Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs November 12, 2015
Appeal from the Circuit Court for Montgomery County No.
41200556 Michael R. Jones, Judge
in the Montgomery County Circuit Court found the Appellant,
Nicholas Rico Durant, guilty of the first degree premeditated
murder of his wife, and the trial court sentenced him to life
imprisonment. On appeal, the Appellant contends that the
evidence was not sufficient to establish beyond a reasonable
doubt that he acted with premeditation and that the trial
court's jury instruction regarding premeditation was not
sufficient to "satisfy state and federal constitutional
rights to due process and trial by jury." Upon review,
we affirm the judgment of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
E. Nell and Crystal Myers, Clarksville, Tennessee, for the
Appellant, Nicholas Rico Durant.
Herbert H. Slatery III, Attorney General and Reporter;
Caitlin Smith, Assistant Attorney General; John Wesley
Carney, Jr., District Attorney General; and Helen Young,
Assistant District Attorney General, for the Appellee, State
McGee Ogle, J., delivered the opinion of the court, in which
Camille R. McMullen and Robert L. Holloway, Jr., JJ., joined.
MCGEE OGLE, JUDGE
Appellant's conviction stemmed from the death of his
twenty-three-year-old wife, Shardae Wright. The shooting
occurred in The Groves apartment complex in Clarksville in
the early morning hours of March 3, 2012, approximately one
week after their marriage. The Appellant admitted that he
shot the victim but contended that he shot her "while in
a state of rage" during an argument.
Sergeant Shavonde Chase testified that in January 2012, she
was stationed at Fort Campbell. On March 1, she moved into an
apartment in The Groves with two other women, one of whom was
the victim. Sergeant Chase did not know either woman before
she moved into the apartment.
evening of March 2, Sergeant Chase, who was asleep in her
room, was awakened when she heard arguing. She left her
bedroom, reminded her roommates that she was there, went to
the kitchen, then returned to her bedroom. She did not notice
anything amiss. She fell asleep again and was awakened by the
victim's knocking on her door. The victim ran into the
bedroom, followed seconds later by the Appellant, who had a
gun. Sergeant Chase said that the victim and the Appellant
might have said things "back and forth, " but the
only thing she could recall specifically was the victim's
saying, "Please don't, I have kids." The two
women ran into the bathroom. Sergeant Chase told the
Appellant to calm down and asked "what was
happening." The Appellant came into the bathroom and
pointed a gun at the victim. Sergeant Chase ran around the
Appellant and out of the apartment. As she was leaving, she
Chase said that on the evening of the shooting, she was
wearing pajama pants and a blue, long-sleeved top. Her hair
was either in a bun or a ponytail. After she left the
apartment, she ran to the housing office to try to find a
telephone to call for help. Unable to find a telephone, she
went to Building 10, stopped a woman in a car, and used her
telephone to call 911.
Chase did not recall if she or the victim shut the door when
they went into the bathroom and did not recall if the
Appellant did anything to the door. She recalled, though,
that the bathroom door was not damaged before that night.
Sergeant Chase said that she was a heavy sleeper and would
not be surprised if she had slept through some gunshots.
Chase said that four days after the shooting, she spent three
weeks in Skyline, a mental health facility, recovering from
"issues" stemming from the shooting. She
acknowledged that the offense still affected her. She also
acknowledged that her memory of the day of the shooting was
"bad" and that she did not remember many details,
just "the climax of it all." Sergeant Chase said
that she had never met the Appellant before that night.
Sergeant England Thomas Phillips testified that he met the
Appellant and the victim while they were stationed at Fort
Campbell. He thought the Appellant began dating the victim
late in 2011 and knew the Appellant had a child with another
woman, Dedra Allen. Sergeant Phillips had heard that the
Appellant and the victim often fought and then reconciled,
but he never witnessed any problems between them. The
Appellant never told Sergeant Phillips about any problems
between Allen and the victim. Sergeant Phillips said the
Appellant was "quiet" about getting married, seemed
happy that he had a child, and wanted to be a good father.
Phillips said that one or two days before the victim was
killed, the Appellant and the victim came to Sergeant
Phillips's house around 8:00 p.m. Sergeant Phillips
estimated that The Groves apartment complex was approximately
ten minutes from his house. While Sergeant Phillips cut the
Appellant's hair, the victim sat on the couch next to
Sergeant Phillips's wife, who was holding the
Appellant's baby. Neither the Appellant nor the victim
appeared to have been drinking. Sergeant Phillips saw a cut,
which appeared to be healing, on the Appellant's arm. The
Appellant said that the victim had cut him about a week
before, and he did not seem to be bothered by the cut. The
Appellant left when the haircut was finished. Sergeant
Phillips said that he and the Appellant had planned to attend
a ball game honoring soldiers the next day.
Phillips said that around 5:00 p.m. the next day, Detective
Mike Ulrey came to Sergeant Phillips's house and asked if
Sergeant Phillips knew where the Appellant was. While the
police were there, the Appellant called, and Sergeant
Phillips let Detective Ulrey speak with the Appellant.
Regarding the shooting, Sergeant Phillips said, "I never
seen (sic) it coming."
cross-examination, Sergeant Phillips stated that the
Appellant was generally a calm person and that he had never
seen the Appellant lose his temper. He described the
Appellant as an "outstanding soldier" who was
honest and athletic and had never given Sergeant Phillips
redirect examination, Sergeant Phillips said that the
Appellant was "very together, " "[i]n control
of himself, " and did not have difficulties at work.
Sergeant Phillips never saw the Appellant act afraid of
anyone, including the victim, and opined that the Appellant,
who had been through combat training, had no reason to fear
anyone. Sergeant Phillips said that the Appellant married the
victim ten or eleven days before the shooting. Although the
Appellant did not talk about his concerns, Sergeant Phillips
surmised from the Appellant's facial expressions that the
Appellant had "doubts" about his marriage and that
the Appellant thought "he may have moved too fast on
Antwaine Pittman testified that he spent a lot of time at Kim
Rose's apartment at The Groves. At the time of the
shooting, Rose and the victim were sharing an apartment, but
they did not know each other very well. Pittman explained
that residents of The Groves did not have the option of
choosing a roommate. Pittman had never seen the Appellant
prior to the night of the shooting and had seen the victim
only a couple of times.
said that he went to the victim's apartment around 7:00
p.m. on March 2. The victim and Twan McBride walked in with a
baby. The victim and the man left to "drop off" the
baby and returned with some alcohol. Rose had a drink then
left the apartment.
said that around 9:00 p.m., the Appellant came to the
apartment. Pittman, the Appellant, McBride, and the victim
talked about whether to go to a club or play cards. Pittman
said everyone had been drinking, but they were not drunk. The
victim did not want to go out, and the Appellant decided to
stay at the apartment. The Appellant explained that he knew
the victim would get mad if he went out and that he did not
want to fight with her. Thereafter, while McBride was getting
ready to go to the club, the victim and the Appellant went
into her bedroom. Pittman looked inside the victim's
bedroom and saw the victim sitting on her bed with a laptop
computer in front of her. The Appellant pulled a black box
from underneath the bed, opened the box, removed a gun, and
showed the gun to Pittman and McBride. Pittman said the gun
had "a honeycomb shaped barrel" and a "long
clip." When Pittman and McBride left the apartment, the
Appellant followed them to the parking lot. Pittman said the
Appellant walked as if he had something under his shirt.
Pittman did not hear a disagreement between the victim and
the Appellant that night. Pittman never saw the Appellant in
the victim's bed and did not see the victim throw water
on the Appellant.
said that later that night, McBride received a telephone call
and learned that the victim had been killed. McBride and
Pittman returned to The Groves but could not get inside the
complex because the police were there.
cross-examination, Pittman said that on the night of the
offense, everyone in the apartment was drinking
"shots" of vodka and gin. He could not recall
whether the alcohol was mixed with anything. Pittman
estimated that he and McBride left the apartment around 10:30
p.m. Pittman thought the Appellant had the gun when he
followed the men outside but was not certain. Pittman did not
know if the Appellant returned to the apartment.
D. Casto testified that at the time of the offense, he lived
with his girlfriend Stephanie Buchanan and Jerry Dolnick at
the apartment across from the victim's apartment. He had
seen the victim and the Appellant on one or two occasions.
Shortly before Casto went to bed on the night of the
shooting, he walked outside and smoked a cigarette. He did
not notice anything unusual. He went to bed around 11:20 or
11:30 p.m. and fell asleep twenty to twenty-five minutes
later. At midnight, he was awakened by a "series of loud
noises" that sounded like gunshots. They occurred two to
five minutes apart. Casto also heard a scream.
called the police officer who worked at the apartment
complex. When the officer did not answer the call, Casto
called 911 then walked to the front door and looked out the
peephole. Upon seeing nothing, he opened the door. Five or
six steps down the stairs, he saw an open gun case. The lock
on the front door of the victim's apartment appeared to
have been "tampered with." Nine or ten bullet holes
were in the door, and shell casings were on the landing in
front of the victim's door.
cross-examination, Casto said that he did not see anyone
outside while he was smoking. He said that the apartment
complex was unusually loud on Friday nights and Saturday
mornings because of college students "partying."
Buchanan testified that in March 2012, she was living in an
apartment at The Groves with Casto, Jerry Gammon, and John
Wallace. Around 11:45 p.m., she and Wallace were smoking
outside in the stairwell leading to the third floor. Buchanan
saw a man come up the stairs, pause and turn as if he were
drunk or lost, then go down the stairs. A few seconds later,
the man started up the stairs and then paused in the middle
of the stairway. Buchanan heard "a shuffling and a
clicking" and assumed that the man had dropped
something. The man asked for directions to apartment 620, and
Buchanan informed him that there was no apartment 620,
explaining that all of the apartment numbers ended in 1, 2,
3, or 4.
testified that she did not get a good look at the man's
face because she was paying attention to his behavior. She
described him as "an average black guy, regular street
clothes, nothing really stood out, . . . short hair,
clean-shaven, looked like a normal kid." She said the
man was of average height, which she estimated was between
five feet and eight inches and five feet and ten inches,
weighed an estimated 190 pounds, and had an athletic build.
His complexion was "medium, " neither dark nor
seeing the man, Buchanan and Wallace returned to the
apartment. A couple of minutes later, she heard gunshots.
cross-examination, Buchanan said that she would not consider
someone over six feet tall to be of average height. Buchanan
did not really notice the man's clothes but thought the
man was wearing "[r]egular street clothes, " which
may have been jeans and a t-shirt. She did not see a gun
case, but she explained that she "didn't go over to
estimated that it was midnight when she returned to her
apartment. She heard the gunshots minutes later. She
described the shots as "very rapid fire" and
estimated that a couple of minutes elapsed between the first
and last shots. Buchanan said that a lot of military
personnel and college students lived in the apartment
complex, that parties occurred frequently, and that seeing
strangers around the complex was not unusual. Buchanan
acknowledged that the police had her look at photographs and
that she identified someone other than the Appellant as the
man she saw.
Day testified that on the night of the shooting, he was
attending a party in Building 7 of The Groves. Sometime
between 11:00 p.m. and 1:00 a.m., he went out on the second
floor landing near Building 6. He saw someone at Building 6
then heard "pop, pop, pop." He noticed "some
smoke, some flash from what . . . [he] heard." Day said
that he did not get a good look at the individual at Building
6 but acknowledged he later told the police that the
person's hair was short and was either a new haircut or a
called 911 as he walked to the second floor of Building 6,
where he had seen the flash. He saw bullet holes in an
apartment door, and the door appeared to have been kicked in.
He told the 911 operator that he heard seven or eight shots,
a pause of thirty to forty-five seconds, a few muffled shots,
a few more seconds of quiet, and then more muffled shots.
point, the police showed Day a photograph lineup, from which
he identified the Appellant. Day said that he did not know
the Appellant, the victim, or anyone who lived in Building 6.
cross-examination, Day said that Building 7 was approximately
200 feet from Building 6. Nonetheless, he was able to
identify the Appellant in the photograph lineup. Day
estimated that approximately two minutes elapsed from the
first shot to the last shot. Day said that he saw the
Appellant leave the apartment where the shooting occurred;
the Appellant was walking fast but not running.
redirect examination, Day said that he told the police that
he saw the Appellant back away from the door and then heard
shots. He also said that he thought the Appellant struggled
with the door before going inside the apartment. Day heard
more shots thirty to forty-five seconds after the first
Foster testified that in March 2012, she lived on the first
floor of Building 5 of The Groves. From her bedroom window,
she could see the side of Building 6. On the night of the
shooting, Foster was lying in bed talking on the telephone
when she heard loud, banging noises that she thought were
gunshots. She got up and looked out the bedroom window. She
saw a man kick in or break a door of an apartment in Building
6, and then the man walked into the apartment. Three to five
minutes later, she saw a black woman with her hair in a
ponytail and wearing a tank top and pajama pants run from the
apartment. About two minutes later, the man walked out of the
apartment, down the stairs, and toward Foster's bedroom
window. He dropped something in the grass then bent and
picked it up.
said that she had never seen the victim or the man before
that night. She told the police that the man was wearing red
and black basketball shorts. During trial, she identified a
photograph of the Appellant's shorts, which were red and
acknowledged that she did not call 911. She explained that
she thought nothing serious had happened because she saw the
woman run away.
Police Officer John Daniel Bushnell testified that on the
night of March 3, 2012, he went to the victim's
apartment. He said that he found bullet casings in the
stairwell leading up to the second floor, more bullet casings
on the landing outside of the victim's apartment, and
bullet holes in the front door. The front door was open. It
appeared that someone had kicked the door open, and the lock
Bushnell said that the apartment had a common area, a common
kitchen, and three bedrooms that each had a private bathroom.
The door to the first bedroom, which Officer Bushnell
referred to as room A, was closed. He went inside room A, but
it was empty. The apartment's second bedroom, room B, was
also empty. The door to room B appeared to have been kicked
open. Inside the bathroom of the third bedroom, room C,
Officer Bushnell saw multiple bullet holes and several bullet
casings on the floor. The victim, ...