Court of Criminal Appeals of Tennessee, Nashville
Session February 11, 2015.
Appeal from the Circuit Court for Grundy County No. 4957 Thomas W. Graham, Judge.
Stephen T. Greer, Dunlap, Tennessee, for the appellant, Kurt Brewer.
Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel; T. Michael Taylor, District Attorney General; and Steve Strain, Assistant District Attorney General, for the appellee, State of Tennessee.
Robert L. Holloway, Jr., J., delivered the opinion of the Court, in which Thomas T. Woodall, P.J., and Timothy L. Easter, J., joined.
ROBERT L. HOLLOWAY, JR., JUDGE.
Factual and Procedural Background
The Defendant and Corey Henry, the victim, had been friends since grammar school. The Defendant was also friends with the victim's cousins, Jason and Jazmin Sweeton. On the afternoon of July 29, 2012, the Defendant telephoned Ms. Sweeton in an effort to find Mr. Sweeton. The Defendant had been trying to call Mr. Sweeton and believed Mr. Sweeton was ignoring him. The Defendant was angry over $25 that he claimed the victim owed him, and he told Ms. Sweeton that she needed to get in touch with her brother and the victim or "he would blow bullet holes in whatever they were driving." Ms. Sweeton sent a text to her brother and asked where the victim was.
Mr. Sweeton, Brittany Johnson, and the victim were drinking beer in Mr. Sweeton's parent's yard. Mr. Sweeton said his cell phone was in his car so that the battery could be charged. When he checked his phone, he noticed that he had missed calls from the Defendant and his sister and a text from his sister. Mr. Sweeton telephoned his sister, and she asked where the victim was. Mr. Sweeton handed the phone to the victim. Based on what the victim told him about the conversation with Ms. Sweeton, Mr. Sweeton called the Defendant and asked him what was wrong. The Defendant asked where the victim was. Mr. Sweeton told the Defendant that he and the victim were at Mr. Sweeton's mom's house drinking beer and told him "to come on down." The Defendant said, "[W]ell, I'm about to pull in, and if I don't get my money I'm going to put a bullet in his head." Shortly thereafter, the Defendant arrived at the Sweeton home, exited his vehicle, and immediately confronted the victim demanding his money. The two argued "face to face." The victim shoved the Defendant away, and as the Defendant was backing away, he pulled out a gun and pointed it at the victim. The victim was smiling and said, "Are you going to shoot me? Just go ahead and shoot me[.]" The Defendant cocked the hammer on the revolver and began firing at the victim from about eight to ten feet away. The victim was struck two times in his left leg and fell to the ground. The Defendant walked to where the victim lay and fired another round striking the victim. The Defendant got back into his car and left the scene.
Mr. Sweeton's mother called 911, and the sheriff and an ambulance arrived a few minutes later. Mr. Sweeton testified the victim was unarmed. On cross-examination, Mr. Sweeton admitted that he told the sheriff's investigator that the victim "slapped" the Defendant. He also confirmed he never told the investigator that the Defendant approached the victim and shot him a third time after the victim was initially wounded. Mr. Sweeton also told the investigator he did not think the Defendant was trying to kill the victim because he was firing at the victim's legs. Mr. Sweeton did not know the victim had been shot in the back until the paramedics arrived and turned him over. Mr. Sweeton explained he was in "shock" at the scene but later that night he had time to reflect on what happened.
Brittany Johnson testified that, when the Defendant arrived at the scene, the Defendant exited his vehicle screaming, "where my F-ing $25." She said the Defendant's girlfriend, Jordan Bradford,  remained in the Defendant's car. The Defendant and the victim got face-to-face, and the victim pushed the Defendant back and said, "You really going shoot me over $25?" The Defendant pulled a gun from behind his back and fired four or five times. Ms. Bradford exited the car screaming, "I can't believe you just shot him." They then got in the Defendant's car and left.
Ms. Johnson said the victim did not have any kind of weapon. Ms. Johnson had been dating the victim for five years at the time of the incident. She said the victim sometimes carried her "little 32 derringer" and sometimes carried a "22 pistol." On cross-examination, Ms. Johnson admitted telling the investigator at the scene that the victim "smacked [the Defendant] with his open hand." She also said that the Defendant was about ten feet from the victim when he opened fire.
Sheriff Brent Myers testified that, when he arrived at the scene, EMT Jared Meeks was administering aid to the victim and Deputy Leslie Turner and Sergeant Jason Coffelt had secured the scene. Sergeant Coffelt did not find a weapon at the scene. Sheriff Myers said there was no weapon in the victim's pants. The sheriff went to the residence of Quinton Bradford, the father of the Defendant's then-girlfriend. The Defendant was there and told the sheriff "you want [sic] have any problem out of me" and offered his hands to be ...