Session January 4, 2017
from the Criminal Court for Shelby County No. 13-01286 Lee V.
E. GLENN, JUDGE
Defendant, Heath Bell, was convicted by a Shelby County
Criminal Court jury of first degree premeditated murder and
first degree felony murder. The trial court merged the
convictions and sentenced the Defendant to life imprisonment.
The Defendant raises the following five issues on appeal: (1)
whether the trial court erred by denying his motion to
suppress tainted eyewitness identification testimony; (2)
whether his due process rights were violated by the
State's withholding of exculpatory evidence of a possible
third party perpetrator; (3) whether the trial court erred by
not granting his request for a new trial based on the newly
discovered exculpatory evidence; (4) whether the evidence was
sufficient to establish his identity as one of the
perpetrators; and (5) whether the trial court erred by
limiting his closing argument. Following our review, we
affirm the judgment of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
A. Timmerman (on appeal) and Michael E. Burton (at trial),
Memphis, Tennessee, for the appellant, Heath Bell.
Herbert H. Slatery III, Attorney General and Reporter;
Jonathan H. Wardle, Assistant Attorney General; Amy P.
Weirich, District Attorney General; and Samuel D. Winnig,
Tracye N. Jones, and Colin A. Campbell, Assistant District
Attorneys General, for the appellee, State of Tennessee.
E. Glenn, J., delivered the opinion of the court, in which
John Everett Williams and Camille R. McMullen, JJ., joined.
night of February 15, 2013, the victim, Joe Howell, was shot
to death in his newly leased Hyundai Trailblazer in the
parking lot of the Pendleton Place Apartments in Memphis.
Fifteen hundred dollars in cash, which the victim earlier had
on his person, was missing when his body was discovered in
his vehicle. Kayla Jennings and her boyfriend, James Edwards,
identified the Defendant and his co-defendant, Nicholas
Augustus, as two men with guns they had seen acting in a
suspicious manner in the area shortly before the shooting. In
addition, Chamere Talley, the sister of the victim's
girlfriend, informed the police that she looked out her
apartment after hearing gunshots and saw the Defendant and a
second man in dreadlocks running near the victim's
crashed vehicle. Ballistics evidence revealed that two
different guns were fired at the victim and that shots
entered from both the driver's and the passenger's
side of the vehicle. Although the Defendant claimed to have
been with his girlfriend in East Memphis at the time, cell
phone records revealed that phone calls were made and
received by his cell phone in the area of the shooting around
the time the victim was shot. The Shelby County Grand Jury
subsequently indicted the Defendant and Mr. Augustus with the
first degree premeditated murder and first degree felony
murder of the victim and the employment of a firearm during
the commission of a dangerous felony. The men were tried
together before a Shelby County Criminal Court jury, which
found the Defendant guilty of both murder counts and Mr.
Augustus not guilty of both counts. The trial court dismissed
the firearm charge, merged the Defendant's murder
convictions, and sentenced him to life imprisonment.
to trial, the Defendant filed a motion to suppress the
eyewitness identification of Ms. Jennings, arguing that any
courtroom identification made by her would be impermissibly
tainted because she had been present at earlier court
hearings in which the Defendant was dressed in prison attire
and addressed by name by the trial judge. The Defendant
asserted that such a procedure was "at best, equal to,
and at worst, far more suggestive, than a 'show-up
May 1, 2015 suppression hearing, held out of the presence of
the Defendant and Mr. Augustus, Ms. Jennings testified that
on the night the victim was shot she was walking across the
street toward her apartment complex with her then-boyfriend,
James Edwards, when he pushed her in the back several times
and said, "Don't you see them n****s over there?
They look like they fixing to do something." When she
looked in the direction he indicated, she saw two men with
guns standing at the corner of an apartment building.
Frightened, she and Mr. Edwards hurried home to her
apartment. Approximately five to ten minutes later, they saw
that "the apartment complex was full" of police
cars and ambulances.
Jennings testified she had never seen the two gunmen before
that night and did not provide any descriptions of them to
the police. However, she accompanied Mr. Edwards, who was
subpoenaed as a witness, to the preliminary hearing held
approximately one month after the shooting, and immediately
recognized the Defendant and Mr. Augustus when they entered
the courtroom as the two armed men she had seen that night.
She was seated in one of the last rows of the courtroom and
recognized the men before their names were called or they
were otherwise identified. She also recognized the men as the
gunmen during a March 23, 2015 court hearing in the case in
which the trial court threatened to put her in jail because
she had an outstanding warrant. During that latter hearing,
the trial judge had her sit in one of the "jail
chairs" approximately ten feet from the Defendant and
Mr. Augustus. She was seated in the courtroom for
approximately three minutes before the judge called her to
come up to the microphone, and she was seated in one of the
"jail chairs" in the same row as the men for two to
three minutes. No one pointed out the men to her at either
court hearing, and she was not influenced in her recognition
of them by Mr. Edwards' identifications. Instead, she
immediately recognized them at both hearings based on their
"facial structures" from having seen them on the
night of the shooting. She estimated that she was less than
half a football field's length from the Defendant and Mr.
Augustus at the time she saw them standing at the corner of
the apartment building.
Jennings recalled that one of the two men was an inch or an
inch and a half taller than the other one and had a lighter
complexion. She also recalled that the taller,
lighter-skinned man was wearing a red jacket. She could not,
however, relate any specific facial features or hairstyles of
either man. Nevertheless, she testified that she would be
able to recognize both men from their facial structures if
she saw them again.
conclusion of the hearing, the trial court overruled the
motion to suppress the identifications, accrediting Ms.
Jennings' testimony that she immediately recognized the
Defendant and his co-defendant when they entered the
courtroom at the preliminary hearing and that her
identifications were based on her experience the night of the
shooting rather than any outside influences. The court also
found that the circumstances under which the original viewing
occurred rendered her identification reliable.
trial, the victim's wife, Juwana Howell, testified that
she last saw the victim alive at approximately 6:00 p.m. on
February 14, 2013, when he left alone in his just-leased
Hyundai Trailblazer with approximately $1500 in cash in his
Harrold testified that at approximately 10:20 p.m. on
February 15, 2013, he was leaving the Pendleton Place
Apartments with friends when he saw a SUV in the bushes that
appeared to have been in an accident. The vehicle was still
running, and a nonresponsive man was slumped over the
steering wheel. Before the police arrived, Mr. Harrold saw a
woman approach the passenger's side of the vehicle, open
the door, reach in, and turn the ignition off before leaving
Hal Owens of the Memphis Police Department testified that Mr.
Harrold flagged him down to report a wrecked vehicle in the
bushes at the Pendleton Place Apartments. The first officer
to arrive, he secured the scene until other officers
responded. To the best of his memory, both the glove box and
the console of the vehicle were open when he arrived.
James P. Smith, a crime scene officer with the Memphis Police
Department, identified various photographs of the crime scene
as well as five spent shell casings -- two 9-millimeter and
three 40-caliber -- that were recovered from the scene. The
vehicle's glove box, console, and hatchback were all open
when he arrived, and no money was recovered from the
victim's body or the vehicle.
Edwards testified that in February 2013 he lived with Kayla
Jennings in the Kimball Cabana Apartments next-door to the
Pendleton Place Apartments. He knew both the Defendant, who
went by the nickname "Bean, " and Mr. Augustus
from the neighborhood. On the afternoon of February 15, 2013,
he saw the Defendant at about 5:00 p.m. when he was returning
from a store. At about 10:00 or 10:30 p.m. that same day, he
and Ms. Jennings were walking back together from another trip
to the store when he noticed the Defendant and Mr. Augustus
standing by the corner of the Pendleton Place Apartments. He
first recognized the Defendant because he was wearing the
same clothes he had on earlier in the day. The area was
well-lit by street lights, and Mr. Edwards was able to see
that Mr. Augustus was standing with the Defendant. Both men
had guns in their hands and appeared to be "up to
Edwards testified that he feared the men were about to
"come at [him], " so he pushed Ms. Jennings in the
back and instructed her to quicken her pace. As he and Ms.
Jennings hurried home, he kept watching the Defendant and Mr.
Augustus through the fence "trying to make sure they
didn't shoot through the fence or [anything]." No
more than fifteen or twenty minutes after he and Ms. Jennings
reached home, he looked out the door to see the lights of
emergency vehicles in the apartment complex. Mr. Edwards
acknowledged that he and Ms. Jennings had been drinking and
smoking marijuana that day but said he was not "too
intoxicated" and was aware of his surroundings at the
time he saw and recognized the Defendant and Mr. Augustus.
Edwards testified that he did not want to get involved in the
case, but police detectives obtained his telephone number and
called him. He first met with a detective at a neighborhood
pizza restaurant, where he told the detective that he wanted
"to leave [Ms. Jennings] out of it" because he did
not "know what they would try to do to her or her
kids." He later went to 201 Poplar, where he positively
identified the Defendant and Mr. Augustus from photographic
spreadsheets as the gunmen he had seen that night. Mr.
Edwards identified the photographic spreadsheets, which were
admitted as exhibits and published to the jury. He testified
that he received $1000 for a CrimeStoppers' tip he
reported, but that was the only money he received in
connection with the case. He was subpoenaed to appear as a
witness and was not being paid anything for his court
cross-examination Mr. Edwards acknowledged that he and Ms.
Jennings had been drinking alcohol and smoking marijuana
throughout the day on February 15, 2013, as they celebrated
his recent graduation from Vatterott College. He testified
that he identified the Defendant from the photographic lineup
he was shown by police on February 19 and identified Mr.
Augustus from another photographic lineup on February 25,
2013. On February 26, he gave his formal written statement to
police about what he had witnessed. He acknowledged he was
incorrect in his preliminary hearing testimony that the
Defendant and Mr. Augustus were within twenty-five feet of
him when he saw them and that they were probably further
away. He was adamant, however, that he was certain in his
Edwards could not recall having said in the preliminary
hearing that Mr. Augustus was trying to cover his face and
could not with certainty recall that detail at the time of
trial. What he was certain of was that both men were armed
with guns and that both were acting in a suspicious manner as
if "fixing to get ready to do something[.]" He
acknowledged that his clear view of the men lasted only
approximately two seconds as he walked from the middle of the
street toward his apartment complex. He also acknowledged
that there was a six-foot wooden privacy fence between the
apartment complexes. He insisted, however, that he was able
to watch the men through the numerous broken and missing
boards of the privacy fence as he and Ms. Jennings continued
to their apartment. He reiterated that he first recognized
the Defendant, who was wearing a red coat, by his clothing,
and he acknowledged that he had seen him "many
times" in the past wearing a red coat.
response to questions from the jury, Mr. Edwards testified
that he reported the CrimeStoppers' tip after the
detective informed him he could receive money for providing a
tip about the crime. He did not call CrimeStoppers before he
met with the police because he "wasn't in it for the
money" and knew nothing about the possibility of being
paid until the detective told him about it.
Jennings reiterated her preliminary hearing testimony about
how she saw the armed men standing at the corner of the
Pendleton Place Apartments after Mr. Edwards pointed them out
to her, how she was frightened and hurried home, and how she
saw the emergency lights in the Pendleton Place Apartment
parking lot approximately ten minutes after they reached her
apartment. She testified she had never seen the men before
that night, had not wanted to become involved in the case,
and had not talked to any lawyers or investigators about it
until 2015, when she started receiving subpoenas. She
indicated that Mr. Edwards had not wanted to be involved
either, testifying that he "got a warrant" because
he had not wanted to go to the preliminary hearing. She said
she accompanied him when he went to the preliminary hearing
and was present in the courtroom when he identified the