Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs April 16, 2019
from the Circuit Court for Stewart County No. 2016-CR-85
David D. Wolfe, Judge
defendant, Zackary James Earl Ponder, appeals his Stewart
County Circuit Court jury convictions of first degree
premeditated murder and aggravated assault, claiming that the
trial court erred by admitting into evidence three
photographs of the victim, by refusing to allow the defendant
pretrial access to the criminal history of a State witness,
by limiting his cross-examination of the investigating
officer, by permitting the prosecutor to express his personal
opinion during closing argument, and by failing to address
"the fine portion of the defendant's sentence."
He also challenges the sufficiency of the evidence for his
conviction of first degree murder. Although we conclude that
portions of the State's closing argument were improper,
we deem the error harmless. We detect clerical error in the
judgment for the defendant's conviction of aggravated
assault that necessitates the entry of a corrected judgment
for that count. Otherwise, the judgments of the trial court
R. App. P. 3; Judgment of the Circuit Court Affirmed;
T. Smith, Clarksville, Tennessee, for the appellant, Zackary
James Earl Ponder.
Herbert H. Slatery III, Attorney General and Reporter; David
H. Findley, Assistant Attorney General; W. Ray Crouch, Jr.,
District Attorney General; and Dani Bryson, Assistant
District Attorney General, for the appellee, State of
Curwood Witt, Jr., J., delivered the opinion of the court, in
which D. Kelly Thomas, Jr., and Camille R. McMullen, JJ.,
CURWOOD WITT, JR., JUDGE
Stewart County Grand Jury charged the defendant with first
degree premediated murder and aggravated assault related to
the March 2016 death of the victim, Seth Michael Allen
Lancaster, who was in the same Army unit as the defendant and
the victim, testified that in March 2016, the victim, who was
in the process of separating from his wife, lived with Mr.
Lancaster. Mr. Lancaster's former fiancée, Jillian
Valencia, and Kent Carpeno also lived in the home. On the
evening of March 5, 2016, they had a party at the residence,
and the defendant attended. The victim "was having a
tough night" because he could not reach his estranged
wife and, as a result, the victim was "aggressive with
everybody." The victim was also drinking heavily. At
some point, the victim and Mr. Carpeno began to argue, and,
when Mr. Lancaster tried to intervene, the victim struck Mr.
Lancaster, "and that's when all hell broke
loose." Mr. Lancaster described a melee involving
several people with "fists flying." He could not
recall how the brawl ended, saying, "I mean as quickly
as it started it stopped." He recalled that the
defendant, who had not been drinking and who did not
participate in the fracas, held Mr. Lancaster down because he
did not want Mr. Lancaster to fight the victim.
the fight ended, Mr. Lancaster and Ms. Valencia went into Mr.
Lancaster's bedroom to talk. Mr. Lancaster said that Ms.
Valencia had been struck during the altercation and that he
was upset because he had been unable to protect her. Sometime
later, the victim got up to go to the restroom, and the
defendant said "something about, hey, I'm going to
take him, you know, to his wife's." The defendant
and the victim then left together with the defendant's
"helping [the victim] out the door." Mr. Lancaster
said that, as far as he knew, the defendant was taking the
victim to visit the victim's estranged wife. The
defendant telephoned Mr. Lancaster on the following day
"saying that he really wanted to talk to [Mr. Lancaster]
about something," but Mr. Lancaster told him that he was
too upset about an argument he had had with Ms. Valencia on
the previous evening to meet with the defendant.
Valencia testified that on March 5, 2016, she arrived home
from work at approximately 11:30 p.m. to find "the guys
drinking like they always do, liquor and beer." Mr.
Lancaster was downstairs with the victim, who was
"completely distraught" because his estranged wife
had gone on a date with another man. She said that the victim
was "cursing, saying he was done. Just belligerent and
completely heartbroken." Ms. Valencia said that the
victim "was pretty drunk" but that she did not
drink alcohol, "[e]specially not with the guys."
She attempted to console the victim, and he and Mr. Lancaster
eventually went upstairs to do "the whole [m]ilitary
drinking thing," which she described as involving
"one fifth of Fireball . . ., a beer bong and a whole
bunch of beer." She said that she "never had any
fun," so she went to bed.
Valencia testified that she awoke around 3:00 a.m. "to a
fight going on," saying, "There's people
screaming at each other, nothing out of the ordinary."
When she got up to investigate, she saw the victim
"standing over [Mr.] Carpeno who is sitting on the couch
and he is just screaming at him. Just yelling at the top of
his lungs, belligerent." When Mr. Lancaster asked the
victim to leave, the victim "immediately threw a punch
at" Mr. Lancaster. Before Mr. Lancaster could retaliate,
the defendant "grabbed him and put him in a hold because
that's what friends do." When Ms. Valencia attempted
to intervene, the victim struck her with his elbow as he
threw a punch at someone else. Ms. Valencia said that the
fight did not last long and that, after it was over, she
pulled Mr. Lancaster into the bathroom to calm down.
saw that Ms. Valencia's lip was bleeding, Mr. Lancaster
left the bathroom. Shortly thereafter, the victim came into
the bathroom, and Ms. Valencia asked him to back up because
she "was kind of scared." At that point, the victim
said that he just needed to use the restroom. Ms. Valencia
recalled that the defendant "actually came and saw
that" she was upset and "up against the wall asking
[the victim] to get away." She said that the defendant
told the victim to step away from her.
Valencia left the bathroom and went downstairs to calm Mr.
Lancaster. While she was downstairs, she heard the victim
"upstairs just punching walls and punching
windows." She said that "[t]here were holes all
over the house because he was upset, he was
belligerent." A short time later, the defendant came
downstairs and said "like, all right, guys, I'm
going to get him out of here. I'm going to try to diffuse
the situation, get him out of here, you guys are completely
pissed off at him, I'll take care of it and I'll take
him with me." Ms. Valencia did not see the pair leave
because she had begun to argue with Mr. Lancaster, who had,
by that time, "punched [the] TV."
Valencia testified that the next time she saw the victim, he
was in the hospital "on a heart monitor . . . keeping
him alive." She said that the victim "was beat up
pretty good and you could see the strangle marks from the
shoestring around his neck." She stated that the marks
around the victim's neck did not come from injuries he
received during the fight, saying that she had seen him
immediately after the fight and that "he had like maybe
a bloody nose and a couple of scrapes." She said that
the victim's face was "black and purple and
swollen" and that he did not sustain those injuries
during the fight.
Smith testified that on the morning of March 6, 2016, he was
driving to the store from his home on Glen Holliday Road in
Stewart County, which he described as "a rock road"
with "cornfields on either side," when he
"found the gentleman in the middle of the road." He
stopped his truck, got out, and looked around "in the
trees and to the hill to the side . . . just to make sure
nobody else was around. It was kind of strange." Mr.
Smith called out to the man, but the man did not respond.
When he got close, Mr. Smith saw that the man was "kind
of trying to breathe," so Mr. Smith knelt down and
"tried to turn his head a little bit, because it was
face down in the dirt." Mr. Smith telephoned 9-1-1 and
"decided to roll him onto his side to maybe try to help
him." While he was on the telephone with 9-1-1, Mr.
Smith saw a "rope or shoelace" around the
victim's neck. Mr. Smith cut the shoelace with a knife he
had in his pocket, and the "color came back into [the
man's] face a little bit, but he was still belaboring
trying to breathe."
enforcement officers and emergency medical personnel
responded to Mr. Smith's call, and Mr. Smith remained on
the scene until he was released by the investigating officer.
Officers photographed and collected the shoelace that Mr.
Smith had cut from the victim's neck.
victim was transported by ambulance to a predetermined
landing area, where he was taken aboard an air ambulance to
be transported to Vanderbilt University Medical Center.
Vanderbilt Life Flight Nurse Joe Brentise testified that the
victim, who had no identification, "wasn't keeping
his airway open on his own" and, as a result, "was
in a life[-]threatening condition." When Mr. Brentise
performed "a sternal rub," the victim responded
with "decorticate posturing," which Mr. Brentise
described as an involuntary response indicative of brain
injury. The victim's pupils were unequal, which also
indicated a brain injury. The victim had "bruising to
the left of his forehead," "marks around his
neck," and "abrasions to his left foot." Mr.
Brentise placed an intubation tube and administered
medications that sedated the victim before the flight took
off for Vanderbilt Medical Center.
Raeanna Adams first saw the victim on March 7, 2016, after
the victim had been admitted into the trauma unit at
Vanderbilt University Medical Center. During a neurological
examination, the victim had "abnormal flexion of his
left lower extremity to pain" but "[n]o other
spontaneous movement." Although the victim
"occasionally would just open his eyelids to pain,"
"he had no blink to threat," and "his eyes
were not tracking." Doctor Adams said that these signs
were "consistent with brain injury" "[t]hat
results from a time period where there's not enough
oxygen for the brain." Testing established the presence
of "[v]ery thick mucus . . . which did grow out some
bacteria, which was consistent with . . . aspiration meaning
things from his stomach and from his mouth had gone down into
his lungs into his windpipe." The victim's blood
tested positive for the presence of benzodiazepines, which
had been given to him on Life Flight, as well as alcohol and
cocaine metabolites. The victim had "dysconjugate
gaze," meaning "that the eyes are not looking
straight forward in the same direction. One is looking a
different direction than the other."
Adams said that despite the severity of his injuries, the
victim was not considered brain dead "[b]ecause he still
did have some brainstem reflexes, some breathing. He had some
eye opening, so some of those last few reflexes were still
left." Doctor Adams nevertheless opined that the victim
could not have recovered from his injuries to live a normal
life. She noted that another doctor found "no response
to pain stimuli" on March 10, 2016, indicating "a
progression of worsening examination and worsening
function." She said that the victim died "quite
quickly" after life support was removed on that date.
County Sheriff's Department Investigator David Evans
responded to the scene on Glen Holliday Road in Indian Mound,
which he described as a very rural area, but the victim had
already been transported from the scene by the time
Investigator Evans arrived. Investigator Evans traveled to
the hospital, where he photographed the victim. He recalled
that the victim was on life support and unconscious.
Investigator Evans observed an abrasion on the victim's
forehead and a "very bright red, very pushed in"
"mark from where the shoelace had been around his
neck." Investigator Evans also photographed the
victim's tattoos, which photographs he had the Stewart
County dispatcher "send out to local agencies asking for
help identifying" the victim. A sergeant at the
Montgomery County Jail identified the victim from the
photographs and also provided Investigator Evans with contact
information for the victim's ex-wife and his mother.
Evans spoke with the victim's mother, who told him that
she had spoken with the victim on the previous day. The
victim told her that he had worked out with Mr. Lancaster at
Planet Fitness in Clarksville. Using the victim's
cellular telephone records, Investigator Evans was able to
determine the location of the Planet Fitness, and he was able
to observe video surveillance of the victim working out with
Mr. Lancaster. Planet Fitness personnel provided Investigator
Evans with a telephone number for Mr. Lancaster.
Evans said that the information he gleaned during interviews
with Mr. Lancaster and Ms. Valencia led him to interview the
defendant. The video recording of that interview was played
for the jury.
outset of the interview, the defendant confirmed Mr.
Lancaster's statement "that there had been some
drinking going on and a fight had occurred. [The victim] was
drinking heavily and picking fights with folks, and he
decided to get him out of there." The defendant told
Investigator Evans that he took the victim "for a ride .
. . and then dropped him back off at the . . . house."
When Investigator Evans told the defendant that his version
of the events did not make any sense given the victim's
condition, the defendant said, "'I wanted to teach
him a lesson.'" The defendant told Investigator
Evans, "'[Y]ou don't treat family that way,'
the way [the victim] was treating the other individuals at
the residence." Investigator Evans said that he thought
the defendant's statement about family "was in
reference to [the victim's] being recently out of the
Army and going through a divorce and his friends kind of
taking care of him."
defendant admitted to Investigator Evans "that he drove
out to Glen Holliday Road, and once there, put the shoestring
around [the victim's] neck, got out of the vehicle to
relieve himself, got back into the vehicle, [and] noticed
that [the victim] had turned blue." The defendant
claimed that "[h]e panicked, pushed [the victim] out of
the vehicle, and drove away." Investigator Evans said
that he did not think that the defendant's version of
events made sense given that the defendant was a soldier with
"at least a basic first aid training." The
defendant told Investigator Evans that the victim, who
weighed approximately 240 or 250 pounds, "had passed out
in the front passenger seat" as the defendant drove from
Clarksville into Stewart County, which drive took
approximately 37 minutes when Investigator Evans drove it.
the interview, Investigator Evans noticed that the defendant
was wearing new shoes with laces that "matched the
shoestring that was found around the victim's neck."
The defendant told him that he always wore black and green
New Balance shoes and that "he had gotten rid of"
his old shoes.
Evans described the victim's murder as
"intimate," opining that "it's not
spontaneous." He said,
[T]he shoelace was tied twice, so he had to get behind the
victim with that shoelace, wrap it around his neck, not just
once, twice, and then put that knot in there, a knot in such
a way that you can't get it out. That's very
intimate. That tells me that you wanted this guy to die.
victim died on March 10, 2016, after his family made the
decision to withdraw life support. The defendant was then
charged with first degree murder, and Investigator Evans
brought him in for another interview. During that interview,
the defendant related a story similar to that he gave during
the first interview. The defendant again told Investigator
Evans that he had driven the victim to Glen Holliday Road,
stopped, got out of the vehicle, went around the vehicle, got
into the back passenger seat, got behind [the victim], took
the shoelace -- because it was there -- wrapped it around his
neck, not once, but twice, and then tied the knot. Indicated
he got out of the vehicle, relieved himself, came back, the
victim . . . was blue at that time. He said he panicked and
he pushed him out.
Investigator Evans asked the defendant why he did not simply
cut the string as Mr. Smith had done, the defendant ...