         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                   November 22, 2000 Session

                    STATE OF TENNESSEE v. ERNEST B. EADY

                        Appeal from the Criminal Court for Knox County
                          No. 67084     Richard Baumgartner, Judge



                                  No. E2000-00722-CCA-R3-CD
                                        February 13, 2001

The defendant appeals from his conviction for second degree murder, contesting the sufficiency of
the evidence, the timeliness of the state’s disclosure of a potentially exculpatory witness, and the trial
court’s failure to declare a mistrial. We affirm the judgment of the trial court.

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and JOE G.
RILEY, J., joined.

Keith E. Haas, Sevierville, Tennessee, for the appellant, Ernest B. Eady.

Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant Attorney
General; Randall E. Nichols, District Attorney General; and Scott Green, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                               OPINION

        The defendant, Ernest B. Eady, appeals as of right from his conviction by a Knox County
Criminal Court jury for second degree murder, a Class A felony. The defendant was sentenced to
twenty years incarceration. The defendant argues that (1) the evidence is insufficient to support his
conviction because the state failed to establish the identity of the perpetrator and the required mental
state of knowing, (2) the state improperly failed to disclose the name of a potentially exculpatory
witness until the morning of the original trial date, and (3) the trial court erred by not declaring a
mistrial when a juror informed the court that members of the victim’s family communicated with
him during a recess.

         The case arises from the shooting death of Robert Lee Fletcher, Jr. At trial, James Canon
testified as follows: He was known as “Chicken” and owned Mr. C’s Private Party Lodge Number
One. On November 21, 1998, he was working at the lodge, and his son, Mark Canon, was working
as the doorman. About thirty-five or forty people were in the lodge that night. Around 2:30 a.m.,
he was patrolling the parking lot, which was “pretty full” of cars, when he saw four men, who had
parked in the back of the parking lot, approaching the lodge. He identified one of the men as the
defendant, whom he knew as “Rabbit.” He told the defendant that one of the defendant’s friends was
too intoxicated to go inside the lodge, and the defendant and the other two men persuaded their
friend not to go inside. The defendant fell down as he approached the step to the lodge’s entrance.
Mark searched the defendant for weapons, which was the lodge’s normal practice, and then allowed
the defendant to enter.

         James Canon testified that around 3:30 a.m., the defendant poured his drink onto the floor,
something the defendant had done before and had led to Mr. Canon asking him to leave. When Mr.
Canon asked the defendant to leave this time, the defendant “started” at him but was held by his
friends. As the defendant was escorted outside, he knocked over some tables and chairs and said,
“I am going to get you” and “I am tired of you fu**ing with me.” He followed the defendant outside
to make sure the defendant left. Around 4:45 a.m., when he was inside the lodge, his son called to
him, “It’s Rabbit. He has got a gun.” His son had the door partially opened and was talking to the
defendant, who was outside. He told his son to close the door, and between two and five minutes
later, he heard someone say, “He is shooting.” Then he heard someone say, “He has been shot.” He
telephoned 911, and the police arrived in six to seven minutes. He told them that a person he knew
as Rabbit shot into the lodge. He later identified the defendant from a photographic lineup. Also,
he identified photographs of the outside of the lodge, and these photographs were admitted into
evidence.

         Mark Canon testified as follows: On November 21, 1998, he was working as the doorman
at the lodge. The front of the lodge was brick with two steel doors and two windows covered with
wood. He searched everybody that came into the lodge for weapons, and the defendant did not have
any weapons when he went inside the lodge. The defendant, whom he knew as Rabbit, had
patronized the lodge several times before. Around 3:30 a.m., a friend of the defendant’s, whom he
knew as T.C., was escorting the defendant out of the lodge, and the defendant was pushing chairs
as he left. When the defendant left, there were about thirty-five or forty people in the lodge.

         Mark Canon testified that sometime later, the defendant returned to the lodge and knocked
on the door. At that time, about thirty to forty people were in the lodge and the parking lot was full
of cars. James Canon asked Mark Canon who was at the door, and Mark responded that it was the
defendant. James Canon then instructed him not to let the defendant inside. He did not open the
door until a patron wanted to leave, at which point he noticed that the defendant had what looked
like a .9 millimeter gun. He told the defendant that he could not come inside. He was holding the
door, which was open about one foot, and the defendant was looking inside, saying “Where is he at?”
He told the defendant to put the gun away, but the defendant kept asking, “Where is he at?” While
he was talking to the defendant, the disc jockey left through the door. He then tried to close the door,
but the defendant pulled the outer doorknob, preventing him from closing it. The defendant then
stepped back and cocked the gun, which enabled him to close and lock the door. After he told his
father that the defendant was outside with a gun, a wood chip from the lodge’s sign, which was a



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board that covered a window opening in the front of the building, hit his shoulder. He then heard
someone say that somebody had been shot.

        Mark Canon admitted that he could see only shapes and colors with his right eye but that he
could see clearly with his left eye as long as he was wearing his contact lens. He stated that he was
wearing his contact lens that night and that he saw the defendant outside the lodge with a gun. He
also said that he did not go outside after the shots were fired but that several patrons did leave the
building.

        Investigator Ken Slagle of the Knoxville Police Department testified as follows: On
November 21, 1998, he was dispatched to Mr. C’s Private Party Lodge and arrived at 5:20 a.m.
There were about fifteen to twenty people inside, and he saw the ambulance personnel working on
a person in the rear of the lodge. Based upon conversations with James and Mark Canon, he and
another officer went to the defendant’s apartment. The defendant told him that he had been inside
the apartment since 10:00 or 10:30 the night before. The defendant agreed to be interviewed at the
police station, where Investigator Slagle advised him of his rights and the defendant signed a waiver.
He asked the defendant about the murder at the lodge, and the defendant said that he knew the victim
but that he had not left his apartment since 10:00 the night before and did not know anything about
the murder.

        Investigator Slagle stated that he presented photographic lineups to James and Mark Canon
separately and that both identified the defendant. He also acknowledged that searches of the
apartment and the defendant’s car did not produce a gun, ammunition, or shell casings. He said that
the bullet recovered from the victim’s body was not tested because a gun was never recovered. The
only shell casing found at the scene was in the street in front of the lodge.

         Officer Mark Waggoner, a criminalistics expert with the Knoxville Police Department,
testified as follows: On November 21, 1998, he was dispatched to the crime scene to collect
evidence. Two holes in the front of the lodge appeared to have been caused by bullets. It appeared
that one bullet struck the brick, while another went through the lodge’s wooden sign, which was
particle board covering a window on the front of the building. Officers found a single, .9 millimeter
shell casing in the street in front of the lodge. This location was consistent with a line of travel
through the sign to the victim’s body in the rear of the lodge. The distance from the shell casing to
the bullet hole in the window was sixty-three feet, eight inches, and the distance from the window
to the victim’s body was thirty-three feet, one inch. He estimated that the length of the lodge was
forty feet. He photographed the inside and outside of the lodge, and these photographs were
admitted into evidence. One photograph of the inside showed eight people present, and he stated
that the lodge would have been crowded if thirty-five to forty people were inside.

        On cross-examination, Officer Waggoner testified that although a spent bullet could be tested
to determine its caliber, Investigator Slagle did not ask him to test the bullet recovered from the
victim’s body. Also, he was not asked to fingerprint the shell casing or to test for traces of
gunpowder residue. However, he said that it was highly improbable the shell casing would have


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contained fingerprints and that no reliable tests for determining the presence of gunpowder residue
existed.

        Knox County Medical Examiner Dr. Sandra Elkins performed the autopsy on the victim’s
body. She stated that the cause of death was a single gunshot wound to the chest, which perforated
the trunk of the pulmonary artery and the left lung.

         Alicia Fletcher, the victim’s sister, testified as follows: On November 21, 1998, she went to
Mr. C’s Party Lodge just after midnight. The defendant, who was a family friend, was not there
when she arrived but came into the lodge later. At some point in time, the defendant was asked to
leave the lodge, and he threw a chair as he was being escorted out by one of her cousins, T.C. About
forty-five minutes to one hour later, she was sitting at the table next to the door, and she saw the
defendant outside the lodge. The defendant was not allowed to enter, and she saw the defendant try
to pull open the door, which was being held by Mark Canon. She saw the defendant’s face but could
not see below his chest. She could not see if the defendant had anything in his hands. She did not
recall anyone leaving the lodge while the defendant was outside the door but knew that the disc
jockey had already left. After Mark closed the door, he told his father not to let anybody leave
because “he has got a gun,” and, within seconds, two gunshots were fired. She ran toward the back
of the lodge and heard someone shouting that a person had been shot. She then noticed that her
brother was on the floor and bleeding.

         Ms. Fletcher said that she saw the defendant in September or October 1999 at J.T.’s Pool
Hall and that he told her that he was not admitting anything and that he had gone home that night
after he left the lodge. She said she responded that she wished he had gone home and never returned
to the lodge because things would have been a whole lot different. She then told the defendant how
she felt when she saw her brother lying on the floor, and the defendant told her that when his mother
had asked him if he had done it, he told his mother, “Mom, if I did it, God rest my soul.” As she
continued to talk, the defendant knelt and started crying.

         Marlon Fletcher, the victim’s cousin, testified as follows: On November 21, 1998, he arrived
at the lodge between 3:00 and 3:30 a.m. He knew the defendant, saw him on a regular basis, and saw
him that night at the lodge. Between 4:00 and 4:30 a.m., he saw the defendant arguing with the
doorman. About five or ten minutes later, the defendant returned and was waving a gun that looked
like a chrome .380 or .9 millimeter. The doorman pushed the defendant out of the doorway and
closed and locked the door. About thirty or forty seconds later, he heard three or four gunshots. He
then heard his cousin, Alicia Fletcher, shouting, and he saw the victim on the floor. Between one
and two minutes later, he ran outside and saw the defendant’s beige, 1998 Buick leaving. He
recognized the car because he remembered the defendant buying it a couple of months before this
incident and because he had ridden in it on one occasion. He did not know if the defendant was
driving.

       Marlon Fletcher testified that he saw the defendant several times after the shooting. On one
occasion, the defendant told him, “I didn’t mean to do that to your cousin. I love you-all like a


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family.” On cross-examination, he admitted that he had a conviction involving cocaine, that he was
on probation on November 21, 1998, and that one of the terms of his probation was to avoid
establishments that serve alcohol.

        Cathey Siler was at the lodge on November 21, 1998, and testified as follows: She arrived
at the lodge around 2:00 a.m. She did not see the defendant inside, but the lodge was crowded.
Around 4:00 or 4:30 a.m., she left the lodge and went to her car. Her car was backed into a parking
space across the street from the lodge such that when she sat in her car, she could see the front of the
lodge through her windshield. Her car was about fifty feet from the lodge’s door. As she was
starting her car, she noticed a black male wearing a black jacket walking in front of the lodge. Two
cars drove up, and then the man in front of the door started shooting at the door. As he was shooting,
he was walking backwards toward the street. A car drove up, and the man fired one last shot and
then got into the car. She thought that the man fired a total of about four shots.

        Connie Tate, the sister of the defendant’s girlfriend, testified that she had been to Mr. C’s
Private Party Lodge and that she knew the owner as Chicken. She stated that about one week after
the shooting, she saw the owner of the lodge and Cathey Siler at B & J’s Lounge. She said that she
heard the owner offer Ms. Siler money in exchange for her testifying. She stated that she never told
the police or the defendant what she heard but that she did tell her sister.

        Roberta Stevens testified that she was working as a barmaid at the lodge on November 21,
1998. She stated that around 5:00 a.m., she was standing next to the victim when he was shot. She
said that at that time, thirty to forty people were in the lodge, which she considered fairly crowded.
She testified that she needed medical treatment after the shooting because she had angina and the
events surrounding the shooting caused her blood pressure to rise. She stated that while she was at
the hospital, Investigator Slagle talked to her. She said that she did not remember telling him
anything regarding the location from which she thought the bullets may have been fired.

        Investigator Ken Slagle was recalled and testified that he had spoken with Roberta Stevens
at the hospital and that Ms. Stevens asked him whether the bullet came from inside or outside the
lodge. He stated that Ms. Stevens did not know where the gun was fired. He admitted that he did
not reveal this information to the prosecutor until one week before trial and that the prosecutor
relayed the information to defense counsel on the morning of the original trial date.

                            I. SUFFICIENCY OF THE EVIDENCE

        The defendant contends that the evidence is insufficient to support his second degree murder
conviction. He argues that the state failed to establish the identity of the perpetrator. He also argues
that the evidence does not establish the required mental state of knowing, but rather at best shows
recklessness. The state asserts that the evidence is sufficient. We agree.

      Our standard of review when the sufficiency of the evidence is questioned on appeal is
“whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier


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of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson
v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). We do not reweigh the evidence but
presume that the jury has resolved all conflicts in the testimony and drawn all reasonable inferences
from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984);
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions about witness credibility were
resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

       A conviction for second degree murder requires proof that the defendant knowingly killed
another. Tenn.Code Ann. § 39-13-210(a)(1).

       "Knowing" refers to a person who acts knowingly with respect to the conduct or to
       circumstances surrounding the conduct when the person is aware of the nature of the
       conduct or that the circumstances exist. A person acts knowingly with respect to a
       result of the person's conduct when the person is aware that the conduct is reasonably
       certain to cause the result.

Tenn.Code Ann. § 39-11-302(b).

        The evidence viewed in the light most favorable to the state reveals that the defendant was
asked to leave the lodge after pouring a drink onto the floor. The defendant was uncooperative and
threatened James Canon. The defendant left the lodge but returned later with a gun. Mark Canon,
Alicia Fletcher, and Marlon Fletcher said that they saw the defendant outside the lodge. Further,
Mark Canon and Marlon Fletcher saw that the defendant had a gun, and the gun looked like a .9
millimeter. Additionally, Cathey Siler stated that she saw a black male shoot several shots into the
front of the lodge, including one shot from the street before he got into a car. Alicia Fletcher said
that the shots were fired within seconds after Mark Canon closed and locked the lodge’s door. A
hole caused by a bullet was found in the wooden sign that covered a window on the front of the
building. The path of travel from the victim’s body to the hole was consistent with the location in
the street where a .9 millimeter shell casing was found. Also, Marlon Fletcher said that he saw the
defendant’s car leaving the scene about one to two minutes after the shots were fired. Finally, the
proof showed that the defendant said to Marlon Fletcher, “I didn’t mean to do that to your cousin.”
From this evidence, a rational jury could have found beyond a reasonable doubt that the defendant
shot the victim.

         The evidence further reveals that the defendant had patronized the lodge several times before
this incident. The front of the lodge was brick with two steel doors and two windows which were
covered by particle board. Officer Waggoner said that the distance from the bullet hole in the
window to the victim’s body was thirty-three feet, eight inches and that the length of the lodge was
about forty feet. Photographs of the inside and outside of the lodge were introduced into evidence
and viewed by the jury. When the defendant first arrived at the lodge, the parking lot was almost full
of cars, and there were about thirty-five to forty people inside the lodge. When the defendant
returned with the gun, the parking lot was full of cars. Roberta Stevens testified that the lodge was
fairly crowded that night, and Cathey Siler said that the lodge was crowded. Also, Officer Waggoner


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photographed the inside of the lodge when eight people were present, and he said that the lodge
would have been crowded if thirty-five to forty people were inside. This photograph was introduced
into evidence. From this evidence, the jury could have reasonably inferred that the defendant was
aware that the windows were covered by particle board and that the lodge was crowded. A rational
jury could have found beyond a reasonable doubt that the defendant was aware that his conduct was
reasonably certain to cause death. The evidence is sufficient to support the defendant’s second
degree murder conviction.

                    II. DISCLOSURE OF EXCULPATORY MATERIAL

        The defendant contends that the state failed to disclose exculpatory material in a timely
fashion. On the morning of the original trial date, the defendant moved for a continuance because
the state had just informed him of a witness who was unsure whether the gunshots were fired from
inside or outside the lodge. The trial court granted a twenty-four-hour continuance and directed the
state to help locate the witness. The next morning, the defendant said that he had spoken to the
witness, Roberta Stevens, and that he had subpoenaed her. The defendant then stated that he was
ready to begin the trial.

        In Brady v. United States, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, the United States
Supreme Court stated that “suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or punishment.” To
establish a Brady violation, the defendant must show by a preponderance of the evidence that (1) he
requested the information (unless the information is obviously exculpatory, in which case the state
is bound to disclose the information whether requested or not), (2) the state suppressed the
information, (3) the information was favorable to the defendant, and (4) the information was
material. State v. Edgin, 902 S.W.2d 387, 390 (Tenn. 1995). However, a delayed disclosure of
information requires a different analysis than a complete nondisclosure. “[D]elayed disclosure
requires an inquiry into whether the delay prevented the defense from using the disclosed material
effectively in preparing and presenting the defendant’s case.” State v. Caughron, 855 S.W.2d 526,
548 (Tenn. 1993) (citing United States v. Ingraldi, 793 F.2d 408 (1st Cir. 1986)); see State v. Joan
Elizabeth Hall, No. 01C01-9710-CC-00503, Lincoln County, slip op. at 19 (Tenn. Crim. App. Jan.
28, 1999), app. denied (Tenn. July 12, 1999) (“[I]f there is only a delayed disclosure of information,
in contrast to a complete failure to disclose exculpatory information, Brady normally does not apply,
unless the delay itself causes prejudice.”).

        In this case, the identity of the person with the potentially exculpatory information was
disclosed. The trial court granted a continuance, and Ms. Stevens was located. The defendant talked
to her before the trial began and even called her as a witness during the trial. Ms. Stevens testified
that she only inquired about the location where the gunshots were fired. She stated that she did not
know if the shots were fired from inside or outside the lodge. The defendant was not prejudiced by
the delay in receiving this information. Moreover, this evidence was not material. See Edgin, 902
S.W.2d at 390-91 (stating that evidence is considered material if there is a reasonable probability that
had it been disclosed earlier, the result of the proceeding would have been different). There is not


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a reasonable probability that an earlier disclosure of this information, which the jury heard, would
have produced a different result.

                  III. IMPROPER COMMUNICATION WITH A JUROR

        The defendant contends that improper contact was made with one of the jurors by members
of the victim’s family. He argues that the trial court should have immediately declared a mistrial.
The state argues that the defendant waived this issue by not moving for a mistrial. We agree.

       Before the second day of trial began, a juror told the trial court that while he was in the
elevator, two people, whom he had seen in the courtroom, said, “He is guilty.” The juror said that
when he looked at them, they smiled, which he understood as a communication. One of the persons
who made these comments was identified as a cousin of the victim. The court brought the juror into
open court and allowed the state and defense counsel to question him. The juror stated that the
incident had not affected his ability to be fair and to decide the case based upon the evidence. After
the questioning, the court asked if either side wanted to strike the juror. Defense counsel responded,

       Your Honor, I have discussed this with my client, Mr. Eady, and he and I both agree
       that, with the juror showing his honesty and coming forward with what he told us,
       if he was going to be influenced at all, he wouldn’t have told us. So I feel like we
       can trust and keep him on the panel.

        If a motion for mistrial is not made contemporaneously, then the issue is waived absent plain
error. See T.R.A.P. 36(a); State v. Robinson, 971 S.W.2d 30, 42-43 (Tenn. Crim. App. 1997). In
this case, the defendant not only failed to move for a mistrial, but he affirmatively stated that he
wished to keep the juror on the panel. The defendant has waived this issue. Moreover, failure to
declare a mistrial under these circumstances does not constitute plain error. See Tenn. R. Crim. P.
52(b).

       Based upon the foregoing and the record as a whole, we affirm the judgment of the trial court.



                                                       ___________________________________
                                                       JOSEPH M. TIPTON, JUDGE




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