Jackie Lynn Foster, Jr. was indicted for first-degree premeditated murder but was convicted of second-degree murder, a Class A felony, after a jury trial. The trial court sentenced him to twenty-three years as a Range I, standard offender. On appeal, Foster contended that the evidence was insufficient for his conviction, that sentencing was improperly determined, and that certain evidence was wrongly admitted. The court found sufficient evidence to support the second-degree murder conviction and concluded that Foster waived his challenge regarding evidence admissibility by not filing a timely motion for a new trial. While the trial court incorrectly applied one enhancement factor in sentencing, the appellate court upheld the sentence as justified. The judgment of the trial court was affirmed.
The background provided details on the events leading to the murder, including testimony from Elizabeth Osborne, who described a prior relationship with David McFarland and a group outing to Wal-Mart. Racial slurs from McFarland during phone calls escalated tensions, ultimately leading to a confrontation at Super Wash House, where the victim, Joshua Underwood, and others armed with wooden sticks prepared to fight.
The victim was in the front passenger seat of a vehicle, while Mr. Hall was seated behind him, and Ms. Osborne was behind the driver, Ms. Mitchell. During the incident, Mr. McFarland called Ms. Osborne, who informed him they were en route. Ms. Mitchell parked at the carwash vacuuming station, where another vehicle, driven by the Defendant, angled in front of them. Ms. Mitchell identified the Defendant and noted Mr. McFarland was also in that vehicle. The victim and Mr. Hall exited their vehicle and began striking the Defendant’s car with sticks. Ms. Osborne then got into the front seat of their car.
Ms. Osborne witnessed the victim break the Defendant's windshield, prompting the Defendant to exit his vehicle while displaying a gun. Upon seeing the gun, the victim shouted a warning and attempted to flee. Ms. Osborne heard several gunshots as the victim and Mr. Hall hurried back into their vehicle, which Ms. Mitchell drove to the hospital. Ms. Mitchell described the victim's distress during the ride and later met family and friends at the hospital.
Afterward, Ms. Osborne observed bullet holes in her home and confirmed that her parents and others were present during the shooting. On cross-examination, she admitted she did not speak to the Defendant on the night of the incident, nor did the Defendant use racial slurs. Ms. Osborne detailed the physical differences between Mr. McFarland and the victim and confirmed her role in facilitating the men's quick entry into the vehicle post-altercation. She also noted discrepancies in her statements regarding the victim's behavior and the presence of the sticks during the police investigation.
Additionally, Ms. Mitchell recounted a previous shopping trip on November 25, 2005, where tensions arose due to phone calls from Mr. McFarland, leading to the victim expressing concern and agitation over perceived threats to his family. This emotional state was evident during their trip to the carwash, where the victim and Mr. Hall carried sticks.
Ms. Mitchell testified that she would not have driven Mr. Hall and the victim to the car wash if they had been armed. Upon arrival, she did not see other vehicles initially. The victim instructed her to drive around, after which a maroon vehicle stopped in front of hers. The victim and Mr. Hall exited her vehicle with sticks and began striking the windshield of the maroon vehicle. Ms. Mitchell identified the Defendant as the driver of that vehicle. As the victim approached the maroon vehicle, Ms. Mitchell saw the Defendant with a gun, which prompted her to scream. She observed the Defendant aim the gun at the victim, followed by a gunshot, after which the victim ran towards her vehicle, appearing injured. The Defendant then aimed his gun at Ms. Mitchell and fired again, hitting the roof of her car where Ms. Osborne was sitting. Ms. Mitchell heard additional gunshots as she drove away. On cross-examination, she stated she did not know the Defendant or Mr. McFarland prior to the incident and clarified conflicting statements regarding communication with Mr. McFarland and whether the victim carried his stick when fleeing.
Mr. Hall recounted that the victim, distressed about threats against his family, woke him around midnight and asked him to accompany him to confront the individual making the threats, taking two poles for protection. At the car wash, after striking the maroon vehicle's windshield, Hall heard the victim yell about a gun and saw the Defendant pointing a gun at the victim. He identified the Defendant as the shooter and confirmed that the victim was not threatening the Defendant when shot. Hall also noted that he had not known the Defendant or Mr. McFarland beforehand. Detective Still was informed of the shooting victim's admission to the hospital and later interviewed witnesses, learning that the victim had died during surgery.
Defendant emerged as a suspect following interviews conducted by Detective Still. Earlier that year, Defendant received a traffic citation while driving a maroon Ford Explorer, registered to Jack and Sharon Foster, whose residence at 2710 Copeland was confirmed by tax records. On November 26, 2005, Sharon Foster reported vandalism to her vehicle. Review of security footage from a local carwash showed a maroon Ford Explorer entering the facility, where three men exited a Saturn vehicle. One man, identified as Defendant, appeared to manipulate an object in his back pocket. The Explorer left the carwash, followed by the Saturn, which later parked nearby.
Detectives discovered a maroon Explorer in the Fosters' backyard and were granted entry by Ms. Foster, who indicated Defendant was asleep in his bedroom. Detective Still found Defendant and another individual, Mr. McFarland, and detained them. Ms. Foster disclosed that a weapon was stored in the bedroom, revealing a Lorcin .380 caliber pistol in a blue box on the nightstand, with one live round in the chamber. After transporting Defendant to the police station, Detective Still read him his Miranda rights, to which Defendant waived.
During the interview, Defendant appeared nonchalant. He recounted that Ms. Osborne had called Mr. McFarland multiple times due to dissatisfaction with their relationship and that a phone call prompted a meeting at the carwash to resolve issues. Defendant admitted to taking a pistol from a lockbox in his mother's bedroom, initially misidentifying it as a .22 caliber firearm. He initially denied the presence of a third man during the incident but later acknowledged picking up an unidentified individual at Mr. McFarland’s request. Defendant confirmed he drove the maroon Explorer and was wearing a white, short-sleeved tee shirt, and stated he had the pistol in his pocket when arriving at the carwash.
Defendant and Mr. McFarland waited for Ms. Osborne but left after a few minutes. They later returned to the carwash, where they saw a Saturn from which two men exited. The victim then struck the front passenger window of Defendant's Explorer with a large pole. Defendant retrieved a gun, exited his vehicle, and fired at the victim as he ran around the Explorer, discharging the weapon three times after clearing a jam. After the shooting, they drove to Ms. Osborne's house, where Mr. McFarland fired three rounds at her residence. Defendant returned the gun to his mother's nightstand without discussing the incident with Mr. McFarland.
Defendant expressed that he was not scared during the confrontation and claimed he had experience from past street fights in California. He acknowledged the engine of his vehicle was running, which could have allowed him to flee. He admitted anger and hatred influenced his decision to shoot, recognizing the potential to kill the victim but stated that he did not think about the consequences. Detective Still corroborated Defendant's account with investigations and witness statements and noted that Defendant showed no emotional response upon learning of the victim's death. The investigation revealed that the victim and Mr. Hall were the initial aggressors, and their weapons were not recovered. Additionally, the third man in the Explorer was never identified. Forensic evidence collected included a small amount of glass found in the Explorer.
Officer Whitfield reported finding several items at the carwash, including brass knuckles, a blue cigarette lighter, one live .380 caliber bullet, one spent .380 caliber bullet, and two shell casings. The spent shell casings' positions suggested shots were fired from two locations. A spent bullet was located at a distance from the shell casings and live rounds. During a subsequent visit to Ms. Osborne’s residence, Officer Whitfield identified two bullet holes in the front door and one in a bedroom window, alongside three spent .380 shell casings outside the residence. One bullet lodged in the wall behind the door, another traveled through the living room wall, and the third went through the bedroom window. A 2001 silver Saturn was observed with apparent bullet damage to its roof. Officer Whitfield logged a Lorcin .380 caliber semiautomatic pistol into evidence, which had been retrieved from the Foster residence.
Firearm examiner Officer Patricia M. Resig confirmed that the spent casings and bullets from both the carwash and the residence were fired from the Lorcin pistol. She noted that the pistol could jam if not held firmly. Dr. Sandra K. Elkins, the medical examiner, testified that the victim suffered a fatal gunshot wound to the abdomen, with the bullet's trajectory indicating the victim was turned toward the shooter and that the shooter was positioned over two feet away. The victim's toxicology report showed no alcohol but detected atropine and oxycodone.
The State concluded its case, and the Defendant's father, Jackie Lynn Foster, testified about the Defendant's upbringing, characterizing him as quiet and timid, with difficulties in school, including special education placement. Mr. Foster described his son as fearful and lacking confidence, indicating that he avoided confrontations.
Mr. Foster aimed to instill resilience in Defendant, expressing the desire for him to be unafraid and able to assert himself, especially in Mr. Foster's potential absence. He indicated that although he kept a pistol in the house for protection, he had never taught Defendant to use it. On November 26, 2005, Mr. Foster found Defendant in a police car and reassured him that he was tough enough to handle the situation. He noted damage to their Ford Explorer, including a broken windshield and dents, though he later corrected himself about the windshield being intact but the safety plastic shattered. Despite acknowledging glass fragments in the car, he admitted that photographs taken post-shooting did not show these fragments. Mr. Foster claimed not to have viewed the carwash's security footage and insisted that Defendant was afraid of the dark. He recognized Defendant's interest in the Insane Clown Posse but did not pay attention to the lyrics. Mr. Foster indicated that the family was aware of the gun in the house and acknowledged Defendant's history of being bullied, though he was unaware of any physical confrontations resulting from this. He also noted Defendant's tendency to lie.
Tony Eugene Grant, Defendant's brother-in-law, described him as soft-spoken and non-violent, highlighting his struggles with bullying. Grant recounted Mr. Foster's anger when Defendant reported the bullying, urging him to stand up for himself. He confirmed Defendant's enjoyment of music and video games, including the Insane Clown Posse and WWE Raw Versus Smackdown, the latter containing violent themes.
Defendant testified that he faced bullying in school and was often called names, which made him afraid to fight back. He recounted his father's aggressive reprimands for not defending himself. He enjoyed skateboarding and participated in the Special Olympics. Defendant explained that he was giving Mr. McFarland a ride to the carwash and had no prior acquaintance with the shooting victim. He stated that it was Mr. McFarland's idea to take the gun, which he had never fired before the incident. They left the house after his mother went to bed, and Defendant was instructed to pick up another individual whose identity he did not know.
Defendant arrived at a carwash with two companions, carrying a gun in his back pocket, intending to display it for protection. After initially leaving due to no one being present, they returned when Mr. McFarland received a phone call. Upon arrival, two men emerged from a Saturn and began attacking Defendant's vehicle. Feeling threatened, Defendant exited with the gun held down and warned one aggressor to stop approaching. He later admitted to lying about his fear during the encounter. Defendant fired his weapon once, believing he did not injure anyone, and discharged two additional shots into the air to deter the group. He expressed fears that there might be a gun in the Saturn and fled quickly. During his hasty departure, Mr. McFarland shot over the roof of the Explorer. To avoid his father's anger over potential vehicle damage, Defendant falsely attributed the damage to someone named "Cory." At twenty years old, he acknowledged lying about his past experiences, including gang involvement and previous jail time. He felt remorse upon learning of the victim's child. On cross-examination, he noted his affiliation with the Insane Clown Posse, including wearing related clothing and listening to their violent-themed songs. He denied hearing racial slurs during the phone call and admitted to driving Mr. McFarland to a fight, despite lacking a driver's license, and acknowledged he could have declined to bring the gun but was persuaded by Mr. McFarland.
Defendant recounted that Mr. McFarland requested him to retrieve a gun for a potential altercation, which he took from his parents' nightstand and handed to Mr. McFarland, who placed it in the vehicle's console. During the drive to the carwash, Mr. McFarland indicated they would pick up another man, whom they located outside a store. While anxious about the impending fight, Defendant listened to music, specifically noting it was "regular rap." Upon arrival, Mr. McFarland instructed him to enter from the back alley. Although scared, Defendant did not want to appear weak and followed Mr. McFarland out of the vehicle with the gun in his pocket.
After leaving the carwash due to no one showing up, they returned when Mr. McFarland spotted a Saturn. Defendant parked beside the Saturn and observed the victim approach with a pole. Startled, he exited the vehicle as the victim struck the windshield. In response, Defendant brandished the gun, warning the victim, and then fired as the victim approached. He claimed he was unsure if he hit the victim, who fled while Defendant fired a shot into the air. He denied any gun malfunctions and admitted to exaggerating his actions to appear tougher.
In rebuttal, Officer Kimberly Ashley from the Knox County Sheriff’s Department testified about Defendant’s incarceration, noting he was in an honor tank and had reported no mental health issues or medication needs. She confirmed he had sent and received a significant volume of mail during his time in custody. On cross-examination, she acknowledged the lack of inquiry into any mental challenges during Defendant's intake but noted his high school graduation.
The document also indicates a procedural note regarding the consideration of Defendant's untimely appeal before addressing the case's merits.
On April 2, 2007, the trial court convicted the Defendant, who filed a motion for a new trial on June 18, 2007, beyond the thirty-day limit established by Tenn. R. Crim. P. 33(b). The trial court heard the motion but lacked jurisdiction to do so due to its untimeliness, rendering the denial order void. Consequently, the Defendant forfeited the right to have a hearing on the motion and to appeal issues that could have been raised in it, except for sufficiency of evidence and sentencing concerns. The notice of appeal was also filed late on July 13, 2007; however, the court may waive the timely filing requirement "in the interest of justice."
The Defendant did not dispute having shot the victim but argued that the evidence was insufficient to prove he knowingly killed the victim, claiming he acted in the heat of passion over a brief incident. For sufficiency challenges, the evidence is assessed favorably for the prosecution, and the jury's guilty verdict replaces the presumption of innocence with a presumption of guilt, obligating the Defendant to counter this presumption while the State is afforded the most favorable interpretation of the evidence.
The jury is assumed to have resolved conflicts and made reasonable inferences in favor of the State, with credibility and evidentiary weight determined by the trier of fact, not the court. Convictions for second-degree murder require proof of unlawful and knowing conduct resulting in death, with knowledge inferred from circumstances surrounding the act. Evidence presented showed that Defendant McFarland and an accomplice anticipated an altercation with the victim at a carwash, where McFarland was armed. After the victim attacked his vehicle, McFarland fired at the victim and later at another vehicle. The jury was instructed on voluntary manslaughter and self-defense but ultimately rejected McFarland's claims of acting in passion or self-defense. McFarland acknowledged he was not afraid and acted out of anger, understanding that his actions could lead to death. The court found sufficient evidence for a rational jury to conclude he knowingly killed the victim, denying him relief on this matter. Regarding the admission of evidence related to Insane Clown Posse, the court noted that the issue was waived on appeal due to the untimely filing of the motion for a new trial, allowing for only plain error review.
An appellate court may address errors affecting the substantial rights of an accused at any time, even if not raised in a motion for a new trial, to ensure substantial justice. To establish plain error, the following five factors must be met: (a) the trial court record must clearly show what occurred, (b) a clear rule of law must have been violated, (c) a substantial right of the accused must have been adversely affected, (d) the accused did not waive the issue for tactical reasons, and (e) addressing the error is necessary to achieve substantial justice. All five factors must be satisfied for plain error to be recognized, and consideration of all factors is not required if one cannot be established. Furthermore, the plain error must be significant enough to likely alter the trial's outcome.
In the present case, the topic of the musical group Insane Clown Posse was raised by the Defendant during an interview, where he described being bullied for his interest in their music. During cross-examination, the State asked about his connection to the group and its violent lyrics. Although defense counsel objected, claiming lack of relevance, the trial court deemed the evidence pertinent to the Defendant's mental state at the time of the shooting, which was crucial for proving first-degree murder through premeditation. Relevant evidence must have a tendency to influence the determination of the case, though it may be excluded if its prejudicial impact outweighs its probative value. Ultimately, the jury rejected the notion that the murder was premeditated due to the Defendant's interest in the group's lyrics. The review concluded that the Defendant did not demonstrate a breach of a clear rule of law or that a substantial right was negatively impacted.
Consideration of the error was deemed unnecessary for substantial justice, and it was not classified as a plain error, thus the Defendant is not entitled to relief on this issue. At the sentencing hearing, a presentence report was introduced without objection, revealing that the Defendant was 22 years old, had dropped out of high school after eleventh grade due to difficulties, and had attended special education classes. His work history was sporadic, including jobs at a grocery store, fast food restaurant, and service company. The Defendant reported first using alcohol at age 17, last using it two years prior to sentencing, and had used marijuana occasionally between ages 15 and 17.
Officer Tom Walker from the Knox County Sheriff’s Office testified about the Defendant's gang affiliation with Insane Clown Posse, classified as a gang in the area, characterized by a membership of three or more, use of symbols, a leadership structure, and regular meetings or communications. Evidence included letters sent to the Defendant from other gang members featuring gang symbols, and descriptions of the group's albums and symbols.
A recorded phone call from the Defendant to Wendy and Troy Grant post-verdict revealed Mr. Grant expressing disbelief in the Defendant's involvement in the victim's death and discussing the circumstances surrounding the victim's transport to the hospital. The Defendant expressed relief over the jury's verdict and discussed his expectations of prison life and obtaining a G.E.D.
On cross-examination, Officer Walker confirmed that Insane Clown Posse was recognized as a gang about seven months before the hearing and acknowledged prior incidents of vandalism linked to the gang's symbols, although no charges had been filed. He noted that six members had been arrested for various crimes but clarified that the Defendant did not have any tattoos associated with the gang.
Eugene Underwood's family, including his grandfather, uncle, and mother, testified about the victim’s life and the impact of his death. Defendant’s father, Jackie Foster, Sr., testified regarding the Defendant's mental challenges, supported by his high school record, which showed poor academic performance with some improvement in later grades. The Defendant was convicted of second-degree murder, classified as a Class A felony, subject to a sentencing range of fifteen to twenty-five years. The trial court, during sentencing, noted the Defendant's lack of remorse and emphasized his willingness to commit a crime with high risk to human life as a significant enhancement factor. The court also found that the Defendant acted as a leader in the crime and that multiple victims were involved, applying additional enhancement factors. Although the court acknowledged provocation as a mitigating factor, it ultimately sentenced the Defendant to twenty-three years. On appeal, the Defendant does not dispute the lack of remorse finding but challenges the trial court's conclusions regarding his role in the offense and the involvement of multiple victims, arguing that these findings violated his Sixth Amendment rights. He also contends that the trial court failed to consider several mitigating factors and believes he should have received the minimum sentence. The burden of proof lies with the party challenging the sentence, and the appellate court will review the case de novo while presuming the trial court's determinations are correct, provided the court considered all relevant principles and facts.
If a trial court improperly applies mitigating or enhancement factors or fails to adhere to the Sentencing Act, the presumption of correctness is lost, leading to de novo review. In *State v. Carter*, the court found that the trial court erred by applying an enhancement factor related to multiple victims, necessitating a de novo review without presumption of correctness. The Sentencing Act mandates that sentences be within the established punishment range, although judges are no longer required to start with a presumptive sentence adjusted by enhancement and mitigating factors. An appellate court must respect the trial court's sentence length if it aligns with the Act's principles.
During a de novo review, the appellate court considers several factors, including trial evidence, presentence reports, sentencing principles, the nature of the crime, enhancement and mitigation evidence, statistical sentencing data, and any statements from the defendant. The court also addressed constitutional concerns following *Blakely v. Washington*, which determined that any fact increasing a sentence beyond the statutory maximum (other than prior convictions) must be proven to a jury beyond a reasonable doubt. However, since the defendant's offense occurred after the 2005 amendments to Tennessee's sentencing law, which comply with Sixth Amendment requirements, the new law allows judges to exercise broad discretion within statutory ranges without violating the defendant's rights.
Defendant's constitutional challenge regarding the length of his sentence was denied. The trial court incorrectly applied enhancement factor (3), which pertains to multiple victims, as the conviction was for second-degree murder against a specifically named victim, per State v. Imfeld, where the application of this factor is restricted to cases involving more than one victim in the indictment. The court also found that the trial court did not err in determining that Defendant was a leader in the commission of the crime. Despite Defendant's claim that Mr. McFarland orchestrated the events, evidence indicated that Defendant provided the transportation and weapon, and he chose to confront the victim, demonstrating leadership in the crime's execution.
Defendant argued against the consideration of certain mitigating factors, such as extreme duress and mental incapacity. The trial court evaluated these factors but ultimately rejected all except for some provocation, stating that while the victim’s aggression justified some reduction in sentencing, it did not excuse the use of a firearm. Despite a misapplication of one enhancement factor, the court ruled this did not warrant a sentence modification. The trial court found Defendant showed no hesitation in committing a high-risk crime, which heavily influenced its sentencing decision. The court concluded that the balance of enhancement and mitigating factors justified the twenty-three-year sentence, affirming the trial court's judgment.
