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State v. Bailey

Court of Criminal Appeals of Tennessee, Knoxville

September 5, 2017


          August 15, 2017 Session

         Appeal from the Criminal Court for Hamilton County No. 284116 Rebecca J. Stern, Judge

         Following a mistrial for juror misconduct, the Defendant-Appellant, Kaylon Sebron Bailey, was convicted as charged by a Hamilton County Criminal Court jury of first degree premeditated murder and possession of a firearm after having been convicted of a felony drug offense. See T.C.A. §§ 39-13-202, 39-17-1307(b)(1)(B) (Supp. 2011). The trial court imposed a life sentence for the murder conviction before sentencing Bailey, pursuant to an agreement between the parties, as a Range I, standard offender to a concurrent two-year sentence for the firearm offense. On appeal, Bailey argues (1) the trial court erred in admitting the victim's statements identifying him as the perpetrator of the shooting, and (2) the evidence is insufficient to sustain his convictions.[1] We affirm Bailey's convictions but remand the case for entry of a corrected judgment in Count 1 reflecting an indicted and conviction offense of first degree premeditated murder in violation of Tennessee Code Annotated section 39-13-202 and a corrected judgment in Count 2 reflecting an indicted offense of possession of a firearm after having been convicted of a felony drug offense in violation of Tennessee Code Annotated section 39-17-1307.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed and Remanded for Entry of Corrected Judgments

          Wesley D. Stone, Knoxville, Tennessee (on appeal); and Zachary Newman, Chattanooga, Tennessee (at trial), for the Defendant-Appellant, Kaylon Sebron Bailey.

          Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; M. Neal Pinkston, District Attorney General; and Bates W. Bryan, Jr., and Jason D. Demastus, Assistant District Attorneys General, for the Appellee, State of Tennessee.

          Camille R. MCMULLEN, J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Robert H. Montgomery, Jr., JJ., joined.



         Procedural History.

         This case followed a long and circuitous path before it was ready for review. After Bailey was convicted and sentenced in this case, trial counsel filed a timely motion for new trial, which was denied, and then a timely notice of appeal. After receiving notice from the appellate court clerk's office regarding his failure to file an initial brief in this appeal, trial counsel filed a motion for additional time to file his brief, and on January 13, 2016, this court entered an order granting counsel an additional thirty days. On the day before this brief was due, trial counsel filed a second motion requesting an additional thirty days to file his initial brief, asserting that he had been "busy in other Courts" and needed to prepare for "trials coming up in Criminal Court." On February 11, 2016, this court, after cautioning counsel that he had already received an extension of seventy-four days and that his grounds for relief were not well-taken, nevertheless granted the motion in part and gave counsel an additional ten days within which to file his brief. Thereafter, the State was granted two extensions of time for filing its responsive brief. Trial counsel then filed a motion for an additional thirty days to file his reply brief, alleging the same grounds for relief as in his previous motion in what appeared to be a "boilerplate motion for extension of time." On June 7, 2016, this court entered an order stating that while it did not doubt the veracity of the statements made by trial counsel in his motion, counsel had once again failed to provide a proper ground upon which to grant an extension of time to file a brief. It specifically observed that "[trial] counsel risk[ed] compromising his representation of the Defendant by filing motions based on grounds which have already been rejected by this court." The court also recognized that the case involved convictions for first degree premeditated murder and possession of a firearm and that trial counsel had raised twelve issues, six of which the State claimed were waived for failure to provide this court with an adequate appellate record to review, see Tenn. R. App. P. 24(b), and for failure to support issues with argument, see Tenn. Ct. Crim. App. R. 10(b). After noting that reply briefs should not be used to obtain additional time to file an initial brief in compliance with this court's rules and after cautioning trial counsel to be mindful of these rules, this court gave trial counsel an additional thirty days to file his reply brief.

         After reviewing trial counsel's initial and reply briefs, this panel recognized some serious deficiencies in these briefs in its August 18, 2016 order:

[W]e note that while [trial] counsel argues the evidence is insufficient to sustain the Defendant-Appellant's convictions for first degree premeditated murder and possession of a firearm, the "Statement of Facts" section in both briefs consists of only four sentences that are without references to the record, despite the fact that the trial transcript spanned several hundred pages. Although [trial] counsel intermittently cites to portions of the record when referencing facts in his argument, he frequently and erroneously summarizes the facts from the Defendant-Appellant's first trial, which ended in a mistrial, rather the facts from the Defendant-Appellant's second trial. Moreover, despite an opportunity to do so, [trial] counsel never supplemented the appellate record with a transcript of the jury instructions that were the subject of several issues on appeal. Finally, despite the court's warning regarding the possible waiver of several issues, [trial] counsel failed to provide adequate argument, appropriate citations to the record, or applicable citations to authority in his reply brief. With the exception of one or two cases cited within the argument section of both briefs, the only legal authorities listed in support of [trial] counsel's vague assertions are contained in a "Table of Authorities Page, " which directs this court to certain numbered issues rather than specific pages in the brief. When turning to these particular issues, however, it becomes apparent that the legal authorities listed in the "Table of Authorities Page" are not cited anywhere in the argument section for these issues, and this court is left wondering what relevance, if any, the listed authorities have to [trial] counsel's arguments. Because both briefs are essentially devoid of citations to relevant legal authority, the briefs also lack analysis of the applicable law to the facts of the Defendant-Appellant's case. We note that it is not the duty of this Court to act as the Defendant-Appellant's advocate, and we refuse to transform a wholly insufficient brief, through speculation or otherwise, into a brief that makes an intelligent assertion of grounds forming the basis of appellate relief.
Given these glaring deficiencies, we conclude that [trial] counsel's initial and reply briefs are distressingly inadequate. See Tenn. R. App. P. 27(a)(7)(A) (The brief of the appellant shall contain . . . [a] table of authorities, including cases (alphabetically arranged), statutes and other authorities cited, with references to the pages in the brief where they are cited[, ] . . . [a] statement of facts, setting forth the facts relevant to the issues presented for review with appropriate references to the record[, ] [and] [a]n argument . . . setting forth . . . the contentions of the appellant with respect to the issues presented, and the reasons therefor, including the reasons why the contentions require appellate relief, with citations to the authorities and appropriate references to the record . . . relied on[, ] and . . . for each issue, a concise statement of the applicable standard of review . . . .").

         In light of these deficiencies, we ordered that Bailey's brief be stricken pursuant to Rule 10(a) of the Rules of the Court of Criminal Appeals, we removed trial counsel, and we appointed appellate counsel to file a brief conforming to the requirements of the Tennessee Rules of Criminal Procedure. We also required both parties to follow a new briefing schedule outlined by the clerk of this court.

         On September 13, 2016, this court granted a request from newly appointed appellate counsel to supplement the record with several proceedings in this case. On October 17, 2016, we granted the court reporter's motion for additional time within which to prepare these transcripts and ordered that they be filed with the trial court clerk no later than December 12, 2016. On December 7, 2016, this court filed an order setting forth a revised briefing schedule wherein appellate counsel would file a substitute brief in this matter on or before January 4, 2017, and the State would file a responsive brief within thirty days. Appellate counsel filed his brief on December 30, 2016, and requested oral argument in this case, and the State filed its responsive brief on January 31, 2017. Appellate counsel then filed a motion for extension of time to file his reply brief, which was granted, and counsel timely filed his reply brief on February 21, 2017. After hearing oral arguments in this case on August 15, 2017, this case is finally ready for our review.

         Trial. We have summarized the proof at trial pertinent to the issues on appeal. Evidence was presented that the victim, Kima Evans, and the Defendant-Appellant, Kaylon Sebron Bailey, attended school together and became friends. During the course of their friendship, Bailey spent time at the Evans's home and knew the victim's mother, Anita Evans. Although the victim eventually moved out of his mother's home, he visited her there several times a week.

         On January 13, 2012, the victim concluded his visit with his mother and informed her that he was leaving. Ms. Evans[2], who was in bed watching television, heard her son leave her home. At approximately the same time, Ms. Evans's neighbor, Chessie Burch, was washing dishes at her house. Ms. Burch knew her son was waiting on a friend to give him a ride. When she heard her dog barking, Ms. Burch looked outside to see if her son's friend had arrived and noticed a person walking down the street toward the Evans's home. After confirming that her son's friend was not in her driveway, she returned to washing dishes. Approximately five minutes later, Ms. Burch heard several shots fired outside her home.

         Ms. Evans also heard several gunshots fired in quick succession close to her home, and she dropped to the floor. After checking on her mother, she crawled to the front window. When Ms. Evans looked outside, she saw the victim's car and noticed that the driver's side door was open and that the car's headlights were on, although the engine was not running. At the time, the porch light and the front light of her home were illuminated, and the street light shone on the area of her driveway. She walked out on her porch, called her son's name, and asked if he had been shot, and he replied, "[Y]eah, " and yelled for her to call 9-1-1. Ms. Evans immediately returned to the house and dialed 9-1-1. She walked outside and found her son in the passenger seat of his car with his head toward the back of the vehicle. As she approached him, the victim said, "Kaylon, " and when it was clear she did not understand what he was saying, the victim stated, "Kaylon, Kaylon Bailey."

         The recording from Ms. Evans's 9-1-1 call, took place at 7:27 p.m., and was entered into evidence. During this call, the victim can be overheard saying, "Kaylon Bailey shot me." A neighbor, Marethia Gholston, also testified that she heard the victim state several times that "Kaylon Bailey shot me."

         Ms. Evans said that after the victim was silent for a moment, he told her he thought he was dying. The victim also lost consciousness one time, although this was not reflected on the 9-1-1 recording. Ms. Evans said she was aware that the victim had been shot on his back near his tail bone, although she did not know the full extent of his injuries. After checking on the victim, Ms. Evans, at the victim's request, looked around the victim's car for cell phones, money, and marijuana. She was able to find some marijuana and two cell phones, and she had Greg Burch, Ms. Burch's son, give these phones to Ms. Evans's mother, who was inside the home. Ms. Evans said she removed the cell phones from the vehicle because she did not want people to think that the victim's shooting was a "dope deal gone bad[.]" She acknowledged that she never gave these cell phones to the police.

         Greg Burch also called 9-1-1, and the recording of this call was also entered into evidence. Mr. Burch told the 9-1-1 dispatcher that a shooting had occurred at his neighbor's home and that he had seen a man walking down the street just before he heard the shots fired. Mr. Burch stated he did not hear any raised voices or any conversation coming from the victim's home before hearing the gunshots. After the shots were fired, he walked over to help the victim and his mother and took a couple of the victim's cell phones away from the victim's car.

         Ronald Smith, one of the paramedics at the scene, said he did not believe the victim would survive his injuries because of the severity of the gunshot wounds to his lower back, arm, and leg and the amount of his blood loss. While in the ambulance, the victim's condition worsened, and the victim told Smith that he had something to tell him "[a]bout the man who shot [him]." Although the victim's mouth was covered by an oxygen mask, Smith thought he heard the victim say, "Caleb Bailey." He said that although the victim's blood pressure was strong, the victim's condition deteriorated during the ambulance ride, and he eventually lost consciousness. Based on his ten years of experience as a paramedic, Smith said that most individuals, like the victim, who have lost a tremendous amount of blood know that they are about to die.

         When the police arrived at the scene, officers discovered ten .223 caliber rifle casings, consistent with a semiautomatic assault rifle, on the ground behind and to the left of the driver's side door. Officers also collected three cell phones from inside the victim's vehicle and documented bullet holes in the front passenger door and window and in the front passenger seat of the vehicle. Testing by the ...

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