### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs D ec embe r 2, 200 8
STA TE OF TEN NES SEE v. TON Y C UR TIS HOL MES

Direc t Appeal from the Cr iminal Cou rt f or Shelby Coun ty No. 04-03960 Lee V. Coff ee, Judge

No. W2007-02733-C CA-R 3-CD - Filed September 24, 2009

The de fenda nt, Tony Curtis Holmes, was convicted of one count of first degre e pre meditated murde r and one c ount of attempted fir st degree preme ditated m urder , a C lass A felony. He wa s sentence d to consec utive life sentenc es. On a ppeal, he contends that the tria l court abuse d its discretion in three
are as: failing to grant a

mistria l; allowing irreleva nt testimony; and allowing hea rsay testimony. Af te r c are fu l r e vie w, we c on c lud e no e rr or e xis ts anda ff

ir m th e jud gme nts fr om the tr ia l c ou rt

. Tenn. R. App . P. 3 Appeal as of Right; Judgments of the Cr iminal Cou rt A ffirm ed

J OHN E VERET T W I L L I AMS , J. , de liv e re d the op ini on of the c ou rt , in w hic h J .C. M C L IN and C AM I LLE R. M C M ULLEN , JJ., joined.

Ja me s E . T ho ma s, Me mph is, Te nn e sse e , f or the app e lla nt, To ny Curtis Ho lme s.
Rob e rt E. Coo pe r, Jr. , Attorne y G e ne ra l a ndRe po rt e r; El iz a be th B . M arn e y, Se nio r C ou ns e l; William L. Gibbons, District Attorney Ge nera l; and Amy Weirich and Da vid P ritchar d, Assistant District Attorneys Ge nera l, for the a ppellee, State of

Tenne ssee.
OP IN ION

Th is c a se inv olv e s th e mur de r o f L ind se y G ill a nd , w ho wa s a by stand e r c a ug ht i n th e mid dle of a sh oo tin g. Te sti mon y at tri a l re ve a le d tha t the de fe nd a nt i nte nd e d to sh oo t D oy a n M c Go ry bu t, instead, shot the victim when McG ory gra bbed the victim and use d him as a shield.

Je a nn ie Ste wa

rt te sti fi e d at tria l th a t s h ew a s w a l ki ng by a bu sin e ss, the Cr a nk sh a ft

Spe c ia lis t, on May 19, 2004, when she saw the defe ndant park his c ar on the street, exit the ca r ca rrying a gun,
wa lk i n f ro nt of his c ar, app ro a c h th e int e nd e d v ic tim , a ndpo int the gu n at hi m. T he int e nd e d v ic tim grabbe d the vi ct im

a n d u s e d h im

a s a s h ie ld

. T h e d e f

e n d a n t f ir e d th e g u n , s h o t th e v ic ti m i n the chest, a nd then fled the scene

. Stewart testified that she had known the defe ndant for twe nty year s and had no doubt a

bout his identit y. She alleged that she was reluctant to testify bec ause she knew that people in the c ommunity considered her a “snitch.” On cross-examination, she te stified that she-2-

told the of

fice rs at the sce ne that she kne w nothing about the shooting but clarified that she meant she did not know the re ason the de fendant would attempt to kill McGory.

An employee of Crankshaf t Specialist testified that he wa s working on May 19, 2004, whe n he saw the victim sitt ing on a mi lk crate t alking to McGory prior t o the killing. He looked out the
rea r door of the bus iness and saw the defe ndant exit his car with a gun. He obse rved him appr oach the victims and saw Mc Gory “ bobbing and wea ving” behind the victim. Phylli s Tuggle testified and denied telling police that the def endant wa s in the neighborhood on the date of

the shooting. She further denied telling police that McGory had threatened to kill the de fe nd a nt.
An offic er with the M emphis Police Depa rtment testified t hat he r esponded to the shooting inc ide nt andfo und the vic tim in a gr a y Ca dil la c . A ft e r the of fi c e r s po ke wi th p e op le a t th e c ri me scene , the def

endant wa s co n s i d er ed as a suspe ct. Another office r with the Memphis Police Depa rtment testified that he a lso responded to the scene and rec eived information that the defe ndant fled the sc ene in a

gray Chevrolet Celebrity. The vehicle was later rec overe d, but no evidence was found in the vehic le. A serge ant with the Memphis Police Depa rtment who investigated the shooting testified that he intervie wed Ms. Tuggle a nd that she told him she spoke to t h e d ef en d an t on the date of

the shoo t i n g

. He t es t ified that Ms. Tuggle told him that the defe ndant said McGory had shot at the defe ndant’s brothe r on one oc casion a nd had cha sed the de fendant with a mache te ea rlier on the day of the sh oo tin g. Th e se rg e a nt n oti fi e d f e de ra l auth oriti e s that th e de fe nd a nt h a d f le d to Flin t, Michigan. He said that Flint police ar rested the defe ndant on June 4, 2004. A trooper with the Michigan S tate P olice testi fied that he assist ed the U.S. Marsha ll Service in appre hending the def

endant. He arr ested the de fendant on June 4, 2004, in Fli nt, Michigan.

T h e for ensic pathologist who per formed the autopsy on Gilland testified that he die d of a sin gle gu ns ho t w ou ndto the c he st.
A witness for the defe nd an t t es t i fi ed that she witnessed the shooting and that she did not identify the def

endant f rom the police photogra

phic line-up. A profe ssor of psychology at Florida St ate Un i v er s i t y testified as a n expert in the are a of
e ye wi tne ss i de nti fi c a tio n o n b e ha lf of the defe nd ant . H e te sti fi e d th a t a nu mbe r o f f

a c tor s c ou ld influence the re liability of an eyew itness identification.

An a lys is

On a p p ea l , t he def

endant a rgues that the trial court e rre d in not granting a mistrial after witness Jeannie Stewart testified that she had not see n the def endant in year s beca

use he ha d been “locke d up.” The determination of whether to g rant a mistrial rests wit hin the s ound discretion of the trial court. Sta te v . S

mi th , 871 S.W .2d 667, 672 (Tenn. 1994) . The re viewingcourt should not-3-

overturn that decision abse nt an abuse of discre tion. Sta te v . R e id , 91 S.W .3d 247, 279 (Tenn. 2002)

. The burden of e stablishing the ne cessity for mistrial lies with the party seekingit. State v. W

illiams , 929 S.W .2d 385, 388 (Tenn. Crim. App. 1996)

. Tenne ssee courts do not a pply any rigid test when examining the fa ilure to grant a mistrial afte r a witness has gi ven im proper testimony, but there are certain fac tors that are often considere d, namely: (1) whe ther the imprope r testimony was elicited by the Sta te or

wh e the r i t w a s a sp on ta ne ou s de c laratio n by the wi tne ss; (2 ) w he the r the c a se a ga ins t the def endant was strong or weak; and (3) whether the trial court gave a

prompt curative instruction. Se e , e .g ., Sta te v . H

all , 976 S.W.2d 121 , 1 4 7 -4 8 (Tenn. 1998) (holding that improper testimony about a de fenda nt’s pri o r crime did not create a manife st nece ssity for a mistrial beca use the trial
c ou rt ga ve a n im me diate c ur a tiv e ins truc tio n) ; Sta te v . M ath is , 9 69 S.W .2 d 418 , 422 (T e nn . Crim. App. 1997) (holding that improper testimony did not create a manif est nec essity for a mistrial be c a us e the tr ia l c ou rt

ga ve a pr omp t c ur a tiv e ins truc tio n) ; S ta t e v
. Ha ll , 9 47 S.W.2d 181, 184 (Tenn. Crim. App. 1997) (holding that improper testimony about a de fendant’s prior inca rce ration did not cr eate a manife st nece ssity for a mistrial beca use trial court gave a

prompt curative instruction).

Her e, the witness obse rved that she had not seen the defe ndant beca use he wa s “locke d up.” The witness off

ere d this observation as a nonr esponsive answ er to a nother que stion. The trial court sua sponte instructed the jury to disregard the witness’s nonre sponsive answe r to the prose cutor’s question. A prompt curative instruction a fter a spontaneous decla ration will of

ten obviate the ne ed fo r a mis tr ia l. M or e ov e r, the Sta te ’s c a se a ga ins t th e de fe nd a nt w a s st ro ng

. Th e re we re mul tip le eyew itnesses who testified that the de fendant shot the vic tim while trying to shoot Doyan McGory. Given this ev i d en ce , t he witness’s mention that the de fendant had bee n incar cer ated did not undermine the fairne ss of the trial. Thus, a mistrial wa s not nece ssary to guar antee a fair trial for the defe ndant.
Next, the de fenda nt argue s that the trial court erre d in allo wi n g J ea n n i e Stewart to testify about “snitche s” in the neighborhood. When asked by the State, “ [w]hat do they say about snitches in Binghampton?” the witness re plied, “It’s not good.” The witness indi cate d that the belief in the
ne igh bo rh oo d w a s th a t it

wa s n ot g oo d to be a

“ sn itc h” a nd that sh e re c e ive d so me pr e ssu re no t to testify. The de fenda nt contends that the que stio n wa s not relevant and was me rely a tactic by the prosec ution to bols ter the c redibility of the witness. Ev ide nc e is r e le va nt i f i t ha s “ any

te nd e nc y to make the e x istence of

any fac t that is of conseque nce to th e d et ermination of the a ction more probable or less p ro b ab l e t h an i t would be without the evidenc e.” T enn. R. Evid. 401. Once the court c oncludes the evidenc e is r eleva nt, the court should e x clude the evidenc e if its probative va lue is s ub sta nti a lly outw e ig he d b y

its pr e jud ic ia l e ff

e c t. T e nn . R. Ev id. 40 3; Sta te v . J am es, 81 S.W .3d 75 1, 75 7 ( Te nn . 2 00 2)

. A tr ia l c ourt ’s de c isi on a s to the re le va nc e of e vid e nc e un de r R

ule 40 1 w ill be re verse d only

upon a showingof abuse of discre tion. Sta te v . P owe rs , 1 0 1 S. W. 3 d 3 8 3 , 395 (Tenn. 2003)

. Th e tr ia l c ou rt

e xp la ine d th e re a so n for vie wi ng the te sti mon y ab ou t “sn itc he s” a s r e le va nt. The trial c ourt stated:-4-

The c ourt has told the jury a n d wi l l tell the jury in cre dibilit y instructions that the things they can c onsider ar e motive and r easons a nd other rea s o n s as t o why witnesses testify and that goes to cre dibilit y as to whethe r or not she w ants to be her e, is comfortable being here

. It all goes to c redibility and these are things that the c ourt will inst ruct the jury that they consider a re c redibil i t y and these are things that the court will instruct the jury that they c onsider ar e cr edibility, mot i ve, re asons for testifying, the demea nor of a witness. And the c ourt will overrule your objec tion as fa r a s re le va nc e

. Th e c ou rt do e s f indthat it ’s re le va nt andis an is su e [that is ] f ull y in the province of the jury so the c ourt will overrule the objection.

The trial c ourt’s dete rmination that the question about “snitche s” wa s relevant to the jury’s determination of the witness’s cr edibility was within the court’s discre tion. The defe ndant has not shown that he wa s unfairly pre judic ed by the statement or that any pr ejudice outwe ighed the pr ob a tiv e va lue of

the state me nt. Th e de fe nd a nt h a s n ot d e mon str a te d th a t th e tr ia l c ou rt abu se d it s discretion in determining that the statement wa s relevant. There fore , the def endant is not entitled to relief on this issue.

Ne xt, the de fe nd a nt a

rg ue s that th e tr ial c ou rt

e rr e d ina llo wi ng the se rg e a nt t o te sti fy to double hea

rsay f rom another

Memphis Poli ce D epartment office r. The trial court determined that the statements we re not off ere d for their

truth but, rather , to demonstrate the e fforts the police made to l oc a te the de fe nd a nt.
The ser geant wa s asked “ what other eff orts or attempts wer e made to locate” the def endant in Tennesse e. He responde d that he rec eived information from another Memphis Poli ce of fice r and the n b e ga n to te sti fy a s to wh a t the oth e r o ff ic e r s ta te d. Th e de fe nd a nt r a ise d a he ars a y o bje c tio n to this question. The trial court overruled the objection and state d that “[t]he se statements a re not be ing
ma de fo r the truthof

the ma tte r a sse rt e d b ut j us t to sh ow wh a t this of fi c e r did in or de r to try to l oc a te [the de fenda nt] and the e fforts that they did and why [he] put those eff orts forwa

rd.” The serge ant
answe red that the information he r ece ived from the othe r off icer was a bout the defe ndant’s wher eabouts.

The ser geant wa s then asked a bout what the defe ndant’s ex-wife told the other office r. The defe ndant aga in objected to the que stion as eliciting a hear say re sponse. The trial court aga in ruled that the statements wer e not be ing of fer ed for the truth of the matter a sserted but to show why the office r did what he did to locate the defe ndant. The serge ant testified that the other of fice r advised him that the defe ndant’s ex- wife told him that the defe ndant “had gone to Flint, Michigan, to keep f r o m b e i n g arr e s t e d h e r e

. ” T h e s e r g e a n t t h e n t e s t i f i e d a s t o t h e s t e p s h e t o o k t o i n v o lve the U. S. Ma rs ha ll’ s o ff

ic e in the se arc h f

or the de fe nd a nt. Rule 801(c) , of the Te nnessee Rules of Evidence define s hear say as a statement, other tha n one made by the dec lara nt while testifying at the trial or he aring, off ere d in evidence to pro v e the truth of the matter

asserted.

The trial c ourt relied on State v. Miller , 73 7 S.W .2 d 55 6, 55 8 (T e nn

. Cr im. Ap p. 19 87 ), to reje ct the def

endant’ s hear say cha llenge. This court, in Mi lle r, conclude d that the hea rsay e vidence-5-

rule doe s not operate to exclude e very state men t m ade to a witness by a third per son. The court further stated that whe n the s tatement was admitted to show an officer ’s reason for doing something ba se d o n th e state me nt, the state me nt i s a dmi ssi ble be c a us e the te stimo ny is no t be ing of fe re d to prove the truth of the matter asserted by the out-of- court de clar ant. Miller , 737 S.W.2d at 559.

The fir st statement, when the se rgeant testified that the other office r gave him information rega rding the defe ndant’s whe rea bouts, is not hearsay unde r Miller . The state me nt w a s o ff e re d to show that the officer gained i nformation about the de fendant’s wher eabouts fr om the other off icer

. Th e ne xt state me nt, that the se rg e a nt re c e ive d inf orma tio n that the de fe nd a nt’ s e x- wi fe tol d
a n o ff ic e r that th e de fe nd a nt “ ha d g on e to F lin t, M ic hig a n, to ke e p f ro m be ing arr e ste d h e re ,” sh ou ld not ha ve been admitted. “Howe ver, the testimony a bout w hy the office r did a certain act ma y be irrele vant or ba

rely re levant in the ca se, and the more re cent tre nd is to rule such testimony inadmissible under Rule 403.” Ne il P. C ohen, Sarah Y. Sheppea rd & Donald F. Paine, Tenne ssee Law of Evidence § 8.01[7] (5th ed. 2005). The sergea nt should not have be en permitted to testi fy that the def

endant lef t T ennesse e “to keep from being arr ested here ,” bec ause the probative va lue of that statement was substantially outwe ighed by the danger of unfair pr ejudice. Sta te v . B ro wn , 915 S.W.2d 3, 6 (Tenn. Crim. App. 1995)

. Rule 403 of the Tenne ssee Rules of Evidence g ives the trial
c ourt disc ret io n to exc lud e e vid e nc e wh e n it s p ro bativ e va lue is s ub sta nti a lly outw e ig he d b y

its prejudicia l effe ct. Her e, the tria l court should have e x cl u d ed t h e testimony as g iven. Br own , 915 S.W .2d at 6. The te stimony implies the defenda

nt’s g uilt and should have bee n excluded.

We m us t next de c ide wh e the r the e rr or re qu ir e s re ve rs a l. We wil l re ve rs e a c on vic tio n o nly if it affir m at i v el y appears fr om the rec ord that the e rror more proba

bly than not aff

ecte d the jud g me nt. T. R.A .P. 36 (b ); Br own , 915 S.W .2d at 7. Her e, ther e we re two e y ew itnesses to the shooting who testified that the defe ndant was the shooter. Another witness told police that there had been a violent incident betwee n the def endant and McGory ear lier in the day . I t is unli kely that the
err or in allowing th e s erge ant to testify that the def

endant fled to Michigan to avoid pr osecution
a ff e c te d th e jud gme nt. Th e re fo re , th is e rr or is h arm le ss.
Conclusion

Based on the f

oregoing a nd the re cord a s a whole, w e af firm the judgments from the trial court.

__________________________________ JOHN EVE RETT WILL IAMS, JUDGE