State v. Pyburn8/16/2004
I. Factual Background
At trial, Alice Rheal, the victim's grandmother, testified that when the victim was young, he lived in foster care. However, upon turning eighteen years old, the victim moved to Alabama to live with his mother. Around Thanksgiving of 2000, the victim returned to Tennessee to live with the appellant, his natural father. Mrs. Rheal related that shortly after 7:00 p.m. on January 7, 2001, the victim telephoned and asked her "to come and get him." According to Mrs. Rheal, the victim sounded upset and angry. Mrs. Rheal agreed to pick the victim up at his father's residence, but never again saw him alive.
Virginia Moore testified that the appellant and the victim lived with Moore's sister, Kathy Baggett, and Baggett's daughter, in a mobile home at the Jesse James Trailer Park. On January 7, 2001, Moore was at home with her husband when the appellant and the victim came to visit. The appellant, the victim, and Moore's husband went into another room to drink beer and play pool. Subsequently, the victim informed the appellant that he was ready to leave. The appellant told the victim to go outside and "warm up the car." When the victim went outside, the appellant sat down to watch television with Moore. Shortly thereafter, the victim came inside and asked, "Dad, are you ready to go?" The appellant replied that he was not yet ready and told the victim that he should wait in the car. The victim returned to the car. When the victim came back into Moore's residence, the appellant cursed, and he and the victim left.
Approximately fifteen minutes later, Moore telephoned the appellant at home. The appellant told Moore that he and the victim "w into it." The appellant informed Moore that he had told the victim to leave, but the victim refused. The appellant told Moore he was "fixing to kill the little MF." According to Moore, the appellant then laid the telephone down, and she hung up her telephone.
Shortly thereafter, the appellant telephoned Moore and told her that he had killed the victim. The appellant claimed to have shot the victim between the eyes. Moore testified that the appellant began to cry, and she told him to call 911. The appellant refused, saying, "No, he's dead." Moore again told the appellant to call 911, but the appellant refused, saying, "No, I'll go to jail." Finally, Moore told the appellant that she would call 911.
After hanging up her telephone, Moore immediately called 911. Five minutes later, the appellant telephoned Moore to ask if she had called 911. Moore replied that she had spoken to a 911 operator who was going to telephone the appellant. Moore testified that while she was on the telephone with the appellant, the appellant's telephone "beep ," indicating another call. Moore told the appellant, " lease answer the beep, it's 911." The appellant reluctantly agreed to speak to the 911 operator.
On cross-examination, Moore conceded that when interviewed by Allan Weeks, an investigator with the district attorney general's office, she did not mention that the appellant had ordered the victim to leave or that the appellant had said, "I'm fixing to kill the little MF." However, Moore claimed that directly after the incident, she was "in shock." Moore stated that she informed Weeks that the appellant had intended only to frighten the victim and that she had overheard the victim making comments in the background.
Carolyn Keahey, a 911 operator in Marion County, testified that on the afternoon of January 7, 2001, she received a call from a telephone number listed as belonging to Virginia Moore. Moore reported that the appellant had shot his son. Moore provided Keahey with the appellant's tel
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