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State v. Harris

Court of Criminal Appeals of Tennessee, Knoxville

November 4, 2016

STATE OF TENNESSEE
v.
BRYANT JACKSON HARRIS

          Session July 26, 2016

         Appeal from the Criminal Court for Hawkins County No. 12CR218 John F. Dugger, Jr., Judge

          Timothy Wilkerson (at oral argument) and Richard A. Spivey (at trial), Kingsport, Tennessee, for the appellant, Bryant Jackson Harris.

          Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel; Dan Armstrong, District Attorney General; and Matthew R. Blackwell, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which Camille R. McMullen, J., joined. Thomas T. Woodall, P.J., filed a concurring opinion.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE

         This case arises from a July 21, 2011 incident in which Jeffrey Smith sustained gunshot wounds. Mr. Smith died of his injuries six months later.

         At the trial, a 9-1-1 recording was played for the jury. In the recording, Chuck Myers[1] reported to the 9-1-1 operator that an unidentified male was beating on the door and getting ready to shoot again. When asked by the operator whether someone had been shot, Mr. Myers said that a man had been shot twice and that the shooter was driving a blue and grey Dodge truck, which was backing out of Mr. Myers's driveway. Mr. Myers said, "What's his name, Jeff? Bryant Harris?" Mr. Myers asked the victim where he had been shot and told the operator Jeff had been shot twice in the right side, although he later said the victim was shot in the left side. Mr. Myers said that the shooter had come back inside the house and that the shooter had a long brown pistol. Mr. Myers said that the shooter was a white male wearing a white cap and a green tank top. Mr. Myers stated that the gun was in the driveway and that the shooter had a knife in his hand. Mr. Myers said that the shooter went out the front door and stood in the driveway. Mr. Myers stated that Jeff lived in Mr. Myers's basement and that the victim was still breathing and talking to him. Mr. Myers said that the shooter was sitting on a rock and that Mr. Myers saw the police arriving.

         Retired Kingsport Police Detective David Cole testified that he responded to a shooting call at a house, that other officers were present at the scene when he arrived, that the victim had been taken to the hospital, and that the Defendant was in the backseat of a police cruiser. Detective Cole said that he collected evidence in the house and that blood was present inside the front door, on steps leading to a basement bedroom, and inside the bedroom. Detective Cole stated that the Defendant's truck was parked in the driveway and that he recovered a .22-caliber single-action revolver and a knife from the truck's tailgate. He said that he found five unfired rounds in the gun and three cartridge casings on the seat of the truck. Detective Cole stated that he did not find any firearms or weapons, including a lead pipe, in the house.

         Detective Cole identified photographs of the crime scene, which were received as exhibits. He identified a man in one of the photographs as Chuck Myers, the homeowner. The photographs showed the entrance to the house, the downstairs hallway, which had blood spatter on the floor, a bed with blood spatter, bloodstained sheets on the bed, the Defendant's truck, a wood-handled revolver, and a closed pocket knife. The knife blade measured about two and one half inches.

         Detective Cole identified a photograph of the right side of the revolver next to a firing chart constructed of bullets to document the position of the bullets in the cylinder when it was recovered. He identified a photograph of three cartridge casings on the front seat of the Defendant's truck. Detective Cole said that including the cartridge casings, eight bullets were found and that no other ammunition was recovered.

         On cross-examination, Detective Cole testified that he did not collect fingerprints from the revolver, that the revolver was sent to a laboratory, that he might have retired before the laboratory report was completed, and that he did not believe anyone requested fingerprint analysis on the revolver. Detective Cole said that he did not test the Defendant's hands for gunshot residue and that the police had stopped performing the tests because the results were inclusive.

         Detective Cole acknowledged that in photographs taken after the police searched the house, the sheets were pulled back on the bed. He said that he probably moved the sheets when he searched under the bed. He identified the head of a cane, which was protruding over the arm of a sofa in the bedroom, and said that he did not know if he looked for a cane or a lead pipe when he searched the house. He stated that he looked under the bed and around the bed for weapons and contraband. Detective Cole noted that he did not see evidence of a violent struggle, other than a jacket that had possibly been knocked down, and that the appearance of the room was consistent with what a witness had described.

         Detective Cole testified that he only spoke to Mr. Myers about the incident, that he knew Mr. Myers, that Mr. Myers did not appear to be under the influence on the day of the shooting, and that Mr. Myers had health problems which caused him to shake. Detective Cole said Mr. Myers told him that the Defendant "pushed his way past [Mr. Myers] and went down the steps and started yelling at the victim, and then he heard gunshots . . . and went down there and actually saw the last two." Detective Cole acknowledged that in the affidavit of complaint, he wrote that Mr. Myers allowed the Defendant to come inside. Detective Cole said that the victim had several telephones on his bed. Detective Cole stated that the blood spatter on the sheets indicated that the victim moved around during the shooting. Detective Cole said that he collected blood swabs from the floor and from the hall but that he did not know whether the blood had been tested for DNA.

         Detective Cole testified that he did not know the Defendant went to the hospital after he was released from jail. Detective Cole said that he believed "some firearms examinations" were done to determine whether the bullets could be matched to the revolver but that he was unsure. He agreed that the knife appeared to have a clip-on attachment to facilitate being worn on a belt or a pocket. He acknowledged that many people carried a pocket knife, that the knife was closed when he found it, and that no blood spatter was present on the knife. He agreed that no evidence indicated the knife was used during the incident.

         Detective Cole testified that it would be very difficult to collect fingerprints from the hammer or trigger of a gun and that he did not collect fingerprints or DNA evidence from the revolver's cylinder, barrel, or handle.

         Kingsport Police Officer Bobby Lawson testified that he responded to a shooting call and that when he arrived, he saw the Defendant sitting on a large rock next to the driveway. Officer Lawson said that he took the Defendant into custody and that the Defendant did not have any weapons, although a .22-caliber pistol and a pocket knife were located on the tailgate of a truck in the driveway. Officer Lawson stated that the Defendant did not have blood stains on his clothing and that he did not appear injured. Officer Lawson said that the Defendant did not complain of any injuries or say anything to him. Officer Lawson stated that he saw Mr. Myers standing outside the house's front door and that Mr. Myers directed Officer Lawson to the victim, who was sitting on the stairs just inside the front door of the house. Officer Lawson said that the victim's skin was ashen, that the victim had blood on his face, and that the victim was holding his abdomen, gasping for air, and acting as though he were trying to vomit. After medical personnel arrived, Officer Lawson stated that he secured the house and that he did not disturb the scene. On cross-examination, Officer Lawson testified that the Defendant did not attempt to flee, that the weapons were on the tailgate of the Defendant's truck, and that another truck was parked near the Defendant's truck.

         Charles "Chuck" Myers testified that in July 2011, the victim lived with him because the victim's apartment complex had closed. Mr. Myers stated that on July 21, the Defendant knocked on the door, that Mr. Myers let him in, and that the Defendant went down the steps "screaming and hollering." Mr. Myers said that the Defendant yelled, "[Y]ou low down S.O.B. I'm going to kill your a--." Mr. Myers stated that he followed the Defendant, that he saw the victim lying in bed, that the victim stood up in front of the Defendant, that the two men were four or five steps apart, that the Defendant had a gun by his side, and that Mr. Myers had not seen the gun when the Defendant came to the front door. Mr. Myers said that had he known the Defendant had a gun or was going to assault the victim, he would not have allowed the Defendant inside the house.

         Mr. Myers testified that the Defendant raised the gun and shot the victim in the abdomen, that the victim fell onto the bed, and that the Defendant fired another shot, which hit the victim in the left elbow and arm. Mr. Myers said that the Defendant attempted to fire a third shot, that the gun did not fire, and that Mr. Myers saw cartridge casings fall to the floor. Mr. Myers stated that he told the Defendant to leave and that the Defendant put the gun in his pocket, pulled out a knife, and left the house. Mr. Myers said that when he told the Defendant he was going to call 9-1-1, the Defendant told him to "go ahead" and he would be "laying right here on this rock" when the police arrived.

         On cross-examination, Mr. Myers identified a photograph of the revolver and said that he had never seen it before the shooting. Mr. Myers stated that the gun was not his and that he had never seen the victim with it. Mr. Myers identified the knife in the photograph as the one the Defendant had with him. Mr. Myers said that he met the victim in 1991 and that the victim had lived with him for three weeks at the time of the shooting. Mr. Myers stated that he saw the Defendant once at a pharmacy with the victim and that he did not think the Defendant had ever been to Mr. Myers's house. Mr. Myers stated that he had never known the victim to have a cell phone.

         Mr. Myers testified that he had serious health issues before the trial and that he had experienced some memory loss. He said, though, that he was clear-headed when he spoke to Detective Cole at the time of the shooting. Mr. Myers stated that he could not remember what he told Detective Cole. Mr. Myers agreed that his statement to Detective Cole was more accurate than his trial testimony. Mr. Myers said that he took one morphine pill daily in order to be able to walk. On redirect examination, Mr. Myers stated that he did not remember speaking to Detective Tincher and that before the trial, he reviewed his statements to the police. Mr. Myers said that his trial testimony was based upon his memory of events.

         Dr. George Testerman, an expert in general surgery, testified that he operated on the victim when he arrived at the hospital. Dr. Testerman said that the victim had gunshot wounds to the left side of the abdomen, the thigh, and the wrist. Dr. Testerman stated that the victim had multiple injuries to the colon and duodenum. Dr. Testerman said that he closed several holes in the colon and duodenum, stopped bleeding around the pancreas, and transferred the victim to the intensive care unit. Dr. Testerman characterized the abdominal wound as life-threatening. He said that after surgery, the victim had multiple complications from his injuries, including infections, a bile leakage, and multiple organ failure, for which a ventilator, feeding tube, and tracheostomy were necessary. Dr. Testerman noted that the victim's abdominal wound never fully closed and that the victim underwent eighteen or nineteen procedures.

         Dr. Testerman testified that after several weeks in the hospital, the victim suddenly deteriorated and went into cardiac arrest, was placed in the intensive care unit, and died several days later. When asked what caused the victim's death, Dr. Testerman said that the victim came to the hospital with gunshot wounds, that the victim had a complicated course of treatment, and that a sudden change in his medical condition occurred, from which he did not recover.

         On cross-examination, Dr. Testerman testified that the victim had Hepatitis C, which could affect a wound's ability to heal, and that the victim had previously undergone a gallbladder operation. Dr. Testerman said that the victim died of cardiac arrest.

         On redirect examination, Dr. Testerman testified that the victim's body was under a high amount of stress due to his injuries and operations. When asked whether the operations caused the cardiac arrest, Dr. Testerman said that the victim was at a high risk to have adverse outcomes.

         Dr. Karen Cline-Parhamovich, an expert in forensic pathology, testified that she performed the victim's autopsy, that the cause of death was complications from a gunshot wound to the abdomen, and that the manner of death was homicide. Dr. Cline-Parhamovich said that she recovered a bullet from the victim's abdomen and that the victim had "a lot of severe complications from the post-operative procedures and all of that was wrapped into the term complications." She stated that the victim had an open wound between the "midline" and the pubic bone. She identified an autopsy photograph showing the victim's body as it was received from the hospital, which showed an open incision and holes where a colostomy bag and a jejunoileostomy tube had been removed. She noted that the bullet recovered from the victim's abdomen was encased in fibrous tissue, which indicated a period of healing had elapsed. She said that she recovered a second bullet from the victim's left thigh.

         On cross-examination, Dr. Cline-Parhamovich testified that she did not speak to Dr. Testerman before she performed the autopsy and that she was aware the victim suffered a cardiac arrest before his death. She acknowledged that the autopsy report stated it was impossible to determine the range of fire, the entrance wound, or the bullet's trajectory due to medical intervention and healing. She did not know why the bullets were not removed from the victim's body during surgery. She said that occasionally, a bullet could be left intentionally in a person's body. She agreed that the autopsy report noted a blunt force trauma to the head and that the injury occurred at some point before the victim's death. She agreed that the head injury could have been indicative of a fight. Dr. Cline-Parhamovich stated that relative to contributing conditions, the victim had coronary artery disease in one vessel, an enlarged heart, emphysema, hepatitis, and chronic pancreatitis that could have resulted from the victim's multiple surgeries or from alcohol abuse. She said that a fatty liver was not an indication of Hepatitis C because it could have been caused by diet or alcohol abuse.

         On redirect examination, Dr. Cline-Parhamovich testified that in a case in which a shooting incident occurred five or six months before an autopsy, the range of fire was unlikely to be detected. She said that her standard protocol did not include talking to a decedent's physicians. She stated that the victim's other conditions did not contribute to or cause the victim's death. On recross-examination, Dr. Cline-Parhamovich said that cardiac arrest was not a valid cause of death and that cardiac arrest was the final thing to occur before anyone died. She stated that she was aware of one occasion in September in which the victim had to be defibrillated and a second occasion in November in which the victim's heart stopped, his brain received insufficient blood, and "that's what led to him not recovering." On further redirect examination, Dr. Cline-Parhamovich said that none of the victim's complications or cardiac arrests would have happened if he had not been shot.

         The Defendant testified that he was age sixty-three and that the victim was his wife's half-brother. The Defendant said that he had known the victim since the victim was age seven, that the Defendant and the victim had worked together for more than twenty years at the Defendant's father's construction company, and that the Defendant treated the victim like his son. The Defendant stated that he had a close relationship with the victim and that the victim visited the Defendant's house weekly for Sunday dinner, including the Sunday before the shooting. The Defendant said that no conflicts arose during the dinner.

         The Defendant testified that the day before the shooting, he saw the victim at a bowling alley, that the victim was intoxicated, and that the Defendant gave the victim vegetables from his garden as well as $100 from the Defendant's wife. The Defendant denied having "cross words" with the victim. The Defendant said that he went to the victim's house the following day at the Defendant's wife's request because she could not reach the victim by telephone and was concerned. The Defendant said that the victim had five cell phones but would not answer any of them. The Defendant denied having ever owned a pistol and taking a pistol to the victim's house. The Defendant ...


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