State v. Jennings

          Assigned on Briefs November 28, 2017

         Appeal from the Criminal Court for Hamilton County No. 292497 Thomas C. Greenholtz, Judge.

         A Hamilton County jury convicted the Defendant, Rodney Jennings, of second degree murder, and the trial court sentenced him to serve twenty-five years in the Tennessee Department of Correction. The Defendant appeals, asserting: (1) the trial court improperly allowed into evidence testimony concerning the Defendant's gang affiliation and the Defendant's 2013 domestic assault conviction; (2) the State improperly impeached the Defendant during cross-examination; and (3) the evidence is insufficient to support his conviction. After review, we affirm the trial court's judgment.

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

          Rodney Jennings (on appeal), pro se, Hartsville, Tennessee; Brandy Spurgin and Brian Pearce (at trial), Chattanooga, Tennessee, for the appellant, Rodney Jennings.

          Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel; M. Neal Pinkston, District Attorney General; Cameron Williams and Kristen D. Spires, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Robert W. Wedemeyer, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and J. Ross Dyer, J., joined.

          OPINION

          ROBERT W. WEDEMEYER, JUDGE.

         I. Facts

         This case arises from a domestic dispute over visitation with the Defendant and Cheslei Thompson's children, which resulted in the Defendant shooting and killing Ms. Thompson's cousin, Raphael White. A grand jury indicted the Defendant for second degree murder and possession of a firearm with a violent felony conviction. One of the issues the Defendant raises on appeals is the admission of testimony about a 2013 domestic assault. As such, we separately summarize the testimony from the 404(b) hearing before providing the summary of the trial testimony.

         A. 404(b) Hearing

         The State sought to introduce proof of a June 2013 domestic assault conviction, involving Ms. Thompson and the Defendant's children. The State submitted that the evidence was relevant to show the Defendant's intent related to the second degree murder charge, demonstrating similarities between the 2013 episode and the 2014 shooting. The State, through Jean Rogers, a Hamilton County 911 Record Specialist, introduced two 911 calls made from a neighbor's residence recorded at 1:11 a.m. on June 5, 2013. The defense, through the same witness, introduced two 911 calls placed from Waffle House on East 23^rd Street. These calls were made by a man who identified himself as "Rodney" at 4:22 a.m. and 5:02 a.m. on June 5, 2013.

         Brian Angel, a Chattanooga Police Department officer, testified that, in June 2013, he was dispatched to a residence on 6^th Avenue in Chattanooga, Tennessee, at approximately 1:30 a.m. When he arrived, he observed a female, Ms. Thompson, outside who appeared "very hysterical." There was blood "all over her, " and he noticed a broken window on the front of the apartment. Ms. Thompson explained to the officer that her "child's father, " later identified as the Defendant, had broken the window and there was "some kind of struggle" during which she was cut on the broken glass. The Defendant made entry but fled prior to the officer's arrival. Officer Angel testified that Ms. Thompson had cuts on her forearms. He also observed two small children inside the residence.

         Officer Angel testified that, within a couple hours of his initial contact with Ms. Thompson, the Defendant arranged to turn himself in to the police at a Waffle House parking lot located on 23^rd Street. On cross-examination, Officer Angel was asked about whether there was "a lot of gang activity" in the 6^th Avenue apartment complex, and he replied, "Sure."

         Ms. Thompson testified that she and the Defendant had been in a relationship and had two children together. The couple had never married but had lived together intermittently. Ms. Thompson explained that the Defendant lived with her at the 6^thAvenue residence for "a couple of months" before he moved out due to an argument. In June 2013, after the Defendant had moved out, he returned to "visit." During the visit, a Chattanooga Housing Authority employee appeared at the residence and issued the Defendant a citation for "yelling in [Ms. Thompson's] face" and banned the Defendant from the property.

         Ms. Thompson testified that several days later, on June 5, 2013, a friend of hers was spending the night. She recalled that Kionna Glenn^[1] and Ms. Thompson's two children were at the residence that night when the Defendant came to the door. Ms. Glenn let the Defendant inside and, once inside, he instigated an argument with Ms. Thompson. The Defendant and Ms. Thompson were in an upstairs bedroom with their children, and the Defendant accused Ms. Thompson of engaging in a sexual relationship with Kionna. The argument escalated to an assault during which the Defendant hit and pushed Ms. Thompson. The Defendant and Ms. Thompson moved their altercation downstairs where the Defendant hit Kionna. The children began crying, and the Defendant grabbed their older son, then four years old, and pushed him against the wall. "[F]inally" the Defendant exited out the front door.

         Ms. Thompson testified that the Defendant could not re-enter the residence because she quickly locked the front and back door after his departure. Because he was unable to enter through a door, the Defendant broke the kitchen window. As the Defendant entered through the window, Ms. Thompson tried to push him back out, cutting her hands and arms on the broken glass in the process. The Defendant entered through the window and hit Ms. Thompson in the kitchen before walking to the living room area where he paced. According to Ms. Thompson, the Defendant dropped his phone, told Ms. Thompson to call the police, and then left. Ms. Thompson used the Defendant's cell phone to call the police. Ms. Thompson was transported by ambulance to the hospital where she was treated for her injuries. The Defendant was later arrested and served six months in jail for this incident.

         Ms. Thompson testified that the Defendant was released from jail in December 2013. He contacted her approximately two weeks after his release via Facebook to ask if he could see the children. Ms. Thompson agreed, and the Defendant picked up the children at Ms. Thompson's mother's residence. Later that night, Ms. Thompson retrieved the children from the Defendant. Approximately two weeks before the shooting in this case, she again allowed the Defendant to take the children for a few hours. The Defendant picked up the children from her 6^th Avenue residence and returned them there.

         On January 28, 2014, the Defendant appeared at her front door asking to see the children. The older child was at Ms. Thompson's mother's residence, and the two-year-old was upstairs sleeping. Ms. Thompson explained this to the Defendant and told him she would not wake up their younger child. She told him he should come back another time. The Defendant continued asking to see the sleeping child. Raphael White, the victim, told the Defendant "we don't want any problems, " and the Defendant "said the same." The Defendant backed out the door, put his hand into his pocket when he was out in the hall. As the victim was shutting the door, Ms. Thompson heard a gunshot. Ms. Thompson testified that the victim did not have a gun and that she did not see the gun that shot the victim. After shooting the victim, the Defendant fled.

         On cross-examination, Ms. Thompson testified that on the night of the June 2013 assault the Defendant was "out of control, " but on the night of the January 28, 2014 shooting the Defendant was calm and there was no "fight."

         After hearing this evidence, the trial court granted the Defendant's motion seeking to exclude any testimony about the June 2013 domestic assault. In further discussions about potential testimony, the trial court advised defense counsel that, if the defense "open[ed] the door to the [2013] domestic assault, the rest of it comes in."

         B. Trial Testimony

         During the trial, the parties presented the following evidence: Larry Ellis and Matthew Bond, ^[2] Chattanooga Police Department ("CPD") officers, were the first responders to a homicide scene located at East Lake Court housing project on 6^th Avenue. As Officer Ellis approached the entryway to the unit, he saw the victim lying on the floor near the door, and three females and one male who were "very emotional and screaming." The officers separated the witnesses from the victim by moving the witnesses into the living room area. The officers also conducted a protective sweep of the unit and other than the previously mentioned adults and one child, found no one else present. Officer Ellis testified that the witnesses identified the shooter and described the truck that he left in. The victim was transported to the hospital, and the witnesses were transported to the police station for questioning.

         James Metcalfe, the Hamilton County Chief Medical Examiner and Forensic Pathologist, testified as an expert witness in the field of forensic pathology. After examining the victim's body, Dr. Metcalfe concluded that the victim's manner of death was homicide and that the cause of death was a gunshot wound to the chest. Dr. Metcalfe explained that the "main injury" was caused by a bullet that traveled through the victim's left ventricle and left lung. He stated that this type of wound was fatal. Dr. Metcalfe collected the bullet from the victim's back just under the skin. The Chattanooga Police Department collected the bullet as part of the investigation.

         Tirrea Tony testified that she was present in Ms. Thompson's apartment ("6^thAvenue unit") at the time of the shooting. She said she was in the living room when the Defendant knocked on the door. Ms. Thompson opened the door to him, and the two argued in the kitchen about the Defendant seeing the children. Ms. Tony recalled that the younger child was asleep in the apartment, but the older child was not there. According to Ms. Tony, Ms. Thompson told the Defendant he should leave. The victim came into the kitchen and reiterated that the Defendant needed to leave, saying "I don't want no problems." The Defendant responded that he did not want "no problems" either and walked out the door. The victim walked to the door to shut it, and the Defendant shot the victim in the chest. Ms. Tony testified that she did not see the victim with any weapon that night and did not hear him threaten the Defendant.

         On cross-examination, Ms. Tony confirmed that the Defendant was "aggressive" toward Richard Morris at Ms. Thompson's residence on the day of the shooting. When presented with her testimony from the preliminary hearing, Ms. Tony agreed that at the preliminary hearing she said that the Defendant showed no signs of aggression but maintained that her trial testimony was more accurate. Ms. Tony reiterated that the Defendant and Ms. Thompson were in the kitchen where he was talking like he was "mad at her" when the victim entered and told the Defendant to leave. Ms. Tony said the Defendant was pacing back and forth at the time and then walked out the door into the "public hall." Ms. Tony confirmed that she did not see the gun or the gunfire.

         Ms. Tony testified that, at the time of the shooting, the victim had "[h]is flag" in his pocket and his cell phone. After playing the 911 recording again, Ms. Tony agreed that she did not tell the 911 operator, when asked, who shot the victim and that she also denied knowing where the victim was shot. Ms. Tony, however, maintained that she was certain it was the Defendant who shot the victim.

         On redirect examination, Ms. Tony testified that she knew the Defendant as "Roscoe" and was unaware of his full name on the day of the shooting. She identified the Defendant in court as the man who shot the victim on January 28, 2014.

         Ronald White testified that Ms. Thompson was his sister and that the victim was his cousin. Mr. White recalled that he had stayed at his sister's residence the night of January 27, 2014, and was still there on January 28 when the Defendant came by asking to see his children. The Defendant knocked on the door, and Ms. Tony called upstairs to Ms. Thompson, who was in her bedroom with a "male friend . . . [Richard Morris]." Ms. Thompson went downstairs and opened the door to the Defendant. The victim knocked on the door of the room Mr. White was in and "told him to come down the steps" with the victim. The victim and Mr. White went downstairs and into the living room.

         Mr. White testified that he overheard the Defendant and Ms. Thompson talking about their children. At some point, Mr. Morris came downstairs, and the Defendant asked Mr. Morris if he "was [ ] messing with [Ms. Thompson] now." Mr. Morris denied "messing with" Ms. Thompson, stating that she was "[j]ust [his] home girl." The Defendant told Mr. Morris that he had "no problem" with him, Mr. Morris left, and the Defendant and Ms. Thompson resumed their conversation about their children. The conversation between the two turned "loud, " and Mr. White urged the Defendant and Ms. Thompson to "calm down" for the sake of their children.

         Mr. White testified that the conversation between the Defendant and Ms. Thompson again escalated, so the victim walked into the room, opened the door for the Defendant, and said, "we don't want no problems." The Defendant said that he did not want "no problems either" and then the shooting occurred. Mr. White said he was standing behind the victim and did not see the Defendant fire the gun but noted that the Defendant was the only person standing in the doorway. After the gunfire, the victim fell backward toward Mr. White, and Mr. White "pulled him in." Mr. White said that the victim grabbed his chest and was shaking. When Mr. White lifted the victim's shirt, he saw the gunshot wound and immediately ordered the others to call 911. He said that everyone was in shock and "flipping out, " so he grabbed a phone and called 911.

         Mr. White testified that, before the shooting, the victim did not threaten the Defendant or make any threatening gestures toward the Defendant. He said that the victim was closing the door when the Defendant shot him.

         On cross-examination, Mr. White said that he used the victim's cell phone to call 911 and that he retrieved the cell phone from the counter. Upon review of the transcript from the preliminary hearing, Mr. White agreed that he had previously testified that the cell phone had been in the victim's pocket but that someone had handed it to him to call 911. Mr. White explained that the circumstances were very stressful, and he was unsure of whose phone he had used to place the 911 call. Mr. White stated that the victim's "child mother" retrieved the victim's phone several days after the shooting. Mr. White confirmed that in November 2009, he was convicted of burglary and theft.

         Ms. Thompson testified that in January 2014 she lived in the 6^th Avenue unit with her two children, who were two and four years old at the time. Ms. Thompson explained that the victim was her cousin and Mr. White was her brother.

         Ms. Thompson testified that she and the Defendant had been in a relationship for six years and, at one point, the Defendant had lived in the 6^th Avenue unit with her but had moved out in June 2013. In the late afternoon of January 28, 2014, Ronald White, Raphael White, Ms. Tony, Mr. Morris, and "Lanesha" were present at the apartment. The Defendant came to the residence to "chill." She recalled that Ms. Tony heard the knock at the door and yelled upstairs to Ms. Thompson that the Defendant was at the door. Ms. Thompson was in her upstairs bedroom with her youngest son and Mr. Morris.

         Ms. Thompson testified that she went downstairs and opened the door for the Defendant. Around that time, Mr. Morris was leaving. The Defendant and Mr. Morris exchanged a few pleasantries and then Mr. Morris left. The Defendant asked to see their youngest child, and Ms. Thompson explained that he was sleeping. The Defendant urged Ms. Thompson to go and wake the child so he could see him, but Ms. Thompson declined, suggesting the Defendant come over to see their children another time. The Defendant asked Ms. Thompson for a cigarette, and she told him she did not have any. She continued to encourage him to leave, acknowledging that as she did so, she became "kind of loud." The victim then approached the Defendant saying "we don't want no problems, " and the Defendant reiterated the same and began walking toward the door with his "hands up." As he walked out the door, he put his hand back in his pocket. The victim took hold of the door to shut it, and then Ms. Thompson heard gunfire. Ms. Thompson said that she did not see the gun but that the Defendant was the only person in the public hallway. After the gunfire, the Defendant took off running. Initially, she did not realize that the victim had been shot, but when the victim's shirt was lifted, she saw a gunshot wound.

         Ms. Thompson testified that while Mr. White and Ms. Tony called 911, she checked to see if the victim had a pulse. Police officers arrived first, followed by the ambulance that transported the victim to the hospital. Everyone else in the residence was taken to the police station. Ms. Thompson stated that, before the shooting, she did not hear the victim threaten the Defendant nor did the victim have a gun on his person.

         Caleb Brooks, a CPD crime scene investigator, testified that on January 28, 2014, he responded to Erlanger Hospital about a potential homicide. Once he arrived, he learned that the victim had died. Officer Brooks collected evidence and then proceeded to the crime scene. At the crime scene, Officer Brooks took photographs and then placed evidence markers where there were items to be collected and video-recorded the scene. Officer Brooks observed what appeared to be a blood stain on a window seal and on the porch. He collected samples of both substances and swabbed the door handle for DNA testing. Officer Brooks stated that he and another officer searched the residence and found no firearms.

         Steve Scott, a Tennessee Bureau of Investigation ("TBI") forensic scientist, testified as an expert witness in firearms identification. Special Agent Scott stated that he had received a bullet for forensic examination. His examination revealed characteristics consistent with Winchester brand ammunition and generally associated with a .38 or .357 caliber bullet. Special Agent Scott stated that "typically" a .38 Special caliber revolver left residue within a four to five foot range from the muzzle of the gun. Nonetheless, he stated that if he did not find any residue, he could not "really form an opinion."

         Kendall Stoner, a TBI forensic scientist, testified as an expert witness in forensic biology, specifically DNA testing. Special Agent Stoner tested potential blood samples taken from the front porch of the building and from the window seal. Both swabs tested negative for the presence of blood. She also tested a swab for "touch DNA" taken from the interior door handle of the "main entrance door." The results did not indicate the presence of human DNA. The results from a swab of the front exterior door handle did not reveal a DNA profile.

         Tim Pickard, a Chattanooga Police Department officer, testified that he was assigned to the fugitive unit and became involved in this case in February 2014 after other officers were unable to locate the Defendant. Officer Pickard said that typically, members of the unit will conduct interviews with relatives, close family members, or other people associated with a suspect in order to gain information on the suspect's location. After investigating numerous possible connections to the Defendant, the fugitive unit obtained information that the Defendant was no longer in the Chattanooga area. Information about the Defendant was provided to the U.S. Marshals and subsequently Officer Pickard learned that the Defendant was found and arrested in Memphis, Tennessee on March 17, 2014.

         James Plumlee, a CPD homicide detective, testified that, on January 28, 2014, he arrived at the crime scene at approximately 8:30 p.m. All potential witnesses had been transported to the police station for questioning, and the crime scene area had been "taped off" to protect any potential evidence. Detective Plumlee conducted the recorded interviews with Ms. Tony and Ms. Thompson. After officers had interviewed all the witnesses, they met to share the information learned and developed the Defendant as a suspect. The police department issued a "Be On The Lookout" ("BOLO") for the Defendant. Further, patrol officers were sent to addresses of some of the Defendant's relatives in an attempt to locate the Defendant.

         Detective Plumlee testified that he went to the Defendant's father's residence and spoke with the Defendant's father and searched the residence for the Defendant. The Defendant's father said that the Defendant had contacted him from a blocked number and that he had tried to convince the Defendant to turn himself in and talk with the police. The Defendant's father also disclosed that the Defendant "hangs out" with Prentice Barnette. Police followed this lead but were unable to locate the Defendant. On February 9, 2014, the police department issued a video about the homicide on Crime Stoppers. The police received tips about the Defendant's possible location as a result of the video but still the Defendant was not located. In February, the search for the Defendant was transferred to the fugitive unit. In March, the Defendant was located in Memphis, Tennessee and transported to the Hamilton County jail. Detective Plumlee confirmed that the weapon used in the shooting was not recovered.

         The Defendant testified that he had two children with Ms. Thompson. He said that he stood five feet three inches tall and weighed 138 pounds in January 2014. About visitation with his children, the Defendant said that, following the end of his romantic relationship with Ms. Thompson, on the day he wanted to see the children he would contact Ms. Thompson via Facebook or call Ms. Thompson's mother, Marylyn^[3]Thompson.^[4] The Defendant stated that he was "homeless" but, when he had time with his children, he would go to a family member's or friend's house. He usually had the children in six or seven hour increments and would make arrangements for "a ride" to return the children to Ms. Thompson at East Lake Courts.

         The Defendant recalled the week before the shooting. He said that he had picked up the children from Marylyn Thompson's house. At the end of his time with the children, however, he could not obtain a ride to take the children home so he called Ms. Thompson asking if she would come get the children. Ms. Thompson agreed, and the Defendant told her to meet him at "54^th and St. Elmo Avenue" because he did not want the victim and Mr. White to know where he stayed. Ms. Thompson arrived, with Mr. White driving, later than expected and appeared "all mad" and "agitated." She rushed the children into the car and would not speak to the Defendant.

         The Defendant testified that he had known the victim and Mr. White for many years. He explained that the victim and the Defendant's younger brother, Nathan Jennings, had gone to school together. The Defendant recalled that approximately two years before the shooting, in 2012, the Defendant and the victim had engaged in an argument at Marylyn Thompson's residence. The Defendant said that he had gone to Marylyn Thompson's residence to see Ms. Thompson. While still outside, the victim approached the Defendant and accused him of "disrespecting Mar[y]lyn Thompson." The two began to argue and "tussle, " but no one was hurt during the exchange. He described the victim as six feet one inch tall and weighing approximately 175 pounds in comparison to the Defendant's smaller stature.

         The Defendant confirmed that he was convicted of robbery in 2006 and domestic violence and vandalism. As to the latter two offenses, the Defendant explained that he was "staying with" Ms. Thompson at her 6^th Avenue unit. Ms. Thompson had a friend over at the time, and the Defendant wanted the friend, Kionna Glenn, to leave because he felt that Ms. Thompson "act[ed] funny toward[ ] [him]" in Ms. Glenn's presence. Ms. Thompson refused to ask Ms. Glenn to leave, so the Defendant left to "drink" and "stuff like that." When the Defendant returned, he again raised the issue of Ms. Glenn leaving, and Ms. Thompson "just went off." The two began to argue and "stuff." He felt badly about the exchange, so he left his cell phone with her to call the police and walked to Waffle House.

         The Defendant testified that, while he was incarcerated for the domestic assault conviction, he spoke with his brother on the phone. His brother told him to be careful because the victim had threatened to "get" the Defendant when he saw him next. The Defendant and victim were incarcerated at the same facility for a period of time, and the victim confronted the Defendant verbally about the incident with Ms. Thompson but initiated no physical contact. The Defendant avoided the victim after that.

         The Defendant testified that he had seen the victim before with a gun at Marylyn Thompson's residence. He recalled that he was on the front porch of the residence when the victim arrived. The victim's eye was swollen and bleeding, and the Defendant saw a gun in the victim's back pocket as the victim paced back and forth angrily while ranting. The Defendant said ...