                                                                                         07/19/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs March 21, 2018

          STATE OF TENNESSEE v. PHILLIP DANIEL MORTON

                Appeal from the Criminal Court for Davidson County
                  No. 2012-D-3049 Cheryl A. Blackburn, Judge
                     ___________________________________

                           No. M2017-01083-CCA-R3-CD
                       ___________________________________

The Defendant-Appellant, Phillip Daniel Morton, was convicted by a Davidson County
jury of first degree murder, for which he received a life sentence. See T.C.A. § 39-13-
202. On appeal, the Defendant argues that the trial court erred in denying his (1) petition
for writ of error coram nobis and (2) request for a jury charge of voluntary intoxication.
Upon review, we affirm the judgments of the trial court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and NORMA MCGEE OGLE, J., joined.

Timothy C. Dunn, Nashville, Tennessee, for the appellant, Phillip Daniel Morton.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
Glenn Funk, District Attorney General; and Doug Thurman, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                       OPINION

      On August 23, 2012, after learning that his ex-girlfriend was assaulted by Keith
Gaston, the Defendant shot and killed Gaston, the victim, with a single gunshot to the
head while they were at Hard Times Bar & Grill.

       As relevant to the issues raised in this appeal, Dr. Adele Lewis, chief medical
examiner for Metro Nashville Davidson County, was tendered as an expert in the field of
forensic pathology and testified that she performed the autopsy of the victim on August
23, 2012. She concluded that the victim’s cause of death was a single gunshot to the
back of his head and explained that the gun had to be in contact with the victim’s head
when he was shot.
        Detective Matthew Filter of the Metropolitan Nashville Police Department
testified that he was assigned as the lead detective in the shooting, examined the scene,
and found the license of Taffney Crowder on the victim’s body. Detective Filter
recovered video surveillance footage from the bar and described the timeline of the
Defendant’s and the victim’s movements leading up to and after the shooting. Without
objection, the video recordings were admitted into evidence and played for the jury.

        Exhibit 6 contains thirteen clips from different camera views covering
approximately thirteen minutes before the shooting and several minutes afterward. In the
clips, the Defendant can be seen moving throughout the bar, walking back and forth from
the pool table area, through the bar area, to the dance floor and stage, and eventually into
the “cubbyhole” area behind where the victim was sitting. The Defendant’s friend, Arnie
Cosby, can be seen standing near the opposite end of the bar for most of the night, talking
with the Defendant whenever he passed by. Shortly before the shooting, the video
recording shows the Defendant waving Cosby over to the cubbyhole area. Once Cosby
joins the Defendant, the two men can be seen making their way toward the victim right
before the shooting occurs. Specifically, the video recording shows Cosby walking with
the Defendant directly behind him until they were directly beside the victim. The
victim’s date, Victoria Anderson, was in between the victim and the camera during the
shooting so it was not immediately evident who shot the victim. Once the shot was fired,
Cosby and the Defendant immediately ran away from the victim, and the Defendant can
be seen holding a beer in one hand and something under his shirt with his other hand.

       On cross-examination, Detective Filter confirmed that the Defendant was “frisked
or patted down” when he entered the bar. He confirmed that Shiema Reid was the
bartender that night but was not near the cubbyhole area when the shooting occurred. He
also confirmed that Robert Parker was working as a photographer at the bar that evening
and was standing adjacent to the area of the shooting.

       David Martin testified that he was working as a security guard at the bar on the
night of the shooting. He confirmed that the Defendant, nicknamed “Rabbit,” came to
the bar frequently and that, on the night of the shooting, the Defendant appeared angry
and told Martin, “I’m going to kill you[,]” while the Defendant was being frisked. He
confirmed that there were no security issues with the victim or anyone else in the bar
prior to the shooting. On cross-examination, Martin explained that even though the
Defendant is known as a “jokester,” the Defendant did not appear to be joking and that he
took the Defendant’s threat seriously.

       Samantha Seay, owner of Hard Times Bar & Grill, testified that she was
bartending on the night of the shooting with another bartender, Laquinta, and waitress,

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Shiema Reid. Seay provided the bar’s video recordings to the police and confirmed that
the Defendant was a regular patron at the bar and was present the night of the shooting.

       Vertricie Willis, the mother of the victim, testified that Taffney Crowder was the
victim’s live-in girlfriend. Willis said she went to the bar that night with the victim,
Victoria Anderson, and Michael McEwen. Willis testified that the Defendant approached
her and commented on her appearance, and that she later pointed the Defendant out to the
victim to which the victim responded that he knew the Defendant. Willis confirmed that
the victim did not have any altercations with anyone at the bar that night. She said she
saw the Defendant in the vicinity of the victim shortly before the shooting but that she
was not sure of his exact location afterward or who else could have been close enough to
shoot the victim.

       Victoria Anderson testified that she went to the bar with the victim and his mother
and that they were frisked upon entry. She confirmed that Willis pointed out the
Defendant and said the Defendant “kept staring at us, watching everything we w[ere]
doing.” Anderson explained that she and the victim spent some time shooting pool
before they eventually made their way to the dance floor area, at which point she saw the
Defendant following them. She identified herself as the woman in the video recording
standing in front of the victim when he was shot but said she did not notice anything or
anyone around them at that time. She confirmed that the victim did not have any
altercations with anyone that night.

        Taffney Crowder, the victim’s live-in girlfriend, previously dated the Defendant.
Three to four months before the shooting, the victim and the Defendant “had a few
words” after the Defendant offered to buy Crowder a drink while she was on a date with
the victim. The day before the shooting, the victim assaulted Crowder and she went to
the hospital the next morning; she was placed in a boot on her leg and a sling on her arm.
The victim had taken her license and money without her permission so that she would be
forced to return to him after their fight. She explained that the Defendant remained
friends with her father after they broke up and that the Defendant had dinner with
Crowder and her father on the night of the shooting. She learned of the victim’s shooting
at around 4:00 the next morning and she and her father spoke to the Defendant shortly
after. The Defendant told her that he left the bar approximately twenty minutes before
the shooting and immediately traveled to Jackson. Although Crowder initially testified
that she did not recall telling the police that the Defendant said “he was sorry that
happened to [her] and that it was f[--]ked up” once he learned that the victim assaulted
her or that the Defendant owned a revolver, the State introduced evidence confirming that
Crowder told the police this information immediately after the shooting.



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        Lisa Whitaker, crime scene technician for the Metropolitan Nashville Police
Department, testified that she responded to the scene, prepared a diagram of the bar, took
photographs, and processed evidence. She testified that no shell casings were retrieved
and opined that the weapon used in the shooting was likely a revolver because it would
not eject a shell casing. On cross-examination, Whitaker agreed that she could not
definitively state the weapon was a revolver.

       Robert Parker testified that he was working as a photographer at Hard Times Bar
& Grill on the night of the shooting and identified himself in the video recording near the
back door. He said the Defendant originally entered the back door with him while
helping him carry in equipment but that the Defendant went back outside and reentered
through the front door with security. Approximately forty-five minutes before the
shooting, Parker said the Defendant “asked can he have a seat, there was something he
wanted to get out of his boot.” Parker saw the Defendant remove his boot but did not see
if the Defendant took anything out. Parker said the Defendant returned later in the
evening and stated, “I’m tired of these n[-----]s around here, I’m about to kill me a
mother f[----]r.” Parker said he tried to calm the Defendant down because the Defendant
indicated someone had “put their hands on” him. Parker said the Defendant asked
whether he could exit through the back door and Parker indicated that only security or the
bar owner could access that door.

       Parker testified that the Defendant had been drinking and appeared to be “nipsy,”
but that he was not staggering or slurring his speech. He said he had not seen the victim
in the bar before and that, although he was facing the victim when he was shot, he was
looking at his computer when the victim was killed. He confirmed that he saw the
Defendant in the cubbyhole area, about one to two feet from the victim, moments before
the shooting. When he heard the shot, Parker said he looked up and saw the Defendant
run from the area where the victim was and that the Defendant “had something in one
hand and was fumbling with the other hand.” He opined that there was no one other than
the Defendant who was close enough to the victim to have shot him. He confirmed that
the video recording accurately depicted what he remembered occurring that night. At the
close of the State’s proof, Defense counsel requested a jury charge of voluntary
intoxication based on Parker’s testimony that the Defendant had been drinking. The trial
court denied the request based on insufficient evidence and stated that “it was very clear
[the Defendant] wasn’t” intoxicated.

       As part of the defense proof, Officer Bryan Toney of the Metropolitan Nashville
Police Department testified that he responded to the shooting and helped to preserve the
scene and interview witnesses. He specifically interviewed Robert Parker who told him
that he heard the commotion from the shooting but did not see exactly what happened. In
response, the State called Detective Adam Weeks of the Metropolitan Nashville Police
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Department who testified that he responded to the shooting and later spoke with Robert
Parker at the police station. On cross-examination, he confirmed that a projectile, but no
gun, was recovered from the scene.

       Petition for Writ of Error Coram Nobis. On September 4, 2015, the Defendant
filed a petition for writ of error coram nobis alleging that newly discovered evidence
required his conviction be vacated. Specifically, the Defendant asserted that Robert
Parker recanted his trial testimony in a chance encounter in the penitentiary and thus the
State had insufficient evidence to convict him of first degree murder.1

       At the October 14, 2015 error coram nobis hearing, the Defendant testified that he
was being processed at West Tennessee State Penitentiary when he encountered Robert
Parker on February 19, 2014, approximately two weeks after trial. During this encounter,
the Defendant claimed that Parker apologized to the Defendant and Parker told the
Defendant that Parker “fabricated evidence[,]” lied during his testimony, and tried “to get
a mistrial.” The Defendant said Parker specifically admitted to lying when he said he
was previously incarcerated with the Defendant and that the Defendant was “nipsy” but
not drunk on the night of the shooting. The Defendant stated that at least nine other
inmates were present and overheard the conversation between the two men. He
confirmed that he had not had any contact with those inmates or Parker since the
encounter and that he did not “attempt to influence, coerce, intimidate, or [] pressure”
them. On cross-examination, the Defendant denied being previously incarcerated with
Parker and agreed that Parker testified to the same facts that he told Detective Adam
Weeks the night of the shooting. In his petition, the Defendant included the names of
nine other inmates who allegedly overheard the conversation between the Defendant and
Parker and requested that they be subpoenaed to testify. The trial court continued the
hearing and requested defense counsel locate these witnesses and confirm whether they
were actually being processed in the West Tennessee State Penitentiary when this
encounter occurred.

       At the next hearing on November 8, 2016, the Defendant testified consistently
with his prior testimony. In addition, he confirmed that he was incarcerated with Charles
Jackson, a witness to the encounter between the Defendant and Parker. Jackson testified
that he was incarcerated at the West Tennessee State Penitentiary on February 19, 2014,
and witnessed the encounter between the Defendant and Parker. He said he overheard
Parker apologize to the Defendant and say “I did what I tried to do.” He confirmed that
he was housed in the same cell as the Defendant for approximately thirty days during this
        1
         Parker died while in custody prior to the Defendant’s error coram nobis hearing. There does not
appear to be an official death certificate in the record on appeal; however, exhibit 4 of the Defendant’s
September 4, 2015 petition for writ of error coram nobis contains a page titled “Felony Offender
Information” which indicates that Robert Earl Parker is “deceased.”
                                                  -5-
time. Asked what Parker said to the Defendant “word for word,” Jackson stated, “I’m
sorry, man, I did what I -- I did what I could try to do, but I’m sorry, I didn’t mean it, I’m
sorry[.]”

        In a January 6, 2017 order denying the Defendant’s petition for writ of error coram
nobis, the trial court found that the Defendant’s proof was insufficient to warrant relief.
The trial court found that only the Defendant testified that Parker fabricated evidence and
lied in his trial testimony; whereas Jackson testified that Parker only apologized to the
Defendant. The trial court found the Defendant’s testimony to be incredulous and stated
that, even if the Defendant’s recitation of Parker’s statements was accurate, it did not rise
to the level of recantation warranting a new trial. The court further found that the
Defendant failed to establish the required elements for error coram nobis relief and that
there was “no reasonable probability that the result of the proceeding would have been
different in light of the other evidence—including video footage—against” the
Defendant.

       It is from these judgments that the Defendant now timely appeals.

                                        ANALYSIS

       On appeal, the Defendant argues that the trial court erred in denying his petition
for writ of error coram nobis and in declining to give a jury charge of voluntary
intoxication. The State responds that the trial court properly denied the Defendant’s error
coram nobis petition and that the evidence did not support a jury charge of voluntary
intoxication. Upon review, we agree with the State.

       I. Denial of Petition for Writ of Error Coram Nobis. The Defendant argues
that the trial court erred in denying his petition for error coram nobis because newly
discovered evidence would have resulted in a different outcome at trial. The Defendant
specifically asserts that Robert Parker recanted his testimony after trial and, without that
testimony, he would not have been convicted of first degree murder. The State responds
that the Defendant’s newly discovered evidence constitutes inadmissible hearsay and
that, even if this evidence were admitted, it would not have altered the Defendant’s
verdict.

       A writ of error coram nobis is an “extraordinary procedural remedy” available to
convicted defendants that “fills only a slight gap into which few cases fall.” State v.
Mixon, 983 S.W.2d 661, 672 (Tenn. 1999) (citing Penn v. State, 670 S.W.2d 426, 428
(Ark. 1984)); State v. Workman, 111 S.W.3d 10, 18 (Tenn. Crim. App. 2002); see also
T.C.A. § 40-26-105(a) (2006). Relief by petition for writ of error coram nobis is

                                            -6-
provided for in Tennessee Code Annotated section 40-26-105. The statute provides, in
pertinent part:

       (b) The relief obtainable by this proceeding shall be confined to errors
       dehors the record and to matters that were not or could not have been
       litigated on the trial of the case, on a motion for new trial, on appeal in the
       nature of a writ of error, on writ of error, or in a habeas corpus proceeding.
       Upon a showing by the defendant that the defendant was without fault in
       failing to present certain evidence at the proper time, a writ of error coram
       nobis will lie for subsequently or newly discovered evidence relating to
       matters which were litigated at the trial if the judge determines that such
       evidence may have resulted in a different judgment, had it been presented at
       the trial.

T.C.A. § 40-26-105(b). To seek coram nobis relief, the petitioner must establish that he
or she was “‘without fault’ in failing to present the evidence at the proper time.” Harris
v. State, 102 S.W.3d 587, 592-93 (Tenn. 2003). A petitioner is “without fault” if he or
she is able to show that “the exercise of reasonable diligence would not have led to a
timely discovery of the new information.” State v. Vasques, 221 S.W.3d 514, 527 (Tenn.
2007). The coram nobis court will then determine “whether a reasonable basis exists for
concluding that had the evidence been presented at trial, the result of the proceedings
might have been different.” Id. “The decision to grant or deny a petition for the writ of
error coram nobis rests within the sound discretion of the trial court, and this court’s
review of this issue is limited to determining whether the trial court abused its
discretion.” State v. Hall, 461 S.W.3d 469, 496 (Tenn. 2015) (citing Harris v. State, 301
S.W.3d 141, 144 (Tenn. 2010)). “A court abuses its discretion when it applies an
incorrect legal standard or its decision is illogical or unreasonable, is based on a clearly
erroneous assessment of the evidence, or utilizes reasoning that results in an injustice to
the complaining party.” Wilson v. State, 367 S.W.3d 229, 235 (Tenn. 2012) (citing
Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 176 (Tenn. 2011)).

       Here, the Defendant asserts that he had a conversation with trial witness Robert
Parker after trial wherein Parker told the Defendant he was sorry and that his testimony at
trial was false. The Defendant attempts to bolster his argument with testimony from a
fellow inmate, Charles Jackson, who allegedly overheard Parker and the Defendant
talking. The Defendant argues that there was “no evidence of any confrontation,
aggravation, or aggression” which would place Parker in fear and that Parker benefitted
from providing false testimony. The Defendant asserts that Parker’s testimony was the
only proof that he was close enough to the victim to inflict the fatal gunshot wound, and
that, without such evidence, he would not have been convicted at trial. The State
responds that the Defendant’s newly discovered evidence was inadmissible hearsay and
                                            -7-
could not be the basis for a new trial. Alternatively, the State asserts that even if the
Defendant used Parker’s testimony as a prior inconsistent statement for impeachment
purposes, there would be no way to comply with Tennessee Rule of Evidence 613(b)
(concerning prior inconsistent statements) because Parker is now deceased. The State
further asserts that, even if the Defendant were being truthful, the trial court did not find
his testimony to be credible and further found that the exclusion of Parker’s testimony
likely would not have changed the outcome of trial in light of other evidence presented.

       We initially note that the trial court used an incorrect standard of review when
denying the Defendant’s petition for writ of error coram nobis and stated that the
Defendant’s newly discovered evidence “must have” resulted in a different judgment.
See State v. Hart, 911 S.W.2d 371, 374 (Tenn. Crim. App. 1995). However, the
Tennessee Supreme Court has clarified that a defendant need only show that the newly
discovered evidence “may have” resulted in a different judgment. See Vasquez, 221
S.W.3d 514, 527. Nevertheless, we note, as the trial court did, that this court has long
held that “[r]ecanted testimony is looked upon with distrust rather than favor due to the
great temptation to strengthen the weak points of the case discovered during the trial by
perjury or subornation of perjury.” Tyler Wayne Banes v. State, No. 02C01-9508-CC-
00249, 1996 WL 218355, at *2 (Tenn. Crim. App. May 1, 1996), aff’d, No. 02C01-9812-
CC-00378, 1999 WL 1095646 (Tenn. Crim. App. Oct. 31, 1999) (citing Ross v. State,
170 S.W. 1026, 1028 (1914)). Here, the Defendant’s sole proof regarding Parker’s
alleged recantation was his own testimony. Moreover, Jackson testified that Parker
apologized to the Defendant and that Parker said, “I did what I tried to do.” Jackson did
not testify that Parker said he lied or fabricated evidence.

       Even if the Defendant’s testimony were true, we conclude that such recantation
does not rise to the level of warranting a grant of the writ of error coram nobis or a new
trial. Absent Parker’s testimony at trial, the State provided sufficient proof to convict the
Defendant of first degree murder, most notably the video recording showing the
Defendant within arm’s reach of the victim when the shooting occurred. Further
evidence provided by the State, including eyewitness and potential motive testimony,
bolstered the State’s argument and was sufficient to support the jury’s guilty verdict to
the Defendant. The Defendant is not entitled to relief.

        II. Denial of Jury Charge of Voluntary Intoxication. The Defendant also
argues that the trial court erred in declining to provide a jury charge of voluntary
intoxication despite evidence that the Defendant allegedly drank enough alcohol to affect
his state of mind. The State responds that the trial court properly exercised its discretion
and that there was insufficient evidence to support including this jury charge.



                                            -8-
        The right to trial by jury is guaranteed by the United States and Tennessee
Constitutions. U.S. Const. amend. VI; Tenn. Const. art. I, § 6. “[I]t follows that a
defendant has a right to a correct and complete charge of the law, so that each issue of
fact raised by the evidence will be submitted to the jury on proper instructions.” State v.
Garrison, 40 S.W.3d 426, 432 (Tenn. 2000) (citing State v. Teel, 793 S.W.2d 236, 249
(Tenn. 1990)). Trial courts have a duty to give “a ‘complete charge of the law applicable
to the facts of a case.’” State v. James, 315 S.W.3d 440, 446 (Tenn. 2010) (quoting State
v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986)). When reviewing challenged jury
instructions, we must look at “the charge as a whole in determining whether prejudicial
error has been committed.” In re Estate of Elam, 738 S.W.2d 169, 174 (Tenn. 1987)
(citation omitted); see State v. Phipps, 883 S.W.2d 138, 142 (Tenn. Crim. App. 1994).
“‘An instruction should be considered prejudicially erroneous only if the jury charge,
when read as a whole, fails to fairly submit the legal issues or misleads the jury as to the
applicable law.’” State v. Majors, 318 S.W.3d 850, 864-65 (Tenn. 2010) (quoting State
v. Faulkner, 154 S.W.3d 48, 58 (Tenn. 2005)); see State v. Hodges, 944 S.W.2d 346, 352
(Tenn. 1997) (citing State v. Forbes, 918 S.W.2d 431, 447 (Tenn. Crim. App. 1995);
Graham v. State, 547 S.W.2d 531, 544 (Tenn. 1977)). “The misstatement of an element
in jury instructions is subject to constitutional harmless error analysis.” Faulkner, 154
S.W.3d at 60 (citing Pope v. Illinois, 481 U.S. 497, 501–03 (1987)). Because questions
regarding the propriety of jury instructions are a mixed question of law and fact, the
standard of review is de novo with no presumption of correctness. State v. Smiley, 38
S.W.3d 521, 524 (Tenn. 2001).

       Voluntary intoxication “is admissible in evidence, if it is relevant to negate a
culpable mental state.” T.C.A. § 39-11-503(a). “Proof of voluntary intoxication is
therefore akin to proof of a mental disease or defect that prevents a defendant from
forming the culpable mental state required for the offense under consideration.” State v.
Hatcher, 310 S.W.3d 788, 814 (Tenn. 2010). “However, ‘[p]roof of intoxication alone is
not a defense to a charge of committing a specific intent crime nor does it entitle an
accused to jury instructions . . . ; there must be evidence that the intoxication deprived the
accused of the mental capacity to form specific intent.’” Id. (footnote omitted) (quoting
Harrell v. State, 593 S.W.2d 664, 672 (Tenn. Crim. App. 1979), perm. app. denied (Tenn.
Jan. 28, 1980)); see also, Ben Mills v. State, No. W2005-00480-CCA-R3-PC, 2006 WL
44381, at *8 (Tenn. Crim. App. Jan. 5, 2006) (“[W]hile intoxication is not in itself a
defense to prosecution, a defendant’s intoxication, whether voluntary or involuntary, is
admissible in evidence if it is relevant to negate a culpable mental state.”), perm. app.
denied (Tenn. May 1, 2006).

       Here, the Defendant argues that Parker’s testimony that the Defendant was “nipsy”
and video evidence of him holding an alcoholic beverage was sufficient to support the
inclusion of a jury charge of voluntary intoxication. The Defendant asserts that the trial
                                            -9-
court erred in not including this charge and thus “fail[ed] to fairly submit the full legal
issues to the jury.” The State responds that the trial court properly found that there was
insufficient evidence to support inclusion of this jury charge, asserting that the video did
not show the Defendant having trouble walking or standing and that there was
insufficient proof of intoxication sufficient to negate the Defendant’s specific intent.

       Upon review, we conclude that there was insufficient evidence presented at trial to
support a jury charge of voluntary intoxication. The video recording shows the
Defendant ordering one beer approximately ten minutes before the shooting. The
Defendant did not appear to be swaying or stumbling throughout the video recording.
The only other proof of the Defendant consuming alcohol was the testimony of Robert
Parker who said the Defendant appeared “nipsy” but not drunk. There is no further
indication in the record and the Defendant provides no further proof that he was so
intoxicated that he lacked the culpable mental state required for first degree murder
because of voluntary intoxication. See Hatcher, 310 S.W.3d at 815 (“The determinative
question is not whether the accused was intoxicated, but what was his mental capacity.”).
Therefore, because the Defendant failed to present any evidence that his intoxication
negated his culpable mental state, we conclude that the trial court did not err in declining
to provide a jury charge of voluntary intoxication. He is not entitled to relief.

                                     CONCLUSION

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



                                             ____________________________________
                                             CAMILLE R. MCMULLEN, JUDGE




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