State of Tennessee v. Jessie Dotson

STATE of Tennessee

Jessie DOTSON. Tennessee,

Supreme Court of

at Jackson.

April 2014 Session.

Sept. 2014.

H hearing on the attempted first degree convictions, murder the trial court classi- fied the Range defendant as a II multiple offender, imposed a forty-year sentence conviction, for each and ordered these sen- tences served consecutively to each other and to the death sentences. The defen- Morris, Nashville, Tennessee, Kathleen appealed, dant and the Court of Criminal McAfee, Marty Memphis, Brett Ten- Appeals affirmed his convictions and sen- nessee, appellant, for the Jessie Dotson. tences. After the case was docketed in Jr., Cooper, Attorney Robert E. General Court, this we entered an order identifying Whalen, Reporter; Joseph Acting F. five for argument,1 issues oral in addition General; Zentner, Jeffrey Solicitor Dean to the mandatory review Tennessee Code General; Attorney Assistant Amy P. Wei- 39-13-206(c)(l) (2014) Annotated section rich, General; Attorney District Damon requires this Court to perform. We now Griffin, Henderson, Reginald and Ray- (1) hold that: admission of the defendant’s Lepone, mond Assistant Attorneys District custodial statements does not constitute General, for appellee, State of Tennes- (2) error; plain admission of testimony see. regarding the defendant’s invocation of his right to counsel deprive did not the defen- OPINION dant of a fair trial or violate right his CLARK, J., CORNELIA A. delivered (3) due process; testimony admission of Court, opinion of the in which GARY about a surviving victim’s statements to WADE, C.J., R. and JANICE M. parties third did not violate the defen- HOLDER, J., joined. dant’s state and federal right constitutional jury defendant,

A (4) convicted the him; Jessie to confront the against witnesses Dotson, premeditated of six counts of first admission of testimony regarding the de- degree brother, murder for killing his history fendant’s of imprisonment did not adults, (5) three other trial; two of his brother’s violate right to a fair minor sons at Memphis, their Tennessee admission of the pathologist’s testimony jury home. The also convicted the defen- about autopsies pathologist per- another dant of three counts of attempted first formed did not violate the defendant’s fed- degree murder attacking with kitchen eral and state constitutional right to con- knives and wooden boards three against more of front the witnesses him. We also hold, his brother’s minor children who were also in accordance with section 39-13- (1) present 206(c)(1), in the home. At the conclusion of that: the sentences of death trial, penalty phase fashion; the jury imposed any were not arbitrary (2) imposed death sentences for the six first supports jury’s evidence find- convictions, degree murder finding ings the aggravating circumstances multiple aggravating doubt; ap- proven beyond circumstances a reasonable (3) plicable to each outweighed conviction supports jury’s the evidence find- mitigating beyond circumstances ings degree reason- that as to each first murder able separate doubt. At a sentencing aggravating conviction the circumstances setting 1. "Prior argument, to the of oral designating enter an order those issues it Court shall argument.” review the record and briefs and wishes addressed at oral Tenn. assigned. may Sup.Ct. consider all errors The Court R. 12.2. father, with their Memphis circumstances be- and worked mitigating

outweighed (“Jessie (4) Sr.”), doubt; paint- Jessie Dotson Sr. and sen- reasonable yond a in er. The defendant had moved are neither excessive nor death tences of August upon Nicole in his release in penalty imposed to the disproportionate family The defendant’s re- prison. cases, considering both the nature similar ferred to him as “Junior.” Accord- and the defendant. of the crimes the trial court and judgments of ingly, the Sr., 1, 2008, Saturday, March Jessie On Appeals upholding of Criminal Court defendant, Waddell, and William Ce- degree convictions of first the defendant’s brother, half also cil’s and defendant’s murder attempted degree first murder and “Fat,” known as went to Cecil’s Lester years forty of death and are and sentences Street home to watch a televised Universi- respect spe- affirmed. With issues ty Memphis game basketball with him.3 herein, affirm the cifically addressed we and the five children were Ms. Williams Appeals the Court of Criminal decision of during this time.4 present also at home thereof in an portions include relevant and game was unable to watch the group opinion. to this appendix television could not receive because Cecil’s the broadcast. Jessie Sr. left house Cecil’s Background I. Factual p.m., around 6:00 or 6:30 and as he was leaving, porch cleaning he saw Cecil on the A. Guilt Phase grill preparing his to barbecue. He Discovery 1. Scene Crime again did not see Cecil or defendant Initial Investigation again never saw alive. night Cecil phase at proof guilt offered Mr. left Cecil’s home at 10:30 or Waddell left, trial established that the defendant’s p.m., 11:00 and when he Cecil was still Dotson, 2008, thirty-year-old March Cecil alive. children, (“Cecil”),2 ranging five Sr. Cecil’s Sr. arrived at Nicole’s When Jessie months, years age from nine to two apartment morning, Sunday, the next Williams, twenty-seven- Marissa Cecil’s 2, 2008, pick up March the defendant for four

year-old fiancee and the mother of of work, there, the defendant was not children, were a home living his at located Nicole did not know where he was. Jessie Memphis, Street in Tennes- at Lester Sr. asked Nicole to tell the defendant to They living had been in the home for see. job. if keep contact him he wanted to as a five or six months. Cecil worked evening, Later that the defendant called man at an apartment complex maintenance explained Jessie Sr. and that he had not in Memphis. Jones, girlfriend, called because his Sheila phone they The defendant —Cecil’s brother —lived had hidden his cell after ar- sister, (“Nicole”), why gued. explain with their Nicole Dotson The defendant did not Village in her he had work. When the apartment Goodwill missed defendant names, clarity, given we or abbrevi- 3. had the 2.For use Mr. Waddell same mother as the names, given referring ated forms of when Cecil. defendant and victims and witnesses who share the same surname with other victims and witnesses 4. The five children included Ms. Williams’s vic- defendant. Use of the child and/or C.J., Cedrick, children with Cem- four Cecil— given compromise tims’ names their does not II, Ceniyah ario and well as Cecil Erica —as privacy because the record reflects that the Smith's child with Cecil. surviving changed children’s surnames after these crimes were committed. two-year-old Waddell dinner that eve- and Mr. went to Shindri Roberson. All ap- if the defendant Mr. ning, asked Waddell peared have sustained multiple gunshot pick up Cecil. Mr. Waddell had wanted wounds. Officer did Davis not check for called Cecil numerous times March 2nd signs vital because it was obvious to him him, they had not so but reached did not they were deceased. go by the Lester Street home. Davis, Officer along with two other offi- 3, 2008, day, Monday, The next March cers, house, continued through search- rode to work with Jessie Sr. for ing survivors and perpetrators, while a.m., stopped 8:00 they around but work- another officer secured front door. 11:00 a.m. ing at due to rain. Later that Officer Davis throughout noticed blood Sr., day, same the defendant called Jessie house, but none of appeared it to be fresh. him telling that Nicole wanted him to drive Officer Davis saw someone in the hallway Smith, house Ms. by Cecil’s because bathroom nine-year-old and discovered II, of two-year-old mother Cecil’s son Cecil inC.J. bathtub with knife stuck in wrong. something feared was Ms. Smith head. his Officer first Davis believed that been unable by had to reach Cecil tele- C.J. was deceased then but noticed the since the phone very early morning hours eyes child’s twitch. alerting After others 2, 2008, Sunday, March and no one had survivor, he had found a Officer Davis answered door at the Lester Street clearing continued the home. home when she p.m. knocked around 3:00 day. that Ms. Smith said door was In bedroom on the left side of the partially open, and the was playing, radio (“bedroom two”), hallway Officer Davis did not anyone but she see or hear the Cemario, four-year-old discovered who was children, although she see the could televi- (“bedroom In deceased. another bedroom just sion inside the and the photo- door one”), Officer two-year- Davis discovered on the graphs wall across the door. Cedrick, II five-year-old old Cecil both 3rd, morning On the of March Ms. Smith whom appeared deceased to Officer that up discovered Cecil had not shown Meanwhile, Davis. another officer located and that

work his relatives had not heard alive, Ceniyah, two-month-old who was still She by from him. still could not reach him and carried her out of the house.5 The telephone. When she Mr. called Waddell just Memphis officers exited as Fire De- expressing at work numerous times her arrived, partment personnel and Officer concerns, he call police. told her to let Davis them know a survivor had been police She took advice called the found the bathroom. early evening and waited outside the Lester Street home for them arrive. Firefighter Vosburgh Jason testified he “could smell the blood in the air”

Officer Randall arrived first. Davis As house, he approached when describing door, he walked in the front he could thick, spoiled “[a] it as smell like it had the dead “smell bodies.” storm door closed, there Firefighter but been a while.” was door was par- interior open, emergency tially person’s and he see a medical technician Daniel could that, lying although foot on the Entering floor inside. Moore testified he was in- door, the front Officer Davis discovered structed to check the adult victims for bodies, life, Cecil, signs actually four adult later as identified did not touch them Williams, Seals, Ms. Hollis and twenty- because it was to him they obvious part Ceniyah 5. The record does not in which indicate house found. so, they To do victims were deceased. explained Mr. Moore deceased. just pulse victim to check for a at them and touched each looking

“Ijjust ECG, with all the which that was there ran an signs scene vital horrific other it was obvious that everything, and affix clothing to move required blood them He for a while.” been down they clothing strips. They returned ECG “definitely old.” the blood described they finished. when original position to its the blood on Mr. McDevitt noticed Vosburgh paramedic and a Mr. When dry. to be appeared victim each one, they discovered bedroom entered deceased, that, II was Ce- although Cecil Meanwhile, Department Police Memphis alive, him they so carried still drick was lieu- Toney Armstrong, a Deputy Director During this ambulance. to an outside at the the Homicide Bureau tenant "with an- time, Vosburgh was informed that Mr. occurred, learned of these murders time in the other victim was other deceased Lieutenant Wal- homicides. He called inside, Mr. he returned bedroom. When home, assigned him to ter Davidson6 Moore were summoned Vosburgh and Mr. investiga- on the serve as case coordinator bathroom, firefighter where Herbert to the tion, go him to to the scene. and instructed re- attending They to C.J. Henley was per- that six He told Lieutenant Davidson and trans- from the bathtub moved C.J. three murdered and that sons had been outside. Mr. him to an ambulance ported injured children were on their severely cuts on C.J.’s face Henley seeing recalled hospital expected and not way to of the sticking blade” out and a “sawzall identity of the knowing Not survive. head. He described the bath- top of his any wanting prevent and perpetrator every- “blood as “a mess” with room family, Di- Deputy attacks on the further Moore testified that when he where.” Mr. Armstrong and Lieutenant David- rector bloody entered the Vosburgh Mr. and quarantine surviving son decided to bathroom, “turned his head and C.J. hospital and not release children at the most thing we saw was one of next Officers of the Tactical their identities. seen, I’ve ever it was a things horrible children, assigned guard were Unit it embedded in his skull and knife stuck relatives, prevented the quarantine absolutely it just was stuck there. And media, other than medi- everyone thing my I’ve ever seen life.” the worst police personnel ap- cal personnel knife, Mr. In to the embedded addition Armstrong proved by Deputy Director puncture wounds on Moore observed C.J.’s family contact with them. No having multiple superficial cuts to abdomen and with the members were allowed contact neck. through March 3rd March children from By firefighter paramedic the time 8th. scene, Patrick McDevitt reached the Homi- Sergeant Anthony Mullins of already been re- surviving victims had Deputy cide Bureau was at the scene when way hospi- their to the moved and were on Armstrong Director and Lieutenant partner tal. Mr. McDevitt and his were After he had walked confirming remaining tasked with that the Davidson arrived.7 investigation, p.m., and 7:30 a film crew from 6. At the time of the Lieutenant 6:30 show, already sergeant on in the Homicide television The First Davidson was they Department. Memphis Police site. Both of these officers testified Bureau of preferred to allow the film would have not scene; however, they had Armstrong to the Deputy 7. When .Director and Lieu- crew access so, authority they have to do nor did tenant arrived at the scene between no Davidson found, Armstrong through the were Deputy Director officers located spent bul- provided living cushion, an overview lets in the room on the house and sofa scene, ob- on Sergeant top piece plastic crime Mullins left and of a from a window conditioner, he re- warrant. When unit air tained a search the floor under Cecil, sofa, evening, the warrant later that turned with under the inside the arm of the sofa, cushions, the home and col- two began officers entered between sofa seat sofa, located in the immedi- the wall lecting any evidence behind and in the east vicinity living ate of the deceased victims’ bodies. wall of the room. By completed, this work had been time Shell casings also found in the the medical examiner and seven others living room. Officers recovered two nine- Shelby County from the Medical Examin- three millimeter and .380 caliber shell cas- By er’s Office had arrived at the scene. ings on the floor. When officers moved a 4, 2008, March 2:30 a.m. on the deceased seat, jacket they on the love found a sealed

victims’ had been bodies removed Ziploc bag that contained eleven more morgue. Sergeant were en route to the nine-millimeter and five more .380 spent the officers him left a assisting Mullins and casings. Sergeant shell Mullins concluded later, but a short time officer uniformed person persons that the responsible for to secure the Ser- remained behind scene. the crimes had collected the spent shell and the geant process- Mullins crime scene casings shootings, after the intending to ing team returned between 10:30 and 11:30 remove them from the scene. a.m. on March 4th and their continued Sergeant Mullins believed that all of the work. adult staged victims’ bodies were moved or gener- at trial Testifying expert as an in shooting. after body the Cecil’s was locat- investigation al crime scene and bloodstain kneeling position ed in a in front of the pattern analysis, Sergeant de- Mullins sofa, with on a his torso sofa cushion near Lester scribed the Street crime scene as met, a seam two cushions bag where and a the horrific and worst he had ever worked. his marijuana in left hand. had Cecil room, living The into which the door front gunshot sustained several wounds includ- small, opened, very only with was between ing the front body, several to of his to one five feet of space and ten available around neck, foot, his the bottom one to of his the and the four furniture bodies of the legs. several to his lower Fibers collected home, said, adult victims. was from chin and mouth Cecil’s were consis- dirty and cluttered. He found evidence tent pillow having placed with a been over that the crime been indicating scene had shot, his face when he was police in- staged, complicated which further through in the pillow living found room vestigation. passed. which a had gun bullet used

All adult legs gun of the victims had sustained to shoot Cecil’s differed wounds, multiple except gunshot Sergeant and all used to shoot neck. Mullins sequence Mr. Seals had been shot at least once could not determine guns leg. gunshot Two were used in the shoot- to legs, wounds Cecil’s but he ing nine-millimeter a .380 several of may caliber— believed that them have —a gun although neither was found at been close to or inflicted after Cecil’s guns scene Although or thereafter. death. authority approved tell the film crew when film or for the all [had] The First 48 to have footage. Deputy dispose privileges go

how to of the film all of the access out on Armstrong explained City Director that us.” homicides with ''[t]he body staged also had been after opined that Cecil’s berson’s

Sergeant Mullins pulled had been staged shooting after and that she positioned and body had been the sofa to the floor near the time of Mullins believed from shooting. Sergeant clothing her her then his attacker or after death and likely facing that was Cecil fired, altered. Little blood was found on the explaining was the first shot when nearby body, floor beneath her but a sofa gunshot wounds to had several that Cecil very coagu- was stained with thick body, which he would not cushion of his the front blood, Sergeant which Mullins de- kneeling he been with lated have sustained type with the of blood at the time of scribed as consistent resting on the sofa his torso gunshot that would occur from a Sergeant Mullins also be- loss shooting. sustained to had been wound like Ms. Roberson bag marijuana lieved hand, leg. pants that the her Ms. Roberson’s were also explaining placed Cecil’s blood, and bullet holes in would have saturated bag large was so Cecil pants corresponded it her to the location of fingers to close his around been unable gunshot legs, indicating wounds to her dropped have it had he been and would covering during shooting pants legs or while that her her holding it pulled was shot and were down to flee or defend himself. when she attempting bag afterwards. The of crack cocaine also twelve-gauge A loaded sawed-off shot- part staging, to be of the as it appeared clothing on a in the gun was found stack only slightly touching ap- her and room, living a little more corner body. peared placed to have been on her body. length than an arm’s from Cecil’s ammuni- On the floor beneath and around Ms. shotgun Five more live rounds of body appeared found under the sofa. DNA Roberson’s were items that tion were Mullins emptied to have been testing Sergeant of blood found on the end of the purse, although from a he did not locate an shotgun barrel revealed two-month- Ceniyah empty purse was a minor contributor of the the room. These items old Mullins, evidence, According Sergeant the were not collected as and Ser- blood. any shotgun geant seeing barrel indicated that Mullins could not recall blood identification, positioned atop clothing type although the of he did re- gun the was shooting, spat- seeing phone no blood call Ms. Roberson’s cell after the because any clothing photos among ter was found on of the be- these items. Three hairs gun right the the were collected from Ms. gun neath the blood on Roberson’s body victim was found belonged leg, thigh, to a whose and buttocks and sent to the Investigation of the home. Federal Bureau of for test- part another ing. Considering dirty condition of body Ms. Roberson’s was located in a through home and the considerable traffic floor, on the with her back position seated months, during previous Sergeant it sofa, extended, legs her and her signifi- Mullins did not view the hairs as side, between head to the sofa and opined they easily cant and could have pulled up, expos- loveseat. Her shirt was body adhered to her when it was moved. breasts, ing pants pulled her and her were down, body Sergeant her lower her Mullins believed that Ms. exposing from too, plastic bag body, positioned waist to her knees. A clear Williams’s had been body containing appeared shooting. what to be between after the Ms. Williams’s floor, three slumped and five rocks of crack cocaine was was located on the over Roberson, portion vagina. legs posi- found on the outer of her onto Ms. with her He Sergeant legs. Mullins concluded that Ms. Ro- tioned across Ms. Roberson’s out, however, that pointed carpet Sergeant was Mullins testified that all of the opposite on the side of the sharp bloodstained force and blunt force injuries sus- way leaning. Additionally, she was Ms. by tained the deceased and surviving chil- legs lying were Ro- Williams’s across Ms. dren were with inflicted kitchen knives and legs, indicating berson’s that Ms. wooden the perpetrator boards found in body staged Williams’s had been Ms. Sergeant the home. pointed Mullins out after body Roberson’s had been on positioned that officers discovered a gray plastic sil- the floor. tray verware overturned on the floor the kitchen did but not recover an intact Sergeant Mullins Mr. testified that total, set of kitchen knives. In officers body Seals’s was located across from the found five knife blades throughout front door and near the connecting door home, including blade that was lodged However, living the kitchen and the room. in C.J.’s “Farberware,” head. word a body Mr. Seals’s was not en- upon visible knives, brand of kitchen was printed tering the home because a large television one of the two blades in- recovered from blocked the view across the room. living side the bathtub. Officers also recovered Mr. was wearing Seals a black shirt one intact handle knife and what appeared pants. pants pulled black His were down to be broken pieces another knife han- cup below his knees. A a and wallet Sergeant dle. Mullins believed the perpe- body, found near his purse was a trator removed knife handles from the inside, the contents which identi- was later blades after the assaults. Officers found belonging fied as to Ms. Williams. Inside bloodstained and broken pieces of wood kitchen, just beyond body, Mr. Seals’s various places, including the hallway, the spent officers a projectile discovered under bathroom, and bedrooms. According wall, a table and defect in the kitchen Mullins, Sergeant the perpetrator’s use which appeared to have been made guns, knives, and boards already present gunfire living room. in the home demonstrated the perpetra- Although Sergeant Mullins believed that familiarity tor’s with the home. Mr. Seals was shot in the area where he found, opined that Mr. Seals’s spatter Officers found blood throughout clothing body home, were altered after the according Sergeant Mul- pointed lins, He shooting. out that pool amount large of blood spatter carpet body blood on the near Mr. Seals’s found the bathroom and bedrooms one had a “void” in it—an area where the and two was consistent prolonged with a carpet was not indicating struggle” “one-on-one rather than a more bloodstained— something had been covering rapid the un- execution children. He noted carpet floor, stained area of pool mat, when the blood that the the bathroom bath the carpet bathtub, formed. The was bloodstained on area around the and the outside opposite the side body of Mr. as Seals’s and inside of the toilet were stained with bloodstains, well. on the Based the dis- A blood. substantial amount of blood had them, tance bathtub, between and the of pooled location inside the where C.J. was other, legs Mr. one atop bloody Seals’s the Ser- found. partial palm print, A later geant Cemario, Mullins believed that Mr. Seals’s matched to was on found the tile body have may originally been in the lying wall of the Sergeant bathroom. Mullins area of the “void” and may have been palm print described the as a transfer stain, rolled from area when his pants which from a bloody object results pulled down and his body wallet or part coming removed. into contact with and strikes

transferring object onto another surface or which occurs when an a blood bloody surface. Toward the bottom the object. toilet, a he observed blood transfer stain. identified “cast-off’ Sergeant Mullins Mullins also Sergeant noticed blood on the wall stain bathroom patterns blood above, hitting had dripped down from pattern pro- This the toilet tank. is over running toilet tank and down inside the duced, that has he when blood explained, particu- He that this toilet bowl. testified weapon or object used adhered an likely lar was ac- pattern produced off person multiple a times is cast strike tively bleeding victim above the positioned during object weapon or the attack and pattern He that the toilet tank. testified object. Sergeant a nearby onto surface dissipated had been or someone by water the cast-off on spatter Mullins stated that wiping through dripped blood. He wall the toilet consisted of three above also that the spatter testified blood indicat- trails, indicative of three different distinct ed that someone and lowered raised trail, which top blows. he described the toilet seat. wall, as almost horizontal on indicated that the victim was close the wall when Sergeant Based on the cast-off patterns, Sergeant the blow was administered. one, that at opined up Mullins least Mullins that because the cast-off stated three, blows were in the struck bathtub. fairly pattern,” “a it was wide he believed dripped Based on the blood Cemario’s “from the boards” than came one of rather wall, bloody print hand on the he conclud- knife, definitively a he could not although ed that more than one victim assault- identify produced weapon pat- ed in the bathroom. Mullins Sergeant also tern. green three noted that beads similar to those found Cecil II’s hair were recov-

On the wall over the and near bathtub found, large ered in the bathroom Sergeant drop next to where C.J. was Mullins n he acknowledged blood. While that the spatter, noted still more cast-off which prior could have been either beads on the floor could have come from a knife or a attack, Sergeant wall Mullins testified that soap wooden board. On the near the during beads also could have fallen out spatter dish he cast-off from a dif- noted blow, an attack on Cecil II in the he more bathroom. ferent identified still “[tjhere explained Mullins Sergeant wall spatter cast-off on the above the bath- controls, lot of movement in the bathroom. tub faucet which was indicative of more than being There’s one blow deliv- additional blows. He observed a “smeared got ered the bathroom. You’ve several type” transfer stain farther inside down bathtub, pieces of broken wood that would be indi- well as a thick amount of blow; bathtub, cating good at least one but from blood in the all of corner evidence, blood there’s than one which had more resulted cast-off. On there’s movement within that scene.” bloody next to palm print, wall Cemario’s Sergeant identified more Mullins even Sergeant Mullins about also testified spatter, cast-off but could not deter- one, blood evidence bedroom where mine if it bloody was associated body was face Cemario’s discovered down palm print or if it resulted from a different pool the floor in a blood. Inside this blow to the victim or same to another bedroom, officers found two wooden victim. pieces broken boards and of braided hair tank,

On the the toilet top Sergeant Sergeant scattered across the floor. Mul- impact spatter, Mullins identified blood lins testified that a blow to forceful Cemar- off the box springs, only would have broken weaker the was discovered head after io’s investigators bed. The broken braids scattered moved the braids. pool the floor and the of blood across bedroom, In the dresser of master the suggested that

beneath Cemario’s head investigators located a box with eleven or fatal blow struck the while perpetrator the twelve rounds of nine-millimeter ammuni- floor in lying was on the bedroom Cemario tion. Items were in stored the area be- Large spots blood on the dripped one. the neath bed. Officers collected two suggested Mullins that carpet Sergeant to area, telephones cordless from this includ- may aspirated have blood. How- Cemario one from ing the floor between the dresser ever, Sergeant Mullins believed that some laundry and the room and another from portion assault on Cemario occurred farther back in the bedroom. that explained in the bathroom. He “[t]he Sergeant Mullins that opined perpe- to level violence delivered [Cemario] in living trator room could have happened [bedroom have in one] couldn’t trapped the by standing children in the some blood

without additional evidence. doorway of the room. living Although has movement there to be some after So leading doors to the outside of the home fact.” laundry were located in the room and the two, bedroom Cecil II In where and bedroom, master to reach those doors found, investigators Cedrick found the hall bathroom from bedrooms bed, blinds, stains blood on the the window two, one and the children would have been bed, fan, by ceiling wall required to walk through living room. ceiling. Sergeant addition, Mullins testified laundry In the door in the room spatter that blood was multi-direction- appeared was secured a tied cord and al, indicating blows multiple had been if it had not been used awhile. Most Sergeant delivered bedroom two. Mul- of the windows in home had bars. spatter that the blood

lins believed cast-off Mullins, According Sergeant ceiling ceiling on the fan resulted from spent considerable time in the perpetrator being a knife raised overhead between staging scene house the crime after the stabbing On the downward motions. floor Sergeant murder. Mullins reiterated his bed, investigators beneath the found sev- opinion all four adult victims were green enteen more hair like beads those moved either close to the time of death or II’s hair. Cecil death, after and he noted that Ms. Rober- In bedroom investigators petite pulling two also locat- son was not and that down board, Seals, pants, ed a bloodstained wooden an intact her as well of Mr. as those blade, lacking knife handle and two knife would have taken time. More time would lacking required position blades handles. first knife have been Ms. blade, found inside a pillowcase legs legs, between Williams’s across Ms. Roberson’s hand, pillow pillowcase, place and the had marijuana been in Cecil’s place bent into an “S” had blood on shape and on it. crack cocaine Ms. Rober- Sergeant body. Sergeant Mullins believed the blade was son’s stated Mullins removed, spent bent when the knife perhaps moving handle additional time was Cemario, suggest he found no evidence if he were indeed assaulted in damaged the blade been twisted and the bathroom and later moved to bedroom during the stabbing of a victim. The Removing sec- one. the knife handles and hid- blade, ing pillowcase ond knife found between the mat- the knife blades in the wall, and the have taken top tress and almost of under mattress would more not linking the defendant to the crime did collecting removing and time, would as knife but one of the exonerate him. all the scene pointed Sergeant Mullins also handles. shooting in the used guns Initial Statements to

out that 2. The Defendant’s scene, and he be- Police, from the removed Identification of Defen- shotgun posi- Assailant, had been the loaded lieved dant as the Defen- the crimes clothing after atop tioned dant’s Confessions explained Mullins also Sergeant occurred. Mullins and his team Sergeant While time have been would that some additional scene, sergeants the crime processed locate, collect, place six- required Task detectives from the Safe Streets bag. casings Ziploc in the sealed teen shell can- Organized Force and the Crime Unit Mullins, took According Sergeant “[I]t neighbors, vassed the area and interviewed things to alter this scene enough time family questioned while other officers stab, boom, boom, stab, out the opposed police members of the victims. When you a difference. If consid- There’s door. mother, Ida,8 if asked Ms. Williams’s she movement in the scene after this er all the harm anyone knew of who would want to done, going to take a few minutes it’s Cecil, daughter her Ida named Ms. hours, I necessarily would but not Smith, person Cecil II’s mother and staging that the of the opined think.” He police, couple’s as the worst who called perpetrator indicated that the crime scene enemy. explained She the tension enough with and comfortable felt familiar rela- stemmed from Cecil’s simultaneous in the home for the time needed to remain Ms; tionships with both Ms. Williams and altering finish the crime scene. Smith. having Sergeant Mullins observed officers, Sergeant James Two other drug activity knowledge gangs Stark, Max and Joe inter- Terry Sergeant staging have been useful in would at Lieutenant Arm- viewed However, expe- crime scene. based on his strong’s request. During this initial inter- gang- more than 100 investigating rience police view at the station on March homicides, Sergeant opined related Mullins 2008, the defendant was not under arrest have re- gang members would not only possible wit- and was considered following the home the mur- mained inside The defendant described his activi- ness. not have to the crime gone ders and would 1st, that he and explaining ties on March they weapons scene unarmed and used others, Mr. including Jessie Sr. and Wad- found in the home to commit the offenses. dell, intended to watch a televised Sergeant any Mullins was unaware of University Memphis game basketball in which women gang-related homicides home, the plan Cecil’s Lester Street but were murdered and children were assault- awry went because Cecil’s television did ed and killed with knives and boards. Ser- not receive the broadcast. geant acknowledged Mullins that the de- he remained at any fendant’s DNA was not discovered on The defendant said Ce- house, cil’s where five children and physical item of evidence associated with Cecil’s “E,” however, present, Mul- were also investigation; Sergeant Ms. Williams subsequently whom officers identified as lins testified that the lack of DNA evidence protect priva- adopted. 8. We omit Ida’s surname to children, cy surviving whom she has Seals, evening. arrived the approximately

Mr. later in 2:15 2:30 or a.m. on March defendant, p.m., 2, 2008, 10:00 to 10:30 the Around they dropped when him off at his Seals, Lester Mr. and Cecil left the Street girlfriend’s apartment. The defendant apartment home and drove to “Frank’s” in stated that girlfriend, Jones, Ms. Sheila Highland and Spotts- the area Avenue arrived, not home when he but her wood Avenue. Officers later identified Keaira, daughter, boyfriend and Keaira’s Boyd According “Frank” as Willie Hill. to there. defendant, were to the According defendant, the Mr. went into Mr. Seals argued and Keaira about Keaira being alone, the apartment Hill’s while defendant boyfriend. alone with her The defendant waited the and Cecil outside in car. A said that he went to bed after argu- the later, complexioned a light short time man ment and that Sheila returned home at wearing glasses apartment, exited the and approximately 5:05 a.m. on March 2nd. out of the got Cecil car and talked to the When Sergeant Sergeant Max and Stark man some for time. When Mr. Seals asked the defendant whether Cecil had emerged twenty from Mr. apartment Hill’s enemies, any the defendant told them that later, thirty to minutes trio the left and and Mr. argued Cecil Hill had about two picked up Mr. at girlfriend Seals’s another weeks earlier. argument began, ac- apartment there, nearby From complex. defendant, cording to Cecil, when Ms. said went group defendant to the Smith, Hill, Mr. and Mr. Hill’s girlfriend Apartments Cabana to purchase Kimball returned to girlfriend’s Mr. Hill’s apart- marijuana, arriving approximately at 11:30 after drinking ment a club. at According p.m. midnight. The defendant said that defendant, to Mr. Hill’s girlfriend initially apart- Cecil went into a downstairs police called the seeing after slap Cecil Ms. get ment alone but soon to returned arrived, Smith. When the officers Cecil Together they defendant. went back in- told them that drugs there were inside Mr. same apartment, side the and Cecil intro- girlfriend’s Hill’s apartment. Mr. Hill also duced the defendant four to African- apartment, lived according to the men, telling

American them that the de- defendant, and Mr. Hill and Cecil were just had fendant been from pris- released Gangster both members of Disciples. on. After Cecil had purchased quarter- explained The defendant that gang mem- bag marijuana ounce defendant were permitted bers to call police purchased marijuana, worth $20 other gang members. According to the they apartment, left ran into Ms. defendant, Mr. Hill up wrote Cecil for a lot, parking Smith in the and talked with through violation of this rule “Doc Holi- leaving. her for a while before Their next day,” Gangster Disciples and the sup- defendant, stop, according to the was at a posed to have meeting held a or a jury Avenue, house located off Lamar where to guilt, trial determine but Cecil’s Cecil they approximately talked to a woman for failed attend. Next, thirty said, minutes. the defendant The defendant told the officers that group proceeded Ce- to the Kansas Court always project handgun, cil carried a .45 caliber housing pick up his son. Learn- although the ing there, that the defendant had not seen the defendant’s son was not when they gun he was with Cecil on March spoke grand- the child’s maternal 1st defendant, minutes, mother and 2nd. approximately According ten Ce- gave money, her kept and left. cil also an AK-47 assault rifle with parted Cecil, magazines home, stated that he company with two under dresser at Seals, girlfriend Mr. and Mr. shotgun, Seals’s owned a sawed-off and had access mur- implicated gang had been handgun be- a nine-millimeter On either women and children. ders of The defendant Williams. to Ms.

longed Wednesday, March March 4th or Tuesday, the murders that when the officers told 5th, mother of after Priscilla Shaw—the discovered, Mr. Mr. asked Waddell were Cecil, defendant, and Nicole—discover- find out what had and Hill to call someone kicked in front door had been ed that her Hill called “Doc that Mr. and happened Shaw, the de- Disciples, Ms. Gangster hap- him asked what Holiday” and Nicole, fendant, children and Nicole’s the offenses. had committed or who pened cousin, their Sharhonda moved with prior testified that to the Max Sergeant Street, Lane, Gayle Memphis home. at her police 4th interview the March defendant’s there, her Nicole received calls on While investigating Gangster had not been origi- to have phone, appeared cell which involvement the homicides. Disciples for apart- inside her telephone nated from the however, interview, Ser- of the As a result The defendant answered one ment. investigate pos- assigned to geant Max was that the caller calls and told Nicole these began Officers involvement. gang sible disguising like a man his voice. sounded Gangster about the Disci- following leads “terrified,” went to the Becoming Nicole interviewed, members were gang and ples, time later a department. A short police who were interested in were others car, assigned protect police marked providing information.9 house, at the scene. arrived investigation, Sergeant part of this As learned that the defendant When Atkins, who had spoke Max with Cedric outside, agi- he became police had arrived hearing that Cecil had reported earlier that the offi- tated and “frantic.” He said $300,000 In drug from a dealer. stolen him, police that the get cers were there to 7, 2008, addition, Sergeant Max on March him, trying “pin” the offenses on informant, a confidential who interviewed going jail that he was not back to and hearing that Cecil had stolen reported something They not do. should he did $50,000 drug money from “Doc Holi- brother,” bury with “just [him] [his] informant was day.” The confidential grabbed gun a declared. The defendant taken copies photographs shown color belonging pointed to Mr. it at Waddell verify familiarity home to his from Cecil’s his own head.10 The confi- Gangster Disciples. with the and told the two Ms. Lane went outside informant identified Cecil and “Doc dential was threaten- officers that the defendant identification, the Holiday.” Based on this they if entered the ing to commit suicide telephone number for officers discovered One of the officers—Officer La- house. Holiday” “Doc and learned that he had Ms. Lane to call the Stepney neeze —asked governor been mentioned as the did, phone. defendant on her cell She Disciples. Gangster Stepney spoke Officer with the defendant re- five and seven minutes and Gangster Disciples Members of for between him to enter angry upon learning that convinced to allow the officers portedly became many tips impli- of these 9. Lieutenant Davidson said that officers re- officers testified Stoppers ceived numerous leads from Crime cated the defendant in the crimes. including tips, “crackpots" some "psychics” telling things.” them "ridiculous testing nine-millimeter 10. Ballistics of this Armstrong Deputy Director testified gun in the Lester showed that it was not used Stoppers tips indicated some of the Crime Street homicides. gang-related, that the murders were and both time, the During the house. this defen- Dr. Muhlbauer testified that Cedrick ex- “[Everybody told Officer Stepney, significant dant hibited facial trauma and was I did it. all on the “essentially thinkfs] I’ve been news semicomatose” when he ar- it” police saying I Short- hospital. did rived Cedrick had sus- residence, ly injuries were, after he entered the Officer tained in Dr. Muhl- Stepney gun was able to retrieve the opinion, bauer’s consistent with having defendant, attempted boards, to calm the who was been beaten including multi- acting “real he had ple face, mid-face, nervous like a lot on fractures to his and the skull, his mind.” The portion officers told lower fractured nose n they were not arrest him inward, there to but which had pushed been and a there place family were him and his in skull small fracture bruising with on the custody. protective addition, The defendant and his back his brain. In Cedrick family Gayle eye, moved from Street sustained stab one wounds to his fore- head, into and police pro- home a safe house under his neck. Dr. Muhlbauer testi- that custody, investigation tective and fied Cedrick not pro- would have survived without medical ceeded. intervention. time, Dr. Muhlbauer that

During Ceniyah this testified surviving children ar- at hospital significant rived hospitalized remained with at LeBonheur Chil- head trauma, which large Muhlbauer, included a cut in her Hospital. dren’s Dr. Michael scalp that exposed her bone. expert right an the field of and pediatric adult Ceniyah’s side of pushed skull had been neurosurgery, performed testified he that crushed in object, with a blunt C.J., resulting in Cedrick, on surgery Ceniyah and on “open-depressed skull fracture.” A CT March 2008. Dr. Muhlbauer testified scan revealed covering that the of Ceni- when C.J. arrived the hospital, he yah’s brain “probably was cut” and that awake, lucid, moaning was but was and mildly her brain was bruised. Dr. Muhl- able to follow commands. C.J. had trauma Ceniyah’s bauer testified that injuries forehead, swelling part to his of a being were consistent with struck with head, knife sticking steak out of his and a She boards. also had stab wounds to her six-to-seven-ineh laceration his scalp extremity. left lower Dr. Muhlbauer said that extended down his forehead. C.J.’s intervention, absent medical Ceniyah fractured, was severely skull large not injuries. would have these survived pieces of his skull had been driven inward awith blunt object. force C.J. also had Deputy Armstrong Director decided to a “glancing” either stab wound or two speak have an officer attempt to with C.J. separate stab wounds on the back of his early in the investigation because of the chest, arm and superficial a laceration possibility might police that C.J. die. The neck, across his a right laceration on his very considered C.J. important to the in- hand, and a laceration his left on thumb. vestigation because he was familiar -with Dr. Muhlbauer said that without medical of his all father’s associates. On March 5th, intervention C.J. would not have days survived two after had they undergone (now injuries Lieutenant) surgery, he sustained.12 Sergeant then Ms. Lane 11. testified that the media had been Dr. he 12. Muhlbauer noted that did not treat discussing background defendant’s Ceniyah the external lacerations C.J. sus- television "hours” and that at the time he general surgeon tained and that a would have threatened suicide the television news was injuries. these treated showing story profiling him. they up wanted to clear of the Homicide Bureau Mason

Caroline things to LeBonheur Children’s some and determine whether assigned any to assess the sur- had information to add to what he had Hospital and instructed infor- viving children and determine what in March 4th interview. She provided his they provide. attempted could She any mation the defendant whether he had asked day, affiliation, that same but she replied to interview C.J. and he that he was gang consciousness, found him “in and out” she about Crip prison. When asked crazy,” out cursing, “talking screaming Cecil, relationship the defendant names, including “Cassandra” and “Roder- that, occasion, stated on one Cecil investigated state- ick.” Officers C.J.’s falsely police reported called the that Ms. had a ments and learned Williams robbery. had committed a the defendant Cassandra, named but after further sister Mason then asked the defen- Lieutenant investigation they that she was concluded again dant to tell them about what he did in the crimes. “obvious[ly]” involved on March 1st and about the last time that Lieutenant Davidson said that officers con- According he had seen Cecil alive. investigate any tinued to of C.J.’s state- Mason, the Lieutenant defendant essen- point, ments that made sense. At some tially repeated given the account he had Pat Lewis of the officers decided to send interview, 4th during varying his March Advocacy hospital to the with Child Center only respects. Specifically, one or two he Lieutenant to talk to Mason C.J. he, Cecil, them that Mr. Seals had told and 7, 2008, On March officers received a gone apartment to Mr. Hill’s that Mr. so telephone hospital a at the call from nurse gun. Seals could retrieve a He also told informing them that C.J. was awake and them that when him to Cecil introduced police rational and that the needed to come apartment they the men in the where had interview, During ensuing talk to him. the marijuana, to purchased Cecil had referred reported C.J. that “Uncle Junior” —the de- the as his “bitch defendant ass brother person responsible fendant —was the for just got prison.” who out of According to killing their and parents C.J.’s and friends Mason, Lieutenant defendant stabbing attacking and him and his “frowned” when he recalled introduc- this siblings. purchasing marijuana, tion. After that defendant said Cecil drove him to an Di- Deputy Lieutenant Mason called son, apartment complex to his who pick up rector Armstrong reported that C.J. home, dropped was not and then the de- implicated perpe- had the defendant as the apartment. fendant off at Ms. Jones’s trator of He the crimes. instructed her that he not defendant maintained did re- anyone not to tell what she had learned turn with Cecil to the Lester Street home. tape until he had a chance to listen to the recording of C.J.’s identification. After At point, stopped some defendant listening tape, Deputy to the Director talking Sergeant to Lieutenant Mason and Armstrong ordered the defendant trans- Deputy Armstrong, Max. Director who ported from the to the safe house Homi- interview, observing had been decided Bureau, assigned cide and he Lieutenant to enter the room and continue the inter- Mason Sergeant Max to interview him. Deputy Armstrong view himself. Director defendant, who was under arrest at testified that he watched the defendant’s time, rights, signed body language was advised of his as he talked to the defen- waiver, agreed a written to speak with dant about how horrific the crimes were. “really, officers. Lieutenant Mason told the He said the defendant seemed doing said, really tight, everything like he was the defendant In response “[N]o.” According questions, he could not to talk to me.” the defendant also told Deputy Armstrong, Armstrong Director defendant Director no Deputy one else in his family questions one-or-two-word answers to looked like him and gave no one in the family had ever open in- confused him with engage and would conversa- some- one else in the Deputy family. When Armstrong tion. Director said the defen- dant was asked a I him whether member of the time if asked of his “[m]ost family referring would be to him if question, he would nod his head or shake “Junior,” person used the name you head. But could tell he was defen- doing yes. said dant everything engage he could not me in an

open conversation as to where we had Deputy Director Armstrong played then open dialogue back and forth with each tape recording stating C.J. that he other.” been stabbed his “Uncle Junior.” According to Deputy Director Armstrong, that,

Deputy Armstrong Director said the defendant visibly upset became room, he when entered the interview if appeared as he were about to cry. The very knew the defendant was familiar defendant then Deputy told Director Arm- justice system criminal and that strong that he and went Cecil somewhere only recently the defendant had been re- get gun, began arguing, and continued prison. Deputy leased from Di- When argue during the drive back to Cecil’s Armstrong rector asked house. The defendant said that they when whether he believed in and in heaven God home, returned to argument Cecil’s hell, the defendant said that he did. escalated. When Cecil reached for a shot- Armstrong Director Deputy stated that gun, defendant began shooting, using the defendant was “struggling try to to gun his gun. both and Ms. Williams’s The composure” maintain his at and times dur- defendant said that then attempted he to ing the interview leaned forward as if he rid” of “get the children because they had to wanted make a statement but would him. seen The stated defendant that he then lean back. Director Arm- Deputy them,” using “stuck the knives from the strong said that he the could tell defendant kitchen drawer. hiding something. was According Deputy to Director Arm- point, At one Arm- Deputy Director strong, began the defendant cry to and strong grab allowed'the to defendant his if appeared gotten as “he had the weight hands, attempting convey to to the defen- of the world off his shoulders. But it was that something dant he knew was weighing almost like I’m Deputy defeated.” Di- heavily on the defendant’s mind. Al- rector Armstrong testified that when he it though appeared Deputy to Director began question to in greater the defendant

Armstrong ifas the defendant were about detail about what had occurred in the him, speak to to the defendant refused to house, using knowledge his of the crime engage conversation go and asked to scene to frame the the questions, defen- restroom. Deputy Director Arm- attorney, asked for dant and the inter- strong go. allowed him to When the inter- view ceased. The also defendant asked to resumed, Deputy Armstrong view Director mother, speak with his Priscilla Shaw. his family asked defendant what called him, replied, and the During defendant “Junior.” the early morning hours of 8th, anyone He asked the defendant if else March officers went to the safe house “Junior,” family was protective custody referred to and where Ms. Shaw was in members, testimony at trial reflected results family informed her ness with other her, to see investigation. wanted and the defendant of this police department. When her to drove yellow and seized C.J.’s Officers located arrived, a room she into and she went bicycle, the defendant admit- Magna which else No one was to the defendant. spoke scene, riding away from the in a ted She took room with them. in the Memphis behind Ms. Jones’s resi- shed him what hands asked was defendant’s and Although hoped to dence. officers find police She if the happening. asked bicycle, only from the on the blood victims “trying put it on him.” defendant material from an unknown male genetic first, but when respond not he did bicycle. found on Neither the he that he “did up, looked told Ms. Shaw victims’ nor the defendant’s DNA blood him, “why she the ba- it.” When asked it. was found on bies,” they had the defendant said seen Jones at trial that at explained him. He that he and Cecil had Keaira testified 1, 2008, p.m. all had a arguing day been Cecil 10:00 or 10:30 on March Shaw if gun. Ms. asked to her home defendant Cecil came defendant pointed gun. The defendant appeared Cecil that both to be intoxicated. “just that Cecil not but was talk- said did mother was When she told them her put ing swinging leave, Cecil home, it.” When but defen- Cecil wanted down, he said that be- gun only left after she allowed him to dant shooting. said that gan The defendant he apartment enter and search the her bicycle the scene away later rode to mother. girlfriend, of his Ms. Jones. the home Ms. Keaira the defendant re- testified him [why] Shaw testified that she “asked a.m. turned between 3:00 and 4:30 She me. they the kids and said saw And I apartment, allowed him to enter the but baby, baby. say said but the He didn’t bedroom, closing she returned her nothing, just got And I up shook his head. later, Approximately five minutes door. him I him and I left.” and told love door he knocked her bedroom Deputy defendant told both Director Arm- putting asked to talk to She was her her. strong and his mother that he committed sleep son to and told the defendant that indicate the offenses. He did not speak shortly, would him but she to she anyone perpe- else either him or assisted asleep opened and fell never door.

trated the crimes. falling asleep, Before she heard water run- in the Keaira was ning asleep bathroom. Investigation Testimony 3. and home, when her mother came and de- Corroborating the Defendant’s together and her left fendant mother Confessions left, Keaira morning. they next After no- After C.J. identified the defendant as spots rug bleach the brown ticed on perpetrator the lone and defendant She bathroom. also noticed that bottle guilt Deputy admitted his Director hallway of Clorox bleach was in the and Armstrong, investigation the police into in its Keaira place. not stored usual de- gang The investiga- involvement ended. arguing with about nied the defendant be- to determining tion turned whether ing boyfriend. home alone her with crime scene evidence was consistent with Ms. Jones that she met and corroborative the details of the testified Nicole, whom description through defendant’s and his defendant with she admissions worked, of how the and she was aware that offenses were committed. Wit- had had moved in' with Nicole Mr. Hill the defendant testified that on the evening of jail. 1, 2008, Jones being Seals, Cecil, after released from Ms. March Mr. and the that when she returned home at testified defendant came to his Memphis apartment 2nd, 5:00 approximately a.m on March Seals, between 10:30 and 11:30 p.m. Mr. bed, was which lying

defendant her just who had jail, been released from came her surprised because he knew she would to pistol retrieve a he had left with Mr. girlfriends. be out with He told her that said, Hill. The Mr. Hill gun, fired .380 come in at five in the “ladies don’t o’clock bullets, caliber which were by loaded in- they They and went morning,” sleep. serting a and he clip, added gun that the 10:30 or got up at 11:00 a.m. on March ejected casings. shell The parties stipu- 2nd, she dropped and testified that she lated at gun trial Mr. Hill re- apartment. him off at Nicole’s 1, 2008, turned to on Mr. Seals March a P-232 Sig handgun, Sauer a .380 caliber 3rd, Monday, March On the defendant pistol, rounds, which up eight could hold pick asked Ms. Jones to him up at Cecil’s consisting of magazine a seven-round and home, arrived, Lester but when Street she a single round in the chamber. ambulances, the street was blocked fire trucks, police and cars. The defendant “Trell,” Mr. Hill testified that another of upset was “kind told shaking” and member, gang went outside to talk to Cecil something happened her that had to his while Mr. Seals was in Mr. Hill’s apart- Ms. Jones brother. testified that de- ment. Seals took the gun Mr. loaded fendant never told her that what he knew left with the defendant and Cecil. Mr. Hill had occurred Cecil’shome. After learn- any again did not see of them day until the arrested, ing that the defendant had been the homicides were discovered. Ms. called him him in Jones and visited Mr. Hill said that he learned of the arrest, jail. A week or two after his she Waddell, homicides from Mr. who called why asked the defendant he would him on March 3rd and said something police assist in their investigation, family. had Cecil’s happened Mr. Hill replied “they got it out.” figure scene, went to the crime and he recalled Ms. testified that Jones she had seen being the defendant there as Upon well. gun on one occa- or two Hill, seeing Mr. the defendant asked Mr. sions, she gun having described the why Waddell he had called the men who being a “wheel” and “blue with a little blue the crimes. Mr. committed Hill testi- on it.” fied that the police he told he had called Hill, Jr., Boyd friend, Willie Cecil’s best stated, scene, “Cato”13 from crime testified that he had visited Cecil’s home “[Yja’ll far,” went too asked him di- Street Lester on several occasions. rectly if “Doc Holiday” he and had some- Holiday,” Mr. Hill said that he knew “Doc thing to do with murders. “Cato” “Dread,” “Cato,” and Mr. Seals because any denied involvement in the murders. he, Cecil, Mr. Seals and men the other were acknowledged all members of the Disci- Mr. Gangster Hill that he and Cecil ples. He stated that the defendant was a had a on the “falling evening out” of Valen- the Crips gang. member of Day, tine’s less than a month before nickname, person 13. appeal Ap- known this on in the and Court of Criminal Lester, Markel testified for the at trial defense peals’s opinion, and we spelling utilize this spelled the and nickname as "K-A-D-O-E.” well. spelled nickname "Cato" in the record Hill, Cecil, He up gang for a violation of rules. According to Mr. Ms. Cecil murders. Williams, explained Gangster that if the Disci- gone Smith and he had out also Ms. Cecil, Afterwards, they easily had wanted to kill they ples at a club. went drinking get would have been able to him alone and girlfriend’s apartment, Hill’s where to Mr. a.m. arguing. Mr. would not have waited until 2:00 Mr. began and Ms. Smith Cecil that, any ran Hill said that he had never heard of Hill when Ms. Smith testified apartment, gang involving murders innocent women girlfriend’s into his upstairs children, if beating on and and he stated that began followed her and Cecil entered a home to cursing Gangster Disciples both had the doors windows someone, they Mr. kill would have been armed girlfriend. Ms. Smith and Mr. Hill’s have run out of police, called the and when and would not bullets. girlfriend Hill’s Also, arrived, Hill “Dread” and marijuana them of Mr. said that “Doc” they Cecil told Cecil, would not have harmed with whom report to the apartment. inside the Cecil’s they were close friends. angered Mr. Hill because Cecil police stayed knew that Mr. Hill also acknowledged Mr. Hill that he had Disciples apartment Gangster and that approached and “Doc” heard “Cato” supposed police to call the on violation gang Cecil about his each other. it” Cecil told them to “shove and would not accept discipline. Mr. Hill also had

Mr. Hill testified that he told “Cato” hung up had “Doc” heard that Cecil on “Cato,” in happened what had and that slept that “Doc” had with Ms. Williams. turn, Holiday.” informed “Doc “Doc Holi- Cecil, agreed Mr. Hill also that he and day,” whom Mr. Hill described as the “outspoken,” whom he described as had Gangster Disciples’ “coordinator” over the argued on occasions other than Valentine’s area, Mr. Hill to Orange Mound asked Day and he said that Cecil and “Doc” explain security to “Dread” —the chief of disagreed drywall over work that Cecil reported over the area —what he had performed apartment. at “Doc’s” Later, Mr. Hill “Cato.” was summoned to in apartment Dwight an on Street Mem- Mr. Hill testified that until mid-Febru- he, “Doc,”

phis, and “Dread” dis- where ary the overseer or head of the matter, cusséd the and “Dread” told him Gangster Disciples Memphis was Eric up.” to “write [Cecil] Brown, “Big Easy,” known as and that Mr. Brown had been Mr. Hill murdered. explained “write-up” Mr. Hill that a is a testimony unaware until trial Ver- disciplinary gang notice within the that' Motley, police suspected non whom the in punishment. punish- results Possible Brown, murdering Mr. was a member of stated, write-up, ments for a include Traveling Vice Lords and that Mr. chest, “[p]unches punches lip, to the to the Motley’s girlfriend, Tammy Randolph, was head, pumpkin three minutes to a DV” or first cousin. Cecil’s Generally, “death violation.” Mr. Hill ex- Nevertheless, plained that when a death violation is or- being Mr. Hill denied dered, only it applies gang to the individual active member at the time of the said, gang everyone par- member and not to associ- He “None of us was killings.14 writing ticipating any gang meetings nothing ated with him. Mr. Hill denied or deliver; acknowledged having marijuana; prior possession 14. Hill con- and fel- Mr. manufacturing, delivering, possession handgun. victions for of a Mr. Hill was substance; selling possession probation a controlled on at the time of the defendant's manufacture, sell, cocaine with the intent to trial. call, we still He like that but had love for it.” last telephone Ms. Smith testified he police testified that had contacted the she heard and Cecil arguing defendant cooperated and with them and using had submit- and profanity. Ms. Smith recounted hair and a DNA sample. ted both a He her attempts to locate Cecil on March 2nd did so said that he because Cecil was his and 3rd related and that she called the family police friend and Cecil’s was like his own on the afternoon of March 3rd and family. waited outside Lester Street for home them to arrive. Ms. Smith confirmed that Cecil’s, Stacey Young, a friend of testi- son, II, her Cecil one of the children approximately fied that at midnight killed in the house. 2, 2008, Cecil, defendant, March and Mr. to her Seals came home blue Charity Wright, Cecil’s an employee of Crickett Wireless, Lincoln. Cecil introduced the defendant testified about phone Cecil’s cell Young, to Ms. a min- they talked “for records and the calls he received on March left, ute.” Before the three men Cecil told Wright 2008. Ms. testified Ms. Young

Ms. that he would after return Smith called Cecil’s number at a.m. 12:59 dropping Mr. Seals off and the defendant. and that the call lasted seven minutes and Young When Ms. called Cecil about ten Ms. Young seconds. called Cecil’s later, a.m., hour approximately number, at 1:00 he through possible call, a three-way he a.m., told her that had not it off “made at 1:06 and the call lasted two min- Pendleton” indicated he still planned utes and ten seconds. Ms. Smith called return, a.m., but never did return. again a.m., a.m., at 1:25 1:11 and 1:30 but calls not answered. Ms. Ms. Smith testified that she had never Smith again a.m., called at Cecil 1:37 member, been a gang although Cecil answered, the call was but only it lasted She, Gangster his friends were Disciples. twenty-eight seconds. Wright Ms. said too, described the Day falling Valentine’s the next call came at 3:11 a.m. and went to Hill, out between Cecil and Mr. she voice mail. it originated confirmed Cecil when police informed the marijuana Nicole testified that she was aware that girlfriend’s Mr. apartment. Hill’s Ms. Cecil and Mr. Hill had referred to them- Smith dispute also described the between selves Gangster Disciples, but she stat- Holiday” Cecil and “Doc over “Doc’s” fail- they ed that did not “mingle” on the pay ure to Cecil for repair work he had gangs gang streets with members. She apartment. done at “Doc’s” was also aware that the defendant was member of the Kitchen Crips. Nicole tes- Ms. Smith also testified that she had tified that the defendant moved in her Cecil, defendant, seen and Mr. at Seals after jail his release and that she had 2, 2008, approximately 12:30 a.m. on March been too frightened him to ask him at her apartment. Kimball Avenue When explained leave. Nicole that the defendant them, she went outside to talk with Cecil “grudge” against held a his family return, told her that he would but she told not visiting him more often while he was left, him not come back. After Cecil jail, and she that the ex- said she called him three times. time The first pressed feelings about this grudge called, a.m., approximately she at 1:15 she daily. her spoke to him. The second time she called him, a.m., approximately 1:30 he did Nicole testified Cecil and two of his answer. when But she called him third picked up children her defendant from a.m., they time at spoke. During 2:00 this apartment for a barbecue at Cecil’s home evening unlikely Nicole be early in the March 1st. members would to harm if living Cecil Sr. were him. again ap- see the defendant until Jessie with did not Cecil, Although 10:00 or next Jessie Sr. moved with proximately 11:00 a.m. the he 2nd, only lived there about a month because Sunday, March when she morning, several of his own brothers warned him apartment her him outside in Ms. saw likely that he killed if would be he inter- and Ms. car and saw defendant Jones’s fered with gang situation other Cecil’s having “physical Jones altercation” members. of Ms. car. Accord- the front seat Jones’s Nicole, contrary Ms. Jones’s ing to Jessie Sr. testified that Cecil and the testimony, again the defendant left with defendant had a normal al- relationship, coming without Nicole’s

Ms. Jones inside though it bothered the when not apartment and did return to Nicole’s Cecil told others that the defendant had until that apartment evening. recently jail. been released from Jessie Sr. said that Cecil’s children liked the de- Nicole said that she to Cecil’s went fendant spoiled and that the defendant approximately p.m. house at on March 6:30 them junk with food. Jessie Sr. recalled 3rd with the defendant and her cousin seeing gun on the counter at Cecil’s Ambulances, Tammy Randolph. fire home evening group gathered trucks, police cars already were at the watch game, the basketball which later he arrived, they police scene when and the learned belonged to the defendant. Jessie would not allow her to the house. enter gun Sr. as “kind described of like a said she did not Nicole learn who had died blue,” powder stated that it was “a revolv- had survived at and who that time. Ac- er, turn[s,]” that thing kind with the Nicole, cording to the defendant instructed type that it of gun said was that media, her not to talk to the explaining eject casings. does not shell Jessie Sr. likely they that would blame him for the recalled seeing gun Cecil move out of of his murders because criminal back- reach, commenting might children She ground. also recalled the defendant mistake toy. it for a Jessie Sr. said Cecil becoming very angry when Mr. Hill and told the defendant that he had moved his scene, “Trell” were called to the and she gun. her, recalled the defendant telling while they scene, still at the were that he be- agreed Jessie Sr. the defendant Mr. Hill and “Trell” lieved had committed never happened told him what had to Cecil the homicides. Nicole described Cecil and prior to discovery of the bodies. How- “gun the defendant as ever, fanatics.” She said he said that the defendant called the defendant never told her that he was him a days few before trial and him told at Cecil’s home the time of the homi- what he knew about what had occurred cides or that he rode bicycle away C.J.’s inside Cecil’s house. Jessie Sr. provided from the scene. no further details about what the defen- dant during phone told him this call.

Jessie Sr. testified that when he learned killings, that, he believed Mr. they gang- were Waddell testified March related because Cecil had him that he told he and visited “Doc Holiday” Cecil attempting Gangster during leave the Dis- day Holiday” because “Doc ciples and was worried they might wanted perform Cecil to some mainte- harm him. Cecil had asked Jessie Sr. to nance According work for him. to Mr. him, Waddell, move in gang with explaining the defendant and Cecil respect family gang arguing members of other during spent the time knife,” on March 1st. Mr. recalled “handheld them Waddell which C.J. described as type the defendant with a black the seeing opens and that and closes. C.J. said gun evening, instead the blue that when silver the defendant cut him on his neck, ordinarily revolver the defendant carried. he told the defendant that he loved him, but replied, “[N]o, the defendant you of the child victims also Two testified. don’t.” lay bed, C.J. then on down the C.J., victim, the oldest in surviving was II began Cecil crying. C.J. heard the the grade fifth the time of trial. He II, defendant say then to Cecil “[D]on’t undergone many surgeries, according had it, worry you about ain’t going to get grandmother, to maternal and addition- his hurt.” al would be surgeries required. C.J. testi- in fied that the Lester Street house he C.J. testified that he tried to retrieve single a his telephone shared bedroom with brothers. the hallway from the to call the slept so, He had on the bed top police, bunk and his but before he could do he saw brothers, Cemario, slept Cedrick and had the defendant’s feet in the doorway and bottom bunk. sister His older used heard defendant him ask what he was bedroom,15 parents’ doing. the other and his bed- When C.J. told defendant that was in the room back of the house. C.J. he was going police, to call the the defen- that, attacks, night recalled on the dant said he would kill CJ.’s parents and in watching he was television his sister’s Cecil’s friends if did so. C.J. C.J. recalled in asking room because the television his room the defendant if he could use the gunshot, not a working. Hearing was bathroom noticing C.J. that the defendant out of walked his sister’s room and into the a in “kitchen knife” his hand. C.J. hallway. peeking C.J. recalled into the allowing recalled the defendant him go “my bathroom, room living seeing Uncle Junior but stated the defen- gun daddy,” point my toward who put was dant “ma[d]e [him] [his] head saying anything. so, C.J. testified that he tub.” When he had done the defendant chest, smoke sparks saw “some come out tried to stab [of] C.J. but put C.J. gun” blow, and then “down up looked on the his hand block and the ],”

ground” and “saw on the [a] dude knife went into his head instead. floor[ wearing who was a black shirt and black mother, C.J. seeing recalled Ms. pants. Williams, doorway in the of the bathroom testified saying C.J. that when he heard anoth- that she did not want to die. The door, gunshot, “peeked” through er cellphone defendant asked her for Cecil’s into the saw hallway, keys, walked the de- and car replied and Ms. Williams shooting fendant at a who woman was on the keys likely were in Cecil’s car.

the arm of the couch. did not recog- C.J. C.J. recalled the defendant then saying to woman, Williams, nize the but he “sorry recalled she Ms. I because ain’t let telling that she your your defendant loved husband’s husband friends him, “just kept get away but defendant on shoot- with it and the kids.” Then C.J.

ing.” “huge heard what he described as a fall on ground.” said

C.J. that he then returned to his room sister’s and sat down on the bed. C.J. testified that he next saw the defen- Hearing door, footsteps coming hallway toward the walking garbage dant with a knife, he turned and saw the holding bag and another going kitchen into sister, Cierra, 15. C.J.’s older was not at home at the time these crimes were committed. enter the house and allowed “Roderick” to heard some- bedroom. C.J. sister’s

C.J.’s doing so. that he was mad at Cecil saying the defendant and heard yelling one that “Roderick” said some- C.J. testified heard ask to then Cemario up.” “shut C.J. and also told thing gang about the Cecil dripping and saw blood bathroom use the Cecil, boy.” According got big, too “[Y]ou rim of the head onto the from Cemario’s C.J., gun fired a at and “Roderick” Cecil asked He said that Cemario toilet seat. said, gang with the stop playing “[N]ever return to his if he could the defendant you hap- ... never know what would boy, that he could. said room and the defendant boy.” pen, said, went into Next, the defendant C.J. knife, kitchen, grabbed another examination, again redirect C.J. On and his broth- the bedroom of C.J.

entered person who identified the defendant as lying on said he saw Cemario head, ers. C.J. parents him in the shot his stabbed Cemario, stab and the defendant the bed friends, and hurt his brothers and their said he on the floor. C.J. who then fell baby sister. hallway in the near the “rambling” heard recross-examination, testified On C.J. room, if the defendant were as laundry fight living in the room that he saw something move out of attempting to in the mask between and the man Cecil asleep then fell in the bathtub

way. C.J. the man was again maintained that night. nothing more that and heard shooting agreed He also that he Cecil. awoke, “Ms. and “Ms. that when he he had met with Caroline” C.J. testified office, said, looking at Pat” at “Ms. Pat’s” and had saw firemen in his bedroom they when asked him how he knew some of firemen came into One of the Cemario. them, “granny” he told that his things out of the bath- got the bathroom and C.J. had told him. transported hospital was tub. C.J. said that no one was by ambulance. C.J. Cedrick, years who had been five old at during

with the attacks defendant murders, the time of the assaults and testi- By alone. that the defendant acted fied as well and also identified the defen- trial, years time than two more trial, By dant as his assailant. the time of the defendant passed since identified C.J. years and in the eight Cedrick was old perpetrator as the lone of the crimes. grade. living third recalled Cedrick time, had not wavered in During that C.J. family. Lester Street with his Cedrick perpetrator. his identification had stabbed him said that the defendant nose, forehead, and wrist and that on the However, also testified at trial that C.J. no one else was with the defendant. previous he Pat” in a inter- had told “Ms. night that the “bad

view that on the same the attacks oc- Cedrick testified a woman named “Cas- thing” happened, night curred at but before he had eaten door and said that sandra” knocked on the hearing gun- dinner. He did not recall she to use the bathroom. She needed recall night shots that and also did not including a man wear- some other people, seeing anyone. the defendant shoot He bit of blood” on ing mask with little “[a] that no one had told him that said it, had never seen anyone. entered the house. C.J. defendant shot Cedrick testified before, the man but he recalled Cecil re- got that the the knife he used to car, ferring to the man “Roderick.” C.J. did stab them from his but he could not not recall who allowed “Roderick” to enter the color of the defendant’s car. remember house, that, acknowledged although he had not although he Cedrick said stabbing parents, his previously he had “Ms. Pat” that Cecil seen the defendant told parents that his and their rensic in hair experts he recalled and DNA analysis, were Cedrick said that as well as that of an expert friends stabbed. firearms killed, Funte, parents all of the identification. Dr. when were Lisa a Shelby children, County other than of his medical and expert one brothers examiner forensic baby, pathology, regarding and the were locked his sister’s testified autopsies, victims’ three which bedroom. Cedrick stated that his brother she had performed herself him and three of which injured had told that Ms. Williams performed by Dr. Miguel Laboy, living while she was in the room another changing medical examiner in Shelby baby’s County diaper. Office, Medical Examiner’s who did not Cedrick testified that heard Ms. testify. on the telephone calling police, Smith Dr. Seals, Funte testified that Mr. Nicole, and he recalled that whom re- he autopsy whose had been performed by Dr. Foxy,” to as “Auntie pres- ferred was also Laboy, as a multiple gunshot died result of they ent attacked. when Cedrick wounds, including: mouth, one to his acknowledged previously telling “Ms. Pat” which fractured some of his teeth and his that never and C.J. his father should have jaw neck, and then continued his into frac- the door. a opened explained Cedrick that turing first and cervical second verte- began fight opened after his father brae; one to his area, midline chest upper door, and many he people remembered in which the bullet injured his left lung fighting night, specifically that and re- back; and exited from his and one to the man, know, called whom he did not fight- right side of his chest near armpit, his ing with his father his and father’s friends. through which the bullet right traveled his also sneaking

Cedrick remembered C.J. cavity, injured chest right his lung, and out of house after the defendant had penetrated into the muscles of his back. him riding bicycle stabbed and on his grandmother’s his home. Cedrick testified toxicology The report that showed Mr. up he had that sneaked his “Uncle marijuana Seals had and ethanol in his bike, Jessie,” got on his own and also rode However, system. explained Dr. Funte grandmother’s away to his home. Cedrick produced that ethanol as the human left, every- recalled when he and C.J. body decomposes, so she was unable to still one was alive in house and were determine whether the ethanol resulted singing, having talking, and fun. from consumption decomposi- alcohol tion, or both. examination, On redirect Cedrick said had been in he his sister’s room when Williams, Dr. Funte testified Ms. him,

the defendant stabbed and he also autopsy whose she had performed, sus- telling recalled “Ms. Pat” the defen- gunshot tained five wounds: one to the left dant stabbed him. On recross-examina- side of her head that in injuries resulted tion, he Cedrick testified that had talked to brain; right skull and one side Pat” after been living “Ms. he had with his chest, of her which near entered her period for a family of time and after breast exited on side and the left of her discussing listened others the homi- back, causing injuries lungs her and cides and attacks. column; her leg, vertebral one to left muscles, tibia, which her injured and fibu- The State’s Expert Testimony

k. la; her right thigh, injured one to which prosecution’s proof muscle; also included the soft tissue and and one to the testimony of abdomen, examiner fo- injured medical and left side of her which through muscle traveled which the bullet died Ms. Williams and muscle. tissue

soft back; one to and into his and soft tissue she sus- wounds multiple gunshot perfo- bullet in which the right thigh, his toxicology report Ms. Williams’s tained. injuring soft tis- ethanol, through thigh, rated but Dr. presence indicated muscle; thigh, left two to his and if the sue not determine again could Funte soft tissue injured the bullets consump- which alcohol ethanol stemmed muscle; leg, in which the one to his left decomposition, or both. tion or tissue; and one to injured soft bullet Roberson, that Ms. testified Dr. Funte report indicated toxicology left foot. also died of performed, she autopsy whose system, al- ethanol in his also had Cecil Ms. Roberson wounds. multiple gunshot source, be could not again, though right to her one gunshot had four wounds: that fiber Dr. Funte testified determined. the soft tissue injured thigh, which entry of the area around the found in the through traveled thigh, of her muscle consis- head was wound to Cecil’s gunshot vein, through continued femoral fiber-filled placing a tent with the shooter right her side muscle on tissue and soft firing gun over face pillow Cecil’s knee, back; her left one to toward her pillow. through muscle; one injured soft tissue which that a black hair Funte also testified calf, tissue Dr. injured soft to her left which collected from Ms. a white hair were muscle; thigh, left and and one to her and col- that hairs were hand and tissue and muscle. Williams’s injured soft again which back, buttocks, that, from Ms. Roberson’s from the lected judging Dr. Funte testified that a further stated right thigh. and She legs Roberson’s and pattern on Ms. wound to be mari- appeared substance that jeans, green she had pattern on her the wound hand, the juana was collected from Cecil’s she was shot wearing jeans when been green beneath the color of Cecil’s skin rearranged been later. her clothes had and brown, his hand was tan or and injury substance gunshot testified that the Dr. Funte with was stained right Roberson’s below the substance to the femoral vein Ms. great in a deal blood. would have resulted thigh but would not have caused of blood loss autopsy performed Dr. Funte also Dr. Funte testified immediate death. victims, two-year-old one of the child on quickly could have died as Ms. Roberson II died of II. She testified Cecil Cecil receiving after five or ten minutes as injuries, including sharp force multiple up twenty thirty

wound or survived stab wounds to his multiple incised and minutes, the circumstances. depending on head, torso, He sus- and extremities. toxicology report, no According to the penetrated wounds that tained seven stab in Ms. Ro- drugs present or alcohol were injured the and fractured his skull and system. berson’s meningeal artery, causing ep- right middle Cecil, of the brain hemorrhage whose idural and edema Dr. Funte testified that injuries, Among other Laboy, Dr. also with herniation. autopsy performed stab wound puncture-style II had a gunshot wounds. Cecil Cecil multiple died of head, puncture- of his two right one to to the side eight gunshot wounds: sustained cheek, two head, wounds to his left jaw; style one to stab his which fractured his his face on the left side of neck, traveled incised wounds his in which the bullet right on his eye, an incised wound the soft and muscles of his near his through tissues ear, his ear and beginning top at the his fracturing penetrating neck before and ear, chest, continuing along the inside larynx; trachea and one to his formed, varying lengths of incised wounds of also died of blunt group sharp force and leading injuries. an to a force She and incised wound stab said Cemario had torso, head, multiple on his incised and blunt force trauma to wound his with lacer- back, bruises, on and a mixture ations multiple stab wounds his and linear de- sharp injuries pressed and force force blunt on fractures of the calvarium and the skull, side his Dr. Funte base deep left torso. said of his and scalp subarach- left hemorrhage, wounds on II’s back and noid and multiple incised Cecil contusions and Dr. parallel equally spaced, were his brain. Funte wrist also noted areas of in- indicated that the wounds abrasions and on which lacerations Cemario’s head, flicted with a serrated knife blade. as well as an Cecil incised wound above punc- part II also had an incised wound and a his left ear that tore his scalp away right ture stab wound on the base of his from his skull.

thumb. addition, In Cemario had incised wounds head, neck, Funte and to right

Dr. also identified abrasions his hand. A stab body, on II’s she contusions Cecil which wound to chest went all the way his. injuries. body, II through injuring described blunt force Cecil his his left lung and head, right hemidiaphragm, stomach, had abrasions on the side of his as well as his cheek, upper lips, spleen, liver. lower and mouth. also Cemario sustained Dr. Funte testified that abrasion on his linear abrasions and on bruises his left arm, forehead, almost the outline of a head formed rectan- abrasions his an abra- ear, gle bruising was consistent with the sion perpetra- right on his a gaping striking neck, II on the side of tor Cecil the head incised wound his abrasions on his arm, a board. also right Cecil II had a combina- and an wound on incised of an ring tion abrasion and bruise on which finger, was consistent with side of right having attempted his neck behind his ear and Cemario to defend him- on the of on by holding up bruises left side his neck and self or grabbing his hand his elbow. the knife.

Dr. Funte also noted discoloration Dr. Funte testified that the blunt force II’s cheek, right eyelid and Cecil which trauma to Cemario’s alone head would could have been in his impact caused force have resulted death without medical eye or his could have been related to the only intervention. Had Cemario sustained he impact right injury, skull'fractures and side this could have survived from as his head. She of stated the nature little as several minutes to as much as hours, injuries suggested II’s at- many although likely Cecil that he the blow tempted to fend off his attacker. She also would have rendered him unconscious. passed way that the wound to his skull would The stab wound which all the stated have been fatal without medical interven- through body also would have Cemario’s death, explained. tion. Had II sustained Dr. only Cecil resulted Funte wound, he could have survived from as II Dr. Funte testified that Cecil little as several to as one long minutes as incised wounds and that had lac- Cemario day. Had he medical received treatment majority erations. She said the of the receiving injuries, within hour of were and superficial incised wounds not survived, possibly it although could have very She also wounds deep. said the could “necessarily not probable.” was slashing have resulted from a cut from a four-year-old

Dr. Funte knife. Funte was able to deter- testified Dr. not Cemario, Dr. a autopsy Laboy per- smooth-edged whose mine whether serrated or siblings individually unique, and not injury. She identi- used in each

knife was mi- same mother share the same unique pattern injuries that had fied two wounds, profile. DNA Hair has thou- which tochondrial incised equally spaced DNA, Ms. copies Dr. sands of of mitochondrial a serrated blade. indicative of therefore, stated; Polanskey mitochondrial may while a serrated blade Funte said that analysis highly of hair is effective. it will do DNA pattern, leave such a always the skin. dragged if across so regard to the Lester Street homi- With cides, Otterstatter, Polanskey Ms. conducted mitochon- physical scientist Linda the three testing drial DNA on four hairs: in the Trace Evidence forensic examiner Roberson’s Quantico, head hairs recovered from Ms. laboratory FBI Unit analysis body with Caucasian characteristics regarding the Virginia, testified —two characteristics— Mongoloid the crime and one with removed from samples hair fragment body of a hair recovered debris recov- compared scene. She had received with hair sam- from Cemario’s left hand. She the crime scene ered from Cecil, Roberson, Cecil, samples known hair Ms. Ro- Ms. Ms. from ples from defendant, berson, Seals, defendant, Cemario, II, Mr. Williams, Mr. Cecil Smith, Hill, hair as well as Ms. the mother samples Mr. Hill. No head Cedrick, II, Williams, Seals, C.J., the mother of or Cecil and Ms. submitted for Mr. Cemario, C.J., Cedrick,. Ceniyah. hairs recovered from Ms. Ceniyah. Head with the back were consistent Roberson’s The two hairs with Caucasian character- II. from Ms. Roberson Cecil samples the same mitochondrial DNA istics had from Ms. Ro- Three other hairs recovered sequence, sequence but this differed from as head back were identified berson’s Polanskey known re- samples all the Ms. hairs, them had Caucasian and two of Mongoloid ceived. The hair with charac- characteristics, Mongo- while the third had teristics lacked sufficient mitochondrial three head loid These characteristics. sequence. DNA to obtain a The mitochon- microscopically to the hairs were dissimilar sequence drial DNA of the hair found on (cid:127) and were sub- samples known head hair hand with Ms. Cemario’s was concordant analysis. mitted for mitochondrial DNA sequence, Williams’s mitochondrial DNA come meaning testified that a hair re- the hair could have Ms. Otterstatter Cemario, Williams, C.J., Cedrick, right covered Ms. Williams’s hand from Ms. Ceniyah. Polanskey hair similar to that of Ms. Ms. determined was a head result, Williams, conclusively could not and as a was not submit- that the defendant analysis. Although body a have been the source of the hair. ted for further fragment hair discovered on the left side of James, Special Agent Lawrence a foren- Cemario’s left hand was not suitable for sic scientist for the Tennessee Bureau of it microscopic comparison, was submitted (“TBI”), Investigation testified as an ex- analysis. DNA for mitochondrial Hairs analy- pert serology in forensic and DNA the northwest area of the recovered from analyzed samples sis. He numerous blood bedroom were determined to be head hairs taken from the house and determined that similar and thus were to those of Cemario each of them matched to one of the victims analysis. not submitted for further par- and none matched the defendant. A a Polanskey, profile Deborah forensic examiner tial DNA he obtained from a bullet fragment DNA unit of the FBI recovered from the sofa the mitochondrial male, with a laboratory, living testified that mitochondrial room was consistent could not be excluded as a con- DNA is inherited from the mother alone Cecil green He swabbed all of the According Special Agent Braswell, tributor. a scene, recovered at the but the sam- beads caliber .380 firearm typically holds eight profile, ple only partial produced consis- cartridges, with seven cartridges in the did tent male DNA that not match magazine and one cartridge in the gun. any of victims or defendant. A nine-millimeter firearm typically holds rounds, thirteen with twelve rounds in Special Agent James testified on cross- magazine and one round in the gun. analysis examination that his the defen- Agent Special Braswell testified that she pants, dant’s which were seized following analyzed eight arrest, .380 caliber cartridge only revealed blood matching casings and the thirteen defendant. He no nine-millimeter any found blood of cartridge casings the victims on the defendant’s recovered from clothing. He also did not find the defendant’s DNA Lester Street crime scene. From her blades, handles, on the knife the knife analysis, she concluded that all of the bodies, boards, victims’ the glass, wood .380 caliber bullets were fired from the pillows, shotgun, the shell casings, gun same and that the nine-millimeter or the shoes. He that analysis testified casings also were all fired from the same scrapings from Ms. Roberson’s nails nine-millimeter Special firearm. Agent yielded profile a DNA anof unknown fe- Braswell a single testified that person male. could have eight fired all from the bullets caliber .380 firearm all thirteen bul- Special

TBI Agent Forensic Scientist from lets the nine-millimeter Braswell, firearm in a expert Cervinia in firearms identification, period However, short of time. and firearms cross- testified re- examination, garding Special Agent evidence found the crime scene Braswell ac- and the nature of the firearms used in knowledged that she no had means of de- crime. She identified the bullets recov- termining whether one shooter or multi- ered from the the scene. victims and With ple shooters perpetrated the Lester Cecil, respect to she explained a nine- Street homicides. millimeter bullet was recovered from his Special Agent acknowledged Braswell thigh, a left .380 caliber bullet was recov- that a capable nine-millimeter firearm is from right scapula, ered Cecil’s and a .380 rounds, firing .380 caliber but opined she caliber auto bullet jacket fragment was the .380 casings caliber recovered cavity,

recovered from his oral which had crime scene were not fired from a originally part been of the .380 caliber nine-millimeter explained firearm. She bullet recovered from his neck. A nine- cartridge .380 caliber casing is jacket fragment millimeter bullet was also shorter and has a slightly smaller diame- clothing. recovered from Cecil’s A nine- ter, causing casing bulge when it is jacket millimeter bullet and fragments fired from a Spe- nine-millimeter firearm. were recovered from Ms. Roberson’s left Agent cial Braswell found no bulging on thigh. Another nine-millimeter bullet the .380 caliber casings recovered at the jacket fragments were recovered from Lester Street crime She scene. also ac- Ms. Williams’s left calf muscle. A nine- knowledged that some nine-millimeter millimeter bullet fire- jacket fragments only cartridges arms hold in maga- were also Mr. ten recovered from Seals’s C-l vertebrae, in cartridge addition the .380 zine one the chamber. caliber reiterated, however, bullet recovered from the left side of She that the standard back. nine-millimeter weapon holds twelve cross-examination, Mr. At- round in formation. On magazine and one

rounds in the asking that he did not recall kins stated chamber. “in it for officer what was police gun- Braswell found no Special Agent later, the officer About a week [him].” Cecil, clothing of Ms. on the shot residue him Mr. Atkins and informed contacted Roberson, The lack of or Ms. Williams. Mr. that the information was not useful. residue, explained, meant ei- she gunshot acknowledged that he had been Atkins enough away the shooter was far ther that during year prior convicted of theft gun when the was fired from the victims trial, that he had not want- the defendant’s residue, object, or that an that it left no trial, appeared at and had at testify ed to placed had been between pillow, such as a pursuant subpoena. trial to a Although Special victim. gun and the Stark testified that he Sergeant Joseph Agent gunpowder Braswell discovered 4, 2008, March interviewed Mr. Waddell on on the bullet holes Mr. particles Seals’s According to approximately p.m. 8:00 used, shirt, testing gun without she Stark, Sergeant Mr. Waddell stated that only estimate the distance between could him Hill—had told that the Seals, “Frank” —Mr. stating and Mr. that the shooter were tortured and that Cecil’s fin- victims gun at least two feet and no more than Sergeant Stark re- gers were severed. away from Mr. when fired. four feet Seals him telling called Mr. Waddell about She was unable to determine which of the and “Doc” and “falling out” between Cecil body Seals’s bullets recovered from Mr. being about and “Frank” members of Cecil produced the residue. Gangster Disciples. 5. The Defense Proof Vester, Thirty-four-year-old Markel case, “Cato,” testified that he had prosecution After the rested its known joined Gangster Disciples in 1997 or presented following proof. defense Atkins, twenty- Max twenty-five Cedric whom 1998 when he was or Sergeant knew “Doc Holi- police suspected years interviewed when the six old. Mr. Vester involvement, gang approxi- day” and “Frank” but did not know-wheth- testified mately Holiday” any the mur- er “Doc held rank in the a week and a half before ders, in March of 2008. He briefly Gangster Disciples he met Cecil and talked with a member According him in a hotel room. to Mr. confirmed that Cecil had been Atkins, Gangster that he owed about and that Disciples Cecil said Cecil $300,000 performed to the “mob” and advised Mr. maintenance duties at where Mr. owing people money. apartment complex Atkins to avoid Mr. Wester Atkins a refer- Mr. testified that “Frank”— understood the “mob” as lived. Vester money ence to a who have Mr. Hill—had called him and told him group people respect happened and sell narcotics or “whatev- about what had to Cecil and the seeing er.” Mr. Atkins said that after Mr. recalled Cecil’s other victims. Vester murder, or three weeks relayed approximately he his conversation with Cecil two murder, Mr. could Memphis Cecil to an officer of the Police before his but Vester Department previously spoken to whom he had not recall whether he had to Cecil 2nd, provided on March 1st or March phone information. Mr. Atkins said had not questions although he answered the officer’s also said Cecil truthfully, money Saturday Sunday never him demanded called else, anyone prior was not to his death. Mr. Vester confirmed officer or promised phone through the in- that he had cell service anything exchange for Cricket Wireless March and he being discovered, after was interviewed on provided phone his cell number. occasions, four or five gave different statements as to what had occurred. She Wright,

Ms. the Cricket Wireless em- expressed also concern that the formal ployee who previously had testified for the forensic interviews of the children prosecution, did not returned to the stand to clari- 13, 2008, occur until August fy prior testimony her phone about more than Cecil’s five incident, months after phone records. Cecil’s that, records showed explaining given that Ms. Smith called him at 1:30 a.m. the time passed, the chil- 2, 2008, March and that the call lasted possibly dren had been exposed to infor- fifty-nine seconds but was not answered. mation other family members had about The records also showed receiving Cecil the crimes. another call from Ms. Smith at 1:37 a.m. Dr. Aldridge testified that C.J.’s initial 2, 2008, on March and that this second call incident, account of the in which he named approximately lasted fifty-six seconds but “Cassandra,” reliable, was “possibly” be- either was not or answered went to voice- persons cause observing the interview de- mail. Wright Ms. stated that she had scribed C.J. as appearing to relive the been mistaken if previously she had testi- trauma gave as he the statement. Addi- fied that those calls were answered. tionally, Dr. Aldridge noted that the initial Wright Ms. further testified that Cecil interviewers had appropriately open- used (“Cato’s”) had called Mr. Vester’s cell questions. ended She explained further phone 2nd, number at 12:38 a.m. on March that, generally, initial interviews of chil-

with the call lasting seventeen seconds. produce dren more accurate information Ms. Wright said that this call could have about a traumatic event because a child’s answered, been but she had no means of memory becomes less clear pas- with the determining whether a conversation actu- sage of interviews, time and repetitive ally occurred. Records showed that Cecil may become contaminated information called Mr. Vester’s again number at 12:39 learned from others. Aldridge Dr. also a.m. and that this second call forty- lasted explained that if a questioned child is after four Wright seconds. Ms. stated that she having already provided answer, an could not determine whether the call was may child conclude that the initial answer answered. unacceptable provide a different Carroll, William employee T, an of AT & answer. testified that eight-second call had been p.m. made at 11:35 on March Aldridge Dr. emphasized also partic- the land telephone line inside the Lester ular importance of recording, from the be- Street residence to Mr. Waddell’s number. ginning, all statements of a child who has Mr. Carroll was unable to determine been severely traumatized. Recording, whether the call was answered. explained, she preserves a record of the sequence of the child’s memory and how

Dr. Nancy Aldridge, psychotherapist memory each resurfaced. Dr. expert Aldridge in the forensic evaluation of that, children, testified explained although some of the records protocol for con- she reviewed in ducting a forensic this case interview of a referenced inter- child and C.J., expressed her views of transcripts concerns about the no or recordings manner in which C.J. and available, Cedrick’s of those interviews interviews were so she were conducted. Her concerns was not included able to spoken determine who had the fact C.J., that C.J. was shortly interviewed asked, what questions had been vehicle, visiting “Frank” —Mr. first given prior had to Cecil’s C.J.

what information that actually Barclay Apartments recorded. so were Hill—at the interviews The gun. retrieve his Mr. Seals could expressed concerns Aldridge also Dr. Cecil, Seals, Mr. defendant testified testimony, trial and Cedrick’s about C.J.’s Gang- and “Frank” were members that I had for these concern stating, “The joined that he had Disciples ster very, very to be they seemed children is they Crips in the 1990s. When Kitchen to be questions going were to what clear as complex, apartment at Mr. Hill’s arrived what their of them and each one asked car, Mr. stayed in the but the defendant very pre- they So were were. answers As exited the vehicle. Seals Cecil Dr. testimony.” Aldridge pared for apartment, toward Mr. Hill’s they walked that, reliability of although the C.J.’s said steps and talked to a man walked down jury, she an issue for testimony was about the incident that Mr. Seals and Cecil reliability because C.J. its questioned 14th, February when had occurred on Ce- question with whatever agree seemed marijuana in police cil told the about the that, him. She also noted was asked of apartment. Mr. girlfriend’s Mr. Hill’s two-and-one-half-year period given the eventually proceeded to Mr. Hill’s Seals between the crimes and elapsed that had alone, in the but Cecil remained apartment trial, potential was for contami- there lot, the man who had arguing with parking children’s memories. nation of the talk. The defen- steps walked down the cross-examination, ac- Aldridge Dr. On with others. argued dant said Cecil often that she did not know whether knowledged the man was at- The defendant said that as the of the defendant C.J.’s identification Cecil, to calm because Cecil and tempting reiterated wrong, was but she perpetrator it,” “into believed Mr. Hill were and Cecil that she had “concerns.” Mr. that the man should be on his side. The as the final wit- defendant testified argument aware of with Seals was Cecil’s at trial. He a detailed ac- provided ness Hill, said, Mr. the defendant and that was on March count of his activities gone Mr. Seals had alone into the why largely consistent with his ini- which was gun. to retrieve the apartment trial, how- police. tial statement to the At ever, placed the defendant blame that, testified when the defendant the murders on unknown assailants and Cecil, attempted hug man Cecil asked hiding said he had been under bed shirt, the man why, pulled up his and told while the crimes were the master bedroom anything did not have on him. that he -particular, committed. In the defendant fight he Cecil told the man that wanted to watch a going recounted to Cecil’shome to go get Hill and instructed the man to .Mr. game Saturday, March basketball got Mr. Hill. the man instead into When Williams, 2008, along with the chil- Ms. Impala, yelled, “y’all his black Cecil know Waddell, dren, Sr., Mr. and Mr. Jessie at,” stay returning where I before to his Seals, every- who arrived a little later than own car. The defendant said that one said that Jessie else. defendant and that he laughed Cecil told Cecil evening, but the early had left Sr. Mr. Hill had tried to call him. When Mr. home all remained Cecil’s answered; Hill again, called howev- Cecil evening, grilling, drinking, smoking Seals, er, actually the caller was Mr. who Mr. Cecil and Seals. they where were. told asking Cecil they waiting Mr. on him. Cecil that sometime Seals

The defendant testified dark, Seals, he had he, in also told the defendant after Mr. and Cecil left terwards, the man “punk’d” hug who had tried to she and Cecil in person talked more, five go him. The defendant told to inside Cecil minutes before Cecil re- Seals, refused, get Mr. but so turned to his car Cecil and called Ms. Smith on phone, cell apart- away. went to Mr. Hill’s his defendant and drove Inside, Hill, saw ment. the defendant Mr. apartment After leaving the complex, “Trell,” “Tammy,” and a man whom the they drove to another woman’s home and defendant did not know. The defendant stayed for thirty forty minutes, before told Mr. Seals that he and Cecil were returning to Cecil’s house. According to leave, ready and Mr. to Seals and the defendant, he, Cecil, Seals, Mr. Ms. left Mr. apartment. defendant Hill’s Williams, and Ms. together Roberson were room, the living in with Ms. Williams he, Cecil,

The defendant said that cooler, drinking a wine and Ms. Roberson Mr. then Seals went to Sheila Jones’s preparing a marijuana cigarette. Cecil home. The defendant and Cecil went in- asked Ms. put Williams to clean sheets on side, Sheila, looking for but she was not bedroom, the bed the master explaining The home. defendant stated that he planned that he to Mr. allow Seals and Ms. caught boyfriend Keaira’s one of the bedroom, Roberson to use the master be- with pants halfway bedrooms down. Mr. just cause Seals had been released him, left, began cursing they When Keaira jail. going “Marilyn,” next the home of grandmother maternal of the defendant’s The defendant said that he volunteered son, they stayed where for less than five change the sheets and that he was in minutes, because the son defendant’s was bedroom, the master quilt in his not there. hand, when he two heard or three gun- shots. The acknowledged defendant they The defendant testified that next he was .44 carrying a blue caliber handgun an apartment went to near GE complex time, but when he heard screaming, pick up Patterson Church to Ms. Rober- hid he beneath the The bed. defendant son, girlfriend. Mr. Seals’s Ms. Roberson only claimed have heard a few shots at they 'any marijuana, asked whether had first, followed just more shots seconds said Cecil that he knew where to later. The defendant said he did not know some, purchase they apart- so to an went whether the shots were fired from the Cabanas, ment at Kimball they pur- where gun or guns. same from different chased worth of marijuana. got Cecil $45 returned, out of the car and telling then defendant said he remained defendant he wanted to introduce hidden beneath the bed for several min- utes, noises, him to “his folks.” to the defen- According because he other heard which dant, this term later referred to members of the he the family dog, realized were but Gangster Disciples. The initially defendant testi- which he were believed someone people four apart- walking fied that were inside the around in bedroom where he ment, hiding. defendant and re- Cecil was The defendant said that he mained for five approximately going minutes. was unable to hear what was inon home, ran they leaving, they As into Ms. areas of eventually other so he lot, parking Smith in the hiding place and Cecil talked left his and went into the proceeded living to her room. while The defendant said that he yelled the car. The defendant her later bodies discovered victims’ and believed name, children, house, Ms. over including Smith came to the all spoke vehicle and Af- everyone inside. were dead. He that the front door said Dep- he left the house on a The defendant testified that before open was and that him, living uty a door in the interviewed bicycle Armstrong he found behind Director been in the Bureau for room. Homicide to a table. The hours and handcuffed bicy- riding The defendant recalled Deputy defendant said that Director Arm- home, Keaira to Ms. Jones’s where cle strong played tape recording of C.J. him to enter. defendant said allowed him as the but identifying perpetrator did immediately into he went Ms. Jones’s that taped not earlier interviews of play C.J. bleach, Using vomited. bathroom and identifying other individuals. The defen- sink, vomit defendant cleaned the from the dant that after playing stated record- dropped but he some bleach on ing, began Deputy Armstrong Director teeth, brushing After his the defen- floor. about screaming family defendant’s door, dant knocked on Keaira’s bedroom and that he “playing said was tired of talk, telling they her he needed to but that defendant, games.” According to Dep- never talked. uty Director that he Armstrong said knew not The defendant admitted that he did “bullshitting” was and defendant that what had to report police, he seen he was “sick of it.” The defendant- said testimony explaining, “Y’all done heard began that Deputy Armstrong Director gang. about the I’m in a gangs. We don’t “pounding” demanding oh the table and just police. simple. call the It’s that We have answers “now.” part call the police. don’t It’s of what acknowledged The defendant telling If I I’ll police, just we do. call the like be Deputy Director Armstrong that Cecil had my brother.”- He also that he admitted shotgun for a that he reachéd and had had not been truthful when he Lieu- told just shooting. then started The defendant Sergeant tenant Mason and on Stark also recalled then to see his asking March 7th mother. that Cecil had driven him back The agreed defendant that he told after his they home listened to the basketball had gun The mother that Cecil a when game. defendant that he reiterated Cecil down his put gun, not tell truth the defendant police did about what began He shooting. telling also admitted initially questioned had occurred when be- his mother that he police.” cause he “stuck” children. talk “[doesn’t] The defendant stated Mr. Waddell The defendant denied these statements trial, spoken that, had to a woman who explaining said that the he was when inter- 7th, being reported by defendant was the me- March slept viewed on he had not dia as killer. The defendant also stat- since the homicides discovered were family ed that he and his saw the news March 3rd and that he had cried that, report. acknowledged depressed happened. been about what had seeing after his face on a report, news he defendant stated he asked to see put gun a his head threatened his mother times approximately three dur- suicide, interview, saying ing that he was not going Deputy back but Director prison something he did not him Armstrong do told that he would not be declaring anyone that he should have with his died allowed to see until the defendant brother. emphasized The defendant told he him what wanted to know. The that, police 7th, who officers entered the house defendant said on March earlier after his suicide threat did he not offer to had told other officers that he did not take him to kill hospital or mental health the victiihs. The defendant insisted facility. Deputy that his statement Director admitting his Armstrong guilt thirty was not minutes. He denied ever hearing true, proclaimed and he his innocence of the children scream and claimed that he crimes, stating that he did not kill never anyone heard hitting the children any Cecil or of the other victims. with boards. The defendant said that he remained under the bed while the killers that, The defendant confirmed at the altered the crime scene gathering the homicides, cousin, time of the Tammy shell casings and pulling down Ms. Rober- Randolph, dating Motley. was Vernon At pants. son’s The defendant said that when homicides, point prior some to the Ms. living room, entered the Ms. Roberson Randolph told the po- defendant that the positioned in the manner emergency lice looking Motley for Mr. in connec- personnel discovered her and as ap- she tion with a murder charge gave him a peared the crime scene photographs. .44 caliber firearm to keep for her. At Ms. The defendant claimed that he saw C.J. Randolph’s request, the defendant later lying in the bathtub but said that he did gave gun person this another —Ms. “pay attention” to the knife in C.J.’s Randolph’s cousin “Antonio.” head. The defendant did not check on cross-examination, On the defendant ad- C.J. to determine whether he was alive mitted that he left when Cecil’s house on and believed that everyone in the house bicycle, he believed all people nine was dead. inside the Lester Street home were dead. The defendant testified that he was in He acknowledged that he did not call 9-1- the interview room with Deputy Director 1 and that instead he went to Sheila’s Armstrong hours, for four or five and the home and went to bed. He admitted that defendant maintained that he had confess- he go did not to work the next day or only ed after Deputy Armstrong Director report anyone, the crimes to although he screamed at him and threatened him. The went to dinner with Mr. Waddell on Sun- explained: defendant day, March 2nd. The defendant acknowl- He pound didn’t on the

edged table. It was that he also went Monday to work he asked me when he morning played tape his father but failed to tell played and after he tape, he parents played either of his about what had oc- what, [twelve, the tape curred thirteen] while he was times. hidden beneath the after,he played And it master bed at [twelve] [thir- Cecil’s home. The defen- times, after I teen] still told him I dant didn’t admitted also that he had lied to his it, do that’s when your he said I’ll kill family about the last time he had seen * mother f* *ing myself, ass you cold- Cecil. hearted murdering killing mother The defendant further stated on cross- n n 0^»

examination that attempt he did not defendant, According to the Deputy Di- escape when he heard the first shots fired. Armstrong rector then got said: “I some- Although the master bedroom had a door thing you. I’m going your to throw ass exiting home, to the outside of the on that 4th floor and I’m going to let them defendant said that he did not have the * your kill f* *ing mother ass.” key that was open needed to the door.

The defendant also admitted that he did The defendant acknowledged that his not attempt to use the phone cordless in testimony at trial regarding the events was the master bedroom to emergency call for not consistent with what he had told his assistance. The defendant said that he mother. The defendant said that he had remained approximately under the bed for leaned across the table and told his moth- to the felony involving the use of violence

er, this on “[T]hey trying put [me].” three prosecution the names of those introduced person. asked for His mother this so that she and Ce- trying photographs to do additional Cemario who were (i)(5) The defendant said get help. aggra- could him proof cil II’s bodies as told, their he did not know that he her vating circumstance. watching were him. they and that

names presented impact victim The State also he and his mother said that The defendant testimony through the of Ms. evidence hands, he other’s grabbed then each Ida, mother, and Mr. Seals’s Williams’s worry, and then mother not to told his aunt, Mallory. Annette Ida testified committing the offenses. admitted surviving grandchil- her adopted she had that he told his acknowledged result, raising dren and was them. As began arguing mother that he and Cecil job struggling and was she had lost her that, gun, his he put after Cecil down financially. family She and her The defendant also begun shooting. had counseling as a result of the homicides. him how asking mother recalled both his Mallory Ms. testified that at the time of the house and his re- away he got death, children, Mr. Seals had three away bicycle. he on a sponse that rode She said supported. whom he loved agreed that he had told his The defendant “hit hard” Mr. Seals’s death had [her] because that he killed the children mother younger because he had been like a broth- However, him. the defendant they saw er before his mother died and that she had lied to his mother and insisted that figure been a mother to him after his testimony trial was truthful. that his mother’s death. the defendant’s The defense rested after called no testimony, prosecution and the testimony The defense offered the of rebuttal witnesses. Shettles, who mitigation specialist, Glori a family history described the defendant’s guilt phase,

At the conclusion of background. She said that some of six counts jury convicted the defendant family the defendant’s members were will- degree first murder for premeditated him ing provide information about but Cecil, Williams, Seals, Mr. killing Ms. Ms. willing testify others were not on his Roberson, Cemario, jury II. The and Cecil investigation, behalf. From her Ms. Shet- of three also convicted the defendant par- tles had learned that the defendant’s first attempted premeditated de- counts in C.J., ents were married when his moth- upon murder for the attacks gree er, Shaw, Cedrick, years Ms. was fifteen old and his Ceniyah. pro- The trial then father, Sr., years Jessie was nineteen old. on the six first penalty phase ceeded to the They daughter, Nicole. soon had Jessie degree murder convictions. joined Army in Sr. and was stationed Penalty B. Phase Florida, where the born. defendant was point, At some Ms. Shaw and Nicole left upon proof relied prosecution Memphis, Florida and returned to where guilt phase at the of the trial. submitted ill addition, Nicole became so that Jessie Sr. left his stipulated In that the parties Memphis returned to also.16 Af- convicted of base and previously defendant had been murder, years, honorably ter three Jessie Sr. was degree qualified which as a second apparently time. 16. Jessie Sr. left his base without permission, disciplined for which he was at He

discharged Army. proper clothing. from the wanted the repeating After fourth Florida, family grade, but he was to remain the defendant was socially promot- employment, family so the ed in unable to obtain school. Ms. Shettles believed that Cecil, Memphis. capable returned to who was the defendant was performing defendant, years younger than the better in school performance three but that his Memphis. by was born in was hindered the excessive absences and tardies. When the defendant left Ms. Shettles testified that Jessie Sr. had sixteen, age school he was still Shaw, jealous Ms. who went on a been eighth grade and had attended ten differ- Orleans, New trip church returned with ent schools. boyfriend, Sr. and told Jessie that she no longer They fifteen, to be to him. wanted married Ms. Shettles testified that age for time after remained married some the defendant had become involved incident, juvenile system however. Ms. Shettles learned court and had ar- several through investigation juvenile adjudications. her defen- rests Ms. argued parents dant’s often. Jessie Sr. Shaw was unable to control him and did physically was abusive to Ms. Shaw on not what juve- know to do. She attended occasion, more than one children nile court with the many defendant on occasions, witnessed the abuse. Ms. Shaw decided to and Nicole attended on Ms. money Jessie to do leave Sr. saved so. Shaw’s behalf when she could not attend. day, When Jessie Sr. returned home one family Ms. Shettles testified that the did gone. Ms. Shaw and children were not much money have and that Shaw Ms. not Ms. Shaw did contact Jessie Sr. until Although was often home. Nicole did to five months four later. brothers, her to care best for her food was time, six old at years this and the up, locked and the children were not able happened children did not know what had it. get to When the children visited their father. grandmother Sunday their maternal dinner, family

Ms. Shettles testified that the defendant and mon- Cecil stole during ey grandmother’s moved often their to purse pur- defendant’s child- They severely punished hood. Ms. Shettles noted that one of the chase food. were so, poor in performance doing grandmother risk factors for school for and their even- in moving during tually life is often child- Ms. that told Shaw the defendant diagnosed longer hood. The in defendant was with and Cecil no welcome her learning disability reading a in and math home. was in enrolled resource classes. He very little only defendant worked disciplinary problems also had at school leaving only legitimate after school. The and at home. School mental health rec- job defendant had ever held was provided ords indicated he was with security eighteen. guard age as a at the of counseling. individual at- Counselors nineteen, At age pleaded the defendant Shaw, tempted to meet Ms. but she guilty second degree to murder and was the appointments either cancelled or did eighteen years prison. to sentenced

not attend them. prison, When he first entered the defen- many write-ups refusing Ms. dant Shettles testified that defendant received for officer, fourth to grade participate, failed twice due excessive at an cursing weap- absences from school. The defendant other offenses that not involve did Shettles, school, according write-ups missed Ms. also for vio- ons. He received having because others teased him for not lent activities. Ms. Shaw and her husband while murder conviction and also instructed only once the defendant visited family mitigating No other mem- circumstances. The jury was incarcerated. as him, spoke defendant unanimously multiple statutory visited and the jury bers found only on a few telephone father to his applicable to aggravating circumstances Ms. said that de- occasions. Shettles degree conviction. first murder each participated and “thrived” a fendant murder, regard jury With Cecil’s while in program modification behavioral aggravating cir- following found the three twice The defendant was consid- prison. (1) previ- was cumstances: defendant released being parole ered for before more ously convicted of one or felonies of years his serving after fourteen parole (2) violence; the use the de- involving of eighteen-year sentence. risk great “knowingly fendant created (2) that some of the persons, Ms. Shettles testified to two more other death or murdered, value his life family during defendant’s members than the victim act showing attending sup- trial and murder”; (3) but his com- the defendant for him difficult them. port had been mass See TenmCode mitted murder. another explained Ms. Shettles friend (2014).17 (12) (3), IB—204(i)(2), § Ann. 39— appear defendant been afraid of the had Williams, Regarding the of Ms. murders that the at trial. Ms. Shettles said defen- Seals, Roberson, the jury Mr. and Ms. relationship with ongoing dant has an unanimously aggravating five cir- found that an eighty-one-year-old son and friend cumstances, same three including grandmother also cares of the defendant’s murder, applicable found to be to Cecil’s for the defendant. following well as the two additional (1) cross-examination, aggravating the mur- Shettles testi- circumstances: On Ms. suspend- purpose fied that the defendant had been der was committed for the with, many from school times that avoiding, interfering preventing ed so or Memphis City refused to allow Schools lawful arrest prosecution or (2) Ms. him to continue to attend. Shettles another; or the murder defendant acknowledged further knowingly committed while the defen- was juvenile adjudication more than one had a role in committing, dant substantial involving weapons. his use Ms. Shettles commit, attempting to or was fleeing or juvenile that the agreed school and records having after role commit- substantial fought indicated that the defendant often ting any to commit attempting first problems and had with his brother Cecil. 13—204(i)(6), § murder. degree See Id. 39— Ms. that the defendant Shettles aware (7). Regarding the murders of Cemario joined gang prison while Crips II, unanimously jury and Cecil found write-up and that he had received a for circumstances, seven includ- aggravating he violence while incarcerated because appli- five ing the same it had found who four other inmates cut an inmate was cable to the first murders of degree Ms. trying Crips. to leave the Williams, Roberson, Seals, Mr. and Ms. as following well as the two additional statu- penalty phase, At the conclusion of the (1) tory aggravating judge jury regard- the trial circumstances: instructed old ing years circumstances victim was less than twelve aggravating old degree eighteen years State was to each first the defendant alleging as was 17. The has to the current text the relevant statutes not are statute. trial; thus, changed since the time of citations (2) older; especially acting agent cause she was murder as heinous, atrocious, in that it in- or cruel The police. defendant concedes both that physical torture or serious abuse volved did not file a pretrial motion to sup beyond produce death. necessary to press that he did raise any of (5). 13—204(i)(l), § jury Id. See these issues his motion for new trial. 39— circum- aggravating determined argues State that the defendant for applicable degree to each first stances right feited his to appellate review of these outweighed any miti- murder conviction by failing issues to raise them in a pretrial a gating beyond circumstances reasonable to suppress, required by motion as Ten imposed doubt and a sentence death for nessee Rule of Criminal Procedure degree each of the six first defendant’s 12(b)(2)(C),which states that “a motion to trial murder convictions. The court en- evidence” suppress among those mo judgment a tered accordance tions that “must be raised before trial.” jury’s verdict. says The State even plain that not error sentencing separate hearing At a on the applies review when a defendant fails to first attempted degree defendant’s three pretrial suppression file motion. sup As convictions, trial murder court classi- for port argument this the State relies on Range II multiple fied the defendant as a construing federal decisions the identical offender, forty-year imposed a sentence language of Federal Rule Criminal Pro conviction, each and ordered these sen- 12(b)(3)(C) precluding plain cedure even consecutively to tences served each other appeal error review on when a defendant the death sentences. The defen- pretrial fails make a motion to sup appealed, dant and the of Criminal Court See, Burke, press. e.g., United States v. Appeals affirmed the defendant’s convic- (10th Cir.2011); F.3d 987-88 ap- tions and sentences. The defendant’s States v. Yousef, United F.3d automatically peal was then docketed in (2d Cir.2003); United States v. Chavez- §Ann. this Court. See 39-13- Tenn.Code Valencia, (5th 116 F.3d 129-134 Cir. 206(a)(1). 1997). Among things, other the State ar gues pre unless defendant files a II. Analysis trial motion to the State suppress, may A. opportunity Admission of the Defendant’s not have an to establish that challenged

Confessions evidence was seized lawful ly because the evidence relevant to the The defendant that the admis contends not be suppression may issue admissible of his sion custodial statements violated his and relevant to an issue at trial. Fifth, Fourth, rights under the and Four teenth Amendments to the United States 1. Failure to File Pretrial Motions I, Constitution and article sections 7 and 9 Suppress in Capital Cases In particu Tennessee Constitution. that-,

lar, (a) previously defendant claims his war- This Court has faced the supported by prob appellate rantless arrest was not of whether review in a capi issue cause; (b) suppression able case police his confession tal extends to issues arrest; illegal appeal. officers was the fruit of his for the on raised first time In (c) (Tenn. Duncan, his confession to v. police officers was State 698 S.W.2d 63 1985), after he his Mr. right sup coerced had invoked to Duncan “never moved to (d) silent; “statements, press” fingerprints, remain his confession to his blood suppressed mother should have be saliva as the result been tests obtained of later, applied years this Court he chal Nine at 68. When Id. detention.” [his] in which a capital in another case Duncan evidence for of this admission lenged the time on for the first challenged argued the State appeal, time on the first on of his statements the admission appeal because the foreclosed that review were ob- the statements the basis that Id. at 67-68. This waived. had been issue of his constitutional tained in violation where a “de stating that disagreed, Court Bigbee, v. 885 S.W.2d rights. State death, of this sentence is under fendant (Tenn.1994), by statute on oth- superseded ‘automatically’ duty to under is [C]ourt Odom, v. as stated in State grounds er (quoting Id. Tenn. review the sentence.” (Tenn.2004). Big- Mr. S.W.3d 580-81 39-2-205(a) (currently codi § Ann. Code sup- a motion to had failed to make bee 39-13-206(a)(1) §Ann. fied at Tenn.Code of object to the admission failed to press, result, (2010))). the Duncan Court aAs trial, to raise at and failed the statements is no waiver of error that “there explained new trial. How- the issue in his motion for admissibility of evidence to the directed Duncan, ever, Bigbee ar- Mr. relying under sentence of is when the defendant mandated appellate that “the review gued 68; Duncan, see 698 S.W.2d death.” to con- require[d] this Court by [statute] Nesbit, 872, 880- 978 S.W.2d also State error, called to any alleged whether sider (Tenn.1998) that, given the (holding Bigbee, or not.” the trial court’s attention directing this mandate Court statutory at 805. This addressed 885 S.W.2d Court sentences, a capital review convictions follows: Bigbee’s argument Mr. for new to file a motion defendant’s failure the record in this have reviewed [W]e juris this deprive not Court trial does complaint light of the defendant’s case have issues that should diction to review ], here, as in [Duncan and conclude trial). in a motion for new raised been support nothing in the record to there however, cautioned, The Duncan Court In Bigbee]. [Mr. the contentions alleged error is handi “review of an objection or motion chal- absence of an trial by the failure of capped at times grounds now lenging the evidence on introduction of object to the counsel asserted, by proof was not focused evidence, deprives too often as his failure fully the party either so as to delineate party opportunity opposing critical issue.... competency as to the any question remove Id. questioned evidence.” relevancy Duncan, at 68. Because Mr. 698 S.W.2d obligating The statute this Court to make a mo pretrial had failed to Duncan automatically a defendant’s convic review objection challenging either tion or trial degree murder and sentence of tion of first of the evidence as fruit of admissibility changed has not since our decisions death arguing that Mr. Dun illegal arrest or Bigbee. See Tenn.Code Duncan and in. (2010). were obtained in violation can’s statements only §Ann. 39-13-206 Not is this the Duncan rights, of his such a obligated constitutional still to conduct Court not been proof review, obligates Court determined the statute now also capi so as to delineate review by party Appeals “directed either Court Criminal Thus, fully surrounding capital respect [Mr. the circumstances tal cases. Id. arrest, cases, detention, and'interroga no basis for presented the State has Duncan’s] decisions, which reconsidering prior the Court con our Consequently, tion.” Id. capital in a case does sup record” held that a defendant “nothing cluded that in the review fail- entirely appellate forfeit ported Id. Mr. Duncan’s contentions. 49 omitted). sup- The pretrial to make a motion marks ing defendant bears the suppression persuading issues are burden of press.18 appellate When court Bledsoe, time in appeal capi- plain for the first on error exists. raised State cases, (Tenn.2007). 349, apply plain we will continue to 226 S.W.3d 355 tal We eval review, of Criminal uate each error as Court of the defendant’s claims of er using did in this case.19 As Duncan and ror Appeals principles. these illustrate, however, a defendant Bigbee Legality 3. the Arrest of pretrial sup- fails to file a motion to who and make a record in the trial court press argues defendant first his war- appeal have difficulty prevailing will illegal rantless arrest was because it was plain applied. by error review is supported probable when not cause. The says all of his custodial state-

2. Error Plain Review arrest, of illegal ments were fruit and such, should have been excluded from conducting plain error re When evidence at trial. The State counters that view, grant only this will relief when Court the defendant’s warrantless arrest was le- prerequisites following five are satis gal as it was on probable based cause. fied: (1) clearly the record what establishes The defendant’s warrantless arrest (2) court; occurred in the trial a clear implicates protections Fourth unequivocal and rule of breach- law was Amendment to the United States Constitu (3) 20 ed; right accused substantial I, tion and article section 7 of the Ten (4) affected; adversely the accused nessee Constitution.21 These constitution not issue did waive the for tactical rea- provisions prohibit al unreasonable (5) sons; and consideration of the error seizures, Day, searches and State v. justice. do necessary is substantial 891, (Tenn.2008), S.W.3d 900-01 and re (Tenn. Gomez, 733, State v. 239 S.W.3d quire generally that searches seizures 2007) (internal quotation citations and pursuant be conducted to a warrant that is holding regard right people 18. Our in this limited be secure their capital cases, non-capital houses, effects, note cases. We that in persons, papers, against statutory duty to which the of automat seizures, unreasonable searches and shall apply, ic review does not the Court Crimi violated, not be and no Warrants shall is- Appeals nal has held that trial courts should sue, cause, upon probable supported by but suppress entertain to See, are not motions not affirmation, particularly or Oath de- prior e.g., filed to trial. v. Ran State searched, scribing place to be and the dolph, (Tenn.Crim.App. 692 S.W.2d persons things or to be seized. 1985); Wilson, State v. 611 S.W.2d 846-47 ( 1980); State, Tenn.Crim.App. Feagins v. I, 21.Article section states: (Tenn.Crim.App. 596 S.W.2d 109-110 1979). express opinion sepa people We no That the shall on this be secure their houses, issue. persons, papers possessions, rate seizures; from unreasonable searches and Indeed, the asked of Crimi- 19. State the Court warrants, general whereby and that an offi- Appeals suppression nal to review the issues may suspected cer be commanded to search plain changed posi- error. The State its places, evidence of fact commit- without argued tion this Court and for the first time ted, any person persons or to seize appellate that the defendant forfeited all re- named, particularly whose offenses are not failing suppression view issues to make evidence, supported by described and are pretrial suppression motion. dangerous liberty ought not to be granted. 20. The Fourth Amendment states: 50 technicians, act,” v. legal Draper United judicial determination

issued after a 307, 329, States, 313, v. 431 79 S.Ct. 3 Bishop, State 358 U.S. probable cause. (1959) (Tenn.2014). 22, Brinegar v. (quoting 327 36 L.Ed.2d S.W.3d States, 160, 175, 69 338 U.S. S.Ct. United search seizure A warrantless or (1949)); 1302, L.Ed. see also 93 1879 evidence presumed unreasonable and is Melson, 278; Echols, 382 S.W.3d at 638 thereby subject suppression, is seized Thus, cause probable at 351. ex- S.W.2d one of the unless State establishes arrest, ists when “at the time of the. to the re recognized exceptions warrant within the knowl- facts and circumstances supported Id. An arrest quirement. officers, edge they which had of the and of exceptions probable cause is one information, reasonably trustworthy are Echols, requirement. the warrant State v. person in prudent to warrant a sufficient (Tenn.2012). 266, This S.W.3d 277-78 382 believing that the defendant commit- is exception codified at Tennessee Code committing ted or was offense.” 40-7-103(a)(3) (2012), Annotated section Echols, (citations, 382 S.W.3d at 277-78 is which states that a warrantless arrest alterations, quotation marks and internal felony “a in fact permissible when has omitted). committed, rea been and the officer has believing person sonable cause22 for determining When whether has felony.” arrested committed the Id. a probable support cause existed to war- arrest, reviewing a court rantless consid Supreme As the States United record, including proof ers the entire “[ajrticulating pre has recognized, Court hearing any suppression at adduced cisely what ... cause’ is ‘probable mean[s] presented the evidence at trial. State v. States, possible.” not Ornelas United (Tenn.1998). 290, Henning, 975 S.W.2d 299 695, 1657, 690, 134 517 U.S. 116 S.Ct. Additionally, reviewing a court considers (1996). L.Ed.2d 911 Probable cause is suspicion,” “more than a mere State v. law knowledge collective en- Lawrence, (Tenn.2005), 76 154 S.W.3d the time of possessed forcement at certainty, but it is not absolute State v. arrest, provided sufficient nexus that a Melson, (Tenn.1982). 350 S.W.2d of communication existed between the Moreover, strength “the of the evidence officer other officer arresting any necessary to probable establish cause to possessed relevant officers who informa- significantly arrest is less than the Such a nexus when the offi- tion. exists strength necessary find a evidence relaying cers are information or when guilty beyond a reasonable officer to one officer directs another act. Bishop, doubt.” 431 S.W.3d 41. Bishop, 431 S.W.3d at 36. very

As the name “the information implies, source is [I]f (1) (2) ... probable-cause practical, person police, is who is to the standard known Jacumin, milieu,” concept, part nontechnical” State v. who is not the “criminal (Tenn.1989) (citations (3) aid S.W.2d whose motivation is to omitted), any quotation police expectation and internal marks without of remu- neration, which upon prac focuses “the factual and then information deemed provide prob- tical everyday considerations of life on reliable and is sufficient men, prudent which On the other reasonable able cause arrest. Echols, We previously 22. We have held that "reasonable 382 S.W.3d at 278. use mous. synony- "probable opinion. “probable cause” cause” are cause” this hand, provided the information is serts that C.J.’s identification of the when defen (1) who by professional a informant dant is entitled to presumption not the of (2) favors, money by or a tips for gives reliability ordinarily accorded information “criminal who from the milieu” person prose citizen informants because the (3) may grind, by have an ax to or cution failed to show that C.J. was “moti informant, anonymous the information is solely by vated a sense civic duty.” of suspect, and the State presumptively is argument This without merit. “Infor credibility. must establish its by mation provided citizen/bystander a 37. Id. at [police] presumed witness known to the reliable, prosecution to be and the is not appeal

The record on in this case required the to establish either credibility time establishes that at the of the defen reliability of the informant or the of his (1) arrest, police dant’s the knew that: Cauley, information.” State v. 863 S.W.2d C.J., informant, a eyewit citizen and an (Tenn.1993) 411, Melson, 417 (citing 638 crime, the ness and victim of as well 354-55); S.W.2d at see also State v. defendant, Day, nephew a of the had identified (Tenn.2008) (“We 263 S.W.3d 904 perpetrator defendant the ac the as the of assaults; (2) knowledge information from a homicides and the crime known (3) altered; had the presumed scene been murders citizen informant is reliable and accomplished weap and assaults were with subject the same of scrutiny level (4) home; found ons inside the the defen informant.”).23 applied compensated dant, a close of three of six relative for applying presump rationale three of murder victims and the assault reliability tion of in these circumstances is victims, spent had time the home on First, informants, two-fold. “[c]itizen (5) it; Street familiar Lester and was with they witnesses, whether be victims or have of the last persons was one necessarily gained their information (6) alive; Seals to see Cecil and Mr. through experience.” first-hand State v. previously defendant had been convict (Tenn.Crim. Luke, 995 S.W.2d 636-37 only of recently ed murder and released Melson, App.1998) (citing 638 S.W.2d at forego Based on from incarceration. 354-56). Second, criminal infor “[t]he facts, of ing we conclude “at the time provides exchange mant information in arrest, the facts and circumstances some consideration —whether it be mone officers, of of knowledge within the tary granting exemption or the of some or' reasonably in they trustworthy which had privilege the citizen acts informant —while formation, sufficient to warrant [were] society in the interest personal or of safe believing” de prudent person that the Smith, ty.” (citing Id. State v. 867 S.W.2d the Lester fendant committed Street (Tenn.Crim.App.1993) (emphasis Echols, homicides and assaults. 382 added)); Day, see also 263 S.W.3d at 904 (citations omitted) (alter at 277-78 S.W.3d Thus, (citing approval). Luke al quotation ations and internal marks omit have though recog Tennessee decisions ted). typically nized the- interests that motivate justify pre In citizen arguing police informants cause, reliability, deci probable sumption lacked defendant as- of no Tennessee " entirety Cauley, "When the source the information is an the affidavit.’ 23. informant, reliability citizen ‘the (quoting unnamed S.W.2d at Melson 638 S.W.2d at 356); the source and the information be must .judged from all the circumstances and from warrantless arrest was pre The defendant’s application has conditioned sion Thus, cause. supported probable showing that reliability upon a sumption of establish either a defendant has failed to in fact motivated informant was the citizen unequivocal rule of breach of a clear and of these interests. by one or both any adversely affecting error a sub- law if reliability applies presumption Thus, is not right. stantial the defendant the in simply that prosecution establishes plain error entitled to relief under by a known citizen provided formation doctrine. informant.24 Silent Right to Remain the samé rea- Equally without merit for k. that the argument the defendant’s

son is argues next that The defendant to reliability apply does not presumption Arm Deputy to Director his confession “in- provided the information C.J. because have been admitted into strong should not whether this vestigators did not consider Deputy Director Arm evidence because uncle could young boy’s implication his by continu strong obtained the confession by motivated some fact him had invoked ing question have been instead to after he to remain silent. entirely right unrelated to the his constitutional or circumstance deny does not that he re defendant requiring police A rule to crime.” he warnings, ceived Miranda25 nor does person the crime victim delay arresting deny a written waiver of that executed perpetrator until the has identified as rights receiving after his constitutional confirm that the crime victim had no police Instead, warnings. these defendant making the identifi- ulterior motivation subsequently asserts that he invoked his untenable. Such a rule cation would be right to remain silent when he told Lieu police expend to re- require would Sergeant tenant Mason and Stark that he a crime victim’s mo- delving sources into any longer. did not want to talk to them crime investigating tives rather than appeal support The record on does not perpetrator. More- apprehending con defendant’s claim that he invoked his over, adopt if we were inclined to even remain silent. right stitutional to rule, bearing such a it would have no trial, appeal. this C.J. testified at certainly It is true that question an to opportunity defendant had privilege against guaran self-incrimination him on cross-examination about his moti- to the by teed both the Fifth Amendment identifying vations for the defendant as the I, article United States Constitution26 and perpetrator. Constitution,27 The record contains no evi- 9 of the Tennessee section any dence that C.J. had ulterior motive for right affords criminal defendants the to uncle, defendant, Climer, identifying his as the 400 remain silent. State v. S.W.3d 537, (Tenn.2013); 556-57 State v. Black- perpetrator of these crimes. portion Although showing required, we 26. This of the United States Constitu- 24. no such appeal guarantees person note that the record on establishes ... shall be "[n]o tion identification of the defendant was mo- C.J.’s compelled any criminal to be a wit- case Const, safety only by personal his tivated interest against V. ness himself.” U.S. amend. identifying person assaulted and in who siblings him and assaulted and murdered his I, 9 that "in all crimi- 27. Article section states parents. prosecutions, ... be nal the accused shall not compelled give against to evidence himself.” Arizona, 436, 444-45, 25. v. 384 U.S. Miranda Const, I, § art. 9. Tenn. 1602, (1966). 86 S.Ct. 16 L.Ed.2d 694

53 stock, 200, (Tenn.2000); thus, him; S.W.3d 207 talked with his confession to Crump, 834 State v. S.W.2d her obtained in violation of previ- his (Tenn.1992). However, accused who ously counsel, right invoked guaranteed rely on right wishes to the constitutional the Fifth by and Fourteenth Amendments must invoke unambiguously remain silent to the United States Constitution and it. Berghuis Thompkins, U.S. I, article section 9 of Tennessee Con- 381-82, 130 S.Ct. 176 L.Ed.2d 1098 Again, stitution.28 the record on appeal (2010) (holding that pro the defendant’s not support does the defendant’s claim. longed police ques silence the face of trial, During Deputy Director Arm- tioning unambiguous did amount to an strong testified after invoking silent); right invocation of the remain counsel, right asked to Climer, accord 562 (holding S.W.3d at “ result, speak his mother. As a Depu- ‘the standard for a valid invocation ty Armstrong Director arranged to have right counsel is the same under Ms. Shaw transported protective cus- I, both article section 9 and the Fifth tody to the police department. Just be- ”) (quoting Saylor, Amendment.’ State trial, Ms. Shaw fore testified at the defen- (Tenn.2003)). 246 S.W.3d suppress dant moved to the confession he on not appeal The record does establish her, gave arguing acting that she had been that the defendant his constitu- invoked agent anas of the State when she solicited Instead, to right tional remain silent. the Although his confession. the defendant’s defendant said that not he did wish to suppress timely motion to not been speak with Lieutenant Mason and Ser- filed before trial Tennessee Rule of any geant longer speak Stark asked to 12(b)(2)(C) Criminal requires, Procedure with other officers. The defendant’s re- the trial court hearing nonetheless held a speak to quest to officers other than those the jury’s on motion the presence. outside conducting the interview not amount did to invocation, ambiguous unambiguous, or that, At this hearing, Ms. Shaw testified to remain right she, his silent. Because the defendant, while the family and other again has any defendant failed to establish members were at in protec- a safe house violation of a clear and unequivocal rule of custody, tive came and officers took the law, defendant the is not entitled to relief away. defendant She recalled that officers under plain this claim the error doc- either that evening returned later same or trine. during early morning the hours of the following day and informed her that the

5. State Agent requested defendant had to see her. Ms. argument Deputy defendant’s next is Shaw stated that neither Director mother,. that confession to Armstrong any his his Ms. nor officer other asked her Shaw, should have been admitted obtain from into to information the defendant them, at trial. points say evidence The defendant told her what to to the defendant, correctly out that he right had invoked his or her to question instructed prior to to with Ms. that speaking counsel his moth him. Shaw said no one else was er. spoke contends Ms. room when she with her son. acting agent Shaw was as a when state she At conclusion of Ms. Shaw’s testimony, charged 28. The defendant had not been with counsel under Amendment the Sixth to the a criminal offense at the he invoked time United States Constitution had not attached. counsel; thus, Climer, right right to to 566 n. 15. defendant's S.W.3d at that no evidence showed denied defendant’s mo- Court reasoned court the trial that the wife in police sent defendant’s suppress. to tion purpose to meet him for the of elicit- the defendant failed to file his Because ing incriminating statements. Id. at trial, prior motion as Rule suppression S.Ct. 1931. The Court considered 12(b)(2)(C) requires, also failed perspective situation the defendant’s trial, in his motion for new the issue raise unlikely it was concluded applies review to this issue. plain error felt “that defendant would have he was hampered no is less than when Our review being by to incriminate himself’ coerced because, at all suppress is filed motion to result, As a presence. his wife’s Id. case, trial court conducted in this Court that the decision to allow concluded mo the defendant’s late-filed hearing on to see him defendant’s wife was not parties and allowed both suppress tion to psychological ploy prop- “the kind of Still, existing rec make a record. erly could be treated as functional any devoid of evidence to simply ord is equivalent interrogation.” Id. at show, suggest, that the defen or even (footnote omitted). Thus, 107 S.Ct. 1931 acting agent mother was as a state dant’s influences, “compelling in the absence with him. spoke when she The defendant psychological ploys, questioning,” or direct the contact with his mother initiated concluded that “pos- Mauro Court Director Deputy to see her asking after sibility” an accused will incriminate properly the inter Armstrong had ceased subjective “hope” himself an officer’s response to the rogation defendant’s that he do so is not the functional will In Ari right of his counsel. invocation 528-29, equivalent Id. interrogation. of at Mauro, 526, 520, 481 v. U.S. 107 zona 107 S.Ct. 1931. 1931, (1987), L.Ed.2d the 95 458 S.Ct. Supreme States indicated United Court case, present In the there was party’s third of private questioning that a no suggesting po evidence at all that the custody police may perhaps in person lice to see brought Ms. Shaw the defen functional equivalent po the of constitute eliciting purpose dant “for the incrimi if certain interrogation lice circumstances statements,” 528, nating see id. at 107 But none of those circum present. are 1931, asked, S.Ct. or that the officers di in this present stances are ease. rected, induced, or threatened her to ob tain from the Ac information defendant. Mauro, police In the defendant told the cording testimony, to Ms. Shaw’s own killed his son that he had and then direct- officers escorted her to interview 522-23, body. child’s ed them to the Id. at room, where she and the defendant were being After of his 107 S.Ct. 1931. advised allowed to each other speak unsuper to rights, Miranda the defendant invoked his vised. Shaw said that the Ms. officers did 523, Id. at to counsel. 107 S.Ct. right say not what to to instruct her on or ask of police then the defen- 1931. allowed defendant. As United States Su his wife in only dant to meet with but in preme emphasized Mauro: Court officer, presence of an who tape-recorded Despite Id. In deciding particular the conversation. the officer’s whether police presence the fact that we interrogation, the conversation conduct is must re- recorded, the behind purpose had been Mauro Court held member the our deci- questioning preventing government that the wife’s of the defen- sions ... [was] police “interroga- using dant not constitute the coercive nature did officials from 527-28, tion.” 107 to extract Id. S.Ct. 1931. confinement confessions

55 says would not be in an unre- given prosecution did not rely upon or Police depart- strained environment.... the jury ask to consider defendant’s need adopt rules ments invocation of right counsel as evi- inflexible barring suspects speaking with guilt. dence of spouses, they ignore

their nor must le- 1. Evidence Invocation gitimate security by allowing concerns of Defendant’s Rights Constitutional to meet spouses private. Arizona, 529-30, In 436, Miranda v. 384 (emphasis

Id. at 107 1931 U.S. S.Ct. 86 added). 1602, (1966), S.Ct. 16 694 L.Ed.2d the Su preme procedural Court announced safe

The record this case demonstrates guards protect a defendant’s Fifth only police granted the defen rights during Amendment custodial inter mother, request to talk dant’s with his Ms. rogation. States, Dickerson v. United 530 Nothing supports Shaw. record 428, 444, 2326, U.S. 120 S.Ct. 147 L.Ed.2d defendant’s claim that Shaw was Ms. act (2000) (holding 405 that Miranda an ing agent as a state or that Ms. Shaw’s binding nounced a “constitutional rule” un conversation with the defendant amounted Amendment). der Fifth years Ten Smith, interrogation. See v. State later, the Supreme Court held that 450, (Tenn.1996); S.W.2d State v. Due Process Clause the Fourteenth Johnson, M2011-00792-CCA-R3-CD, No. impeachment Amendment forbids of a de (Tenn.Crim. 2012 WL at *12-15 fendant at trial for choosing to exercise his 29, 2012), Aug. App. Again, Fifth right Amendment to remain silent any has failed establish breach of a clear receiving after Miranda warnings. Doyle law and is rule of not entitled relief on Ohio, 610, 619-20, 426 U.S. 96 S.Ct. plain this issue under the error doctrine. (1976); 49 L.Ed.2d 91 State v. Frasi Testimony Regarding B. er, (Tenn.1996).29 Invocation S.W.2d Rights

of Constitutional Doyle, In the defendants remained silent arrest, The defendant argues upon Supreme next and the Court held in using State’s introduction of evidence its case- post-Miranda that a defendant’s si- in-chief about his of his impeach invocation federal lence to the defendant at trial and state constitutional to remain rights violates the Due Process Clause of the to an attorney silent and amounted to con- Doyle, Fourteenth Amendment. 426 U.S. 619, 2240; error. He that stitutional asserts the er- at 96 see S.Ct. also v. State 134, Flanagan, 25, ror was not harmless him to and entitles a 223 Tenn. 443 S.W.2d (1969) proof new trial. The State that responds (holding 26 that of a defen- testimony about which the com- right dant’s silence or assertion of a to properly in plains response was introduced silent during questioning remain about prosecu- to defense in participation cross-examination criminal acts is not admis- tion about why police witnesses failed sible as evidence from which an inference drawn). a guilt may to obtain formal statement from the de- Doyle be Court specific ques- fendant or to ask him fundamentally more reasoned that “it would be deprivation tions about crime scene. The State unfair and a of [D]ue [P]rocess held, Supreme expressly right 29. The Court has since howev dant did not invoke the to er, introducing that of a evidence defendant’s remain silent as the reason for his silence. - Texas, -, pre-custodial, pre-Miranda U.S. silence does not Salinas v. 133 S.Ct. 2174, 2181-82, (2013). the Fifth violate Amendment where the defen 376 186 L.Ed.2d 56 remain ... of a desire to the statement silence to person’s arrested [an]

to allow consult- attorney an has been silent until subse- explanation an impeach to be used 634; 13, 106 S.Ct. see Id. at 295 n. ed.” Doyle, 426 U.S. at trial.” offered quently 573, Hines, 580- v. 919 S.W.2d also State 618, 2240. at 96 S.Ct. (Tenn.1995) (recognizing prosecu- that a 81 Wainwright in v. Green Subsequently, exercise of may not use a defendant’s tor 634, 284, 106 88 S.Ct. field, 474 U.S. penal- counsel to right constitutional his (1986), Supreme Court L.Ed.2d 623 trial). at ize the defendant a condemned again Doyle revisited implied Greenfield, assurance year ] [of] Within “breach[ more, was, an affront to confront warnings .once Supreme [as] Miranda Court Miller, Due Process In Doyle that the issue. Greer fairness ed with fundamental 291, 3102, 106 S.Ct. 97 L.Ed.2d requires.” Id. 483 U.S. S.Ct. [C]lause (1987), the defendant resulted from a Greenfield, appeal after In 634. guilty by reason of which question of “not to a witness plea prosecutorial entered a permitted prosecution postarrest insanity,” upon [the defendant’s] “touched that he had “exercised 3102. Un evidence silence.” Id. at S.Ct. introduce however, ... Greenfield, silent and ex Doyle to remain like in right prompt objec consult counsel before a desire to trial court sustained Miller’s pressed 287, 106 jury Id. at instructed the answering any questions.” question, tion to the it, closing argument ques no “further “ignore” Later and allowed S.Ct. 634. counsel, the objection respect of defense with tioning argument [the over the or 759, 764, 107 jury of the defen reminded the Id. at prosecutor silence[.]” defendant’s] “suggested Doyle, the Su applying [his] silence and 3102. In dant’s S.Ct. questions “significant refusals to answer deemed it repeated preme Court attorney dem consulting in which [the] ha[d without first each of the cases Court ... degree comprehension Doyle, the trial court previously] applied onstrated a insanity.” ... Id. at argument permitted specific inquiry inconsistent ... post-Miranda respecting 106 S.Ct. 634. the defendant’s 764, 107 3102. Be silence.” Id. at S.Ct. conviction, Supreme reversing In silence was not post-arrest cause “Miller’s emphasized “[t]he Court Greenfield jury submitted to the as evidence ... that it is funda- Doyle of ... point any permissi which it was allowed to draw promise an arrested mentally unfair to inference,” ble the Court determined will not be used person that his silence occurred.” Id. at 764 Doyle “no violation ... him and thereafter against us[e] -65, thus teaches 3102. Greer S.Ct. or otherwise impeach [him]” silence impose prima not a facie “Doyle that does ... the exercise of those “make use of of a against any bar mention whatsoever obtaining his conviction.” Id. at rights in counsel, right request to but defendant’s Thus, 292, de- 106 S.Ct. 634. Court exploitation guards against instead impermissible is is the clared that “[w]hat right by prosecu that constitutional evidentiary use of an individual’s exercise Lane, 198, Lindgren v. 925 F.2d 202 tor.” ... rights constitutional after the of his Cir.1991). (7th 295, of Miranda. Id. at 106 assurance” added). Lindgren was The Seventh Circuit (emphasis The Court S.Ct. 634 that, very much to with a record that respect post- noted confronted “[w]ith also appeal. in this resembles the record warnings ... silence [the term] Miranda There, muteness; made mention of police it includes a officer only not mean does

57 Lindgren’s during for counsel request expressly attempt Mr. to use ... the improper prosecutor, by direct examination impeach defendant”); comment to ensuing State, trial court defendant’s 1359, (Ind. denied v. 544 Cook N.E.2d 1363 for a Id. at In 1989) motion mistrial. 202. (holding that a testimony federal court, the affirming the trial Seventh Cir- agent there was no further contact Doyle “cen- inquiry cuit reiterated that a point the defendant at a certain be particular ... to around use ter[s] cause he “had made request speak to to post-arrest being silence’ which is did attorney” not constitute a Doyle , and, therefore, put[]” requires consider- violation); Baccam, State v. 476 N.W.2d particular ation of the circumstances (Iowa 884, Ct.App.1991) 886-87 (finding no case. Seventh con- each Id. The Circuit abuse of discretion in the trial court’s re testimony cluded because the officer’s fusal grant to mistrial on the basis of a Lindgren’s regarding request Mr. single comment related to the defendant’s was counsel inadvertent because post-Miranda silence where the trial court prosecutor testimony did not use the to gave a curative instruction and the silence impeach argue guilt the defendant or his against defendant); was not used Pul jury, to the was no there violation Commonwealth, ley 600, v. Va.App. 31 525 202; Id. at also Doyle. see Greenfield (2000) 51, (holding S.E.2d there (4th French, Noland v. 134 F.3d Doyle was no a police violation from offi Cir.1998) (holding that there no was nonresponsive cer’s comment that the de Doyle prose- or error where the Greenfield fendant invoked his right to counsel be testimony twice police cution elicited cause the prosecution exploit did not officers that the defendant his understood issue). explained below, we As likewise them, rights Miranda and exercised point- conclude that there was no violation of out that the to ing object defense did not Doyle or in this case. Greenfield testimony prosecu- at trial and that the questions tor’s did not draw attention Right 2. Silent Remain the defendant’s or his silence invocation of counsel); Stotts, Defendant first claims that Depu right Jones 59 F.3d (10th Cir.1995) ty Armstrong Director improperly com (holding that “it is upon right mented his prosecutor’s of a invocation of exploitation defen- right already remain silent. We have dant’s exercise of his to silence which concluded Stubbs, right the defendant did not invoke his prohibited”); United States v. (11th Cir.1991) (find- silent, F.2d necessarily 834-35 remain so this claim no ing Doyle Deputy Armstrong’s violation “when fails. Director chal Greenfield government specifically lenged testimony30 merely does informed the Deputy Armstrong 30. di- Director testified on Q. rect examination: jury you you Tell the what did when Q. would, you explain jury If to the [the how walked into the room with defen- you coming per- up ended into contact through dant] and take them kind of sonally with [the defendant]? you how talked to him and what he A. I Sergeant watched the interview of telling you. Sergeant Mason and Max’s interview myself. A. I walked in and I I introduced defendant], during he [the which Armstrong. him I told was Lieutenant shut down on them and didn’t to want actually pulled up I chair and another anymore. talk to the of them I two my put up feet in kind of it and leaned go then made a decision that I would just and we We back talked. talked investigation and conduct the —conduct how crime about horrific this was. I myself. the interview he chal- ti-day testimony, portion and the that caused him the circumstances

jury of He provided interview. on cross-examination lenges the defendant’s was to conduct defendant’s demeanor also described questions counsel’s response to defense did The defendant interview. during importance of issues about the regarding did testimony at trial and to this object not police; to the statement defendant’s in his motion for new issue raise this not documenting the defen- importance again is limited The defendant trial. Police De- Memphis responses; dant’s review and is plain via error seeking relief recording of not state- partment’s practice he failed relief because has entitled to ments; formal typewritten the lack of a unequivocal a clear and that to establish statement; that should have questions Johnson, 743 was breached. rule of law regarding asked the defendant been (“[Wjhere the answers to at 158 S.W.2d scene; that Ser- questions crime and the admissible, the demeanor are questions the defen- would have asked geant Mullins person giving the of the and behavior Sergeant had dant about the crime scene may upon wit- be commented statement Mullins interviewed the defendant. present.”). nesses who were testimony repro- of the portion relevant duced below: Right 3. Counsel interviewing defen- Q. you If [the Testimony Sergeant a. Mullins’s you he in this case and told dant] the defendant’s ar reject alsoWe guns the knives and the where testimony Mullins’s

gument Sergeant that went, impor- would that have been Armstrong Director Deputy and that enough you to write down? tant invocation of his the defendant’s about improper was and de right to counsel Yes, Again, sir. if he told us where A. trial. him of a fair prived was, anything any evidence from scene, just bicy- crime like the this very minor challenges a The defendant cle, up. I mul- we would have followed Sergeant lengthy, Mullins’s portion said, body language. A. Like I I walked into the interview At watched myself. pulled really, room. I introduced I point he seemed as if he was up propped up my really tight, doing every- a chair. I feet and like he was basically talking I thing If I we started and asked he could not to talk to me. things me question, his answers were Jessie to tell some asked him answers, my maybe important you. He said fam- one-or-two- are one-word religion. I engage ily. We talked about asked answers. He wouldn’t word him whether or not he believed in God. open conversation. Most of the me I him question, him he He told me that he did. asked time if I asked he believed in heaven his head or shake his head. whether or not would nod doing every- me he did. I you tell he was and hell. He told But could thing engage could tell that he was almost like he he could not to me in an struggling try open where was to maintain his conversation as to we composure. times open dialogue with each There several [were] back forth that we talked it was almost—he leaned other. you Deputy forward as if I want to tell some- questioned The State later Director together thing get Armstrong [sic] but he’d his self as follows: Q. I you background and he’d lean back. So could tell he So had this informa- hiding something. I you could tell he could, [the tion and then went to talk to doing everything Explain jury like I to the how was said, defendant]. went, things engage open not to me in conver- the interview some of the you trying keep— you say sation because he was continued to and what the least as he could. limit his words to [the defendant]. talked about with why see not anybody things, yes, don’t would but specific small de- every- followed up tails, have. We on I know more about that than thing that I know of said that he anybody else on the team. as his actions

far afterwards. As he in the did Court of Ap- Criminal peals, argues the defendant Sergeant Q. you interviewing If defen- [the testimony Mullins’s responsive was not to you him about dant] asked questions defense counsel’s and that Ser- out, hair or grabbing ripping beads geant improperly interjected Mullins ref- you would have asked him that erences about the defendant’s invocation question and recorded answer his right his to disagree. counsel. We Again, paper? you Would have docu- did not object defendant to Sergeant , what mented was asked and what testimony at Mullins’s trial on any basis said? was and did not raise this issue in his motion A. If I was able to de- interview [the Therefore, for new trial. again we apply fendant], I would a lot have asked of plain error to the review defendant’s claim questions before he asked his again conclude the defendant has attorney. many Now how questions failed to that a show clear rule of law was he was asked before he asked for an breached. attorney, I I you. couldn’t tell Sergeant Mullins’s isolated to references would have asked a lot questions the defendant’s invocation right of his such before time. responsive counsel were to the ques- broad counsel posed tions defense to Sergeant you Q. So would have after specifically Moreover, Mullins on cross-examination. scene, looking at you crime Sergeant even if testimony Mullins’s have would asked some questions responsive, the two isolated references about like holes in the cushion to the defendant’s invocation of his right you your would have documented Doyle counsel do not violate and Green- your question answer? prosecution because the did not make field Yes, See, sir. again, A. realize how any use of evidentiary testimony investigation this went. The crime attempt penalize the defendant for exer- my job. scene was kind of And I cising right. Pulley, constitutional See any point did not at between the (holding 525 S.E.2d at 54 that there nowas original interview, call-out and the Doyle police violation from a officer’s non- arrest and interview defen- of [the responsive comment' in- dant], have a chance down to sit right voked his counsel where the prose- anybody and say okay, here’s issue). exploit cution did not room, I in what found this this room and this room. I didn’t b. Director Deputy Armstrong’s hardly stop those four or five Testimony If I days. had been inter- able to the State’s During direct examina defendant], view I [the would have tion of Director Deputy Armstrong, . very different questions had than following exchange occurred: anybody else on I this ease because more knowledge Q. you any [the about that make attempts go Did any crime than greater scene] of them did into detail with [the defen- they did know certain about about what occurred in dant] because [the defendant] from ment from you what knew based on house stopped he the interview? scene? the crime I crime scene From the A. I did. stop. A. He did some of the women’s tell could Armstrong Director also men- Deputy and I had been altered clothing for counsel request tioned the defendant’s I that. And as him about asked following in the during cross-examination questions him additional tried to ask exchange with defense counsel: that, an attor- he asked for about you the com- Q. I asked about When ney. you made to defendant] ment [the lawyer? for a Q. He asked me, you lied to would that be Yes, he did. A. something important enough put testimony to this objected The defendant Di- your supplement, Deputy into mistrial. The trial court requested a Armstrong? rector mistrial, finding a request denied relevant, no, A. I don’t see where it’s light “in testimony was relevant that the sir. going questioning line of that’s been Q. important? So it’s “in of all the issues light on” and statements, formal A. I it’s relevant as far to recorded don’t see where regard no, you trial then instruct- what if sir. At court as statements.” decide— he that he jury point as follows: when decided ed attorney, wanted an we ceased go gentlemen, before we Ladies further, interview. say you. just let me this to any our laws and under Constitu- Under questioned When defense counsel later States, every person tion of United Armstrong Director about the lack Deputy representation. to have Peo- is entitled confession, of details in the defendant’s person in this case a ple are advised and following exchange occurred: rights. They their are is advised of Q. Okay. did tell defendant] What [the they right have the to talk advised that you he did with the boards that any they Once attorney to an time. the house? to talk to an request permission only weapons A. The that we ever dis- cease, okay. attorney, questions all and the knives. pistols cussed were questioning no more after There’s n we a chance to Again, get did not that. point. Everybody right has a specifics into where I was able get right That a that is entitled to all of us him specific to sit down and ask States. You as citizens United questions get specific answers that, are to draw no conclusions from from him because the time we questions other than all cease at the got point, requested to that they talk point somebody says want to I interview. attorney and ceased the attorney. everybody under- to an Does only conclusion stand that? That’s the trial The defendant submits that, may questions all you draw denying court erred in his motion for point. cease at that Arm- Deputy mistrial because Director Doyle and strong’s testimony violated questioned Deputy The State then Di- disagree. We Greenfield. Armstrong rector as follows: note, overruling trial court stated when Q. you And on that ... weren’t As the mistrial, the de- the defense motion for a get a formal written state- [ ]able claim). police investigation reject fense attacked the Robinson to Griffin incompetent incomplete throughout prosecution attempted neither to create an trial. The had repeatedly the defense guilt inference of from the defendant’s re- police about lack questioned witnesses the quest counsel for nor to use the defen- detailed, formal, of a and recorded state dant’s for request impeach counsel to his ment from the defendant. These ques testimony. trial Considering all the rele- phrased in a manner im tions circumstances, vant we conclude Dep- plied the lack of in the detail defendant’s uty Armstrong’s Director testimony did from police confession stemmed incom not the Doyle violate con- Greenfield petence police negligence or to failing State, stitutional rules. See v. Parks 543 responses record the defendant’s accurate 855, S.W.2d 857 (Tenn.Crim.App.1976) ly. Deputy Armstrong Director was one of to (“declining Doyle find a violation where police the last to the testify witnesses the officer’s statement about the defen- prosecution’s prosecu case-in-chief. The respond police dant’s refusal to ques- to tor, having heard the defense’s cross-ex tioning merely a comment on the police witness, amination of each prior did scope of the defendant’s statements and by Deputy not err asking Director Arm not a reference to the of refusal the defen- strong on direct examination whether he all”). dant any to make at statement any attempts made obtain a de to more tailed statement from the defendant. The The defendant challenges also the prosecutor directly did not ask Deputy State’s comment during rebuttal closing Director the Armstrong about defendant’s argument that “[w]hen [the defendant] was invocation of to right counsel. The brought police department, down to the he question that was was a re asked fair could up[,] have cleared it all [b]ut theory to the sponse question defense didn’t” as comment on the defendant’s throughout to ing point. the trial The right exercise of his to remain silent. court provided appropriate trial an instruc Again, disagree. we than a Rather com limiting tion the jury’s consideration ment on the defendant’s exercise of his Deputy Armstrong’s Director mention silent, right prosecutor’s to remain right defendant’s invocation of his statement reminded jury the con counsel, presume which we jury must tents of post-arrest the defendant’s confes 85, Young, followed. State v. 196 S.W.3d Deputy sion Armstrong Director (Tenn.2006). prosecution’s 111 The use defendant’s admissions his mother. testimony regarding the defendant’s purpose prosecutor’s The statement for request counsel was appropriately lim highlight was to the discrepancies between ited to rebutting the defense theory post-arrest the defendant’s confession and Robinson, trial. See United v. States 485 admissions and his at trial. testimony The 25, 32, 864, U.S. 108 99 23 S.Ct. L.Ed.2d prosecutor commenting upon was not (1988) (holding that prosecutors are defendant’s exercise of his constitutional prohibited commenting upon a defen rights. prosecutor’s statement did testify dant’s decision not so at trial Doyle not violate progeny. Morgan its as the long prosecutorial comment is sim (Ind.2001) State, v. N.E.2d 755 1075 ply response” a “fair to defense claims and (“Although post- evidence of a prosecutorial comment defendant’s does not treat generally the defendant’s Miranda silence is not admissi silence “substantive evi ble, Cazes, of guilt”); dence v. may open State door to its (Tenn.1994) admission”). S.W.2d (applying

Q2 Right 1.

Finally, agree with Court we of Confrontation that, Deputy if Appeals even of Criminal of the Sixth Clause Confrontation testimony regarding Armstrong’s Director to the States Constitu- Amendment United counsel was request for the defendant’s tion, applicable the States made constitutionally the error was improper, Texas, Amendment, Fourteenth Pointer beyond a reasonable doubt. The harmless 400, 403, 85 S.Ct. 380 U.S. testimony already elicited defense (1965), that “[i]n all L.Ed.2d directs request attor about defendant’s shall prosecutions, the accused en- criminal during Sergeant Mullins’s cross-exam ney right ... confronted joy the to be to object ination. defense did Const, against witnesses him.” U.S. Sergeant to strike Mullins’s testimo move I, 9 of the Ten- amend. VI. Article section Deputy Armstrong’s testimo ny. Director similarly provides Constitution nessee proof merely cumulative to ny was prosecutions, in all criminal ac- “[t]hat Johnson, already elicited the defense. See hath the ... to meet wit- right cused (finding 43 S.W.2d at 158-59 7 Const, I, art. face to Tenn. nesses face.” police in the brief refer any error officer’s constitution- phrasing § 9. The of the state asking to consult ences to the defendant the text of the provision al differs from making with counsel while a statement was been Sixth Amendment and has described doubt). beyond harmless a reasonable imposing right “a than that higher as in the federal constitution.” State v.

found (Tenn.1992). Deuter, 391, 839 S.W.2d 395 Confrontation Clause Claims C. However, when claims based on deciding argues The defendant that the admission of in arti- right provided confrontation testimony police of from several officer I, 9, adopted expressly cle section we have of autopsy witnesses and the admission used to applied analysis the same eval- reports prepared by a medical examiner uate claims based on the Confrontation testify, who did not as well as admis- State Sixth Amendment. v. Clause those expert testimony sion of about au- Parker, 883, (Tenn.2011); 898 350 S.W.3d con- topsies, violated his state and federal Franklin, 799, State v. 308 S.W.3d 809-10 right stitutional to confront the witnesses Cannon, (Tenn.2010); 254 S.W.3d State v. against Alternatively, him. the defendánt Lewis, 287, (Tenn.2008); State v. 235 301 argues testimony police that the from the (Tenn.2007).31 Thus, 136, 145 we S.W.3d hearsay officers amounted to violated unitarily analyze will the defendant’s fed- the Tennessee Rules of Evidence. The claims, as state eral and constitutional failure argues State the defendant’s govern same standards both. object on limits grounds constitutional this Any review of current Con conducting plain Court error discussion necessari jurisprudence that the defendant is not entitled relief frontation Clause Washington, autopsy reports ly begins because the v. testimony and Crawford 36, 1354, 124 158 properly will 541 L.Ed.2d admitted. We first U.S. S.Ct. (2004), in Supreme summarize the 177 which the Court governing legal principles used apply abrogated and then to each the test that had been principles those years32 a new twenty-five the defendant’s and announced claims. governs our argued 31. The that the a different anal- defendant has not Ten- or that standard ysis his state claim. constitutional protection greater nessee Constitution affords Crawford, 32. Before Confrontation Clause 63 analysis. examining prior After mode opportunity for underpinnings of the historical Confronta- cross-examination.” Melendez-Diaz Clause, 48-50, 1354, id. at 124 tion S.Ct. Massachusetts, 305, 309, 129 557 U.S. S.Ct. princi- Court described “the 2527, (2009) 174 L.Ed.2d 314 (citing Craw Crawford which the pal evil at Confrontation Clause 54, 124 1354). ford, 541 U.S. at S.Ct.

was directed” “the civil-law mode of after years Crawford, Two the Su procedure, criminal and particularly its preme Court held that the Confrontation parte use of ex examinations as evidence applies only Clause hearsay testimonial 50, against the accused.” Id. at 124 S.Ct. and does not apply nontestimonial hear 1354. The text of the Confrontation 813, Washington, Davis v. 547 say. U.S. concern, this Clause reflects the Crawford “ ” 823-24, 126 S.Ct. 165 L.Ed.2d said, by focusing Court on ‘witnesses’ (2006); see also Whorton v. Bockting, 549 words, against accused—in other “ ” 406, 420, U.S. 127 S.Ct. 167 L.Ed.2d ‘bear testimony1 against those who (2007) (stating that the Confrontation Id. at (quot- accused. S.Ct. 1354 application” Clause has “no to nontestimo- Webster, ing Noah An Dic- American Thus, (1828)). hearsay). nial English ques threshold tionary Language of tion in “‘Testimony,’” every case where the Supreme ex- Confrontation Court “ plained, typically ‘is Clause upon solemn declara- is relied as a “[a] bar to the tion or affirmation made for the purpose admission of an out-of-court statement is ’” establishing or proving fact.” some challenged whether the statement is testi Webster, 2 (quoting Id. Noah An Ameri- Cannon, monial. 254 S.W.3d at 301. Dictionary can English Language Court declined “spell Crawford (1828)). Thus, the Supreme Court' con- out a comprehensive definition of ‘testimo- pre- cluded that Confrontation Clause nial[,]’” 51, 541 Crawford, U.S. at 124 “[tjestimonial cludes admission of 1354, providing S.Ct. following instead the statements witnesses absent from tri- illustrative of the list “core class ‘testi- al,” unless witness is unavailable monial’ statements” which the Confron-

testify op- prior had a tation applies: Clause portunity for cross-examination. Id. at 59, 124 S.Ct. 1354. The Court held: (1) parte testimony [ in-court ] [E]x hearsay

Where nontestimonial is at is- equivalent is, its functional mate- —that sue, wholly is it consistent affidavits, rial such as custodial examina- design Framers’ to afford the States tions, prior testimony that the defendant flexibility in their development of hear- cross-examine, was unable to or similar say law.... Where testimonial evidence pretrial statements declarants issue, however, is at the Sixth Amend- reasonably expect would to be used ment what demands the common law (2) ...; prosecutorially extrajudicial [ ] required: unavailability prior op- and a ... statements contained in formalized portunity cross-examination. materials, affidavits, testimonial such as 68, depositions, Id. at 124 prior testimony, S.Ct. 1354. thus or confes- Crawford (3) ...; instructs are sions ] testimonial statements statements that [and unless appears “inadmissible the witness were made under circumstances which or, unavailable, if at objective trial witness is would lead an witness reason- Roberts, 56, challenges admissibility governed to the of out-of-court v. Ohio 448 U.S. 100 (1980). of an statements unavailable witness S.Ct. 65 L.Ed.2d 597 64 dividing categories, would line between the two believe that the statement

ably to use at a later trial. explaining: available for be (citations 51-52, 124 1354 at S.Ct.

Id. when Statements are nontestimonial omitted). marks quotation police interroga- made the course of cer also identified Court objectively in- tion under circumstances Crawford “by their of statements types tain dicating primary purpose that the of the example, not testimonial —for nature [are] police to enable assis- interrogation is in further records or statements business emergency. ongoing tance to meet an therefore do conspiracy,” which ance of a They are testimonial when the circum- the Confrontation Clause. implicate there objectively stances indicate that is 56, 124 1354. The Id. at S.Ct. Crawford ongoing emergency, no and that .such also that the emphasized Confronta Court primary purpose interrogation of the at all” places “no constraints tion Clause prove past po- to establish or events statements prior the use of testimonial tentially prose- relevant to later criminal and available present of a declarant who is cution. explain to defend or on cross-examination added). (emphasis determining Id. When n. testimonial statements. Id. prior primary purpose, “the rele- statement’s (citations omitted); ac S.Ct. inquiry subjective vant is not the or actual Banks, 271 S.W.3d 118- cord State involved in a purpose individuals (Tenn.2008) I, (interpreting article sec encounter, particular pur- but rather the state applying tion 9 as not testimonial pose participants that reasonable would appears a declarant for cross- ments when had, have as ascertained the individu- trial). Furthermore, examination at als’ statements and actions and the circum- explained that the Con Court Crawford stances in which the encounter occurred.” not violated when tes frontation Clause is 344, Michigan Bryant, v. 562 131 U.S. pur are admitted for timonial statements (2011) 1143, 1156, 179 93 S.Ct. L.Ed.2d the truth of poses establishing other than that, circumstances, (holding under the Crawford, 541 U.S. the matter asserted. interrogation police shooting of a victim 9, 1354; v. at 59 n. 124 S.Ct. accord State primary purpose responding had the of Franklin, (citing 308 S.W.3d at 808-811 and, emergency roaming gunman of a which found no state and federal decisions thus, the elicited statements were not tes- violation where the Confrontation Clause timonial). out-of-court statement —whether testimo pur for some nial or not—was admitted Bryant Neither nor Davis nor Crawford than the truth of the matter

pose other expert proof, involved but three more re asserted). Supreme cent decisions address Court Crawford, Supreme proof pertinent analy Since such and are to our “attempt[ed] produce not sis of the issues the defendant has raised Court has still Williams, -, appeal. of all conceiva in this exhaustive classification 567 U.S. 2221, (2012); ble statements —or even all conceivable 132 183 L.Ed.2d 89 S.Ct. — Mexico, U.S. -, response police interroga Bullcoming statements in New 2705, (2011); or 131 180 610 tion—as either testimonial nontestimo- S.Ct. L.Ed.2d 822, Massachusetts, Davis, ...” nial. at 126 Melendez-Diaz v. 557 547 U.S. S.Ct. U.S. 305, However, 2527, Supreme 2266. in Davis the 129 174 L.Ed.2d 314 S.Ct. (2009). “primary pur begin Court instructed that We with the first decision in pose” of a statement marks the relevant the series.

65 Melendez-Diaz, Supreme In Court Observing that is one “Confrontation primary assuring to the means of applied purpose analy- test accurate forensic sis,” indeed, and, analysis” only “certificates of that de notarized means constitu- tionally guaranteed, testing per Supreme scribed the results of forensic Court held that analysts “[florensic evidence is not by formed of the Massachusetts uniquely immune the risk of Laboratory manipu- State Institute. 557 U.S. at 318, lation.” Id. at 308-09, S.Ct. 2527. Be- at 129 S.Ct. 2527. The fact issue many cause labs are administered law in the criminal trial was whether the sub enforcement agencies, forensic analyst “[a] stance the defendant possessed was co responding request to a from a en- law caine, and the certificates stated that may forcement official pressure feel Thus, substance was fact cocaine. —or have an incentive—to alter the evidence analy Court held that the “certificates of a manner favorable to the prosecution.” affidavits[,]” “quite plainly sis” were which Id. fell within the “core class of testimonial

statements” described in Me The Supreme Court noted that the ana- Crawford. lendez-Diaz, 310-11, 557 U.S. at 129 S.Ct. lysts’ merely affidavits identified the sub- (citations and internal quotation provided stance as cocaine and no infor- omitted). marks certifi notarized mation about “what tests the analysts cates, said, the Court a “sol performed, amounted to whether those tests were rou- tine, emn declaration or affirmation made for and whether interpreting re- their sults purpose required exercise of establishing proving judgment or analysts use skills may some fact.” Id. at 129 S.Ct. 2527 have possessed.” Id. at Crawford, (citing 541 U.S. at S.Ct. S.Ct. 1354). 2527. Supreme Court explained that The Court also reasoned that the least of that “[a]t some methodology [the affidavits were made pur for “the sole analysts require[d] the used] exercise pose” providing “prima facie evidence of judgment presented] a risk of error the composition, quality, the net might explored be on cross-examina- weight analyzed Id. substance.” Thus, tion.” Id. the Court found “little (citations omitted). 311, 124 S.Ct. 1354 reason to that believe confrontation The Supreme Court concluded that the testing [would] be useless ana- in [the] certificates were “functionally identical to lysts’ honesty, proficiency, and methodolo- live, testimony, in-court doing ‘precisely gy that commonly features are what a does on —the witness direct examina ” focus in the cross-examination of experts.” Davis, 830, (quoting tion.’ Id. 547 U.S. 321, Id. at S.Ct. 2527. 129 omitted)). 126 2266 (emphasis S.Ct. As a result, the certificates “were testimonial Supreme The Court returned to the sub- statements, analysts and the ‘wit were ject of the Confrontation Clause and foren- purposes nesses’ for the of the Sixth reports sic Bullcoming v. New Mexico. Id. at Amendment.” 2527. S.Ct. There, police arrested the defendant Thus, that, Supreme the. Court “[a]b- held on charges driving while intoxicated. showing sent a analysts that the un were 2709. The prosecution S.Ct. at sub- testify available to at trial and that [the laboratory certify- mitted a report forensic prior had a opportunity to ing defendant] Bullcoming’s blood-alcohol concentra- them, cross-examine [the defendant] was tion as a business record. Id. at 2712. entitled ‘be confronted with’ the ana calling analyst Instead of signed who lysts certification, at trial.” Id. who was on unpaid leave “testimony under oath would reasons, analyst’s ing prosecution

for undisclosed Bullcoming’s counsel to raise familiar have enabled analyst who was “called another concerning testing jury questions [the laboratory’s procedures, before [the] with the in nor ob the care participated analyst’s] proficiency, certifying neither but had work, blood sam Bullcoming’s and his performing test he took in served the testifying analyst 2709. The Id. at n. 7. veracity.” Id. at 2715 ple.” analyst worked for certifying both and the Sotomayor, provided who Justice of Health’s Department Mexico the New in Bull- majority opinion fifth vote for Id. at Laboratory Division. Scientific clarify separate opinion to coming, wrote a rejected Supreme Court The 2712. testimonial report her view that the was testimony substitute that argument evidentia- purpose was primary because its be requirement the constitutional satisfied limited reach of ry emphasize “to reliable, themselves the tests cause (Sotoma- Id. at 2719 opinion.” the Court’s analysts who write “the that explaining J., that the She noted yor, concurring). introduces prosecution reports supervisor, not “a surrogate analyst was for confrontation made available must be reviewer, personal, with a or someone else acumen ‘the scientific they possess if even limited, connection to the scientific albeit veracity of Mother and the of Mme. Curie opined She at issue.” Id. at 2722. test ” (quoting Melendez- Id. at Teresa.’ a different been] would “[i]t [have 2527). Diaz, at 319 n. 129 S.Ct. 557 U.S. if, who example, supervisor a ob- case that the declared Con Supreme Court conducting a test testi- analyst served “does not tolerate dis frontation Clause report the results or a about fied about simply confrontation because pensing that the lead results.” Id. She noted such questioning one the court believes Bullcoming had not addressed opinion state another’s testimonial witness about that would be “degree of involvement” enough opportunity fair provides ments supervisor testify sufficient to allow Id. at 2716. for cross-examination.” analyst who testi- surrogate because the attending “the formalities noted that Court in the fied “had no involvement whatsoever analysis’ [were] of blood alcohol ‘report report.” Id. Justice So- relevant test certify adequate qualify more than [the tomayor Bullcoming also noted that assertions as testimonial.” ing analyst’s] expert witness was “not a case in which an 2717. Id. at independent opinion about asked for his analysis Bullcoming, part As of its underlying reports testimonial that were oper- pointed out Supreme Court evidence,” into themselves admitted to conduct the test ating machine used id., viewed also as a “different which she knowledge and train- required “specialized question.” Id. can occur at ing” and that human error Illinois, recently, Most in Williams testing process. during the points several U.S. -, 2221, 183 L.Ed.2d 567 132 S.Ct. Furthermore, testifying the Id. at 2711. (2012), considered Supreme 89 the Court analyst convey what the [certi- “could not expert bars an whether the fying or observed about analyst] knew Crawford facts opinion based on i.e., expressing concerned, the events his certification laboratory report, a when gleaned from testing process he em- particular test and knowledge re expert the lacks firsthand surrogate testimo- ployed. Nor could such report. of the preparation the certify- garding or lies on the ny expose any lapses (footnotes at issue in hearsay The evidence Williams at 2715 ing analyst’s part.” Id. omitted). by an outside hand, certify- profile prepared was a DNA the the On other

67 Cellmark, swabs laboratory, using vaginal provided Justice Thomas the fifth vote in rape support the crime kit. judgment. collected from victim’s Williams actually Justice police analyst rejected A state Thomas he Id. at 2227. DNA what called plurality’s pur- “new primary state’s DNA searched the database test,” which, pose said, under a even profile Cellmark prepared matched statement a primarily evidentiary a DNA taken profile of defendant’s purpose is if only testimonial it is meant to arrest upon his earlier on an unrelated particular individual, incriminate a known trial, at 2229. over matter. Id. At a any “lacking] as in grounding constitu- objection, defense Clause Confrontation text, history, tional in or in logic.” Id. at analyst police permitted DNA was J., (Thomas, in concurring judg- testify the defendant’s DNA profile ment). Among things, other Justice the state matched the DNA database male argued Thomas that the targeted-accusa- profile developed from se Cellmark tion requirement made “little sense” be- vaginal men on the victim’s Id. at swabs. cause facially “[a] statement is not 2230. written which report, Cellmark’s inculpatory may turn out highly pro- to be analyst DNA her police state based bative of a guilt defendant’s when consid- testimony, was not itself evi introduced ered with other evidence.” Id. at 2263. having dence. at 2231. No Id. witness Nonetheless, Justice Thomas concurred personal knowledge develop of Cellmark’s with the plurality’s conclusion profile vaginal DNA ment of the from the report Cellmark was not testimonial. swab at trial. Id. 2229-31. testified at that, he “agreefd] While for a statement opinion plurality Justice Alito authored a be testimonial within meaning Williams, which Chief Justice Roberts Clause, Confrontation must declarant Kennedy joined. Breyer and Justices primarily intend to establish some fact reasoned plurality that the Cellmark understanding with the that his statement report not testimonial it was because did may in a prosecution,” be used criminal primary purpose accusing not have “the only Justice Thomas deemed that to be individual.” Id. targeted at 2243. The criterion,” “necessary one not the “suffi- that, plurality explained no because one cient” one. Id. at 2261. Justice Thomas had been as a suspect identified when the testimonial, explained that be a state- report prepared, primary purpose was satisfy ment require- must additional “ testing of Cellmark’s DNA not “to possessing ment of sufficient ‘indicia of or petitioner accuse to create evidence for Davis, at solemnity,”’ (quoting id. but, rather, use at trial” “to catch dan- 836-37, 2266), at U.S. 126 S.Ct. which gerous rapist who was still at Id. large.” report Cellmark failed do. Accord- “ plurality thus viewed re- Cellmark’s Thomas, ing only to Justice ‘formalized port analogous to as statements made “to materials,’ testimonial such depositions, police ongo- enable assistance to meet an affidavits, prior testimony, or state- ing emergency” bring “to to an an end resulting from dialogue,’ ments ‘formalized threat,” ongoing which the previous- Court satisfy such as interrogation,” custodial ly not to had held be testimonial. Id. necessary that additional criterion. Id. role,

Given non-aceusatory plural- (internal omitted). their quotation marks ity that the reasoned Cellmark scientists report, The Cellmark Justice con- Thomas produce cluded, had “no incentive to oth- anything was “neither a sworn nor a certi- scientifically fact,” er than a sound and reliable fied of the “although declaration at profile.” report Id. 2244. produced request was at the of law 68

enforcement, never a ‘certifi- product any principally, anything it was not the call ”). cate.’ dialogue resembling of formalized cus- sort interrogation.”

todial Id. The dissenters viewed as an Williams case,” 2265, “an id. at if the open-and-shut opinion joined by in an Kagan, Justice to the rule” simple Court estab- “adher[ed] Scalia, Sotomayor, Ginsburg, Justices lished earlier Confrontation Clause Williams, 132 at 2264 dissented. S.Ct. precedents. Id. at 2265. The dissenters J., The (Kagan, dissenting). dissenters report the concluded Cellmark the joined rejecting plu- Justice Thomas testimonial because it was made to estab- “ ” rality’s targeted ‘accusation’ test on “ fact’ in a criminal proceeding,” lish ‘some that a ma- multiple grounds, which means identity specifically rapist. the of the Id. Court, consisting of Justice jority of Bullcoming, at 131 at (quoting 2266 S.Ct. dissenters, re- Thomas and Williams 2716). dissenters that al- concluded Among at 2274. oth- jected that test. Id. lowing expert knowledge an who had no that for things, er the dissenters observed report testify at trial Williams’s “it purposes of the Confrontation Clause right his Sixth Amendment to con- violated whether, makes not a whit of difference front the witnesses him. against Id. at test, laboratory police the time of the 2268. already suspect” typi- have a because “the Supreme Court’s fractured laboratory analyses problem cal —and provides guid decision Williams little typical focus of cross-examination —has precedential ance is of uncertain value work, incompetent to do with careless rationale because no decision—not personal rather than with vendettas” or a proffered one of the three tests for deter particular analyst’s dishonesty. Id. Unlike mining extrajudicial whether an statement plurality, the dissenters did not view garnered is of a support testimonial — analysis performed as Cellmark neces- majority of the Court. Seminole Tribe of sary dangerous rapist catch a “to who was Florida, 44, 66, Fla. v. U.S. S.Ct. at large” analogous still to the state- (1996) 1114, 134 L.Ed.2d 252 (stating that Bryant ments Davis and held to be non- questionable a decision is “of precedential argued testimonial. Id. The dissenters majority value” when “a of the ex Court that comparing analysis the Cellmark pressly disagreed] with the rationale of ongoing those statements stretched the Pink, plurality”); United States v. emergency test facts Williams U.S. S.Ct. 86 L.Ed. 796 “beyond all recognition.” Id. (1942) (stating that while a decision which merely judgment “by equally affirms a an rejected The dissenters also Justice court” binding divided is “conclusive and criterion, formality Thomas’s it describing upon the parties respects as .that contro granting significance “constitutional versy” majority agreement the lack of “on minutia, in way only that can undermine of law principles prevents involved it protections” by Confrontation Clause’s being authoritative determination enabling prosecutors to evade the constitu- cases”). for other tional imperative “by using right kind right language,” forms with the kind of It true that typically “[w]hen report so that no forensic would be formal fragmented decides a no Court case and enough to constitute a testimonial state- single explaining rationale the result en (“It Justices, ment. Id. at 2276 would not take long joys the assent of five ‘the hold magic ing may devise the words and rules— be Court viewed as

69 by taken Members con a position those who whether statement is testimonial are within judgments in the on the narrowest subsumed and narrower than curred States, dissenters’ test. That is so grounds Marks United because 990, plurality] 188, 193, [the and Justice Thomas 97 51 each 430 U.S. S.Ct. L.Ed.2d (1977) added an additional requirement to the Gregg v. 428 (quoting Georgia, 260 “evidentiary basic purpose” test 153, 15, 2909, es- 49 169 n. S.Ct. U.S. poused by [the If (1976)). dissenters]. the four- pre L.Ed.2d 859 The Marks rule plurality Justice deem would a state- however, that the supposes, narrowest con ment testimonial under targeted ac- will a “common represent currence denom test, cusation dissenting four Jus- Palmer, King v. inator” rationale. surely tices would it deem testimonial 771, (D.C.Cir.1991). If opin F.2d one evidentiary under the broader purpose entirely not fit within ion “does a broader Similarly, test. if Justice Thomas others,” drawn circle the Marks would a deem statement testimonial em- it in approach ceases to function as was ploying formality criterion along tended, adhering to it in such circum test, evidentiary with the purpose single opinion” stances would “turn a to four dissenting Justices necessarily “eight which of nine Justices do not sub would deem it using testimonial the evi- King, into scribe” law. 950 F.2d at 782. dentiary purpose test alone. It there- Marks rule to it ceases function as logically fore is coherent and faithful to was intended where Williams is concerned the Justices’ expressed views to under- because the two opinions resulted stand establishing Williams as a—at judgment common share no denomina- sufficient, minimum—a if not a neces- plurality’s tor rationale. Neither the ra- sary, criterion: a statement is testimo- tionale nor Justice Thomas’s is rationale nial at least when passes it the basic other, subsumed within the nor ra- is one evidentiary purpose plus test either the any tionale narrower than other in rel- targeted plurality’s require- accusation way that discern. evant we can For exam- ment or Justice formality Thomas’s cri- ple, statement be could made for put, terion. Otherwise if Williams does individual, purpose accusing targeted ... precedential have value an out-of- and therefore be testimonial under court statement is testimonial under test, plurality’s be for- sufficiently but not if precedent primary purpose its qualify mal to as a testimonial statement evidentiary and it a targeted is either Conversely, Justice under Thomas’s test. formal in sufficiently accusation char- sufficiently a statement could be formal acter. satisfy Justice be Thomas’s test but not States, Young v. United 63 A.3d sufficiently targeted satisfy the plurali- (D.C.2013); 1043-44 see State v. Mi also ty’s test. (2014) chaels, 219 N.J. 95 A.3d Regardless inability apply of our (“In short, opinions each of those three Marks, agree we District of Co- approach embraces a Williams different lumbia Court of Appeals’s reading determining whether the use of forensic Williams: Clause, evidence violates the Confrontation Marks,

By analogy to it can be argued and there is no narrow rule that would while plurality’s] rationale and support [the have majority of a the Su may be Justice Thomas’s rationale preme Court that we can discern from the other, Further, opinions includible within each the differ- in Williams. Williams they ent tests wholly utilize determine advances a new to when a approach 70 2010, September deemed This case tried in document will be testimo was

forensic nial, approach diverges from the Melendez-Diaz, and prior to Bull- after but ap that had been purpose test primary coming, already and Williams.33 As not find Williams’s previously. We plied ed, progeny neither nor its Crawford unclear.”). force, best precedent, as at listing of provided a state comprehensive related the law Having summarized ments that “testimonial.” Fur qualify as claims, turn Clause we Confrontation thermore, not Melendez-Diaz did decide this the facts of case. spécific question autopsy of whether should reports be considered testimonial. Testimony and Autopsy Reports 2. only majority opinion’s The reference to Autopsy Reports about the reports in a footnote autopsy appeared Relying primarily upon Melendez- in response sug and was to the dissent’s Diaz, the defendant contends that ad is gestion the Confrontation Clause prepared three autopsy reports mission of in designed not to detect errors scientific not by testify a medical examiner who did tests, other methods such as a testimony Dr. Funte’s about those re might pur new test better serve that right ports violated his state and federal simply The cited pose. majority autop against confront the witnesses him. an example sies as of a forensic test that points first that the The State outs de- Melendez-Diaz, repeated. cannot be See to object fendant failed to the admission of 5, 2527; at 129 557 U.S. 318 & n. S.Ct. autopsy reports and also failed raise (Ken 337, also id. at 129 2527 see S.Ct. in the issue his motion for new trial. The J., nedy, dissenting). Supreme Court correct, again are con- State and we explicitly implicitly neither nor indicated plain to utilize review strained error when (or not) autopsy reports whether are are considering this The State issue. contends Thus, in testimonial nature.34 the issue that the defendant entitled to is not relief See, e.g., remained unsettled. v. Nardi plain via error doctrine because no (1st Cir.2011) 107, 662 111 Pepe, F.3d rule of law clear was breached. State (“[A]n autopsy cán be report distin out that the unsettled points law was at from, to, guished or assimilated time of the trial and defendant’s re- Melendez-Diaz.”), sworn in documents mains unsettled question as to the (“[N]o 112 just id. at one can be certain autopsy whether are or are reports not agree. say We the Supreme testimonial. what would about Court added). (emphasis qualified 33. The defendant’s trial also occurred before Id. at *13 It also Appeals the Court of rendered Criminal its primary purpose as “testimonial” under Freeman, in State decision 00184-CCA-R3-CD, v. No. M2011- preferred by test the dissenters Williams 1656975, WL 2012 appellate because the intermediate court 9, 2012), (Tenn.Crim.App. May *10-13 which "say autopsy Freeman could that the ... autopsy report concluded that the introduced primary purpose anything had as its other into evidence at Mr. was Freeman’s trial testi than use in a trial.” Id. criminal monial. Freeman was decided after Melen Bullcoming but before Williams. dez-Diaz Nonetheless, Melendez-Diaz, Crawford, 34. After and before autopsy report in Freeman autopsy reports courts had held that were not qualified adopted testimonial under test See, e.g., testimonial. v. United States De La because, plurality ”[b]y Williams Cruz, Cir.2008) (1st (hold- 514 F.3d 133 conducted, autopsy time the victim's au ing autopsy report that an ais non-testimoni- already thorities had that she concluded had record); Feliz, al business United States v. 467 begun been murdered to build their (2nd Cir.2006) (same). F.3d against perpetrator." case as the [Freeman] United States today.”); issue out-of-court substitute for trial testimo- Cir.2010) McGhee, (1st F.3d Instead, ny. they are pri- created for the Melendez-Diaz Supreme (noting that mary purpose documenting cause “sharply divided” and that Court was death public records public “new slant on the Court’s Confrontation (citations health.” and . internal quotation likely territory to be contested Clause is omitted)). marks reh’g vacated on on years”), for some Other have courts found autopsy that (1st grounds, other 651 F.3d 153 Cir. reports are testimonial statements which State, v. 2011); 1100, Martin 60 A.3d implicate Confrontation protec- Clause (“We (Del.Supr.2013) 1102 that recognize See, e.g., United States tions. Ignasiak, v. uncertainty substantial exists about (11th 1217, Cir.2012) (hold- 667 F.3d 1231 particular whether a statement ‘testi is that, ing logic of Crawford, applying triggers monial’ or otherwise the Con Melendez-Diaz, and Bullcoming, Clause.”). the au- frontation topsy testimonial); at issue reports on the Courts continue be divided State, v. Cuesta-Rodriguez 214, 241 P.3d question autopsy of whether are reports (Okla.Crim.App.2010) that, 228 in (holding testimonial statements or the one not. On light statutory of Oklahoma’s scheme rela- hand, some courts have that au concluded tive to the medical duty examiner’s in the See, topsy are not reports testimonial. death, case of a suspicious an re- autopsy James, 79, e.g., States v. United 712 F.3d port testimonial); in such cases would be Cir.2013) (2nd (deciding autop 99 that the Kennedy, State v. 756, 229 735 W.Va. at issue sy report “was not testimonial (2012) 905, S.E.2d 917-18 (holding, based was prepared primarily because it not West trial”); partially Virginia’s statutory create a for use at record a criminal scheme, People Dungo, v. 608, autopsy reports 55 147 that are all Cal.4th Cal. under (find 527, (2012) testimonial). 442, Rptr.3d 286 P.3d 450 circumstances ing though statutory that even California’s Moreover, courts some have ruled since requires suspi scheme the reporting of Melendez-Diaz and Bullcoming that enforcement, autopsy findings cious lawto Confrontation Clause does preclude not an serves autopsy purposes several offering experts from their own opinions, report simply itself an “autopsy was regardless independent admissibility of the death, official explanation of an unusual they of the upon forming material relied in ordinarily and such official records are not Nardi, See opinions. those 662 at F.3d Leach, testimonial”); People v. 366 Ill.Dec. cases). 112 (citing Court of Criminal 477, 570, (Ill.2012) (holding 980 592 N.E.2d Freeman, Appeals held. has so 2012 WL reports that autopsy are not testimonial 1656975, *14 (recognizing that the testi- explaining report that an autopsy fying placed nontestify- doctor some of his prepared in the normal operation course of ing colleague’s findings jury before the office, of the medical examiner’s to deter opinion while his own relating about death, mine the cause and manner cause of the victim’s death but holding is not for the prepared primary purpose of such “was well doc- testimony within” the targeted accusing engaging “a individual of expertise autopsy tor’s field of and that the in criminal conduct” or providing “evidence (citations report by colleague his “of a prepared in a criminal trial” and internal reasonably omitted)); type upon by relied in State v. Max quotation experts” marks well, (“Au (Ohio 2014) (internal quotation 9 N.E.3d his field marks omit- ted)). topsy are reports not intended to serve as not admitted because the defen decide this case whether have been not

We need victim’s are testimonial or whether dant “did not contend reports autopsy may testify anything about an other than a homi examiner death was medical cide,” by pa- challenged only identity another produced autopsy report murder, In- of the victim’s testify perpetrator at trial. who does an. thologist neither the re only upon autopsy that no clear rule of law issue which we hold" stead port pathologist’s testimony in this case the admission nor the “shed was breached Flack, testi- much autopsy reports light”); Dr. Funte’s State W.Va. (2013) uncertainty (concluding Given them.35 753 S.E.2d mony about medical existed Confrontation Clause the admission state has testimony Crawford, par- autopsy examiner’s about re since jurisprudence clarity expert port by pathologist another was regarding prepared the lack of ticular testimony, actually plain which was not error because the state medical reports and by splintered testimony merely confirmed exacerbated decision examiner’s Williams, conclude that the that victim’s death was a we defendant homicide establish clear and caused wound not by gunshot has failed to that a and did implicate or link rule of law was breached. the defendant the defen unequivocal homicide); Blevins, dant to the State v. Furthermore, conclude, we also as did 245, (2013) 135, 231 744 S.E.2d 268 W.Va. Appeals, grant of Criminal that Court curiam) (per (concluding that the errone ing by way plain error doc relief “ ous of the medical admission examiner’s ‘necessary to not do substantial trine is testimony regarding autopsy report ” Smith, justice.’ (quoting 24 S.W.3d at 283 prepared by pathologist another was 641-42). Adkisson, S.W.2d at Dr. doubt). beyond harmless a reasonable expert any testified as an without Funte Thus, no clear of law both because rule objection from the defendant. The defen granting was breached and because relief not contest causes of the dant did necessary is not to do justice, substantial any other victims’ deaths or conclusions or not entitled to defendant is relief un- autopsy information contained re der the doctrine. plain error ports testimony. or in Dr. Funte’s Nor autopsy reports did the or Dr. Funte’s Testimony S. Admission Police of testimony implicate defendant or tie Regarding C.J.’s Statements him homicides. cir to these Under these cumstances, granting relief The argues is not neces defendant also that the trial sary justice. to substantial Free court his right do See violated constitutional to 1656975, man, against (concluding by 2012 WL *13 confront the witnesses him al- Mullins, lowing was granting necessary Sergeant relief not Lieutenant Davidson, even justice though Sergeant testify do substantial the au Max to re- topsy garding was testimonial report identifying and should C.J.’s statement note, however, tims, autopsy 35. injuries, We unlike the locate and document their Freeman, Thus, report autopsy at issue in re- their determine the causes of deaths. it 4, ports prepared in this case were on March autopsy reports is not clear that these at all the defendant identified would before be classified as testimonial under the Thus, autopsy suspect. reports here do espoused test the dissenters in Williams. satisfy plurality's not the Williams’s test for autopsy reports Nor these is it clear determining whether a statement is testimoni- satisfy formality would Thomas’s Justice crite- Furthermore, primary purpose al. rion. autopsy reports identify these was to the vic- Second, perpetrator. defendant as the The State as for any Confronta violation, tion pre- Clause there responds that the failed to is no constraint prior on the use rais- testimonial statements serve the constitutional issue he now when a appears declarant at trial es, and is pointing the defendant out that did subject Crawford, cross-examination. object Sergeant at all Mullins Lieu- (“[W]e 59 n. U.S. at 124 S.Ct. 1354 testifying tenant about Davidson C.J.’s that, reiterate when appears the declarant objected Sergeant statement and Max’s trial, for cross-examination at the Confron testimony only hearsay. the basis of places tation Clause no constraints at all The failed to con- defendant also raise this on the prior [the use testi declarant’s] trial, stitutional issue in motion for new statements.”) monial (citing California but it in upon he relied the Court of Crimi- Green, 149, 162, 399 U.S. 90 S.Ct. nal Appeals. (1970)). L.Ed.2d 489 same true of Court, argues In this the defendant also right protected by confrontation ar challenged testimony was inad- I, ticle section 9 of the Consti Tennessee hearsay missible admitted violation of Banks, tution. 271 S.W.3d at 118-19. Tennessee Rules Evidence. The defendant’s upon reliance Califor defendant concedes that he did not raise Green, 149, 1930, nia v. 399 U.S. 90 S.Ct. this for or in issue his motion new trial (1970) 26 489 contrary L.Ed.2d for a rule the Appeals, Court of Criminal but Green, In misplaced. is Supreme the argues that admission this evidence Court overruled California decisions and plain amounted to error. We conclude held that “where the is declarant not ab that the defendant is not entitled to relief sent, present but is to and testify to sub

because he to has failed establish that cross-examination, cases, mit to our if testimony admission of challenged the support anything, the conclusion the breached a unequivocal clear and rule of admission of [the] out-of-court statements law. does not create a problem.” confrontation 162, Thus, Id. at 90 S.Ct. 1930. under First, assuming even the state both and Crawford, Green when a declar- hearsay,36 ments were the Tennessee appears trial, ant for cross-examination at recognize Rules of an exception Evidence “the Confrontation no places Clause con hearsay of identification “statement[s] straints at all on the use of declar- [the person of a perceiving per made after prior ant’s] testimonial statements.” son if the declarant testifies at the trial or 9, Crawford, U.S. at 124 541 59 n. S.Ct. hearing subject and is to cross-examina 1354; People see Argomaniz-Ra also v.

tion statement.” concerning the Tenn. R. (“Because mirez, 1015, 102 P.3d 1018. 803(1.1). case, Evid. In this C.J.’s. out-of- hearsay testify declarants will at trial court identification satisfied the Rule cross-examination, subject and will be 803(1.1) criteria for admission. C.J. testi their admission of out-of-court statements subject fied at trial was to cross- does violate not the Confrontation concerning Clause”); State, examination 1183, statement. 808 N.E.2d Clark Indeed, (Ind.2004) defense counsel thoroughly cross- 1189 n. 2 (stating Su examined at preme expressly C.J. trial. Court noted Green " statement, 'Hearsay' 36. other one is than the truth of matter asserted.” Tenn. R. by testifying 801(c). made while declarant at Evid. hearing, trial or prove offered evidence to

74 Dotson, error, absent, plain much less error. was is not that, the declarant “where 4728679, at *49. testify and to submit 2013 WL present but cases, cross-examination, anything, if our Regarding of Evidence D. Admission the admission the conclusion

support Imprisonment not the Defendant’s does statements his out-of-court State v. problem”); a confrontation create trial, filed a the defendant Prior to (Me.2004) 1164, Gorman, 1178 854 A.2d seeking prevent in limine motion Crawford, the that, according to (stating evidence of introducing prosecution when was satisfied Confrontation Clause degree incarceration for second prior given opportunity “was the defendant provided Applying guidelines murder. his mother and cross-examine to examine 404(a) Evidence in Tennessee Rule of did regarding what she jury before (b), denied the motion. the trial court for her and the reasons did not recall prior the defendant’s trial court found that State, recollection”); Cooley v. failure by clear proven been incarceration had A.2d Md.App. trial court convincing evidence. The (2004) did not (holding that “Crawford had no prosecution emphasized line of cases hold the unbroken overrule informing jury of the crime intention of does Clause ing that the Confrontation incarcerated. was for which pretrial to exclude statements operate that state trial court further found actually testifies a witness who made and Cecil’s ments about the defendant’s Tate, trial”); State v. 682 N.W.2d the defen relationship, which mentioned (stating that (Minn.Ct.App.2004) 176 n. incarceration, as well state prior dant’s at trial and the declarant testified because police made to the ments the defendant cross-examination, the Con subject to murders family members after the invali apply did not frontation Clause return to unwillingness his to regarding State v. Car hearsay exception); date the to the “highly probative as prison, (S.D.2005); others, 544, 547-49 692 N.W.2d intent, motive and state defendant’s State, 462, 464 139 S.W.3d Crawford mind at the time of the commission careful (Tex.App.2004) (stating “[a] any prejudicial outweighed offense[s] reveals reading opinion of the Crawford Dotson, 2013 to the defendant.” effect only when the ex holding applies that its However, the trial at *59. WL statements of a wit trajudicial testimonial un prosecution to allow the court refused are testify ness who does not at trial regarding the de limited use of evidence (italics origi in to be admitted” sought incarceration, stating that prior fendant’s nal)). knowledge witnesses] “the mere fact that a case, In this testified at trial C.J. part fully or condi of the defendant was thoroughly about his was cross-examined was defendant’s incarceration” upon tioned his statements of identification and prior to warrant the witness “simply insufficient of the defendant at trial. identification Id. divulging jury.” this fact to the ably him about questioned Defense counsel prose- contends that the The defendant identifying implicating his statements ruling court’s cution violated the trial perpetrators as the and about others testimony by eliciting in limine the motion ability happening to what was perceive that he Deputy Armstrong Director agree the time of the events. We with incarceration prior knew of the defendant’s there is Appeals Court Criminal question he went into the room when simply argu- no merit to the defendant’s exchange, pertinent In the statements the defendant. ments that admission of these stated, Deputy Armstrong Director “Be- that for. everybody Does understand room, going fore in that interview I knew you. that? Thank very [the defendant] familiar with appeal On to the Court of Ap- Criminal justice system the criminal because he had peals, the defendant challenged Deputy recently been from prison.” released De- Director Armstrong’s testimony and ar- objected, relying

fense counsel on the trial gued that the trial court erred by overrul- ruling court’s on the motion in limine. ing the objection defense and finding it The trial court overruled the objection, admissible. The Court of Criminal Ap- stated that the testimony inappro- was not peals concluded that Deputy Director priate, pointed out that numerous wit- Armstrong’s testimony regarding the de- already nesses had testified to the defen- past fendant’s incarceration was not relat- prior dant’s incarceration. ed to one of the categories of information The State then Deputy asked Director the trial court permissible described as Armstrong why having background infor- the order denying the defense motion in mation before conducting an interview was Dotson, limine. 2013 WL at *61. important. Deputy Director Armstrong The appellate intermediate court also con- responded: that, cluded because Deputy Director try get

You Armstrong as much information had failed to explain why person you knowing about a you as can. Before about an subject’s interview prior them, you interview criminal history want to know was important, how it could many they’ve times been not conclude arrested. You that his testimony was rele- want they’re to know if vant to “the integrity familiar with the of the defendant’s justice system. criminal You want confession—that defendant knew his rights, know if it’s the they’ve experience first time police, ever with you been arrested would not easily want be know coerced into confessing they have ever been a heinous any- commit,” arrested of crime he did not (internal thing, argued. a violent crime.... the State helps So it Id. quotation omitted). Nonetheless, interview to marks you know as much as can the inter- about a person you proceed appellate before mediate court concluded any (1) it. error was harmless because: “Deputy time Director Armstrong testi- The trial court then instructed the jury as fied, multiple other witnesses had testified follows: to the prior defendant’s incarceration with- further, go any Before we ladies and in the bounds set forth by the trial court in gentlemen, there testimony has been in (2) order”; its pretrial “Deputy Director this case about whether or not de- [the Armstrong did not length state the or jail. had been in fendant] There’s been reason for incarceration”; the defendant’s testimony some with regard to the fact (3) trial court gave “[t]he also a limit- jail. he’s been in you I want instruction, ing jury which the presumed understand the fact that he has been in to have followed.” Id. jail has no bearing whatsoever your on decision in this Court, case. You’re to decide In this argues the defendant this case upon based the facts that are Appeals Court of Criminal erred in presented in only this case. The concluding reason that admission of the testimony that issue has even you come before is it was harmless error. says Deputy He plays into parts proof. certain of the Director Armstrong’s testimony implied only thing you’re That’s the to consider that the defendant recently had been re- 76 (4) The must exclude the evi- violent court committing a for prison

leased if value is out- probative dence its “virtual shackles” placed crime and danger prej- of unfair weighed says that the defendant. udice. cured, than rather compounded, court trial jury to instructing the by first

the error trial We have cautioned history incar- the defendant’s disregard approach” a “restrictive courts should take stating prior that the by then ceration and 404(b) admitting Rule evidence be when “ parts certain relevant to incarceration was significant potential for cause it ‘carries a ” proof. of the v. Dot unfairly influencing jury.’ a State (Tenn.2008) son, 378, 387 254 S.W.3d court that the trial responds The State 214, Bordis, 905 State v. S.W.2d (quoting overruling in abuse its discretion did not (internal (Tenn. quota Crim.App.1995) 227 Director Deputy objection the defense omitted)). marks evidence “[S]uch tion testimony because the testi- Armstrong’s jury improperly in a convict easily results to show the defen- mony was not offered for his or her bad charac ing a defendant activity criminal but propensity dant’s propensity disposition or apparent ter or familiarity with the criminal to show regardless a crime of the to commit jury and thus aid justice system, strength concerning of the evidence integrity of the defendant’s assessing the n. 7 (quoting on trial.” Id. at 387 offense agrees if the Even Court confession. Rickman, v. 876 S.W.2d State conclusion Appeals’ the Court Criminal Mallard, (Tenn.1994)); v. 40 S.W.3d State should have been sus- objection that the “ (Tenn.2001). risk that a ‘[T]he tained, that the error was argues the State other than jury will convict for crimes harmless. that, guilt, uncertain of charged those —or 404(b) pro- of Evidence Tennessee Rule anyway per because a bad it will convict vides, part, in relevant as follows: punishment preju son deserves —creates crimes, wrongs, other Evidence of ordinary rele outweighs effect that dicial ” the char- prove Sexton, not admissible to acts is vance.’ State v. 368 S.W.3d (Tenn.2012) in order to show action person acter of a (quoting Old Chief States, 172, 181, with the character trait. conformity 519 U.S. S.Ct. United (1997)). however, 644, 136 be admissible for other may, It L.Ed.2d 574 The conditions which must purposes. However, previously we have evi- allowing be before such satisfied observed another context: dence are: 404(b) particular, the Rule criteria —in (1) must hold upon request The court issue at trial the existence of a material hearing jury’s presence; outside the balancing probative value (2) must that a The court determine consider- prejudice require and unfair — con- material issue exists other than presented ation of the evidence at trial. trait conforming Thus, duct with a character cognizant trial courts must be upon request made, state on the evidentiary rulings and must are pretrial if issue, ruling, material the record the they may need to be reconsidered or admitting the reasons for the evi- presented revised based on the evidence dence; at trial. (Tenn.

(8) proof Gilley, The court must find of the v. 173 S.W.3d State 2005). crime, Finally, that if a wrong, explained to be clear we have other act substantially complies with the convincing; and trial court 404(b) 1993). Deputy set in Rule for eval procedures out Director Armstrong nei- admissibility evidence, uating the of the ther the jury informed of the crime for given great decision will be defer which the court’s defendant had been incarcerated only be if appeal ence on and will reversed nor that the implied jury should consider its discretion. the prior the trial court abused State defendant’s incarceration as evi- DuBose, (Tenn. guilt. 958 S.W.2d dence of court gave trial 1997). instruction, limiting which cautioned the jury not to consider the defendant’s prior substantially the trial court

Here com- guilt, incarceration as evidence of and the with the set out in plied procedure Rule testimony was at most cumulative to evi- 404(b), both at the pretrial hearing already dence properly admitted from mul- in limine considering motion and when tiple prior witnesses. The defendant is objection Deputy defense Director Arm- not entitled to relief on this issue. strong’s testimony. Unlike the Court of are Appeals, Criminal we unable to con- Mandatory E. Review that the clude trial court abused its discre- by overruling objection tion the defense As to each of the defendant’s six death Deputy Armstrong’s testimony. Director sentences, this required Court is to deter- testimony purpose was offered for a (1) mine: whether the sentence “was im- conformity than in showing other action (2) posed any fashion”; arbitrary testimony Specifically, with character. supports whether the evidence the jury’s jury, was intended to inform the as the findings prosecution proved ag- asserts, familiarity of the State defendant’s gravating beyond circumstances a reason- justice system with the criminal so (3) doubt; able whether the evidence sup- jury could better integrity evaluate ports jury’s determination that Di- Deputy the defendant’s confession. aggravating outweighed circumstances not Armstrong rector did mention mitigating beyond circumstances reason- crime, long or discuss how (4) doubt; able whether the sentence incarcerated, been or disclose when disproportionate of death “is excessive or the defendant was released from incarcer- cases, penalty imposed to the in similar As we out in pointed Gilley, ation. a trial both considering the nature the crime pretrial rulings court must reconsider and the defendant.” Tenn.Code Ann. trial, light proof of the offered and that 39-13-206(c)(l). § precisely

is what the trial court in case this objection, In overruling did. the trial Arbitrary Imposition 1. pointed court out that numerous wit- the Death Sentence according nesses—seven to a statement The defendant submits that Ten already defense counsel—had testified penalty nessee’s death scheme includes a prior about the defendant’s incarceration. “fatally flawed proportionality review” The record simply does indicate that “inherently which in an arbitrary results trial court abused its discretion imposition penalty,” death because overruling the motion. only capital those cases in which a sentenc agree We do with the ing hearing Court was held included in are however, that, Appeals, Criminal even as He comparison. says universe for also suming the er testimony was admitted in proportionality system that Tennessee’s ror, error compare was harmless. See v. flawed it State because fails to death 526, (Tenn. Caughron, imposed in S.W.2d sentences this State those applicable with the statutes He asks cordance jurisdictions. other in imposed Thus, we conclude that position espoused rules. adopt procedural this Court imposed in State v. was not opinion Chal the defendant’s sentence separate (Tenn.2000) mers, arbitrary 921-925 in an fashion. 28 S.W.3d J., dissenting). (Birch, concurring Aggravating 2. Evidence of repeatedly rejected these has This Court Circumstances Recently, majority of this

arguments. determining whether the evi In exhaustively pro re-examined the Court findings of statu supports jury’s dence pool compari for including priety of circumstances, the rele tory aggravating in which a those similar cases only son whether a rational trier of inquiry vant is been con sentencing hearing has capital fact, light most taking the evidence limitation is ducted, held that this and we could have prosecution, favorable to the Tennes and does not render appropriate aggravating of the cir found the existence arbitrary. sentencing scheme capital see’s beyond a reasonable doubt. cumstances (Tenn. Pruitt, 180, 217 415 S.W.3d State v. Jordan, 1, 66-67 State v. 325 S.W.3d 2013); Godsey, also State v. 60 S.W.3d see Rollins, (Tenn.2010); 188 S.W.3d State Bland, (Tenn.2001); State v. 783-86 (Tenn.2006). 553, 571 (Tenn.1997). We 666-67 958 S.W.2d analysis adopted expressly re-affirmed Dotson, a. Sr. Cecil Pruitt, in Bland. 415 S.W.3d 215-17. jury applied aggrava three argument capi

As for the defendant’s imposing circumstances when ting jurisdictions from other should be tal cases convic death sentence for the defendant’s pool comparison, it is included Cecil, murder of degree tion of first quote prior from a decision of sufficient abundantly is sufficient to the evidence explaining why argument this this Court First, jury’s findings. during support merit: lacks trial, penalty phase parties of the Tennessee, comparative proportional- In previous that the defendant had stipulated duty upon ity imposed review is a this ly degree been convicted of second murder Ap- and the Court of Criminal Court felony and that this conviction was a crime peals by part a statute that is thus estab stipulation of violence. This sentencing scheme. capital Tennessee “previ had been lished that the defendant Nothing in the indicates that the statute (1) felonies, ously of one or more convicted term Assembly General intended the present charge, other than the whose stat “similar cases” to include out-of-state violence elements involve the use of utory addition, In given capital cases. § person.” to the TenmCode Ann. 39-13- sentencing from state to statutes differ 204(i)(2). state, jurisdictions cases from are other

likely purposes not “similar” for of com- Second, jury found that parative proportionality review. knowingly great created a risk rea- Godsey, 60 S.W.3d at 786. For these persons more in the of death to two or sons, reject we the defendant’s assertion murdering course of Cecil. See Tenn.Code sentence, system that his and Tennessee’s 39-13-204(i)(3). aggravating § This Ann. review, proportionality arbitrary. “‘contemplates either multi circumstance persons to several ple Our record also otherwise murders or threats review the shortly shortly prior at or to or after an confirms that the defendant received a full trial, prosecution which the upon and fair conducted in ac- act of murder which was

79 ” State, 52, is based.’ Johnson v. 38 support application S.W.3d of the mass murder (Tenn.2001) Cone, (quoting 60 State v. aggravating 665 circumstance. (Tenn.1984)). 87, 95 S.W.2d “Most com- Williams, Seals, b. Ms. Mr.

monly, aggravating this circumstance ‘has and Ms. Roberson applied been where a defendant fires mul- tiple gunshots in the a robbery course of In sentencing the defendant to death for persons or other incident at which other his convictions of first degree murders for ” present.’ Williams, than the victim are Id. (quoting killing Seals, Ms. Mr. and Ms. Henderson, 307, Roberson, State v. 314 jury S.W.3d applied the ag- three (Tenn.2000)). (i)(3) The aggravating gravating cir- already discussed, circumstances as well as applied following cumstance has been where the two additional (1) aggravating proof showed a defendant “fired circumstances: random the murder was committed for present purpose shots with others or nearby,” avoiding, or with, interfering or engaged preventing the defendant in a shootout with lawful others, prosecution arrest or “or the actually shot defendant or (2) another; and people in addition murder was knowing- to the murder victim.” (footnotes ly committed omitted). while the Id. at defendant had 60-61 a substantial role in committing, or proof attempt- this case showed that three others commit, ing to or was fleeing after present living having room where . substantial role in committing or multiple Cecil was shot times. at- The evi- tempting to any commit degree dence first mur- support jury’s is sufficient to (i)(3) der. See § TenmCode Ann. finding of the 39-13- aggravating circum- (7). 204GX6), stance. already We have determined that The third aggravating circumstance the evidence is sufficient support “ the jury’s jury murder,’ relied upon is ‘mass which (1) findings: that the defendant had been (3) is defined as the murder of three (1) “previously convicted of one or more more persons, whether during committed felonies, other than the present charge, single episode criminal or at different statutory whose elements involve the use times within a forty-eight-month period.” ];” person[ violence to the TenmCode 39-13-204(0(12). § Tenn.Code Ann. This 39-13-204(i)(2); (2) §Ann. that the defen- interpreted Court has the mass murder “knowingly dant great created a risk of aggravating circumstance as requiring (2) death to two persons, or more other proof that the defendant has been convict murdered[];” than the victim see Tenn. ed of three or more murders in Tennessee 39-13-204(0(3); (3) § Code Ann. (48) within a period forty-eight months murder, defendant committed mass see prior to the sentencing hearing at which 39-13-204(0(12). § Ann. Tenn.Code We the murders are used to ag establish the next consider whether proof is suffi- gravating Reid, circumstance. State v. support cient to the jury’s findings of the (Tenn.2006); S.W.3d State v. two additional aggravating circumstances.

Black, (Tenn. 815 S.W.2d 183-184 1991); Bobo, (i)(6) State v. 727 S.W.2d aggravating circum (Tenn.1987). case, In the instant requires the de stance proof that “[t]he murder fendant had been prior convicted to his was committed for the purpose avoiding, capital sentencing hearing with, of murdering interfering or preventing a lawful persons six in the same criminal episode. prosecution arrest or of the defendant or proof This is overwhelmingly sufficient to § another.” Tenn.Code Ann. 39-13- that aggravating five circumstances circumstance same

201(i)(6). aggravating This to the first regard proof applied the shows that it had when applied “may be Williams, Mr. of Ms. degree motivation for the murders was one avoiding arrest Hartman, Seals, Roberson, as two 42 S.W.3d Ms. as well v. and State killing.” (1) (Tenn.2001). lim- circumstances: application aggravating is “not Its additional solely years which are old killings victim was less than twelve only to those the ited by years a desire to old eighteen was predominantly or and the defendant motivated Id.; (2) older; see also prosecution.” especial- arrest or the murder was avoid or Bush, 504-05 heinous, atrocious, 942 S.W.2d or cruel in that it ly State (Tenn.1997). in this case The evidence abuse physical torture or serious involved desperately that the defendant necessary produce showed to death. beyond jail. (5). He ad- returning 39-13-204(i)(l), avoid to § wanted to Ann. See Tenn.Code during argument. shooting mitted Cecil evi- already concluded that the We have Seals, Williams, Mr. and Ms. Rober- Ms. five of the support is sufficient to dence son, the home and in present were who the circumstances that aggravating seven although vicinity living the the room— jury applied impose death sentences have been in the kitchen— may Mr. Seals degree murder for the defendant’s first identify able to the defen- would have been II. We convictions of Cemario Cecil of Cecil’s murder. perpetrator dant as the proof conclude that the is sufficient also admission, the left By his own findings of the two addi- support jury’s that all inside were believing the home circumstances that were aggravating tional dead, perpetrating he denied although only to the murders of Cemario applied The defendant told his murders at trial. II. Cecil he killed the children because mother that proof him. All of this they identify could First, overwhelmingly the record finding support jury’s is sufficient findings supports jury’s that Cemario Williams, of Ms. Mr. the murders years II were less than twelve and Cecil Seals, were motivated and Ms. Roberson eighteen years old and the defendant committed, part, to avoid by and at least § See Ann. 39- old or older. Tenn.Code Ann. prosecution. arrest and Tenn.Code 13-204(i)(1). The evidence established 13—204(i)(6). § 39— years II were four that Cemario and Cecil jury’s proof supports also The old, respectively, when years old and two knowingly com finding that the defendant they killed and that the defendant Williams, Mr. the murders of Ms. mitted age eighteen. was over the Seals, while he had a and Ms. Roberson committing attempt role in or

substantial jury’s proof supports also murder. See ing degree to commit first findings that and Cecil II’s mur Cemario’s 39-13-204(i)(7). § Ann. In Tenn.Code heinous, atrocious, or “especially ders were deed, defendant murdered Ms. cruel, [they] in that involved torture Williams, Seals, Roberson, and Ms. Mr. beyond abuse that neces physical serious murdering during the course Cecil. death.” Tenn.Code Ann. sary produce 13—204(i)(5). § The medical examiner 39— c. Cemaño Cecil II injuries multiple testified to the extensive upon inflicted each of these vic that were sentencing In the defendant to death for that the children sus degree explained murders of tims and premeditated first II, injury capa- than one that was jury applied tained more Cemario and Cecil causing proof Having thoroughly record, their deaths. The ble reviewed the we juror victim was conclude that a each stabbed rational established could have concluded that severely aggravating beaten cir- repeatedly and cumstances established State be- beyond abuse was that neces- physical yond a reasonable doubt as each of the proof to cause more sary death. outweighed murders any mitigating cir- jury’s finding sufficient to the support than justified imposition cumstances and of the aggravating of this circumstance. death penalty degree for the first murders Cecil, Williams, Seals, of Ms. Mr. Ms. Ro- 3. Weighing Aggravating and berson, Cemario, and Cecil II. Mitigating Circumstances supports The evidence jury’s also the n . Proportionality Review finding that aggravating the circumstances We next consider whether the applicable degree to each first murder con- imposed sentences in this case are exces any outweighed mitigating viction circum- sive disproportionate or penalty to the im beyond stances a doubt. Tenn. reasonable posed cases, in considering similar both 39-13-206(c)(l)(C). §Ann. Code The trial the of nature the crime and defendant. jury court instructed the as to the follow- 13—206(c)(1)(D). § Tenn.Code Ann. A 39— (1) lin- ing mitigating any circumstances: death sentence is disproportionate only if or de- gering regarding residual doubt case, whole, “the taken plainly as a (2) guilt; was fendant’s defendant lacking in circumstances consistent with birth; dysfunctional family in a raised since those in similar cases in which the death (3) the defendant suffered ne- childhood Bland, penalty has been imposed.” 958 (4) glect; parents separat- defendant’s S.W.2d at 665. A death sentence is not old, years ed when he was his six and disproportionate merely because the cir life; (5) part father was not his of the cumstances offense are similar to changed residences and schools those of another offense for which the multiple on throughout early occasions defendant received a life sentence. Id. An (6) childhood; the defendant was retained appellate court does not function as a “su fourth grade truancy twice due to per 782, jury,” Godsey, 60 at S.W.3d nor many and absent from school times appellate does an court assure “that a (7) child; diagnosed the defendant was less than sentence death was never im (8) disability; with learning the defen- posed in a case with similar characteris dant’s mother did not attend scheduled tics,” Bland, Instead, 665. S.W.2d at meetings appear juvenile and did not at our comparative role in proportionality re (9) occasions; hearings multiple court view “assure is to that no aberrant death age of eighteen, at the defendant wit- sentence is affirmed.” Id. what nessed he believed to be intentional physical younger by abuse of his brother have no We mathematical or sci (10) mother; any mitigating his other entific for fulfilling formula this role. Id. produced by factor raised the evidence Rather, at 668. this prec Court uses “the prosecution or either defense in edent-seeking comparative pro method of guilt sentencing hearing. The pre- State portionality review in we compare which sented evidence countering aimed the case us with before other cases involv mitigating circumstances on which de- ing similar defendants and similar crimes.” Davis, fendant relied. State v. 619-20 S.W.3d present in the (Tenn.2004). requires an ex- The sentences death method This nor dispropor- case are neither excessive facts comparison “the amination imposed similar crime, penalty tionate to the char- and circumstances on March proof shows that defendant, cases. aggra- and the acteristics and killed his the defendant shot in- circumstances vating mitigating Williams, Seals, brother, Cecil, Ms. Mr. review, in the under volved” case defendant then Ms. Roberson. The Stevens, similar eases. State other and beat with boards his stabbed wooden (Tenn.2002). 817, 842 S.W.3d niece, ranged who nephews four years months age from nine to two old. conducting comparison, In this we two-year-old Four-year-old Cemario and factors, following which focus consider attacks, the brutal Cecil II did survive (1) nature the crime: the means on the of and the other children’s survival was ex- (2) (8) death; death; of the the manner of the traordinary, considering that defen- (4) of killing; place motivation for the the left them in the home unattended and dant (5) death; similarity the of the victim’s forty seriously injured nearly for hours. circumstances, including age, physical and Williams, Seals, Cecil, Mr. and Ms. Ms. conditions, mental and the victim’s treat multiple gunshot Roberson sustained (6) the or during killing; ment the absence children, and wounds. The Cemario Cecil (7) provocation; of the absence presence II, multiple, indeed, innumerable suffered (8) the presence justification; or of and injuries. sharp blunt force and force The and vic injury to effects on non-decedent unprovoked attacks the children were on Bland, at 667. tims. 958 S.W.2d both and The defendant nev- cruel brutal. or attempted er to render aid summon the reviewing When character scene, he help, spent but instead left the (1) defendant, the we istics of consider: n the defendant’s night the of and the next remainder the criminal record or prior day girlfriend, with his and went to a (2) criminal prior activity; defendant’s day restaurant for dinner later that with (3) race, age, gender; and the defendant’s reported his and a He also brother friend. mental, condition; physical emotional or following for the Monday work on (4) the defendant’s involvement or role killings spree. weekend crime murder; (5) coopera the defendant’s crimes only defendant admitted to the af- (6) authorities; tion defendant’s tape ter a he was confronted with record- (7) remorse; knowledge the defendant’s ing surviving nephews of his of one identi- (8) victim(s); helplessness perpetrator. Although him the fying as capacity defendant’s rehabilitation. to committing then confessed the crimes to review, conducting Id. Moreover in this police and told his mother he had “ pool select from Ve cases which they because murdered children saw capital hearing actually sentencing adults, any him trial he denied shoot at conducted determine whether the sen in the and claimed that involvement crimes imprisonment, tence should be life life im while he had hidden beneath a bed other prisonment possibility pa without the persons and assaulted unknown murdered ” role, Holton, v. death.’ State the victims. (Tenn.2004) (quoting S.W.3d State Carruthers, (Tenn. 35 S.W.3d offered mitigation, In the defendant 2000)). less proof family that his life was than parents very ideal. His married at a the use of weapons. The defendant was often, young age, argued engaged in often fights, involved in and school and physical altercations. juvenile As child and records .referenced defen- youth, the defendant witnessed his father fights, dant’s hostility toward his broth- physically er, abuse his Cecil, mother and his moth- and his mother’s fear of him. er tear out windows in an apartment com- The defendant’s mother juvenile attended plex place baby her in a bathtub of court with him many occasions, what perceived the defendant to be scald- when she was attend, unable to his sister ing water. When defendant was six Nicole attended on her behalf. old, years father, his mother left his taking only legitimate job that the defen- the defendant and his siblings with her dant ever held was a security guard contacting and not the defendant’s father age eighteen. At the age of nine- for four or five months. The defendant’s teen, he pled guilty to second degree mur- family lived in poverty, and his mother was der and was sentenced to eighteen years in home, often away from leaving the defen- prison. He joined Crips gang while in sister, Nicole, dant’s to care for the defen- prison and was written up for refusing to dant and Cecil. The children often had participate, for cursing officer, and for eat, little food to and the defendant and cutting an inmate who was trying to leave Cecil sometimes went hungry and other the Crips. The defendant served fourteen times stole money from their grandmother years of his eighteen-year sentence before buy food. Eventually, when the steal- being released on parole. The defendant’s

ing persisted, grandmother their would no mother and her husband only visited him longer allow them to visit her home. during once years his fourteen prison. As for educational ability, the defendant family No other him, members visited al- diagnosed with a learning disability in though the spoke with his father math, reading and was enrolled in by resource telephone a few times. classes, failed the grade fourth twice due Considering the record in this case in absences, to excessive was socially promot- light factors, of the relevant we conclude ed, by was teased other children for not that the defendant’s death sentences are having proper school clothing, and left disproportionate excessive or to the sixteen, age school at while still only penalty imposed in similar cases. While eighth grade, having attended ten different capital no two cases and no two defendants schools and having suspended been so of- alike, are following cases and.defen-

ten that the system school refused to allow dants share several similarities this him to continue to attend. Jordan, case and this defendant. State v.

The defendant disciplinary (Tenn.2010) problems 325 S.W.3d 1 (upholding the both at school and at home pro- and was death sentence where the defendant shot vided with individual counseling. His and killed estranged his wife and two men mother either up failed to show for or at his work place wife’s and the jury found cancelled appointments with counselors. circumstances); five aggravating State v. fifteen, By age Holton, (Tenn.2004) defendant had become 126 S.W.3d 845 (up- involved in juvenile system court holding the death sentence where the de- had several juvenile arrests and adjudica- fendant shot and killed his four children tions, and one of these incidents involved jury and the found the mass ag- murder as to and, disproportionate, excessive or as to three circumstance

gravating supports the evidence each death sentence victims, aggravating under-age-twelve Carruthers, statutory aggra- circumstance); jury’s findings 85 the v. State (Tenn.2000) jury’s finding (upholding vating circumstances and S.W.3d out- shot circumstances aggravating the defendant that these where penalty death beyond one of men, the mother of circumstances strangled weigh mitigating two alive men, all three victims We have also consid- and buried reasonable doubt. cir aggravating assignments four jury found all of the defendant’s and the ered felony, merit. cumstances, including prior violent that none has error and conclude cruel, murder, heinous, atrocious, felony but or raised in this Court As to the issues Smith, murder); affirm opinion, v. in this we State not addressed and mass (Tenn.1993) (upholding Ap- of the Court Criminal S.W.2d 561 the decision opinion the defendant shot portions where Relevant penalty peals. death stepsons two appendix. his wife and hereafter as an published and stabbed are circum sentences aggravating four convictions and jury found The defendant’s heinous, atrocious, stances, including of death shall affirmed. The sentences are felo cruel, apprehension, provided by avoid law on murder to be carried out as murder); murder, November, 2015, mass State unless other- day ny 17th (Tenn.1990) (uphold proper this Court or other Payne, 791 S.W.2d wise ordered defen where the ing authority. appearing the death sentence It that the defendant neighbor and girlfriend’s appeal are taxed indigent, dant stabbed costs of this two-year-old daughter neighbor’s to the State of Tennessee. aggrava found three of same jury in this applied as those ting circumstances JR., J., KOCH, WILLIAM C. case). J„ LEE, separate G. filed a SHARON concurring opinion. these earlier case is not identical to This because the mur- capital primarily cases KOCH, JR., and WILLIAM C. perpetrat- the defendant and assaults ders LEE, JJ., concurring. G. SHARON the most horrendous ever are some of ed However, taken in committed Tennessee. fully with all of the Court’s concur We whole, by “plain- no means this case 11(E)(4) contain- except for Section opinion ly lacking in circumstances consistent analysis. After ing proportionality cases in which the death those in similar propor- conducting independent our own Bland, 958 imposed.” has been penalty with the ma- tionality analysis, we concur Thus, that the 665. we conclude S.W.2d at death conclusion that Mr. Dotson’s jority’s death are not excessive or sentences of to the disproportionate sentences are not imposed penalties to the disproportionate offend- imposed on other similar sentences in similar cases. crimes. have committed similar ers who 1997, scope narrowed the In the Court

III. Conclusion by required review proportionality 39-13-206(c)(l)(D) § Ann. Tenn.Code in the entire record We have considered (2010) only by limiting its consideration the sentences of this case and find penalty in which the death arbitrary those cases imposed any in death were Bland, S.W.2d fashion, sought. State v. 958 are not been that the sentences of death

85 (Tenn.1997). recently The Court Appendix 666 proportionality reaffirmed this truncated (Excerpts from the Decision of the Pruitt, State v. approach S.W.3d Appeals) Court of Criminal (Tenn.2013). We dissented from IN THE COURT OF CRIMINAL following continue the Court’s decision to APPEALS OF TENNESSEE v. Bland State approach it because re proportionality analysis narrows AT JACKSON § quired Ann. 39-13- Tenn.Code April 2013 Session Pruitt, 206(c)(1)(D). State v. 415 S.W.3d (Koch JJ., Lee, at concurring and and STATE OF TENNESSEE State v. Bland dissenting). In place v. JESSIE DOTSON analysis, we determined that the Court Appeal from the Criminal Court pre-Bland should return to its proportion Shelby County for ality analysis “all de that considered first Beasley, No. 0807688 gree murder in which life James imprison cases C. Jr., Judge or a

ment sentence death has been imposed”1 and that focused on whether No. W2011-00815-CCA-R3-DD the case under more closely review resem Glenn, J., Alan E. opinion delivered the impo bled cases have resulted Court, in which John Everett Williams penalty sition the death than those that Bivins, JJ., Jeffrey S. joined. Pruitt, have not. State v. S.W.3d Morris, Nashville, Tennessee, Kathleen (Koch JJ., Lee, concurring 230-31 McAfee, and Marty Memphis, Brett Ten- dissenting). nessee, appellant, for the Jessie Dotson. have analy- We undertaken broader Jr., Cooper, Attorney Robert E. General sis that we deem to be more consistent Zentner, and Reporter; Jeffrey Dean As- 39-13-206(c)(l)(D). § with Tenn.Code Ann. General; Weirich, Attorney Amy sistant P. Based our review of all similar first- General; Attorney District and Damon cases, degree including murder those Griffin, Henderson, Reginald Ray- penalty which the death was not sought, mond Lepone, Attorneys Assistant District we have concluded Mr. per- Dotson’s General, the appellee, State of Tennes- background sonal nature of see. committed capital crimes he closely resem- personal backgrounds ble the the OPINION by persons crimes committed other who [Analysis] have received death sentence. Accord- Sufficiency I. Evidence record, ingly, based on the facts this we concluded, by have as required Tenn.Code The defendant that the evi- contends 39-13-206(e)(l)(D), § Ann. that Mr. Dot- dence is insufficient his support to convic- son’s death sentences are exces- “[neither] tions, saying that it is to insufficient estab- disproportionate penalty sive to the [n]or lish premeditation identity and his as the cases, imposed similar both considering perpetrator physical and that the facts the of nature the crime and the defen- requires rule the of his reversal convic- dant.” tions. Barber, 659, (Tenn. 1988).

1. v. State 753 S.W.2d 666

86 202(a)(1). requires An act intentional jury guilty, finds a defendant

Once a engage the have the desire person of is removed and innocence presumption § Id. or cause the result. 39—11— conduct presumption guilt. with a of replaced 106(a)(18). killing premeditated A is one (Tenn. 185, Evans, 191 v. 838 S.W.2d State the exercise of reflection and “done after 1992). appeal, the convicted defendant On 39-13-202(d). §Id. Premedi- judgment.” this demonstrating to has the burden of tation means support does why the evidence court kill intent to must have been formed the Carruthers, v. 35 jury’s verdict. State the prior necessary act It is not to the itself. 516, (Tenn.2000); v. State S.W.3d 557-58 purpose pre-exist kill in the that the (Tenn.1982). 913, 914 Tuggle, 639 S.W.2d any the for mind of accused definite burden, this the defendant must To meet period of time. The mental state of the fact” “rational trier of establish no alleged- at the the accused accused time of could have found the essential elements kill ly carefully must be con- decided beyond a reasonable doubt. the crime in order to determine whether sidered 307, 319, Virginia, 99 v. 443 U.S. Jackson sufficiently was free from the accused 2781, (1979); 61 560 State v. S.Ct. L.Ed.2d to be passion capable excitement and Evans, (Tenn.2003); 231, 108 236 S.W.3d premeditation. of 13(e). contrast, R.App. In the Tenn. P. Id. by judge verdict the jury’s approved trial premeditation present is a Whether re accredits the State’s witnesses and question may fact for and it jury, be all in favor of State. solves conflicts determined the circumstances sur (Tenn. Harris, 54, v. 839 S.W.2d 75 State Bland, 958 rounding killing. S.W.2d 1992). strong is entitled to State Anderson, 600, 660; at State v. 835 S.W.2d all legitimate est view of the evidence and (Tenn.Crim.App.1992). 605 Circumstances may reasonable inferences which be drawn may premeditation be indicative of Carruthers, from that evidence. 35 kill, intent include declarations of the 558; Tuggle, at 639 at 914. S.W.3d S.W.2d procurement' of a the use weapon, of a concerning the Questions credibility of victim, upon unarmed deadly weapon witnesses, testimony, conflicts in trial killing particularly the fact that evidence, weight given and value to be cruel, wounds, infliction of multiple by and all factual issues raised the evi making preparations killing before the are the trier fact and dence resolved crime, concealing purpose Bland, not this court. S.W.2d State 958 evidence, destruction or secretion of (Tenn.1997). 651, attempt We do not immediately killing. calmness after reweigh reevaluate evidence. Jackson, State v. 173 S.W.3d Reid, (Tenn. State v. 91 S.W.3d (Tenn.2005); Nichols, 24 State v. S.W.3d Bland, 2002); Like 958 S.W.2d 659. (Tenn.2000). A fail defendant’s wise, jury we do not inferences replace ure aid victim can to render to a also drawn from the circumstantial evidence premeditation. indicate the existence of our own inferences. See State (Tenn. Lewis, 96 State v. S.W.3d Elkins, (Tenn.2003); S.W.3d Crim.App.2000).

Reid, 91 S.W.3d 277. In where has cases a defendant been degree

First is murder defined as attempted with the charged commission crime, an- “premeditated killing and intentional a there must be evidence that § Ann. kind of culpabili- other.” 39-13- defendant acted “with the Tenn.Code ty otherwise required position for offense” and police it, which discovered as part staging acted “with of the intent to cause a result that the scene. offense,

an element of the and believes the Moreover, the killings attempted and conduct will cause the result without fur- killings were particularly cruel. Seals was ther the person’s part.” conduct on Tenn. shot in chest, the face and and gun was (a)(2). § Code Ann. 39—12—101 Criminal close enough to Seals’s face that it left attempt also occurs when the defendant stippling on his face when fired. Williams “[ajcts with complete head, intent to a chest, course of was shot in the leg, thigh, and action or cause a result abdomen. that would consti- Roberson was shot in both thighs offense, and the left tute the knee twice. under the circumstances Cecil had wounds, eight gunshot including to surrounding the person conduct as the be- head, neck, chest, thigh, foot, and and be, lieves them to and the conduct consti- there was material on his face consistent a step tutes substantial toward the com- pillow with a having placed been over his mission § of the offense.” Id. 39-12- face and gun fired through the pillow. 101(a)(3).

The children were repeatedly violently and stabbed with knives and beaten with wood- A. Premeditation boards, en and C.D.1. was left the bath- tub with sticking a knife out of his argues defendant that the head. evidence addition, In the defendant talked to some at'trial established that he committed the victims, rejecting their claims that crimes while in a state of excitement and they him loved and continuing with his passion. support, points In to his state- violent attacks. police ment to in which he related how he arguing Cecil were and that Cecil was The defendant altered the scene to make

waving gun appear around when it if the defendant drug murders were or bodies, grabbed gang-related, gun disposed his own moved shooting. and started of or handles, hid kitchen knives and argues there is col- no lected the cartridge casings. escaped He evidence that he “sufficiently was free of bicycle on a girlfriend’s hid it in his that ‘excitement passion’ before the shed. Instead of attempting to render aid assaulted, children were some of them fa- help, summon' he went to a restaurant tally.” respectfully disagree. We night dinner the next reported light Viewed in the most favorable to the Monday attacks, work on the following the State, the evidence established that anyone without telling about the crimes. defendant shot the adult multiple victims He also lied to family about the last times repeatedly and then stabbed and time he had seen Cecil. This evidence was children, beat young moving from more than sufficient to establish the ele- room to room to Although do so. premeditation ment of in the defendant’s police defendant told began that he first convictions for first degree murder and shooting after Cecil reached for a shotgun, attempted degree first murder.

he told his mother that he began shooting Physical B. Facts Rule

after gun Cecil laid down his and that he attacked the children because they had The defendant also contends that seen him. We note that Sergeant Mullins against evidence him largely based on shotgun testified that the appeared to have C.D.l, testimony portions of which placed Cecil, been in the corner near rule,” negated by “physical facts in We, time, matters other such uncertain of his convictions. reversal

requiring Allen, 259 objects.” the movement disagree. respectfully again, omitted). “ (quotations at 680 S.W.3d accepted rule is ‘the facts physical The although asserts testi The defendant in cases where the proposition the defendant that he saw C.D.l testified entirely irreconcilable is mony of a witness speaking to siblings and evidence, testimony attacking his physical ” bathtub, Allen, was in the while C.D.l v. Williams disregarded.’ State can be to see in- (Tenn.2008) impossible been “it would have 671, (quoting State S.W.3d in (Tenn. vantage point his 892, the bedroom from side Hornsby, 858 S.W.2d asserts that The defendant also 1993)). testimony “can the tub.” a witness’s When in stabbed testimony that he was true, inherently unbe C.D.l’s be is possibly bed in his laws, lying on the the neck while lievable, to natural opposed or by the lack contradicted room was testimony incredible sister’s can declare courts blood on that bed. consider of his law and decline to a matter of as omitted). For (quotation it.” Id. not, however, testify that the did C.D.l testimony apply, the facts rule to physical neck, in the but him defendant “stabbed” face, i.e., on its tes unbelievable “must be “cut” his neck. that the defendant instead events that the wit timony to facts or Dr. Muhlbauer confirmed note that We possibly could not have physically ness laceration superficial had a that C.D.1 have that could not observed or events that no evidence was across his neck and of nature.” Id. at the laws occurred under blood, regarding what amount presented testimony that a wit example, For 680. would any, superficial if laceration such could be the sun set the east” ness “saw Regardless, we cannot produced. have disregarded. Id. testimony regarding conclude C.D.l’s rule. rule, however, physical violated the facts is a the attack facts physical The noted, “the previously As this court has sparingly.” be used power “that should and that testi- fact that a witness testifies at 895. When Hornsby, 858 S.W.2d with oth- mony up being inconsistent interpre- ends testimony capable “is of different trial, ... even if testimony [it raised at tations, left for the er the matter should be make it testimony, does not credi- scientific is] as the sole arbiter of jury to decide Brooks v. testimony.” Lemar determination of whether inadmissible bility.” Id. The M2010-02451-CCA-R3-PC, State, No. testimony, there are inconsistencies (Tenn.Crim.App. at *16 testimony, 2012 WL of conflicts reconciliation (Tenn. 2012), perm. app. denied might of how this affect Jan. the determination omitted). 2012) May (quotations credibility, prov- are within the a witness’s “[Tjhe testimony, identified improbability Throughout his C.D.l jury. ince of the Id. perpetrator. justi- the defendant as testimony, the truth of the which rule, any have resolved conflicts jury facts could rejection physical fies under the testimony by attribut- in his any theory involving discrepancies upon cannot rest injury, head youth, them to his comparative ing credibili- consideration of experi- have the extreme trauma must (quota- witnesses.” Id. at 896 ty omitted). by witnessing experiencing rule physical facts enced tions family and his against attacks him may application invoked “where its horrific not be conclude, therefore, calculations members. We depends upon assumptions or distance, is without merit. this issue upon speed, based estimates as to Sergeant

Before Mullins answered the question, the court trial stat- interrupted, Identity C. ing: Lastly, the contends that the defendant record, THE COURT: [F]or evidence is insufficient to establish his Supreme of Court the State of Tennes- identity perpetrator. Specifically, as the see has authorized cameras in the court- argues that his statement was inconsis- room. This Court allows one camera in tent with the evidence and that physical the courtroom all and media outlets feed the forensic evidence excluded him as the off of the one camera. That camera and However, he confessed that perpetrator. the TV station associated with that is a perpetrator, he was the both in state- the lead camera that’s the courtroom. ment to police during his conversation Every media outlet and every channel is addition, In with his mother. two of the off peeling of one camera. That is one child him attack- victims identified as their that has been authorized the Su- By convicting preme er. of the Court to be here. defendant crimes, jury obviously rejected indicted [DEFENSE I under- COUNSEL]: testimony trial in which he defendant’s stand. been hiding claimed to have under the bed THE COURT: This Court not autho- is while the and attempted murders murders rizing a part television show or to be of conclude, perpetrated by others. We a television They following show. are therefore, that the evidence more than is Supreme the rules says. that the Court sufficient to sustain defendant’s convic- So let’s make sure record clear tions. that this is not a TV show and this is not

being produced as a TV show and it’s being as a edited TV show. This is VI. Trial Court’s Treatment a trial. of Defense Counsel I [DEFENSE Can ask COUNSEL]: him who producer running that’s next contends camera works for? trial reprimand court’s defense counsel No, THE sir. COURT: open prejudiced court to a fair right object I’m going [PROSECUTOR]: exchange trial. The about which the de- to relevance. complains fendant occurred after defense THE That COURT: camera is this questioned Sergeant

counsel first Mullins you courtroom and know that camera is presence about the at the scene crime in this courtroom under the during police rules defendant’s interview of ¡from show, Supreme They are camera Court Tennessee. crew the television one of a party of media outlets are Sergeant The First and then asked using that So feed. let’s don’t talk about following question Mullins the about a being part this a TV You want show. recording cameraman who was the trial: questions, ques- to ask let’s ask relevant Q.That E, A guy is from and tions. he, isn’t The First ? We’re still asking I am [DEFENSE COUNSEL]: story, aren’t we? continuing questions about this. know, A. yes, As far as I sir. THE This is not apart [sic] COURT: Q. show; filming We’re rest of television show.... Let’s move

right? something relevant. that’s proceeding there cer- by question- [are] continued adversarial counsel

Defense of decorum that we all must about the of tain rules presence Mullins ing Sergeant under, operate me I’ve worked included. the crew The First and a camera k8 lawyers many years. for with these inter- the defendant was the time during again The trial by police. court my temper viewed I lose and it’s Sometimes informing counsel defense I that. I interrupted, inappropriate. should not do Sergeant pre- Mullins had it believed it in in which I that should not do the manner question. my The State So viously temper. answered that sometimes lose I’ve conference, you. a and the trial them. to requested apologized apologize bench to I not, you cannot, I request: say you, to should denied the will court in proper you any nor it be for to would in- present when that That he was way anybody hold or [the defendant] so into conducted let’s move terview was responsible my being for lack of else of, okay. aware I’ve areas that he’s my I say able to maintain cool. So own long a I go way, to for and allowed this you respect. that to with all I d[ue] going I you’re know where and under- accept my hope you apology. why going He’s al- you’re stand there. present when

ready testified he wasn’t are entitled to the litigants ‘cold “[A]ll He interview was conducted. impartial and have neutrality of an court’ a in doesn’t know who was there. right have their heard fair to cases Pate, impartial judges.” Wright 117 jury-out During subsequent hearing, a 774, (quot- (Tenn.Ct.App.2002) S.W.3d 778 objected co-counsel to the trial court’s Kinard, 220, ing Kinard v. 986 S.W.2d 227 “calling down” defense counsel when 3(A) of (Tenn.Ct.App.1998)).- Cannon a witness. court questioning The trial provides of Code Judicial Conduct a counsel explained that defense had accused trial be judge “patient, dignified, should being part the court of of television litigants, jurors, and courteous to the wit- stated, “And when show. court that’s lawyers” during nesses and the course enough. part I said This is not a TV trial, judge per- instructs the trial This of law.” show. is a court The trial judicial form his or her duties without bias future, agreed court that in the it would or prejudice. Sup.Ct. Tenn. R. 10.1 While not “call in the [defense counsel] down” judge trial is extended broad discretion jury’s presence but would call to the them in controlling the course and conduct of bench The court apol- instead. thereafter trial, judge the trial must refrain from “for ogized losing defense counsel [its] expressing “any thought might lead returned, jury temper.” When infer that jury to is favor judge following apolo- trial court then offered the in a against defendant criminal gy jury: to the Cazes, 253, trial.” State v. 875 S.W.2d first, right. All gentlemen, Ladies and Harris, (Tenn.1994); State v. 839 S.W.2d let me apologize you losing my (Tenn.1992). temper. already apologized I’ve lawyers. You need to understand It apparent that defense counsel’s do, you that —and I know this is an of Sergeant cross-examination Mullins proceeding. adversarial But crew presence within about the the camera revised, sions, 1. The Code of Judicial Conduct was we refer to Code that was effect July effective 2012. Because the trial oc- time of the trial. prior curred revi- effective date of the being the fact that the trial was filmed for the proceedings along “move[d] in an or- possible derly systematical use a future television show manner.” State v. Evans, (Tenn.1992). came 838 S.W.2d across to the trial court as an attack conclude, therefore, We that the integrity formality on the of the trial is not entitled to relief regarding this is- process, which led to the reprimand court’s sue. to counsel. While we can understand and

sympathize with the trial court’s frustra- tion, agree we that the court should have VIII. Admission of Photographs reprimanding avoided defense counsel in The defendant contends that the trial presence jury. court in denying erred his motion pro not, however,

We do believe that hibit the display of photographs of the remarks, trial court’s when victims viewed in the after death. The admissibility of trial, relevant photographs context of the entire of deprived the victims and the crime scene within,the sound defendant of his discretion right constitutional to a court, of the trial and the ruling court’s on fair trial. The remarks constituted a brief admissibility will not be disturbed ap on portion trial; of a multi-week the trial peal absent showing a of an abuse of that apologized court to both defense counsel Carruthers, discretion. State v. 35 S.W.3d remarks; jury and the for the and the trial 516, (Tenn.2000); 576-77 State v. Van appropriately court instructed the jury Tran, 465, (Tenn.1993); 864 S.W.2d 477 that it was not to consider its comments Banks, (Tenn. State 947, 564 S.W.2d 949 We, against therefore, the defendant. con- 1978). supreme As our court stated in that, considering clude the record in its Carruthers, the modern trend is to vest entirety, the beyond error was harmless more in discretion the trial court’s rulings reasonable doubt. See State v. John D. admissibility. 35 S.W.3d at (citing 577 Joslin, 03C01-9510-CR-00299, No. Banks, 949). S.W.2d WL at *42-43 (Tenn.Crim.App. Evidence is relevant if it has “any ten- 22, 1997), (Tenn. Sept. perm. app. denied dency to make the existence of any fact 1998) Nov. (holding that while the trial that is of consequence to the determination court’s remark improper, was the error of the action probable more or proba- less beyond was “harmless a reasonable ble than it would be without the evidence.” doubt”). Tenn. R. Evid. 401. Relevant evidence The defendant also complains that his “may be if probative excluded its value is right ato fair trial was violated the fact substantially outweighed by danger trial court interject continued to prejudice, issues, unfair confusion of the or during defense counsel’s cross-examination misleading jury.” Tenn. R. Evid. 403. Mullins, Sergeant instructing defense The court must determine the relevance of repeat counsel to rephrase questions weigh visual evidence and probative its and refusing to allow defense counsel to against any value prejudice. undue Id. record, ask certain questions. The howev- The prejudice” term “unfair has been de- er, demonstrates that fined as “an tendency the trial court undue suggest mere- basis, decision on an ly improper commonly, asked defense repeat counsel to or re- though necessarily, an emotional one.” phrase questions that were unclear and Banks, 564 S.W.2d at 950-51. refused to allow counsel to repeatedly ask questions. By so, same doing Banks, trial In our supreme court provided- court fulfilling duty its to ensure that trial courts with guidance for determining Cole, State v. 155 S.W.3d photographic generally, admissibility of relevant conclude, (Tenn.2005) (Appendix). We should consider: trial court

evidence. therefore, value of the probative picture and clarity of the accuracy and by their outweighed was not photographs evidence; picture whether the value as its effect, the trial court did prejudicial found; it was body as depicts the admitting them. not abuse its discretion in relat- testimonial evidence adequacy of and the need for jury; to the ing the facts Provide IX. Denial of Motion to facie case prima to establish the evidence Analysis DNA conten- the defendant’s or to rebut guilt next contends that The defendant 'at 951. tions. Id. denying his second trial court erred the trial argues The defendant analysis DNA provide motion to amended admitting photographs erred court in with the who were contact for all those crime scene injuries facial and the victims’ ini- The defendant filed his crime scene. victims. the three child of photographs 13, 2010, stating that May tial motion on note, however, that the defendant We to elimi- purpose request of the the of objections to the admission raised no medical, enforcement, and other nate law pretrial at a at trial and photographs the crime present at the personnel who only photographs to six' hearing objected at the scene physical scene from evidence which injuries, children’s depicted that the the match the defendant or that did not At the conclu- hospital. were taken at coun- During hearing, a defense victims. the trial court ruled hearing, of the sion trial court that the motion sel informed the rele- photographs were that five of the six response report in to a from was filed to the extent and vant and admissible show laboratory FBI crime which stated in order for the injuries of the nature hairs Mongoloid or Asian two Caucasian The court premeditation. prove State to mixed in the blood on that were discovered photograph ruling on the sixth reserved its thigh region of Rober- the buttocks wheth- the State to determine in order for as be- body could not be identified son’s bloody bandage on a vic- depicted er it a or the victims. longing to the defendant head, scalp, of the child’s portion or a tim’s the State to deter- The trial court ordered bandage, a it would stating that if it were Mongo- or Asian mine those of Caucasian has, The defendant photograph. admit the the vic- who had contact with loid descent thus, of this issue. waived review body investigating in the crime scene. tim’s waived, we would conclude Even if not hearing, the State During subsequent admitting not err in that the trial court did that five individu- informed the trial court corpse of a Photographs photographs. with the victim’s had direct contact als prosecutions if are admissible in murder examiner, the medical body: the medical trial, they are relevant to issues assistant, re- emergency examiner’s and horri- notwithstanding gruesome their officer, people and two sponse Banks, 564 S.W.2d at fying character. See removal service private corpse by the admitted photographs 950-51. The transport examiner’s office used to medical supplement trial were relevant to court bodies. The trial court denied the victims’ examiner and the testimony require of the medical those the defendant’s motion regarding samples the victims’ DNA treating physician people provide five hairs, ob- with the unidentified injuries support aggravating comparison See, authori- any it was unaware of serving that alleged by the State. circumstances permit compel private that would it to ty protective prohibiting order disclosure of suspected testing absent who were not of a crime court order. The citizens trial court, however, once provide again to the denied the samples DNA court for re- quest. testing by a criminal defendant. The also if DNA testing

court noted that even acknowledges there is no were to exclude those five individuals as precedent Tennessee for court-ordered contributors, not, such evidence would testing DNA of law enforcement and medi alone, exculpate the defendant. See, personnel. cal e.g., Bartlett v. Ham wi, (Fla.Dist.Ct. 626 So.2d 1042-43 The trial court further noted that App.1993) (upholding the trial court’s deni request defendant could those five al defendant’s motion to obtain a people voluntarily provide a DNA sample sample hair from prosecution witness could, during defense counsel tri- upon based the absence a rule of or statute (1) question experts al: regard- State’s authorizing discovery, such as well as a availability DNA ing testing consideration the witness’s constitution perform their decision not to such tests rights); al State v. McKinney, 273 Neb. investigators order eliminate and medi- (2007) 730 N.W.2d 89-90 (applying personnel hairs; cal as contributors analysis Bartlett upholding the (2) question law enforcement medical denial the defendant’s motion to obtain regarding protocols they witnesses the fol- witnesses). DNA samples from The de in preserving lowed the evidence and however, argues, fendant that such DNA contamination; (3) avoiding scene and ar- testing is similar to law enforcement offi gue possibly belonged that the hairs to an requesting cers “elimination fingerprints” an perpetrator unknown or additional investigating note, when a crime. We perpetrator. The defendant also could however, that v. Dailey, State 273 employ expert his own to review po- and 94, (Tenn.2009), S.W.3d 97 the upon case tentially findings upon refute the State’s a relies, which the defendant the trial court showing particularized of need for funding. not order fingerprinting, did the but indi Finally, the trial court the prohibited State voluntarily viduals instead asked to unfairly benefitting ruling by from its provide fingerprints. elimination Id. claiming inferring either or that the un- Moreover, the withdrawal of blood for conclusively belonged identified hairs to testing “infringes expectation priva of individuals, one of those five or other indi- cy” subject and is to the constraints of the viduals, who the crime had entered scene. Ry. Fourth Amendment. Skinner v. La only inference the trial that court Ass’n, 602, 616, bor Executives’ 489 U.S. the allowed State to draw was that the 1402, (1989); 109 S.Ct. 103 L.Ed.2d 639 hairs remained unidentified and could have 607, v. Scarborough, State 201 S.W.3d 616 by left been someone other than an un- (Tenn.2006). recognize we Although known perpetrator. possible by it to “extract DNA applying thereafter, Shortly the defendant filed sticky patch a to on an the skin individual’s amended argued motions in which he acquire forearm for a epider moment to testing the in order necessary pro- was to puncturing mal cells without the skin sur witnesses, rights his tect to confront com- face,” Scarborough, 201 S.W.3d at 619 law, pulsory process present and the omitted), (quotations analysis per DNA party third defense. The defendant as- after of a biological formed the collection serted that the separate trial court could enter a “is a distinct specimen search

94 of statements of those not greater production a far intrusion potentially which ‘is by DNA, as witnesses the State called since initial extraction than the required was to disclose those State DNA for information analyzes the state ” pursuant Brady Mary to v. statements indefinitely.’ DNA records maintains 83, 1194, land, 83 S.Ct. 10 373 U.S. Goord, v. 430 F.3d (quoting Nicholas Id. (1963). 215 L.Ed.2d (2d Cir.2005)). 652, 670 prosecution of suppression by the “[T]he witness, suspect, is not a de- who “[A] upon re evidence favorable an accused victim, have pro- should no less or fendant process due where evi quest violates bodily intrusion than defen- against tection or guilt material either to dence is in criminal cases.” suspects dants punishment, irrespective good faith (footnote Bartlett, at 1042 omit- 626 So.2d 87, prosecution.” Id. at or bad faith of ted). present case involves the While the In establish 83 1194. order to S.Ct. evidence, request for a witness defendant’s violation, a must Brady defendant show protected be under continues information, requested he or she constitutional Fourth Amendment information, suppressed State guaranteed the United rights privacy his or information was favorable to her See id. 1042-43. States Constitution. defense, information material. Thus, we must balance constitutional (Tenn. 387, Edgin, 902 State v. S.W.2d parties third from whom rights those 1995). only if Evidence is “material” there compel sought to DNA sam- the defendant probability is a that the result reasonable against any rights that the ples have been proceeding would differ have defense. See might presenting ent evidence had the been disclosed McKinney, at 90. In so do- 730 N.W.2d Bagley, defense. United States agree we with the trial ing, court’s obser- U.S. 87 L.Ed.2d S.Ct. personnel vation that exclusion of the (1985). “Materiality” has been further with came into contact Roberson’s who explained as follows: body of the hairs would as contributors not question The is whether defen- defendant, espe- have exculpated likely dant would more than not have testimony at cially given the trial about the a different with the received verdict evi- during amount of at the home traffic dence, whether in absence but its months five in which Cecil lived there. trial, as received a fair understood a After these we balancing competing rights, in a resulting trial verdict worth confi- pre- conclude that circumstances “[t]he dence. A of a probability” “reasonable here constitute in- sented do not a ‘rare accordingly different result shown justice may require where an inva- stance’ evidentiary government’s sup- when the privacy sion of a or an rights witness’ pression confidence “undermines party’s] invasion of third Fourth [a outcome of the trial.” Bartlett, rights.” Amendment 626 So.2d 434, 419, Kyles Whitley, 514 v. U.S. 115 at 1043. (1995) 1555, (quot- 131 L.Ed.2d 490 S.Ct. ing Bagley, 473 U.S. at 105 S.Ct. Denial for X. of Motion Production 3375). The burden a proving Brady Those of Statements of Not defendant, and violation rests with the Called Witnesses proven by preponder- must be a violation The next that Edgin, contends ance of the evidence. 902 S.W.2d denying trial court for erred motion 389.

First, the defendant has failed to estab- en during guilt phase of his trial. Be- suppressed lish the State the informa- cause the defendant did not object to the tion or that instructions at trial the information was favorable or raise the issues in trial, his motion for new During pretrial to the defense. hear- the issues are waived, motion, and our ing on the review is plain defense counsel ac- limited to Faulkner, error. 58; 154 S.W.3d at knowledged that the see provided open- State 3(e); also R.App. Tenn. P. Tenn. R.App. file P. discovery. prosecutor also com- 36(a); 52(b). Tenn. R.Crim. P. that “anything posses- mented that’s in the Memphis sion of the Police Department We must review jury instructions in has be turned over to the Defense.” entirety, their and we may not examine The defendant identifies testimony from phrases in Rimmer, isolation. State v. various at trial they officers received (Tenn.2008). S.W.3d In determin- tips numerous regarding problems that ing whether a defendant is harmed having Cecil was gang money ambiguous, instruction, erroneous we must “ defendant, allegedly that he took. The consider ‘whether ailing instruction however, present was able to evidence by itself so infected the entire trial that through cross-examination of the State’s the resulting conviction pro- violates due ” witnesses, through as well as witnesses cess.’ Id. (quoting Cupp Naughten, testify, that he called to that Cecil was in 141, 147, U.S. 94 S.Ct. 38 L.Ed.2d 368 trouble Gangster Disciples with the (1973)). significant question is committing a gang violation and that Cecil “whether there ais reasonable likelihood $300,000 owed to “the mob.” The defen- that the jury has applied the challenged dant does not state what additional infor- instruction in way that violates the Con- alleges mation he that the State failed to omitted). (quotations stitution.” Id. An disclose. ambiguous term does not necessarily con- stitute error. Id.

Moreover, the defendant has failed to [Jjurors do not sit in solitary isolation show that the information was material. booths parsing instructions for subtle Evidence of the guilt defendant’s was over- meaning shades of way the same whelming. The jury rejected heard and lawyers might. among Differences suggesting evidence might Cecil have them in interpretation of instructions mob,” been killed due to his debt with “the may be thrashed out in the deliberative in retaliation for the shooting death of a process, with commonsense understand- member of a gang, rival or as the result of ing of the instructions in the light of all committing a against violation one of his that place has taken at the trial likely to fellow gang members. The defendant fails prevail over technical hairsplitting. to establish a probability reasonable that omitted). Id. (quotations the result of the proceedings' would have been different had such additional evi- The defendant first asserts that the trial dence been disclosed to the defense. We court’s instruction defining “reasonable conclude, therefore, that the defendant is doubt” at proof the close of in the guilt not entitled to relief on the basis of this phase improperly reduced the State’s bur- issue. proof. den of The trial court instructed jury the as follows: Jury Improper

XI. Instructions presumes The law that the defendant challenges The defendant prejudicial- as him, is charges against innocent of the ly improper multiple jury therefore, giv- you instructions jury, as the must enter Rimmer, 250 pre- Supreme with the Tennessee investigation Court

upon this The court stated that a S.W.3d 30-31. guilty the defendant is not that sumption the is that interpretation phrase fair of presumption and this any crime of mean a doubt “reasonable doubt does not him unless it is as a witness for stands mere no may possibility that arise from by competent rebutted and overturned improbable.” Id. at 31. The matter how therefore, is, It in- proof. and credible jury court concluded that instruction State, you can upon cumbent before process not result in the denial of due did defendant, to to establish convict and that there was not a reasonable likeli- satisfaction, beyond a reasonable your jury applied that the the burden of hood doubt, charged crime in the that way. Id. proof an unconstitutional committed; that has been indictment attempts distinguish The defendant to Shelby the same was committed in present Rimmer from the case because Tennessee, the indict- County, before given the instruction in Rimmer was that the defen- ment was returned and than penalty phase, guilt phase rather the crime in dant on trial committed present as in the case. The defendant make him such a manner that would any authority holding does cite it been guilty under the law as has meaning of “reasonable doubt” differs explained you. defined guilt penalty phases. between the proving The State has the burden of case, the circumstances of this we Under guilt beyond of the defendant a rea- jury cannot conclude that the was reason- doubt, sonable and this burden never ably likely applied to have the burden of shifts but it remains on the State proof way. in an unconstitutional While the trial throughout case. further use of this instruction is discour- required prove is not id., aged, see the instruction is not uncon- proven have innocence. State must stitutional. beyond a reasonable doubt all of The defendant also takes issue with the charged of the crime and that elements during guilt trial court’s instruction finding before the it was committed “[tjhere are nine counts in this phase returning of the in this case. indictment packet indictment. You will have a A reasonable doubt is that doubt cre- sentencing forms for each count as each investigation proof of all the by ated added). (emphasis According victim.” inability, in the case and an after such defendant, the instruction indicated investigation, easily to let the mind rest “guilt foregone was a conclusion and certainty guilt. Reasonable jury charged sentencing.” may doubt does not mean a doubt in- repeatedly Given that the trial court arise from certain- possibility. Absolute jury structed the that the defendant was ty is the law to guilt not demanded proven guilty, innocent until we cannot any charge, convict of criminal but moral conclude that the instruction affected a certainty certainty required and this right substantial as to rise to the level of required every proof is as to element of error. plain requisite to constitute the offense. argues The defendant next that the trial The defendant takes issue with the improperly court combined each of the six statement, not “Reasonable doubt does degree counts of first murder and each of may possibil- mean a doubt that arise from attempted degree the three of first counts According to ity.” by This issue was addressed the murder into one instruction.

97 defendant, suggested instruction the the sider all of the facts and circumstances fairly and impartially all of the murder counts should have and return to that the attempted of mur- one verdict and all the court the verdict that TRUTH dic- counts have one verdict. The tates and JUSTICE der should demands” informed jury the that if jury court the that it was it believed that the defen- trial instructed alleged, dant committed the offenses return a verdict on each of the nine it counts, regardless could render a verdict of jury guilt and did as instructed. the whether proved allegations of the State its relief The defendant is entitled to on beyond a reasonable The doubt. trial this issue. court, however, repeatedly instructed the complains The also about the defendant jury that the defendant was innocent until following statement the trial court made Thus, proven guilty. we cannot conclude jury the instructing regarding after the instruction affected a substantial “intentionally,” “knowingly,” definitions of right of the defendant such as to rise to “recklessly,” “criminal negligence”: and plain the level of error. apply These definitions to the offenses of Degree, Murder in the First Murder XII. Failure to Instruct Facilitation Degree, Voluntary in the Man- Second as a Lesser-included Offense slaughter, Reckless Homicide and Crim- next defendant contends that inally They Negligent Homicide. also in failing trial court erred to instruct the Attempted apply to the offenses of Mur- jury facilitation as a lesser-included of Degree, Attempted der in the First premeditated fense first murder degree Murder in Degree the Second and At- attempted degree first murder. tempted Voluntary Manslaughter. particular Whether a regarding instruction argues through The defendant this offense lesser-included should have been instruction, jury apply was told to given question is a mixed of law and fact. “recklessly” “negli- mental states of (Tenn. 40, Hatfield, State v. 41 S.W.3d gently” degree charge. to the first murder 2004). questions We review mixed of law court, however, trial then defined each fact presumption de novo with no offenses, which included the mental State, Carpenter correctness. v. applicable state for each offense. The trial (Tenn.2004). S.W.3d specifically jury court instructed the charged Facilitation of offense is a pre- in order to convict the lesser-included offense under the test es murder, degree it meditated first must Burns, tablished State 6 S.W.3d find that the defendant acted “intentional- (Tenn.1999). 466-67 The issue is whether ly.” Because trial court’s instruction presented the evidence at trial was suffi first degree attempted degree first cient to for facili support instruction specifically applica- murder limited their analysis A two-step necessary tation. is state, tions to an intentional mental we determine if an instruction on a lesser- jury cannot that the told conclude supported included offense evi apply jury apply and that did First, if any dence. we must determine “recklessly” “negligent- mental states of evidence exists “reasonable minds ly” degree attempted to the first first accept could of as to lesser-included degree charges. murder Richmond, fense.” State v. 90 S.W.3d (Tenn.2002). Second, The defendant next asserts that trial we must deter case, evidence, court’s con- “if “[t]ake instruction mine when viewed liberal upon different relies vating to the exis circumstances most favorable light inly rendering a defen- offense, policy justifications legally is of a lesser-included tence State penalty. for the death eligible dant for the a conviction support sufficient (Tenn.2010). Jordan, 1, 74 325 S.W.3d Id. offense.” lesser-included the fact that recognized that The court by the State theory presented The may satisfy certain ele- conduct “the same acted alone the defendant trial was that aggravating circum- ments of different stabbing and beat- shooting the adults jury’s not contaminate stances does by theory presented children. The ing the weigh- or invalidate its sentencing process, else at- was that someone the defense court, thus, declined Id. The ing process.” hid victims while the defendant tacked the the use to hold as unconstitutional the bed. Neither under in a bedroom of differ- satisfy elements same evidence in- a facilitation support these theories circumstances. aggravating valid ent but conclude, therefore, struction. We defendant, therefore, enti- is not Id. The declined to instruct properly the trial court to relief on this tled issue. a facilitation as lesser-included jury degree mur- premeditated first offense of Motion for Probable Denial of XIV. degree murder. attempted first der and Finding Aggravating Cause Existed Circumstances of Motion to Strike XIII.Denial The next contends defendant Aggravating Circumstances charge capital a offense must decision to contends that next The defendant jury and not the by grand be made motion to denying erred in trial court argues further that .the He prosecutor. (i)(12) (i)(3) cir- aggravating strike the circum- any aggravating to allege failure (i)(3) ag- duplicitous. cumstances Fifth in the indictment violated his stances that the provides circumstance gravating right Amendment to an indictment great risk “knowingly created Supreme The Tennessee grand jury. (2) persons, or more other of death to two has, however, argu- rejected this Court murdered, the act during the victim than Thomas, 158 S.W.3d ment. See State v. § Ann. 39-13- of murder.” Tenn.Code (Tenn.2005). The defendant 204(i)(3). (i)(12) aggravating circum- therefore, not, to relief on the entitled “com- provides stance that the defendant basis of this issue. murder,’ defined as mitted ‘mass which is (3) persons, more of three murder Motion for Disclosure Denial of XV. during single committed crimi- whether Regarding Information times within a episode nal or at different Proportionality Review (i)(12). Id. at forty-eight-month period.” next contends that The defendant argues aggrava- that these The defendant denying his motion for trial court erred ting duplicitous “[i]nas- circumstances are regarding pro- information disclosure of in this much as the risk of death factor may chal- review so that he portionality in the mass murder fac- case is inclusive constitutionality comparative lenge the tor.” supreme review. Our proportionality however, has, has, however, al- supreme rejected Our court other similar court (i)(3) ready rejected meaningfulness that the of com- challenges the claim to the See, (i)(12) e.g., are du- review. aggravating parative proportionality circumstances (Tenn. Bland, 651, 663 958 S.W.2d aggra- each of these State v. plicitous, finding that 99 Brimmer, 75, 1997); State v. 876 S.W.2d XVIII. Prosecutorial Misconduct (Tenn.1994). Moreover, fully dis- 87 The defendant contends that the State below, that the defen- we conclude cussed prosecutorial committed misconduct dur- proportionate death sentences are dant’s ing closing the rebuttal arguments in both penalty imposed in similar cases. to the guilt phases penalty of the trial. is, therefore, without merit. object This issue The defendant did not to all the

portions argument the State’s at trial XVI. Admission of Victim improper claims are or raise the

Impact Evidence of prosecutorial issue misconduct in his Therefore, motion for new trial. the issue defendant next contends that waived, and our review is limited to admitting victim impact trial court erred in Faulkner, plain 58; error. 154 S.W.3d at in the of the trial. penalty phase evidence 3(e); see also R.App. Tenn. P. Tenn. identify specific The defendant does not 36(a); 52(b). R.App. P. Tenn. R.Crim. P. testimony erroneously that he claims was Closing arguments are a privi “valuable admitted, urges but instead this court to lege” and unduly should not be restricted. Payne Stevens’ v. adopt Justice dissent State, (Tenn. Terry 147, 46 S.W.3d 156 Tennessee, 859-60, 808, 501 111 U.S. S.Ct. 2001). “Consequently, attorneys are given 2597, (1991), L.Ed.2d 115 720 which he greater leeway in their arguing positions impact that victim evidence is im- opines jury, before the the trial court has any Our proper capital supreme case. significant in controlling discretion these has, however, recognized court admis- arguments, to be only upon reversed sibility impact during of victim evidence showing of an abuse that discretion.” penalty phase capital of a case even We explained Id. have that “arguments after in Payne. Justice Stevens’ dissent be temperate, upon based must the evi Nesbit, See State v. 899-90 S.W.2d trial, dence introduced at relevant to the (Tenn.1998) (finding no or federal state tried, being issues and not otherwise im impact constitutional barriers to victim evi- proper under the or facts law.” State v. is, capital dence This sentencing). issue Goltz, S.W.3d (Tenn.Crim.App. therefore, without merit. 2003). The generally recognized areas of prose- Argue Denial XVII. of Motion Last closing arguments cutorial misconduct in The defendant next contends that when prosecutor intentionally occur in denying trial court erred his motion to misstates the or evidence misleads the argue phase. during penalty last Ten- jury may on the it inferences draw from Code nessee Annotated section 39-13- evidence; expresses his or her person- 204(d) provides during the penalty opinion al on the evidence of the defen- phase, “the state shall be allowed make guilt; dant’s uses arguments calculated to closing argument to the jury; and then passions prejudices inflame the or of the attorney for the defendant shall also jury; jury duty diverts the from its argument, be allowed such the state by inject- decide the case on the evidence having right closing.” practice ing guilt issues broader than the or inno- allowing argue State to last at sen- cence of the accused under the controlling has been tencing held to be constitutional. byor making predictions law the conse- Melson, verdict; See State v. 638 S.W.2d 368 quences jury’s and inten- (Tenn.1982). tionally argues This issue is without merit. refers to facts outside their own record, jurors that are mat- suade the to focus on than those

the other credibility views of the of these witnesses knowledge. Id. at public of common ters evidence. and the 6. complains The defendant also of the fol- that the argues first The defendant by the lowing prosecutor: statement by referring denigrated the defense

State tape this you And want to talk about mir- theories as “smoke and to alternate The and the five hours? Sure. defense “ridiculous,” rors,” by “insane” and golden nugget has a because The First “tricky to defense counsel as referring they editing when their televi- U8 of the record reveals A review lawyer.” only played parts sion show certain on phrase prosecutor used they destroyed the raw TV and the rest mirrors” to refer to the de- “smoke footage. Memphis That wasn’t attempts to divert attention fense’s Department’s control. Remem- Police suggestion and not as the issues they’re please getting ber that because was fabricated the defense. evidence blamed for it. phrase used the “ridicu- prosecutor The say can what- defendant] So now [the argument to rebut the defense’s lous” Oh, ever he wants. that five hours that by gang committed the murders were see, you get don’t to this is what I was the crime who then remained at members doing. scene, rearrange the and to rebut scene to prosecutor’s At the conclusion of the argument that the defen- defense counsel’s argument, objected, defense counsel as- following the murders dant’s behavior serting presented that evidence was never explained. prosecutor not be could n employees from The First de- attempts counsel’s described defense stroyed tape recording officers’ believed to use evidence that State be interrogation of the defendant. The de- argue reasonable doubt as irrelevant fendant, however, make argu- does not this “ridiculous” and “insane.” When viewed Rather, appeal. ment on the defendant context, in their we cannot conclude that argues prosecutor interjected that the his comments violated a clear prosecutor’s opinion by arguing own that the defendant Moreover, argu- of law. even if the rule “say upon can whatever he wants.” Based improper, ments were the error was harm- record, our review of the we conclude that strong evidence light guilt. less in prosecutor interjecting was not Thus, also has failed to es- the defendant opinion attacking own but was the credibil- that the issue involves a substantial tablish ity testimony of the defendant’s based right. Accordingly, the issue does not rise upon presented the evidence at trial and plain to the level of error. the inferences drawn from the evidence. complains The defendant also about the pros- argues defendant also that the prosecutor’s argument guilt rebuttal in the ecutor testified when stated the follow- jury phase of the trial that the should not ing: testimony discredit the of two of sur- Prosecution witnesses are coached. tricky children “because of some viving thing they’re going another That’s lawyer expert.” When viewed its you. proof they out at throw What do context, pros- we cannot conclude that the they put have? Did me on the stand? ecutor’s comment was an attack on defense they hey, you me him Did ask did coach Rather, credibility. counsel’s the comment I night? given last Because would have you an attempt by prosecutor per- was an answer. These children wanted you hap- tell true, to come here and what cumstances. While prosecutor later corrected they to them the himself and stated pened ap- best could. propriate burden of proof. The trial court agree prosecutor’s We that the comment also jury instructed the correct that defense counsel could have suggesting proof. is, therefore, burden of This issue him testify and should have called without merit. improper. prosecutor’s argu- While the Finally, the complains defendant of the that who ment the children testified were prosecutor’s comment that the defendant artfully made, not coached was not we “stamped they them out like were insects the prosecutor’s cannot conclude that period,” in a two-hour as well as the fol- that children to statement wanted “[t]hese lowing argument: in you come here tell want happened going What’s to stop him? You. You. they to them the best could” constituted (cid:127) you And how are going to do it? With testimony prosecutor. from the After law, the with the law. not asking We’re statement, making the the prosecutor dis- you anything but follow to the law. the cussed trauma that the children suf- law give your And the does you verdict fered and the difficulties that the children case, shall this be death. Thus, experienced details. the recalling argues by The defendant such lan- statement was consistent with the evidence guage, prosecutor urged jurors the the to presented prosecutor’s argu- The trial. personal exact their retribution. When ment does not the plain rise to level of viewed in the context prosecutor’s error. argument, these were comments not an The defendant also contends that the urge jurors effort to the to exact their own prosecutor injected opinion during his personal retribution but were attempt closing arguments the guilt phase by the persuade jury punish- the impose telling jury the that the defendant’s testi- ment prosecutor afforded law. The mony was “not believable” and that did not a clear violate rule law in mak- “lying.” prosecutor defendant was The Thus, ing argument. such an the issue Rather, did not offer ar- opinion. his error, plain does not rise to the level evidence, gued based on the the de- and the defendant is not entitled to relief. testimony fendant’s was not believable Allowing XIX. Death that he was This lying. argument was Verdicts to Stand proper. challenges defendant next the con- defendant, According prosecu to the stitutionality of Tennessee’s murder and encouraged jury experience tor statutes, death penalty arguing that fear during argument

victims’ rebuttal penalty death statute is unconstitutional penalty phase. prosecutor’s refer jury’s because it limits the discretion to ences the fear that must victims mercy by jury requiring exercise felt have related to “nature cir if impose a sentence of death aggravating and, therefore, cumstances” of the offenses outweigh factors mitigating factors. The Odom, proper. 336 See State also defendant asserts that the statute (Tenn.2011). S.W.3d require jury does not to make the The defendant prose- contends appropri- ultimate determination that the misrepresented death, cutor the weighing proce- punishment ate in violations of Fifth, Sixth, for dure cir- aggravating mitigating Eighth, and Fourteenth regard- entitled to relief is not to the States Consti Amendments United ing this issue. Supreme The Tennessee Court tution. however, has, argument. this See rejected contends that Ten- The defendant next (Tenn. Smith, 857 S.W.2d

State v. statute is unconsti- penalty nessee’s death 1993); 797 S.W.2d Boyd, State v. permitted because it tutional evidence (Tenn.1990). degree second mur- prior conviction for Annotated section der. Tennessee Code that Tennes- argues next The defendant 39-13-204, the admission of permits which penalty statutes murder and death see’s the facts and circum- the conviction and clauses of the equal protection violate the conviction, has underlying stances constitutions because state and federal Reid, upheld as constitutional. See been uniform standards they provide do not 91 S.W.3d at 312. capital jurors for service qualifying The defendant contends Tennes- however, was re- challenge, This cases. penalty death statute violates state see’s Reid, 247, 313 jected in State v. 91 S.W.3d and federal constitutions because it does (Tenn.2002). discretion not give jury unlimited argu- This impose penalty. the death argues also that the stat- The defendant argument ment is similar to the they because in- utes are unconstitutional and has been re- defendant made above with unlimited discretion prosecutors vest Smith, 22; 857 jected. See S.W.2d penalty. argument the death This to seek 797 at 596. The defendant Boyd, S.W.2d rejected. been See State v. has also penalty also contends that the death is (Tenn.1995). Hines, S.W.2d arbitrarily imposed. This capriciously and “hei- argues The defendant next that the rejected. likewise has been See argument nous, atrocious, aggravating, or cruel” fac- Reid, 91 S.W.3d at 312-13. vague argu- tor is and overbroad. This rejected. ment likewise has been See Sentencing XXI. for Non- Middlebrooks,

State v. 995 S.W.2d Capital Offenses (Tenn.1999). 556-57 challenges The defendant trial defendant, According to the the lan- imposing forty-year court’s order consecu- guage aggravating the “mass murder” of the three at- tive sentences for each of terror- circumstance too reminiscent murder convictions tempted degree first any ism. The defendant does not cite to challenges and also the reasonableness authority support sentencing hearing. of his claim. “Mass murder” is defined as “the murder of three sentence, determining appropriate In (3) persons, or more whether committed following a trial court must consider during single episode criminal or at dif- (1) evidence, any, factors: if received forty-eight-month pe- ferent times within a (2) sentencing hearing; at the trial and the 13—204(i)(12). §Ann. riod.” Tenn.Code (3) 39— presentence report; principles plain language conclude that We sentencing arguments as to sen- does not terrorism. imply (4) this statute alternatives; tencing the nature and Moreover, Supreme the Tennessee Court in- characteristics of the criminal conduct (5) upheld application aggrava- volved; has of this and information of- evidence mitigating ting capital by parties circumstance other cases. fered (6) See, Jordan, factors; any at 70. The enhancement statistical e.g., 325 S.W.3d provided by information the administrative Bise, reasonableness. State v. 380 S.W.3d (Tenn.2012). office of the courts as to sentencing prac- If a trial court mis (7) Tennessee; tices for similar offenses in applies an enhancing factor, or mitigating any statement the defendant makes on the error will not remove the presumption (8) own sentencing; behalf as to reasonableness from sentencing its de potential for rehabilitation. termination. Id. Tenn.Code at 709. This court will 40-35-103(5), -113, -210(b). -114, uphold §§ Ann. the trial court’s sentencing decision long “so “The as it is within imposed sentence should be the the appropriate least range and the record necessary severe measure to achieve the demonstrates that the sentence is purposes for which the otherwise in compliance sentence is im- with the 40-35-103(4). purposes and posed.” principles § Tenn.Code Ann. listed Moreover, statute.” Id. at 709-10. under amendments, Pursuant to the 2005 circumstances, such may we not disturb Sentencing Act abandoned the statutory the sentence even if preferred we had minimum sentence and rendered enhance- Carter, different result. See 254 S.W.3d at ment advisory only. factors See Tenn. 346. party challenging the sentence 40-35-114, 40-35-210(c). §§ Code Ann. imposed by the trial court has the burden The 2005 amendments set forth certain of establishing that the sentence is errone “advisory sentencing guidelines” that are ous. 40-35-401, § Tenn.Code Ann. Sen court; however, not binding on the trial Cmts.; tencing Comm’n State Ashby, the trial court must consider them. Tenn. 166, 169 (Tenn.1991). 823 S.W.2d 40-35-210(c). § Code Ann. Although the defendant, In sentencing the the trial application of the advisory, factors is court purposes considered the of sentenc- court shall consider and infor- “[e]vidence ing set forth in Tennessee Code Annotated mation offered the parties on the miti- sections 40-35-102 and The 40-35-103. gating and §§ enhancement factors in 40- court found that upon based the defen- 35-113 and 40-35-114.” Tenn.Code Ann. dant’s prior conviction for 40-35-210(b)(5). second degree § The trial court also murder, II, Range was a multiple of- place must on the record “what enhance- fender. ment or mitigating factors were consid-

ered, if any, as well as the reasons for the The trial applied court seven enhance- sentence, in order to ensure fair and con- ment factors to each of the three convic- sentencing.” sistent Tenn.Code Ann. tions for attempted degree first murder. 40-35-210(e). § weighing The of mitigat- The court following found the enhance- ing enhancing factors is left ment applied: factors sound discretion of the trial court. State (1) The previous defendant has a history Carter, (Tenn.2008). 254 S.W.3d of criminal convictions or criminal be-

The trial weighing court’s of the various havior in addition to those necessary to mitigating enhancement and factors is not appropriate range; establish the grounds for reversal under the revised (2) A victim particu- of the offense was (citations omitted). Sentencing Act. Id. larly vulnerable because of age physi- or cal or mental challenges disability; When a defendant length sentence, and manner of service (3) of a this The defendant treated or allowed a court reviews the trial sentencing court’s victim to be treated with exceptional determination under an abuse of discretion cruelty during the commission of the accompanied by offense; standard a presumption of degree murder consecu-

attempted first sen- each other and to his death tively to (4) injuries upon, inflicted personal tences. damage property, the amount or from the victim by or taken sustained Sentencing Reasonableness of A. great; particularly Hearing (5) or em- possessed The defendant challenges the reason- The defendant device, firearm, explosive or ployed hearing and sentencing of the ableness during the commis- deadly weapon other not allow that the trial court did argues offense; sion the State’s respond counsel to defense (6) in death or seri- felony resulted imposing the sentences. argument before threat or involved the bodily injury ous court asked defense counsel The trial injury to an- bodily of serious of death they present any evi- whether wished pre- the defendant has person and other wished dence and whether defendant felony that of a viously been convicted Defense counsel to make a statement. bodily inju- in death or serious resulted Defense counsel did declined both offers. ry; and they be allowed object request (7) felony, the commission of During This argument. to the State’s respond intentionally inflicted seri- the defendant issue is without merit. person, bodily injury upon another ous the defendant resulted or the actions of B. Reasonableness Sentences bodily injury of or serious in the death forty- contends that the The defendant person other than the to a victim or year were unreasonable. The sentences victim. intended challenge does not the trial (4), (5), 40-35-114(1), § Ann. Tenn.Code enhance- application court’s seven (12). (9), (11), (6), placed The trial court Rather, factors. the defendant con- ment history criminal weight prior on the little the trial court erred in not tends that weight and no on the enhancement factor considering non-statutory evidence of miti- bodily injury during the commis- serious presented during penal- factors gating felony a enhancement factor. See sion of ty phase. (12). (1), to the defendant’s regard With id. II, Range multiple a offender con attempted degree first As conviction for C.D.l, felony, a A the defendant placed of the trial court victed of Class murder subject twenty-five to a sentence of particularly vulnerable was weight little on the 39-11-117, (4). §§ forty years. See Ann. factor. See id. TenmCode victim enhancement 5-112(b)(1). mitigating The trial court court found that no The trial 40-3 maximum sentence within the imposed The court sentenced the applied. factors range. Upon challenge convic- a to the sentence forty years for each defendant to degree imposed, duty murder. it is the of this court to attempted tion first of analyze the issues under “an abuse of dis also found that the defendant The court review, pre a granting whose behavior cretion standard of dangerous was- a offender of reasonableness to within- regard sumption or no for human life indicated little a committing range sentencing decisions that reflect and no hesitation about purposes of the and proper application risk to human life was crime in which the Bise, Sentencing Act.” principles § Ann. 40-35- of our high. See Tenn.Code 114(b)(5). applica Because the 380 S.W.3d at 707. The court ordered defen- factors mitigating for tion of enhancement and dant to serve his three convictions adjust advisory fully was rendered supports sentence record findings. these amendments, by conclude, therefore, the trial court We that the trial court may sentence anywhere set a within properly imposed consecutive sentences applicable range long so as the sentence is based on its classification of the defendant the principles purposes consistent with dangerous as a offender. Act, regardless

of the presence mitigating absence of and enhancement XXII. Cumulative Error factors. The trial court in thor this ease The defendant asserts that the cumula- oughly princi the purposes considered tive effect of the errors at trial rendered ples Sentencing rendering Act in its both guilt, penalty, sentencing decision. The trial court its did not abuse phases of trial fundamentally his unfair. imposing sen discretion the' maximum above, explained any errors, As con- when applicable tence within the range. sidered both individually cumulatively, prejudice. did not result The defendant Consecutive C. Sentences not, therefore, entitled to relief on the The defendant asserts trial basis of this issue. in ordering court erred his he serve attempted mur degree sentences first CONCLUSION consecutively der to each other and After review of the appli- record and the In ordering death sentences. consecutive law, cable we affirm the con- defendant’s sentences, the trial court found that victions and sentences. a “dangerous defendant is whose offender behavior indicates little or no regard

human life and no hesitation com about

mitting a crime which the human risk to high.” §

life is 40-35- Tenn.Code Ann.

115(b)(4). a trial “[W]hen court uses the factor, ‘dangerous offender’ it must also Mary Lisa Gaston LUPLOW (1) decide consecutive whether sentences relate reasonably severity to the (2) committed; protect offenses serve to Duane Martin LUPLOW. the public from further criminal conduct offender; (3) congruent are Tennessee, Appeals Court of general principles sentencing.” at Nashville. (Tenn. Alder, State v. 71 S.W.3d March 2014 Session. Crim.App.2001). June 2014.

The trial court found that the circum- stances of the offenses were “aggravated,”

stating, “I don’t know of that I anything

can think is more aggravated than this.” further court found that consecutive reasonably

sentences were related

severity offenses and were neces-

sary protect public defen- from the activity.”

dant and his “reserve to criminal

Case Details

Case Name: State of Tennessee v. Jessie Dotson

Court Name: Tennessee Supreme Court

Date Published: Sep 30, 2014

Citation: 450 S.W.3d 1

Docket Number: W2011-00815-SC-DDT-DD

Court Abbreviation: Tenn.