Court of Criminal Appeals of Tennessee, Nashville
June 19, 2019
from the Criminal Court for Davidson County No. 2016-A-457
Angelita Blackshear Dalton, Judge
convicted Mohamed A. Almahmmody, Defendant, of one count of
first degree premeditated murder and three counts of
aggravated assault. The trial court sentenced Defendant to a
total effective sentence of life plus six years. On appeal,
Defendant argues that the trial court erred in denying his
motion to suppress evidence obtained from his cell phone as a
result of an invalid search warrant and that the trial court
erred in declining to provide a special jury instruction on
self-defense in the killing of an innocent bystander. After a
thorough review of the facts and applicable case law, we
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
C. Scruggs, Nashville, Tennessee, for the appellant, Mohamed
Herbert H. Slatery III, Attorney General and Reporter; Clark
B. Thornton, Senior Assistant Attorney General; Glenn R.
Funk, District Attorney General; and Amy M. Hunter, Assistant
District Attorney General, for the appellee, State of
L. Holloway, Jr., J., delivered the opinion of the court, in
which John Everett Williams, P.J., and D. Kelly Thomas, Jr.,
L. HOLLOWAY, JR., JUDGE.
and Procedural Background
March 8, 2016, the Davidson County Grand Jury indicted
Defendant and Tristen Jade Bowen for one count of first
degree premeditated murder and three counts of aggravated
assault. The trial court severed the trials of Ms. Bowen and
to trial, Defendant filed a motion to suppress "any
evidence that was obtained by the State through the search of
. . . Defendant's cell phone; to wit: Samsung Galaxy Note
MNPD property barcode #PR25276438." The motion asserted
that the affidavit submitted in support of the search warrant
did not sufficiently establish the affiant's basis of
knowledge that Defendant was using the phone at issue during
the commission of the offenses. The affidavit, sworn on
August 18, 2015, stated that the MNPD sought to search for
"[i]mages, [s]ims card, [m]icro memory data cards, text
messages, call history, contacts, voice mails, emails, apps,
any social media accounts, and all electronic information or
data relating to cell phone and any evidence or items which
would be used to conceal the forgoing or prevent [its]
discovery." The affidavit listed the following statement
of facts in support of probable cause:
On 8/11/15, a homicide occurred at 2118 Vine Hill Rd. This
cell phone was recovered from the suspect [Defendant] when he
was arrested. It is believed that the suspect used this phone
at the time of the homicide. There are communications from
the suspect that contain information in regards to the
homicide in question. The forensic download of the cell phone
is needed to further the investigation.
Detective Chandler's basis of knowledge, the affidavit
stated that Detective Chandler was assigned to the Midtown
Hills Precinct Investigation Section as a Criminal
Investigator. The affidavit stated that Detective Chandler
had "participated in investigations involving violations
of [h]omicides, [r]obbery, [a]ggravated assault, [t]hefts,
weapon and narcotic related cases[, ]" had
"conducted surveillance, arrested suspects, executed
search warrants, seized evidence, and assisted in the
preparation of cases for trial where [Detective Chandler]
ha[d] testified as a witness." Additionally, Detective
Chandler had previously "questioned suspects, . . .
consulted with other officers and prosecuting attorneys, and,
as a result, ha[d] gained considerable experience."
hearing on Defendant's motion to suppress, no witnesses
testified, and after entertaining arguments from the parties,
the trial court took the motion under advisement. After a
recess, the trial court denied Defendant's motion to
suppress. The trial court found that, while "there
probably could have been at least one more sentence [in the
affidavit] to make certain facts more clear," based upon
the content of the probable cause statement, the search
warrant met the requirements of State v. Tuttle, 515
S.W.3d 282 (Tenn. 2017).
for Jury Instruction
trial, Defendant filed a written request for the following
special jury instruction: "A defendant who
unintentionally injures a third party bystander while using
justifiable force in self[-]defense may not be held
criminally liable for his injury to the bystander."
trial court denied the request and, instead, gave the
following instruction to the jury:
Included in the defendant's plea of not guilty is his
plea of self-defense.
If a defendant was not engaged in unlawful activity and was
in a place where he had a right to be, he would have no duty
to retreat before threatening or using force against the
alleged victim when and to the degree the defendant
reasonably believed the force was immediately necessary to
protect against the alleged victim's use or attempted use
of unlawful force.
In determining whether the defendant's use of force in
defending himself was reasonable, you may consider not only
his use of force but also all the facts and circumstances
surrounding and leading up to it. Factors to consider in
deciding whether there were reasonable grounds for the
defendant to fear death or serious bodily injury from the
alleged victim include but are not limited to any previous
threats of the alleged victim made known to the defendant;
the character of the alleged victim for violence, when known
to the defendant; the animosity of the alleged victim for the
defendant, as revealed to the defendant by previous acts and
words of the alleged victim; and the manner in which the
parties were armed and their relative strengths and sizes.
The use of force against the alleged victim would not have
been justified if the defendant provoked the alleged
victim's use or attempted use of unlawful force, unless
the defendant abandoned the encounter or clearly communicated
to the alleged victim the intent to do so, and the alleged
victim nevertheless used or attempted to use unlawful force
against the defendant.
If from all the facts and circumstances you find the
defendant acted in self-defense, or if you have a reasonable
doubt as to whether the defendant acted in self-defense, you
must find him not guilty.
Fite testified that, on August 11, 2015, she lived in the
Vine Hill Road community with her son, Kenny Hatcher, who was
eighteen at the time. She explained that the community had
one entrance and one exit. Ms. Fite stated that the Vine Hill
Community Center was a three- to five-minute walk from her
residence. Mr. Hatcher frequently played basketball at the
Vine Hill Community Center on Thursdays. On
cross-examination, Ms. Fite testified that Mr. Hatcher did
not have a reputation in the Vine Hill community for being
involved with crime or for carrying a weapon. She recalled
speaking with a detective approximately ten or eleven days
before August 11, 2015, about a robbery that occurred in the
Vine Hill community, but she did not remember informing the
detective that Mr. Hatcher carried a weapon. She denied that
Mr. Hatcher was suspected of being involved in the robbery.
Ms. Fite agreed that Mr. Hatcher went to high school with
Montez Love and that Mr. Hatcher was also friends with Kevin
Smith and Antywuan Goodner. On redirect examination, Ms. Fite
agreed that, after her son was shot and killed, she spoke
with Detective Anthony Chandler. She agreed that she told
Detective Chandler that, on the day before the shooting, Mr.
Hatcher told her that his life was in danger because someone
believed that he had committed a robbery. Mr. Hatcher
informed Ms. Fite that he did not commit the robbery at issue
and that he wanted to stay with his grandmother in La Vergne.
During recross-examination, Ms. Fite explained that she had
heard that Mr. Hatcher carried a weapon; when she asked him
if he had a weapon on the day prior to the shooting, Mr.
Hatcher informed her that he had previously carried a weapon,
but he did not have it anymore.
Goodner testified that he was a close friend with Mr.
Hatcher. On August 11, 2015, he played basketball at the Vine
Hill Community Center with Mr. Hatcher, Mr. Love, Mr. Smith,
Mr. Goodner's cousin, and some other friends from the
Vine Hill community. When the community center closed that
evening, Mr. Goodner, Mr. Smith, Mr. Hatcher, and Mr. Love
went to Mr. Hatcher's house and sat on the front porch.
Around 9:30 p.m., a black Infiniti pulled up to Mr.
Hatcher's house; Mr. Goodner was not familiar with the
vehicle. When the vehicle approached the house, Mr. Goodner
could only see the driver; however, he observed there was a
passenger in the vehicle after the front passenger window was
lowered. The black Infiniti stopped in front of Mr.
Hatcher's house, and the female driver said,
"What's up?" Mr. Goodner returned the greeting
and observed that the male passenger pointed a gun through
the open front passenger window and said something
unintelligible. Mr. Goodner "took off running"
towards the entrance of the community, and the male passenger
began shooting. Mr. Goodner was scared and believed that the
shooter would kill him. He heard the shooter fire over six
Mr. Goodner ran from the shooting, he heard Mr. Hatcher's
female neighbor scream. He returned to Mr. Hatcher's
house and observed Mr. Hatcher lying on the back porch of the
house. He did not see the black Infiniti leave the scene.
After Mr. Goodner returned to Mr. Hatcher's house, police
questioned him about the shooting. On August 13, 2015, two
detectives spoke with Mr. Goodner while he was at school to
see if he could identify the shooter. Mr. Goodner identified
Defendant as the shooter both in the photographic lineup and
at trial. Mr. Goodner asserted that none of the four friends
sitting on Mr. Hatcher's porch on the evening of August
11 had a gun. He also stated that none of them threatened the
driver of the Infiniti or Defendant. Mr. Goodner agreed that
someone committed a robbery in the Vine Hill community prior
to Mr. Hatcher's death and that Mr. Hatcher feared that
he was in danger. He also agreed that the four friends were
discussing Mr. Hatcher's fear immediately prior to the
cross-examination, Mr. Goodner stated that he did not discuss
the robbery with Mr. Hatcher. Mr. Goodner knew an individual
named "Kevonte" but did not discuss the robbery
with him. He explained that approximately ten minutes elapsed
between the shooting and his return to Mr. Hatcher's
house. When he returned to the house, he observed Mr. Love,
Mr. Smith, and other neighbors gathered around Mr.
Hatcher's body. He also heard sirens from approaching
emergency responders. Mr. Goodner testified that he had not
seen Defendant prior to the shooting.
Love testified that in August 2015, he was seventeen years
old, lived in the Vine Hill community, and was friends with
Mr. Hatcher. On August 11, 2015, Mr. Love began playing
basketball with Mr. Hatcher, Mr. Goodner, and other members
of the neighborhood around seven p.m. at the Vine Hill
Community Center. After Mr. Love and his friends finished
playing basketball, Mr. Love walked to his house with Mr.
Goodner. He saw Mr. Hatcher sitting on the front porch of Mr.
Hatcher's house with Mr. Smith. Mr. Love and Mr. Goodner
walked over to Mr. Hatcher's house and sat with Mr.
Hatcher and Mr. Smith on the front porch. The friends
discussed college and their future plans. Approximately
fifteen minutes later, a black Infiniti stopped in front of
Mr. Hatcher's house. Mr. Hatcher said, "[W]ho is
that?" Mr. Love heard a female voice say,
"[W]hat's up[, ] you guys[?]" He then saw a man
in the front passenger seat point a gun out the vehicle's
window. Mr. Love ran and heard shots. He looked back and
observed Mr. Hatcher "hop over the guard rails at the
house and he had crawled to the back porch." Mr. Love
continued running and heard a total of eight or nine shots.
Love later returned to Mr. Hatcher's house and spoke with
police about the shooting. He observed that, after the
shooting, the black Infiniti circled the Vine Hill community,
stopped for a few seconds, and then exited the community. Mr.
Love recognized the driver of the black Infiniti as Tristen
Bowen. Mr. Love attended school with Ms. Bowen, and he
recognized the black Infiniti as Ms. Bowen's vehicle. Mr.
Love did not recognize the passenger of Ms. Bowen's
vehicle who shot Mr. Hatcher. He asserted that none of the
four friends had a weapon on the evening of August 11, 2015.
Mr. Love was not aware of a robbery that occurred in the Vine
Hill community a week or two prior to Mr. Hatcher's
death. He also stated that he did not think anyone was
concerned for Mr. Hatcher's safety prior to the shooting.
On cross-examination, Mr. Love agreed that, during his
interview with police on August 12, 2015, he discussed the
robbery of Ms. Bowen and Muslah al-Nimar that occurred
approximately ten days prior to Mr. Hatcher's death.
Smith testified that, at the time of Mr. Hatcher's death,
he had known Mr. Hatcher for four or five years. On the
evening of August 11, 2015, Mr. Smith played basketball at
the Vine Hill Community Center with Mr. Hatcher, Mr. Love,
Mr. Goodner, and other members of the Vine Hill community.
After the four friends finished playing basketball, they went
to Mr. Hatcher's house and sat on the front porch or
stood in the front yard. While the four friends were at Mr.
Hatcher's house, Mr. Smith observed a vehicle, a black
Infiniti, approaching Mr. Hatcher's house from the
entrance of the community. Mr. Smith initially only saw the
driver of the black Infiniti, a female, who stopped in front
of Mr. Hatcher's house and said, "[W]hat's up,
what's up[?]" Mr. Smith said, "[W]ho are
you?" Mr. Smith then saw a man in the front passenger
seat, which was closest to Mr. Hatcher's house, lower the
window and point a gun at the four friends. The passenger
began shooting towards Mr. Hatcher's house, and Mr. Smith
ran from the scene. Mr. Smith heard the passenger shoot
between five and nine times. He heard tires screech, but he
did not see the vehicle leave the community. When Mr. Smith
returned to Mr. Hatcher's house, he initially went to the
front of the house and saw that the front door was open. Mr.
Smith walked around to the back of the house and observed Mr.
Hatcher lying on the back porch. On August 12, 2015, Mr.
Smith viewed a photographic lineup and identified Defendant
as the passenger of the black Infiniti who shot Mr. Hatcher.
Mr. Smith asserted that none of the four friends had a gun
with them on the evening of August 11, 2015. He also stated
that none of the four men verbally or physically threatened
Defendant or the female driver of the black Infiniti.
Smith was aware that someone committed a robbery in the Vine
Hill community a few weeks prior to Mr. Hatcher's death.
He testified that he and Mr. Hatcher observed the robbery
while they were sitting on Mr. Hatcher's front porch. Mr.
Smith stated that people ran away from the scene of the
robbery and ran past Mr. Hatcher's house towards a park.
After the robbery, a female approached Mr. Smith and Mr.
Hatcher and yelled at Mr. Hatcher, who was shocked. Mr. Smith
testified that the female who approached Mr. Hatcher after
the robbery was the same woman who drove the black Infiniti
while Defendant shot Mr. Hatcher. After Mr. Smith and Mr.
Hatcher observed the robbery, Mr. Hatcher informed Mr. Smith
that he received threatening calls and messages.
Taylor stated that in August 2015, he worked for the Metro
Nashville Police Department ("MNPD") at the Midtown
Hills Precinct as a patrol officer. On August 11, 2015,
Officer Taylor responded to Mr. Hatcher's residence on
Vine Hill Road, after dispatch informed Officer Taylor that
shots had been fired at the location. When Officer Taylor
arrived at the scene of the shooting, "there was a small
to medium size crowd of people outside the residence."
After exiting his patrol car, Officer Taylor observed bullet
casings on the street outside of Mr. Hatcher's residence.
Officer Taylor walked behind the residence and saw Mr.
Hatcher lying "face down half-way in, halfway outside of
the residence." Mr. Hatcher was not moving, and his
breathing was shallow. Officer Taylor began to provide
medical aid to Mr. Hatcher and observed a gunshot exit wound
on the right side of Mr. Hatcher's chest and an entry
wound on Mr. Hatcher's left side under his arm. After an
ambulance arrived and transported Mr. Hatcher to a hospital,
Officer Taylor secured the scene and collected evidence,
including shell casings and "a bullet hole in a nearby
air conditioner unit." Officer Taylor did not observe
any weapons at the crime scene.
Chris Davis testified that in August 2015, he worked at the
Midtown Hills Precinct of the MNPD. On August 11, 2015,
Officer Davis responded to Mr. Hatcher's residence
regarding "a juvenile that had been shot and a
'shots fired' call." When Officer Davis arrived
at the scene, he ran to the back of the residence and
observed Officer Taylor giving Mr. Hatcher medical aid.
Officer Davis observed that the back door of the residence
was open, and he conducted a protective sweep of the
residence with other officers. Officer Davis did not observe
any individuals or weapons inside Mr. Hatcher's
residence. He also did not observe any weapons on Mr. Hatcher
while Officer Taylor gave Mr. Hatcher aid. After clearing the
residence, Officer Davis assisted in controlling the crowd
and obtained information about the shooting. Some witnesses
observed that "a dark colored sedan, possibly an
Infiniti[, ] . . . had pulled up in front of the house[, ]
fired several shots, [and] took off." After hearing the