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State v. Reynolds

Court of Criminal Appeals of Tennessee, Knoxville

March 9, 2017


          Assigned on Briefs: January 21, 2016

         Direct Appeal from the Criminal Court for Knox County No. 102170 Steven W. Sword, Judge

         The Appellant, Jabari Reynolds, was convicted by a Knox County Criminal Court Jury of first degree premeditated murder, and he was sentenced to life imprisonment. On appeal, the Appellant contends that the trial court erred (1) by allowing a police officer to testify regarding recordings of telephone calls the Appellant made while in jail instead of requiring a telephone company employee to authenticate the calls, (2) by refusing to instruct the jury on voluntary intoxication, (3) by refusing to give a special instruction that the lesser-included offense of second degree murder was "homicide in the 'heat of passion' without adequate provocation, " and (4) by accepting the jury's verdict as thirteenth juror. The Appellant also contends that he is entitled to relief due to cumulative error. Upon review, we affirm the judgment of the trial court.

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

          Gerald L. Gulley, Jr., (on appeal), and Bruce A. Alldredge and Joe Lodato (at trial), Knoxville, Tennessee, for the Appellant, Jabari Reynolds.

          Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant Attorney General; Charme Allen, District Attorney General; and TaKisha M. Fitzgerald, Assistant District Attorney General, for the Appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Robert W. Wedemeyer and Camille R. McMullen, JJ., joined.



         I. Factual Background

         The Appellant's conviction stemmed from the shooting death of the victim, Desean Lowe, following an allegation by the Appellant's girlfriend that the victim had raped her.

         Waynisha Hamilton testified that she had known the victim since kindergarten. Hamilton said that they were friends and that she thought of the victim as her brother. In May 2013, she moved into a one-bedroom apartment in the Arbor Place Apartments complex, and the victim lived with her.

         Hamilton said that she met the Appellant in March 2013 and that he began staying with her on July 1. The victim spent the night of July 1 with his mother in Rocky Top, and he returned to Hamilton's apartment on July 2. On the night of July 2, the Appellant stayed in the living room, and Hamilton and the victim were in the bedroom, "hanging out" and smoking marijuana.

         On the afternoon of July 3, the Appellant, Hamilton, and the victim were in the living room smoking marijuana when the Appellant received a call from his girlfriend, Briasha Williams. The Appellant's cellular telephone was loud, and Hamilton heard the conversation. Williams told the Appellant that the victim had raped her, that the Appellant was "up there with her enemies, " and that she was "going to be laughing when [the Appellant] come up dead." While the Appellant was still conversing with Williams, Hamilton and the victim told the Appellant that the victim had not raped Williams.

         Hamilton said that after the call, she and the victim went to "Dajauna's house." When they returned a short time later, the Appellant was sitting on the couch in the living room. Hamilton began sweeping the living room floor. The Appellant got up, walked behind the couch, and stared at Hamilton. She asked the Appellant, "'What's on your mind? Are you good?'" The Appellant responded either "'[y]eah'" or "'nothing.'" After she finished sweeping, Hamilton walked into her bedroom. The victim came into the bedroom and said that he was leaving. Hamilton responded that she would leave with him. She walked into the living room and saw the Appellant sitting on an ottoman in front of a chair. She told the Appellant that he had to leave the apartment "[be]cause we ain't on no type stuff for Briasha, " and he said, "[O]kay."

         Hamilton walked back to her bedroom, and the Appellant followed her. The victim was standing facing the bedroom closet near the window. The Appellant pulled out a gun and began firing. The first shot hit the window, but the next shot hit the victim. Hamilton ran into the bathroom, hid, and heard the Appellant call her name before she heard more shots fired. She said that after the shots ceased, she heard the front door close. She waited in the bathroom until she was certain the Appellant was gone then ran into the bedroom. She saw the victim lying on his stomach on the side of her bed. She called his name, and he lifted his head. He was covered with blood.

         Hamilton said that she ran to a neighbor's apartment, asked for help, returned to her apartment, and called 911. While speaking with the 911 dispatcher, she walked into the living room and "flipped the TV over." She said she did not know why she turned the television over. She remained on the telephone with 911 until the police arrived. Thereafter, she went downtown with the police to be interviewed.

         On cross-examination, Hamilton said that on the night of the shooting, she also overheard the Appellant's telephone conversation with Donna Locklin, Williams's mother. Locklin told the Appellant that Williams had said previously that she had been raped by the victim. Hamilton denied that the Appellant said he would leave and needed his toothbrush or that she went into the bedroom to retrieve his toothbrush. Hamilton said that the victim kept his clothes in the bedroom closet.

         Hamilton could not recall how many shots she heard while in the bathroom but thought it was "[a]bout four." She said that she turned the television over because she was frustrated she could not get help for the victim.

         Hamilton said that the victim and the Appellant did not fight prior to the shooting. She had never seen the gun before that night and was unfamiliar with guns; however, she recalled that the Appellant's gun was silver. She acknowledged telling the 911 operator that "some guy named Jabari did it." She said that she knew the Appellant but did not know his last name. She acknowledged that she "hate[d]" the Appellant for killing the victim.

         Michael Alan Mays testified that he was the records keeper for 911 in Knox County. Mays said that every call into 911 was audio recorded. Information from each call was entered in to a computer, which then created a Computer Aided Dispatch (CAD) report. Mays said a CAD report reflected that four calls regarding the incident came into 911. The first call was at 7:56 p.m. on July 3, 2013, from a location on South Hall of Fame Drive in Knoxville. The calls were played for the jury.

         Knoxville Police Officer James Lockmiller testified that on the night of July 3, 2013, he and Sergeant Jonathan Chadwell were working as security officers for Wood Properties and were on patrol between Arbor Place Apartments on South Hall of Fame Drive and Ridgebrook Apartments off of Western Avenue. While in "parking lot B" of Arbor Place, they received a report of shots fired at apartment 398.

         They went to the apartment and saw a female sitting on the steps outside the apartment and crying. They attempted to talk with her, but she was upset and "not very coherent." The officers went inside the apartment and discovered a deceased male lying face down on the floor of the back bedroom. The victim's injuries were consistent with gunshot wounds. Crime scene technician Beth Goodman arrived and began photographing and documenting the scene.

         On cross-examination, Officer Lockmiller said that when he entered the apartment, he walked through the area that encompassed the living room, dining room, and kitchen. He thought the television in the living room might have been overturned but could not recall any other disruptions. He then walked down a short hallway and into the bedroom. He noted that the apartment's only bathroom was located in the bedroom. Officer Lockmiller did not see the Appellant on the night of the offense.

         Beth Goodman, who worked in the Knoxville Police Department's forensics unit, testified that she went to the scene; met with her supervisor, Sergeant Bryan Dalton; then began taking photographs of the apartment. Goodman and Sergeant Dalton examined the back bedroom and took measurements. The victim's body was located between the bed and the wall next to a window. Goodman noticed that a bullet had passed through the curtain, blinds, and window glass at a point approximately four feet, six inches from the floor. She found no other bullet holes. The only blood in the room was on the wall next to the window. Goodman left the apartment and collected a tube of toothpaste and a toothbrush that were found in the stairwell outside the apartment.

         Goodman said that the next day, July 4, she went to the medical examiner's office and retrieved the victim's clothing. She also retrieved three bullets that were removed from the victim's body during an autopsy. Goodman said that she "confiscated" one unfired bullet and a box containing a revolver but did not say when or where the items were confiscated.

         Knoxville Police Officer Eric Heitz testified that around 11:00 p.m. on the night of the shooting, he received a report of a suspicious person at 230 South Hall of Fame Drive. Officer Heitz went to The Vistas Apartments complex, which was located "back to back" with Arbor Place Apartments and saw the Appellant sitting on the ground in front of apartment 228, talking on a cellular telephone. Officer Heitz asked the Appellant what he was doing there, and the Appellant responded that he was waiting for his girlfriend. The Appellant had no identification but said his name was "Jabari." Officer Heitz recalled that the police had issued a be on the lookout report (BOLO) for someone by that name earlier in the evening. At Officer Heitz's request, the Appellant ended his call, telling the person with whom he was speaking, "'I've got to go, Mom. They've got me.'"

         Officer Heitz handcuffed and patted down the Appellant. He found a Taurus revolver in the Appellant's right front pocket. The revolver was loaded with one live .38 caliber round, and it held five expended cartridges. In the Appellant's left front pocket, Officer Heitz found a large plastic baggie containing eight, smaller Ziploc baggies which in turn contained a green leafy substance that appeared to be marijuana.

         On cross-examination, Officer Heitz clarified that the Appellant "was sitting on the ground against the retaining wall opposite the door to Apartment 228." The area was well-lit, and the Appellant was dressed in black clothes. Officer Heitz heard the Appellant speaking on the telephone but was unable to "tell if there was any emotion in the conversation or anything." The Appellant was compliant when Officer Heitz took him into custody. Officer Heitz explained that Townview Drive ran around three apartment complexes: Arbor Place, Townview Towers, and The Vistas. He said that it took five minutes to walk between the apartment complexes.

         Lisa Knight, the director of the Tennessee Department of Safety and Homeland Security's handgun program, testified that the Appellant had never applied for a handgun carry permit.

         Teri Arney, a special agent forensic scientist with the Tennessee Bureau of Investigation's (TBI) crime laboratory, testified as an expert in firearms examinations. Agent Arney tested the revolver taken from the Appellant. Agent Arney explained that the cylinder on the revolver held a maximum of six bullets. After a bullet was fired, the cartridge case was left inside the cylinder.

         Agent Arney said that one unfired .38 caliber hollow-point bullet and five fired cartridge casings were in the revolver when it was confiscated. The bullet and the fired cartridge casings were removed by the police and submitted to her office. Agent Arney determined that all five cartridge casings were fired from the Appellant's revolver. Agent Arney also tested one bullet and two bullet fragments that were retrieved from the victim's body during autopsy and determined that all three had been fired from the Appellant's revolver.

         Agent Arney examined the clothing that was removed from the victim's body prior to autopsy. She found no holes in the front of the shirt. On the back of the shirt, she found four holes: the first was near the seam of the right shoulder, the second was a few inches down and toward the center of the shirt, the third was directly below the second, and the fourth was in the lower back area around the center of the shirt. In the side seam, she found a small hole that may have been a rip or tear.

         On cross-examination, Agent Arney explained that "every time you fire the revolver, the hammer returns to the at-rest position. So your choices at that point are to manually cock the hammer to fire it in single action or to simply pull the trigger and fire it in double action." Three and three-quarters pounds of pressure were required to fire the revolver in single action, and "a little" over twelve pounds of pressure were required for double action. She had no way to discern whether the revolver was fired in single or double action.

         Agent Arney said that because no gunshot residue was found on the victim's clothes, she was unable to estimate the distance from which the shots were fired. She said that the fired bullets and the unfired bullet "appeared to be the same type and design."

         Colin McLeod, an investigator with the violent crimes unit of the Knoxville Police Department, testified that on the evening of July 3, he heard a radio report of a shooting with an unresponsive victim and proceeded to the scene. Several officers were present when he arrived. Hamilton, who was "extremely distraught, " was speaking with some officers. Investigator McLeod arranged for Hamilton to be transported to the police department for an interview.

         He then walked into the apartment and saw members of the Knoxville Fire Department and Rural/Metro, an emergency medical service, attempting to revive the victim, but he was deceased. After the crime scene investigators arrived, Investigator McLeod followed them and examined the scene. The victim's body was lying on the floor between the bed and the wall. He appeared to have injuries to his face, the back of his head, and multiple gunshot wounds to the back. The police found no gun or shell casings at the scene.

         While at the scene, Investigator McLeod learned that Hamilton had said the shooter's name was Jabari and that his girlfriend was Williams. She later identified the Appellant from a photograph lineup. The police broadcast a BOLO for the Appellant, which stated that he was wearing a black or dark hoodie and black pants or long shorts. Investigator McLeod left the scene to return to his office. En route, he was notified that a suspect had been apprehended at The Vistas. Investigator McLeod drove to The Vistas and arrived as the Appellant was being placed into custody.

         The Appellant was taken to police headquarters and placed in an interview room. Investigator McLeod began to interview the Appellant at 12:14 a.m. on July 4, 2013. Investigator McLeod advised the Appellant of his Miranda rights, and the Appellant signed a waiver of his rights. Investigator McLeod said that during the initial part of the interview, the Appellant "hemmed and hawed a little bit." The Appellant then said he would tell what happened if he could have a cigarette. Investigator McLeod gave the Appellant a cigarette and took him to the sally port to smoke. A recording of the interview was played for the jury.

         The recording reflects that the Appellant said he was not staying at Hamilton's apartment and was there that day to visit Hamilton. He said he had been in the apartment for approximately ten minutes. He first said that Williams had told him about the rape two months before the shooting then stated that she had told him about it a week after it happened. He thought the rape happened some time the previous year. He stated that he and the victim began fighting in the living room and that the fight continued into the bedroom. During the fight, the victim hit him in the jaw. He denied that the gun was his, stating that the victim took the gun from a bedroom closet and that he got the gun after knocking it from the victim's hand. He acknowledged taking the gun with him when he left the apartment.

         The Appellant told Investigator McLeod that before the shooting, he had a "three-way" call with Williams and her mother. During the call, the Appellant's cellular telephone was "on speaker." Williams accused the victim of sexually assaulting her several months earlier, maybe the previous October. The Appellant asked Williams, "'What do you want me to do? I'm staring right at him.'" The Appellant said that he and the victim began fighting on the couch in the living room. The victim produced a gun, and he and the Appellant fought for it. The Appellant knocked the gun from the victim's hands and shot at him. The Appellant said that the victim went to the closet for a gun. The Appellant fought the victim, took the gun, and shot at him in the bedroom. Investigator McLeod did not see any injuries to the Appellant.

         Investigator McLeod said he learned that Locklin was Williams's mother. He spoke with Locklin but never spoke with Williams. Investigator McLeod was unable to find a report by Williams or Locklin concerning the alleged rape.

         On cross-examination, Investigator McLeod said that the Appellant's clothing, which was dark gray or black, matched the description of the suspect's clothing. Investigator McLeod did not notice any stains on or damage to the Appellant's clothes, and the police did not take his clothes.

         Investigator McLeod clarified that he was at the scene while it was processed. He then left the scene, spoke with Locklin, left Locklin, and was en route to police headquarters when he was advised the Appellant had been apprehended. He estimated that the Appellant was found a couple of hours after Investigator McLeod left the crime scene. When Investigator McLeod arrived at The Vistas, the Appellant was being taken to a patrol car.

         Investigator McLeod said that Officer Heitz and Investigator Madison were also present in the sally port with the Appellant and him. Investigator McLeod recalled that during the interview, the Appellant said that he and the victim fought in the living room and the bedroom. Investigator McLeod asked the Appellant numerous questions about the incident "to see if the story would change." He maintained that the Appellant first said that the fight began in the living room then stated the fight began in the bedroom. Investigator McLeod thought the Appellant was describing "two separate events."

         Investigator McLeod said that after the interview, he thought that the Appellant "had known for some time" Williams had been sexually assaulted by the victim and that it was confirmed during the telephone conversation immediately before the shooting. Investigator McLeod said the Appellant never acknowledged that he knew "the entire time" that the victim was the alleged rapist; instead, the Appellant maintained that he "barely knew" the victim and "only knew his first name." The Appellant said he "went for" the victim after he got the gun from the closet. They had a physical altercation, during which the gun was knocked from the victim's hand. At that point, the Appellant picked up the gun.

         Investigator McLeod said that the Appellant asserted the gun did not belong to him. The Appellant said that he did not leave the apartment with a toothbrush and toothpaste and did ...

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