Assigned on Briefs September 7, 2016.
from the Criminal Court for Shelby County No. 14-03966 John
Wheeler Campbell, Judge
Shelby County Criminal Court Jury convicted the Appellant of
first degree premeditated murder, and the trial court
sentenced him to life. On appeal, the Appellant contends that
the evidence is insufficient to support the conviction, that
the trial court erred by ruling that evidence of the
victim's gang affiliation was irrelevant to the
Appellant's claim of self-defense, that the trial court
erred by admitting hearsay text messages into evidence, and
that the trial court erred by giving a flight instruction to
the jury. Based upon the record and the parties' briefs,
we affirm the judgment of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
M. Carriker (on appeal and at trial) and Daniel K. Hamilton
(at trial), Memphis, Tennessee, for the appellant, Joshua
Herbert H. Slatery III, Attorney General and Reporter;
Zachary T. Hinkle, Assistant Attorney General; Amy P.
Weirich, District Attorney General; and George Kirby May,
Assistant District Attorney General, for the appellee, State
McGee Ogle, J., delivered the opinion of the court, in which
Robert W. Wedemeyer and D. Kelly Thomas, Jr., JJ., joined.
MCGEE OGLE, JUDGE
December 21, 2013, the Appellant shot and killed Evvann
"Juice" Harris. At trial, Officer Chad Conley of
the Memphis Police Department (MPD) testified that about
12:40 p.m. on December 16, 2013, he responded to a 911 theft
call at the Appellant's home on Douglass Avenue and spoke
with the Appellant. The Appellant told the officer that the
victim had knocked on his door and that he had opened the
door for the victim because he knew the victim. The Appellant
claimed that he "set down his gun, " that the
victim grabbed it, and that the victim ran. The Appellant
described the gun as a Glock 19, and he provided the
gun's serial number, LGA460.
Jerry Capps of the MPD testified that he was assigned to
investigate the December 16 theft of the Appellant's gun.
On December 19, the Appellant came to the police department,
spoke with Officer Capps, and named the victim as the person
who took the firearm. The Appellant also claimed that he
chased the victim out of his home and into the front yard.
The Appellant said the victim turned around, pointed the gun
at him, and told him, "I will shoot you. I will kill
you." Officer Capps acknowledged that the
Appellant's claims about chasing the victim outside and
the victim's threatening to shoot him were not in the
original 911 report. Officer Capps put together a photograph
array and showed it to the Appellant. The Appellant selected
the victim's photograph and identified the victim as the
person who took his gun.
Capps testified that he told the Appellant that he was going
to file an arrest warrant for the victim for theft and
aggravated assault and that "it would take a couple of
days to get that done." The Appellant was concerned
about seeing the victim because they lived in the same area,
and Officer Capps told the Appellant to stay away from the
victim. Officer Capps also told the Appellant to leave the
area and telephone the police if the Appellant saw the
victim. The Appellant was "worried about a
confrontation, " and Officer Capps told him that
"you have a right to defend yourself just like everyone
cross-examination, Officer Capps acknowledged that the
Appellant had a handgun carry permit and that people tended
to be calmer and more clear-headed a few days after an
incident. The Appellant "seemed a little worried about
his safety." He was very cooperative, wanted his pistol
returned to him, and wanted the victim to go to jail.
Denise Harris, the victim's mother, testified that in
December 2013, the victim was twenty-one-years old; lived
with her; and was employed by Staff Line, a temporary
service. On Saturday, December 21, the victim was at home
with his mother. About 2:00 p.m., she drove him to a
friend's house in the Barron Court Apartments. The victim
referred to his friend as "Big Red." About 4:00
p.m., Ms. Harris received a telephone call that the victim
had been shot.
Brandon Westrich of the MPD testified that about 4:00 p.m. on
December 21, 2013, he responded to a shooting in an apartment
at the Barron Court apartment complex. When Officer Westrich
arrived, a man met him outside the apartment and said his
friend had been shot inside the apartment. Officer Westrich
opened the door and saw the victim lying on his side. The
victim had multiple gunshot wounds, and Officer Westrich used
a towel to apply pressure to a gunshot wound in the
victim's neck until members of the fire department
arrived. Firemen cut off the victim's clothes and
discovered a Glock 19 pistol with an extended magazine in the
front of his waistband. The magazine was loaded, and the
serial number for the gun was LGA460. The fire department
transported the victim to the hospital. Three or four other
people were in the apartment, and Officer Westrich
immediately developed the Appellant as a suspect.
cross-examination, Officer Westrich testified that he saw no
signs of forced entry into the apartment. On redirect
examination, he testified that he did not see the gun in the
victim's waistband until the firemen cut off the
victim's clothes because the victim's shirt was
covering the gun.
Josh Shearer of the MPD testified that he responded to the
Barron Court apartment on December 21 and saw an
African-American male lying on the floor. Officer Shearer
described the location of the victim as follows: "When
you walk into the apartment there's a couch to the right,
then the left corner I'm not sure which direction,
I'd have to look at a map but he was laying in the
corner." Officer Westrich was assisting the victim, who
had been shot several times. The victim was bleeding
"quite a bit, " so the officers tried to stop the
bleeding as much as possible. Officer Shearer said he never
noticed a firearm while he was helping the victim. On
cross-examination, Officer Shearer acknowledged that other
people were in the apartment.
Mills testified that about 4:15 p.m. on December 21, 2013,
she was driving in the area of the Barron Court Apartments
and saw more than two men run out of an apartment. The men
ran to a church parking lot next door to the apartment
complex and got into an "older red car with some shade
of gray on it." Mills saw the car "fly past"
her and "turn down a side street."
cross-examination, Mills testified that it was still light
outside and that one of the men had a gun in his waistband.
Mills was driving about thirty-five miles per hour, and she
acknowledged that the red car may have been traveling only
forty miles per hour when it passed her. On redirect
examination, Mills testified that the red car "got to
the next block pretty quick, it was trying to get away from
Blakely testified that he knew the victim and the Appellant
through mutual friends in the Orange Mound neighborhood of
Memphis. On December 21, 2013, Dexter was at the Barron Court
apartment of his cousin, Jevonda Harris. Harris was not
there, but the victim; Tranishi Wright, Dexter's
girlfriend; Eldridge Bobo; Demarco "Big Red"
Blakely; and Gerard Butler were there. Dexter said that
"[e]verybody was just talking, chilling, " that he
and Wright went into a back room, and that he heard four or
five gunshots. He went into the living room and saw the
victim lying on the floor in a corner.
cross-examination, Dexter testified that he never saw the
victim with a gun and that he did not know the victim had a
loaded gun that day. He acknowledged telling a police officer
that he heard three or four gunshots.
Bobo testified that he had known the victim and the Appellant
five or six years. On the afternoon of December 21, 2013,
Bobo, "Tootie, " "Big Red, " and
"Little D" were in Jevonda Harris's living
room. Dexter Blakely and Tranishi Wright were "in the
back." Bobo said that he was sitting on the couch, that
Tootie was sitting to his right, that the victim was sitting
in a folding chair next to a card table, and that Demarco was
asleep on a loveseat. At some point, Bobo received a
telephone call from his friend, "Albert." During
their conversation, Bobo told Albert the names of the people
who were in the apartment. Thirty minutes to one hour later,
Bobo heard a knock on the door. Demarco answered the door,
and someone pushed him backwards into the apartment. Bobo saw
an arm extend into the doorway and saw a gun. He said that he
heard "like commotion" and "pow" and that
he jumped over the couch. There was a pause, and he then
heard "pow, pow, pow." The shooter ran away.
cross-examination, Bobo acknowledged that the commotion he
heard could have been two bodies colliding. Later that day,
he gave a written statement at the police department. He
denied telling the police that he heard the victim say
"what's up" just prior to the shooting. He said
he did not know the victim had a gun on December 21.
Demarco "Big Red" Blakely testified that he had
known the victim since Demarco was sixteen years old and the
Appellant since Demarco was five or six years old. In
December 2013, Demarco was living with his cousin, Jevonda
Harris, in the Barron Court Apartments. On the afternoon of
December 21, Demarco was at the apartment and was in the
living room with the victim, Gerard Butler, and Eldridge
Bobo. Dexter Blakely and Tranishi Wright were in the back
room. Demarco was asleep on a couch by the door, Bobo and
Butler were sitting on another couch, and the victim was
sitting in a folding chair. Demarco heard a knock on the door
and answered it. The Appellant was standing at the door and
had a black pistol in his right hand. The gun was at the
testified that the Appellant "poked his head in"
the apartment to see if the victim was there. The Appellant
then pushed Demarco out of the way, looked at the victim, and
asked, "[W]here my gun?" The victim began to stand
up, and the Appellant started shooting at him. The Appellant
fired one shot, paused, and fired "four or five quick
ones." Demarco said that he was afraid the Appellant was
going to shoot him and that he "stepped out" of the
apartment. After the shooting, the Appellant "walked
off" to a parking lot. Someone telephoned the police,
and Demarco telephoned the victim's mother. He later
looked at a photograph array and identified the Appellant as
cross-examination, Demarco acknowledged that the men had been
smoking marijuana in the apartment that day. He said that he
knew the victim had stolen the Appellant's gun but that
he did not know the victim had the gun on his person at the
time of the shooting. The victim did not say anything to the
Appellant before the shooting.
Gerard Butler testified that he had known the victim since
Butler was fifteen but that he did not know the Appellant. On
the day of the shooting, Butler was at the apartment and
heard a knock on the door. Demarco opened the door, and
"[there] was an argument." Demarco said something
like, "[D]on't bring that [sh**] over here."
Butler saw the Appellant come into the apartment with a gun.
The Appellant pointed the gun at the victim, and the victim
stood up. The Appellant said something to the effect of,
"[Y]ou're not going to take nothing else." He
walked to the victim and shot at him seven or eight times.
Butler said he ran out of the apartment and called 911. He
did not see the Appellant leave the apartment, but he saw
someone "jump in a red car" that was in the church
parking lot and saw the car "pull off." A second
person was in the car, which was a black or red Camaro.
cross-examination, Butler testified that he did not smoke
marijuana that day. He said the victim did not say anything
to the Appellant or take any steps toward the Appellant prior
to the shooting. He denied telling police officers that the
victim "tried to rush" the Appellant.
David Smith of the MPD testified that he arrived at the
apartment after the shooting to collect evidence and take
photographs. The apartment was in disarray, and a substance
that appeared to be blood was on the floor. Officer Smith
collected a Glock firearm, eight nine-millimeter spent shell
casings, and two bullet fragments.
Lorenzo Young of the MPD testified that he went to the
apartment after the shooting. The victim had been removed
from the scene, but blood was on the floor where the victim
had been lying. Sergeant Young said that a Beretta
nine-millimeter handgun ejected shell casings to the right
and that the casings "[popped] out" one to three
feet from the gun. He said most of the shell casings found in
this case were near the body, indicating that the victim had
been shot at very close range. On cross-examination, Sergeant
Young testified that members of the fire department were in
the apartment prior to his arrival, and he acknowledged that
evidence could have been moved.
John Nunnery of the MPD testified that on December 21, 2013,
he and his partner were on patrol in the Orange Mound area
when he heard a description of the suspect vehicle: a red,
T-top Camaro with gray primer paint on it. About 4:28 p.m.,
Officer Nunnery and his partner located the car in the
driveway of a home on Douglass Avenue. The home was about one
and one-half miles from the scene of the shooting, and the
officers later learned the residence was that of the
Nunnery testified that he and his partner touched the Camaro
and that it "was warm . . . like it had just been turned
off." They heard a television inside the residence and
knocked on the door, but no one answered. They looked inside
the Camaro and saw an identification badge with the