Session September 6, 2017
from the Criminal Court for Shelby County No. 14-03457 James
C. Beasley, Jr., Judge
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.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
R. McCabe, Memphis, Tennessee, for the appellant, Timothy
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
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.
ROSS DYER, JUDGE
and Procedural History
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
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.
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
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
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.
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
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
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
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.
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.
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
[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.
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.
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
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
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
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.
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.
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."
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 ...