Assigned on Briefs February 03, 2015
Appeal from the Circuit Court for Madison County No. 13-516 Donald H. Allen, Judge
Joseph T. Howell, Jackson, Tennessee, for the appellant, Travontay Tremont Berry.
Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant Attorney General; Jerry Woodall, District Attorney General; and Brian Gilliam, Assistant District Attorney General, for the appellee, State of Tennessee.
John Everett Williams, J., delivered the opinion of the Court, in which Alan E. Glenn and Camille R. McMullen, JJ., joined.
JOHN EVERETT WILLIAMS, JUDGE
FACTUAL AND PROCEDURAL HISTORY
The defendant witnessed a fight at a party in downtown Jackson, fired his weapon in the air, and later disposed of the weapon. The defendant's single shot apparently initiated a volley of gunfire which left two dead and one wounded. The defendant's convictions rest on admissions he made to police on the day of the incident.
The State presented only one witness, Investigator Aubrey Richardson, who interviewed the defendant and took his statement. Investigator Richardson testified that he received a call on April 28, 2013, reporting multiple gunshot victims at a building in downtown Jackson. Police were called to the scene at 3:05 a.m. and found three shooting victims, two of whom ultimately died.
Although the defendant was not a suspect in the homicides, police received information indicating that he had been present, and he was taken into custody and interviewed. Investigator Richardson read a rights waiver form to the defendant, and the defendant signed the form and agreed to talk to law enforcement. Investigator Richardson testified that the defendant at first denied having anything to do with the shooting.
Investigator Richardson had obtained surveillance video from a nearby business which showed the parking lot where the shooting took place. The shooting occurred at nighttime, and Investigator Richardson testified that "you could see the incident take place, but the camera was so far away and poor quality and you really couldn't identify anybody from it." The video "happened to be" in the office and had been cued forward to show the parking lot during the daytime, when the scene was identifiable. The defendant saw the screen, and Investigator Richardson told him that there was a video, although he did not say that the defendant was captured on the recording. After finding out that police had video surveillance of the parking lot, the defendant changed his story and gave the following statement:
I (Travontay Berry) was at a party last night at the Wolfe Building. It was my cousin's girlfriend's graduation party. I was at the party for a couple of hours. I was wearing a blue shirt with gray sleeves, gray pants, and a blue and red hat. As far as I know, every thing was fine inside the building[;] I never saw a conflict inside. When I got ready to leave, I went outside and was looking for the two people who rode with me, which was my brother, Darri[u]s Berry, and my cousin, Spud. When I went outside, I saw "Tone, " who is my cousin Antonio Bates[, ] and "Slamdunk" (Delandis Clark) fighting. Brian Banes, "B, " was in the middle of it too, and running his mouth. They were all three in the parking lot, near the exit to Baltimore Street. I went towards them to see what was going on. As I was walking towards them, I shot a gun in the air one time. It was a semi-auto pistol. I am not sure of the caliber, but I pulled the gun from my waistband and shot it. When I shot the gun, there was a pause[;] then someone fired a lot of shots. As I was going to go to my truck, I saw Trouble-shooter (who is my cousin, Anthony Montrell Swift) firing a gun several times in the direction of Slamdunk and Brian Banes. I don't know what the gun looked like, but Trouble-shooter was wearing a purple or blue shirt. Once the shooting was over, I saw Slamdunk and Brian Banes lying on the ground. Other than the shot I fired in the air and the shots I saw [T]rouble-shooter shooting, I didn't see anyone else shooting, nor did I see anyone else with a gun. When the shooting stopped and I saw Slamdunk and Brian on the ground, me and my brother went to my truck and left. I got rid of the gun that I fired[;] it cannot be found.
The statement was written out by Investigator Richardson, and the defendant was given a chance to read it and make changes. He did not make any changes and indicated that this was the statement he wished to make. A warrant for the defendant's arrest for tampering with evidence and carrying a firearm with the intent to go armed was not issued until May 7, 2013.
Investigator Richardson testified that the defendant admitted that he had a gun and no permit. The gun had not been recovered, and according to Investigator Richardson, it would have been helpful to the investigation. The defendant never gave more information ...