                                                                                         08/20/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs July 8, 2020

                  CORDELL ASH v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                  No. 14-04488       Carolyn W. Blackett, Judge
                     ___________________________________

                           No. W2019-01172-CCA-R3-PC
                       ___________________________________


A Shelby County jury convicted the defendant, Cordell Ash, of especially aggravated
robbery, attempted first-degree murder, employing a firearm during the commission of a
dangerous felony, and being a convicted felon in possession of a handgun. Following a
sentencing hearing, the trial court imposed an effective sentence of thirty years in
confinement. In this delayed appeal, the defendant argues the trial court erred in denying
his motion for mistrial after the victim made a reference to the defendant’s alleged gang
activity. After reviewing the record and considering the applicable law, we affirm the
judgments of the trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS,
P.J., and ROBERT W. WEDEMEYER, J., joined.

Patrick E. Stegall, Memphis, Tennessee, for the appellant, Cordell Ash.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Paul Hagerman and
Anita Spinetta, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                       OPINION

                              Facts and Procedural History

        On January 7, 2013, Derrick Key and his girlfriend, Patrice Gayden, were watching
television in their apartment. Mr. Key decided to go to a nearby gas station to pick up
snacks, and, as he was walking down the stairs outside of his apartment, Mr. Key heard
two voices below him saying “drop it off, freeze, drop it off, freeze, freeze, freeze.”
Because Mr. Key knew the phrase “drop it off” meant a robbery was occurring, he quickly
ran down the stairs and into the street. Mr. Key was two houses down from his apartment
building when the first assailant caught up to him, grabbed the back of his shirt, and hit
him in the head with a gun. Mr. Key turned around and saw that both assailants were
wearing homemade ski masks.

       Mr. Key initially believed he could overpower the assailants because of their small
size. However, he reasoned that they would shoot him if he tried to fight back, so he put
his hands up and began backing away from the two men. The assailants began hitting Mr.
Key repeatedly with their guns, causing him to fall against a nearby gate. One of the
assailants was “swinging wildly,” and his mask came off of his face and became stuck in
his braids. Mr. Key saw the man’s face and recognized him as the defendant, whom Mr.
Key had known for approximately twenty years from the neighborhood Boys and Girls
Club. Specifically, Mr. Key recognized the defendant’s “distinctive,” “smushed in nose,
[which] gave him clean away.” However, Mr. Key did not know the defendant’s real name
and had always called him “Little Cord” or “Little Foo Foo.”

        The defendant and his accomplice asked Mr. Key where his money was, and Mr.
Key, who had $23 on him, told them it was in his left pocket. The men then pulled Mr.
Key’s pants off and ran away. At that point, Mr. Key believed the ordeal was over.
However, when the men were several yards away, they turned around and began shooting
at Mr. Key, who was still on the ground. After the defendant and his accomplice finally
left, Mr. Key began walking towards his apartment, initially unaware that he had been shot
three times in his legs.

       While waiting for Mr. Key to return, Ms. Gayden heard a voice outside of her
apartment screaming “help me, stop.” She looked outside and saw two men beating up
another man in the middle of the street. One of the assailants pulled the victim’s pants off
and shot the victim before running away. Ms. Gayden did not initially realize Mr. Key was
the victim of the assault until she saw him walking back toward their apartment. When he
reached their apartment building, Mr. Key collapsed in the exterior stairwell, and Ms.
Gayden called 911. While waiting for an ambulance to arrive, Mr. Key believed he was
going to die and told Ms. Gayden to let his mother and daughter know that he loved them.

        The next day at the hospital, Mr. Key told his mother, Cheryl Dockery, and Ms.
Gayden that the defendant was one of his attackers. However, he did not initially disclose
this information to the police because he was afraid of retaliation in his neighborhood.
Eventually, Mr. Key’s mother convinced him to tell the police what he knew, and he told
detectives that “Little Cord” was one of his assailants. Several days later, Mr. Key was
shown a photo line-up and identified the defendant’s photograph.

                                           -2-
       Officer Nathan Newman with the Memphis Police Department responded to a
shooting call at Mr. Key’s apartment. When he arrived, Officer Newman discovered Mr.
Key in the stairwell in front of the apartment building. Mr. Key was suffering from
multiple gunshot wounds to his legs and was slow to respond to Officer Newman’s
questions. Following his interaction with Mr. Key, Officer Newman proceeded to secure
the scene and locate evidence. On the sidewalk in front of the apartment building, Officer
Newman located two .40 caliber shell casings, a spent projectile, Mr. Key’s cell phone, and
two bags of cocaine.

        Officer Sam Blue with the Memphis Police Department’s Crime Scene
Investigation Unit also responded to the scene. Upon arriving at the apartment building,
Officer Blue photographed the scene and collected the evidence previously located by
Officer Newman. Because the crime scene was outdoors and in a public space, Officer
Blue acknowledged he could not be certain the evidence located at the scene was relevant
to this case.

       At trial, the State called Patrice Gayden, Derrick Key, Officer Nathan Newman,
Officer Sam Blue, and Cheryl Dockery as witnesses, and all rendered testimony consistent
with the foregoing. Juaquatta Harris with the Shelby County Sheriff’s Office testified she
is responsible for monitoring and disseminating inmate phone calls, and, in February 2013,
Ms. Harris received a request from Sergeant Eric Petrowski to monitor the defendant’s jail
calls. The State played several of the defendant’s jail calls for the jury, and Ms. Harris
agreed they did not contain a confession of any kind from the defendant. However, the
defendant did tell Mr. Key’s brother, Lacy, to “keep [the defendant’s] name out of it.”
Additionally, in several calls, the defendant told the person on the other end of the call to
“make sure dude doesn’t come to court.”

       On cross-examination, Mr. Key admitted to having a pending drug case and
acknowledged he used drugs following the shooting. However, Mr. Key testified he was
clean for several years prior to his attack and only began using again after he suffered an
emotional breakdown following the shooting. Mr. Key also acknowledged that his trial
testimony was the first time he stated under oath that the reason he waited a month to tell
the police the defendant’s name was because he was worried for his safety.

      The defendant called Jimmy Beale, Jr., Ethel Bowen, Nigel Lewis, Sergeant Eric
Petrowski, Nadia Toney, and Officer Christopher Beaty as witnesses.

       Jimmy Beale, Jr. testified he met the defendant following the defendant’s release
from federal prison in 2012. They became friends, and the defendant began living at Mr.
Beale’s house with Mr. Beale and his father. Mr. Beale runs a well-known recording studio
out of his house, and several people in the neighborhood, including Mr. Key, come to the
                                            -3-
studio to record music. Mr. Beale testified the defendant could not have shot Mr. Key
because the defendant was at Mr. Beale’s recording studio on the day of the shooting with
Mr. Beale and several other people. On cross-examination, Mr. Beale admitted he never
told police the defendant was with him on the day of the shooting.

       Ethel Bowen, the defendant’s grandmother, testified she approached Mr. Key prior
to one of the defendant’s court appearances. Ms. Bowen told Mr. Key that the defendant
was not the person who shot him. However, Mr. Key stated he saw the defendant’s face
when the defendant’s mask came off during the altercation and became caught in the
defendant’s braids. Ms. Bowen tried to explain that this was impossible because the
defendant’s hairline is far back on his head, but Mr. Key was insistent the defendant was
one of his attackers. Mr. Key then told Ms. Bowen that if the defendant did not tell Mr.
Key who shot him, the defendant was “going to do 60 years.” On cross-examination, Ms.
Bowen admitted she did not know the defendant’s whereabouts on the night of the
shooting.

       Nigel Lewis, an attorney with the Shelby County Public Defender’s Office, testified
he represented the defendant for a short time prior to the defendant’s trial. At one of the
defendant’s hearings, Mr. Lewis spoke with Mr. Key and asked him about the shooting.
During their conversation, Mr. Key requested that Mr. Lewis ask the defendant who
committed the crime. However, during the hearing, when Mr. Lewis cross-examined Mr.
Key about their prior conversation, Mr. Key denied making such a request. On cross-
examination, Mr. Lewis acknowledged that there were two perpetrators and that Mr. Key
was never able to identify the second suspect.

        Sergeant Eric Petrowski, an investigator with the Memphis Police Department,
testified he was the lead investigator in this case. Sergeant Petrowski spoke with Mr. Key
in the hospital following the shooting, and Mr. Key stated he was able to recognize one of
his attackers because the eye holes in his mask were too big. However, at that time Mr.
Key did not provide his attacker’s name. Several weeks later, Sergeant Petrowski received
a call from Mr. Key, who identified “Little Cord” as one of the perpetrators. Using this
information, Sergeant Petrowski developed the defendant as a suspect. Sergeant Petrowski
acknowledged he did not test the evidence found at the crime scene for fingerprints and did
not ask Mr. Key about the cocaine found at the crime scene. On cross-examination,
Sergeant Petrowski agreed the defendant never stated he was at the recording studio with
Mr. Beale at the time of the shooting and did not provide an alibi of any kind.

       Nadia Toney, the defendant’s aunt, testified she went to school with Mr. Key’s
mother and had known Mr. Key for several years. Prior to one of the defendant’s court
appearances, Ms. Toney and her mother, Ms. Bowen, approached Mr. Key, who described
the details of the robbery and shooting. After Ms. Bowen walked away, Mr. Key told Ms.
                                           -4-
Toney that the defendant would go to jail if he did not tell Mr. Key who shot him.
Additionally, Mr. Key told Ms. Toney that he had “some guys” who were waiting on his
word to “do something” to the defendant. On cross-examination, Ms. Toney admitted she
never reported Mr. Key’s threat to the police.

       Officer Christopher Beaty with the Memphis Police Department testified he did not
recall responding to the scene of Mr. Key’s shooting or any details surrounding the
investigation. However, he acknowledged that the police report listed him as the
responding officer and that it was likely he wrote the narrative included in the report.
Officer Beaty agreed Ms. Gayden is the only person listed as a witness in the report, which
describes two suspects with fade hairstyles. On cross-examination, Officer Beaty admitted
that, because he could not recall this incident, he did not know where he acquired the
suspect information in the report.

        Following deliberations, the jury found the defendant guilty on all counts, and the
trial court subsequently sentenced the defendant to an effective sentence of thirty years in
confinement at 100 percent. The defendant filed a motion for new trial1, arguing the
evidence was insufficient to support his convictions; the trial court prejudiced the jury by
characterizing defense counsel’s cross-examination of a State’s witness as confusing; and
the trial court erred in excluding relevant evidence, finding the State had proven every
element of the offenses, allowing a witness to offer testimony which alleged gang activity,
allowing the admission of recorded jail conversations, and instructing the jury.

       Following the trial court’s denial of the motion for new trial, no notice of appeal
was filed. On September 12, 2018, approximately three years after the denial of the
defendant’s motion for new trial, the defendant attempted to file a document entitled
“Petition for Delayed Appeal (T.C.A. § 40-30-113).” This Court found the defendant was
attempting to file a petition for post-conviction relief and held the trial court was in the best
position to determine whether the defendant was deprived of his right to appeal his
convictions and sentence. Following the appointment of counsel, the trial court held a
hearing and granted the defendant’s petition for delayed appeal. This timely appeal
followed.

                                                 Analysis

      The defendant’s sole issue on appeal is the trial court’s denial of the defendant’s
motion to declare a mistrial. Specifically, the defendant argues Mr. Key’s reference to the
defendant as a gang member was highly prejudicial. The State contends the defendant has

        1
          The record does not contain the defendant’s motion for new trial. However, the amended motion
for new trial, which was filed on the morning of the motion for new trial hearing, is included in the record.
                                                   -5-
waived this issue for failing to include it in his motion for new trial. Furthermore, the State
argues the defendant is not entitled to relief under the plain error doctrine because no clear
and unequivocal rule of law was breached. We agree with the State.

        We must first address the State’s contention that the defendant’s issue is waived for
failing to include it in his motion for new trial. While the defendant’s motion for new trial
challenged the trial court’s decision to allow Mr. Key to testify regarding alleged gang
activity, the defendant failed to challenge the trial court’s denial of the motion for mistrial
in both his written motion and during the hearing on his motion for new trial. “[I]n all
cases tried by a jury, no issue presented for review shall be predicated upon . . . misconduct
of jurors, parties or counsel, or other action committed or occurring during the trial of the
case, or other ground upon which a new trial is sought, unless the same was specifically
stated in a motion for new trial; otherwise such issues will be treated as waived.” Tenn. R.
App. P. 3(e). Therefore, the defendant’s issue is waived. While the State argued waiver
in its brief, the defendant chose not to file a reply brief, and he has not requested plain error
review. Nonetheless, we will review this issue under the plain error doctrine.

       Before an error may be recognized under the plain error doctrine, it “must be ‘plain’
and it must affect a ‘substantial right’ of the accused.” State v. Adkisson, 899 S.W.2d 626,
639 (Tenn. Crim. App. 1994). “An error would have to [be] especially egregious in nature,
striking at the very heart of the fairness of the judicial proceeding, to rise to the level of
plain error.” State v. Page, 184 S.W.3d 223, 231 (Tenn. 2006). In State v. Smith, our
Supreme Court adopted Adkisson’s five-factor test for determining whether an error should
be recognized as plain:

       (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.”

24 S.W.3d 274, 282-83 (Tenn. 2000) (quoting Adkisson, 899 S.W.2d at 641-42). “[A]ll
five factors must be established by the record before this Court will recognize the existence
of plain error, and complete consideration of all the factors is not necessary when it is clear
from the record that at least one of the factors cannot be established.” Id. at 283.



                                              -6-
       The defendant contends the trial court erred in denying his motion for mistrial
following Mr. Key’s testimony regarding the defendant’s alleged gang affiliation. The
State submits the defendant failed to establish Mr. Key’s testimony precluded an impartial
verdict.

       During Mr. Key’s cross-examination, the following exchange occurred while
discussing Mr. Key’s month-long delay in identifying the defendant as one of the
perpetrators:

      DEFENSE COUNSEL:            At what point were you in fear?

      MR. KEY: What you mean? Somebody can kill you. I’m up here telling
      on the person who shot me even though I know I ain’t doing nothing wrong.

      DEFENSE COUNSEL:            Right.

      MR. KEY: He’s a gang member. He got 50 people under him listening to
      him that’s going to do what he say.

      Thereafter, a bench conference was held, and the following exchange occurred:

      DEFENSE COUNSEL:            I’m going to ask for a mistrial.

      TRIAL COURT:         Why?

      DEFENSE COUNSEL:            Because the witness has repeatedly – I tried to let
      it go and he repeatedly alleged but there is no proof in the record that my
      client is a gang member. He’s attempted to say that my client has been –
      he’s going –

      TRIAL COURT: That is purely a credibility question as to whether or not
      somebody is able to judge any witness who took the stand.

      ...

      DEFENSE COUNSEL:           The problem is what question did I ask him to
      ask him about some 50 members of gang members up under him who he can
      tell what he wants to do. Tell me what question I asked him that asked that.

      TRIAL COURT:         Excuse me?

                                           -7-
       DEFENSE COUNSEL:            What question did I ask him that elicited a
       statement that says he has 50 gang members under him?

       TRIAL COURT: Look, when I give the instructions in the final
       instructions, his credibility is to be weighed with any other witness, whether
       they believe him or not. There’s a lot of things he’s already said that it is a
       jury question as whether or not they believe his credibility, okay.

       DEFENSE COUNSEL:             Judge –

       TRIAL COURT: Now anything that goes to whether or not he’s been
       convicted or something like that, that’s very different. But people can say –
       make all kinds of allegations while they’re on the witness stand.

       DEFENSE COUNSEL:             That’s not true.

       TRIAL COURT: And that’s not grounds for a mistrial and I will not
       declare a mistrial on that.

       The decision of whether to grant a mistrial is within the sound discretion of the trial
court. State v. McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996). Normally, a
mistrial should be declared only in the event that a manifest necessity requires such action.
State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991). “In other words, a
mistrial is an appropriate remedy when a trial cannot continue, or a miscarriage of justice
would result if it did.” State v. Land, 34 S.W.3d 516, 527 (Tenn. Crim. App. 2000). The
burden to show the necessity for a mistrial falls upon the party seeking the mistrial. Id.
This Court will not disturb the trial court’s decision unless there is an abuse of discretion.
State v. Adkins, 786 S.W.2d 642, 644 (Tenn. 1990). In evaluating whether the trial court
abused its discretion, we may consider: “(1) whether the State elicited the testimony, (2)
whether the trial court gave a curative instruction, and (3) the relative strength or weakness
of the State’s proof.” State v. Welcome, 280 S.W.3d 215, 222 (Tenn. Crim. App. 2007).

       In applying these factors to the present case, we first note the State did not elicit the
testimony from Mr. Key. Instead, Mr. Key’s unprompted statement regarding the
defendant’s alleged gang affiliation came during questioning by defense counsel on cross-
examination. Secondly, although the trial court did not give a curative instruction
following Mr. Key’s statement, the defendant did not request an instruction. He has,
therefore, waived consideration of this factor. See Tenn. R. App. P. 36(a) (“Nothing in this
rule shall be construed as requiring relief be granted to a party responsible for an error or
who failed to take whatever action was reasonably available to prevent or nullify the
harmful effect of an error.”); State v. Jones, 733 S.W.2d 517, 522 (Tenn. Crim. App. 1987)
                                              -8-
(holding the failure to request a curative instruction constituted a failure to nullify the
harmful effect of improper testimony). Finally, the case against the defendant was strong.
Mr. Key testified he was able to see the defendant’s face when the defendant’s homemade
ski mask came off during the altercation. Mr. Key identified the defendant, who he had
known for several years, both in court and in a photo line-up. Additionally, although Mr.
Key waited several weeks to give the police the defendant’s name, he testified he told Ms.
Gayden and Ms. Dockery about the defendant’s involvement while he was in the hospital
following the shooting, which was corroborated by the testimony of both Ms. Gayden and
Ms. Dockery.

       Because all three factors weigh in favor of the State, we conclude the defendant has
not established the “manifest necessity” required for a mistrial. Thus, the trial court did
not abuse its discretion in denying the defendant’s request for a mistrial, and the defendant
has not established that a clear and unequivocal rule of law was breached. He is not entitled
to plain error relief. See Adkisson, 899 S.W.2d at 640-41.

                                        Conclusion

        Based on the foregoing authorities and reasoning, the judgments of the trial court
are affirmed.




                                              ____________________________________
                                              J. ROSS DYER, JUDGE




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