IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

August 7, 2012 Session

STATE OF TENNESSEE v. HARRY COLEMAN

Direct Appeal from the Criminal Court for Shelby County

No. 09-03572 John T. Fowlkes, Jr., Judge

No. W2011-01546-CCA-R3-CD - Filed February 1, 2013

A Shelby County Criminal Court Jury convicted the appellant, Harry Coleman, of second

degree murder, aggravated assault, and two counts of assault. After a sentencing hearing,

he received an effective eighteen-year sentence. On appeal, the appellant contends that the

evidence is insufficient to support the convictions and that he is entitled to a new trial based

on newly discovered evidence. Based upon the oral arguments, the record, and the parties’

briefs, we affirm the appellant’s convictions and the trial court’s denial of the motion for new

trial. However, the case is remanded to the trial court for correction of a clerical error on two

of the judgments.

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

Affirmed, and the Case is Remanded.

NORMAMCGEEOGLE,J., delivered the opinion of the Court, in which THOMAST.WOODALL,

and ROGER A. PAGE, JJ., joined.

Joseph A. McClusky (on appeal), William D. Massey (at trial and on appeal), and Leslie

Ballin and Steven Ferese (at trial), Memphis, Tennessee, for the appellant, Harry Coleman.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney

General; Amy P. Weirich, District Attorney General; and Eric Christensen and Paul

Hagerman, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

In May 2009, the Shelby County Grand Jury indicted the appellant for the second

degree murder of Robert “Dutch” Schwerin, Jr., the primary victim. The grand jury also
indicted the appellant for two counts of aggravated assault with a deadly weapon, one count

of assault, and one count of employing a firearm during the commission of a dangerous

felony.

At trial, Katie Johnson testified that she was twenty years old at the time of the crimes

and was dating Dallas Schwerin, the victim’s son. On February 6, 2009, Johnson ate dinner

with the Schwerin family at Villa Castrioti in Memphis to celebrate a birthday in the

Schwerin family. Johnson said the victim had “a couple” of alcoholic drinks during dinner.

After dinner, Johnson walked into the parking lot with the victim and his then fifteen-yearold daughter, Savannah. When they got to the victim’s Yukon Denali, they discovered that

a Hummer was parked very close to the driver’s side of the Denali, which angered the victim.

Savannah got into the driver’s seat of the Denali, but the Hummer was parked so close that

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she had difficulty getting into the vehicle. Johnson got into the back seat of the Denali on

the passenger side. The victim stayed outside the Denali.

Johnson testified that a black Land Rover pulled up and that the appellant’s wife,

Katheryn Coleman, got out. Mrs. Coleman stood behind the Denali so that Savannah could

not back the Denali out of the parking space. Johnson said Mrs. Coleman told someone,

“‘Go get my husband[.]’” Then she and the victim, who was standing in front of the Denali,

began yelling and cursing at each other. When the appellant arrived, Mrs. Coleman walked

between the Hummer and the Denali. Johnson said that Mrs. Coleman was standing right in

front of the victim and that the victim was “trying to get her away from him and he was like,

moving her back.” Johnson said that the victim gently pushed Mrs. Coleman and that “[i]t

wasn’t a shove, it was just a little, get off of me.” Johnson said that the victim was “putting

out his arms” but that the appellant’s wife continued to approach him and “just kept being

in his face and wouldn’t move.”

Johnson testified that the appellant told the victim, “‘You touch my wife again, I’ll

blow your brains out.’” Johnson said that she did not remember the victim’s reply but that

Mrs. Coleman “got back in [the victim’s] face.” Johnson said the appellant walked to the

Hummer, “rummaged through some stuff,” and got a black handgun. He went to the victim,

put the barrel of the gun into the victim’s mouth, and held the victim’s head with his left

hand. Then the appellant “backed off” and shot the victim. Mrs. Coleman was standing

behind the appellant at the time of the shooting.

Johnson testified that she did not remember seeing the appellant use a telephone

during the altercation. She said that at some point during the altercation, “[a]nother guy

came up and tried to stop everything, but he left, he walked away, because he didn’t want to

Because some of the witnessesshare surnames, we will refer to them by their first names for clarity. 1

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get shot himself.” Johnson never heard the victim threaten the appellant, Mrs. Coleman, or

the appellant’s dog. She also did not see the victim push Mrs. Coleman to the ground or

“swing” at her. After the shooting, Johnson saw the appellant’s gun in the right back pocket

of his pants.

On cross-examination, Johnson acknowledged that she gave a statement to police on

February 7, 2009. According to her statement, the appellant called 911 during the altercation

to report that someone was cursing at his wife. Johnson acknowledged that after the victim

discovered the Hummer parked close to the Denali, he began cursing and pacing back and

forth. She had never seen him act that way and did not see him vandalize the Hummer. Mrs.

Coleman did not walk up to the victim until the appellant arrived. The man who tried to

intervene during the altercation was wearing a white shirt and white pants; he was not

wearing a white robe. After the victim gently pushed Mrs. Coleman, the appellant got a gun

out of the Hummer. When the victim saw the gun, he stopped cursing and backed away. The

appellant forced the gun into the victim’s mouth. Then he shot the victim, and Mrs. Coleman

fell to the ground. Johnson said that after the appellant shot the victim, he “panned” the gun

back and forth “[l]ike he was going to shoot somebody else, if they came close.” The

appellant appeared angry, not sad. Johnson acknowledged that she did not tell the police that

the appellant said, “If you touch my wife again I’ll blow your brains out.” She also

acknowledged that the victim was a “pretty good size man” and that he was larger than the

appellant and Mrs. Coleman.

Asia Smith testified that at the time of the crimes, she was dating the victim’s son,

Colt Schwerin. On the evening of February 6, 2009, she ate dinner at Villa Castrioti with the

Schwerin family. After dinner, she walked to Colt’s truck with Colt and his brother, Dallas.

They drove to the victim’s Denali, and Smith saw the appellant’s wife standing behind it.

Smith and Colt got out of Colt’s truck and walked to the victim’s vehicle. The appellant’s

wife accused the victim of vandalizing her Hummer, and the victim called the appellant’s

wife a “bitch.” Smith said that the victim and the appellant’s wife were “just getting mad at

each other, because she wouldn’t let him leave and he was frustrated by it, because he just

wanted to go home.” She said the appellant’s wife “got up in [the victim’s] face” and told

another woman with her to “go get her husband.”

Smith testified that when the appellant arrived, he “got in [the victim’s] face. Then

he went to the Hummer, opened the front passenger door, and got a gun. Smith said the

appellant put the gun to the victim’s temple and “drug it down to his mouth.” She stated that

the appellant and the victim were “having words with each other” and that a man stepped

between them. Smith said the appellant’s wife was hitting the victim’s chest, so the victim

“stuck his arm out to push her away.” She said that the appellant’s wife “got in [the victim’s]

face” again and that the victim pushed the appellant’s wife. The man standing between the

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appellant and the victim tried to stop them and tried to get the appellant to put the gun away.

When the man moved out of the way, the appellant shot the victim. The appellant’s wife fell

to the ground, and the appellant put the gun into his back pocket and waited for police. Smith

said Colt was “freaking out” and told the appellant, “‘You shot my dad.’” Smith never heard

the victim threaten the appellant, his wife, or his dog, and she did not see the victim make

any aggressive motions toward the appellant or hit the appellant’s wife. She also did not see

the appellant make a telephone call while he was retrieving his gun from the Hummer.

On cross-examination, Smith acknowledged that she gave a statement to police on

February 7, 2009, and that she told the police Colt tried to calm the victim. She did not tell

them that a man tried to intervene or that the appellant dragged the gun down the victim’s

face. She acknowledged saying in her statement that the victim told the appellant, “‘I have

a gun.” She also acknowledged saying that she saw the appellant get his gun out of the

Hummer’s “glove box,” which was in front of the passenger seat. The defense showed Smith

a photograph of the Hummer’s interior, and she acknowledged that the vehicle did not have

a glove box. Smith said that she did not see the victim vandalize the Hummer and that the

man who intervened was dressed in all-white clothing. She did not remember hearing the

appellant tell the victim that he was going to blow the victim’s brains out.

Joseph Sneed testified that he was the man wearing white clothing who tried to

intervene on February 6, 2009. He acknowledged that he had ten prior misdemeanor theft

convictions and three prior aggravated robbery convictions but said he had been changing

his life in the past few years. On the night of the shooting, a religious organization sent

Sneed to Panera Bread near Villa Catrioti to pick up leftover bread to distribute to the

community. As Sneed was walking on the sidewalk, he saw a group of people. The group

included the victim, who was standing on the sidewalk. Sneed said that the victim appeared

to be arguing with a woman standing behind two vehicles, that the victim used the “‘f’ word”

a couple of times, and that the victim was laughing. Sneed said the woman “was a little bit

aggravated.” The appellant walked between two vehicles and entered the passenger side of

a Hummer.

Sneed testified that he turned to leave and heard a female scream. He thought

someone was hitting a woman, so he ran onto the sidewalk. Sneed said the appellant had a

gun, was “a little paranoid,” and was pointing the gun “at everything that [moved].” Then

the appellant focused the gun on the victim. Sneed stood in front of the appellant and told

him to put the gun down. Sneed said that the appellant’s eyes were bloodshot, that he was

“frothing” at the mouth, and that he was saying, “‘Arrrg, arrg.’” The appellant pointed the

gun at Sneed, and Sneed realized the appellant was going to shoot the victim. Sneed jumped

out of the way, and the appellant shot the victim. At the time of the shooting, the appellant

was standing about ten feet away from the victim, and the appellant’s wife was standing a

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few feet behind the appellant. The victim’s children were holding the victim’s arms. After

the shooting, the appellant’s wife fainted, and the victim’s children screamed. The appellant

put the gun into his back pocket and went to his wife. Sneed said that he never heard the

victim threaten anyone, that he did not see the victim push the appellant’s wife, and that he

did not see the appellant put the gun to the victim’s head.

On cross-examination, Sneed testified that the victim was upset, not angry, and that

the victim told the appellant, “‘I’m not afraid of you.’” Sneed said that when he moved out

of the way, the appellant “leaned in and [made] a couple of grunts.” The appellant extended

his arm, drew his arm back in, extended his arm again, and shot the victim. Sneed said that

“there was a mental contemplation going on in [the appellant’s] mind. Something was

working in his mind.” The appellant was paranoid, but he was not scared. Sneed said that

the Hummer and the Denali were parked within their parking spaces and that he did not see

the appellant use a cellular telephone during the altercation.

Steven Pilgreen testified that on February 6, 2009, he was working at Panera Bread.

When Pilgreen’s shift ended, he left the business and began walking to his vehicle. He heard

yelling and saw two families arguing. He said he heard a woman shout, “‘You don’t need

to vandalize that vehicle.’” Pilgreen dialed 9-1-1 on his cellular telephone because he

thought a fight could occur and heard a gunshot. The State played an audio recording of

Pilgreen’s call, and he acknowledged that a gunshot and chaos could be heard. After the

shooting, Pilgreen ran to the group and tried to calm the victim’s children and prevent them

from attacking the appellant. The victim was lying on the sidewalk about ten feet away from

the appellant, and a man wearing a robe was administering CPR to the victim. Pilgreen did

not know if the victim was alive. The appellant’s wife was lying on the sidewalk behind the

appellant. When the police arrived, the appellant surrendered to them.

On cross-examination, Pilgreen testified that he did not hear any threats. However,

he acknowledged that an argument was in progress when he arrived and that he did not hear

the entire argument. Pilgreen saw the appellant with a gun. After the shooting, the appellant

appeared shocked and put the gun into his back pocket.

Nicholas Turpin testified that on the evening of February 6, 2009, he was sitting in

his car in the Panera Bread parking lot. Turpin heard a gunshot, jumped out of his car, and

ran to the victim, who was propped against a window. Turpin and Joseph Sneed put the

victim onto the ground and started CPR. Shortly thereafter, Turpin stopped working on the

victim and told the appellant to put the gun down, step away, and calm down. Turpin said

the appellant told him, “‘Don’t threaten me, or my wife.’” Turpin said that the appellant was

“very angry in his eyes,” that the appellant “reached back to pull the gun out, but never did,”

and that he felt very threatened and scared by the appellant. Turpin said he had not

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threatened the appellant.

Officer Jason Pynkala of the Memphis Police Department (MPD) testified that he and

two other officers responded to the shooting. When they arrived, the appellant had his back

to them, and the officers saw a handgun in the back pocket of his pants. The officers drew

their weapons. Officer Pynkala removed the gun from the appellant while the other officers

held the appellant at gunpoint. The gun was a .45 caliber Compact Wilson. On crossexamination, Officer Pynkala acknowledged that the appellant was cooperative and that the

appellant put up his hands when the officers ordered.

Officer Erik Jensen of the MPD testified that he was one of the officers who

responded to the shooting. He said that when he arrived at the scene, a large crowd was

pointing and saying that “‘he’s over there, he’s over there.’” Officer Jensen got his assault

rifle out of his patrol car. Other officers approached the appellant, and Officer Pynkala took

a gun out of the appellant’s back pocket. Officer Jensen said that the appellant’s wife was

“sometimes sitting and sometimes walking around and talking to people, kind of agitated.”

He said that one of the victim’s sons was upset and pacing and that the son said, “‘She needs

to be arrested, too, she started it, she needs to be arrested, it’s her fault too.’” Officer Jensen

said the appellant’s wife answered, “‘F[***] you, I hope he dies, it’s your fault, too.’”

Dr. Lisa Funte, the Medical Examiner for Shelby County, testified as an expert in

forensic pathology about the victim’s autopsy report. The victim was six feet, one inch tall

and weighed 263.5 pounds. He had a gunshot wound in the right side of his chest. The

bullet traveled front to back, right to left, and downward. The bullet damaged the victim’s

liver and aorta, struck a vertebra, and exited the left side of his back. The victim bled to

death, and no soot or stippling was on the victim’s clothing or skin, meaning that the

handgun’s muzzle was at least four feet away from the victim at the time of the shooting. The

victim’s cause of death was a gunshot to the chest, and the manner of death was homicide.

The victim’s blood contained .14 milligrams per deciliter of alcohol, almost twice the legal

limit for driving a vehicle in this state. Dr. Funte could not say what position the victim was

in when he was shot. However, on cross-examination, Dr. Funte acknowledged that the track

of the bullet was consistent with the victim’s having been “advancing” on someone.

Robert “Colt” Schwerin, III, the victim’s son, testified that at the time of the victim’s

death, the victim was fifty-two years old and worked as an amp mechanic for FedEx. On the

night of February 6, 2009, Colt’s family was celebrating a birthday at Villa Castrioti. The

victim drank a glass of vodka over ice and one beer during dinner. After dinner, everyone

walked to their vehicles. Colt; his brother, Dallas; Asia Smith; and Katie Johnson went to

Colt’s truck while the victim and Colt’s sister, Savannah, went to the victim’s Denali. Colt

drove to the victim’s Denali and saw the appellant’s wife standing behind the vehicle. Colt

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parked his truck, and everyone got out to find out what was happening. The appellant’s wife

was saying that the victim had vandalized the appellant’s Hummer, and she and the victim

were yelling profanities at each other. Colt was embarrassed by their behavior. The

appellant’s wife walked away, and Colt went to the victim, who was standing on the

sidewalk. Colt said the victim told him, “‘I took the light cover off and that’s all I did.’” Colt

said that the appellant’s wife returned with the appellant and that the appellant “picked up

where the wife left off.”

Colt testified that the appellant went to the passenger side of the Hummer and opened

the door. Colt heard someone scream and saw the appellant with a gun. He said that the

appellant was standing aboutsix feet from the victim and that the appellant was “moving [the

gun] around, just kind of in a ‘stay away from me’ kind of deal.” Colt said that the appellant

and the victim kept arguing and that the victim had his hands up “like whoa.” Colt said that

the appellant’s wife was “in [the victim’s] face” and was hitting the victim’s chest. Colt said

that the victim pushed her away and that the appellant said, “‘If you touch my wife again I’ll

blow your f[***ing] brains out.’” The appellant’s wife hit the victim on the chest again, and

the victim pushed her away again. Colt and Dallas were standing on the sidewalk with the

appellant and the victim. Joseph Sneed stood in front of the appellant and tried to diffuse the

situation. When Sneed moved out of the way, the appellant aimed and shot the victim, who

collapsed. Colt said he told the appellant, “‘You shot my dad, you ass-hole, what have you

done?’” He said the appellant told him, “‘Get away, or I’ll shoot you, too.’” Colt stated that

the appellant pointed the gun at him and that he “felt like I could already feel a bullet inside

me and I didn’t like what it felt like and so I turned around and basically walked off like a

scared dog with my tail between my legs still yelling.” The appellant’s wife fainted, and the

appellant put the gun into his pocket and went to his wife. When the police arrived, Colt

yelled for the officers to arrest the appellant’s wife. He said she told him, “‘F[***] you, I

don’t really care if you father lives, or dies.’” Colt said that the victim was cursing and

yelling during the altercation but that he never heard the victim threaten the appellant, the

appellant’s wife, or the appellant’s dog.

On cross-examination, Colt testified that the victim acted normal during and after

dinner; the victim did not act intoxicated. Colt acknowledged that the victim had a temper

and that the victim put his hands on the appellant’s wife twice. Colt did not try to restrain

the victim and did not see Dallas or Savannah try to restrain him. The victim was angry but

was not out of control. Colt said that he did not see the appellant use a cellular telephone

during the altercation but that he saw the appellant’s silhouette “fumbling around in the

center console” of the Hummer. The appellant got the gun and pointed it at Colt, the victim,

and everyone standing around the victim.

Twenty-two-year-old Dallas Schwerin, Colt’s older brother, testified that the victim

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had been drinking alcohol at home prior to dinner at Villa Castrioti. After dinner, Dallas left

the restaurant with Colt, and they drove to the victim’s Denali. Dallas saw the appellant’s

wife standing behind the Denali and a Hummer. She was irate and was arguing with the

victim, who was standing on the sidewalk in front of the vehicles. The appellant’s wife

claimed that the victim had vandalized her husband’s vehicle, and she and the victim were

yelling profanities at each other. Dallas said that he asked the appellant’s wife if he could

take the victim and leave but that she said, “No, both vehicles are staying here.” A second

woman went into the restaurant and returned with the appellant. The appellant spoke with

his wife, walked between the two vehicles, went to the victim, and spoke with the victim.

Then the appellant, his wife, and the victim began arguing. However, no threats were made.

Dallas said the appellant’s wife was “in [the victim’s] face” and poked him in the chest.

Dallas said the victim tried to back away and was “fanning his arms.”

Dallas testified that the appellant went into the passenger side of the Hummer, went

to the victim, and put the muzzle of a gun into the victim’s mouth. Then the appellant

backed away slightly. Dallas went to the victim, and the victim pushed him away with the

victim’s left forearm. Dallas said that he heard a “‘bang,’” that he turned around, and that

the victim fell to the ground. The appellant’s wife fainted and also fell. The appellant put

the gun into the back pocket of his pants, and Dallas telephoned 911. A man wearing a white

robe administered CPR to the victim. Dallas never heard the victim threaten the appellant

or his wife.

On cross-examination, Dallas acknowledged that he gave a statement to the police and

that his statement did not include many of the statements made by the appellant’s wife. He

also acknowledged that the victim had threatened him and Colt previously. However, Dallas

had never seen the victim get physical or threaten anyone else. Dallas said the victim started

the altercation by vandalizing the appellant’s Hummer. When Dallas approached the victim

just before the shooting, the victim pushed him back in order to protect him. Dallas did not

see the appellant shoot the victim. However, he said the appellant “retracted” from the

victim just before the shooting. After the shooting, Dallas saw the victim fall and saw the

appellant pointing the gun at the victim.

Sixteen-year-old Savannah Schwerin testified that on the night of February 6, 2009,

she left Villa Castrioti with the victim. When they got to the victim’s Denali, Savannah

noticed that a Hummer was parked too close for her to get into the driver’s side of the Denali.

Savannah was going to drive the Denali because the victim had been drinking alcohol and

because she needed to practice driving. She got into the driver’s seat by crawling through

the passenger side. The victim was angry and remained outside the vehicle. Savannah heard

the victim arguing with the appellant’s wife. Both of them were cursing, and Savannah was

embarrassed and scared. Savannah motioned for the victim to get into the Denali, but he

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continued to argue with the appellant’s wife. The appellant came out of the restaurant and

began arguing with the victim. Savannah said the appellant told his wife that the victim was

a “wimp.” The appellant went to the Hummer, opened the passenger-side door, and appeared

to be rummaging for something. When he came out of the vehicle, he was holding a gun.

The appellant went to the victim and put the gun to the victim’s chest. Then the appellant

put the gun to the victim’s mouth. Savannah got out of the Denali and walked to the back

of the vehicle. She heard a gunshot and ran to the victim, who was lying on the ground. The

appellant’s wife also was lying on the ground. Savannah said that she never heard the victim

threaten anyone and that she never saw him hit anyone.

On cross-examination, Savannah testified that prior to eating at the restaurant, the

victim drank “little beer bottles” at home. When Savannah got into the Denali after dinner,

she did not crank the engine. Savannah did not see the victim put his hands on the

appellant’s wife or Dallas, and she never saw the appellant use a telephone during the

altercation. When the appellant came out of the Hummer and put the gun on the victim, the

victim backed away. Savannah did not try to restrain the victim, and she did not see anyone

else try to restrain him. She did not see the appellant point the gun at anyone other than the

victim. At the conclusion of Savannah’s testimony, the State rested its case.

Eddie Heaston testified for the appellant that he was a supervisor for the Memphis 911

call center. The center received a call from the appellant’s cellular telephone at 9:00:43 p.m.

on February 6, 2009. The phone rang the call center for one minute, twelve seconds. When

the 911 operator finally answered, she did not hear anything. The operator called the

appellant’s cell phone three times, but the calls went to the appellant’s voicemail.

Officer Marlon Wright of the MPD testified that he arrived at the scene at 10:30 p.m.

and that the victim was in an ambulance. He found a .45 caliber spent shell casing on the

sidewalk. He also found a t-shirt, eyeglasses, and blood. He acknowledged that photographs

taken of the appellant’s Hummer showed that the vehicle’s lens caps had been removed from

the headlights.

Jimmy Youngman, an auto body repair technician, testified that in February 2009, he

performed some repair work on the appellant’s Hummer. The ring on the left fog light had

been torn off, and the lens caps had been removed from the headlights.

Katheryn Coleman, the appellant’s wife, testified that February 6, 2009, was her fiftysecond birthday. Mrs. Coleman ate dinner with her mother in Collierville, then she and her

mother went to Memphis to eat dessert at Villa Castrioti. Mrs. Coleman said that when she

pulled into the parking lot,she saw the appellant’s Hummer and saw the victim “pulling parts

off the car and chunking them to the side.” Mrs. Coleman parked her car, approached the

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victim, and asked him what he was doing. She said the victim told her, “‘I did it.’” Mrs.

Coleman thought the victim may be mentally unstable or intoxicated, so she was going to

walk away from him for her safety and write down the Denali’s license tag number. She said

that the victim was angry and that she tried to “make peace” with him. She said she told him,

“‘Sir, neither one of our vehicles are across the line, I’m not sure why you’re upset.’” The

victim began cursing and yelling, shook his fists, and berated her. Mrs. Coleman backed up,

and the victim continued to yell at her while she tried to memorize his license tag number.

She said she got scared and told her mother to get the appellant. She said she never told the

victim that he could not leave and never blocked the Denali. The Denali’s engine was turned

on, and at least two people were inside.

Mrs. Coleman testified that a young male arrived and told the victim, “‘Dad, let’s go,

let’s get in the car, let’s leave this alone, it’s not worth it.’” However, the victim continued

to curse, yell, and shake his fist at her. The appellant arrived, and Mrs. Coleman told him

that the victim had vandalized the Hummer. She said she told the appellant that she was

scared and that “there might be a problem.” The appellant went to the victim. At first, the

appellant was calm. Mrs. Coleman said that the appellant’s body language was “animated”

and that he asked the victim what was going on. She said that the victim’s fists were down

by his side, that his chest was “puffed out,” and that he was “rocking back and forth on his

feet like he was about to explode.” The appellant and the victim talked for one or two

minutes. Then the appellant went to the Hummer and opened the passenger door. He

approached the victim, and Mrs. Coleman thought he was holding the victim by the victim’s

shirt. The appellant backed away from the victim, but the victim moved toward the

appellant. Mrs. Coleman said she jumped in front of the victim, put her hands up, and tried

to stop him. The victim knocked her down with his right arm, and Mrs. Coleman heard a

gunshot. She stood up, saw the victim on the ground in a pool of blood, and fainted. When

she woke, the appellant was standing over her.

Mrs. Coleman testified that she yelled at the victim during the altercation but that she

never cursed at him and never heard the appellant curse at him. After the shooting, Mrs.

Coleman heard someone say, “‘There she is, go get her.’” Mrs. Coleman did not respond to

the statement and never said she wished the victim would die. She acknowledged that she

gave a statement to police. However, she said that she “wasn’t doing very well” when she

gave the statement and that the statement was “[f]airly” accurate.

On cross-examination, Mrs. Coleman testified that she had consumed two glasses of

wine on the night of February 6. She said that she was “talking back” to the victim, that he

called her names, and that she called him “a fat head.” She said she called the appellant to

the scene because she did know what to do and did not know what the victim was going to

do. She said that the victim was “very very big” and that she was scared of him. She

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acknowledged that she could have gotten back into her Land Rover but said that she did not

want to leave because she did not know what the victim would do to the Hummer. She never

got in the victim’s face and never saw a gun. Mrs. Coleman told the police that the appellant

went to the Hummer during the altercation, but the police did not put that information in her

statement. She said she saw the appellant and the victim close together but did not see “any

fists flying.” Mrs. Coleman denied “escalating” the situation and said the victim’s “own

child was scared of him [and] wouldn’t even go up to him.” She did not hear the victim

make any threats, but she could not hear what the victim and the appellant were saying to

each other. She said she was not intoxicated and never said she hoped the victim died.

The sixty-year-old appellant testified that he had three children and five grandchildren,

had been in the real estate business for thirty-eight years, and had a valid handgun carry

permit in February 2009. On the night of February 6, 2009, the appellant went to look at an

ivory and jade collection at the Peabody Hotel and drank two glasses of wine. He left the

hotel about 8:20 p.m., telephoned his wife, and arranged to meet her and her mother at Villa

Castrioti. The appellant parked in the restaurant parking lot, went inside the restaurant, and

ordered a glass of wine. His mother-in-law came inside and told him that he needed to go

outside. The appellant walked into the parking lot and noticed a large crowd. He saw his

wife, who was standing between his Hummer and a Denali, and walked to her.

The appellant testified that he heard “a big man up there hollering something” and that

he asked his wife what was going on. Mrs. Coleman told him that she had caught the victim

vandalizing their Hummer and that the victim had been cursing at her and threatening her.

The appellant said that his wife was upset and that she said that “he thinks we parked too

close to him.” The appellant stated that he “didn’t think that there could be that much to it”

and that he walked toward the victim. He said the victim asked him, “‘Are you the pimpy

son-of-a-bitch in this big car?’” The appellant answered, “‘[W]ell, you’ve got a big nice car,

too.’” He said that the victim “cussed [him] out pretty good”; that the victim was “talking

loud, rocking back and forth”; that the victim’s eyes were red and bloodshot; and that he

thought the victim was “either on something, or drunk.” He said the victim stated, “I’m

going to kill you, that bitch back there and your dog.”

The appellant testified that he was shocked and realized he had “stepped into a bad

situation.” He backed up and opened the rear passenger door of the Hummer. He needed

police help and dialed 9-1-1, but no one answered. He said that when 911 did not answer,

he “felt like I better protect myself and my family” from the victim. The appellant kept a

pistol in a holster between the Hummer’s driver’s seat and center console. He took the pistol

out of the holster and made sure the safety was on. He was not intending to use the gun but

thought the victim would leave him and his wife alone if he showed the gun to the victim.

The appellant closed the door of the Hummer and waited five to fifteen seconds. He said that

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the victim cursed at him at least one more time and that he walked up to the victim so that

the victim could see the gun.

The appellant testified that he was “pretty rattled and upset,” that he “got right up

close” to the victim, and that he put the gun between the victim’s nose and mouth. The

appellant said he told the victim, “I’m scared, my wife’s scared, we’re scared of you and

please leave us alone.” Then the appellant backed up about twenty feet from the victim. The

appellant said that a young man got in front of the victim and that the victim “hit him out of

the way.” The appellant’s wife jumped in front of the victim, and the victim knocked her

onto the sidewalk. The appellant said that he thought the victim was going to try to kill him

and his wife and that the victim “came charging” at him. The appellant said he put up his left

hand and told the victim, “‘Stop, stop, stop.’” The appellant shot the victim one time.

The appellant testified that the victim was four to five feet from him at the time of the

shooting and that no one got in front of the victim before the shooting. After the appellant

shot the victim, the victim fell back. The appellant said the young man ran up to the

appellant and said, “‘That’s my dad, that’s my dad, I want to go help my dad.’” The

appellant told the young man to help the victim and call 911. The appellant put the gun into

his back pocket and went to his wife, who had fainted. Then he waited for the police. When

the police arrived, he told the officers that he shot the victim because the victim assaulted his

wife and “was coming at me.”

On cross-examination, the appellant testified that he was afraid of the victim because

the victim was “a pretty good size and he was hostile and angry and apparently drunk,

threatening to kill me and my wife.” He acknowledged that despite his being afraid of the

victim, he got the gun out of the Hummer and walked up to the victim. He put the gun

between the victim’s nose and mouth but backed away so the victim could leave. He said he

did not put the gun into the victim’s mouth and never saw a man dressed in white clothing.

He said that the young man walked up to the victim and that the victim knocked the young

man back. The appellant’s wife got between the victim and the appellant, and the victim

knocked her to the ground. The victim charged at the appellant, and the appellant told him

to stop two or three times. When the victim got within four or five feet of the appellant, the

appellant shot him. The appellant said that he never got angry on the night of February 6,

2009, and that he did not remember saying, “‘If you touch my wife again I’m going to blow

your brains out.’”

Officer Eric Kelly of the MPD testified on rebuttal for the State that he responded to

the shooting on February 6, 2009, and approached the crowd with other officers. An officer

took the gun out of the appellant’s back pocket, and Officer Kelly walked the appellant to

his patrol car. He said Mrs. Coleman was “being loud and . . . was asking questions.”

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Officer Kelly said that she asked him “what was going on with her husband” but that he

would not communicate with her and told her that “she needed to go back and talk to the

officer that she just got through talking to.” He said that a witness wearing all-white clothing

was present, that the man “looked like Jesus,” and that the man was “very visible.”

On cross-examination, Officer Kelly acknowledged that he testified at a prior hearing

related to this case. He also acknowledged stating during the hearing that he spoke with Mrs.

Coleman “just briefly, to ask her name, date of birth and [get] a real general statement from

her in regards to what she witnessed.”

The jury found the appellant guilty as follows: Count 1, second degree murder; count

2, the assault of Joseph Sneed as a lesser-included offense of aggravated assault; count 3, the

aggravated assault of Colt Schwerin; and count 5, the assault of Nicholas Turpin. The jury

acquitted the appellant of count 4, employing a firearm during the commission of a

dangerous felony. After a sentencing hearing, the trial court sentenced the appellant as a

Range I,standard offender to eighteen yearsfor the second degree murder conviction, a Class

A felony; three years for the aggravated assault conviction, a Class C felony; and eleven

months, twenty-nine days for the assault convictions, Class A misdemeanors. The trial court

ordered that the appellant serve the sentences concurrently for an effective sentence of

eighteen years in confinement.

II. Analysis

A. Sufficiency of the Evidence

The appellant contends that the evidence is insufficient to support the convictions.

Regarding the second degree murder conviction, he contends that the evidence establishes

that he shot the victim in self-defense. In the alternative, he contends that, at most, he is

guilty of voluntary manslaughter. The appellant contends that the evidence is insufficient

to support his conviction for the aggravated assault of Colt Schwerin because the appellant

pointed the gun at Colt in order to protect himself and his wife after Colt approached him and

yelled at him; that the evidence is insufficient to support his conviction for the assault of

Joseph Sneed because he never directly threatened Sneed; and that the evidence is

insufficient to support his conviction for the assault of Nicholas Turpin because he did not

point the gun at Turpin and was only “attempting to continue to protect himself and his wife

when the emotions of everyone on the scene were running high.” The State argues that the

evidence is sufficient to support the convictions. We agree with the State.

When an appellant challenges the sufficiency of the convicting evidence, the standard

for review by an appellate court is “whether, after viewing the evidence in the light most

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favorable to the prosecution, any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307 (1979); see also

Tenn. R. App. P. 13(e). The State is entitled to the strongest legitimate view of the evidence

and all reasonable or legitimate inferences which may be drawn therefrom. See State v.

Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions concerning the credibility of

witnesses and the weight and value to be afforded the evidence, as well as all factual issues

raised by the evidence, are resolved by the trier of fact. See State v. Bland, 958 S.W.2d 651,

659 (Tenn. 1997). This court will not reweigh or reevaluate the evidence, nor will this court

substitute its inferences drawn from the circumstantial evidence for those inferences drawn

by the jury. See id. Because a jury conviction removes the presumption of innocence with

which a defendant is initially cloaked at trial and replaces it on appeal with one of guilt, a

convicted defendant has the burden of demonstrating to this court that the evidence is

insufficient. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

Regarding the appellant’s second degree murder conviction, second degree murder

is the knowing killing of another. Tenn. Code Ann. § 39-13-210(a)(1). A person acts

knowingly with respect to a result of the person’s conduct when the person is aware that the

conduct is reasonably certain to cause the result. Tenn. Code Ann. § 39-11-106(a)(20). Our

Code provides that the use of force likely to cause death or serious bodily injury may be

justified when a person (1) “has a reasonable belief that there is an imminent danger of death

or serious bodily injury”; (2) “[t]he danger creating the belief of imminent death or serious

bodily injury is real, or honestly believed to be real at the time”; and (3) “[t]he belief of

danger is founded upon reasonable grounds.” Tenn. Code Ann. § 39-11-611(b)(2).

Self-defense is a fact question for the jury. State v. Clifton, 880 S.W.2d 737, 743 (Tenn.

Crim. App. 1994); State v. Ivy, 868 S.W.2d 724, 727 (Tenn. Crim. App. 1993). When a

defendant relies upon a theory of self-defense, it is the State’s burden to show that the

defendant did not act in self-defense. State v. Sims, 45 S.W.3d 1,10 (Tenn. 2001).

The appellant claims that the jury erroneously rejected his claim of self-defense

because the evidence shows that the victim was larger than he, was behaving aggressively

toward him and his wife, had the opportunity to leave but continued to harass and intimidate

them, and knocked his wife to the ground. The appellant also notes that he fired only one

shot at the victim, who he thought was attacking him.

Taken in the light most favorable to the State, the evidence shows that the victim and

Mrs. Coleman were arguing and cursing at each other. The appellant arrived, and he began

arguing and cursing with the victim. When the victim pushed Mrs. Coleman away, the

appellant threatened to kill him. Although the appellant claimed that he was afraid of the

victim, he went to the Hummer, got his pistol, and physically confronted the victim by

grabbing the unarmed victim and putting the muzzle into the victim’s mouth. Joseph Sneed

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tried to diffuse the situation and calm the appellant but realized that the appellant was going

to shoot the victim. When he stepped out of the way, the appellant shot the victim once in

the chest. All of the State’s witnesses testified that they never heard the victim threaten the

appellant, and none of them testified that the victim was moving toward the victim when the

appellant shot him. The jury, not this court, was in the best position to judge the credibility

of the witnesses, and the jury obviously accredited the testimony of the State’s witnesses.

This court does not second-guess factual determinations made by the jury, and it was within

the jury’s province to reject the appellant’s theory of self-defense. The evidence is more than

sufficient to support the appellant’s conviction for second degree murder.

Regarding the appellant’s aggravated assault and assault convictions, aggravated

assault as charged in the indictment occurs when a person intentionally or knowingly

commits an assault by using or displaying a deadly weapon. Tenn. Code Ann. §

39-13-102(a)(1)(B). The “deadly weapon” in this case was a firearm. See Tenn. Code Ann.

§ 39-11-106(a)(5)(A). A person commits assault when the person “[i]ntentionally or

knowingly causes another to reasonably fear imminent bodily injury.” Tenn. Code Ann. §

39-13-101(a)(2).

Taken in the light most favorable to the State, the evidence shows that during the

altercation, Joseph Sneed stepped between the appellant and the victim. Sneed testified that

the appellant pointed the gun at him, that he realized the appellant was going to shoot the

victim, and that he jumped out of the way. After the appellant shot the victim, Nicholas

Turpin told the appellant to put the gun away and calm down. The appellant reached back

as if he was going to get the gun and told Turpin, “‘Don’t threaten me, or my wife.’” Turpin

said he felt very threatened and scared by the appellant. Colt Schwerin testified that he told

the appellant, “‘You shot my dad, . . . what have you done?” He said that the appellant

pointed the gun at him, that the appellant threatened to shoot him, and that he “could already

feel a bullet” and “walked off like a scared dog.” The evidence is sufficient to support the

appellant’s conviction for the aggravated assault of Colt Schwerin and his convictions for

assaulting Joseph Sneed and Nicholas Turpin.

B. Newly Discovered Evidence

The appellant contends that he is entitled to a new trial based on newly discovered

evidence that he suffered from a bipolar disorder at the time of the crimes. The State

contends that the trial court properly determined that the appellant was not entitled to a new

trial. We agree with the State.

The record reflects that soon after the jury convicted the appellant, he attempted

suicide by putting ether into his nostrils and was hospitalized at Memphis Mental Health

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Institute (MMHI) for almost one month. In the appellant’s motion for new trial, he raised

a claim of newly discovered evidence in that doctors at MMHI diagnosed him with Bipolar

I Disorder with Psychotic Features. At the motion for new trial hearing, no witnesses

testified. However, the appellant presented numerous affidavits in support of his claim.

Dr. Kayla Fisher, a licensed psychiatrist and the Clinical Director for the MMHI,

stated by affidavit that she had interviewed the appellant and his long-time psychiatrist, Dr.

Richard Farmer; that she had reviewed the trial transcript; and that she had reviewed

information collected about the appellant while he was at the MMHI. She concluded that the

appellant suffered from Bipolar I Disorder with Psychotic Features, which “severely and

negatively impacted his personal life.” The appellant had experienced symptoms of the

disorder for most of his adult life and “spent most of the time in recent years suffering from

mania with psychotic features.” However, he was not diagnosed with the illness until after

the jury convicted him in this case and he attempted suicide. Dr. Farmer had suspected that

the appellant suffered from Bipolar I Disorder in 2008 but diagnosed him with Major

Depressive Disorder instead. Due to the missed diagnosis, Dr. Farmer “missed capturing the

perceptual disturbance of paranoia Mr. Coleman experienced.” Dr. Fisher concluded that the

victim’s size, intoxication, and aggressive actions on the night of February 6, 2009, along

with the appellant’s “alcohol consumption in the face of mania of Bipolar I Disorder,” caused

him to “exhibit paranoid and bizarre behavior” and believe his and his wife’s lives were in

imminent danger.

Dr. Richard Farmer, the appellant’s psychiatrist for over fifteen years, stated by

affidavit that the last time he met with the appellant prior to the shooting was October 17,

2008. At that time, the appellant “discussed ‘some high periods’ of feeling ‘real and normal

happiness,’” and Dr. Farmer “questioned” the presence of Bipolar Disorder without

Psychotic Features. However, he did not have sufficient information or indications to

diagnose the appellant as bipolar and diagnosed him with Major Depressive Disorder. After

the appellant was convicted in this case and Dr. Farmer spoke with Dr. Fisher, he diagnosed

the appellant with Bipolar I Disorder.

Leslie Ballin and Steve Ferese stated by almost-identical affidavits that they

represented the appellant at trial. Counsel asked the appellant if he had any mental health

issues, and the appellant told them that he was seeing Dr. Farmer. The appellant also told

them that Dr. Farmer told the appellant he was “borderline Bipolar.” However, the appellant

claimed that “Dr. Farmer didn’t know what he was talking about.” Counsel did not see any

indications that the appellant suffered from a mental illness and determined that his best

defense was self-defense and the defense of his wife. They never considered a mental health

defense, never contacted Dr. Farmer, and did not seek an evaluation of the appellant by a

mental health professional. Had counsel known the appellant suffered from Biopolar I

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Disorder with Psychotic Features, the diagnosis would have strengthened the appellant’s

claims of self-defense and defense of his wife because the appellant’s paranoia increased his

fear and perception of imminent danger.

The appellant stated by affidavit that he had been under the care of Dr. Farmer since

the mid-1990’s and that Dr. Farmer prescribed medications to him for anxiety and

depression. Dr. Farmer never told the appellant that he had Bipolar I Disorder. Although

Dr. Farmer said the appellant might be “borderline Bipolar,” he also told the appellant that

he was not bipolar. After the appellant was charged in this case, Dr. Farmer told him to tell

his attorneys that Dr. Farmer could provide them with helpful information. The appellant

asked Mr. Ballin and Mr. Ferese four or five times if they had talked with Dr. Farmer and

learned they had not spoken with him. Counsel told the appellant that they would have to

share Dr. Farmer’s information with the State and that they did not want to do that.

Therefore, counsel never spoke with Dr. Farmer. After Dr. Fisher diagnosed the appellant

with Bipolar I Disorder with Psychotic Features, she altered his medications, and his

condition “greatly improved.”

Katheryn Coleman stated by affidavit that she and the appellant had been married for

twenty-one years, that he drank alcohol regularly, and that he often drank daily and “to

excess.” The appellant also had mood swings and irritability that concerned her and caused

trouble in their marriage. In November 2000, Mrs. Coleman told Dr. Farmer that she thought

the appellant might be bipolar. However, Dr. Farmer told her that the appellant was not

bipolar or was “at most borderline.” Mrs. Coleman told trial counsel that the appellant was

suicidal and under the care of Dr. Farmer.

Raymond Coleman, the appellant’s son, stated by affidavit that he did not know the

appellant was suffering from Bipolar I Disorder with Psychotic Features until Dr. Fisher

made the diagnosis after trial. Raymond thought the appellant’s defense was “a clear cut

case of self-defense” and did not associate the appellant’s mental health condition with his

actions on the night of February 6, 2009, until Dr. Fisher’s diagnosis.

Counsel argued at the motion for new trial hearing that the appellant was entitled to

a new trial based on newly discovered evidence because the appellant had a mental illness,

Bipolar I Disorder with Psychotic Features, that was undetected before trial. Counsel argued

that the appellant used reasonable diligence in seeking the evidence because the appellant’s

trial attorneys did not have knowledge of his illness before trial. While the appellant told

trial counsel that he was seeing a psychiatrist and that he might be borderline bipolar, trial

counsel, who were experienced attorneys, did not see any indications from the appellant or

his family that he suffered from a mental illness. Moreover, even if trial counsel had

contacted Dr. Farmer, they would have learned that the appellant was being treated for

-17-
depression, marital problems, and alcohol abuse. They would not have discovered that he

was bipolar because Dr. Farmer had not diagnosed him with that condition. Counsel also

argued that the newly discovered evidence was material because the appellant’s mental

illness created paranoia that “verified his honest belief that he and his wife faced imminent

danger of death or serious bodily injury.” Therefore, the appellant’s mental illness supported

his claim of self-defense. Finally, counsel argued that the newly discovered evidence would

have likely changed the result at trial because Dr. Fisher’s testimony would have explained

to the jury why the appellant, who had never been in trouble previously, perceived imminent

danger of death or serious bodily injury. The trial court denied the appellant’s motion for

new trial.

This court has previously observed that the decision to “[grant or deny] a new trial on

the basis of newly discovered evidence rests within the sound discretion of the trial judge.”

State v. Caldwell, 977 S.W.2d 110, 117 (Tenn. Crim. App. 1997). Accordingly, we will not

overturn the trial court’s decision absent an abuse of discretion. See State v. Meade, 942

S.W.2d 561, 565 (Tenn. Crim. App. 1996). It is the law of this state that

a trial court should grant a defendant a new trial on the basis of

newly discovered evidence when [(1)] the defendant has been

reasonably diligent in obtaining evidence, [(2)] the materiality

of the new evidence is apparent, and [(3)] the evidence is likely

to change the result [of the trial].

State v. Singleton, 853 S.W.2d 490, 496 (Tenn. 1993) (citations omitted). All three prongs

of the aforementioned test must be met before an appellant is entitled to a new trial based on

newly discovered evidence. See State v. Nichols, 877 S.W.2d 722, 737 (Tenn. 1994).

We conclude that the trial court did not abuse its discretion by denying the motion for

new trial. Regarding the first prong, reasonable diligence in attempting to discover the

evidence, the trial court noted that the appellant told trial counsel “on a number of occasions”

about his being treated by Dr. Farmer. The trial court held that counsel made a strategic

decision not to talk with Dr. Farmer. However, the court stated that “even if they had spoken

with Dr. Farmer, Dr. Farmer never reached the result that the defendant was bipolar with or

without psychotic features.”

The trial court did not state specifically whether the appellant satisfied the first prong

of the test. In any event, we conclude that he failed to establish reasonable diligence. The

appellant told trial counsel to speak with Dr. Farmer, and trial counsel knew Dr. Farmer

considered the appellant “borderline Bipolar.” Nevertheless, trial counsel made no effort to

investigate the appellant’s mental health and strategically decided not to talk with Dr.

-18-
Farmer. Granted, trial counsel would not have learned from speaking with Dr. Farmer that

the appellant suffered from Bipolar I Disorder with Psychotic Features. However, Dr.

Farmer obviously thought he could provide trial counsel with information that would be

beneficial to the appellant’s case, and speaking with him could have resulted in counsel’s

determining that a thorough investigation into the appellant’s mental health was warranted.

Instead, as noted by the State at the motion for new trial hearing, trial counsel “did nothing.”

We note that Dr. Fisher never concluded that the appellant’s mental illness could not have

been diagnosed before trial. In fact, she emphasized that the appellant exhibited symptoms

of Bipolar I Disorder with Psychotic Features throughout his adult life and that Dr. Farmer

repeatedly missed opportunitiesto diagnose him with that condition. Therefore, the appellant

has failed to show reasonable diligence in attempting to discover the evidence. Given that

the appellant must satisfy all three prongs of the test, his failure to satisfy the first prong

alone justifies the trial court’s denial of the motion for new trial.

III. Conclusion

Based upon the oral arguments, the record, and the parties’ briefs, we affirm the

appellant’s convictions and the trial court’s denial of the motion for new trial. However, the

case is remanded to the trial court for correction of the judgments in counts 2 and 3.

Regarding count 2, assault, the corrected judgment is to reflect that the trial court sentenced

the appellant to eleven months, twenty-nine days, not three years. Regarding count 3,

aggravated assault, the judgment is to reflect that the trial court sentenced the appellant to

three years, not eleven months, twenty-nine days.

_________________________________

NORMA McGEE OGLE, JUDGE

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