State v. McDonald
| Decision Date | 28 April 2021 |
| Docket Number | No. W2020-00127-CCA-R3-CD,W2020-00127-CCA-R3-CD |
| Parties | STATE OF TENNESSEE v. KEVION MCDONALD |
| Court | Tennessee Court of Criminal Appeals |
Appeal from the Criminal Court for Shelby County
Kevion McDonald, Defendant, was indicted by the Shelby County Grand Jury for one count of attempted first degree murder resulting in serious bodily injury and one count of employing a firearm during the commission of a dangerous felony. After a jury trial, Defendant was convicted of both counts as charged in the indictment. The trial court sentenced Defendant to an effective sentence of thirty-one years. The trial court denied a motion for new trial. Defendant initiated this appeal, arguing that the trial court: (1) improperly admitted a photographic lineup into evidence; (2) committed plain error by failing to instruct the jury on the definition of premeditation; and (3) improperly sentenced Defendant to twenty-five years in incarceration for attempted first degree murder resulting in serious bodily injury. Defendant also challenges the sufficiency of the convicting evidence at trial. After a thorough review of the record, we determine that the trial court erred by failing to instruct the jury with the definition of premeditation, an element of the offense of attempted first degree murder. However, we find the error harmless because the proof of premeditation was overwhelming. As a result, the judgments of the trial court are affirmed.
Brett B. Stein and Robert Golder (at trial), and Lance Chism (on appeal), Memphis, Tennessee, for the appellant, Kevion McDonald.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant Attorney General; Amy P. Wierich, District Attorney General; and Justin Prescott and Shelby Patrick, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINIONDefendant was indicted by a Shelby County Grand Jury in March of 2019 for attempted first degree murder and employing a firearm during a dangerous felony. The initial indictment named Deleon Morehead as the victim. In August of 2019, the trial court granted an oral motion to amend the indictment, changing the victim to Carlos Smith. Defendant did not object to the amendment and does not raise any issue with regard to the validity of the indictment on appeal.
At trial, the victim testified that Defendant worked for him, remodeling houses and apartment complexes. Defendant had worked for the victim for about three months prior to the incident. They were "fairly close" as friends. The victim even called Defendant his "[G]odson."
The day before the incident, Defendant and the victim worked together all day before picking up their paychecks. The victim gave Defendant a ride to cash his check. The victim made a deposit while he was at the bank.
Later that night, around 11:00 p.m. or 12:00 a.m., Defendant came by the victim's house. According to the victim, Defendant was accompanied by two other men. The victim had never met these men before. The three men, including Defendant, came into the victim's house and stayed "[f]or a couple of hours," smoking marijuana. The victim explained that Defendant left the house at one point to go buy cigarettes at the store. The other two men stayed with the victim. While Defendant was gone, they discussed work and asked the victim what he was going to be doing the next day.
Defendant eventually returned to the victim's house, and the men resumed their conversation "about what [they] were going to do the next day at work." The victim explained that they were "just talking" and he "got up to go to the door" when Defendant "pulled out a gun" and asked him "bitch, where the shit at?" The victim thought Defendant was robbing him. The victim "flinched" and "leaned toward [the gun and] held [his] hand out." Defendant shot the victim twice in the right hand. The victim instinctively bent down and held his injured hand. Defendant then shot him in the right side at the head and again in the right leg. The victim fell to the floor and began to pray. The victim saw the men get up and head out the door before Defendant "turned back around, and he fired a couple of more shots." The victim thought that he was hit by the shots but did not know where on his body he was hit.
When Defendant and the other men left, the victim tried to get up. He attempted to open the door with his injured hand but the hand "just went backwards" and he was unableto turn the doorknob. The victim explained that he prayed, asking God to save him. The victim eventually was able to open the door with his feet. Once the door was open, he was able to walk to his neighbor's house. He kicked on the door and asked for help.
The neighbor came to the door and the victim explained that he had been shot. The neighbor ran to get her husband. The victim asked the neighbor to pray with him. As they prayed, a car pulled up in the driveway. Defendant recognized it as the car Defendant "used to drive all the time." Someone got out of the car, approached the victim, and asked him if he was ok. The victim told the man who got out of the car that an ambulance was coming. The victim looked up and saw Defendant getting out of the car. Defendant "fired two more shots," from the driveway, about 70 or 80 feet away, again striking the victim in the head.
The next thing the victim recalled was waking up in the hospital. His right hand had been amputated, and his left side was paralyzed as a result of the injuries he received from the gunshots. Additionally, he had a "substantial scar" on his head. The victim spoke with police two times while he was in the hospital. The first time the victim spoke with police, he told them that Defendant was the person who shot him. The second time, the police officer brought a recorder and a photographic lineup. The victim explained that there were pictures of a "bunch" of people and he thought Defendant was "number three." During his testimony, the victim was shown a copy of a photographic lineup and he confirmed that it was the same lineup he was shown at the hospital. However, the victim admitted that the handwriting on the photograph did not belong to him because he was unable to write.
Deleon Morehead was the victim's neighbor on Meadow Valley Drive East. He recalled the incident, explaining that he heard a knock on his door and a voice asking for help at around 2:30 or 3:00 a.m. on October 4, 2017. He saw "a man standing there saturated in blood." Though Mr. Morehead did not recognize the victim, his fiancée recognized the injured man and called 911. Mr. Morehead told the victim to "hang tight" and closed the door slightly while he went back into the house to go to the bathroom. When he stepped away from the door, he heard a "pop" that "sounded like a gunshot." Mr. Morehead's fiancée called 911 for a second time. When the police arrived, the victim was lying on the ground praying.
Officer Lacquitta Armstrong of the Memphis Police Department was the first officer on the scene on October 4, 2017. The officer located the victim on the front porch of Deleon Morehead. She asked the victim who was responsible for his injuries. She explained that it was difficult to understand the victim "[b]ecause he had been shot" but that he said, "Kevon, Kevion or something like that." Officer Armstrong stated that the victim's "thumb was shot off," his "face was shot," and "his guts and everything was onthe . . . front door." The encounter was captured on Officer Armstrong's body camera and a portion of the footage was replayed for the jury. In the recording, the victim appears conscious and can be heard moaning and speaking to the officer. The victim is able to identify himself and also identifies Defendant by first name as the shooter.
Officer Derek Blake also responded to the scene. He went into the victim's house where he saw "blood inside the doorway." The house was full of smoke and three shell casings were recovered from inside the house. The three shell casings were identified as ".380 auto casings" by Officer Marcus Mosby of the Crime Scene Investigation Unit. Officer Blake also saw blood on the porch of the neighbor's house across the street.
During the investigation of the shooting, Lieutenant Derrick Williams received information that led him to begin searching for a person named Kevon or Kevin. At that time, the victim was in "extremely critical condition" and unable to speak to officers. The victim's family, however, was able to tell officers that the victim had a friend named "Kevion." Even with the name, officers were initially unable to come up with an identity. Once the victim was awake and conscious, approximately thirty-nine to forty days after the incident, he was able to identify Defendant as the shooter.
Lieutenant Williams found a photograph of Defendant and prepared a photographic lineup including that photograph. When the photographic lineup was prepared, the victim was in "isolation" in the ICU at Regional One hospital. Lieutenant Williams explained that he had to "put on [a] fire hazard gown, mask, [and] gloves" before entering the victim's room and had to "discard" anything that was taken into the room. Lieutenant Williams "made two photo spreads" that were identical and "asked the nurse" to "stand at the door and listen to what the victim would say while [the officer] went in to the room and showed [the victim] the spread, because the photo spread . . . would have to be discarded" when the officer left the room. Additionally, the victim was not able to write on the spread "due to his injuries." Lieutenant Williams identified the photo spread and the nurse's handwriting. Counsel for Defendant objected to its admission based on "chain...
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