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State v. Ailey

Court of Criminal Appeals of Tennessee, Knoxville

August 19, 2019

STATE OF TENNESSEE
v.
RONALD AILEY

          Session: January 23, 2019

          Appeal from the Criminal Court for Hamblen County No. 14CR619 Alex E. Pearson, Judge

         The Defendant, Ronald Ailey, was convicted by a jury of two counts of aggravated assault. Thereafter, the trial court imposed concurrent terms of four and one-half years, denied the Defendant's request for judicial diversion, and ordered the Defendant to serve six months' incarceration before being released on supervised probation. Upon the Defendant's motion for new trial, he argued that he received ineffective assistance of counsel due to trial counsel's failure to call exculpatory witnesses, failure to investigate and prepare for trial, failure to impeach certain State's witnesses, failure to prepare the Defendant to testify, failure to object to improper questioning of the Defendant on cross-examination, and failure to adequately advise the Defendant during plea negotiations. On appeal, the Defendant contends that the trial court erred by denying him judicial diversion or total probation and by applying certain enhancement factors. He also challenges the trial court's ruling that he received the effective assistance of counsel at trial. Upon a thorough review of the record and the applicable law, we affirm the judgments of the trial court.

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

          Wade V. Davies (on appeal and at sentencing), Knoxville, Tennessee; and Jonathan M. Holcomb (at trial), Morristown, Tennessee, for the appellant, Ronald Ailey.

          Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; Dan E. Armstrong, District Attorney General; and Kimberly L. Morrison, Assistant District Attorney, 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

         On August 21, 2014, a confrontation occurred in a rural area outside Morristown known as "Boatman Mountain," during which the Defendant fired his handgun four times. Thereafter, the Hamblen County Grand Jury indicted the Defendant for two counts of aggravated assault by knowingly causing a ten-year-old girl ("the minor victim") and her thirty-three-year-old brother ("the adult victim"), to fear imminent bodily injury by displaying a deadly weapon. See Tenn. Code Ann. § 39-13-102. Following a jury trial, the Defendant was convicted as charged.

         1. Trial.

         The 911 calls recounting the incident were entered into evidence at the beginning of trial. The first call was placed by the adult victim at 8:00 p.m., and he relayed to the operator that the Defendant had shot at him four times. Also at 8:00 p.m., a call came in from a neighbor, who lived at 1736 Boatmans Ridge Road, wherein the caller stated that a man in a white truck "just pulled up and started yelling" and shots were fired. This caller also said that the noise "could've been a firecracker." The next call came from the victims' father at 8:01 p.m. The operator asked the victims' father what was "the reason why [the man] was shootin' off the gun?" The victims' father replied, "I don't know the whole story[.]" The victims' father said that the shooter was "supposedly" the Defendant. The victims' father also told the operator:

I mean I don't really know what happened. I live down here. That was my little girl and my boy, and (unintelligible) said there were gunshots fired. And some people up here seen it [sic], and I'm down here calming my little girl down, and he was hollering. I don't know if my, the lady came up there and jumped all over him, and he called her a b---h or what, but my God, that doesn't give him right to come out here with a gun.

         The adult victim called again at 8:12 p.m. to see how much longer before the officers arrived.

         The Defendant's wife called 911 at 8:15 p.m. She relayed her version of events and informed the 911 operator that her husband had returned home. At 8:20 p.m., an officer phoned the Defendant's residence and spoke with the Defendant, telling "him to stay put[.]" While this officer was speaking with the Defendant, the Defendant stated, "I hate that it happened. He just started coming towards me, and I just shot in the ground, I didn't know what to do. I didn't want to shoot him. . . . I just didn't like someone walking on my private property."

         The adult victim testified that, at the time of this confrontation, he had lived with his parents for thirty-one years in their house on Buggy Road, just off Boatmans Ridge Road. He was five feet, eleven inches tall and weighed around 195 pounds. According to the adult victim, he had walked around Boatmans Mountain over the years, and he had never "had any issues" walking on other people's property. He stated that he took regular afternoon walks with his ten-year-old sister, the minor victim, because "[i]t was her favorite thing to do[.]"

         The adult victim explained that, while walking through this area, he had regularly cut through an open gate on the Aileys' property using their driveway to reach another residence. According to the adult victim, this gate was an approximate fifteen-minute walk from his home. The adult victim stated that he had worked "plenty of times" for the Coffmans who lived in the residence past the Aileys' home. He claimed that he was not aware of any other way to get to the Coffmans' residence. When asked if he was aware that the driveway was private property, the adult victim replied, "I thought it was a right-of-way road out there. And I have walked out there and rode bicycles out there for thirty plus years." The adult victim indicated that he never saw a "no trespassing" sign posted at the gate. The adult victim further maintained that he had seen garbage trucks drive down the road, so he assumed that the driveway was an access road open to the public. The adult victim explained that his family had to move their garbage cans to the end of their driveway because the collection trucks would not drive down the driveway.

         On August 21, 2014, he and his sister went for a walk. Because the temperature outside was around ninety degrees, the adult victim carried "a kid's backpack" on his shoulders that was full of bottles of water, granola bars, and some Yoo-hoos. He described the backpack as "a two-shoulder backpack" that was approximately ten to twelve inches in length and similar to a book bag in which someone would put books and carry to school. He asserted that it was not a "duffel bag[.]"

         According to the adult victim, he and his sister had passed the Aileys' gate and were walking along the roadway when some dogs, which appeared to be Labrador Retrievers, came "running" at them from the direction of the Aileys' house. The adult victim stated that the minor victim was "very scared and started crying" because "she thought the dogs were going to eat her up." The adult victim tried to reassure his sister that the dogs would not harm her, so he went towards them to try to pet them. The adult victim knelt down "where the pavement stopped" and tried to call the dogs over to them. The adult victim relayed that Mrs. Ailey emerged at that time. The adult victim asserted that he had the backpack on his shoulders when they encountered Mrs. Ailey.

         According to the adult victim, as Mrs. Ailey started to walk towards them, she was "hysterical" and yelled, "[Y]ou are on private property, leave, get out of here, get off my property, you are not supposed to be here." The adult victim provided Mrs. Ailey with his father's name and told her that he had lived nearby for thirty years and that he and his sister were "just walking." The adult victim maintained that he "tried to talk" to Mrs. Ailey, "but she wasn't having it." She insisted that they leave immediately, so he and his sister "turned around" and started back the way they came. The adult victim testified that, while he and his sister continued to retreat, Mrs. Ailey followed them, repeatedly telling them that they were on private property and needed to leave. The adult victim retorted to Mrs. Ailey that "she didn't have to be mean about it and be a b---h about it." According to the adult victim, it took them "maybe thirty seconds" before they started to leave the Aileys' property, and they began walking back towards the gate as soon as Mrs. Ailey told them to leave.

         The adult victim testified that, when he and his sister got "out on top of Boatmans Ridge there right past the gates," they heard a vehicle approaching rapidly. This frightened the minor victim, and because she became "hysterical[, ]" she urged her brother to hide with her in some nearby bushes. He explained to her that there was no reason to hide. However, she was crying, so he relented and hid behind a tree with her. From his vantage point, the adult victim saw the Defendant speed by in a white pickup truck. According to the adult victim, once the Defendant was out of sight, the victims resumed walking.

         When the victims got close to the residence of Timmy and Misty Loven, which was on the right-hand side of Boatmans Ridge, the victims intended to veer from the road and cut through a field on the left-hand side to go home. However, the adult victim then noticed the Defendant's truck stopped in the road approximately 500 to 600 yards away. According to the adult victim, they were "just right off the road" maybe ten to twenty feet when the Defendant sped towards them. He recognized the Defendant and told his sister that the Defendant "probably want[ed] to talk to [them]." When asked what he thought the Defendant wanted to talk about, the adult victim responded that he believed the Defendant would say not to walk on his property or talk to the Defendant's wife.

         The adult victim stated that the Defendant stopped abruptly as he neared them. The adult victim maintained that he put down the backpack he was carrying and placed his shirt, which he had been carrying over his shoulder, on top of it. He then pulled his sister close to him. When the Defendant exited the truck, he was brandishing a firearm and was "[v]ery angry." According to the adult victim, the Defendant announced, "I'm going to kill you[, ]" and fired his weapon towards the victims, "blowing dirt all over" them. The Defendant said that he was going to kill the adult victim for speaking with the Defendant's wife. The adult victim raised his hands in the air and pleaded, "Hey look, I've got a kid here[, ]" to which the Defendant replied, "I don't give a damn. You talked to my wife." The adult victim told the Defendant, "Look, I don't want no [sic] trouble[, ]" but the Defendant fired the gun twice more, saying each time, "I'm going to kill you." The adult victim said that he sent the minor victim home after the third shot, instructing her to "run home and don't look back." The minor victim complied. The adult victim explained that he "thought [he] was going to die that day"; that he "was in fear of [his] life"; and that, following the third shot, "[he] threw [his] hands in front of [his] face because [he] knew it was it[.]" After the Defendant fired at him a fourth time, the Defendant got inside his truck, according to the adult victim. When the adult victim asked the Defendant to identify himself, the Defendant provided his name and said, "[Y]ou know who I am." After the Defendant drove away, the adult victim phoned 911.

         The adult victim testified that he saw Mr. Loven out there that day. According to the adult victim, Mr. Loven was standing in his yard on the other side of his pickup truck and was watching the events unfold. The adult victim described that Mr. Loven's house was "right across from where [the Defendant] was parked."

         The adult victim testified that the Defendant only got out of his truck once, having his weapon in hand at that time, and that the Defendant never returned to the truck before getting inside and leaving. The adult victim also maintained that he did not walk towards the Defendant, other than possibly taking one step, because he "froze" when he saw the gun. According to the adult victim, the Defendant never asked to see his hands. Moreover, the adult victim asserted that he was not in possession of a weapon during this encounter with the Defendant and that he had nothing in his hands. The adult victim also averred that he did not throw rocks at Mrs. Ailey.

         When asked how he had been affected by this incident, the adult victim responded, "It's affected me pretty bad. I have missed work over it. I actually lost my job, the job I had for three years. I had to take antidepressants, anxiety medication. It has affected me pretty bad, and my family, especially [the minor victim]." The victims, along with their parents, had filed a civil lawsuit against the Defendant seeking $500, 000.

         On cross-examination, the adult victim was asked,

Q. But you are a convicted felon, are you not?
A. No, I'm not.
Q. You don't have-
A. I have got a clean record.
Q. I apologize.
A. Thank you.

         The adult victim claimed that his medical records would confirm the shooting's impact on him, but he had not provided those to the State. However, he clarified that the State had never requested those. The adult victim's preliminary hearing testimony was read into the record and evinced some minor discrepancies, such as when the adult victim told the minor victim to run home, their distance off the road was thirty feet when the Defendant sped towards them, and the Defendant fired at him "bam, bam, bam."

         The minor victim also testified at the Defendant's trial and relayed a similar version of the events as her brother. She testified that she "was stressing out" that day, so she wanted her brother to take her for a walk to calm her down. According to the minor victim, whenever she and her brother went for a long walk, they "would always go through" the Aileys' gate. She also did not see any "no trespassing" sign posted and believed it was a public road.

         After passing through the gate, she and her brother encountered the Aileys' dogs, which scared her because they were "really muscular" and barking. The minor victim said that her family had a Labrador Retriever that had recently passed away and that she wanted to pet the dogs "to get over her fear of them[.]" She and her brother had gone "over to the rocks" to try and pet the dogs when Mrs. Ailey came outside. According to the minor victim, Mrs. Ailey started yelling at them "saying that they had an electric fence" and that she and her brother needed to leave. Mrs. Ailey was swearing, so they turned around and started back towards the gate. Her brother said to Mrs. Ailey that "she didn't have to be a b---h about it[, ]" but that was all he said, according to the minor victim. She further averred that her brother did not throw anything at Mrs. Ailey that day and described her brother as "a very nice person."

         The minor victim said that the entire conversation between her brother and Mrs. Ailey was brief and that Mrs. Ailey was on the phone when they started to leave. The minor victim maintained that, as they were walking back down the driveway, she started "freaking out," believing that Mrs. Ailey was calling the police. The minor victim explained that she "had anxiety at that point" because she "had a lot happen in [her] life up to that point[.]" She and her brother went "off the roadway" and sat down because she was having a panic attack, which, she relayed, was only her second ever attack. A white truck "flew past," according to the victim. The minor victim said that, about two minutes after the truck had passed them, she and her brother got up and proceeded to start walking back home. The minor victim testified that, while she and her brother were subsequently speaking with their mother by telephone, their mother "was talking about how the white truck sped down the road and backed up in [their] driveway and stuff[, ]" so the minor victim "didn't know what to think at that point."

         When they reached their aunt and uncle's field, she and her brother decided to cut through the field to get to their house. The minor victim described that, at that point, the Defendant "sped up and he stopped his truck right in front of [them.]" She maintained that the Defendant "jump[ed] out" of the truck with a gun and pointed it at their heads; that the Defendant "start[ed] saying that he [was] going to kill [them] and he started cussing [her brother.]" She expressed that "[d]irt was splattered all over [them]" from the shots that the Defendant fired and that the Defendant "said I'm going to kill you about four times." According to the minor victim, "by the third shot," her brother said, "I have a little girl here and [the Defendant was] like I don't give a damn." She then reluctantly ran home in accordance with her brother's instruction. She believed "that was the last time [she] was going to see [her] brother alive."

         The minor victim testified that her brother's hands were empty during the altercation and that her brother "was not angry at all[, ]" but instead "was in pure shock." She said that the Defendant appeared "[a]ngry" and "fuming" and that he was not acting like "a normal person would[.]" The minor victim averred that she "thought [she] was about to die." When asked how she had been affected by this incident, the minor victim responded,

I'm twelve years old, I'm on antidepressants, I have to take a twenty milligram of an antidepressant a day and if I don't, I start having panic attacks. Anytime I hear a loud noise, I lose it, I completely lose control, I fall down crying. Like one time I was at a bible school and all of a sudden a loud pow happened, I couldn't stand up, I couldn't do anything. I have panic attacks like not monthly now or weekly.

         She further relayed that she still lived on Boatmans Ridge Road and that, "every time [she went] to school or c[a]me home from school," she "still ha[d] to see the spot."

         The victims' mother ("Donna")[1] testified that they were grilling hamburgers on the evening of August 21, 2014, and that the burgers were almost ready, so she called her son to see how far he and his sister were from home. When Donna spoke with her son, she could hear the minor victim "crying in the background." Donna asked what was wrong, and her son told her that they were "hiding in the woods." Donna replied, "Whatever is going on, . . . get home." Shortly thereafter, Donna, who was out on the deck, saw "a white truck go out [Buggy R]oad really fast." A few minutes later, Donna saw "the white truck c[o]me flying down [their] driveway almost to the house," and then, it "backed up real fast in reverse" and headed "out [of] the driveway." Donna watched as the truck stopped at another neighbor's house. According to Donna, that neighbor, Joe Whiteside, was working on his lawn mower. Donna estimated that the Defendant only stopped at Mr. Whiteside's for "three to five seconds."

         Donna stated that, when she spotted her children "up on the road," she saw the white truck, almost simultaneously, speed up "really fast" in their direction. Knowing that "something [was] not right," Donna got the attention of her husband and they "took off running." As they were "over halfway up the hill," the Defendant stopped his truck near the children, "jumped out" with "something shiny" in his hand, and ran "around the back of [the truck] yelling 'I'm going to kill you.'" Donna said that she heard the Defendant say this three times.

         Donna testified that she started to wave her arms, jump up and down, and repeatedly scream at the Defendant, "[P]lease don't kill my kids." According to Donna, her daughter and son "were standing side by side" when she "started hearing the gunshots going off." Donna described that she heard one gunshot and then another and that, after those shots, she heard her son urging his sister to run home and not "to look back." Donna stated that her daughter "turned around . . . and was crying and screaming" as she came running down the hill. Donna said that her daughter ran past her into the house and that her daughter appeared to be "totally in shock[.]" When Donna followed her daughter inside, she watched her daughter run in circles before shouting out, "I know he's killed him, . . . he has shot my brother, he has killed my brother, he's dead, I know he's dead." When Donna tried to go after her daughter who had run out the front door, Donna "just fell down in the floor" crying because she believed her son was dead.

         According to Donna, the Defendant never went back to the truck after exiting it; her son did not have anything in his hands during the incident; and her son did not "approach [the Defendant] in an aggressive way[.]" Donna also saw her son's bag "on the ground" a short distance away from where her son was standing, but she said that her son never attempted to go back towards the bag.

         The victims' father ("Tom") also testified, relaying a similar version of the events as his wife. Tom said the he was on the deck cooking when his wife came and told him that their children were hiding in the bushes and that the Defendant "was chasing them in his truck." Just then, Tom saw the Defendant "coming down" their "gravel right-of-way road almost to [their] house." Tom began "throwing [his] hands up" in the air and walking towards the road to speak with the Defendant. According to Tom, the Defendant turned his truck around and "burned out."

         Tom went into the field and saw his children "at the top of the road" and hollered at them that they needed to "hurry up" and "get down" to the house because "something [was] wrong with" the Defendant. Donna moved in behind Tom at that time. Tom saw the Defendant stop at Mr. Whiteside's house before the Defendant "floor[ed] it" towards the children. According to Tom, the Defendant jumped out of his truck with a gun in his hand and screamed, "I'm going to kill you[.]" Tom described that the Defendant pointed the gun at the victims who were side by side and shot "one time, two time[s], three time[s], repeatedly hollering I'm going to kill you"; that his son told the minor victim to run; that the Defendant shot again and "dirt flew on her and everything"; and that the minor victim ran down the hill "just hysterical." Tom also heard his son "holler[] out can't you see there's a kid here[, ]" and the Defendant reply, "I don't give a damn." The Defendant then got in his truck and left the scene. Tom did not initially know if his son had been hit by a bullet. When the altercation was over, Tom called 911.

         Tom explained that his son "had some kind of little kiddy backpack" in his possession during the encounter, which his son dropped on the ground when the Defendant "flew to come down there[.]" Tom claimed that his son never went back to the backpack. According to Tom, his son was just standing there and never approached the Defendant aggressively, but the Defendant "was totally out of control and angry[.]" Tom thought that "[his] kids were gone." When asked if the minor victim was "having issues" from these events, Tom responded,

Sh[e] has big issues. She can't play on her swing set, she has had trouble sleeping at night. The Aileys [have gone] home before, she has run, fell down on the back deck thinking they were going to come down the driveway. I have to drive her fifty-five miles on the other side of Knoxville for therapy, she is on medication. She is in real bad shape and she has anxiety.

         On cross-examination, Tom was asked about his 911 call. Tom said he informed the operator that the Defendant "ha[d] just shot at [his] kids" and that they "need[ed] to get out [t]here or something like that." Tom was asked if he recalled telling the 911 operator that the gunshots "might [have] been fireworks[, ]" and Tom replied in the negative. Questioning about the 911 call continued:

Q. So if the jury were to hear a 911 call with you on it in your voice saying you don't know what happened, there may be fireworks somebody being fired [sic], that you are not sure what is going on and you didn't see where [the Defendant] went, that would be a lie, wouldn't it? Or you would be lying now. One of them has to be a lie, correct?
A. Repeat your question.
Q. If the jury heard a 911 call-what did you tell the 911 operator?
A. To the best of my memory, [the Defendant] just shot at my kids, . . . you all need to get out here.
Q. Are you aware of anybody telling them-do you remember anybody telling them that it might have been fireworks?
A. Not to my knowledge.
. . . .
Q. Would it be accurate on your first impression talking to law enforcement saying I don't know what happened, I wasn't around, when you talked to them?
A. I don't know what happened, I wasn't around?
Q. Yes.
A. No, I didn't say that.
Q. That wouldn't [be] true?
A. Not unless they were talking about when they were out on his right-of-way road.
Q. No, in talking about the shots being fired and why and what happened when they were fired. You don't recall saying I don't know what happened, I wasn't around?
A. No, I don't.

         On redirect examination, Tom clarified that he was "not the caller on 911 from 1736 Boatmans Ridge who talked about firecrackers[, ]" noting that was not his address.

         The sound of gunshots drew the attention of Timmy and Misty Loven, who lived nearby. Mrs. Loven testified that, on the day in question, she was sitting in her living room watching television while her husband and stepson were working "out back" on a car. Mrs. Loven went "to see what they were doing" and saw "a white truck the next driveway up pull in but it backed out[.]" She described that it "went up the hill because it's like a private drive, and then that truck went down that private driveway and it made an immediate right going out toward, back out toward . . . [the] road like going out." Mrs. Loven went back inside. "[A] few minutes later," Mrs. Loven looked outside and observed that same white truck at the victims' home, and she maintained that it was "just sit[ting] there" before backing up "like normal."

         A few more minutes passed before Mrs. Loven heard a gunshot and then another, which she believed were "awful close" to her home. Mrs. Loven looked out her window and saw the white truck and the victims "in the field" nearby. The next thing she observed was the minor victim running towards her parents, and Mrs. Loven began "getting really concerned." She then heard a third shot and went outside. According to Mrs. Loven, the Defendant and the adult victim were arguing, but she could not really hear what they were saying. The Defendant then fired a fourth shot towards the adult victim, who Mrs. Loven noticed was not wearing a shirt and was "patting" his skin as if he believed he had been shot. Mrs. Loven then watched the Defendant get back in his truck and "spin[] off." Mrs. Loven never saw the adult victim with anything in his hands, and it was only after the altercation was over that she saw the backpack lying on the ground beside a tree.

         Mrs. Loven testified that she ran to the adult victim, who was on the phone with 911. While the adult victim was on the phone, he asked her if she would "be a witness," and she agreed.

         Mr. Loven also testified at trial. Mr. Loven conveyed that he was working on his daughter's car "in the driveway behind [his] house" when he observed a white truck pull up the "driveway right behind [his.]" He heard someone in the truck say, "[O]h, hell that's not them," before the truck backed out of the driveway and proceeded to leave. Mr. Loven continued working on his daughter's car and later heard a gunshot. When he heard a second shot that "seemed closer[, ]" he looked up and walked forward "out of curiosity." He saw the same white truck that he had seen earlier "s[i]tting in the road and there [were] two men arguing." Mr. Loven described his vantage point as "diagonal towards where [the] truck was s[i]tting and where they were" arguing. He affirmed that he had "a clear visual."

         Mr. Loven said that he heard a scream and saw the minor victim "running down the hill" saying "he's going to kill my brother, he's going to kill my brother." According to Mr. Loven, the men "continued to argue," and the Defendant shot again. The Defendant "act[ed] like he [was] going to get in this truck," but "he [went] back" and shot a fourth time. When the Defendant was leaving, Mr. Loven heard the adult victim ask "who are you anyway," to which the Defendant responded with his name and said "you know who I am."

         According to Mr. Loven, the adult victim did not have anything in his hands during the altercation; the adult victim never approached the Defendant aggressively; and the adult victim seemed "scared." Mr. Loven testified that he did not hear the shots as going "bam, bam, bam."

         Detective Statler Collins with the Hamblen County Sheriff's Department responded to the 911 calls. After speaking with both victims, Detective Collins and two patrol officers drove to the Defendant's house where they were met by the Defendant and his wife in the driveway. The Defendant asked, "Can I give my side of the story?" After being Mirandized, the Defendant gave the following statement:

[The Defendant] stated that the victims . . . came on his property and got into a verbal altercation with Mrs. Ailey. [The Defendant] stated that [the adult victim] called his wife a b---h and they did leave the property. He said that he did get into his truck and go after them. He did drive up and down the road a couple times looking for them. He did see them and he stated that the boy put down a backpack and told the girl to go home. He then stated that he pulled up next to him and got out with his gun to his side. They got into a verbal argument and [the Defendant] said that the boy had his hand in the backpack and that is when he fired a round beside of him. He said that the boy continued to walk toward him and fired three more rounds in the ground beside him.

         Detective Collins returned to the victims' house and asked the adult victim about the backpack. According to Detective Collins, the adult victim indicated that he put the backpack down and that nothing was in his hands when the Defendant fired at him. Detective Collins then returned to the Defendant's house and arrested him.

         Both the Defendant and his wife, a Morristown school teacher of twenty-two years, testified at trial. Mrs. Ailey stated that, on August 21, 2014, she spotted a stranger "crouched down in [her] yard" with a little girl at his side. Her dogs "were going nuts," barking and jumping, because "someone strange was in her yard." Mrs. Ailey stated that the stranger was trying to "bait" the dogs by "making gestures to them" and calling them saying that he had "something" for them. Mrs. Ailey told the stranger that the dogs could not reach him because of an electric fence that limited how far they could roam. She also "asked him what he was doing on [her] property, did he not see the no trespassing signs." According to Mrs. Ailey, the stranger did not say much in response to her but kept calling her dogs. She testified that she asked the man to leave, but he did not go immediately. When she asked the stranger again to leave, he stood up and "took about six steps" to proceed back towards the gate, but he stopped. Mrs. Ailey requested that he leave once more, to which the stranger replied, "You f--king b---h," and gave "[her] the finger." Mrs. Ailey said that the little girl started "screaming and crying at him." The stranger and the girl then "meandered down the road," eventually disappearing off of her property. According to Mrs. Ailey, it took about eight to ten minutes for them to leave.

         Mrs. Ailey asserted that the stranger had a "long bag on his shoulder" and that he kept his hand in it throughout the time he was in her yard. According to Mrs. Ailey, the bag was not a backpack, and it "looked like a long weapon's bag." She maintained that she felt "very threatened" for her safety and her dogs because she believed that the stranger had a weapon in his bag and because she lived in a remote area with posted no trespassing signs. Mrs. Ailey described the man as "very, very scary," "very off balance," and "very erratic." When asked to identify how the man's appearance was scary, Mrs. Ailey described him as "very sloppy[, ]" but she clarified that it was "the way he was acting" that "really was the scary part." Mrs. Ailey also asserted that the man's speech was "mumbled" and incoherent, possibly evidencing "a drug problem or something."

         After the stranger left, Mrs. Ailey went inside and relayed the events to her husband. According to Mrs. Ailey, the Defendant could see that she "was terrified" by the recent incident. Mrs. Ailey confirmed that the Defendant then got in his truck and left their house. When asked if her husband was angry when he left, Mrs. Ailey, replied, "Well, he wanted to see who was in our yard, yes . . . ." Mrs. Ailey did not immediately call 911.

         Mrs. Ailey confirmed that she phoned 911 when her husband returned home following the confrontation, and she knew that "warning shots" had been fired at that time. She explained that she did not call 911 right after the Defendant's return but "waited for a few minutes" because she "was so distraught and so upset" that she "wanted to calm down a little bit" before placing the call.

         Mrs. Ailey testified that she had lived at her home for twenty-four years. According to Mrs. Ailey, they had been leaving the gate to their property open for approximately one year prior to this incident at the request of their next-door neighbors. She asserted that she had never seen this man walking down her driveway before and, in fact, had "never seen a stranger in [her] yard" period. When asked whether she was familiar with the victims or their parents, Mrs. Ailey replied, "No, I had never heard of those people or seen any of those people." She further maintained that the adult victim had never requested permission to be on her property.

         The sixty-year-old Defendant testified that he worked at Burke-Ailey Construction and that he had lived at his current residence for twenty-four years. He maintained that a no trespassing sign was posted at his gate on August 21, 2014. The Defendant averred that, although the gate was open that day, it "was normally closed at that time." According to the Defendant, it was not common for people to walk down his driveway and that, in his twenty-four years of living on the property, he had never seen the adult victim doing so.

         The Defendant stated that, after his wife came inside and told him about the encounter, he left in his truck to find the person who his wife claimed had threatened her and their dogs. The Defendant indicated that he believed the man was possibly armed because the man was not scared of calling their two large dogs. Also, the Defendant's wife instructed the Defendant to "be careful" as he was leaving because the man could be armed. The Defendant asserted that he was a "card carrying permit" holder and that he kept a .380 in his truck's door. According to the Defendant, his intentions in leaving were to "go try to find out who had come on [his] property and threatened [his] wife and [his] dogs, try to talk to them." He claimed he "wasn't looking for a confrontation" that he "just wanted to find out who it was and ask them not to come back."

         The Defendant said that he left his house and drove past his gate onto Boatmans Ridge Road, driving until he reached Buggy Road, where he "back[ed] down and turned around." While proceeding back towards his home, the Defendant pulled into the driveway behind the Lovens' home, but he left when he did not see anyone there. When he pulled out of that driveway, rather than continue home, the Defendant again drove towards Buggy Road and "back down it again." Once back on Boatmans Ridge Road driving in the direction of his home, the Defendant saw that Joe Whiteside's mower "had stopped and it was on a slope, pretty steep bank." The Defendant asked Mr. Whiteside if he "need[ed] some help moving [his] lawn mower" because it was getting dark, but Mr. Whiteside said no that he would wait until the next day to move it. When Mr. Whiteside inquired what the Defendant was doing, the Defendant "explained to him that [he] was looking for someone that had threatened [his wife] and the dogs." The Defendant indicated that, at no time, was he driving erratically, making loud noises with his vehicle, or "spin[ning]" his tires. The Defendant also averred that he did not "go down to" the victims' home and that he did not "go all the way up" the driveway behind the Lovens' house.

         According to the Defendant, while he "was sitting there talking to" Mr. Whiteside, he saw the victims crossing the road ahead and said "that may be them" and that he was "going to go talk to them." The Defendant claimed that he "eased off the hill and drove down and stopped[, ]" never speeding or spinning his tires as he approached the victims. The Defendant maintained that the adult victim "laid his shoulder bag down on the ground" and walked "the little girl down to the corner of the [Coxes'] house out of the way." The Defendant claimed that, after he stopped his truck, the adult victim started walking back towards him and "pick[ed] the bag up, not all the way off the ground but just reach[ed] down in the bag and then la[id] it back down." The Defendant claimed that he did not initially have his gun when he got out of his truck but retrieved it when the adult victim reached into the bag, believing that the adult victim may have gotten a weapon out of the bag. The Defendant alleged that he "chamber[ed] a round" but held the gun at his side as he walked around his truck to address the adult victim. The Defendant "asked him who are you, what's your name, why did you . . . come on my property and threaten my family." When the adult victim refused to answer the Defendant's questions or show his hands, the Defendant fired two, successive warning shots "in the dirt" towards a nearby field. The Defendant explained,

So I fired two warning shots way to the left because . . . I didn't want a ricochet. Where we were standing was elevated, had this slope and it was, you know, a perfect ricochet situation. So I didn't want to fire at anybody or hit a building or whatever so I fired into the field and the wood line, I fired two shots.

         The Defendant testified that, despite the warning shots, the adult victim did not "bat an eye" and continued approaching him. The Defendant requested that the adult victim stop, but when he did not comply and still would not show his hands, the Defendant fired two more shots. The Defendant said that he had one more round in the chamber, which he did not want to fire because he needed it to protect himself. According to the Defendant, after he fired the last two warning shots, the adult victim pulled out a phone, held it up, grinned, and said, "I've got you now." The Defendant warned the adult victim not to return to his property and left.

         The Defendant averred that the adult victim was about eight yards away when the Defendant fired the first two warning shots; that the adult victim was "getting pretty close" when the Defendant fired the second two shots; that he never told the adult victim that he was going to kill him; that, if he intended on shooting the adult victim, he would not have "missed four shots"; and that he never pointed the gun at the adult victim's face. The Defendant asserted that, while he "was upset that someone came in and threatened [his] family," he was not "in a rage" as they claimed. The Defendant speculated, "[Y]ou know, if I was in a rage, why would I stop and ask somebody if they needed help with their lawn mower. . . . I was just trying to find out who he was and what he was doing there." According to the Defendant, he had no "other option at that point" but to shoot, and he was only trying to protect himself.

         On cross-examination, the Defendant explained that he did not see the minor victim again after the adult victim "walked her down to the corner of the house[.]" The following dialogue then took place:

Q. So the people that say they saw her running are not telling the truth?
A. They are lying.
Q. And [the minor victim] is lying?
A. Yes, ma'am.

         The Defendant confirmed that, although the adult victim would not show him his right hand, he never saw the adult victim in possession of a weapon that evening. The Defendant averred that he did "have a right" to ask the adult victim to show him his hands due to the adult victim's actions that evening. Also, when confronted with the statement he gave to Detective Collins, the Defendant said that Detective Collins must not have understood him because he did not get out of his truck with his gun in hand. When asked why he did not call 911 before he went looking for the victims, the Defendant explained that it would have taken "a while for them to get up there" and that he "tr[ied] to protect his family."

         2. Senten ...


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