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State v. Burgess

Court of Criminal Appeals of Tennessee, Jackson

January 31, 2017


          Assigned on Briefs August 2, 2016

         Appeal from the Criminal Court for Shelby County No. 14-02782 J. Robert Carter, Jr., Judge

         A Shelby County jury convicted the Defendants, Dantario Burgess, Rodriguez McNary, and Joseph Jones-Cage, of two counts of attempted first degree murder, one count of aggravated assault, and one count of reckless endangerment. Mr. Jones-Cage and Mr. McNary also were convicted of employing a firearm during the commission of a dangerous felony. Mr. Burgess also was convicted of employing a firearm during the commission of a dangerous felony having been previously convicted of a felony and of possessing a firearm after having been convicted of a felony involving the use or attempted use of violence. The trial court sentenced Mr. Burgess to an effective term of fifty-five years, Mr. Jones-Cage to an effective term of fifty years, and Mr. McNary to an effective term of forty-one years. On appeal, the Defendants raise the following issues either collectively or individually: (1) the trial court erred in denying Mr. Burgess' motion to suppress a witness's identification of him in a photographic lineup and in limiting the cross-examination of the victim during the suppression hearing; (2) the failure to name the predicate felony in the indictment for employing a firearm during the commission of a dangerous felony voids the conviction; (3) the evidence is insufficient to support the convictions; (4) the trial court committed plain error in not allowing defense counsel to impeach the victim's testimony at trial with her statement to the police; (5) the malfunctioning of the recording equipment during the trial warranted a mistrial; (6) the sentences of Mr. Burgess and Mr. McNary are excessive; (7) the cumulative effect of the errors warrants a new trial; and (8) the trial court erred in denying Mr. Burgess' pro se petition for writ of error coram nobis. We conclude that the evidence is insufficient to support Mr. McNary's conviction for employing a firearm during the commission of a dangerous felony and reverse the conviction. We remand the matter for a new trial on possession of a firearm during the commission of a dangerous felony as a lesser-included offense. We also remand the case for entry of corrected judgments reflecting that Mr. Jones-Cage was convicted of attempted first degree murder in count one and is to serve 100 percent of his sentence for the firearm conviction in count three. We otherwise affirm the judgments of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed in Part, Reversed in Part, and Remanded.

          Paul K. Guibao (on appeal) and Jada Brisentine (at trial), Memphis, Tennessee, and Dantario Burgess, pro se (coram nobis proceedings), Mountain City, Tennessee, for the appellant, Dantario Burgess.

          Charles W. Gilchrist, Jr., Memphis, Tennessee, for the appellant, Rodriquez McNary.

          Stephen C. Bush, District Public Defender; Tony N. Brayton (on appeal) and Alicia Kutch (at trial), Assistant District Public Defenders, for the appellant, Joseph Jones-Cage.

          Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel; Jeffrey D. Zentner, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Paul Hagerman and Meghan Fowler, Assistant District Attorneys General, for the appellee, State of Tennessee.

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




         The evidence presented at trial established that on March 10, 2013, the Defendants and co-defendant Benjamin Bohannon shot at a group of people at an apartment complex and then fled in Mr. Jones-Cage's vehicle. The group included Mr. Demarcus Thomas, Ms. Shanna Niter, Ms. Niter's two year-old son J.N., [2] Ms. Brittany Hervery, and Ms. Hervery's two-month-old daughter J.H. Mr. Thomas sustained multiple gunshot wounds to the face and head. He survived the shooting but requires twenty-four-hour care as a result of the injuries. Ms. Niter sustained a graze gunshot wound to her right side.

         The State's Proof

         Ms. Shanna Niter testified that on March 10, 2013, at approximately 10:30 or 11:00 a.m., Mr. Thomas was at her apartment at the Hillview Apartments cooking for her, J.N., and her daughter, who was a few months old. Mr. Thomas burned bacon, and as a result, Ms. Niter opened the windows and doors to the apartment. J.N. ran outside in his underwear, and Ms. Niter chased after him.

         Ms. Niter stated that she saw Mr. Jones-Cage or "Trey" in a Ford Explorer parked outside of her apartment and that he called out to her. The vehicle was parked so that the passenger side of the vehicle was facing Ms. Niter and the front of the vehicle was facing a dumpster. Ms. Niter said that as she approached the vehicle, she had a strange feeling and the "hairs on the back of [her] neck stood up." She stated that Mr. Jones-Cage was sitting in the driver's seat and that three other men, whom she had never met, were inside the vehicle. The front window on the passenger side was down, and the backseat window on the passenger side was halfway down. Ms. Niter said that she could see each of the men inside of the vehicle and that the men looked at her as if they did not want her to approach them. She stated that she did not walk all the way up to the truck.

         At trial, Ms. Niter identified Mr. Burgess as the man who was sitting on the back passenger side and Mr. McNary as the man who was sitting on the back driver's side of the vehicle. Ms. Niter said the man who was sitting on the front passenger side was not at the trial.

         Ms. Niter testified that Mr. Jones-Cage asked her where her cousin, "Little Glen, " was and told her to call "his b**** a**." Ms. Niter told Mr. Jones-Cage that "Little Glen" was not there and that she was unable to contact him. At that time, J.N. was standing next to Ms. Niter; Mr. Thomas was standing on steps on the opposite side of Ms. Niter; and Ms. Hervery was standing nearby and holding her baby who was in a car seat.

         Ms. Niter stated that Mr. Thomas told Mr. Jones-Cage and the other men to leave because children were in the area. Mr. Jones-Cage stated, "[F]*** them b****** and their kids." Ms. Niter said that Mr. Jones-Cage then "upped" a small black gun and that he and the passengers began shooting. She saw Mr. Jones-Cage, Mr. Burgess, and the man in the front passenger seat shooting. She saw Mr. McNary with a gun but was not sure whether he was shooting. The man in the front passenger seat was hanging out of the window and shooting, while Mr. Jones-Cage was leaning and shooting from the driver's seat out of the front passenger window. Ms. Niter said that from "the way that [Mr. Jones-Cage] was shooting[, ] he could [have] shot the person . . . sitting next to him." Mr. Burgess was shooting a large black gun out of the back passenger side window.

         Ms. Niter described the shootings as "like a war." She said one of the bullets hit Mr. Thomas in the face and that "stuff smashed everywhere." Mr. Thomas turned around, and another bullet hit him in the back of his head and knocked him down. Ms. Hervery dropped her baby, who was in a carseat, and began running back and forth while screaming. Ms. Niter said she was in shock and was unable to move. She heard bullets hitting the bricks behind her. She then grabbed her son and began running. During the shooting, Ms. Niter's baby was sitting in a highchair inside her apartment. Ms. Niter later discovered that bullets had entered the apartment and struck the highchair.

         Ms. Niter testified that a bullet struck her on the right side near her rib cage. The bullet knocked several layers of skin away from the area, and Ms. Niter had a scar as a result of the injury. She later had a tattoo placed over the scar and said that she could still feel "fragments or something in there."

         Ms. Niter stated that when the police arrived, Mr. Thomas was lying on the ground and "fighting for his life." His eyeball was no longer in its socket, and his nose was gone. When Mr. Thomas tried to breathe, blood shot out from the area where his nose had been.

         Ms. Niter received medical attention and gave officers a description of the vehicle involved. She later gave a statement to the police, identified Mr. Jones-Cage, and gave a brief description of the passengers. She later identified the Defendants and the front seat passenger in photographic lineups.

         On cross-examination, Ms. Niter testified that she called Mr. Jones-Cage earlier in the day. She explained that "Little Glen" made a comment about Mr. Jones-Cage on Facebook and that Mr. Jones-Cage told "Little Glen" to have Ms. Niter bring him to Mr. Jones-Cage's house so that Mr. Jones-Cage could "f*** him up." Ms. Niter stated that Mr. Jones-Cage had been pursuing "Little Glen" for two years.

         Ms. Niter acknowledged that while she identified Mr. Jones-Cage on the day of the shooting, she did not identify the passengers until a later date. She did not remember whether she told the police that one of the men had a tattoo on his face and did not recall testifying at the preliminary hearing that she never told the police that one of the men had a scar or an identifying mark between his eyes. Ms. Niter acknowledged that Mr. Burgess had a "very noticeable" identifying mark between his eyes. She said the back passenger window to the vehicle was tinted and was only rolled halfway down.

         Ms. Brittany Hervery testified that on April 10, 2013, she and her two-month-old daughter, J.H., went to Ms. Niter's apartment because Ms. Hervery was planning to cook breakfast for Ms. Niter, Ms. Niter's two children, and Mr. Thomas. After Ms. Hervery arrived, a green four-door truck driven by Mr. Jones-Cage pulled up. Ms. Hervery said she had known Mr. Jones-Cage for a few years. She saw three other people inside the vehicle. Mr. Jones-Cage asked Ms. Niter, "Where's Little Glen, b**** a**?" Ms. Niter told Mr. Jones-Cage that "Little Glen" was not there, and Mr. Jones-Cage instructed Ms. Niter to call him. Ms. Niter told him to wait and began walking away from the vehicle.

         Ms. Hervery stated that Mr. Thomas came outside after hearing the commotion and asked Ms. Hervery what was occurring. Ms. Hervery told him that the men were looking for "Little Glen." Mr. Thomas told the men to leave because children were outside. Ms. Hervery said Mr. Thomas did not threaten the men. She also said that many children were outside and that she was holding her baby. Mr. Jones-Cage replied, "[F]*** you, those kids and them b******, " and he and some of the passengers began shooting.

         Ms. Hervery testified that the passenger in the front seat was shooting but was not looking as he shot. Mr. Jones-Cage was reaching over the passenger and shooting out of the window. Ms. Hervery said the man who was sitting in the backseat on the passenger's side was leaning out of the car and shooting with a large gun. She did not see the man sitting behind Mr. Jones-Cage shooting and did not get a good look at him.

         Mr. Thomas was shot between the eyes and in the temple. Upon hearing the shots, Ms. Hervery dropped her baby and crawled to Mr. Thomas to assist him. Someone picked up Ms. Hervery's baby and carried her inside an apartment. Ms. Hervery got on top of Mr. Thomas; the shooting stopped; and the men drove away. Ms. Hervery then called 911. She said that Mr. Thomas's eye was on the ground, that his nose was "opened up, " and that his blood was "spewing" everywhere. Ms. Hervery and the children were not injured.

         When the police officers arrived, Ms. Hervery told them what had occurred. The officers later showed Ms. Hervery photographic lineups. She identified Mr. Jones-Cage from the photographic lineup but was unable to identify the other defendants.

         On cross-examination, Ms. Hervery testified that the back windows to Mr. Jones-Cage's vehicle were tinted and that she did not see everyone clearly until the windows were rolled down. She was unsure how far down the windows were rolled. She told officers on the day of the shooting that she only saw Mr. Jones-Cage. An officer later called her and asked whether she was certain about the information provided in her statement. Ms. Hervery told the officer that one other person had a tattoo on his face. She stated at trial that the man with the tattoo also was shooting from the vehicle.

         Ms. Felita Caraway testified that in April 2013, she lived at the Hillview Apartments on the second floor of a building that was separate from the building where Ms. Niter's apartment was located. On April 10, 2013, she was inside her apartment when she heard noises that sounded like firecrackers. She walked into her kitchen, opened a cabinet door, shut the door, and then entered her living room. A bullet then came through her kitchen window and traveled through the cabinet door that she had just closed, through her bathroom, and into her bedroom. Ms. Caraway went outside and saw the damage to her apartment and Mr. Thomas lying three steps away. Ms. Hervery was trying to help Mr. Thomas.

         Ms. Catrice Gordon lived on the first floor in the same apartment building as Ms. Caraway and across from the building where Ms. Niter lived. On April 10, 2013, she was outside with her three-year-old son and two-year-old daughter and saw Ms. Niter and Ms. Hervery. Ms. Gordon testified that at some point, she took her daughter inside because her daughter wanted to watch television. Her son remained outside playing with Ms. Niter's son.

         Ms. Gordon stated that she was standing in her kitchen when she heard gunfire. She ran to the front door because her son was still outside. She said it sounded like a "war" outside. Ms. Gordon's son was at the front door telling her that people were shooting, and Ms. Niter was asking her for help and to get her son. Ms. Gordon retrieved J.N. and ran back inside of her apartment. She said the shooting had stopped when she went outside, and she saw blood all around Mr. Thomas.

         Ms. Leslie Davis, Mr. Thomas's mother, testified that Mr. Thomas sustained multiple gunshot wounds to his head. One bullet remained in his head, and his doctors informed her that any surgery to remove the bullet could result in additional damage. He cannot walk or move his right arm. He has limited movement of his left arm, is somewhat limited in his speech, suffered memory loss, and is somewhat "slower." He is a permanent resident in a rehabilitation facility, is bedridden and blind, and requires twenty-four-hour care.

         Ms. Davis said that on the day of the shooting, her sister called her and informed her that Mr. Thomas had been shot multiple times and had been transported to the Regional Medical Center. Ms. Davis's sister then called her again and told her that part of Mr. Thomas's face had been shot off, and Ms. Davis fainted. Ms. Davis went to the Regional Medical Center and was allowed to see Mr. Thomas after a few hours. She said that Mr. Thomas's head and face were wrapped in gauze and that his head was "enormous." Mr. Thomas remained in the trauma unit of the hospital for two months. Ms. Davis said she did not work during that time because she never knew whether Mr. Thomas would live.

         Multiple surgeries were performed on Mr. Thomas's head to alleviate the swelling in his brain, and he has a permanent shunt in his head. Ms. Davis said that Mr. Thomas had a hole in the bridge of his nose that was approximately the size of a quarter. Doctors removed the cartilage from Mr. Thomas's nose. Ms. Davis stated that the hole in Mr. Thomas's nose was so deep that she could see his tonsils. Mr. Thomas's jawbone and facial bones were shattered, and doctors had to wire his mouth shut and reconstruct his jawbone. Ms. Davis said two different doctors advised her to place Mr. Thomas in hospice care but that she refused.

         After two months at the Regional Medical Center, Mr. Thomas was transferred to an extended care program and then to another facility. He was on a ventilator and unresponsive for months. He also required a feeding tube and lost a large amount of weight as a result. Ms. Davis said that while Mr. Thomas no longer requires a ventilator or a feeding tube, he is totally dependent on someone to care for him and will remain that way for the rest of his life.

         Officer Michael Gaines of the Memphis Police Department testified that he and five other officers with the Airways Precinct Task Force responded to the scene of the shooting. Upon his arrival, he saw a very large crowd of women and children in the parking lot and an African American man lying in a drainage ditch between two apartment buildings. The man was still alive, but the area of the top of his eyebrows to the bottom of his nose was gone. Officer Gaines could see inside the man's skull. Officer Dan Chambers placed pressure on the man's wound. When the man breathed out, blood squirted out from the wound, over Officer Gaines's head, and onto his uniform.

         After an ambulance arrived, the officers spoke to witnesses and surveyed the area. Officer Gaines observed a large amount of shell casings littering the parking lot. He stated that the casings were 7.62 by 39 millimeter casings, which are commonly used in AK-47, AK-74, and SKS style assault weapons. He explained that such rifles are designed for combat and that their bullets can travel through walls and automobiles. He stated that semiautomatic handguns and assault rifles eject casings when shot but that revolvers do not.

         Officer Gaines observed a second or third story apartment that appeared to have been struck by gunfire. He entered the apartment and found that the bullet had penetrated walls and was lying by the bed in a bedroom. He said the bullet was the type fired by an assault rifle.

         Officer Gaines stated that approximately thirty minutes to an hour after leaving the scene, he received a call that a vehicle matching the description of the vehicle involved in the shooting had been located four to five miles away from the apartment complex. The green Ford Explorer was parked toward the back of a house that appeared to be vacant on Leflore Street. Officer Gaines said the hood of the vehicle was still warm from recent use.

         Officer Gaines testified that the sergeant who was in charge of the case advised him and other officers that Mr. Jones-Cage had been developed as a suspect and that his residence also was located on Leflore Street. Officer Gaines and other officers went to Mr. Jones-Cage's address five or six times over the course of multiple days, but they never found him and were never allowed to search his house. Family members advised the officers that they did not know where Mr. Jones-Cage was.

         On cross-examination, Officer Gaines testified that a woman on the scene of the shooting sustained a "graze strike" or a minor abrasion. He believed that the woman was treated on the scene by the fire department.

         Officer Gaines acknowledged that he did not find a weapon at the scene of the shooting. He said revolvers and single-shot pistols are the only two firearms of which he was aware that did not eject casings. Rather, the shooter must physically remove the casings and reload the firearm. Officer Gaines stated that some handguns with magazines eject casings when shot. He also stated that while 7.62 by 39 millimeter bullets are predominately used in "battle rifles, " there are hundreds of rifles that can shoot multiple calibers of bullets.

         Officer Newton Morgan, a crime scene investigator with the Memphis Police Department, testified that he collected sixteen shell casings and one bullet fragment from the scene. The bullet fragment was found on the bed inside of an apartment where he also observed bullet holes in the walls.

         Special Agent Cervinia Braswell, a forensic scientist with the firearms identification unit of the Tennessee Bureau of Investigation, was accepted by the trial court as an expert in forensic firearms identification. She examined sixteen 7.62 by 39 millimeter rifle cartridge casings, which she said were generally used in "AKA or AK-47 and SKS type firearms." Special Agent Braswell determined that all sixteen cartridge casings had been fired from the same firearm.

         Special Agent Braswell also examined a bullet fragment and measured its lands and groves. She entered the date into the General Rifling Characteristic Database, which is a database compiled by the Federal Bureau of Investigation that generated a list of firearms from which the bullet could have been fired. She said the measurements of the bullet fragment were consistent with 7.62 by 39 millimeter bullets. She determined that the same caliber firearm could have shot the casings and the bullet fragment. On cross-examination, Special Agent Braswell acknowledged that she was unable to conclude that the bullet and the casings were fired from the same firearm.

         Officer David Payment with the crime scene investigation unit of the Memphis Police Department testified that he processed the green Ford Explorer and lifted fingerprints from the right rear exterior window on the passenger side of the vehicle. Officer Payment did not find any gunshot residue, shell casings, or bullets inside of the vehicle. He acknowledged that the lack of gunshot residue could indicate that the vehicle had been wiped down.

         On cross-examination, Officer Payment testified that the lack of gunshot residue in a vehicle following a shooting was not unusual. He said the presence of gunshot residue is dependent upon factors such as whether the vehicle was moving at the time of the shooting, whether the windows were down, and whether the weapons were fired outside of the vehicle. Officer Payment stated that he would expect to find gunshot residue in the vehicle if the driver was shooting out of the passenger window. He also stated that if an assault weapon is fired outside the window of a vehicle, he would expect to see gunshot residue from the breech, which is located close to the trigger. He acknowledged that the residue would blow away if the vehicle was moving.

         Officer Payment stated that three fingerprints were lifted from the right rear passenger window and that one fingerprint was lifted from the front passenger window. He found papers and miscellaneous items inside of the vehicle.

         Officer Robert Winston, a latent print examiner for the crime scene investigation unit of the Memphis Police Department, was accepted by the trial court as an expert in latent fingerprint examination. He determined that the fingerprints lifted from the green Ford Explorer belonged to Benjamin Bohannon.

         Officer Shawn Hicks with the Memphis Police Department testified that Ms. Niter identified Mr. McNary, Mr. Burgess, and Mr. Bohannon in photographic lineups on April 23, 2013. Mr. Burgess was later brought to the police department as a suspect. He was advised of his rights, waived his rights, and agreed to speak to officers. Mr. Burgess said that while he knew Mr. Jones-Cage, he did not socialize with him on a regular basis. Officer Hicks said that Mr. Burgess initially denied that he had ever been inside Mr. Jones-Cage's Ford Explorer. Mr. Burgess later admitted that he had been inside the vehicle but denied that he was in the vehicle during the shooting. Mr. Burgess stated that while he knew Mr. Bohannon, they were not close friends. When Officer Hicks confronted Mr. Burgess with photographs on Instagram of Mr. Burgess and Mr. Bohannon together, Mr. Burgess stated that the photographs did not mean that they were good friends.

         On cross-examination, Officer Hicks testified that Ms. Hervery was not able to identify Mr. Burgess in a photographic lineup.

         Sergeant Donald Adams with the Memphis Police Department testified that Ms. Niter identified Mr. Jones-Cage in a photographic lineup on April 10, 2013. Sergeant Adams interviewed Mr. Jones-Cage on April 22, following his arrest. Sergeant Adams advised Mr. Jones-Cage of his rights, and Mr. Jones-Cage waived his rights and agreed to speak to the officers. Mr. Jones-Cage's attorney, Kendra Tidwell, was present when he gave a statement.

         Sergeant Adams stated that Mr. Jones-Cage admitted that he and three other men went to the apartment complex on April 10, 2013, in a green Ford Explorer to search for "Little Glen." Mr. Jones-Cage said that the other men fired twenty to thirty shots, but that he did not fire any shots. He also said they fled the scene and hid the firearms in the trunk of a Ford Crown Victoria. He stated that when the police officers located his vehicle, he hid in an abandoned house and that the others jumped over a fence and ran.

         Mr. Jones-Cage stated that a few days prior to the shooting, April Niter posted a comment about him on Facebook, and "Little Glen" responded that Mr. Jones-Cage "was going to f*** [her] off." Mr. Jones-Cage sent a message to "Little Glen" calling him "a little dusty TV stealing dude" and stating that he was the only person assisting April Niter when she had issues with her car. Mr. Jones-Cage said that on the morning prior to the shooting, he was assisting April Niter in her efforts to repair her car when he saw that Shanna Niter had called him. He asked April Niter why Shanna Niter called him, and April Niter stated that she wanted to talk to him about his message to "Little Glen." Mr. Jones-Cage called Shanna Niter several times, but she did not answer. He also sent her a text message.

         Mr. Jones-Cage stated that when he returned home, "[a]nother guy"[3] was there. Mr. Jones-Cage told the man that he planned to go to the Hillview Apartments to "holler" at "Little Glen." The man did not want Mr. Jones-Cage to go there alone and agreed to go with Mr. Jones-Cage. Mr. Jones-Cage said that they drove "into the west side drive" and that the man got out of the car and began talking to someone. The man returned to Mr. Jones-Cage's car and said that no one there knew "Little Glen." When they were leaving the parking long, Mr. Jones-Cage saw three men, two of whom he knew. The men approached Mr. Jones-Cage and the other man and "did their handshakes." The man who was in the car with Mr. Jones-Cage asked the group whether they knew "Little Glen, " and the men responded that "they don't f***" with the Hillview residents.

         Mr. Jones-Cage told the officers that two of the men entered the backseat of his vehicle while holding a black bag. Mr. Jones-Cage then drove to the parking lot in front of Shanna Niter's apartment. Mr. Jones-Cage described the shooting as follows:

I hollered out, where Little Glen? Shanna came out and said hold on, let me call him. She walked off and I pulled up and made a U-turn around the median and was facing west.
A gentleman walked up the steps with his shirt off smoking a cigarette. Then Shanna started yelling wait. Then the guy with no shirt started yelling some words. The last thing I heard him say was that y'all need to go. As soon as I started to pull off one of the other guys in my car started shooting. I sped away. On the ride home they kept saying I need to keep it one hundred.
I parked my truck and recovered the gun. One of the other guys put the bag with the gun in the trunk of a white Crown Vic. I went into the house and talked to April for a second and I got a call from another guy who said my truck was involved in a shooting…. I was about to move it but he said the police were about to pull up.
The police zoomed down on the truck and I was hiding in the neighbor's vacant home while the police was over there. The other guys had jumped the gate and ran on Orleans when the police got there.

         Sergeant Adams testified that Mr. Jones-Cage stated that the men grabbed the black bag from the bushes and that he did not ask them what was in the bag. Mr. Jones-Cage said he did not ask the shooter why he started shooting because Mr. Jones-Cage was afraid and shocked. Mr. Jones-Cage told the officer that to "keep it one hundred" meant that he better not report them.

         Sergeant Adams said Mr. Jones-Cage signed his written statement. Sergeant Adams explained that he did not confront Mr. Jones-Cage with the facts of the case because his attorney was present. Rather, Sergeant Adams only asked Mr. Jones-Cage what occurred and documented his responses. Sergeant Adams stated that the Ford Explorer recovered by the police was registered to Mr. Jones-Cage's father.

         On cross-examination, Sergeant Adams testified that he spoke to Ms. Niter at the scene and that Ms. Niter said she was injured. He did not recall seeing any blood on Ms. Niter other than her own blood and said Ms. Niter did not have any wounds on her face. Officers did not recover any firearms used in the shooting.

         Mr. Toney Sanders, the principal court clerk at the Shelby County Criminal Court Clerk's Office, testified that on July 3, 2014, Mr. Bohannon appeared for a scheduled court date and was given another court date of August 4, 2014. Mr. Bohannon failed to appear in court on August 4. As a result, his bond was forfeited, and an arrest warrant was issued. Mr. Bohannon had not been located. The arrest warrant was still active at the time of trial.

         Mr. Sanders testified that Mr. Burgess had a court date on October 8, 2014, which was rescheduled for October 10. On October 10, his case was reset to November 24, 2014.

         Ms. Juaquatta Harris with the Shelby County Sheriff's Office presented a recording of a telephone call made by Mr. Burgess from the jail on October 11, 2014. During the call, Mr. Burgess spoke to a man who identified himself as "Benjamin" about Benjamin's "no show." Benjamin mentioned the case, and Mr. Burgess stopped him and stated that the call was being recorded. Mr. Burgess then stated that he was scheduled to return to court in forty-five days and that once the matter was resolved, Benjamin could "go in" and then be released.

         The State and Mr. Burgess' counsel stipulated that Mr. Burgess had a prior felony conviction that satisfied an element of the crime of ...

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