State of Tennessee v. Gerald McEwen

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs October 7, 2014

STATE OF TENNESSEE v. GERALD MCEWEN

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

No. W2013-02692-CCA-R3-CD - Filed April 29, 2015

A Shelby County Criminal Court Jury convicted the appellant, Gerald McEwen, of first
degree premeditated murder and attempted first degree murder. The trial court imposed a
total effective sentence of life imprisonment in the Tennessee Department of Correction. On
appeal, the appellant challenges the sufficiency of the evidence sustaining his convictions
and contends that the trial court erred by denying his motion for a mistrial. Upon review, 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 C AMILLE R.
M CM ULLEN and T IMOTHY L. E ASTER, JJ., joined.

Robert Parris (at trial and on appeal) and Carolyn Sutherland (at trial), Memphis, Tennessee,
for the appellant, Gerald McEwen.

Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Amy P. Weirich, District Attorney General, and Jennifer Nichols and Betsy
Carnesale Wiseman, Assistant District Attorneys General, for the appellee, State of
Tennessee.

OPINION

I. Factual Background

In 2007, the appellant was indicted for the first degree murder of Nicholas Harris and
the attempted first degree murder of Darren Champion. The charges resulted from a
shooting that occurred in the parking lots of a First Tennessee Bank and a Mapco gasoline
station, which were located on Hollywood Street in Memphis. The case proceeded to trial,
and the appellant was convicted as charged. On appeal, this court affirmed the appellant’s
convictions. See State v. Gerald McEwen, No. W2009-00309-CCA-R3-CD, 2010 Tenn.
Crim. App. LEXIS 841, at *1 (Jackson, Sept. 24, 2010). Subsequently, the appellant filed
a petition for post-conviction relief. The petition was granted by the trial court, and the
appellant was afforded a new trial, which is the subject of the instant appeal. On appeal, the
appellant contends that the evidence was not sufficient beyond a reasonable doubt because
the proof was based primarily on unreliable eyewitness testimony and that the trial court
erred by denying the appellant’s motion for a mistrial.

At trial, Earnestine Harris testified that one of the victims, Nicholas Harris (hereinafter
“Harris”), who was also known as Nicholas Powell, was her stepson. Harris was born on
August 10, 1984. In June 2004, Harris was shot in the neck and was paralyzed from the neck
down. Additionally, Harris was unable to speak because “he had a trach in him.” After
Harris left the hospital, he was moved to a nursing home where he remained until July 22,
2005, when he passed away. At the time of his death, Harris had four brothers and a three-
year-old daughter.

Ladarius Weathersby testified that in 2004, he was eighteen years old, he lived in the
Frayser area, and he was friends with Darren Champion, Corry Selmon, Christopher
Williams, Robert Wordlow, and Kevin Swannigan. Around 9:00 or 10:00 p.m. on June 12,
2004, Weathersby, who was in a black, four-door Maxima, drove Wordlow and Swannigan
to Club Flippers, which was located on Hollywood Street. Weathersby did not want to go
in the club, so he went to his girlfriend’s house.

Later that night, Wordlow called Weathersby and asked for a ride home. Weathersby
agreed and drove to the club. However, because there were fights in the parking lot, security
and police officers would not let him enter the lot, and he parked in First Tennessee Bank’s
lot across the street. Weathersby’s car was the first one in the exit lane so that he could easily
turn onto the street. After he parked, he called and informed Wordlow of his location.

Weathersby saw Wordlow and Swannigan exit the club and walk across the street to
the bank. When they reached the bank’s parking lot, Swannigan got into the backseat of
Weathersby’s car, and Wordlow began talking loudly to someone who was standing
approximately three cars behind Weathersby. The windows of Weathersby’s car were up,
and he could not hear what was said. A few seconds later, Weathersby heard a gunshot. He
looked behind him and saw the shooter, whom he identified in court as the appellant,

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repeatedly firing toward the Mapco gasoline station located beside the bank.1 At the time of
the shooting, Weathersby did not know the appellant’s name. Weathersby said that after the
third or fourth shot, Wordlow got into Weathersby’s car, and they drove away. Weathersby
estimated that he heard seven to ten shots.

Weathersby said that he drove Wordlow and Swannigan to Wordlow’s mother’s
house; the men did not talk during the drive. Weathersby did not go directly home but
continued to drive to calm his nerves. While he was driving around, a friend called and
informed him that Darren Champion, a friend with whom Weathersby attended school, had
been shot. Weathersby went to the hospital to check on Champion and learned that he was
in critical condition. Thereafter, Weathersby discovered that Champion had recovered. Later,
Weathersby saw Champion at school, and they talked about the incident.

Sometime after the shooting, Weathersby asked Wordlow who the shooter was.
Wordlow responded that it was “his god brother or his brother, as he called him.” Wordlow
said that the shooter’s nickname was “Q.”

In August 2005, the police contacted Weathersby. At that time, he learned that Harris,
whom he had not known prior to the incident, had been injured. Upon looking at a
photograph lineup, Weathersby immediately identified the appellant as the shooter, stating
that he was certain of the identification. Weathersby told the police that at the time of the
shooting, the appellant was standing near a green Dodge Stratus. Sometime after the
shooting, Weathersby learned that on the Saturday prior to the shooting, Wordlow had been
“jumped” at a pool party in Raleigh; however, neither Weathersby nor Wordlow knew the
identity of the assailant.

On cross-examination, Weathersby said that he left Wordlow and Swannigan at the
club around 10:00 p.m. and that Wordlow called around midnight to request a ride home.

Weathersby said that he gave a statement to the police on August 10, 2005. He
acknowledged that in his statement, he said that he picked up Wordlow and Swannigan at the
club, dropped them off at Mapco, then parked at First Tennessee Bank as Wordlow had
instructed. However, at trial Weathersby asserted that he told Wordlow that he could not
pick them up at Mapco and that he was already parked at the bank. Weathersby also said that
he did not want to go to Mapco because of the fights. Weathersby recalled that Wordlow got

1
An aerial photograph that was an exhibit at trial reveals that the bank and the gas station were
located on the same side of the street. The photograph further reveals that, based upon Weathersby’s
testimony that his car was in the exit lane of the bank’s parking lot facing the street, the gas station was
located to the left of Weathersby’s car.

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into the car after the shooting started. Weathersby said that although the shooting occurred
around midnight, the area was well-lit, and he could see clearly.

Weathersby acknowledged that he spoke with an investigator employed by the
appellant but denied telling the investigator that he was drunk when he spoke with the police
or that he would not recognize the shooter if he saw him on the street. Weathersby told the
investigator that he did not know anything because he did not want to be involved and did
not like talking about the shooting.

Robert Wordlow testified that he graduated from high school in 2004 and that he had
attended school with Weathersby, Swannigan, Champion, and Selmon. Wordlow knew the
appellant, who was older than he, from the neighborhood, and they would sometimes “hang
out” together. He did not believe the appellant knew Weathersby, Swannigan, Champion,
Selmon, or Harris. Wordlow did not know Harris until after the shooting.

Wordlow said that sometime between the end of school and the second week in June
2004, he and his friend Mike attended a pool party hosted by a girl named Georgina. After
Wordlow arrived, a fist fight began on the street. Wordlow tried to break up the fight
because some of the people attending the party, one of whom was Champion, surrounded
Mike’s car and tried to pull Mike out of the car. While trying to stop the fight, Wordlow was
hit in the head twice. After the altercation, Wordlow got back into Mike’s car, and they left.
Wordlow did not recall whether he told the appellant about the altercation but asserted that
the appellant knew of the incident. After the pool party, Wordlow and Champion exchanged
messages via Karen Minor. Wordlow said that he and Champion were not fighting, but
“there was a little bit of something going on between” them.

Wordlow said that on June 12, 2004, Weathersby, who was driving a light green car,
drove Wordlow and Swannigan to Club Flippers; however, Weathersby did not go inside
with them. Wordlow explained that the club was located on Hollywood Street behind a strip
mall directly across the street from First Tennessee Bank and Mapco. Wordlow recalled that
it was dark and “kind of late” when they arrived at the club. Wordlow saw Champion inside
the club, but they did not argue.

Wordlow recalled that the club closed early and that he called Weathersby, who
agreed to give them a ride home. When Wordlow exited the club, he saw the appellant in the
club’s parking lot. He told the appellant he was going to the bank’s parking lot to “get to the
bottom of everything that happened” with Champion at the pool party. The appellant said
that he would go with Wordlow and Swannigan, and they walked across the street.

Woodlow gave conflicting statements about where Weathersby was parked. He

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initially stated that he could not recall, then that Weathersby’s car was the first one parked
in the exit lane of the bank’s parking lot, and finally that Weathersby was parked at Club
Flippers. Wordlow also stated that at some point, he, Weathersby, and Swannigan drove to
Mapco, but his testimony was unclear as to when.

Wordlow said that Weathersby’s car was parked facing the street and that the
appellant was behind them, standing beside a dark green car. Champion was in the bank’s
parking lot, walking away from the Mapco and toward Wordlow. Wordlow was sitting on
the front passenger side window of Weathersby’s car, half in and half out of the car.
Wordlow heard angry “words being exchanged” between the appellant and Champion but
could not make out what they said. The appellant then fired a weapon toward Champion.
Wordlow could not recall how many shots were fired but knew it was more than three. When
the shooting started, Wordlow slid inside the car. Weathersby turned right onto the street and
drove Wordlow and Swannigan to Wordlow’s mother’s house.

Wordlow said that he started getting telephone calls from various people who thought
he was the shooter. He told them he was not involved. Wordlow learned that Champion had
been shot; however, he did not know about Harris’s injuries until later.

Wordlow said that the police did not contact him immediately after the shooting. He
said that he did not contact the police because he feared that some type of physical harm
would befall him. After the shooting, the appellant told Wordlow that he shot Champion
because Champion “had got smart with him. Something of that nature.” Wordlow said that
he felt responsible for the shooting because he thought it occurred as a result of his
altercation with Champion at the pool party. Wordlow lived with the appellant for a while
after the shooting when Wordlow did not “have anywhere else to go.”

Wordlow said that on August 10, 2005, thirteen months after the shooting, he was
contacted by the police. Afterward, he went to the police station and gave a statement. He
asserted that the statement was truthful and that he did not lie to avoid going to jail. While
at the police station, he also looked at a photograph lineup, from which he identified the
appellant as the shooter.

Wordlow acknowledged that “[l]ong after” he gave his statement, he was indicted for
facilitation to commit first degree murder. He later pled guilty to the lesser-included offense
of attempted aggravated assault and received a two-year sentence. He was granted judicial
diversion, which he successfully completed, and the conviction was expunged.

On cross-examination, Wordlow said that he had consistently maintained that the
appellant was the shooter.

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 Wordlow said that while he was at the club, he drank two or three alcoholic beverages
and that he and Champion “exchanged looks.” They did not speak, but Wordlow was
“irritat[ed]” with Champion and wanted “[t]o get some type of understanding as to why the
things that were being said, the things that was getting back to me, what was going on with
it. . . . And if it would have went further, my furthest intention was to fight. I wasn’t armed.
I didn’t have any weapon on me.”

Wordlow said that after Weathersby picked up him and Swannigan, they first drove
to Mapco then, because Wordlow saw Champion in the bank’s parking lot, they drove to
First Tennessee. Wordlow rolled down the window on the passenger’s side and sat half in,
half out of the car. Wordlow “yelled something over to [the appellant,] and he just up and
start[ed] shooting.” After the shooting began, Weathersby drove Wordlow home. Wordlow
did not contact the police because he feared the appellant would harm him. He
acknowledged that one or two months later, he moved in with the appellant. He explained,
“There was no bad blood between us at that time.”

Wordlow acknowledged that he gave a statement to the police on August 10, 2005.
In his statement, he did not mention that Swannigan was present that night; however, he
stated that he and Weathersby met the appellant at Club Flippers.

Darren Champion, whose nickname was “Champ,” testified that at the time of the
shooting, he was seventeen years old. Champion said that on the night of June 12, he went
to Club Flippers with Christopher Williams, Corry Selmon, and Derwin Mosby in Selmon’s
Dodge Stratus. Champion saw Wordlow and Weathersby in or around the club.

Champion said that he, Williams, and Selmon left the club sometime after midnight
and drove across the street to Mapco. Because the parking lot was full, they had to park in
First Tennessee Bank’s lot. Champion and Williams went into the store and bought some
juice. When they exited the store, Champion heard someone say, “[T]here go Champ,” and
then he was shot in the back.

Champion was transported to the hospital by ambulance, and he remained there for
one week. He had two surgeries, one of which was to remove the bullet. His injuries
included a pierced lung and a pierced liver. After surgery, Champion learned that Harris had
also been shot. A little over a year later, Harris died as a result of injuries sustained during
the shooting.

Champion said that he had attended a pool party a few weeks earlier. He heard that
Wordlow had also attended the party and that a fight had broken out; however, Champion
left before the fighting started. Champion did not know that Wordlow was upset with him

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because of the incident at the pool party.

Champion said that he had never seen the appellant prior to the night of the shooting
and that he did not see the shooter or know the direction from which the shots were fired. He
recalled seeing Wordlow, Weathersby, and Swannigan in the bank’s parking lot when
Selmon parked there. Champion denied having a weapon on the night of the shooting.

On cross-examination, Champion said that he was only a few feet away from the
store’s front door when he was shot. He did not hear the shot; he only felt the heat from the
bullet.

Corry Selmon testified that on the night of June 12, 2004, he drove Williams,
Champion, Harris, and Mosby to Club Flippers in his Dodge Stratus. They arrived around
10:00 p.m. and parked in the club’s parking lot. Inside the club, he saw Wordlow and
Swannigan, but they did not speak to each other. After an hour and a half to two hours, he
and his friends left the club and went to Mapco to purchase snacks. Selmon parked in First
Tennessee Bank’s lot next door to Mapco.

Selmon said that after making a purchase, he and Harris exited the store and walked
back to his car, followed by Williams, Champion, and Mosby. Selmon saw Weathersby,
Wordlow, and Swannigan in Weathersby’s car in the bank’s parking lot. He then heard
gunshots. He saw the shooter standing beside Selmon’s car, holding a handgun and firing
in the direction of Selmon and his friends. Selmon heard approximately nine shots. When
the shooting began, Selmon ran and jumped behind some bushes for cover, and Harris went
in another direction. After the shooting stopped, Selmon noticed Harris lying face-down on
the ground. He walked over to Harris, and Harris said that he could not breathe. Selmon told
Harris to get up, but Harris did not move. Selmon turned him over, saw blood coming out
of Harris’s neck, and realized that Harris had been shot. He put pressure on Harris’s neck
and stayed with him until an ambulance arrived. Harris remained conscious and repeatedly
said that he was having trouble breathing.

Selmon said that he did not know the appellant, that he had never seen the shooter
before the incident, and that he would not be able to recognize him. He recalled that the
shooter was a dark-skinned, black male, who was approximately five feet and eight or nine
inches tall and weighed approximately 185 pounds.

Selmon said that one or two weeks before the shooting, he, Harris, Williams, and
Champion attended a pool party at Georgina Parker’s house. Near the end of the party, a
fight broke out. Selmon and his friends were sitting beside his car, watching the fight but not
participating in it. Afterward, Selmon heard rumors that the participants in the fight were

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mad at one another.

On cross-examination, Selmon said that he did not see any fights outside when he
exited the club.

Kevin Swannigan testified that he graduated from high school in 2005 and that he was
friends with Wordlow and Weathersby. One night in June 2004, Weathersby drove
Swannigan and Wordlow to Club Flippers. Swannigan said that he saw Champion, Williams,
and Selmon in the club and that he spoke with Champion, “but nothing unusual happened.”
Swannigan said that they talked about the incident at the pool party and tried to “get to the
bottom of it.” Swannigan thought they had reached an understanding.

Swannigan said that after the club closed, he and Wordlow stood outside the club,
talking with friends. A man whom Swannigan did not know approached Wordlow, and they
talked. Afterward, Wordlow told Swannigan they were going to the Mapco’s parking lot to
meet Selmon and Champion to “come to some kind of understanding.” Weathersby drove
Swannigan and Wordlow across the street and parked in the bank’s parking lot. The man
who had spoken to Wordlow followed them. After they arrived in the parking lot, the man
got out of his car and asked, “[W]hich one is Champ?” Wordlow rolled down the passenger
side window and sat on the window sill. Wordlow pointed to Champion, noting that he was
holding a “juice”. The man began shooting in Champion’s direction. Swannigan said that
the shooting “spooked us all” and that Weathersby drove away.

Swannigan said that sometime after the shooting, he learned that Champion and Harris
had been shot. Over one year later, Harris died from his injuries.

Swannigan said that he was unable to identify the shooter from the photograph lineups
he was shown by the police and that he did not see the shooter in the courtroom.

Christopher Williams testified that he graduated from high school in 2004. That
summer, he, Selmon, and Harris attended a pool party at Georgina Parker’s house. At the
end of the party, an altercation occurred; Williams did not know who was involved in the
altercation.

Williams said that one or two weeks after the party, Selmon drove Williams, Mosby,
Harris, and Champion in his “silver/gray” Dodge Stratus to Club Flippers. They arrived
around 9:00 or 10:00 p.m. and parked at the club. When they left the club, they drove across
the street, parked in First Tennessee Bank’s parking lot, and walked to Mapco. Upon leaving
the store, they began walking back to Selmon’s car. Williams saw a man standing behind a
green Plymouth Breeze that was parked beside Selmon’s car. Williams said that a Plymouth

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Breeze and a Dodge Stratus looked “[j]ust alike.” Williams also saw Weathersby’s black
Maxima parked on the street. The man standing beside the Plymouth asked, “[A]in’t your
name Champ,” and lifted a handgun. Champion began running toward the gas station, and
the man fired one shot. Wordlow, who was in Weathersby’s car, said, “[K]eep busting, cuz,”
and the man continued shooting, firing eight or nine times.

Williams said that after the shooting stopped, he looked around and noticed Harris
lying face-down on the ground approximately ten feet away. Williams approached Harris
and saw that he had been shot in the neck. Williams removed his shirt and pressed it to
Harris’s wound. Harris said, “[Y]ou’re choking me; I can’t breathe.” Williams lessened the
pressure on the wound to allow Harris to breathe and stayed until the ambulance arrived.
Williams later learned that Champion also had been shot. Additionally, Williams learned that
Mosby, who was fifteen years old, had a bullet pass through his shirt but was unharmed.

Williams said that while he was still at the parking lot, Wordlow called him “out of
the blue and said [he] didn’t have nothing to do with that.” Williams responded, “I know you
had something to do with it. Don’t call me no more.” Williams then hung up on Wordlow.

Memphis Police Officer James Butler testified that on the night of the shooting, he
and Officer Andy Dupree were dispatched to the area around Club Flippers because of a
report of shots fired. By the time Officers Butler and Dupree arrived at 12:36 a.m., an off-
duty officer was already there. The scene was “chaotic” with “lots of people running
around.” One of the shooting victims was lying on the ground in the bank’s parking lot,
critically injured and paralyzed from the neck down. Another victim, who had been “shot
in the lower extremity,” was at Mapco. Officer Butler secured the scene, spoke with
witnesses, and turned the case over to the investigative unit.

On cross-examination, Officer Butler said that several other officers arrived around
the same time or shortly after he did. He estimated that twenty people were milling about the
bank’s and gas station’s parking lots.

Officer Andre Muhammad testified that on the night of the shooting, he heard the
report of shots fired in the area around Club Flippers. He was off duty, but he responded to
the scene and parked at the bank. A couple of boys were in the parking lot, crouched over
another boy who was lying on the ground. Officer Muhammad approached and saw that one
of the boys was bleeding from a gunshot wound to the left side of his neck. He learned that
another shooting victim had gone inside Mapco. Officer Muhammad went inside the store
and found that the victim had been shot in the middle of his lower back.

Officer Muhammad said that the victim was lying on the ground in the bank’s parking

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lot and was surrounded by a puddle of blood. A spent shell casing was lying in the blood.

On cross-examination, Officer Muhammad said that the scene “was not chaotic in the
sense that [there were] a lot of people, a lot of pedestrians.” He thought he saw ten to twelve
people at the scene.

Major Stanley Johnson testified that in the early morning hours of June 13, 2004, he
began assisting in the investigation of the shooting. He arrived at the scene at approximately
2:13 a.m.; the victims had already been transported to the hospital. In the bank’s parking lot,
he found one spent round in a puddle of blood. He also found in the driveway of the bank
eight shell casings that had been ejected from a semi-automatic weapon.

On cross-examination, Major Johnson said that the casings were identified as .9
millimeter shells.

Dr. Kenneth Snell testified that he performed the autopsy on Harris’s body. He said
that Harris was shot in the neck; the bullet passed through the sixth cervical vertebra,
resulting in paralysis from the neck down. As a result of the paralysis, Harris developed
complications such as skin ulcerations, bacteremia, septicemia, and pneumonia. Dr. Snell
said that septecemia and pneumonia were the immediate causes of Harris’s death. He
explained, however, that “[h]ad it not been for the gunshot wound, we would not have these
complications and he wouldn’t be dying from these complications.”

The appellant testified that in the early morning hours of June 13, 2004, he was at
home with his thirteen-month-old daughter. His daughter’s mother was Lashanda Stokes.
The appellant acknowledged that he and Ms. Stokes drove a dark green Plymouth Breeze but
said that he did not drive the car on the night of the shooting.

The appellant asserted that he had never been to Club Flippers and that he was not
responsible for killing Harris or injuring Champion. He stated that he did not know the
victims and had never heard their names until he was arrested at his home for his
involvement in the shooting. He said that the police never attempted to interview him.

The appellant said that he moved to Memphis in June 2003 and that he first met
Wordlow, who was a friend of Ms. Stokes’s younger brother, approximately two weeks later.
Wordlow moved in with the appellant sometime around May and June 2005.

On cross-examination, the appellant acknowledged that it was a “six-minute trip”
from his house to Club Flippers.

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 Lashanda Stokes testified that on the night of June 12, 2004, she drove her Plymouth
Breeze to work. Along the way, she dropped off the appellant and the baby at her parents’
house so they could watch television while she was at work. After work, Ms. Stokes went
to her parents’ house between 12:30 and 12:45 a.m.; the appellant and the baby were still
there.

On cross-examination, Ms. Stokes acknowledged that she testified at a previous
proceeding that she left her parents’ house around 12:15 or 12:20 a.m. and went home. She
said that the times to which she had previously testified were incorrect and that her trial
testimony was correct. Ms. Stokes further acknowledged that in her previous testimony, she
did not mention the appellant’s being at her parents’ house but explained that she was not
asked. She said that she told the appellant’s defense counsel that the appellant had an alibi
but that she did not tell the police or the prosecution. Ms. Stokes said that her Plymouth
Breeze was light green in color. The appellant had a Cadillac that was not working at the
time.

Willie Stokes, Ms. Stokes’s father, testified that in 2004, the appellant worked in Mr.
Stokes’s construction business. He recalled that on June 12, 2004, the appellant had to take
care of the baby while Ms. Stokes was at work because everyone else in the family was away
or busy. In particular, Mr. Stokes said that he and his wife were spending the night in the
French Quarter as an anniversary present from their children.

Dr. Jeffrey Neuschatz testified as an expert in the field of eyewitness identification.
Dr. Neuschatz explained that “memory is an amalgamation of all the information we’ve
collected and what we’ve thought about the event and how we’ve edited our memories to
make sense and how we know the world works.” He asserted that a thirteen-month interval
between an event and the identification of a perpetrator would negatively impact eyewitness
identification, noting that “things can happen to you during that time that either makes you
remember the information inaccurately or helps you forget the information.” He said that
stress also tended to reduce the reliability of memory, including identification. He noted a
study indicating that in situations where a weapon was present, people remembered the
weapon and the shooting “better than other aspects of the scene.” Dr. Neuschatz said that
the most important factor in making an accurate identification was “[b]eing able to see the
person that you’re identifying, being able to see their face.” Dr. Neuschatz asserted that the
events of the instant case, namely the length of the incident, the late-night hour of the events,
and the involvement of gunfire, were not “conducive to an accurate identification 13 months
later.”

On cross-examination, Dr. Neuschatz said that he was a psychologist. He clarified
that he was not testifying that people in stressful situations could never make an accurate

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identification, acknowledging that “there are studies that also show that people in stressful
situations do make correct identifications.” However, he gave the following caveat, “the
studies they talk about, people do make correct identifications, but less frequently than they
make incorrect identifications.” Dr. Neuschatz acknowledged that a person could make a
more accurate identification if he or she knew the person being identified.

At the conclusion of the trial, the jury found the appellant guilty of the first degree
premeditated murder of Harris and the attempted first degree murder of Champion. The trial
court imposed concurrent sentences of life imprisonment for the first degree murder
conviction and twenty-five years for the attempted first degree murder conviction. On
appeal, the appellant challenges the sufficiency of the evidence sustaining his convictions
and contends that the trial court erred by denying his motion for a mistrial.

II. Analysis

A. Sufficiency of the Evidence

On appeal, a jury conviction removes the presumption of the appellant’s innocence
and replaces it with one of guilt, so that the appellant carries the burden of demonstrating to
this court why the evidence will not support the jury’s findings. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). The appellant must establish that no reasonable trier of fact
could have found the essential elements of the offense beyond a reasonable doubt. See
Jackson v. Virginia, 443 U.S. 307, 319 (1979); Tenn. R. App. P. 13(e).

Accordingly, on appeal, the State is entitled to the strongest legitimate view of the
evidence and all reasonable inferences which may be drawn therefrom. See State v.
Williams, 657 S.W.2d 405, 410 (Tenn. 1983). In other words, questions concerning the
credibility of witnesses and the weight and value to be given the evidence, as well as all
factual issues raised by the evidence, are resolved by the trier of fact, and not the appellate
courts. See State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).

The guilt of a defendant, including any fact required to be proven, may be predicated
upon direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. See State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.
1999). Even though convictions may be established by different forms of evidence, the
standard of review for the sufficiency of that evidence is the same whether the conviction is
based upon direct or circumstantial evidence. See State v. Dorantes, 331 S.W.3d 370, 379
(Tenn. 2011).

First degree premeditated murder is defined as the “premeditated and intentional

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killing of another.” Tenn. Code Ann. § 39-13-202(a)(1). Premeditation “is an act done after
the exercise of reflection and judgment” and “means that the intent to kill must have been
formed prior to the act itself. [However,] [i]t is not necessary that the purpose to kill pre-
exist in the mind of the accused for any definite period of time.” Id. at (d). Although there
is no concrete test for determining the existence of premeditation, Tennessee courts have
relied upon certain circumstances to infer premeditation. See State v. Pike, 978 S.W.2d 904,
914 (Tenn. 1998). Specifically, the following factors have been used to support a jury’s
inference of premeditation: (1) the appellant’s prior relationship to the victim which might
suggest a motive for the killing; (2) the appellant’s declarations of intent to kill; (3) the
appellant’s planning activities before the killing; (4) the manner of the killing, including the
appellant’s using a deadly weapon upon an unarmed victim, killing the victim while the
victim is retreating or attempting escape, or killing the victim in a particularly cruel manner;
and (5) the appellant’s demeanor before and after the killing, including a calm demeanor
immediately after the killing. See id. at 914-15; State v. Bland, 958 S.W.2d 651, 660 (Tenn.
1997).

A criminal attempt occurs when a person 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(a)(1)-(3).

On appeal, the appellant maintains that the testimony of Swannigan and Weathersby
was “shaky” and that Wordlow and Weathersby “had every motive to lie regarding their
actions in this case and to deflect the suspicion onto someone else.” The appellant asserts
that Dr. Neuschatz’s testimony supports his claim that the eyewitness identification of him
was unreliable. In sum, the appellant challenges the credibility of Wordlow and Weathersby

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and contends that the eyewitness identification is unreliable, particularly in light of his alibi.
In response, the State contends that Weathersby and Wordlow clearly saw and accurately
identified the appellant as the shooter, that additional witnesses testified that the shooter’s
car looked like a car the appellant was driving, and that the State amply proved the
appellant’s guilt. We agree with the State.

Initially, we note that determining the credibility of witnesses is within the purview
of the jury, not this court. See State v. Millsaps, 30 S.W.3d 364, 368 (Tenn. Crim. App.
2000) (stating that “the weight and credibility of the witnesses’ testimony are matters
entrusted exclusively to the jury as the trier[ ] of fact”). In the instant case, the jury clearly
resolved the issue of credibility in the State’s favor. We may not now reconsider the jury’s
credibility assessment. See State v. Carruthers, 35 S.W.3d 516, 558 (Tenn. 2000).

In the light most favorable to the State, the proof at trial revealed that two weeks prior
to the shooting, Wordlow and Champion attended a pool party. During the party, a fight
occurred. Wordlow was hit, and he thought Champion was responsible. The appellant,
whom Wordlow referred to as a “brother,” knew about the incident. After the party,
Wordlow and Champion were not fighting but “there was a little bit of something going on
between” them. On the night of the shooting, Champion, Selmon, Williams, Wordlow,
Swannigan, Mosby, and Harris went to Club Flippers. As they were leaving, Wordlow saw
the appellant in the club’s parking lot, and the appellant asked Wordlow to identify
Champion. After Wordlow pointed out Champion, the appellant drew a handgun and fired
as many as ten shots toward Champion, who was unarmed. Champion was struck in the
back and underwent two surgeries for injuries to his lung and liver. Harris, who was also
unarmed, was shot in the neck and was paralyzed from the neck down. Weathersby and
Wordlow positively identified the appellant as the shooter, saying that the appellant was
standing beside a green Dodge Stratus and that he repeatedly fired in the direction of Mapco.
Williams saw the shooter standing beside a green Plymouth Breeze, which looked the same
as a Dodge Stratus. The appellant acknowledged that he and Stokes had a green Plymouth
Breeze. Wordlow said that after the shooting, the appellant acknowledged shooting
Champion because Champion“had got smart with him.” Thirteen months after the shooting,
Harris died as a result of the complications of his paralysis. Based upon the foregoing, we
conclude that a reasonable jury could have found beyond a reasonable doubt that the
appellant was guilty of the first degree murder of Harris and the attempted first degree
murder of Champion.

B. Mistrial

The appellant next contends that the trial court erred by denying his motion for a
mistrial. The appellant contends that the State’s attempt to impeach him by questioning his

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failure to inform the police of his alibi violated his right to a fair trial under the Fourteenth
Amendment of the United States Constitution. The State maintains that the appellant did not
request a mistrial and that the trial court corrected any error by giving a curative instruction.

During the State’s cross-examination of the appellant, the prosecutor asked him,
“When did you call the Homicide Bureau of the police department and tell them about your
alibi?” Defense counsel objected, and a jury-out hearing was held. Defense counsel said:

I feel like I’m being badgered into asking for a mistrial.
We’re in a place right now where I think our case is in a good
place, but I think the State’s moving to a place that’s so
inappropriate that I’m going to be forced to ask for a mistrial
with those kind of questions.

The State responded that “[t]here [is] nothing inappropriate with asking a witness why
and when he told somebody about the alibi.”

The trial court sustained defense counsel’s objection and admonished the State:

It’s not at this point character. The [appellant] has no duty to do
anything, to say anything, to call the police, to testify, to do
anything. And saying when did you call the police, when did
you do anything to tell them after you’d been arrested about
what happened. And you know that’s inappropriate. You know
that’s improper.

And this is the second time we’ve tried this case and I am
determined it’s going to be tried correctly. And this is – this is
just attack, attack, attack this man instead of asking appropriate
questions. And it’s not going to happen anymore. I mean,
smear him, smear him instead of asking appropriate questions.

....

[P]ut on an officer [to testify that the police] were never given
any information about an alibi. Whatever. It’s not appropriate
to ask the defendant.

The trial court ordered the State to abandon that line of questioning. Before the jury
was brought back in the courtroom, defense counsel said, “Judge, in an abundance of caution,

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I just for the record ask for a curative on that. On the last question. I mean, the bell’s rung.”

The trial court agreed and gave the following curative instruction:

Before we recessed, there was a question asked regarding
why [the appellant] didn’t call the police about any information
he may have had about this case. And I’m instructing you at this
point that [the appellant] never had any obligation to provide the
police with any information. He has always had a 5th
amendment right to remain silent and had no obligation to call
the police about anything. So you’re not to hold that against him
in this case.

A mistrial is a procedural device that is only appropriate when the trial cannot
continue without causing a miscarriage of justice. State v. McPherson, 882 S.W.2d 365, 370
(Tenn. Crim. App. 1994). In other words, there must be a “manifest necessity” for a mistrial
to be declared. State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991). The
party seeking the mistrial has the burden of establishing the necessity of granting the mistrial.
State v. Banks, 271 S.W.3d 90, 137 (Tenn. 2008). In conducting our review of this issue, we
note that this court has previously found that “[t]he decision of whether to grant a mistrial
is within the sound discretion of the trial court. This court will not disturb that decision
absent a finding of abuse of discretion.” State v. Mathis, 969 S.W.2d 418, 422 (Tenn. Crim.
App. 1997) (citation omitted).

Initially, we note that the State correctly asserts that the appellant did not move for a
mistrial. In response to the State’s questions, the appellant’s counsel objected and said that
the State’s questioning might force him to request a mistrial; however, such a request was
never made. Instead of requesting a mistrial, defense counsel asked for a curative
instruction. The trial court sustained the objection and gave the curative instruction. See
State v. Thomas Lee Hutchison, No. E2012-02671-CCA-R3-CD, 2014 Tenn. Crim. App.
LEXIS 346, at *98-99 (Knoxville, Apr. 11, 2014), perm. to appeal granted, (Tenn., Oct. 20,
2014). The appellant appeared to be satisfied with the instruction. Therefore, we conclude
that the appellant has waived this issue. See Tenn. R. App. P. 36(a).

Nevertheless, we note that the trial court’s statements indicated that the State’s line
of questioning deserved admonishment and a curative instruction but did not warrant a
mistrial. We agree and conclude that the trial court did not abuse its discretion by giving a
curative instruction, not granting a mistrial.

III. Conclusion

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 In sum, we conclude that the evidence was sufficient to sustain the appellant’s
convictions and that the court did not err by failing to grant a mistrial. Accordingly, we
affirm the judgments of the trial court.

_________________________________
NORMA MCGEE OGLE, JUDGE

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