State of Tennessee v. Thomas L. Dowlen

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs April 19, 2016

STATE OF TENNESSEE v. THOMAS L. DOWLEN

Appeal from the Circuit Court for Robertson County
No. 74CC3-2012-CR-58 John H. Gasaway, III, Judge
___________________________________

No. M2015-01582-CCA-R3-CD – Filed November 7, 2016
___________________________________

A jury convicted the defendant, Thomas L. Dowlen, of first degree (premeditated)
murder. On appeal, the defendant asserts that the evidence is insufficient to support the
verdict of guilt and that he is entitled to a new trial based on the prosecutor‟s remarks
during opening argument. After a thorough review of the record, we affirm the judgment
of the trial court.

Tenn. R. App. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and ROBERT W. WEDEMEYER, JJ., joined.

H. Garth Click, Springfield, Tennessee, for the appellant, Thomas Lamont Dowlen.

Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Senior Counsel;
John W. Carney, District Attorney General; and Jason White, Assistant District Attorney
General, for the appellee, State of Tennessee.

OPINION

FACTUAL AND PROCEDURAL HISTORY

The defendant shot the victim, Candice Owens,1 in the course of a feud with the
victim and her brother, David Owens. The defendant was charged with both the first
degree (premeditated) murder of the victim and with the reckless endangerment of
Christopher Williams, the victim‟s boyfriend.
1
The victim‟s name is spelled inconsistently in the record. We adopt the spelling used in
the indictment.
 Prior to trial, the defense filed a motion in limine to prohibit the medical examiner
from referring to the manner of death as homicide. The trial court ruled that the medical
examiner could give an opinion on manner of death but that the court “would never allow
the State to refer to it as murder.” During opening statement, the prosecution, in
outlining the anticipated proof, used the word “murder.” The prosecutor stated:

[Witnesses] will tell you how this murder happened – excuse
me, homicide. I shouldn‟t say murder. That is a mistake,
that‟s my fault. How this homicide happened. It is yours to
decide whether it is first degree or second degree. It‟s a
homicide right now. We know that because the autopsy says
that.

No objection was lodged, and no further instructions were given.

The proof at trial included a stipulation that the defendant had been in a long-term
relationship with Lindsey Hankins, and the two had a child together in 2009. Ms.
Hankins left the defendant in the weeks prior to the homicide, and she began a romantic
relationship with Mr. Owens, the victim‟s brother. The victim, Mr. Owens, and the
defendant exchanged text and voice messages regarding Ms. Hankins prior to the
shooting. The messages were not introduced into evidence, but the stipulation
established that the three were “squabbling” via text and voice message.

At the time of the shooting, the victim was in a romantic relationship with Mr.
Williams. The two were habitual users of crack cocaine. Mr. Williams and the victim
would sometimes stay at a motel, but they also occasionally stayed at Kenny Link‟s
residence, which was the site of the shooting. Mr. Link was deceased at the time of trial,
but Mr. Williams testified that he and the victim would either pay Mr. Link or provide
him with drugs in exchange for a place to stay. Mr. Link‟s home was located on Twelfth
Avenue, and there was a path from the back of Mr. Link‟s house to a nearby market.
Across the street from the residence was a vacant lot with some gravel in it, and beyond
the lot was the home of Mr. Randall Holland.

There was evidence introduced at trial that the defendant had recently been to Mr.
Link‟s home and was aware that Ms. Hankins frequented the home. Talisha Harrison
testified that she was living at Mr. Link‟s around the time of the shooting and that the
defendant had stopped by Mr. Link‟s home the morning of the homicide around 10:00
a.m. The defendant, who testified in his own defense, stated that three days prior to the
shooting, he had stopped by the home of Mr. Link looking for Ms. Hankins. The
defendant had heard that Ms. Hankins was selling medication prescribed for the
2
defendant which the defendant used to treat pain for a prior gunshot wound to the leg. He
did not find Ms. Hankins at Mr. Link‟s home on that date.

On June 30, 2011, the day of the shooting, Mr. Williams and the victim were
awoken when the victim‟s brother, Mr. Owens, came to the motel room they had rented.
After a discussion, Mr. Williams and the victim decided to use their remaining money not
to pay for another night at the motel but to purchase crack cocaine and spend time with
Mr. Owens. The three ate lunch and went to Mr. Link‟s home at around 10:00 or 10:30
a.m. All four consumed crack cocaine at Mr. Link‟s residence. Mr. Williams testified
that there might have been other people who dropped by Mr. Link‟s house during the
day, but he did not recall them. Mr. Williams testified that in the afternoon at around
2:50 p.m., Mr. Owens left to go to the market to get beer and cigarettes for himself.

James Pennington spent June 30, 2011, with the defendant. Mr. Pennington called
the defendant sometime after 9:00 a.m. and offered to pay for the defendant to get a
haircut and to buy the defendant gas if the defendant would give him a ride to the house
of his cousin, the barber. The defendant came to pick Mr. Pennington up in the
defendant‟s mother‟s vehicle about thirty minutes later. Mr. Pennington called his
cousin, but his cousin was not at home. The defendant and Mr. Pennington then went to
the house of another of Mr. Pennington‟s cousins, where they smoked some marijuana.

At some time in the afternoon, the defendant‟s mother called and asked the
defendant to bring her some beer. Mr. Pennington offered to pay, and the defendant
drove them to the store. Mr. Pennington testified that as he was going into the store, a
white man came out and kept the door open for him. Mr. Pennington learned later that
this man was Mr. Owens. As Mr. Owens left the store, he and the defendant immediately
began to argue. Mr. Owens approached the defendant, who put out his hands to distance
himself. Mr. Owens, who had a “built up” physique, then punched the defendant. The
defendant grabbed Mr. Owens and Mr. Pennington separated them. Mr. Owens then took
off running down a path behind the market. Mr. Pennington testified that the defendant
also saw where Mr. Owens was headed. The defendant‟s face was swollen where he had
been punched, and he kept saying, “[L]ook at my face.” The defendant drove off quickly
and turned up Twelfth Avenue. The defendant then saw Mr. Williams and the victim on
the porch of a house and hit the brakes, putting the car into park before it came to rest
partially in the gravel lot and partially in the street.

The defendant reached under the seat and took out a gun, which he put into his
pocket. Mr. Pennington stated he had not previously known about the gun. The
defendant walked up to the porch and pulled out the gun. He then shot the victim. Mr.
Pennington testified that the defendant shot the victim twice in the legs. The victim fell,
making a motion to indicate “don‟t shoot me [any] more.” The defendant, after a pause
3
of “a couple” of seconds, then fired several more shots as he stood over the victim.
According to Mr. Pennington, Mr. Williams was off to the defendant‟s side when he
started shooting, and he was not near the direction the gun was pointed. On cross-
examination, Mr. Pennington recalled from his prior testimony that Mr. Williams had
retreated into the house while the defendant was shooting. Mr. Pennington did not hear
the victim or defendant say anything. On cross-examination, he acknowledged having
told police that the defendant asked where Mr. Owens was and the victim responded, but
he testified he no longer recalled the exchange. The defendant, who had a previous
gunshot wound to the leg, could not run, but he moved as quickly as he could back to the
car. Mr. Pennington asked him what he had just done, and the defendant gave him a
“dead” stare and appeared “daze[d].” The defendant drove off quickly, and Mr.
Pennington jumped from the car when the defendant slowed to make a turn. Mr.
Pennington testified that he eventually gave a statement to police. He acknowledged that
his statement to police did not indicate that the defendant shot, paused, and then fired
more shots.

Mr. Williams testified that he, the victim, and Mr. Link were all in the living room
of the home prior to the shooting. Because the front window was boarded up, they could
not see outside without opening the door. Mr. Williams testified that around 3:15 p.m.,
he heard a car hit the gravel in the lot across the street, “like an accident just occurred,”
and he and the victim stood in the doorway to see what had happened. He saw the
defendant driving the defendant‟s mother‟s car, which was a two-tone Chevy, and he saw
James Pennington in the passenger‟s seat. The defendant looked angry, and his jaw was
swollen. The car was facing the house.

Mr. Williams testified that the defendant got out of the car and asked where Mr.
Owens and Ms. Hankins were. The victim gave a “smart” response, asking “[W]hat do
you want[?]” The defendant then said, “Get under the wheel, Bro,” to Mr. Pennington.
The defendant reached across to his left pocket with his right hand and pulled out a .357
or .38 caliber silver-barreled gun. Mr. Williams testified that the defendant, who was on
the top step, then shot the victim, first in the left and then in the right leg, and the victim
fell. When the victim fell, she did not at first fall forward or backward but her legs came
out from underneath her. The defendant then shot the victim three more times. Mr.
Williams testified that the defendant walked with a quickened pace back to the car and
got in the passenger‟s side. Mr. Williams acknowledged that he was focused on the
victim at the time. Mr. Williams “ran around in circles trying to get somebody to call
911.” According to Mr. Williams, no one threatened the defendant, and no one had any
weapons except the defendant. Mr. Link, who remained in the home, was also not armed,
and the back door to Mr. Link‟s home was secured by several knives jammed in between
the frame and door. Mr. Williams acknowledged that he was currently in jail for
violating his probation but stated that he was not gaining anything from his testimony.
4
 Talisha Harrison, who was on probation for an unrelated aggravated burglary, also
testified that she witnessed the shooting. According to Ms. Harrison, the defendant came
to the house in the morning and stayed about five minutes. Sometime after 11:00 a.m.,
Mr. Williams and the victim arrived. The people present in the house all used drugs. Ms.
Harrison did not recall seeing Mr. Owens prior to the shooting. Ms. Harrison testified
that she went to the market near the house to get a beer for the victim, brought it to the
victim, and began to walk across the empty lot to Mr. Holland‟s house. While she was
passing through the vacant lot, a car pulled up ten feet from her, with the driver‟s side
facing Mr. Link‟s home. She identified a photograph of the car belonging to the
defendant‟s mother as the car which pulled up next to her. Ms. Harrison then heard the
victim shout, “Thomas, what are you doing back?” Ms. Harrison testified that the victim
was the only person on the porch. When the defendant was in front of the steps leading
to the porch, he shot the victim in the left leg. The victim fell backward and screamed.
The defendant moved forward to the top of the steps and after a pause of a few seconds,
he began to shoot again, shooting the victim, who was lying on the porch, five times.
The defendant turned around and moved quickly to the car. The defendant had an
“empty” stare as if “no one was there.” Ms. Harrison observed that his cheek was
injured. After the shooting, Ms. Harrison saw Mr. Owens outside, around the side of the
house, shouting “to tell Cand[i]ce he was okay.” Ms. Harrison testified that she believed
the defendant got in the driver‟s seat and that she saw another person in the car. At the
time, she did not know the other person, but during the course of the trial she recognized
him and discovered it was Mr. Pennington. The car “spun off.” Ms. Harrison ran to her
mother‟s house. She did not observe anyone other than the defendant with a gun.

Randall Holland testified that he lived one street over from Mr. Link, on the other
side of the vacant lot. Mr. Holland had a privacy fence through which he could not see
Mr. Link‟s home. When Mr. Holland returned from work in the afternoon, his father, the
victim‟s mother, and another man were in his back yard. Prior to the shooting, Mr.
Holland saw Mr. Owens come into Mr. Holland‟s back yard. Mr. Owens had been
running, was “sweaty,” and was out of breath. Mr. Owens left after three or four
minutes. Mr. Holland was getting a drink of water when he heard five shots. He heard
one shot first and then four back-to-back. Mr. Holland checked on his father and saw the
victim‟s mother run up to Mr. Link‟s porch. He could see that the victim was lying on
the porch bleeding. The victim‟s mother came back, and Mr. Holland gave her a towel
and called 911. He did not see anyone else on the porch but saw a heavy-set African-
American man run out the back door of Mr. Link‟s home and saw the police put the man
in a patrol car.

James Bush was working nearby, thirty-five feet in the air in the bucket of a truck,
fixing an electrical light for the city. He heard three “pops” close together and saw an
5
African-American man holding something in his hand run away from a house and get
into a two-toned car. He saw the victim lying down in the porch but did not see anyone
else on the porch. Mr. Bush took a photograph of the vehicle, which moved off quickly.

The defendant, testifying on his own behalf, generally confirmed Mr.
Pennington‟s account of the morning. He testified that Mr. Pennington called him around
10:00 a.m. and that they had attempted to get a haircut and spent some time at Mr.
Pennington‟s cousin‟s home, where the defendant smoked some synthetic marijuana and
the others smoked marijuana. The defendant‟s mother then called and asked him to get
her beer. Mr. Pennington offered to pay for the beer, and so the defendant went to the
market of Mr. Pennington‟s choice.

The defendant testified that as soon as he pulled in, Mr. Owens came out the door
and began to argue with him. The defendant‟s window was down, and Mr. Pennington
was still in the car. The defendant confirmed that Mr. Owens attempted to get close to
him and he put his hand out to stop him. The defendant glanced at Mr. Pennington, and
Mr. Owens took the opportunity to punch him. The defendant grabbed Mr. Owens and
Mr. Pennington separated them. The defendant stated that an egg-shaped knot was
immediately visible on his face in his reflection on the storefront. Mr. Owens began to
come back, but Mr. Pennington “stepped up,” and Mr. Owens then ran away. The
defendant testified that he was angry, out of his mind, and enraged, and he stated that he
drove off the sidewalk as he left the store. He confirmed that he kept telling Mr.
Pennington to look at his face. The defendant testified that he was not planning to go to
Mr. Link‟s house but that he saw the victim and Mr. Williams on the porch and that he
then made a sliding stop in the gravel lot. He testified that he believed Mr. Owens would
be in the house.

According to the defendant, Mr. Pennington handed him a .357 caliber chrome
gun before he got out of the car. He put the gun in his pocket. As he walked toward the
porch, the victim said, “Thomas, what the f**k are you coming up here for?” He also
stated that he simultaneously asked where Mr. Owens was. He testified that when he got
to the steps as the victim made her statement, he saw “a person‟s shoe start to run across
inside the house.” The defendant stated he did not see who it was, but he could tell it was
a white man and believed it was Mr. Owens. He acknowledged that Mr. Link was also
white and it could have been him. The defendant stated that he was shooting at the
person inside the house and that he heard someone scream as he was shooting. The
defendant testified that he did not realize he had shot the victim and that he did not recall
much after the first shot. He acknowledged that he knew that the victim was standing in
front of the door that he was shooting at. He also acknowledged that he did not see
anyone at the house with a weapon, but he speculated that someone could have had a
weapon.
6
 The defendant stated that he drove off after the shooting. Mr. Pennington took the
gun from him and jumped out of the car with the gun. The defendant acknowledged that
he did not seek medical treatment for his wounds, noting that he was “on the run” and
afraid to go to a hospital. The defendant testified that he regretted shooting the victim.
He also testified that he left because he was scared.

Officer Charles Haynes was dispatched to the scene at 3:30 p.m. and saw the
victim‟s mother, who was deceased at the time of trial, holding the victim and crying. An
ambulance arrived, and the victim was determined to have died at the scene. Mr. Link,
Mr. Williams, and a man named Billy Harrison were interviewed at the scene.

Detective Rickie Morris testified that he investigated the crime. He found the two-
toned maroon Caprice parked by an abandoned house and received the defendant‟s
mother‟s permission to search it. The search turned up an antique gun which was not
involved in the crime and did not appear to function. The defendant testified that the gun
in the back of the car was one he had found at a house when he moved. Law enforcement
searched extensively for the defendant, and he was eventually put on the Tennessee
Bureau of Investigation‟s most wanted list. He was apprehended in Georgia in
September 2011, a few months after the homicide.

Dr. Sandra Thomas testified that the victim suffered six gunshot wounds. A
wound to the victim‟s back which pierced the aorta and pulmonary artery would have
been fatal even with immediate medical attention and would have caused death within
minutes. The victim also suffered another gunshot wound to her back, which pierced her
lung and fractured some ribs. Dr. Thomas stated that this wound could possibly have
been survived if the victim had received immediate medical attention. The victim had a
less serious gunshot wounds on her upper chest, her upper left leg, and her upper right
thigh. Dr. Thomas testified that all of the victim‟s wounds except the one on her right
thigh had stipling, which would indicate the weapon was fired from three to six feet
away. The wound on the victim‟s chest had the most stipling, indicating the weapon may
have been closer when that wound was inflicted. Another wound in the victim‟s left leg
shattered the femur. This wound would be consistent with the victim collapsing and
being unable to stand. All of the shots had a downward trajectory. A bullet was
recovered from the victim‟s right thigh. The parties stipulated that the bullet recovered
from the victim was fired from a .38/.357 caliber firearm. The autopsy revealed that the
victim had cocaine in her system. Dr. Thomas testified that the victim died of multiple
gunshot wounds and that the manner of death was homicide.

Joshua Caldwell, who was incarcerated with the defendant, testified that the
defendant had asked for his legal advice while they were housed together. The defendant
7
told Mr. Caldwell that a man named J.D.2 was to testify against him and asked Mr.
Caldwell if Mr. Caldwell thought that a homicide charge that J.D. had pending in Texas
would affect J.D.‟s credibility. The defendant then asked if Mr. Caldwell knew David
Owens. He told Mr. Caldwell that his case started when he and Mr. Owens “got into it”
earlier in the day and the defendant went looking for Mr. Owens. He told Mr. Caldwell
that Mr. Owens‟s sister came out and “was talking sh*t” and that he “burnt the b*tch.”
The defendant then told Mr. Caldwell he wanted to make it seem as though the victim
had been hit with shots fired from inside the house because the victim had been shot in
the back and leg. The defendant also stated that J.D. had given him the gun used to
accomplish the crime. Mr. Caldwell acknowledged prior felony convictions and stated
that he had testified against his gang, the Aryan Nation, as well as against another inmate
from Robertson County.

At the end of the proof, the defense moved for acquittal. The trial court granted
the motion as it pertained to the reckless endangerment charge, noting that none of the
testimony established that Mr. Williams was in danger of being harmed. The jury
convicted the defendant of first degree murder, and he received a life sentence. The
defendant appeals, alleging that the evidence is insufficient to show premeditation and
that the prosecutor‟s opening statement warrants reversal.

ANALYSIS

I. Sufficiency of the Evidence

The defendant asserts that his conviction must be overturned because the evidence
is not sufficient to support a finding of premeditation. He argues that the trial court erred
in not granting his motion for judgment of acquittal.

In deciding a motion for judgment of acquittal, the trial court must determine the
legal sufficiency of the evidence. State v. Collier, 411 S.W.3d 886, 892 (Tenn. 2013).
“The standard by which the trial court determines a motion for a judgment of acquittal is,
in essence, the same standard that applies on appeal in determining the sufficiency of the
evidence after a conviction.” State v. Little, 402 S.W.3d 202, 211 (Tenn. 2013). A
distinction arises between a challenge to the sufficiency of the convicting evidence and a
challenge to the trial court‟s denial of a motion to acquit only when the defendant
introduces proof after the State rests its case. A motion for judgment of acquittal is
waived if the defendant introduces proof after making the motion. Finch v. State, 226
S.W.3d 307, 316 (Tenn. 2007). When the defendant does not stand on a motion for
judgment of acquittal, the appellate court may then consider evidence introduced after the

2
There was testimony at trial that Mr. Pennington was sometimes called “J.P.”
8
close of the State‟s case-in-chief in assessing the sufficiency of the evidence. See Collier,
411 S.W.3d at 893. The defendant may, of course, still challenge the sufficiency of all
evidence introduced at trial. State v. Gilley, 297 S.W.3d 739, 763 (Tenn. Crim. App.
2008). In this case, the defendant testified after the State rested its case, and on review,
we consider all the proof introduced at trial in evaluating the sufficiency of the evidence
supporting the verdict. Accordingly, the defendant‟s challenge is simply one to the
sufficiency of the evidence.

When a court evaluates the sufficiency of the evidence, it must determine whether,
after considering the evidence in a light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999). This court neither reweighs nor
reevaluates the evidence, nor may it substitute its inferences for those drawn by the trier
of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). “Questions concerning the
credibility of witnesses, 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.” Id. The appellate
court affords the prosecution the strongest legitimate view of the evidence and all
reasonable inferences that may be drawn from it. State v. Pope, 427 S.W.3d 363, 368
(Tenn. 2013). A guilty verdict removes the presumption of innocence and replaces it
with a presumption of guilt, and on appeal the defendant bears the burden of showing
why the evidence is insufficient to support the jury‟s verdict. State v. Franklin, 308
S.W.3d 799, 825 (Tenn. 2010). Circumstantial evidence is sufficient to support a
conviction, and “the circumstantial evidence need not exclude every reasonable
hypothesis except that of guilt.” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012).

In this case, the defendant was charged with first degree (premeditated) murder.
The statute defines the offense as “[a] premeditated and intentional killing of another.”
T.C.A. § 39-13-202(a)(1) (2010). A premeditated act is one “done after the exercise of
reflection and judgment.” T.C.A. § 39-13-202(d). Premeditation requires a finding that
“the intent to kill must have been formed prior to the act itself. It is not necessary that the
purpose to kill preexist in the mind of the accused for any definite period of time.” T.C.A.
§ 39-13-202(d). The statute also specifies that “[t]he 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.” T.C.A. § 39-13-202(d).

Premeditation is a question of fact for the jury‟s determination. State v. Davidson,
121 S.W.3d 600, 614 (Tenn. 2003). It may be established by any evidence which could
lead a rational trier of fact to infer that premeditation was established by the proof as
required by statute. Id. at 615. Courts frequently look to the circumstances surrounding a

9
killing to discern the presence of evidence sufficient to support a finding of
premeditation. State v. Larkin, 443 S.W.3d 751, 815 (Tenn. Crim. App. 2013).

Factors which tend to support the existence of premeditation include: the use of a
deadly weapon upon an unarmed victim; the particular cruelty of the killing; declarations
by the defendant of an intent to kill; evidence of procurement of a weapon; preparations
before the killing for concealment of the crime, and calmness immediately after the
killing. Bland, 958 S.W.2d at 660. The factors listed in Bland are not exhaustive,
however. State v. Adams, 405 S.W.3d 641, 663 (Tenn. 2013). The nature of the killing
or evidence establishing a motive for the killing may also support a conclusion that the
crime was premeditated. Id. Repeated blows, although not alone sufficient to establish
premeditation, may be a relevant factor in determining the existence of premeditation. Id.
Lack of provocation by the victim, failure to render aid, and destruction or secretion of
evidence may also support an inference of premeditation. Larkin, 443 S.W.3d at 815-16
(citing State v. Thacker, 164 S.W.3d 208, 222 (Tenn. 2005); State v. Lewis, 36 S.W.3d
88, 96 (Tenn. Crim. App. 2000)). “Under Bland, shooting a retreating victim alone
provides circumstantial evidence of premeditation.” State v. Dickson, 413 S.W.3d 735,
746 (Tenn. 2013).

Considering the evidence in the light most favorable to the prosecution, we
conclude that a rational trier of fact could have found that the defendant acted
intentionally and with premeditation. The evidence showed that the defendant was
involved in a dispute with the victim and Mr. Owens centered around the defendant‟s ex-
girlfriend. The defendant was aware that his ex-girlfriend was in a romantic relationship
with Mr. Owens and had been spending time at Mr. Link‟s home. On the day of the
shooting, the defendant had a chance encounter with Mr. Owens very close to Mr. Link‟s
home. Mr. Owens immediately assaulted the defendant and began to run down a path
that led to Mr. Link‟s home. The defendant then drove to Mr. Link‟s residence. Before
he exited the vehicle, he put a gun in his pocket. No one else was armed, and the
defendant testified he did not see anyone else with a weapon. The defendant told the
victim and Mr. Williams, who were on the porch, that he was searching for Mr. Owens,
and the victim answered him disrespectfully. Mr. Williams testified that the defendant
told Mr. Pennington to get in the driver‟s seat and then pulled out the gun. Mr.
Pennington, Mr. Williams, Ms. Harrison, and Mr. Holland all testified that there was a
pause between the first one or two shots fired and the remaining gunfire. The witnesses
who saw the shooting testified that the defendant shot the victim‟s leg or legs first. The
victim suffered six gunshot wounds. The defendant then fled, and Mr. Pennington
testified that the defendant had the weapon. The defendant‟s facial expression was
“empty” or “dead.” The defendant later told a fellow inmate that he killed the victim
because she was “talking sh*t.” The evidence, seen in the light most favorable to the
prosecution, shows that the defendant had a grudge against the victim, that he prepared
10
for his confrontation with the victim by putting a gun in his pocket, that he used a deadly
weapon on the unarmed victim, that he administered repeated blows, that he exhibited
calmness after the killing, and that he hid the weapon. The evidence also shows
opportunity for judgment and reflection when the defendant armed himself by putting the
gun in his pocket and when he paused prior to administering the fatal shot. While the
defendant presented evidence supporting a conclusion that he was “out of [his] mind”
with rage after the assault, that he did not seek out the victim, that he believed Mr. Owens
was in the home and might be armed, and that he did not realize the victim was in the line
of fire, the jury was not required to credit this evidence. We conclude that the evidence
was sufficient to support the verdict.

II. Prosecutorial Misconduct

The defendant alleges that the prosecutor‟s reference to “this murder” in his
opening remarks entitles the defendant to a new trial. Prior to trial, the defendant moved
to redact the autopsy report to remove the word “homicide.” The trial court noted that
the report could properly conclude that the manner of death was homicide, but the court
went on to state that whether or not the homicide amounted to “murder” was an issue for
the jury. The court noted that it would not permit the prosecution to use the word
“murder.”

During his opening statement, the prosecutor stated that he anticipated testimony
regarding:

how this murder happened – excuse me, homicide. I
shouldn‟t say murder. That is a mistake, that‟s my fault.
How this homicide happened. It is yours to decide whether it
is first degree or second degree. It‟s a homicide right now.
We know that because the autopsy says that.

As both the defendant and State note, the defense did not object, and any review of the
issue is for plain error.

For an error to constitute plain error sufficient to merit relief, the following factors
must be present: a) the record must clearly establish what occurred in the trial court; b) a
clear and unequivocal rule of law must have been breached; c) a substantial right of the
accused must have been adversely affected; d) the accused did not waive the issue for
tactical reasons; and e) consideration of the error is necessary to do substantial justice.
State v. Bishop, 431 S.W.3d 22, 44 (Tenn. 2014) (citing State v. Adkisson, 899 S.W.2d
626, 641-42 (Tenn. Crim. App. 1994)). Additionally, “the plain error must be of such a
11
great magnitude that it probably changed the outcome” of the proceeding. Bishop, 431
S.W.3d at 44 (quoting Adkisson, 899 S.W.2d at 642). This court need not consider all the
factors if it is clear that the defendant will fail to establish at least one. State v. Jordan,
325 S.W.3d 1, 58 (Tenn. 2010).

The right to make an opening statement is protected by statute, which states that
“all parties to the action shall have the right prior to the presentation of any evidence in
the case to make an opening statement to the court and jury setting forth their respective
contentions, views of the facts and theories of the lawsuit.” T.C.A. § 20-9-301. Opening
statements are not evidence but simply set forth the arguments and theories which will be
relied on by the parties at trial. State v. Van Tran, 864 S.W.2d 465, 475 (Tenn. 1993).
They are “„are intended merely to inform the trial judge and jury, in a general way, of the
nature of the case and to outline, generally, the facts each party intends to prove.‟” State
v. Sexton, 368 S.W.3d 371, 415 (Tenn. 2012), as corrected (Tenn. Oct. 10, 2012)
(quoting State v. Stout, 46 S.W.3d 689, 713 (Tenn. 2001) (appendix) superseded by
statute as stated in State v. Odom, 137 S.W.3d 572, 580-81 (Tenn. 2004)). Opening
argument, like closing argument, must be predicated on evidence introduced at trial and
should only refer to admissible evidence. Sexton, 368 S.W.3d at 415. Opening
statements may not be used “to present speculation and conjecture which is unsupported
by admissible proof.” Stout, 46 S.W.3d at 713.

While the trial court prohibited the prosecution from making any use of the word
“murder” during opening statements, we note that the defendant was charged under a
statute entitled “First degree murder” and that the prosecution could properly use the
word “murder” in reference to the State‟s theory that the defendant was guilty under this
statute. The mere use of the word “murder” in a prosecutor‟s opening statement at a trial
where the defendant is charged under a statute entitled “First degree murder” is not in
itself prohibited, so long as the prosecutor is setting forth the facts and theories which he
or she believes will be supported by admissible evidence at trial. See Sexton, 368 S.W.3d
at 415. The prosecutor‟s reference to a “murder” is improper if it is an expression of the
prosecutor‟s personal belief in the evidence of the defendant‟s guilt. See State v. Goltz,
111 S.W.3d 1, 6 (Tenn. Crim. App. 2003) (quoting Standards Relating To The
Prosecution Function And The Defense Function §§ 5.8–5.9 Commentary (ABA Project
on Standards for Criminal Justice, Approved Draft 1971) (citations omitted); see also
State v. Thomas, 158 S.W.3d 361, 414 (Tenn. 2005) (concluding that opening statements
should not refer to the defendant through the use of epithets but that reference to
defendants as “greed and evil” did not undermine fundamental fairness of the trial).
Here, the prosecutor‟s statement was made in the context of arguing that the State would
present proof establishing the elements of the crime. The use of the word “murder”
should not be prohibited in such an instance. We note that the prosecutor‟s statement was
nevertheless contrary to the trial court‟s order.
12
 “Prosecutorial misconduct during argument does not constitute reversible error
unless it appears that the outcome was affected to the defendant‟s prejudice.” State v.
Thomas, 158 S.W.3d 361, 413 (Tenn. 2005). In evaluating prejudice, the court considers
(1) the conduct complained of viewed in context and in light of the facts and
circumstances of the case; (2) the curative measures undertaken by the court and the
prosecution; (3) the intent of the prosecutor in making the improper statement; (4) the
cumulative effect of the improper conduct and any other errors in the record; and (5) the
relative strength or weakness of the case. State v. Larkin, 443 S.W.3d 751, 813 (Tenn.
Crim. App. 2013).

We conclude that the use of the word “murder” by the prosecution during opening
argument does not entitle the defendant to a new trial. The prosecutor‟s statement was
apparently a reference to the charge against the defendant: “First degree murder.” See
T.C.A. § 39-13-202(a). As we have noted above, the prosecutor should not have been
prohibited from using the word “murder” in this context. The prosecutor, aware of the
trial court‟s order, attempted to undertake immediate curative measures, telling the jury,
“That is a mistake, that‟s my fault.” While these curative measures may have been
incomplete in that the prosecutor, in correcting himself, only presented the jury with the
options of “first degree or second degree,” the defendant did not object or ask for further
instructions. The defendant does not argue that the prosecutor had ill intent, and we
perceive no other errors at trial. The case against the defendant was strong; he
acknowledged having shot the unarmed victim. We conclude there was no prejudice.
Neither does it appear that any error “probably changed the outcome” of the proceeding.
Bishop, 431 S.W.3d at 44. We conclude that the defendant is not entitled to relief on this
issue.

CONCLUSION

Based on the foregoing analysis, we affirm the judgment of the trial court.

____________________________________
JOHN EVERETT WILLIAMS, JUDGE

13