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Appeal from the Criminal Court for Shelby County No IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON December 9, 2015 Session STATE OF TENNESSEE v. DWAYNE MOORE Appeal from the Criminal Court for Shelby County No. 13-01273 Carolyn Wade Blackett, Judge No. W2014-02432-CCA-R3-CD - Filed March 29, 2016 The defendant, Dwayne Moore, was convicted by a Shelby County jury of second degree murder and sentenced by the trial court as a Range I offender to twenty-two years at 100% in the Department of Correction. He raises two issues on appeal: (1) whether the trial court committed reversible error by allowing a police officer to offer improper opinion testimony about the appearance of a gun in a photograph and by admitting the photograph and the gun without a proper chain of custody; and (2) whether the evidence is sufficient to sustain his conviction. Following our review, we affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed ALAN E. GLENN, J., delivered the opinion of the court, in which THOMAS T. WOODALL, P.J., and ROBERT W. WEDEMEYER, J., joined. John Keith Perry, Southaven, Mississippi, for the appellant, Dwayne Moore. Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Paul Hagerman, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION FACTS At approximately 9:50 a.m. on Friday, February 22, 2013, deputies from the Shelby County Sheriff‟s Department, who were conducting a welfare check on the defendant‟s stepfather, Jimmy McClain, discovered his dead body lying on his living room floor surrounded by shell casings and bullet fragments. The autopsy revealed that the victim had been shot seven times and had been dead for at least twenty-four hours. All of the home‟s doors and windows were locked and there were no signs of a struggle. Evidence uncovered by investigators included: information indicating that the defendant disliked the victim and was motivated to kill him to avenge his mother, who was estranged from the victim; that the defendant had been in possession of the same type of gun as the murder weapon, which was discovered in the home of an associate of the defendant‟s best friend; that around the time of the murder, a series of purposefully deleted communications had passed back and forth between the defendant and his best friend; that the defendant‟s best friend had warned the associate in whose home the murder weapon was found to get rid of the gun and not to talk to the police; and that the defendant had confessed to his uncle that he killed the victim because the victim had disrespected his mother. The defendant was subsequently arrested and indicted for the first degree premeditated murder of the victim, was tried before a Shelby County Criminal Court jury, and was convicted of the lesser included offense of second degree murder. Trial The State‟s first witness at the defendant‟s June 23-27, 2014 trial was Shelby County Sheriff‟s Department Deputy Mario Albright, who was dispatched to the victim‟s Cordova home at approximately 9:53 a.m. on Friday, February 22, 2013, in response to a report from the school resource officer of Ridgeway High School, where the victim was employed as a teacher and coach, that the victim had not shown up for work for the past two days. Deputy Albright testified that he and his partner arrived at the home to find two vehicles in the garage and all the doors and windows to the home locked. He said they looked in the back door and saw a shell casing on the floor beside the couch, received permission from their supervisor to make a forced entry into the home, and entered to find the deceased victim lying on his living room floor with multiple shell casings around him. Deputy Albright identified a number of photographs of the crime scene, including one that showed a pair of sweat pants and a rug that appeared to have been shoved to the side as someone entered the front door. Dr. Erica Curry, the forensic pathologist who performed the autopsy of the victim‟s body, testified that the cause of death was multiple gunshot wounds and the manner of death was homicide. The victim had thirteen distant gunshots wounds to his head and torso, which included seven entrance wounds and six exit wounds. The victim was shot in the back of the head, in both sides of his neck, in the shoulder, in the back, and twice in the face, with one of the bullets having lodged in his chin. The victim‟s toxicology report was negative for the presence of either drugs or alcohol, and there were no wounds to his hands to indicate that he was involved in a struggle. Dr. Curry was able to determine that the victim had been dead for greater than twenty-four hours. 2 The victim‟s sister, Easter McClain, testified that the victim married the defendant‟s mother, Carla McClain, in 2001. The witness said she lived with the victim and Carla McClain in the victim‟s Cordova home from approximately January to May 2007. During that time, Carla McClain made a copy of her key to give to the witness so that she could have her own key. The defendant did not live in the home during that period, but the witness believed that he had possibly lived there earlier and said that he lived there during 2008 after the witness moved out. At the time of the victim‟s death, however, the victim and Carla McClain had been separated for at least three or four years and the victim lived alone. The witness testified that the victim told her that Carla McClain and her children, “Tiffany” and the defendant, had threatened to beat him up and that he expressed on numerous occasions his fear of them. She described the victim as “[e]xcessively security conscious” and said that he regularly double-checked the doors and windows to ensure that they were locked. In addition, he would not open his door to “just anybody.” When asked to describe a photograph of the interior view of the victim‟s front door, she said it appeared to her to show the rolled-up towel that the victim regularly kept by the bottom of the door to prevent drafts, along with the rug that was in the entry way, which had both been shoved to the side. The witness testified that the victim had not changed his locks after Carla McClain moved out, despite her having repeatedly urged him to do so. The witness testified that the last time she spoke with the victim was on Valentine‟s Day when he took her and their mother out to dinner. She said the victim, who had finally filed for divorce from Carla McClain about ten days earlier, was “very excited” to put that part of his life behind him and was also “very happy” because he was dating someone new. On cross-examination, the witness acknowledged that she never saw the defendant threatening the victim and that the victim, to her knowledge, never made any complaints to the police about the defendant, although he had filed a police report against the defendant‟s uncle, with whom he had had an altercation. She was adamant, however, that the victim repeatedly told her that the defendant was threatening him, testifying that the victim even told her that if anything ever happened to him, it would be the defendant, Tiffany,1 or Tiffany‟s boyfriend. Nashville resident Karllotta Pamela Smith testified that she and the victim, a part- time preacher, met through church and had been dating for approximately six months at the time of his death. She said they saw each other two or three times each month but 1 We refer to the defendant‟s sister by her first name only, as did the witnesses, because we do not know her last name. We intend no disrespect in doing so. 3 talked with each other several times a day, including each morning before work and each night at bedtime. She stated that she talked to him as usual on the morning of Wednesday, February 20, 2013, received a couple of texts from him throughout the work day, and talked to him again after he got off work. Nothing was out of the ordinary, and he seemed excited about an upcoming game in which his team was playing. At 8:40 p.m., she sent him a text reminding him to send her the address of a mutual friend. Twelve seconds later, he responded “okay” by text. That was the last she ever heard from him. Ms. Smith testified that about a month before the victim‟s death, she and the victim took a trip together to Hot Springs, Arkansas, for the Martin Luther King Holiday weekend. Before they left the victim‟s home on Saturday, the victim had a telephone conversation with Carla McClain about a package addressed to Mrs. McClain that had been delivered to the victim‟s home. Ms. Smith said that the victim suggested that he and Ms. Smith could deliver the package to Mrs. McClain on their way out of town, but she objected, telling him that she thought it was inappropriate to deliver a package to his ex- wife while in the company of his current girlfriend. She stated that, before they left the victim‟s home, the victim placed the package on a ledge outside his bedroom where he routinely put his mail.
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