State of Tennessee v. Tanner Brady Burgess

Nashville, TN - Criminal defense attorney represented Tanner Brady Burgess with a a three-count indictment for premeditated first degree murder, possession of a firearm during the commission of a dangerous felony, and aggravated assault resulting in the victim's death.

In September, 2017, Defendant lived with his fiancée, Lajasmin Gaines, and their

three daughters across the street from the victim, Michael Kehoe, who had moved from

Chicago to live with his brother, Keith Reynolds, Sr., in August, 2017. On September 24,

2017, at around 5:00 a.m., Mr. Reynolds heard "a bang, bang, like somebody was banging

on [his door], like somebody hit [his] door twice.” Mr. Reynolds opened the door and saw

Mr. Kehoe on the ground beside the mailbox. Mr. Reynolds told Mr. Kehoe to come inside

the house, and Mr. Kehoe said, "[t]he white boy across the street just shot me.”

Kiefer Todd was with Mr. Kehoe the night before and the morning of the shooting.

Mr. Todd testified that Mr. Kehoe was intoxicated. When they arrived at Mr. Reynolds'

residence, they saw "two girls fighting” in the street. Mr. Kehoe got out of the vehicle and

tried to break up the fight. Defendant came out of his house and told Mr. Kehoe not to

touch the women. According to Mr. Todd, Mr. Kehoe "put his hands up” and backed away.

Defendant then ran toward Mr. Kehoe trying to hit him, and Defendant and Mr. Kehoe

began fighting. Mr. Todd testified that Defendant threatened that "he had an AK” and ran

back inside his house. Mr. Kehoe turned and walked towards Mr. Reynolds' house. Mr.

Todd got in his vehicle and began to drive away. He testified that he heard two gunshots

as he pulled away.

Keith Reynolds, Jr., Mr. Kehoe's nephew witnessed the fight between Defendant

and Mr. Kehoe. He testified that he "took off” when Defendant ran into his house and said

that he was going to get his gun. He also testified that he heard two gunshots as he drove

away.

Officer Joseph Aragon, of the Clarksville Police Department, responded to the scene

of the shooting. When Officer Aragon arrived, other officers had already surrounded

Defendant's house. Police found Defendant in the woods behind his house. Defendant

had blood on his face and stated that he had been "beat[en] up.” Defendant smelled of - 3 -

alcohol. Defendant was placed in custody and taken to a hospital for treatment for his

injuries.

Sergeant Beau Skinner, of the Clarksville Police Department, testified that when he

arrived at the scene, he spoke to Tinisha Majors, one of the individuals involved in the

altercation. He testified that Ms. Majors had a "real bad swollen black eye.” In speaking

to witnesses, Sergeant Skinner discerned that there had been an argument between Ms.

Majors and her brother, Bobby Lee Majors. Lajasmin Gaines tried to intervene, and she

and Ms. Majors began to fight. Ms. Gaines struck Ms. Majors in the face. Ms. Majors

testified that she was "on the ground getting beat up” when she heard gunfire. She did not

recall how many gunshots she heard. She testified that she "was drunk” and that she

"dr[a]nk a half a gallon by [her]self.”

Ms. Gaines testified that she and Defendant had been drinking and "hanging out”

with her cousins Tinisha Majors and Bobby Lee Majors. At around 5:00 a.m. on September

24, 2017, Mr. Majors wanted to leave. Defendant told Ms. Gaines to take them home. Mr.

Majors and his fiancée and child got into Ms. Gaines's vehicle. Ms. Majors, however,

refused to leave and began walking up the street. Ms. Gaines and Ms. Majors began to

fight in the middle of the street. Ms. Gaines saw several men standing around their vehicles

on the other side of the street. She heard them "laughing about the fight, and stuff, and

watching it.” Ms. Gaines then heard "scuffling from [Defendant].” She saw Defendant

"fighting with, like, three or four guys.” She testified that she saw Defendant "being chased

into the house.” Ms. Gaines ran to her vehicle and drove away. She did not hear any

gunshots.

Police did not find a weapon. However, a gun case consistent with some kind of

long gun was found inside Defendant's home by a closet near the front door. Sergeant

Skinner observed blood on Defendant's front porch. Detective Cory Coleman, of the

Clarksville Police Department, testified that he found one spent shell casing, consistent

with the caliber used in a hunting rifle, right inside of Defendant's front door.

Mr. Kehoe was hospitalized for eight days at Vanderbilt Hospital. He was

discharged on October 2, 2017. After his discharge, he was in a great deal of pain and

required a walker. On October 7, 2017, Mr. Kehoe tripped and fell while using his walker.

Mr. Reynolds helped Mr. Kehoe into the kitchen and called 9-1-1. Mr. Kehoe complained

of pain in his leg. Paramedics helped him walk to the ambulance. He later died of cardiac

arrest.

The State's medical expert, Dr. David Zimmerman, performed an autopsy of the

victim's body. Dr. Zimmerman opined that Mr. Kehoe died from complications of the

gunshot wound to his upper leg and scrotum, which exacerbated his preexisting medical - 4 -

conditions, including obesity and an enlarged heart, resulting in an abnormal heart rhythm.

He agreed on cross-examination, however, that death from a gunshot wound resulting in

abnormal heart rhythm would usually occur closer in time to the injury.

Defendant did not testify but presented the testimony of an expert, Dr. Gregory

Davis, who opined that the manner of death was undetermined. He testified that there were

competing causes of death and that "[t]he significance of and possible contribution to death

from the gunshot wound is uncertain.” Dr. Davis concluded that Mr. Kehoe died from

multiple causes resulting from complications of an enlarged heart, obesity, and two

prescribed medications.

Based upon this proof, the trial judge found Defendant guilty of attempted voluntary

manslaughter in Count 1, possession of a firearm during the commission of a dangerous

felony in Count 2, and aggravated assault in Count 3.

Sufficiency of the Evidence

Defendant contends that the evidence at trial was insufficient to sustain his

conviction for attempted voluntary manslaughter. Specifically, Defendant argues that the

State failed to establish that Defendant "was reasonably certain that the single shot he fired

into [the victim]'s leg was a substantial step that was reasonably certain to kill [the victim],

rather than cause serious bodily injury.” The State responds that the evidence supports

Defendant's conviction. We agree with the State.

When the sufficiency of the evidence is challenged, the relevant question of the

reviewing court is "whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn.

R. App. P. 13 (e) ("Findings of guilt in criminal actions whether by the trial court or jury

shall be set aside if the evidence is insufficient to support the findings by the trier of fact

of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn.

1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992).

All questions involving the credibility of witnesses, the weight and value to be given

the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas,

754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). Accordingly, in a bench trial, the trial

judge, as the trier of fact, must resolve all questions concerning the credibility of witnesses

and the weight and value to be given the evidence, as well as all factual issues raised by

the evidence. State v. Ball, 973 S.W.2d 288, 292 (Tenn. Crim. App. 1998). The trial

judge's verdict carries the same weight as a jury verdict. State v. Hatchett, 560 S.W.2d

627, 630 (Tenn. 1978). - 5 -

After a guilty verdict has been entered, the testimony of the State's witnesses is

accredited, and all conflicts in the testimony are resolved in favor of the theory of the State.

State v. Nichols, 24 S.W.3d 297, 301 (Tenn. 2000) (citing State v. Grace, 493 S.W.2d 474,

476 (Tenn. 1973)). Whether the evidence underlying the defendant's conviction at trial

was direct or circumstantial, the same standard of review applies. State v. Dorantes, 331

S.W.3d 370, 379 (Tenn. 2011) (citing State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

"Voluntary manslaughter is the intentional or knowing killing of another in a state

of passion produced by adequate provocation sufficient to lead a reasonable person to act

in an irrational manner.” T.C.A. § 39-13-211(a). Upon establishing the requisite intent,

one is guilty of attempted voluntary manslaughter when he "[a]cts with intent to complete

a course of action or cause a result that would constitute the offense, under the

circumstances surrounding the conduct as the person believes them to be, and the conduct

constitutes a substantial step toward the commission of the offense.” T.C.A. § 39-12-101

(a)(3).

This Court has held that pointing a gun at someone and discharging it is sufficient

to sustain the "knowing” element of second degree murder. See State v. Anthony Bayman,

No. W2014-01537-CCA-R3-CD, 2015 WL 12978649, at *6 (Tenn. Crim. App. Aug. 17,

2015), perm. app. denied (Tenn. Dec. 14, 2015); State v. Randy Ray Ramsey, No. E2013-

01951-CCA-R3-CD, 2014 WL 5481327, at *6-7 (Tenn. Crim. App. Oct. 29, 2014), perm.

app. denied (Tenn. Jan. 16, 2015); State v. William Lamont Green, No. M2010-01631-

CCA-R3-CD, 2011 WL 2893088, at *5 (Tenn. Crim. App. July 20, 2011), perm. app.

denied (Tenn. Nov. 15, 2011) (determining evidence was sufficient for second degree

murder where the defendant shot the victim in the leg and claimed that he aimed at the

ground and shot only to scare the victim).

The State argues that the trial court could reasonably find that Defendant knowingly

shot at Mr. Kehoe with the intent to kill him. We agree. Defendant did not deny that he

shot Mr. Kehoe. The evidence showed that Defendant and Mr. Kehoe engaged in a

physical altercation prior to the shooting. Defendant threatened that he "had an AK.”

Defendant retrieved a gun from his home, aimed the gun at Mr. Kehoe, and fired at least

one shot at him. Witnesses testified that they heard two shots. There was no proof that

Defendant aimed only at Mr. Kehoe's leg, but even assuming there had been, the trial court

could have rejected it and found that Defendant knowingly shot at Mr. Kehoe with the

intent to kill him. Defendant is not entitled to relief on this issue.

Aggravated assault conviction- 6 -

Defendant asserts that the judgment form Count 3 reflects a conviction for

aggravated assault resulting in the victim's death and a release eligibility of 75 percent.

Defendant contends that the trial court specifically found that the proof did not establish

that the victim died as a result of the injuries sustained from the gunshot wound, and

therefore the judgment in Count 3 should reflect that Defendant was convicted of

aggravated assault resulting in serious bodily injury, which carries a standard release

eligibility of 30 percent.

We note that the various subsections of Tennessee Code Annotated section 39-13-

102(a)(1)(A) are all modes of committing the same offense, aggravated assault.

Aggravated assault that results in serious bodily injury to another is not a "lesser offense”

of aggravated assault that results in death, as Defendant states in his brief. However, the

various subsections do carry different release eligibility upon conviction.

At the conclusion of the bench trial, the trial court, as trier of fact, found that the

State did not prove beyond a reasonable doubt that Defendant's conduct caused the Mr.

Kehoe's death. The trial court announced its verdict as follows:

Now, the next issue in this case is that of – and we've heard a lot of

testimony about the cause of death. In a criminal case, again, the law

provides direction as to the cause of death. Before a defendant can be

convicted of any degree of homicide, the State must have proven beyond a

reasonable doubt that the death of the deceased was [the proximate] cause by

the criminal conduct of a defendant. That the proximate cause of death is

that cause which in natural and continuous sequence, unbroken by any

independent intervening cause, produces the death and without which the

death would not have occurred. This case has been particularly troubling.

The State has cited the case of State v. Barnes, at 703 S.W. 2nd 611.

And that's a case in which a ninety-one-year-old woman was attacked and

died some 14 days later as a result of pneumonia. In that case the doctor

testified to a direct causal connection between the beating that the victim

sustained and the pneumonia and sepsis, which ultimately ensued, and that

was the direct cause of death.

In this case we've heard testimony from both Dr. Zimmerman and Dr.

Davis. And I think both doctors did an outstanding job. But in this case is

Dr. Davis, who testified that the victim had a level of Flexeril in the system

that would not have been, in and of itself, fatal to the victim. But he had an

enlarged heart and there were other conditions which existed.- 7 -

And I'll read from Dr. Davis' report, the statement[:] "The one thing

a forensic expert can say with 100 percent certainty is; I don't know.”

Recognizing that this is not a civil case, where it's by a preponderance of the

evidence, then the outcome would be different, and probably will be different

if there is a civil action pending, as a result of his death. But we don't know,

and we don't know for certain against that standard, beyond a reasonable

doubt, the Court finds then that not every element of voluntary manslaughter

has been established. And that is, the causal connection between the death

of [the victim] and the actions of [Defendant].

Therefore, as to Count [o]ne, the Defendant is found guilty of attempted

voluntary manslaughter.

As to Count [t]wo, the Defendant is found guilty of the employment of

a firearm during the commission of a dangerous felony; attempted voluntary

manslaughter.

And as to Count [t]hree, the Defendant is found guilty as to the offense

of aggravated assault.

Although the trial court did not specify the element, serious bodily injury or death,

of aggravated assault under section 39-13-102(a)(1)(A), the court clearly found that

Defendant's actions did not cause the victim's death beyond a reasonable doubt.

At the conclusion of the sentencing hearing, the State argued that Defendant's

conviction in Count 3 required 70 percent service before Defendant would be eligible for

release. The trial court imposed a sentence of three years in Count 3, and the court ordered

the sentence to be served at 70 percent "because of the involvement of the weapon factor[.]”

Both the State and the trial court misstated the law. Under Tennessee Code Annotated

section 40-35-501(k)(7), a person convicted of aggravated assault that results in death (not

aggravated assault that involves the use of a deadly weapon) must serve 75 percent (not 70

percent) of the sentence imposed by the trial court.

The judgment of conviction in Count 3 states that Defendant was indicted for the

offense of "AGGRAVATED ASSAULT” under Tennessee Code Annotated section "39-

13-102(a)(1)(A)(ii)[,]” and it shows that the conviction offense is also "AGGRAVATED

ASSAULT” under section "39-13-102(a)(1)(A)(ii)[,]” which is aggravated assault

resulting in death. Under the section for release eligibility, the box beside "Agg Assault

w/Death 75%” is checked. - 8 -

Defendant argues that the judgment is incorrect because the trial court specifically

found that the evidence did not establish beyond a reasonable doubt that there was a "causal

connection between the death of [Mr.] Kehoe and the actions of [Defendant].” The State

asserts that Defendant has waived consideration of the issue by failing to request

clarification from the trial court at trial or at sentencing. Rule 36(a) of the Tennessee Rules

of Appellate Procedure states that "[n]othing in this rule shall be construed as requiring

relief be granted to a party responsible for an error or who failed to take whatever action

was reasonably available to prevent or nullify the harmful effect of an error.” Tenn. R.

App. P. 36(a). "The failure to make a contemporaneous objection constituted waiver of

the issue on appeal.” State v. Gilley, 297 S.W.3d 739, 762 (Tenn. Crim. App. 2008).

Defendant responds to the State's waiver argument by asserting that sentencing

errors cannot be waived for failure to raise them in a motion for new trial and that a motion

for new trial is not required in a bench trial to preserve issues for appellate review. Tenn.

R. App. P. 3(e). Defendant notes that he is "not requesting a new trial; he is asking only

that his judgment form be corrected to reflect a release eligibility consistent with the

conviction and sentence imposed by the trial court.”

Both parties make arguments as to whether the factors required for plain error

review are satisfied. "[W]hen necessary to do substantial justice,” this Court may "consider

an error that has affected the substantial rights of a party” even if the issue was waived.

Tenn. R. App. P. 36(b). Such issues are reviewed under plain error analysis. State v.

Hatcher, 310 S.W.3d 788, 808 (Tenn. 2010); see State v. Adkisson, 899 S.W.2d 626, 641-

42 (Tenn. Crim. App. 1994).

The State acknowledges that Defendant's convictions in Counts 1 and 3 are

inconsistent and asserts that inconsistent verdicts are permissible. See Wiggins v. State,

498 S.W.2d 92, 93 (Tenn. 1973); see also Harris v. Rivera, 454 U.S. 339, 345-46 (1981)

("Inconsistency in a verdict is not a sufficient reason for setting it aside” and rejecting the

contention that "a different rule should be applied to cases in which a judge is the

factfinder.”). The State cites the testimony of Dr. Zimmerman that the victim's cause of

death was initiated by the gunshot wound, which exacerbated the victim's existing health

problems, and the State asserts, "notwithstanding the trial court's findings with regard[] to

count one, the court may have found the evidence sufficient to support the conviction for

count three.” The State argues that because this Court cannot "divine what the trial court

was thinking at the time of trial and sentencing[,]” the record does not clearly establish

what occurred in the trial court. The State further asserts that because inconsistent verdicts

are permissible in Tennessee, Defendant cannot establish that a clear and unequivocal rule

of law was breached. - 9 -

We need not address the factors necessary for plain error review. The record is clear

that judgment of conviction in Count 3 does not reflect the verdict announced or the

sentence imposed by the trial court. Therefore, we remand this case to the trial court for

clarification of Defendant's conviction and sentence in Count 3 and entry of a corrected

judgment form if necessary.

Based on the foregoing, we affirm the Defendant’s convictions in Counts 1 and 2,

and we remand for clarification of Defendant’s conviction and sentence in Count 3.