Session: June 4, 2019
from the Criminal Court for Shelby County No. 16-01734 James
M. Lammey, Judge.
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.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
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.
TIMOTHY L. EASTER, JUDGE.
and Procedural Background
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.
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.
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.
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.
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."
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
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
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.
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.
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.
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.
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
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.
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,
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.
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.
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.
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.
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.
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
Sufficiency of the Evidence
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.
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).
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.
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.
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)).
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