Assigned on Briefs October 7, 2014
Direct Appeal from the Criminal Court for Shelby County No. 07-00466 Paula Skahan, Judge
Robert Parris (at trial and on appeal) and Carolyn Sutherland (at trial), Memphis, Tennessee, for the appellant, Gerald McEwen.
Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; Amy P. Weirich, District Attorney General, and Jennifer Nichols and Betsy Carnesale Wiseman, Assistant District Attorneys General, for the appellee, State of Tennessee.
Norma McGee Ogle, J., delivered the opinion of the court, in which Camille R. McMullen and Timothy L. Easter, JJ., joined.
NORMA MCGEE OGLE, JUDGE
I. Factual Background
In 2007, the appellant was indicted for the first degree murder of Nicholas Harris and the attempted first degree murder of Darren Champion. The charges resulted from a shooting that occurred in the parking lots of a First Tennessee Bank and a Mapco gasoline station, which were located on Hollywood Street in Memphis. The case proceeded to trial, and the appellant was convicted as charged. On appeal, this court affirmed the appellant's convictions. See State v. Gerald McEwen, No. W2009-00309-CCA-R3-CD, 2010 Tenn. Crim. App. LEXIS 841, at *1 (Jackson, Sept. 24, 2010). Subsequently, the appellant filed a petition for post-conviction relief. The petition was granted by the trial court, and the appellant was afforded a new trial, which is the subject of the instant appeal. On appeal, the appellant contends that the evidence was not sufficient beyond a reasonable doubt because the proof was based primarily on unreliable eyewitness testimony and that the trial court erred by denying the appellant's motion for a mistrial.
At trial, Earnestine Harris testified that one of the victims, Nicholas Harris (hereinafter "Harris"), who was also known as Nicholas Powell, was her stepson. Harris was born on August 10, 1984. In June 2004, Harris was shot in the neck and was paralyzed from the neck down. Additionally, Harris was unable to speak because "he had a trach in him." After Harris left the hospital, he was moved to a nursing home where he remained until July 22, 2005, when he passed away. At the time of his death, Harris had four brothers and a three-year-old daughter.
Ladarius Weathersby testified that in 2004, he was eighteen years old, he lived in the Frayser area, and he was friends with Darren Champion, Corry Selmon, Christopher Williams, Robert Wordlow, and Kevin Swannigan. Around 9:00 or 10:00 p.m. on June 12, 2004, Weathersby, who was in a black, four-door Maxima, drove Wordlow and Swannigan to Club Flippers, which was located on Hollywood Street. Weathersby did not want to go in the club, so he went to his girlfriend's house.
Later that night, Wordlow called Weathersby and asked for a ride home. Weathersby agreed and drove to the club. However, because there were fights in the parking lot, security and police officers would not let him enter the lot, and he parked in First Tennessee Bank's lot across the street. Weathersby's car was the first one in the exit lane so that he could easily turn onto the street. After he parked, he called and informed Wordlow of his location.
Weathersby saw Wordlow and Swannigan exit the club and walk across the street to the bank. When they reached the bank's parking lot, Swannigan got into the backseat of Weathersby's car, and Wordlow began talking loudly to someone who was standing approximately three cars behind Weathersby. The windows of Weathersby's car were up, and he could not hear what was said. A few seconds later, Weathersby heard a gunshot. He looked behind him and saw the shooter, whom he identified in court as the appellant, repeatedly firing toward the Mapco gasoline station located beside the bank. At the time of the shooting, Weathersby did not know the appellant's name. Weathersby said that after the third or fourth shot, Wordlow got into Weathersby's car, and they drove away. Weathersby estimated that he heard seven to ten shots.
Weathersby said that he drove Wordlow and Swannigan to Wordlow's mother's house; the men did not talk during the drive. Weathersby did not go directly home but continued to drive to calm his nerves. While he was driving around, a friend called and informed him that Darren Champion, a friend with whom Weathersby attended school, had been shot. Weathersby went to the hospital to check on Champion and learned that he was in critical condition. Thereafter, Weathersby discovered that Champion had recovered. Later, Weathersby saw Champion at school, and they talked about the incident.
Sometime after the shooting, Weathersby asked Wordlow who the shooter was. Wordlow responded that it was "his god brother or his brother, as he called him." Wordlow said that the shooter's nickname was "Q."
In August 2005, the police contacted Weathersby. At that time, he learned that Harris, whom he had not known prior to the incident, had been injured. Upon looking at a photograph lineup, Weathersby immediately identified the appellant as the shooter, stating that he was certain of the identification. Weathersby told the police that at the time of the shooting, the appellant was standing near a green Dodge Stratus. Sometime after the shooting, Weathersby learned that on the Saturday prior to the shooting, Wordlow had been "jumped" at a pool party in Raleigh; however, neither Weathersby nor Wordlow knew the identity of the assailant.
On cross-examination, Weathersby said that he left Wordlow and Swannigan at the club around 10:00 p.m. and that Wordlow called around midnight to request a ride home.
Weathersby said that he gave a statement to the police on August 10, 2005. He acknowledged that in his statement, he said that he picked up Wordlow and Swannigan at the club, dropped them off at Mapco, then parked at First Tennessee Bank as Wordlow had instructed. However, at trial Weathersby asserted that he told Wordlow that he could not pick them up at Mapco and that he was already parked at the bank. Weathersby also said that he did not want to go to Mapco because of the fights. Weathersby recalled that Wordlow got into the car after the shooting started. Weathersby said that although the shooting occurred around midnight, the area was well-lit, and he could see clearly.
Weathersby acknowledged that he spoke with an investigator employed by the appellant but denied telling the investigator that he was drunk when he spoke with the police or that he would not recognize the shooter if he saw him on the street. Weathersby told the investigator that he did not know anything because he did not want to be involved and did not like talking about the shooting.
Robert Wordlow testified that he graduated from high school in 2004 and that he had attended school with Weathersby, Swannigan, Champion, and Selmon. Wordlow knew the appellant, who was older than he, from the neighborhood, and they would sometimes "hang out" together. He did not believe the appellant knew Weathersby, Swannigan, Champion, Selmon, or Harris. Wordlow did not know Harris until after the shooting.
Wordlow said that sometime between the end of school and the second week in June 2004, he and his friend Mike attended a pool party hosted by a girl named Georgina. After Wordlow arrived, a fist fight began on the street. Wordlow tried to break up the fight because some of the people attending the party, one of whom was Champion, surrounded Mike's car and tried to pull Mike out of the car. While trying to stop the fight, Wordlow was hit in the head twice. After the altercation, Wordlow got back into Mike's car, and they left. Wordlow did not recall whether he told the appellant about the altercation but asserted that the appellant knew of the incident. After the pool party, Wordlow and Champion exchanged messages via Karen Minor. Wordlow said that he and Champion were not fighting, but "there was a little bit of something going on between" them.
Wordlow said that on June 12, 2004, Weathersby, who was driving a light green car, drove Wordlow and Swannigan to Club Flippers; however, Weathersby did not go inside with them. Wordlow explained that the club was located on Hollywood Street behind a strip mall directly across the street from First Tennessee Bank and Mapco. Wordlow recalled that it was dark and "kind of late" when they arrived at the club. Wordlow saw Champion inside the club, but they did not argue.
Wordlow recalled that the club closed early and that he called Weathersby, who agreed to give them a ride home. When Wordlow exited the club, he saw the appellant in the club's parking lot. He told the appellant he was going to the bank's parking lot to "get to the bottom of everything that happened" with Champion at the pool party. The appellant said that he would go with Wordlow and Swannigan, and they walked across the street.
Woodlow gave conflicting statements about where Weathersby was parked. He initially stated that he could not recall, then that Weathersby's car was the first one parked in the exit lane of the bank's parking lot, and finally that Weathersby was parked at Club Flippers. Wordlow also stated that at some point, he, Weathersby, and Swannigan drove to Mapco, but his testimony was unclear as to when.
Wordlow said that Weathersby's car was parked facing the street and that the appellant was behind them, standing beside a dark green car. Champion was in the bank's parking lot, walking away from the Mapco and toward Wordlow. Wordlow was sitting on the front passenger side window of Weathersby's car, half in and half out of the car. Wordlow heard angry "words being exchanged" between the appellant and Champion but could not make out what they said. The appellant then fired a weapon toward Champion. Wordlow could not recall how many shots were fired but knew it was more than three. When the shooting started, Wordlow slid inside the car. Weathersby turned right onto the street and drove Wordlow and Swannigan to Wordlow's mother's house.
Wordlow said that he started getting telephone calls from various people who thought he was the shooter. He told them he was not involved. Wordlow learned that Champion had been shot; however, he did not know about Harris's injuries until later.
Wordlow said that the police did not contact him immediately after the shooting. He said that he did not contact the police because he feared that some type of physical harm would befall him. After the shooting, the appellant told Wordlow that he shot Champion because Champion "had got smart with him. Something of that nature." Wordlow said that he felt responsible for the shooting because he thought it occurred as a result of his altercation with Champion at the pool party. Wordlow lived with the appellant for a while after the shooting when Wordlow did not "have anywhere else to go."
Wordlow said that on August 10, 2005, thirteen months after the shooting, he was contacted by the police. Afterward, he went to the police station and gave a statement. He asserted that the statement was truthful and that he did not lie to avoid going to jail. While at the police station, he also looked at a photograph lineup, from which he identified the appellant as the shooter.
Wordlow acknowledged that "[l]ong after" he gave his statement, he was indicted for facilitation to commit first degree murder. He later pled guilty to the lesser-included offense of attempted aggravated assault and received a two-year sentence. He was granted judicial diversion, which he successfully completed, and the conviction was expunged.
On cross-examination, Wordlow said that he had consistently maintained that the appellant was the shooter.
Wordlow said that while he was at the club, he drank two or three alcoholic beverages and that he and Champion "exchanged looks." They did not speak, but Wordlow was "irritat[ed]" with Champion and wanted "[t]o get some type of understanding as to why the things that were being said, the things that was getting back to me, what was going on with it. . . . And if it would have ...