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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
Assigned on Briefs October 5, 2010 STATE OF TENNESSEE v. ELGIE SYKES
Direct Appeal from the Criminal Court for Shelby County No. 07-07352 Lee V. Coffee, Judge

No. W2009-02296-CCA-R3-CD - Filed July 14, 2011

The Defendant-Appellant, Elgie Sykes, was convicted by a Shelby County jury of first degree premeditated murder and sentenced to life with the possibility of parole. On appeal, Sykes claims: (1) the jury instruction for premeditation was improper; (2) the insufficiency of the evidence; (3) the trial court erred by excluding the testimony of a psychologist; and (4) the trial court erred by failing to instruct the jury not to consume alcohol while sequestered. Upon review, we reverse the judgment of the trial court and remand for a new trial. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed and Remanded C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which A LAN E. G LENN and J. C. M CL IN, JJ., joined. Larry Copeland and Taylor Eskridge (at trial), Memphis, Tennessee; Paul K. Guibao, and Matthew S. Lyons (on appeal), Memphis, Tennessee, for the Defendant-Appellant, Elgie Sykes. Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; William L. Gibbons, District Attorney General; Glen Baity and Kate Edmands, Assistant District Attorneys General, for the Appellee, State of Tennessee. OPINION Trial. This case involves a continuing conflict between the Defendant-Appellant, Elgie Sykes, and the victim, Jason Hopson. In July of 2006, the victim shot and injured Sykes. Some four or five months after the initial shooting, Sykes told the victim's sister, "You need to tell your mama and your aunt to get a black dress . . . because I'm going to kill your brother." Almost a year later, on April 7, 2007, Sykes shot and killed the victim. The

victim's girlfriend, Leykishia Aretha Anderson, and her mother, Aretha Williams, were both present when the victim was shot and killed. They identified Sykes as the shooter. Sykes confessed to shooting the victim; however, he claimed it was self-defense. Leykishia Aretha Anderson, the victim's girlfriend, testified that the victim visited her apartment, which she shared with her mother, at approximately 1:00 a.m. on the morning of the offense. Anderson said she and Hopson stood outside of the apartment and talked for about ten minutes. While they were talking, Hopson abruptly grabbed Anderson and pulled her into a neighbor's apartment. Anderson turned around and observed Sykes holding a gun. She stated that Sykes "was right there in our face[.]" Sykes wore a black hooded sweatshirt, black jeans, and a "black, big bubble coat." Anderson was able to see Sykes's face because it was not covered. While inside the neighbor's apartment, Hopson grabbed Anderson and tried to use her as a shield. Sykes told Hopson to "`[l]et her go.'" Anderson testified that she made several attempts to get away from Hopson. Sykes shot his gun each time she was able to momentarily free herself. Ultimately, Anderson observed Sykes shoot Hopson several times with a small, black gun. Prior to the night of the offense, Anderson encountered Sykes twice. The first encounter occurred about a month before the shooting. Anderson was at her apartment with Hopson. She noticed that Sykes was outside with a group of people. Anderson heard Sykes calling for Hopson to come outside and "scrap it out with him." According to Anderson, Sykes claimed there "was going to be consequences" if Hopson did not go outside. Hopson remained inside the apartment. Anderson testified that Sykes came to her apartment on a later date when Hopson was not present. Sykes informed Anderson of his past "disagreements" with Hopson, including the fact that Hopson had shot Sykes. Anderson said Sykes advised her to stay away from Hopson because Sykes was going to kill him. She explained: [Sykes] was just telling me . . . what had happened between him and [Hopson] and he . . . pulled up his shirt and he showed me his scars of what happened and he was telling me that he made his mama cry and how he almost died twice and whenever he seen him he was going to get him. He . . . didn't threaten me in any kind of way. Asked whether Sykes actually used the term "kill," Anderson stated, "I know he told me he was going to get him. I'm assuming that meant kill him because that's what happened." Anderson did not contact the police after Sykes threatened to kill Hopson. She stated, "He didn't threaten me so I didn't feel a need to call them."

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Following the victim's death, Anderson went to the police station and identified Sykes as the shooter from a photographic lineup. Anderson did not see Hopson with a gun that night or before he was killed. When asked whether a struggle occurred between Hopson and Sykes, Anderson responded, "No. They didn't touch each other at all." On crossexamination, Anderson testified that Hopson was shot inside the neighbor's apartment. She said it was right across the hall from her apartment. Anderson described the neighbor's apartment as being really dark. Anderson's mother came into the neighbor's apartment when the last shot was fired. Her mother told Sykes not to shoot again and Sykes walked out of the apartment. Anderson's mother then called 911. Aretha Williams, Anderson's mother, had known Hopson for approximately two-anda-half years, and they had a good relationship. Williams said Hopson came to the door of her apartment before 12:00 a.m. on April 7, 2007. Williams opened the door and hugged Hopson. She said Anderson went outside to speak with Hopson and she went back into her apartment. By the time she got to the middle of the floor, she heard a gunshot. Williams immediately ran outside, entered the neighbor's apartment, and observed Anderson, Hopson, and Sykes. She stated: [Hopson] was pulling my daughter in front of him and like every time she would jerk off from [him], [Sykes] would shoot and [Sykes] hollered, "Let her go. Let her go," and I said, "Don't shoot him no more." And I backed out the door. [Sykes] came to me, walked right here to the side of the stairwell, looked at me, and then proceeded to go down the stairs. Williams observed Sykes fire two or three shots while she was in the neighbor's apartment. She testified that Sykes used a black gun and wore black pants and a black hooded sweatshirt. Williams said she immediately recognized Sykes. She was later taken to police headquarters and identified Sykes from a photographic lineup. Williams testified that she had no doubt that Sykes was the shooter. Two weeks before the shooting, Williams met Sykes. He came to her apartment looking for Hopson. Williams recalled: [Sykes] came and he knocked on my door and he asked was [Hopson] there . . . and I said, "Yeah. He in there." Well, he said, "You tell him to come out here and fight me now. Won't nothing happen to him. It will just be squashed, but if he don't, I'm going to kill him."

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Williams did not see Sykes again until the shooting. Tori Davis testified that she dated Sykes for six years; however, they were not dating at the time of the offense. Sykes came to her apartment unannounced in the early morning hours of April 7, 2007. Davis's apartment was within walking distance of Anderson's apartment. Davis testified that Sykes was inside of her apartment for a brief period of time. He then went outside to smoke a cigarette. Davis said Sykes left the apartment after smoking the cigarette without saying where he was going. About ten minutes later, Davis heard gunshots. Davis initially remained inside the apartment but went outside after the shooting stopped. Sykes approached her apartment by foot, and he told her to go inside. Davis and Sykes went into the apartment. Sykes wore dark blue pants, a blue shirt, and a black leather jacket. The State introduced a pair of blue pants, a blue shirt, and a black jacket as exhibits. Davis identified these items as the clothes worn by Sykes. Davis testified that Sykes took off these clothes when he entered her apartment. He placed them in a bag. Sykes stayed at her apartment for a brief period before leaving. Davis said the police showed up at her apartment sometime later. Davis testified that the police were given consent to search and found a gun in the apartment. On cross-examination, Davis testified that she was not aware of the past problems between Sykes and Hopson. She did know that Sykes had been shot. Jean Dandridge, Sykes's girlfriend at the time of the offense, was at work when the shooting occurred. Her shift was from 10:30 p.m. to 6:30 a.m. Her son, Tracy Beavers, was at home during her shift. At around 1:00 to 1:30 a.m., Dandridge called home to check on Beavers. Beavers answered the phone and explained that Sykes was at the house. Dandridge testified that Sykes was asleep when she returned home from work at about 7:30 a.m. Later that morning, Sykes received a phone call from one of his friends. The friend said Hopson was killed. Dandridge asked Sykes if he knew what happened. He denied having any knowledge about the killing. Dandridge said later that evening, Sykes changed his story about the extent of his contact with Hopson. Sykes admitted to having an altercation with Hopson on the night of the offense and claimed that he tried to scare Hopson by shooting his gun up in the air. However, Sykes denied shooting Hopson and cried while describing the altercation. She acknowledged that Sykes previously talked about how he wanted to kill Hopson. Dandridge had seen Sykes with a silver gun in the past. Dandridge testified that when she came home from work, she heard Sykes tell Beavers to get a garbage bag. Later, she noticed a leather jacket in the garbage bag. Dandridge had Beavers take the garbage bag to a dumpster. Dandridge said she asked Sykes about the garbage bag, and he told her that it contained "some clothes that he didn't need anymore." Dandridge testified that Sykes had a conversation with Beavers regarding Sykes's -4-

whereabouts on April 7, 2007. She stated, "[Sykes] told my son Tracy that if anybody asked, that he was home at my house all night." Dandridge said Sykes claimed he left a weapon at the house of someone named DeShawn. Dandridge testified that Sykes was not a violent person. Tracy Beavers, Dandridge's nineteen-year-old son, testified that he was at home with Sykes on the night of the offense. He said Sykes left the apartment at around midnight without saying where he was going. Sykes wore a black hooded sweatshirt, black pants, and a black jacket. Beavers did not see Sykes in possession of a weapon. He had seen a gun in the trunk of his mother's car about two or three weeks before the shooting. Beavers testified that on the morning after the shooting, Sykes told him to grab a black trash bag. Sykes later gave him a trash bag with something in it, but Beavers did not look to see what was inside. He said Sykes told him to get rid of the trash bag. Beavers ultimately rode with Dandridge and Sykes to a dumpster where they dropped off the trash bag. Beavers said Sykes repeatedly told him to remember everything that happened on the night before because it was important. Sykes did not give specific instructions on what to say. Beavers was asked about the statement he gave to the police. In the statement, he described Sykes's gun as silver with a brown handle. Sergeant Kevin Lundy of the Memphis Police Department testified that he was the case coordinator for the murder investigation. On the morning after the shooting, Sergeant Lundy went to Davis's apartment. Davis initially denied having seen Sykes for a week. She eventually acknowledged that Sykes came to her apartment on the night of the shooting and changed clothes. Sergeant Lundy obtained consent to search the apartment and found a revolver. The revolver contained one live round and four spent shell casings. During the investigation, Sergeant Lundy also met Dandridge and Beavers. They directed Sergeant Lundy to a dumpster where Dandridge had thrown a black plastic bag. Sergeant Lundy said the bag contained a black leather jacket and a black hooded sweatshirt. On cross-examination, the defense questioned Sergeant Lundy about an incident report prepared by one of the first responding officers. The report contains Williams's description of the perpetrator. Williams described the perpetrator as "an unknown black man wearing a dark hooded jacket, dark pants, armed with a black handgun." Sergeant Lundy said the report indicates that the first responding officer also spoke with Anderson. Anderson reportedly stated that "she was inside [the neighbor's apartment]. She heard shots then opened the door. The victim Hopson fell to the floor in the doorway." Sergeant Lundy was asked about an affidavit of complaint that he signed. He read the following passage from the affidavit: "After further investigation defendant gave a statement of admission, that led to the recovering of the weapon and the clothes that were worn during the shooting." Sergeant Lundy testified that he did not test Anderson's clothes for residue. -5-

Agent Steve Scott of the Tennessee Bureau of Investigation (TBI) testified that he was assigned to the firearms identification unit. He examined the revolver and cartridge cases found at Davis's apartment. Agent Scott also examined a bullet recovered from the apartment where Hopson was killed and three bullets recovered from Hopson. Agent Scott testified that the four cartridge cases could have been fired from the revolver. He stated, however, that this finding was not conclusive. Agent Scott testified that the bullet recovered at the crime scene was fired from the revolver. He said the three bullets recovered from the victim's body were also fired from the revolver. Dr. Miguel Laboy, an assistant medical examiner for Shelby County, performed the autopsy of Hopson. Dr. Laboy said the autopsy revealed one gunshot wound to the chest, one gunshot wound to the abdomen, three gunshot wounds to the back, and one gunshot wound to the right arm. Dr. Laboy examined the clothing worn by Hopson. He saw no powder residue on the clothing or powder stippling on the body. Dr. Laboy said residue or stippling would have indicated that the gunshots were fired from close range. On cross-examination, Dr. Laboy acknowledged that he did not run any tests on Hopson's clothes. The defense proof began with Michael Spencer, the communications supervisor for the Memphis Police Department. Spencer was responsible for the 911 recordings for the City of Memphis. The 911 call from Anderson's apartment was introduced as an exhibit and played for the jury. During the call, Williams repeatedly stated that she did not know the identity of the shooter. Officer Samuel McMine of the Memphis Police Department testified that he responded to the scene of the offense and spoke to Anderson for the purpose of getting a description of the suspect. Officer McMine said Anderson described the perpetrator as "an unknown male wearing dark clothing." Anderson also reported that the perpetrator had a black gun. Sykes testified that he was at Dandridge's home on the evening of April 6, 2007. Dandridge was at work, and he was watching her children. Sykes said he put the children to bed at about 11:30 p.m. and left Dandridge's home after receiving a phone call from an associate. The associate lived in the same apartment building as Anderson. Sykes began walking towards the meeting point at about 12:30 or 12:45 a.m. Sykes testified that he was walking across the street when he noticed a vehicle coming directly towards him which forced him to go back to the street curb. He decided to stop at Davis's apartment, which was "directly next door" to the associate's apartment building. Sykes was at Davis's apartment for a brief period of time. He left the apartment and walked towards the associate's apartment building.

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Upon arrival, Sykes noticed the vehicle that previously ran him off the street. He thought it belonged to his associate and started walking towards the associate's apartment. He asked an individual standing inside of an open apartment if he knew who owned the vehicle in the parking lot. Sykes did not hear a response, so he kept walking. He then heard a familiar voice, turned, and saw Hopson standing at the threshold of the door. Sykes said Hopson lifted up his shirt and reached for his waist. Sykes grabbed Hopson, and they started wrestling. Sykes testified that Hopson's gun fell to the ground. At that time, Sykes reached for his own gun and shot Hopson. Sykes fired three or four shots, hitting Hopson twice. Sykes testified that he then left the apartment building and went back to Davis's apartment. He took off his clothes and placed them in a bag. Sykes said he also put the gun in the bag. Sykes left Davis's apartment and called Dandridge. He told Dandridge what happened, and she told him to go to her house. Sykes said he did not mean to harm Hopson. Sykes testified that he went to the police department at about 11:00 a.m. on the morning after the shooting to determine if there was a warrant for his arrest. Sykes testified that he admitted to an officer that he shot somebody the previous night. Sykes claimed he was told to go home and wait for the police to contact him. Sykes returned to Dandridge's home and received a phone call from the police at about 1:30 p.m. Sykes went back to the police department and was questioned by the police. He said he gave two statements. Sykes claimed the first statement was truthful and that he changed his version of the facts in the second statement because the police threatened to "lock up" Dandridge and Davis. Sykes admitted that he threw his clothes in a dumpster after the shooting. He testified that Anderson was not present when he shot Hopson and denied telling anyone that he was going to kill Hopson. He claimed he moved to Frayser after he was shot by Hopson because he thought Hopson was going to kill him. He stated that Hopson would drive past his house and point his gun out of his car window. In talking with the police, Sykes said he tried to create an alibi defense because he was scared. On cross-examination, Sykes admitted that he purchased a gun after he was shot by Hopson. Sykes conceded that he was armed when he encountered Hopson at the apartment building and that he left his gun at Davis's apartment. Sykes testified that he shot Hopson four times and denied trying to use Beavers as an alibi. Sykes said he wore a black leather jacket and blue pants on the night of the offense. He claimed no one else was present when he shot Hopson. Sykes stated, however, that he saw Anderson before the shooting began and that Anderson was standing near the door of the neighbor's apartment. Following the proof at trial, the jury convicted Sykes of first degree premeditated murder. He filed a motion for new trial, which was denied. Sykes then filed a timely notice of appeal. -7-

ANALYSIS I. Instruction for Premeditation. Sykes raises two arguments based on the special jury instruction that listed factors indicative of premeditation. First, Sykes claims the presence of these factors unduly suggested that the murder was premeditated. He asserts: [T]he charge incorporated facts that had been unquestionably testified to: procurement of a weapon, the use of a deadly weapon upon an unarmed victim, the secretion of evidence, and calmness after the killing. The charge essentially instructed the jury concerning the factual conclusion

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