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State v. Ellison

Court of Criminal Appeals of Tennessee, Jackson

December 10, 2014

STATE OF TENNESSEE
v.
CALVIN ELLISON

Assigned on Briefs October 21, 2014 at Knoxville

Appeal from the Circuit Court for Madison County No. 13-292 Roy B. Morgan, Jr., Judge

George Morton Googe, District Public Defender; Jeremy B. Epperson, Assistant Public Defender, Jackson, Tennessee, for the appellant, Calvin Ellison.

Robert E. Cooper, Jr., Attorney General and Reporter and Tracy L. Alcock, Assistant Attorney General; Jerry Woodall, District Attorney General and Al Earls, Assistant District Attorney General, for the appellee, State of Tennessee.

Robert L. Holloway, Jr., J., delivered the opinion of the Court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.

OPINION

ROBERT L. HOLLOWAY, JR., JUDGE

Factual and Procedural Background

A Madison County Grand Jury indicted the Defendant, Calvin Ellison, for the following charges:

Count

Charge

Victim

1

Attempted First Degree Murder

Joshua Cathey

2

Aggravated Assault

Joshua Cathey

3

Aggravated Assault

Princess Cathey

4

Employing a Firearm During the Commission of or Attempt to Commit a Dangerous Felony: Attempted First Degree Murder

Joshua Cathey

After a trial, the petit jury returned a verdict finding the Defendant guilty of the lesser-included offense of misdemeanor reckless endangerment in count one; guilty of aggravated assault in count two; not guilty of aggravated assault in count three; and guilty of employing a firearm during the commission of a felony in count four. The Defendant raises three issues on appeal: (1) whether the trial court erred in excluding a portion of the defense expert's testimony; (2) whether the conviction for employing a firearm during the commission of or attempt to commit a dangerous felony should be overturned; (3) whether there is sufficient evidence to sustain the Defendant's convictions. We affirm the judgments of the trial court.

Prior to trial, the State moved to prohibit the defense's expert witness from giving any testimony that commented on or evaluated evidence or testimony provided by another witness. At a hearing, the State argued that the defense's witness was an expert in the field of ballistics, not videography, and as such, he should be precluded from judging the credibility of witnesses by comparing his findings to a video of the incident. The Defendant argued that he did not intend to ask the expert witness if he believed other witnesses were telling the truth; he simply wanted to ask whether the other witnesses' prior statements were consistent with the expert's findings. We note, however, that the Defendant did not give an offer of proof as to what his expert witness's response would be.

The trial court held that defense's expert witness could comment on ballistic evidence. However, unless the Defendant could demonstrate that the witness had expertise in videography such that he would be providing the jury with information that they could not otherwise get by watching the video themselves, the defense's expert witness could not give his opinion on what he saw in the video. Further, the trial court held that the defense's expert witness could not comment on the credibility of any other witness, because such comments would invade the province of the jury to weigh the witnesses' credibility.

Joshua Cathey testified that on the night of December 22, 2011, he lived one block away from the convenience store where the shooting took place. Around 7:00 or 7:30 that evening he and his wife drove to the convenience store to pick up a loaf of bread and parked on the side of the curb opposite the store. Mr. Cathey went into the store, and while inside he saw the Defendant. Mr. Cathey made his purchase and left the store, and the Defendant followed him outside. As Mr. Cathey was walking to his vehicle, the Defendant stated, "[w]hat's up with that s?" Mr. Cathey testified that he believed the Defendant's comment was referencing a previous disagreement they had regarding the Defendant communicating with Mr. Cathey's wife. Mr. Cathey got into his vehicle, but the Defendant walked toward the car, pulled out a gun, and pointed it at Mr. Cathey. At that time, Mr. Cathey's wife, who was in the front seat, ducked down into the floorboard, and Mr. Cathey put his head down and drove away. As he was driving away, he heard "several" gunshots – some of which struck the vehicle. Mr. Cathey described the damage to his vehicle stating that the driver-side rear window had been shattered, a bullet was lodged in the driver-side rear window frame, and the front passenger-side tire was flat.

Mr. Cathey confirmed that he heard the gunshots as he was driving away. He further admitted that his wife had a cell phone with her in the vehicle when the shooting occurred, but they waited until they had returned home to call the police – "a couple of minutes after [the shooting] happened." Mr. Cathey further testified that the Defendant was three to five feet away from the driver-side window when he saw the gun.

Through Mr. Cathey, the State introduced a copy of a surveillance video from the convenience store taken on the evening in question. The video shows Mr. Cathey inside the store with the Defendant and other individuals. Additionally, the video shows footage from an outside camera, which appears to show the parking area in front of the convenience store as well as a portion of the street. Footage from this angle shows an individual, later identified by Mr. Cathey as the Defendant, come into the frame at the top of the screen. He appears to be running toward the convenience store from across the street. A car passes immediately behind him and turns away from him. The Defendant turns around and raises his arm toward the vehicle. The vehicle then exits the screen on the upper left corner, and the Defendant exits the screen to the upper right corner.

Princess Cathey testified that she accompanied her husband to the store on the night of the shooting around 7:00 or 7:30 p.m. While Mr. Cathey was in the store, Mrs. Cathey remained in the vehicle. She observed Mr. Cathey leave the store and the Defendant follow him. She stated that the Defendant said something to Mr. Cathey, and Mr. Cathey got into the vehicle. Once Mr. Cathey was inside the vehicle, Mrs. Cathey saw the Defendant standing "about three to five feet [from the vehicle]" holding a gun. At this point, Mrs. Cathey ducked down onto the floorboard of the vehicle as Mr. Cathey drove away. She heard about five or six gunshots but admitted that she was not counting them. Mrs. Cathey said that she called law enforcement once they had returned home.

On cross-examination, Mrs. Cathey admitted that the Defendant could have been standing as close as two feet from the vehicle but maintained that "he was close" and standing on the driver-side of the vehicle. She maintained that their vehicle was parked on the side of the street opposite the store at the time the shooting occurred.

Officer Corey Insalaco with the Jackson Police Department testified that he responded to a call of a shooting around 7:30 p.m. on December 22, 2011. When he arrived at the Catheys' residence, he spoke with Mr. and Mrs. Cathey and took photographs of their vehicle. He described the damage to the vehicle's window frame and stated that he pulled a bullet from the frame. He further stated that he had been given the Defendant's name as a possible suspect, but he did not speak to him that evening.

On cross-examination, Officer Insalaco stated that Mr. Cathey told him that the Defendant "displayed a handgun and pointed it at him through the window." He further stated that Mr. Cathey did not describe the Defendant as standing three to five feet away. Officer Insalaco also stated that it was his understanding that the Defendant was standing on the driver-side of the vehicle.

Officer Kevin Speck of the Jackson Police Department testified that he also responded to reports of a shooting around 7:30 or 8:00 p.m. on December 22, 2011. He first responded to the Catheys' home and then went to the location of the shooting. At the scene, Officer Speck recovered four spent shell casings. Three were collected across the street from the convenience store and one was collected by the dumpster, closer to the convenience store. No weapon was recovered from the scene. Officer Speck agreed that passing cars possibly could have scattered the ...


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