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State of Tennessee v. Nichlous Maxwell
Citation: Not availableDocket: W2006-01213-CCA-R3-CD
Court: Court of Criminal Appeals of Tennessee; October 15, 2008; Tennessee; State Appellate Court
Original Court Document: View Document
Nichlous Maxwell was convicted of second-degree murder following a jury trial and sentenced to twenty-five years in prison. He appealed on three grounds: (1) the trial court wrongly allowed hearsay testimony under the excited utterance exception, (2) the court's response to jury inquiries regarding criminal responsibility was erroneous, and (3) the sentence was improperly enhanced based on facts not determined by the jury. After reviewing the case, the appellate court affirmed the trial court's decisions on the hearsay and jury instructions but modified the sentence to twenty-three years.
The background of the case involves the shooting of Prentice Moore ("Twin One") at an Exxon gas station in Memphis on May 26, 2003. Prior to the incident, an altercation occurred between Maxwell and the victim at the Denim and Diamonds nightclub, where the victim reported that Maxwell threatened to kill him. Following the nightclub incident, the victim and his brother, Prenston Moore, were involved in a confrontation with Maxwell, leading to physical altercations. After leaving the nightclub, the victim, Prenston Moore, and their cousin drove to the Exxon station, where shots were fired soon after they parked, resulting in the victim being shot.
Prenston Moore observed that the victim had been shot after noticing a bullet hole in the rear of the vehicle. He identified the Defendant fleeing the scene while carrying an assault rifle, despite the Defendant having part of his face covered. Moore heard three to four shots fired from the rear of the vehicle. After the shooting, the victim drove a short distance before crashing into another car, where Moore intervened to stop the vehicle and assist the victim.
The victim's friends, Edward Reynolds, Omar Edwards, and Roy Washington, witnessed a fight involving the victim, Moore, and the Defendant. After the altercation, they drove to an Exxon station where they encountered the victim, who was shot while on the opposite side of the gas pump. All three friends corroborated seeing the Defendant with an assault rifle and noted he was bald, despite part of his face being obscured. They also described the shooting incident, with Reynolds observing the victim push Moore's head down before shots were fired.
Bryan Cohran, a bystander, saw the Defendant and another man shooting at the victim's car, identifying the Defendant as carrying an assault rifle while the other man had a handgun. Cohran and others in a green Tahoe witnessed the shooting and saw the bald man with gold teeth (the Defendant) firing multiple shots. Larry Moore, another witness, confirmed seeing the Defendant shoot and noted the victim's defensive action. Fredrick Rodgers also identified the Defendant as having an assault rifle and recognized him due to his gold teeth, stating there was another man present with him during the shooting.
Several officers from the Memphis Police Department provided testimony regarding the investigation of a shooting incident. Officer David Payment examined the scene at Cottonwood and Mendenhall, where the victim’s vehicle stopped, and the nearby Exxon station where the shooting occurred. At Cottonwood, Payment recovered a spent nine millimeter shell casing, a live bullet, and a nine millimeter handgun from the victim’s car. Witness Prenston Moore indicated that the victim carried a gun. At the Exxon station, Payment found multiple shell casings and a bullet fragment in the victim’s car. He noted a bullet hole in the front windshield but could not determine its nature.
Sergeant James Fitzpatrick observed two bullet holes in the rear window and opined that a bullet fragment found on the front dash likely came from the rear, passing through the victim and hitting the windshield. Sergeant John Palsey identified the Defendant as a suspect, corroborated by several eyewitnesses who recognized him in a photo spread, while also mentioning another unidentified individual. High velocity gunshot wounds were identified as the cause of death by Dr. O’Brian Cleary Smith, who performed the autopsy, noting that the victim was shot through the right eye.
Monica Allen, the Defendant’s girlfriend, testified about seeing a fight at a club and the Defendant’s injuries afterward. She stated they went to bed around three a.m. but was uncertain if he left during the night.
On appeal, the Defendant argued that the trial court made reversible errors by allowing hearsay statements under the excited utterance exception, mishandling jury inquiries regarding criminal responsibility, and improperly enhancing his sentence based on facts not determined by a jury. The legal question of hearsay evidence's admission and its relation to the Confrontation Clause is reviewed de novo.
The trial court deemed the statement made by the victim and Prenston Moore to Mr. Livingston, head of security, as an excited utterance admissible under Tennessee Rule of Evidence 803(2). This statement, made shortly after a fight with the Defendant, included a threat from the Defendant to use a gun against them. The Defendant argued that the admission of this statement violated the Supreme Court's ruling in *Crawford v. Washington*, but the court found that the Defendant waived this objection by not raising it during the trial or in his motion for a new trial, as required by Tennessee appellate procedure rules. Furthermore, even if not waived, the court observed that the admission did not constitute error. The Confrontation Clause of the Sixth Amendment allows for some exceptions to the right of confrontation, particularly for non-testimonial hearsay. *Crawford* established that the Confrontation Clause is designed to protect against testimonial hearsay, while non-testimonial hearsay can be admitted if it demonstrates adequate reliability, as per the standard from *Ohio v. Roberts*. The *Crawford* decision also clarified that casual statements or those made in non-formal contexts are not considered testimonial.
The Tennessee Supreme Court, referencing the Crawford decision, defines a testimonial statement as one made with the intent of being introduced at a criminal trial. It emphasizes that statements made to police during an investigative or prosecutorial function are considered testimony, hinging on whether the declarant was acting as a 'witness.' Subsequent rulings in Davis v. Washington and Hammon v. Indiana clarified that only testimonial statements invoke the Confrontation Clause, distinguishing them from nontestimonial hearsay, which does not require the same scrutiny. In State v. Lewis, the court reiterated that nontestimonial hearsay is admissible without further analysis under the Roberts test if it fits within recognized exceptions. The distinction between testimonial and nontestimonial statements is based on the primary purpose of the police interrogation—whether it was to address an ongoing emergency or to gather evidence for prosecution.
In the current case, Mr. Livingston’s statements were deemed nontestimonial because he was not a law enforcement officer and the information was gathered to manage an ongoing emergency, not for prosecution. Since the statements were made shortly after a fight and under stress, they also met the criteria for the hearsay exception under Tennessee Rule of Evidence 803(2). Thus, the court concluded that the statements were admissible, and the defendant was not entitled to relief on these grounds.
Mr. Livingston testified about excited utterances made by the victim and Prenston Moore shortly after an incident, which the trial court deemed admissible due to the emotional context and timing. The court found no error in allowing this testimony, denying relief to the Defendant on this issue.
The Defendant also challenged the trial court's jury instructions regarding criminal responsibility, expressing concern that the jury might incorrectly attribute guilt for the victim's death to Mr. Scott without sufficient proof of the Defendant's responsibility for Mr. Scott's actions. The trial court clarified that the jury needed evidence for such a determination and instructed them according to the criminal responsibility statute.
During deliberations, the jury posed three questions concerning criminal responsibility, prompting a hearing with the parties. The Defendant requested a specific form for the jury to indicate their findings on criminal responsibility, which the trial court rejected, considering it an impermissible comment on evidence. Instead, the court reread the criminal responsibility instruction, stating that was the only legally permissible response.
The jury ultimately found the Defendant guilty of second-degree murder. The appellate review concluded that the trial court's instructions were accurate and comprehensive, and no error occurred in refusing the requested jury form or in the responses to the jury's inquiries. Therefore, the Defendant was not entitled to relief on these issues.
Legislative amendments to the Sentencing Reform Act of 1989, effective June 7, 2005, do not apply to the Defendant's case, as the crime occurred prior to this date and the Defendant did not waive ex post facto protections. The Defendant was sentenced to twenty-five years for second degree murder, which is classified as a Class A felony, with a sentencing range of fifteen to twenty-five years and a presumptive sentence of twenty years. When reviewing challenges to the length or manner of a sentence, the appellate court conducts a de novo review, presuming the trial court's determinations are correct, provided there is evidence that the court considered relevant sentencing principles and facts. Key considerations for sentencing include the evidence presented, the pre-sentence report, sentencing principles, the nature of the offense, enhancement and mitigating factors, the defendant's rehabilitation potential, and any statements made by the Defendant. The burden to demonstrate that the sentence is improper lies with the Defendant. The sentencing hearing occurred on March 8, 2006. Additionally, relevant U.S. Supreme Court rulings, such as Blakely and Cunningham, emphasize that any fact increasing a penalty beyond the statutory maximum must be submitted to a jury and proven beyond a reasonable doubt, except for prior convictions.
The Supreme Court has determined that a defendant's Sixth Amendment rights are violated if a trial court enhances a sentence based on factors, other than prior criminal history or behavior admitted by the defendant, without a jury's determination. In this case, the trial court identified five enhancement factors justifying a twenty-five-year sentence, including the defendant's prior criminal record, leadership in a felony with multiple actors, non-compliance with release conditions, possession of a firearm during the offense, and a disregard for human life. One mitigating factor was found—assistance to authorities—but the court deemed it insufficient to counterbalance the enhancement factors. The State acknowledged the trial court's error in relying on non-jury factors for sentence enhancement but argued that the defendant's criminal history alone justifies the increase from twenty to twenty-five years. The defendant's history included six misdemeanor drug possessions, evading arrest, driving with a suspended license, and simple assault, with convictions dating from 1997 to 2000. The trial court emphasized the defendant's continual legal violations and lack of respect for probation conditions. Consequently, the court modified the sentence from twenty-five years to twenty-three years, affirming all other aspects of the trial court's judgment.