State of Tennessee v. Gerald McEwen

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
February 2, 2010 Session

STATE OF TENNESSEE v. GERALD McEWEN

Direct Appeal from the Criminal Court for Shelby County
No. 07-00466 Paula Skahan, Judge

No. W2009-00309-CCA–R3-CD - Filed September 24, 2010

A Shelby County jury convicted the defendant, Gerald McEwen, of one count of first degree
murder and one count of criminal attempt to commit first degree murder, a Class A felony.
The trial court sentenced him as a Range I violent offender to life with the possibility of
parole for the murder conviction and as a Range I standard offender to fifteen years for the
attempted murder conviction. The court ordered him to serve the sentences concurrently in
the Tennessee Department of Correction. On appeal, the defendant argues that (1) the trial
court violated his right to due process by denying his counsel the opportunity to rehabilitate
a prospective juror and by reprimanding the prospective juror in front of the jury venire; (2)
the trial court erred by denying his Batson challenge; (3) the trial court erred by admitting
evidence in violation of Tennessee Rule of Criminal Procedure 16; and (4) the evidence was
insufficient to support his convictions. Following our review, we affirm the judgments of
the trial court.

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

J.C. M CL IN, J., delivered the opinion of the court, in which J ERRY L. S MITH and C AMILLE R.
M CM ULLEN, JJ. joined.

Edward P. Bronston and Vicki M. Carriker (on appeal), Memphis, Tennessee, Robert W.
Jones, Shelby County Public Defender, and Donna Armstard and Constance J. Barnes (at
trial) Assistant Public Defenders, Memphis, Tennessee, for the appellant, Gerald McEwen.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Betsy Carnesale, Paul
Goodman and James Wax, Assistant District Attorneys General, for the appellee, State of
Tennessee.
 OPINION

Background

On January 30, 2007, a Shelby County grand jury indicted the defendant, Gerald
McEwen, for the premeditated murder of Nicholas Powell, also known as Nicholas Harris,
and for the attempted premeditated murder of Darren Champion. The defendant’s jury trial
began December 9, 2008, and the parties presented the following evidence.

State’s Proof. Ernestine Harris, the step-mother of Nicholas Harris, testified that Mr.
Harris was nineteen when he was shot on June 13, 2004. As a result of the shooting, he was
paralyzed from the neck down. He passed away on July 22, 2005.

Darren Champion testified that at approximately 12:00 a.m., June 13, 2004, he went
to Club Flippers on Hollywood Street in Memphis, Tennessee, with Nicholas Harris, Corry
Sellmon, Chris Williams, and Derwin Mosby. After leaving the club, the group parked in
a First Tennessee Bank parking lot and entered a neighboring Mapco convenience store. Mr.
Champion purchased a beverage and was drinking it as he walked out of the store. When he
walked out, someone shot him. He testified that he went back into the store but did not
remember what happened after that. He spent one week at the Regional Medical Center (“the
Med”). Mr. Champion testified that he was shot in the back and required surgery.

Mr. Champion further testified that no one directly threatened him at the club on June
13, but he heard that Robert Wordlow had made threats concerning him. He said that he saw
Mr. Wordlow at the club that night and that they both went to Craigmont High School. He
did not see who shot him. Mr. Champion testified that neither he nor Mr. Harris were armed.

Ladarius Weathersby testified that he knew Mr. Champion and Mr. Wordlow because
he also attended Craigmont High School. Mr. Weathersby said that on June 12, 2004, he
drove Mr. Wordlow and Kevin Swannigan to Club Flippers and dropped them off between
10:30 p.m. and 11:00 p.m. He did not go into the club because he had other plans. He
received a phone call from Mr. Wordlow between 11:30 p.m. and 12:00 a.m. asking him to
come back to the club. Mr. Weathersby returned to the club and picked up Mr. Wordlow and
Mr. Swannigan.

Mr. Weathersby further testified that after leaving the club, he went across the street
and stopped at the edge of First Tennessee Bank’s driveway because of a fight occurring in
the middle of the street. Mr. Weathersby was preparing to make a right turn onto Hollywood
Street when Mr. Wordlow exited the car, saying that he saw someone that he knew. At the
time, Mr. Weathersby did not know whom Mr. Wordlow saw, but he testified that he learned

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it was the defendant. Mr. Weathersby testified that the defendant was three cars behind him,
and Mr. Wordlow spoke with the defendant briefly. According to Mr. Weathersby, the
defendant was driving a “[g]reen Stratus.” The defendant stepped out of his car after
speaking with Mr. Wordlow. Mr. Weathersby testified that he then heard gunshots. He
looked back and saw the defendant firing a weapon towards the Mapco convenience store.
He heard approximately ten gunshots. Mr. Weathersby said that his first instinct was to
freeze. Mr. Wordlow ran back to Mr. Weathersby’s car, and then Mr. Weathersby drove
away. He testified that he was not armed that night, and Mr. Wordlow and Mr. Swannigan
were not armed, either. Mr. Weathersby said that they were all silent as they drove away.
He admitted that he was scared. He dropped Mr. Wordlow off at his house, and then he went
home. Mr. Weathersby said that when he learned who the defendant shot, he went to the
hospital because he knew Mr. Champion. However, he was unable to visit Mr. Champion
because of his condition.

Mr. Weathersby testified that he did not speak to the police until after the death of
Nicholas Harris, when they approached him. The police showed him a photospread, and he
identified the defendant as the shooter. Mr. Weathersby testified that he has not spoken to
Mr. Wordlow since June 13, 2004, because he attributed his involvement in this case to his
giving Mr. Wordlow a ride that night.

On cross-examination, Mr. Weathersby testified that he believed that Mr. Wordlow
was involved in the shooting. He said that he did not speak to the police until they
approached him because he was scared. He received threatening phone calls for two weeks
after the shooting but received no other threats. Mr. Weathersby testified that he watched
Mr. Wordlow and the defendant through the driver’s side door mirror on his car.

Memphis Police Officer Andre Muhammad testified that on June 13, 2004, he was on
his way home after his shift and approximately one half-mile from the Mapco convenience
store on Hollywood Street when he heard the shots-fired call over his radio. When he arrived
at the location, he observed a male laying on the ground. He exited his vehicle and
approached, observing that the male had been shot. Officer Muhammad learned that another
shooting victim was inside the store. Officer Muhammad received information from the
bystanders that a black male was responsible for the shooting, and the bystanders last saw the
man in a green Dodge Stratus driving northbound on Hollywood Street. He recalled seeing
a shell casing by the victim.

Christopher Williams testified that he went with Nicholas Harris, Darren Champion,
Corry Sellmon, and Derwin Mosby in Mr. Sellmon’s gray Dodge Stratus to Club Flippers on
June 12, 2004. They left when the club closed and drove across the street to the First
Tennessee Bank parking lot. From there, they went to the Mapco convenience store to buy

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drinks. Only Mr. Champion and Mr. Mosby went inside the store. The rest of the group
remained outside. When Mr. Champion and Mr. Mosby returned to the parking lot, Mr.
Williams observed a man wearing a blue t-shirt and blue jeans standing by a green car, which
was either a Plymouth Breeze or a Dodge Stratus. The man asked Mr. Champion whether
he was “Champ” and then pulled out a gun. Mr. Champion began running, and the shooter
started shooting at them. Mr. Williams heard eight shots. He testified that Mr. Harris fell
to the ground when he was shot, and Mr. Champion ran back inside the store. Mr. Williams
said that Mr. Harris had been shot in the neck. Mr. Williams saw the shooter get into his car
and drive away. He said that the gun was black and either a .9-millimeter or a .45-caliber.

Mr. Williams testified that he saw Robert Wordlow at the club that night. He later
saw Mr. Wordlow in a car with Mr. Weathersby and Mr. Swannigan. He knew them because
they all went to Craigmont High School. He did not see Mr. Wordlow near the shooter. Mr.
Williams testified that neither he nor his friends were armed that night.

On cross-examination, Mr. Williams testified that the shooter fired one shot. Then,
someone said, “‘Keep busting, keep busting, Cus[,]’” and the shooter continued firing.

Derwin Mosby corroborated Mr. Williams’s testimony, adding that a bullet went
through his shirt but did not touch him.

On cross-examination, Mr. Mosby testified that he saw Robert Wordlow in the club
that night. In December 2004, he identified Mr. Wordlow in a photospread based on a rumor
he heard around the neighborhood that Mr. Wordlow was “the one who called his people to
shoot[.]”

Dr. Kenneth Snell, a medical examiner, testified that Nicholas Harris, who was
initially identified as Nicholas Powell, died of complications from a gunshot wound to the
neck. He said that the bullet struck Mr. Harris’s sixth vertebrae, causing quadriplegic
paralysis. As a result of his paralysis, Mr. Harris developed pneumonia and septicemia,
which eventually caused his death.

Corry Sellmon testified that he drove Mr. Harris, Mr. Champion, Mr. Mosby, and Mr.
Williams to Club Flippers on June 12, 2004. After leaving the club, he parked in the First
Tennessee Bank parking lot, and the group went into the Mapco convenience store next door
to the bank. When he returned to the parking lot, he noticed Mr. Weathersby, Mr.
Swannigan, and Mr. Wordlow were in a black car in the bank parking lot. He said that he
noticed them because he had heard that they did not like Mr. Champion. While he was
talking to one of his friends, he saw a green Dodge Stratus drive into the bank parking lot.
He heard a single gunshot. Mr. Sellmon testified that he did not know from what direction

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the first gunshot came, but when the shooter fired five to six more times, he realized that the
shooter was a black male with a dark complexion standing by the green Stratus. Mr. Sellmon
testified that he also drives a Stratus and agreed that the Stratus and the Plymouth Breeze
have the same body type. He further agreed that he originally told police that the car was
either a Breeze or a Stratus. After the shooting, he did not see the black car or the green car.

Maxwell “Butch” Keith, Senior Deputy Court Clerk in the City Court Clerk’s Office,
testified that a police officer issued a seatbelt violation citation to the defendant on April 12,
2004. The citation listed the defendant’s vehicle as a green 1997 Plymouth Breeze.
According to the clerk’s records, the defendant did not appear at his May 12, 2004, court
date. Mr. Keith testified that the citation bore the defendant’s name on the signature line.

On cross-examination, Mr. Keith agreed that he was not a handwriting expert and was
not familiar with the defendant’s signature. He further agreed that police officers were
responsible for verifying the identity of the person to whom they issued citations, but
sometimes people assume another person’s identity and sign the citation in that person’s
name.

Defense Proof. Kenya Champion, Mr. Champion’s sister, testified that several weeks
prior to the shooting, she and her brother attended a friend’s birthday party. She recalled that
Mr. Wordlow also attended the party. After the party was over, Mr. Wordlow and his friends
were riding on the tops of cars up and down the street. Some of Mr. Champion’s friends
“jumped” Mr. Wordlow and his friends. Ms. Champion said that her brother was not
involved because she called him to tell him about the fight and he was at home.

After the close of proof and deliberations, the jury found the defendant guilty as
charged. The trial court sentenced him as a Range I violent offender to life with the
possibility of parole for the murder conviction and as a Range I standard offender to fifteen
years for the attempted murder conviction. The court ordered him to serve the sentences
concurrently in the Tennessee Department of Correction.

Analysis

I. Voir Dire
The defendant argues that the trial court violated his due process rights by not
allowing his counsel the opportunity to rehabilitate a prospective juror and by reprimanding
that prospective juror in the presence of the venire. The state responds that the trial court did
not abuse its discretion by excusing the prospective juror for cause. We agree with the state.

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 Article I, section 9 of the Tennessee Constitution guarantees a criminal defendant the
right to trial “by an impartial jury.” The purpose of voir dire is “to see that jurors are
competent, unbiased, and impartial” and to allow counsel to “discover[] bases for challenge
for cause and [to] intelligently exercise[] peremptory challenges.” State v. Howell, 868
S.W.2d 238, 247 (Tenn. 1993); Tenn. R. Crim. P. 24(b)(1). “[T]he decision of how to
conduct voir dire of prospective jurors rests within the sound discretion of the trial court.”
Howell, 868 S.W.2d at 247. Under Rule 24 of the Tennessee Rules of Criminal Procedure,
“[o]nce a prospective juror admits to having formed an opinion, he shall be subject to
challenge for cause unless the examination shows unequivocally that he can be impartial.”
State v. Crawford, 620 S.W.2d 543, 545 (Tenn. Crim. App. 1981). Rule 24 also “gives the
trial judge the right to excuse a juror for cause without examination of counsel.” State v.
Austin, 87 S.W.3d 114, 472 (Tenn. 2002). This court will not overturn a trial court’s ruling
on the qualifications of a juror unless the opponent of the ruling shows an abuse of the
court’s discretion. State v. Kilburn, 782 S.W.2d 199, 203 (Tenn. Crim. App. 1989).

During the voir dire in this case, the prosecutor asked prospective Juror Cotton
whether she would be able to follow the law and convict the defendant of first degree murder
if she did not have a reasonable doubt as to his guilt. Ms. Cotton replied, “Not really.” (IV,
157). After the prosecutor discussed the varying degrees of homicide, Ms. Cotton said that
she would not be able to convict the defendant of first degree murder and that she knew of
a case where someone received six months for shooting a person. The prosecutor asked that
the court remove Ms. Cotton for cause, and the court then questioned her as follows.

THE COURT: Well, Ms. Cotton, that’s based on you thinking about other
cases where you may or may not know all of the facts involved.

PROSPECTIVE JUROR: Right. But I mean you still – it’s a different
situation. You never know –

THE COURT: Right.

PROSPECTIVE JUROR: Like I said, I’ve known people to shoot somebody
right there, and they only get six months. Why should – he just shot somebody
and he get first-degree?

THE COURT: Okay. And do you know whether in that case there might have
been an argument for self-defense?

PROSPECTIVE JUROR: Well, yeah, it was a dispute of violence, but I still
say don’t nobody [sic] deserve to die, you know, and I would think –

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THE COURT: Who [are] you talking about dying?

PROSPECTIVE JUROR: No, I’m just saying in general. A person still don’t
[sic] end up – I mean have their reason to kill somebody no matter what the
situation is.

THE COURT: Okay. Right.

PROSPECTIVE JUROR: So I couldn’t consider – I mean first – first-degree.

THE COURT: Under any circumstances –

PROSPECTIVE JUROR: No.

THE COURT: – whether he came up and executed the man in the back of the
head while he was lying on the ground, you couldn’t consider first-degree
murder?

PROSPECTIVE JUROR: I mean I think about it’s a different situation –

THE COURT: Exactly, everything is different.

PROSPECTIVE JUROR: – so I wouldn’t – I – he didn’t do that so I couldn’t
say that.

THE COURT: You haven’t heard any of the proof, and you’re telling me you
can’t listen to the facts with an open mind –

PROSPECTIVE JUROR: Uh-huh. Yeah.

THE COURT: – and follow the law?

PROSPECTIVE JUROR: Yeah. I can do that but that’s –

THE COURT: That’s all we’re asking you to do. But what you were saying
is no matter what the facts and no matter what I give you as the law, and I’m
going to give you all of the law that you will need. Okay. And you are to
apply that to the facts as you determine them to be. Right?

PROSPECTIVE JUROR: Right.

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 THE COURT: What you were saying is under no circumstances could you find
first-degree murder because of a case you’re thinking about where someone
got six months?

PROSPECTIVE JUROR: No. I’m not basing my opinion on that.

THE COURT: Okay. Well, that’s what you said.

PROSPECTIVE JUROR: Okay. But – no, I’m not going to renege on it. No.

THE COURT: Okay.

PROSPECTIVE JUROR: That’s the bottom line, no.

THE COURT: You can’t follow the law and listen to the facts?

PROSPECTIVE JUROR: No.

THE COURT: And it’s based on another case that you’re thinking about?

PROSPECTIVE JUROR: No.

THE COURT: What is it based on?

PROSPECTIVE JUROR: Just – what I just said, you know, I can’t consider
that, and we’re going back and forth. I’m just saying I can’t consider that –

THE COURT: Okay.

PROSPECTIVE JUROR: – and that’s my opinion.

THE COURT: What I’m going to have you – what I’m going to have you do
is I’m going to have you stay in this courtroom through the entire week and
watch all of the court and watch the trial. Okay. Just have a seat in the
courtroom.

It is clear from this extended colloquy that the trial court gave Ms. Cotton every
opportunity to declare that she would impartially follow the law. There was no “leeway for
rehabilitation” after Ms. Cotton said, “That’s the bottom line . . . .” See State v. Alley, 776
S.W.2d 506, 518 (Tenn. 1989). The defendant’s argument that the trial court’s refusal to

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allow defense counsel to rehabilitate the prospective juror violated his due process is totally
misplaced. In support of his argument, the defendant cites to dicta in State v. Hurley,
wherein the supreme court explained that the Supreme Court of Florida held that it violated
due process when the trial court allowed the state to rehabilitate a prospective juror but did
not allow the defense to rehabilitate. 876 S.W.2d 57, 65 (Tenn. 1993) superseded by statute
on other grounds as stated in State v. Price, 46 S.W.3d 785, 800 n. 1 (Tenn. Crim. App.
2000). The defendant makes no argument, and the record does not support the contention,
that the trial court allowed the state to rehabilitate a potential juror while not allowing the
defense to do so. We conclude, therefore, that the trial court’s refusal to allow the defense
to rehabilitate a prospective juror – after that juror unequivocally stated that she would not
follow the law – did not violate the defendant’s right to due process. Furthermore, the
defendant has waived his argument that the trial court violated his right to due process by
ordering Ms. Cotton to observe the court proceedings throughout the week because the
defendant has failed to cite authority to support his argument. Tenn. Ct. Crim. App. R. 10(b);
State v. Schaller, 975 S.W.2d 313, 318 (Tenn. Crim. App. 1997). Finally, the defendant has
not shown that the trial court abused its discretion in removing Ms. Cotton for cause.
Accordingly, the defendant is not entitled to relief on this issue.

II. Batson Challenge
The defendant contends that the trial court erred by denying his Batson challenge.
Specifically, the defendant argues that the trial court did not evaluate whether the state
exercised its peremptory challenges with discriminatory intent. The state responds that it
offered racially neutral reasons for striking the five jurors in question and that the defense
did not prove that the state acted with purposeful discrimination. We agree with the state.

In Batson v. Kentucky, the United States Supreme Court held that a state’s use of
peremptory challenges to intentionally exclude jurors of the defendant’s race violates the
defendant’s right to equal protection. 476 U.S. 79, 89 (1986). The court upheld this
principle in Powers v. Ohio, but eliminated the requirement that the defendant and the
potential juror share the same race. 499 U.S. 400, 415 (1991). The court subsequently held
that peremptory strikes based solely on gender are also constitutionally impermissible. J.E.B.
v. Alabama ex rel. T.B., 511 U.S. 127, 140 (1994); see State v. Turner, 879 S.W.2d 819,
821-23 (Tenn. 1994).

A defendant seeking to raise a Batson claim must first make a prima facie showing
of purposeful discrimination against a prospective juror. Batson, 476 U.S. at 93-94. The
defendant must establish that a consideration of all the relevant circumstances raises an
inference of purposeful discrimination. Woodson v. Porter Brown Limestone Co., 916
S.W.2d 896, 903 (Tenn. 1996). Once the defendant establishes a prima facie showing of
purposeful discrimination, the burden then shifts to the state to establish a neutral basis for

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the challenge. Batson, 476 U.S. at 97. The state’s explanation cannot be based on mere
“stereotypical assumptions,” but it need not rise to the level of a challenge for cause. State
v. Ellison, 841 S.W.2d 824, 826 (Tenn. 1992) (citing Batson, 476 U.S. at 97). This
essentially “comes down to whether the trial court finds the prosecutor’s race-neutral
explanations to be credible,” which might include consideration of such factors as the
prosecutor’s demeanor, the reasonableness or improbability of the explanation, and the
relationship to accepted trial strategy. Miller-El v. Cockrell, 537 U.S. 322, 339 (2003).

In ruling on peremptory challenges, the trial court must give specific reasons for each
of its factual findings. Woodson, 916 S.W.2d at 906. The trial court should explain why the
objecting party has or has not established a prima facie showing of purposeful discrimination.
If the defendant has made a prima facie showing, the court must determine whether the state
gave a neutral reason and whether it finds that the challenge was the result of purposeful
discrimination. State v. Carroll, 34 S.W.3d 317, 319 (Tenn. Crim. App. 2000). The trial
court’s findings are to be accorded great weight and will not be set aside unless they are
clearly erroneous. Woodson, 916 S.W.2d at 906; see also Miller-El, 537 U.S. at 339-340
(noting that deference to the trial court is necessary relating to credibility).

In this case, the record indicates that the state exercised six peremptory challenges.
Five of the challenged jurors were African-American. The defense objected, arguing that the
state had used its peremptory challenges to strike African-Americans in violation of Batson.
However, the defense did not elaborate on its Batson objection. The trial court determined
that the defense’s objection was “a good Batson challenge” and asked the state to give their
reasons for challenging the prospective jurors. The state gave its reasons for all six of the
peremptory challenges: Ms. Ford and Ms. Woods had nephews serving sentences for first
degree murder convictions, Ms. Carthen was “virtually non-responsive,” Mr. Taylor “had a
hard time understanding [the court] and responding,” Mr. Mimes was hesitant when asked
whether his prior conviction would affect his impartiality in this case, and Ms. Bohannon’s
son was incarcerated on a pending aggravated assault charge. The trial court accepted the
state’s proffered race-neutral reasons and overruled the defense’s challenge.

Before beginning our review of the individual challenges, we note that the trial court
failed to specifically articulate its reasons for overruling the challenge on the record, with the
exception of explaining why it overruled the challenge regarding Mr. Taylor. Our supreme
court in State v. Hugueley, 185 S.W.3d 356 (Tenn. 2006), set out the procedure for analyzing
a Batson challenge when the trial court had made insufficient findings. 185 S.W.3d at 371.
After reviewing the first two prongs of the Batson test – whether the defense made a prima
facie showing of purposeful discrimination and whether the prosecution offered racially
neutral justifications for exercising its peremptory challenges – the supreme court relied on
the United States Supreme Court’s opinion in Miller-El v. Dretke, 545 U.S. 231 (2005)

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(“Miller-El II”) to fashion an analysis for determining “whether the record before [the court]
contains such strong evidence of impermissible discriminatory intent by the prosecution as
to render clearly erroneous the trial court’s determination that [the defendant] failed to
establish purposeful discrimination by the prosecution in its peremptory challenges.”
Hugueley, 185 S.W.3d at 374. The United States Supreme Court in Miller-El II examined
the “bare statistics” of the jury selection, the disparate treatment of African-American
prospective jurors in comparison to Caucasion venire members, and the prosecution’s history
of peremptorily challenging prospective jurors based on race. Miller-El II, 545 U.S. at 372-
73. We will follow the same procedure in this case. See State v. Eric Cathey, No.
W2008-01446-CCA-R3-CD, 2010 WL 2836632, at *11 (Tenn. Crim. App., at Jackson, July
20, 2010).

Five of the six prospective jurors peremptorily challenged by the state were African-
American. Therefore, we agree with the trial court that the defendant made a prima facie
showing that the prosecutor had exercised peremptory challenges on the basis of race.
Batson, 476 U.S. at 94.

We next look to the state’s explanation for exclusion of the venire members in
question. This step “does not demand an explanation that is persuasive, or even plausible.”
Purkett v. Elem, 514 U.S. 765, 768 (1995). “Unless a discriminatory intent is inherent in the
prosecutor’s explanation, the reason offered will be deemed race neutral.” Id. (quoting
Hernandez, 500 U.S. 352, 360 (1991)). We note that the record reveals that Ms. Ford and
Ms. Woods were African-American but does not reveal the races of the remaining excluded
jurors; therefore, we will consider the state’s explanations for challenging each of the six
prospective jurors. Here, three of the prospective jurors had close family members in jail,
the state complained about the responsiveness of two of the jurors, and the state was
concerned with the remaining juror’s hesitancy regarding whether his prior conviction would
affect his impartiality. This court has previously held that the state provided a race-neutral
reason for excluding a prospective juror based upon that juror having relatives who stood
convicted of crimes. See State v. Marcus Antonio Logan, No. W2008-00736-CCA-R3-CD,
2009 WL 782757, at *3 (Tenn. Crim. App., at Jackson, March 25, 2009) perm. to appeal
denied (Tenn. Aug. 17, 2009). Therefore, we conclude that the state presented facially race-
neutral reasons for excluding Ms. Ford, Ms. Woods, and Ms. Bohannon. The state
challenged the remaining prospective jurors based on their demeanor during questioning.
“Many of the judgments made by counsel in picking a jury are purely intuitive and based
upon inarticulable factors.” Carroll, 34 S.W.3d at 320 (quoting United States v.
Bentley-Smith, 2 F.3d 1368, 1374 (5th Cir.1993)). Thus, subjective considerations are
permitted because of the inherent nature of peremptory challenges. Id. Therefore, we further
conclude that the state presented facially race-neutral reasons for challenging Mr. Taylor, Mr.
Mimes, and Ms. Carthen.

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 While we do not have a complete record regarding the racial makeup of the venire,
we can infer from the United States Census Records for Shelby County that a significant
portion of the venire was African-American because the Census Bureau estimated Shelby
County’s population, in 2008, to be 52% African-American. U.S. Census Bureau, Shelby
County, Tennessee Quick Facts, (April 22, 2010)
http://quickfacts.census.gov/qfd/states/47/47157.html (data available in chart form); see also
Cathey, 2010 WL 2836632, at *13. The record reveals that eight members of the trial jury
were African-American, while six were Caucasian. However, “[t]hese bare statistics do not,
in and of themselves, convince us that the State’s proffered race-neutral reasons for excusing
the [jurors] were merely pretextual.” Hugueley, 185 S.W.3d at 374. As in Hugueley, our
review of the record indicates that there was no disparate treatment of African-American
prospective jurors in comparison to Caucasian prospective jurors. Id. Furthermore, the
record does not indicate that the state has a history of excluding African-American
prospective jurors. Id. Accordingly, we conclude that the record does not contain “strong
evidence of impermissible discriminatory intent by the prosecution as to render clearly
erroneous the trial court’s determination that [the defendant] failed to establish purposeful
discrimination by the prosecution in its peremptory challenges.” Hugueley, 185 S.W.3d at
374. Therefore, the defendant is without relief as to this issue.

III. Traffic Ticket
The defendant argues that the trial court erred by admitting into evidence a traffic
citation that the defendant received two months prior to the shooting. Specifically, the
defendant contends that the state violated discovery procedures under Rule 16 of the
Tennessee Rules of Criminal Procedure and that the ticket was unfairly prejudicial. The state
responds that there was no discovery violation and that the ticket was relevant and not
unfairly prejudicial. We agree with the state.

A. Discovery
The rules of criminal procedure require the state to provide copies of documents and
objects, at the defendant’s request, that are material to the defense, that the state plans to
introduce in its case-in-chief, or that belong to the defendant. Tenn. R. Crim. P. 16(a)(1)(F).
Rule 16 further proscribes that

[i]f a party fails to comply with this rule, the court may:

(A) order that party to permit the discovery or inspection; specify its time,
place, and manner; and prescribe other just terms or conditions;

(B) grant a continuance;

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 (C) prohibit the party from introducing the undisclosed evidence; or

(D) enter such other order as it deems just under the circumstances.

Tenn. R. Crim. P. 16(d)(2). “Whether an exclusionary sanction is appropriate depends upon
whether the defendant has actually been prejudiced in the development and presentation of
his case by the prosecution’s failure to make a proper and timely disclosure of the evidence
in question and whether that prejudice cannot be otherwise eradicated by a continuance or
means other than suppression.” State v. Quincy L. Henderson, No. 02C01-9706-CR-00227,
1998 WL 242608, at *5 (Tenn. Crim. App., at Jackson, May 12, 1998) (citing State v.
Garland, 617 S.W.2d 176, 185 (Tenn. Crim. App. 1981). “[T]he burden rests on the defense
to show the degree to which the impediments to discovery hindered trial preparation and
defendant at trial.” State v. Brown, 836 S.W.2s 530, 548 (Tenn. 1992). “[P]rejudice arising
from a discovery violation will not be found if it is shown that the defense was otherwise
aware of the undisclosed evidence.” Henderson, 1998 WL 242608, at *5.

In this case, the state sought to admit a traffic citation issued to the defendant through
the testimony of an assistant city court clerk. The state claimed they did not discover the
actual citation until the day of trial. The defense objected to the admission of the evidence,
arguing that it violated discovery. The trial court overruled the objection. At the defendant’s
hearing on his motion for new trial, the state argued that defense counsel would have been
on notice of the traffic citation if she had availed herself of the state’s offered open-file
discovery because the file contained a document entitled “Memphis City Traffic Citations
Listing.” The state further argued that the citation was not otherwise discoverable. The trial
court ruled that there was no discovery violation, stating that counsel would have been on
notice of the citation if she had properly reviewed the state’s file.

The record before this court does not contain a defense motion for discovery of
documents within the state’s control pursuant to Rule 16. However, the record indicates that
the state offered defense counsel the opportunity to review the state’s entire file on numerous
occasions. While the record does not indicate that defense counsel was actually aware of the
citation, she reasonably should have been aware of the existence of the citation based on the
state’s file, which included the “Memphis City Traffic Citations Listing.” Therefore, the
record does not preponderate against the trial court’s determination that the state did not
violate discovery. Additionally, the defendant has not shown that his defense was prejudiced
by any alleged discovery violation. The state presented eyewitness testimony linking the
defendant to the car on the night of the shooting. Other witnesses testified to the make and
model of the shooter’s car despite not being able to identify the defendant. Therefore, the
defendant had ample opportunity to prepare a defense rebutting the state’s assertion that he

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was driving a green Plymouth Breeze on June 13, 2004. Accordingly, the defendant is not
entitled to relief on this issue.

B. Relevance and Prejudicial Effect
The defendant also argued that the evidence was irrelevant and prejudicial to the
defense. Evidence is relevant if it has “any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable than it
would be without the evidence.” Tenn. R. Evid. 401. Once the court concludes the evidence
is relevant, the court should exclude the evidence if its probative value is substantially
outweighed by its prejudicial effect. Tenn. R. Evid. 403; State v. James, 81 S.W.3d 751, 757
(Tenn. 2002). A trial court’s decision as to the relevance of evidence under Rule 401 will
be reversed only upon a showing of abuse of discretion. State v. Powers, 101 S.W.3d 383,
395 (Tenn. 2003). The defendant contends that the citation was irrelevant because (1) the
police issued it over a month prior to the shooting, (2) the state did not present proof to verify
the signature on the citation, and (3) the state did not present proof that the defendant was
“the actual driver at the time the ticket was issued.” These matters address the weight of the
evidence rather than its relevance, and the defense thoroughly cross-examined the witness
regarding these issues. The trial court found that the citation was relevant to connect the
defendant to the vehicle that eyewitnesses saw at the crime scene, and the defendant has not
shown that the trial court abused its discretion in so ruling. Accordingly, we conclude that
the defendant’s argument is without merit.

IV. Sufficiency of the Evidence
The defendant argues that the evidence was insufficient to support his convictions for
first degree murder and criminal attempt to commit first degree murder. Specifically, he
contends that the state coerced the eyewitness’s identification of the defendant during the
trial and that the eyewitness’s identification was insufficient because it was uncorroborated.

Our review begins with the well-established rule that once a jury finds a defendant
guilty, his or her presumption of innocence is removed and replaced with a presumption of
guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Therefore, on appeal, the
convicted defendant has the burden of demonstrating to this court why the evidence will not
support the jury’s verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State
v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). To meet this burden, the defendant must
establish that no “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); State v. Evans,
108 S.W.3d 231, 236 (Tenn. 2003); Tenn. R. App. P. 13(e). In contrast, the jury’s verdict
approved by the trial judge accredits the state’s witnesses and resolves all conflicts in favor
of the state. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). The state is entitled to the
strongest legitimate view of the evidence and all reasonable inferences which may be drawn

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from that evidence. Carruthers, 35 S.W.3d at 558; Tuggle, 639 S.W.2d at 914. Questions
concerning the credibility of the witnesses, conflicts in trial testimony, the weight and value
to be given the evidence, and all factual issues raised by the evidence are resolved by the trier
of fact and not this court. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). We do not
attempt to re-weigh or re-evaluate the evidence. State v. Reid, 91 S.W.3d 247, 277 (Tenn.
2002); Bland, 958 S.W.2d at 659. Likewise, we do not replace the jury’s inferences drawn
from the circumstantial evidence with our own inferences. See State v. Elkins, 102 S.W.3d
581, 582 (Tenn. 2003); Reid, 91 S.W.3d at 277.

First degree murder is defined as the “premeditated and intentional killing of another.”
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). Premeditation is explained
as follows:

“Premeditation” means that the intent to kill must have been formed prior to
the act itself. It is not necessary that the purpose to kill pre-exist in the mind
of the accused for any definite period of time. The mental state of the accused
at the time the accused allegedly decided to kill must be carefully considered
in order to determine whether the accused was sufficiently free from
excitement and passion as to be capable of premeditation.

Id. An intentional act requires that the person have the desire to engage in the conduct or
cause the result. Id. § 39-11-106(a)(18). Whether premeditation is present is a question of
fact for the jury, and it may be determined from the circumstances surrounding the killing.
Bland, 958 S.W.2d at 660; State v. Anderson, 835 S.W.2d 600, 605 (Tenn. Crim. App. 1992).
Circumstances that may be indicative of premeditation include declarations of the intent to
kill, procurement of a weapon, the use of a deadly weapon upon an unarmed victim, the fact
that the killing was particularly cruel, infliction of multiple wounds, the making of
preparations before the killing for the purpose of concealing the crime, destruction or
secretion of evidence, and calmness immediately after the killing. State v. Jackson, 173
S.W.3d 401, 409 (Tenn. 2005); State v. Nichols, 24 S.W.3d 297, 302 (Tenn. 2000). A
defendant’s failure to render aid to a victim can also indicate the existence of premeditation.
State v. Lewis, 36 S.W.3d 88, 96 (Tenn. Crim. App. 2000). Under Millen v. State,1 a
defendant is guilty of first degree murder when he intentionally tries to kill one person but
actually kills an unintended victim. 988 S.W.2d 164, 168 (Tenn. 1999).

1
In this case, the Tennessee Supreme Court ruled that Tennessee’s first degree murder statute did
not require the application of the common law doctrine of transferred intent because the statute does not
require proof that the defendant intended to kill a specific victim. Millen v. State, 988 S.W.2d 164, 168
(Tenn. 1999).

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 Criminal attempt is statutorily defined as follows:
(a) A person commits criminal attempt who, acting with the kind of culpability
otherwise required for the offense:

(1) Intentionally engages in action or causes a result that would constitute an
offense, if the circumstances surrounding the conduct were as the person
believes them to be;

(2) Acts with intent to cause a result that is an element of the offense, and
believes the conduct will cause the result without further conduct on the
person’s part; or

(3) Acts with intent to complete a course of action or cause a result that would
constitute the offense, under the circumstances surrounding the conduct as the
person believes them to be, and the conduct constitutes a substantial step
toward the commission of the offense.

Tenn. Code Ann. § 39-12-101.

Viewed in the light most favorable to the state, the evidence revealed that the
defendant fired multiple shots towards a group of people, hitting Nicholas Harris in the neck
and striking Darren Champion in the back. Mr. Harris was paralyzed as a result of the
gunshot wound and died over a year after the shooting. Mr. Champion survived his injury.
The defendant essentially contends that Ladarius Weathersby’s identification testimony was
not credible. However, the jury resolved the witness’s credibility in favor of the state. This
court will not reevaluate his credibility. Reid, 91 S.W.3d at 277. “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)). Mr. Weathersby identified the defendant as the
shooter in a photospread prior to trial and identified him in the courtroom. Therefore, we
conclude that any rational jury could find that the defendant was the individual who shot
Nicholas Harris and Darren Champion. Accordingly, the defendant’s argument is without
merit.

Conclusion

Based on the foregoing reasons, we affirm the judgments of the trial court.

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 ___________________________________
J.C. McLIN, JUDGE

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