Remanded on October 31, 2016
from the Criminal Court for Shelby County No. 12-03161 J.
Robert Carter, Jr., Judge
Tennessee Supreme Court has remanded this case for
reconsideration in light of State v. Willie Duncan,
___ S.W.3d. ___, No. W2013-02554-SC-R11-CD, 2016 WL
6024007 (Tenn. Oct. 14, 2016). See State v. Angela
Ayers, No. W2014-00781-CCA-R3-CD, 2015 WL 4366633 (Tenn.
Crim. App. July 16, 2015) ("Ayers I
"), perm. app. filed, case remanded (Tenn. Oct.
31, 2016). Relevant to the current remand, this court
concluded in the previous appeal that the State's
failures to identify the underlying dangerous felony in the
indictment count related to employing a firearm during the
commission of a dangerous felony and to charge a separate
offense that was an enumerated dangerous felony rendered the
indictment count relative to the employing a firearm during
the commission of a dangerous felony defective. Upon further
review, we conclude that in lieu of identifying the
enumerated dangerous felony in the indictment count charging
employing a firearm during the commission of a dangerous
felony, the indictment must charge separately at least one
enumerated dangerous felony in order to provide a defendant
with adequate notice of the charged offense. Under the
circumstances in this case, we conclude that the count
charging employing a firearm during the commission of a
dangerous felony is defective because it failed to provide
the Defendant adequate notice of the charged offense. We
affirm the judgments of the trial court relative to the
voluntary manslaughter and false report convictions, but we
reverse the employing a firearm during the commission of a
dangerous felony judgment, vacate the conviction, and dismiss
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
Court Affirmed in Part; Reversed in Part; Vacated and
Dismissed in Part; Case Remanded
Haden Lawyer (on appeal and at trial) and Andrew Plunk (at
trial), Memphis, Tennessee, for the appellant, Angela Ayers.
Herbert H. Slatery III, Attorney General and Reporter;
Jeffrey D. Zentner, Assistant Attorney General; Amy P.
Weirich, District Attorney General; and Patience Branham and
Kenya Smith, Assistant District Attorneys General, for the
appellee, State of Tennessee.
H. Montgomery, Jr., J., delivered the opinion of the court,
in which Robert W. Wedemeyer and Timothy L. Easter, JJ.,
H. MONTGOMERY, JR., JUDGE.
case involves convictions for manslaughter, false report, and
employing a firearm during the commission of a dangerous
felony. The offenses arose from a domestic disturbance, which
resulted in Tario Graham's sustaining a single gunshot
wound to the head. The trial evidence showed:
Angelica Mitchell, the victim's sister, testified that
the Defendant was the mother of the victim's younger son,
who was five years old at the time of the trial. She said the
Defendant and the victim's relationship spanned about ten
years. She never saw the Defendant and the victim argue and
thought they had a good relationship. She said the victim was
tall, slim, and had stomach problems, although she did not
know any details.
Earl Jones, the victim's cousin, testified that on
February 23, 2012, he picked up the victim at home early that
morning. The men went to the lumberyard to buy materials for
the victim's house. The men returned to the victim's
house around 10:00 a.m., and Mr. Jones said the Defendant,
her and the victim's son, and her sister were there. The
Defendant and the victim began arguing. Mr. Jones walked
outside, and the Defendant's sister left. Mr. Jones said
the argument was about women. He heard the Defendant say she
wanted the victim out of the house and the victim say that he
did not want to argue. Mr. Jones sat on the hood of a car
parked in the driveway and waited for the victim. The
argument lasted about three minutes, and Mr. Jones saw the
victim leave the house and run toward the back of the house.
The victim returned to the front of the house about fifteen
to twenty minutes later.
Mr. Jones testified that after the victim ran toward the back
of the house, he heard a gunshot from inside the house. He
told the victim that the Defendant had fired a gun, and the
victim told Mr. Jones that the Defendant was not going to do
anything. The victim began walking down the sidewalk toward a
convenience store and told Mr. Jones to join him. Mr. Jones
said the victim was walking in front of him when the
Defendant came out of the house, walked behind them, yelled,
cursed the victim, and accused the victim of knocking out her
tooth. Mr. Jones said the Defendant yelled, "You, B----,
you knocked my teeth out of my mouth, " "You want
to fight now, " "Why you running now, " and
"Come on back and fight." Mr. Jones saw the
Defendant holding a gun. The Defendant told Mr. Jones to
move, and the Defendant attempted to fire the gun, but it
misfired. Mr. Jones said the Defendant fired the gun again,
and the victim fell to the ground. Although he did not know
where the victim had been shot, he assumed the Defendant shot
the victim in the back of the head because the victim had not
been facing the Defendant.
Mr. Jones testified that when the victim fell, the Defendant
ran to the victim, talked about what she had done, returned
home, changed her clothes, and returned to the scene. While
the Defendant was gone, someone driving a truck stopped next
to the victim, who was lying in the street, to prevent
drivers from running over him. The Defendant talked to the
first responders at the scene, and Mr. Jones heard the
Defendant tell them that the victim had been hit by a car.
The Defendant did not have the gun at that time.
Mr. Jones identified the clothing the Defendant wore at the
time of the shooting and testified that the Defendant did not
have any visible blood on her clothes before the shooting.
Mr. Jones did not see the victim hit the Defendant. He said
the victim was short, weighed about 120 pounds, and suffered
from stomach ulcers. Mr. Jones said the victim did not have a
gun that day and denied ever seeing the victim carry a gun.
He said that the day of the shooting was the first time he
had seen the Defendant carry a gun.
On cross-examination, Mr. Jones testified that although he
left the house when the victim and the Defendant began to
argue, he heard the argument from outside the house. He heard
what he thought was a physical altercation, but he denied
hearing them argue about anything other than the victim's
cheating. He heard tussling and wrestling from inside the
house. He said the Defendant did not have any injuries when
he and the victim returned from the lumberyard. He said that
the Defendant "was talking crazy" and screaming
when she left the house with the gun. On redirect
examination, he clarified that he looked at the Defendant
when he saw the gun, that he saw the Defendant pull the
trigger twice, and that after the gun fired, he looked at the
victim, who fell.
Terrell Randle testified that on February 23, 2012, he lived
across the street from the Defendant and the victim. He knew
the victim but was never introduced to the Defendant. He said
that before the shooting, he was working on his car. He said
he saw Mr. Jones and the victim walking down the street, and
the Defendant was following them. He heard the Defendant
yell, "M.F. it's your last time hitting me. You
ain't going to do it no more[.]" He said the victim
and Mr. Jones did nothing in response to the Defendant's
yelling and continued walking down the street. He said the
Defendant was a couple feet behind them, and she did not
appear to have any injuries.
Mr. Randle testified that the Defendant had a small object in
her hand when she left the house. He said that the victim and
Mr. Jones walked out of his sight and that he heard a
gunshot. Mr. Randle walked to the victim's location, and
he said the Defendant ran past him and toward her house. He
noticed the Defendant wore sweat pants and a shirt. When Mr.
Randle arrived at the victim's location, he saw the
victim lying in the street and said the victim did not
respond when he called out the victim's name. He said the
Defendant returned, was frantic and shocked, and said someone
hit the victim with a car. He noticed the Defendant had
changed her clothes and was wearing camouflage shorts. The
Defendant did not have a gun when she returned, but he
noticed the Defendant had "a bloodstain on her
On cross-examination, Mr. Randle testified that he did not
know what occurred after the victim and Mr. Jones walked out
of his sight but before he heard the gunshot. He and the
Defendant did not speak. He said that when the Defendant
returned to where the victim was lying in the street, she
seemed disturbed and emotional.
Edwin Boswell testified that on the day of the shooting, he
was at "the candy lady's house" located across
the street from the Defendant and the victim's house. Mr.
Boswell and the victim were good friends, and he met the
Defendant through the victim. He did not witness the
shooting. On cross-examination, Mr. Boswell testified that he
had spent considerable time at the Defendant and the
victim's house and that he never saw them fight. He did
not recall providing a statement to the police or telling the
police he saw the Defendant and the victim running down the
Darren Turner testified that he was working outside at the
time of the shooting. He saw the victim walk down the street
and the Defendant walk behind the victim. He heard a gunshot
and ran to the victim's location. He said the Defendant
told him to call the police and ran to her house. The
Defendant returned to the scene, and Mr. Turner said she had
a "receiver" in her hand and said, "Come on,
Tario. I'm sorry. I'm sorry, Baby." He said that
when he first saw the Defendant, she was wearing camouflage
shorts but was wearing jogging pants when she ...