the

combined effect of these improper arguments require a new trial?

6. The trial court instructed the jury that Mr. Black had a duty to

retreat, if possible, prior to engaging in self-defense, based on its

finding that he was engaged in unlawful conduct (being a felon in

possession of a firearm) at the time of the shooting. However,

neither his status as a felon or even his possession of a firearm

produced the confrontation. Did the trial court err in instructing

the jury that he had this duty to retreat?

8. The trial court instructed the jury that state of passion produced by

adequate provocation is an affirmative element of the crime of

voluntary manslaughter, to be proven beyond a reasonable doubt.

Consequently, the jury could return a verdict of guilty of voluntary

manslaughter only if it were convinced beyond a reasonable doubt

that the defendant was in a state of passion. Was this instruction,

rather than an instruction requiring the State to disprove state of

passion beyond a reasonable doubt to convict of second-degree

murder, erroneous?

9. The trial court instructed the jury that, as to voluntary

manslaughter, the question was whether the State had proven that

the defendant was in a state of passion produced by adequate

provocation. Was this instruction, which essentially rendered any

defense evidence of passion or provocation irrelevant, erroneous?

041

ment received by the TN Court of Criminal Appeals.

7. The trial court instructed the jury that second-degree murder had

two elements (unlawful killing and knowing), and that voluntary

manslaughter had those same two elements plus an additional

element (state of passion). It instructed the jury that voluntary

manslaughter was a lesser offense of second-degree murder. It also

instructed the jury that it could return a guilty verdict on a lesserincluded offense only if it unanimously acquitted on the greater

offense. Together, these instructions, if followed, meant that the

jury would never be able to return a verdict of voluntary

manslaughter. Was this error?

042

ment received by the TN Court of Criminal Appeals.

10.

Did the cumulative effect of these errors deny the defendant

his due process right to a fair trial?

STATEMENT OF THE CASE

The defendant, Landon Hank Black [“Mr. Black”], was charged in

a two-count superseding indictment on September 29, 2021, with firstdegree premeditated murder and unlawful possession of a firearm by a

felon. R.2.1 Mr. Black went to trial before the Honorable Steven W.

Sword and a jury on October 4, 2021. The offenses were severed for trial.

On October 8, 2022, Mr. Black was found guilty on Count 1 of the lesserincluded offense of second-degree murder. Prior to the imposition of

sentence on second-degree murder, Mr. Black entered a plea of guilty on

Count 2 to the charge of unlawful possession. Vol. 22/110. He was

sentenced to twenty-five years of imprisonment on Count 1 and six years

on Count 2, to be served concurrently, on January 24, 2022. R.564-567.

A timely motion for new trial was filed on February 23, 2022.

R.568. After appointment of counsel, a supplemental motion for new trial

denied by order dated December 12, 2022. R.591. A timely notice of

appeal was filed on December 15, 2022. R.592.

References to the technical record will be abbreviated herein as

R.xx. References to the transcripts will be abbreviated as Vol. X/xx.

043

ment received by the TN Court of Criminal Appeals.

was filed on November 1, 2022. R.576. The motions for new trial were

STATEMENT OF THE FACTS

OVERVIEW.

The decedent Brandon Lee was shot one time by Hank Black and

died in the early morning hours of December 27 in the parking lot of a

Knoxville bar. As Mr. Lee was walking to his truck, Mr. Black’s car came

to a stop next to him. Mr. Lee approached Mr. Black’s car and within

seconds the shot was fired. Mr. Black left the scene and eventually

returned to his home in California, where he was later apprehended.

There was no dispute that Mr. Lee and Mr. Black did not know each

other, and while they had been in the same bar that evening, there was

no evidence that they had even spoken to each other at any time while in

the bar.

There were at least three relevant groups of individuals at the bar.

First, there was Mr. Black’s group: Mr. Black, his cousin Taylor Hodge,

including him; his two best friends, Chandler Jackson and Clark

Longmire; and Mr. Jackson’s girlfriend, Mallory Hayes. Over the course

of the night, that second group grew to include a woman, Kelsey Murrell,

who was being physically affectionate with Mr. Lee. Ms. Murrell’s sister,

Kaitlyn Murrell, was also present.

Third, there was another group

centered around a big man named Alan Ford, including two friends of

his.

While Mr. Black and Mr. Lee did not know each other, there was

one significant connection between the first two groups. Kelsey Murrell,

044

ment received by the TN Court of Criminal Appeals.

and his cousin’s date, Carrie Phillips. Second, there was Mr. Lee’s group,

who was flirting and affectionate with Mr. Lee that evening, was the exgirlfriend of Mr. Black’s cousin, Mr. Hodge.

They had broken up

acrimoniously a couple of months before and had not seen each other

since then.

The testimony suggested that Ms. Murrell was openly

affectionate towards Mr. Lee that evening in an effort to upset Mr. Hodge.

She admitted that, at the end of the evening, she became verbally and

physically aggressive towards Ms. Phillips, Mr. Hodge’s date, because she

believed that Mr. Hodge had cheated on her with Ms. Phillips during

their relationship.

The evidence was also undisputed that, shortly after this

confrontation between Ms. Murrell and Ms. Phillips, Mr. Ford became

upset and yelled a racial slur at someone. A furore then developed

around him, and bouncers took him out of the bar. He continued the

physical fight with a group of other individuals (though not Mr. Lee or

happened not too far away.

Beyond these basic facts, there remained much that was unclear

about the events of that evening. There was extensive security video,

both internal video showing events inside the bar and external cameras

which captured the shooting from a distance. The bar was so packed with

people that it is often difficult to tell who is interacting with whom in the

videos, and none of the videos had audio.

The State’s theory of the shooting included two connected events.

First, the State argued that Mr. Black and Mr. Hodge had seen Ms.

045

ment received by the TN Court of Criminal Appeals.

Mr. Black) outside the bar. That was still occurring when the shooting

Murrell’s provocative behavior with Mr. Lee throughout the evening, and

that when she tried to start a physical confrontation with Ms. Phillips,

Mr. Black intervened forcefully, putting his hands on Ms. Murrell to

restrain her. Second, the State then contended that Mr. Ford and his

friends took exception to this and moved to confront Mr. Black about the

fact that he had physically touched Ms. Murrell. Mr. Ford then began to

speak aggressively to Mr. Black.

All of this left Mr. Black feeling

disrespected and humiliated. This continued until Mr. Ford used the nword in yelling at Mr. Black.2

This attracted the attention and

disapproval of others in the bar, including bar security, and Mr. Ford was

escorted out of the bar.

The State’s theory was that Mr. Black, angry from the dual

humiliations of his interactions with Ms. Murrell and her friends and his

face-down with Mr. Ford and his friends, then stormed out of the bar,

his purpose to attack Mr. Ford, either directly or in a drive-by shooting.

He abruptly stopped when Mr. Lee walked in front of his car. Mr. Lee

then approached the driver’s side window and said something to him.

Mr. Black, recognizing him as the man who had been physically

affectionate with his cousin’s ex-girlfriend all evening, shot him and

shortly thereafter drove away. Recognizing what he had done, he played

dumb over the rest of the night, then advised his cousin to hide the car

Mr. Black, like Mr. Ford, is white.

046

ment received by the TN Court of Criminal Appeals.

went to his car, armed himself, and pulled around the parking lot. It was

that he had been driving. Once he learned through family members that

he had been charged, he turned off his phone in an effort to avoid capture

and went to California.

Although portions of this narrative were established through the

testimony of the witnesses -- all of the individuals named above other

than Mr. Ford’s group (and Mr. Black and Mr. Lee) testified at trial -much of the State’s narrative of the thought processes of Mr. Black and

Mr. Lee, including what they saw, heard, and said, was offered as an

inference based on parsing of the security videos.

The defense suggested that much of the State’s narrative was rank

speculation or demonstrably wrong. The defense offered a different, and

simpler, narrative. Mr. Black and Mr. Hodges had perhaps noticed, but

not been particularly interested in, Ms. Hayes’ attempted provocations

with Mr. Lee. Mr. Black intervened when Ms. Hayes tried to fight Ms.

“better than that.” His interactions with Mr. Ford began only when he

heard Mr. Ford using the racial slur, which Mr. Ford used not against

him but against a Black man that Mr. Ford saw interacting with Mr.

Ford’s own ex-girlfriend, who was also present at the bar.

The defense contended that, while the fracas involving Mr. Ford

continued, Mr. Black went to his car to leave for the evening. Driving

through the parking lot, he was met by Mr. Lee. Mr. Lee, for his part,

had snorted a quantity of cocaine minutes before (shown on the video and

found in his toxicology report), which may have made him aggressive and

047

ment received by the TN Court of Criminal Appeals.

Phillips, putting his hands up to stop her and telling her that she was

hypervigilant. When Mr. Black stopped his car, Mr. Lee aggressively

approached, yelling at him: “What the fuck?” He quickly went to the

driver’s side window.

He had something in his hands, possibly a

handgun, and raised his hands toward the driver. Mr. Black, scared and

acting in self-defense, fired one shot at him.

Alarmed at what had

happened, and acting unwisely and in a panic, he left the scene and did

not take immediate responsibility. The defense contended that, although

no gun of Mr. Lee’s was found on the scene next to his body, it could have

been collected by one of Mr. Lee’s friends in an effort to shield him from

blame.

II.

THE STATE’S EVIDENCE AT TRIAL.

A. Testimony of Brian Lee.

Brian Lee testified that he lived in Iowa.

He had two sons,

B. Testimony of Beth Tremaine.

Beth Tremaine, Brandon Lee’s mother, testified that she moved

from Iowa to Tennessee, and in 2015 Brandon Lee was laid off from his

job and moved to Knoxville. Vol. 9/358-360. He worked as a machinist

and also had a stump grinding business. Vol. 9/361-362.

Ms. Tremaine testified that Brandon Lee’s truck had a remote start,

allowing the engine to be started with the push of a button the remote.

Vol. 9/369. It worked up to one hundred feet, and activated the lights

when the button was pushed. Vol. 9/371.

048

ment received by the TN Court of Criminal Appeals.

including Brandon Thomas Lee, born on March 19, 1990. Vol. 8/356.

After his death, she gathered the belongings from his house. These

included three guns: a shotgun and rifle in his closet and a FM-45 on his

nightstand. Vol. 9/373. The latter was sometimes kept in his truck. Vol.

9/375.

C. 9-1-1 Call.

The State introduced, via stipulation, a copy of the 9-1-1 call made

at 2:20:58 a.m. reporting a gunshot at Billiards and Brews. Vol. 9/378379; Exhibit 4.

D. Testimony of Neil Tremaine.

Brandon Lee’s stepfather, Neil Tremaine, testified that he helped

empty out the contents of Mr. Lee’s home after he died. This included a

gun found on the nightstand. It was fully loaded. The case for the gun

had places for two magazines, although only one was inside the gun. Vol.

9/382-386.

1. Initial response.

Knoxville Police Department Investigator Thomas Thurman

testified that he responded to the scene of the shooting at Billiards and

Brews. When he arrived, he learned that the shooter was no longer at

the scene. He did not develop the name of a suspect at the scene that

night. Vol. 9/388-397. He said that he interviewed Clark Longmire,

Chandler Jackson, and Mallory Hayes at the scene. Vol. 9/397. He did

not locate Taylor Hodge or Kelsey Murrell at that time. Vol. 9/397.

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E. Testimony of Thomas Thurman.

Investigator Thurman testified that he did not recover any weapons from

the scene. Vol. 11/544.

2. Security videos.

He obtained external security videos from two adjacent businesses,

and then later internal video from Billiards and Brews. Vol. 9/397, 403404.

3. Questioning of Taylor Hodge.

He developed information regarding a silver Ford Fusion. Vol.

9/401-402. Reviewing video, he determined that it had damage to the

bottom passenger’s side bumper area. Vol. 9/402. He then determined

that Taylor Hodge had a 2010 silver Ford Fusion with bumper damage.

Vol. 9/414, 418.

On January 5, 2021, he went to Pennsylvania to interview Taylor

Hodge.

Vol. 9/420.

Mr. Hodge went voluntarily to the local police

statement, Investigator Thurman obtained an “arrest warrant for

Landon Hank Black for first-degree murder.” Vol. 9/423. While he was

on his way back, Mr. Black shut off his phone. Vol. 9/426.

4. Other investigative efforts.

Investigator Thurman said that had not been able to speak with

Jeffrey Alan Ford, referred to as “man bun,” who had been involved in

the altercation with the defendant inside the bar.3 Vol. 10/444-445. He

Confusingly, the State indicated in opening statement that it would

refer to him only as “man bun,” because it was not sure of his name, Vol.

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department and gave a statement. Vol. 9/422-423. As a result of that

said he tried to reach him, including having a conversation with his

mother, and failed to do so. Vol. 10/448-449.

He testified that, in 2020, Mr. Black was staying in Los Angeles,

but had come to Knoxville for the holidays. Vol. 10/449-450.

5. Publication of security videos.

The State introduced, through Investigator Thurman, three DVDs

containing security videos of the night in question. Vol. 10/491; Exhibits

35, 36, 37. Portions of those were published to the jury, with Investigator

Thurman providing editorial explanation. Vol. 10/505-507. He testified

that he had watched the Billiards and Brews videos “a lot of times.” Vol.

9/405-406.

He described Mr. Lee and Ms. Murrell going to the bar area. Vol.

10/509. There was “socializing” and “intimate contact” between Mr. Lee

and Ms. Murrell. Vol. 10/510. Investigator Thurman then switched to

point, he said, that it “appears Ms. Murrell makes a gesture towards Mr.

Hodge to the victim, Mr. Lee.” Vol. 10/513. Mr. Lee turned his head and

“look[ed] over that way.” Vol. 10/513-514.

Later on, Mr. Lee and Mr. Hodge were “back to back.” Vol. 10/515.

Mr. Black then stood up and moved adjacent to Mr. Hodge, near Mr. Lee

and Ms. Murrell. Investigator Thurman said that he then “appears to be

7/247, and did so throughout trial. The evidence actually established,

however, that both investigators for the State and the witnesses knew

that his name was Alan Ford.

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focusing on Mr. Black, Mr. Hodge, and Ms. Phillips. Vol. 10/512. At one

looking directly at the victim, Mr. Lee, and Ms. Murrell.” He “continu[ed]

to look at Mr. Lee and Ms. Murrell.” Vol. 10/516. At that point, Kaitlyn

Murrell “comes in and tries to get ahold” of her sister, and Mr. Lee moved

away to the dartboard. He explained: “As that’s happening, Mr. Black,

you know, advances towards Ms. Murrell there.” He said that then Mr.

Black and Mr. Hodge had a face-to-face conversation. Vol. 10/516. Ms.

Murrell then “approaches towards Mr. Black and Mr. Hodge,” and there

was “physical contact between Mr. Black and Ms. Murrell.” Vol. 10/517.

At that point, “Mr. Man Bun” “appears to take notice of what’s going

on,” and moved in and “close[d] the distance.” The two men who were

with him got in Mr. Black’s face: “face to face and physical contact.” Vol.

10/517. The bartender then “I guess, sees what’s going on and moves out

to get into the mix there.” He went to Mr. Ford. At that point, Mr. Black

left Mr. Hodge. Mr. Hodge and Ms. Phillips were looking towards the

the crowd. Vol. 10/518. He went out the emergency door. Vol. 10/518.

Mr. Lee then went to the bar area to join Ms. Murrell. Vol. 10/520. Mr.

Hodge then started moving towards the exit, and knocked over a chair.

Vol. 10/521. Ms. Murrell was pulled towards the exit by her sister. Vol.

10/521.

Switching to another camera, and going back in time, Investigator

Thurman described where the “dispute starts” between Mr. Ford and Mr.

Black. There was a “physical skirmish” between them. Mr. Black then

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entrance. Mr. Black made “kind of a flanking motion,” and moved around

went out the exit, with Mr. Hodge looking to see where he was going. Vol.

10/522.

From exterior video, Investigator Thurman described Mr. Ford

coming out into the parking lot. Then Mr. Lee came out, as well as Mr.

Jackson, Ms. Hayes, and Mr. Longmire. Vol. 10/526. The video showed

a side door opening, and Mr. Black emerged. Vol. 10/527.

Investigator Thurman said that he saw someone he believed to be

Mr. Lee stop, turn around, and go back towards Mr. Ford’s group. Vol.

10/529.

As to a he video showing Mr. Lee with something in his hands,

Investigator Thurman testified that he had analyzed this video, along

with another video, to see that the “lighting on the vehicles change[s]” at

that time, suggesting that this was when the truck’s key fob had been

pushed to turn on the truck. Vol. 10/531.

quickly” when compared to other vehicles. He suggested that, when it

stopped, there was “heavy brake pressure” applied, causing the vehicle

to “shift and change in its suspension.” Vol. 10/534. He described the

moments around the shooting:

You can see the taillights are illuminating the area at the rear

of the vehicle. And I believe Mr. Lee was out in the front of

the vehicle, then moved to the side of the vehicle. There is

some movement there about his upper body with his arms and

so forth. And very quickly, upon him stepping to the door

there, you see the -- what I believe to be a muzzle flash right

there in the -- about the driver's ar- -- compartment, steering

wheel area.

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Investigator Thurman testified that Mr. Black’s car was “moving

Vol. 10/535.

He contended that, at the time of the muzzle flash, it

“appears to me that his arms are down by his side.” Vol. 10/535-536.

The car then drove away, and went past Mr. Ford and Justice Hall,

who had just shoved Mr. Ford. Vol. 10/536. The car stopped next to Mr.

Hodge very briefly and then left. Vol. 10/537.

6. Efforts to locate Mr. Black.

Investigator Thurman testified that he and other officers went to

Mr. Black’s family’s house in East Knox County. Mr. Black’s mother and

sister were there, and his father came later. Vol. 11/546. He informed

them that there was a warrant for Mr. Black and that he should turn

himself in peacefully. Vol. 11/547. Mr. Black was eventually taken into

custody on January 28 in California. Vol. 11/547-548.

7. Mr. Lee’s gun.

Mr. Lee’s truck was taken to the impound lot, and his keys were

a handgun magazine for a .45 caliber gun was found in the truck. Vol.

11/549. Investigator Thurman testified that the gun associated with that

magazine was found in Mr. Black’s home on his side table. Vol. 11/550.

8. Cross-examination.

On cross-examination, Investigator Thurman admitted he was

confused about who he had interviewed at the scene versus having

interviewed later.

Vol. 11/580.

He was cross-examined about

inaccuracies in his applications for a search warrant.

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recovered in the parking lot. Vol. 11/548. The truck was inventoried, and

Investigator Thurman testified that his efforts to contact Alan Ford

consisted of calling his mother twice. Vol. 11/594.

Investigator Thurman agreed that there was no point in the video

that showed Mr. Black interacting with Mr. Lee. Vol. 11/637. He agreed

that one portion of the video showed Mr. Lee snorting a substance out of

a little bag with a key. Vol. 11/642.

Investigator Thurman was shown Exhibit 103, and testified that

there was an object in Mr. Lee’s hand. Vol. 11/643; Vol. 11/654-654

(referring to it as an “artifact”). He said he could not say whether it was

Exhibit 103.

F. Testimony of Chandler Jackson.

Chandler Jackson testified that he was good friends with Brandon

Lee, based on their mutual interests including motorcycles.

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a gun or not. Vol. 11/644.

socialized together and had been roommates for six months starting in

April 2020. They had another friend, Clark Longmire, they frequently

hung out with, along with Mr. Jackson’s girlfriend, Mallory Hayes. Vol.

12/677-683.

On the night of the incident, Mr. Lee drove the truck. He kept a

gun in his truck for self-defense when he went to work but they knew

“not to have a gun with you while you’re going out drinking.” Otherwise

he would keep it in his house. Mr. Lee did not typically carry a knife.

Vol. 12/683-687. Mr. Lee would sometimes use marijuana or powder

cocaine. Mr. Jackson and Mr. Lee both used powder cocaine on the night

that Mr. Lee died. Vol. 12/688.

On that night, the four of them went to Billiards and Brews as it

was the “only place that was open.” Vol. 12/689. It was very cold, and

there was snow on the ground. Vol. 12/690.

know Mr. Black or Mr. Hodge. Vol. 12/692. On that night, Ms. Murrell

was hanging around his group, flirting. He saw her with Mr. Lee, “almost

hanging over each other.” After last call, Mr. Jackson and Ms. Hayes

went out the door. Mr. Lee was close behind them. Mr. Lee started his

truck with his remote start. Mr. Longmire was with Mr. Lee. Vol. 12/694.

The truck was about 100 feet away from the exit, parked between two

utility trucks. Vol. 12/695. Mr. Jackson agreed that he was “intoxicated,

but more than coherent,” at the time he left the bar. Vol. 12/697.

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Mr. Jackson testified that he knew Kelsey Murrell. He did not

He headed for the truck and had opened the door for Ms. Hayes,

when he heard a noise. He did not think that it was a gunshot. But then

a car went by, he saw Mr. Lee on the ground, and Mr. Longmire “was

screaming that it was Brandon.” Vol. 12/698. They ran over to him. Mr.

Jackson was in disbelief. Mr. Lee was flat on his back with his feet and

arms out, barely breathing. He said: “I can’t believe this is happening.”

Mr. Jackson called 9-1-1, as did someone else. Vol. 12/698-700.

Mr. Jackson was probably the second person to Mr. Lee’s body. Vol.

12/701. There were no knives, guns, or other weapons on the ground near

Mr. Lee. Vol. 12/702. He did not see anyone remove any weapons from

the scene. Vol. 12/702.

On cross-examination, Mr. Jackson agreed that, when he spoke to

Investigator Thurman, he told him that Mr. Lee “usually kept” his gun

in his truck. Vol. 12/732. He agreed that he told Investigator Thurman

12/736-737.

G. Testimony of Clark Longmire.

Clark Longmire testified that he was good friends with Chandler

Jackson and Brandon Lee. Vol. 12/741-748. He said that Mr. Lee had a

concealed carry permit. Mr. Lee smoked marijuana and would take

cocaine. Vol. 12/750-751. By the end of the night, Mr. Longmire was

“intoxicated,” having been drinking for many hours. He did not know Mr.

Hodge or Mr. Black. Vol. 12/751-753.

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that he thought Mr. Lee did have his gun with him that evening. Vol.

Mr. Longmire testified that a friend named Blake Norman got “into

an argument with somebody” in the bar. Mr. Longmire tried to get him

away to defuse that situation.

He did not know the cause of the

argument, but was trying to keep Mr. Norman from getting in trouble.

Vol. 12/756-757.

After last call, Mr. Longmire and Mr. Lee walked out together

towards the truck. He did not remember any words being exchanged

between Mr. Lee or anyone else in the parking lot. He then testified that:

We are walking through the parking lot, a car approaches us

quickly, almost hits Brandon and –

…

He says, “Dude, what the fuck?” and doesn’t -- he doesn’t

really approach the vehicle. He just kind of throws his hands

up, “Dude, what the fuck?” ’cause he almost hit him.

Vol. 12/757-760. Then “he gets shot,” by the “person driving the car.” Vol.

The shot came through the driver’s window.

Mr. Lee was

standing “beside the driver’s door, kind of.” Vol. 12/761. It was a black

Glock-style gun with an extended magazine. He was not sure if the gun

came out of the car, but it was at window height. There was one shot.

Vol. 12/760-762. Mr. Lee had nothing in his hands at the time he spoke

to the driver. Vol. 12/762.

Mr. Lee fell to the ground. Mr. Longmire tried to help him. He did

not see any knives or guns or other weapons around the body. He did not

ever hear any discussion about getting rid of a weapon. He did CPR on

Mr. Lee, who said: “Is this really happening?” Mr. Norman also appeared

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12/760.

and gave chest compressions. They kept doing this until the ambulance

came. Mr. Longmire called 9-1-1. Vol. 12/762-766.

On cross-examination, Mr. Longmire testified that Mr. Lee raised

both of his hands, holding them both out to the side, when speaking to

the driver of the car. Vol. 12/755. The shot was then fired immediately.

Vol. 12/766. The driver of the car did not say anything. Vol. 12/776.

H. Testimony of Mallory Hayes.

Mallory Hayes testified that Chandler Jackson was her boyfriend.

She also knew Mr. Longmire and Mr. Lee. They all hung out together.

Neither Mr. Longmire nor Mr. Lee had a girlfriend. Vol. 13/784-789.

She testified that Mr. Lee was “normal, calm, happy” that night.

Vol. 13/789-792.

At the bar, they ran into a woman named Kelsey

Murrell. Vol. 13/794. Ms. Hayes was a “three out of ten” that night in

terms of intoxication. Vol. 13/796.

were going out the front door, “there was an altercation in the middle of

the bar.” Vol. 13/797. There was “yelling,” “a commotion and a group of

people together.” She could not see anyone involved that she knew. Vol.

13/797. They left, with Mr. Lee and Mr. Longmire behind them, to go

home together. Vol. 13/798. They were walking hurriedly towards Mr.

Lee’s truck, which was backed in and facing them. Vol. 13/798-800. Mr.

Lee used his truck’s remote start feature. Vol. 13/800.

As she started to get in the back door of the truck, and Mr. Jackson

was outside the truck, they heard “something.” She turned around and

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She testified, at the end of the evening, that as she and Mr. Jackson

saw a car driving away. Mr. Lee was on the ground and Mr. Longmire

was next to him. Vol. 13/800-801. They ran over. Mr. Longmire said

that Mr. Lee had been shot. Mr. Lee was breathing, but she did not hear

him say anything. She did not see any weapon on the ground near him,

nor did she hear any discussion about weapons.

No one mentioned

removing a weapon. Vol. 13/802-803.

I. Testimony of Kelsey Murrell.

Kelsey Murrell [“Ms. Murrell”] testified that, six years previously,

she began dating Mr. Hodge. They dated for five years, and eventually

lived together. Mr. Hodge got a job in Pennsylvania, and she moved to

Pennsylvania with him in January 2020.

She characterized their

relationship as “very mentally, physically and emotionally abusive.” Vol.

13/806-812.

In July 2020, Ms. Murrell’s father died in a motorcycle accident,

was gone, Mr. Hodge cheated on her, and the relationship ended around

Halloween. It did not end on very good terms. Ms. Murrell moved

permanently back to Knoxville. She then did not see Mr. Hodge between

Halloween and Christmas, nor did she speak to him. Vol. 13/812-815.

She knew Mr. Black, who was Mr. Hodge’s cousin. She had seen him a

couple of times. Vol. 13/815-816.

On December 27, she had been bar-hopping with a group of friends.

At Billiards and Brews, she became interested in Mr. Lee. She said he

was a “gentleman,” and reminded her of her father. They talked about

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and she came back to Knoxville to deal with that situation. While she

riding motorcycles. Vol. 13/816-819. She realized that Mr. Hodge was

also at the bar. This was the first time she had seen him in several

months. She was upset, sad, and a “little mad.” She and Mr. Lee were

openly affectionate. Vol. 13/819-821. Mr. Hodge’s date, Carrie Phillips,

was a “sore subject” with her as Mr. Hodge had cheated with Ms. Phillips

during their relationship. Vol. 13/821-822.

Ms. Murrell pointed out Mr. Hodge to Mr. Lee, after he had asked

why she was upset. He told her not to worry about it and to relax. Later,

her attention returned to them.

She explained that she “became

aggressive” and was “angry.” She “was definitely having words” with Mr.

Hodge and Ms. Phillips. Vol. 13/822-823. She was heavily intoxicated at

that point. Vol. 13/823. She did not remember much of that night but

she did remember that she “tried to fight Carrie and Taylor, both, and

that Hank stopped me and told me that I was better than that and that

dragged her out of the bar. Vol. 13/824. She learned the next day that

Mr. Lee had died. Vol. 13/828.

That next day, she received a text message from Mr. Hodge. He

asserted that she was “pathetic,” and that the “shit you pulled got

someone killed last night.” Vol. 13/830. She responded that he was

wrong, as the shooting had “nothing to do with what happened.” Vol.

13/830; Exhibit 109, Exhibit 110.

On cross-examination, she indicated that Mr. Lee was not in the

area when she became aggressive with Mr. Hodge and Ms. Phillips. Vol.

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I should not do that and I needed to leave.” Vol. 13/824. Her sister

13/837-838. She agreed that, on the video, she pushed Mr. Black. Vol.

13/838. She agreed that he was not being violent with her, but merely

“trying to restrain me from actually fighting.” Vol. 13/839. She was not

aware of any interaction between Mr. Black and Mr. Lee. Vol. 13/839840.

J. Testimony of Kaitlyn Murrell.

Kaitlyn Murrell [“Kaitlyn Murrell”] testified that she was Kelsey

Murrell’s younger sister. She went out with her sister that evening in

order to be the designated driver. That night, she met Mr. Lee for the

first time, and found him to be very respectful and gentlemanly. She saw

him and Kelsey being affectionate towards each other. She was aware

that Kelsey got into a verbal altercation with Mr. Hodge and Ms. Phillips

at the end of the night. Mr. Lee was there initially but then went back

to his area. Kaitlyn Murrell intervened to ensure that there was no fight,

which she felt was unnecessary. She testified: “I don't think that anyone

necessarily needed to touch her, but that's just my personal opinion.” She

told Mr. Black (along with others) not to touch her sister, and he did not

do so any more. Vol. 13/843-849.

She and her sister went out into the parking lot. Her sister was

hysterical, and laid down, crying. They were then arguing about who was

going to drive when they heard a gunshot. They got in their car and left.

Vol. 13/849-850.

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as did Mr. Black. She saw Mr. Black put his hands on Kelsey Murrell,

K. Testimony of Robert Blake Norman.

Blake Norman testified that he was at Billiards and Brews on

December 27. He said that he was aware of a fight inside the bar, which

occurred after “somebody had said the N word.” This was the big man

with a hair bun named Alan. Alan had yelled this slur at one of Mr.

Norman’s friends, who is African-American, named Kelvin.

This

altercation then went outside and there was a fight in the parking lot.

When they moved outside, Mr. Norman learned that Mr. Lee had been

shot. Vol. 13/855-863; Vol. 13/870.

Mr. Norman assisted with CPR on Mr. Lee. He then went to tell

his friends that Mr. Lee was dying, and Alan Ford grabbed him by the

hair and pulled him into their altercation. Vol. 864. When he returned,

an officer was present. Vol. 13/865. He testified that he did not see any

weapons on the ground such as knives or guns. Vol. 13/865.

Justice Hall testified that she was friends with Mr. Black. He was

not her boyfriend and they did not date but they had had “overnight

relations” in the past. She also knew Carrie Phillips and Kelsey Murrell.

On that night at the bar, she saw Ms. Murrell “flirting with other people”

and “walking around to make sure that he [Mr. Hodge] saw her.” She did

not know or interact with Mr. Lee, although she saw him being

affectionate with Ms. Murrell. Mr. Hodge and Mr. Black were “brushing

it off.” Vol. 13/874-878.

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L. Testimony of Justice Hall.

On that night, Ms. Hall had kissed Mr. Black in the bar. When Ms.

Murrell “started to ramp up the things she was saying and doing,” she

saw Mr. Black “like, push her back,” but she did not hear anything he

said. An altercation broke out shortly after that, involving Mr. Ford,

although she did not know who it was with. Vol. 13/880-883.

She was asked about viewing the video in this case. She said she

had watched it with defense counsel. Vol. 13/883. Over objection, the

prosecutor asked her when she was contacted by defense counsel. Vol.

13/883. She explained that, a few months before, she had been called by

defense counsel, went into her office, and “stepped through the video,”

watching all of the videos. Vol. 13/884.

She testified that, after the altercation, she yelled at Mr. Ford in

defense of Mr. Black. She explained: “I don’t remember what was said to

him. I just didn’t like how Alan was approaching him.” Vol. 13/885. She

She went outside but did not hear the gunshot. She physically

confronted and pushed Mr. Ford. Vol. 13/887. She then heard someone

yell that someone had been shot. She went to see what had happened.

She did not see any guns or weapons. Vol. 13/888.

Later that night, she called Mr. Black to make sure he was okay.

He said he was fine. She told him that people had been shot, and he did

not give any response. Vol. 13/889. She called him again later, to hook

up, but did not meet with him. They did not talk about what happened

in the parking lot. Vol. 13/890. Days later, but prior to New Year’s, they

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explained that Mr. Black did not “say anything to him.” Vol. 13/886.

met up at a hotel in the Strawberry Plains area. Vol. 13/891. She was

asked:

Okay. And where -- what did you do at the hotel there?

We had sex.

Vol. 13/892. An objection was overruled. She explained that they stayed

the night together. Vol. 13/892.

The night after she stayed with Mr. Black she was contacted by

Investigator Thurman. She said that she did not then relay information

to Mr. Black that Investigator Thurman was asking questions about him.

After she learned that Mr. Black was a person of interest in the

investigation, she did not communicate further with him prior to his

arrest. Vol. 13/892-896.

On cross-examination, Ms. Hall testified that she spent the

majority of her time that evening talking to Mr. Black. He was “calm,

Mr. Lee. While she did see Ms. Murrell and Mr. Lee “being flirty,” she

did not discuss that with Mr. Black. Vol. 14/902. Mr. Black was not

intoxicated nor did she see him doing any cocaine. Vol. 14/904.

She testified that Caitlyn Elam (Mr. Ford’s ex-girlfriend) was

“talking to” or flirting with Kelvin Jackson.

Vol. 14/908-910.

She

explained that she had defended Mr. Black because she “didn’t like the

way [Alan Ford] was talking to him.” Vol. 14/912. She explained that, in

the parking lot, she had an altercation with Mr. Ford, because he “called

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like he usually is.” Vol. 14/901. She did not see Mr. Black interact with

[her] a bitch.” Vol. 14/917. That had nothing to do with Mr. Black. Vol.

14/917.

M.Testimony of Carrie Phillips.

Carrie Phillips testified that she had known Taylor Hodge for

seven-and-a-half years. They had a friendship and a sexual relationship.

She was not aware that he had a relationship with Kelsey Murrell. She

first learned that Ms. Murrell was Mr. Hodge’s ex-girlfriend during that

night, “because of her actions towards me.” She met with defense counsel

prior to the prosecutor asking her to meet with him. She was asked about

whether, when she talked to the prosecutor, she told him that she did not

have to answer his questions about who she had met with previously.

She said that her mother told her that she could decline to answer his

questions. Vol. 14/918-925.

She met Mr. Black for the first time that evening. He was “calm,

Mr. Black drove Mr. Hodge’s car. During the course of the night, Ms.

Murrell became “verbally aggressive towards” her. She was “belligerent,”

“hostile,” and was taunting her. Vol. 14/935. Ms. Phillips eventually

decided “I’m going to have to fight this girl, ‘cause she keeps coming after

me.” Vol. 14/937-938. At some point, she became aware of a second

skirmish, although she was not sure who was involved. Vol. 14/939. She

was not aware of Mr. Lee and did not hear a gunshot. Vol. 14/941-942.

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cool, collec[ted].” Vol. 14/926. Mr. Hodge rode with her in her car, and

She went home with Mr. Hodge as planned. The next day she gave

him a ride to Knoxville. Vol. 14/943. She dropped him off at a Wendy’s

where Mr. Black was. Vol. 14/944.

cross-examination,

she

testified

that

she

had

communications with Mr. Black since that night, and was no longer

dating Mr. Hodge. Vol. 14/963.

N. Testimony of Taylor Hodge.

Taylor Hodge testified that Mr. Black is his first cousin.

Vol.

15/969-970. He agreed that he had met with defense counsel in the case,

and gone through videotapes with them. Vol. 13/971.

Mr. Hodge testified that Mr. Black was like a brother growing up.

Vol. 15/976. They continued to be close. Vol. 15/976-979. Mr. Hodge

came to Tennessee from Pennsylvania on December 20. He was driving

a 2010 silver Ford Fusion. It has a damaged right rear bumper. Vol.

He had previously been in an on again, off again relationship with

Kelsey Murrell. Vol. 15/980-981. There was an ugly breakup around

Halloween of 2020. They had no communication after that. Vol. 15/982.

He went in the car with Ms. Phillips to Billiards and Brews, while

Mr. Black drove Mr. Hodge’s car. Once inside, he saw Ms. Murrell. They

initially had a friendly greeting, but later she was “saying some

profanity” to Ms. Phillips and seemed to be trying to antagonize him by

“being all over other people,” including Mr. Lee. At one point, he ended

up back-to-back with Mr. Lee and Ms. Murrell. Mr. Black got up to

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15/980.

defuse the situation. Vol. 15/991-997. Mr. Hodge did not see exactly what

Mr. Black did, because he was watching Ms. Phillips. Vol. 15/998. Ms.

Murrell tried to throw a punch at Ms. Phillips, and was taken outside by

the bouncer. Vol. 15/998.

There was then a separate fight. Mr. Hodge remembered the “big

dude with the man bun” yelling “the N word.” He said he did not know

whom it was directed toward. He said: “It wasn’t at my cousin. There

was a group of black people in there.” Vol. 15/998-1000. He testified that

he did not recall Mr. Black going after that man. Vol. 15/1003. He

testified that he did not recall trying to find Mr. Black, knocking over a

barstool, or seeing Mr. Black go out the exit. Vol. 15/1005.

Mr. Hodge went outside when he heard a gunshot. He saw a big

fight, and somebody was “body slammed.” He was worried about the

whereabouts of his cousin because of this earlier altercation. He saw him

“flying.” Vol. 15/1006-1013. Mr. Black stopped and told him to get in the

car. That surprised him as he was planning to go home with Ms. Phillips.

Vol. 15/1013-1014. The driver’s window was down, and Mr. Black seemed

“very distraught” and “very scared.” After he left, Mr. Hodge called Mr.

Black and had a short conversation. He told him that someone had been

shot. Mr. Black acted “dumbfounded” or “clueless.” Vol. 15/1016.

The next day, he learned that someone had died in the shooting. He

called Mr. Black to see if he was okay and to plan to get his car back.

When they met, they talked about the death.

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driving around the parking lot, and had told investigators that he was

distraught, scared, nervous.” He told Mr. Hodge that “he was the one

that did it,” because “he felt threatened.” He told Mr. Hodge that he

needed to paint the car and remove the stickers and get out of Knoxville.

Vol. 15/1016-1020. Mr. Hodge duly left Knoxville before he had planned

to. Vol. 15/1021.

Mr. Black told Mr. Hodge that it was the “dude in the bar with all

the tattoos with Kelsey,” meaning Mr. Lee. Vol. 15/1021. He explained

that he “felt threatened” when Mr. Lee “came at the car.” Mr. Hodge

thought Mr. Black said that Mr. Lee had a knife, although he no longer

remembered exactly. Vol. 15/1022. Mr. Hodge explained that he had told

an investigator, regarding this conversation, that “he could have been

bullshitting me.” Vol. 15/1024.

Mr. Hodge was asked about the text messages he sent to Ms.

Murrell blaming her. He said that it was “just an immediate response”

her because she started everything by wanting to fight Ms. Phillips. Vol.

15/1025-1027.

Mr. Hodge went to North Carolina, to meet with his business

partner. He agreed that he knew that Mr. Black had killed someone but

did not tell authorities. He explained: “It’s my cousin. I was just scared.”

Vol. 15/1028-1032.

On cross-examination, Mr. Hodge testified that he felt he had been

misled by the investigators when he had been interviewed in

Pennsylvania. He testified that he answered their questions for over two

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and that he regretted saying that. He explained that he attributed it to

hours, spending “almost the entire day” with them. He said they left

handcuffs on him for an hour and a half. He clarified that he did not

remember whether Mr. Black said that he thought he saw a knife; he

remembered only that “he said he felt threatened and he came at him.”

Vol. 16/1034-1043.

Mr. Hodge testified that he served in Afghanistan and spent a year

in an inpatient program for PTSD, which can lead him to “shut down a

bit” when confronted about killing. Vol. 16/1044-1045.

Mr. Black was in a good mood that night.

Vol. 16/1051-1052.

Neither one was bothered by Ms. Murrell. Vol. 16/1051-1052. Once the

altercation between the women began, Mr. Hodge tried to defuse the

situation and Mr. Black put his body physically between them. Vol.

16/1053. He clarified that, when Mr. Ford had used the racial slur, Mr.

Black had confronted him and told him to stop. Vol. 16/1055. When Mr.

it,” as they were there to “have a good time.” Vol. 16/1057.

O. Testimony of Jarrett Norman.

Knoxville Police Department patrol officer Jarrett Norman

responded to the scene, and his body camera was introduced.

Vol.

17/1095-1098; Exhibit 114. He testified that he did not see or collect any

weapons at the scene. Vol. 17/1103.

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Black argued with Mr. Ford, Mr. Hodge told him that it was not “worth

P. Testimony of Firearms Expert.

Sergeant Brian Dalton described and identified a “muzzle flash” on

the video on the left side driver’s area of the vehicle. Vol. 17/1108-1123;

Exhibits 115 – 118.

Q. Testimony of Medical Examiner.

Dr. Mileusnic-Polchan testified as the chief medical examiner for

Knox County. She conducted the autopsy of Mr. Lee. His toxicology

report indicated a blood-alcohol level of 0.06, as well as cocaine and

cocaine metabolites, marijuana, and an antidepressant. The injury to

Mr. Lee was a gunshot wound to the chest, which entered the left chest,

perforated the heart, lacerated the lung, and exited the back near the

spine. Vol. 17/1135-1147. That gunshot was the cause of death. Vol.

17/1149. There was no evidence of “close-range firing,” due to the absence

of any gunshot deposit on the clothing. Vol. 17/1155. That could mean it

as close as two feet. Vol. 17/1161.

R. Testimony of T-Mobile Representative.

Michael Bosillo, a representative of T-Mobile, introduced records

showing that the last successful incoming or outgoing call to Mr. Black’s

cell phone was on January 6. Vol. 17/1163-1180.

S. Testimony of Knox County Officer.

Knox County Sheriff’s Officer Phillip Whitaker testified that

attempted to serve a warrant on Mr. Black on January 6 at his mother’s

condo. He was not there. Vol. 14/1183-1188.

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was over three feet, depending on the gun. Vol. 17/1158. It could also be

T. Testimony of Dylan Williams.

Knoxville Police Department investigator Dylan Williams testified

that he helped to obtain a search warrant for phone records of Mr. Hodge

and Mr. Black, in an effort to find Mr. Black based on his phone location.

He was involved in a meeting on January 6, 2021, at East Town Mall in

the parking lot with himself, Sgt. Rodney Patton, Lt. Brian Morrow, Jeff

Black (Mr. Black’s father), and Chloe Akers (trial counsel for Mr. Black).4

The purpose of the meeting was to let them know that there was a firstdegree murder warrant for Mr. Black, and that he should turn himself

in. After that meeting, there were no more pings from Mr. Black’s cell

phone. The final ping on the phone was on January 6, 2021, and was in

Knoxville. Vol. 18/1203-1213.

U. Testimony of Carlos Figueira.

Los Angeles Police Department detective Carlos Figuiera testified

California. Vol. 18/1216-1222.

III. EVIDENCE PRESENTED BY THE DEFENSE.

A. Testimony of Richard Qulia.

Richard Qulia, a retired F.B.I. Special Agent, was called as a

defense witness. Vol. 19/1272-1279.

Mr. Black was represented at trial by two attorneys, Chloe Akers

and Don Bosch.

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that on January 28, 2021, he assisted in arresting Mr. Black in

1. Proffer and ruling.

The court conducted a jury-out proffer. In that proffer, Mr. Qulia

testified that he had viewed the video of the shooting several times. He

was shown the video with a view of Mr. Lee in the parking lot. He

testified that he saw something in Mr. Lee’s right hand. Using the

software functions, he was able to view the image carefully. He testified:

[T]hat still right there -- and there’s another still when he’s

closer to the car -- there’s an object that appears to be in his

hand that is characteristic of a semi-automatic, full-size

pistol.

Vol. 19/1280-1281. He indicated that he could not “testify definitely” that

it was a full-size, semi-automatic pistol. Vol. 19/1281. He identified a

photograph of an FN .45 caliber pistol, and said that it “possess[es] the

characteristics” of the video of Mr Lee. Vol. 19/1283.

The court excluded this testimony, saying: “The jury can look at

2. Testimony to the jury.

Mr. Qulia testified that magazine (from Mr. Lee’s truck) would hold

fifteen bullets, but that there were fourteen in the photograph. Vol.

19/1289.

B. Testimony of Dr. Timothy Allen.

Timothy Allen, an expert psychiatrist, explained the effects of

cocaine on the body, including the euphoric high; elevated heart rate and

heightened senses; and also impulsive and aggressive behavior.

explained that snorting powder cocaine would get it into the bloodstream

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that just as well as he could.” Vol. 19/1284.

immediately.

He also explained the combined effects of alcohol and

cocaine:

[T]he combination of those two drugs at the same time tend to

have a greater effect than you might expect. It's not one plus

one equals two, it's one plus one equals three.

Vol. 19/1316. He testified that the effects of cocaine would appear within

a minute of snorting cocaine. Vol. 19/1319.

He was shown the video of Mr. Lee ingesting cocaine at Billiards

and Brews. He indicated that there was a “pretty substantial amount”

of cocaine used. Vol. 19/1324. He described the potential effect of this:

“[Y]ou're hyperaware of everything, but you're not able to process it all,

like, calmly and rationally.” Vol. 19/1327. He looked at a video of Mr.

Lee in the parking lot. He said that Mr. Lee was “walking in a very

aggressive stance.” Vol. 19/1331. He also described another video of Mr.

Lee as being “aggressive” and acting “in a very determined manner,

Vol.

19/1333. Finally, Dr. Allen testified that, in the video showing Mr. Lee

approaching Mr. Black’s car:

So he's walking, the car stops, he stops, looks at the car, walks

pretty aggressively towards the front -- or to the driver's side.

He's not, again, meandering. It was intense. It looks

aggressive. It looks like purposeful, fast movement, consistent

with everything we've talked about.

Vol. 19/1335. He finally testified that, in his expert opinion, Mr. Lee was,

more likely than not, suffering from the “known side effect of

cocaethylene, increased rage or aggression at the time of this incident.”

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hiking out of there, again, seeming very intent and intense.”

Vol. 19/1337. On cross-examination, he agreed that aggression was a

“lower side effect” of cocaine than hypervigilance and euphoria. Vol.

19/1348-1349.

He agreed that he was being compensated for his

testimony. Vol. 19/1349. He agreed that he had not talked to any of the

people present, including Mr. Black. Vol. 19/1352-1353.

C. Stipulation.

The parties stipulated that, if called to testify, Lt. Darrell Griffin of

the Knoxville Police Department would say, based on his personal body

camera, that when Investigator Thurman arrived, Chandler Jackson,

Clark Longmire, and Mallory Hayes were no longer present at the scene.

Vol. 19/1365.5

IV.

CLOSING ARGUMENTS.

A. Initial Closing Argument for the State.6

“working hard and finding” witnesses, contending that if there had been

no video, the death “would be an unsolved crime, because not one person

came forward.” Vol. 20/1391. He noted that Mr. Hodge and Mr. Black

left, saying: “Why would somebody … flee from a crime scene?

…

Because they’re guilty.” Vol. 20/1391.

This conflicted with Investigator Thurman’s initial testimony that

he had spoken to them at the scene.

Certain improper arguments are set forth in greater detail below.

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The prosecutor noted Investigator Thurman’s “vigilance” in

The prosecutor repeated his theory of the case that Mr. Black had

been “humiliated by man bun, Jeffrey Alan Ford,” and that he had circled

around for a confrontation. He contended that Mr. Ford had made a

motion, “shooting the gun at him” in the bar, and that Mr. Black had

responded:

I’m Landon Black. I got a gun in my car. Or did he have it in

his pocket? Either way, it’s either in the car or it’s in his

pocket.

Vol. 20/1393. He continued that Mr. Black’s decision had then changed

from “I’m going to get you now” to “I’m going to do a drive-by like a

coward…. I’m going to do a drive-by.” Vol. 20/1393. He contended, Mr.

Black pulled his car around, the firearm must have been “at the ready,”

meaning: “Ready for that drive-by.” Vol. 20/1394.

The prosecutor testified that, because Mr. Black later told Mr.

Hodge that it had been “the tatted dude,” that Mr. Black “knew exactly

he’d been humiliated and insulted.” Vol. 20/1394.

After discussing premeditation, the prosecutor turned to selfdefense. He argued that Mr. Lee raised his arm and then lowered both

arms. Vol. 20/1398. He contended that there was no need for selfdefense. He also emphasized that the court was going to instruct the jury

that Mr. Black had a duty to retreat. Vol. 20/1399.

B. Closing Arguments for the Defense.

Defense counsel began by contending that: “[A]t the end of the day,

[the prosecutor] has never, ever answered the question we said at the

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who it was.” He continued: “[B]ecause he was primed and ready. Because

very beginning. This is a case of why. Why did this happen?” Vol.

20/1402. Counsel agreed that Mr. Black shot Mr. Lee. He argued that

Investigator Thurman had jumped to conclusions, without “trying to

understand why did this happen.” Vol. 20/1402.

Defense counsel then discussed Mr. Lee’s gun, which he was known

to carry in his truck. He noted that there was a clip of ammunition found

in his truck. Vol. 20/1403.

Defense counsel pointed out that, at the start of the case, the

prosecutor had indicated that the State did not know who the man with

“man bun” was, even though Investigator Thurman knew his name, knew

about his mother, and had tried to call him twice. Vol. 20/1405. Showing

the video, counsel pointed out Mr. Ford, and his ex-girlfriend, Caitlyn

Elam, who was interacting with Kelvin Jackson.

Vol. 20/1405.

contended that Mr. Ford was not looking at Mr. Black, but at Mr. Jackson

[H]e’s upset. He’s mad. And what’s he doing? He’s using the

most awful insult that he can use to Kelvin Jackson. He’s

pointing at him. He’s making gestures. And he’s using the N

word. He’s not calling Hank the N word. He’s pointing at

Kelvin Jackson, who’s killing and hugging on his girlfriend[,]

and screaming the N word.

Vol. 20/1407. Mr. Black got in the middle of it because that was “not

right.” The bouncers and the crowd then ran Mr. Ford out. Vol. 20/1407.

Counsel repeated that Mr. Black had no interaction with Mr. Lee that

night, and neither of them were paying “any attention to each other.”

Vol. 20/1409.

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(who was Black), “which makes a heck of a lot more sense”:

As last call was being made, people started to leave. Mr. Lee then

did some cocaine. That can make people “aggressive” and make them

irrational. Vol. 20/1410-1411. Mr. Longmire and Mr. Lee started to

leave. On his way out, Mr. Lee turned back in an “aggressive” manner,

getting “right in the fray.” Vol. 20/1411.

Mr. Black then came around and stopped “well behind Mr. Lee.”

Defense counsel continued: “[Mr. Lee] walks right up to the car. He puts

hir right hand up and his left hand.” Vol. 20/1412. There was then the

flash of the muzzle: “Hank Black, in fear for his life, shoots him one time.

One time. Not a drive-by, not some shot, shot, shot, shot, shot, like so

many of us tragically are familiar with. One time, when Brandon Lee

sticks his arm and leans into Hank Black screaming, ‘What the fuck?’.”

Vol. 20/1412.

He discussed the video showing something in Mr. Lee’s hand,

Vol. 20/1414. He suggested that Chandler Jackson was “trying to cover

for his friend” when he changed his story to say that Mr. Lee did not have

a gun.

Vol. 20/1414. The gun was later found in the house where

Chandler Jackson also lived. Vol. 20/1415.

To explain how the gun could have gotten to the house, defense

counsel also noted another car that drove by, with its door open, after Mr.

Lee was shot. Chandler Jackson ran up to that car. Counsel suggested

that he could have put the gun in the car at that time. Vol. 20/1416. He

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saying: “It’s not a set of keys. It’s more ominous and larger than that.”

noted that Mr. Jackson had denied doing that, but had also admitted

being dishonest to Investigator Thurman. Vol. 20/1416.

Defense counsel said that the State was wrong in claiming that Mr.

Black assaulted Ms. Murrell. In fact he was trying to calm her down.

Vol. 20/1421-1422. Finally, defense counsel observed that Mr. Black had

not fled to Alaska or New York. He had merely gone back to California

where he worked. Vol. 20/1426.

C. Rebuttal Argument for the State.

In rebuttal, the prosecutor began by commenting on the defense

So that entire argument was prefaced on the understanding

that you're going to throw out your common sense. That's

what he just sat up here for however long and said, throw out

common sense, don't even consider things that you actually

see with your own eyes on the video, like the whole thing

about him yelling at Jeff -- at some other guy across the

cocktail table, when you can see him honing in on the

defendant and his two buddies coming in on the defendant.

That's common sense. Why -- how, possibly, you could

conclude otherwise when you see it with your own eyes. He's

asking you to reject your sensibilities.

Vol. 20/1430. He characterized counsel’s argument that Mr. Lee had a

gun as “wild imagination.” Vol. 20/1431. He said that if Mr. Black had

acted in self-defense, he would have gone to the police station or called 91-1. Vol. 20/1431. The prosecutor said that the video did not suggest that

Mr. Lee had a gun hidden in his clothing while in the bar. Vol. 20/1433.

He said that counsel’s contention that Mr. Ford was yelling about his exgirlfriend was a “wild imagination.” Vol. 20/1434.

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closing. He stated:

The prosecutor argued that it did not matter that Mr. Black had

shot Mr. Lee with only one shot: “And you can see he dropped him like a

rock, right through the heart. Didn’t need anymore bullets, saving those

for man bun.” Vol. 20/1438.

The prosecutor contended that the photograph that the defense

indicated showed a gun in fact showed “a big carabiner on it and a big old

fat Chevy fob.” Vol. 20/1439.

The prosecutor discussed Mr. Hodge, claiming that he had been

“tricked” by defense counsel about what the video showed, and that he

had backtracked on his initial story to Investigator Thurman that Mr.

Black had told him that Mr. Lee had a knife.

Vol. 20/1441.

The

prosecutor continued: “[W]hen you were with Investigator Thurman, you

used the word knife and that you thought he was bullshitting.” Vol.

20/1441.

ingestion of cocaine turned Mr. Lee into “the Incredible Hulk.”

suggested that the proof did not support that theory. Vol. 20/1442-1443.

VERDICT.

The jury found Mr. Black guilty of second-degree murder. Vol.

21/1487.

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The prosecutor suggested that the defense was contending that

ARGUMENT

THE STATE WAS ALLOWED TO ATTACK THE

INTEGRITY OF DEFENSE COUNSEL THROUGH

EVIDENCE AND ARGUMENT.

A. Introduction.

In the give-and-take of the adversarial trial, it is not uncommon for

advocates to battle aggressively with their opponents. But even then,

there is always a recognition that the trial is about the evidence against

the defendant, not about the character, ethics, or diligence of opposing

counsel.

Here, unusually and with baleful consequences, the State

instead deliberately chose to attack defense counsel personally. These

attacks fundamentally distorted the trial and may well have had an

adverse effect on the jury. They should not be countenanced by this

Court.

B. Summary of Relevant Facts.

As part of its theory of the case, the State contended that Mr. Black

had learned that a charge had been lodged against him and then sought

to flee and hide out in California. In particular, the State contended that

officers had met with Mr. Black’s father, Jeff Black, and others at East

Town Mall in Knoxville, and told him that his son was wanted for firstdegree murder. The State contended that, within forty-five minutes of

that meeting, Mr. Black powered off his cell phone, thus making it

impossible for law enforcement to track his phone. See Vol. 7/290-292.

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1. The meeting at the mall.

The implication was that word had traveled from that meeting to Mr.

Black, who turned off his phone and then left the area.

That was perhaps a permissible argument reflecting consciousness

of guilt on his part.

The State took it another step, however, by

presenting (over objection) evidence that defense counsel, Chloe Akers,

was also at the meeting. It had highlighted her presence in opening

statement:

They arrange to meet with him at the East Town Mall. And

Jeff Black arrives with his attorney, Chloe Akers, at the East

Town Mall. And they inform him, we have a first-degree

murder warrant for his son. He needs to turn himself in,

January 6th. Hank Black, then, within 45 minutes -- you're

going to see the phone records -- powers off his phone.

Vol. 7/292.7 It then elicited testimony from Dylan Williams that Chloe

Akers was at the meeting with Jeff Black and other officers at noon on

January 6. See Vol. 18/1198-1203 (objection); Vol. 18/1209.

The State took great care to question every favorable witness as to

whether he or she had met with defense counsel. See, e.g., Justice Hall

(Vol. 13/883, over objection); Taylor Hodge (Vol. 15/970); Carrie Phillips

(Vol. 14/920-924). As to Ms. Phillips, the prosecutor implied that defense

counsel had told her that she did not have to talk to the prosecutor

During trial, defense counsel clarified, in a bench conference, that

she was not present at that time as the attorney for either Mr. Black or

his father, but rather as a courtesy to a family member of Mr. Black who

worked in her office. Vol. 18/1196.

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2. Meeting with witnesses.

(although she said instead that her mother had told her that). Vol.

14/925.8 As to Mr. Hodge, the prosecutor implied directly that defense

counsel had somehow managed to plant the defense theory of the case in

him. The prosecutor questioned Mr. Hodge:

Q. And as a matter of fact, you sat down with them and went

through videotapes in the case, right?

A. Yes, sir.

Q. And it was then, through that discussions, that you made

some determinations about, in your mind, what had happened

in the case?

No, sir.

Vol. 15/970.

3. Closing arguments.

The prosecutor then carried this approach into closing argument,

which became as much an attack on defense counsel as a summation of

the potential witnesses, the prosecutor accused counsel of manipulating

them:

Police tactic 101, you don't feed information to a witness that

they then spit out and pair it back to you. You get information

from them about what they know. You're not going to sit down

with them, like the defense did with every witness, and show

the video and then convince them -- like they did with Taylor

Hodge somehow, by showing that phony frame … saying it

was a firearm in his hand …. It was his keys.

The defense offered an objection to this line of questioning by the

prosecutor about his discussion with Ms. Phillips. Vol. 14/923-924.

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the evidence. Mentioning again the fact that defense counsel met with

Vol. 20/1434-1435.9

Shortly thereafter, the prosecutor repeated this

contention:

Taylor, before he came in here, he had been to the defense

attorney's office, reviewed the videotape and found, based on

that, that he -- he had been tricked about what the video -what the video actually showed. And what is it you think that

he was shown, the trick? Obviously, the frame of the gun to

help his cousin. Because then he comes in here and he tries to

back pedal on what he said three different times to Thurman.

Vol. 20/1441.

C. Summary of Applicable Law.

Decisions regarding admission or exclusion of evidence are

reviewed for abuse of discretion. State v. Banks, 271 S.W.3d 90, 116

(Tenn. 2008). If an abuse of discretion is found, then a defendant is

entitled to relief if the error “more probably than not affected the

judgment or would result in prejudice to the judicial process.” Id.

the defendant’s guilt but on defense counsel. As one court has written:

“[T]he prosecutor may not challenge the integrity and ethical standards

of defense counsel unless the prosecutor has certain proof of an offense

and the matter is relevant to the case being tried.” United States v.

Murrah, 888 F.2d 24, 27 (5th Cir. 1989).

There was a contemporaneous objection lodged to this argument.

The trial court offered nothing beyond an anodyne request: “If we focus

on the defense arguments, please.” Vol. 20/1434-1435.

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Courts have cautioned prosecutors against attacks not merely on

D. Application of Law to Facts.

This issue represents the cumulative effect of the State’s repeated

efforts to besmirch defense counsel. The State was allowed to introduce,

over objection (and with no real factual basis), information that placed

defense counsel in the middle of a hypothesized effort to help Mr. Black

evade authorities. Even if the meeting at the mall was somehow relevant

to Mr. Black’s state of mind and his decision to turn off his phone, the

fact that defense counsel was present added nothing except serving to

suggest that she was herself acting improperly. The defense objected for

that very reason to the danger of “prejudice and confusion,” saying that

the State was making it look “very odd and potentially inappropriate,”

even though it was not. Vol. 18/1198. The State never articulated any

reason as to why the jury needed to know that it was Ms. Akers, and not

just an unnamed attorney, who was present at the scene, yet it was

was error.

The State then also questioned its own witnesses about the times

they met with defense counsel. Again, this kind of testimony is not

improper per se, but when highlighted so incessantly it has the danger of

chilling the effective assistance of counsel. Counsel, of course, has a duty

to investigate a case and talk to potential witnesses, and zealous pursuit

of that duty should not be used against a defendant. Here, crucially, the

State went further and implied two additional, sinister facts (neither

with any factual basis): first, that defense counsel had told Ms. Phillips

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determined to introduce that fact and the court allowed it to do so. This

not to talk to the District Attorney; and second, that defense counsel had

tried to use the video to confuse or influence the testimony of witnesses

such as Mr. Hodge. Vol. 14/925; Vol. 15/970. This insinuation that

counsel suppressed information and fabricated testimony was grossly

improper.

Nor did these insinuations remain subtle. Rather, having raised

these suspicions, the prosecutor made them explicit in closing argument.

There, he directly accused defense counsel of using a “phony” image and

successfully having “trick[ed]” Mr. Hodge into changing his story. Vol.

20/1434-1435; Vol. 20/1441.

All of this went beyond the line of permissibly advocacy. This Court

has written: “The prosecution is not permitted to reflect unfavorably

upon defense counsel or the trial tactics employed during the course of

the trial.” State v. Gann, 251 S.W.3d 446, 460 (Tenn. Crim. App. 2007)

Eighth Circuit wrote in a similar case:

These types of statements are highly improper because they

improperly encourage the jury to focus on the conduct and role

of [defense] attorney rather than on the evidence of [the

defendant’s] guilt. Such personal, unsubstantiated attacks on

the character and ethics of opposing counsel have no place in

the trial of any criminal or civil case.

United States v. Holmes, 413 F.3d 770, 775 (8th Cir. 2005). Such an

attack hurts the defendant as well as his counsel, as accusations of

underhanded conduct by counsel “severely damage an accused's

opportunity to present his case before the jury.” Bruno v. Rushen, 721

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(citing Watkins v. State, 140 Tenn. 1, 203 S.W. 344, 346 (1918)). As the

F.2d 1193, 1195 (9th Cir. 1983); Fortune v. State, 837 S.E.2d 37, 42 (S.C.

2019); State v. Lindsay, 326 P.3d 125, 130 (Wash. 2014) (“Prosecutorial

statements that malign defense counsel can severely damage an

accused's opportunity to present his or her case and are therefore

impermissible”).

Through the decision of the prosecutor, the case thus became not

merely about the evidence against the defendant, but about the honesty

and professionalism of defense counsel. This had an impact on the ability

of counsel to even present a defense, as the jury may have regarded their

questions, and their arguments, with skepticism due to the prosecutor’s

attacks on the defense counsel working for the defendant. If the State

views defense counsel as unethical, perhaps the jury will conclude their

words and arguments should be taken with an extra grain of salt. This

was error and reversal is required. The evidence in this case was hotly

also substantial evidence to conclude that he had been in a state of

passion even if he had not acted in self-defense. Consequently, this

strategy of impugning defense counsel cannot be deemed harmless.

II.

THE STATE’S CLOSING VIOLATED NUMEROUS

PROHIBITIONS ON PROPER ARGUMENT.

A. Summary of Applicable Law.

1. Limitations on closing argument.

Noting that the task of the prosecutor is to seek justice and not

merely to win, the courts have imposed limitations on what is appropriate

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disputed as to whether Mr. Black acted in self-defense, and there was

closing argument. “While the scope and depth of closing argument is

generally a matter within the trial court's discretion, the State is not free

to do what they wish.” State v. Jones, 568 S.W.3d 101, 145 (Tenn. 2019).

Courts have explained that a prosecutor’s comments during closing

argument must be “temperate, predicated on evidence introduced during

the trial, relevant to the issues being tried, and not otherwise improper

under the facts or law.” State v. Johnson, 401 S.W.3d 1, 20 (Tenn. 2013).

This Court in State v. Goltz, 111 S.W.3d 1, 5 (Tenn. Crim. App.

2003), highlighted several areas of improper argument. Among other

things, it is improper for the prosecutor to “misstate the evidence or

mislead the jury as to the inferences it may draw,” to “use arguments

calculated to inflame the passions or prejudices of the jury,” and to “refer

to or argue facts outside the record unless the facts are matters of

common public knowledge.”

In order to be entitled to relief on appeal based on a claim of

improper prosecutorial argument, the defendant must “show that the

argument of the prosecutor was so inflammatory or the conduct so

improper that it affected the verdict to his detriment.” State v. Farmer,

927 S.W.2d 582, 591 (Tenn. Crim. App. 1996); see State v. Buck, 670

S.W.2d 600, 609 (Tenn. 1984) (setting out factors to consider).

Unpreserved claims are reviewed for plain error. State v. Enix, 653

S.W.3d 692, 701 (Tenn. 2022) (setting out plain error factors).

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2. Standard of review.

Finally, improper prosecutorial argument can violate a defendant’s

constitutional right to a fair trial. See Berger v. United States, 295 U.S.

78, 88 (1935); Darden v. Wainwright, 477 U.S. 168, 181 (1986).

B. Application of Law to Facts.

1. Introduction.

There were significant holes in the State’s case, including the lack

of evidence of any hostility or dispute between Mr. Black and Mr. Lee and

the limited, and contested, video evidence of the moments before the

shooting. Facing these holes in closing argument, rather than carefully

arguing the actual relevant evidence and the reasonable inferences that

could be drawn therefrom, the prosecutor instead presented a closing

argument that violated virtually all of the guidelines for proper

argument.

It presented speculative and implausible conjecture as

established fact; misstated pieces of evidence; altered the applicable legal

actual record; denigrated the defense and defense counsel; and urged the

jury to respond out of emotion. In doing so, it went so far beyond the

bounds of permissible argument as to require a new trial.

2. Speculation.

Rather than focusing on the evidence properly admitted at trial, the

prosecutor produced a string of speculative claims as to what happened.

He contended, as the State had done throughout the case, that Mr. Black

had been “humiliated” by Mr. Ford. Vol. 20/1393. He later repeated that

Mr. Black had been “humiliated and insulted,” as he walked to the car.

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standard as to self-defense and the burden of proof; went beyond the

Vol. 20/1394.

There was no evidence from any percipient witness

suggesting that this was true. The prosecutor further suggested that Mr.

Ford had mimed shooting a gun at him (“with his hand, the shooting the

gun at him”), and that Mr. Black had responded: “Buddy, you shooting a

gun at me? I got a gun. I’m Landon Black.” Vol. 20/1393. This elaborate

interpretation of a muddled video that shows, at most, Mr. Ford briefly

pointing vaguely in the direction of Mr. Black (and of dozens of other

people) was an elaborate fantasy without a basis in admitted evidence.

In response to this invented finger-gun play, the prosecutor

contended, Mr. Black decided: “I’m going to do a drive-by like a coward.”

Vol. 20/1393. Again, there was no proof whatsoever that Mr. Black

decided then (or ever) to engage in a drive-by shooting. Nor was there

any proof that Mr. Black used only one bullet for Mr. Lee, as the

prosecutor then asserted, because he was “saving those for man bun.”

While a prosecution can urge a jury to draw certain reasonable

inferences from the evidence, it cannot (as here) simply invent a version

of events on the most tenuous of bases and then present it to the jury as

fact. Such arguments will tempt the jury to believe that, because the

prosecutor is so certain of these things, there must be other evidence or

information known to the prosecutor, and will distract (or confuse) it from

the relevant and admitted evidence.

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Vol. 20/1438.

3. Factual errors.

In his closing, the prosecutor also misstated a few key facts. He

criticized Justice Hall for having sex with Mr. Black in a motel after

having interviewed with the police and not mentioning to him that they

were asking him questions. Vol. 20/1440. The actual evidence was that

her sexual encounter with Mr. Black occurred prior to, not after, her

being interviewed by police. Vol. 13/892-894. He also contended that Mr.

Hodge had told Investigator Thurman that he “thought [Mr. Black] was

bullshitting” (meaning lying) in his claim of self-defense, Vol. 20/1441,

when Mr. Hodge actually testified only that he was unsure, saying: “I

thought he could have been bullshitting me,” Vol. 15/1024, a small but

significant difference. In a case of this nature, it is important for the

State to stick to the actual facts, not to embroider or distort them.

4. Information beyond the record.

contended that none of the expert studies regarding crack cocaine were

relevant to this case, as it involved powder cocaine. He then strangely

offered his own analogy: “[I]t was a common experience, if you're a kid or

not, there's a difference between smoking a cigarette and putting a plug

of tobacco in your mouth, there's a different way of ingesting things.” Vol.

20/1442. This argument was apparently intended to imply that because

the impact of smoking a cigarette is more immediate than chewing

tobacco, Dr. Allen’s testimony based on studies of crack cocaine should be

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In his discussion of the expert testimony of Dr. Allen, the prosecutor

discounted. Yet there was no evidence in the record about the differential

impact of cigarettes and chewing tobacco or the accuracy of this analogy.

5. Burden shifting.

The State also shifted the burden of proof. In response to the

defense contention that the State had pretended not to know the name of

Mr. Ford, referring to him only as “man bun” even though Investigator

Thurman had identified him, the prosecutor said:

Investigator Thurman thinks it's Jeffrey Alan Ford. Jeffrey

Alan Ford won't afford himself. And you heard from

Investigator Thurman that people do that all the time. There

were even security guards that wouldn't cooperate in this

case. And you can't make people come in. And the defense has

no burden in any case, but they do have the power to

subpoena.

Vol. 20/1445.10 A defendant has no burden or production or persuasion

in a criminal case, and is perfectly entitled to do nothing more than test

that the defense should have called witnesses, was constitutionally

improper.11

There was a prompt objection to this burden-shifting argument.

The defense objected and the court responded only: “The basis of the

defense objection is to remind you, once again, the defendant has no

burden of proof, which is true.” Vol. 20/1446.

The argument was particularly misguided as it implied that the

State could not “make people come in,” Vol. 20/1445, when of course the

State can compel people to testify at trial.

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the evidence presented by the State. The prosecutor’s remark, indicating

6. Name-calling of the defendant.

The Supreme Court has explained: “It is improper for the

prosecutor to use epithets to characterize a defendant.” State v. Thomas,

158 S.W.3d 361, 414 (Tenn. 2005); State v. Bane, 57 S.W.3d 411, 425

(Tenn. 2001) (“the prosecutor may not engage in derogatory remarks or

name calling”). Here, the prosecutor instead chose to call Mr. Black a

“coward.” Vol. 20/1393 (“I’m going to do a drive-by like a coward”).

7. Denigration of the defense.

As already mentioned above, the prosecutor repeatedly attacked

the defense itself (not merely the defense proof). He argued in its initial

closing that the defense was trying to distract the jury through its

questioning (at this point, defense counsel had not even made a closing

argument yet). Vol. 20/1395 (“[I]f you got the facts on your side, you

pound the facts. If you got the law on your side, you pound the law. If

trying to make points to distract somebody from the real issue.”). This

was improper. See, e.g., State v. West, 767 S.W.2d 387, 395 (Tenn. 1989)

(“It was improper for the district attorney to tell the jury that defense

counsel was ‘trying to throw sand in the eyes of the jury’ and ‘blowing

smoke in the face of the jury’ ”).

He also claimed in his rebuttal argument that the defense had

directly asked the jury to disregard common sense, when the defense had

made no such argument. Vol. 20/1430 (“That's what he just sat up here

for however long and said, throw out common sense, don't even consider

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you got neither, you pound the podium. You just hit the podium, keep

things that you actually see with your own eyes”). He then criticized

defense counsel for arguing that Mr. Ford had yelled at Kelvin Jackson,

saying: “He [defense counsel] actually stood up here with a wild

imagination and said … [Mr. Ford is] actually yelling at somebody who’s

on the other side of the table because that guy’s flirting with his [exgirlfriend.”

Vol. 20/1434.

Yet this was not the product of defense

counsel’s “wild imagination,” but rather the direct testimony of Blake

Norman, the State’s own witness, which the prosecutor simply ignored.

Vol. 13/870.

The prosecutor combined all of this with the arguments discussed

above, in which he accused the defense of “trick[ing]” a witness by the use

of a “phony” photograph. Vol. 20/1434-1435. See State v. Zackary James

Earl Ponder, No. M2018-00998-CCA-R3-CD, 2019 WL 3944008, at *12

(Tenn. Crim. App. Aug. 21, 2019) (improper to accuse defense of trying to

just the defendant but the whole defense team in the eyes of the jury.

8. Legal error.

As to the issue of duty to retreat (discussed in further detail below),

the prosecutor misleadingly implied that this duty would preclude Mr.

Black from acting in self-defense in any way. He contended “that this

defendant, in this case, under these circumstances had a duty to retreat.

Had a duty to retreat.” Vol. 20/1399. What the prosecutor omitted was

that this is only a duty to retreat if possible to do so safely, and that the

duty to retreat does not mean that a defendant is barred from engaging

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“trick” the jury). All of this was impermissible, designed to denigrate not

in self-defense. See State v. Perrier, 536 S.W.3d 388, 404 (Tenn. 2017) (“a

duty to retreat does not mean that a person cannot defend herself or

himself”). The prosecutor’s comments suggested the contrary -- that Mr.

Black was required to try to retreat even if he could not do so safely. This

was incorrect.

9. Emotional plea.

Perhaps most egregiously, the prosecutor appealed directly to the

sympathy of the jurors. See State v. Cribbs, 967 S.W.2d 773, 786 (Tenn.

1998) (“the State may risk reversal by engaging in argument which

appeals to the emotions and sympathies of the jury”). The Supreme

Court “has consistently cautioned the State against engaging in victim

impact argument which is little more than an appeal to the emotions of

the jurors, as such argument may be unduly prejudicial.”

State v.

Thacker, 164 S.W.3d 208, 253 (Tenn. 2005). Yet that is exactly the kind

family in Iowa: “You know, a family in Iowa crying. Knoxville would have

soon forgotten about it.” Vol. 20/1392. He then returned to this idea:

[T]here was a lot of talk about Taylor Hodge up here about,

you know what, dividing his family and how his family -- you

know, it's going to be a rough Thanksgiving for Taylor Hodge,

right? 'Cause he testified against his cousin. Well, how

would you like to be that family in Iowa at

Thanksgiving? It's going to be rough Thanksgiving

there, too, because of the decisions that he made to take a

human life, 'cause he was hacked off.

Vol. 20/1396 (emphasis added). This exhortation to the jury to consider

(and even place themselves in the position of) Mr. Lee’s grieving family

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of argument presented here. Early in his closing, he alluded to Mr. Lee’s

was grossly improper.

It served no conceivable purpose other than

inflaming the jury by injecting emotional considerations into the case.

10.

The combined errors require reversal.

Whether evaluated for plenary or plain error (or a combination

thereof),12 the arguments cited above were improper and require

reversal. In the context of this hotly-disputed case, the prosecutor’s

improper arguments were not offered gratuitously, but rather were

intended to serve a purpose: to discredit the defense and take the jury’s

focus off any legitimate doubts about the State’s version of events. The

error cannot be considered harmless (or, as to the constitutional issue of

burden-shifting, harmless beyond a reasonable doubt). For the same

reasons, these improper arguments deprived Mr. Black his due process

III. THE STATE INFRINGED ON MR. BLACK’S RIGHT TO

REMAIN SILENT.

A. Summary of Applicable Law.

The Fifth Amendment right to remain silent also prohibits

prosecutorial comment on, or a jury drawing an adverse inference of guilt

from, a defendant's decision not to testify at trial. Griffin v. California,

As noted above, there was contemporaneous objection to some of

these arguments (the burden shifting and the accusation of using a phony

photograph) but not to others. As to those unpreserved issues, the record

is clear, there was no reason for counsel to let these harmful arguments

go unchecked, and substantial justice requires relief.

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right to a fair trial. A new trial is required.

380 U.S. 609 (1965). Article I, § 9 of the Tennessee Constitution provides

similar protection. State v. Transou, 928 S.W.2d 949, 960 (Tenn. Crim.

App. 1996).

Claims that the State has infringed on the right to remain silent

are reviewed de novo. State v. Jackson, 444 S.W.3d 554, 585 (Tenn.

2014). Any error requires reversal unless shown by the State to be

harmless beyond a reasonable doubt. Id. at 591.

B. Application of Law to Facts.

A defendant has a right to remain silent, without that fact being

used against him.

This right applies both to trial and to pretrial

proceedings after being charged and arrested. Here, Mr. Black did not

testify at trial. Other than in a very limited way through Mr. Hodge, the

jury never heard Mr. Black’s version of events. However, the failure of

Mr. Black to testify or to otherwise provide a full statement after arrest

convict him.

The State was allowed, nonetheless, to highlight to the jury that

Mr. Black did not talk to his own expert about the events on the night in

question. It questioned him:

Q. Okay. And Ms. Akers said that you've never spoken to

Hank Black?

A. No.

Q. Okay. And don't you think that the jury, obviously, would

want to hear -- you're making an opinion about the victim in

this case, right, about his aggressive behavior, right?

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was not something that could be considered by the jury as a reason to

A. Yes.

…

Q. But you're employed by this person right here, right?

A. Yes.

Q. The guy that supposedly encountered him in an aggressive

state, right?

A. True.

Q. And so wouldn't you think that it would be important,

before you came in and told a jury that this guy's high on

cocaine and all aggressive, that you might actually speak to

the human being who encountered him?

Vol. 19/1350. At this point, the defense objected. The Court said that

this was a permissible line of questioning but reminded the jury that Mr.

Black had a right to remain silent. The prosecutor nonetheless decided

Q. So you testified -- or you told the jury, you're coming in here

giving them an opinion you're paid for to say that the victim

was aggressive, but you've talked to not one single person who

encountered the victim on that evening, right?

A. Right.

Q. Including the person who is here on trial and you're here

testifying for, correct?

A. True.

Q. Okay. And you don't think that would be important to know

that information to form your opinion, right?

Vol. 19/1352-1353.

The implication of this line of questioning was clear -- that the jury

should disregard Dr. Allen’s testimony, and the defense case in general,

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to repeat this point again:

because Mr. Black had not provided his version of events to Dr. Allen.

Further, the likely reason he had not provided his version of events was

because it would not have been helpful to his case. Yet that is the process

of inference that is prohibited by the constitution.

Any cautious

prosecutor will stay far away from this kind of inquiry, yet here the

prosecutor jumped into it with gusto.

In the context of this case, the State cannot establish that this

constitutional error was harmless beyond a reasonable doubt. In a case

of this type, where there was an interaction and only two people could

have known exactly what happened (Mr. Black and Mr. Lee), with the

jury hearing from neither of them, the jury would naturally have been

curious to know what Mr. Black’s testimony would have been.

Reminding the jury, in one of the last witnesses of the case, that Mr.

Black had not shared his story to anyone -- even though it was something

calculated to encourage the jury to think about that prohibited topic. A

new trial is required.

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the “jury, obviously, would want to hear,” Vol. 19/1349-1350 -- was

IV.

THE TRIAL COURT ERRED IN ALLOWING THE STATE

TO PRESENT ITS THEORY OF THE CASE THROUGH

THE

OPINIONS

THE

INVESTIGATOR

INTERPRETING THE VIDEOS. THE COURT ERRED IN

REFUSING TO ALLOW THE DEFENSE WITNESSES TO

OFFER AN OPINION AS TO WHAT HE SAW ON THE

VIDEO.

A. Summary of Applicable Law.

1. Lay opinion testimony.

The Supreme Court has explained: “[N[on-expert witnesses must

confine their testimony to a narration of the facts based on first-hand

knowledge and avoid stating mere personal opinions or their conclusions

or opinions regarding the facts about which they have testified.” State v.

Brown, 836 S.W.2d 530, 550 (Tenn. 1992). The admission of lay opinion

testimony is limited to those situations where the jury cannot readily

draw its own conclusions on the ultimate issue without the aid of the

(Tenn. 1987).

2. Expert opinion evidence.

The admission of expert testimony is governed by Tennessee Rules

of Evidence 702 and 703. See Daubert v. Merrell Dow Pharms., Inc., 509

U.S. 579 (1993); McDaniel v. CSX Transp., Inc., 955 S.W.2d 257 (Tenn.

1997). Under this framework, the trial court functions as a gatekeeper.

First, the trial court must determine whether the witness is “qualified as

an expert by knowledge, skill, experience, training, or education” to offer

an opinion on the issue at hand that “will substantially assist the trier of

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witness's opinion testimony. Blackburn v. Murphy, 737 S.W.2d 529, 533

fact.” Tenn. R. Evid. 702. Then, the trial court must ensure that the facts

and data forming the basis of the expert's opinion “adequately support[ ]

the expert's conclusion.” State v. Stevens, 78 S.W.3d 817, 834 (Tenn.

2002); see Tenn. R. Evid. 703.

3. Constitutional right to present a defense.

A defendant has a right to present a defense under both the federal

and state constitutions. Holmes v. South Carolina, 547 U.S. 319, 324

(2006); State v. Brown, 29 S.W.3d 427 (Tenn. 2000).

4. Standard of review.

As noted above, decisions regarding admission or exclusion of

evidence are reviewed for abuse of discretion. Banks, 271 S.W.3d at 116.

Violation of the constitutional right to present a defense requires reversal

unless it is harmless beyond a reasonable doubt. See Brown, 29 S.W.3d

at 436.

1. The trial court erred in allowing Investigator

Thurman to narrate the State’s theory of the case

from the witness stand.

The essence of a trial is the presentation of evidence from witnesses

with first-hand knowledge.

Conclusions and inferences from this

evidence are left to the jury as the finders of fact.

Here, the State

introduced numerous videos that showed events prior to and including

the shooting. Because of the number of individuals shown, the quality of

the videos, and the absence of audio, those videos left many unanswered

questions. To answer these questions, the State was also allowed to

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B. Application of Law to Facts.

present (over objection) the testimony of Investigator Thurman as to

what he believed those videos showed. This was improper. He was not

a percipient witness with first-hand knowledge, see Tenn. R. Evid. 602,

and was in no better position to evaluate the events on the videos than

the jurors were.

In the context of non-expert officer testimony regarding recorded

transactions, the Sixth Circuit has explained:

The officer's lay opinion is admissible “only when the law

enforcement officer is a participant in the conversation, has

personal knowledge of the facts being related in the

conversation, or observed the conversations as they occurred.”

United States v. Kilpatrick, 798 F.3d 365, 379 (6th Cir. 2015).

The

Supreme Court of Kentucky has also emphasized the requirement of

personal knowledge. It has written:

Boyd v. Commonwealth, 439 S.W.3d 126, 131 (Ky. 2014).

Here,

Investigator Thurman was allowed to opine regarding events that he had

no personal knowledge of, as he had not been present at the bar during

the time leading up to or following the shooting.

Some of his editorial testimony regarding the videos was relatively

innocuous, such as pointing out the undisputed identity of individuals.

But much of it went further, crossing the line into interpretation. He

testified regarding Ms. Murrell gesturing “over towards Mr. Hodge,” and

Mr. Lee looking “over that way” in response.

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[W]itnesses are limited to a description of events when

narrating video footage and any interpretation of that footage

is improper.

testified that Mr. Black, at one point, “appears to be looking directly at”

Mr. Lee and Ms. Murrell, and that he “continu[ed] to look at” them. Vol.

10/516. He said that, in the initial dispute, Mr. Black “advances towards

Ms. Murrell,” and that there was “physical contact between Mr. Black

and Ms. Murrell.” Vol. 10/517. He described the two men who were with

Mr. Ford as “face to face” with “physical contact” with Mr. Black. Vol.

10/517. He said that Mr. Ford then “appear[ed] to take notice of what’s

going on,” and moved towards him. He said that Mr. Black made “a

flanking motion.” Vol. 10/518. As to events in the parking lot, he testified

that Mr. Black’s car was “moving quickly” compared to other cars, and

had “heavy brake pressure applied.” Vol. 10/534. He testified that Mr.

Lee moved to the side of the vehicle and there was “some movement there

about his upper body with his arms,” and then “very quickly,” there was

“what I believe to be a muzzle flash.” Vol. 10/535. He said that, at the

his side.” Vol. 10/535-536. All of this testimony was improper. This was

all just his opinion, purportedly based on the videos. The jury was in the

same position to make its own decision as to the videos.13 Admission of

this testimony was error.

There is an additional aspect of the problem in this case making

erroneous admission even more harmful.

The jury was aware that

Defense counsel objected to him “editorializing it and sort of reading

into it when you weren't there and you don't have a basis of knowledge is

what our objection is.” Vol. 10/494.

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time of that muzzle flash, it “appears to me that his arms are down by

Investigator Thurman had talked to numerous witnesses, including

individuals that did not testify, and taken statements that could not have

been and were not introduced into evidence as they were hearsay. The

jury may have decided to credit Investigator Thurman’s opinions about

the video because he had additional information that they did not. Yet

to the extent that Investigator Thurman’s comments were based on

information learned from other sources, they were indirect hearsay and

inadmissible for that reason.

2. The trial court erred in refusing to allow the defense

to present opinion evidence that a frame in the video

was consistent with a firearm.

A related, or opposite, issue arose during the defense case. The

defense sought to present testimony, in the form of expert evidence from

a retired FBI agent, that the item in Mr. Lee’s hand shown in the video

was consistent with a gun. He testified in his jury-out proffer: “[T]here’s

automatic, full-size pistol.” Vol. 19/1280-1281. This opinion was based

on his viewing the video several times, using the functions of the video

software and informed by his expertise with firearms. Vol. 19/1279. The

court excluded this testimony. It said that his testimony would not help

the jury, as “The jury can look at that just as well as he could.” Vol.

19/1284.

In short, having allowed the State to introduce Investigator

Thurman’s opinion testimony, despite the claim that the jury was equally

capable of viewing the videos, the court refused to allow the defense to

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an object that appears to be in his hand that is characteristic of a semi-

present probative evidence because the jury could view the videos just as

well as the witness could. What was good for the goose was apparently

not good for the gander. This was error, and given that it went to one of

the key disputes at trial -- whether Mr. Lee had a weapon when he

approached Mr. Black -- it cannot be deemed harmless. Further, the

refusal to allow the defense to present probative information from a

qualified expert violated Mr. Black’s constitutional right to present a

defense.

THE TRIAL COURT ERRED IN ADMITTING EVIDENCE

THAT MR. BLACK HAD SEX WITH JUSTICE HALL DAYS

AFTER THE HOMICIDE.

A. Summary of Applicable Law.

1. General rule for relevant evidence.

Although relevant, evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or

by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.

Claims of improper admission of evidence are reviewed for abuse of

discretion. See State v. Robinson, 146 S.W.3d 469, 490 (Tenn. 2004).

Admission of improper evidence may violate the federal right to due

process if the consequences are so pernicious as to deny the defendant a

fair trial. See Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974).

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Tenn. R. Evid. 403 provides:

2. Special rule for prior bad acts.

Rule 404(b) prohibits admission of evidence of “other crimes,

wrongs, or acts to prove the character of a person in order to show action

in conformity with the character trait.” Tenn R. Evid. 404(b). Under the

rule, such evidence may be admissible “for other purposes,” which include

motive, intention, and identity. See State v. Berry, 141 S.W.3d 549, 582

(Tenn. 2004). Other act evidence may be admitted for these purposes

only after certain requirements have been met. Tenn. R. Evid. 404(b). In

general, a court should take a restrictive approach to admitting evidence

under Rule 404(b) because of the potential that the jury will be unfairly

influenced. State v. Dotson, 450 S.W.3d 1, 76 (Tenn. 2014).

3. Standard of review.

If the trial court substantially complies with the procedural

requirements of Rule 404(b), admission of evidence is reviewed for abuse

649, 652 (Tenn. 1997); State v. Franklin, 308 S.W.3d 799, 809 (Tenn.

2010). However, if the trial court fails to substantially comply with the

requirements of the rule, then the trial court's decision should be afforded

no deference by the reviewing court. DuBose, 953 S.W.2d at 652.

B. Application of Law to Facts.

The State introduced evidence that Justice Hall met with Hank

Black in the days after the homicide. She testified that they met at a

hotel around New Year’s. This evidence was plausibly related to the

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of discretion, as are rulings under Rule 403. State v. DuBose, 953 S.W.2d

State’s theory that Justice Hall was aligned with Mr. Black or that Mr.

Black was trying to avoid detection by staying in a hotel.

Not content with establishing that fact, though, the State wanted

to show what they did when they met, which was to have sex. The State

directly asked her:

Q. And where did you meet up with him?

A. Off Strawberry Plains.

Q. Where at?

A. At a hotel. I don't remember what the hotel was called.

Q. Okay. And where -- what did you do at the hotel there?

A. We had sex.

...

Q. What did you do at the hotel there?

A. We had sex.

A. Yes.

Vol. 13/891-892.14

The State clearly wanted to establish that Mr. Black had sex with

Ms. Hall. This evidence was governed by Rule 404(b). Although it is not

illegal, many people will consider sexual intercourse between two

unmarried individuals (particularly two who were never even in a

“dating” relationship according to Ms. Hall, Vol. 13/876) to be morally

Defense counsel objected in the middle: “I would object and

move….” The court cut her off by overruling the objection. Vol. 13/892.

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Q. Okay. Stayed the night with him?

wrong. See State v. Clark, 452 S.W.3d 268, 289 (Tenn. 2014) (404(b)

covers moral wrongs, not only criminal acts).

Consequently, this

evidence was admissible only under the heightened standards of Rule

404(b), including that it addressed some issue other than character and

that its probative value was not outweighed by its prejudicial effect.

Here, the evidence that Ms. Hall and Mr. Black had sex on New Year’s

had no probative value whatsoever.

Yet it portrayed Mr. Black’s

character (and Ms. Hall’s as well) in a negative way. Rule 404(b) exists

precisely to prevent this kind of irrelevant character attack. Further,

even under the relaxed standard of Rule 403, given the utter lack of

probative value and significant prejudice, this evidence was not

admissible.

This error was not harmless.

Evidence directly attacking the

character of the defendant in a case of this type can only have had an

evidence in closing argument.

Vol. 20/1440.

This evidence was

improperly admitted, and a new trial is required.

VI.

THE TRIAL COURT ERRED IN INSTRUCTING THE

JURY THAT MR. BLACK HAD A DUTY TO RETREAT

PRIOR TO USING FORCE IN SELF-DEFENSE.

A. Statement of Relevant Facts.

1. Finding under Perrier.

On the issue of the self-defense instruction, in a jury-out proceeding

the State presented certified copies of California felony convictions for

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effect on the jury. It is not coincidental that the State highlighted this

Mr. Black. It contended that Mr. Black was thus in unlawful possession

of a weapon as a convicted felon. Vol. 18/1227.

The court ruled that Mr. Black was therefore engaged in unlawful

conduct by being a felon in possession of a firearm. It continued:

So under Perrier, the Court does find that he was engaged in

unlawful conduct. And I also find that it has a direct nexus to

this incident here, because it was that unlawful conduct, that

where he had a gun in his possession, that was connected to

the murder -- or the killing, I should say, of -- of Mr. Lee. And

so it's not like he was recklessly driving through the parking

lot and that -- or speeding down Interstate 40. So I do find

that, under Perrier, he was engaged in unlawful conduct that

was -- had a nexus to this event.

Vol. 18/1231.

2. Self-defense instruction given to the jury.

As to self-defense, the court instructed the jury in accordance with

In this case, the law of self-defense requires the defendant to

have employed all means reasonably in his power, consistent

with his own safety, to avoid danger and avert the necessity

of taking another's life. This requirement includes the duty

to retreat in this case, if, and to the extent, that it can be done

in safety.

Exhibit 126 at 8; Vol. 21/1461-1462.

B. Summary of Applicable Law.

1. The self-defense regime established in Perrier.

In State v. Perrier, 536 S.W.3d 388, 397 (Tenn. 2017), the Supreme

Court established the scope of any duty of an individual to retreat prior

to engaging in self-defense under Tenn. Code Ann. § 39-11-611(b). It first

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the pattern jury instructions. It then instructed on his duty to retreat:

rejected the idea that someone engaged in unlawful act

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.