Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs December 16, 2014.
Appeal from the Criminal Court for Davidson County No. 2012-A-291 Cheryl A. Blackburn, Judge.
Dawn Deaner, District Public Defender, and Jeffrey A. DeVasher (on appeal) and Chad Hindman and Laura C. Dykes (at trial), Assistant District Public Defenders, for the appellant, Charzelle Lamontez Swafford.
Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Jeff Burks and Megan King, Assistant District Attorneys General, for the appellee, State of Tennessee.
John Everett Williams, J., delivered the opinion of the Court, in which Thomas T. Woodall, P.J., and Robert W. Wedemeyer, J., joined.
JOHN EVERETT WILLIAMS, JUDGE.
FACTUAL AND PROCEDURAL HISTORY
On October 1, 2011, a shooting occurred in the apartment of Sharika Mallory. Twenty-year-old Dajuantae Moore was killed, and Taurus Williams, who was seventeen at the time of trial,  suffered multiple gunshot wounds. Three teenagers present in the apartment escaped without injury. Witnesses implicated the defendant, who was subsequently charged with one count of first degree (premeditated) murder, four counts of attempted first degree (premeditated) murder, and employing a firearm during the commission or attempt to commit a dangerous felony. The defense strategy at trial was to show that many of the witnesses, who had close relationships with each other and were members of a gang, might be motivated to falsely implicate the defendant at the behest of a higher-ranking gang member.
On the day before the shooting, several people who witnessed the crime were at Ms. Mallory's apartment. Ms. Mallory testified that some guests were playing cards and some were watching television. Ms. Mallory's children and those of her friend were in the apartment. Also present were Dajuantae Moore, who was the victim of the homicide (the "victim"); Taurus Williams, Danny Hall, Markeal Moore,  and Diajanne Coward, who were victims of the attempted homicides; and the defendant and an unidentified friend of his. Several of those present had close relationships: Markeal Moore and Taurus Williams were brothers, and the victim was Mr. Moore and Mr. Williams's uncle. Diajanne Coward was Markeal Moore's girlfriend, and Danny Hall was Mr. Moore's best friend. Ms. Mallory was acquainted with the group because Mr. Moore and Mr. Williams's mother lived next door to her.
The witnesses testified to the gang affiliations of the persons present. Ms. Mallory, Ms. Coward, and Mr. Williams testified that the defendant, the defendant's cousin Gerald Farmer, and Mr. Moore were members of the Rollin' 40 Crips gang. Mr. Moore testified that Mr. Hall was also a member. Ms. Coward, Mr. Moore and Mr. Williams testified that Mr. Farmer was an "OG" in the gang, which was a higher rank than the others and which Mr. Moore stated was attained by committing violent acts.
At one point during the evening, an argument broke out between the victim and the defendant. Ms. Mallory testified that the argument began when the defendant was on the phone with Gerald Farmer. The defendant was naming the people at the apartment for Mr. Farmer, and he identified the victim as "Tae." The victim asked who was on the other line, and the defendant said, "[I]t's my cousin, it's cool." The victim then told the defendant, "[M]y name's not Tae, my name's Lil Nappy." Ms. Mallory testified that this was a disrespectful term for a member of the Rollin' 40 Crips gang. Because the subsequent argument was heated, Ms. Mallory asked the defendant to leave, and the defendant left with his friend. Ms. Mallory stated that Mr. Moore was not present during the argument.
Ms. Mallory testified that the defendant returned with two other men later that night. They wanted the victim to come out of the apartment, but Ms. Mallory did not let him go. Her impression was that they wanted to fight. Ms. Mallory testified that it was dark and she did not see them well, but one of the men with the defendant was big and one had dreadlocks. On cross-examination, she testified that she did not remember telling a detective that Gerald Farmer was one of the men with the defendant when he returned that night.
Ms. Mallory testified that Mr. Moore, Mr. Williams, the victim, her children, and her friend's children spent the night. The next day, Ms. Coward and Mr. Hall came over, and some of the group worked on fixing two motorized dirt bikes. Ms. Mallory testified that she and her friend went to get lunch for the children. The victim, Mr. Moore, Mr. Williams, Ms. Coward, and Mr. Hall remained in the house.
Ms. Mallory testified that she had only been gone around fifteen minutes when Ms. Coward called her, shouting, "Sharika, he killed Tae." Ms. Mallory returned as soon as she could and spoke with police. She identified the defendant from a photographic lineup and gave police the defendant's nickname, "C-Hell."
Ms. Coward testified that although she was there during the argument on the night of September 30th, she was not paying attention when it broke out and did not know the cause of the disagreement. She testified that Mr. Moore was not in the apartment the night before the shooting and that she herself did not spend the night and did not know if the defendant returned. Ms. Coward went back to the apartment the next day, and she estimated it was around 11:30 a.m. when the defendant returned. Ms. Coward, who was sixteen at the time of the trial in October 2013, testified that the defendant was alone and that the victim let him in. According to Ms. Coward, the defendant then said, "[W]hat you say your name was?" The victim did not respond, and the defendant shot him multiple times. The defendant then began to shoot towards the kitchen, where Mr. Williams and Mr. Moore were standing. He returned to the victim and shot him again. The defendant then turned his attention to Ms. Coward and Mr. Hall, both of whom ran upstairs. Ms. Coward saw the defendant point the gun at them and heard it make three clicking noises. She and Mr. Hall went into a bedroom, and the defendant attempted to force the door open in his pursuit. She estimated that a total of twelve shots were fired. When Ms. Coward heard the door close after the defendant left, she went downstairs and saw that the victim was unresponsive and lying face down. Ms. Coward later identified the defendant in a photographic lineup.
The trial court decided to allow the jurors to take a break after the direct examination of Ms. Coward. Although the trial court had on two occasions admonished the spectators to refrain from offering "any expression of emotion" in front of the jury and had instructed trial counsel to discuss proper demeanor with their witnesses, Ms. Mallory, who was observing the trial after having given testimony, began to rail at the defendant:
MS. SHARIKA MALLORY: You're a coward, and I hope they whip your b---- a--. I sure hope they get you.
THE COURT: Ladies and gentlemen, go on out. Please, move on out.
MS. SHARIKA MALLORY: I hope they get you, motherf---er.
Do you know how many lives you done ruined with your b---- a--?
[THE DEFENDANT]: Crazy. Crazy. (Inaudible.)
THE COURT: I need the jurors to leave the courtroom.
Defense counsel moved for a mistrial, noting that all the jurors had been in the courtroom while Ms. Mallory was speaking. The trial court denied the motion and when the jury returned, the trial court instructed the members of the jury:
Ladies and gentlemen, before you left the courtroom or while you were leaving there was some disruption in the courtroom. You are to disregard that completely. You cannot consider that for any purpose. Only the testimony of the witnesses from the witness stand and any evidence is what you are to consider. You are not to ...