Malcolm Witherow was convicted of first-degree murder for the shooting death of his former girlfriend, Melissa Hoover, and sentenced to life imprisonment. On appeal, he challenged the sufficiency of the evidence, the trial court's refusal to admit prior inconsistent statements from a witness as substantive evidence under Tennessee Rule of Evidence 803(26), and the denial of his motion for a mistrial due to comments made by the prosecutor during closing arguments. The Court of Criminal Appeals of Tennessee found no reversible error and affirmed the trial court's judgment.
The case details the events leading up to Hoover's death on October 10, 2008, at the home of their mutual friend, Connie Harrold. Harrold testified that Witherow and Hoover were at her house, and after Hoover went outside to secure her car during a rainstorm, Witherow followed her, expressing remorse for a promise he made to Harrold not to hurt Hoover. Harrold witnessed an argument between the two and heard loud noises, which she described as gunshots. She saw Witherow chase Hoover down the driveway, followed by Hoover calling for help. After Harrold found Hoover injured and attempted CPR, Hoover died in her arms from multiple gunshot wounds. A 911 call recording, in which Harrold identified Witherow as the shooter, was also presented as evidence.
Witherow harbored anger towards the victim due to the victim's past role as a police informant in a drug case, which involved wearing a wire. Harrold testified that Witherow had previously mentioned retaliating against the victim but promised not to do so at her house. At the time of the offense, Witherow had been living with Harrold for several months, while the victim had recently moved in. They maintained a generally friendly relationship, with no previous observations of violence or weapons from Witherow. On the morning of the offense, Witherow returned to the house around 7 a.m., and although Harrold did not recall specifics about that day, she acknowledged that Witherow often drank in the morning and had previously smoked marijuana with the victim. While Harrold noted an argument between Witherow and the victim, she did not believe Witherow would actually harm him.
Baker, a friend of Harrold’s son, was present that morning and initially considered the sounds he heard to be car noises before realizing they were gunshots. He witnessed Witherow calmly exiting the house with a small silver gun and heard Witherow express intentions of revenge and killing the victim in the weeks leading up to the incident. On cross-examination, Baker confirmed his living situation at Harrold’s and acknowledged having seen arguments between Witherow and the victim, but no physical confrontations.
Baker believed that the arguments between the victim and Witherow stemmed from the victim's reluctance to enter a relationship with him. Baker recalled that the victim may have shown him a gun weeks prior to the incident but could not clearly remember. He stated that she had a gun in her car's trunk, which she sold about a week before the offense, describing it as a small, silver .22 caliber. Additionally, Baker noted that Witherow had shown him two guns, a black revolver and a silver gun, a week before the incident, but he had not seen Witherow use them for hunting or shooting.
Sergeant Dean Beverly investigated Witherow for drug trafficking in 2005, using the victim as a confidential informant in two controlled drug buys, during which she wore a wire. Although Witherow was arrested on drug charges, they were dismissed when the victim could not be located to testify. Beverly stated he was uncertain if Witherow knew of the victim's informant role, as such details are typically shared through discovery by the District Attorney's Office.
On the day of the offense, the director of admissions at Moccasin Bend Mental Health Institute met Witherow, who expressed a desire for evaluation and confessed to shooting his girlfriend, claiming he had disposed of the gun in a river. She noted he appeared disheveled and tearful but did not smell of alcohol and seemed coherent. Witherow was evaluated but not admitted to the hospital.
Detective Mark Miller documented Witherow's car outside the mental hospital, which was later towed to the Sheriff’s Office for evidence preservation. He did not search the car due to a lack of a search warrant. Detective Robin Langford presented evidence from the crime scene, including blood droplets, the victim's body location, swabs of suspected blood, a set of keys, and spent shell casings, all admitted as evidence. Langford also took gunshot residue samples from Witherow's car, which were sent for analysis. Detective Rick Whaley, the case agent for the victim's death, noted that no handgun was ever recovered despite extensive search efforts.
Detective Whaley identified evidence collected from Witherow, including clothing and buccal swabs, which were documented as exhibits. He witnessed Dr. Frank King perform the victim's autopsy, during which fingernail clippings, a blood sample, and a bullet were retrieved and sent for analysis to the Tennessee Bureau of Investigations. The victim’s body was located approximately 100 yards from the driveway. Whaley conducted gunshot residue tests on Witherow's hands the day of the incident but could not determine the positions of the shooter or victim at the time of the shooting.
Dr. Frank King, the Hamilton County medical examiner, testified that the victim died from multiple gunshot wounds classified as homicide. He identified 14 distinct wounds caused by six or seven bullets, noting that the victim was alive during the shootings and suggested she may have been in various positions during the attack. King stated that all wounds were similar, indicating they were likely inflicted by the same type of gun and ammunition, specifically low-velocity gunshot wounds. He noted one bullet remained lodged in the victim's body.
Special Agent Shelley Betts, a forensic scientist, examined the victim’s clothing and found no gunshot residue, indicating she could not ascertain muzzle-to-garment distance. She confirmed that two fired cartridge cases had unique markings indicating they were fired from the same .25 caliber pistol, and the bullet recovered from the victim was also .25 caliber. Betts acknowledged factors that could prevent determining the muzzle-to-garment distance, including environmental conditions that could destroy residue evidence. She could not confirm if the bullet and shell casings were fired from the same gun, suggesting the possibility of one or two guns involved.
Special Agent James Russell Davis, III, provided expertise in microanalysis and trace evidence related to the investigation.
Agent Davis conducted a gunshot residue test on Witherow's hands, which was inconclusive but did not rule out the possibility that Witherow had fired, handled, or was near a gun. Additionally, tests on evidence from Witherow’s car indicated the presence of gunshot primer residue on the driver’s seat belt, suggesting either that a gun was fired nearby or that residue was transferred from someone who had handled a gun. Both reports were presented as evidence in court. During cross-examination, Agent Davis acknowledged that elements like lead, barium, and antimony can occur naturally, but maintained that the residue found on the seat belt originated from a discharged weapon.
Detective Brian Ashburn testified regarding an interview with a witness, Baker, who claimed to have lived at Harrold’s house for about one to one and a half months before the incident. Portions of the recorded interview were played for the jury but were mostly inaudible. Baker stated that Witherow had been living with Harrold for a few weeks prior to the offense. He also noted that Witherow would often express violent thoughts about the victim, particularly when intoxicated, but did not show aggression towards the victim when sober. Baker recounted that Witherow and another individual, O’Donald, left Harrold’s house the night before the offense and returned around 7 a.m. on the day it occurred, with Harrold’s son leaving shortly thereafter. Furthermore, Baker mentioned that Witherow had been in Georgia with a girl two nights prior, which troubled him. Detective Ashburn confirmed that Baker indicated Witherow only made threats against the victim while drinking. Harrold reported that Witherow arrived at her home intoxicated, holding a forty-ounce beer.
Dr. Laura Boos, an expert in serology and DNA from the Tennessee Bureau of Investigations, testified that blood was found on Witherow's jeans and shoes, but not on other items, including a belt and cartridge cases. She identified DNA on three roadway swabs, with two matching the victim's DNA and one being degraded. The DNA on Witherow's shoes matched the victim's DNA, but he had blood on his jeans, which was his own. Dr. Boos noted that DNA can be degraded on shell casings due to heat.
Witherow, who had a romantic relationship with the victim that ended two years prior to her death, testified about their history and interactions. He introduced the victim to his friend Harrold when she needed a place to stay. Witherow described having arguments with the victim, attributed to her jealousy, and mentioned a specific argument shortly before her death. On the day of the incident, he had been hunting and drinking with a friend and returned to Harrold's house the next morning, consuming beer and coffee.
After a conversation with the victim about a job she was taking someone else to, Witherow experienced confusion and sought help at a mental hospital, feeling disoriented and unable to recall having a gun or shooting anyone that day. He expressed a lack of clarity regarding his memories of the events.
Witherow admitted to consuming hydrocodone and alcohol the night before the offense, which he claimed was to calm his nerves. He owned a .22 caliber rifle and a .410 caliber shotgun, both borrowed, but stated he did not possess a handgun at the time of the incident. While acknowledging anger towards the victim for acting as a police informant, he claimed to have apologized to her, denying any intention to retaliate. Witherow vaguely recalled the victim’s body and only “thought” he shot her, suggesting a lack of clarity about the events. Following the trial, he was convicted of first-degree murder, receiving a life sentence. Witherow contested the sufficiency of evidence supporting the premeditation element of his conviction, arguing that it relied heavily on witness Tyler Baker’s testimony. However, it was determined that sufficient evidence existed to uphold the conviction. The legal definition of first-degree murder requires a premeditated and intentional killing, with premeditation defined as the mental process of reflecting and deciding to kill prior to the act. The jury's role is to assess the presence of premeditation based on the circumstances of the case.
The use of a deadly weapon against an unarmed victim, the cruelty of the act, the defendant's expressed intent to kill, evidence of weapon procurement, premeditated preparations, and calmness post-killing can indicate premeditation. The jury may infer premeditation from any planning, the defendant's motive, and the killing's nature. On appeal, the State is entitled to the most favorable view of the evidence, and the standard for assessing evidence sufficiency is whether any rational trier of fact could find the crime's essential elements beyond a reasonable doubt. The Tennessee Rules of Appellate Procedure require that findings of guilt be overturned only if evidence fails to support a conviction beyond a reasonable doubt, which can include direct or circumstantial evidence. The jury evaluates witness credibility and reconciles evidence conflicts without the court reweighing evidence. A jury's guilty verdict, endorsed by the trial court, confirms the State’s evidence and shifts the presumption from innocence to guilt, placing the burden on the defendant to prove insufficiency. In this case, overwhelming evidence supported the first-degree murder charge. Prior to the incident, Witherow assured a friend he would not harm the victim, influenced by anger over the victim's actions leading to his arrest. After apologizing to his friend, Witherow was seen pursuing the victim immediately before gunshots were heard.
Witherow was observed standing over the victim's body, which had sustained multiple gunshot wounds—one in the chest, one in the throat, and four in the back, totaling fourteen bullet wounds. Evidence included a shell casing and a blood trail from the victim leading to the main road, where the body was located, and gunshot residue on Witherow’s seat belt and shoe. After the shooting, Witherow admitted to personnel at a mental hospital that he had shot his girlfriend and discarded the gun in a river, providing sufficient evidence for a reasonable juror to conclude he committed first-degree murder. Witherow failed to demonstrate the evidence was insufficient to support the jury's verdict.
Additionally, Witherow argued that prior inconsistent statements made by witness Tyler Baker should have been admitted as substantive evidence under Rule 803(26) of the Tennessee Rules of Evidence. The State countered that Baker's statements were either irrelevant or not truly inconsistent and that the trial court acted within its discretion by not holding a hearing outside the jury's presence to assess the statements' trustworthiness. Rule 803(26) allows for the admission of certain prior inconsistent statements if specific conditions are met, including witness testimony and a pre-hearing to establish trustworthiness, as well as compliance with Rule 613(b), which governs the admissibility of extrinsic evidence of prior inconsistent statements.
Defense counsel sought to introduce Baker's recorded statements to police as prior inconsistent statements under Rule 803(26) during cross-examination. This request arose after Baker claimed not to remember details about Witherow's visit to a girlfriend in Georgia before the offense. Following a bench conference, the court allowed defense counsel to clarify Baker's responses outside the jury's presence. During this exchange, Baker repeatedly stated he could not recall details regarding Witherow's emotional state or presence in Georgia.
Defense counsel attempted to refresh Baker’s memory using a recording of his police interview, but the trial court denied this request, allowing instead a written synopsis of the interview. After reviewing the synopsis, Baker acknowledged some recollection, although he continued to express uncertainty about specific details. Defense counsel's questions addressed Witherow's state of mind and intoxication leading up to the offense, with Baker's responses indicating mixed memories.
The following day, the trial court admitted it had erred by not allowing the recording's introduction for impeachment purposes. However, Baker had already been excused from court, limiting the trial court's options. The State objected to the entirety of the recording being played due to some consistent statements, leading to a compromise where only selected portions, alongside Detective Ashburn’s testimony, were permitted for presentation to the jury.
The trial court acknowledged an error in not allowing a recording to be played during Baker's testimony, stating that Baker was no longer available and that the recording would be introduced through the detective who interviewed him. The court clarified that the recording would not serve as evidence but would be used to assess Baker's credibility. Defense counsel objected, asserting that under Rule 803(26), the recording should be treated as substantive evidence, and requested an evidentiary hearing to establish its trustworthiness. The court overruled the objection, admitted the recording only for impeachment purposes, and did not conduct the requested hearing. In a subsequent motion, defense counsel argued for the recording's admission as substantive evidence, necessary for the intoxication defense, which the trial court denied, insisting the recording needed to be made under oath to qualify as substantive evidence.
Witherow's brief highlighted three specific responses from Baker at trial, suggesting they complied with Rule 613(b) regarding impeachment. The trial court recognized that defense counsel should have been allowed to use the inconsistent statements from the recording for this purpose, and it failed to hold a hearing on the recording's trustworthiness as required by Rule 803(26)(c). Despite these errors, a review determined that not admitting the recorded statements as substantive evidence was harmless. The burden was on Witherow to prove that the error likely affected the trial's outcome, particularly given the substantial evidence of guilt. He contended that the jury could have inferred reasonable doubt regarding premeditation from Baker's police statements, but the court disagreed with his assertion for the same reasons as previously stated.
The trial court's error in not admitting Baker’s video statements as substantive evidence did not impact the overwhelming evidence of guilt, and Witherow failed to demonstrate that this error had a significant effect on the jury's decision. The defense's attempts to introduce these statements were complicated by their evolving rationale and the belief that Baker had forgotten his prior statements. Additionally, Witherow argued for a mistrial due to perceived prosecutorial misconduct, claiming the prosecutor inflamed the jury's emotions by referencing a recent police shooting. The State contended that the statement did not provoke the jury, and the trial court's denial of the mistrial was upheld, as closing arguments are generally given leeway. The Tennessee Supreme Court emphasizes that prosecutorial misconduct must be shown to have affected trial outcomes to warrant reversal. Factors considered in assessing the prosecutor's comments include their context, any corrective actions taken, the prosecutor's intent, cumulative effects of any misconduct, and the overall strength of the case. The prosecutor's closing remarks highlighted the broader issue of combating violence while detailing investigative procedures, asserting that the case was fundamentally about justice rather than solely the victim's death.
The document addresses the legal proceedings concerning a violent crime in Tennessee, where evidence beyond a reasonable doubt was presented to establish that a young woman was intentionally and premeditatedly killed. Jurors are reminded of their duty to base their decision on the law and evidence rather than emotional responses. Witherow argues that the prosecution improperly influenced the jury by referencing fallen officers and suggesting a need to "combat violence," which he claims diverted attention from the actual evidence. However, the review concluded that the prosecutor's rhetorical question and reference to law enforcement's actions did not constitute prosecutorial misconduct. An isolated mention of "sergeants falling" was deemed insufficient to affect the verdict negatively for Witherow. Consequently, the judgment of the Hamilton County Criminal Court was affirmed, with no reversible error found.
