Court of Criminal Appeals of Tennessee, Knoxville
Session September 19, 2017
from the Criminal Court for Knox County No. 93061, 96566
Bobby R. McGee, Judge
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.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
A. Fanduzz, Knoxville, Tennessee, for the appellant, Anthony
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
Timothy L. Easter, J., delivered the opinion of the court, in
which Norma McGee Ogle and Robert W. Wedemeyer, JJ., joined.
TIMOTHY L. EASTER, JUDGE
and Procedural History
Knox County Grand Jury indicted Defendant, along with his
co-defendant, Michael Olebe, with first degree premeditated
murder on November 3, 2009,  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.
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
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.
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.
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."
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.
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.
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.
Ms. Kilby joined the three men in the car and they drove from
Morningside Park to Franklin T. Fishback's house.
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
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
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.
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
Defendant, with Ms. Kilby in tow, went to his
ex-father-in-law's house to ask for a ride.
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
Testimony of Syeisha Kilby
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.
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 ...