Appellate panel hears challenge to Gregory Livingston’s first-degree murder conviction over autopsy testimony and sufficiency of evidence

Barry ****, an attorney with the Shelby County Public Defender's Office, told the court he represents appellant Gregory Livingston and urged reversal of Livingston’s first-degree murder conviction.

Defense counsel said video shows the victim repeatedly leave and re-enter a vehicle at a Kroger store, advance on Livingston while holding a beer can, ignore a gunpoint warning, and then be shot. He argued the jury’s verdict on murder in the first degree cannot stand because (1) the admission of testimony by Dr. Ross recounting autopsy findings performed by Dr. Collier violates the confrontation clause under Smith v. Arizona; (2) the evidence does not support premeditation; and (3) comments in the prosecutor’s rebuttal that referred to the victim’s girlfriend’s emotional reaction were prejudicial.

Ronald Coleman, for the state, urged the court to affirm. Coleman said the video and multiple eyewitnesses show the victim approached Livingston, the defendant drew a gun, warned the victim and fired within roughly one second. The state argued that defense counsel waived contemporaneous objections to the autopsy-related testimony and body-camera evidence, making the claim subject only to plain-error review, which Coleman said the defense cannot meet. The state also said the defendant’s statement reported at trial that he had previously told others “I’ve killed 4 other people” was admitted to show mindset and rebut a self-defense claim, not as substantive proof of other killings.

On the confrontation claim, defense counsel relied on Smith v. Arizona and Griffin v. Kentucky, arguing that where one expert (Dr. Ross) recounts the findings of another (Dr. Collier), the confrontation clause may be implicated and warrant a new trial. The state responded that Smith focused on hearsay and expressly left some confrontation issues unresolved, and that Tennessee precedent (State v. Hutchinson) and the trial record support the trial court’s rulings. The state emphasized that the defense affirmatively sought admission of the full autopsy lab material at trial, which the state characterized as a strategic choice that waives reversal except for plain error.

On sufficiency and premeditation, defense counsel argued the record lacked evidence of calm, considered premeditation and that the shooting arose from passion and immediate danger; counsel asked the court to reverse the first-degree conviction or, alternatively, remand for retrial on lesser-included offenses. The state countered that jurors could reasonably infer premeditation from the defendant’s conduct, his assumption of a shooter’s stance, his warning, and the short interval between warning and the shot, and argued appellate courts should not reweigh credibility or overturn the jury’s verdict.

During argument, the panel asked multiple questions about the plain-error standard, the timing in which premeditation can form, and whether the autopsy testimony was the product of waiver or strategic trial choice. Counsel for both sides addressed those points and cited controlling and recent case law (including Smith v. Arizona, Williams v. Illinois, Griffin v. Kentucky, and State v. Hutchinson) in support of their positions.

The court took the case under advisement.