State of Tennessee v. Jabari Reynolds

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs January 21, 2016

STATE OF TENNESSEE v. JABARI REYNOLDS

Direct Appeal from the Criminal Court for Knox County
No. 102170 Steven W. Sword, Judge

No. E2015-00499-CCA-R3-CD – Filed March 9, 2017

The Appellant, Jabari Reynolds, was convicted by a Knox County Criminal Court Jury of
first degree premeditated murder, and he was sentenced to life imprisonment. On appeal,
the Appellant contends that the trial court erred (1) by allowing a police officer to testify
regarding recordings of telephone calls the Appellant made while in jail instead of
requiring a telephone company employee to authenticate the calls, (2) by refusing to
instruct the jury on voluntary intoxication, (3) by refusing to give a special instruction
that the lesser-included offense of second degree murder was “homicide in the „heat of
passion‟ without adequate provocation,” and (4) by accepting the jury‟s verdict as
thirteenth juror. The Appellant also contends that he is entitled to relief due to
cumulative error. Upon review, we affirm the judgment of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and CAMILLE R. MCMULLEN, JJ., joined.

Gerald L. Gulley, Jr., (on appeal), and Bruce A. Alldredge and Joe Lodato (at trial),
Knoxville, Tennessee, for the Appellant, Jabari Reynolds.

Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant
Attorney General; Charme Allen, District Attorney General; and TaKisha M. Fitzgerald,
Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

I. Factual Background
 The Appellant‟s conviction stemmed from the shooting death of the victim,
Desean Lowe, following an allegation by the Appellant‟s girlfriend that the victim had
raped her.

Waynisha Hamilton testified that she had known the victim since kindergarten.
Hamilton said that they were friends and that she thought of the victim as her brother. In
May 2013, she moved into a one-bedroom apartment in the Arbor Place Apartments
complex, and the victim lived with her.

Hamilton said that she met the Appellant in March 2013 and that he began staying
with her on July 1. The victim spent the night of July 1 with his mother in Rocky Top,
and he returned to Hamilton‟s apartment on July 2. On the night of July 2, the Appellant
stayed in the living room, and Hamilton and the victim were in the bedroom, “hanging
out” and smoking marijuana.

On the afternoon of July 3, the Appellant, Hamilton, and the victim were in the
living room smoking marijuana when the Appellant received a call from his girlfriend,
Briasha Williams. The Appellant‟s cellular telephone was loud, and Hamilton heard the
conversation. Williams told the Appellant that the victim had raped her, that the
Appellant was “up there with her enemies,” and that she was “going to be laughing when
[the Appellant] come up dead.” While the Appellant was still conversing with Williams,
Hamilton and the victim told the Appellant that the victim had not raped Williams.

Hamilton said that after the call, she and the victim went to “Dajauna‟s house.”
When they returned a short time later, the Appellant was sitting on the couch in the living
room. Hamilton began sweeping the living room floor. The Appellant got up, walked
behind the couch, and stared at Hamilton. She asked the Appellant, “„What‟s on your
mind? Are you good?‟” The Appellant responded either “„[y]eah‟” or “„nothing.‟”
After she finished sweeping, Hamilton walked into her bedroom. The victim came into
the bedroom and said that he was leaving. Hamilton responded that she would leave with
him. She walked into the living room and saw the Appellant sitting on an ottoman in
front of a chair. She told the Appellant that he had to leave the apartment “[be]cause we
ain‟t on no type stuff for Briasha,” and he said, “[O]kay.”

Hamilton walked back to her bedroom, and the Appellant followed her. The
victim was standing facing the bedroom closet near the window. The Appellant pulled
out a gun and began firing. The first shot hit the window, but the next shot hit the victim.
Hamilton ran into the bathroom, hid, and heard the Appellant call her name before she
heard more shots fired. She said that after the shots ceased, she heard the front door
close. She waited in the bathroom until she was certain the Appellant was gone then ran
into the bedroom. She saw the victim lying on his stomach on the side of her bed. She
called his name, and he lifted his head. He was covered with blood.
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 Hamilton said that she ran to a neighbor‟s apartment, asked for help, returned to
her apartment, and called 911. While speaking with the 911 dispatcher, she walked into
the living room and “flipped the TV over.” She said she did not know why she turned the
television over. She remained on the telephone with 911 until the police arrived.
Thereafter, she went downtown with the police to be interviewed.

On cross-examination, Hamilton said that on the night of the shooting, she also
overheard the Appellant‟s telephone conversation with Donna Locklin, Williams‟s
mother. Locklin told the Appellant that Williams had said previously that she had been
raped by the victim. Hamilton denied that the Appellant said he would leave and needed
his toothbrush or that she went into the bedroom to retrieve his toothbrush. Hamilton
said that the victim kept his clothes in the bedroom closet.

Hamilton could not recall how many shots she heard while in the bathroom but
thought it was “[a]bout four.” She said that she turned the television over because she
was frustrated she could not get help for the victim.

Hamilton said that the victim and the Appellant did not fight prior to the shooting.
She had never seen the gun before that night and was unfamiliar with guns; however, she
recalled that the Appellant‟s gun was silver. She acknowledged telling the 911 operator
that “some guy named Jabari did it.” She said that she knew the Appellant but did not
know his last name. She acknowledged that she “hate[d]” the Appellant for killing the
victim.

Michael Alan Mays testified that he was the records keeper for 911 in Knox
County. Mays said that every call into 911 was audio recorded. Information from each
call was entered in to a computer, which then created a Computer Aided Dispatch (CAD)
report. Mays said a CAD report reflected that four calls regarding the incident came into
911. The first call was at 7:56 p.m. on July 3, 2013, from a location on South Hall of
Fame Drive in Knoxville. The calls were played for the jury.

Knoxville Police Officer James Lockmiller testified that on the night of July 3,
2013, he and Sergeant Jonathan Chadwell were working as security officers for Wood
Properties and were on patrol between Arbor Place Apartments on South Hall of Fame
Drive and Ridgebrook Apartments off of Western Avenue. While in “parking lot B” of
Arbor Place, they received a report of shots fired at apartment 398.

They went to the apartment and saw a female sitting on the steps outside the
apartment and crying. They attempted to talk with her, but she was upset and “not very
coherent.” The officers went inside the apartment and discovered a deceased male lying
face down on the floor of the back bedroom. The victim‟s injuries were consistent with
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gunshot wounds. Crime scene technician Beth Goodman arrived and began
photographing and documenting the scene.

On cross-examination, Officer Lockmiller said that when he entered the
apartment, he walked through the area that encompassed the living room, dining room,
and kitchen. He thought the television in the living room might have been overturned but
could not recall any other disruptions. He then walked down a short hallway and into the
bedroom. He noted that the apartment‟s only bathroom was located in the bedroom.
Officer Lockmiller did not see the Appellant on the night of the offense.

Beth Goodman, who worked in the Knoxville Police Department‟s forensics unit,
testified that she went to the scene; met with her supervisor, Sergeant Bryan Dalton; then
began taking photographs of the apartment. Goodman and Sergeant Dalton examined the
back bedroom and took measurements. The victim‟s body was located between the bed
and the wall next to a window. Goodman noticed that a bullet had passed through the
curtain, blinds, and window glass at a point approximately four feet, six inches from the
floor. She found no other bullet holes. The only blood in the room was on the wall next
to the window. Goodman left the apartment and collected a tube of toothpaste and a
toothbrush that were found in the stairwell outside the apartment.

Goodman said that the next day, July 4, she went to the medical examiner‟s office
and retrieved the victim‟s clothing. She also retrieved three bullets that were removed
from the victim‟s body during an autopsy. Goodman said that she “confiscated” one
unfired bullet and a box containing a revolver but did not say when or where the items
were confiscated.

Knoxville Police Officer Eric Heitz testified that around 11:00 p.m. on the night of
the shooting, he received a report of a suspicious person at 230 South Hall of Fame
Drive. Officer Heitz went to The Vistas Apartments complex, which was located “back
to back” with Arbor Place Apartments and saw the Appellant sitting on the ground in
front of apartment 228, talking on a cellular telephone. Officer Heitz asked the Appellant
what he was doing there, and the Appellant responded that he was waiting for his
girlfriend. The Appellant had no identification but said his name was “Jabari.” Officer
Heitz recalled that the police had issued a be on the lookout report (BOLO) for someone
by that name earlier in the evening. At Officer Heitz‟s request, the Appellant ended his
call, telling the person with whom he was speaking, “„I‟ve got to go, Mom. They‟ve got
me.‟”

Officer Heitz handcuffed and patted down the Appellant. He found a Taurus
revolver in the Appellant‟s right front pocket. The revolver was loaded with one live .38
caliber round, and it held five expended cartridges. In the Appellant‟s left front pocket,

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Officer Heitz found a large plastic baggie containing eight, smaller Ziploc baggies which
in turn contained a green leafy substance that appeared to be marijuana.

On cross-examination, Officer Heitz clarified that the Appellant “was sitting on
the ground against the retaining wall opposite the door to Apartment 228.” The area was
well-lit, and the Appellant was dressed in black clothes. Officer Heitz heard the
Appellant speaking on the telephone but was unable to “tell if there was any emotion in
the conversation or anything.” The Appellant was compliant when Officer Heitz took
him into custody. Officer Heitz explained that Townview Drive ran around three
apartment complexes: Arbor Place, Townview Towers, and The Vistas. He said that it
took five minutes to walk between the apartment complexes.

Lisa Knight, the director of the Tennessee Department of Safety and Homeland
Security‟s handgun program, testified that the Appellant had never applied for a handgun
carry permit.

Teri Arney, a special agent forensic scientist with the Tennessee Bureau of
Investigation‟s (TBI) crime laboratory, testified as an expert in firearms examinations.
Agent Arney tested the revolver taken from the Appellant. Agent Arney explained that
the cylinder on the revolver held a maximum of six bullets. After a bullet was fired, the
cartridge case was left inside the cylinder.

Agent Arney said that one unfired .38 caliber hollow-point bullet and five fired
cartridge casings were in the revolver when it was confiscated. The bullet and the fired
cartridge casings were removed by the police and submitted to her office. Agent Arney
determined that all five cartridge casings were fired from the Appellant‟s revolver. Agent
Arney also tested one bullet and two bullet fragments that were retrieved from the
victim‟s body during autopsy and determined that all three had been fired from the
Appellant‟s revolver.

Agent Arney examined the clothing that was removed from the victim‟s body
prior to autopsy. She found no holes in the front of the shirt. On the back of the shirt,
she found four holes: the first was near the seam of the right shoulder, the second was a
few inches down and toward the center of the shirt, the third was directly below the
second, and the fourth was in the lower back area around the center of the shirt. In the
side seam, she found a small hole that may have been a rip or tear.

On cross-examination, Agent Arney explained that “every time you fire the
revolver, the hammer returns to the at-rest position. So your choices at that point are to
manually cock the hammer to fire it in single action or to simply pull the trigger and fire
it in double action.” Three and three-quarters pounds of pressure were required to fire the
revolver in single action, and “a little” over twelve pounds of pressure were required for
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double action. She had no way to discern whether the revolver was fired in single or
double action.

Agent Arney said that because no gunshot residue was found on the victim‟s
clothes, she was unable to estimate the distance from which the shots were fired. She
said that the fired bullets and the unfired bullet “appeared to be the same type and
design.”

Colin McLeod, an investigator with the violent crimes unit of the Knoxville Police
Department, testified that on the evening of July 3, he heard a radio report of a shooting
with an unresponsive victim and proceeded to the scene. Several officers were present
when he arrived. Hamilton, who was “extremely distraught,” was speaking with some
officers. Investigator McLeod arranged for Hamilton to be transported to the police
department for an interview.

He then walked into the apartment and saw members of the Knoxville Fire
Department and Rural/Metro, an emergency medical service, attempting to revive the
victim, but he was deceased. After the crime scene investigators arrived, Investigator
McLeod followed them and examined the scene. The victim‟s body was lying on the
floor between the bed and the wall. He appeared to have injuries to his face, the back of
his head, and multiple gunshot wounds to the back. The police found no gun or shell
casings at the scene.

While at the scene, Investigator McLeod learned that Hamilton had said the
shooter‟s name was Jabari and that his girlfriend was Williams. She later identified the
Appellant from a photograph lineup. The police broadcast a BOLO for the Appellant,
which stated that he was wearing a black or dark hoodie and black pants or long shorts.
Investigator McLeod left the scene to return to his office. En route, he was notified that a
suspect had been apprehended at The Vistas. Investigator McLeod drove to The Vistas
and arrived as the Appellant was being placed into custody.

The Appellant was taken to police headquarters and placed in an interview room.
Investigator McLeod began to interview the Appellant at 12:14 a.m. on July 4, 2013.
Investigator McLeod advised the Appellant of his Miranda rights, and the Appellant
signed a waiver of his rights. Investigator McLeod said that during the initial part of the
interview, the Appellant “hemmed and hawed a little bit.” The Appellant then said he
would tell what happened if he could have a cigarette. Investigator McLeod gave the
Appellant a cigarette and took him to the sally port to smoke. A recording of the
interview was played for the jury.

The recording reflects that the Appellant said he was not staying at Hamilton‟s
apartment and was there that day to visit Hamilton. He said he had been in the apartment
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for approximately ten minutes. He first said that Williams had told him about the rape
two months before the shooting then stated that she had told him about it a week after it
happened. He thought the rape happened some time the previous year. He stated that he
and the victim began fighting in the living room and that the fight continued into the
bedroom. During the fight, the victim hit him in the jaw. He denied that the gun was his,
stating that the victim took the gun from a bedroom closet and that he got the gun after
knocking it from the victim‟s hand. He acknowledged taking the gun with him when he
left the apartment.

The Appellant told Investigator McLeod that before the shooting, he had a “three-
way” call with Williams and her mother. During the call, the Appellant‟s cellular
telephone was “on speaker.” Williams accused the victim of sexually assaulting her
several months earlier, maybe the previous October. The Appellant asked Williams,
“„What do you want me to do? I‟m staring right at him.‟” The Appellant said that he and
the victim began fighting on the couch in the living room. The victim produced a gun,
and he and the Appellant fought for it. The Appellant knocked the gun from the victim‟s
hands and shot at him. The Appellant said that the victim went to the closet for a gun.
The Appellant fought the victim, took the gun, and shot at him in the bedroom.
Investigator McLeod did not see any injuries to the Appellant.

Investigator McLeod said he learned that Locklin was Williams‟s mother. He
spoke with Locklin but never spoke with Williams. Investigator McLeod was unable to
find a report by Williams or Locklin concerning the alleged rape.

On cross-examination, Investigator McLeod said that the Appellant‟s clothing,
which was dark gray or black, matched the description of the suspect‟s clothing.
Investigator McLeod did not notice any stains on or damage to the Appellant‟s clothes,
and the police did not take his clothes.

Investigator McLeod clarified that he was at the scene while it was processed. He
then left the scene, spoke with Locklin, left Locklin, and was en route to police
headquarters when he was advised the Appellant had been apprehended. He estimated
that the Appellant was found a couple of hours after Investigator McLeod left the crime
scene. When Investigator McLeod arrived at The Vistas, the Appellant was being taken
to a patrol car.

Investigator McLeod said that Officer Heitz and Investigator Madison were also
present in the sally port with the Appellant and him. Investigator McLeod recalled that
during the interview, the Appellant said that he and the victim fought in the living room
and the bedroom. Investigator McLeod asked the Appellant numerous questions about
the incident “to see if the story would change.” He maintained that the Appellant first

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said that the fight began in the living room then stated the fight began in the bedroom.
Investigator McLeod thought the Appellant was describing “two separate events.”

Investigator McLeod said that after the interview, he thought that the Appellant
“had known for some time” Williams had been sexually assaulted by the victim and that
it was confirmed during the telephone conversation immediately before the shooting.
Investigator McLeod said the Appellant never acknowledged that he knew “the entire
time” that the victim was the alleged rapist; instead, the Appellant maintained that he
“barely knew” the victim and “only knew his first name.” The Appellant said he “went
for” the victim after he got the gun from the closet. They had a physical altercation,
during which the gun was knocked from the victim‟s hand. At that point, the Appellant
picked up the gun.

Investigator McLeod said that the Appellant asserted the gun did not belong to
him. The Appellant said that he did not leave the apartment with a toothbrush and
toothpaste and did not know how those items came to be in the stairwell.

Investigator McLeod said that Locklin described Williams as “very volatile.”
Investigator McLeod asserted that he “never knew any of the background behind” the
alleged rape.

On redirect examination, Investigator McLeod said that he did not know whether
the rape allegations were true or false.

Lieutenant Steven Patrick with the Knox County Sheriff‟s Office testified that he
was the intake director and keeper of records for the Knox County Jail. Lieutenant
Patrick said that he also “maintain[ed] the records for the jail phone calls.” Lieutenant
Patrick said each inmate was given a unique identification number that had to be entered
when the inmate made a telephone call. Each call was recorded, and the recordings were
kept on servers at Pay-Tel in Greensboro, North Carolina. In order for Lieutenant Patrick
to retrieve a recording, he “would log into a secure web server and download the calls
directly from them to [his] computer.”

Four of the Appellant‟s jail calls were played for the jury. In the first call, the
Appellant spoke with an unidentified male. The men discussed whether the Appellant
should accept a plea bargain if the State should offer one. The male said that it was the
Appellant‟s “word against hers,” meaning Hamilton. The Appellant disputed that
assertion, saying the police had found him with the gun.

In the second call, the Appellant spoke with a woman, later identified as Williams.
They spoke about the length of sentence the Appellant could receive for the offense.
Williams said that the Appellant should have asserted an insanity defense because he was
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“crazy.” The Appellant laughed and said, “I‟m not a girl but I should have killed that
b[**]ch, man, I should have killed that old man, f[**]k that s[**]t.” Williams responded,
“That‟s how I know you crazy. . . . You saying all that on the phone.” The Appellant
said, “They already got me. . . . What else can they do to me? . . . [T]hey going to throw
me in jail?”

During the third call, Williams asked how the police found the Appellant, and he
responded that he was sitting in the hallway. She said, “Didn‟t I tell you to get away
from there, though?” They then discussed a photograph she sent the Appellant, which
showed her and another man. She told him she sent the picture to make the Appellant
mad and explained it was “nobody.” The Appellant told Williams that she had made him
“snap.” She asked, “What?” The Appellant responded, “You know what.” He told her,
“The rest of the s[**]t you was saying was really f[***]ed up.” The Appellant and
Williams argued about whether she had been unwilling to speak with the Appellant,
apparently referencing their telephone conversation prior to the shooting. The Appellant
then said, “I don‟t know. I was high and I was confused and I was kind of like what the
f[**]k. It felt like my back was against the wall.” He said he felt he had no choice but to
“do what [he] did.” She asked why the Appellant talked to the victim after she told the
Appellant to stay away from him. The Appellant said that he did not talk with the victim,
asserting, “I didn‟t even know that was him.” He said that he was not friends with the
victim and that Hamilton, who was friends with the victim, brought him around the
Appellant. Williams asked if Hamilton “had already known what I told you?” The
Appellant responded, “Nah.” Williams asked where Hamilton was when she told the
Appellant what the victim did to her, and he replied that he did not know where Hamilton
was at that time. The Appellant said that the victim was in Hamilton‟s apartment.
Williams reiterated, “Didn‟t I tell you to get away from him?” The Appellant responded,
“No. At . . . the last moment when I found out that was him that you was talking about.”
He said the revelation the victim was the rapist was “unexpected.” The Appellant said
that “Chief Keef”1 began playing in his head. The Appellant said that he went up to “that
motherf[**]ker and hit his ass with it.” Williams asked if the Appellant hit the victim
with the gun, and the Appellant said that he shot the victim but did not hit him. The
Appellant said that he shot the victim four times and that the shots hit the victim in the
face, in the back of the head, and in the back.

In the fourth call, the Appellant told Williams that Hamilton had testified against
him in court. The Appellant thought a better attorney could negotiate a conviction of
second degree murder or manslaughter. Williams said that she did not know why the
Appellant was charged with first degree murder because “it wasn‟t premeditated.” After
a drawn out pause during which the Appellant made an “mmmm” sound, the Appellant
said, “Nah. Nah. It really wasn‟t.” The Appellant said that Hamilton had “switched” the

1
Chief Keef is a rapper.
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story. He theorized that Hamilton‟s testimony was not credible because she admitted she
and the Appellant were smoking marijuana before the shooting. He opined that Hamilton
could have been “hallucinating.” He asserted that Hamilton knew the Appellant had the
gun in the apartment “the whole time.” The Appellant put the gun “under the couch.”
He said that he told Hamilton, who was sitting on the couch, to move, and he “grabbed
the gun under” Hamilton. The Appellant said he confessed because the police had “the
gun and the body.”

Dr. Steven Cogswell testified that he was the deputy chief medical examiner in
Knoxville in July 2013 and that he performed an autopsy on the victim‟s body. Dr.
Cogswell said that he performed a preliminary examination of the body and noticed
blood spatter on the victim‟s shorts and underwear. After the victim‟s clothes were
removed, the only injuries Dr. Cogswell noticed on the front of the victim‟s body were to
the face. Notably, the victim had no “defensive injuries,” such as bruises, cuts, or scrapes
to his forearms or hands, to indicate he had engaged in a fist fight. The victim had a
gunshot wound to his upper lip. Dr. Cogswell opined that the victim was “in the upright
position” when he received the gunshot wound to the face.

Dr. Cogswell found that one gunshot entered the back of the victim‟s head. Dr.
Cogswell found three entrance gunshot wounds and one exit wound in the victim‟s back.
Because of the absence of soot or stippling, he could not estimate definitively the
distance from which the shots were fired but opined the distance was greater than three
feet. One of the bullets struck the victim‟s liver and heart, and another went into his
brain. Dr. Cogswell found blood in the right side of the victim‟s chest, suggesting that
the victim survived at least one minute after the bullet pierced his heart. Because of the
amount of blood in the abdomen, Dr. Cogswell believed the gunshot wound to the head
was the last to occur.

Dr. Cogswell surmised that the victim was bending down or forward when he was
struck in the shoulder, head, and lower back. Dr. Cogswell found a bullet and fragments
inside the victim‟s head and two bullets and fragments in his chest.

Donna Locklin testified on the Appellant‟s behalf. She said that she had known
the Appellant for approximately seven years and that they had a “good relationship.”
They met when Locklin lived in Chattanooga. The Appellant dated Locklin‟s daughter,
Williams, who was fourteen or fifteen years old. Locklin and Williams moved to
Knoxville because of Locklin‟s job. After the move, Williams and the Appellant were
unable to see each other as often as they had before the move. When the Appellant “was
old enough to start coming up” to Knoxville, the Appellant and Williams began seeing
each other more frequently. Locklin said that the Appellant and Williams dated “on and
off” and that in July 2013, “[t]hey were on.”

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 Locklin said that on July 3, 2013, the Appellant called Locklin and asked whether
Williams had been “sexual assaulted.” The Appellant said, “„Tell me it‟s not true.‟”
Initially, Locklin was confused and asked the Appellant to explain. The Appellant said
that Williams recently had told him she had been “„messed with.‟” Locklin responded
that while she was in Nashville for a meeting, Williams had called and said that she had
been sexually assaulted. The Appellant said, “„Oh, man,‟” and hung up.

Locklin said that the Appellant sounded upset and that his voice was “shaky,” as if
he were about to cry. She thought the Appellant was bothered that Williams had not told
him about the assault when it happened. Locklin testified that she thought Williams had
not told the Appellant earlier because “it was just a family thing” and that “it wasn‟t
something that she wanted to share.” Locklin said that the Appellant “found out from
somebody else.”

Locklin said that a week before the shooting, the Appellant had stayed at her
house for a couple of days. Locklin‟s four sons and Williams also lived with her.
Locklin‟s house had three bedrooms, and the Appellant slept on a couch in a back room.
She did not know where the Appellant went when he left her house. When the Appellant
called on July 3, she did not know he was at the victim‟s apartment. She said that she
would have told him to leave because it “wasn‟t a safe place for him to be.”

On cross-examination, Locklin said that the rape occurred shortly before
Halloween 2012 while Williams was spending the night at Zanay Stephenson‟s residence.
Locklin spoke with Stephenson and learned that Stephenson “was in the bedroom when it
happened.” Stephenson told Locklin the assailant‟s first name was “Sean,” but she did
not know his last name. Locklin advised Williams to report the rape to the police, but
Williams refused. Locklin explained that she understood why Williams did not report the
rape, maintaining that the accusation would cause “drama” because Williams did not
know the assailant‟s full name or address. Locklin also did not report the rape. When
asked if Williams was “still upset about the rape,” Locklin responded, “No. She had
moved on.” Locklin said that Williams had left Knoxville and was in counseling.

Locklin said that the day after the rape, some “girls and guys” “kicked . . . [the]
door in” at Stephenson‟s residence and “jumped” Williams. Locklin, who had picked up
her sons and was coming to pick up Williams, arrived at Stephenson‟s residence around
the same time the “girls and guys” were leaving. As the “girls and guys” left, they ran
toward Locklin‟s sons, who apparently had gotten out of Locklin‟s car. The two groups
exchanged gunfire. After the conclusion of the shooting incident, Locklin took her
children home. Upon further questioning, Locklin conceded that she was in the car, did
not see the altercation, and had never seen the victim but that Williams told her the victim
was one of the shooters.

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 Locklin said that although the Appellant did not live at her house, he had “visit[ed]
for periods of time” on several occasions. When Locklin spoke with the Appellant on
July 3, he said that he learned about the rape earlier that day.

Locklin acknowledged she told Investigator McLeod that the Appellant and
Williams were arguing during a “three-way” telephone call that occurred before the
Appellant called Locklin to confirm Williams‟s rape allegations. Locklin said she
initiated the “three-way” call because Williams had changed her telephone number, the
Appellant did not know the new number, and the Appellant called Locklin in an attempt
to contact Williams. Locklin acknowledged telling Investigator McLeod that Williams
did not know who raped her. She explained that she meant Williams knew only the
assailant‟s nickname, which was “Sean.” Locklin said that she and Williams had been
looking for the assailant. When they discovered “all his information,” they planned to
tell the police “so that he could be prosecuted to the fullest extent of the law.” Locklin
said she had called the Knoxville Police Department on the night of the offense but did
not reveal Williams‟s name or make a police report. Locklin merely asked “what we
should do.” The police told her that nothing could be done without knowing the
assailant‟s name. Locklin said Stephenson reported to the police that her door had been
kicked in.

On redirect examination, Locklin stated that on the night of the rape, she learned
that the rapist was someone named “Sean” but that she never heard the name “Desean.”
Until the shooting, she did not know the victim was the alleged rapist. Locklin said that
in October 2012, Williams was seventeen years old.

Locklin said that after she established a “three-way” call with the Appellant and
Williams, she put the telephone down so the Appellant and Williams could talk privately.
Locklin maintained that Williams changed her telephone number frequently.

The Appellant testified that in July 2013, he was nineteen years old and that he
had grown up in Chattanooga. After he moved to Knoxville, he stayed at Locklin‟s
house for a couple of days but left because the house was crowded. He approached a
friend named Ray,2 whose apartment was located in a building near Hamilton‟s
apartment. Ray said that the Appellant could not stay with him because Ray had only
one bedroom and he “had a bunch of kids there.” The Appellant left Ray‟s apartment and
saw Hamilton and the victim. The Appellant said that he did not know the victim and
that Hamilton did not introduce the victim. The Appellant asked Hamilton if he could
stay with her, and she agreed.

2
The Appellant did not know Ray‟s last name.
- 12 -
 The Appellant said that he stayed at Hamilton‟s apartment for three days and that
he slept in the living room. Hamilton sometimes slept on the couch, and the victim
always slept in the bedroom. On July 3, the Appellant smoked seven or eight marijuana
“blunts” but did not specify when.

The Appellant said that Hamilton, the victim, and he were together most of the
afternoon of July 3. The Appellant received a call on his cellular telephone from
Williams. Williams asked the Appellant where he was and what he was doing. He
responded that he was at Hamilton‟s apartment and that they were smoking marijuana.
Williams asked if Hamilton “was around a guy named Sean.” The volume on the
Appellant‟s telephone was “turned all the way up . . . [l]ike it was on speaker, but it
wasn‟t.” The victim heard the question and responded, “„That‟s me.‟” The Appellant
said that at that time, he had not known the victim‟s name and only knew that Hamilton
referred to the victim as her brother. Williams told the Appellant, “„Baby, he raped me. .
. . Sean raped me, baby.‟” The Appellant said that Williams‟s voice was calm. The
Appellant “got quiet” and said, “„He didn‟t rape you.‟” Williams began to get emotional,
and her voice got softer. She insisted that the victim raped her. When the Appellant
expressed disbelief, Williams cried and asked why the Appellant was “taking [the
victim‟s] side.” Williams screamed, “I‟m changing my number, and I hate you,” and she
ended the call. The Appellant said that a “machine came on. Said [the] number wasn‟t
valid or something.” Hamilton and the victim laughed, said Williams was lying, and
denied that the victim had raped Williams. Hamilton and the victim then left the
apartment.

The Appellant said that after they left, Williams sent the Appellant text messages
and called him from “Florida numbers,” saying that she was the Appellant‟s girlfriend
and could not believe the Appellant was siding with the victim. Williams asked why the
Appellant did not believe her. She was crying and screaming. The Appellant said that he
“was high,” had “a lot of emotions running through” him, and was confused.

The Appellant said that Hamilton and the victim returned to the apartment, and the
victim went into the bedroom. Hamilton went into the bedroom then walked into the
living room. She asked the Appellant if he was okay. The Appellant did not respond.
When the victim came into the living room, the Appellant called Locklin. The volume on
his cellular telephone was still loud. The Appellant asked if Locklin knew about a rape
involving Williams. Locklin responded that Williams had called one night and said that
she had been raped. The Appellant asked Locklin if the rapist was someone named
“Sean,” and Locklin said, “Yes.” The Appellant said that he did not know about the rape
before that day. After the Appellant‟s call with Locklin ended, the victim looked at the
Appellant, asked, “„You want some bull[***]t,” and then walked into the bedroom. The
Appellant testified that the victim was “rude” and was “being an [***]hole.”

- 13 -
 The Appellant said that at that time, “it was just so much confusion and upset, and
emotions is running through me. I can‟t really explain it. It was just – it felt – I just felt
like I was being tore, pulled different ways.” The Appellant was angry with himself for
not immediately believing Williams. After the call with Locklin, however, the Appellant
believed that the victim had raped Williams.

The Appellant said that he was “upset” with the victim. Hamilton told the
Appellant to leave, and she walked into the bedroom. The Appellant said that he had a
toothbrush and toothpaste in the bathroom and that he thought Hamilton was “fixing to
get my stuff.” After the shooting, he did not, however, leave the apartment with his
toothbrush or toothpaste.

The Appellant said that when Hamilton and the victim went into the bedroom, his
gun was under the couch cushion. He said that when he began staying at the apartment,
Hamilton did not want the gun “out,” so he gave it to her, and she put it under the couch
cushion. After Hamilton went into the bedroom with the victim, the Appellant got the
gun and walked just past the doorway into the bedroom. The victim was standing near
the closet by the window, and Hamilton was in the bathroom. When the Appellant began
shooting, Hamilton locked the bathroom door. The Appellant fired four or five shots.
When asked where the victim was struck, the Appellant explained, “I know one [bullet]
hit his cheek. He turned around. Some more [bullets] hit him in the back, and he fell,
and I ran.”

The Appellant said he ran “[d]own the street” and through the walkways of other
apartment buildings. His gun was in his pocket, and he did not do “anything with the
bullets.” The Appellant agreed that Officer Heitz found him in the stairwell while he was
on the telephone talking to his mother. The Appellant acknowledged telling his mother,
“„I‟ve got to go. They got me.‟”

The Appellant acknowledged he told Investigator McLeod that before he spoke
with Williams immediately prior the shooting, he already knew the victim had raped
Williams. He further acknowledged he first told Investigator McLeod that “it happened
in the living room, and [he] told [Investigator McLeod] that it happened in the bedroom.”
The Appellant could not remember if he had described the fight as continuous or two
separate fights. Additionally, he told Investigator McLeod that he took the gun from the
victim. The Appellant conceded he told Investigator McLeod that he was not involved in
the shooting. The Appellant testified, however, that he and the victim did not fight and
that the victim never had a gun. The Appellant said that the gun, a .357, belonged to him.
He explained that he lied because he was scared and “didn‟t want to face up to the
consequences” of what he had done. The Appellant asserted that he was telling the truth
at trial.

- 14 -
 The Appellant said that his use of marijuana was “an on-and-off thing.” He had
smoked seven or eight “blunts” that day and was “high.” The marijuana made him feel
confused. The Appellant said that he did not intend to kill the victim but that he was
upset and shot the victim because “[h]e raped my girl.”

On cross-examination, the Appellant conceded that on May 17, 2013, while he
was staying with Locklin and Williams, Williams falsely accused him of committing a
crime. Nevertheless, he believed Williams‟s subsequent claim that the victim had raped
her because the accusation was confirmed by her mother, Locklin. The Appellant
acknowledged that Locklin was not present when the alleged rape occurred. He further
acknowledged he told Investigator McLeod that Williams had told him about the rape
allegation a couple of weeks after the rape; however, the Appellant asserted that was a lie
and that he first found out about the rape on the day of the shooting.

The Appellant said that the victim was not present the first night the Appellant
spent at Hamilton‟s apartment. The victim arrived the second night. He and the victim
did not talk much.

The Appellant said that after he was incarcerated, he called Williams. During one
of their conversations, the Appellant said he was thinking about a song by a rapper named
Chief Keef. The Appellant said that the name of the song was “She said she loved me.”
Williams told the Appellant that she was leaving him because he had not believed her
claim that the victim raped her, and she sent him a photograph of her hugging another
man. Later, Williams told him that the man “wasn‟t nobody” and that she took a
photograph with the man because she liked his car. During the conversation with
Williams, the Appellant said, “„Chief Keef was playing in my head, and then I pulled out
that mother f[****]r and hit his ass with it.‟”

The Appellant conceded that he did not have a permit for his gun.

The Appellant said that he was sitting on the floor in the living room while
speaking with Locklin. After the conversation ended, the victim acted “pretty jerky.”
The Appellant acknowledged that he could have left immediately after Hamilton told him
to leave. Instead, he reached over and got the gun from underneath the couch cushion.
After getting the gun, he “hopped up” and walked to the bedroom. The victim was facing
the Appellant, and the victim “glance[d]” at the Appellant. The Appellant shot him, and
the bullet hit the victim‟s face. The victim turned, and the Appellant repeatedly shot the
victim in the back. The victim fell to the floor.

The Appellant acknowledged that he shot the victim in the back and in the back of
the head. He also acknowledged that the victim was unarmed.

- 15 -
 Based upon the foregoing, the jury found the Appellant guilty of the first degree
premeditated murder of the victim, and he was sentenced to life imprisonment. On
appeal, the Appellant contends that the trial court erred by allowing a police officer to
testify regarding recordings of telephone calls the Appellant made while in jail, by
refusing to instruct the jury on voluntary intoxication and to instruct that the lesser-
included offense of second degree murder was “homicide in the „heat of passion‟ without
adequate provocation,” and by accepting the jury‟s verdict as thirteenth juror. The
Appellant also contends that he is entitled to relief due to cumulative error.

II. Analysis

A. Jail Calls

The Appellant contends that the trial court erred by allowing Lieutenant Patrick to
testify regarding the telephone calls the Appellant made while in jail. First, the Appellant
argues that Lieutenant Patrick was not the person who maintained the physical custody of
the calls. Second, the Appellant asserts that the calls were never properly authenticated.
The State responds that the trial court properly admitted the calls.

Our supreme court has stated that “questions concerning the admissibility of
evidence rest within the sound discretion of the trial court, and this Court will not
interfere with the exercise of that discretion in the absence of a clear showing of abuse
appearing on the face of the record.” State v. McCoy, 459 S.W.3d 1, 8 (Tenn. 2014).
The trial court‟s discretion in determining the admissibility of evidence is generally
circumscribed by the Tennessee Rules of Evidence.

1. Tennessee Rule of Evidence 803(6)

On appeal, the Appellant argues that the trial court erred by allowing Lieutenant
Patrick to authenticate the recordings of the jail telephone calls instead of requiring the
records keeper from the telephone company. Specifically, the Appellant maintains that
Lieutenant Patrick did not maintain physical custody of the recordings of the jail
telephone calls; instead, he accessed the calls from the company where the calls were
stored, namely Pay-Tel in Greensboro, North Carolina. The Appellant asserts that
because Pay-Tel stored the calls, Pay-Tel was the “custodian” for the purposes of
Tennessee Rule of Evidence 803(6). The State responds that the trial court correctly
found that Lieutenant Patrick was the custodian of the jail telephone calls.

At trial, Lieutenant Patrick testified that he was the intake director and keeper of
records for the Knox County Jail and that he “maintain[ed] the records for the jail phone
calls.” He explained that each inmate was assigned a unique twelve-digit personal
identification number (PIN). In order to place a call, the inmate needed to enter his PIN,
- 16 -
say his name, enter the number to be called, and designate whether the call was “a debit
call or a collect call.” After the number was dialed, the inmate had to wait until the other
party accepted the call. The longest call an inmate could make was ten minutes. Each
call was recorded.

Lieutenant Patrick accessed the recordings of the Appellant‟s calls, which were
kept on servers at Pay-Tel in Greensboro, North Carolina. He explained that Pay-Tel
assigned numbers to identify each call. The first two-digit number was a code for the
computer on which Pay-Tel kept the call. The second set of numbers, 5016, was the
identification number Pay-Tel assigned to Knox County. The next set of numbers was a
computer code. The final numbers were the “date format,” which included the four-digit
year, month, day, hour, minute, second. Lieutenant Patrick logged onto a secure web
server and downloaded the Appellant‟s calls to his computer. Four of the Appellant‟s jail
calls were played for the jury.

Defense counsel objected to the admission of the recording of the jail calls. At
that point, the following colloquy occurred:

[Defense counsel:] Lieutenant Patrick‟s already said that
Pay-Tel maintains these records. He logs in through a secure
server. I would argue that Pay-Tel is the custodian of these
records. Lieutenant Patrick can‟t vouch for the authenticity
or any steps Pay-Tel does to maintain the integrity.

[Trial court:] I think when you‟re dealing with
computer files like this, computer records, that the keeper of
the record can be the maintainer of the server, but can also be
the agency that enters the data, and I know we get these Pay-
Tel calls all the time that are routinely recorded down through
Knox County Department. . . .

So I think that Lieutenant Patrick is a sufficient
custodian of the record. I think he has sufficiently
authenticated these records. So I‟m going to allow – over
your objection, allow the audio to be played.

....

All right. And just – I want to make it clear on the
record. The Court‟s finding was . . . that the records actually
are – belong to Knox County Sheriff‟s Department, that Pay-
Tel is just a repository of that, just to clarify.
- 17 -
 Generally, hearsay, which is defined as “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of
the matter asserted,” is not admissible at trial. Tenn. R. Evid. 801, 802. Tennessee Rule
of Evidence 803(6) provides the following exception to the hearsay rule:

Records of Regularly Conducted Activity. – A memorandum,
report, record, or data compilation, in any form, of acts,
events, conditions, opinions, or diagnoses made at or near the
time by or from information transmitted by a person with
knowledge and a business duty to record or transmit if kept in
the course of a regularly conducted business activity and if it
was the regular practice of that business activity to make the
memorandum, report, record, or data compilation, all as
shown by the testimony of the custodian or other qualified
witness . . . unless the source of information or the method or
circumstances of preparation indicate lack of trustworthiness.
The term “business” as used in this paragraph includes
business, institution, association, profession, occupation, and
calling of every kind, whether or not conducted for profit.

This court has noted that

“Rule 803(6) simply provides that the witness be the records
„custodian or other qualified witness.‟ Typically that witness
will be in charge of maintaining records of the particular
business, but other employees or officers or appropriately
informed witnesses could be used as well. The key is that the
witness have knowledge of the method of preparing and
preserving the records. If no witness is available to testify,
the records cannot be authenticated as business records,
unless the parties stipulate to authentication.”

State v. Dean, 76 S.W.3d 352, 365 (Tenn. Crim. App. 2001) (quoting Neil P. Cohen et
al., Tennessee Law of Evidence, § 8.11[11] (4th ed. 2000)).

This court previously examined this exact issue in State v. Dustin Shawn Price,
No. M2012-00117-CCA-R3-CD, 2013 WL 4539034 (Tenn. Crim. App. at Nashville,
Aug. 26, 2013). In that case, the defendant had five or six telephone conversations with
Bobby Spain while Spain was in jail. Id. at *3. The calls were recorded, and the
recordings were stored at “Globel Tel Link.” Id. at *8. A police officer testified at trial
regarding the recordings of the telephone calls. On appeal, the defendant challenged the
- 18 -
admissibility of recordings “because „[n]o custodian of the company that maintains the
jail house recordings testified as the custodian,‟ which meant that „[t]he admissibility of
the evidence did not comply with Rule 803(6).‟” Id. On appeal, this court observed the
police officer testified “that she and a partner were the custodian of the records of the
inmate telephone calls, that they were responsible for pulling the records, and that Global
Tel Link was just the company that had „created the system‟ for the automatic recording
of each inmate‟s telephone call,” and she “agreed that it was analogous to someone using
Quicken software to compile their own records.” Id. This court held that the police
officer‟s “testimony satisfied the requirement for the admission of the recordings under
the business records exception to the rule against hearsay.” Id.

In the instant case, Lieutenant Patrick testified that he was the records keeper for
the Knox County Sheriff‟s Office and that he was responsible for maintaining the
recordings of the telephone calls placed by inmates at the jail. He testified in detail about
the procedures for an inmate to place a call and the manner of recording the calls onto the
server. He also testified about how he accessed the calls. The trial court did not err by
admitting the recordings under Rule 803(6). See Price, No. M2012-00117-CCA-R3-CD,
2013 WL 4539034, at *8; see also State v. Daniel William Davenport, No. M2005-
01157-CCA-R3-CD, 2007 WL 1582659, at *2 (Tenn. Crim. App. at Nashville, May 30,
2007).

2. Tennessee Rule of Evidence 901

The Appellant further challenges the admission of the recordings of his jail
telephone calls, complaining that Lieutenant Patrick Price did not testify that the voice
heard on the recordings was the Appellant‟s. The State responds that “Lieutenant Patrick
properly authenticated the jail recordings under Rule 901(b)(5) by identifying the
[Appellant‟s] voice on the recordings and connecting it to him.” The State notes that
Lieutenant Patrick also testified that the recordings were made in the Knox County Jail,
the Appellant‟s PIN was used to make the calls, and the Appellant stated his name at the
beginning of each call.

Tennessee Rule of Evidence 901 provides that authentication may be made by
“[i]dentification of a voice, whether heard firsthand or through mechanical or electronic
transmission or recording, by opinion based upon hearing the voice at any time under
circumstances connecting it with the alleged speaker.” Tenn. R. Evid. 901(b)(5). “For
authentication purposes, voice identification by a witness need not be certain; it is
sufficient if the witness thinks he can identify the voice and express his opinion.” Stroup
v. State, 552 S.W.2d 418, 420 (Tenn. Crim. App. 1977). The State asserts that Lieutenant
Patrick identified the Appellant‟s voice. However, from our review of the record, we
note that Lieutenant Patrick never testified that he recognized the Appellant‟s voice.

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 Nevertheless, this court has previously recognized that identifying a caller‟s voice
“is not the only means by which an audio recording of a phone call may be
authenticated.” State v. Morris Marsh, No. E2013-01343-CCA-R3-CD, 2014 WL
4366087, at *14 (Tenn. Crim. App. at Knoxville, Sept. 4, 2014). This court explained:

In State v. Hinton, 42 S.W.3d 113, 127 (Tenn. Crim.
App. 2000), a panel of this court held that an audio recording
of a 911 phone call had been properly authenticated when the
custodian of the recording explained the process by which the
recording was “processed and retrieved,” stated the time and
date of the phone call, and the address associated with the
phone number from which the phone call originated.

Id. In the instant case, Lieutenant Patrick described the process for making the telephone
calls. The recording reflects that the caller identified himself as “Jabari Reynolds,” and
the calls were made by an individual with the Appellant‟s unique inmate number. The
trial court found that the recordings were sufficiently authenticated. We agree. See id.;
State v. Travis Boyd, No. W2014-00676-CCA-R3-CD, 2015 WL 9426143, at *17 (Tenn.
Crim. App. at Jackson, Dec. 23, 2015), perm. to appeal denied, (Tenn. May 10, 2016);
State v. Wade Payne, No. W2010-01735-CCA-R3-CD, 2012 WL 134240, at *6 (Tenn.
Crim. App. at Jackson, Jan. 17, 2012).

B. Jury Instruction

The Appellant argues that the trial court erred by refusing to instruct the jury on
voluntary intoxication or that second degree murder “is homicide in the „heat of passion‟
without adequate provocation.”

A defendant has a “constitutional right to a correct and complete charge of the
law.” State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). Accordingly, trial courts
“should give a requested instruction if it is supported by the evidence, embodies a party‟s
theory, and is a correct statement of the law.” State v. Phipps, 883 S.W.2d 138, 150 n. 20
(Tenn. Crim. App. 1994). Moreover, we have previously noted that “[w]e must review
the entire [jury] charge and only invalidate it if, when read as a whole, it fails to fairly
submit the legal issues or misleads the jury as to the applicable law.” State v. Forbes, 918
S.W.2d 431, 447 (Tenn. Crim. App. 1995). “Challenges to jury instructions present
mixed questions of law and fact; therefore, we review challenged instructions de novo
without a presumption of correctness.” State v. Smith, 492 S.W.3d 224, (Tenn. 2016)
(citing State v. Rush, 50 S.W.3d 424, 427 (Tenn. 2001)).

1. Voluntary Intoxication

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 The record reflects that after the State closed its case-in-chief but before the
defense presented proof, the trial court allowed the parties to examine the prospective
jury instructions and suggest changes. Defense counsel stated that he had “seen other
cases or instructions where [the] instruction for second degree [murder] had included
some language about passion but provocation that‟s not adequate. . . . I would ask you to
insert some language that passion could play a role in second-degree murder, but where
the provocation would not be sufficient.” The trial court responded that it was using the
pattern jury instruction for second degree murder but that it would consider altering the
instruction if defense counsel would supply case law. The trial court gave defense
counsel time to research the issue, but defense counsel did not provide any case law in
support of his argument.

The trial court asked if defense counsel had any further suggestions. Defense
counsel responded that he had “no problem with the pattern jury instruction for the
defense of intoxication,” noting that the defense intended to prove the Appellant was
voluntarily intoxicated by smoking marijuana. The State objected, arguing that the issue
was not whether the Appellant was intoxicated but whether the intoxication affected his
ability to form a mental state. The trial court stated that it would consider the issue after
the defense presented proof.

After the defense closed its proof, the trial court revisited the issue of the jury
instructions. Defense counsel argued that the trial court should give the voluntary
intoxication instruction, especially in a first degree murder case, when the accused
presented proof of intoxication. Defense counsel noted that the Appellant testified that he
was high and “not thinking straight.” The trial court responded that in State v. Cameron
Cook, No. E2012-02617-CCA-R3-CD, 2014 WL 689688 (Tenn. Crim. App. at
Knoxville, Feb. 21, 2014), this court stated that proof of intoxication alone did not require
an instruction on voluntary intoxication. This court also stated proof must exist that the
intoxication deprived the accused of the mental capacity to form the specific intent to
commit the crime. The trial court then said:

So we have here proof that the [Appellant] was
smoking marijuana. He did not testify that it prevented him
from being able to form any type of specific intent. He said
that he felt high. He used the word “confused” at times, but
he never once, even in his direct examination, demonstrated
that he wasn‟t able to form intent on what he was doing. The
defense [it] seemed to me was being presented was that he did
this because he was upset. He just found out his girl had been
raped by this particular person.

- 21 -
 And so even though he‟s testified that he smoked
marijuana that day, the Court doesn‟t find that there was any
evidence that he was, in fact, intoxicated by it, and certainly
there wasn‟t evidence that he was deprived of the ability to
form the requisite specific intent of first-degree intentional
premeditated murder here. . . . I don‟t think there‟s sufficient
evidence here for the Court to instruct on that.

Tennessee Code Annotated section 39-11-503(a) provides that voluntary
“intoxication itself is not a defense to prosecution for an offense. However, intoxication .
. . is admissible in evidence, if it is relevant to negate a culpable mental state.” “Proof of
voluntary intoxication is therefore akin to proof of a mental disease or defect that
prevents a defendant from forming the culpable mental state required for the offense
under consideration.” State v. Hatcher, 310 S.W.3d 788, 814 (Tenn. 2010). Our supreme
court has explained that

“[p]roof of intoxication alone is not a defense to a charge of
committing a specific intent crime nor does it entitle an
accused to jury instructions . . . ; there must be evidence that
the intoxication deprived the accused of the mental capacity
to form specific intent. . . . The determinative question is not
whether the accused was intoxicated, but what was his mental
capacity.”

Id. (footnote omitted) (quoting Harrell v. State, 593 S.W.2d 664, 672 (Tenn. Crim. App.
1979)); see Cook, No. E2012-02617-CCA-R3-CD, 2014 WL 689688, at *8 (citing
Hatcher, 310 S.W.3d at 814; Ben Mills v. State, No. W2005-00480-CCA-R3-PC, 2006
WL 44381, at *8 (Tenn. Crim. App. at Jackson, Jan. 5, 2006)).

We agree with the trial court that the Appellant did not present any proof that the
marijuana he smoked impacted his ability to form the mental state required for first
degree murder. Hamilton acknowledged that the Appellant, the victim, and she smoked
marijuana on the day of the shooting. The Appellant contends that Hamilton testified that
the Appellant was “non-responsive” immediately prior to the shooting. From the
Appellant‟s citation to the record in support of this contention, we believe he was
referring to Hamilton‟s testimony that the Appellant stared at her while she was sweeping
and told her that nothing was wrong. Hamilton never stated that either she or the
Appellant were “high.” The Appellant testified that he smoked seven or eight marijuana
“blunts,” that he was “high,” and that the marijuana made him feel confused.
Nevertheless, he testified that he was having “a lot of emotions” because he initially did
not believe Williams‟s rape accusation and that he was “upset” with the victim because
he was acting “jerky.” The Appellant said that he “just reacted.” The Appellant testified
- 22 -
in detail about what happened that day, and no testimony was presented suggesting that
the Appellant was incoherent or that his ability to form a mental state was impacted by
the marijuana. Instead, the Appellant said that he shot the victim because the victim
“raped [his] girl.” Therefore, we conclude that the trial court did not err by refusing to
give the instruction regarding voluntary intoxication. See Hatcher, 310 S.W.3d at 814;
Cook, No. E2012-02617-CCA-R3-CD, 2014 WL 689688, at *8; State v. Christopher R.
Pierce, No. M2005-01708-CCA-R3-CD, 2006 WL 2069415, at *9 (Tenn. Crim. App. at
Nashville, July 26, 2006).

2. Second Degree Murder

The Appellant contends the trial court should have instructed the jury that second
degree murder was “homicide committed under the „heat of passion‟ without adequate
provocation.” The Appellant contends his testimony that he had “a lot of emotions
running through him” and that he was “sad, upset, angry, [and] mad” justified the
instruction. The Appellant complains that the jury instructions did not inform the jury
“what crime is committed when a killing results from a state of passion produced by
inadequate provocation.” The Appellant contends:

If the jury rejected voluntary manslaughter, with its language
about a state of passion produced by adequate provocation,
then the jury may well have concluded that it had to return a
verdict of first-degree murder, because the definition of
second-degree murder did not expressly contemplate a killing
in a state of passion without adequate provocation. Thus, it
was error for the trial court to deny the [Appellant‟s] request
to charge the jury that second-degree murder also included
killing which resulted from a state of passion produced by
inadequate provocation.

The State responds that the trial court correctly instructed the jury regarding second
degree murder.

Initially, we note that the Appellant failed to cite any authority in support of his
contention that the instruction given regarding second degree murder was not proper.
Generally, “[i]ssues which are not supported by argument, citation to authorities, or
appropriate references to the record will be treated as waived in this court.” Tenn. Ct.
Crim. App. R. 10(b); see also Tenn. R. App. P. 27(a)(7). Nevertheless, we will address
the merits of the Appellant‟s complaint.

The trial court instructed the jury on the charged offense of first degree murder
and informed the jury that it was to consider second degree murder only if it found the
- 23 -
Appellant not guilty of first degree murder. See State v. Davis, 266 S.W.3d 896, 904
(Tenn. 2008) (approving the use of “acquittal-first” sequential jury instructions). Thus,
by finding the Appellant guilty of first degree murder, the jury implicitly never
considered the instruction on second degree murder.

Regardless, our supreme court has cautioned that “the constitutional right to a
correct and complete charge of the law includes the right to jury instructions on each and
every lesser-included offense embraced within the charged offense(s) and supported by
the proof.” Id. at 902 (internal quotation marks and citation omitted). In the instant case,
the trial court instructed the jury:

For you to find the [Appellant] guilty of [second degree
murder], the [S]tate must have proven beyond a reasonable
doubt the existence of the following essential elements, and
there are two:

One, that the [Appellant] unlawfully killed [the
victim]; and two, that the [Appellant] acted knowingly.

....

The distinction between voluntary manslaughter,
which I‟ll read to you in just a moment, and [second degree
murder] is that voluntary manslaughter requires that the
killing result from a state of passion produced by adequate
provocation sufficient to lead a reasonable person to act in an
irrational manner. Passion is any of the human emotions
known as anger, rage, sudden resentment, or terror which
render the mind incapable of cool reflection.

....

. . . For you to find the [Appellant] guilty of [voluntary
manslaughter], the [S]tate must have proven beyond a
reasonable doubt the existence of the following essential
elements, and there are three:

One, that the [Appellant] unlawfully killed [the
victim]; and two, that the [Appellant] acted intentionally or
knowingly; and three, that the killing resulted from a state of
passion produced by adequate provocation sufficient to lead a
reasonable person to act in an irrational manner.
- 24 -
 The instructions mirror the statutory definitions of the charged offenses. Tenn.
Code Ann. §§ 39-13-210(a)(1); 39-13-211(a). Further, the instructions given by the trial
court substantially comported with the pattern jury instructions for second degree murder
and voluntary manslaughter. T.P.I.-Crim. 7.05(a), 7.06(a). This court has previously
found the language in the pattern instructions to be “clear and unambiguous.” State v.
Paul Clifford Moore, Jr., No. E2015-00585-CCA-R3-CD, 2016 WL 2865759, at *10
(Tenn. Crim. App. at Knoxville, Jan. 20, 2016), perm. to appeal denied, (Tenn., Sept. 22,
2016); see also State v. Billie Jo Welch, No. E2005-02293-CCA-R3-CD, 2006 WL
2737830, at *14 (Tenn. Crim. App. at Knoxville, Sept. 26, 2006); State v. Ezell Wallace,
No. W2002-00266-CCA-R3-CD, 2003 WL 21643219, at *16 (Tenn. Crim. App. at
Jackson, July 14, 2003). We have examined the jury charge as a whole, and we conclude
that the jury was properly instructed on the offenses of second degree murder and
voluntary manslaughter. The trial court did not err in denying the requested instruction.
This issue is without merit.

C. Sufficiency of the Evidence

The Appellant argues that the verdict was contrary to the weight of the evidence
and the trial court, acting as thirteenth juror, should have overturned the verdict. This
court has observed that once the trial court has approved the verdict as the thirteenth
juror, as it has in this case, our appellate review is then limited to determining the
sufficiency of the evidence. See State v. Burlison, 868 S.W.2d 713, 719 (Tenn. Crim.
App. 1993).

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.
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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).

In order to obtain the Appellant‟s conviction for first degree premeditated murder,
the State was required to prove, beyond a reasonable doubt, that the Appellant committed
the “premeditated and intentional killing of [the victim].” 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 defendant‟s prior relationship to the victim which might suggest a
motive for the killing; (2) the defendant‟s declarations of intent to kill; (3) the defendant‟s
planning activities before the killing; (4) the manner of the killing, including the
defendant‟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; (5) the defendant‟s demeanor before and after the killing, including a calm
demeanor immediately after the killing. See id. at 914-915; State v. Bland, 958 S.W.2d
651, 660 (Tenn. 1997).

In the light most favorable to the State, the proof adduced at trial revealed that the
Appellant had been staying at Hamilton‟s apartment for a couple of days without
incident. On the day of the shooting, Hamilton, the victim, and the Appellant were
together, smoking marijuana. They did not have any problems until the Appellant
received a call from his girlfriend, Williams. Upon learning that the Appellant was with
the victim, Williams accused the victim of raping her and accused the Appellant of being
“with her enemies.” After the call, Hamilton and the victim left the apartment to visit a
friend and returned shortly thereafter. Hamilton told the Appellant that he needed to
leave the apartment, and he agreed. Hamilton walked into her bedroom. The Appellant
reached under the couch cushion, grabbed his gun, which was loaded with six .38 caliber
hollow-point bullets, and followed her. The victim was standing in front of the closet in
the bedroom. The Appellant began shooting at the unarmed victim, and Hamilton locked
herself in the bathroom. The Appellant fired five shots; one bullet pierced the victim‟s
face and multiple bullets pierced his back. The Appellant then left the apartment.
Shortly thereafter, Officer Heitz found the Appellant at a nearby apartment complex,
having a telephone conversation with his mother. When the officer told the Appellant to
end the call, the Appellant said, “„I‟ve got to go, Mom. They‟ve got me.‟” When the

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Appellant was arrested, the police took his gun. Testing revealed that the bullets
retrieved from the victim‟s body during autopsy had been fired from the Appellant‟s gun.

The Appellant does not dispute that he shot the victim. He contends, however,
that he did not possess the requisite intent to commit first degree murder, asserting that he
was under the influence of marijuana. He maintains that Hamilton testified about his
“non-responsive nature . . . after he heard that his girlfriend had been raped” by the
victim, which he argues supports his theory that he was under the influence at the time of
the shooting. The jury heard the proof adduced at trial and determined that the Appellant
was capable of forming the intent to kill the victim. The Appellant acknowledged that he
was upset with the victim because he thought the victim had raped “his girl.” He shot
repeatedly at an unarmed victim, striking the victim multiple times in the back.
Moreover, the Appellant did not seem emotional when he was arrested shortly after the
offense. We conclude that the proof was sufficient for a reasonable jury to find the
Appellant guilty of first degree premeditated murder.

D. Cumulative Error

Finally, the Appellant claims that the trial court‟s cumulative errors warrant the
reversal of his conviction. However, having found that the trial court committed no
errors that warrant reversal of the Appellant‟s conviction, there is no merit to this claim.

III. Conclusion

Based upon the foregoing, we affirm the judgment of the trial court.

_________________________________
NORMA MCGEE OGLE, JUDGE

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