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State v. Ballard

Court of Criminal Appeals of Tennessee, Knoxville

May 15, 2018

STATE OF TENNESSEE
v.
MOSES A. BALLARD, JR.

          Session December 20, 2017

          Appeal from the Criminal Court for Washington County No. 39880A Stacy L. Street, Judge

         The 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."[1]Following our review, we affirm the judgment of the trial court.

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

          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.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          D. KELLY THOMAS, JR., JUDGE

         FACTUAL BACKGROUND

         Salina 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.

         Ms. 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 like this.

         According 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."

         Ms. 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 wounds."

         Ms. 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."

         Ms. 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 fast."

         Ms. 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.

         Ms. 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.

         Ms. 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.

         Ms. 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 conviction.

         Koron 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.

         Mr. 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.

         Following 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.

         When 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.

         The 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."

         JCPD 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]."

         Inside 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.

         Pictures 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 the upholstery.

         Investigator 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 ...


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