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State v. Harris

Court of Criminal Appeals of Tennessee, Knoxville

December 7, 2017

STATE OF TENNESSEE
v.
ANTHONY J. HARRIS

          Session September 19, 2017

         Appeal from the Criminal Court for Knox County No. 93061, 96566 Bobby R. McGee, Judge

         Defendant, Anthony J. Harris, was convicted of two counts of facilitation of felony murder and one count of facilitation of attempted second degree murder. He received an effective sentence of twenty-two years. On appeal, Defendant argues that the evidence at trial was insufficient to support each of his convictions, that his due process and speedy trial rights were violated by the timing of the superseding indictment, that the trial court erred by not allowing Defendant's expert witness to testify, that the State failed to properly preserve evidence, and that the State made improper remarks in their closing argument. After review, we hold that Defendant is not entitled to relief on any of his claims. The judgments of the trial court are affirmed.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

          Joseph A. Fanduzz, Knoxville, Tennessee, for the appellant, Anthony Jay Harris.

          Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney General; Charme P. Allen, District Attorney General; and Leslie Nassios, Assistant District Attorney General, for the appellee, State of Tennessee.

          Timothy L. Easter, J., delivered the opinion of the court, in which Norma McGee Ogle and Robert W. Wedemeyer, JJ., joined.

          OPINION

          TIMOTHY L. EASTER, JUDGE

         Factual and Procedural History

         The Knox County Grand Jury indicted Defendant, along with his co-defendant, Michael Olebe, with first degree premeditated murder on November 3, 2009, [1] for his role in the July 4, 2008 death of William Wheeler, Jr. The State filed a motion to amend the indictment on February 18, 2011. Subsequently, the Knox County Grand Jury filed a superseding indictment on February 22, 2011, that charged Defendant with first-degree premeditated murder, first-degree felony murder committed in the perpetration of a kidnapping, and first-degree felony murder committed in the perpetration of a theft. On that same day, Defendant filed a response to the State's motion to amend the original indictment, and two days later, Defendant moved for the felony murder counts to be stricken from the superseding indictment. The trial court never ruled on the State's motion to amend the original indictment. On March 1, 2011, a judgment was entered dismissing Defendant's first-degree premeditated murder charge from the original indictment. That same day, only one week after the filing of the superseding indictment, trial began.

         The testimony at trial regarding the events on July 4, 2008, was fairly consistent among all of the witnesses, including Syeisha Kilby, Lisa Tannehill, Laquinda Hardin, and Defendant, who testified on his own behalf. Thus, we will present the facts of the case as a single narrative up to the point that the State's case and the defense's case diverge.

         On the morning of July 4, 2008, Defendant woke up to his girlfriend, Lisa Tannehill, telling him that Laquinda Hardin, Defendant's first cousin, wanted Defendant to bring her son home. Ms. Hardin's son had spent the night at Ms. Tannehill's house after a playdate with Ms. Tannehill's son. To take Ms. Hardin's son home, Defendant drove to Alcoa, Tennessee. Upon his arrival at Ms. Hardin's house, Defendant met William Wheeler, Jr., the victim, who had given Ms. Hardin a ride to her house. After talking for a while, Defendant and the victim went back to Defendant's house that he shared with Ms. Tannehill.

         Upon returning to Defendant's house, Defendant introduced the victim to Ms. Tannehill, put on some music, and offered the victim vodka, gin, and moonshine. According to Defendant, the victim requested some gin, and Defendant poured him a cup. At that point, Defendant decided to take a shower. After bathing, Defendant joined the victim for another drink. On top of that drink, the victim had a shot of moonshine. Some conversation occurred, and then the victim expressed his desire for some crack cocaine. Defendant and the victim left in the victim's car to go find some crack cocaine.

         Defendant and the victim proceeded to the victim's house where the victim took a shower and had another drink. The two men spent about thirty minutes at the victim's house before they drove to an area of town known as Lonsdale in search of some crack cocaine. At a place called "Under the Tree, " the victim was able to get his hands on some crack cocaine, and Defendant met a girl that he knew from school nicknamed "Binky." "Binky" joined the two men in the victim's car, and they drove to a house that belonged to an acquaintance of "Binky." At that house, "Binky" and the victim went into a room by themselves for about thirty minutes. When they emerged, "Binky" left the house to get some more crack, and Defendant observed that the victim was high. Once "Binky" returned, she and the victim went back into the room for about fifteen more minutes. "Binky" left, and Defendant went inside the room to check on the victim. The victim could not talk. In the words of Defendant at trial, the victim was "geeked."

         According to Defendant, the victim wanted some more crack. However, neither of the men had any money. So, Defendant called Michael Olebe, nicknamed "O.D., " and spoke with him on the phone. Defendant and the victim drove to Mr. Olebe's house to see if Mr. Olebe would sell them some crack on credit. However, Mr. Olebe refused their request. In order to work out a deal, Defendant offered Mr. Olebe a pistol to hold as collateral until Defendant could get home and get the money. Mr. Olebe accepted this deal. As part of the deal, Defendant received forty dollars' worth of powdered cocaine, which he split with the victim. Both men snorted the cocaine powder. Next, Mr. Olebe and the victim spent some time outside of Mr. Olebe's house by themselves. Defendant claims that the victim asked him to hold onto the victim's phone during the time that the victim and Mr. Olebe were outside. Defendant maintains that he returned the phone to the victim when he came back inside. All three men-Defendant, the victim, and Mr. Olebe-left Mr. Olebe's house in the victim's vehicle.

         The three men drove to an ATM. The victim's bank records show that he made a transaction at approximately 3:11 p.m. on July 4, 2008. The video footage from the ATM shows the victim getting out of the driver's seat of a small SUV and walking up to the ATM. The video also depicts a person sitting in the front passenger seat of the SUV with their arm sticking out of the open window, and there is a shadow in the back seat that makes it appear as if someone was in the back seat. According to Defendant, Mr. Olebe was in the passenger seat and Defendant was in the back seat.

         From the ATM, the three men travelled to Morningside Park and met a woman, who was later identified as Syeisha Kilby. Ms. Kilby admitted that she had been "drinking a lot" on July 4, 2008, having consumed approximately "six beers and some liquor" before speaking to Defendant, the victim, and Mr. Olebe. When the men talked to Ms. Kilby, she and Mr. Olebe began flirting with each other. While Mr. Olebe continued to speak with Ms. Kilby, Defendant and the victim shared some vodka.

         Eventually, Ms. Kilby joined the three men in the car and they drove from Morningside Park to Franklin T. Fishback's house.

         Up to this point in the sequence of events that occurred on July 4, 2008, the facts presented at trial were consistent. The testimony at trial diverged when describing the following events. On one hand, we have the testimony of Defendant, and on the other, the testimony of Ms. Kilby and the other witnesses presented by the State. Additionally, Ms. Kilby's testimony is not entirely consistent with that of other witnesses presented by the State. We set forth the testimony in turn, beginning with the testimony of the Defendant.

         A. Defendant's Testimony

         According to Defendant, the group went to Mr. Fishback's house because "[Ms. Kilby] had stated she wanted to trade sex for some crack." Everyone was intoxicated. While the group was at Mr. Fishback's house, a fight broke out between Mr. Olebe and the victim. Mr. Olebe pulled the victim into the back seat of the SUV. Mr. Fishback told them to leave. At this point, Defendant was in the driver's seat and Ms. Kilby was in the front passenger's seat. The victim and Mr. Olebe were in the back seat fighting. Defendant described the altercation between the victim and Mr. Olebe as a simple fight, until "the gun goes off. . . . [Mr.] Olebe shot [the victim]." At that point, Mr. Olebe exclaimed, "I shot the m-f-er in the leg." Further struggle ensued, and Defendant "heard another shot." Defendant maintained that Mr. Olebe had possession of the gun the entire time. Then, "[Ms. Kilby] said [']be quiet, listen. This m-f-er's snoring.['] She said [']give it here. I'll shoot the m-f-er.[']" According to Defendant, Ms. Kilby got on her knees in the passenger seat and leaned between the seats. Mr. Olebe positioned the victim's body and pulled the victim's shirt up. Then, Defendant heard a third shot.

         Defendant testified that he, Mr. Olebe, and Ms. Kilby drove to Riverside to dump the body. On their first attempt, a car drove by. So, they circled the area, came back to the same place, and dumped the body of the victim. From there, they travelled to a house owned by Larissa Harris. While at Ms. Harris's house, Defendant sat on the steps of the house while Mr. Olebe and Ms. Kilby cleaned out the victim's vehicle. During this time, Defendant spoke to Derrick Harris, Ms. Harris's brother. Mr. Olebe and Ms. Kilby got a gasoline can from one of Ms. Harris's neighbors, and they drove to Quick Pantry and put some gasoline in the can.

         The victim's car was then driven to a location close to Mr. Olebe's house. Mr. Olebe poured gasoline on the vehicle, and Ms. Kilby lit a piece of paper and threw it inside the vehicle. Once the vehicle was ablaze, Defendant, Mr. Olebe, and Ms. Kilby walked back to Mr. Olebe's house. At this point, the group parted ways. According to Defendant, Mr. Olebe went home with the gun that was used to shoot the victim.

         Meanwhile, Defendant, with Ms. Kilby in tow, went to his ex-father-in-law's house to ask for a ride.

         Later in the evening, Defendant and Ms. Kilby rejoined Mr. Olebe at Walter P. Taylor Homes. Mr. Olebe stayed with them for around an hour. After Mr. Olebe left, Ms. Tannehill picked up Defendant and Ms. Kilby and dropped off Defendant at "Gene's Place." Defendant went inside, and Ms. Kilby eventually joined him. Defendant claims that he got the gun back from Mr. Olebe that same night and returned it to Ms. Tannehill the next day. Eventually, Defendant spoke with Investigator Charles Lee and gave him an account of what occurred.

         B. Testimony of Syeisha Kilby

         The State presented the testimony of Ms. Kilby, and her testimony recounting the events of July 4, 2008, crucially differs from Defendant's. According to Ms. Kilby, Defendant and the victim began arguing at Mr. Fishback's house because Defendant wanted to drive. Defendant and the victim started scuffling, and Defendant made him get in the back seat by pushing the victim as Mr. Olebe pulled the victim into the back seat. The victim was struggling and fighting when he kicked out a window in the car. At that point, Mr. Fishback came outside and told them that they could not be fighting at his house. So, they drove away in the car. When they left, Defendant was driving the car, Ms. Kilby was in the passenger seat, Mr. Olebe was in the back seat behind the passenger, and the victim was in the back seat in the middle. As they drove away, Mr. Olebe was punching the victim repeatedly and choking him. Ms. Kilby testified, "[The victim] was sitting up but he was in the middle and he was leaned forward and [Mr.] Olebe was choking him from the side." Ms. Kilby described Mr. Olebe as having his back against the inside of the rear passenger door.

         Ms. Kilby recounted that, after a few turns, Defendant pulled a gun out of his waistband, told the victim "to shut up or he was going to kill him, " and pistol whipped him. Shortly thereafter, the victim was not quiet, and Defendant reached between the seats and shot the victim. After that, Defendant handed the gun to Mr. Olebe and another shot was fired. Ms. Kilby only heard two shots. According to Ms. Kilby, she never fired the gun. After Mr. Olebe shot ...


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