Assigned on Briefs May 6, 2014
Appeal from the Criminal Court for Shelby County No. 06-04223 Honorable Paula L. Skahan, Judge
Varonica R. Cooper, Memphis, Tennessee, for the Petitioner-Appellant, Joseph Pollard.
Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Kevin Rardin, Assistant District Attorney General, for the Appellee, State of Tennessee.
Camille R. McMullen, J., delivered the opinion of the court, in which Joseph M. Tipton, P.J., and Alan E. Glenn, J., joined.
CAMILLE R. McMULLEN, JUDGE
The Petitioner was indicted by a Shelby County jury for first degree murder, attempted voluntary manslaughter, and aggravated assault following the fatal shooting of his ex-girlfriend, Katrina Hayes. The shooting occurred in the victim's driveway in front of her two teenage children, each of whom testified at trial as eyewitnesses to their mother's death. K.H., the victim's daughter testified that the [Petitioner], pulled into [their] driveway behind them, blocking them in the carport. He came up to the victim's door and demanded that she get out of the car and "stop f---ing with him." K.H. saw a gun in his hands. The victim pleaded with him and told her children to run. As K.H. and her brother were getting out of the car and running away, she heard three shots. She and her brother ducked behind the defendant's car, but then her brother ran across the yard, and the defendant fired a shot at him. They both began running down the street, and the defendant got into his car and drove away in the opposite direction. K.H. called 911 and was present when the paramedics arrived and began working on the victim. K.H. testified that the victim had dated the defendant for approximately one year, but she had ended the relationship the week prior to her death because the defendant began using crack cocaine.
On cross-examination, K.H. agreed that she originally told police that she did not see the gun.
State v. Joseph Pollard, No. W2008-02436-CCA-R3-CD, 2010 WL 1874641, at *1 (Tenn. Crim. App. May 11, 2010), perm. app. denied (Tenn. Nov. 10, 2010).
A.H., the victim's son, corroborated K.H.'s testimony and testified that he was not injured when the defendant shot at him. Id. A patrolman with the Memphis Police Department responded to the victim's house, observed the victim lying in a pool of blood on the ground next to her van, and spoke to the victim about what happened. Id. The victim was alert and in non-critical condition when the ambulance transported her. Id. The Petitioner was taken into custody the next day on an unrelated charge. Id. at *2. At the time of his arrest, the Petitioner was in possession of a loaded Ruger pistol, which was later found to be consistent with the bullet cartridges retrieved from the scene of the shooting. Id. After he was advised of his Miranda rights, the Petitioner told an investigator "that he had seriously messed up" and "that [the investigator] knew very well that he didn't need to give a statement because his butt was going to rot in jail." Id.
The proof from the Petitioner's trial most relevant to the issues raised in his petition for post-conviction relief pertains to the medical testimony provided by Dr. Karen E. Chancellor, the Shelby County Medical Examiner, and Dr. O'Brian Cleary (O.C.) Smith, a forensic pathologist and former Shelby County Medical Examiner, an expert offered by the defense.
[Dr. Chancellor] testified that the victim received two gunshot wounds. One entrance wound was located on the left side of the victim's abdomen. The bullet passed through her body, damaging blood vessels, internal organs and bones, and exited through her left buttock. The second entrance wound was located on the back of the victim's right arm. The bullet broke the bones in the arm and exited through the front of the arm. Dr. Chancellor testified that the gunshot wound to the victim's abdomen caused hemorrhaging that resulted in her death.
On cross-examination, Dr. Chancellor testified that the victim was in exploratory surgery for three hours after the shooting. The surgeons estimated that she lost twelve liters of blood. Dr. Chancellor said that the normal human body holds five liters of blood. Dr. Chancellor testified that both of the victim's wounds were perforated, meaning the bullet exited the body.
[Dr. Smith] testified that one .45 caliber round would have been capable of causing both of the victim's gunshot wounds by entering and exiting her arm and then entering and exiting her torso. He further testified that the victim expired ...