Court of Criminal Appeals of Tennessee, Knoxville
Session: December 20, 2016
from the Criminal Court for Knox County No. 101256 Steven W.
defendant, Brandon Scott Donaldson, appeals his Knox County
Criminal Court jury convictions of second degree murder,
attempted second degree murder, and employing a firearm
during the commission of a dangerous felony, claiming that
the trial court erred by excluding certain evidence and by
giving certain jury instructions, that the evidence was
insufficient to sustain his convictions of second degree
murder and attempted second degree murder, that the sentence
imposed was excessive, and that the cumulative effect of
these errors prevented a fair trial. In addition, the
defendant raises a number of challenges to the statute
regarding the death of a fetus. Because the trial court
committed prejudicial error by excluding as hearsay certain
witness testimony, because this exclusion violated the
defendant's constitutional right to present a defense, we
reverse the defendant's convictions and remand for a new
R. App. P. 3; Judgments of the Criminal Court Reversed; Case
Jonathan Harwell, Assistant District Public Defender (on
appeal); and Troy L. Bowlin II and Sheena A. Foster,
Morristown, Tennessee (at trial), for the appellant, Brandon
Herbert H. Slatery III, Attorney General and Reporter; Renee
W. Turner, Assistant Attorney General; Charme P. Allen,
District Attorney General; and Kevin J. Allen and Molly
Martin, Assistant District Attorneys General, for the
appellee, State of Tennessee.
Curwood Witt, Jr., J., delivered the opinion of the court, in
which Thomas T. Woodall, P.J., filed a separate concurring
opinion in which Norma McGee Ogle, J., joined.
CURWOOD WITT, JR., JUDGE
Knox County Grand Jury charged the defendant with alternative
counts of the first degree murder of the victim, Marcia
Crider, alternative counts of the first degree murder of the
victim's unborn child, the attempted first degree murder
of Ms. Crider's mother, Pebbles Renee Jones, and one
count of employing a firearm during the commission of a
dangerous felony arising out of the February 13, 2013
shooting that resulted in the death of the victim and her
unborn child. The trial court conducted a jury trial in
State's proof at trial showed that, in late 2012 and
early 2013, the 19-year-old victim lived with her mother in
an apartment in Knoxville. In early December 2012, the victim
was pregnant with her first child, and the victim's
long-term boyfriend and father of her unborn child, DeAndre
Crutchfield, had moved to Nashville. The victim and Mr.
Crutchfield had separated at that time, although they
continued daily communications.
the end of 2012 or in early January 2013, Mrs. Jones learned
that the victim had become a friend of the defendant, whom
the victim referred to as "L." Although the victim
never told Mrs. Jones that her relationship with the
defendant had advanced past friendship, Mrs. Jones was aware
that the victim would stay overnight at the defendant's
residence "two to three nights a week" in the weeks
preceding the victim's murder. Mrs. Jones testified that
the defendant was aware of the victim's pregnancy and
that he had accompanied the victim to appointments with her
obstetrician. Mrs. Jones testified that, prior to the day of
the murder, the defendant "was very respectful" and
"nice." Less than a week before the murder, the
victim had selected a crib from a local store but had no
means to transport it to her residence. The victim contacted
the defendant, who drove to the store and transported the
crib for the victim, telling Mrs. Jones that "[w]hat
makes [the victim] happy makes [him] happy." Mrs. Jones
was also aware that the defendant lived with his aunt,
February 12, 2013, the defendant picked up the victim from
Mrs. Jones's residence, and the victim stayed at the
defendant's residence overnight. The following morning,
the victim contacted Mrs. Jones at "nine
something." Mrs. Jones informed the victim that she was
en route to work; the victim told Mrs. Jones that she loved
her, and Mrs. Jones responded in kind. The victim contacted
Mrs. Jones again at 10:15 and told her that the defendant had
"put his hands on" her. Mrs. Jones informed the
victim that she was on her way to pick her up. Before Mrs.
Jones made it to her vehicle, the victim called back and told
her that the defendant had taken $1, 200 from her. Mrs. Jones
explained to the jury that she had recently given the victim
$1, 000 to help defray the cost of items needed for the baby.
Mrs. Jones again told the victim that she was on her way.
en route to the defendant's residence, Mrs. Jones called
I asked him what was going on and did he put his hands on
[the victim]. He said, "No." He said, "Miss
Renee, your daughter is crazy."
I don't care how crazy she is, you don't put your
hands on her.
And I - I said, "Look, I need to come and pick up what
belongs to her."
the defendant initially told Mrs. Jones to meet him at a
Hardee's restaurant near his house, he changed his mind
and told Mrs. Jones to come to his house, explaining that he
wanted "'to be sure that nothing of [his] is
Mrs. Jones arrived at the defendant's residence, the
defendant was not present but both the victim and Ms.
Knighton were. The victim was being "a little mouthy,
" and Mrs. Jones instructed her to "[h]ush"
because she was "in somebody else's house, "
and she should "respect this woman." Mrs. Jones
told the victim to collect her things, and Mrs. Jones asked
Ms. Knighton if any of the defendant's things were
broken. When Ms. Knighton responded in the negative, Mrs.
Jones called the defendant to inform him of this, and the
defendant appeared, walking toward the house. The victim told
Mrs. Jones that the defendant had "a gun in his
pocket." Mrs. Jones told the victim she wasn't
"worried about him or his gun, " and she told the
victim to gather her belongings so that they could leave.
Mrs. Jones noticed that the victim had a "red mark"
on her neck.
the defendant stepped inside the residence, he "reached
in his pocket and he counted out $1120." The victim told
the defendant that she had an additional $80, which the
defendant disputed. The defendant told her that he had
"'$3, 000 in [his] pocket"' so
"'[w]hat [did he] need [her] money for.'"
The victim insisted that she was owed $80, and Mrs. Jones
told her to leave it alone so they could leave. Mrs. Jones
described the defendant's demeanor at this point as
"very calm." Before the victim and Mrs. Jones could
leave the house, the victim said to the defendant,
"'Hmmm, I hope that $80 is worth that Sprite I
poured in your shoes.'"
to Mrs. Jones, the defendant "didn't say a
word" but pulled a handgun from his right pocket and
walked to his bedroom. While Mrs. Jones was rushing the
victim out the door of the residence, she overheard Ms.
Knighton say, "'No. No, L, no.'" Mrs. Jones
and the victim "basically [ran] to the car." The
victim got into the front passenger seat, and Mrs. Jones got
into the driver's seat. The victim was "playing with
her phone, " but Mrs. Jones saw the defendant walking
toward their vehicle "with the gun in his right
hand." As Mrs. Jones started to drive away, she heard a
"pop, pop, pop, pop, pop." Because none of her
windows shattered, she turned to the victim and said,
"'Baby, I think we're okay.'" Mrs.
Jones had driven past approximately nine houses on Porter
Avenue when the victim turned to her and said,
"'Mama, I've been hit.'" Mrs. Jones saw
"blood gushing out of [the victim's] nose and her
mouth." She stopped the vehicle and called 9-1-1; the
records custodian for Knox County Emergency Communications
District testified that a call reporting a homicide on Porter
Avenue came in at 10:53 a.m. Mrs. Jones insisted that,
between the time the victim told the defendant about pouring
Sprite on his shoes and stating that she had been hit, the
victim said nothing.
Crutchfield testified that, on the morning of February 13, he
was awakened by a telephone call from the victim. Before he
could speak, he heard the victim "screaming, 'Quit
hitting me. I'm pregnant.'" Mr. Crutchfield
could not hear any other voices in the background. He
demanded to know what was happening, and the victim told him
that "he" took her money, but she did not identify
the alleged thief. The victim and Mr. Crutchfield continued
exchanging telephone calls and text messages over the course
of an hour regarding Mr. Crutchfield's plans to drive to
Knoxville and the victim's intent to contact the police.
Mr. Crutchfield sent a text message to the victim at 11:09
a.m. asking her for an update, and he received no response.
defendant's half-brother, Alexander Branner, testified
that the defendant contacted him following the shooting and
asked Mr. Branner to leave the state with him. Mr. Branner,
who had an outstanding warrant for violating his probation,
agreed to go with him. Mr. Branner's girlfriend agreed to
register a vehicle in her name, which vehicle Mr. Branner and
the defendant drove to Rockford, Illinois on March 4. Both
men were arrested in Rockford on March 10, 2013. While hiding
in Illinois, the defendant told Mr. Branner about the events
of February 13:
He told me he was staying with a female at the time that was
a girlfriend. And the morning that it happened, he told me
they had been arguing that morning over a financial dispute.
And he tried to break up with her but she wouldn't leave.
He told me he tried to pack her stuff for her, but she was
fighting him the whole time, calling him out his name, being
disrespectful the whole time.
And he finally got her stuff packed up and he threw it in the
front yard. And when he threw it in the front yard, she
followed him out there, at which time he left and came back.
When he came back, she was still there, but her mother was
And to his - the front door to his house that he was staying
in was open, so he went in. They passed each other coming . .
. . . .
He went to his room and his room was destroyed, clothes was
destroyed. Said his room had been ransacked.
And when he came back to the front yard he said the - the -
the lady and her mom were getting in the car, pulling off.
But as they were leaving, she hung out the window and said,
"That's why we got herpes together."
At which point he blanked out. He had a gun on him, and he
shot at the car. And when he came back to, he said there were
bullet shells around his feet and the car was pulling off
around the block.
cross-examination, Mr. Branner elaborated that, during the
argument on February 13, the victim had threatened to
"have [the defendant] robbed" and had mentioned
that she knew where the defendant's mother lived and
where the defendant kept his money. The victim continued to
make these threats when the defendant returned to his house
to examine his room, shortly before shooting the victim.
Police Department ("KPD") Sergeant Jonathan
Chadwell responded to the scene of the shooting. Emergency
medical personnel were on the scene, tending to the victim,
and other KPD officers were speaking with Mrs. Jones.
Sergeant Chadwell proceeded to the defendant's residence,
where a woman answered the door and told him that no one else
was inside. Sergeant Chadwell verified that information and
noted the strong smell of marijuana emanating from the
residence. Sergeant Chadwell did not, however, notice the
smell of bleach and did not find the residence to be in
disarray. KPD Officer Brandon Wardlaw, who also responded to
the crime scene, testified that he, too, did not smell bleach
in the house and did not notice any sort of damage to the
KPD Officer and Crime Scene Analyst Edward Johnson responded
to the crime scene, he took dozens of photographs of Mrs.
Jones's vehicle and the surrounding scene, which
photographs were admitted into evidence. Officer Johnson
later photographed the trajectory of the bullets using
trajectory rods. He testified that the vehicle had been
struck six times: two bullets were discovered inside the
vehicle, two bullets were recovered from the victim's
body during the autopsy, one bullet ricocheted off the back
window, and one bullet entered and exited the driver's
side of the vehicle. One of the bullets entered through the
vehicle's trunk lid, continued through the backseat, and
penetrated the lower part of the front passenger seat, which
trajectory was consistent with the victim's being struck
in the lower left side of her back. Officer Johnson testified
that he recovered a total of 11 shell casings and one
cartridge from the scene.
Johnson also photographed the interior of the defendant's
residence, and he did not recall the smell of bleach. Officer
Johnson, in describing the photographs, mentioned the
presence of a Sprite can in the floor of the defendant's
bedroom. Officer Johnson confiscated a handgun magazine and
two boxes of ammunition from a drawer in the defendant's
bedroom. On one side of the bedroom, several pairs of
athletic shoes were visible, including two pairs of
"Jordans, " and Officer Johnson testified that
those shoes and the surrounding floor were "damp"
where "some type of clear sticky liquid" had been
Officer and Firearms Examiner Patricia Resig testified as an
expert witness in the area of firearms identification.
Officer Resig stated that she examined the 11 nine-millimeter
shell casings that had been recovered by Officer Johnson and
determined that all had been fired from the same
Sergeant Brian Dalton testified as an expert in shooting
incident reconstruction. After examining Mrs. Jones's
vehicle, Sergeant Dalton determined that there were "at
least six projectiles indicating six different flight paths
through this vehicle." The first projectile he examined
entered through the glass of the rear passenger-side window
and damaged the front passenger seat. Another projectile
entered the vehicle's trunk and continued through both
the back seat and the lower portion of the front passenger
seat. A third projectile ricocheted off the vehicle's
trunk, and another projectile entered the vehicle near the
rear driver-side taillight, but neither projectile entered
the passenger compartment. A fifth projectile entered through
the left side of the trunk and ended in the backseat armrest.
Finally, the sixth projectile penetrated the rear bumper and
exited the bumper behind the driver-side rear tire.
respect to the position of the defendant relative to the
position of the vehicle at the time of the shooting, Sergeant
Dalton made the following observations:
[W]e're seeing that this vehicle was hit from multiple
different points from the passenger side all the way around
to something that was parallel to the driver side. So again,
vehicle's moving; it's changing elevation in the
roadway if the shooter is staying fixed; or the shooter is
moving and the vehicle's staying fixed; or both of those
are changing at the same time.
Major Crimes Investigator Lynn Clemons testified that the
United States Marshals Service located the defendant in Cook
County, Illinois on March 8, 2013. Investigator Clemons flew
to Illinois a few days later to interview the defendant and
have him transported back to Knoxville.
Christopher Lochmuller, Chief Deputy Medical Examiner for
Knox County, conducted the victim's autopsy. Doctor
Lochmuller testified that the victim had sustained two
gunshot wounds: one entered the right side of her upper back,
and one entered the left side of her lower back. The bullet
that entered the victim's upper back passed through the
victim's right third rib, the right lung, the aorta and
pulmonary trunk, the left lung, and lodged within her left
breast. The other bullet entered the lower left side of the
victim's back, passed through the left side of her
pelvis, penetrated her uterus and passed through the head of
her 13-week-old male fetus, and ended in the victim's
bladder. Although the gunshot wound to the victm's lower
back was "potentially survivable, " the other wound
"was highly likely to be fatal within minutes." The
injury to the fetus, however, was "a nonsurvivable
injury." Toxicology tests on the victim's blood were
negative for alcohol but revealed the presence of marijuana
this evidence, the State rested. Following the trial
court's denial of the defendant's motion for
judgments of acquittal and a Momon colloquy, the
defendant chose not to testify but did choose to present
Knighton testified that the defendant had been living with
her on Porter Avenue for approximately eight months prior to
the shooting and that the victim would stay overnight with
the defendant two or three nights a week. On February 13,
2013, Ms. Knighton was awakened by the sound of arguing
coming from the defendant's bedroom. Concerned, Ms.
Knighton entered the defendant's room and saw that the
defendant "had tears in his eyes." The defendant
told the victim that she needed to leave because she had
"'put [her] hands on [him] too many
Knighton testified that, following the argument, the
defendant left the house and returned sometime later, at
which point he gave the victim $1, 200. The victim was
"fussing" at the defendant, and the defendant
walked away toward his bedroom. When the defendant reemerged
from his bedroom, the victim was "very upset" and
was still arguing with the defendant. The victim told the
defendant that she had "poured Sprite in all of his
brand new tennis shoes" and had "poured bleach all
over" several "pairs of jeans [that] still had the
price tags on them." Ms. Knighton explained that she had
a breathing condition and that the fumes from the bleach were
so severe that she had placed the clothing items into a bag
and had thrown the bag into the garbage after the defendant
left later that day.
the victim and Mrs. Jones left the house, Ms. Knighton was
"hanging onto" the defendant in an attempt to
prevent him from leaving the house because she knew that he
"had a gun in his hand." Before Mrs. Jones pulled
away from the defendant's house, the victim was
"screaming" at him from the vehicle, and Mrs. Jones
"hit the accelerator" and started to speed away.
cross-examination, when asked why she had not mentioned the
bleach to officers during the course of her six-hour
interrogation, Ms. Knighton said that she "thought"
she had. Ms. Knighton conceded that she had not provided
officers with the defendant's real name, only referring
to him as "L" instead, and she acknowledged that
she had told officers that she did not know who the
defendant's mother was, explaining that it was "not
[her] job" to find the defendant. Ms. Knighton insisted
that the defendant's taking money from the victim had
"nothing to do with" their argument. Ms. Knighton
testified that she never saw the defendant strike the victim,
but she admitted that the defendant had grabbed the victim by
her coat and dragged her into the living room.
on this evidence, the jury convicted the defendant of the
lesser included offenses of two counts of second degree
murder and one count of attempted second degree murder, and
the jury found the defendant guilty as charged of the crime
of employing a firearm during the commission of a dangerous
felony. Following a sentencing hearing, the trial court
imposed sentences of 25 years each for the second degree
murder convictions, eight years for the attempted second
degree murder conviction, and 10 years for the firearm
conviction, all to be served consecutively to one another for
a total effective sentence of 68 years. Following the denial
of his timely motion for new trial, the defendant filed a
timely notice of appeal.
appeal, the defendant contends that the trial court erred by
excluding certain evidence and that the exclusion of the
evidence deprived him of his constitutional right to present
a defense; that the trial court erred in its instructions to
the jury on second degree murder and voluntary manslaughter;
that Tennessee Code Annotated section 39-13-214, which
defines a human embryo or fetus as "another" for
purposes of criminal offenses, is void for vagueness and is
unconstitutionally broad; that the evidence adduced at trial
was insufficient to sustain his convictions of second degree
murder and attempted second degree murder; that the sentence
imposed was excessive; and that the cumulative effect of the
errors prevented him from receiving a fair trial. We will
address each issue in turn.
Exclusion of Evidence
defendant first contends that the trial court erred by
excluding certain evidence at trial and that the exclusion of
that evidence interfered with his constitutional right to
present a defense. The evidence at issue concerns the
exclusion of Ms. Knighton's testimony regarding
statements made by the victim and the exclusion of some of
the victim's telephone communications.
trial, Ms. Knighton testified regarding the argument she
overheard between the defendant and the victim on the morning
of February 13. Ms. Knighton began to testify that she heard
the victim referencing a sexually-transmitted disease when
the prosecutor objected on the basis of hearsay. The trial
court then conducted a hearing on the testimony outside the
presence of the jury, at which time Ms. Knighton testified,
in pertinent part, as follows:
Q: All right. So you - you said a lot of things to the [j]ury
and - and - a few - few minutes ago, we had to cut you off.
Q: What did you hear [the victim] say as she was crying and
excited and angry? What did you hear her say?
A: She called him a "dirty dick m-f" and told him
that's the reason why his D-I-C-K was burning. And that
they both was burning. And that's the reason why that she
didn't give him none last night, because she went and got
a shot, and "that's the reason why your
you-know-what is still burning."
And I guess he figured out, you know, why he was feeling the
way he was feeling and the reason why she was doing it with
him when she did it. Because I don't know if she was
telling him another way matter [sic] that, you know -
Q: What was - what was . . .
A: - this is where it come from.
Q: Okay. And what was your impressions, based on the
statements that [the victim] was saying to [the defendant],
what was - what was your impression?
A: That . . .
Well, my impression, the way I took it, the way she said it
was that, you know, I mean, "I've done caught some
type of venereal disease from somebody, and I went to bed and
gave it to you."
A: "So that's the reason why I've been laying
with you. Now we both have it. Now I'm fixed and
you're not getting nothing."
Knighton continued, stating that, following this verbal
altercation, the defendant left and that both she and the
victim stayed in the residence.
Q: Okay. Did [the victim] make any phone calls to her mom or
A: She had made a phone call. She was calling her uncles or
her cousins or somebody, that she said that she had somebody
to take care of him that was going to 'f' him up.
Q: Okay. So you - you heard [the victim] say she had someone
to take care of him, to 'f' him up?
A: Yeah. I was standing right beside her.
the defendant returned to the house and gave the victim her
money, Ms. ...