State v. Newson

• Decision Date: 23 June 2022
• Docket Number: M2021-00444-CCA-R3-CD
• Parties: STATE OF TENNESSEE v. KEVIN WAYNE NEWSON
• Court: Tennessee Court of Criminal Appeals

STATE OF TENNESSEE
v.
KEVIN WAYNE NEWSON

No. M2021-00444-CCA-R3-CD

Court of Criminal Appeals of Tennessee, Nashville

June 23, 2022

Session April 13, 2022

Appeal from the Criminal Court for Davidson County No. 2019-C-1650, 2018-C-1871 Cheryl A. Blackburn, Judge

The Defendant, Kevin Wayne Newson, was convicted by a Davidson County Criminal Court jury of first degree premeditated murder, first degree felony murder, attempted first degree premeditated murder, employing a firearm during the commission of a dangerous felony, and convicted felon in possession of a firearm. The trial court merged the first degree murder convictions and sentenced the Defendant to an effective term of life plus sixty years in the Tennessee Department of Correction. On appeal, the Defendant challenges the sufficiency of the evidence, the trial court's sentencing determinations, the trial court's denial of the Defendant's request that the jury be instructed on aggravated assault resulting in death as a lesser-included offense of premeditated murder, the trial court's grant of the State's request that language regarding the Defendant's duty to retreat be included in the jury instruction on self-defense, and various other rulings of the trial court. With respect to the self-defense instruction, the Defendant argues that duty to retreat language was prejudicially erroneous because the only criminal activity in which the Defendant was involved at the time of the shooting, i.e, being a convicted felon in possession of a firearm, had no nexus to the events that gave rise to the shooting. Based on 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.

Manuel B. Russ, Nashville, Tennessee (on appeal) and William Conway, Nashville, Tennessee (at trial), for the appellant, Kevin Wayne Newson.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Assistant Attorney General; Glenn R. Funk, District Attorney General; and Megan King and Joe Clifton, Assistant District Attorneys General, for the appellee, State of Tennessee.

JOHN W. CAMPBELL, SR., J., delivered the opinion of the court, in which J. ROSS DYER and JILL BARTEE AYERS, JJ., joined.

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OPINION

JOHN W. CAMPBELL, SR., JUDGE FACTS

According to the State's proof at trial, on the evening of May 4, 2018, the Defendant was standing with several other patrons, including Bryant Cureton, in the checkout line of a Nashville liquor store when he apparently became convinced that Mr. Cureton and two other store patrons were mocking him. The Defendant gave Mr. Cureton several hard stares while the two were together in the checkout line but neither man spoke to the other inside the store. The Defendant completed his purchase and exited the store. A moment later, Mr. Cureton completed his own purchase, exited the store, and started toward his vehicle, where his fiancee, Jacqueline Johnson, and their three young children were waiting. At about that time, a black four-door sedan pulled up to block Mr. Cureton's vehicle and the Defendant, who was in the front passenger seat, said in a hostile tone to Mr. Cureton, "N******, do I know you or something?" Mr. Cureton responded by asking the Defendant if the Defendant knew him and telling the Defendant to "get the f*** away" from him. At that point, the Defendant instructed the driver of his vehicle to hand him his "strap" or gun.

Concerned for his family, Mr. Cureton, who held a handgun carry permit and was armed, began rapidly walking across the parking lot away from his family's vehicle. The Defendant and his companion followed in their vehicle and stopped beside Mr. Cureton, who cursed at the Defendant and told him to get away. The shopping center's security guard heard the commotion, saw Mr. Cureton making motions as if to bring up a weapon, drew his own weapon, and ordered Mr. Cureton to raise his hands. Mr. Cureton complied. As the Defendant's vehicle slowly exited the parking lot, the Defendant fired five shots out of the passenger window at Mr. Cureton, who still had his arms raised in the air. The shots missed Mr. Cureton but struck and killed Ms. Johnson, who was standing beside the couple's vehicle sixty feet away.

The Defendant was indicted for the first degree premeditated murder of Ms. Johnson, the first degree felony murder of Ms. Johnson, the attempted first degree premeditated murder of Mr. Cureton, employing a firearm during the commission of a dangerous felony, and convicted felon in possession of a firearm. The State relied on the Defendant's attempted first degree premeditated murder of Mr. Cureton as the underlying felony for the felony murder and employing a firearm during the commission of a dangerous felony counts of the indictment.

At the Defendant's October 29-31, 2019 trial, Mr. Cureton testified that at approximately 8:45 p.m. on May 4, 2018, he stopped at the Discount Liquor Store on

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Dickerson Pike in Nashville with Ms. Johnson and their three children: his two-week-old daughter; his two-year-old son; and his seven-year-old stepson. He said that he and his family had just returned from a visit with extended family in Indiana and that he had not been drinking that day. It was his birthday, however, and Ms. Johnson, who had been unable to drink alcohol during her pregnancy, told him that she would have a drink with him that night to celebrate.

Mr. Cureton testified that he left Ms. Johnson and the children outside in his vehicle and went into the store to purchase a half pint of Hennessy. He said he had a handgun carry permit and was wearing his gun in his waistband. There were three cash registers inside the store but one line of customers waiting on the next available cashier. As he stood in line, two young women behind him began making rude gestures to a man to their far left. A man Mr. Cureton later identified as the Defendant, who was in front of Mr. Cureton in the line, looked back and "gave . . . an eye" to both Mr. Cureton and the young women. Mr. Cureton speculated that the Defendant thought the young women were friends of Mr. Cureton and that they were mocking the Defendant. He stated that the Defendant gave him multiple additional intimidating stares, including as the Defendant was slowly walking out of the store. Mr. Cureton said that he did not know the Defendant, that neither he nor the Defendant said anything to each other inside the store, and that he tried to ignore the Defendant's stares.

Mr. Cureton testified that when he completed his purchase and left the store, he noticed a black, four-door sedan across the parking lot, which started toward him as he walked to his own vehicle where his family was waiting. He stated that Ms. Johnson was standing outside his vehicle holding their newborn child when the black sedan pulled up to block Mr. Cureton's vehicle. The driver's window lowered and the Defendant, who was in the passenger seat, said to him in an intimidating tone, "N*****, do I know you or something?"

Mr. Cureton, who explained that he felt "picked on" by the Defendant, testified that he responded to the Defendant, "Do I know you?" He stated that the driver of the vehicle was laughing but said nothing to him. The Defendant then asked the driver for a "strap," which Mr. Cureton knew was a slang word for a gun. At the same time, the Defendant was "[f]idgeting around like someone . . . reaching for something." As the car began slowly pulling away, he overheard the Defendant telling the driver to turn around in the parking lot.

Mr. Cureton testified that he did not want his car to be shot up with his children inside it, so he instructed Ms. Johnson to get in the driver's seat and leave and he began walking at a fast pace across the parking lot toward Broadmoor. When he had reached a small grassy patch of ground, the black sedan blocked him and the passenger window

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lowered. Mr. Cureton stated that he cursed the Defendant, repeatedly telling him to "get the F out of here." He said he had his arms raised and was waving the Defendant off when he saw the Defendant lift a gun and begin firing. The Defendant was no more than ten to fifteen feet away and had the gun "aimed dead at [Mr. Cureton]" as he fired. Mr. Cureton could not recall how many times the Defendant fired but said it was "well over two or three shots."

Mr. Cureton testified that he never removed his own gun from his waistband and never told the Defendant that he had a gun. He said he could not have fired his own gun even had he wanted to because the shopping center's security guard had ordered him to raise his arms in the air. He agreed that he still had his arms raised above his head at the moment that the Defendant fired at him. He stated that he never saw the security guard point the guard's weapon at the Defendant or the Defendant's vehicle.

Mr. Cureton testified that when the Defendant started shooting at him, he "hit the ground with [his] hands still in the air and waited until the shots were done being fired." After the shooting stopped, he got up, turned around, and saw Ms. Johnson "laid out" on the ground behind Mr. Cureton's vehicle, which had not been moved. He said he ran to check on his children as the security guard was checking on Ms. Johnson. After he saw that the children were all right, he went back to Ms. Johnson. By that time, paramedics were arriving. He learned approximately four hours later that Ms. Johnson had died at the hospital.

Mr. Cureton testified that when he leaned into the front seat of his vehicle to check on his children, his gun fell out of his waistband onto the floorboard of the vehicle. He identified himself and the Defendant on the liquor store's surveillance video and explained that when his arm was underneath the front of his shirt inside the store, he was scratching himself because of his "bad eczema" that caused him to "scratch constantly."...