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State v. Isaac

Court of Criminal Appeals of Tennessee, Jackson

November 13, 2019


          Session: June 4, 2019

          Appeal from the Criminal Court for Shelby County No. 16-01734 James M. Lammey, Judge.

         Defendant, Shelby Isaac, was convicted of two counts of second degree murder, one count of reckless homicide, and one count of criminally negligent homicide after a jury found her guilty of killing three victims. The trial court sentenced Defendant to a total effective sentence of thirty years. On appeal, Defendant challenges the sufficiency of the evidence supporting her convictions, the admission of a photograph of an opened uterus, the admission of a witness's gang affiliation, the admission of a witness's jail phone call as a prior consistent statement, the admission of a photograph of Defendant standing next to a man making a hand gesture that Defendant claims is a gang sign, the trial court's denial of Defendant's motion for a continuance, the trial court's denial of Defendant's motion for mistrial, the propriety of the prosecutor's rebuttal closing argument, and the trial court's imposition of consecutive sentencing. After a thorough review, we affirm the judgments of the trial court.

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

          Lauren M. Fuchs (on appeal and at trial) and William Massey (at trial), Memphis, Tennessee, for the appellant, Shelby Isaac.

          Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Glenn Baity, Gavin Smith, and Jamie Kidd, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Timothy L. Easter, J., delivered the opinion of the court, in which John Everett Williams, P.J., joined. Thomas T. Woodall, J., filed a separate concurring opinion.



         Factual and Procedural Background

         A Shelby County grand jury indicted Defendant for the first degree felony murder of Eddie Tate committed during the perpetration of an aggravated robbery in Count One, the first degree premeditated murder of Eddie Tate in Count Two, the first degree premeditated murder of Edwina Thomas in Count Three, and the first degree premeditated murder of the unborn child of Edwina Thomas in Count Four. Victoria Seay was also indicted with four violations of Tennessee Code Annotated section 39-11-411, accessory after the fact, in Counts Five through Eight. The following facts were adduced at trial.

         Mr. Tate worked part time at his mother's hair weave business, Virgin Hair for You. Most of the business's sales were "out of the car" and primarily cash transactions. He charged fifty dollars for a twelve-inch "bundle" of hair and up to one-hundred dollars for a thirty-inch "bundle" of hair. Most of their customers would purchase at least three bundles at a time. If something was wrong with the hair, the business would allow returns and exchanges but not a return for a refund. From time to time, Mr. Tate would take Ms. Thomas, his girlfriend, with him when he would sell hair.

         Ms. Seay, a friend of Defendant, testified on behalf of the State. She knew Defendant by her nickname, "Shay." According to Ms. Seay, on January 21, 2016, the night before the shooting, she and Defendant spent the night at the home of Gary Dotson. Ms. Seay and Defendant left Mr. Dotson's house between the hours of 12:00 p.m. and 2:00 p.m. As they left, Defendant told Ms. Seay that she was going to buy some hair. Ms. Seay gave Defendant a ride to a Texaco gas station in Ms. Seay's silver Mitsubishi Mirage. When Ms. Seay parked, Defendant exited the passenger side of the vehicle and walked over to a McDonald's. There, Defendant purchased some hair for $250 from Mr. Tate. Defendant returned to Ms. Seay's car, and Ms. Seay drove to Sycamore Lake Apartments where Defendant lived. Ms. Seay realized that she did not have her "hair bag" so she could not sew in Defendant's weave. They left and went back to Ms. Seay's house, which was about ten to twelve minutes away. Their attempt to retrieve Ms. Seay's "hair bag" was thwarted because neither Ms. Seay's mother nor Ms. Seay's grandmother was home, and Ms. Seay did not possess a key to her own house. She and Defendant then headed back toward Defendant's apartment.

         On the way, Defendant mentioned to Ms. Seay that she would like to get three more "bundles" of hair and that she would like to get her money back. Defendant called the man that she bought the hair from, Mr. Tate, and she asked him to meet her at Sycamore Lake Apartments. Ms. Seay parked her car in the parking lot, and Defendant exited the car and walked over to Mr. Tate's car. Meanwhile, Ms. Seay got out of the car too. From Ms. Seay's vantage point, she could only see Mr. Tate in his car holding three bundles of hair. According to Ms. Seay, the only people at the scene were Defendant, Mr. Tate, Ms. Thomas, and herself. Before Ms. Seay could get over to Defendant's location, she heard a gunshot and ran back to her car. As she turned to run, Ms. Seay saw a black gun in Defendant's hand. Ms. Seay got inside her car and drove to Deerfield Apartments. Ms. Seay called Defendant multiple times, and after about five to ten minutes, Defendant eventually answered. Ms. Seay asked Defendant what had happened, and Defendant told Ms. Seay to come pick her up in front of the apartments.

         Ms. Seay immediately returned to the Sycamore Lake Apartments and picked up Defendant. According to Ms. Seay, Defendant's purse and a black jacket were located in the back seat of Ms. Seay's car. At trial, Ms. Seay recounted Defendant's statements during the car ride to Ms. Seay's house. She testified, "[Defendant] told me that she shot the man and that he was dead and that she had shot the lady. And that when the lady came back - - she had blacked out. And when she came back, then she told her that she was pregnant."

         As Ms. Seay and Defendant were driving around after the shooting, they went to pick up Darrion Melvin, whom Ms. Seay calls her "play brother." At some point, Ms. Seay's mother called and asked why the police were at their house. Ms. Seay lied to her mother about the police and continued driving to Mr. Melvin's house. Upon arrival, Defendant entered Mr. Melvin's residence for "about a minute and a half" and then returned, according to Ms. Seay. According to Mr. Melvin, Defendant asked him if she could use the restroom. Mr. Melvin responded, "All right," and Defendant went to the restroom in his house, while he and Ms. Seay remained in Ms. Seay's car. At this point in time, Mr. Melvin did not notice anything unusual about Defendant.

         Ms. Seay and Defendant took Mr. Melvin to run some errands. While Mr. Melvin was in the car, Ms. Seay spoke with Mr. Dotson on the phone. Mr. Melvin testified he heard Ms. Seay say to Mr. Dotson, "You can fix your own phone because you just hit a lick." Mr. Melvin understood "hitting a lick" to mean robbing someone. Mr. Melvin further described the conversation inside the car by testifying, "[Ms. Seay's] mama kept calling her. She was like, 'The police at my house' - - 'at the house. They need you to come home.' I was like, 'Dang. What's going on?' Then [Defendant] was like, 'Really, nothing. We got' - - 'We was in the apartments last night. They got to shooting.'" Defendant then turned to Ms. Seay and said, "They ain't got nothing but your tags, and you ain't got to worry about nothing."

         While speaking to Defendant, Mr. Melvin was "checking her" and said, "Dang, you got your hair done and all that." Defendant responded, "[Mr. Melvin], shut up before I shoot you." Mr. Melvin thought that Defendant was not being serious. Mr. Melvin noticed that Ms. Seay was acting strange. Eventually, Ms. Seay dropped Defendant off at "Craigmont" and dropped Mr. Melvin off at his house.

         After Ms. Seay and Defendant left Mr. Dotson's house "sometime in the mid morning," Mr. Dotson had no interaction with Defendant until she returned several hours later that day. Mr. Dotson observed that Defendant looked "tired." Defendant was wearing "a jacket, a shirt, and some blue jeans." Mr. Dotson saw blood on Defendant's jacket and on the thigh of her pants. In Defendant's back pocket was a "bunch of money, just balled up." Defendant took off her clothes and put on a different shirt. She then walked into Mr. Dotson's bedroom, laid down a black and pink 9 millimeter Ruger pistol, lay on his bed, and went to sleep. Mr. Dotson noticed that the magazine of the pistol was not full. He estimated that there were three rounds in the magazine. Four or five hours later, Defendant woke up and left. Mr. Dotson did not see her again that day.

         At approximately 3:00 p.m. on the day of the shooting, Officer D'Andre Johnson of the Memphis Police Department (MPD) responded to a shooting call at Sycamore Lake Apartments. When he arrived at the scene, he found a black male victim, Mr. Tate, who appeared to be dead. Officer Johnson was notified of a second victim. He found her in a separate apartment complex in the vicinity of the shooting. He observed that she had suffered a gunshot wound. The second victim, Ms. Thomas, was "bleeding profusely" from her left side. The woman was unable to provide Officer Johnson with much information or even her name and appeared to be in a state of shock. Officer Johnson also observed a green Honda parked in front of the location where he found the second victim. An ambulance was called to transport her to receive medical care. After being transported to a hospital, Ms. Thomas died several hours later.

         MPD Sergeant James Smith was designated the case coordinator for this crime. He responded to a call that "there was a male black that was shot that was still on the scene deceased, and someone had left in his car." Once on the scene, Sergeant Smith spoke with the other responding officers and received information from dispatch that described a vehicle that had left the scene containing a possible suspect. Sergeant Smith spoke with multiple witnesses that claimed they saw the events after the shots were fired. Many of those witnesses testified at trial. From various vantage points, the multiple witnesses saw one woman get into a silver Mitsubishi and drive away. The witnesses also saw another woman pull a man out of the driver's seat of a green Honda and drive away. Through his investigation, Sergeant Smith discovered that the woman who pulled the driver out of the car was the second victim, Ms. Thomas, who had also been shot.

         However, some of the witnesses' testimony differed in some respects. Noel Lopez, a resident of Sycamore Lake Apartments at the time of the shooting, saw a black male walking toward the Mitsubishi before it left. Mr. Lopez remembered seeing a black individual running away from the Mitsubishi after the gun shots. Mr. Lopez did not remember seeing a male individual with the female that sped off in the silver Mitsubishi, but he could not be certain. Brenda Davis, another resident of the Sycamore Lake Apartments, testified she saw "what appeared to be a black man, sort of heavy built, running, like, away from this car. It seemed like he was jogging." He was wearing "a black and red jacket." According to Ms. Davis, the car, which was "neon green" and driven by a female, sped away from the man. Ms. Davis "assumed" that this man was the shooter. However, Ms. Davis later saw the same man in the "black and red jacket" lying face down in the parking lot. Defense witness Craig Hollis, another resident of the Sycamore Lake Apartments, testified he saw the same events unfold, but he described the person that drove away in the green Honda as a young woman, who was wearing "bright-colored" leggings with a "multi-colored pattern" and a "red toboggan."

         Sergeant Smith was able to identify Ms. Seay as a suspect within an hour or two of arriving on the scene. The police arrested her and took her to the homicide bureau where she was put in an interview room and shackled to a bench. Ms. Seay sat in that room for more than two hours, and officers checked on her periodically. Eventually, Ms. Seay signed a waiver of rights and began speaking to the police. The police told Ms. Seay that witnesses had placed her and her car at the scene and then told her that she was being investigated as a suspect in a first-degree murder case. Around 2:00 a.m., Ms. Seay gave a statement to the police, which did not implicate Defendant. However, in this statement, Ms. Seay described Defendant as wearing a black shirt and a burgundy jacket. At trial, Ms. Seay admitted that her first statement was a lie.

         Sometime after the day of her arrest, Ms. Seay contacted the police and gave a second statement that implicated Defendant. Ms. Seay's second statement directly contradicted portions of her first statement, and Ms. Seay admitted to the police that she had lied while giving her first statement. In this statement, Ms. Seay included that Defendant was wearing gold, glittery boots.

         The call records that Sergeant Smith retrieved duirng his investigation revealed that there were eight phone calls between Defendant and Mr. Tate on the day of the shooting. The last number to call Mr. Tate's phone was Defendant's. The police processed both Ms. Seay's silver Mitsubishi Mirage and Mr. Tate's green Honda for evidence. Inside Ms. Seay's vehicle, the police found a black sweatshirt that had blood on it. DNA testing revealed that the blood matched Mr. Tate's DNA. Also found in Ms. Seay's vehicle was a styrofoam cup, which contained Defendant's fingerprint. Additionally, the police recovered a receipt from the passenger seat of Mr. Tate's green Honda that contained Defendant's fingerprint.

         The police recovered several shell casings and bullets from the crime scene. Special Agent Kasiah Lynch of the Tennessee Bureau of Investigation Firearms Identification Unit examined six bullets and seven fired cartridge cases as a part of the investigation of this case. Special Agent Lynch was able to determine that the 9 millimeter cartridge cases found at the crime scene were "likely" fired from the same make and model of firearm, but she could not determine whether the cartridge cases had been fired by the exact same firearm. From her examination of the recovered bullets, Special Agent Lynch was able to determine that a Ruger firearm was possibly the make of weapon that fired two of the bullets. The third bullet was in such condition that Special Agent Lynch could not make any determination as to the type of weapon that fired the bullet. Special Agent Lynch was ultimately able to determine that only one firearm was used.

         The police also recovered a pair of gold sequined Ugg boots that belonged to Defendant. MPD Officer Jeffrey Garey conducted the "BlueStar" test for latent bodily fluid on the boots. Officer Garey testified that the "BlueStar" test will reveal the presence of blood even if the surface has been cleaned. The test results were negative, meaning no blood was found on the boots.

         Dr. Marco Ross, the Assistant Medical Examiner for Shelby County, examined the body of Mr. Tate and determined that Mr. Tate had suffered four gunshot wounds, which were the cause of his death. Dr. Ross also examined the body of Ms. Thomas and determined that she had suffered a gunshot wound to the abdomen, the left forearm, and the left upper arm. Dr. Ross determined that the gunshot wounds to the abdomen and left forearm were the cause of Ms. Thomas's death. During his examination, Dr. Ross found that Ms. Thomas was in the first trimester of her pregnancy and that the fetus was six to seven weeks old. Dr. Ross determined that the fetus died as a result of Ms. Thomas's gunshot wounds.

         Defendant did not testify. Other than the testimony of Mr. Hollis, Defendant presented the testimony of her older sister, Christy Isaac, that Defendant and her family had known Mr. Tate and his family for a long time. She, Defendant, and their mother all bought hair from Mr. Tate and his brother, Marion, in a "cash only business." She did not know if Defendant had ever bought hair from the Tates at Sycamore Lake Apartments. She stated that Defendant "most definitely" looked the same at trial as she did in 2016 with the exception that her hair was a bit shorter.

         After deliberation, the jury found Defendant guilty of second degree murder in Count One, second degree murder in Count Two, reckless homicide in Count Three, and criminally negligent homicide in Count Four. The State filed a motion seeking consecutive sentencing, arguing that consecutive sentences were warranted because, "[t]he defendant is a dangerous offender whose behavior indicates little or no regard for human life, and no hesitation about committing a crime in which the risk to human life is high." Also, the State included in its motion a reference to State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995), alleging that "[c]onsecutive sentences reasonably relate to the severity of the offenses committed. . . [and] are necessary in order to protect the public from further serious criminal conduct by the defendant." After a sentencing hearing, the trial court merged Counts One and Two, and sentenced Defendant to twenty-four years in Count One. Additionally, the trial court sentenced Defendant to four years in Count Three and two years in Count Four. The trial court ordered consecutive service of all three sentences for a total effective sentence of thirty years. Defendant filed a motion for new trial, which the trial court denied. This appeal followed.


         I. Sufficiency of the Evidence

         Defendant argues that the evidence is insufficient to support her convictions because Ms. Seay was the only witness to testify that Defendant was present at the scene of the crime. The State claims Defendant is merely asking this Court to reweigh Ms. Seay's credibility, something that this Court cannot do. Also, the State maintains that the evidence is sufficient. We agree with the State.

         Well-settled principles guide this Court's review when a defendant challenges the sufficiency of the evidence. The relevant question is whether any rational trier of fact could have found the accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury's verdict replaces the presumption of innocence with one of guilt; therefore, the burden is shifted onto the defendant to show that the evidence introduced at trial was insufficient to support such a verdict. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002). The prosecution is entitled to the "'strongest legitimate view of the evidence and to all reasonable and legitimate inferences that may be drawn therefrom.'" State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Questions concerning the "'credibility of the witnesses, the weight to be given their testimony, and the reconciliation of conflicts in the proof are matters entrusted to the jury as the trier of fact.'" State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012) (quoting State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008)). "'A guilty verdict by the jury, approved by the trial court, accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the prosecution's theory.'" Reid, 91 S.W.3d at 277 (quoting State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)). It is not the role of this Court to reweigh or reevaluate the evidence, nor to substitute our own inferences for those drawn from the evidence by the trier of fact. Id. The standard of review is the same whether the conviction is based upon direct evidence, circumstantial evidence, or a combination of the two. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009).

         To establish the elements of second-degree murder, the State had to prove that Defendant knowingly killed Mr. Tate. See T.C.A. § 39-13-210(a)(1). A person acts knowingly with respect to the result of their conduct "when the person is aware of that the conduct is reasonably certain to cause the result." T.C.A. § 39-11-106(a)(20). For reckless homicide, the State had to prove that Defendant recklessly killed Ms. Thomas. See T.C.A. § 39-13-215(a). A person acts recklessly "when the person is aware of, but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur." T.C.A. § 39-11-106(a)(31).

         To establish criminally negligent homicide of Ms. Thomas's unborn child, "the State must prove three elements beyond a reasonable doubt: (1) criminally negligent conduct on the part of the accused; (2) that proximately causes; (3) a person's death." State v. Briggs, 343 S.W.3d 106, 109-10 (Tenn. Crim. App. 2010); see T.C.A. § 39-13-212. For purposes of the homicide statutes, another person "include[s] a human embryo or fetus at any stage of gestation in utero." T.C.A. § 39-13-214(a). Criminally negligent conduct is defined as "when the person ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur." T.C.A. § 39-11-106(a)(4). "The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the accused person's standpoint[.]" Id. The defendant must fail to perceive a substantial and unjustifiable risk in order to be found criminally negligent. Briggs, 343 S.W.3d at 110. "Whether a defendant failed to perceive the risk must be determined under the circumstances as viewed from the defendant's standpoint." Id. (citing T.C.A. § 39-11-106(a)(4)). A defendant's failure to perceive the risk must be a "'gross deviation from the standard of care.'" Id. (quoting T.C.A. § 39-11-106(a)(4)).

         In addition to establishing the above elements for each crime, the State must prove that Defendant was the perpetrator beyond a reasonable doubt. See State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (stating "identity of the perpetrator is an essential element of any crime"). "The credible testimony of one identification witness is sufficient to support a conviction if the witness viewed the accused under such circumstances as would permit a positive identification to be made." State v. Radley, 29 S.W.3d 532, 537 (Tenn. Crim. App. 1999) (citing State v. Strickland, 885 S.W.2d 85, 87-88 (Tenn. Crim. App. 1993)). In resolving questions of fact, such as the identity of the perpetrator, "the jury bears the responsibility of evaluating the conflicting evidence and accrediting the testimony of the most plausible witnesses." State v. Pope, 427 S.W.3d 363, 369 (Tenn. 2013) (quoting State v. Hornsby, 858 S.W.2d 892, 897 (Tenn. 1993)).

         Defendant essentially asks this Court to reevaluate Ms. Seay's credibility on appeal. That is not our role, but rather, the role of the jury. Id.; Reid, 91 S.W.3d at 277. Ms. Seay's testimony established that Defendant pulled the trigger on the gun that killed Mr. Tate, Ms. Thomas, and Ms. Thomas's unborn child. Ms. Seay's testimony was corroborated by the fact that Defendant's fingerprint was present on a receipt that was recovered for Mr. Tate's green Honda. Additionally, Mr. Dotson testified that Defendant entered his home with blood on her clothes and a Ruger pistol that was not fully loaded. A Ruger pistol is one of the types of pistol that could have fired the bullets recovered from the crime scene. This evidence is sufficient for a rational juror to conclude beyond a reasonable doubt that Defendant committed second-degree murder, reckless homicide, and criminally negligent homicide.[1]

         II. ...

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