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State v. McKinney

Court of Criminal Appeals of Tennessee, Jackson

February 23, 2018


          Session September 6, 2017

         Appeal from the Criminal Court for Shelby County No. 14-03457 James C. Beasley, Jr., Judge

         The defendant, Timothy McKinney, appeals his convictions for one count of attempted murder in the second degree, one count of employing a firearm during the commission of attempted murder in the second degree, two counts of reckless endangerment with a deadly weapon, and three counts of being a convicted felon in possession of a firearm, for which he received an enhanced sentence of life in prison without possibility of parole as a repeat violent offender. On appeal, the defendant contends the trial court abused its discretion when allowing improper impeachment questions during the cross-examination of the defendant; the trial court erred when failing to declare a mistrial; the State tainted the trial with improper statements made during closing arguments; the trial court erred when sentencing the defendant to life in prison as a violent offender; and the cumulative effect of these errors prejudiced the defendant and entitle him to a new trial. Following our consideration of the arguments of the parties, record, briefs, and applicable law, we affirm the judgments of the trial court.

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

          John R. McCabe, Memphis, Tennessee, for the appellant, Timothy McKinney.

          Herbert H. Slatery III, Attorney General and Reporter; Caitlyn Smith, Assistant Attorney General; Amy Weirich, District Attorney General; and Alanda Dwyer, Assistant District Attorney General, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which Norma McGee Ogle, J. concurred in results only. Thomas T. Woodall, P.J., filed a dissenting opinion.


          J. ROSS DYER, JUDGE

         Facts and Procedural History

         This case arises as the result of a shooting that occurred around 4:00 p.m. on January 23, 2014. A few days prior, the defendant was outside North Memphis Market when three men attempted to rob him at gunpoint. The defendant fled and, despite a criminal history that included three felony convictions for crimes of violence against people and knowledge these convictions precluded him from owning a firearm, purchased a gun from someone in the neighborhood. According to the defendant, the gun was necessary for protection.

         When the defendant approached the North Memphis Market on January 23, 2014, he recognized a man wearing a white hat. Once inside the store, the defendant confronted the man and accused him of being one of the men who attempted to rob him a few days earlier. The man in the white hat denied involvement, and the defendant saw him reach for his weapon. The defendant then pulled his gun and fired two shots, accidentally shooting Wayna Phillips, the fourteen year old victim, in the leg. The man in the white hat fired back, and both men fled the scene on foot. The victim crawled to an aisle in the store and waited for help to arrive.

         Renardo Hibbler, a cook at the North Memphis Market, was working at the time of the shooting. He initially thought the shots were firecrackers and moved to the back of the store to prepare chicken. While in the back, Mr. Hibbler heard a second round of shots, peeked into the store, and saw a black male exiting the building. Mr. Hibbler yelled, asking whether anyone had been hurt, and learned the victim had been shot in the leg. Mr. Hibbler reported the shooting and injury to "911."

         Javier McKissick was also working at the North Memphis Market during the shooting on January 23. Mr. McKissick had seen the defendant and the other men fighting outside the store a few days before and the day of the shooting noticed the defendant and one of the other men from the fight looking at each other from opposite ends of the store. Based on their body language, he knew something was about to happen. The men exchanged words, separated, and began shooting at one another. The defendant pulled his gun first and fired the first shot.

         Following the shooting, an ambulance arrived and transported the victim to LeBonheur Children's Hospital, where he remained for two days. While in the hospital, the victim underwent surgery for a broken thigh bone and was diagnosed with nerve damage. At the time of trial, the victim continued to have sharp pain in his leg as a result of the nerve damage.

         Officer John Hawkins with the Memphis Police Department ("MPD") was the first officer to respond to the emergency call and approximately five officers followed. When Officer Hawkins arrived, the victim had already been transported to the hospital, so he spoke with the victim's mother. The victim's mother was hysterical and indicated her son sustained a gunshot wound to the leg. After talking to additional witnesses, Officer Hawkins determined there were at least two suspects, one of whom was named "Tim." He never learned the identity of the second suspect.

         Officers Russell Woolley, Dresseas Fox, and Hope Smith also responded to the scene. Officer Smith took photographs of the building, tagged evidence, sketched the scene, and collected five bullet casings. Agent Eric Warren with the Tennessee Bureau of Investigation ("TBI") identified the casings as .380 caliber bullet casings and opined the bullets had been fired from two separate guns - two bullets from one gun and three bullets from the other. As part of their investigation, Officers Woolley and Fox spoke with witnesses and in the days that followed made several unsuccessful attempts to locate the defendant at two addresses obtained for him. Officers Woolley and Fox also met with Mr. McKissick in his home. Mr. McKissick is deaf, but the officers were able to communicate with him in writing and through his sister, who knew sign language. Mr. McKissick later went to the police station and gave an official statement with the aid of a sign language interpreter.

         Officers Thomas Parker and James Fort assisted with the collection and processing of video evidence. Officer Parker retrieved the surveillance video from the North Memphis Market and converted footage of the incident into a format that could be played for the jury. Officer Fort captured still photos of the incident from the surveillance video. Mr. McKissick identified the defendant in both surveillance video and still shots.

         Following the shooting, police officers spent days searching the area and speaking with neighbors regarding the defendant's whereabouts. The defendant learned the police were looking for him and, after speaking with his attorney, turned himself in to authorities.

         The State rested after calling the victim, Officer Hawkins, Officer Fox, Officer Parker, Officer Fort, Officer Smith, Mr. Hibbler, Agent Warrant, Officer Chappell, Mr. McKissick, and Officer Woolley to testify. Following a Momon hearing, the defendant testified on his own behalf. The defendant stated that following the altercation with the man in the white hat and two others outside the market, he was in fear for his life. As a result, despite knowledge he was not to own a firearm due to his three prior felony convictions involving violence and a conviction of aggravated robbery at gunpoint, the defendant bought a gun. According to the defendant, he only drew his weapon and fired after the man reached for his gun. The defendant fired two shots. The victim was standing in the checkout line at the time, and the defendant did not intend to shoot him.

         Prior to trial, the trial court granted a limine motion precluding reference to the defendant's prior conviction for murdering an off-duty police officer. During the cross-examination of the defendant, however, the following exchange occurred:

[State]: Did you tell anybody prior to going to jail that you had killed the police before you went to jail?
[Defendant]: No, ma'am.

         Defense counsel objected, arguing the question was prejudicial, and moved for a mistrial. During a bench conference outside the presence of the jury, the State clarified its question, stating it intended to ask the defendant, "If he had told anyone that he would kill the police before he went to jail. It is what is on that flyer. It was passed out and it is what was told to the officers." The flyer referenced by the State was never introduced into evidence at trial, but had been used by the MPD when attempting to locate the defendant following the shooting. The flyer included a picture of the defendant along with a warning that he told family members he would kill a police officer before going to jail. The trial court overruled the objection and denied the motion for a mistrial, finding the statement relevant to the credibility of the defendant's assertion he fired his gun in self-defense. Once the trial resumed, the State moved on and never continued its questioning of the defendant regarding the flyer.

         After the trial court charged the jury, which included an instruction that the statements of counsel are not evidence, the attorneys for the parties delivered closing arguments. During its closing argument, the State addressed adequate provocation, stating:

And you have defined for you what heat of passion is. And you know that it's a standard of what a reasonable person would do with adequate provocation. Not what he did or thought. What a reasonable person would think. And each one of you have common sense and reason or you wouldn't be here.
Ladies and Gentlemen, I give you an example of a hypothetical because some people would say that a case where that would apply would be a situation where a person walks in and finds their spouse in bed with someone else. Some people would say that would be adequate provocation. But that's not what he did.
Some people might say that if a person or a child was raped that would be adequate provocation. But that's not what this is. This is him not liking the fact that the white hat guy was with the guy that actually maybe robbed him or said something to him a few days prior. This is him going afterwards to settle his score. This is him upset with somebody who was just minding their own business with their back to him when he walks in the door.
By his testimony he acted out of instinct. By his testimony I'm familiar with my reflex. And Ladies and Gentleman, if that was what a reasonable person thought to be adequate provocation; if that was reasonable provocation then our streets would be littered with dead bodies.

         The defendant objected, and following a bench conference, the trial court found the hypotheticals of adequate provocation improper, as was the statement regarding "our streets would be littered with dead bodies." The trial court then gave this curative instruction:

Ladies and Gentleman, let me just remind you, your job is to try this case based on the facts that are presented in this case. And that's the only thing that you are to consider. It doesn't go beyond the realm of this case.
It's going [to] be your decision to determine what is adequate provocation if that's a question you have. That's a decision you must make. And that's a jury's decision and that's not the lawyer's and examples of what may or may not be. It's up to you to decide what is or is not adequate provocation.

         Later during its closing argument, the State commented, "Had Wayna Philips died this wouldn't be an attempt. He had an intent; he took a substantial step; he hit the wrong person." The defendant objected, stating, "That's not the law." The trial court agreed and stated, "That's a question of fact for the jury to determine whether or not if Mr. Phillips had died it would have been first degree murder. That's part of the argument, but that's - I'll give you the law. What I tell you is the law that's applicable."

         During its rebuttal closing, without objection from the defendant, the State offered this colloquy that the defendant now contends was improper:

So I ask you very quickly who has a motive to lie to you? Who benefits if you believe the lies? Is it Wanya Phillips? No matter what decision you make today Wanya Phillips is - his life is changed forever. Whatever you do can't fix the horrible injury that Wanya suffered in the convenience store in the middle of the day. Can't fix it. Didn't know those people before. Hadn't seen them since. Never been in that market before. He has no reason to lie to you.
Does Renardo Hibbler? No. Does Javier McKissick? No. Do the police officers that worked this case have any motive to lie to you? They absolutely do not. They worked hard to get to the truth, Ladies and Gentlemen. But the truth ...

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