State v. Potts, M2020-01623-CCA-R3-CD

CourtCourt of Appeals of Tennessee. Court of Criminal Appeals of Tennessee
Writing for the CourtD. KELLY THOMAS, JR., JUDGE
Docket NumberM2020-01623-CCA-R3-CD
Decision Date29 June 2022



No. M2020-01623-CCA-R3-CD

Court of Criminal Appeals of Tennessee, Nashville

June 29, 2022

Assigned on Briefs Date: December 15, 2021

Appeal from the Criminal Court for Davidson County No. 2017-A-114 Jennifer L. Smith, Judge

The Defendant, Jeffrey Lee Potts, appeals his jury conviction for attempted second-degree murder, for which he received a Range I sentence of twelve years' incarceration. In this direct appeal, the Defendant alleges that (1) the evidence was insufficient to support his conviction; (2) the trial court erred by prohibiting the defense expert from testifying about the reasoning and science upon which he based his opinion of the Defendant's mental condition at the time of shooting; (3) the trial court erred by denying the Defendant's motion for a mistrial after the trial court stated in the jury's presence that defense counsel could "rehabilitate" and "clean up" the expert's testimony; and (4) the trial court erred in sentencing the Defendant, both in imposing the maximum sentence, as well as in imposing a sentence of continuous confinement. Following our review of the record and the applicable authorities, we affirm the judgment of the trial court.

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

D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which John Everett Williams, P.J., and Camille R. McMullen, J., joined.

Martesha L. Johnson, District Public Defender; and Jeffrey A. DeVasher (on appeal), Jonathan F. Wing (at trial), and Crandall Story (at trial), Assistant District Public Defenders, for the appellant, Jeffrey Lee Potts.

Herbert H. Slatery III, Attorney General and Reporter; Richard Davison Douglas, Senior Assistant Attorney General; Glenn R. Funk, District Attorney General; and D. Paul DeWitt and Doug Thurman, Assistant District Attorneys General, for the appellee, State of Tennessee.




This case stems from an incident that occurred on August 14, 2016, at the townhouse of Jennifer Burnett. The Defendant had been having an affair with Ms. Burnett for several


months, and he had been staying at the townhome while Ms. Burnett and her husband, Michael Thomson ("the victim"), were away on a trip. When the victim and Ms. Burnett returned to the townhome from their trip, the Defendant immediately opened fire on the victim from the second-floor landing, shooting the victim five times. Thereafter, on February 3, 2017, the Davidson County grand jury indicted the Defendant for attempted first-degree premediated murder, a Class A felony. See Tenn. Code Ann. §§ 39-12-101, -13-210. He proceeded to a jury trial where the following proof was adduced.

A. Trial. The victim testified that he and Ms. Burnett married in December 2013 and that they were married for close to three years. After they married, Ms. Burnett and her daughter Rebecca[1] moved into the victim's house on Five Oaks Boulevard in Lebanon. In addition, Ms. Burnett owned a townhouse on Rossi Road in Davidson County, which she began renting out. The victim testified that he and Ms. Burnett owned multiple rental properties together and that Ms. Burnett managed those properties.

In June 2016, the victim became aware that Ms. Burnett had hired the Defendant to do maintenance work at their properties. The victim had previously met the Defendant in November 2015, when the Defendant purchased a vehicle from the victim and Ms. Burnett that had been advertised on Craigslist. The victim later learned that the Defendant and Ms. Burnett had been having an affair from March 2016 to August 2016.

The victim and Ms. Burnett were experiencing marital difficulties throughout 2016, and the victim had filed for divorce in the spring of 2016. On July 19, 2016, the couple officially separated after Ms. Burnett obtained a temporary order of protection against the victim. The victim acknowledged that several violent incidents had occurred between himself and Ms. Burnett and that Ms. Burnett had included these allegations of domestic abuse in her petition for an order of protection. The victim admitted chipping two of Ms. Burnett's front teeth during an altercation while he was driving, but he claimed that his "large ring" caused Ms. Burnett's injury as she was attacking him and he pushed her away. He also admitted pushing Ms. Burnett out of a doorway during another altercation; though he asserted that she had pointed a gun at him, the police arrested him as the primary aggressor. Initially, the victim had asked the Defendant to be a witness for him when Ms. Burnett obtained the order of protection against him.

After being shown some photographs of Ms. Burnett bleeding, the victim denied inflicting the injuries to Ms. Burnett that were depicted therein. The victim explained that the only time he had caused Ms. Burnett to bleed was when they were "horsing around" at a Tennessee Titans game and Ms. Burnett "got hit on the head by actually the same ring,


and it caused a little mark on her head there." He blamed the football game incident on mutually excessive drinking.

In addition, the order of protection required the victim to leave his residence in Lebanon, so the victim moved in with a friend. Previously, the victim had purchased two Glock handguns in September 2015-one for himself and one for Ms. Burnett. When Ms. Burnett obtained the order of protection, the victim was ordered not to possess a weapon, so he locked the handguns, along with a rifle he owned, in a safe at the Lebanon residence before he left. To the best of the victim's knowledge, Ms. Burnett's handgun was in the safe when he left the home in July 2016.

The victim testified that he first started to suspect that Ms. Burnett and the Defendant were having an affair on July 19, 2016, the same date that the court granted Ms. Burnett the temporary order of protection. According to the victim, he saw Ms. Burnett and the Defendant in a parking lot, and they appeared to be kissing. The victim said that the Defendant later called him to assure him that he was not having an affair with Ms. Burnett and that he and Ms. Burnett were just friends. The victim returned to the Lebanon residence that evening and was arrested for violating the order of protection.

The victim acknowledged that after seeing the Defendant and Ms. Burnett kissing in the parking lot, he attempted to track Ms. Burnett's movements. Further, the victim did not deny that he told Rebecca that he had wanted to kill the Defendant after seeing the apparent kiss. The victim admitted that he tampered with the car Ms. Burnett was driving by disconnecting cables and removing fuses. He told Ms. Burnett the engine could blow up if she drove the car. The victim also admitted sending a photograph to Ms. Burnett and Rebecca on July 19 depicting clothing he had thrown in the hallway and texting, "Just helping you move."

On July 29, the victim falsely told the Defendant that he had installed a tracker on Ms. Burnett's car because he wanted to manipulate the Defendant to inform Ms. Burnett about the tracker. He also falsely indicated to Rebecca that he had hired a private investigator so she would tell Ms. Burnett. The victim had also asked the Defendant to inform him of Ms. Burnett's whereabouts before he knew of the affair.

On August 4, 2016,[2] the order of protection was dismissed; Ms. Burnett was given ten days to move out of the victim's Lebanon residence; and the victim was allowed to return to his home. Ms. Burnett immediately began moving her belongings to her townhouse on Rossi Road. The Defendant assisted Ms. Burnett with the move. According to the victim, while Ms. Burnett was moving out, he accidentally picked up the Defendant's


cell phone believing that the phone belonged to him. The victim then saw text messages "on top of the phone" between the Defendant and Ms. Burnett indicating that they were having an affair. The victim said that he was "upset" about the affair but clarified that he was not "extremely" upset or "[e]rratic." In addition, the victim confirmed that upon returning to his Lebanon home, he retrieved his Glock handgun from the safe; he could not recall if the other Glock handgun was still in the safe.

On August 8, the victim texted Ms. Burnett that he was hurting and constantly crying. The next day the two met in the parking lot of a Kroger near Ms. Burnett's townhouse. The victim testified that Ms. Burnett did not want him to come to her townhouse and wanted their meeting to occur in a public place. The victim knew that by this time, Ms. Burnett was allowing the Defendant to stay at the townhouse. The victim agreed that he wore his Glock pistol on his hip at the meeting, but he denied having any other guns in his vehicle. Specifically, he denied bringing two guns and a baseball bat to the meeting at Kroger, but he admitted that he took a photograph that same morning of the guns and bat in the trunk of his car, which he sent to a friend.

Though the victim was unhappy and upset during this meeting, he did not believe his behavior was "extreme." He also described his demeanor as "very level-headed" and said that his emotions that day were only a three on a scale of ten. According to the victim, the tone of the meeting, which lasted about thirty minutes to an hour, was "very loving, forgiving, wanting to reconcile." The victim agreed, however, that he sent a text message to a friend later that evening after the meeting describing himself earlier that morning as "emotional and dangerous." The victim said that he was "absolutely not" under the influence of any kind of drugs or alcohol during the meeting.

The victim testified that he returned to his home in Lebanon after the Kroger meeting and that he communicated with Ms. Burnett later that day. The victim testified that he and Ms. Burnett...

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