Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs February 19, 2015
Direct Appeal from the Criminal Court for Knox County No. 101445 Mary Beth Leibowitz, Judge.
J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Deeric McAfee.
Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Leslie Nassios, Assistant District Attorney General, for the appellee, State of Tennessee.
Norma McGee Ogle, J., delivered the opinion of the Court, in which D. Kelly Thomas, Jr., and Robert H. Montgomery, Jr., JJ., joined.
NORMA MCGEE OGLE, JUDGE.
I. Factual Background
On direct appeal, this court summarized the proof adduced at trial as follows:
On February 19, 2008, the Knox County Grand Jury indicted the [petitioner] for the premeditated first degree murder of Tray Sherman and for the reckless endangerment of Timothy Flack, Jr. At trial, Roberta Flack testified that in 2007, she worked as a secretary and was addicted to cocaine. In October 2007, Flack lived in a residence at 1511 Connecticut Avenue with her three minor children, the youngest of whom, Timothy Flack, Jr., was four years old. Her cousin, Anna Street, also lived with her. Flack stated that twenty-three-year-old Sherman was her boyfriend and that he occasionally stayed with her. However, she noted that their relationship was not exclusive. Flack acknowledged that she kept drugs in the house, that she used drugs with Sherman, and that Sherman sold drugs. Flack said that the [petitioner] had previously been to her house with her cousin, Precious Pruitt, and that he lived with his grandmother and other family members on the next street.
Flack said that on October 8, 2007, Sherman and his friend, Robert Davis, came to her house around 6:30 p.m. or 7:00 p.m. Sherman was driving his green Suburban, and he parked in the driveway. When he arrived, Moneek Logan was on the porch with Timothy and Logan's niece. Street, Diez Debro, and Flack were in the kitchen. Sherman came into the kitchen, upset and scared, and told Flack that he had a confrontation at a store down the street with Treece Hamilton, who was the [petitioner's] cousin. He said that Hamilton was injured during the confrontation. Flack said that Hamilton had been her friend and that Hamilton and Sherman had previously argued because of jealousy.
Later, Flack and Sherman left the house, intending to go to the store for cigarettes and to take Davis home. As they stepped outside, Flack saw the [petitioner] sitting on the porch with his head down. She asked what was wrong, the [petitioner] replied that nothing was wrong, and he got up as if to leave. Flack and Davis walked toward Sherman's truck. The [petitioner] and Sherman stood at the edge of the driveway near the sidewalk and started talking. They did not argue and smoked marijuana together. Flack and Davis repeatedly told Sherman that they needed to leave. Eventually, when Sherman ended the conversation and turned to walk toward his truck, Flack saw a flash from a gun. Sherman began to run, and Flack heard a couple more gunshots. Flack said that Davis ran away, but she did not know in which direction. The [petitioner] ran toward the park across the street from Flack's house, in the direction of the [petitioner's] grandmother's house.
Flack told Logan, who was still on the porch with the children, to take the children inside the house. Logan complied. Flack looked for Sherman and found him lying in an alley around the corner from the house. Flack tried to talk to Sherman. Street came to the alley and started performing CPR on Sherman. Flack heard blood rattling in Sherman's lungs and told Street to stop. Flack called 911. Before police arrived, Flack removed $20 in cash and cocaine from Sherman's pocket. She gave the items to Street and told her to get rid of them. Flack said that either the police or paramedics removed Sherman's white t-shirt while trying to resuscitate him. Flack stated that Sherman did not have a gun that night.
Flack said that, after midnight, she spoke to Investigator Still. She identified the [petitioner] as the shooter, but did not disclose that she had taken drugs from Sherman's pocket. She stated that she later saw bullet holes in her house and that the holes were not there prior to the incident.
Flack said that after the shooting, she received calls and "dirty looks" from the [petitioner's] friends and family and that she feared for her family. Accordingly, she moved away from Knoxville.
On cross-examination, Flack acknowledged that she was on probation for a "bad check" charge in Ohio. She said that she gave the cocaine she took from Sherman to Street and that Street hid it between her breasts. Flack acknowledged that Sherman occasionally carried a gun but maintained that he was not carrying a gun on the night of the shooting.
Flack stated that Sherman was about 6 feet tall and weighed approximately 240 pounds. She said that Hamilton was approximately 5 feet tall and weighed more than 150 pounds. Flack stated that Hamilton was known to carry a knife and guns. When Sherman arrived at Flack's house, he told her that he hit Hamilton after she threatened him and reached into her purse. Flack said that when she and Sherman came outside the house, the [petitioner] called Sherman over to him to talk. Flack stated that she thought the men were "talkin[g] about the confrontation, but it was no upset." She said that the [petitioner] was wearing a long t-shirt, and Flack thought that the [petitioner] took the gun from his pants pocket or from his belt. She saw the gun in the [petitioner's] hand after the shooting. Flack said that although the [petitioner] had been at her house many times, he had never caused trouble until that night.
Moneek Logan testified that she and Flack were friends and that on the night of October 8, 2007, she was at Flack's house. Logan said that sometime after 6:30 p.m., she was sitting on the porch, and Sherman and Flack were inside the house. Later, they came outside, and Flack walked toward Sherman's truck. Logan went into the house, got a beer, and went back outside. She saw Sherman and the [petitioner] . . . calmly talking. When Logan turned around, she heard shots fired. She saw the [petitioner] run toward the porch and Sherman run toward the back of the house. She said that she never saw a gun.
On cross-examination, Logan stated that after the shooting, she left the house and went to the alley where Sherman was lying. She saw Flack try to revive him, but he was already dead. She said that she did not see Flack go through Sherman's pockets.
Knoxville Police Investigator Steve Still testified that he arrived at the scene at approximately 9:03 p.m. on October 8, 2007. He spoke with people on the scene and learned that the [petitioner] was the shooter. After about an hour, Investigator Still went to the hospital and saw Sherman's body. ...