State of Tennessee v. Timothy Evans and Michael Daniels

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
January 25, 2011 Session

STATE OF TENNESSEE v. TIMOTHY EVANS AND MICHAEL DANIELS

Direct Appeal from the Criminal Court for Hamilton County
Nos. 260094, 259788 Rebecca J. Stern, Judge

No. E2009-01627-CCA-R3-CD - Filed August 22, 2011

A Hamilton County Criminal Court jury convicted the appellants, Timothy Evans and
Michael Daniels, of first degree premeditated murder and conspiracy to commit first degree
premeditated murder. In addition, the jury convicted Evans of carrying a dangerous weapon.
After a sentencing hearing, the trial court sentenced Evans to concurrent sentences of life for
the murder conviction, sixteen years for the conspiracy conviction, and thirty days for the
carrying a dangerous weapon conviction. The trial court sentenced Daniels to consecutive
sentences of life for the murder conviction and twenty-three years for the conspiracy
conviction. On appeal, the appellants argue that (1) the evidence is insufficient to support
the convictions, (2) the trial court erred by refusing to grant their motions to sever, (3) the
trial court erred by using extreme and unnecessary security measures that prejudiced the jury
against them, and (4) the trial court erred by failing to grant their motions for a new trial
because the State’s gang expert committed perjury. In addition, Daniels argues that (5) the
trial court erred by failing to redact the indictments properly and (6) the trial court failed to
control a witness adequately while the witness was testifying. Finally, the appellants contend
that the cumulative effect of the errors warrants a new trial. Based upon the oral arguments,
the record, and the parties’ briefs, we affirm the judgments of the trial court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
P.J., and J AMES C URWOOD W ITT, J R., J., joined.

John G. McDougal, Chattanooga, Tennessee, for the appellant, Timothy Evans, and Jesse W.
Dalton, III, Chattanooga, Tennessee, for the appellant, Michael Daniels.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Blesdsoe, Assistant Attorney
General; William H. Cox, District Attorney General; and Neal Pinkston, Assistant District
Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

This case relates to the shooting death of twenty-six-year-old Adrian “A.D.” Patton
on June 13, 2006, in Chattanooga. At trial, Investigator Christina Young testified as an
expert in gang activity that she worked for the Silverdale Detention Center as a gang
investigator. As part of her duties, she was responsible for identifying inmates with gang
affiliations and managing those inmates. She explained that gangs were a security threat for
the detention center’s employees and inmates not affiliated with gangs and that she
interviewed every inmate within seventy-two hours of the inmate’s arrival at the facility. She
described how gangs such as the Crips and Bloods originally formed in California and said
the first documented Bloods gang was named the Piru Street Gang because the founder lived
on Piru Street. She said that members of the Bloods often used “Piru” as another word for
“friend” and that the ranking structure within the Bloods was as follows, from highest rank
to lowest: O.G., original gangster; Y.O.G., young original gangster; Y.G., young gangster;
B.G., baby gangster for children eight to twelve years old; and soldiers, young aspiring gang
members “out doing the majority of the work.” Investigator Young explained that “set
gangs” were local versions of the large gangs and that the Skyline Bloods and East L Treetop
Piru Bloods were Chattanooga set gangs under the Bloods. She said that each gang usually
claimed a particular area as its territory and that lower gang members wanted to impress their
O.G.

On cross-examination, Investigator Young testified that the Skyline Bloods had about
thirty-five members and that members used “Piru” as another word for “Blood.” She stated
that a B.G. would do what he or she was told and that a Y.G. would have a small amount of
status over a B.G. but still would have to answer to the O.G., who was the boss. She said an
O.G. gave orders to lower ranking members and usually did not participate in carrying out
criminal activity. If a gang member did not follow an O.G.’s orders, the member could be
disciplined with punishment ranging from physical assault to death.

Officer Matthew A. Hennessy of the Chattanooga Police Department testified as a
gang expert that he used to patrol “southside” Chattanooga, which encompassed the Emma
Wheeler Homes housing development, Alton Park, St. Elmo, and Tiftonia. He said the
Skyline Bloods were in the southside area while the Crips and Gangster Disciples were in the
East Lake Courts area.

On cross-examination, Officer Hennessy testified that the appellants were members

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of the Skyline Bloods. He said that Evans was a B.G. in the gang and that it was his
“understanding” from investigations and talking with gang members that appellant Daniels
was a Y.G. He said O.G.s and Y.G.s were the “shot-callers” and could order that a lower-
ranking gang member be fined, physically assaulted, ordered to harm a rival gang, shot, or
killed if the member did not follow a leader’s orders. He said that Delicia Woodruff,
Frederico Brock, and Darius Sneed were “associates” of the Skyline Bloods and that he knew
the victim to associate with the Crips-based gangs in East Lake Courts. Officer Hennessy
said he thought Daniels was the current leader of the Skyline Bloods.

Officer Bryan Wood of the Chattanooga Police Department testified that on June 13,
2006, he was dispatched to a shots-fired call at a home in East Lake Courts and spoke with
Daniels’ sister, Nicole Evans.1 Evans claimed that someone shot at her apartment building,
damaging the bricks.

Frederico “Puerto Rico” Brock testified that he lived in an apartment on East 48th
Street in the Emma Wheeler Homes housing development and grew up with the appellants,
the victim, Delicia Woodruff, and Darius Sneed. He was not a gang member but associated
with the Bloods, Crips, and Vice Lords. Brock said that about 3:00 p.m. on June 13, 2006,
he was in “Rooster’s” apartment, which was across the street from his own apartment, and
that appellant Evans also was there. Evans was holding a black gun. About 5:00 p.m., the
victim and Michael Hudgins arrived in a four-door Dodge Ram pickup truck and stopped on
East 48th Street. The victim was sitting in the driver’s seat, and Hudgins was sitting in the
front passenger seat. Brock, Daniels, and Sneed went out to the truck. Brock was standing
beside the front passenger-side door and was talking with Hudgins. Sneed and Daniels were
standing beside the front driver-side door and were talking with the victim. At some point,
Brock saw Evans standing toward the back of the truck on the driver’s side. Woodruff was
sitting on Brock’s front porch. Brock said that Daniels told the victim, “I just thought you
shot my sister’s house up” and that the victim denied shooting the house. Sneed’s and
Daniels’ conversation with the victim lasted ten or fifteen minutes, and Hudgins, Evans, and
Woodruff were not involved. Brock said he heard Daniels tell Evans, “[H]andle it.” Evans
walked to the front of the truck and shot the victim eight or nine times. Brock said the truck
“took off” and ran into a building down the street. Sneed, who was the victim’s cousin,
began hollering and crying, and some of the victim’s uncles came outside. Daniels walked
away.

Brock testified that Daniels and Evans were in the “Piru” gang but that he did not
know their ranks. He said he had a drug problem and had spent all of his life in jail. He
identified himself in photographs “[t]hrowing up a peace sign.” He also identified

1
Nicole Evans is not related to appellant Timothy Evans.

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photographs of Daniels taken after the appellants’ preliminary hearing, showing Daniels
making a gang sign with his hands. Brock gave two statements to police, one on June 14 and
one on June 20. He said that in his first statement, he denied being at the scene of the
shooting because he did not want to be involved and labeled as a “rat.” Brock was charged
with crimes in this case and gave a second statement. Later, the charges against him were
dismissed.

On cross-examination, Brock testified that he did not remember describing himself
to police as “a slick mother fucker.” He denied telling the police that while he and Evans
were in Rooster’s apartment, he saw Evans use a red bandana to load the gun. He said that
he was “high” when he gave his first statement to police, that he used cocaine every day, and
that “I stay high.” He said that the truck’s front passenger window was down at the time of
the shooting but that he did not know if the truck’s air conditioner was on. While Sneed and
Daniels were talking with the victim, Brock saw Daniels leave the driver’s side of the truck
and walk toward the back of the truck to Evans. Brock said he stopped talking to Hudgins
and listened to Daniels’ and Evans’ conversation because “instinct” told him something was
about to happen. He said he heard Daniels tell Evans, “[H]andle that shit Piru.” He
acknowledged that he was the only person to hear Daniels make that statement. He said
Evans walked to the driver’s window and shot the victim from about one foot away. Brock
said that he was talking to Hudgins just before the shooting and that he did not see Evans
with a gun until Evans shot the victim.

Brock testified that he did not remember telling Sergeant Scott Bales that Daniels was
the O.G. for the Skyline Bloods. He said, “The word is he is an O.G. I don’t know for sure
whether he is an O.G.” When asked what would happen to a person who did not follow an
O.G.’s order, Brock said, “Man, shit, they’d get killed. Something happen to them.” He said
that although he claimed in his June 20 statement to police that Daniels’ gun was “showing”
just before the shooting, Daniels did not have a gun. Brock said he was high when he gave
his June 20 statement. He said he was not scared for himself but was scared for his family
and children. He said that he had received threats but that “the truth is the truth.”

Investigator Tracy McGhee of the Chattanooga Police Department testified that he
went to the scene of the shooting and saw a truck that had crashed into an apartment. The
State played a video recording of the crime scene for the jury while Investigator McGhee
described the scene. The truck’s doors were open.2 Five bullet holes were in the truck: three
in the driver’s door, one in the door’s window seal, and one in the passenger door behind the
driver’s door. Numerous bullet fragments were in the truck, including under the driver’s

2
We note that in the video, the victim was still sitting in the driver’s seat, and the windows on both
front doors were down.

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seat, inside the driver’s door, and in the headliner above the passenger seat. A shell casing
and a tooth were on the passenger-side front floorboard, and a second tooth was under the
front passenger seat. Investigator McGhee saw gunshot wounds in the victim and blood on
the steering wheel. Tire tracks were on East 48th Street, and the police found six nine
millimeter shell casings on the street. They also found a black t-shirt and a Food Lion receipt
behind an apartment. Investigator McGhee collected fingerprints from the truck. Later, the
police placed dowel rods in the truck’s bullet holes to track the trajectory of the bullets. A
photograph of the dowel rods in the bullet holes shows the bullets were fired from outside
the driver’s door and into the direction of the driver.

On cross-examination, Investigator McGhee testified that the shell casing inside the
truck was the same type as the six casings on the street. He did not notice any gun powder
residue around the bullet holes that were in the truck’s doors.

Investigator Ed Duke of the Chattanooga Police Department testified that he examined
fingerprints recovered from the truck and compared them to known prints collected from the
victim, the appellants, Michael Hudgins, Frederico Brock, Darius Sneed, and Delicia
Woodruff. Sneed’s palm print was on the driver’s side of the truck bed. The victim’s and
Brock’s fingerprints were on the front passenger door, and Evans’ fingerprints were on the
rear passenger door. On cross-examination, Investigator Duke acknowledged that Daniels’
fingerprints were not identified on the truck.

Darius Sneed testified that he was the victim’s first cousin and that he was affiliated
with the Athens Park Bloods. He said that he did not “hang” with the victim but that they
were close. He said that Daniels claimed to be the O.G. of the Skyline Bloods when Daniels
was actually only a Y.G. and that Daniels gave Evans “some fake Y.G. status.” On June 13,
2006, Frederico Brock telephoned Sneed and told Sneed that “something fixing to go on with
your family. You need to get down here so you can make sure everything’s straight.” Sneed
went to Emma Wheeler Homes and saw Daniels. Sneed telephoned the victim, and the
victim came to East 48th Street. The victim and Michael Hudgins pulled up in a pickup
truck. Brock stood at the passenger side of the truck while Sneed stood at the driver’s door
talking with the victim. Sneed said Daniels was standing with him but “strolled off to the
back” where Evans was standing. Sneed said that he was talking with the victim and that
“everything was cool” but that Evans suddenly “came around me shooting.” He said he
thought Evans had a “nine” and “unloaded the clip” while he yelled for Evans to stop. After
the shooting, Sneed dropped to the ground and started crying while the truck pulled away.
Sneed thought the victim was trying to get to a hospital but heard the truck crash. The
victim’s family came outside, and Evans and Daniels ran in different directions. Delicia
Woodruff, who had not been standing by the truck, ran with Daniels. Sneed went to check
on the victim, and the victim was alive.

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 Sneed testified that he saw Daniels holding a silver gun before the shooting but that
he did not see Daniels shoot. He said that he did not hear Daniels say anything to Evans
before the shooting but that Brock told Sneed, “[T]hat boy told dude to do that.” He said he
initially told the police that he was not present at the shooting because he was afraid the
Skyline Bloods would retaliate against his family. The police charged him, Brock, and
Woodruff with crimes in this case only because they would not tell the police what happened.
Later, Sneed spoke with Lieutenant Edwin McPhearson and admitted being present. The
charges against him were dropped.

On cross-examination, Sneed testified that the victim came to Emma Wheeler Homes
on June 13 to talk with Daniels but that the victim was not looking for trouble and wanted
to clear up misinformation about the shooting at Daniels’ sister’s house. Sneed said Timothy
Sexton also might have been standing at the truck before the shooting but that he did not
remember. Sneed said that he did not see Evans at the truck when Sneed first started talking
with the victim but that Evans “popped up” at some point. Although Sneed did not hear
Daniels tell Evans to kill the victim, Sneed said he knew Daniels gave the order because
Evans did not even know the victim. About an hour after the shooting, Evans telephoned
Sneed and told Sneed he was sorry for shooting the victim and did not know Sneed was the
victim’s cousin. Sneed asked Evans why he shot the victim, and Evans told Sneed that
Daniels told him to do it. Sneed said Evans shot the victim because Daniels was “over”
Evans, Evans was scared, and “something probably would have happened” to Evans if he had
not carried out Daniels’ order. Sneed said he did not think Evans would have shot the victim
if Evans had known the victim was Sneed’s cousin. He said that Daniels knew the victim
was his cousin and that Daniels “did that shit behind my back.” He said that he grew up with
Brock and that Brock had no reason to lie about what Brock heard. Sneed said that he was
probably high on June 13 but that “I still remember what happened. I bet you that.”

Delicia “DeeDee” Woodruff testified that on June 13, she was living at the Hampton
Inn on Rossville Boulevard. She was in her room with Sneed when Brock called and wanted
to speak with Sneed. In response to Sneed’s conversation with Brock, Sneed and Woodruff
went to Emma Wheeler Homes. Sneed telephoned the victim and asked him to come over.
Woodruff was sitting on Brock’s porch when the victim pulled up, and Daniels, Sneed,
Brock, and Timothy “Cocaine” Sexton went to the truck. Brock was standing at the
passenger side, and the other three men were standing at the driver’s side, talking with the
victim. Evans, who was wearing a black t-shirt and shorts, arrived, and he and Daniels met
at the bed of the truck. They had a brief conversation, and Evans pulled out a gun, wrapped
it in a red rag, and started shooting. After the shooting, Woodruff ran. She said she lied to
the police by telling them she did not know anything about the shooting because she was
scared for her life.

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 On cross-examination, Woodruff testified that she and Sexton had been dating for two
to three weeks at the time of the shooting and that Sexton was the O.G. of the Treetop Piru
Bloods. Daniels had a rank in the Skyline Bloods. Woodruff did not know if he was the
O.G., but Daniels’ rank was higher than Evans’ rank. Woodruff did not hear any of the
appellants’ conversation before the shooting and did not see Evans take off his black t-shirt
after the shooting. She did not know why Evans shot the victim.

Michael “Flat Top” Hudgins testified that he was forty-nine years old and was not in
a gang. He said that he knew the victim because the victim and Hudgins’ son grew up
together, that the victim was “just like my son,” and that he saw the victim every other day.
He did not know the appellants, Sneed, Brock, Sexton, or Woodruff. On June 13, the victim
saw Hudgins walking down the street. The victim was driving a rented truck and picked up
Hudgins. They were going to work on the victim’s car. The victim received a telephone call
from his mother, drove home, and went inside while Hudgins waited outside. Hudgins said
that when the victim came outside about ten minutes later, the victim was mad and “was
saying that his name came up in some kind of mess that happened out there in East Lake.”
The victim wanted to clear his name, and Hudgins rode around with him. The victim was
talking on the telephone and drove to Emma Wheeler Homes. He stopped the truck on East
48th Street, and a couple of men walked up. Hudgins said, “Then the next thing I know the
second guy came out with the pistol and started shooting.” Hudgins ducked his head and
heard eight to ten shots. He said that he looked at the victim, that the victim looked at him,
and that the victim said, “Flat Top, do you believe this mother fuckin shit[?]” Hudgins said
that the victim did not realize he had been shot and that Hudgins saw blood “shooting out his
chest and stuff like somebody shooting a water hose.” Hudgins said the truck was in gear
and “took off” down the street at thirty to forty miles per hour. The truck jumped the curb,
and Hudgins grabbed the steering wheel and steered the truck back onto the street. He put
the truck in park and guided it into a tree to slow it down. It hit the wall of an apartment
building, causing Hudgins to hit his head and knock out two of his teeth. The victim was
dead, and Hudgins got out of the truck. When the police arrived, they asked him who shot
the victim, and he told them he did not know.

On cross-examination, Hudgins testified that at the time of the shooting, the front
passenger door window was up, no one was standing at the door, and he was not talking to
anyone. He said the driver’s door window was down, and he acknowledged that several
people were standing at the driver’s door. He said that it was hot outside and that the truck’s
air conditioner was on. He and the victim had been parked on East 48th Street for one to one
and one-half minutes when the shooting started, and he did not hear anyone say, “[H]andle
that shit.”

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 Lieutenant Edwin McPhearson of the Chattanooga Police Department testified that
he knew Michael “Mike Mike” Daniels from “working the streets” and could recognize
Daniels’ face and voice. Sometime after the shooting, Lieutenant McPhearson was speaking
with Daniels’ sister, Nicole Evans, at the police department. He received a call from the
clerk in the front lobby, went to the lobby, and encountered Daniels’ other sister, Shenika.
She told Lieutenant McPhearson that she had Daniels on the telephone. Lieutenant
McPhearson talked with Daniels and told Daniels that he needed to speak with Daniels about
the investigation. He said Daniels told him, “I know who the fuck you are.” Lieutenant
McPhearson told Daniels that people might stop retaliating against Daniels’ family if Daniels
turned himself in. He said Daniels told him, “I have a hundred soldiers standing behind me.
Do your job. It’s your job to find me. You come and find me.” Daniels also told him, “You
know who I am. I’m a killer. Do your job.” A few hours later, police officers located
Daniels at an apartment in Emma Wheeler Homes. The SWAT team surrounded the
apartment, and Daniels spoke with Lieutenant McPhearson on the telephone again.
Lieutenant McPhearson said Daniels was “humble” and asked that he not be killed. Daniels
surrendered to police and came out of the apartment. Lieutenant McPhearson said that as
Daniels was being put into a patrol car, Daniels yelled to the crowd, “Skyline forever.”

On cross-examination, Lieutenant McPhearson testified that Daniels did not have a
gun on his person when the police arrested him. He said that Daniels “put [himself] at the
forefront as being the head of the Skyline gang” and that Evans was either a B.G. or a
soldier. He said that if gang members did not do as they were told, they could be physically
punished or assigned to commit violent crimes.

Investigator Brian Lockhart of the Chattanooga Police Department testified that he
processed the residence where the police arrested Daniels. He found a fully loaded revolver
underneath a mattress in one of the bedrooms.

Investigator James Tate of the Chattanooga Police Department testified that he
investigated the case and interviewed Daniels on June 16. Daniels waived his rights and
gave a recorded statement. The State played a redacted version of Daniels’ statement for the
jury, and Daniels said the following: On June 13, Daniels was in a hotel room with
Woodruff and Sexton when he received a telephone call from Brock, telling him that the
victim was at Emma Wheeler Homes. Daniels, Woodruff, and Sexton went to the housing
development. Brock was standing outside his apartment, and the victim “pulled off.” Brock
telephoned the victim and told the victim to come back. Daniels said that when the victim
returned, he asked the victim about the victim’s shooting at Nicole Evans’ house earlier in
the day. Daniels said that the shooter had endangered the lives of his sister and nephew and
that the victim “was trying to plead his case to me that he didn’t shoot.” Daniels said that
Sneed was standing with him, that Sneed was listening to him and the victim talk, and that

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Sneed was “trying to keep peace.” Brock, Woodruff, and Sexton were not close to the truck.
Daniels said he heard gunfire and stepped away from the truck while Sneed “stayed there
crying.” Investigator Tate asked Daniels, “What did you want to happen when [the victim]
pulled up?” Daniels said, “I wanted him to get up on the stand and let me and him be on the
same page. Cool. And he was pleading his life to me. And after that, sir, it was too late.”
Daniels told Investigator Tate that he did not have a gun at the shooting. He said that he was
not the O.G. of the Skyline Bloods but that “I do got status.” Later, he said that he was a
Y.G. and that “my rank ain’t high enough to kill, to get nobody killed.”

Dan Carman, a special agent forensic scientist with the Tennessee Bureau of
Investigation’s Crime Laboratory, testified as an expert in firearms identification that he
received a .38 Special Taurus revolver and a nine millimeter semi-automatic pistol for
testing. Carman determined that the pistol was inoperable. He also received three bullets,
seven cartridge cases, and bullet fragments. All of the cartridge cases were Winchester nine
millimeter cases that had been fired from the same gun. Carman concluded that the three
bullets were all fired through the same gun barrel. The bullet fragments had the same class
characteristics as the bullets, but Carman could not say they came from the same gun.
However, he determined that the bullets and cartridge cases were not fired from the nine
millimeter pistol he examined.

Dr. Stacy Turner, a forensic pathologist who performed the victim’s autopsy, testified
that the victim had six gunshot wounds. Two entered the victim’s left chest, one entered his
left abdomen, one entered his pelvic area, and two entered his left arm. The bullets
perforated the victim’s ribs, heart, right lung, small intestine, liver, pelvic bone, and body
muscle. Bleeding occurred in his chest and abdominal cavities. Dr. Turner said three of the
victim’s gunshot wounds, i.e., one to the left chest, the one to the left abdomen, and the one
to the left pelvic area, probably caused immediate death.

Timothy “Timboo” Evans testified on his own behalf that he was seventeen years old
on June 13, 2006, and was a member of the Skyline Bloods. Daniels started the Skyline
Bloods in Chattanooga and was the leader. Evans was a soldier in the gang for about one
year. He became a B.G., and Daniels gave him his current Y.G. rank. He said that he did
everything Daniels told him to because “I have no choice” and that he would be punished if
he did not do as he was told. On the day of the shooting, Evans went to a job interview at
McDonalds. As he was leaving, he ran into Daniels, and Daniels told him to go to Emma
Wheeler Homes. Evans took a gun with him because he did not want to leave it where he
was staying and met Daniels. He had met the victim for the first time earlier in the day and
did not have a problem with the victim.

Evans testified that he, Daniels, Brock, and Woodruff waited for the victim to arrive.

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He said that he and Brock had smoked “weed” earlier but that Brock was in “stable
condition.” The victim arrived in the truck, and Sneed went to the truck and started a
conversation with the victim. Evans said that Daniels also went to the truck and that “they
started talking and having little words and stuff.” Evans said he did not really listen to the
men talking. He said Daniels came to the back of the truck and told him, “[H]andle this
shit.” Evans testified, “I looked at him like what. And he was like kill that nigger.” Evans
said Daniels was walking toward him and reaching for Daniels’ gun, so Evans walked to the
front of the truck and started shooting. He said that he had “no choice” and that he fired nine
or ten shots until the gun was empty. He said that he could have refused to shoot the victim
but that “it happened so fast.” He said that after the shooting, his conscience was bothering
him because he had killed a man for no reason and that he could not eat, sleep, or stop
moving. He said that he told the police he did not shoot the victim and that he lied because
he was scared. He said that in a previous incident, Daniels told him to shoot at “some East
Lake fellows.” However, Evans was about fifty yards away when he shot at the men and did
not hit any of them. He apologized to the victim’s family.

On cross-examination, Evans testified that he became a Y.G. by “how I carry myself,”
by getting to meetings on time, and by being loyal to Daniels. He acknowledged that he was
holding a bandana while he was loading the gun at Rooster’s house and said that he loaded
the weapon “after I had talked to them and realized that something was going on.” However,
he also said he “hadn’t expected nothing to happen.” He said that when the victim’s truck
arrived, Daniels and Sneed walked up to the driver’s side while he stayed toward the back
of the truck. He said Daniels walked toward him and told him, “[H]andle this shit Piru.” He
walked to the front of the truck and started shooting but did not wrap the gun in a red rag.
After the shooting, he ran. When asked if he would have killed the victim if he had known
the victim was Sneed’s cousin, he said, “I really can’t say.”

Evans acknowledged that his attorney gave him a copy of Brock’s statement and that
he knew Brock was going to say Brock heard Daniels tell Evans to “handle that shit Piru.”
He acknowledged that he was not afraid of Daniels but said that he would kill for Daniels
because he was loyal to Daniels. He said that he told the police Daniels killed the victim and
that he blamed Daniels because he was afraid to admit he had killed someone. He said that
he used the bandana to load the gun at Rooster’s house because he did not want to get
fingerprints on the bullets. However, he did not know he was going to shoot and kill anyone.
He said the victim’s death was not planned.

Although both of the appellants had been charged with first degree premeditated
murder, conspiracy to commit first degree murder, and carrying a dangerous weapon, the jury
found Daniels guilty only of the first two offenses. The jury convicted Evans as charged.

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 II. Analysis

A. Sufficiency of the Evidence

The appellants contend that the evidence is insufficient to support their convictions
for first degree premeditated murder and conspiracy to commit first degree premeditated
murder. Specifically, Evans claims that the evidence is insufficient because the proof shows
the victim’s death was not planned and occurred suddenly. In other words, the proof does
not show that he premeditated killing the victim. Daniels claims that the evidence is
insufficient to support the convictions because the proof does not exclude the hypothesis that
Evans acted alone. The State claims that the evidence is sufficient. We agree with the State.

When an appellant challenges the sufficiency of the convicting evidence, the standard
for review by an appellate court is “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see
also Tenn. R. App. P. 13(e). The State is entitled to the strongest legitimate view of the
evidence and all reasonable or legitimate inferences which may be drawn therefrom. See
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions concerning the credibility
of witnesses and the weight and value to be afforded the evidence, as well as all factual
issues raised by the evidence, are resolved by the trier of fact. See State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh or reevaluate the evidence, nor
will this court substitute its inferences drawn from the circumstantial evidence for those
inferences drawn by the jury. See id. Because a jury conviction removes the presumption
of innocence with which a defendant is initially cloaked at trial and replaces it on appeal with
one of guilt, a convicted defendant has the burden of demonstrating to this court that the
evidence is insufficient. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

First degree murder is the premeditated and intentional killing of another person.
Tenn. Code Ann. § 39-13-202(a)(1). A premeditated killing is one “done after the exercise
of reflection and judgment.” Tenn. Code Ann. § 39-13-202(d). The element of
premeditation is a question of fact for the jury. State v. Davidson, 121 S.W.3d 600, 614
(Tenn. 2003). Although the jury may not engage in speculation, it may infer premeditation
from the manner and circumstances surrounding the killing. Bland, 958 S.W.2d at 660. In
State v. Nichols, 24 S.W.3d 297, 302 (Tenn. 2000), our supreme court delineated the
following circumstances from which a jury may infer premeditation:

Declarations by the defendant of an intent to kill, evidence of
procurement of a weapon, the use of a deadly weapon upon an
unarmed victim, the particular cruelty of the killing, infliction of

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 multiple wounds, preparation before the killing for concealment
of the crime, destruction or secretion of evidence of the murder,
and calmness immediately after the killing.

The jury may also infer premeditation from the establishment of a motive for the killing and
the use of multiple weapons in succession. State v. Leach, 148 S.W.3d 42, 54 (Tenn. 2004).

The offense of conspiracy is committed if two (2) or more
people, each having the culpable mental state required for the
offense which is the object of the conspiracy and each acting for
the purpose of promoting or facilitating commission of an
offense, agree that one (1) or more of them will engage in
conduct which constitutes such offense.

Tenn. Code Ann. § 39-12-103(a).

Taken in the light most favorable to the State, the evidence shows that on June 13,
2006, Daniels believed the victim was responsible for shooting at Daniels’ sister’s house.
Daniels, who was the O.G. of the Skyline Bloods, went to Emma Wheeler Homes and had
Brock telephone the victim and tell the victim to come to the housing development. When
the victim arrived, Sneed and Daniels went to the driver’s side of the truck to speak with the
victim while Brock went to the passenger side. At some point, Evans, a subordinate member
of the Bloods who did not know the victim, arrived and stood at the truck bed. While Sneed
was talking with the victim, Daniels left the driver’s window, walked to Evans, and told
Evans to “handle that shit Piru.” Daniels showed his gun to Evans and ordered Evans to kill
the victim. Evans pulled out his own gun, walked to the front of the truck, and fired nine or
ten shots at the victim, striking him six times.

Although Evans claims that the shooting was not planned, the evidence shows
otherwise. Sneed testified that on the afternoon of the shooting, Brock told him to come to
Emma Wheeler Homes because something was about to happen to Sneed’s family. Evans
testified that he used a rag to load his gun and keep fingerprints off the bullets because he
realized “something was going on.” Brock testified that just before the shooting, he listened
to the appellants’ conversation because “instinct” told him something was about to happen.
Their testimony, combined with the following facts, demonstrate premeditation: (1) Daniels
had a motive to retaliate against the victim for shooting at his sister’s house; (2) the
appellants procured weapons; (3) Evans used a deadly weapon upon the unarmed victim; (4)
Evans cruelly shot the unarmed victim in the upper body repeatedly when the victim had
come to the housing development only to speak with Daniels and clear his name; (5) Evans
shot the victim multiple times; (6) Evans prepared before the killing to conceal the crime by

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using the bandana to load the gun and by wrapping the gun in a red rag; and (7) the
appellants attempted to conceal the crime by fleeing from the scene and denying their
involvement to the police. Arguably, Evans’ distress after the killing weighs against a
finding of premeditation. However, in the light most favorable to the State, Evans was
distraught about killing the victim because he had learned the victim was Sneed’s cousin, not
because he had shot an innocent person. The evidence is more than sufficient to show that
both of the appellants premeditated killing the victim.

Regarding Daniels’ claim that Evans acted alone, Brock testified that he heard Daniels
tell Evans to “handle it,” and Evans testified that Daniels told him to kill the victim. The
jury, as was its prerogative, chose to accredit the testimony of the State’s witnesses. We
conclude that the evidence is sufficient to show that Daniels conspired with Evans to kill the
victim.

B. Severance

The appellants argue that the trial court erred by refusing to grant their motions for
severance because their defenses were antagonistic and because security concerns warranted
separate trials. The State contends that the trial court properly refused to grant the
appellants’ severance motions. We conclude that the appellants are not entitled to relief.

The grand jury indicted the appellants separately, and the State filed a motion to
consolidate their trials pursuant to Tennessee Rule of Criminal Procedure 8(c). At a hearing
on the motion, the State informed the trial court that the appellants were not indicted together
because the case for Evans, a juvenile, had to be transferred from juvenile court. The
appellants objected to consolidation, arguing that a joint trial would violate Bruton v. United
States, 391 U.S. 123 (1968). In addition, Evans argued that a separate trial was warranted
because he might rely on a defense of duress. The trial court granted the State’s motion,
concluding that any potential Bruton problem could be cured by the State’s choosing not to
use the appellants’ statements at trial or redacting the statements.

Subsequently, Daniels filed a motion to sever pursuant to Tennessee Rule of Criminal
Procedure 14(c), arguing that separate trials were necessary because Evans’ out-of-court-
statements were inadmissible against Daniels and because the statements could not be
redacted sufficiently to render them non-prejudicial. Daniels also argued that a joint trial
could prejudice his ability to develop and present a defense and result in confusion of the
issues. At the hearing on the motion, counsel for Evans argued that severance was necessary
due to the appellants’ different defenses, their not being able to be near each other in the
courtroom, and counsel’s fear of having to sit between them during the trial. Counsel for
Daniels stated, “Security problems are also a great concern of mine, Your Honor.” The trial

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court denied the motion, reiterating that the State would have to comply with Bruton by not
using the appellants’ statements, redacting the statements, or trying the appellants separately.
Although the trial court noted that it was concerned about security, it did not think safety
concerns warranted separate trials. The court told the appellants that if they did not “sit there
and behave” during the trial, they would be removed from the courtroom. The trial court
denied their motions to sever.

Tennessee Rule of Criminal Procedure 8(c)(2) permits joinder of defendants in the
same indictment when each defendant is charged with “conspiracy, and some of the
defendants are also charged with one or more offenses alleged to be in furtherance of the
conspiracy.” Tennessee Rule of Criminal Procedure 14(c)(2)(A) provides that a trial court
shall grant a severance of defendants before trial if “the court finds a severance necessary to
protect a defendant’s right to a speedy trial or appropriate to promote a fair determination of
the guilt or innocence of one or more defendants.” Furthermore,

[w]hile “mutually antagonistic” defenses may mandate
severance in some circumstances, they are not prejudicial per
se.” State v. Farmer, et al., No. 03C01-9206-CR-00196, 1993
Tenn. Crim. App. LEXIS 420 ([Knoxville,] July 8, 1993) citing
Zafiro v. United States, 506 U.S. 534, 537-38, 113 S. Ct. 933,
937, 122 L. Ed. 2d 317 (1993). Due to the difficulty in
establishing prejudice, relatively few convictions have been
reversed for failure to sever on these grounds. Id. Mere
attempts to cast the blame on the other will not, standing alone,
justify a severance on the grounds that the respective defenses
are antagonistic. Id. “The defendant must go further and
establish that a joint trial will result in ‘compelling prejudice,’
against which the trial court cannot protect, so that a fair trial
cannot be had.” Id. quoting United States v. Horton, 705 F.2d
1414, 1417 (5th Cir. 1983).

State v. Ensley, 956 S.W.2d 502, 509 (Tenn. Crim. App. 1996). Whether to grant a
severance lies within the sound discretion of the trial court. State v. Meeks, 867 S.W.2d 361,
369 (Tenn. Crim. App. 1993) (citing State v. Coleman, 619 S.W.2d 112, 116 (Tenn. 1981)).
“This Court has held, ‘[w]here a motion for severance has been denied, the test to be applied
in determining whether the trial court abused its discretion is whether the defendant was
“clearly prejudiced” in his defense as a result of being tried with his co-defendant.’” State
v. Mickens, 123 S.W.3d 355, 383 (Tenn. Crim. App. 2003) (quoting State v. Price, 46
S.W.3d 785, 803 (Tenn. Crim. App. 2000)). This court will not find an abuse of the trial
court’s discretion unless the record clearly shows that the defendant was so prejudiced by the

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joint trial that the granting of a severance became a judicial duty. State v. Burton, 751
S.W.2d 440, 447 (Tenn. Crim. App. 1988).

The appellants contend that their defenses were not only mutually antagonistic but
were mutually exclusive because the jury had to believe either Evans’ defense of duress 3 or
Daniels’ defense that Evans acted alone. They also contend that the trial court’s failure to
order separate trials subjected the jury to prejudicial security measures and “theatrics” by the
State. However, neither appellant has cited to any specific examples of how they were
prejudiced by being tried jointly. Moreover, the evidence introduced against them at trial
would have been admissible against them in separate trials, including Evans’ testimony
against Daniels. “[A] severance need not be granted where the evidence which was
introduced could have been admitted against [the defendant] in a separate trial.” State v.
Little, 854 S.W.2d 643, 648 (Tenn. Crim. App. 1992). Therefore, we conclude that the trial
court did not err by denying their motions to sever.

C. Security

Next, the appellants contend that the trial court erred by using “extreme and
unnecessary” security measures that prejudiced the jury against them. As examples of the
extreme and unnecessary measures, the appellants refer to the trial court’s ordering extra
metal detectors and armed security outside the courtroom doors, enhanced security at the
entrances to the courthouse, the use of armed security to escort the jury to lunch and breaks,
and the use of armed and uniformed officers to sit in the front row of the audience behind the
appellants. However, as discussed above, counsel for both of the appellants stated that they
were extremely concerned about safety and security in the courtroom. Moreover, as noted
by the State, the appellants never objected to the extra security during the trial. Therefore,
this issue has been waived. See Tenn. R. App. P. 36(b).

D. Gang Expert

The appellants contend that the trial court erred by denying their motions for a new
trial because one of the State’s experts, Christina Young, committed perjury. The State
argues that the trial court properly denied the motions because nothing indicates Young’s
false testimony affected the jury’s verdict. We agree with the State.

3
We note that the opening statements, the closing arguments, and the trial court’s jury instructions
are not in the appellate record. Therefore, the record does not reflect that Evans formally argued a defense
of duress pursuant to Tennessee Code Annotated section 39-11-504 or that the trial court instructed the jury
on the defense.

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 At trial, Young testified for the State as an expert in gang investigations. During her
testimony, she stated that she had an associate’s degree in criminal justice and received some
gang-related training while she was earning her degree. However, at the motion for new trial
hearing, Young testified that she never received her degree and that she was no longer
working for Silverdale Detention Center due to some “medical issues.” She said that despite
not having a college degree, “I felt like that my training would have qualified me on its own.”
In denying the appellants’ motions for a new trial, the trial court stated that it was “appalled”
Young lied about her credentials. However, the court ruled that it would have found Young
to be an expert even if she had not testified about having a college degree. The trial court
stated that it believed the rest of Young’s trial testimony and noted that none of Young’s
testimony dealt specifically with the appellants. The trial court held that Young’s perjury did
not prejudice the appellants.

The appellants contend that Young’s perjured testimony constitutes newly discovered
evidence.

The test for granting a new trial in cases involving recanted
testimony as newly discovered evidence is based on the
following criteria: A new trial may be granted because of
recanted testimony when (1) the trial judge is reasonably
well-satisfied that the testimony given by a material witness was
false and that the new testimony is true; (2) the defendant was
reasonably diligent in discovering the new evidence, was
surprised by false testimony, or was unable to know of the
falsity until after the trial; and (3) the jury might have reached
a different conclusion had the truth been told. State v. Housler,
193 S.W.3d 476, 494 (Tenn. 2006) (citing State v. Mixon, 983
S.W.2d 661, 666 (Tenn. 1999)).

State v. Tony Lee Crowe, No. M2009-02194-CCA-R3-CD, 2010 Tenn. Crim. App. LEXIS
591, at *22-23 (Nashville, July 16, 2010). “The decision as to whether to grant a motion for
new trial on the basis of newly discovered evidence lies within the sound discretion of the
trial court.” Id. at *23.

In this case, the third prong of the test has not been satisfied because the trial court
found that Young’s false testimony did not affect the jury’s verdict. We agree. Young
truthfully testified at trial that she had “141 gang investigator school hours that are post-
certified, police officer standardized training certifications,” that she obtained her gang
specialist certification in 2002, that she was certified in tattoo interpretation and graffiti
deciphering, and that she had attended numerous anti-gang seminars and training. The trial

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court said that it would have found Young to be an expert even if she had not testified about
having a college degree. We note that Officer Matt Hennessy, who also testified for the State
as a gang expert, stated on cross-examination that he knew Young “through doing gang
investigations” and acknowledged that she was knowledgeable about gangs. We conclude
that Young’s false testimony about having a college degree did not affect the jury’s verdict.
Therefore, the appellants are not entitled to relief on this issue.

E. Conspiracy Indictments

Daniels contends that the trial court erred by failing to redact the indictments properly.
The State argues that the trial court properly redacted the indictments. We conclude that the
appellant has waived this issue.

Daniels’ original indictment for conspiracy to commit first degree premeditated
murder listed eighteen paragraphs describing overt acts to support the charge. Daniels filed
a pretrial motion, requesting that the trial court dismiss the indictment because it was written
to inflame the jury. In the alternative, the appellant requested that the trial court redact ten
of the paragraphs. At a hearing on the motion, the trial court announced that it was going to
sustain the motion “in a very limited way . . . and take out a little bit for the purposes of just
the indictment.” The trial court redacted (1) all but the first sentence in the first paragraph,
(2) five words in the second paragraph, (3) the last sentence in the eleventh paragraph, and
(4) the last four words in the eighteenth paragraph.4 The trial court ruled that each of the
remaining paragraphs properly described an overt act in furtherance of the conspiracy and
would not be redacted.

The appellant contends that the trial court erred because twelve of the listed acts “in
no way qualify as overt acts for the purpose of a conspiracy and were clearly designed to
entice fear and bias within the jury.” However, as noted by Daniels, a redacted version of
the indictment is not in the appellate record. Moreover, a transcript of the indictments as
read to the jury also has not been included in the record. Therefore, this issue is waived.
Tenn. R. App. P. 36(a).

F. Failure to Control Witness Sneed

Daniels contends that the trial court erred by allowing Darius Sneed continually to
make “ugly, snide, prejudicial” comments to him in front of the jury. Daniels argues that

4
Evans’ indictment for conspiracy was identical to Daniels’ indictment. Although Evans did not
argue that his indictment also should be redacted, the trial court stated that its ruling would apply to the
conspiracy indictments for both appellants.

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Sneed’s conduct was extremely prejudicial because Sneed repeatedly “taunted, challenged,
threatened, and berated” him. The State argues that the appellant has waived this issue
because he failed to object at trial and that, in any event, nothing indicates Daniels was
prejudiced by Sneed’s outbursts. We agree with the State.

Our review of Sneed’s testimony reveals the following instances of inappropriate
conduct during his direct testimony:

[Sneed]: Boy, you a sucker, boy. You is a bitch, boy.

[The State]: Don’t say that, Mr. Sneed.

[Sneed]: Hey, man for real. Man, you go and tell that boy
to do that thing, you know, like first one snitch on the man now
that ain’t right. That ain’t right right there. For real, man.

[The State]: I understand. But listen to me just a second.
Again, just talk to me or one of the attorneys. Okay? The
questions -- I understand it’s emotional, but it helps out
everybody.

....

[Sneed]: What you smiling like this shit funny, boy. This
shit ain’t funny, boy. For real, boy, this shit ain’t funny.

THE COURT: Mr. Sneed.

[Sneed]: For real, man. Dude keep smiling at me, and my
cousin dead. Boy, this ain’t funny, boy.

[The State]: Mr. Sneed --

[Sneed]: Have some remorse boy. (Unintelligible) got
them (Unintelligible) boys looking at your punk-ass, boy. Suck-
ass, man, for real, man.

[The State]: I understand.

THE COURT: Mr. Sneed, if you want to help your

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 cousin’s case, you’re not doing that right now, so calm down.
Okay?

[Sneed]: Smiling at me, boy. For real. Nigger, I want
you to beat this case, nigger. For real, I want you to beat this
case.

[The State]: Mr. Sneed, will you hush for just a second,
please.

[Sneed]: Boy.

[The State]: Would you hush for just a second. I know
this is emotional. You would agree with me --

[Sneed]: I want you to get out, boy.

[The State]: Would you look at me for a few minutes,
please.

[Sneed]: F’ing keep smiling at me, man, like this funny.

[The State]: Look at me. Okay? All right? Can you look
at me for a few minutes? Can you do that?

[Sneed]: (Witness moves head up and down.)

On cross-examination, Sneed argued with Daniels’ attorney, asking him, “What wrong
with you[?]” and stating, “Hey, man, I ain’t trying to hear nothing you got to say.” The
following exchange also occurred between Sneed and Daniels’ attorney:

[Sneed]: That dude, he ain’t got no name for hisself, man.
He ain’t no David Barrows or -- you ain’t fixin to make no name
for yourself trying to beat this case for dude, man. For real,
you’re going to be a nobody man, like you been, man.

THE COURT: Mr. Sneed, we’re going to move to a
different subject. Okay?

[Sneed]: For real, man.

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 [Daniels’ attorney]: We’re going to move on, Mr. Sneed.

THE COURT: All right, move on.

[Sneed]: Ehhh, man.

Finally, the following exchanges occurred:

[Sneed]: Boy, I want to you beat this case. Boy, so help
me, God, man. For real, (Unintelligible).

[Daniels’ attorney]: Your Honor.

THE COURT: Mr. Sneed, come on. Okay? You’re not
helping.

....

[Sneed]: You know, quit playing, (Unintelligible). But
you (Unintelligible) wanted to be a O.G., nigger, take the
charge. What the fuck wrong with you.

[Daniels’ attorney]: Mr. Sneed.

[Sneed]: For real, man.

....

[Daniels’ attorney]: Mr. Sneed. You’re not helping your
cousin. You’re not helping anybody.

[Sneed]: Man, I am helping my cousin. I’m here for him.
What the hell. Shit. And, (Unintelligible) that’s the fact I won’t
be on this stand.

THE COURT: [Defense counsel], it’s getting a little long
and argumentative. Can you wrap it up pretty soon, please.

[Daniels’ attorney]: Yes, Your Honor. If you’ll give me
just a couple of minutes, I’m going to wrap it up.

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 [Sneed]: Just straight talking about nonsense, man, he’s
just trying to find something to help dude.

We are puzzled as to why the trial court allowed the witness repeatedly to address
Daniels, use profane and inflammatory language, and show disrespect to counsel for both the
State and the defense. As this court has stated,

The trial court has a deep responsibility for the orderly and
dignified conduct of courtroom proceedings. When the
circumstances are those which may imprison a criminal
defendant, the tension of the court room drama and the human
frailties and emotional factors inevitably involved serve to make
the judge’s task more difficult. Order and decorum must be
maintained. The factual inquiry must be conducted within the
issues and at all times under the applicable rules of law.

State v. Land, 34 S.W.3d 516, 528 (Tenn. Crim. App. 2000); see also State v. Conway Fuqua,
C.C.A. No. 1178, 1991 Tenn. Crim. App. LEXIS 666, at *13 (Knoxville, Aug. 28, 1991)
(providing that “the trial court has the inherent power to preserve order in the courtroom, to
protect the rights of the parties, and to further the interests of justice”). In any event, defense
counsel never objected to Sneed’s conduct or requested a mistrial. Furthermore, Sneed’s
comments demonstrate that some of them were precipitated by Daniels’ smiling at him, and
nothing in the record indicates that defense counsel attempted to control the behavior of his
own client. Therefore, this issue is waived. See Tenn. R. App. P. 36(a).

The appellant contends that he was so prejudiced by Sneed’s conduct that it would be
“unconscionable” for this court to find that his right to a fair trial was not violated. However,
the trial court, the prosecutor, and defense counsel warned Sneed that his behavior was
hurting his credibility and the State’s case. Given that defense counsel very well could have
made a tactical decision not to object to Sneed’s inappropriate comments, the appellant is not
entitled to relief. See Tenn. R. App. P. 36(b); State v. Adkisson, 899 S.W.2d 626, 641-42
(Tenn. Crim. App. 1994) (providing that this court should not address an issue as plain error
unless the five factors required for plain error relief have been established, including that “the
accused did not waive the issue for tactical reasons”).

G. Cumulative Errors

Finally, the appellants contend that the trial court’s cumulative errors warrant a new
trial. However, not finding any errors in this case, this claim has no merit.

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 III. Conclusion

Based upon the oral arguments, the record, and the parties’ briefs, we affirm the
judgments of the trial court.

_________________________________
NORMA McGEE OGLE, JUDGE

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