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State v. Ferrell

Court of Criminal Appeals of Tennessee, Nashville

November 18, 2016

STATE OF TENNESSEE
v.
CHRISTOPHER MICHAEL FERRELL

          July 19, 2016 Session

         Appeal from the Criminal Court for Davidson County No. 2013-D-3327 Steve R. Dozier, Judge

         The Defendant, Christopher Michael Ferrell, was convicted by a jury of second degree murder, a Class A felony. See Tenn. Code Ann. § 39-13-210. The trial court imposed a sentence of twenty years' incarceration to be served at one hundred percent. In this appeal as of right, the Defendant contends (1) that the evidence was insufficient to sustain his conviction, specifically arguing that he should have been acquitted for acting in self-defense or convicted instead of voluntary manslaughter; (2) that the trial court erred in denying his request for a special jury instruction regarding the State's failure to preserve evidence; (3) that the trial court committed several errors when instructing the jury on self-defense; (4) that the trial court abused its discretion in setting the length of his sentence; and (5) that he is entitled to a new trial based upon cumulative error. Following our review, we affirm the judgment of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

          David L. Raybin (at trial and on appeal); and Benjamin Raybin (on appeal), Nashville, Tennessee, for the appellant, Christopher Michael Ferrell.

          Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant Attorney General; Glenn R. Funk, District Attorney General; John Wesley King and Tammy Haggard Meade, Assistant District Attorneys General, for the appellee, State of Tennessee.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Timothy L. Easter, JJ., joined.

          OPINION

          D. KELLY THOMAS, JR., JUDGE.

         FACTUAL BACKGROUND

         I. State's Proof

         A. The Shooting

         Eric Lee Beddingfield testified at trial that he was a "touring full-time musician" and that the victim, Wayne Mills, "was also a musician, songwriter" and "one of [his] best friends." On the night of November 22, 2013, Mr. Beddingfield and Mr. Mills attended a "big tribute show" for George Jones[1] at Bridgestone Arena in downtown Nashville. Mr. Beddingfield "was lucky enough to be playing that night, " and Mr. Mills "had several friends that were [also] playing at the show." Mr. Beddingfield recalled that the arena was "pack[ed]-out" and that several famous country music performers were involved in the concert. Mr. Beddingfield testified that Mr. Mills "was with [him] back stage for" the concert. According to Mr. Beddingfield, it was "a very, very exciting night" and Mr. Mills was "[l]ike a little kid . . . just having a great time."

         After the concert, Mr. Beddingfield had family, friends, and "some business partners in town that [he] took out" to entertain. Mr. Mills told Mr. Beddingfield that he was going to see fellow musician, Shooter Jennings, [2] "play at a show downtown somewhere." Between 2:00 and 2:30 a.m. on November 23, 2013, Mr. Beddingfield received a text message from the Defendant. Mr. Beddingfield explained that Mr. Mills had introduced him to the Defendant and that he had been to the Defendant's establishment, the Pit and Barrel, "several times." The text message informed Mr. Beddingfield that the Defendant had run into Mr. Mills and Mr. Jennings and that "everyone was going to meet back up" at the Pit and Barrel.

         Mr. Beddingfield recalled that he, along with his wife and two of their friends, arrived at the Pit and Barrel between 2:30 and 3:00 a.m. Mr. Beddingfield testified that the Defendant, Mr. Mills, and three people that he did not know, two women and a man, were there when he arrived. According to Mr. Beddingfield, "[e]verybody was just kind of hanging around, drinking, " and "kind of passing a guitar back and forth." A short time later, Mr. Jennings and a few other people arrived. Mr. Beddingfield testified that the Defendant "was behind the bar serving drinks" and that the Defendant was the only person whom he saw serving alcohol that night. Mr. Beddingfield also recalled that he saw Mr. Jennings smoking inside, which he thought was odd because the Defendant "was always pretty anal about people lighting up in his bar, " but thought it had something to do with the fact that the Defendant was a "massive . . . fan" of Mr. Jennings' father.

         Mr. Beddingfield testified that Mr. Mills "was in a good mood all night" and was excited about a new songwriting opportunity that would allow him to spend more time at home with his family. Mr. Beddingfield recalled that Mr. Mills "went outside to smoke a couple of times" while he was there. Mr. Beddingfield further testified that he "knew there were guns in the bar" but that he did not see any while he was there. Mr. Beddingfield did not see any drugs while he was there. Mr. Beddingfield also did not see Mr. Mills go behind the bar. While he knew that the Defendant and Mr. Mills had been drinking, Mr. Beddingfield testified that neither man seemed drunk that morning.

         Mr. Beddingfield testified that the next couple of hours were spent "just hanging out, drinking." Before Mr. Beddingfield left, the Defendant insisted that he get a picture with Mr. Jennings, Mr. Jennings' "road manager, " Mr. Beddingfield, and Mr. Mills in one of the establishment's booths. Mr. Beddingfield estimated that he left the Pit and Barrel sometime between 4:00 and 4:30 a.m. Mr. Beddingfield recalled that when he left, "[i]t was a great mood" and "there was no tension and there was no arguments." Mr. Beddingfield further recalled that there "was no aggression throughout the entire" time he was there and that the Defendant and Mr. Mills were friends.

         Thomas Howard testified that he was an aspiring songwriter and that he came to Nashville on the night of the "George Jones tribute" in order to go out with his manager, Susan Branam, and meet some "people affiliated with the [country music] business." Mr. Howard went out to dinner with Ms. Branam and his then girlfriend, Nadia Markham. After dinner, the three went to a club where they stayed until "after [it] closed." At that point, Ms. Branam suggested to Mr. Howard that they go to the Pit and Barrel "because there [were] going to be a few people over there that [he] might be interested in meeting, " specifically Mr. Jennings. Ms. Branam drove because Mr. Howard and Ms. Markham "had drank some" that night.

         Mr. Howard estimated that they got to the Pit and Barrel sometime between 2:00 and 2:30 a.m. Mr. Howard testified that he had been to the Pit and Barrel and had met the Defendant before that morning. Mr. Howard described the atmosphere at the bar as "relaxed for the most part" with "[g]roups of people . . . tak[ing] turns playing music." Mr. Howard estimated that he was at the Pit and Barrel for over two hours. During that time, Ms. Branam introduced Mr. Howard "to a few people." Mr. Howard had never met Mr. Mills before that morning. Mr. Howard recalled that he and Mr. Mills "just had general conversation for a few minutes." Mr. Howard also recalled seeing Mr. Mills smoking inside the Pit and Barrel that morning. Mr. Howard testified that the Defendant was serving alcohol and that he did not remember anyone other than the Defendant being behind the bar.

         Mr. Howard testified that around 4:30 a.m., he, Ms. Branam, and Ms. Markham were preparing to leave. The only other people remaining at the Pit and Barrel were the Defendant and Mr. Mills. According to Mr. Howard, Mr. Mills was sitting at the bar smoking a cigarette and the Defendant was behind the bar. The Defendant walked up to Mr. Mills, slapped the cigarette out of Mr. Mills's hand, and said, "[W]hat the [f--k] are you doing smoking in my bar; it's a nonsmoking bar." Mr. Howard testified that Mr. Mills "just kind of sat there for a second" and "then he got up and paced back-and-forth a few times going toward the door." Mr. Howard thought that Mr. Mills "was leaving, " but Mr. Mills turned around and said to the Defendant, "[I]f you ever smack my hand like that again, I'll kill you."

         At that point, Ms. Branam told Mr. Howard and Ms. Markham that it was time for them to leave. Mr. Howard recalled that Ms. Branam and Ms. Markham left first. As he "was getting ready to walk out, " Mr. Howard "turned around and looked behind [him] one more time and witnessed Mr. Mills throw his beverage glass on the ground and break it." Mr. Howard "took a few steps" outside and "heard the door [to the bar] open" again. Mr. Howard testified that "just as soon as [he] heard the door open, [he] heard three [gun]shots in rapid succession." Mr. Howard then "turned around and saw Mr. Mills hit the ground." Mr. Howard testified that he did not see anything in Mr. Mills's hands and that Mr. Mills fell facedown. Mr. Howard recalled that Mr. Mills's head was pointing away from the door and that the door had closed after Mr. Mill fell.

         Mr. Howard ran to Ms. Branam's vehicle, "jumped in the backseat[, ] and told them to leave because [Mr. Mills] had been shot." As they drove away, Mr. Howard saw the Defendant "run out the door of the bar." They circled around the block, and when they came back to the Pit and Barrel, "[n]o one was outside" and "there wasn't a body there." At that point, Ms. Branam called the Defendant to ask him what had happened. Mr. Howard recalled that the Defendant "was very upset" and crying. Ms. Branam advised the Defendant to call 911. Ms. Branam then hung up and called 911 herself.

         Mr. Howard testified that he had not seen any guns in the Pit and Barrel that morning. Mr. Howard admitted that he had three beers and "some [v]odka." Mr. Howard did not recall Mr. Jennings' taking a picture with the Defendant and Mr. Mills. Mr. Howard denied that he heard Mr. Mills yell, "[T]here is [sic] no whores here, there's no cocaine here, what the f--k am I [doing] here." Rather, Mr. Howard testified that Mr. Mills was "in a pretty good mood" that morning. Mr. Howard admitted that he told the Defendant's private investigator that Mr. Mills and the Defendant "were very loud and yelling back and forth at each other." Mr. Howard also told the private investigator that he heard the gunshots "immediately" after he heard the glass break. However, Mr. Howard claimed that he was mistaken when he told the private investigator that.

         An audio recording of the Defendant's 911 call was played for the jury. The call was made at 4:56 a.m. on November 23, 2013. On the recording, the Defendant told the 911 operator that "someone [had] just pulled a gun on [him] in [his] bar." The Defendant then told the operator that there was "no danger now" but asked that "help and [a] medic" be sent to the Pit and Barrel. The operator asked the Defendant if he needed an ambulance, and the Defendant responded that he did. The operator asked the Defendant if he had been shot, and the Defendant responded, "No, somebody tried to f--king pull a gun on me. I dispatched weapon [sic] and someone had pulled a gun on me." The Defendant stated that the person who had "pulled a gun on" him was "erratic in there" and had been shot.

         Officer Ashley Arnold of the Metropolitan Nashville Police Department (MNPD) was one of the first officers to respond to the Pit and Barrel after the Defendant's 911 call. Officer Arnold found the Defendant standing outside and talking on his cell phone. Officer Arnold recalled that the Defendant "was kind of hysterical" and repeatedly stated, "[H]e tried to rob me, " and "I thought he was going to kill me." Despite the fact that the officers approached the Defendant with their guns drawn, Officer Arnold testified that the Defendant "didn't really speak with [them]." Instead, the Defendant "was upset, crying" and focused on his phone conversation. Officer Arnold recalled that when the officers "finally got [the Defendant] to kind of tell [them] what happened, " the Defendant simply "pointed to the door and said, '[H]e's inside.'"

         Officer Arnold found Mr. Mills inside, approximately six feet from the door. Mr. Mills was "lying face up" with some towels underneath him. Mr. Mills "was breathing heavily" with "obvious trauma to the back of his head." Mr. Mills was taken to a local hospital where he died later that morning. About thirty minutes after the police arrived at the Pit and Barrel, Ms. Branam and Ms. Markham approached the responding officers. Both of the responding officers thought that the women were intoxicated. Ms. Branam and Ms. Markham led one of the officers back to Ms. Branam's vehicle where Mr. Howard was found sitting inside the vehicle.

         At some point, the Defendant entered the Pit and Barrel and was standing by the doorway while the officers checked on Mr. Mills. One of the officers escorted the Defendant back outside. While he was standing outside, the Defendant spoke to MNPD Sergeant Michael Kent. Sgt. Kent recalled that the Defendant was on his cell phone and looked "very upset." Sgt. Kent testified that the Defendant, "unprovoked" and "very excitedly, " said to him, "I just shot my friend in the head. Oh, my God, I just shot my friend in the head. He said he was going to kill me and I just shot him." Sgt. Kent patted down the Defendant and did not find any weapons on him. The Defendant gave Sgt. Kent his wallet and Sgt. Kent "retrieved [the Defendant's] Tennessee handgun carry permit from it." Sgt. Kent testified that he was "unsure" if the Defendant was intoxicated.

         MNPD Detective Leonard Peck, Jr., was the lead investigator in this case. Det. Peck testified that the Defendant consented to a search of the Pit and Barrel. Det. Peck spoke with the Defendant there, and the Defendant "stated that the victim displayed a gun, threatened his life, " and that "resulted in the shooting death of . . . Mr. Mills." Later, the Defendant was transported to the police station where Det. Peck conducted a more in-depth interview. A video recording of that interview was played for the jury during the trial.

         The Defendant began the interview by telling Det. Peck that Mr. Mills was "drunk, drunk" when he met him that night. The Defendant claimed that he was going to let Mr. Mills stay at the Pit and Barrel until he sobered up. The Defendant then claimed that Mr. Mills "progressively got more belligerent through" the morning. The Defendant told Det. Peck that the shooting occurred after he saw Mr. Mills smoking at the bar. The Defendant explained that he was "vehemently against any smoking in [his] bar, " so he reached across the bar and crushed Mr. Mills' cigarette.

         The Defendant claimed that Mr. Mills "went off" and started "screaming and hollering." According to the Defendant, he told Mr. Mills to leave but that Mr. Mills came back into the bar. The Defendant told Det. Peck that he saw a drink in Mr. Mills' hand and that he told Mr. Mills that he could not take the drink outside. The Defendant claimed that Mr. Mills then said, "F--k you, I'll do whatever I want, " and threatened to kill him. The Defendant stated that Mr. Mills threw his glass down and that he "watched [Mr. Mills] grab something that [he] thought was a gun."

         The Defendant told Det. Peck that he was standing by his register behind the bar and that he "had no intention of shooting" Mr. Mills. However, the Defendant said that Mr. Mills had "scared the hell out of [him]." The Defendant pulled a gun he kept behind the bar and shot in Mr. Mills' direction. The Defendant claimed that he did not aim at Mr. Mills and that he could not remember pulling the trigger or how many times he shot at the victim.

         The Defendant told Det. Peck that he watched Mr. Mills fall out the door and onto the ground. The Defendant stated that he thought Mr. Mills was faking his injury. The Defendant went outside to check on Mr. Mills. The Defendant told Det. Peck that it was very cold outside and that he decided to drag Mr. Mills back inside because he was getting cold from having just a t-shirt on. The Defendant stated that he got some bar rags to try to stop the victim's bleeding. The Defendant recalled that Ms. Branam called him and that he called 911 after he spoke to her.

         The Defendant insisted that he saw Mr. Mills grab for something and saw something in his hand after he threw the glass. The Defendant claimed that he found a .45 caliber revolver on the floor by the doorway after he dragged Mr. Mills back into the bar. The Defendant told Det. Peck that he "secured the weapon, . . . unloaded it, " and "put it on the table." The Defendant stated that the revolver was his and that he normally kept it by the cash register. The Defendant told Det. Peck that he did not know how Mr. Mills got the revolver.

         Det. Peck told the Defendant that he thought it was highly unlikely that Mr. Mills took the Defendant's revolver from behind the bar. Det. Peck pointed out that Mr. Mills did not know where the revolver was and that the Defendant was "strategic" in where he kept his guns. The Defendant repeatedly insisted that Mr. Mills could have easily found the revolver behind the bar. The Defendant was very upset because he was unable to find his "bank bag" that morning.[3] The Defendant told Det. Peck that he kept the bag by the cash register with the revolver. The Defendant implied that Mr. Mills may have stolen the bag and suggested that Mr. Mills took the revolver to scare him with it.

         For several minutes, Det. Peck continued to press the Defendant to "tell the truth, " and the Defendant continued to insist that Mr. Mills could have found the revolver behind the bar and taken it to scare him. The Defendant became visibly upset when Det. Peck called him a liar. The Defendant began to cry and exclaimed that Mr. Mills had "pointed his cell phone at [him], it was his f--king cell phone." The Defendant explained that he was scared because Mr. Mills had screamed more than once that he would kill the Defendant. The Defendant claimed that he shot Mr. Mills when Mr. Mills spun around and pointed his cell phone at the Defendant. The Defendant stated that he thought, at that moment, Mr. Mills was going to shoot him. The Defendant then stated that he panicked and put the revolver on the table near the doorway.

         At that point, Det. Peck left the interview room. Once he was alone in the room, the Defendant said that he was "terrified" and asked, "Wayne, you stupid son of a b---h, why did you do that?" Eventually the Defendant stopped crying and started using his cell phone. When Det. Peck returned, he began to advise the Defendant of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). The Defendant asked if he was under arrest, and Det. Peck responded that he just wanted to get "an official statement." Sensing the Defendant's uneasiness about the Miranda warnings, Det. Peck asked the Defendant how he felt. The Defendant responded that he felt "like s--t" and that he was exhausted and terrified "that [he] hurt somebody." The Defendant denied that he was drunk and said that he did not have a lot to drink that morning.

         Det. Peck asked the Defendant if he wanted to keep talking without a lawyer. The Defendant said that he did not do anything "out of line, " but that he would be "an idiot not to have a f--king lawyer present to make a statement about something that involve[d] [his] freedom." The Defendant told Det. Peck that he would not go to jail "for f--king defending [him]self." The Defendant claimed that Mr. Mills was known to get drunk and belligerent and that Mr. Mills had screamed "five different times" that morning that he would kill the Defendant.

         The Defendant reiterated that Mr. Mills threw the glass and said, "I'm going to come over there and f--king kill you." The Defendant told Det. Peck that he simply "took [Mr. Mills] at his word." The Defendant then told Det. Peck that he was cold, tired, and wanted to come back later after he had the chance to talk to his family. The Defendant explained that he wanted to see his family because they were supposed to be "celebrating" that day but now that was "not going to happen." Det. Peck testified at trial that he stopped the interview after he realized Mr. Mills was unarmed and "the crime scene was altered." Det. Peck also testified that he did not have the Defendant tested for drug or alcohol use.

         Mr. Beddingfield testified that he did not learn that there had been a shooting at the Pit and Barrel until around 10:00 or 11:00 a.m. There was some confusion about the identity of the victim. Mr. Beddingfield first tried to call Mr. Mills, and when Mr. Mills did not answer his phone, Mr. Beddingfield called the Defendant. Mr. Beddingfield recalled that the Defendant was "hysterical" when he answered the phone. The Defendant told Mr. Beddingfield that "he knocked a cigarette out of [Mr. Mills'] mouth and that made [Mr. Mills] go crazy." The Defendant then said that Mr. Mills had "slammed a beer bottle down."

         The Defendant explained that he "felt threatened" and thought that Mr. Mills "was going to kill him." The Defendant claimed that Mr. Mills had "reached for his waistband." The Defendant asked Mr. Beddingfield "why did [Mr. Mills] have to be so crazy?" The Defendant claimed not to remember what kind of gun he had used or where he had shot Mr. Mills. Mr. Beddingfield admitted that he originally did not mention the fact that the Defendant said he knocked a cigarette out of Mr. Mills' mouth to Det. Peck.

         B. The Physical Evidence

         Outside of the Pit and Barrel, the police found a small pool of blood several feet away from the entrance, a "small blood trail leading" from the pool of blood "back into" the establishment, and a button and broken button fragments near the blood trail. Blood was also found on the door frame and the "door threshold." Inside, there were "drag marks" of blood on the floor leading from the doorway to another pool of blood and the bloodied towels that had been placed beneath the victim. Next to the towels was the victim's baseball cap. The cap was bloodied with an apparent bullet hole in the back, toward the top, of the cap. There was also "some damage to the left side" of the cap.

         To the immediate right of the doorway, upon entering the building, was a table. At the foot of the table, the investigators found half of a broken glass, fragments of glass, and a green cigarette lighter. To the left of the doorway was a wooden barrel with the initials "P" and "B" painted on it. In front of the barrel and against the left wall of the building, the investigators found a piece of broken glass with a small amount of blood on it. Also against the wall and a few inches away from the piece of broken glass was a .22 caliber cartridge casing. Near the broken piece of glass and the cartridge casing was "a high-top bar table." The table was directly to the left of where the victim was found. On the table the officers found an unloaded .45 caliber revolver "with the cylinder open."

         To the right of where the victim was found was the bar, which "had like an L-shape to it when you [got] close to the entrance." The bottom of the bar was parallel to the front wall and the longer portion of the bar was parallel to the aisle leading from the front to a stage and more seating in the back. The investigators found .45 caliber ammunition on the bottom portion of the bar. The victim's cell phone was found on the longer portion of the bar near where it formed a right angle with the bottom portion. The investigators found a .22 caliber handgun with "some kind of scope on it" further up the bar. A cigarette butt was found on the floor in front of the bar between where the gun and the cell phone were found. All of the chairs along the bar were "at an angle" except for one "that was facing the bar directly" near where the .22 caliber handgun was found.

         Moving away from where the victim was found, another cigarette butt was found on a table near the stage. A second .22 caliber cartridge casing was found in front of the bar where the bar made "a curve" toward the back of the building. A third .22 caliber cartridge casing was found on the gurney that transported the victim to the hospital. Crime scene investigators for the MNPD testified at trial that they gave "very little weight" to the location of the cartridge casings because the casings were small, lightweight, and could easily "bounce, get kicked, [or] roll." A third handgun, another revolver, was located inside a safe in the building's office. A powder on the bar, which could have been cigarette ash, was identified in some of the crime scene photographs. However, it was not specifically documented by the investigators and was not collected as evidence. There was no blood spatter found on the door, door frame, or the walls. There were also no working security cameras in the building.

         Two bullet strikes were found on the wall behind the barrel. The first was between the doorway and a window and was found by the investigators the day of the shooting. That piece of wood was removed from the wall and a bullet fragment was removed from the wood. A second bullet strike and fragment were found by the Defendant's private investigator several days after the shooting. The second bullet strike was on the other side of the window approximately three feet from the first strike. The second bullet strike was "similar in size [to] some of the nailheads that . . . [could be seen] through the wood" and blended in with the wood.

         Both bullets "were going from left to right" when they impacted the wall. The first bullet entered the wall at a thirty-seven degree angle. The second bullet entered the wall at a twenty-five degree angle. The first bullet strike was two inches higher than the second. From the placement of the bullet strikes, it appeared to the crime scene investigators "that the shooter did not move much." However, there was no way to determine "the shot sequence" based upon the forensic evidence. Initially, the crime scene investigators thought there was a third bullet strike on the window frame, but that turned out ...


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