### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs M ay 21, 2002

STATE OF TENNESSEE v. KY NASTON SCOTT a. k.a. KYN ASTON L. OLAWUMI
Direct Appeal from the Criminal Court for Davidson County

No. 2000D-2256 Seth Norman, Judge

No. M2001-00707-CCA-R3-CD - F iled December 20, 2002

The appella

nt, Kynaston

Scott a.k.a. Kynaston L . Olawumi, was convicted by a jury in the Davidson County Criminal Court of first degree murder a nd felony murder . The trial court merged the convictions and sentenced the appellant to life imprisonment in t he Tenne ss ee Department of Correction. On appeal , the appe ll ant conte nds that the evidence was n ot suffic ient to sup port his convicti ons, the trial court erred by instructing the jury on f

light, and the trial court erred in admitting
an inflammatory photog

raph. Upon review of the record a nd the parties’ briefs, we affirm the judgment of the trial court.
Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Cr

iminal Court is Affirm

ed.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in whi ch T HOM AS T. W OODA LL and J OHN E VERE TT W IL LI AMS , JJ., joined.

Dwi ght E. Scott, Nashville, Tennessee, for the appellant, Ky naston Scott a.k.a. Kynaston L

. Olawumi.

Paul G. Summers, Attorney Gene ral a nd Rep orte

r; Re nee W

. Turner, Assistant Attorney Genera l; Victor S. Johnson, I

II , Distric t Attorne

y General ; and L

isa Nay lor and She

lli Neal, Assistant District Attorneys Gene

ral, for the appellee, State of Tennessee

.
OPINION

I. Fact ual Backgro

und In the ear ly morning hours of March 29, 1998, the victim, Melvin Sharp, was found slumped behind the wheel of his vehicle in the Second Street area of Nashville. Melvin Sharp had been shot in the head and was dead at t he time hisbody was discover ed by police. The

appellant was subsequently char

ged with one count of first degre e murder and one count of felony murder.-2- At trial, Lori M. Sharp testified that in March 1998 she and her husband Melvin Sharp worked at the McDonald’s restaurant at 1201 Broadway in Nashville. Lori Sharp was the g eneral manager and Melvin Sharp was her first assistant. The Sharps made the restaur ant’s ba nk deposit s each da y at First Amer

ican Bank on McGavock Pike. I n preparation for deposit, the m oney wa s placed in First American deposit bags and eac h manager had a drop

key which wa s required

to make the deposit. However, the couple had only one drop key, which the

y kept on a separate key

ring at their home. The one on duty usua lly took the key

when leaving for wor

k. On March 28, 1998, Me lv in Sh ar p l ef

t f or wo rk ar ou nd 4: 00 a. m. He di d n ot ta ke th e k ey t o w or k w it h h im th at da y.

LoriSharp las t spoke wit

h her husba

nd aroun d 6:00 to 8:00 p.m. that evening when he called from work to tell her that he planned to stop by his brother’ s house to eat fish. Lori Sharp related that she and her husband owned a 1995 Mazda 626 which was a “ burgundy , reddish color.” Her husband ha d driven the car to work that day . The victim did not carry a wallet, but ke pt hi s
mo ne y, driver’s license, Social Security card, and health insurance card in a small “day

timer.” After his death, his watch, a cigarette lig hter, and sixty to eighty

dollars ($60 to $80) were returned to L ori Sharp.

On March 29,1998, Officer Dan Shag ger of the Metropolitan Police Department was assigned to work the area

around Second Street. He was assigned to the a rea due to the high cr

ime rate. Around 1:00 a.m., O fficer Sh agger drove down Sec ond Street and noticed a 1995 Mazda parked facing the wrong direction on the 400 block section of Second Street. As he approached the car, he observed that the engine was running and a turn

signal was activated. When he got closer, he saw that the driver of the car wa s slumped over b ehind the steering wheel. Office r Shagger thought the driver had been drinking or had fa llen asleep. However, when he reached the car he sa

w that the passe

nger w indow wass hattered . The driver was bleeding from the he ad and was not breathing. Officer Shag ger immediately called an ambulance.

Officer Shagg er explain

ed that a pproximate

ly thirty minutes to an hour earlier he had driven down the street

but had not seen the vehicle. At the time he discovered the victim there w as
no one around the car. He observed tha t “[i]t was eitherbeing ignored at all and then once I called
an am bu la nc e, th at ’s wh en ev er ybo dy c am e o ut .” He im me di at el y m arke d off the crime scene, taking care to

ensure t hat the pa rameter s were se

t far en ough fr

om the veh

icleto keep people out of the area. He explained that a larg e number of ap artments were located near the sce ne. Officer S hagge r spoke with “one or two” individuals who advised him that they had not seen or heard anything.

Officer

Harmon H

unsicker of the Me

tropolita n Police D epartme

nt ass isted i n processing the cri me scene . At the crime scene, he removed two piece s of a bullet from the passenger door of the vehicle and also remov e d a bank deposit bag from underneath the vic tim’s seat. He then had

the Mazda

towed to the identification processing laboratory where the vehicle was searched and evidence collected. Approximately four thousa nd dollars ($4000) was removed from the bag. Officer Hunsicker he lped identify

the victim

by c omparing

the victim ’s fing erprintswith those on f ile with the

police de partmen t.-3- In the early mor

ning hours of March 29, 1998, fifteen-y ear-old Jeffrey

Pinshon was “just outchillin’” with Joe Vaughn and Rudy Vaughn. They

had not been drinking, but had smoked marijuana earlier in the evening. The group had been together approximately two hours and were sitting on the front of a car near the Lane Garde

n apartments when they

saw the appellant come from “out of the projects.” The appellant approached the group and st at ed th at he ne ed ed so me mo ne y. They advised the appellant that they did not have any money . The appella nt then wa

lked over to a
car and “all we heard then was a g un shot.” Immediately

thereafter, the

appellant walked

down the street and Pinshon went home. At the time, Pinshon knew that someone had beenhurt, but h e did notstay around to assist or c all police. Pinshon explained that he was on juvenile probation and was notsupposed to be out late or smoking marijuana. Pinshon had seen the appellant on an ear lier occasion when the appellant tried to “jump on” his cousin.

On March 31, 1998, Pinshon received a call fro m Peggy Wilma. Pinshon knew Wilma “from a friend of her son.” Wilma advised Pinshon that a detective was looking for him and his frie nds. P insho n wen

t to Wi lma’s hous e and spoke with Detective Pat Postiglione. Pinshon initially denied that he s aw the sh ooting. However, after speaking further with the detective, he voluntar ily accompanied Detective Postiglione to the p olice dep artment where he gave a taped statement in which he admitted that he witnessed the shooting. He was shown a photogra phic lineup and was able to identify the appe llant as the shooter. Although Pinshon did not know the appellant’s full name, he related that the appellant was known as “ K.”

In November 2000, Pinshon was serving a sentence at Taft Youth Developmental Center. While there, the appellant’s brother, Jason Scott, gave Pinshon a letter from the appe llant. Pinshon and Scott had become friends when they were “locked up together a nd shipped off.”

Joe Vaughn was fourteen y ears old in March 1998 and was livingwith his motherin Lane Garde

n Apartments. On the night of the shooting, he was outside the apartments with Rudy Vaughn and Jeffrey Pinshon. T he appe llant approached them and walked up to Pinshon. Joe Vaughn relat ed tha t alt hough the appellant had a hood on his head, he was able to see the appellant’s face. He recognized the appellant beca use he had seen him onthe church bus. The appellant “went aroundto the car, the driver side and shot a man.” He f ired one shot and “took o ff r unning.” Joe Vaughn did not see

the gun but did see the flash from thegun. After the shooting, Joe Vaughn ra n home. Later, Wilma told him that the police were looking f or him. On April 3, 1998, Joe Vaughn spoke with Detective Postiglione and described the events that he ha d witnessed. He also identified the appellant from a photographic line-up.

Lieutenant

Karl E. Grave s testified that he wa s the jail administrator with the Sheriff’s Department

in Belmont, New York. In that c apacity, he received a letter from the appellant who was
an inmate in the jail. At the time of his arrest in New York, the appellant identified himsel f as Ky nast on Olawumi. After receiving the letter, L ieutenant Graves spoke with the appellant. The appellant advised Lieutenant Grave s that if he entered a diffe rent Social Security number in the computer, he would find that the appellant was wanted in Nashville, Tennessee. Subsequently , the appellant admitted that he was Kyna ston Scott and that he was wanted in Nashville for a homicide.-4-

The appellant asserted

that a mistake had been made and he wanted to re turn to Nashville to explain what had happened. The appellant was subsequently re

leased to the custody of

a Nashville police detective.

Offic er

Charles Blackwood testified that he wa s employed in the identification sectio n of the Metropolitan Police Department. Specifically , he processed it ems for lat ent fin ger pri nt s. In this case, he was aske d to proce ss two handwritten letters. He found a usable print on one letter, which pr int was the

n submitted

to Lor ita Marsh for comp arison to

other pr ints.

Lori ta Marsh testified that she was a police identification analy st with the Metropolitan Police De

partmen t. Her of ficial du ties involv ed “[d]ec lassif ica tion and comparison of fingerprints.” Marsh compared a fingerpr int obtained from a handwritten letter with a fingerpr int of the appellant. She identified the fingerprint on the letter a s that of the appellant.

Thomas Vasrick , a fore

nsic docu ment examiner, testi fied th at he compared the handwriting in the lett

er writte n to the ap

pellant’ s brother

with the handwriting on an affidavit of indigency completed by the a

ppellant. Vasrick concluded that both documents were written by the appella nt.

Detective Pat Po stigli one worked in the homicide unit of the Metropolitan Police Department

and was the lead detective in the homicide of Melvin Sharp. Detective Postiglione arrive d at the sc ene of th

e murder at appro ximately

2:00 a.m. on March 29. At the time Detective Postiglione arrived, the victim was still inside the vehicle. The police canvassed the area ar ound the
scene by k

nocking on doors a

nd speak ing with p eople

in the neighborhood. They soon learned that three young me

n were in the area w hen the sh ooti ng occurred. A witness who lived in a nea rby apartment was able to provide the first names of the three individuals. Detective Postiglione
ex plained that t hey then w ent to Wilm a’s apa rtmen t. Wi lma as sist ed the poli ce in i denti fying th e three young me

n and arranged for Pinshon to meet with Detective Postiglione at Wilma’s home on March31, 1998. Pinshon admitted that he witnessed the shooting. Detective Postiglione compiled
a photogr aphic line-up fr

om which Pi nshon quickly identified the appe llant as the shooter. Su bs eq ue nt ly, Joe Vaughn gave a statemen t in which h

e descr ibed the e vents he witnes sed. He a

lso identified the appellant as the shooter.

On April 3, 1998, an arrest warrant was issued for the appellant. Detective Postiglione searched for

the appellant in the Nashville area but was unable to locate him. I n October 1998, after receiving information that the appe llant wa s i ncarcerated in Belmont, New Yor k, Detective Postiglione traveled to New York to meet with the appellant. Although the a ppellant declinedto make a statement at that time, he did make several unsolicited comments to Detective Postiglione, asking “what if it was accidental, what if I was there but I didn’t do the shooting, what if I was there like a

n accessory .”

Dr. John Gerber, a forensic pathologist, te stified that he contracted with Metropolitan Da vid son County

to do fore

nsic path ology

and autop sies. Dr. Gerber reviewed the auto

psy-5-

performed

on the victim, Melvin Sharp. He concluded that the cause of death was a gunshot wound to the head . He opine d that the bullet entered the lef

t side of the victim’s head from a distance great er than t wo feet.

The defense presented the testimony of the

appella nt’s broth er, Mich ael D. Ol awumi. Olawumi testifie d that i n January 1998, the appellant began planning a trip to Ne w York. The appellant intended to visit an uncle in New York and relocate the re. Theappellant planned to leave in late March or early

April 1998. Olawumi saw the appellant on March 29 and the appellant left for New York the next day. O l awumi d id not know how the appellant traveled to New York, but related that the appellant called home after he arrived. Olawumi a dmitted tha

t he did not

disclose his knowledge of the appellant’s travel plans until approximately two weeks before trial.

Jaso n Scott, the appellant’s brother, testified that he met Pinshon while both men
were incarc erated

at Taft Y outh Deve

lopmenta l Center. Scott

related that while at Taft he received a letter from the appellant asking him to tell Pinshon to lie to the District A

ttorney and also n ot to mention robbery . He also related that Pinsho n told

him, “[y]our brother is locked up for nothing.”

Fi na ll y, the defe

nse presented the testimony of David By rne, an attorney

who had represented

the appe lla nt for app roximately one y ear. By rne testified that he attended a meeting which the District Attorney had with Joe Vaughn. By rne recalled that

at that meeting Joe Vaughn stated that he was unable to identify the shooter.
The appellant was convicted of both first degree murder and felony murde

r, which convictions the trial

court me

rged. The tria

l c ourt u ltimately imposed a sentence of life imprisonment. On appeal, the appellant contends: (1) that the evidence was not sufficient for any rational trier of fact to con clude beyond a re asona ble do ubt t hat th e appel lant w as gu ilty of first degree murder and felony

murder; (2) that the trial court erred in overr uling the appellant’s objection to an instruction of flight; and (3) that the trial court erred in overruling the appe llant’s objectio n to the introd uction of “grue some and inflammat ory ” photog

raphs of the victim

. II. Analysis A. Sufficiency In order to successfully

challenge the sufficien cy o f the evi dence su pporting his convicti ons, the appellant must demonstrate to this court that no “ration al trier of fact ” could have found the essential elements of the crime bey ond a reasonable doubt . Jackson v. V irginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982); Tenn. R. App. P. 13(e). In other words, on a ppeal, the State is entitled to the strongest legitimate view of the evidence and all reasonable infer ences which may be dr

awn therefrom. Statev. Williams , 657 S.W.2d 405, 410 (Tenn. 1983). Questions concerning the credibility of the witnesses and the weight and value to be given th

e eviden ce, as w ell as all

factual issues raised by

the evidence, are resolved by the trier of fact

and not the appellate courts. State v. Pr uett , 788 S.W.2d 559, 561 (Tenn. 1990).-6- The appella

nt was charged w ith one count of first degree murder a nd one count of felony murder during the perpetration of or attempt to

perpetr ate robb ery . He was c onvicted of both counts and th e tria l cour t corr ectly merge d the convicti ons. On ap peal, the appella nt’s sole complaint regarding the sufficie

ncy of the e

vidence is that the only witnesses to the murde r wer e Pinshon and Joe Vaughn. The appellant argue s that these witnesses were so unreliable that no rational jury could acc

redit their testimony. The appe llant notes that Pinshon and Joe Vaughn gave inconsistentstatemen

ts to police

regar ding the ir ability to identify the shooter and a dmitted that at the time of the shooting they had been smoking marijuana.

The jur y, a s was t

heir prerogative, chose to believe the testimony of the State’s witnesse s. The inco nsistenc ie s in the state ments of Pin shon and Joe Vaughn were e mphasized

to the jury . It isthe duty

of the jur

y, n ot the app ellate c ourt, to a ccept or reject t he test im on y o f witnesse s. When the evidence is viewed in the light most favo

rable to the state, as it must be, we conclude that the evidence is sufficient to support theconvictions. Pinshon and Joe Vaughn testified that the appellant

approached them and asked for money . Shortly after walking away

from them, the appellant walked over to the victim’s car and fired one shot, striking the victim in the head. He then walkedaway f

r om the sc ene. Bo th Pinshon a nd Joe Vaug

hn identif

ied the a ppellant from a photogr aphic line-up. Moreover, the appellant attemp ted to persuade Pinshon to lie about the appe llant’s involvement in the murder. In a letter the appellant wrote to his brother , Scott, th e appella nt instruc ts: tell Jeff I need for him to send me a

letter a nd when he

write me tell him not to say any

thing about the

robbery . Tellhim to say that he’s sorry that he lied about me

killing lil buddy. Then tell me ever ything elsebut leave me and the robbery out. Because that the only way I ’m going to get out. Tell him when w e go t o [trial] to say the thing he say in the letter when my law yer g ets the chanceto talk to him. Tell him to tell the D.A. a few lies while he’s talking to her. We conclude that the evidence is sufficient to support the appellant’sconvictions . This issue is without me

rit.
B. Instruction on Flig ht Next, the appellant argues that the trial court er redby giving

the jury an instruction
on flight. The appellant contends that “certa in activit ies such a s flight o

r escap e” have

tradition ally been labeled as “admissions” or circ umstance s from which guilt may be inferred. Although the appellant conced es that there is “som e evidence sug gesting flight, ” he con

tends tha t evidenc e is explained and rebutted by othe r evidence. The appellant contends that during the trial he presented evidence that his trip to New York had been planned

for several months. The appellant’s brother, Olawumi, testified at trial that the appellant had planned to visit an uncle in New York and obtain work there. Additionally, Olawumi testified that the appellant regularly

called home after arriving in New York. Moreover, Lieute nant Graves testified that he became awa re that the appellant was wantedin Nashville only after the ap pellant informed him that if he checked his computer using another Social Security number, he would discover that the appellant was wanted in Nashville. The appellant arg ues that his leaving Nashville the day after the murder is not evidence of flig ht. He-7-

mainta ins that the le

ngth of t ime between the co mmission of the offe nse and h

is depar ture is irrelev ant.

Followin g the conclusion of the proof, the trial court used Tennessee Pattern Jury Ins tr uc ti on 42 .1 8, th e i ns tr uc ti on on fl ig ht , s pe ci fi ca ll y ch ar gi ng th e j ur y:

The flight of a person accus ed of cri me is a circumstance which, when considered together with all the facts of the case, may

justify an i nference of guilt . Flight is the voluntary withdrawal of o neself fo r the purpose of evading arrest or pr osecution for the crime charge d. Whether the evidence presented proves bey ond a reasonable dou bt that the defendant fled is a question for y our determination.

. . . . If flight is proved, the f

act of flight alone

does not allow you

to find that the defendant is guilty

of the crime alleged. Howeve r, s inc e flight by a defe ndant may be c ausedby a consciou sness of g

uilt, you may consider the fact of flight, if flight is so proven, tog ether withall of the other evidence when y ou dec ide the guilt or innocence of the defendant. On the other hand, an entirely innocent

person may take f light an d s uc h f

li gh t m ay b e e xp la in ed by p ro of of fe re d, or by t h e facts and circumstances of the case

.
In Statev. Smith , 893 S.W.2d 908, 918 (Tenn. 1994), our supreme court addressed the appropriateness of an instruction on flight and concluded that the meaning and weight of such evidence was a question to be determined by the jury. Reviewing a similar charge, this cour t has stated, the flight in struction pointed ou

t to the jury that innocent

persons may take flig ht, and it w as up to the

jury to determine whether there was flight, the reasons for the flight, and the weig ht to be given to

it. Just
as the instru ction allo wed an infere nce of g uilt from f

light, it a lso instructed that

the evidence, facts, and circumstance s may show that an innocent person may

take flight. State v. Richardson , 995 S.W.2d 119, 129 (Tenn. Crim. App. 1998).

In the instant case, the evidence showed that the appellant left Nashville the day after the murder. Although Olawumi testified that the appellant called re latives aft er arriving in New York, he did not know how the appellant traveled to New York or the appellant’s specific location in New York. The appellant was aware that he was wanted by authorities in Nashville anddid not disclose the infor mation unti l severa

l months af

te r the offense , during

his fourth

stay at the jai l in Belmont, New York. Moreover, upon his arrest he g ave New York authorities a fals e nam e. We cannot conclude that the trial court erred in instructing the jury on flig

ht.
C. Admission of Photograph-8- Fi na ll y, the appellant contends that the trial court improperly allowed

the admission of a “ gr ue so me an d i nf

la mm at or y” photograph of the victim. Specifically , the appellant alleges that the photograph was “unduly inflammatory, s how s a lot of blood, and was pretty gruesome.” The Stateresponds that

the photograph was relevant to show the “positioning of the body” and to support the State’s theory that the door of the car was not opened.

The decision regarding the admissibility of photographs lies within the sound discretion of the trial court and that decision will not be overturned on appeal absent a showing of
an abuse of that discretion. State v. Banks , 564 S.W.2d 947, 949 (Tenn. 1978). Photographs which
are graph ic or eve n horrif yin g ma y be admissible if they ar e relevant to an issue at trial and if the probative value of such evidence outweighs any prejudicia l effect on the jury. State v. Braden , 867 S.W.2d 750, 758 (Tenn. Crim. App. 1993).

The photograph in question, Exhibit 15, shows the victim slumped in the driver’s seat of his vehicle with his shoulder against the driver’s side door. His face is hidden; however, several large pools of bl ood cove

r his shirt. Shattered pieces of glass can be seen in the passenger seat of the vehicle. The photograph supports the State’s theory that the victim was shot from the driver’s side of the vehicle and the door of the vehicle was not ope ned. Moreover, an issue at trial was the lack of fingerprints on the driver’s side door. T he photograph also supports the testimony of Dr. Ge rber regardi ng the manner and cause of death. Fina lly, we do not find the photogr aph to be particu larly

gruesome or inf

lammatory. Theref

ore, we conclude that the tr

ial cour t did not er

r in allowing the admission of this photograph.

III. Conclusion In summary , we conc lude th at th e evidence is sufficient to support the appellant’s
co nvictions and tha t the trial court did not err by instructing the jury on f

light or in allowing the introduction of the photograph of the victim. Accord ingly , the judgment of the trial cou rt is affirmed.

___________________________________ NORMA McGEE OGLE, JUDGE