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State v. Waller

Court of Criminal Appeals of Tennessee, Jackson

December 15, 2016

STATE OF TENNESSEE
v.
JAKEIL MALIK WALLER

          Assigned on Briefs August 2, 2016

         Appeal from the Circuit Court for Madison County No. 15-41 Donald H. Allen, Judge

         In December 2014, the Madison County Grand Jury indicted Jakeil Malik Waller ("the Defendant") and the Defendant's brother, Jernigal Blackwell, for second degree murder and aggravated assault. Following a trial, a jury convicted the Defendant of second degree murder and felony reckless endangerment, as a lesser included offense of aggravated assault, and the trial court sentenced the Defendant to an effective sentence of twenty-seven years' incarceration. On appeal, the Defendant contends that: (1) the evidence was insufficient to support his conviction for second degree murder; (2) the prosecutor committed misconduct during closing argument; and (3) the trial court abused its discretion by admitting two photographs of the victim that were not relevant to any issue at trial. Upon review, we affirm the judgments of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

          George Morton Googe, District Public Defender, and Gregory D. Gookin, Assistant District Public Defender, for the appellant, Jakeil Malik Waller.

          Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; Jerry Woodall, District Attorney General; and Aaron J. Chaplin, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which John Everett Williams and Camille R. Mcmullen, JJ., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE

         I. Factual and Procedural Background

         This case arises out of a fight between two young men, which ended when the Defendant and his brother fired multiple shots into a crowd of people who were watching the fight-killing Shomari Peterson and injuring Thomas Reid, Jr. At trial, Jessica Spencer testified that she was living at Parkway East Apartments in Jackson on July 27, 2014. On that day, Ms. Spencer saw a crowd gathering in a grassy area behind one of the apartment buildings, and she heard someone say, "[T]hey [sic] fixing to fight[.]" Ms. Spencer went to where the crowd had gathered and began recording the scene with her cell phone. She explained that a fight broke out between Tristan Cook and another young man. According to Ms. Spencer, the other man "was whupping Tristan, " and several people stepped in to help Tristan[1] and break up the fight. Then, Ms. Spencer's boyfriend, Quantavious Anderson, started to fight with the man who had beaten up Tristan. At that time, Ms. Spencer saw the Defendant come from behind one of the nearby buildings to stand at the edge of the crowd. Ms. Spencer recalled that the Defendant was wearing gray and black clothing and a hat. She noticed that the Defendant was "fidget[ing]" with something and then pulled out a black handgun and shot into the crowd of people. Ms. Spencer stated that she saw the Defendant shoot the gun one time, but she heard additional gunshots as she ran from the scene. She said that she saw someone with a bat but did not see anyone else with a gun.

         Ms. Spencer testified that, several days after the shooting, she dropped her cell phone and cracked the screen. She then sold her phone at a machine at a mall. Ms. Spencer testified that, before her phone was damaged, she showed the cell phone video of the incident to the mother of one of the shooting victims. She explained that she did not initially turn it over to police because she did not want to get involved. However, an investigator with the Jackson Police Department ("JPD") subsequently asked her about the cell phone video and the location of her phone.[2] Ms. Spencer identified the Defendant in the video. She then reviewed several screenshots from the cell phone video. She identified the Defendant in one of the screenshots and stated that it showed the Defendant holding up a gun and "getting ready to shoot[.]"

         Jamarion Snipes testified that, on the day of the shooting, he and his best friend, Shomari Peterson, were at a restaurant when Mr. Peterson received a phone call. Mr. Peterson said that they needed to go back to Parkway East because some people were "fixing to jump on Tristan[.]" Jamarion explained that Tristan had intervened in a fight between his girlfriend and another woman a few days earlier and the other woman's boyfriend, Martel Majors, [3] wanted to fight Tristan. Jamarion said that he and Mr. Peterson returned to the apartment complex around 5:00 p.m. As they were walking through the parking lot, Jamarion noticed four men sitting on the hood of a car. He knew two of the men-the Defendant and the Defendant's brother, Jernigal Blackwell. He recalled that the Defendant had on a backwards ball cap and gray sweat pants and that Mr. Blackwell had on orange shorts. Jamarion testified that, as he and Mr. Peterson approached Tristan, he heard someone say that they needed to wait until Tristan's uncle arrived. While they waited for Tristan's uncle, about thirty to forty people gathered outside. Eventually, Tristan and Mr. Majors began arguing and then started to fight.

         Jamarion recalled that, at the beginning of the fight, the Defendant announced, "I'm going to sit back in the breezeway and make sure nobody just jump[s] in. You ain't go[t] to worry about nothing." At that time, he noticed Mr. Blackwell reaching in his pockets. Mr. Peterson pointed a baseball bat at Mr. Blackwell and said, "Keep your hands out [of] your pocket. You don't need to do that." Jamarion stated that, when another man jumped into the fight, he heard gunshots. When the shooting began, Jamarion and Mr. Peterson "tried to take off running, " but Mr. Peterson was hit with a bullet and fell down. Two men picked up Mr. Peterson and carried him into a nearby apartment. Jamarion testified that he looked back when Mr. Peterson fell and saw the Defendant and Mr. Blackwell shooting at them. He estimated that Mr. Peterson was five or six feet away from the Defendant and Mr. Blackwell when they began shooting. He stated that he heard about twenty gunshots in total. After the shooting, Jamarion learned that Mr. Peterson had been shot. He stated that he went to the apartment where Mr. Peterson was located and that Mr. Peterson was "in the house bleeding to death and then my cousin took off his shirt and wiped his face." Mr. Peterson said, "Please don't let me die. Please don't let me die[.]"

         Jamarion recalled that, when the police arrived on the scene, the Defendant and Mr. Blackwell avoided the officers and left the apartment complex. Jamarion testified that Mr. Blackwell fired the first shot but that he also saw the Defendant shooting from the side of the building. He stated that he knew Mr. Blackwell had a gun before the shooting because it had an extended clip that was "hanging out of his shorts[.]"

         On cross-examination, Jamarion said that Tristan initially did not want to fight and that someone called Tristan's uncle over "just to make him fight[.]" Jamarion recalled that Tristan's uncle arrived with four other people before the fight. Jamarion said that Mr. Blackwell fired the first shot and that he believed the first shot hit Mr. Peterson. He stated that Mr. Peterson fell down before the Defendant fired a shot. He said that Mr. Peterson was attempting to run away when he was shot. He stated that, after the Defendant started shooting, "They was [sic] all shooting back at each other."

         Averyion Cook testified that he was at Parkway East with his brother, Tristan, when a group of people began gathering in a parking lot. He recalled that the Defendant and Mr. Blackwell were standing with the group of people with "their hands in their pocket[s] the whole time." Averyion explained that the crowd was there to watch Tristan fight Mr. Majors because the day prior the mother of Tristan's child got into a fight with Mr. Major's girlfriend and Tristan stepped in.

         Averyion recalled that the crowd began to get "rowdy" after the fight was over. At that time, he noticed the Defendant and Mr. Blackwell backing away from the crowd. As Mr. Majors ran behind the apartment building, Averyion heard gunshots. Averyion stated that the Defendant shot up into the air one time and, at first, no one moved. Then Mr. Blackwell started shooting, and "everybody started running." As he fled, Averyion saw the Defendant and Mr. Blackwell shooting towards the crowd. Although he did not see Mr. Peterson get shot, Averyion saw Mr. Peterson lying on the ground holding his chest. Averyion identified the Defendant in the cell phone video of the fight and described the Defendant's clothing as a dark gray shirt and gray jogging pants. He also identified Mr. Blackwell, who was wearing orange shorts in the video.

         On cross-examination, Averyion testified that he did not see his and Tristan's uncle at the fight. Averyion further testified that he did not see anyone with a baseball bat at the scene. He agreed, however, that the cell phone video showed a man in the crowd holding a bat. Averyion recalled hearing "[a] bunch" of shots, and he stated that he only saw the Defendant and Mr. Blackwell firing a weapon.

         Jacobe Snipes testified that he was at Parkway East at the time of the shooting. Jacobe explained that he saw the Defendant and Mr. Blackwell sitting on the hood of a car before the fight. During the fight, Jacobe noticed that "[t]he dude in the orange [shorts] kept like touching his pocket[.]" He realized that the man had a gun in his pocket. He stated that, when the fight stopped, the Defendant and Mr. Blackwell started shooting towards the crowd. Jacobe said that Mr. Blackwell fired first and that both men were standing between two apartment buildings. As he ran from the area, Jacobe heard several more gunshots. Jacobe testified that he only saw the Defendant and Mr. Blackwell firing a gun and that he did not see anyone else with a gun that day. Jacobe recalled that he helped Mr. Peterson to a nearby apartment after Mr. Peterson was shot. Once inside, Mr. Peterson fell to the floor in the kitchen and began to cough up blood.

         On cross-examination, Jacobe explained that he was at the gates of the apartment complex when he heard there was going to be a fight. He saw a crowd of people and went over to the group right before the fight began. Jacobe could tell that the Defendant and Mr. Blackwell had guns because their "pocket[s] [were] like shaped in a gun[.]" Jacobe said that he did not see anyone with a baseball bat. He stated that he first saw Mr. Blackwell shoot towards the crowd of people, and he saw Mr. Peterson get shot in the chest. Jacobe said that Mr. Peterson was shot immediately when the shooting started, and he saw both the Defendant and Mr. Blackwell shooting at the crowd where Mr. Peterson was standing. Jacobe estimated that he heard more than ten gunshots.

         Thomas Reid, Jr. testified that, on the day of the shooting, he pulled into the parking lot at Parkway East and saw a "big crowd of people" watching Tristan and Mr. Majors. Mr. Reid attempted to break up the fight by pulling Mr. Majors off of Tristan. When Mr. Anderson began fighting with Mr. Majors, Mr. Reid heard a gunshot which he thought was meant to "scatter the crowd." Mr. Reid stated that the man who fired the first shot was wearing "dark-colored clothing." Then, he heard additional gunshots, and he ran from the area. As he was running, Mr. Reid realized that he had been shot and saw blood "gushing out" from his chest. He stated that he looked back and saw the Defendant and Mr. Blackwell, who were standing in between two of the apartment buildings, shooting at him. Mr. Reid ran across the street, lay down in the grass, and told people around him that he had been shot. He stated that he did not see anyone other than the Defendant and Mr. Blackwell shooting a gun that day.

         JPD Officer Kevin Livingston testified that, on July 27, 2014, he responded to a report of "multiple shots being fired and possible multiple victims" at Parkway East. When he got to the scene, he found Mr. Reid lying on the ground between two apartment buildings. Officer Livingston attempted to calm Mr. Reid and to assess Mr. Reid's injuries. He testified that Mr. Reid was shot in the upper body, and he rendered aid until an ambulance arrived. Officer Livingston stated that he was one of the first ...


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