IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

September 6, 2023 Session

STATE OF TENNESSEE v. KEENAN A. MURPHY

Appeal from the Circuit Court for Madison County

No. 20-382 Kyle C. Atkins, Judge

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No. W2022-01108-CCA-R3-CD

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A Madison County jury convicted the Defendant, Keenan A. Murphy, of first degree 

murder and attempted first degree murder. The trial court sentenced the Defendant to an 

effective sentence of life imprisonment plus twenty-six years. On appeal, the Defendant 

argues that the proof is insufficient to support the convictions because the State failed to 

prove premeditation. The Defendant also asserts that the trial court committed plain error 

by allowing the State to cross-examine the defense expert about a second shooting the 

Defendant committed nine days after the offenses in this case. On our review, we 

respectfully affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right;

Judgments of the Circuit Court Affirmed

TOM GREENHOLTZ,J., delivered the opinion of the court, in which ROBERT L. HOLLOWAY,

JR., and J. ROSS DYER, JJ., joined.

Mitchell A. Raines, Assistant Public Defender, Tennessee District Public Defenders 

Conference (on appeal), and Jeremy Brent Epperson, District Public Defender, and John 

D. Hamilton, Assistant Public Defender (at trial), for the appellant, Keenan A. Murphy.

Jonathan Skrmetti, Attorney General and Reporter; Brent C. Cherry, Senior Assistant 

Attorney General; Jody S. Pickens, District Attorney General; and Bradley F. Champine 

and Alfred L. Earls, Assistant District Attorneys General, for the appellee, State of 

Tennessee.

OPINION

As is relevant to this appeal, a Madison County grand jury charged the Defendant 

with the offenses of first degree murder, attempted first degree murder, aggravated assault, 

02/09/2024
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and employment of a firearm during the attempted commission of a dangerous offense. 

The charges originated from a shooting that occurred in September 2019, killing Mr. Julio 

Almaraz and causing serious bodily injury to Mr. Joe Ramirez. The trial in this matter 

started on December 15, 2021. 

FACTUAL BACKGROUND

A. SEPTEMBER 2019 SHOOTINGS

On September 25, 2019, the Defendant contacted his friend, Mr. Joe Ramirez, on 

Facebook about purchasing a .40 caliber Glock. The Defendant and Mr. Ramirez had 

known each other for about seven years and grew up playing basketball in the same 

neighborhood. After agreeing to sell the firearm, Mr. Ramirez and another friend, Mr. 

Julio Almaraz, drove to meet the Defendant at the Scottish Inns in Jackson, Tennessee. At 

the Scottish Inns, the Defendant paid Mr. Ramirez $460, and Mr. Ramirez gave the 

Defendant the Glock. After the exchange, the Defendant asked the men to drive him to his 

grandmother’s house, and he gave Mr. Almaraz gas money. 

When the trio left the Scottish Inns, Mr. Almaraz was driving, Mr. Ramirez was 

seated in the passenger seat, and the Defendant was sitting in the backseat on the driver’s 

side. Mr. Ramirez testified that the Defendant “seemed calm, just normal,” and he did not 

notice anything “out of the ordinary.” Following the Defendant’s directions, Mr. Almaraz 

drove toward Lane College in southeast Jackson. About ten to fifteen minutes into the 

drive, Mr. Ramirez noticed that the directions the Defendant provided were taking them in 

circles, and he began to “notice something was up.” 

The Defendant asked Mr. Almaraz to stop in front of a house on Middleton Street 

that looked vacant. Moments later, the Defendant shot both Mr. Ramirez and Mr. Almaraz. 

Mr. Almaraz slumped over the steering wheel, and the car rolled into an embankment. Mr. 

Ramirez briefly lost consciousness, and when he woke, the Defendant was already gone. 

Mr. Ramirez then called 911 for help. Mr. Ramirez survived, but Mr. Almaraz died about 

two weeks later because of complications from the gunshot wound. 

The Defendant was later arrested on October 4, 2019, while law enforcement 

officers were investigating an unrelated shooting involving the Defendant. In an interview 

following the Defendant’s arrest, the Defendant initially denied any involvement in the 

crimes. After being confronted with other evidence, however, the Defendant admitted that 

he shot both Mr. Almaraz and Mr. Ramirez. According to the testimony of a police 

investigator, when asked for a reason for the shootings, the Defendant said that “[t]he best 

he could ever give was that Joe Ramirez was challenging his manhood . . . and that that 
3 

had upset him.” The Defendant also said that he shot Mr. Almaraz because he “couldn’t 

leave a witness.” 

B. EXPERT TESTIMONY

Before trial, the Defendant filed a Notice of Insanity/Diminished Capacity Defense 

and Intent to use Expert Testimony. The trial court granted the State’s request for a forensic 

evaluation, and Dr. Sophia Fouche evaluated the Defendant at Pathways Behavioral Health 

Services. Additionally, the State filed a motion in limine to determine whether the 

testimony of the defense expert, Dr. Keith Caruso, was admissible. 

During the hearing on the motion, the State examined Dr. Caruso. Dr. Caruso 

testified that the Defendant could not have formed the premeditation necessary for the 

crimes because the Defendant was in a manic episode caused by Bipolar I disorder. Dr. 

Caruso testified as to the information that he relied upon in forming his opinion, including, 

among other things, the subsequent October 4 shooting also involving the Defendant 

(hereinafter “October Shooting”). 

After the hearing, the trial court determined that Dr. Caruso would be permitted to 

testify about whether the Defendant’s suffering from Bipolar I disorder prevented him from 

being able to form premeditation. The State made clear that it planned to cross-examine 

Dr. Caruso on whether he considered the October Shooting in reaching his opinion that the 

Defendant was in a manic episode when the earlier shootings occurred in September. The 

State argued that if Dr. Caruso testified about the information he relied upon to reach his 

opinion, the State should be permitted to cross-examine him about that information, 

including the October Shooting. The trial court declined to rule immediately on this issue 

but instead deferred the question until after Dr. Caruso testified on direct examination. 

1. Direct Examination of Defense Expert 

At trial, Dr. Caruso testified that he was a board-certified general and forensic 

psychiatrist, and the trial court recognized him as an expert in forensic psychiatry. Dr. 

Caruso said that he evaluated the Defendant before the trial. This evaluation involved 

interviewing the Defendant and his mother, as well as reviewing pertinent records, 

including but not limited to “police reports, the videos of [the Defendant’s] statements, the 

photos associated with th[e] case, TBI records, autopsy records” as well as other videos of 

witness interviews, and prior mental health treatment records, as well as the report from 

the State’s forensic psychiatrist. 
4 

Based on his evaluation, Dr. Caruso concluded that the Defendant was suffering 

from “Bipolar I disorder, most recent episode manic with mixed features.” Dr. Caruso 

explained that these episodes with “mixed features” were either a manic episode in which 

the Defendant experienced depressive symptoms or a depressive episode in which the 

Defendant also experienced manic symptoms. Dr. Caruso confirmed that he relied upon 

the criteria in the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders

(“DSM-V”) in reaching his conclusion regarding the Defendant’s Bipolar I disorder 

diagnosis. 

Further, Dr. Caruso testified with a reasonable degree of medical certainty that 

Bipolar I disorder was a serious mental illness. In Dr. Caruso’s opinion, this serious mental 

illness precluded the Defendant from being able to form the required mental state to 

premeditate the offenses of first degree murder or attempted first degree murder. He opined 

that the Defendant was acting in a way that demonstrated an inability to plan due to his 

mania. Dr. Caruso felt that the Defendant’s manic state was so severe that he could not act 

in the absence of passion and excitement. 

2. Jury-Out Hearing

After Dr. Caruso’s direct examination testimony, the trial court held a hearing 

outside the jury’s presence regarding the anticipated scope of the State’s crossexamination. The State noted that the Defendant had asked Dr. Caruso about some of the 

information he considered in reaching his conclusion about the Defendant’s ability to form 

premeditation. Pursuant to Tennessee Rule of Evidence 705, the State argued that it must 

be permitted to question him about the other information Dr. Caruso considered, including 

the fact of the October Shooting. Citing State v. Hall, 958 S.W.2d 679 (Tenn. 1997), the 

State asserted that it could cross-examine a defense expert about other-act evidence 

considered by that expert subject to the requirements of Tennessee Rule of Evidence 

404(b). 

The trial court agreed and analyzed the issue under Rule 404(b). The court first 

found that the testimony was relevant to “the mens rea issue and whether or not the 

defendant has the requisite ability to form the mental intent necessary to constitute the 

offense.” The trial court also found the October Shooting was established by clear and 

convincing evidence because the Defendant had been arrested near the scene of the offense 

with the firearm that had been used to commit the offense and that the Defendant had 

admitted to the offenses. Finally, the trial court concluded the probative value of the 

evidence was greater than any risk of undue prejudice, in part, because Dr. Caruso had 

considered the October Shooting in reaching his conclusions. As the trial court observed, 

“I just don’t see how we can get to a fair and just resolution of the mens rea issue without 

the entire facts and circumstances the doctor used to make his opinion.” The parties agreed 
5 

to a limiting instruction that the jury could consider the October Shooting only as to 

whether “the defendant had the requisite mental state to commit the crime.” 

3. Cross-Examination of Defense Expert

During cross-examination, Dr. Caruso testified that he was aware the Defendant was 

arrested and charged following the October Shooting. He also confirmed that the facts of 

the October Shooting were “almost identical” to the shootings in this case. However, Dr. 

Caruso testified that the Defendant was suffering from one continuous manic episode and 

that the manic episode prevented the Defendant from being able to premeditate or plan his 

actions. While the State expressed skepticism that the Defendant could remain in a manic 

state over the nine days separating the two shootings, Dr. Caruso explained that “[a] nineday manic episode is not unusual[.]” On redirect examination, Dr. Caruso stated that he 

had seen long manic episodes in his own patients “numerous times.” 

4. State’s Rebuttal Expert 

In the State’s rebuttal, Dr. Sophia Fouche, a clinical psychologist at Pathways 

Behavioral Health System, was admitted as an expert in clinical and forensic psychology. 

Dr. Fouche testified that she was ordered by the trial court to complete a forensic evaluation 

of the Defendant and that she performed the evaluation in November 2019. In conducting 

her evaluation, she relied upon her interview with the Defendant, along with her review of 

the Defendant’s court file, treatment records, and his interview with law enforcement in 

October 2019. 

Dr. Fouche detailed the Defendant’s treatment history at Pathways for the jury, 

which included his 2016 diagnoses for generalized anxiety disorder, major depressive 

disorder, other hallucinogenic use disorder, and post-traumatic stress disorder. 

Disagreeing with Dr. Caruso, Dr. Fouche testified that the Defendant was not suffering 

from undiagnosed Bipolar I disorder in 2019. Instead, Dr. Fouche opined that the 

Defendant suffered from generalized anxiety disorder and major depressive disorder. 

Ultimately, Dr. Fouche concluded that the Defendant did not lack the capacity to 

form premeditation at the time of the September 25, 2019 shootings. She noted that the 

Defendant told her that his state of mind on that day was “calm, cool, and collected.” 

Further, Dr. Fouche observed that his demeanor during his October 2019 interview with 

law enforcement was consistent with that description. 
6 

C. JUDGMENT, SENTENCING, AND APPEAL

The jury found the Defendant guilty on all charges.1 Following a sentencing hearing 

on February 23, 2022, the trial court sentenced the Defendant as a Range I, standard 

offender to an effective sentence of life imprisonment plus twenty-six years. The 

judgments were entered on March 16, 2022. 

The Defendant filed an untimely motion for a new trial on May 8, 2022, which was 

later withdrawn on September 27, 2022. Although the Defendant filed his notice of appeal 

late on August 15, 2022, this Court later waived the timely filing requirement and found 

that the interest of justice permitted this case to proceed. See Tenn. R. App. P. 4(a).

ANALYSIS

A. LEGAL SUFFICIENCY OF THE EVIDENCE

The Defendant first argues that the evidence presented at trial is insufficient to 

support his convictions for first degree murder and attempted first degree murder. He 

asserts that the State failed to prove that either offense was committed with premeditation. 

Specifically, the Defendant contends that given Dr. Caruso’s testimony that he had a severe 

mental disorder and that this disorder precluded him from being able to form premeditation, 

no reasonable juror could have rendered a guilty verdict. The State responds that the 

Defendant acknowledges that he shot both victims. The State further asserts that the jury 

resolved any conflicts between the differing opinions of Dr. Caruso and Dr. Fouche on 

whether the Defendant could form premeditation. We agree with the State. 

1. Standard of Appellate Review

“The standard for appellate review of a claim challenging the sufficiency of the 

State’s evidence is ‘whether, after viewing the evidence in the light most favorable to the 

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

beyond a reasonable doubt.’” State v. Miller, 638 S.W.3d 136, 157 (Tenn. 2021) (quoting 

Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This standard of review is “highly 

deferential” in favor of the jury’s verdict. See State v. Lyons, 669 S.W.3d 775, 791 (Tenn. 

2023). Indeed, this standard requires us to resolve all conflicts in favor of the State’s theory 

 1

 The Defendant raises no issue with his convictions for aggravated assault or for employing 

a firearm during the attempted commission of a dangerous offense. He also does not raise any issue with 

respect to his sentence for any conviction. As such, we do not address these issues further. See Tenn. R. 

App. P. 13(b) (“Review generally will extend only to those issues presented for review.”).
7 

and to view the credited testimony in a light most favorable to the State. State v. McKinney, 

669 S.W.3d 753, 772 (Tenn. 2023). To that end, “[w]e do not reweigh the evidence, 

because questions regarding witness credibility, the weight to be given the evidence, and 

factual issues raised by the evidence are resolved by the jury, as the trier of fact.” State v. 

Shackleford, 673 S.W.3d 243, 250 (Tenn. 2023) (citations omitted). “The standard of 

review is the same whether the conviction is based upon direct or circumstantial evidence.” 

State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (internal quotation marks and citation 

omitted).

2. First Degree Murder and Attempted First Degree Murder

As charged in this case, first degree murder is “[a] premeditated and intentional 

killing of another[.]” Tenn. Code Ann. § 39-13-202(a)(1) (2018). A person acts 

intentionally “when it is the person’s conscious objective or desire to engage in the conduct 

or cause the result.” Id. § 39-11-302(a). As charged in this case, the offense of attempted 

first degree murder is committed when a person acts with the intent to commit premeditated 

first degree murder and “[a]cts with intent to cause a result that is an element of the offense, 

and believes the conduct will cause the result without further conduct on the person’s part.” 

Id. § 39-12-101(a)(2); State v. Wooten, No. W2022-00315-CCA-R3-CD, 2022 WL 

16919957, at *6 (Tenn. Crim. App. Nov. 14, 2022), perm. app. denied (Tenn. Mar. 8, 

2023).

Our General Assembly has defined “premeditation” as being

an act done after the exercise of reflection and judgment. “Premeditation”

means that the intent to kill must have been formed prior to the act itself. It 

is not necessary that the purpose to kill preexist in the mind of the accused 

for any definite period of time. The mental state of the accused at the time 

the accused allegedly decided to kill must be carefully considered in order to 

determine whether the accused was sufficiently free from excitement and 

passion as to be capable of premeditation.

Tenn. Code Ann. § 39-13-202(d) (subsequently amended). Like any other element of an 

offense, “the State must prove premeditation beyond a reasonable doubt.” Miller, 638 

S.W.3d at 159. 

The question of “[w]hether premeditation is present in a given case is a question of 

fact to be determined by the jury from all of the circumstances surrounding the 

killing.” State v. Davidson, 121 S.W.3d 600, 614 (Tenn. 2003). As our supreme court has 

observed,
8 

Several factors are considered to infer premeditation: the use of a deadly 

weapon upon an unarmed victim, the particular cruelty of the killing, declarations by the defendant of an intent to kill, evidence of procurement of a 

weapon, preparations before the killing for concealment of the crime, and 

calmness immediately after the killing. Additional considerations include a 

lack of provocation on the victim’s part and a defendant’s failure to render 

aid to a victim.

State v. Clayton, 535 S.W.3d 829, 845 (Tenn. 2017) (internal citations omitted). “[I]n 

determining the existence of premeditation, the trier of fact ‘may not engage in 

speculation.’” State v. Reynolds, 635 S.W.3d 893, 918 (Tenn. 2021) (quoting State v. 

Jackson, 173 S.W.3d 401, 408 (Tenn. 2005)). That said, “Tennessee cases have long 

recognized that premeditation may be proved by circumstantial evidence” because 

“premeditation involves the defendant’s state of mind, concerning which there is often no 

direct evidence.” Davidson, 121 S.W.3d at 614-15.

3. Premeditation

In this case, the jury heard from expert witnesses offered by each party as to the 

Defendant’s mental state at the time of the offense. The Defendant offered the testimony 

of Dr. Caruso, who testified that the Defendant was suffering from Bipolar I disorder and 

was in the midst of a manic episode on September 25, 2019. Dr. Caruso also testified that 

this manic episode prevented the Defendant from being able to act sufficiently free from 

excitement and passion. 

In response, the State offered the testimony of Dr. Fouche, who disagreed with Dr. 

Caruso’s diagnosis of Bipolar I disorder. Instead, she diagnosed the Defendant as having 

generalized anxiety disorder and major depressive disorder. Dr. Fouche testified that, 

based on her evaluations of the Defendant, he did not lack the capacity to form 

premeditation at the time of the offenses. 

In reviewing the legal sufficiency of the evidence, the law requires us to accredit the 

testimony of the State’s witnesses, such as Dr. Fouche. Shackleford, 673 S.W.3d at 250. 

It requires us to discard any countervailing evidence, such as Dr. Caruso’s conflicting 

testimony. State v. Weems, 619 S.W.3d 208, 221 (Tenn. 2021). It also requires us to 

resolve all conflicts in favor of the State’s theory and to view the credited testimony in a 

light most favorable to the State. McKinney, 669 S.W.3d at 772. Looking at the evidence 

through the lens of the proper standard of review, it is clear that the jury credited Dr. 

Fouche’s testimony over Dr. Caruso’s conflicting testimony, as it was privileged to do. 

State v. Flake, 88 S.W.3d 540, 554 (Tenn. 2002) (“The weight and value to be given expert 
9 

testimony is a question for the jury. Where there is a conflict in the evidence, the trier of 

fact is not required to accept expert testimony over other evidence and must determine the 

weight and credibility of each in light of all the facts and circumstances of the case.” 

(citation omitted)). Dr. Fouche’s opinion provided sufficient proof from which a 

reasonable juror could have concluded that the Defendant could form premeditation and 

act independently from excitement or passion.

The record also contains sufficient evidence from which a reasonable juror could 

conclude that the Defendant acted with premeditation in the murder of Mr. Almaraz and 

the attempted murder of Mr. Ramirez. Viewing the evidence in a light most favorable to 

the State, the proof shows that the Defendant shot Mr. Almaraz in the face at close range, 

and Mr. Almaraz died about two weeks later from complications of the wound. Likewise, 

the Defendant also shot Mr. Ramirez in the face at close range. In a statement later given 

to law enforcement, the Defendant admitted that he decided to shoot Mr. Ramirez before 

they left the Scottish Inns because Mr. Ramirez had challenged “his manhood.” The 

Defendant asked for a ride away from the Scottish Inns so that he could shoot both victims. 

The Defendant also said that he shot Mr. Almaraz because he “couldn’t leave a witness.” 

After the shootings, the Defendant displayed disregard for his victims by failing to render 

aid or summon help, and he left the scene to walk back to the Scottish Inns. Under the 

deferential standard of review, we conclude that a reasonable juror could have found the 

element of premeditation beyond a reasonable doubt. 

The Defendant argues vigorously that the trial court improperly allowed the State 

to cross-examine Dr. Caruso about his consideration of the October Shooting and that 

without this inadmissible evidence, no reasonable juror could have found the Defendant 

guilty. We respectfully disagree. Even if this evidence were improperly admitted—and it 

was not, as we discuss below—the law is clear that the legal sufficiency of the evidence 

“must be examined in light of all the evidence presented to the jury, including that which 

is improperly admitted.” State v. Long, 45 S.W.3d 611, 619 (Tenn. Crim. App. 2000) 

(citing Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); State v. Longstreet, 619 S.W.2d 97, 

100-01 (Tenn. 1981)) (emphasis added). 

As such, on our review here, we may not simply view the evidence as if the jury had 

not heard the entirety of Dr. Caruso’s cross-examination, including references to the 

October Shooting. Instead, we view all of the evidence in the light most favorable to the 

State. State v. Sharp, 327 S.W.3d 704, 713 (Tenn. Crim. App. 2010) (“[W]e point out that 

the United States Supreme Court has held that when a conviction is reversed due to the 

admittance of inadmissible evidence[,] the appellate court must still consider the evidence 

in question when determining whether the evidence was sufficient to support [t]he 

conviction.”). In so doing, we conclude that a reasonable juror could find all of the 

elements of first degree murder and attempted first degree murder beyond a reasonable 
10 

doubt, including the element of premeditation. The Defendant is not entitled to relief on 

this issue.

B. CROSS-EXAMINATION OF THE DEFENSE EXPERT ABOUT THE OCTOBER 

SHOOTING

The main dispute at trial centered on the Defendant’s mental state at the time of the 

offenses. Both parties presented expert proof as to the Defendant’s ability to form 

premeditation and act sufficiently free from excitement or passion. During his direct 

examination, Dr. Caruso opined that the Defendant could not form premeditation on 

September 25, 2019, because he was in the midst of a manic episode. On crossexamination, the State questioned Dr. Caruso about whether and to what extent the October 

Shooting affected his opinion about the Defendant’s earlier mental state. 

The Defendant asserts that the trial court committed plain error by permitting any 

questioning that mentioned the October Shooting because the risk of prejudice to the jury 

outweighed its probative value in violation of Tennessee Rule of Evidence 404(b). Further, 

he contends that this error violated a clear and unequivocal rule of law, that it deprived him 

of a fair trial, and that reversal is necessary to do substantial justice.

The State responds that the Defendant has failed to show that he is entitled to plain 

error relief. It asserts that the trial court did not breach a clear and unequivocal rule of law, 

that no substantial right was adversely affected, and that consideration of this issue is not 

necessary to do substantial justice. We agree with the State.

1. Standard of Appellate Review

“Before a defendant may raise an issue on appeal as the basis for seeking a new trial, 

the defendant must present the issue to the trial court in a timely, written motion for a new 

trial.” State v. Funk, No. E2022-01367-CCA-R3-CD, 2023 WL 7130289, at *2 (Tenn. 

Crim. App. Oct. 30, 2023) (citations omitted), no perm. app. filed. Except for issues related 

to the sufficiency of the convicting evidence and sentencing, the failure to file a timely 

motion for a new trial waives plenary review of all issues on appeal that could have resulted 

in a new trial. State v. Hatcher, 310 S.W.3d 788, 808 (Tenn. 2010). In that circumstance, 

a defendant may obtain relief, if at all, under the standards governing plain error review. 

See Howard v. State, 604 S.W.3d 53, 62 (Tenn. 2020).

In this case, the Defendant objected to the scope of Dr. Caruso’s cross-examination 

at trial. However, the Defendant filed his motion for a new trial some seventy-four days 

after the judgment and well past the thirty-day deadline imposed by Tennessee Rule of 
11 

Criminal Procedure 33(b). Because the motion for a new trial was untimely, it was a nullity 

and did not preserve this issue for plenary review. State v. Bough, 152 S.W.3d 453, 460 

(Tenn. 2004) (“If a motion for new trial is not timely filed, all issues are deemed waived 

except for sufficiency of evidence and sentencing.”). As such, the Defendant may obtain 

relief, if at all, under the standards governing plain error review. Both parties agree with 

this conclusion.

Our supreme court has recognized that “[u]nlike plenary review, which applies to 

all claims of error that are properly preserved, plain error review is limited to those errors 

which satisfy five criteria.” State v. Vance, 596 S.W.3d 229, 254 (Tenn. 2020). These 

criteria are as follows:

(a) the record must clearly establish what occurred in the trial court;

(b) a clear and unequivocal rule of law must have been breached;

(c) a substantial right of the accused must have been adversely affected;

(d) the accused did not waive the issue for tactical reasons; and

(e) consideration of the error is “necessary to do substantial justice.”

See, e.g., State v. Jones, 589 S.W.3d 747, 762 (Tenn. 2019). Whether plain error exists 

“must depend upon the facts and circumstances of the particular case.” State v. Smith, 24 

S.W.3d 274, 282 (Tenn. 2000). Even then, however, the “plain error must be of such a 

great magnitude that it probably changed the outcome of the trial,” State v. Adkisson, 899 

S.W.2d 626, 642 (Tenn. Crim. App. 1994), and only “rarely will plain error review extend 

to an evidentiary issue.” State v. Haymer, 671 S.W.3d 568, 578 (Tenn. Crim. App. 2023) 

(citation omitted). 

Importantly, the “defendant bears the burden of establishing all of these elements.” 

State v. Linville, 647 S.W.3d 344, 354 (Tenn. 2022). As such, an appellate court “need not 

consider all of the elements when it is clear from the record that at least one [of] them 

cannot be satisfied.” Reynolds, 635 S.W.3d 931. “Whether the plain error doctrine has 

been satisfied is a question of law which we review de novo.” State v. Knowles, 470 

S.W.3d 416, 423 (Tenn. 2016).
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2. Breach of Clear and Unequivocal Rule of Law

The Defendant first argues that the trial court violated a clear and unequivocal rule 

of law when it allowed the jury to hear testimony regarding the October Shooting. He 

asserts that the evidence was inadmissible under Tennessee Rule of Evidence 404(b) 

because the risk of prejudice was too great given the similarities between the two shootings. 

We respectfully disagree. 

a. Tennessee Rule of Evidence 705

On the morning of the trial, the State sought a ruling from the trial court that it be 

permitted to cross-examine Dr. Caruso about his consideration of the October Shooting. 

The State argued that it was permitted to ask questions about the October Shooting pursuant 

to Tennessee Rule of Evidence 705. 

Rule 705 states that “[t]he expert may testify in terms of opinion or inference and 

give reasons without prior disclosure of the underlying facts or data, unless the court 

requires otherwise. The expert may in any event be required to disclose the underlying 

facts or data on cross-examination.” The extent of permissible disclosure of information 

on cross-examination is broader than what may be shared on direct examination under Rule 

703. See Neil P. Cohen, et al., Tennessee Law of Evidence § 7.05[3] (6th ed. 2011) (“While 

there are limits on the sharing of [an expert’s] underlying facts on direct examination, their 

disclosure can be required on cross-examination by Rule 705.”). As our Court of Appeals 

has observed, 

[O]nce an expert has given an opinion, he or she may be vigorously crossexamined to undermine the evidentiary weight of the opinion. Opposing 

counsel should be given broad latitude in their cross-examination. Thus, 

cross-examination may be used to require an expert to disclose and explain 

the facts or data upon which his or her opinion is based. Just as an expert 

may be cross-examined regarding the facts or data he or she considered, an 

expert may be also cross-examined regarding the facts or data that he or she 

did not consider and the reasons for not considering these facts or data. 

Duran v. Hyundai Motor America, Inc., 271 S.W.3d 178, 197 (Tenn. Ct. App. 2008) 

(citations omitted), perm. app. denied (Tenn. Aug. 25, 2008); State v. Farner, 66 S.W.3d 

188, 208 (Tenn. 2001) (“Once the evidence [of the expert’s opinion] has been admitted, 

the defense is given broad latitude to test the validity of the expert’s opinion on cross[-

]examination.”).
13 

Importantly, the disclosure of a defendant’s “prior bad acts” is not categorically 

exempt from disclosure under Rule 705 when those acts are considered by an expert in 

forming an opinion. On the contrary, Rule 705 “allows the prosecution to impeach the 

expert’s diagnosis by inquiring into any of the defendant’s prior bad acts contained in 

reports relied on by the expert in evaluating the defendant.” See State v. Thacker, 164 

S.W.3d 208, 228 (Tenn. 2005); State v. Holloway, No. E2004-00882-CCA-R3-CD, 2005 

WL 1981791, at *11 (Tenn. Crim. App. Aug. 16, 2005) (“We agree with the trial court 

that the purpose of questioning Dr. Smith about the prior bad acts of the Appellant was not 

to show conformity with a character trait. Rather, the information was elicited from Dr. 

Smith to challenge his diagnosis of the Appellant.” (citing Tenn. R. Evid. 705)), perm. app. 

denied (Tenn. Feb. 26, 2007).

However, special considerations arise when the impeaching evidence involves a 

defendant’s other crimes, wrongs, or acts. In State v. Hall, 958 S.W.2d 679, 712 (Tenn. 

1997) (appendix), our supreme court affirmed a decision from this court recognizing that 

other-act evidence may be admissible to impeach the credibility of an expert witness under 

Rule 705. However, this evidence is nevertheless inadmissible where the danger of unfair 

prejudice outweighs its probative value for impeachment. See id. (“As discussed earlier, 

Rule 404(b), Tenn. R. Evid., deals with the admission of prior bad acts of the 

defendant. . . . We conclude that the prior bad acts contained in the investigator’s report 

upon which Dr. Meyer, in part, based his evaluation of the defendant were admissible to 

impeach the doctor’s diagnosis and that the danger of their prejudicial effect did not 

outweigh their probative value.”); see also State v. Sheffield, 676 S.W.2d 542, 553 (Tenn. 

1984) (“It is permissible to allow reasonable latitude for testing the basis of an expert 

opinion but when that involves the use of otherwise inadmissible and highly prejudicial 

evidence, the trial judge must balance the probative value of the proffered evidence against 

the prejudicial effect upon defendant.”).2

 Of course, “[t]he underlying facts and data that 

are elicited during the cross-examination of the expert are not admitted as substantive 

evidence. They are admitted for the limited and independent purpose of enabling the jury 

to scrutinize the expert’s reasoning.” See State v. Hodges, No. 01C01-9212-CR00382, 

1995 WL 301443, at *16 (Tenn. Crim. App. May 18, 1995) citation and internal quotation 

marks omitted), aff’d, 944 S.W.2d 346 (Tenn. 1997).

 2 Aside from evidence of other crimes, wrongs, or acts, evidence admitted for the limited 

purpose recognized by Rule 705 may still be excluded if its probative value for impeachment is substantially 

outweighed by the danger of unfair prejudice. Tenn. R. Evid. 403.
14 

b. Tennessee Rule of Evidence 404(b)

To that end, the parties disagree about the admissibility of the October Shooting 

under Tennessee Rule of Evidence 404(b). This rule provides as follows:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity with the character 

trait. It may, however, be admissible for other purposes. The conditions 

which must be satisfied before allowing such evidence are:

1. The court upon request must hold a hearing outside the jury’s presence;

2. The court must determine that a material issue exists other than conduct conforming with a character trait and must upon request state on 

the record the material issue, the ruling, and the reasons for admitting 

the evidence;

3. The court must find proof of the other crime, wrong, or act to be clear 

and convincing; and

4. The court must exclude the evidence if its probative value is outweighed by the danger of unfair prejudice. 

Tenn. R. Evid. 404(b). 

Generally, a trial court’s decision to exclude or admit evidence will not be disturbed 

absent an abuse of discretion. Thacker, 164 S.W.3d at 240 (citing State v. DuBose, 953 

S.W.2d 649, 654 (Tenn. 1997)). “However, when we consider evidence that implicates 

Tenn. R. Evid. 404(b), we review the trial court’s admissibility ruling de novo unless the 

trial court substantially complied with the procedures outlined in Rule 404(b).” State v. 

Clark, 452 S.W.3d 268, 287 (Tenn. 2014). As such, “[i]f the trial court substantially 

complied with Tenn. R. Evid. 404(b), we will overturn the ruling only if the trial court 

abused its discretion.” Id. (citing State v. Kiser, 284 S.W.3d 227, 288-89 (Tenn. 2009)). 

“A court abuses its discretion when it causes an injustice to the party challenging the 

decision by (1) applying an incorrect legal standard, (2) reaching an illogical or 

unreasonable decision, or (3) basing its decision on a clearly erroneous assessment of the 

evidence.” Reynolds, 635 S.W.3d at 921 (citation and internal quotation marks omitted).
15 

In this case, the trial court substantially complied with the procedural requirements 

of Rule 404(b). It held a jury-out hearing as requested by the State. The court determined 

that the Defendant’s mens rea and ability to form premeditation were relevant and material 

issues in the case. It concluded that clear and convincing evidence existed to show the 

Defendant’s involvement in the October Shooting. It also found that because Dr. Caruso 

had testified at a pretrial hearing that he considered the October Shooting in forming his 

opinion, the probative value of the evidence outweighed the risk of unfair prejudice. As 

such, we review the trial court’s decision allowing the State to cross-examine Dr. Caruso 

about his consideration of the October Shooting for an abuse of discretion. 

Even though the trial court complied with the procedural requirements of Rule 

404(b), the Defendant asserts that the timing of the trial court’s decision forced him “to 

open Pandora’s box without a full understanding of the consequences[.]” More 

specifically, he argues that he was forced “to litigate not just the allegations underpinning 

this case, but also defend himself against allegations of a second, identical shooting for 

which he was not on trial.” We respectfully disagree.

Before trial, the State filed a motion in limine for the trial court to determine the 

admissibility of Dr. Caruso’s testimony. During Dr. Caruso’s testimony during the motion 

hearing, he testified that he had considered the October Shooting in reaching his opinion 

on the Defendant’s mental state. Based on that answer, the State argued that it intended to 

impeach Dr. Caruso regarding the October Shooting during cross-examination thereby, 

putting the Defendant on notice to anticipate this issue to be litigated during trial. Although 

the Defendant now asserts that he was “required to open Pandora’s box,” he knew that his 

expert had considered the October Shooting in his own analysis and that the State was 

seeking to ask about that consideration. By calling Dr. Caruso at trial, the Defendant did 

indeed open Pandora’s box, but he did so voluntarily. He may not now argue that his hand 

was forced by the trial court when his expert witness was cross-examined about 

information he considered in forming an opinion. 

More importantly, the Defendant does not assert that the trial court failed to properly 

analyze whether the testimony was admissible pursuant to Rule 404(b); he simply disagrees 

with the trial court’s determination that the probative value of the evidence outweighed the 

potential prejudice. However, the abuse of discretion standard of appellate review is 

important to our analysis. When reviewing a trial court’s decision for an abuse of 

discretion, we must have “awareness that the decision being reviewed involved a choice 

among several acceptable alternatives.” Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 

(Tenn. 2010). To that end, we may not “second-guess a trial court’s exercise of its 

discretion simply because the trial court chose an alternative that [we] would not have 

chosen.” State v. McCaleb, 582 S.W.3d 179, 186 (Tenn. 2019). We also may not substitute 

our judgment for that of the trial court simply because we believe that another choice would 

have been the “best decision.” State v. Willis, 496 S.W.3d 653, 729 (Tenn. 2016).
16 

Although it is possible that others could reach a different conclusion, the trial court’s 

decision here was not illogical, nor was it unreasonable. To the contrary, the court 

identified and applied the correct standard of law, made findings that have support in the 

record, and made a reasoned choice between acceptable alternatives. As such, even if 

“reasonable minds can disagree with the propriety of the decision,” we conclude that the 

trial court acted within its discretion to allow the State to cross-examine Dr. Caruso

regarding the effect of the October Shooting on his analysis of the Defendant’s ability to 

form premeditation. McCaleb, 582 S.W.3d at 186. 

Respectfully, the Defendant’s disagreement with the trial court’s discretionary 

decision does not constitute a breach of a clear and unequivocal rule of law. Because the 

Defendant has not established this factor essential to plain error relief, we affirm the trial 

court’s judgments.

CONCLUSION

In summary, we hold that the evidence was sufficient to sustain the Defendant’s 

convictions for first degree murder and attempted first degree murder. We further hold 

that the trial court did not commit plain error in permitting the Defendant’s expert witness 

to be cross-examined about other-acts evidence he considered when forming an opinion 

about the Defendant’s ability to form premeditation. Accordingly, we respectfully affirm 

the judgments of the trial court.

____________________________________

TOM GREENHOLTZ, JUDGE