### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs D ec em be r 6, 200 5
STA TE OF TEN NES SEE v. AL M. WILLIAM S
Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty No. 01-12970 Joseph B. Dailey, Jud ge

No. W2004-01679-C CA-R 3-CD - F iled Janu ary 30, 2006

T h e d e f en d an twa s co n v i ct ed o f a t t em p t ed s ec o n d d egr ee m u rd eran d s en t en ce d as a R an ge II , multipl e offe nder to c onfinement for nineteen y ear s to be serve d consec utively to tw o p ri or sentenc es. I n his appea l, he ar g ues that the trial c ourt err ed in allowing hear say testimonyas to the desire of one of the witnesses, prior to the inc ident, to leave the house whe re the offe nse occ urre d, and that the e vidence is insufficient t o sustain the conviction. Following our re view, we aff irm the judgme nt of the trial court. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed
A L AN E. G L EN N , J ., delivere d the opi nion of t he court, in which T H O M A S T. W O O D A LL and R O BERT W. W EDEMEYER , J J ., joined.
John Ca nd y , M e mph is, Te nn e sse e , f or the app e lla nt, Al M. Willi a ms.
Pa ul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; B ri a n Cla y John so n, As sis ta nt At torne y Ge ne ra l; Wil liam L . Gibbons, District At torney Gene ral; and Stephe n P. J ones, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee
. OP IN ION
Terry Don DeShields, the victim, testified that he w as twenty -five y ear s old an d t h at, on September 26, 1998, he had bee n at the house of hi s cousin, Mario Collins, at 3018 Chelsea Ave nue in Memphis. The nig ht before , the victim a nd the def endant ha d a “c onfrontation” at the residenc e. At “11:00/12:00 o’clock tha t morning,” the def endant g ot into an arg ument with a woman w ho was at the house with him, because she wa nted to leave . The victim explained that he and the defe ndant g ot i nto a “ tus sle ” :
A Ba sically , it really was a bout that he wouldn’t calm down afte r we ended up letting he r lea ve. He was . . . kind of upse t about it. And he wouldn’t calm down, and we ended up tussling – he ende d up ripping the cha in off my neck.-2-

Q Okay . You s aid, “W e ende d up tussling.” De scribe to the jury what y ou wer e tus sli ng – w ha t it

wa s.
A Ba sically

I was trying to hold him down as m ybrother le t her out. I was tr y i n g t o h o l d h i m d o w n
. H e w o u l d n ’ t c a l m d o w n
. A n d

. . . I d o n ’ t kn ow wh a t it was, but he just wouldn’t calm down. And in the middle of the tussling, he ended up y anking my

chain of f my neck.
The victim said that he “punche d” the defe ndant “a quick couple of times” and the de fenda nt struck him “[i] n the fa ce one time.” The victim’s brother broke up the fight and the defenda nt then stay ed in a ba ck room for “about a n hour” until Colli ns returne d with the defe ndant’s truc k. After Colli ns had come into the house, he went to the rea r, whe re the defe ndant was, a nd appar ently spoke wi th h im, a c c or din g to the vic tim :

And he we nt to the back , an d I gu ess he talked to [ the def endant], and [the defe ndant] came ba ck to t he fr ont room; and, y ou know, he a pologized about . . . how he wa s acting , and he a

pologized for

brea king my neckla ce, and he told me that morning we we re g oing to g o g et it fix ed or w e we re g oing to g et another one.
The de fendan t ’s apolog y was made at about 2:00 a.m., and, at the time, he see med to be “fine ” to the victim, who ac cepte d the apolog y . The victim contin u ed t o s i t on the couc h and the defe ndant re turned to “his bedr oom.” The vic tim fell as l ee p o n the couc h and wa s awakened a s Col lin s w a s ta lki ng wi th the de fe nd a nt, wh o w a s c omi ng ba c k in to th e ho us e . T he vic tim re me mbe re d th e de fe nd a nt the n s ta nd ing ov e r h im:

The ne x t th i n g I ca n remember is that I could fe el somebody

standing over me. You know how y ou just be so sleepy . . . y ou don’t wake up, y ou don’t think of thin g s , b u t y o u ju s t f

e e l c e r ta in th in g s o r li k e c e r tain p e o p le w a lkin g p a s t y ou and stuff. B ut I could fee l some body standing over me . And the next thing, y ou know, . . . I could hea

r [Col lins] asking him what he wa s standing ove r me for

. Th e v i c t i m h e ar d t h e d e f e n d a n t s a y , “ Y o u ’ l l n e v e r p u t y o u r h a n d s o n m e a g a i n , ” a nd fe lt so me thi ng hit

him in the he a d c a us ing him

to “ blank [] out

fo r a min ute .” Ne xt, he hear d “ pe op le hollering and people moving,” telling him that he had been shot. He sa id that he had done nothing to p ro vo ke the de fe nd a nt “ [u]nl e ss i t w a s p e rt a ini ng to w hat ha pp e ne d e arl ie r that ni g ht. ” Th e vic tim said that he “couldn’ t ge t up.” The ne x t thing the victim re membere d was “ being hauled outside on a stretc her.” He said that he had not been able to move hi s leg s since that night, but he could “ move [hi s] toes a littl e bit.” He wa s hospitaliz ed at The Med for “a month/month and a ha lf” a nd was then transfe rre d to Ba

ptist Hospital, wher e he re mained for two months. He told police offic ers that he had bee n hit in the head and shot by the def endant.
On c ro ss- e xami na tio n, the vic tim sa id that he ha d kno wn the de fe nd a nt f or “ a g oo d c ou ple of months” bef

ore the shooting a nd “kind of looked up to him.”-3-

Roderick McNa iry , the victim’s brother, testified that he was with the victim on September 26, 1998, at his g randmother ’s house, which Colli ns rented. H e said that he , Colli ns, the victim, and the de fe nd a nt s pe nt the nig ht b e fo re the sh oo tin g a t th e re sid e nc e
. Th e tr ou ble be tw e e n the vic tim and the de fenda nt started ar ound 9:00 or 10:00 p.m. when the defe ndant “had a li ttle friend over ther e with him that . .

. [was] supposed t o have been his littl e play mate.” McNa iry said the fight “started fr om the fe ma le frie ndthat he ha d o ve r. An d s he wa nte d to leave the ho us e , b ut [the de fe nd a nt] wo uld n’ t le t he r l e a ve
. . . b e c a us e
. . . s he sa id s he wa sn ’t goin g on o ra l se x, I g ue ss, to h is perf ection.” Mc Nairy

said that the woman “ was c ry ing and scar ed” and the de fe n d an t was “ very ang ry .” The victim tried to calm the def endant down and “some kind of way [t he def endant] ended
u p b r e ak in g [t h e v ic ti m’ s ] n e c k la c e
. ” A s M c N a iry w a s h o ld in g th e v ic ti m, th e d e f endant wa s “consta ntly

try ing to g et” at t h e victim . Eventually , the def endant a pologized to the victim, but McNa iry did not “think he meant it.” The defe ndant and the victim a g ree d to g et t h e necklace re pa ir e d. Mc Na ir y

fe ll a sle e p a nde xpla ine d h e wa s a wa ke ne d b y a g un sh ot andsa w that th e vic tim had bee n wounded:

That morning – well, the morning I reme mber, I

was a sleep, a nd I

just heard a g un sh ot. An d w he n I

. . . wo ke up – Te rry , my br oth e r, is ly ing be sid e me . I ’m in th e r e c li n in g c h a ir

. [T h e d e f e n d a n t] w a s s tan d in g r ig h t th e r e in f r o n t of me with a g un in his hand.
McNa iry saw the de fenda nt pointing a pistol at the victim, who still was aslee p on the couc h. Acc ording to McNairy , the def endant sa id, “‘L ook at what y ou made me do.’ And he g rabbe d – there was a liquor bottle on the table. He g rabbe d it and ran out the door .” Collins pull ed the c overs f rom the victim, raised his shirt, and they saw “ a littl e dot right up under his arm, and [they ] knew he had been shot.” McNa iry

ran acr oss the street to c all an ambulance and then returne d to the victim, who said he “ couldn’t fe el his leg s.”
L ieutenant William Bolner of the Memphis Police Depa rtment testified that the victim had alre ady b ee n t ransported to The Med w hen he a rrived on the scene . The witnesse s named the defe ndant and sa id that he was r esponsible for the shooting. Kimberly Tanzy testified t hat s he was the keeper of the re cords f or Division V of the Shelby CountyCriminal Court and that, acc ording to the rec ords, the def endant c ame into t he custodyof the State of Tenne ssee on F ebrua ry 26, 2002, afte r being extradited from Arkansas.
Th e de fe nd a nt te sti fi e d tha t on the da y of the sh oo tin g , he wa s livin g in the ho us e wh e re it occur red. H e said that the vic tim came to the house “ al l t h e t ime” and that the victim “had a g un every time” he came
. The defenda nt said that, on the day of t he incident, the vi ctim and his brother wer e “me ssing with” a n “old lady named [M] om,” who had c ome “t o p i ck up something .” The defe ndant, the victim, and his brother all had bee n drinking and smok i ng marijuana . After the defe ndant had instructe d the two of th em t o “l eave that lady alone,” they

pushed her

out the door. I n r e sp on se to the de fe nd a nt’ s c omp la int s a bo ut h ow he w a s tr e a tin g the old e r w oman, the vic tim said, “F uck that, I ’ll do it to y ou.” The n, the victim struc k the defe ndant, who hit him back, a nd the-4-

victim’s brother br oke up the fig ht. The defenda nt descr ibed how he and the vi ctim beg an fig hting ag ain:
A We was [ sic] sitti ng there

. Me and him was [ sic] still , y ou know, ar g uing, of f and on. And I

g ot up to ge t something e lse to drink, and he said, “ You try to drink up every thing.” And then I came back in there and stepped back down; and I had sat on the e ndof

the c ou c h b y

him , a ndhe sa id, “ Ma n, g e t y ou r a ss u p, ” jus t li ke that. And I g ot up. And at that time, that’s when . . . [the victim] s truck me a g ain. Q All rig ht. Then wha t happene d?
A He ke pt striki ng me
. He kic ke d me in the sto ma c h a ndthe he a d – kic ke d me and just pretty

much, . . . he ha d his way with me.
As the y we re fi g hti ng , the vic tim ’s br oth e r pu lle d ou t a g un a nd dis play e d it to the de fe nd a nt, who stepp e d b a c k a n d a ll o w e d th e v ic ti m to c o n ti n u e h it ti n g h im

. T h e y th e n s a t b a c k d o w n and beg an watching television ag ain. The de fenda nt told the victim t hat he would repair the victim’s neckla ce w hich had be en broke n during the fight. The defenda nt got up f rom the couc h, someone came to the door, and the victim struck the def endant a g ain, telling him to sit down. Subsequently , the def

endant we nt to a bedroom and we nt to sleep. He a rose the ne x t morning and irone d his clothes to go to the ba rber shop. He ne eded g as money fo r his truck, so he a sked Col lin s f or $1 0. As the de fe nd a nt w a s a bo ut t o le a ve the ho us e , th e vic tim c ha lle ng e d h im:
Ye ah

. He j u mp ed u p an d s ai d , “W h er e in t h e he l l d o y o u t h i n k y o u ’r e go i n g; a ndI do n’ t kn ow wh e re in the he ll y ou thi nk y ou ’r e g oin g .” I sai d, “Man , Ig ot t o work if y ou want me to pay y ou y our money , man,” just like that. And he wa s like, “You a in’t g oing now here . He r etch [sic] up t he ke y s , an d at that point, I rea ched back a nd g ot a bottle off of the table. He rushed in g oing to wa rd s the livingr oom wher e the g un was.
The de fenda nt said that the victim retrieve d a pistol from underne ath the couc h and the de fe nd a nt “ g ra

bb e d p art of it. ” He e xpla ine d h ow the vic tim wa s sh ot:
I ’m aro un d th e oth e r s ide a lmo st u p u nd e r h im l ike , bu t he was g oin g thi s way , a ndI

c a me aro un d li ke up un de r l ike , a ndI c ou ld s e e the g un becaus e I c ou ld se e it w he n h e sp in [sic ] it. F ina lly I g ra bb e d it – g ot m y

ha nd s o nto it. He ha d h is hands onto the other end. I snatche d it real ha rd, and the g un went off

, and I helped him down to the – laid him down on the couch; and I said, “Oh, ma n, look what y ou ma d e me d o
. ” A n d a t th a t t im e , I e xit e d th e h o u s e a n d w e n t an d th r e w th e g u n [. ]-5-

The victim’s brother

then told the defe ndant to leave the house, whic h he did. The de fenda nt said that he “ threw the g un in the bushes rig ht out in f ront of the house” and that he lef t because he was on pa role a nd was not supposed to be in Memphis or be around a wea pon. AN AL YSI S
I. Su ff iciency of the Evid ence
On app e a l, the de fe nd a nt ar g ue s tha t the e vid e nc e wa s suf fi c ie nt fo r the jury to fi ndhim g uil ty of attempted voluntary

manslaug hter, but not of attempted se cond deg ree murder.
I n considering this iss ue, we apply the fa miliar rule that whe re suf ficienc y of the c onvicting evidenc e is cha lleng ed, the r eleva nt question of the revie wing court is “whe ther, a fter vie wing the evidenc e in the lig ht most fa v o ra b le to the prosec ution, any rational trier of fa ct could have found the essential e lements of the crime bey ond a re asonable doubt.” J ackson v. V irg inia, 443 U.S. 307, 3 1 9 , 9 9 S

. C t

. 2 7 8 1 , 2 7 8 9 , 6 1 L

. E d

. 2 d 5 6 0 , 5 7 3 (1 9 7 9 ); s ee al s o T en n
. R

. Ap p
. P

. 1 3 (e ) ( “F i n d i n gs of g uil t in c ri min a l a c tio ns wh e the r b y the tr ia l c ou rt or ju ry sh a ll b e se t a sid e if the e vid e nc e is insufficient to support the finding s by the trier of fac t of g uilt bey ond a re asonable doubt.”); State v. Ev a ns , 8 38 S.W. 2d 18 5, 19 0- 92 (T e nn . 199 2) ; Stat e v. An de rs on , 835 S.W. 2d 60 0, 60 4 ( Te nn . Crim. App. 1992). All questions involving the c redibility of witnesses, the w eig ht and value to be g iven the evidenc e, and a ll factua l issues are resolved by the trier of fac t. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn

. Crim. App. 1987). “A g uiltyverdic t by the jury , approve d by

the trial judg e, acc redits the testimony

of the witnesse s for the State a nd resolves a ll conflicts in favor of the theory of the State.” Sta t e v
. Gr ace, 493 S.W.2d 474, 476 (Tenn. 1973). Our supr eme c ourt stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and the jury see the witnesses fa ce to f

ace , hear their testimony and observe their deme anor on the stan d. Th us the tr ia l ju dg e a ndjury are the prima

ry ins trume nta lit y

of jus tic e to determine the weig ht and credibility to be g iven to the testimony of witnesses. In the trial forum a lone is there human atmosphere and the totality of t he evidence c annot be re pr od uc e d w ith a

writt e n r e c or d in thi s Co urt. Bolin v. State, 219 Tenn. 4, 11, 405 S.W .2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464, 370 S.W .2d 523 (1963)) . A jury conviction re moves the pre sumpt ion of innocenc e with which a defe ndant is initi ally

cloake d and re place s it wi t h o n e o f gu ilt, so t hat on appe al, a c onvicted defe ndant has the bur den of de monstrating that the evidenc e is insuff icient. See State v. Tug g le, 639 S.W .2d 913, 914 (Tenn. 1982)

. At th e time thi s c ri me wa s c omm itt e d in 19 98 , s e c on d d e g re e mur de r w a s d e fi ne d a s a “knowing killing of a nother.” T enn. Code Ann. § 39- 13-210(a )(1) (1997). The Sentencing Com mis sio n Comme nts no te that this se c tio n “sh ou ld al way s be re a d in c on jun c tio n w ith the fi rs t deg ree murder, voluntary manslaug hter and criminally neg lige nt homicide statutes.” I d., Sentencing-6-

Com mis sio n Cm ts. B oth se c on d de g re e mur de r an d volu nta ry ma ns laug hte r ar e “ kn ow ing ” kil lin g s. Voluntary

manslaug hter is a lesse r-include d crime of sec ond deg ree murder that involves the mitigating elements of the defe ndant’s “state of passion produce d by adequate provoc ation sufficie nt to lead a r easona

ble per son to act in an irr ational manner .” Te nn. Code Ann. § 39-13-211( a). It was a question for the jury whether the defe ndant’s acts wer e a “knowing ” attemp t t o co m m i t second deg ree murder or

whether he wa s acting under “ adequate provoc atio n
. ” S t ate v. J ohnson, 909 S.W .2d 461, 464 (Tenn. Crim. App. 1995)

. At the trial of this matter, the de fenda nt asserte d fac ts which wer e the opposite of the State’s wi tne sse s. I t is ob vio us that th e jury be lie ve d th e Sta te ’s wi tne sse s a nddis be lie ve d th e de fe nd a nt, as was its rig ht. The testim ony of t he S tate’s witnesses easily established the e lements of attempted mur de r s e c on d d e g re e . A c c or din g ly , th is a ssi g nme nt i s w ith ou t me ri t.
II. Er r one ous Evi de nt iar y R uling
The de fenda nt arg ues that the trial court err ed in a llowing the victim to testify , during direc t examination, as to why he and the defe ndant beg an arg uing, asserting that it wa s “cla ssic hear say .” The testimony

as to which the de fendant complains arose during the following series of questions by the State: Q Wha t le d u p to y ou g e tti ng sh ot?
A Me a nd[the de fe nd a nt], we ha d a c on fr on ta tio n lik e that ni g ht b e fo re . B oth of us, we had been s moking. And, . . . [the defendant] had bee n drinking heavily , and we g ot into a c onfrontation that he had a lady in the back r oom of [C ollins’] home, and they g ot into an arg ument, and he a sked her to leave. Q I ’m

so rry to s top y ou , b ut w ho g ot i nto a n a rg ume nt?
A [The defe ndant] and the lady that he had ove r. Q Was [ the def

endant] living at the house ?
A No. Q Di d h e stay

the re that ni g ht?
A Yes, sir. Q Ab ou t w ha t ti me wa s it that th is h app e ne d –

thi s a rg ume nt?
A T h i s ar gu m en th ad t o h ap p en at ar o u n d 1 1 : 0 0 / 1 2 : 0 0 o ’c l o ckt h at m o rn i n g.-7-

Q I s this the arg ument with the g irl that [t he def endant] had?
A Yes, sir. Q An d wh at wa s i tt h at go ty o u t o ar gu i n g?
A That she wa nted to leave – [Defense Counsel] : Objection, J udg e.
T H E C O U R T : W h y

d o n ’ ty o u a l l ap p r o a c h [ ?]
I n response to the defe ndant’s cla im that the victim’s r esponding to this question would be hear say , the State arg ued that the response would be “[n]ot for the truth of the matter asserted but that she wa nted to leave and that basically [t he victim ] was standing up for he r and le tting her leave , but the defend a n t w a s n ’ t g o in g to le t h e r le a v e
. ” T h e tria l c o u r t o v e rru le d th e d e f e n d a n t’ s o b

je c tion, co n cl u d i n g t h at t h e ev i d en ce wa s n o t h ea rs ay b u t“m o re o ff er ed t o ex p l ai n wh y

t h es e h ar d fe el i n gs exis ted that l ed to the fight rathe r t han whether or not one person rea lly wanted to ke ep her

there and one re ally wanted he r to leave .”
Af te r the tr ia l c ou rt

ha d o ve rr

ule d th e de fe nd a nt’ s o bje c tio n to the vic tim ’s te stifying a s to why he and the d ef

en d an t were ar g uing, and the victim was allowe d to complete his response , he g ave a somewhat diff

ere nt expl anation as to how the fig ht beg an: Q D idy o u , in f

a c t, g e t i n to a

f ig h t w it h [t h e d e f e n d a n t] ?
A Yes, sir. Most likely a tussle. Q Was it over this girl that he ha d over?
A Ba sically , it really was a bout that he wouldn’t calm down afte r we ended up letting he r lea ve. He was . . . kind of upset ab o u t i t . And he wouldn’ t calm down, and we ended up tussling – he ende d up ripping the cha in off my neck.
Hea rsay is defined a s “a state ment, other than one made by the dec lara nt while testify ing at the trial or he aring , offe red in e vidence to prove the truth of the matt er as s er t ed

. ” Tenn. R. Evid. 801(c) . As a g ener al rule, he arsay is not admissi ble at trial unless it falls under one of the exceptions to the ru le a g a ins t he ars a y . T e nn . R. Ev id. 80 2. “ Th e det erm inatio n o f w he the r a state me nt i s hear say andw h e th e r

it is a d mi s s ib le th r o u g h a n e xc e p ti o n to th e h e ar s a y ru le is le f

t t o th e s ound discretion of the trial court.” State v. Stout, 46 S .W.3d 689, 697 (Tenn. 2001). As such, we will not reve rse the trial court' s rulings on this issue abse nt a showing that it abused its discretion. I d.-8-

First, we note that the victim was not aske d to r el at e s t atements of the defe ndant or the woman with whom he wa s arg uing, but, instea d, as we view the que stion, why the victim and the de f e n d a n t b e g a n ar g u in g
. H is r e s p o n s e , ma d e a f te r th e d e f e n d a n t’ s o b

je c ti o n h a d b e e n o v e rruled, was that he and the de fenda nt had “tussled” be cause the def endant “ wouldn’t ca lm down” afte r the woman lef

t. The defenda nt was “kind of upset about i t.” As such, we conclude that the vi ctim was no t r e qu ir e d to , a ndin f

a c t di d n ot, te sti fy

a s to he ars a y

by re sp on din g to the qu e sti on . E ve n if it wer e hea rsay , it would be admissible to explain why the arg ument beg an betwe en the victim and the defe ndant. See State v. Williams, 977 S .W.2d 101, 108 (Tenn. 1998) (“ [T] h e s t at em en t was admitted for the purpose of showing the ‘ba d blood’ betwe en the B uchanan family , with which the v i c t i mw a s a l i g n e d , a n d t h e W i l l i a m s f a m i l y, o f w h i c h t h e d e f

e n d a n tw a s a

m e m b e r
. ” )

. A c c o r d i n g l y, we co n cl u d e t h at t h e t ri al co u rt d i d n o tab u s e i t s d i s cr et i o n b y t h i s ev i d en t i ar y

ru l i n g. CO NC LU SION
B a se d u po n th e fo re g oin g a uth oriti e s a ndre a so nin g , we a ff ir m th e jud g me nt o f the tr ia l c ou rt

.

___________________________________ ALAN E. GL

ENN, JUDGE