        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs October 7, 2014

                  STATE OF TENNESSEE V. ERIC WILLIAMS

              Direct Appeal from the Criminal Court for Shelby County
                     No. 12-04164    James Lammey, Jr., Judge


                No. W2013-01593-CCA-R3-CD - Filed March 27, 2015


A Shelby County Criminal Court Jury convicted the appellant, Eric Williams, of first degree
premeditated murder, and the trial court sentenced him to life. On appeal, the appellant
contends that the evidence is insufficient to support the conviction, that the trial court erred
by refusing to allow State witnesses to testify about his statements after the killing, that the
trial court erred by allowing the State to use a shotgun for demonstrative purposes when the
gun was not involved in the crime, and that the trial court erred by not using the “reasonable
effort method” for the jury’s consideration of the charge. Based upon the record and the
parties’ briefs, we conclude that the trial court erred by prohibiting the appellant from cross-
examining State witnesses about his stating after the shooting that he did not intend to shoot
the victim, by allowing the State’s expert to testify about the trigger pull of double-barrel
shotguns, and by allowing the jury to handle a shotgun that was not the murder weapon.
Moreover, we conclude that the cumulative effect of the errors warrants reversal of the
appellant’s conviction. Therefore, the conviction is reversed, and the case is remanded to the
trial court for a new trial.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which C AMILLE R.
M CM ULLEN and T IMOTHY L. E ASTER, JJ., joined.

Vicki M. Carriker (on appeal) and Michael Scholl and Michael Campbell (at trial), Memphis,
Tennessee, for the appellant, Eric Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Stacy McEndree and Marquis
Young, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                          OPINION
                                       I. Factual Background

      In July 2012, the Shelby County Grand Jury indicted the appellant for first degree
premeditated murder in count 1 and employing a firearm during the commission of a
dangerous felony in count 2.1 The charges resulted from the shooting of William Frank
Yancey.

        Mamie Yancey, the victim’s mother, testified that in December 2009, the victim was
forty-five years old and lived with her on Burgess Drive in Memphis. Ms. Yancey’s
daughter, grandson, and granddaughter lived with them. On the night of December 18, the
victim left home with the appellant. While the victim and the appellant were gone, the
appellant’s car was at Ms. Yancey’s home. The victim returned home after midnight, ate,
and talked on the telephone. At some point, Ms. Yancey heard the appellant’s car pull into
the driveway. She told the victim that someone was there, and the victim went outside. Ms.
Yancey did not see the victim alive again.

       On cross-examination, defense counsel asked Ms. Yancey if she knew the appellant,
and she stated, “I just heard my son call his name.” Defense counsel asked if the victim and
the appellant were friends, and she answered, “Far as I know they were.” She said that when
the victim went outside, she did not hear him cursing or arguing with the appellant. She did
not know if the victim left with the appellant, and the victim never told her that he was afraid
of the appellant.

       Marquise Relliford testified that the appellant and the victim lived near his cousin,
Shelton Malone, and that he had known both of them for seven or eight years. On December
19, 2009, Malone dropped off Relliford at Chocolate City, a nightclub. Relliford said that
the appellant and the victim were there but that he did not see the victim “till we left.”
Sometime between 2:00 and 3:00 a.m., Relliford left the club with the appellant, the victim,
and a man he did not know. The four of them got into a Chevrolet Avalanche with the
appellant sitting in the front passenger seat, the victim sitting behind the appellant, and


        1
         The State failed to name the predicate felony in count 2. The only other offense alleged in the
indictment, first degree murder, is not a “dangerous felony” as defined in Tennessee Code Annotated section
39-17-1324(i)(1). During the jury charge, the trial court instructed the jury that it could find the appellant
guilty of employing a firearm during the commission of a dangerous felony only if it found him guilty of
voluntary manslaughter as a lesser-included offense of first degree murder in count 1. Voluntary
manslaughter is a “dangerous felony” pursuant to Tennessee Code Annotated section 39-17-1324(i)(1)(C).
However, the indictment left the appellant with inadequate notice of the charge against him so that count 2
was void for lack of notice. See State v. Demeko Gerard Duckworth, No. M2012-01234-CCA-R3-CD, 2013
Tenn. Crim. App. LEXIS 398, at *58-60 (Nashville, May 10, 2013). Regardless, the jury acquitted the
appellant of count 2.

                                                     -2-
Relliford sitting behind the driver. Relliford said that during the drive, the appellant and the
victim began arguing and that the argument was “a little heated.” Relliford stated that he told
them to stop arguing and that they did so “for a minute.” However, the arguing resumed.
Relliford said he did not know what they were arguing about and did not want to be in the
truck during the argument, so he told the driver to drop him off at Chevron Road and Shelby
Drive. The driver dropped off Relliford, and that was the last time Relliford saw the victim
alive.

       Relliford testified that he had been drinking alcohol “all day” before he got to the
club. He said that people consumed alcohol at Chocolate City and that he saw the appellant
with “one cup in his hand.” However, he never saw the appellant stumble or heard the
appellant use slurred speech.

        On cross-examination, Relliford testified that he began drinking alcohol about 2:00
p.m. on December 18 and that he consumed seven, twenty-four-ounce cans of beer before
he got to the club about 11:00 p.m. He acknowledged that during the drive from the club,
the appellant and the victim were intoxicated and extremely angry and that he was concerned
their argument would become physical. He also acknowledged that the appellant and the
victim were good friends.

       Roderick Johnson testified that in December 2009, he lived on Burgess Drive and that
the victim lived nearby. On the night of December 18, Johnson hosted a party for his wife
at Chocolate City. He invited the victim, whom he had known about four years, and the
victim invited the appellant, whom Johnson had known about three years. About 10:00 p.m.,
the appellant and the victim arrived at Johnson’s house and rode with him in his Chevrolet
Avalanche to the club. Johnson said that the victim “stayed on the dance floor” and that the
appellant “stayed over talking to the other guy [Marquise]” for most of the night. Johnson
did not know if they consumed alcohol.

        Johnson testified that about 2:00 a.m., he and the victim went outside to leave the
club. Johnson told the victim to go inside and get the appellant, and the appellant came out
of the club with Marquise Relliford. The appellant expected Johnson to give Relliford a ride
home. The victim told the appellant that the appellant should have asked Johnson first
because Johnson did not know Relliford, and the appellant and the victim “kind of said a few
words to each other.” Johnson told the victim that he “didn’t have a problem giving
[Relliford] a ride.”

        Johnson testified that the appellant sat in the front passenger seat and that the victim
sat directly behind the appellant. During the drive, the appellant and the victim continued
to argue about Johnson’s having to drive Relliford home. Johnson said that at some point,

                                              -3-
he dropped off Relliford because “they was arguing so bad” that Relliford wanted out of the
truck. Johnson stated that after Relliford got out, the appellant “got out of his seat to turn
around to grab Frank in the neck.” Johnson grabbed the appellant’s arm, and the appellant
“turned back around in his seat.” The appellant told the victim that he had had enough of the
victim’s getting into his business and that he was going to do something to the victim. The
victim told the appellant that he was not afraid of the appellant and that “go on and do what
you got to do.” The appellant told the victim, “[W]hen I do something to you, I’m going to
make it count.”

       Johnson testified that when he got to the intersection of Chevron Road and Burgess
Drive, he told the appellant and the victim to get out of his truck. Johnson said he drove
down the street, turned around, and shined his headlights on the appellant and the victim.
The appellant and the victim were pushing each other but stopped and “went to talking.”
Johnson said he heard the victim tell the appellant that they “needed to stop playing because
somebody will eventually get hurt” and that the two men began walking. He said that he
assumed they walked to the victim’s house and that he drove to his own home. About five
or ten minutes later, Johnson heard the appellant’s Mustang “drive off.” Ten to twenty
minutes later, he heard the appellant’s car again. During the night, Johnson learned that
something had happened between the appellant and the victim. The police showed him a
photograph array, and he identified the appellant’s photograph.

       On cross-examination, Johnson testified that he did not know if the appellant and the
victim consumed alcohol or smoked marijuana before they went to the club. Johnson said
he took “all kind[s]” of whiskey and liquor to the party and that he saw the appellant and the
victim drinking alcohol out of cups. When the four men left the club, nothing indicated to
Johnson that the other three had consumed alcohol. Johnson denied that the appellant and
the victim were “tussling” in his truck and said that he dropped them off because “neither of
them [would] be quiet.”

        Johnson acknowledged giving a statement to police about 7:00 a.m. on December 19
in which he stated that during the drive home, the appellant “got up several times wanting
to hit Frank and I wouldn’t let him do it.” He also acknowledged telling the police that the
appellant and the victim “tussl[ed].” Johnson explained to the jury, “That’s [when] Eric got
up to choke Frank, . . . and I just grabbed his arm.” He acknowledged that he never told the
police that the appellant “choked” the victim and said that he “[e]vidently . . . left it out.” He
stated that the victim never touched the appellant and that the appellant “got up out of his
seat to grab Frank and to me they were just playing.” Johnson said, “If I had [known] . . . the
situation was [as] bad as it was, I never would have dropped both of them off where I
dropped them off at . . . . That’s why I dropped both of them off. Both of them knew each
other before they knew me.” Johnson acknowledged that he never told the police that the

                                               -4-
appellant claimed he was going to “make it count.”

       Marquez Yancey, the victim’s son, testified that in December 2009, he lived on
Burgess Drive with the victim; his grandmother, Mamie Yancey; and his aunt. On the night
in question, Marquez2 saw the victim getting ready to go to a party. The victim went to the
party with the appellant and “Rod,” who was driving. Marquez said that when the victim
returned home, the victim went to the victim’s bedroom and was “[l]aying across his bed
eating.” The appellant knocked on the front door of the home and asked for the victim, so
Marquez went to get the victim. He said the appellant and the victim walked into the front
yard and appeared to be arguing or “exchanging words.” Marquez stood at the window and
watched them but could not hear what they were saying. Marquez said he noticed a gun in
the appellant’s hand but did not think anything of it because “I myself knew Eric. My daddy
knew Eric, and I would have never thought that the things that happened would have
happened. If I would have thought that, I would have did something different.” Marquez
saw the appellant and the victim leave in a Mustang.

       On cross-examination, Marquez acknowledged that he was surprised about the
shooting because the appellant and the victim “hung out together” and were good friends.
When Marquez answered the door on December 19, the appellant did not appear to be angry
and waited on the front porch while Marquez went to get the victim. The victim went
outside, and Marquez heard both of them arguing. Marquez looked outside to see what was
going on and saw the appellant holding a shotgun in his right hand. Marquez said that the
appellant had his left arm around the victim and that, by that time, they appeared to be “just
talking.” The men talked for twenty to thirty minutes, got into the Mustang, and left.
Marquez stated, “I would say that they were calmed down if my dad is getting in the car with
him and they’re pulling off together.” On redirect examination, Marquez testified that the
appellant and the victim were outside about forty minutes.

       Candace Maples testified that she knew the victim and the appellant “[f]rom around
the neighborhood” and that she had known them since she was a teenager. About 9:00 or
10:00 p.m. on December 18, 2009, Maples began “hanging out” with Shelton Malone and
Marquise Relliford. She said that they were “riding around” in Malone’s black SUV and that
Relliford was not with them the entire time. Malone drove, and Maples sat in the front
passenger seat.

     Maples testified that at some point, she and Malone ended up at the appellant’s house.
Malone pulled up behind the appellant’s Mustang, and the appellant’s porch light was on so


        2
          Because the witness shares a surname with another witness, we will refer to him by his first name
for clarity. We mean no disrespect to these individuals.

                                                   -5-
that Maples could see into the appellant’s car. She said that the appellant was sitting in the
driver’s seat, that the victim was sitting in the passenger seat, and that “it looked like it was
confrontation in the car.” Maples saw the appellant using hand gestures and pointing, and
the victim was “just looking” at the appellant. Maples said that she heard “a lot of fussing”
and that Malone told the victim to get out of the Mustang and get into Malone’s SUV. The
appellant was “cussing” and said he was tired of the victim “F’ing with him.”

       Maples testified that the victim got into Malone’s vehicle and sat behind her. Maples
told the victim that the appellant was crazy, and the victim replied, “[Y]eah, he crazy.”
Maples said that the appellant’s garage was open slightly and that she heard the appellant tell
his son to “go get the gun.” The appellant’s son went into the house and came out with a
shotgun. Maples acknowledged that she served in the military, spent time in Iraq, and was
familiar with guns. She said that the gun was a twelve-gauge shotgun but that she could not
see whether it was a single- or double-barrel shotgun. Maples said the appellant got the gun
from his son and was “pacing back and forth, putting the gun in the garage and then getting
it. He did that, like, two or three times.” Maples said that she got out of Malone’s SUV
because she “felt like something was going to escalate” and that she asked the appellant’s son
why he got the gun.

        Maples testified that she heard the appellant say twice, “I’m going to kill this
[N*****].” The appellant was standing at the driver’s side of Malone’s vehicle. She said
that the rear door on the driver’s side was open and that the appellant was “jugging” the
victim’s side with the gun. The appellant’s wife came outside, and the appellant shot the
victim. Maples said that after the shooting, the appellant walked away and was “talking out
loud” to himself. She said she heard the appellant say, “I told him to stop F’ing with me.”
        Maples testified that she went to the driver’s side of the SUV. The victim was leaning
to his left, and Maples pushed him over. The victim was hot from the gunshot, and blisters
formed on Maples’ hands from touching the victim. Maples found a pulse in the victim’s
neck, and Malone began driving them to the hospital. During the drive, the victim did not
talk but shook his head. When they arrived at the hospital seven or eight minutes later,
Maples could no longer find a pulse. Later that day, the police showed her a photograph
array, and she identified the appellant as the shooter.

       On cross-examination, Maples acknowledged that she had been drinking alcohol
before the shooting. She said that she began drinking beer at 6:00 p.m. and that she
continued to drink beer and vodka while she was riding around with Malone and Relliford.
However, she denied that she was intoxicated. She said that sometime before the shooting,
Malone drove to Chocolate City and dropped off Relliford. Maples said that she did not go
into the club and that she saw the appellant in the parking lot.



                                               -6-
       Maples testified that when Malone pulled up in the appellant’s driveway for the
second time, the appellant got out of the Mustang, and Malone got out of the SUV. The
appellant began telling Malone what was happening and seemed very angry and “hyped.”
Malone told the victim to get into the SUV and that he would take the victim home. Maples
said that when the victim got into the SUV, she got out because she thought something bad
was going to happen and did not want to be near the victim.

        Maples acknowledged that she gave a statement to the police at 9:48 a.m. on
December 19. She also acknowledged telling the police that when she and Malone pulled
into the driveway, the appellant said, “[G]et this [N*****] out of this car and take him
home.” Maples acknowledged telling the police that she and Malone got out of the SUV and
tried to calm down the appellant. She said she only remembered getting out of Malone’s
SUV one time: when the victim got into the vehicle. She also acknowledged that in her
statement, she claimed that the appellant told his son to get the “shotgun” and that “they got
to arguing again.” She said that the appellant was the only person arguing and that the victim
“wasn’t saying nothing.” She said that she saw the appellant shoot the victim but
acknowledged that she did not say in her statement that she witnessed the shooting. She also
did not say in her statement that she talked to the appellant’s son or that the appellant said
after the shooting, “I told him to stop F’ing with me.” Regarding the inconsistencies between
her statement and her testimony, she said that she was in shock when she gave her statement
and that “[i]t’s a lot of things I’m sure that I didn’t tell then that I’m telling now.” She noted
that the shooting occurred four years before trial and that she “had been drinking then.”

        On redirect examination, Maples acknowledged that she previously failed to appear
in court for a proceeding related to this case and that she was arrested and jailed. She said
that the State had not promised her anything in exchange for her testimony and that the State
did not tell her what to say. She said she never saw the victim with a weapon or put his
hands on the appellant.

       Shelton Malone testified that he was thirty-one-years old, that he and Candace Maples
used to go to school together, and that he had known her since he was a teenager. Malone
had known the victim for more than twenty years and the appellant about ten years, and both
of them were older than Malone. On the night of December 18, 2009, Malone was “[j]ust
riding around” with Maples and Malone’s cousin, Marquise Relliford. At some point,
Malone dropped off Relliford at Chocolate City. Neither Malone nor Maples went into the
club. Afterward, Malone and Maples continued to ride around. Malone was driving his
SUV, and Maples was sitting in the front passenger seat. Malone said that Maples was
drinking alcohol but that he was not.

       Malone testified that while he was driving on Chevron Road, he saw the appellant’s

                                               -7-
Mustang. The appellant was driving, alone, and speeding. Malone turned around and drove
to the appellant’s house. He pulled into the driveway behind the Mustang, which was “still
running.” Malone got out of his SUV and saw the appellant come out of the appellant’s
house. Malone said he did not remember if the appellant had anything in the appellant’s
hands. The appellant seemed angry, and Malone tried to talk to him. However, the appellant
got into his Mustang and told Malone to let him out of the driveway. Malone backed out the
SUV, and the appellant backed out the Mustang. Malone said that he tried to follow the
appellant but that the appellant “pulled off too fast.”

        Malone testified that he took Maples to the store and that they returned to the
appellant’s house about ten minutes later. The Mustang was in the driveway, and Malone
pulled in behind it. He saw two people in the car, and they appeared to be arguing because
they were “face-to-face.” Malone walked up to the Mustang and saw the appellant sitting
in the driver’s seat and the victim sitting in the passenger seat. Malone could not figure out
what they were arguing about and told the victim to get into the SUV.

        Malone testified that he got back into the driver’s seat of the SUV and that the victim
got into the back seat. The appellant opened the SUV’s rear door on the driver’s side and
said, “Got me F’ed up.” The appellant was yelling, cursing, and trying to hit the victim.
Malone got out of the SUV and tried to move the appellant away from the vehicle but could
not, so he went to the house to get the appellant’s wife. Maples remained in the SUV.

       Malone testified that he told the appellant’s wife to “come get him” and that he saw
the appellant poking the victim’s side with a shotgun. The appellant’s left hand was under
the barrel of the gun, and his right hand was “[a]round the trigger.” Malone heard Maples
say, “You done shot him.” Malone went to the SUV and saw that the victim had been shot.
Maples climbed from the front seat to the back seat, and Malone lifted the victim’s shirt and
saw a hole in the victim side. The victim stated, “Why you let him do me like that.”

        Malone testified that he drove the victim to the hospital. When they arrived, the
victim was not talking or breathing. About 8:30 a.m., five hours after the shooting, Malone
gave a statement to the police. In the statement, he said that the first time he arrived at the
appellant’s house, he saw the appellant come out of the house with a gun. Malone also said
in the statement that the appellant put the gun into the Mustang and that Malone “let him go
on about his business.” After the shooting, the police showed Malone a six-photograph array
containing the appellant’s photograph, and he identified the appellant as the shooter.

        On cross-examination, Malone acknowledged that the appellant and the victim were
his friends, that he never heard the appellant threaten to kill the victim, and that he did not
want to testify against the appellant. He also acknowledged that when the victim got out of

                                              -8-
the Mustang to get into Malone’s SUV, the victim was angry. He said that he did not
remember when the appellant got the gun and that he did not know if the appellant ever hit
the victim. He acknowledged that he saw the appellant “poking” the victim with the gun but
that he never saw the appellant’s hand on the trigger. Instead, he assumed the appellant’s
hand was on the trigger. He also acknowledged that he never heard a gunshot.

        Malone testified that he did not remember stating at a previous hearing that he did not
see a gun until he heard Maples say that the appellant had shot the victim. He acknowledged
that after the shooting, the appellant immediately dropped the gun in the grass, appeared
distraught, and was crying. While Malone was driving the victim to the hospital, the
appellant telephoned Malone several times. The appellant sounded upset but did not sound
like he was crying. Malone said that police officers arrived at the hospital and that he talked
with them in a police car. While Malone was in the car, he saw the appellant’s Mustang.
The appellant did not go into the hospital, and the Mustang turned around and left.

       Lieutenant Alvin Moore of the Memphis Police Department (MPD) testified that on
December 19, 2009, he responded to a “wounding” at Delta Medical. When he arrived, the
victim’s family was in the hallway. Lieutenant Moore learned the victim was deceased and
viewed the body. The victim had a wound in his torso. At that time, Lieutenant Moore did
not have knowledge of a suspect. He said that some of the victim’s family members were
standing outside the hospital, that they ran inside, and that they told him that “the suspect just
drove up and left.” Lieutenant Moore obtained the victim’s personal items, including his
clothing and a folding pocketknife that was with the clothing. The knife was open when
Lieutenant Moore received it.

       Officer Daemien Jefferson of the MPD testified that about 5:00 a.m. on December 19,
2009, he was dispatched to a home on Dawnridge Drive to “check for [a] possible crime
scene” and the alleged suspect. Neither the suspect nor the suspect’s car, a Mustang, were
there. Officer Jefferson did not see any spent shell casings or blood at the scene.

        Lieutenant Anthony Mullins of the MPD testified that on December 19, 2009, he went
to the appellant’s home on Dawnridge Drive to investigate the shooting. He knocked on the
front door, but no one answered. Officers searched the property around the home but never
found a weapon or shell casings. However, they collected a clear vodka bottle from some
bushes and a tree-shaped air freshener that could have hung from a car’s rearview mirror.
The police developed the appellant as a suspect and began looking for him. They also began
looking for appellant’s wife and son as witnesses to the shooting. The police later returned
to the home, and the appellant’s son was there. They contacted the appellant’s wife at work,
and she came to the police department and gave officers consent to search her home.
Officers searched the house but did not find a shotgun. In fact, the police never located the

                                               -9-
weapon used in the killing. On December 21, 2009, the appellant voluntarily turned himself
in to the police.

       Officer Charles Cathey of the MPD testified that he assisted Lieutenant Mullins with
processing Shelton Malone’s SUV. The officers found a red substance that appeared to be
blood in the back seat and collected a sample of the substance on a Q-tip swab. Officer
Cathey dusted the vehicle for fingerprints but did not find any prints. On cross-examination,
Officer Cathey testified that he was not advised that a shotgun had been used to shoot the
victim. Therefore, he did not look in the SUV for a slug or pellets from a shotgun shell.

       Marco Ross of the Shelby County Medical Examiner’s Office testified as an expert
in forensic pathology that he performed the victim’s autopsy. The victim died of a shotgun
wound to his left torso. The shot perforated his left tenth rib, spleen, colon, pancreas,
kidneys, adrenal glands, aorta, liver, and diaphragm. Wadding material and pellets from the
shotgun shell were in the victim’s body. Dr. Ross described the wound as a “contact
wound,” meaning that the muzzle of the gun was in contact with the body when the gun was
fired. He said he determined the wound was a contact wound from the “soot on the margin”
of the wound and “a fairly well circumscribed ring like abrasion just below that wound.”

        Dr. Ross testified that the appearance of the wound was consistent with a double-
barrel shotgun. The victim’s toxicology report revealed that his blood contained alcohol in
the amount of “.078 on the Breathalyzer scale.” The report also showed the presence of
marijuana and cocaine, meaning that the victim likely used marijuana and cocaine during the
twenty-four-hour period before his death. X-rays revealed “bird-shot type projectiles or
shotgun pellets” in the victim’s body, and Dr. Ross collected numerous pellets. He said that
the victim’s shirt was heavily-soiled with blood, particularly on the left side, and that a defect
in the shirt corresponded to the entrance wound on the body.

        On cross-examination, Dr. Ross testified that the victim was five feet, nine inches tall
and weighed 247 pounds. Regarding the victim’s level of intoxication, Dr. Ross noted that
the legal driving limit for intoxication in Tennessee was .08. The entrance wound was seven-
eighths of an inch in diameter, and the lower ring-like scrape was three-fourths of an inch in
diameter. Dr. Ross acknowledged that the barrels of a shotgun were side-by-side and that
the orientation of the victim’s wound indicated that the shotgun was turned sideways when
it was fired. On redirect examination, Dr. Ross testified that the victim would not have died
instantaneously, that he could have survived for several minutes and been conscious, and that
his chance of surviving the type of wound he received was “quite small.”

       Special Agent Forensic Scientist Cervinia Braswell of the Tennessee Bureau of
Investigation (TBI) Firearms Identification Unit testified as an expert in firearms

                                              -10-
identification that she saw the pellets recovered from the victim and acknowledged that the
pellets were consistent with “shot” or “bird shot.” She also acknowledged that bird shot
pellets were smaller than “buck shot”; therefore, a shotgun shell would hold more bird shot
pellets than buck shot pellets. She said the average shell would contain 180 to 400 bird shot
pellets, depending on the size of the shot.

        Agent Braswell testified that each shotgun had a “trigger pull,” which she described
as the amount of pressure in pounds that was needed to pull the gun’s trigger. She stated that
the amount of pressure needed to push the button on a “walkie-talkie” was 2.09 pounds, that
the amount of pressure needed to pull the trigger on a Windex bottle was four to five pounds,
and that the amount of pressure needed to break the seal on a Coke can was six to seven
pounds. Agent Braswell said she used the “weight free method” to determine the trigger pull
for guns received by the TBI. She explained that the weight free method involved using a
pole with a hook on one end, installing the hook over the trigger, and adding weights to the
end of the pole until the trigger pulled. She acknowledged that different guns had different
trigger pulls.

       Agent Braswell testified that double-barrel shotguns could have one or two triggers
and that a person could load one or both barrels. If the shotgun had two triggers, then the
person could pull each trigger separately or both triggers simultaneously. At the State’s
request, Agent Braswell brought to court a double-barrel shotgun from the TBI’s firearm
reference collection. She explained that the shotgun had two triggers, and she showed the
gun to the jury. She acknowledged that the gun was “older” and said that the trigger pull on
each of the triggers was 7.25 pounds. The State offered to let the jurors pull the triggers on
the unloaded shotgun for demonstrative purposes. The record reflects that four jurors “fired”
the gun.

        Agent Braswell testified that the trigger pull for shotguns varied “a little more” than
the trigger pull for handguns and ranged from five to ten pounds. She said that the average
trigger pull for a double-barrel shotgun was 5.6 pounds and that she had never seen a double-
barrel shotgun without a safety catch. She said that if the “sear” mechanism for a trigger was
worn, less pressure was needed to pull the trigger and that the trigger pull could be less than
five pounds.

       On cross-examination, Agent Braswell acknowledged that her testimony on the
average trigger pull for double-barrel shotguns was based on “trigger pull statistic sheets,”
which included trigger pull tests conducted in California in the 1980s. However, she
explained that the data she considered had been published in the Association of Firearm and
Tool Mark Examiners’s quarterly journal and that such data had to be peer-reviewed by a
board of directors and “put out” to all members in order to be published. She stated that in

                                             -11-
addition to the weight free method, trigger pull also could be determined with electronic or
spring-loaded systems and that the three methods used to measure trigger pull had not
changed since the 1980s. However, she acknowledged that the trigger pull data she
considered for this case was based on a small sample of double-barrel shotguns and that she
had no knowledge about the method used to collect the data or the calibration of the
equipment used to collect the data.

        Agent Braswell acknowledged that she could not say the appellant used a double-
barrel shotgun to shoot the victim. She also never examined a gun related to this case and,
therefore, did not know the trigger pull for the gun used in the shooting. She said that
shotguns were manufactured in eight different gauges and that different manufacturers used
different trigger pulls for their guns. She stated that trigger pull also could be affected by the
cleanliness and wear of the gun, and she acknowledged that a gunsmith could “lighten” a
trigger pull. She also acknowledged that many older shotguns did not have a safety catch and
that a person typically did not hold a shotgun sideways when he or she fired it. Defense
counsel asked Agent Braswell if a shotgun could have a “hair trigger” with a trigger pull of
less than one pound, and she answered, “I suppose.” However, she said that she had never
seen or heard of such a gun and that a person would still have to pull the trigger in order for
the gun to fire.

        On redirect examination, Agent Braswell acknowledged that in order for a gun to fire,
the safety catch had to be off, and a person had to pull the trigger. Even if a gun’s sear
mechanism was worn, lessening the trigger pull, a person still had to pull the trigger in order
for the gun to fire. At the conclusion of Agent Braswell’s testimony, the State rested its case.

        Eric Williams, Jr., the appellant’s son, testified that he was about to turn nineteen
years old, was a student at Tennessee Tech, and worked for UPS. He acknowledged that he
violated “the Rule” by being in the courtroom during Candace Maples’ testimony, that it was
wrong for him to be in the courtroom while she was testifying, and that he would not change
his testimony based on she had said.3

       Williams testified that on Friday, December 18, 2009, he had just turned fifteen years
old. That day, he and his mother went to a Christmas party at church. When they got home,
the appellant was getting ready to go to a party. The victim, who was a friend of the family


        3
         After Officer Cathey’s testimony, defense counsel advised the parties that he was going to call Eric
Williams, Jr., as a witness. The State informed the court that Williams had been present in the courtroom
during Maples’s testimony and argued that he had intentionally violated the rule of sequestration. The trial
court questioned Williams, and he apologized for “coming in here and disobeying the rules.” The trial court
determined that Williams could testify but that “he’s going to do ten days after this trial is over with.”

                                                    -12-
and like an uncle to Williams, also was there, and the men were not drinking alcohol or
arguing. Later that night, the appellant returned home from the party, knocked on Williams’s
bedroom window, and rang the doorbell. Williams got out of bed and answered the door.
He said that the appellant came into the house and was yelling, screaming, and cursing. The
appellant wanted his shotgun, so Williams showed him the location of the gun. The appellant
took the gun and left the house, telling Williams to lock the door. Williams looked outside
and saw Shelton Malone’s black SUV pull in behind the appellant’s car. The appellant got
into his Mustang, and Malone backed the SUV out of the driveway. The appellant also
backed out, and both vehicles traveled in the same direction.

       Williams testified that about two or three minutes later, he heard the appellant’s
Mustang arrive. Williams looked outside and saw the appellant and the victim in the car.
He said they were “just talking” and “seemed to be normal.” Malone’s SUV pulled up
behind the Mustang, and the victim got out of the car. Malone got out of the SUV, and the
appellant got out of the Mustang. Williams said that “that’s when my dad and Frank had an
altercation. They were going back and forth with each other.” The appellant and the victim
were yelling, screaming, and cursing.

        Williams testified that he went into the garage and watched what was happening. The
victim was in the back seat on the passenger side of the SUV, and he and the appellant were
still cursing and yelling at each other. The appellant walked by Williams and threw the
shotgun onto a toolbox in the garage. The gun started to slide off the toolbox, so Williams
grabbed it, and the appellant grabbed it away from him. The appellant went toward the
driver’s side of the SUV, and the victim told him that “you can’t whoop me.” The appellant
pointed the gun at the victim, and they started “tussling” and “exchanging blows towards
each other.” Williams said the appellant was holding the gun in his left hand and using his
right hand to punch the victim, who was “hitting back.” The appellant looked like he was
trying to hit the victim with the shotgun but, at the same time, he was still punching the
victim with his right hand. Williams said that the next thing he knew, the victim pushed the
appellant “up off of him,” and Williams heard a “small pop.” He went to the SUV and saw
the victim “kind of tilted over.”

       Williams testified that after the shooting, the appellant “kind of broke down” and was
crying and screaming. Everyone left, and Williams went to a friend’s house because he
“didn’t want to be there.” He acknowledged that the appellant was very angry during the
altercation and said that the appellant was “nowhere near sober.” He stated that he could
smell alcohol on the appellant and that “the way he was acting, I knew he had to been drunk.”
Williams said the gun was a double-barrel shotgun that had been owned by his grandfather.
The gun was old, unclean, and “rusted kind of.” He said that the handle and stock were
“kind of duct taped together” and that the barrel could be heard rocking back and forth if a

                                            -13-
person “jiggle[d]” the gun. He described the gun as “like a medium size shotgun like
something sort of like a Mossberg” and “a shorter kind though.” He acknowledged that he
missed the victim and that the victim was a “good man.”

       On cross-examination, Williams acknowledged that he did not know how much
alcohol the appellant consumed or if the appellant used drugs before the shooting. Williams
never saw the appellant take the shotgun out of the Mustang. The entire incident, from the
time Williams heard the Mustang pull into the driveway until Malone drove the victim to the
hospital, lasted forty-five minutes to one hour. Williams acknowledged that the appellant did
not want Malone to drive the victim home and that the appellant wanted the victim to walk
home. At some point, the victim held up his hands and said, “I’m done, I’m done.”
However, the appellant continued to argue, yell, and curse. The appellant used one hand to
hold the shotgun and tried to hit the victim on the head with the gun. Williams saw the
appellant put the gun in the victim’s face but never saw him put it in the victim’s side.

        Williams testified that after the shooting, he “went blank.” He did not see the
appellant drop the gun or what the appellant did with it. He said the only thing he
remembered after the shooting was holding down the appellant in the living room of their
home. He acknowledged that he gave a statement to the police and that he never told them
that he held down the appellant. Williams’s parents left their home, and he thought they went
to the hospital. However, he did not know if they went there. Williams also left the home
but returned the next day. The police were not there, and Williams was at home alone all
weekend. The police picked him up on Monday and took him to the police department.
Williams did not see the appellant until later that day when the appellant came to the
department and turned himself in to the police.

        Williams acknowledged that he did not tell police that the gun was old, rusty, or
rattled. He also did not tell them that duct tape was on the handle. He said he did not
describe the gun to the police because “they didn’t ask.” He acknowledged that he never saw
the victim with a knife or gun, that he never saw the victim get out of Malone’s SUV, and
that he never heard the victim threaten the appellant. He also acknowledged that he
understood the trial court’s instructions regarding witnesses not being allowed in the
courtroom during the trial. He denied pressing his ear to the courtroom door in an attempt
to hear the testimony. He said, though, that he stood near the door, trying to hear the
testimony. He also came into the courtroom during Maples’s testimony.

       At the conclusion of the Williams’s testimony, the jury convicted the appellant as
charged of first degree premeditated murder. The jury found him not guilty of employing a
firearm during the commission of a dangerous felony.



                                            -14-
                                         II. Analysis

                               A. Sufficiency of the Evidence

       The appellant contends that the trial court erred by denying his motion for judgment
of acquittal and that the evidence is insufficient to support the conviction. Specifically, he
contends that the evidence is insufficient because the “majority of eyewitnesses were
drinking that day and night,” making their credibility “extremely limited,” and because the
evidence fails to show that he premeditated killing the victim. The State argues that the
evidence is sufficient. We agree with the State.

         When an appellant challenges the sufficiency of the convicting evidence, the standard
for review by an appellate court is “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979);
Tenn. R. App. P. 13(e). The State is entitled to the strongest legitimate view of the evidence
and all reasonable or legitimate inferences which may be drawn therefrom. State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978). Questions concerning the credibility of witnesses and
the weight and value to be afforded the evidence, as well as all factual issues raised by the
evidence, are resolved by the trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).
This court will not reweigh or reevaluate the evidence, nor will this court substitute its
inferences drawn from the circumstantial evidence for those inferences drawn by the jury.
Id. Because a jury conviction removes the presumption of innocence with which a defendant
is initially cloaked at trial and replaces it on appeal with one of guilt, a convicted defendant
has the burden of demonstrating to this court that the evidence is insufficient. State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

       A guilty verdict can be based upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Hall, 976 S.W.2d 121, 140
(Tenn. 1998). “The jury decides the weight to be given to circumstantial evidence, and ‘[t]he
inferences to be drawn from such evidence, and the extent to which the circumstances are
consistent with guilt and inconsistent with innocence, are questions primarily for the jury.’”
State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting Marable v. State, 313 S.W.2d 451,
457 (Tenn. 1958)). “The standard of review ‘is the same whether the conviction is based
upon direct or circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn.
2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

       First degree murder is the premeditated and intentional killing of another person.
Tenn. Code Ann. § 39-13-202(a)(1). A premeditated killing is one “done after the exercise
of reflection and judgment.” Tenn. Code Ann. § 39-13-202(d). The element of

                                              -15-
premeditation is a question of fact for the jury. State v. Davidson, 121 S.W.3d 600, 614
(Tenn. 2003). Although the jury may not engage in speculation, it may infer premeditation
from the manner and circumstances surrounding the killing. Bland, 958 S.W.2d at 660. In
State v. Nichols, 24 S.W.3d 297, 302 (Tenn. 2000), our supreme court delineated the
following circumstances from which a jury may infer premeditation:

              Declarations by the defendant of an intent to kill, evidence of
              procurement of a weapon, the use of a deadly weapon upon an
              unarmed victim, the particular cruelty of the killing, infliction of
              multiple wounds, preparation before the killing for concealment
              of the crime, destruction or secretion of evidence of the murder,
              and calmness immediately after the killing.

The jury may also infer premeditation from the establishment of a motive for the killing and
the use of multiple weapons in succession. State v. Leach, 148 S.W.3d 42, 54 (Tenn. 2004).

        Taken in the light most favorable to the State, the evidence shows that in the early
morning hours of December 19, 2009, the appellant and the victim left Chocolate City with
Roderick Johnson and Marquise Relliford and that the victim became upset with the
appellant for having Johnson give Relliford a ride. The appellant and the victim argued
about the situation and continued to argue during the drive. In fact, the argument became so
heated that Relliford asked Johnson to let him out of the truck. After Relliford got out, the
appellant turned around in his seat to grab the victim, but Johnson stopped him. The
appellant then threatened to do something to the victim and “make it count.” The two men
would not be quiet, so Johnson made them get out of the truck. The victim and the appellant
walked to the victim’s home on Burgess Drive, and the appellant got into his car and drove
to his own home on Dawnridge. There, he woke his son, got his double-barrel shotgun, and
returned to the victim’s home. The victim and the appellant argued in the victim’s yard, the
victim left with the appellant, and the appellant drove them back to his home. Candace
Maples and Shelton Malone pulled up behind the appellant’s Mustang and saw the appellant
and the victim arguing in the car. Malone told the victim to get into Malone’s SUV so he
could take the victim home. The victim got into the back seat of the vehicle, but the
appellant approached him on the driver’s side and poked him in the side with the gun. The
appellant was holding the gun with both hands and had one hand on the barrel and the other
near the trigger, and Maples heard him say twice that he was going to kill the victim. When
the appellant’s wife came outside, the appellant shot the victim in the torso.

       Although the appellant contends that the evidence fails to show that he premeditated
killing the victim, the evidence demonstrates that the appellant procured his shotgun,
declared his intent to kill the victim, and that the victim was unarmed. The evidence also

                                             -16-
shows that the victim did not provoke the appellant. The State’s witnesses testified that the
appellant became physically aggressive with the victim but that the victim never touched the
appellant. Even the appellant’s son acknowledged that the victim threw up his hands before
the shooting and stated, “I’m done, I’m done.” The appellant also failed to provide aid or
assistance to the victim, and Maples testified that the appellant walked away after the
shooting and stated that “I told him to stop F’ing with me,” demonstrating the appellant’s
calmness after the shooting. In sum, the jury could infer premeditation from all of the factors
delineated in Bland. Furthermore, the credibility of the witnesses was within the purview of
the jury. See State v. Millsaps, 30 S.W.3d 364, 368 (Tenn. Crim. App. 2000) (stating that
“the weight and credibility of the witnesses’ testimony are matters entrusted exclusively to
the jury as the trier[ ] of fact”). In the instant case, the jury clearly resolved any issues of
credibility and any inconsistencies in the testimony in the State’s favor. We may not now
reconsider the jury’s credibility assessment. We conclude that the evidence is more than
sufficient to show that the appellant intentionally and with premeditation killed the victim.

                                 B. Appellant’s Statements

        The appellant contends that the trial court erred by ruling that statements he made
immediately after the shooting were inadmissible and that the trial court’s error prevented
him from presenting his defense of acting recklessly. The State argues that the appellant is
not entitled to relief because he was able to present the defense through his son, who testified
that the appellant was distraught after the shooting, and that the trial court’s error was
harmless in light of the overwhelming evidence against him. We agree with the appellant
that the trial court erred but conclude that the error, taken alone, was harmless.

        At trial, the appellant argued that Candace Maples and Shelton Malone should be
allowed to testify that after the shooting, the appellant stated that he did not mean to shoot
the victim. Defense counsel contended that the statements qualified as excited utterances,
but the trial court ruled that such “self-serving hearsay” was never admissible. The appellant
made offers of proof regarding the witnesses’ proposed testimony. During Maples’s proffer,
defense counsel asked if she remembered telling a police officer at the hospital that the
appellant stated after the shooting, “I didn’t mean to do that.” Maples answered, “No, I
don’t.” The trial court ruled that defense counsel could question Maples about her statement
to the officer as impeachment evidence. During Malone’s proffer, the State asked if he heard
the appellant say anything immediately after the shooting, and Malone said no. Malone
stated, though, that during the drive to the hospital, the appellant telephoned Malone multiple
times and claimed five or six times that he did not intend to shoot the victim. On cross-
examination, Malone acknowledged giving a statement to the police in which he stated as
follows: “I ran back to the truck to check and see if he was shot, but I didn’t see no hole or
nothing but I seen a lot of blood. [The appellant] got to crying saying he ain’t tried to do it

                                              -17-
and all that. I said man, I ain’t got nothing to do with that.” The trial court reiterated that
self-serving hearsay was inadmissible but that the defense also could cross-examine Malone
about his statement to the police. Later, the trial court ruled that if the appellant chose to
admit Malone’s statement into evidence pursuant to Tennessee Rule of Evidence 803(5), the
hearsay exception for past recollection recorded, the appellant’s self-serving statements
would have to be redacted. The appellant maintains that the trial court should have allowed
Maples and Malone to testify about his statements as substantive evidence and that Malone’s
entire statement was admissible pursuant to Rule 803(5).

        Hearsay is defined as “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
Tenn. R. Evid. 801(c). As a general rule, hearsay is not admissible during a trial, unless the
statement falls under one of the exceptions to the rule against hearsay. See Tenn. R. Evid.
802. Our supreme court has stated that generally, “questions concerning the admissibility
of evidence rest within the sound discretion of the trial court, and this Court will not interfere
in the absence of abuse appearing on the face of the record.” Pylant v. State, 263 S.W.3d
854, 870 (Tenn. 2008). The appellant concedes that his statements were hearsay. He no
longer argues that they were admissible under the excited utterance exception to the hearsay
rule but argues that they were admissible under res gestae and to show his state of mind.

      Our supreme court has stated as follows regarding a defendant’s self-serving
statements:

               “A self-serving declaration is excluded because there is nothing
               to guarantee its testimonial trustworthiness. If such evidence
               were admissible, the door would be thrown open to obvious
               abuse: an accused could create evidence for himself by making
               statements in his favor for subsequent use at his trial to show his
               innocence.”

State v. King, 694 S.W.2d 941, 945 (Tenn. 1985) (quoting Hall v. State, 552 S.W.2d 417,
418 (Tenn. Crim. App. 1977)). However, “no general rule of evidence excludes statements
merely because they are self serving. Instead, most self-serving statements are excluded . .
. because they constitute inadmissible hearsay.” Tony A. Phipps v. State, No.
E2008-01784-CCA-R3-PC, 2010 Tenn. Crim. App. LEXIS 846, at *24 (Knoxville, Oct. 11,
2010) (internal citations omitted); see also Neil P. Cohen et al., Tennessee Law of Evidence,
§ 8.08[3][a] n.405 (6th ed. 2011) (stating that “[t]he self-serving nature of the statement is
immaterial under . . . most hearsay exceptions”).

       Moreover, in State v. Paul Anthony Dejongh, this court held that a trial court erred by

                                               -18-
limiting the defendant’s cross-examination of State witnesses about the defendant’s self-
serving statements. No. 03C01-9806-CR-00211, 1999 Tenn. Crim. App. LEXIS 130,
(Knoxville, Feb. 16, 1999). Specifically, the trial court refused to allow the defendant to
question two witnesses about statements he made concerning the necessity to shoot the
victim. Id. at *11-12. Relying on State v. Robinson, 622 S.W.2d 62, 71 (Tenn. Crim. App.
1981), this court explained,

              When the state offers witnesses to testify concerning statements
              of the defendant, which imply an admission of guilt, the
              defendant is entitled through cross-examination to establish the
              defendant was acting in self-defense in homicide cases. . . . It
              would be the function of the jury to determine if such defense,
              under the facts in this record, was credible.” Id. at *15-16.
              Furthermore, this court refused to find the error harmless,
              concluding that the testimony of the two witnesses was “crucial
              to establish some explanation as to why the defendant believed
              it necessary to kill the victim.

Id. at *17.

        In our view, the facts and circumstances of the instant case are similar to Dejongh.
The State’s witnesses gave extensive and damaging testimony about statements the appellant
made from the time he left Chocolate City until Maples and Malone left for the hospital with
the dying victim. Maples even testified that immediately after the shooting, she heard the
appellant say, “I told him to stop F’ing with me.” Therefore, we believe the appellant was
entitled to cross-examine the witnesses about self-serving statements he made to establish
that he did not intentionally shoot the victim.

       We also agree with the appellant that his statements were admissible to show his state
of mind. Tennessee Rule of Evidence 803(3) provides that the following is not excluded by
the hearsay rule:

              A statement of the declarant’s then existing state of mind,
              emotion, sensation, or physical condition (such as intent, plan,
              motive, design, mental feeling, pain, and bodily health), but not
              including a statement of memory or belief to prove the fact
              remembered or believed unless it relates to the execution,
              revocation, identification, or terms of declarant’s will.

The appellant’s stating immediately and again shortly after the incident that he did not intend

                                             -19-
to shoot the victim would fall under this exception. Therefore, the trial court erred by ruling
that he could not question Maples and Malone about his statements. Likewise, the trial court
erred by ruling that if the appellant chose to admit Malone’s four-page statement into
evidence pursuant to Tennessee 803(5),4 his self-serving statements would have to be
redacted.

       The appellant contends that the trial court’s erroneous exclusion of the evidence
deprived him of his right to present a defense. Again, we agree with the appellant. The Sixth
Amendment and the Due Process Clause of the Fourteenth Amendment of the United States
Constitution guarantee a criminal defendant the right to present a defense. State v. Brown,
29 S.W.3d 427, 432 (Tenn. 2000). Moreover, a defendant’s constitutional right to confront
the witnesses against him includes the right to conduct meaningful cross-examination. State
v. Wyrick, 62 S.W.3d 751, 770 (Tenn. Crim. App. 2001). However, in many situations, the
appellant’s due process right “‘must yield to other legitimate interests in the criminal trial
process.’” Id. at 432 (quoting Chambers v. Mississippi, 410 U.S. 284, 295 (1973)). To this
end, “[s]o long as the rules of procedure and evidence are not applied arbitrarily or
disproportionately to defeat the purposes they are designed to serve, these rules do not violate
a defendant’s right to present a defense.” State v. Flood, 219 S.W.3d 307, 316 (Tenn. 2007).
To determine whether a defendant’s due process right to present a defense has been violated
by the exclusion of evidence, we must consider:

                  (1) Whether the excluded evidence is critical to the defense;

                  (2) Whether the evidence bears sufficient indicia of reliability;
                  and

                  (3) Whether the interest supporting exclusion of the evidence is
                  substantially important.

Id. at 316 (citing Brown, 29 S.W.3d at 434-35; State v. Rice, 184 S.W.3d 646, 673 (Tenn.
2006); State v. Rogers, 188 S.W.3d 593, 614 (Tenn. 2006)).


       4
           Tennessee Rule of Evidence 803(5) provides as follows:

                  Recorded Recollection - A memorandum or record concerning a matter
                  about which a witness once had knowledge but now has insufficient
                  recollection to enable the witness to testify fully and accurately, shown to
                  have been made or adopted by the witness when the matter was fresh in the
                  witness’s memory and to reflect that knowledge correctly. If admitted, the
                  memorandum or record may be read into evidence but may not itself be
                  received as an exhibit unless offered by an adverse party.

                                                     -20-
        The trial court ruled that the appellant could cross-examine Maples and Malone about
their statements to the police for impeachment purposes but that the evidence was not
admissible substantively. The “two types of proof clearly are not equivalent” in that a “jury
considers impeachment proof only when assessing the credibility of witnesses.” Brown, 29
S.W.3d at 432 n.11. Furthermore, the appellant did not testify on his own behalf. Therefore,
his being allowed to cross-examine the witnesses about his statements after the shooting was
critical to his defense. The evidence bore a sufficient indicia of reliability in that Maples and
Malone reported the appellant’s statements to the police soon after the shooting. Finally, no
interest supported exclusion of the evidence. Therefore, we conclude that exclusion of the
evidence amounted to a constitutional violation. As such, the constitutional harmless error
standard is applicable, and the State bears the burden of demonstrating that the error is
harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24 (1967); State
v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008).

        The State argues that the appellant was able to present the defense that he acted
recklessly through his son, who testified that the appellant was distraught after the shooting.
However, the fact that the appellant was distraught does not equate to his stating that he did
not intend to kill the victim. Regardless, we conclude that the State has carried its burden
of demonstrating harmless error beyond a reasonable doubt. The evidence overwhelmingly
established that the appellant was angry with the victim; that he obtained his shotgun, drove
to the victim’s home, and drove the victim back to his own house; that he threatened to kill
the victim; and that he accosted the victim and poked the victim with the weapon even after
the victim had tried to remove himself from the situation. Therefore, in light of the
overwhelming evidence of the appellant’s guilt, we are convinced that this error alone was
harmless beyond a reasonable doubt.

                                    C. Shotgun Evidence

        The appellant contends that the trial court erred by allowing Agent Braswell to testify
as an expert in firearms identification because the State “never provided counsel with the
materials and reports that Braswell relied upon to testify as an expert in shotgun pulls. [The]
State did not notify defense counsel until the Monday of trial that she was going to present
Agent Braswell as an expert witness.” The appellant also contends that he was prejudiced
by the trial court’s allowing the jury to handle a shotgun not used in the killing. The State
argues that the trial court properly allowed Agent Braswell to testify because the record fails
to show that the appellant filed a Rule 16 motion for discovery. Regarding the shotgun, the
State argues that the trial court did not abuse its discretion by allowing the State to use the
gun as a demonstrative exhibit and that, in any event, the trial court instructed the jury twice
on the proper consideration of the evidence. We conclude that, under the facts of this case,
the trial court’s allowing Agent Braswell to testify about the trigger pull of various shotguns

                                              -21-
and allowing the jury to handle the TBI’s gun was error. Moreover, given the constitutional
error discussed above, we conclude that the appellant’s conviction must be reversed.

        Before Agent Braswell’s testimony, defense counsel argued in a jury-out hearing that
it had learned “right here at the time of trial” that the State intended to have the agent testify.
The State advised the trial court that the agent’s testimony was necessary to explain to the
jury how double-barrel shotguns operated and the “trigger pull averages” for shotguns. The
State noted that the witness “can’t say what the exact trigger pull on the particular weapon
involved used was because she wasn’t given a weapon to compare her test.” The State also
advised the trial court that, at the State’s request, Agent Braswell had brought a double-barrel
shotgun to court

                so that jury can see what [it] looks like as far as sizing. She
                would say it’s . . . for an illustrative or demonstrative purpose.
                And I would also ask if the jury or if the judge would allow as
                we have done previously to give the jury an opportunity to pull
                the trigger if they should so want to do so.

Defense counsel responded that “you’ve got to be kidding me” and argued that the trigger
pull of the TBI’s gun was irrelevant because “I’ve handled plenty of guns and I know that
each gun is different.” Defense counsel later argued as follows:

                So we are going to allow this jury -- let me get this straight for
                the record. We’re going to allow this jury to come in here and
                pull the trigger of a weapon that we don’t know is the same type
                of weapon, don’t know if it’s the same brand of weapon, don’t
                know if it’s the same caliber of weapon, don’t know if it’s the
                same gauge of weapon, even if it’s the same type of shotgun.
                We don’t know any of those things, but we’re going to let that
                jury touch that weapon in order to make a determination [on
                trigger pull].

Defense counsel asked if the State was going to introduce the TBI’s shotgun into evidence,
and the State said no.5

        The trial court noted that defense counsel would have the opportunity to talk with


        5
         As part of his argument, the appellant claims that the trial court erred by allowing the State to
introduce the TBI’s shotgun into evidence. However, the record confirms that the State did not introduce
the gun.

                                                  -22-
Agent Braswell before her testimony, that the defense could “cross-examine the heck out of
her on all that stuff,” and that “it wasn’t the State’s fault that this gun was not to be found.”
The trial court ruled that because the burden was on the State to show that the appellant shot
the victim intentionally, the witness could testify about the trigger pull of double-barrel
shotguns and that the jury could pull the trigger on the State’s demonstrative shotgun because
“[i]t’s the best proof that they have.”

       Regarding the appellant’s claim of the State’s Rule 16 violation, Tennessee Rule of
Criminal Procedure 16 governs the discovery rights of parties in criminal proceedings. In
pertinent part, Rule 16(a)(1)(G) provides that

              [u]pon a defendant’s request, the state shall permit the defendant
              to inspect and copy or photograph the results or reports of
              physical or mental examinations, and of scientific tests or
              experiments if:

                      (i) the item is material to preparing the defense;

                     (ii) the government intends to use the item in its case-in-
              chief at trial; or

                    (iii) the item was obtained from or belongs to the
              defendant.

        Rule 16 does not explicitly mandate the sanction a court should impose on the State
after failure to comply with a discovery order; instead, the rule provides that the court may
enter such sanction “‘as it deems just under the circumstances.’” State v. Collins, 35 S.W.3d
582, 585 (Tenn. Crim. App. 2000) (quoting Tenn. R. Crim. P. 16(d)(2)). A trial court has
great discretion in fashioning a remedy for non-compliance with a discovery order, and the
sanction imposed should fit the circumstances of the case, id. at 585, but suppression of
evidence upon a Rule 16 violation is a drastic remedy reserved for the most flagrant of
violations, see State v. House, 743 S.W.2d 141, 146 (Tenn. 1987).

       “The provisions of Rule 16 are triggered only by the request of a defendant. If the
defendant failed to request these items via a Rule 16 motion filed prior to trial, he cannot
establish a violation of the rules of discovery.” State v. Phillip Matthew Burgess, No.
M2013-00252-CCA-R3-CD, 2014 Tenn. Crim. App. LEXIS 82, at *20 (Nashville, Jan. 28,
2014). As noted by the State, nothing indicates that the appellant filed such a request in this




                                              -23-
case.6 Moreover, the appellant bears the burden of demonstrating “the degree to which the
impediments to discovery hindered trial preparation and defense at trial.” State v. Brown,
836 S.W.2d 530, 548 (Tenn. 1992). The appellant did not request a continuance, which was
a possible remedy, in order to investigate Agent Braswell’s tests or obtain his own expert.
He also failed to present any such expert at his motion for new trial hearing. See Tenn. R.
App. P. 36(a). Therefore, we agree with the State that the appellant is not entitled to relief
based on the State’s alleged Rule 16 violation.

        Nevertheless, we conclude that the trial court erred by allowing Agent Braswell to
testify. In order to be admissible, evidence must be relevant to an issue at trial. Tenn. R.
Evid. 402. Evidence is relevant if it has “any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable than it
would be without the evidence.” Tenn. R. Evid. 401. However, even relevant evidence
“may be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury.” Tenn. R. Evid. 403. It is within
the trial court’s discretion to determine whether the proffered evidence is relevant; thus, we
will not overturn the trial court’s decision absent an abuse of discretion. See State v. Forbes,
918 S.W.2d 431, 449 (Tenn. Crim. App. 1995). “Under this standard, we will not reverse
unless the trial court applied an incorrect legal standard, or reached a decision which is
against logic or reasoning that caused an injustice to the party complaining.” State v.
Cannon, 254 S.W.3d 287, 295 (Tenn. 2008) (internal quotations and citations omitted).

        In this case, Agent Braswell, whom we note the State qualified as an expert in
firearms identification, was allowed to testify about the trigger pull of various shotguns, most
of which had nothing to do with this case. Agent Braswell herself testified that shotguns
were manufactured in eight different gauges, that different manufacturers used different
trigger pulls for their firearms, and that trigger pull could be affected by the cleanliness and
wear of a gun. However, the State had no evidence about the appellant’s weapon except that
it was an old, double-barrel shotgun, possibly a twelve gauge. Therefore, we conclude that
Agent Braswell’s testimony was irrelevant and, even if marginally relevant, that the
testimony’s probative value was substantially outweighed by the danger of its confusing the
jury.

       We will now turn to the trial court’s allowing the jury to handle a shotgun not
involved in the victim’s death. The use of demonstrative evidence rests within the sound
discretion of the trial court. See State v. Anton Mayhew, No. W2009-02184-CCA-R3-CD,
2011 Tenn. Crim. App. LEXIS 507, *23 (Jackson, July 8, 2011). Here, the appellant’s sole


        6
        The appellant does not address whether he requested discovery. If in fact that is the case, we are
perplexed that defense counsel would fail to file such a request in a first degree murder case.

                                                  -24-
defense was that he did not intend to shoot the victim. During defense counsel’s closing
argument, he described this case as “a sad, sad tragedy” caused by the appellant’s “horrible
reckless act.” Defense counsel then argued that the appellant and the victim were “fighting
back and forth literally” and that the gun “[went] off while [the appellant] was poking right
up against [the victim’s] side.” Obviously, the trigger pull of the appellant’s shotgun was
highly relevant. The trigger pull of any other shotgun, though, was not relevant, and the trial
court’s decision to allow the jurors to experience the trigger pull on a shotgun that was not
the murder weapon was clearly error.

       Next, we must determine the effect of the error, specifically whether the error “‘more
probably than not affected the judgment or would result in prejudice to the judicial process.’”
Rodriguez, 254 S.W.3d at 371 (quoting Tenn. R. App. P. 36(b)). As stated previously, the
evidence against the appellant was strong. Moreover, after four of the jurors dry-fired the
TBI’s shotgun, the trial court instructed the jury that the gun was not the weapon involved
in the case and that its purpose was only to assist “the jury in comprehending the other
evidence.” Generally, we presume that a jury has followed the trial court’s instructions. See
State v. Butler, 880 S.W.2d 395, 399 (Tenn. Crim. App. 1994). However, we fail to see how
the jury’s pulling the trigger on a gun that was not used in the shooting could assist the jury
in comprehending the evidence in this case. Therefore, the egregious nature of this error,
combined with Braswell’s improper testimony and the constitutional violation discussed
previously, leads us to conclude that the appellant’s conviction must be reversed because the
cumulative effect of the errors was not harmless.

                                     D. Jury Instructions

       Finally, the appellant contends that the trial court erred by not using the “reasonable
effort method” to charge the jury. The State argues that the trial court properly gave
sequential jury instructions. We agree with the State.

        In its final instructions to the jury, the trial court stated that the first count of the
indictment charged the appellant with first degree premeditated murder, which included the
lesser-included offenses of second degree murder, voluntary manslaughter, reckless
homicide, and criminally negligent homicide. The trial court instructed the jury, “You will
consider each lesser-included offense only after you unanimously find the defendant not
guilty of the greater offense in the order presented.” The trial court charged the jury on first
degree premeditated murder and its lesser-included offenses, and the jury convicted him of
the greater offense.

       A defendant has a “constitutional right to a correct and complete charge of the law.”
State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). We have previously noted that “[w]e must

                                              -25-
review the entire [jury] charge and only invalidate it if, when read as a whole, it fails to fairly
submit the legal issues or misleads the jury as to the applicable law.” State v. Forbes, 918
S.W.2d 431, 447 (Tenn. Crim. App. 1995). Generally, a charge “is erroneous if it fails to
fairly submit the legal issues or if it misleads the jury as to the applicable law.” State v.
Hodges, 944 S.W.2d 346, 352 (Tenn. 1997). “In order to determine whether a conviction
should be reversed on the basis of an erroneous instruction to the jury, this Court must
consider whether the ailing instruction by itself so infected the entire trial that the resulting
conviction violates due process.” State v. James, 315 S.W.3d 440, 446 (Tenn. 2010)
(citations omitted). “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. Faulkner, 154 S.W.3d 48, 58 (Tenn. 2005).

        The appellant contends that his constitutional right to a jury trial was violated by the
trial court’s instruction that the jury could not consider lesser-included offenses until it
unanimously acquitted him of first degree murder. In support of his argument, he quotes a
concurring opinion in which Justice Wade “opined that the reasonable efforts method would
eliminate the possibility of coercion, encourage jurors to consider alternatives, and weigh all
possibilities. This would allow a more carefully considered verdict, instead of a ‘forced
commitment absent any knowledge of the alternatives.’” State v. Davis, 266 S.W.3d 896,
912 (Tenn. 2008) (Wade, J., concurring). The appellant acknowledges that the instructions
given in the instant case are currently recognized as the proper method of instruction in
Tennessee courts but contends that “the best method is the reasonable efforts method as
suggested by the honorable Judge Gary Wade.”

         Initially, we note that the State argues that we can only review this issue for plain error
because the appellant failed to object to the jury instructions. However, our review of the
trial transcript reveals that defense counsel objected to “the order of considering the offenses
that you have to acquit on first degree murder before you can get to second degree murder
and so forth.” Therefore, the appellant properly preserved this issue for our review.

        As to the appellant’s claim, all of the justices deciding Davis, including Justice Wade,
concluded that “acquittal-first instructions” do not violate a defendant’s right to trial by jury.
Id. at 910 (Wade, J., concurring) (stating that “[t]he majority concludes that the instruction
meets constitutional muster, and I am inclined to concur with that assessment”). Instead,
Justice Wade stated that “as a matter of practicality and for sound policy reasons,” Tennessee
should “adopt the reasonable efforts instruction,” which allows jurors to consider
lesser-included offenses if they cannot reach a verdict with respect to the greater offense.
Id. at 911. Moreover, as noted by the State, “no intervening development” has changed the
ruling in Davis regarding the constitutionality of acquittal-first instructions. Therefore, we
conclude that the appellant is not entitled to relief on this issue.

                                               -26-
                                      III. Conclusion

       Based upon the record and the parties briefs, we conclude that the trial court erred by
prohibiting the appellant from cross-examining State witnesses about his stating after the
shooting that he did not intend to shoot the victim and that the trial court erred by allowing
the jury to pull the trigger on a shotgun that was not the murder weapon. Moreover, we
conclude that the cumulative effect of the errors warrants reversal of the appellant’s
conviction. Therefore, the appellant’s conviction of first degree premeditated murder is
reversed, and the case is remanded to the trial court for a new trial.

                                                    _________________________________
                                                    NORMA MCGEE OGLE, JUDGE




                                             -27-
