Court of Criminal Appeals of Tennessee, Knoxville
Session December 20, 2017
from the Criminal Court for Washington County No. 39880A
Stacy L. Street, Judge
Defendant, Moses A. Ballard, Jr., was indicted for unlawful
possession of a firearm and first degree premeditated murder.
See Tenn. Code Ann. §§ 39-13-202,
-17-1307. The unlawful possession of a firearm charge was
ultimately dismissed upon the State's request. Following
a jury trial, the Defendant was convicted of the
lesser-included offense of second degree murder, a Class A
felony. See Tenn. Code Ann. § 39-13-210. The
trial court subsequently imposed a sentence of thirty-eight
years. In this appeal as of right, the Defendant contends (1)
that the evidence was insufficient to sustain his conviction;
(2) that the trial court erred in allowing an expert witness
to testify beyond the scope of her expertise; (3) that the
trial court erred by not allowing recorded jail phone calls
between the Defendant and two of the State's witnesses to
be introduced at trial; (4) that the trial court erred by not
allowing "evidence regarding the gang affiliation of
various involved parties" to be introduced at trial; (5)
that the State committed a discovery violation by withholding
evidence; (6) that the withheld evidence "amount[ed] to
newly discovered evidence" requiring a new trial; and
(7) that the trial court was unable to perform its duty as
the thirteenth juror "due to the withheld
evidence."Following our review, we affirm the
judgment of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Christopher G. Byrd, Johnson City, Tennessee, for the
appellant, Moses A. Ballard, Jr.
Herbert H. Slatery III, Attorney General and Reporter;
Jeffrey D. Zentner, Assistant Attorney General; Anthony Wade
Clark, District Attorney General; and Kenneth Carson Baldwin
and Frederick Michael Lance, Assistant District Attorneys
General, for the appellee, State of Tennessee.
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which James Curwood Witt, Jr., and Robert H. Montgomery, Jr.,
KELLY THOMAS, JR., JUDGE
Allen testified that in the early morning hours of July 4,
2014, she and several other people were at the home of Wesley
Blair "[g]etting ready to go out to the club." Ms.
Allen recalled that the Defendant and the victim, Michael
Rowe, were at Mr. Blair's house. Mr. Blair, Tonya
Hartley, and Brittany Maples were also present that night,
according to Ms. Allen, along with "a couple other
people" who were "in and out." Ms. Allen
testified that everyone in the house except for herself had
been drinking alcohol. Ms. Allen also testified that she saw
a gun in the house that night, but she did not know to whom
it belonged and could not identify the type of gun.
Allen testified that she had a sibling-like relationship with
the Defendant but that the Defendant was "angry"
and "yelling" that night. According to Ms. Allen,
the Defendant's "[a]gitated" demeanor that
night was out of character for him. At one point, Ms. Allen
"put [her] foot up" and "raised [her] leg up
just a little bit" so the Defendant could look at her
shoe. The Defendant "pulled [her] leg up further"
and she told him to stop. Ms. Allen testified that she
"pushed [the Defendant] back with [her] toes." The
Defendant then said, "[D]on't put your feet on me,
you f--king [b---h], " and "smacked" Ms.
Allen. According to Ms. Allen, the Defendant pulled her off
the couch by her foot, "smacked [her] again [once she
was] on the floor, " and threw her shoe at Ms. Hartley.
Ms. Allen testified that the Defendant had never treated her
to Ms. Allen, the victim "got upset" and
"exchanged" words with the Defendant. Ms. Allen
recalled that "there was a lot of yelling involved"
and then "[t]here was a little bit of a tussle in the
house" with the victim and the Defendant
"[b]umping" chests "like . . . [they] want[ed]
to fight each other." Ms. Allen and Ms. Hartley got
between the men and "tried to keep them apart." The
Defendant was told by the others to "get the [f--k]
out" of the house. Ms. Allen testified that the
Defendant "got upset and left." Ms. Allen recalled
that the Defendant "had kind of like tears in his
eyes" and was "very mad."
Allen recalled that about fifteen to thirty minutes later,
around 1:00 a.m., the victim and Ms. Hartley left the house.
Ms. Allen testified that she then heard "some
speaking" outside followed by five or six gunshots. Ms.
Allen "opened the door" and saw the Defendant
running down the street "pretty fast." Ms. Allen
testified that she saw the victim get out of his car and
shoot at the Defendant as he ran away. Ms. Allen further
testified that she knew the victim had been shot because he
was "holding his [left] side." According to Ms.
Allen, the victim "didn't make it that far"
from his car before he collapsed. Ms. Allen testified that
she ran to the victim and "caught [him] before he hit
the ground, " but that he "was pretty much
gone." Ms. Allen saw that the victim had been shot in
the "upper torso" and was bleeding "out of the
Allen admitted that she did not see a gun in the
Defendant's hand as he ran away from the victim. Ms.
Allen also admitted that, earlier that night, the victim had
said he needed to get out of town because "somebody
[was] going to get [him] or [he was] going to get
somebody." Ms. Allen further admitted that she told the
police investigator that the victim "was ready to choke
out" the Defendant during their "tussle."
Maples testified that she was the Defendant's
ex-girlfriend and that she was present at Mr. Blair's
house on the night of the shooting. Ms. Maples recalled that
the Defendant arrived at Mr. Blair's house "[l]ate
that night." Ms. Maples and the Defendant "had been
separated for about a month at the time." Ms. Maples
testified that she left the house and walked to a nearby gas
station after the Defendant "said something" to
her. When Ms. Maples returned to the house she "heard an
altercation inside the house." However, the door was
locked, and Ms. Maples could not get back inside. Ms. Maples
sat down on the sidewalk and "a moment" later saw
the Defendant in a car going away from the house "pretty
Maples was eventually able to get back in the house. Ms.
Maples recalled that "everybody . . . was very
upset" because the Defendant had "smacked" Ms.
Allen. Ms. Maples testified that the victim and Ms. Hartley,
as they were leaving, told her not to let the Defendant back
inside the house. According to Ms. Maples, Ms. Hartley
returned "right after she had left" to get her
backpack. As Ms. Maples opened the door to let Ms. Hartley
back in, the Defendant "came to the door" and said
"he wanted to apologize for the incident."
According to Ms. Maples, Ms. Hartley told the Defendant that
"he needed to apologize" to the victim.
Maples testified that she "went to stand at the [screen]
door to see what would happen." Ms. Maples testified
that she watched the Defendant walk around the front of the
victim's car to the driver's side "right there
by [the] mirror." Ms. Maples recalled that she saw the
Defendant's "mouth moving" and then saw
"fire come from a gun and heard the gunshots go
off." Ms. Maples estimated that there were "between
four and six" gunshots. Ms. Maples testified that the
Defendant was the one shooting and that she did not see any
gunfire come from inside the victim's car. Ms. Maples
further testified that the Defendant "was right there by
the window" pointing the gun at the victim and
"shooting inside the car" when the gunfire first
began. According to Ms. Maples, the Defendant then
"started to walk backwards as he was shooting"
before turning around and running away.
Maples testified that she saw the victim get out of the car
"holding his stomach." The victim "was firing
back at" the Defendant while Ms. Hartley "was on
the ground screaming for everybody to get back in the house
and not to say [any]thing." Ms. Maples testified that
she saw the Defendant running "pretty fast"
eventually going "between two houses." Ms. Maples
thought she saw the Defendant fall to the ground, so she left
the house to check on him. Ms. Maples testified that she did
not see the Defendant, but she did see the victim "on
the ground" approximately "ten to fifteen
steps" away from his car.
Maples admitted that she had testified at the preliminary
hearing that she was in the bedroom and did not see what
happened when the shooting started. According to Ms. Maples,
she testified that way at the preliminary hearing because she
"feared" the Defendant and "knew what he was
capable of." Ms. Maples claimed that she had been
threatened "[o]n both sides" to testify either for
or against the Defendant. Ms. Maples also admitted that she
had testified at the preliminary hearing that there had
already been "arguments" and "everyone . . .
[was] upset" at Mr. Blair's house before the
Defendant arrived. Ms. Maples recalled that she had seen Ms.
Hartley with a gun that night, but not the victim.
Additionally, Ms. Maples admitted that she had a prior theft
Fairley testified that he knew the Defendant from "the
street." According to Mr. Fairley, the Defendant asked
Mr. Fairley "to hold a pistol for him" because
"he didn't have [any]where else to put it." Mr.
Fairley testified that he agreed and put the gun "in a
shoe at [his] house." Mr. Fairley recalled that the gun
was a black and silver 9-millimeter. According to Mr.
Fairley, the Defendant called him on the night of the
shooting and told him that he was coming to get the gun. Mr.
Fairley estimated that the Defendant arrived fifteen minutes
later. Mr. Fairley testified that the Defendant "seemed
agitated" and intoxicated.
Fairley admitted that he had prior "[d]ope
charges." Mr. Fairley further admitted that he had
recently pled guilty in federal court to conspiracy to
distribute crack cocaine. Mr. Fairley testified that he told
the police about the Defendant's gun before he was
indicted in federal court but admitted that he was aware that
a federal indictment was likely to occur. Mr. Fairley also
admitted that he agreed to testify in hopes of having his
federal sentence reduced. In fact, Mr. Fairley told the
investigator in this case that he would not cooperate with
him unless the investigator in his federal case "came
through" for him. Additionally, Mr. Fairley admitted
that he had initially told the investigator that he was not
sure of the date or the year when this happened and that the
Defendant had picked up the gun before dark.
the shooting, the Defendant was apprehended and taken to the
Johnson City Medical Center (JCMC). The Defendant had a
gunshot wound just below his left buttock and one of his
calves had been grazed by a bullet. The Defendant told the
admitting nurse that he had used marijuana, cocaine, and
ecstasy in the past and that he drank five glasses of alcohol
a day. Testing of the Defendant's blood revealed that he
had recently used marijuana, cocaine, and alcohol prior to
his admission to the hospital. The hospital's blood
screen did not test for ecstasy.
investigators for the Johnson City Police Department (JCPD)
arrived, the crime scene stretched out for approximately one
block and numerous cartridge casings along with broken glass
were found in the street. A total of nineteen cartridge
casings were recovered from the street. The investigators
also found an unfired round in the street. There was only
"a little bit of blood" on the street from where
the victim had collapsed. Two handguns were eventually
recovered from a house "the next block down" from
Mr. Blair's house. One was a 9-millimeter Ruger P95 with
its serial number removed. The second was a 9-millimetter
Ruger P89. No fingerprints were recovered from either of the
guns or any of the cartridge casings.
investigators impounded and inventoried the victim's car.
There were five bullet holes present on the driver's side
of the car: one going through the windshield and into the
dash near the car's VIN number; one just above the front
driver's side tire; one at the hinge area where the
driver's side door connected to the body of the car; one
in the driver's side door a few inches away from the
driver's side mirror; and one several inches underneath
the door handle on the driver's side door. There was also
a "dimple" at the top of the driver's side door
that suggested a shot was fired into the door from inside the
car. However, the investigators believed that this was
"older damage" because there was "some
rust" on the edges of where the paint had "flaked
off" the "dimple."
Investigator Johnnie Willis, the lead investigator in this
case, testified that he and another investigator took
pictures of the car with rods they had "bought from Home
Depot" inserted into the holes in an attempt "to
show a trajectory . . . of the projectiles." These
pictures were shown to the jury. The jury was also allowed to
view the car in a parking lot behind the courthouse with the
rods "inserted . . . into the car . . . as they appeared
in [the] photograph[s]."
the car, the investigators found broken glass from the
driver's side window in the driver's seat, the
console, the floorboard, and the panel underneath the
driver's side door. A cartridge casing was found on the
floorboard underneath the driver's seat. Two bullet
fragments were found on the driver's side floorboard. An
unfired round was found on the passenger's seat.
Investigator Willis testified that it was possible that this
unfired round and the unfired round found in the street were
from "a gun that . . . jammed." There was no blood
or tissue found inside the car. A third bullet fragment was
found in the victim's clothing along with broken glass in
the victim's left front pocket.
of the interior portion of the driver's side door were
also introduced at trial. There was a hole at the bottom of
the door that Investigator Willis testified was consistent
with the bullet hole underneath the door handle on the
exterior of the door. Investigator Willis believed that the
bullet that made these holes struck the bottom of the
driver's seat. There was also a hole above the interior
door handle. Investigator Willis believed that this hole
aligned with the "dimple" at the top of the door.
Just underneath the interior door handle there was a tear in
Willis testified that he could not remember if the bullet
hole near the driver's side mirror on the exterior of the
door "was possibly a pass through or not."
Investigator Willis continued, stating that it was
"[n]ot as clear as the one at the bottom of the door
handle." Investigator Willis conceded that it was
possible that not all of the bullets penetrated into the
interior of the car. Investigator Willis testified that he
partially removed the door panel but was unable to find
anymore bullet fragments. Investigator Willis did not
remember if he and the ...