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State v. Donaldson

Court of Criminal Appeals of Tennessee, Knoxville

July 6, 2017


          Session: December 20, 2016

         Appeal from the Criminal Court for Knox County No. 101256 Steven W. Sword, Judge

         The 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 trial.

         Tenn. R. App. P. 3; Judgments of the Criminal Court Reversed; Case Remanded

          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 Scott Donaldson.

          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.

          James 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.



         The 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 January 2015.

         The 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.

         Near 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, Angelia Knighton.

         On 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.

          While en route to the defendant's residence, Mrs. Jones called the defendant:

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."

         Although 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 broke[n].'"

         When 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.

         When 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.'"

         According 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.

         Mr. 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.

         The 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 there, also.
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.

         On 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.

         Knoxville 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 interior.

         When 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.

         Officer 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 spilled.

         KPD 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 semi-automatic weapon.

         KPD 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.

         With 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.

         KPD 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.

         Doctor 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 metabolites.

         With 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 proof.

         Angelia 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 times.'"

         Ms. 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.

         After 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.

         On 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.

         Based 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.

         In this 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.

         I. Exclusion of Evidence

         The 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.

         At 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.
A: Okay.
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."
Q: Okay.
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."

         Ms. 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 anybody else?
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.

         When the defendant returned to the house and gave the victim her money, Ms. ...

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