        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs June 4, 2013

                STATE OF TENNESSEE v. WARREN HILDRED

                  Appeal from the Criminal Court for Shelby County
                       No. 11-03840     Paula Skahan, Judge


                 No. W2012-01032-CCA-R3-CD - Filed June 27, 2013


The defendant, Warren Hildred, appeals his Shelby County Criminal Court jury conviction
of second degree murder, challenging both the exclusion of certain evidence and the
sufficiency of the convicting evidence. Discerning no error, we affirm.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which and J EFFREY S.
B IVINS, J., joined. T HOMAS T. W OODALL, J., concurs in results.

Eric Mogy (on appeal); and Juni S. Ganguli (at trial), Memphis, Tennessee, for the appellant,
Warren Hildred.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Christopher L. West and Douglas
Carriker, Assistant District Attorneys General; for the appellee, State of Tennessee.

                                         OPINION

                In the early afternoon of February 19, 2011, the defendant fatally shot the
victim, Stephanie Brown, at the defendant’s residence in Memphis. The Shelby County
grand jury charged the defendant with second degree murder, and the trial court conducted
a jury trial in March 2012.

               At trial, Charlene White testified that she and the victim had been friends for
eight years. On February 19, 2011, Ms. White and her boyfriend, Andre Jones, drove the
victim to the defendant’s house to retrieve some of the victim’s belongings. Specifically, the
victim, who was a diabetic, was in need of her insulin medication, as well as the battery
charger for her cellular telephone.
               When the group parked in front of the defendant’s house, they saw the
defendant and his and the victim’s three-year-old son exiting the defendant’s car, which was
parked in the driveway. The defendant and his son immediately went inside the house and
shut the front door. The entrance to the house was described as having two doors: a wrought
iron storm door in front of a wooden interior door. The victim walked to the front door of
the house and knocked on the storm door. Ms. White, who was seated in the passenger seat
of Mr. Jones’s vehicle, could see the front door and could hear the conversation between the
victim and the defendant because the car windows were down.

               Ms. White overheard the victim ask the defendant through the closed storm
door to get her medicine. The defendant responded by closing the wooden door. The victim
knocked again. The defendant opened the storm door, threw some of the victim’s clothes on
the front porch, and closed the door again. Before closing the door, his son ran outside. At
this point, Ms. White exited the car and walked toward the house. The victim again knocked
on the door and asked for her medicine and battery charger. Ms. White described the victim
as looking unwell and sweating profusely. The defendant then opened the door a third time
and fired a single gunshot at the victim. The victim fell on the front porch, and the defendant
retreated into his house and sat down on his living room sofa. Ms. White testified that the
victim never opened the front door and never stepped inside the defendant’s house. Ms.
White called 9-1-1 while Mr. Jones attended to the victim. Emergency personnel arrived
approximately ten minutes later.

               On cross-examination, Ms. White denied that she or the victim had used any
drugs on the day before the shooting. Although Ms. White maintained that the defendant
never gave the victim her medicine, she admitted that photographs of the crime scene showed
the victim’s medication on the front porch of the house. Ms. White stated that the defendant
must have placed the medication outside after the shooting and before emergency personnel
arrived on the scene. Ms. White also admitted that the victim had been yelling loudly at the
defendant for approximately five minutes before the shooting.

                Andre Jones, the victim’s first cousin, testified that he, Ms. White, and the
victim had been driving around on the morning of February 19 when the victim began feeling
ill and stated that she needed her medicine. Mr. Jones stated that he stayed in his car until
the victim was shot and that, although he couldn’t hear the victim’s conversation with the
defendant, he had a clear view of the defendant’s front door. After the shooting, he exited
his car and ran to the victim. He testified that the victim never went inside the defendant’s
house.

              During cross-examination, Mr. Jones admitted that the first time he told anyone
that he saw the shooting was a few days prior to trial. Before that time, he had only told

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officers that he heard the gunshot. Mr. Jones denied that the victim was banging on the door
and stated that the victim was simply “reaching for the door” when the defendant opened it
and shot her. He stated that the victim “didn’t get a chance to put her hand on the door.” Mr.
Jones also denied that the victim and Ms. White were taking drugs the night before the
shooting, but he did admit that the victim “does dope.” Mr. Jones testified that none of the
medical items photographed at the crime scene were present on the defendant’s front porch
at the time of the shooting.

               Memphis Police Department (“MPD”) Officer Michael Pickens testified that
he was the first to respond to the report of a shooting at the defendant’s residence on
February 19. When he arrived, Ms. White informed him that the defendant was standing
inside the front door of his house and that he had shot the victim. Officer Pickens confirmed
that the defendant was unarmed, and he then began attending to the victim until medical
personnel arrived. He testified that the victim was lying on her left side on the front porch
of the house. Once medical personnel arrived, Officer Pickens turned his attention to the
defendant. The defendant told him that the victim “tried to break in, and [he] shot her.” At
Officer Pickens’s request, the defendant informed him of the location of the firearm, which
officers located in a bedroom dresser drawer. MPD officers then took the defendant into
custody.

               MPD Officer J.R. Rector, a crime scene investigator, testified that he
photographed the crime scene on February 19, and he identified photographs showing,
among other things, a glucose meter, test strips, and bottles of the victim’s medicine that
were located on the front porch of the defendant’s house. He also photographed the storm
door latch and testified that “the holes are enlarged” and that the latch “might possibly have
been repaired at some point in time.” In addition, Officer Rector testified that he recovered
a .22 caliber revolver with five live rounds of ammunition and one spent shell casing from
the crime scene.

              Doctor Miguel Laboy, Assistant Medical Examiner for Shelby County,
performed the victim’s autopsy. He testified that the victim had suffered a gunshot wound
to her upper left abdomen. He stated that the victim’s toxicology report indicated the
presence of cocaine metabolite, but he was unable to determine how recently the victim had
used cocaine. Doctor Laboy opined that the victim’s cause of death was the gunshot wound
to the abdomen and that the manner of death was homicide.

               MPD Sergeant R.M. Edwards conducted the defendant’s initial interview after
his arrest on February 19. The defendant signed a waiver of his constitutional rights after
being provided Miranda warnings. In that interview, the defendant stated that the victim
called him on the morning of February 19 and indicated that she needed to retrieve her

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medicine, battery charger, and other items from his house. The defendant told her not to
come to his house and that he would bring the requested items to her instead. When the
victim arrived at his house sometime later, he went inside the house and locked the storm
door. He got the victim’s medicine and a pair of her boots, and he then opened the storm
door and placed the items on the front porch. The victim then asked for her battery charger.
The defendant again locked the storm door and turned away to find the charger. He stated
that, at that point, the victim “must have gotten mad and she started pulling on the door.” He
claimed that he “got panicky” because he knew “what she’ll do.” The defendant stated that
when the victim stepped inside the house, she had a “blue object in her hand,” and he “pulled
the pistol and shot her.” According to the defendant, the victim “had the look in her eyes,”
and he “didn’t know what she was going to do,” which prompted him to shoot her. When
asked if the victim was inside the house when he shot her, the defendant stated that she was
approximately five steps inside the residence. After he shot her, the victim “fell back out the
door” but was “still inside the house when she fell.” Sergeant Edwards asked the defendant
why the victim was still trying to get inside his house when she had everything she had asked
for with the exception of her battery charger, and the defendant replied that “it might have
been something [he] said,” because he told her that “all her children [had been] taken away
because she [was] on drugs.”

              Sergeant Edwards testified that he examined the storm door and its latch on
February 19, and he determined that the latch was intact. Although it appeared that the latch
screws had been moved around a bit, the door was latching properly when he examined it.
He found no evidence of any forced entry.

                MPD Officer Isreal Taylor testified that he was with the homicide bureau and
was assigned as the defendant’s case coordinator. He conducted a second interview with
the defendant on February 21, after the defendant again signed a waiver of his constitutional
rights. In that interview, the defendant stated that he had known the victim for approximately
ten years, that he had been romantically involved with the victim, and that they had lived
together at the defendant’s residence for the past two years. The victim was not living with
him at the time of the shooting, apparently due to their tumultuous relationship. When asked
about his history with the victim, the defendant stated that the victim “has been out of
control, enraged, forceful, demanding, and told [him] if [he] ever went to sleep, she would
go get [his] mother’s gun and shoot [him] in the back of the head.” The defendant had seen
the victim the night before the shooting at Ms. White’s apartment.

              The defendant stated that, on February 19, he and the victim began arguing
over the victim’s clothes, at which point he “went and got her stuff and sat it on the porch.”
He then apparently retrieved the gun from a closet and placed it on the coffee table in his
living room “because [he] feared for [his] life.” The defendant stated that the victim told him

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that he “was not going to drive the car no more” and that Mr. Jones left the car to bring the
victim a box cutter. Before shooting the victim, the defendant noticed a “rag tipped” comb
in the victim’s hand, which was “long, pointed, and blue.” The defendant believed that the
victim was going to use the comb as a weapon “[b]ecause of previous incidents.” He stated
that the victim “had struck him with a knife” on an earlier occasion and he “feared for [his]
life.” He admitted that he meant to shoot the victim but stated that he did not mean to kill
her. He told the officer that he “just pulled the pistol out and pulled the trigger” and that he
“wasn’t really aiming.” After shooting the victim, he placed the gun on the coffee table and
called the MPD on its non-emergency number.

               On cross-examination, defense counsel began to question Officer Taylor about
the history of domestic violence between the defendant and victim, prompting an objection
by the State’s attorney. The following bench conference was held outside the presence of
the jury:

              State’s Attorney:     This is not the proper way to put it in.
                                    He’s calling for hearsay testimony about
                                    prior incidents that were investigated by
                                    other officers he was not present for. Just
                                    because he reviewed a report does not
                                    make it any less hearsay.

              Trial Court:          Let me hear the rest of the question.

              Defense Counsel:      With respect to the domestic violence
                                    history that Mr. Hildred described in the
                                    statement, were you able to verify any of
                                    that.

              Trial Court:          I think you’re opening up a whole can of
                                    worms with that question. You don’t
                                    know what his answer is going to be, do
                                    you?

              Defense Counsel:      I’ll move on.

Defense counsel did not question Officer Taylor further about any domestic violence issues.

              With this evidence, the State rested its case. Following a Momon colloquy, the
defendant elected to testify. See Momon v. State, 18 S.W.3d 152, 161-62 (Tenn. 1999). The

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defendant testified that, in February 2011, he and the victim were “somewhat” living
together. He explained that their relationship ended over his receiving custody of their son.
On February 18, the defendant allowed the victim to take their son to Ms. White’s house for
a birthday party. The victim did not return the child to the defendant’s home by 10:30 p.m.
as promised, which led to a verbal altercation over the telephone. The defendant eventually
drove to Ms. White’s house at 2:00 a.m. on February 19 to retrieve his son. The defendant
told the victim, in no uncertain terms, that she was to stay away from his house.

              Later in the morning of February 19, a friend of the defendant’s visited his
house to inform him that the victim was ill and in need of her diabetes medication. The
defendant began to gather up the victim’s belongings, and he told his friend to contact the
victim and tell her that the defendant would deliver the items to her. While the defendant
was cleaning out his car, the victim arrived at his house with Ms. White and Mr. Jones. The
defendant grabbed his son and went back into this house because he believed trouble was
afoot.

              When asked why he was concerned when the victim arrived at his house, the
defendant explained that the victim had been violent toward him in the past. He testified that
she once “busted [him] in the head with a brick,” cracking his skull and requiring
hospitalization. The victim was arrested over this incident, and the defendant took out a
restraining order against her. On another occasion, the victim attempted to stab him with a
knife and told him “if [he] went to sleep she’s going to do something to [him].” The
defendant also testified about an incident when the victim shoved him against the concrete
corner of his house, tearing his rotator cuff.

               The defendant’s testimony regarding the events leading up to the shooting is
somewhat unclear. The defendant offered conflicting statements about the order in which
he placed the victim’s items on the front porch and on which occasions the storm door was
unlocked. The defendant was clear, however, that the victim was threatening to cut the tires
on his car. Before the victim approached the front door the first time, the defendant saw her
using the tip of the blue “rat tail” comb in an attempt to let the air out of his tires. The
defendant testified that the comb wasn’t working, so Mr. Jones exited his car and handed the
victim a “silver object.” At some point, the victim allegedly told the defendant, “I’m going
to show your ass something.” He took this as a threat and retrieved his handgun from the
bedroom. Although the timing is unclear, the victim “snatched” the door open and began
approaching the defendant with the blue comb. The defendant testified that the victim was
cursing at him and “looking crazy.” Although he knew the object in her hand was a comb,
he was afraid she was going to use it as a weapon. Once she was four or five feet inside his
house, he grabbed the gun and fired one shot at her. He stated that he wasn’t trying to kill
the victim, he was just “trying to wound her, get her off on [sic] me.” As soon as he fired the

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shot, he put the gun down and called the police. When asked why he called the non-
emergency telephone number, the defendant responded that, because he had called 9-1-1 so
often in the past, he had been asked not to call anymore. When his call was answered at the
non-emergency number, he was informed that the police were already on their way. The
defendant testified that, following the shooting, the victim “turned and walked back out the
door.” She fell on his front porch, but one of her feet was partially inside the house,
preventing the storm door from closing completely.

               Following the defendant’s testimony, defense counsel attempted to call Shelby
County criminal court records keeper, Melissa Horner, to introduce evidence of the victim’s
prior felony conviction. The State objected, and a bench conference ensued outside the
presence of the jury. Ultimately, the trial court ruled the evidence inadmissible but allowed
the defendant to make an offer of proof. Through Ms. Horner, defense counsel introduced
the judgment and affidavit of complaint against the victim. The affidavit of complaint
alleged that, on April 15, 2003, the victim and a third party, Joy Jones, engaged in a verbal
altercation at Ms. Jones’s residence. The victim walked away from Ms. Jones and went
downstairs to the kitchen. While the victim was attempting to open a can of “baby milk”
with a steak knife, Ms. Jones entered the kitchen and began “tussling” with the victim. The
victim, who was still holding the knife, stabbed Ms. Jones under the right arm. In March
2006, the victim was convicted of reckless aggravated assault. Following this offer of proof,
the defense rested its case.

              The jury convicted the defendant of second degree murder. The trial court
conducted a sentencing hearing and imposed, on April 17, 2011, a sentence of 17 years.
Following the denial of his timely but unsuccessful motion for new trial, the defendant filed
a timely notice of appeal. In this appeal, the defendant contends that the trial court erred by
excluding testimony of prior acts of domestic violence between the defendant and the victim,
as well as by excluding evidence of the victim’s prior felony conviction. In addition, the
defendant argues that the evidence adduced at trial was insufficient to support his conviction.
We consider each claim in turn.

                                  I. Exclusion of Evidence

                The primary thrust of the defendant’s argument on this issue is that the trial
court erred by refusing to allow Officer Taylor to testify about prior instances of domestic
violence between the defendant and the victim. The defendant contends that such “evidence
of the victim’s propensity for violence” should be allowed to establish that “the victim was
in fact the first aggressor.” In addition, although the argument on this point is unclear, it
appears that the defendant assigns error to the trial court’s decision to exclude the victim’s
prior felony conviction from evidence.

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                This court has stated that “[t]here is a distinction between evidence of prior acts
of violence by the victim used to corroborate the defense theory that the victim was the first
aggressor and that used to establish the defendant’s fear of the victim.” State v. Ruane, 912
S.W.2d 766, 779 (Tenn. Crim. App. 1995). If the defendant is unaware of the victim’s prior
violent acts, the evidence is admissible for the sole purpose of corroborating the defendant’s
claim that the victim was the first aggressor. Id. at 779, 781. The evidence cannot be used
substantively, and as such, it is not controlled by Tennessee Rules of Evidence 404(a)(2) and
405. State v. Chancy Jones, No. W2010-02424-CCA-R3-CD, slip op. at 11 (Tenn. Crim.
App., Jackson, Apr. 5, 2012), perm. app. denied (Tenn. Aug. 16, 2012); State v. John D.
Joslin, No. 03C01-9510-CR-00299, slip op. at 69 (Tenn. Crim. App., Knoxville, Sept. 18,
1997), perm. app. denied (Tenn. Nov. 9, 1998) (citing Neil P. Cohen, et al., Tennessee Law
of Evidence § 404.4 (Supp. 1996)). If, however, the defendant seeks to introduce evidence
showing a reasonable fear of the victim, the defendant may testify to those violent acts
perpetrated by the victim of which he or she is aware. Ruane, 912 S.W.2d at 779.

               Before a trial court can admit evidence of the victim’s prior violent acts to
corroborate the defendant’s claim that the victim was the first aggressor, three requirements
must be satisfactorily met: (1) the issue of self-defense must be raised by the proof and not
simply by statements of counsel; (2) there must be a factual basis for the defendant’s claim
that the victim had first aggressor tendencies; and (3) the probative value of the evidence
must outweigh the danger of unfair prejudice. Chancy Jones, slip op. at 11; State v. Laterral
Jolly, No. 02C01-9207-CR-00169, slip op. at 9-10 (Tenn. Crim. App., Jackson, Dec. 15,
1993).

               In the instant case, the defendant first sought to introduce, through Officer
Taylor, apparent proof of prior incidents of domestic violence between the victim and the
defendant. The State properly objected to hearsay, noting for the trial court that the previous
incidents were not investigated by Officer Taylor but rather by other police officers. Prior
to ruling on the State’s objection, the trial court cautioned defense counsel about “opening
up a whole can of worms” with his question and inquired whether counsel knew how the
officer would respond to the question. Rather than defend his position, defense counsel
simply replied, “I’ll move on.” Not only was the evidence he attempted to introduce
improper hearsay, but he made no further efforts to introduce incident reports through other
witnesses. Thus, he cannot now be heard to complain about the exclusion of this evidence
when he clearly abandoned his efforts to bolster the defendant’s defense through the
introduction of the evidence.

               Moreover, the defendant himself testified to three separate incidents in which
the victim had been violent toward him: the occasion on which the victim hit him in the head
with a brick, resulting in the victim’s arrest; the incident in which she attempted to stab the

                                                -8-
defendant with a knife; and the time in which she shoved the defendant against the corner
of his house, tearing his rotator cuff. Although the defendant did not introduce arrest
warrants or incident reports stemming from these acts of violence, he was able nonetheless
to place this evidence before the jury through his own testimony, which belies his claim that
the evidence never came before the jury.

               Turning now to the defendant’s apparent assignment of error to the trial court’s
exclusion of the victim’s prior felony conviction, we first note that the defendant was
unaware of either the conviction or the facts surrounding it. At trial, the defendant testified
to the violence perpetrated against him at the hands of the victim. Following this testimony,
defense counsel inquired as to whether the victim “had done anything to anybody else.” The
defendant responded, “Not that I know of.” Defense counsel inquired, “Are you sure about
that?”, prompting an objection to leading by counsel for the State, which the trial court
sustained. Defense counsel did not question the defendant further on his knowledge of any
violent acts committed by the victim against others. Thus, the defendant was unaware of any
prior violent acts, and any evidence of such acts could only be admitted to corroborate the
defendant’s position that the victim was the first aggressor. See Ruane, 912 S.W.2d 779,
781.

                When defense counsel later attempted to introduce evidence of the victim’s
prior felony conviction of reckless aggravated assault through the testimony of Ms. Horner,
the State objected, and the trial court held a bench conference. Clearly, the prerequisite of
proof of self-defense had been established through the testimony of the defendant. The trial
court, after reviewing the circumstances surrounding the conviction, determined that the
victim was not the first aggressor. “Rather than considering the record of conviction alone,
the trial court must determine the underlying facts of the alleged act of aggression.” Laterral
Jolly, slip op. at 8. The trial court determined that the admission of the conviction and its
underlying facts would be “really misleading” to the jury, and the trial court effectively found
that the prejudicial impact of this evidence would outweigh any probative value. We hold
the trial court did not err in excluding this evidence.

              The defendant is not entitled to relief on this issue.

                                II. Sufficiency of the Evidence

              The defendant also contends that the evidence is insufficient to support his
conviction of second degree murder. We disagree.

              We review the defendant’s claim of insufficient evidence mindful that our
standard of review is whether, after considering the evidence in the light most favorable to

                                              -9-
the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324
(1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This standard
applies to findings of guilt based upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 379
(Tenn. 2011).

                When examining the sufficiency of the evidence, this court should neither re-
weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.
Questions concerning the credibility of the witnesses, the weight and value of the evidence,
as well as all factual issues raised by the evidence are resolved by the trier of fact. State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must afford the State
the strongest legitimate view of the evidence contained in the record as well as all reasonable
and legitimate inferences which may be drawn from the evidence. Id.

               As charged in this case, “[s]econd degree murder is . . . [a] knowing killing of
another.” T.C.A. § 39-13-210. Affording the State the strongest legitimate view of the
evidence and deferring to the credibility determinations made by the jury, we conclude that
the evidence supports the defendant’s conviction of second degree murder. The evidence
established that he shot the victim, who was armed only with a comb, one time in the
abdomen. Although the defendant claimed that he shot the victim in self-defense, the jury
rejected this testimony, as was its prerogative.

                                       III. Conclusion

              The trial court did not err by excluding evidence of the victim’s prior felony
conviction, and the evidence is sufficient to support the defendant’s conviction of second
degree murder. Accordingly, we affirm the judgment of the trial court.


                                                     _________________________________
                                                     JAMES CURWOOD WITT, JR., JUDGE




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