        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                 January 5, 2011 Session

               STATE OF TENNESSEE v. MONTREL GILLIAM

              Direct Appeal from the Criminal Court for Shelby County
                       No. 07-00648     Lee V. Coffee, Judge


                  No. W2009-01664-CCA-R3-CD - Filed May 4, 2011


The defendant, Montrel Gilliam, was convicted by a Shelby County jury of first degree
premeditated murder and three counts of attempted first degree murder. He was sentenced
by the trial court to consecutive terms of life imprisonment for the first degree murder
conviction and as a Range I standard offender to twenty-five years, twenty-two years, and
twenty years, respectively, for the attempted murder convictions, for an effective term of life
plus sixty-seven years in the Department of Correction. On appeal, he challenges the
sufficiency of the evidence in support of his convictions and argues that the trial court erred
by instructing the jury on his silence as a tacit admission to the crimes. Following our
review, we affirm the judgments of the trial court.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J.C. M CL IN and C AMILLE
R. M CM ULLEN, JJ., joined.

James E. Thomas (on appeal and at trial) and Juni Ganguli (at trial), Memphis, Tennessee,
for the appellant, Montrel Gilliam.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
William L. Gibbons, District Attorney General; and Reginald Henderson and Pamela
Fleming, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                         OPINION

                                           FACTS

       According to the State’s proof at trial, on June 22, 2006, the defendant fired gunshots
at Marsha Patten and her boyfriend, Alexander Collier, as the couple was driving through the
Ridgecrest Apartment Complex in the Raleigh area of Memphis. At the time of the shooting,
eleven-year-old Martez Henderson and his four-year-old nephew, Donttreius Taylor,1 were
playing on the apartment complex’s playground, which was located beyond the targeted
victims within the line of the defendant’s fire. Both children were struck by bullets, and
Henderson died as a result of his injuries. The defendant was subsequently indicted by the
Shelby County Grand Jury for the first degree premeditated murder of Henderson and the
attempted first degree murders of Patten, Collier, and Taylor.

                                             State’s Proof

        The State’s first witness at trial was Brenda Henderson, the deceased victim’s mother,
who identified a photograph of her son and testified that he was eleven years old at the time
of his death.

        LaDonna Taylor, Donttreius Taylor’s mother, identified a photograph of her son and
testified that he was four years old at the time he was shot.

       Andrea Whitmore testified that her sister dropped her, her son, her younger brother,
Martez Henderson, and her nephew, Donttreius Taylor, at her apartment in the Ridgecrest
Apartment Complex at approximately 10:30 p.m. on June 22, 2006. She took the children
around the side to avoid walking through a dice game that was taking place in front, and
Donttreius and Martez ran to the apartment complex’s playground as she was unlocking her
front door. After she had entered her apartment, she heard three gunshots, ran back to the
front door, and encountered Donttreius, who was holding his arm and told her that he had
been shot. She then ran to the playground, where she found her brother lying motionless on
the ground. Whitmore testified that she learned later that evening that her brother had died.
She identified various photographs of the Ridgecrest Apartment Complex, including one of
Woodcliff Road, which led into the complex and from which she agreed there was a “straight
shot” to the playground.

        Latasha Mims testified that she was born and reared in the Douglas Community but
in May and June of 2006 was living in the Ridgecrest Apartments. She had moved out of her
apartment before the shooting, however, because “people from Ridgecrest and Douglas was
into it,” and she feared that she and her child might be in danger if they stayed. Mims
explained that a man who lived in the Ridgecrest Apartments had been shot by a man from
the Douglas Community, which upset the residents of Ridgecrest and resulted in a sign being


        1
          We note that this victim’s first name is spelled as “Donterius” in the trial transcript. We have,
however, chosen to use the spelling contained in the indictment, in accordance with our standard practices.


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spray-painted on the wall of the apartment building that read, “Douglas not allowed.” The
episode that precipitated her move occurred about two weeks prior to the shooting at issue
in this case, when a group of people from the apartment complex surrounded the vehicle in
which she and her child were riding, shot the driver, and put a gun to the head of her infant
child.

        On June 22, 2006, Mims returned to the Ridgecrest Apartments, where she still had
her apartment, to visit her friend, Marsha Patten, who lived in another apartment in the
complex. As she was returning to Patten’s apartment after retrieving some baby bottles from
her own apartment, she was accosted by a man who threatened her, saying, “Bitch, you going
to get got tonight.” Although she did not know the man’s name at the time, she later
identified him as the defendant from a photographic spreadsheet she was shown by the
police.

        Mims testified that later that same day, Patten left the apartment with her boyfriend,
Alexander Collier. Two to three minutes after their departure, Mims heard gunshots and saw
“a whole bunch of folks standing right outside the window,” so she turned off the lights and
the television and retreated to a back room of Patten’s apartment. A few minutes later, Patten
called her and conveyed a warning.

        On cross-examination, Mims acknowledged that the first time she informed the police
that it was the defendant who had threatened her was on July 19, 2006, when she identified
him from the photographic lineup. On redirect examination, she said she had mentioned the
threat to the police during her June 23, 2006 statement, but she did not know the identity of
the person who had threatened her at that time.

       Alexander Collier testified that he and Patten left Patten’s apartment for the store at
approximately 10:00 p.m. on the night of the shooting, passing through a crowd of
approximately thirty-five to fifty people in order to reach their vehicle. As they were driving
down Woodcliff, he heard a gunshot, the glass of his driver’s door shattered, and a bullet
passed through his driver’s door and struck him in the inner thigh.

        Marsha Patten testified that Mims moved out of her apartment about two weeks prior
to the June 22, 2006 shooting because she had been involved in an earlier fight at the
apartment complex and individuals, after the fight, “would continue to kick in her door and
shoot up her apartment.” Mims, however, returned to the apartment complex on June 22,
2006, to visit Patten in her apartment. Although Patten warned her to stay inside, at one point
during the visit Mims went to her own apartment. When she returned, she informed Patten
that she had just been threatened by someone who said, “Bitch, you going to get got tonight.”



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        Later that evening, Patten and Collier left for the store, leaving Mims and her child
behind in Patten’s apartment. As they left, Patten noticed “a whole lot of people standing on
[her] street,” which worried her because she had not seen similar numbers of people gathered
since the earlier fight. She and Collier, nonetheless, got into his vehicle and he began driving
down Woodcliff. When they reached the bottom of the hill, a gunshot sounded and a bullet
came through the driver’s door and shattered the glass.

       Memphis Police Officer Joy Jefferson identified various photographs of the scene,
including one that had been taken from Woodcliff Road looking south toward the playground
area of the complex.

       Sergeant Frederick Adams of the Memphis Police Department’s Felony Response
Bureau also identified various photographs of the scene, including ones that showed a blood-
stained area of grass near the playground and three spent .40 caliber shell casings that were
found on Woodcliff Road on the night of the shooting. He said an apartment building was
in between the playground and the area where those three shell casings were recovered.

        Lieutenant Donald Crowe of the Memphis Police Department’s Crime Scene
Investigation Unit identified photographs that showed the bullet hole in the door of Collier’s
vehicle, the shattered glass on the floorboard, a bullet fragment recovered from the
floorboard, and a bruise on Collier’s right thigh where Collier reported that the bullet had
struck his leg. On cross-examination, Lieutenant Crowe acknowledged that on the night of
the shooting he had a man named Jamario Williams transported to the felony response office
because he believed he was a possible shooter. On redirect examination, he testified that
after Williams was removed from the scene, members of the assembled crowd gave him
information that led him to believe the defendant was also a possible shooter in the case. As
a result, he sought the defendant in one of the apartments in the complex but was unable to
locate him.

        Mikeisha Holmes testified that on the evening of June 22, 2006, she and several
individuals, including the defendant, were sitting and talking in the hallway or balcony
outside her grandmother’s apartment. When asked what was going on, she replied that “the
girls over there had got into it some more girls. That’s how the buzz got involved in it and
they brother or somebody had came over there and I guess they was waiting on a car to come
through.” As they waited, a man whom Holmes did not know knocked on the door of a
nearby apartment. The defendant asked him if he had a gun, and he replied that he did. No
one answered the door to the neighbor’s apartment, and the man left soon thereafter.
Approximately fifteen minutes later, the defendant left as well, going down the steps and
returning a short while later with a black gun, which he laid across his lap as he sat back
down in a chair.

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        After another fifteen minutes, the defendant got up quickly and, gun in hand, went
“zooming” down the stairs. Holmes testified that she ran to the balcony and leaned over but
was unable to see anything, so she followed the defendant downstairs and watched from
behind a wall as he raised his gun and fired four gunshots at a car that was traveling down
the street. She then ran back upstairs to the hallway balcony. The defendant arrived right
behind her, still armed with the gun, and sat back down in his chair. A few moments later,
a man named “Thomas,” or “Flop,” came down the hallway, pulled the defendant to the side,
and said, “You know you just shot a baby and you just killed another boy.” According to
Holmes, the defendant looked confused as he replied “I didn’t shoot no kids.”

       Holmes testified that she approached the police the next day, related what she had
witnessed, and showed them where the defendant had been standing during the shooting,
which enabled the officers to locate his spent shells. She said she told the officers that she
had seen the defendant shooting the gun but did not tell them that she had left the balcony
in order to do so because she was frightened, did not want to be labeled as a “snitch,” and
“really didn’t know it was going to go this far.”

       On cross-examination, Holmes acknowledged that she had been convicted in three
separate cases of theft of property. She further acknowledged that, in addition to not
mentioning anything about having left the balcony, she had also drawn a diagram for the
police to show where she had been standing at the time of the shooting, which she had
labeled with the words, “Me and LaPaula, over the stairs, looking.” She testified that Paula
Taylor accompanied her down the stairs in order to witness the shooting but had asked her
“not to put her name in it because she didn’t want nothing to do with it.” Finally, she
acknowledged that she had dated the defendant prior to the shooting, before she learned that
he had a girlfriend who lived in the apartment complex. She denied, however, that the
knowledge had hurt her feelings, testifying that she had a boyfriend at the time as well.

       On redirect examination, Holmes explained that her having “dated” the defendant
consisted merely of having had sexual intercourse with him on one occasion. She said that
they were never boyfriend and girlfriend, that they remained friendly after the intercourse,
and that there was never any “breaking up” involved in their relationship.

       Darrell Reed testified that at approximately 10:00 p.m. on June 22, 2006, he was with
“Thomas Jones,” or “Flop,” and a couple of other men in the area of Leafy Hollow and
Woodcliff when he heard gunshots. A few minutes later, he went up to the balcony of one
of the apartment buildings, where the defendant, Jones, Holmes, and a couple of other
individuals were assembled. While there, he overheard Jones tell the defendant that he had
just shot a baby and the defendant, who dropped his head down, reply, “I didn’t shoot no
baby.” Reed later acknowledged, however, that while the defendant dropped and shook his

                                             -5-
head, he never actually said that he did not shoot any children.

        Thomas Jones testified that he and Reed were outside when they heard gunshots and
then saw the defendant running to one of the apartment buildings. When he reached the
building, he saw the defendant, who was sweating and holding a black automatic pistol,
sitting in the hallway with Holmes and a number of other people. Because a passing motorist
had informed him as he was en route to the building that a baby had just been shot, and the
defendant was the only individual he had seen in the area from which the gunshots had
originated, he said to the defendant, “You just shot a baby.” The defendant appeared
shocked, did not reply, and disappeared as police cars began arriving at the complex.

        Sergeant Kevin Lundy of the Memphis Police Department’s Homicide Bureau
testified that officers found some shell casings along the curb of the main road on the night
of the shooting. The next day, officers re-canvassing the area found some additional shell
casings in another area, visible from the playground, that Mikeisha Holmes pointed out as
the spot where the shooter had been standing.

       Sergeant Connie Justice of the Memphis Police Department’s Homicide Bureau
agreed that the playground was visible from the area to which Holmes had directed the
officers and said that the shell casings recovered on the night of the shooting were damaged
and appeared older.

       Officer Roger Wheeler of the Memphis Police Department’s Crime Scene
Investigation Unit identified the shell casings located at the area on Shady Vista pointed out
by Holmes on the morning of June 23, 2006, as three nine-millimeter casings and three .40
caliber casings.

       Tennessee Bureau of Investigation Special Agent Forensic Scientist Cervinia
Braswell, an expert in firearms identification, testified that the three nine-millimeter shell
casings recovered from the Shady Vista location were fired from one weapon, and the three
.40 caliber shell casings were fired from a different weapon. She said that the three .40
caliber shell casings recovered on the night of the shooting from the area on Leafy Hollow,
which had damage “consistent with foot traffic or vehicle traffic,” had been fired from a
different weapon than the one that fired the .40 caliber shell casings found on Shady Vista.

        Dr. Thomas Deering, the forensic pathologist who performed an autopsy of Martez
Henderson’s body, testified that the victim died of a gunshot wound to the chest in which the
bullet passed through his right lung and caused a hole in his heart.




                                             -6-
                                     Defendant’s Proof

       Rachel Geiser, a private investigator employed by defense counsel, identified various
photographs she had taken of the shooting scene, including ones that showed the respective
positions in which Mikeisha Holmes, Thomas Jones, and the defendant were purportedly
standing at the time of the shooting. She said she had measured the distances between those
positions and found that Holmes was ninety-five feet and eleven inches, while Jones was two
hundred eight feet and eleven inches, from the spot where the defendant purportedly fired
the gunshots.

       Kelley Howard, a former private investigator, identified a videotape she had taken of
the Ridgecrest Apartment Complex at approximately 10:30 p.m. on June 22, 2008, which was
admitted as an exhibit and published to the jury. On cross-examination, she acknowledged
that photographs of the crime scene taken on the night of the shooting showed security lights
on each building in the complex, which appeared to make the area well-lit.

        Paula Taylor testified that LaDonna Taylor was her sister and Donttreius Taylor was
her nephew. She said that at the time of the shooting, she lived in the apartment next door
to Mikeisha Holmes’s grandmother with another sister, Sharita Parker. On the day of the
shooting, she, Holmes, the defendant, and a fourth individual, either “Woody” or “Darrell,”
had been sitting and talking on the breezeway outside Holmes’s grandmother’s apartment for
“a little minute,” which she defined as three or four hours, when a car pulled up and the
fourth individual said to the defendant, “There go the car bro.” The defendant immediately
left, and she then heard shots fired. Next, the defendant returned to the balcony, appearing
sweaty as if he had been running, and sat back down. A few minutes later, “Flop” arrived,
pulled the defendant aside, and said something to him. At that point, the defendant left again.
Taylor testified that she did not hear the defendant ask anyone for a gun and never saw him
with a gun. She also said that Holmes remained seated in her same chair during the entire
time that the defendant was gone from the balcony.

        The defendant’s final witness was Richard Ernest, an expert in the area of forensic
ballistics, who testified that the “road rash” damage to the three cartridge casings found on
June 22, 2006 could have occurred within a short period of time before the casings were
discovered and was not necessarily a reflection of their age.

                                         ANALYSIS

                         I. Jury Instruction on Tacit Admission

       As his first issue, the defendant contends that the trial court committed reversible error

                                              -7-
by instructing the jury that his silence in the face of accusations could be interpreted as a tacit
admission to the crimes. The trial court issued the following jury instruction at trial:

              Tacit admissions: Members of the Jury, you have heard testimony that
       the defendant remained silent when a statement was made in his presence at
       a time when he was not under arrest or in custody. When a statement is made
       in the presence and hearing of one accused of an offense and the statement
       tends to incriminate him, or is of an incriminating character, and such
       statement is not denied or in any way objected to by him, both the statement
       and the fact of his failure to deny or make any response to the statement is
       admissible against the defendant as evidence of his acquiescence in its truth.
       On the other hand, his silence might be more or less equivocal and of little
       probative value. If you find that the defendant actually heard and understood
       the accusatory statements, and that they were made under circumstances that
       the defendant might be expected to have denied them if they were not true,
       then the jury should consider whether the defendant’s silence was an
       admission of the truth of the statements, and give the silence whatever weight
       the jury believes it is entitled.

       The defendant argues that the above instruction was given in error because the
evidence showed that he did not, in fact, remain silent in the face of the accusations but
instead denied them, either verbally, non-verbally, or both. The State argues that because the
trial court properly determined that the defendant never denied firing any shots, the
instruction was proper. In the alternative, the State argues that any error in issuing the
instruction was harmless given the strength of the State’s case against the defendant.

       The trial court based the instruction on a similarly worded instruction that was issued
by the trial court in State v. Black, 815 S.W.2d 166 (Tenn. 1991), which stated:

              Members of the jury, you have heard testimony that the Defendant
       remained silent when a statement was made in his presence at a time when he
       was not under arrest or in custody. Such evidence should be received with
       caution. Statements directed against the accused and in his presence may, in
       the absence of any denial or explanation, be entitled to weight as evidence. On
       the other hand, his silence might be more or less equivocal, and of little
       probative value. If the jury finds that the Defendant actually heard and
       understood the accusatory statements, and that they were made under
       circumstances that the Defendant might be expected to have denied them if
       they were not true, then the jury should consider whether the Defendant’s
       silence was an admission of the truth of the statements, and give the silence

                                                -8-
       whatever weight the jury believes it is entitled.

Id. at 176 (internal quotation marks omitted). The issue in that case centered around the
admission of the evidence itself rather than the trial court’s cautionary instruction to the jury
regarding its use. In its resolution of the issue, our supreme court, relying on Ledune v.
State, 589 S.W.2d 936, 939 (Tenn. Crim. App. 1979), in which our court recognized
Tennessee’s long-standing rule allowing for the admission into evidence of tacit admissions,
concluded that the defendant’s response of “Huh,” after being told by the victim’s sister that
he should kill himself if he were planning to commit a murder-suicide, was properly admitted
by the trial court as an adoptive admission because the defendant was the target of the
accusation, the defendant knew the reference that was being made, the accusation was of an
incriminating nature, and the defendant neither denied nor objected to the accusation. Id. at
177.

       In arguing that the trial court should not have given the jury instruction on tacit
admissions, the defendant points out that, according to at least two witnesses, he denied the
accusation that he shot a child. The trial court, however, determined that the instruction was
warranted because the defendant failed to deny having fired any gunshots, rather than having
merely denied that he had shot any children. We agree with the State that the trial court’s
instruction was not improper. We further agree with the State that the instruction, given the
evidence, could not have affected the outcome of the case. We conclude, therefore, that the
defendant is not entitled to relief on the basis of this issue.

                               II. Sufficiency of the Evidence

       The defendant also challenges the sufficiency of the evidence in support of his
convictions. Specifically, he argues that given the “inconsistent and non-credible testimony
of Mikiesha Holmes,” and the absence of any other eyewitness testimony to the shooting,
“there is absolutely no evidence” that he fired or even possessed a weapon on the night of
the shooting. The State argues that the evidence was sufficient for the jury to convict him
of the crimes. We agree with the State.

        When the sufficiency of the evidence is challenged, the relevant question of the
reviewing 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); see also Tenn.
R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury shall
be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt
beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State
v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992).

                                               -9-
        All questions involving the credibility of witnesses, the weight and value to be given
the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the
trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in
favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our
supreme court stated the rationale for this rule:

              This well-settled rule rests on a sound foundation. The trial judge and
       the jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be given
       to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 370 S.W.2d 523 (1963)).

        “A jury conviction removes the presumption of innocence with which a defendant is
initially cloaked and replaces it with one of guilt, so that on appeal a convicted defendant has
the burden of demonstrating that the evidence is insufficient.” State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982).

        When viewed in the light most favorable to the State, the evidence at trial was
sufficient to establish the defendant as the perpetrator of the crimes. The State presented
evidence to show that on the day of the shooting, the defendant threatened to “get” Mims,
a former resident of the complex toward whom he harbored some sort of grudge or
resentment; retrieved a gun as he waited on the balcony of an apartment for a car to come
through the complex; ran down the stairs when the car was sighted; and fired multiple
gunshots at the car’s occupants, who were friends or associates of Mims. The State
presented further evidence to show that the defendant’s gunshots struck not only one of the
individuals at whom he was aiming, but also two children who were playing on the
playground in the defendant’s line of fire, wounding one child and killing the other. The
jury, as the trier of fact, was entitled to resolve any inconsistencies in Holmes’s accounts of
the shooting in favor of the State and to reject the testimony of the defense witness who
claimed that Holmes was never in a position to witness the shooting. We note that Holmes’s
eyewitness testimony identifying the defendant as the man who fired gunshots at Collier’s
vehicle was bolstered by the testimony of Thomas Jones, who related how he first saw the
defendant running from the area in which he had just heard gunshots and then found him,
appearing sweaty and armed with a pistol, on the balcony of the apartment building where

                                              -10-
Holmes and others were assembled. We conclude, therefore, that the evidence was sufficient
to sustain the defendant’s convictions.

                                       CONCLUSION

         Based on the foregoing authorities and reasoning, we affirm the judgments of the trial
court.


                                                     _________________________________
                                                     ALAN E. GLENN, JUDGE




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