                                                                                         11/29/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs October 2, 2018

               STATE OF TENNESSEE v. MERRICO JACKSON

                 Appeal from the Criminal Court for Shelby County
                   No. 16-01195      James M. Lammey, Judge
                     ___________________________________

                           No. W2017-01782-CCA-R3-CD
                       ___________________________________


The Defendant, Merrico Jackson, was convicted by a Shelby County Criminal Court jury
of first degree premeditated murder and sentenced to life imprisonment. On appeal, the
Defendant argues that the trial court erred in: (1) denying his request for a continuance;
(2) failing to exclude a witness statement written on the back of a photograph array due to
a discovery violation; (3) ruling that photographs of text messages and the call log from
the Defendant’s phone were properly authenticated; and (4) excluding testimony about
alleged witness intimidation by the State. After review, we affirm the judgment of the
trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and NORMA MCGEE OGLE, J., joined.

Terrell L. Tooten, Cordova, Tennessee, (on appeal), and Cornelius Bostick, Memphis,
Tennessee, (at trial), for the appellant, Merrico Jackson.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Glen Baity and Tyler
Parks, Assistant District Attorneys General, for the appellee, State of Tennessee.


                                       OPINION

                                         FACTS

      The Defendant was indicted and convicted of the premeditated first degree murder
of Marcus Griggs, the victim. In the light most favorable to the State, the proof at trial
showed that on the evening of January 25, 2016, the Defendant told Everett Boyce that
the victim had robbed him of marijuana and money earlier that day, and the Defendant
had some injuries that could have resulted from a robbery. The Defendant said to Mr.
Boyce that, “I wanna get that n****r,” and Mr. Boyce saw that the Defendant possessed a
gun. The Defendant and Mr. Boyce were together for around an hour that evening before
parting ways. Mr. Boyce walked to a nearby store and, as he was leaving, heard gunshots
in the area. Later that night, the Defendant knocked on Mr. Boyce’s door and asked if
Mr. Boyce would hide him, but Mr. Boyce refused.

       The proof additionally showed that the Defendant called Robert Blair on that same
date. During their conversation, the Defendant told Mr. Blair that the victim had robbed
him and that he was trying to secure a handgun so he could “handle this business.” Mr.
Blair was also present for part of the Defendant’s conversation with Mr. Boyce and
observed the Defendant with a gun at that time. At some point while the Defendant was
talking to Mr. Blair and Mr. Boyce, he made a phone call during which he said, “Baby,
I’m fixin’ to kill this man, Baby.” The evidence indicated that this phone call was to
Kimberly Patterson, the Defendant’s girlfriend. During the conversation, the Defendant
said that the victim had robbed him and that “he’s fixin’ to kill [the victim] . . . tonight.”

        When the victim’s girlfriend, Andrea Maxwell, returned home from work, she saw
the victim lying face-down on the ground outside of their residence. The victim had been
fatally shot one time. The bullet entered the victim’s back and penetrated his heart and
left lung before exiting through his chest.

                                        ANALYSIS

                                      I. Continuance

       The Defendant argues that the trial court abused its discretion in denying his
request for a continuance in order to obtain a mental evaluation.

       The record shows that the trial was set for Monday, April 3, 2017, and the defense
made a request for a continuance on Friday, March 31, 2017, asserting that a continuance
was necessary in order to obtain a mental evaluation of the Defendant. Defense counsel
explained that the Defendant was sexually assaulted as a juvenile but admitted that he did
not “know if there’s [sic] any psyche records or anything to that effect.” The trial court
observed that defense counsel had represented the Defendant for a year and noted that
counsel would have already requested an evaluation had he seen any indication that one
was needed. Accordingly, the trial court determined that the trial could fairly proceed as
scheduled.

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        The granting of a continuance lies within the sound discretion of the trial court,
and we will not reverse that decision absent a showing of an abuse of discretion and
prejudice to the Defendant. State v. Schmeiderer, 319 S.W.3d 607, 617 (Tenn. 2010)
(citing State v. Odom, 137 S.W.3d 572, 589 (Tenn. 2004)). “‘An abuse of discretion is
demonstrated by showing that the failure to grant a continuance denied defendant a fair
trial or that it could be reasonably concluded that a different result would have followed
had the continuance been granted.’” Id. (quoting State v. Hines, 919 S.W.2d 573, 579
(Tenn. 1995)).

        The trial court’s denial of a continuance was a reasonable exercise of its discretion
given the request was made on the eve of trial and there had been no prior indication that
an evaluation was needed. Furthermore, there has been no showing that the trial court’s
decision deprived the Defendant of a fair trial or that the grant of a continuance would
have led to a different result at trial. Although the Defendant’s request was based on the
necessity of a mental evaluation, the record on appeal contains no evidence suggesting
that an evaluation would have resulted in a finding that the Defendant was incompetent or
would have potentially negated a state of mind requirement. In fact, the State presented
evidence at the motion for new trial hearing that when the Defendant was evaluated for
competency in another proceeding, the evaluation revealed that he was competent and
exaggerating any potential impairment. Therefore, the evidence supports the trial court’s
determination that a continuance was not necessary to ensure that the Defendant received
a fair trial.

                                 II. Discovery Violation

       The Defendant argues that the State violated the rules of discovery by not
providing him with a statement of a defense witness, Kimberly Patterson.

       The record shows that the defense called Ms. Patterson as a witness at trial. Under
cross-examination by the State, Ms. Patterson was shown exhibit 79, a photograph array
from which she identified the Defendant. On the back of the array, Ms. Patterson had
written:

       [A]t 6:45 or 6:50 [the Defendant] stated that Twin (the deceased) robbed
       him and I responded where you at he said riding down Shelby Dr. He went
       to go get the pistol after that he came back to the apartments showed off the
       gun left my sight but did call and said that he finna kill [T]win tonight[.]

       Defense counsel claimed that there was “a discovery breech” because he did not
receive the statement. The State countered that it allowed open-file discovery and
defense counsel reviewed the record. In response to the various assertions made by the
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Defendant, the trial court allowed the evidence, ruling that: the “statement” was not
Jencks material because the State did not call Ms. Patterson as a witness; the defense
“had open-file discovery and apparently missed it”; and the statement was “on the piece
of evidence that’s [already] been marked into evidence as the photospread she saw.”

        “[Q]uestions concerning the admissibility of evidence rest within the sound
discretion of the trial court” and will not be disturbed absent a showing of an abuse of
discretion. See Pylant v. State, 263 S.W.3d 854, 870 (Tenn. 2008) (citations omitted). A
trial court is found to have abused its discretion when it applies “an incorrect legal
standard, or [reaches] a decision which is illogical or unreasonable and causes an
injustice to the party complaining.” State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006)
(citing Howell v. State, 185 S.W.3d 319, 337 (Tenn. 2006)).

       Tennessee Rule of Criminal Procedure 16 provides in pertinent part:

       Upon a defendant’s request, the state shall permit the defendant to inspect
       and copy or photograph . . . documents . . . if the item is within the state’s
       possession, custody, or control and . . . the item is material to preparing the
       defense; . . . the government intends to use the item in its case-in-chief at
       trial; or . . . the item was obtained from or belongs to the defendant.

Tenn. R. Crim. P. 16(a)(1)(F).

       If a party fails to comply with the rules of discovery, the court may order that
party to permit the discovery or inspection; grant a continuance; prohibit the party from
introducing the undisclosed evidence; or order other relief as it deems just under the
circumstances. Id. 16(d)(2). This court has previously determined that “evidence should
not be excluded except when it is shown that a party is actually prejudiced by the failure
to comply with the discovery order and that the prejudice cannot be otherwise
eradicated.” State v. Garland, 617 S.W.2d 176, 185 (Tenn. Crim. App. 1981).

       The Defendant claims that, although the State gave him open-file discovery, he
was not permitted to make copies of documents in violation of Tennessee Rule of
Criminal Procedure 16, which prevented him from discovering Ms. Patterson’s statement
written on the back of the photograph array. The Defendant did not present this claim as
a ground for relief in his motion for new trial, and therefore the issue is waived absent
plain error.

       In order for us to find plain error: (a) the record must clearly establish what
occurred in the trial court; (b) a clear and unequivocal rule of law must have been
breached; (c) a substantial right of the accused must have been adversely affected; (d) the
                                            -4-
accused did not waive the issue for tactical reasons; and (e) consideration of the error is
“‘necessary to do substantial justice.’” State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000)
(quoting State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994)). “[T]he
presence of all five factors must be established by the record before [we] will recognize
the existence of plain error, and complete consideration of all the factors is not necessary
when it is clear from the record that at least one factor cannot be established.” Id. at 283.

       We conclude that the Defendant is not entitled to relief under the plain error
doctrine, as no clear and unequivocal rule of law has been breached. The record contains
the State’s response to the Defendant’s request for discovery, which unambiguously
indicates that defense counsel was given open-file discovery and the ability to “inspect
and copy” documents relevant to his request. Although defense counsel alleged that he
was not able to copy documents from the State’s file, the trial court ruled that the State’s
open-file discovery policy was sufficient, implicitly accrediting the State’s response that
defense counsel would be permitted to copy documents. There is no plain error in this
case.

                    III. Photographs of Text Messages and Call Log

       The Defendant argues that the trial court erred in ruling that photographs of his
text messages and call log were properly authenticated and admitting them into evidence.
As an aside, he also asserts that the photographs were hearsay.

        The record shows that the State sought to introduce photographs taken of the
Defendant’s cellphone screen that depicted his text messages and call log. Prior to
introduction of the photographs, the trial court held a hearing in which the State asserted
that it would present the testimony of Detective Fausto Frias, who had seen the phone and
would testify that the photographs accurately reflected what was displayed on the screen.
The trial court ruled that the photographs were properly authenticated by the “officer who
saw the screen,” and also that “[i]t’s obviously not hearsay. It’s just . . . the evidence that
was found at the scene.” Thereafter, before introducing the photographs, the State
elicited testimony from Detective Frias that the photographs depicted the same text
messages and phone calls that the officer noted when he personally examined the phone.

       “[T]he admissibility of photographs lies within the discretion of the trial court[.]”
State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). However, “[b]efore a photograph is
admissible, it must be verified and authenticated by a knowledgeable witness.” State v.
Davidson, 509 S.W.3d 156, 198 (Tenn. 2016) (quoting Banks, 564 S.W.2d at 949). The
authentication requirement “is satisfied by evidence sufficient to the court to support a
finding by the trier of fact that the matter in question is what its proponent claims.”

                                             -5-
Tenn. R. Evid. 901(a). One permissible method of authentication is by a witness with
knowledge. Id. at 901(b)(1).

       We discern no abuse of discretion in the trial court’s admitting the photographs
into evidence. Detective Frias testified that he examined the Defendant’s cellphone and
that the photographs accurately and fairly depicted the messages and call log from the
phone. This is sufficient to satisfy the authentication requirement by a witness with
personal knowledge. Moreover, the photographs did not constitute hearsay as they were
not offered to prove the truth of the matter asserted.

                                IV. Witness Intimidation

       The Defendant lastly argues that the trial court erred in excluding testimony about
alleged witness intimidation by the State.

       Everett Boyce testified as witness for the State at trial; however, the defense later
sought to recall Mr. Boyce during its presentation of proof. The defense indicated that it
wanted to question Mr. Boyce about something he claimed to have remembered the prior
evening after he had testified. Defense counsel explained that Mr. Boyce had personally
contacted him, claiming that he had additional testimony and that the State had tried to
intimidate him into not giving the additional testimony. Defense counsel said that he
therefore also wanted to elicit testimony from Mr. Boyce about his being intimidated by
the State. The prosecutor asserted that they had not intimidated or threatened Mr. Boyce,
explaining that they “were concerned that [Mr. Boyce] would come in and say something
completely different, and it was [their] duty to warn him” that he would be charged with
perjury if he gave testimony that contradicted his previous testimony. The prosecutor
argued that it would be unfairly prejudicial and inflame the jury against the State to allow
the line of questioning. The trial court agreed with the State and also ruled that the
evidence was irrelevant.

       Relevant evidence is “evidence having 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. All relevant
evidence, subject to certain exceptions, is generally admissible under Rule 402 of the
Tennessee Rules of Evidence. Relevant evidence may be excluded, however, if “its
probative value is substantially outweighed by the danger of unfair prejudice[.]” Tenn.
R. Evid. 403. The admissibility of evidence is within the sound discretion of the trial
court, and its decision will not be disturbed on appeal absent an abuse of discretion. See
Pylant, 263 S.W.3d at 870.



                                           -6-
       We discern no abuse of discretion in the trial court’s decision to disallow this line
of questioning. The State was not engaging in witness intimidation by warning Mr.
Boyce of the danger of committing perjury. Of note, the trial court was so concerned
about the legal perils of Mr. Boyce giving a second round of testimony that it appointed
an attorney to counsel Mr. Boyce about the decision. Characterizing a reasoned warning
regarding perjury as witness intimidation could easily have unfairly prejudiced the jury
against the State. Accordingly, the trial court’s decision to exclude this testimony was a
reasonable exercise of its discretion.

                                     CONCLUSION

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



                                             ____________________________________
                                             ALAN E. GLENN, JUDGE




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