Session: October 4, 2016
from the Criminal Court for Shelby County No. 14-03467 J.
Robert Carter, Jr., Judge
defendant, Anthony Thompson, was convicted of the first
degree premeditated murder of Barris Jones and sentenced to
life imprisonment. On appeal, he argues that the trial court
erred in allowing testimony regarding a hearsay statement of
the victim as a dying declaration, in limiting the
cross-examination of a co-defendant, and in allowing autopsy
and crime scene photographs into evidence. Additionally, he
argues that the evidence is insufficient to sustain the
verdict. Following our review, we affirm the judgment of the
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
R. Holton, Memphis, Tennessee, for the appellant, Anthony
Herbert H. Slatery III, Attorney General and Reporter;
Jonathan H. Wardle, Assistant Attorney General; Amy P.
Weirich, District Attorney General; and Ray Lepone and Justin
Prescott, Assistant District Attorneys General, for the
appellee, State of Tennessee.
E. Glenn, J., delivered the opinion of the court, in which
Camille R. McMullen and Timothy L. Easter, JJ., joined.
E. GLENN, JUDGE
defendant was convicted of the first degree premeditated
murder of the victim, which occurred at the apartment complex
where the victim lived with his girlfriend. Shot eleven times
at close range, the victim uttered the defendant's name
after Memphis police officers arrived at the scene and asked
for a "name." A few hours later, the victim died at
Keith Holden testified that he had been employed for seven
years by the Memphis Police Department and, on May 26, 2014,
responded to a call at the Country Oaks Apartments, where
people at the scene pointed him to "a male black down on
his hands and knees with multiple gunshot wounds."
Officer Holden ran to the victim and said, "Give me some
information, give me a name, " and the victim said,
"Anthony Thompson." Officer Holden described the
victim as "in pretty bad . . . shape. He was down on his
hands and knees. He was bleeding out the mouth, just kind of
fading in and out[.]"
cross-examination, Officer Holden testified that he did not
know whether the victim believed he was dying. He repeated
that the victim was on his hands and knees, "bleeding
very heavy, " with "blood dripping out his mouth,
and, . . ., multiple shots all over his body." The
victim was unable to stand and "was kind of fading in
and out, but he was able to give [Officer Holden] that
name[.]" Officer Holden said he did not ask the victim
to stand up because "[f]rom his condition, . . . he
seemed to be in real bad shape." According to defense
counsel, without objection by the State, the 911 call for the
victim was made at 5:29 p.m., and he died at 10:41 p.m.
Covington testified that the victim was the father of her
baby, with whom she was pregnant at the time of the
victim's death. They were living together in the
apartment complex where he was killed. He had taken the
garbage out at approximately 5:20 p.m., and Ms. Covington saw
him "running back to the house, which [sic] two dudes
w[ere] chasing him." When the victim fell, one of the
men hit him, and then the other man hit him in the head with
a gun, rendering him unconscious. She described the first man
who chased the victim as "heavyset." A third man
got out of the car, while the victim was unconscious, and
stood "right on top of him, " shooting him
"like eight times." Ms. Covington then identified
the defendant in the courtroom as the man who shot the victim
multiple times. After shooting the victim, the three men
returned to their vehicle and left. The only thing Ms.
Covington overheard the three men say to the victim was,
"You think this shit a game?"
Christopher Slaughter of the Memphis Police Department Crime
Scene Unit testified that he recovered certain items of
evidence, took photographs, and made a sketch while at the
crime scene. At trial, the defendant objected to Exhibit 11,
consisting of a photograph of stains left by seven drops of
blood on what appears to be a concrete walkway, and Exhibit
19, consisting of a photograph taken from a close distance of
an article of clothing with significant bloodstains. Officer
Slaughter said he recovered "approximately" nine
shell casings at the scene.
Rhodes testified that, on May 26, 2014, he was living at the
Country Oaks Apartments, where the homicide occurred. At the
time of the incident, he heard arguing outside and a voice
saying, "You think it's a game?" He heard
gunshots and saw three men, "two skinny [and] one
heavyset, " who had a silver pistol. He agreed that, in
his statement to police officers following the shooting, he
had said, "The fat one had a silver gun. One of the
skinny ones also had a gun. The third guy didn't have a
gun that I could see. The fat guy did the shooting."
State's next witness, Eric Warren, testified that he was
employed by the Tennessee Bureau of Investigation
("TBI") as a special agent/forensic scientist. He
said that the TBI lab received an envelope containing three
bullets from the Shelby County Medical Examiner's office.
In his opinion, all nine of the cartridge cases submitted to
his office had been fired by the same weapon. The two bullets
and bullet fragments could have been fired by the same
weapon, but, because of the damage to them, he could not say
conclusively that this was the case. The bullets and casings
were consistent with a 9-millimeter caliber.
Adam Pickering testified that he was employed by the Memphis
Police Department and assigned to the Crime Scene Unit. On
June 4, 2014, he examined a Chevrolet Malibu at the crime
scene office, but nothing of significance was found inside
the vehicle, and officers did not determine who owned it.
Marco Ross, a forensic pathologist, testified that he
performed an autopsy on the victim on May 27, 2014. The
victim had been struck by eleven bullets. Gunshot wound A
entered his right temple, in front of his right ear, and
fractured the base of his skull. Gunshot wound B penetrated a
muscle running from the victim's right ear to the base of
his neck, continued into the chest where it perforated the
aortic arch, the main blood vessel coming out of the heart,
and penetrated the left lung. Gunshot wounds C and D were to
the victim's right arm. Gunshot wound E was to the
outside part of the victim's right elbow. Dr. Ross said
the victim died from multiple gunshot wounds, and the death
was classified as a homicide. He said it would have been
consistent with these wounds that the victim was in and out
Kevin Lundy testified that he was employed by the Memphis
Police Department and, in May 2014, had been assigned to the
Homicide Bureau. After the defendant became a suspect in the
shooting, and Sergeant Lundy had been unable to locate him,
he sought assistance from other law enforcement agencies,
which were also unsuccessful. In April 2015, he learned that
the defendant had been arrested in Hinds County, Mississippi.
Andrew Terrell testified that in April 2015 he was assigned
to the Fugitive Division of the Shelby County Sheriff's
Office and, on April 9, 2015, transported the defendant from
the Hinds County, Mississippi Detention Facility to 201
Poplar Avenue in Memphis.
as a witness for the State, co-defendant Keron Cowan said
that, along with the defendant and Thelron Richards, he was
charged with the homicide of the victim. He said he knew the
victim and the defendant from the neighborhood. On May 26,
2014, Mr. Cowan was at his grandmother's house, where a
Memorial Day event was to be held, and received a telephone
call from the defendant who said that the victim had just
robbed him. Later, Mr. Cowan searched for the victim but was
unable to locate him. At the time, Mr. Cowan was driving a
2005 silver Chevrolet Malibu with tinted windows. The
defendant asked Mr. Cowan to take him to
"Twin's" residence at the Country Oaks Apartments.
When they arrived, they saw the victim carrying out some
trash. "Twin" then came running across the parking
lot with a gun in his hand, as the victim threw the trash at
Mr. Cowan and began running. Mr. Cowan hit the victim, who
fell down, and "Twin" hit the victim in the back of
the head with a pistol. The defendant pointed a pistol at Mr.
Cowan and told him to move out of the way, which he did. As
Mr. Cowan was walking away, he heard "lots" of
gunshots behind him. He got back into his car and was waiting
for the exit gate to open when the defendant jumped into his
car. Mr. Cowan drove a short distance and told the defendant
to get out, which he did. Until the pistol was pointed at
him, Mr. Cowan did not know the defendant was armed. The next
morning, Mr. Cowan called the Memphis Police Department to
tell about the shooting.
this testimony, the State rested its case, as did the
defendant argues that the trial court erred in admitting a
hearsay statement of the victim as a dying declaration
exception to the hearsay rule, saying that the victim did not
have a certain belief that death was inevitable. We will
review this argument.
is a "statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence
to prove the truth of the matter asserted." Tenn. R.
Evid. 801(c). Generally, hearsay statements are inadmissible
unless they fall under one of the recognized exceptions to
the hearsay rule. Id. at 802. The dying declaration
is one such exception to the hearsay rule. Rule 804(b)(2) of
the Tennessee Rules of Evidence provides that "a
statement made by a declarant while believing that the
declarant's death was imminent and concerning the cause
or circumstances of what the declarant believed to be
impending death" is an exception to the rule against
court has noted that a statement must satisfy the following
five elements to qualify as a dying declaration: (1) the
declarant must be dead at the time of the trial; (2) the
statement is admissible only in the prosecution of a criminal
homicide; (3) the declarant must be the victim of the
homicide; (4) the statement must concern the cause or the
circumstances of the death; and (5) the declarant must have
made the statement under the belief that death was imminent.
State v. Lewis, 235 S.W.3d 136, 149 (Tenn. 2007);
State v. Hampton, 24 S.W.3d 823, 828-29 (Tenn. Crim.
App. 2000). The last requirement provides the indicia
of reliability and truth that justifies admission of the
statement. See Neil P. Cohen et al., Tennessee
Law of Evidence, § 8.36[e] (6th ed. 2011).
"[I]t is not necessary that the declarant state
unequivocally a belief that death is imminent. Awareness of
impending death has been inferred from the language and
condition of the declarant, the facts and circumstances
surrounding the ...