State v. Robinson

of Tennessee STATE

Gregory ROBINSON.

No. Tennessee, Supreme Court of at Jackson. Heard Nashville June 2004 Session. Sept. 2004. Summers, and Attorney General

Paul G. Moore, Reporter; E. Solicitor Michael General; Whalen, F. Associate So- Joseph Gibbons, General; L. Dis- William licitor General; R. Patience Attorney and trict Wulff, Dis- Branham and Paula Assistant General, Attorneys appel- trict lant/appellee, State of Tennessee. G. Joseph Ozment and Steffen S. (at trial); Schreiner, Memphis, Tennessee Jr., Nashville, Carey, Ten- and L. Edmund Brooks, nessee, Memphis, and Robert C. (on appellee/ap- appeal), for the Tennessee pellant, Robinson. Gregory

OPINION DROWOTA, III, C.J.,

FRANK F. court, in opinion of the which delivered the ANDERSON, JANICE M. E. RILEY BARKER, HOLDER, M. and WILLIAM JJ., joined. granted application

We the State’s Memphis argument for North led to an be- permission to appeal to determine whether children, tween the mothers of these which Appeals Court Criminal erred fight, including escalated gunfire, into reversing defendant’s conviction for boyfriends, between the women’s members premeditated first degree murder and his of rival Memphis gangs Gangster —the review, Upon sentence death. we hold Disciples and the Vice As a Lords.1 result that the Court of Appeals Criminal erred fight, this the Hurt Village Gangster in reversing the defendant’s conviction and Disciples called an “aid and assist” meet- In particular, sentence. we conclude that ing, Memphis-area and Gangster Disciples failing the trial court did err by congregated apartment at an in the Hurt instruct the on facilitation solici- Village complex meeting. Al- tation permitting exam- medical though the gang victim was not a member display iner to the victim’s cleaned and and had not been involved in the earlier reconstructed skull aas demonstrative aid fight, apartment he was seen near the during testimony; prosecution meeting where aid assist was be- did not present inconsistent theories and held. ing gang When member accused separate evidence trials of the de- acting Green of as a lookout for the Vice fendant and co-defendant Phillips; Prentiss Lords, instructed other and that the of death sentence is not dis- gang up” “snatch him members to proportionate considering the circum- bring apartment. him to the For one and stances of crime and the defendant. hours, one-half to two one-half Having reinstated the convic- defendant’s defendant, along gang with other mem- sentence, tion and we have also reviewed bers, beat interrogated and Green. Even- and considered all alleged by other errors tually apart- Green was taken from the defendant and conclude that none war- by ment six gang members and shot to respect rants relief. With to issues not in death Jessie Turner Park.2 body Green’s addressed, herein specifically affirm we park was discovered in the between 5 and the decision of of Ap- the Court Criminal a.m., 1,1997, May by 5:30 on members of a peals. portions opinion Relevant of that club, walking police. local who called published are an appendix. hereafter as Peppers When Officer Alvin arrived at the Accordingly, judgment of the of Court scene, body lying he found the victim’s Appeals Criminal is reversed in part, af- prone position. face down in a Officer part, judgment firmed in and Peppers explained that he could identi- trial court is reinstated. features,

fy eye color, the victim’s such as Background I. Factual because the so body “face was muti- nothing lated there was that we could defendant, Robinson, Gregory The was identify.” no Peppers Officer found identi- by Shelby County convicted a objects fying body, on the such as wallet premeditated degree first murder and es- jewelry, but he recovered a numbered pecially aggravated kidnapping of Vernon dry tag cleaner’s from inside the presented Green. Proof at victim’s trial estab- clothing helpful in apparently lished on April the afternoon of squabble identifying chil- .45 between two small the victim. Two live caliber bullets, Village Apartments dren in the Hurt in casings, two .45 caliber bullet and gang park 1. at previously Witnesses trial also referred to this The had been known as 2. Traveling as the Vice Lords. Bellevue Park. apart- at “watching out shotgun casing were was outside gauge one .20 shell arriving Gangster the later of the vic- ment.” One of found within a five foot radius as the and whom James identified body. following complicated Disciples, tim’s Shipp and three oth- testimony instructed detailed recitation of the up” necessary Disciples “go snatch proper Gangster to a full and consider- er Shipp said and the presented appeal. ation in this Vernon Green. James issues instruction others followed defendant’s gang members testified Several former arrived at the without hesitation. Green surrounding about the events Green’s by p.m., escorted apartment around and murder. Two of these kidnapping disciples in disciples front two “[t]wo [and] first, prosecution. for the testified in stood in the middle the back.” Green James, “Big Christopher known as as asked if the floor Green Chris,” prosecution. testified for watching for the Vice he had been outside Gangster Disciple James been hit Lords. The defendant then Green April three or four months on 1997. face, times, struck Green numerous 30, 1997, p.m. April Around 5 or 6 stick, both fists and with a broom with his Disciples, Gangster and fellow Jar- James pushed and onto the couch. then Green “J-Roc,” Shipp, vis known as and two James, Village who had lived the Hurt gang “Popcorn,” other members called apartments and known Green for seven “Steve,” a fight witnessed between years, neighbor- described Green as the girlfriend Shipp’s girlfriend and the comedian and stated that Green had hood La- “Snoop,” a Lords gang Vice member. had not been gang not been member and ter, James, Shipp, Popcorn were day. fight earlier involved walking apartment Shipp’s toward the girlfriend, beaten, Snoop approached he was taken them and After Green begin Shipp After re- swinging Shipp. upstairs guys.” “two other Green Snoop began upstairs forty-five fighting, thirty another Vice mained time, gun. During Lord drew a At this James was point, James minutes. fled, Popcorn up” grazed “jumped but a bullet on” and “beat downstairs Popcorn’s they Disciples he had not running Gangster hand as were six because They helped from the fight.” scene. arrived from the “Jarvis and them James fight Village apartment Phillips at Hurt came out of the the testified that Natalie, Nichole, kitchen, April meeting sisters Black he had been with and where Wilkins, thereafter, p.m. Shortly Shipp, “Big around 8 and Kevin known as Shipp Folk,” pick- along Gangster Disciples with fellow “cut on the radio and started Phillips, ing James six who then beat James people,” Prentiss Lee White Car- out radine, Life,” during “Thug fleeing aiding Shipp known as and for rather than “Steve,” that fight Snoop. and “Chuck” arrived at James testified defendant, selected apartment. Shipp angry Phillips, and decided was that Gangsters to there members who beat James and gang “call some more over Village.” upstairs to Hurt An aid and meet- the defendant had been this assist called, James, to ing according and time. was thirty Gangster Dis-

twenty or additional after Green was escorted downstairs ciples Memphis from all arrived at over beaten, later, was a short time James but apartment meeting. for the Be- apartment. from Green taken arrival, apartment, fore James saw Phillips After their came inside Green left Phillips Shipp, talking and apartment and said that Vernon Green name, Jackson, together in the kitchen his Big and overheard Antonio Folk” added.) say, defendant “Y’all know what do.” Idll (Emphasis to Green. In his May James believed this statement 8 statement also James said that meant “[t]hey going to kill [were] [Green].” “Shaun” instructed Shipp and three other James recalled that victim been gang “go had snatch Vernon members held apartment up” two two and one- and that questioned Green “Shaun” if apartment. half hours. When asked victim said and hit Green at the his time, during anything May provided James said statement James the fol- [Phillips], victim lowing “told Prentiss ‘tell them account of the events: ” to stop.’ folks When Green escorted J-Roc, MacKaos, Shaun, and Low- Wilkins, the apartment by Shipp, from private Down went into the Mtehen for a Golden, “Fuñí,” Charles known as and An- meeting. And I them talMng heard Jackson, wearing tonio Green been had softly to five min- each other about shirt, pants, black black and black shoes. utes. And then J-Roc Shaun came Green’s black shirt been pulled had over out of And the Mtehen. then MacKaos his head so that Green was unable see and Low-Down came out of the Mtehen. or use his arms to group resist. As this said, you And MacKaos all need take apartment, left the James overheard Jarvis, you-all care of this and told what again say, Wall know what do personal. now is Then MacKaos and do.” James also defen- testified Low-Down left. dant at point one aimed a nine millimeter statement, Also in May James face, gun at his threatening while that the up indicated that “Shaun came to me and thing” “same would if happen James I say nothing nobody, said better not “something James ever said it.” about you if think this was let us something James believed the defendant’s comment you find out that about something said

meant kill me “[t]hey going to too.” After Although May this.” James Green gang and the other members left police many gang told the members apartment, Phillips and “Steve” walked victim, beat testified at trial James early morning James home in the hours only beat Fi- Green. 1,1997. May 8,1997, nally, May in this statement James

James admitted that seen never claimed he the defendant before April heard three cars start and heard at least defendant had not been a member they six doors close. And after left-and Village Gangster Disciples. of the Hurt gun right Prentiss had a in his hand and maintained, however, James that the de- said, if anyone say anything about this fendant had been member the Mem- they will dealt And then he be with. phis Gangster Disciples and had been said, keep gangsters all the here present apartment Hurt Village the on the that Prentiss on 1919. And after 30,1997. April my and Steve escorted me to house. by May police Defense counsel on cross-examination asked on 8 if he had When questioned regarding anything James to to his statement to statement else add police 8,May investigation, replied: he made to the on one had aid James good after that I say week these events occurred. In “All can is that Vernon was statement, police by that to be killed person James informed and didn’t need Shaun, Anthony, saw Shipp, anyone.” pressed Jarvis defense counsel “[he] When a big heavy-set guy and that I know explain why don’t James to he had mentioned error his use only men- claimed its the name “Shaun” and had not once May 8, the defen- describing when tioned the defendant’s name his name “Shaun” 1997, statement, claimed he had not replied: actions. James James dant’s name until correct learned defendant’s

Man, up hold man. Vernon was When day trial. reaffirmed the first James beat, man, Vernon one who getting that testimony and his direct reiterated that man Shaun. So I went called to “snatch gave the order defendant what called him. Vernon Green; Green; up” that defendant beat pro- previously admitted he had not James Phillips, met with that police vided this information to and also kitchen; and, in the and Shipp, Wilkins previously he not conceded had indicated commented,’’Ya’ll that the defendant twice him while hold- the defendant threatened know to do.” re-cross-examina- what On ing gun a nine millimeter to his head. that, tion, pointed counsel out de- defense “given Although consistently James had contrary, spite proclamation everybody name that the same else did name James knew the defendant’s correct everything night,” that he at- the actions had the defendant’s prior to and used to the at trial had been tributed defendant testifying. previously name correct when May attributed to in his 8 state- “Shaun” Memphis Sergeant William Ashton response questions ment. from de- James’s Department Police corroborated counsel, Phil- fense James indicated that photographic ar- testimony regarding the lips Shipp “coordinator” “chief and ray. Sergeant Ashton recalled that James security” Village Gangster of the Hurt from photograph identified defendant’s Disciples. did a rank James not attribute array, person to the but referred to the however. photograph as “Shaun.” examination, clari- On re-direct James Testifying prosecution, for the Jar- next testimony prior May fied his 8 state- “J-Roc,” also admitted ment, Shipp, vis known as explaining many gang that members Gangster Disciple he victim, had been beat but the defendant hit rank in security” he held the “chief of had gang no Green first and other member gang. Village the Hurt section as defen- beat Green the same time testimony con- Shipp corroborated James’s explained dant. James also he children cerning the between the squabble known April gang present members the chil- argument between led 1997, by legal their names and had eventually escalated dren’s mothers referred to them their street names. Shipp Snoop. between altercation James said had never seen the defen- testimony also corroborated James’s Shipp night, dant had not known the before fleeing the concerning Popcorn James and name, defendant’s and had referred injury Popcorn. fight gunshot and the as in his 8May defendant “Shaun” state- ment heard to the because he Green refer Village Hurt he arrived at the When explained “Shaun.” James Nichole, Natalie, apartment April that, police photo- him a when showed James, p.m., Shipp Black at about 9 saw shortly graphic array after kid- Green’s Sepacus Triplett, Popcorn, Phillips, Isiah murder, and he selected the de- napping Hardin, and Lee Triplett, Steve James photograph but referred to the fendant’s Carradine, all of the White members photograph in the as “Shaun.” person The Black sisters also Gangster Disciples. “coordina- accuracy Phillips, but the present, maintained the and were

James Disci- May Village Gangster tor” of the Hurt truthfulness of his 8 statement and arrival, Black pies, upstairs. handguns. ordered the sisters armed with After their they complied, Phillips After an Phillips called aid ordered James Lee White Curra- meeting, stating person upstairs the Gang- pre- and assist dme and another to Disciples going “step coming ster were to to an- vent the Black from sisters down- against leaving apartment. other level” and retaliate the stairs the Vice Lords. meant Shipp Phillips believed the apartment arrived at the about Kaos Gangster Disciples going were back to p.m. 9:30 or 9:45 arrived defendant all hurt or some of the Lords Vice as shortly immediately thereafter and asked revenge injuring Popcorn. Shipp, “Why your on guys point?” aren’t

Shipp meant, the explained Gangster Shipp ‘Why how Disci- said the defendant out, ples organized were into on through- your guys security, watching sections aren’t Memphis. out looking?” Shipp, addition to Hurt The defendant directed section, Village Village” where was Hurt Phillips security “the of to deter- Shipp identity “guy peeping “coordinator” and the “chief of secu- mine the of the rity,” Gangster Disciples escorting sections around corner.” After Heights, apartment, in Mitchell left Memphis, Shipp South Scut- defendant inside terfield, Manor, Frayser, identity person. Bin- to Watkins determine the Park, ghampton, Hyde Douglass, Shipp later River- When returned short time side, Castalia, Whitehaven, Tulane, person and and advised the defendant that the Green, to was According Shipp, inquired, Westwood. “T-Mon- Vernon defendant ey,” Chicago, Phillips who oth- lived was “head “Who is Vernon Green?” and over the guy city” screaming” whole entire Mem- ers “started that Green awas “Kaos,” phis. Foley, Kevin also known as Vice Lord. defendant then ordered the number to person Shipp gang was two over the entire and five other members However, city. “T-Money” place because “GD arrest.” Accord- Green under town, governor” ing Shipp, gang out “Kaos was like the to defendant meant Memphis. According Shipp, over were detain hold the members and Green Heights against defendant was from the Mitchell his will. particular “at gang section and Green, locating Shipp told Green After security time he was active chief of over brothers, “my Gangster Disciples, such, city Memphis.” the entire As him,” speak and escorted wanted Kaos, just ranked below defendant and apartment. After Green inside the direct- town, T-Money because was out of room, ing dining Green into the the defen- effectively defendant ranked second in the if dant he was Vice Lord. asked Green

Memphis Gangster Disciples. As chief of Green replied,”no,” When defendant security Memphis, en- if Vice asked Green he knew where the security sured that all section chiefs were again Lords were located. When Green organized gave Kaos and orders when “no,” replied Phillips, not around to do so. began hitting, phys- punching, Wilkins Shipp ically chain Green Phillips abusing followed the Green. After fell ground, gang command the aid and asked the others calling Shipp when assist beating meeting April calling up” first members to “hold on Green. go- “we Shipp Kaos then the defendant. After then assured Green weren’t these made, him, just Gangster wanted to forty eighty ing nothing calls were to do we all Vice Disciples Memphis from over arrived at know” the location Lords. Lords apartment, many of them were Green then said the Vice were States, a location, like the with so defendant or- somewhat United particular Shipp, gang dered and five other members and local leaders. national leader half- verify to Green’s information. About moved to the center of the After James location, way to this and the others Shipp circle, Phillips and an- a a met “who considered herself woman minutes six had “six sec- nounced James of the She told Gangster Disciples.” sister onds, up,” meaning would no cover James “running them the Vice Lords were down for six minutes and six seconds be beaten Danny Thomas.” Gangster Disciples re- people.3 six and Shipp the others returned to punishment pumpkin to “a ferred arrived, they apartment, and when the vic- According Shipp, to head.” James was corner, sitting away tim in a from the was “retirement” or “on hold” six placed According Shipp, couch. to Green had to himself a months and told not consider to in the been forced sit corner because Phillips another Gangster Disciple. and on Shipp Green “had defecated himself.” know, individual, then Shipp whom did not gang and members other ridiculed Green apartment. out of the escorted James learning so. doing After the Vice Lords had been the location Green left, Shipp guys After “the to James told provided, Sepacus defendant ordered arrived bring downstairs.” Green [Green] Triplett gang take another member to a his head to downstairs with t-shirt over upstairs. Shipp upstairs as Green went his sight his and to restrict hands obstruct lying well and saw Green on the floor of a away could not or defend so break standing gang bedroom with members Shipp himself. testified that defen- guns around him pointing at his head and dant, individual- Phillips, Wilkins each to kill him. threatening Shipp said the telephone, spoke Kaos on a cellular ly Black upstairs sisters were in another bed- long continuous conversation.” during “one springs room with a box mattress across hanging up, after Shipp reported that prevent departure. the door their ” said, ‘take “[t]hey fishing.’ Kaos him said Shipp When heard loud music and re- part not a of the conversa- Shipp, who was downstairs, Phillips turned and the defen- Kaos, they meant understood this tion selecting dant gang were members way out somewhere were “take [Green] instructing Phillips them to form a circle. district, him a bit rough up of the little out “told get James the center of the abuse, get and let him back the by physical Shipp Phillips charge circle.” said was way Shipp heard the he could.” then best situation, was but Phillips and Wilkins to defendant direct procedure advising proper because six men to take Green to destina- select Phillips “put had never before a brother Jackson, picked tion. Wilkins Antonio asked of the two violation.” When which “Paris,” and indi- man known as another rank, higher replied: “Basi- Shipp Phillips did not know. select- Shipp vidual cally, you’ll say Gregory Robinson.” How- Poole, and man known Shipp, ever, ed Charles Shipp qualified reply pointing Shipp as “MacEndo.” testified Wil- out that these events occurred in Hurt kins, Jackson, Paris, and MacEndo were Village, Phillips’s Shipp agreed “turf.” from Disciples Heights. Shipp Mitchell was Gangster that the are structured from hitting "stopped At the According Shipp, actually was tired” on him.” 3. James minute, mark, Phillips during three se- by twelve individuals the six three second beaten individuals, minutes, continue the period. other six seconds time Because he lected six beating, "got Shipp. “big guy” first one of whom six individuals Hurt Village, Charles and Poole was from mother” and his children to a local motel. Scutterfield. Shipp The defendant told not to answer his pager However, or telephone. use the selected, Wilkins left with six men Shipp answered from page Phillips and and Phillips remained at apartment. learned police were looking for The men in two separate drove to cars paged defendant, him. Shipp then Bellevue pulled Park. Green When immediately who Shipp’s returned call but shirt from eyes his and realized he was in reprimanded Shipp being for “a knuckle- area, them, began a dark pleading he head” who disobeyed orders not to use the times, saying “just numerous let go, me telephone or pager. answer his After man, say I’m not to going nothing, please, again not telling Shipp to answer the tele- just Paris, Poole, let go.” Shipp, me and phone pager, or his respond to the defen- physically MacEndo carried Green to the he, dant Shipp assured or “other top of a hill dropped him onto the brothers,” dropping by would to be check ground. “suggested” Wilkins the other days later, on Shipp. Three men away stand a feet from few Green. guy sent “a by the name of Crenshaw and Shipp although testified that Wilkins was younger guys” pick up two more Shipp superior defendant, rank Wil- and his family at the motel. kins “big was the head” who giving At the conclusion of his direct examina- park. directions at Wilkins kicked tion testimony, Shipp claimed that he had Green in the and asked side Green if he Gangster been Disciples threatened had any last Shipp words. then heard a being explained a “snitch” and that he had gun being cocked and saw Jackson fire the sought custody protective because he gun. down, lying Green was face and bul- feared he would be unable to survive in the lets struck his lower back and buttocks. general jail population, which included Green began gasping for breath say- many Disciples. Gangster Shipp declared hit, ing dead, that he had been that he was he had given testimony truthful and denied and that going say he was not anything. deals, promises, the State had offered When Jackson remarked Wilkins that representations exchange for his tes- Green, buckshot were not affecting timony. Wilkins asked Paris his plated chrome pistol. automatic Wilkins handed pis- cross-examination, Shipp On admitted Jackson, tol shot who Green the head. that he given lengthy had statement The gun jammed, adjusted but Jackson it 27, 1997, police May and had not and fired again. gang members then name, once mentioned the defendant’s fled the gas scene and later met at a though even mentioned numerous Parkway, station on South where Wilkins Kaos, Gangster Disciples, including Phil- streets, advised them to “take the act nor- Jackson, lips, Shipp admit- Wilkins. mal.” gave marijuana Wilkins them to ted he had numerous Gangster identified “calm They us met again down.” at an Disciples photographic arrays, when shown apartment Heights in the Mitchell area. Kaos, Wilkins, Jackson, including Phillips, Shipp later apartment learned this be- Carradine, Golden, “Smash,” Anthony, longed to “Fufu” —Charles Golden. Johnny, Sepacus Triplett, but had identify given failed to defendant when murder, days Two Phillips after the told the opportunity. Shipp day to take a vacation.” “six Phil- lips called the and the Although Shipp May defen- indicated his dant Shipp, “baby’s arrived and drove Kaos the gover- statement in prosecution from the any consideration contrary to his trial testi- Memphis, nor of testimony, Shipp respond- Shipp exchange statement for his mony, same Wilkins, ‘Tes, from the Mitchell fact I’m fac- ed, simple claimed that the because area, security for the chief of to Heights asked penalty.” death When ing the Phillips that outranked Memphis, stated, North “If in the prog- it’s clarify, Shipp Wilkins, was chief of that Jackson and defense If it’s in the will.” When ress. Furthermore, security of Scutterfield. commented, up here ‘Tou’re not counsel 1997, Shipp May statement indicat- his health, you, your are sir?” testifying defendant, not in- Phillips, that the ed testifying “I’m here responded, up Shipp Green; that him to arrest structed Vernon on my the on behalf and to tell truth victim; defendant, Phillips, the the not beat family.” the behalf of victim’s defendant, the Phillips, that not instructed examination, Shipp con- On re-direct upstairs to af- gang members take Green only had one firmed that he identified beaten; Phillips, he and that ter had been Kaos, outranked who Gangster Disciple, defendant, fate not the decided Green’s he defendant, said did so Shipp the and others Phillips and assumed because Shipp told him. “Kaos had on” because “put [Phillips’s] would the law Green Kaos, not pointed out that get the business or would Vice [Green] a hotel and advised him had taken him to against Lords to us.” retaliate Shipp protect also how to himself. cross-examination, Shipp On admitted identify to claimed he had been afraid Washington, Gangster Disci- that Shaun a “not because defendant was from had ple Heights, pres- Mitchell been Shipp a full deck.” main- playing with April apartment ent times, at all he told the truth tained had although had to mention he failed Shaun 27, 1997, statement, ex- including May his 27,1997, Washington in his May statement identify to for his failure defen- cept police testimony. his direct dant. Gangster that Disci- Shipp testified some teeth, ples gold Gangster have Shipp empha- re-cross examination On star, Disciple symbols six-point include Kaos because implicated that he had sized a pitchfork, wings, heart with a snitch.” “[e]veryone knew that Kaos was crown, tail,” “devil and the world with implicated initially he had Shipp conceded piercing it. that he Shipp sword claimed though had Phillips, he and identified even him phrase had never heard “take the defendant Phillips and testified 30,1997, fishing” April but main- before he in terms “kind of on the same level” were phrase tained he had meant believed had authority. admitted he never Shipp they away and were to drive leave Green testifying prior implicated way Shipp to make his own home. admit- acknowledged that he hoped trial and there at the ted had been no discussion by testifying penalty avoid death they park about whether or were against the defendant. kill Shipp admitted that he Green. also Dr. testifying prosecution, Also Green had been because acquainted pathologist the forensic Deering, Thomas con- Shipp had sister. he dated Green’s Shelby County medical ex- assistant charged he had with first ceded that been autopsy, who Green’s performed aminer May after degree giving murder shotgun wound that Green had 1997, statement, explained prosecution right side wounds to the gunshot two had filed a notice of intent seek head, his shotgun across if he his wound penalty. expected asked death When back, shotgun cross-examination, upper and a wound On Deering Dr. agreed shotgun reported left buttock. physical wound to the no redirect, beating. evidence of a severe On right side of head Green’s lacerated his Dr. Deering acknowledged that Green’s brain and fractured base of his skull severely damaged by gun- head was so would have itself been fatal. Gunshot physical shot wounds that evidence B, right near temple, wound Green’s also beating about head have may Green’s not fractured Green’s skull and struck his Nonetheless, been visible. on re-eross-ex- and “a brain was alone severe if not fatal amination, Deering Dr. admitted that “an began wound.” Gunshot wound C at average-sized guy” striking blows “hard skull, right temple, Green’s fractured his person’s with a to a closed fist” head would jawbone his right, broke on the traveled injuries. result in visible The prosecution through the back part tongue, his and then rested its case. injured right muscles in the side of his defense, Testifying first James The shotgun neck. up- wound Green’s Carradine, “Thug Lee White known as back per superficial caused scraping and Life,” he had at present admitted been would not produced have death in and of Hurt Village apartment evening on the itself, although painful. it have been would Green kidnapped was and murdered. shotgun wound to Green’s left buttock maintained, however, Carradine that he fractured the part lower his back bone and Triplett Isiah had upstairs remained coccyx and his and also lacerated his rec- with the Black sisters for most and Deering tum bladder. Dr. opined that evening. Although Carradine identified victim was when alive the various several Gangster Disciples at who were wounds were inflicted. Village Hurt apartment, he maintained the Deering Dr. and cleaned reconstructed defendant not at present had been the victim’s skull to determine order of apartment. Carradine said he first met gunshot wounds. After examining the Shelby County jail the defendant at the reconstructed skull and considering the and did not whether know wound, of bleeding level at each Dr. Deer- was a Gangster Disciple. ing shotgun determined that the wound to that, explained although Carradine right side of Green’s head was inflicted variously man “Greg,” known as first, that gunshot B wound was inflicted “MacGreg,” Greg,”4 or “Red had been second, gunshot wound C was next present apartment Village Hurt inflicted, in the same almost location as murder, on the of Green’s evening gunshot Although wound B. he could not defendant that man. As to shotgun

determine if wounds to stated, rank, MacGreg’s “I’m Carradine back preceded Green’s and buttocks know, just top not familiar. You he had head, wounds to his Dr. Deering testified Nonetheless, main- rank.” Carradine the shotgun wound to Green’s but- “that Phillips tained that outranked great tocks had a deal associated bleed- MacGreg” “Kaos was dude and that ing quite would been painful. have that was over all of it.” Carradine said Given minimal bleeding, associated Dr. person he as MacGreg knew had been Deering opined very that Green had present little apartment and armed with pressure “in bald, blood and was trouble” at a gun. He MacGreg described as mustache, complect- time Green was shot in the back. light very light with a clarity, purposes MacGreg. For consistently 4. we will use the reference ed, “a reflects that defendant height, 5'6" or 5'7" with record also about his arm a tattoo “two heart’s tattoos,” gold in his left bunch of and “twelve other, with the mouth,” with each one his intertwined “six-point star in the web of Sardie, one the name Saman- hand,” neck, arms, name with body, tattoos on his arm his left tattoo, tha.” Also tattooed on a “MacGreg” a “GD” tat- including “Red.” A tattoo on the defen- the word forearm, right too on and a “to the as follow- right arm was described dant’s on his arm. world blow” tattoo left Carra- record; “a one with ing number the police dine confirmed that he had told a wall appears to be a brick of what 9, 1997, MacGreg May statement Annie Finally, on it.” the record Mom know the security was chief of and was gold had six reflects “Executioner.” four teeth on gold teeth on the bottom and cross-examination, prosecution On total ten. The letters “G” top, for a had pointed out that Carradine testified top gold “E” on his four appeared “R” “G” trial, stating similarly at Kevin Wilkins’s no record reflects there were teeth. The person “Big that knew a known as he anything or forks or else on “pitch stars Folk” but Kevin Wilkins was not the teeth.” admitted reluctantly person. Carradine Robinson, mother, Annie the defendant’s Gangster he had a Disciple been but main- Patricia along with Nichole Robinson and leadership tained that he no or had role Robinson, of the sis- Anne two defendant’s rank the gang. within Carradine While ters, never had testified that the defendant participating physical denied in the assault or gold tattoos teeth as described Car- Green, seeing on he recalled victim mother, along radine. The defendant’s staircase, kneeling Shipp with beside the friends, Danny the defendant’s with standing and six others around him. Car- Dowell, Ronald testified that Williams and explained Phillips, along radine with gang the defendant had never been MacGreg Big the men he as knew and member. Folk, “standing six were behind the dudes Vernon,” talking

that were around on admitting had at the Hurt While he been telephone. 1997, Carradine recalled had Shipp 30, Village apartment April Sepa- on walking groups. been Af- between two Triplett being a cus nonetheless denied upstairs ter Green was moved to an bed- Disciples. How- Gangster member of room, telling ever, Carradine heard someone Triplett to “control Phillips directed got “to shut up door,” Green before he killed Triplett had so answered Phillips then.” Carradine confirmed “everybody” and knew “who came door Village was the Hurt and coordinator in.” Triplett in and who didn’t come said Hurt Shipp Village security chief of at he had not seen the defendant MacGreg and said that ranked “some- “in apartment Phillips and believed cross-examination, where around” two or three in Mem- Sepacus charge.” On Disciples. phis Gangster police Triplett he had lied to admitted 8, 1997, May and given in a on statement testified, After Carradine pleaded guilty that he had facilitation jury. displayed person his to the murder. connection with Green’s had tattoos on his record reflects he no chest, that, neck, back, although “MacGreg” no or Frederico Mason testified arm, Gangster “Greg” right tattoo on his no star he was not member hands, Disciples, present “to had tattoos on his and no tattoo of he been 30, had April his arm. The on 1997. Mason apartment the world blow” on left a man “MacGreg” up seen known ever tried “couple apartment.” to come Village,” of times at Hurt but Mason did stayed upstairs post Hardin lookout not know if MacGreg Gangster was a Dis- p.m. from 6:30 12 or 1 until a.m. On cross- ciple. Mason maintained the defendant examination, that, Hardin admitted after and MacGreg not the were same man. pleading he guilty, revenge had feared Mason did not see the defendant at the from Disciples other Gangster incarcerat- 30, 1997, apartment April on had never ed acknowledged with him and that his seen the at the Village Hurt incarceration gang with other members complex, and seen had first the defendant was a situation. frightening when shown a picture police detective. that, April evening Black testified on the Mason did not MacGreg know if had been of April up- she was held an at Nichole Black’s on apartment April gunpoint by stairs bedroom at members “going upstairs because he was Gangster Disciples. Black acknowl- downstairs.” knew Mason Kaos but said edged her acquaintance association did if Kaos had know been at the Gangster Disciples, members of the 30, 1997, apartment April but Mason including Kaos, MacGreg, Phillips. seen Phillips Shipp discussing MacGreg She admitted had been at the aid Green’s fate. if any- When asked he saw meeting and apartment, assist at her but else, said, one replied, Mason “Like I them MacGreg. maintained the defendant is not only just knew, I peoples you that ten-year Black serving admitted she was a cross-examination, know.” On Mason ad- Mississippi Department sentence in the of mitted he left apartment approxi- robbery, Correction for armed but claimed mately p.m. not and did return until Gangster she was not incarcerated with approximately 3 a.m. Disciples Memphis. from On cross-exami- Hardin Steven testified also and admit- nation Black her had admitted brother he pleaded guilty ted had to facilitation to by Gangster been shot Disciples in especially aggravated kidnapping con- Shelby County jail, being but she denied nection with kidnapping Green’s and mur- admitting afraid of the gang, although she Hardin apartment der. arrived at the be- was “concerned.” 5:30 p.m. April tween and 6 1997. Shipp Hardin said called aid and assist brother, Black, April Horace Black’s ad- meeting many people and arrived whom Gang- mitted he a had been member Hardin had seen. never before Hardin Disciples years. ster ten ad- He also “vaguely” some of people remembered jail, knowing mitted the defendant from meeting, partic- who arrived for the and in said, but knowledge, to his the defendant ular, he a man remembered known as Gangster had never been a member of the MacGreg that being night. there Hardin Disciples. Horace Black said he did hand, MacGreg said had tattoos on his Kaos, being gang know a despite member arms, neck, and shoulder and had a nicely cross-examination, years. ten Hor- On trimmed “blondish beard.” Hardin main- ace Black admitted that had previously he tained the defendant was not “MacGreg,” possession been con- convicted of a during and said at no evening time did sell, trolled substance the intent Hardin observe apart- the defendant manufacture, deliver, and aggravated ment. Hardin that he admitted had been robbery. go upstairs Phillips “told Prentiss Parker, Sergeant Memphis and lookout the and inform window them” Richard a anyone, Lords, police, police if the Vice had assigned “who- officer who been phase during guilt proof presented years, five testified Gang Task Force for Peppers Sergeant and re-called Ser- gang for the about tattoos. defense identified Sergeant Peppers to the readily identi- stand. geant Parker described it body as photograph a victim’s Gangster often used Dis- fiable tattoos Tur- in Jessie appeared when discovered ciples. He stated the defendant’s tattoos 1,May tattoos, morning 1997. ner Park on gang could be but he “possibly” readily identify them as such. could not mother, A friend “E” the defen- He indicated letter in mitiga- and of his sisters testified two Gangster dant’s “RED” tattoo resembled a “loving him a They described tion. trademark, Disciple “although it was miss- children, ranging age father” of seven under He further noted ing post it.” old, member of a years from to six a one “camouflage” that members often gang family, concerned and large, close-knit tattoos, and that tat- pointed their he out sisters, five and the caring to his brother easily changed. Sergeant toos can Par- be youngest of his mother’s six children gang ker had be- indicated members Al- only her son. He attended church. gun eschew tattoos to avoid detection job, though steady had the defen- he no teeth, explained gold common trained as Both dant had been welder. among Gangster Disciples, can be removed mother, and Debra the defendant’s out changed. pointed Defense counsel McNeese, specialist with Pro- mitigation initially Sergeant when showed Group, Management testified bation Parker photographs of defendant’s tat- disability learning the defendant had toos, Sergeant opined Parker that the de- in the ninth dropped out of school tattoos not gang-related. fendant’s were school, leaving After grade. prosecuting After with the speaking attor- Eagle father at Iron worked with his courtroom, neys in the hall outside the behalf, in his the Testifying Work. own Sergeant Parker “came the conclusion jury spare his life defendant asked possibly tattoos gang- could be could so that he see children. related.” Upon finding prosecution upon jury this convict- proof, Based aggravating circumstances be- proven both premeditated ed the defendant of first de- ag- yond reasonable doubt and that a gree especially aggravated murder and outweighed any gravating circumstances kidnapping, finding the defendant crimi- a reason- mitigating beyond circumstances nally responsible for the conduct of anoth- doubt, imposed a sentence of jury able er. appealed, and the death. The defendant reversed the Appeals The Court of Criminal proceeded penalty convictions and sentence phase. aggravating To establish the two defendant’s appli- filed an especially murder death. The State thereafter circumstances —the For the heinous, permission appeal. in that it in- cation for atrocious or cruel reasons, with the following disagree or we physical volved torture serious abuse Appeals and reinstate beyond necessary produce death Court of Criminal during convictions murder affirm defendant’s was committed upon relied sentence of death.6 kidnapping5 prosecution —the 13—204(i)(5), (7) reversing Despite § 6. the defendant’s conviction 5. Tenn.Code Ann. 39— sentence, the Court Criminal (1997). death Appeals raised considered all the issues appeal as as the issues on well II. Failure to Instruct on Lesser- (2) to commit solicitation the offense

included Offenses charged or an offense that otherwise meets the definition of lesser-included Appeals Court of Criminal held that (a) (b). offense in or part the trial failing court erred to instruct or particular “Whether not a lesser-includ- jury on facilitation and solicitation of ed charged offense should jury be degree first premeditated murder and es depends proof on whether the record pecially aggravated kidnapping. support would charge.” the lesser Id. at Appeals Court of Criminal therefore re 468. adopted This Court has a two-step versed the defendant’s convictions and re inquiry for if determining the evidence manded to court the trial for a new trial. justifies instruction jury on a lesser- that, Court, In this the State concedes included offense. The trial court must under the circumstances this case and first determine: Burns, the test enunciated State v. whether exists evidence that reason- (Tenn.1999), 466-67 facilitation accept able minds could as to the lesser-

and solicitation are lesser-included of included In making offense. this deter- degree fenses of premeditated first mur mination, the trial must view Nonetheless, der. the State maintains light evidence in the liberally most fa- justi evidence case did not vorable to the existence of the fy lesser- on instruction either of these included making any offense without lesser-included offenses. judgments credibility such evi- Burns, 6 S.W.3d at Second, dence. trial court must de- 466-67, explained this Court that an of evidence, if termine viewed in this fense is lesser-included if: light, legally support sufficient to (a) all statutory of its elements are in- conviction for the lesser-included of- cluded statutory within the elements of fense. charged;

the offense or Id., at 469. an Whether instruction is (b) it required evidence, fails to meet the definition in part depends upon the (a) only respect in the that it theory contains a defense or the State. (Tenn. statutory Allen, element elements State v. establish- ing 2002); Richmond, State v. (Tenn.2002). Applying princi these

(1) a mental indicating different state ples, we conclude that the trial court did culpability; a lesser of kind and/or failing not err in instruct on to solicitation (2) a harm less serious or risk of and facilitation. person, harm to the property same or interest; public or A. Solicitation (c) it consists of person may be convicted of solic A

(1) of “by oral, facilitation the offense itation if charged person means of communication, or of an offense otherwise meets written or electronic di another, rectly definition lesser-included of- or through intentionally (a) (b); commands, fense in or or part or hires requests another to appellate by mandated by courts are statute have considered the issues to all raised Thus, capital mandatory consider in cases. statutory this case defendant as well as the need not be remanded to the Court of review concluded Crimi- issues and have the convic- consideration, Appeals nal for further and we tions and sentences should be affirmed. to another intends commit knowing a criminal offense ... with the commit criminal commit- the intent specific felony, intent offense be but without ” 39-12-102(a) § ted .... Ann. Tenn.Code un- required responsibility criminal (c) (1997). test, Part 39-11-4.02(2), Bums which § know- person der solicitation a lesser-included of- makes in assistance ingly substantial furnishes fense, applies “to in which a situations felony. the commission of commit, attempts or to solicits added.) responsibility (Emphasis Criminal commit, to either the crime another promote to or assist requires “the intent offense, or but charged a lesser-included Tenn. commission of offense.” completion no exists of the proof (1997). Signifi- § 39-11-402 Ann. Code Ely, State v. crime.” S.W.3d cantly, requires the lack facilitation Marcum, (Tenn.2001); See also State v. Thus, responsibility criminal intent. (Tenn.2003) (quot- 303-04 jury to find the defendant reasonable ing holding trial principle this that the degree pre- of facilitation of first guilty failing err in instruct on court did not especially aggravated meditated murder or not attempted rape where evidence did have con- kidnapping, jury would attempt an support supported but instead lacking the clude that the while only completed rape or the offense of assist the commission promote intent or innocence). in defendant’s claim of As offense, sub- knowingly of either furnished Marcum, case, in this the evidence unmis- stantial the commission assistance takably completed either the established especially ag- premeditated murder and especially of murder and aggra- offenses § id. 39-11- gravated kidnapping. See vated or the defendant’s claim kidnapping 403(a) (1997). evi- record contains no This Consequently, innocence. accept reasonable minds could failing court did not err to instruct the dence that support on solicitation.7 these conclusions. As recount- above, great respect detail ed B. Facilitation murder, the premeditated evidence reason- (c)(1) following one ably supports only Part of the Bums test clear (1) ly designates present facilitation a conclusions: Robinson was lesser-included Burns, charged apartment, offense of the 6 at was not involved offense. Thus, Disciples, Gangster 467. facilitation is a less murder or the Green’s (2) innocent; premeditated completely er-included offense of mur is and therefore because, especially der he aggravated kidnapping. while Robinson is innocent Having orders, determined that facilitation is a anyone not order gave did offense, (3) Green; we next de lesser-included must kidnap kill or Robinson termine case whether the evidence responsibility criminal because guilty on warranted an instruction facilitation. kidnap gang he ordered other members to kill Considering Green. evidence 39- Tennessee Code Annotated section ll-403(a) (1997), light most the existence in the favorable to defines “facilitation” as offense, the criminally of the lesser-included evidence person responsi follows: A if, felony support facilitation of a does not the notion that the defen- ble Ely plainly ex- These cases 7. In Bums this Court indicated the trial court and Marcum. plain required provide jury that instructions are not on should instruction solicita- trial, attempt evi- though the or where the tion at the new even offense either solicitation However, clearly completion completed. portion had been this dence establishes charged later cases offense. of Bums has been clarified in the merely dant jury that, furnished substantial assis- reasonable could believe al- premeditated tance in the commission of though present the defendant was at the first degree especially aggra- murder and robbery, scene of the that knew the ac- kidnapping, vated intending without complice robbery, intended to commit promote or assist the commission of these assisted in substantially the commission of offenses. he robbery, “nevertheless did not in- promote tend ‘to assist commission Appeals opined Court Criminal Bums, ”); ...’ “knowingly furnishes the offense S.W.3d at substantial (holding assistance” element of facilitation of first the trial court did not degree murder supported by proof refusing err in to instruct on facilitation that the defendant ordered others to take because jury no reasonable could conclude However, Green to a secluded location. that the knowledge defendant had the re- points out, as the State the evidence indi- quired for facilitation but lacked the intent cates that the told gang defendant other required responsibility). for criminal members take the “fishing.” victim As to facilitation to especially commit Shipp testified that he had never before aggravated kidnapping, Court of Crim- heard that instruction but believed it that, inal Appeals explained although the meant gang members were take the proof established the defendant’s direct victim out “way somewhere out of the dis- participation in initially kidnapping and trict, him rough up by physical bit little beating apartment, jury at the Green abuse, get and let him way back the best could have concluded that he Accepting could.” this view of the did not the kidnapping especially intend be proof, juror no reasonable could have aggravated gang when he ordered mem- found knowingly defendant fur- “fishing.” bers to take Again, Green nished substantial assistance in the com- above, explained pre- from the evidence Indeed, mission of the murder. under sented, no jury reasonable could have con- proof, view Green’s murder cluded that the defendant had the knowl- directly violated the defendant’s instruc- edge required for facilitation but lacked simply tion. It logic defies to conclude required responsi- intent for criminal that the intending while not bility aggravated especially to commit kid- murder, aid or promote Green’s neverthe- presented, napping. proof Given the gang less other ordered members to take either guilty virtue of district, rough “out of the up Green him a responsibility criminal or he was innocent. physical abuse, little bit by get and let him Therefore, did the trial court not err in could,” way back the knowing best all failing to instruct the on facilitation of along that these gang members intended aggravated kidnapping. especially kill Simply no put, Green. reasonable Appeals’s Court of decision set- Criminal jury could have from concluded the evi- ting aside the convictions and defendant’s presented dence the defendant had for a remanding new trial therefore is knowledge required facilitation but reversed. required lacked the intent for criminal re- We sponsibility. therefore conclude that Accomplice Shipp III. Jarvis failing trial court did not err Instruction jury instruct the facilitation to commit premeditated Ely, murder. See 48 The defendant the S.W.3d asserts (holding at 724 trial by instructing jury the trial court did not court erred the by failing they question err to instruct facilitation as no were to determine as

489 allowing trial court erred both Shipp an that the fact or not Jarvis was whether crime. The State as- accomplice the to use the victim’s pathologist forensic the by defendant waived this issue serts the tes skull when and reconstructed cleaned object given the charge to the failing to injuries and in tifying about the victim’s argues that jury. Alternatively, the State photo certain admitting into evidence Shipp’s harmless error was because body. the While depicting victim’s graphs abundantly testimony was corroborated Court of Crim that the the State concedes evidence, as testimony and other James’s correct standard recited the Appeals inal Appeals found. the Court of Criminal review, nonetheless the State appellate concerning the facts a wit When Ap of Criminal that the Court maintains undisput are participation clear ness’s correct peals apply the standard. failed ed, as a trial court determines matter State, deter According rather than is an accom of law whether witness its mining trial abused whether 687, State, 681, v. plice. Ripley 189 Tenn. discretion, appellate court the intermediate (1950); 26, 227 29 v. Perkin S.W.2d State propriety independently assessed son, 1, (Tenn.Crim.App. 7 867 S.W.2d concluding using the trial before skull 1992). suscep If the are disputed facts need its introduction.”8 there was “no for inferences, must jury tible to different several cases in upon also relies question as a of fact whether the The State decide Perkinson, accomplice. is an 867 witness chal rejected this defense which Court generally applied at 7. test is S.W.2d of a victim’s skull lenges to the admission whether witness could be indicted See, v. during e.g., a murder trial. State charged de against the same offense (Tenn.1998); Pike, 904, 925 978 S.W.2d State, 171, v. 214 Tenn. fendant. Monts (Tenn. Cazes, 253, State S.W.2d (1964). 1994); King, 250- State v. case, In disputed, this the facts were not Morris, (Tenn.1986); trial court have instructed should (Tenn.1982). jury Shipp accomplice to consider an However, aas matter of law. the defen- argues that response, Robinson this object dant failed court’s not prior controlling decisions are Court’s instruction and thus waived the issue. because, those unlike defendants Furthermore, considering even merits cases, charged premeditated issue, is the error harmless because responsi- degree murder criminal first Deering’s testimony and Dr. testi- James’s actually in- not accused of bility and was mony sufficiently de- Shipp’s corroborated injuries upon the victim. flicting the fatal scription of the events so that the evidence Furthermore, argues that support jury’s is sufficient to verdict of and clear testimo- thorough Deering’s Dr. degree first murder. This issue without injuries the victim’s rendered ny regarding merit. Although unnecessary. the skull’s use Display

IV. of Skull and Admission testi- Deering’s that Dr. Robinson admits Photographs explain mony and of the skull use Shipp’s corroborated gunshots order challenges next

The State nonetheless testimony, Appeals’s of Criminal conclusion Court inspection. given regard to the 8. that the skull was never We note into evidence and therefore introduced Tennessee, maintains that the was skull not stitution of relevant these rules or other “any disputed the guilt phase” issue in general rules or of application laws in the argues that, his trial. The defendant courts of Tennessee. Evidence which is light great danger of the of unfair preju- admissible.”); not is not relevant State v. dice, trial by the court erred allowing James, Dr. (Tenn.2002). Deering testify display and the skull “having any tendency Evidence to make during testimony.9 any the existence fact that is of conse- quence to the determination of the action Admission of evidence is en probable probable more or less than it trusted to the sound discretion of the trial would be without evidence” is relevant court, a ruling and trial on court’s evidence Tenn. R. evidence. Evid. 401. After a only will be disturbed a upon clear show relevant, court concludes evidence is ing of abuse of discretion. See State v. then weigh probative must value DuBose, (Tenn.1997). against danger the evidence A trial court’s exercise discretion will unfairly prejudice evidence will the defen- not appeal be reversed on unless the court dant at trial. Relevant evidence should be an “applied legal standard, incorrect or excluded if the court determines that against reached a decision is logic which or probative value the evidence “is sub- reasoning injustice that caused an to the stantially outweighed by danger its of un- Shuck, party complaining.” (em- prejudice.” fair Tenn. R. Evid. 403 (Tenn.1997). When deter added). phasis previously This Court has mining admissibility, a court must emphasized: if first decide the evidence is relevant. (“All Tenn. R. Evid. 402 relevant evidence admissibility, Rule 403 is rule of and it except provided by admissible places heavy on party burden States, Constitution of the United seeking Con- to exclude Ex- the evidence. prejudice, 9. To establish unfair cet to these The control headaches. Defen- points juror that a experienced migraine out proof dant offered has no whatsoever that during Deering testimony headache Dr. any and the demonstration of the had skull con- jury per- was excused from the after medical juror’s migraine. nection to The Defen- sonnel examined however, her. The defendant’s asser- dant does make much of the fact agree tion is without merit. We with and set juror that "pain” this wrote the word out below the trial court’s decision on this notepad, her she up asserts that held it issue. see, jurors for other and that this action prejudiced jury. The actions of this regard juror by to the referred to juror made Defendant, were known to this Court dur- experienced migraine she ing questioned jurors trial. This Court two (an requested headache Darvocet ex- regard juror to this incident. One stated powerful tremely painkiller only available not that she had seen such note. An- by prescription) pain. request- for her The it, juror Court, other testified that had seen she ed medicine was unavailable to the said, stating, pain. “It P-A-I-N. Her head being and after examined a doctor who hurting just was real bad. And she wrote juror that confirmed did indeed have a pain up.” on it held it It is obvious migraine, juror dismissed due to pain that this Court the word was in refer- the fact the doctor stated it would take migraine, ence to the approximately members two to three hours for the migraine juror who saw to subside. this note also under- way, in no shape Accordingly, stood the reference. any way form indicated or in implied probative Court the skull contributed to finds value of onslaught juror outweighed danger of her skull condition. obviously experienced migraine prejudice. headaches unfair This issue is without mer- before, given normally that she took Darvo- it.

491 prejudice. of eluding danger this the unfair outweighed relevant evidence under rule “I a remedy court can’t think of extraordinary is an that should The trial stated: injuries and the way display better to show sparingly persons seeking be used and I’m not and than use of the actual skull. by to exclude otherwise admissible rel- sufficient significant you a sure that could recreate that evant evidence have burden anticipate going to do I the doctor’s persuasion. of what I him last to do heard do based what (internal James, quo- 81 at 757-58 S.W.3d rul- proceeding in while time.” Later omitted). tations and citations photo- ing upon admissibility of certain Applying principles, these we conclude graphs, trial that skull court noted that the trial court not its did abuse discre- “to graphic and a better aid dem- less by allowing Deering testify tion Dr. to injuries” onstrate the than some of to display explain testimony. the skull his apparently photographs. Defense counsel Indeed, nothing this record indicates assessment, stating, agreed this “applied that the incorrect trial an you don’t have the with that skull “[a]nd standard, or legal reached decision which you gore that see those blood and against logic reasoning is or that caused an more than ad- photographs. Deering] [Dr. injustice party complaining.” to to equately demonstrated this entire court- a jury-out hearing the trial court academic, very professional room fash- in a carefully objec- considered the defense ion.” tions, correctly governing summarized law Furthermore, prosecution’s prove correctly regarding right defendant case, admits, accurately Deering’s testimony its that Dr. about the concluded right gunshots Shipp’s not be may by foreclosed defen- order of the corroborated Indeed, it was proof testimony. Shipp’s dant’s characterization of the as un- testimo- of that disputed stipu- ny gunshots defendant’s offer to about the order Deering clarify late or concede certain factual Dr. the skull to issues. See used James, 761; West, explain. corroborating 81 S.W.3d at State v. Such evidence (Tenn.1989) (holding clearly 767 S.W.2d was relevant because it was neces- judge sary that the not This by refusing prosecution’s trial did err to the case. Court accept may has that stipulate repeatedly defendant’s offer held a conviction identity property solely upon of all the uncorrob- when the defendant be based testimony accomplice made the offer an effort to of an to the eliminate orated Bane, highly v. prejudicial emotional and testimo- offense. See State S.W.3d Stout, (Tenn.2001); ny); King, (holding 250-51 State (Tenn.2001); fragments Bigbee, that the victim’s skull skull 696-97 (Tenn.1994). though even Evi- properly were admitted stipulated corroborating accomplice’s dence an testi- prior testimony, mony, Deering’s from such as Dr. victim’s death resulted a shot certainly qualifies of head therefore as “evidence high-powered back from rifle). acknowledging any tendency relevant to make the existence having After may consequence if fact that probative evidence be excluded its proba- determination the action more substantially outweighed value is R. 401. The defendant danger prejudice, of unfair the trial court ble.” Tenn. Evid. heavy establishing specifically probative bore the burden concluded Dr. prejudice from Deering’s testimony danger value of Dr. and his unfair testimony and of the skull testimony Deering’s use explain use the skull substantially outweighed probative its prosecutions they val- missible in murder if are ue. The trial court did not abuse its dis- relevant to the issues at trial. Id. at 950- by concluding cretion 51. The trial court’s determination that failed to meet this burden. The Court of photographs were relevant to issues at Criminal Appeals’s contrary decision illogical trial is not nor irrational and did is reversed. injustice not an cause defendant. found, As the court the photographs challenges State also issues, were relevant to several illustrated Court of Criminal Appeals’s conclusion supplemented testimony of Dr. trial court admitting erred Deering, brutality and revealed of 10, post-mortem Exhibit photograph of attack against extent of force used right Again, the victim’s forehead. admis Smith, the victim. See 868 S.W.2d sion of evidence entrusted the sound (Tenn.1993). 561, 576 all For these rea- court, discretion of the trial and appellate sons, we conclude that trial court did courts should reverse trial court’s 8, 9, by admitting not err Exhibits admissibility decision a showing absent of into evidence. The Ap- Court Criminal again, abuse of discretion. no Here abuse peals’s contrary decision is reversed. of discretion has been shown. The trial found, court and the Court Criminal Sergeant Testimony V. Ashton’s Appeals agreed, photograph 10, question, Exhibit with along two other Relying upon v. Wash Crawford 9,10 photographs, Exhibits 8 and were rele — U.S.-, ington, 124 S.Ct. vant premeditation, to show cause (2004), L.Ed.2d 177 defense counsel com- death, and the body victim’s location and plains Sergeant testimony Ashton’s position, necessary and also were to illus regarding Washington’s Shaun identifica- testimony many trate the the state’s tion of the defendant constituted inadmis- Immediately witnesses. upon admission of hearsay sible that violated his constitution- the photographs, gave the trial court al right against to confront the witnesses limiting instruction and cautioned him. agree We the Court Criminal the jury against improperly using the pho Appeals the trial that the court defen- tographs. trial court did not act as a dant hearsay elicited this evidence and stamp every rubber and admit photograph cannot now about its introduc- complain prosecution proffered. As previously tion. defense cross-exam- When counsel stated, the trial excluded certain au ined Sergeant prepara- Ashton about his topsy photographs, noting their admission spread “GG,” tion of photo following necessary was not Deering because Dr. exchange occurred. had been allowed to use the victim’s skull Q: during And as case coordinator as a demonstrative aid. The trial court your you investigation are aware of legal did not an apply incorrect standard. any other individuals that were in- policy Tennessee courts follow a of liberali “GG,” terviewed that identified ty in photographs the admission of in both six, being number there? civil and criminal cases. See State v. Yes, A: sir. Banks, (Tenn.1978). be, Photographs corpse generally Q: of a are ad- And who would that sir? depicts injury 10. Exhibit 8 to the victim’s victim's back. depicts injury Exhibit 9 buttocks. to the in their state- got we’ve A: That’s what I wouldn’t know. I’d Right A: offhand ments, correct. my have look at case. you Okay. you re-direct, Ashton testified

Q: please Sergeant Would On —do that, nearby? a statement June giving have that somewhere while photo- looked at Washington Shaun got my of it copy A: I believe I’ve identified the de- array “GG” and graphic office. asked about MacGreg. fendant as When Okay. you go that? Q: obtain Could time, at the Ser- demeanor Washington’s It’d me a few moments. A: take very “He responded, geant Ashton that, Q: Okay. you do sir? Could did not of The defendant sure himself.” you asking THE What are COURT: objection Sergeant Ash- interpose an Mr. Ozment? testimony. ton’s honor, asking I’m MR. OZMENT: You very may the While defendant him to other identifi- obtain whatever and well be correct that both Crawford cations made of six. were “GG” 803(1.1) of Rule Rule Evidence Tennessee evening, the The court then recessed for if of identification hearsay bar statements resumed the trial, and when cross-examination at nei testify does the declarant day, following exchange 803(1.1) occurred next is disposi- nor Rule ther Crawford Sergeant defense counsel and between the defendant tive in this case because Ashton. himself door opened both elicited assigns error. testimony he now Ashton,

Q: Sergeant when yesterday circumstances, the defendant these Under talking we left off we were about Indeed, it is well- is not entitled to relief. the photo spread people and the litigant permit not be settled that a “will in people had identified of errors which advantage ted take photo spread, correct? committed, invited, or induced himself or Yes, A: sir. commit, or court to which were trial “GG,” Q: Particularly photo spread neglect his own consequence natural correct? Richards, 193 Norris v. misconduct.” Yes, A: sir. (1952); see Tenn. on Q: question And the last I left Smith, 279-80 also State v. S.W.3d who identified out of else someone 36(a). Thus, (Tenn.2000); P. R.App. Tenn. photo you “GG.” had spread Have is not entitled relief your an to check rec- opportunity this claim. ords on that? to Declare a Mistrial VI. Failure The I could it A: best determine was and Shaun Christopher Lewis defendant further maintains Washington. in denying court that the trial erred given prosecutori a mistrial Q: Okay. people out of all motion for So in Nichole presenting al they shown this misconduct that —when were rebuttal, its testimony. During Black’s your in de- photo spread officers Black, one Nichole Gregory prosecution called partment identified on the your apartment held in the during sisters Robinson the course Black Green’s murder. night two only were Vernon investigation had been James and Shaun Lew- testified Christopher is, apartment night question. on the correct—Shaun Lewis James? examination, courtroom, On prosecutor redirect including the was at handed if photograph apartment night Black a her asked of Green’s abduc- person she could tion identify photo- Viewing whole, and murder. it as a graph. objected testimony counsel Nichole Defense to the Black’s was uncertain identification, and vague. judge trial court twice instruct- held jury-out disregard ed the hearing. Ultimately, testimony her the trial entirety. presumed its are court Black’s Jurors testimony excluded fol- or- Reid, low the dered it instructions the court. entirely stricken from the record Stout, 279; 715; S.W.3d because prosecution in- failed to Williams, State v. form defense counsel that Black had made (Tenn.1998). circumstances, Under these prior identification the defendant. Al- the trial court did not abuse its discretion though the trial denied the defen- by denying request the defendant’s for a mistrial, dant’s request for a the trial court mistrial. This issue without merit. instructed to disregard Black’s testimony. VII. Due Process Violation:

The decision of whether Inconsistent Theories & grant deny or motion for a a mistrial rests Evidence within the discretion sound of the trial In his 2000 October motion for a court. A should be only mistrial declared trial, alleged new his Due upon a of showing necessity. manifest rights Process been had violated because State v. Saylor, 239, 117 250-51 theory by guilt presented prose (Tenn.2003). words, “In other a mistrial is cution at the October 1999 trial of co- an appropriate remedy when a trial cannot defendant Phillips fundamentally in continue, justice or miscarriage a would inherently consistent with and contradicto Land, result if it did.” State v. 34 S.W.3d ry argument presented to evidence by 516, (Tenn.Crim.App.2000). Appellate prosecution at his November tria courts should not reverse a trial court’s l.11 presided The trial who judge at the decision a denying request for a mistrial various plea colloquies trials and related to showing absent a clear that the trial court rejected this murder the defendant’s claim. Reid, abused its discretion. State v. 91 The trial court that although noted “the (Tenn.2002). 247, absolutely evidence did not establish the identity of the meeting, leader this there in supports The record this case was ample evidence that the Defendant the trial court’s decision demonstrates was a leader at meeting. that The fact no abuse of discretion. Nichole Black tes that a Phillips, Prentiss co-defendant was though tified that power even was out also identified a leader at this meeting 30, in her apartment April she finding does not render this De had man approximately observed a fendant was a invalid.” leader thirty light seconds of a small pock et pager held her face near and that the The defendant renewed Due Process man in photograph “looked claim in Appeals. like” the the Court Criminal man just she observed. Nichole Black announcing After the claim awas previously Tennessee, question testified no one in impression first appeal delayed 11. this requesting grant- case has been tions extensions have been because the was lost and had record to be ed. unopposed reconstructed because mo- prosecutor that a adopted The State concedes Appeals the Court Criminal Pro clearly a of Due deprives defendant analysis of Court of the United States or by knowingly false evidence Groose, using cess F.3d Appeals Smith Cir.2000). conviction or sent (8th argument to obtain a 1045, 1052 -with Consistent However, cases from other citing ence.12 approach, the Court Eighth Circuit’s out that jurisdictions, points the State that, in explained sep- Appeals of Criminal Pro clear as to whether Due law is less trials co-defendants against arate prosecutor’s use of factu precludes cess crime, prosecution violates Due same contradictory or theories ally inconsistent by pursuing factually Process contradicto- See, falsity. e.g., where is no known there are at core of the ry theories that Sakarias, 94 Cal. People v. Cal.4th prosecution’s ap- case. intermediate (2000) Rptr.2d 995 P.2d to obtain relief pellate explained court (“Less whether, knowing falsity clear is must approach, under this es- aside, oversteps constitution inconsistency, prosecutor only a “core” but tablish asserting, separate trials of al limits that the also reasonable likelihood out- defendants, factually inconsistent different trial would have been differ- come contradictory of criminal theories inconsistency. Applying ent absent events.”) also maintains that test, The State appellate the intermediate definitively clarify the that, this Court need not during found trials of separate prosecution because the law this case and Phillips, the defendant co-defendant nor neither inconsistent theories proof pursued prosecution “presented the some contradictory evidence at these inconsistent, presented arguments and which were separate trials. contradictory, factually and irreconcilable

regarding the relative rank of the defen- contrast, argues the that defendant and Phillips.” dant Court Criminal correctly Appeals the Court Criminal Appeals nonetheless concluded that the claim, Due recognized appro- the Process defendant had failed establish reason- Eighth the anal- priately adopted Circuit’s prosecu- able likelihood that absent these claims, accurately found a ysis of such and jury’s the torial inconsistencies verdict Due in this case. None- Process violation phase guilt would different. have been theless, challenges the defendant However, finding a reasonable likelihood Appeals’s conclusion Court of Criminal jury imposed would not have not the Due Process violation did sentence of death absent the inconsisten- guilt jury’s phase affect verdict at cies, Appeals the Court of Criminal con- of his trial. cluded that the defendant’s sentence of thoroughly reviewed the defen- Having ground death should be reversed on record, supple- dant’s extensive alone. consisting transcripts mental record Court, initially

In this the State separate plea colloquies from trials or Jackson, Appeals argues that the Court Prentiss Criminal of co-defendants Antonio Wilkins, an recognizing independent Phillips, Shipp, erred Due and Kevin Jarvis briefs, we prosecution’s very lengthy appellate Process bar to the reliance and the prosecution pursued pursuit sep persuaded and of inconsistent theories are offered contradic- involving arate same crime. inconsistent theories or trials See, States, (1972). e.g., Giglio v. 12. United U.S. 150, 153-54, S.Ct. 31 L.Ed.2d

tory proof at the separate trials of Indeed, these the victim’s murder. both James co-defendants.13 Shipp closely questioned were about initially their failure to implicate the defen- detailed, As previously prosecution dant, and in particular, defense counsel proof offered at the defendant’s trial to emphasized that Shipp did not implicate or defendant, establish that as chief of mention the defendant in his initial state- security, ranked third in city-wide hi- ment to police but had instead named erarchy of Memphis Gangster Disci- and implicated Phillips. ples. Witnesses testified the defendant Both Shipp’s ordered gang testimony other and James’s members to “snatch con- veyed up” victim, Phillips’s leadership role in Green’s kidnapping and himself beat murder. Testimony the victim at indi- apartment. cated that Phillips Proof announced also showed that the Hurt the defendant or- Village Gangster Disciples going dered were others to take upstairs the victim against retaliate the Vice Lords step and detain him. Witnesses testified that up the violence to another level and that the defendant ordered Wilkins and Phillips Phillips and Shipp called the aid and assist to select gang members to take the victim meeting. Testimony also showed that But, “fishing.” proof also heard Phillips posted gang members as lookouts to show that Phillips was coordinator for at the door apartment an Village the Hurt Gangster Disciples. bedroom, upstairs Phillips accused the When rank, asked who had higher victim of being a lookout for the Vice defendant, Phillips or the Shipp indicated Lords, and that the victim Phillips, asked higher, ranked Shipp but rather than the to “tell them emphasized that the murder occurred on stop.” Furthermore, folks to the testimo- Phillips’s “turf” in Hurt Village and that ny Phillips indicated that announced Phillips and the defendant were “kind of James punished would be for fading to aid on the same level” in authority. terms of in Shipp fight the with the Vice Lords and James was not asked about the defen- gang selected members to inflict pun- the rank, dant’s did not attribute a rank to the ishment. In addition proof there was that defendant, and stated he had never seen Phillips met with the defendant and Kaos. April before 1997. How- A defense witness said he Phillips heard ever, James testified Phillips that held the Shipp fate; and discussing Green’s and rank of coordinator within the Hurt Village testimony indicated that Phillips, at the Gangster Disciples and it was Phillips direction, defendant’s selected three of the whom the victim asked stop to the assault. gang members who removed Green from Moreover defense emphasized counsel apartment. Finally, the there was testi- through cross-examination that Shipp and mony Phillips that escorted James home prosecution other initially witnesses Shipp and told to “a day take six vacation.” given police statements to the implicating Phillips as the ranking Gangster Disciple At Phillips’s subsequent trial the State responsible for the orders that argued presented resulted and evidence to show concluded, Having 13. so we need Eighth not and do articulated the Circuit Court of that, However, not consider the State’s Appeals. assertion even if upon finding, based our exist, such Due Process reject claims such claims we the defendant's assertion that the post-conviction should be petition raised in a prosecution failed to disclose affirmative ex- appeal not on and the State's culpatory Phillips assertion that high- evidence that was the Appeals the Court of adopt- Criminal erred ranking gang est Phillips member and that ing applying and analytical the ultimately responsible framework was for the murder. coordinator, personal the rank- of this ... was a situa- Phillips, [P]art that was Gangster the ing Village entirely Gangster member of Hurt This tion. wasn’t the Disciples, called aid and assist meet- It It Disciple personal. matter. was gave during and ing, orders others ego, affront to this man’s personal was a meeting. that Phil- testimony There was man, this the coordinator of Hurt Vil- reported the victim was outside and lips lage. happened An altercation had stated victim have Phillips would his between the Vice Lords and turf proof that Phil- to be killed. showed and it diminished Gangster Disciples members, picked other lips gang including And power. going he wasn’t stand Shipp, man part his number two to be for it. group that removed from the Green prosecution this argu- did make However, apartment and him. killed And, given ment at the trial. defendant’s at proof Phillips’s trial also showed that argument completely this was unrelat- defendant, call, answering Phillips’s at- prosecution’s ed to fail- meeting, tended the aid assist ordered argument ure this is press logical. up” victim, others “snatch met with However, entirely argument consis- kitchen, Phillips in the ordered the victim testimony tent at the defendant’s trial with upstairs taken after the victim had been indicating Phillips very upset af- was Phillips’s beaten. The trial also ter the skirmish with Vice Lords heard evidence that defendant was meeting assist called the aid and because authority of security Kaos’s chief to step up he wanted the violence and Kaos, out carry orders from de- Thus, against Lords. retaliate Vice fendant ordered victim taken from the thorough from our review record apartment, and that the defendant and briefs, the prose- we conclude that Phillips picked each three gang members pursue cution did not inconsistent theories take apartment. the victim from the separate these trials. apparent As should be from these brief summaries, prosecution pursue did not By stating, to imply so do not intend we present inconsistent theories or inconsis- separate at these evidence trials proof tent at these As separate trials. discrepancies It identical. exist. not— out, points focus each trial was But discrepancies these were isolated upon culpability, each defendant’s but the immaterial when taken context and cer- theory remained Phillips’s the same. At tainly give do not rise a Due Process trial, Phillips’s the prosecution focused on violation. murder, culpability kidnapping for the and matter, discrepancies As are practical proof Phillips’s and much this of related to commonly indi- unavoidable when several position Village as coordinator Hurt prosecuted in separate viduals are trials Gangster Disciples. at Phil- Witnesses Indeed, for such trials the same offense. lips’s Phillips’s trial were familiar with present “the truth is rank, challenges because coordinator but had never seen the and ritu- by gang clouded secret elaborate evening April defendant of before als; of and code names the use two three 1997. The defendant makes much of the members; for and gang the commission prosecution Phillips’s fact that the at Phillips, Phillips, groups.” crimes argued that as coordinator Fur- (Tenn.Crim.App.2001). Gangster Hurt Village Disciples, an thermore, reason as the Alabama Court Crimi- participating additional for noted, murder, of criminal kidnapping stating: Appeals victim’s and nal “evidence conspiracies hardly Phillips’s provided testimony ever from then comes minis- trial and State, ters and civic Anderson v. leaders.” consistent initial with his statement to the 354 So.2d 1159 (Ala.Cr.App.1977). police, prosecution’s proof at sepa- point. This case well-illustrates rate trials would have been inconsistent. James and were Shipp gang themselves By choosing Shipp not to call during the members, Shipp accomplice and was an trial, guilt phase Phillips’s offering and these Court of Ap- crimes. The Criminal testimony point narrow at the peals has described James as “a rather prosecution sentencing phase, the avoided who prone inarticulate witness even potential inconsistencies. Jackson, cryptic responses.” State v. 52 Furthermore, unlike the Court of Criminal (Tenn.Crim.App.2001). Appeals, we not find the prosecution’s do This description entirely accurate. question failure to James about the defen- appeared James to contradict himself dant’s rank at the defendant’s trial unusu- while testifying at both the defendant’s al. James testified had never seen the trial, trial and but Phillips’s prosecu- 30, 1997, April defendant prior to and had encourage tion did him not to do so. Village Gang- been a member of East Rather, suggests prosecu- the record Disciples only ster three or four months tors were surprised sometimes themselves testimony, time. pros- Given or confused At his answers. the defen- ecution had no reason to believe James trial, dant’s was not James asked and did anything knew about the defendant’s rank. to the ascribe a rank defendant but Moreover, James illustrated his lack Phillips indicated and Shipp followed uncertainty knowledge or on this issue the defendant’s directions without hesi- Phillips’s trial where James testified incon- trial, tation. At Phillips’s James first said sistently questioned when about the rela- Phillips outranked the defendant but later Phillips tive and the ranks of defendant. testified the not Phillips, had short, prosecution presented been “calling apartment. the shots” prosecutors not adopt theory separate did this testi- consistent at these trials. mony argue Phillips prosecution sought outranked the The at each trial Instead, defendant. the prosecution’s evi- criminal each respon- establish defendant’s dence, argument, theory upon focused sibility degree murder and espe- first Phillips’s own statements actions and cially aggravated kidnapping by showing upon Phillips’s authority rank and as coor- that each held a leadership posi- Village dinator of Gangster the Hurt Disci- tion in either gang, citywide chief ples. coordinator, security Village or Hurt that, role, leadership acting in his each troubled,

We also are not as was the defendant ordered otherwise directed Appeals, by prosecu- Court of Criminal gang kidnap and members to murder Ver- Shipp tion’s decision to call as a witness at Accordingly, agree non Green. we do not guilt phase the of the defendant’s trial Appeals’s with the of Criminal con- Court offering testimony only while at the presented clusion that prosecution the fac- sentencing phase Phillips’s of trial. As tually theories and inconsistent evidence previously explained, Shipp initially gave a Phillips’s separate the statement defendant’s and tri- police implicating Phillips to the als. the and Reversal of defendant’s death attributing Phillips many of the basis, therefore, sentence on actions h'e attributed to the defendant at this of trial. Had warranted. sentence Shipp defendant’s been The defendant’s prosecution called as a death is witness reinstated.

499 Ring Challenge Apprendi a doubt. & beyond reasonable cumstances VIII. of the death jury imposition based Having concluded that defendant’s aggravating circum- penalty upon two and sen degree of first murder conviction hei- especially “the murder was stances: reinstated, we of death should be tence atrocious, nous, in in involved or cruel that consider the defendant’s contention next beyond physical or serious abuse torture as sentence should be vacated that his and “the necessary produce death” that aggravating unconstitutional because committed, solic- knowingly murder charged in the in circumstances were not directed, ited, or aided As claim the support dictment. this had a role substantial while upon Apprendi v. New defendant relies ... committing attempting to commit 466, 2348, 120 147 Jersey, 530 U.S. S.Ct. § 39- Tenn.Code Ann. kidnapping.” See (2000) Arizona, Ring L.Ed.2d 435 v. (7) (1997). 13-204(9(6), 584, 2428, 122 L.Ed.2d 536 U.S. S.Ct. 153 that contends (2002). merit. This issue is without 556 support is not evidence sufficient (Tenn. Berry, v. 141 S.W.3d 549 See State (i)(5) aggravating cir jury’s finding of the 2004).14 aggravating cir cumstance because may vicariously applied not be cumstance Mandatory IX. Review where, here, degree the first murder Annotated 39- Tennessee Code section upon responsi conviction is based criminal 13-206(c)(l) (1997), mandates determining In the evi bility. whether (1) Court determine: whether the sentence a supports jury’s finding a of statu dence arbitrary imposed of death circumstance, proper tory aggravating (2) fashion; supports whether the evidence whether, for an inquiry appellate court is jury’s statutory finding aggravating of light reviewing the evidence in the after circumstances; (3) whether the evidence state, a trier most favorable to the rational jury’s finding supports aggrava- fact could found existence have outweigh ting any mitigat- circumstances beyond aggravating circumstance (4) circumstances; ing whether Sutiles, v. 30 reasonable doubt. State dispro- sentence death is excessive or (Tenn.2000). portionate imposed penalty in simi- State, v. Owens cases, considering lar both the nature perm. denied (Tenn.Crim.App.1999), app. the crime and the defendant. (Tenn.2000), appellate the intermediate thorough A of the reveals application review record approved vicarious (i)(5) support that the evidence is sufficient to circumstance. The de- aggravating Porterfield, cir- jury’s finding aggravating Sidney fendant Owens hired challenged upon Apprendi in the 14. The defendant also the consec- in the trial court or ag- imposed especially sentences for his Appeals utive support of this Court Criminal gravated kidnapping claim, conviction. In this argue courts nor did he in the lower Court, supple- defendant filed letter of jury had to make the sen- consecutive upon Blakely authority relying mental tencing findings. We note that courts several -, Washington, 542 U.S. 124 S.Ct. rejected have the defendant’s contention and (2004), support L.Ed.2d his chal- Blakely Apprendi apply held that do not lenge. argues pursuant to The defendant impose decision to consecutive sentences. Blakely Apprendi, he was entitled to People Sykes, Cal.App.4th See supporting the trial on factors consecutive (2 Dist.2004) (citing Cal.Rptr.3d sentencing. respond. State did not cases). rely record reflects that the defendant did not co-defendant, (i)(5) her cumstances, to kill her husband. aggravator, such as the bludgeoned (i)(3)15 Porterfield Owens’s husband statutory language the ag- the to death awith tire iron. Owens did not gravating circumstance” upon focuses the and, participate the bludgeoning, defendant’s actions intent rather than here, present was not when the assault upon the actual circumstances surrounding occurred; (i)(5) yet jury applied the killing. Although Id. formally we aggravating support circumstance to impo Owens, adopted analysis we ex- sition of the death penalty. argued pressly Owens declined in to adopt Johnson in applying (i)(5) erred the aggra holding of respect Owens with to the vating actually circumstance because she aggravating circumstance.16 ap- Vicarious participated (i)(5) had not in the plication murderous as aggravating circum- sault. In rejecting assertion, this squarely stance now is presented. There- fore, Court of Criminal Appeals emphasized we take opportunity agree this (i)(5) statutory language of the with the Court of Appeals Criminal aggravating circumstance adopt focuses on the holding of Owens. We hold that (i)(5) nature and circumstances of the murder aggravating may circumstance be rather than the conduct or intent of vicariously applied because the statutory defendant. The appellate intermediate language focuses upon the nature and cir- opined court that this Court had implicitly crime, cumstances of the than rather approved application actions, intent, vicarious ag and conduct of the defen- gravating circumstance in another case. dant. holding This ground. breaks no new Owens, Carter, at 761 (citing S.W.3d State v. See State v. S.W.2d Blanton, (Tenn. (Tenn.1999) (i)(5) 279-80 (noting that the aggrava- 1998) (upholding jury’s finding of the ting circumstance upon focuses the “cir- (i)(5) aggravating to support circumstance killing” cumstances of the stating death premeditated sentence on the mur “whether the defendant intended the vic- der despite (i)(5)”). convictions the lack of evidence tim’s suffering is irrelevant under indicating Thus, that the defendant inflicted the the defendant’s assertion is without blows)). Thus, fatal Owens held merit. (i)(5) aggravating circumstance Furthermore, the evidence is suf can applied be to support penal the death ficient to support jury’s finding ty defendant, who, Owens, for a like did (i)(5) aggravating circumstance. Green

not inflict the fatal blows. apartment was “arrested” and held at an

Applying analysis members, the Court of where numerous armed gang Owens, Criminal Appeals applied this led beat and threatened (i)(3) Court has held that the aggravating Testimony him. indicated Green may circumstance vicariously relief, be ap asked his for release and captors plied. Johnson v. State 38 appeared very frightened, that he that he (Tenn.2001). holding, so empha we defecated during the ordeal and was ridi that, sized “unlike aggravating so, other cir- doing begged culed for and that he Johnson, statutory ("While language provides: 15. The 16. "[t]he 38 S.W.3d at 63 n. 17 we knowingly great formally adopt created a risk of the method used the Owens (2) issue, persons, death to two or more other analyzing than Court in we this do not nec- murdered, during the victim essarily adopt his act of mur- the conclusions of that court in 2—203(i)(3)(1982 § applying der." Tenn.Code Ann. analysis any aggravating cir- 39— Supp.1986). (i)(3) & aggravator.”) cumstance other than the This committing kidnapping. in him he Green’s captors go, promising to let that is merit. issue without report not their crimes. Witnesses would that Green became even more indicated Furthermore, supports the evidence park frightened upon arriving at where aggravating that the jury’s determination There, captors he murdered. Green’s was mitigating outweighed the circumstances him on the physically dropped carried and Addi- a reasonable doubt. beyond factors Before hilltop where was murdered. no indication that tionally, there is head, imposed in an arbi- in the was repeatedly was shot sentence of death Green trary fashion. begged for his life. Green contin- Green cry for his out beg ued to life and after must next a com conduct We in the and the being shot buttocks back. Ad review. parative proportionality gunshot Deering opined that Dr. issue, the dressing Court of Criminal

wounds to Green’s buttocks would have disprop Appeals the death sentence held Deering very painful. Dr. also been Statutory disagree. We ortionate.17 opined gunshot first wound to is an comparative review proportionality head would have been fatal. In Green’s arbitrary against safeguard additional short, clearly the evidence is sufficient to capricious death sentences. State jury’s that “the mur- support finding (Tenn.1997); Bland, 651, 663 958 S.W.2d heinous, atrocious, especially 39-13-206(c)(l)(D). der or § Ann. Tenn.Code in that in torture or is performing cruel involved serious in this review Our function a defen beyond proof to not physical necessary abuse search sym is perfectly dant’s death sentence produce is death.” This issue without all in penalty imposed metrical merit. cases, degree other murder but first identify invalidate aberrant Also without is the merit defen Godsey, 60 State v. death sentence. (i)(7) felony dant’s claim murder Bland, (Tenn.2001); S.W.3d may not aggravating ap circumstance be conducting compara S.W.2d at 665. plied to impose penalty upon death review, “super not tive we do act as did kill personally defendant who jury’s jury,” second-guess nor do we § victim. See Ann. 39-13- Tenn.Code Bland, A at 668. decision. 204(i)(7). This aggravating circumstance aberrant, dis is and thus death sentence upon that “the may applied proof be mur case, taken as proportionate, “[i]f committed, solicited, knowingly der was whole, lacking in plainly circumstances directed, or aided while in in those similar eases consistent with the defendant a substantial role im penalty been which death has committing attempting to commit ... Bland, 958 S.W.2d at 665. posed.” (7). (5), See kidnapping.” proof id. clearly sup this record is sufficient to ... “Selecting similar cases port jury’s finding that Green’s murder an exact Id. comparison is not science.” knowingly pool directed included of similar 667. “Not cases degree cases first murder the defendant had a substantial role are while being for a Appeals reversed and remanded Apparently, the Court Criminal ital case is 17. See, judicial hearing. issue sentencing addressed this in the interest new trial or a new circumstances, economy. appel Bondurant, Under most e.g., State v. conducting a courts should refrain from Carter, late (Tenn. 1999); at 153. comparative proportionality cap if review the 502 (1)

which the State did not seek the death prior the defendant’s criminal record or penalty degree or first (2) murder cases prior criminal activity; the defendant’s which sentence other than death (3) race, age, gender; and the defendant’s agreed upon part plea of a bargaining mental, condition; emotional physical agreement.” Godsey, 60 S.W.3d at 784. (4) the defendant’s involvement or role in Comparative proportionality review is not (5) murder; coopera- the defendant’s disproportionate search for or aberrant (6) authorities; tion with the defendant’s life cases. Id. As -the United States Su- (7) remorse; the defendant’s knowledge of preme explained: Court (8) helplessness victim(s); and the de-

Since the proportionality requirement on capacity fendant’s for rehabilitation. Id. review prevent is intended to caprice in factors, Mindful of these we have com the decision to inflict penal- the [death] pared the defendant’s sentence to the sen ty, jury isolated decision of a tence imposed in similar cases the rele mercy afford does not render unconsti- vant pool and have determined that tutional death imposed sentences on de- imposed death sentence upon the defen fendants who were sentenced under dant is not disproportionate. As the State system that does not create a substantial out, points the death penalty has been risk of caprice. arbitrariness or imposed upheld and in at least five other Gregg Georgia, 153, 203, v. 428 U.S. 96 execution-style degree first murder cases. 2909, (1976); S.Ct. 49 Godsey, L.Ed.2d 859 Reid, 247, See State v. 91 S.W.3d 287 60 S.W.3d 784-85. (Tenn.2002); Austin, State v. 87 S.W.3d cases, identifying After similar 447, (Tenn.2002); Howell, 465 State v. 868 carefully this Court examines the facts of 238, (Tenn.1993); S.W.2d 262 State v. Van crimes, the characteristics of the de Tran, 465, (Tenn.1993); 864 S.W.2d 482 fendants, aggravating and the mitigat Harris, (Tenn. 54, State v. 839 S.W.2d 77 ing factors in appeal the case on and the 1992). Furthermore, penalty the death similar Godsey, cases. 782; 60 S.W.3d at imposed has been in several cases in which Bland, 958 S.W.2d at 664. ag While the found the aggravating same two gravating and mitigating circumstances upon by circumstances as those relied important are comparison purposes, jury to support imposition of the death this Court considers many in variables penalty in the defendant’s case. See State (1) (2) cluding: death; the means of Morris, 788, 24 (Tenn.2000); 791 S.W.3d violent, (e.g., torturous, manner death Mann, (Tenn. 503, State v. 959 504 S.W.2d (3) etc.); (4) killing; motivation for the 1997); Hall, State v. 958 S.W.2d 683 (5) death; place similarity (Tenn.1997); Barber, State v. 753 S.W.2d including victims’ circumstances age, phys (Tenn.1988); 659 Zagorski, State v. 701 conditions, ical and mental and the victims’ (Tenn.1985). 808, 811 Perhaps S.W.2d (6) during treatment killing; the ab however, significantly, most pen the death (7) sence or presence premeditation; alty has been imposed upheld in sever the absence or presence provocation; (8) al other cases which the like presence justification; the absence or (9) case, the defendant in this present was not injury to and effects on non- Austin, Bland, decedent at the scene of the victims. 958 murder. 87 S.W.2d at cases). addition, 465-66; Stevens, (citing State v. several comparison (Tenn.2002); criteria are relevant to a of the S.W.3d defendants, Hutchison, (Tenn. characteristics of including: Owens, lack of definitive evidence18 1994); iron. The State v. Porterfield gang told (Tenn.1988). other suggesting does to commit the murder members how distin- Appeals The Court of Criminal compara- not the death sentence render eases, that this case guished noting these a although is tively this disproportionate, not a “murder for hire.” does involve capi- mitigation in a point argue fair to distinction, it is clearly this is a not While sentencing proceeding. tal cases a difference that renders these whol- this differences exist between Although comparative proportionali- irrelevant ly for above, we similar cases listed case and the merely Motive is one factor to ty review. that previously comparative indicated have Proof that the defendant be considered. not a review “is search proportionality authority this murder had direct death proof a defendant’s sentence that to the providing without remuneration Bland, symmetrical.” perfectly culpabil- perpetrators mitigate does Indeed, 665. “no two defen- S.W.2d at ity. precisely no two crimes are dants and appellate court The intermediate also Bane, 411, 429 alike.” State case on that distinguished this the basis (Tenn.2001). conclude We are unable to there was no evidence the murder was lacking “plainly that case is in circum- this carefully planned. disagree. We rec- those in similar stances consistent with ord establishes that the victim was held at penalty been cases in which death has hours, apartment during several imposed.” time, gang this the defendant and other also Appeals Court Criminal met in the kitchen leaders several times finding disproportionality based its spoke and also several times on tele- justi rational basis its conclusion no At phone discuss the victim’s fate. upon imposing fied death sentence direction, Phillips defendant’s and Wilkins imprison sentence of life defendant gang hand-selected members to take the possibility parole upon ment without apartment. victim from the This circum- court Phillips. holding, In so lower stantial evidence indicates that the victim’s relied this Court’s decision State upon by gang was planned murder several mem- (Tenn. Cauthern, 726, 967 bers, including the defendant. 1998), disparate proposition for the influencing Another factor the Court of render sentences between co-defendants find Appeals’s Criminal decision to un disproportionate capital sentence disproportionate sentence lack of dispa less is a rational basis there indicating out, the defendant instruct- evidence points rate As the State sentences. to commit the gang ed other members how at issue in Cauth- disparate sentences this Again, disagree initially we lack same imposed murder. em were unique. example, appellate For there jury. of evidence is The intermediate has suggest no evidence also failed to note that Court Owens death emphasized that a defendant instructed Porterfield reiterated “merely not disproportionate her with tire sentence is bludgeon husband death all testified he heard told oth- its own. James 18. Evidence indicates defendant gang members “fishing.” twice tell other gang to take victim er members language what do.” gang "Ya’ll know The record reflects because the circumstances of the offense circumstances outweighed mitigating fac- are similar to those of another beyond offense for tors a reasonable doubt. We have which a defendant has received a life sen- also considered the defendant’s remaining Austin, tence.” 465; assignments 87 S.W.3d at State v. of error and conclude that Hall, (Tenn.1998). none warrant relief. With respect to is- Furthermore, this Court sues not specifically herein, has often addressed we stressed that a affirm jury’s the decision isolated decision to of the Court of Crimi- afford nal mercy Appeals, does not Judge render a death authored sen- Joe G. disproportionate, Riley, joined tence by Judge Hayes unless the death David aberrant, i.e., Judge case, sentence is John Everett Williams. The taken whole, as a defendant’s plainly convictions and lacking in circum- sentences are affirmed. The stances sentence of death shall consistent with other be cases in carried provided by out as which the law on the 11th penalty death has been imposed. day May As unless otherwise previously explained, ordered the death sen- by this Court or proper authority. other tence this case is not aberrant. It appearing that is indi- The defendant’s and Phillips’s cases are gent, appeal costs of this are taxed to the similar, extremely as the State concedes. State of Tennessee. Nonetheless, significant differences comparative proportionality review exist. BIRCH, JR., ADOLPHO A. filed a

Most importantly, Phillips’s jury found concurring-dissenting opinion. only one aggravating circumstance —that the murder was committed in the course APPENDIX

a kidnapping. § Tenn.Code Ann. 39-13- 206(i)(7) (1997). Furthermore, although (Excerpts of the Decision of the Phillips was the Hurt Village Gangster Court of Appeals) Criminal Disciples coordinator, IN THE COURT OF CRIMINAL ranked third in citywide hierarchy APPEALS OF TENNESSEE Gangster Disciples and bears more of the responsibility for Green’s murder. AT JACKSON reasons,

For all these we conclude defendant’s sentence of death is not dis- 6,May 2003 Session proportionate to the imposed sentence cases, similar considering both the circum- STATE OF TENNESSEE v. stances of the crime and the defendant. GREGORY ROBINSON

X. Conclusion Appeal Direct from the Criminal Court Shelby County, 97-13179-80; No. We have considered the entire record Beasley, Jr., Judge. James C. this case and find that the sentence of death imposed was not in any arbitrary No. W2001-01299-CCA-R3-DD— fashion, that the sentence of death is not August 13, Filed excessive or disproportionate, and that the supports jury’s evidence finding of the J., Joe G. Riley, opinion delivered the statutory aggravating Hayes court, circumstance and the in which David G. jury’s finding that these aggravating JJ., joined. Williams, John EveRett II. BATSON REJECTION OF

OPINION CHALLENGE [Deleted: STATE’S PROOF- defendant contends PHASE] GUILT timely conclusory rejection of court’s striking challenge Batson the state’s [Deleted: DEFENSE PROOF- of the ve- African-American members five PHASE] GUILT nue, find- any contemporaneous without the state to requiring ings and without [Deleted: JURY’S VERDICT- a remand proffer explanation, an warrants PHASE]

GUILT a new hearing to determine whether granted.

trial should be [Deleted: PROOF- STATE’S dire, jurors were ex- During voir seven PHASE] PENALTY perempto- cused the state a result dismissal, After ry challenges. their [Deleted: PROOF- DEFENSE objection an and noted that defense raised PHASE] PENALTY jurors African-Ameri- five of these were there no can. trial court found The [Deleted: JURY’S VERDICT- challenges basis to declare PHASE] PENALTY upon were race. based challenges peremptory A use of ANALYSIS OF ISSUES state’s of intentionally jurors the de exclude PRESENTED —GUILT race the defendant’s fendant’s violates PHASE Ken right equal protection. Batson v. AND 79, 89, 1712, I. DENIAL OF INDIVIDUAL tucky, SE- 106 90 476 U.S. S.Ct. (1986). QUESTERED upheld this DIRE OF THE 69 The Court VOIR L.Ed.2d Ohio, v. but eliminated principle in Powers VENIRE requirement the defendant The claims that the trial court defendant race. potential juror share same individual, denying his for erred motion 400, 415, 1364, 111 113 499 S.Ct. U.S. jury panel. sequestered voir dire of the (1991). seeking A defendant L.Ed.2d 411 prevailing practice voir dire is ex first make a a Batson claim must raise Austin, jurors collectively. amine v. State showing purposeful discrim prima of facie 447, (Tenn.2002), app. 87 S.W.3d at 471 juror. Bat- prospective ination against — U.S.-(2003). denied, cert. There son, 93-94, 106 1712. S.Ct. 476 U.S. cases requirement capital is no must con establish “that a qualification capital death be of all the relevant circumstances sideration individual, sequestered conducted voir purposeful raises an inference of discrimi (citing Id. v. Brown Lime Stephenson, dire. State v. 878 nation.” Woodson Porter (Tenn.1996). 896, (Tenn.1994)). Co., Moreover, 903 530, stone 916 S.W.2d 540 prima showing purposeful If rule, the general as a decision allow facie established, is discrimination burden jurors is prospective individual voir dire to the to establish a neu then shifts state of the trial court. within the discretion Batson, challenge. tral basis at 540. The de Stephenson, 878 S.W.2d 97, 106 S.Ct. 1712. U.S. the trial court fendant has failed show rea- denying give specific its motion abused discretion The trial court must findings factual individual, dire. sons for each its sequestered voir ruling observing on peremptory challenges. testify, Wood- the demeanor of the son, jurors, watching taking at 906. notes of This should in- on, I going what was was not convinced objecting party clude the reason has at that that there was a systematic has not time prima showing established a facie exclusion of from African-Americans purposeful discrimination. The trial it; jury, and that was the basis for findings court’s to be great are accorded numbers, strictly but it was based weight and will not be set aside unless on the overall circumstances of what was Id.; they clearly are erroneous. see also occurring in courtroom. Cockrell, 322, Miller-El v. U.S. (2003) 1029,

S.Ct. (noting 154 L.Ed.2d 931 cannot We conclude the trial court’s deference necessary clearly to the trial findings were erroneous. See State Keen, relating to credibility). app. 31 S.W.3d at 227-29 (Tenn.2000) (holding showing there was no The trial court found that the defendant of purposeful four discrimination where had not prima showing made a facie jurors peremptori African-American were determining discrimination. In whether denied, state), ly challenged by cert. prima has established fa- 532 U.S. 121 S.Ct. 149 L.Ed.2d case, cie may the trial court consider (2001). light of the trial court’s whether similarly situated members of an findings, we conclude this issue is without other jury. race were seated on the merit. (Tenn.) Stout, (cita denied, omitted), 998, tions cert. 534 U.S. III. SUFFICIENCY OF 471, (2001). 122 S.Ct. 151 L.Ed.2d 386 THE EVIDENCE The trial may also consider the de The defendant contends the evidence attorney meanor of who exercised the support was insufficient to his convictions. challenge, which is often the best evidence We conclude the evidence was sufficient of credibility explanations. of proffered support both convictions. (citations omitted). Id. at 711-12 case, Legal In the instant the record A. reveals Standard that the jury final consisted of six African- Tennessee, weight given great is Americans and six Caucasians. At by jury the result reached a criminal trial, motion for new the court commented A jury trial. accredits the state’s verdict only that the advanced reason the de- witnesses and all conflicts in favor resolves fense to prima establish a case was facie Bigbee, of v. the state. State 885 S.W.2d against the number of strikes used Afri- (Tenn.1994). 797, appeal, 803 On the state can-Americans. court conceded While strongest legitimate is view entitled to the prima may that a case be established facie all reasonable infer evidence alone, numbers court further be drawn may ences which therefrom. explained that was not done the instant Id.; 832, Cabbage, v. 571 835 State S.W.2d Indeed, case. the trial court stated: (Tenn.1978). Moreover, guilty a verdict

... you’re standing if all up saying of innocence presumption removes the alone, ... my is that’s prima numbers enjoyed which at trial and appellant case, I I still—and know what the guilt raises a of presumption appeal. facie (Tenn. I’m says Grace, 474, case law still of the opin- State v. S.W.2d 476 493 —but 1973). observations, ion of my that at the time has the of appellant The burden my jurors guilt. of Id. being present, listening overcoming presumption to the

507 Thus, degree murder premeditated first sufficiency is of evidence Where 39-13-202(a)(l). § See id. was committed. challenged, for an question the relevant sufficiency only relating to of The issue whether, viewing appellate court is after is the defendant was whether evidence most light the evidence in favorable of criminally for the conduct responsible of fact prosecution, rational trier or consum- actually who committed those of could have found essential elements § id. 39-11- mated these offenses. See beyond the crime or crimes reasonable 402(2). 18(e); v. R.App. P. Jackson doubt. Tenn. 2781, 307, 319, begin analysis Virginia, 443 U.S. S.Ct. our detailed We Abrams, (1979); by reiterating in this case v. evidence 61 L.Ed.2d 560 State (Tenn.1996). examining the evidence 399, our standard most to the state includes light favorable weight credibility of the witnesses’ legitimate inferences “all reasonable testimony are matters entrusted exclusive v. may drawn therefrom.” State be fact. v. ly to the as the triers of State (Tenn.2000) (cit Smith, 24 S.W.3d (Tenn.1984); Sheffield, 676 S.W.2d 835). Thus, we ing Cabbage, 571 S.W.2d at (Tenn. Brewer, jurors may evaluate the evi recognize that Crim.App.1996). experiences light of their common dence theory at trial was that the state’s common Lia in life and their sense. See responsible for actions defendant was State, 199 Tenn. bas Gangster Disciples of his based fellow (1956). 856, 858-59 responsibility. upon theory criminal Viewing light in a most the evidence It that the undisputed is defendant state, evidence estab- favorable present ap- at the As murder scene. high ranking was a lished bar, the case at plicable person portrayed He was Gangster Disciple. criminally responsible conduct security city for the entire chief if, “[a]cting promote another with intent to Memphis. his arrival Black’s Upon offense, or assist the commission of the Gangster he ordered fellow apartment, proceeds to benefit in the or results of the for “GD Disciples “snag” to the victim offense, solicits, directs, aids, or person Disciples, Gangster arrest.” Several attempts aid person to another to commit fashion, be- parade-like brought victim § the offense.” Ann. 39-11- TenmCode initi- The defendant fore defendant. (1997). 402(2) by him beating hitting of the victim ated times; subsequently numerous others Sufficiency Analysis B. of Overall de- joined beating. in the The defendant the Evidence victim him loca- manded that the tell case, it is that dispute without Reluctantly, Lords. tion of Vice unlawfully con- the victim was removed or The revealed a location. defendant victim substantially with fined so as to interfere Gangster to Disciples then ordered some it liberty; accomplished his was with and return with their scout location deadly weapon; and the victim suffered they The findings, which did. evidence Thus, injury. an bodily especially serious that was further indicated aggravated kidnapping was committed. learning the Vice Lords angry upon (4). 39-13-302(a), -305(a)(1), It §§ id. See location not at the described were defendant, Phillips, dispute is further that the victim Prentiss without The victim. part each of a intentionally premeditation. Kevin were was killed with Wilkins Kaos, telephone obeyed conversation with who was rank superior should be order to Thus, severe superior jury in rank to the avoid sanctions. defendant. Imme- rationally could Wilkins conclude carried diately conversation, after this the defen- out the order of the defendant. dant to Phillips directed each Wilkins pick three men and take the “fish- victim a rift What started out as between a stated, ing.” He further “Y’all know what Lord a Gangster Disciple Vice culmi- Thus, it do.” was for the reasonable in the of a gathering throng nated Phillips, assume and Gangster Disciples, heavily armed and directive, Wilkins were all aware of bent on retaliation. The Kaos’s retaliation effort had as one of and the its leaders the defendant. Phillips defendant ordered that lower-ranking The fol- Gangster Disciples responsible carrying Wilkins be for only orders, lowed the defendant’s but out. Although Shipp directive. example of violence. thought the order take the victim “fish- ing” only physical abuse, Shipp meant was Accordingly, the is sufficient evidence part not a of the conversation with Kaos. support respon- conviction criminal premeditated first sibility degree mur- The jury could further infer that Wil- der. kins, a part phone who had been to the As conviction for es- conversation and knew the victim was to defendant’s pecially aggravated kidnapping, killed, we con- be was ordered the defendant to Viewing clude evidence is sufficient. carry out directive. One of first light the evidence most favorable to things park said to victim at the state, the defendant ordered the victim Wilkins, from ranking Gang- who was the brought apartment be to the where Disciple park ster at the and who asked Gangster Disciples weap- numerous the victim if he had last words. severely ons. defendant beat the vic- accomplished murder was then under Wil- stick; tim his fist and a with broom others kins’ direction. him as beat well. The ordered premedi- As it charge relates be taken nu- upstairs Green where murder, degree tated first the state gang merous threatened him members required beyond to establish a reasonable weapons pointed at his head. The doubt that defendant in giving these defendant ordered be taken Green “fish- specific orders had the intent ing” Gangster Disciples, and told his fellow See victim be Ann. murdered. Tenn.Code Wall know what to do.” Wilkins followed 39-11-402(2). § Viewing the evidence a orders, took those the victim to Bellevue light state, most to the we con- favorable Park, supervised and the murder. This clude a trier of fact find rational could support is to evidence more than sufficient got defendant Wilkins directive and especially the defendant’s conviction killed; from the victim Kaos that was to be aggravated kidnapping. (and the defendant ordered Phil- Wilkins Accomplice directive; lips) to and C. Corroboration carry out the Wil- kins, per- subordinate that argues The defendant the evidence sonally supervised jury the murder. The it consisted of un- insufficient because rationally could from further conclude testimony. accomplice corroborated Addi- Disciples Gangster evidence that the the trial court tionally, asserts that (a) organization according an structured to jury to instruct the that accom- failed given testimony by rank and orders those of corroborated by plice that cannot be

509 (b) 30(b); Lynn, v. R.Crim. P. State accomplice; from another See Tenn. evidence (Tenn.1996). 892, 898-99 924 non-accomplice S.W.2d only a can corroborate However, alleged jury (c) omissions testimony an Jarvis accomplice; judge’s to trial charge must be called as matter of Shipp accomplice was an regarded or be as waived. State attention (d) law; jury and must decide whether (Tenn. 76, v. 720 84-85 Haynes, S.W.2d Washington Christopher James Shaun an errone In contrast to Crim.App.1986). accomplices. were give to ous instruction or the failure 1. instruction, Waiver counsel can requested defense objection an an omitted not sit on The state contends charge ground it as in the allege failing has waived these issues sub Id.; Stigall, new motion for trial. accomplice on proposed mit instructions 3340, 02C01-9610-CR-00371, 1998 No. WL Anderson, testimony. See State 985 *1, 27, at Tenn.Crim.App. LEXIS (hold 9, (Tenn.Crim.App.1997) S.W.2d 7, 1998, *4 (Tenn.Crim.App. Jan. Jack ing request accomplice the failure in son). issue); Foster, struction waives State v. given by trial jury instruction 846, The (Tenn.Crim.App. 848-49 has court was accurate. 1988) (noting responsibility the defendant’s error for the failure to alleged waived instruction; request failure constitutes jury specifically accomplice charge waiver). testimony by be corroborated cannot instructing jury accom- regarding Further, testimony accomplices. of other plice testimony, the trial court utilized the no error. See Tenn. plain we discern pattern jury instruction. T.P.I.— See 52(b). R.Crim. P. (4th ed.1995). CRIM. 42.09 The trial court jury they further instructed the were 2. Standard Review witness, to determine whether Jarvis accomplice person An is a who “know Shipp, alleged an accomplice and with a in ingly, voluntarily common pattern charge crime. The not con- does tent with the offender principal unites a specific provision accomplice tain Al the commission of a crime.” State v. testimony cannot corroborated be other len, (Tenn.Crim.App. accomplice testimony. 1997). testimony an Uncorroborated reflects the record ad- support will not a con accomplice-witness the parties vised that it would be instruct- Bane, viction. State v. ing accomplice testimony. There were denied, (Tenn.2001), cert. 534 U.S. instructing special requests. no After (2002). 151 L.Ed.2d 888 S.Ct. deliberations, prior jury there Corroborating “en evidence is evidence objections special requests. no no were tirely accomplice’s tes independent of Rule Procedure Tennessee of Criminal which, itself, leads to the timony, taken 30(b) to provides parties are that be only not that crime has been inference object opportunity an to to the con- given that defendant was committed but also jury tent of instructions or the failure to Bigbee, in it.” implicated however, instructions; omitted). requested (citations give independent The 803 objections testimony failure to instanc- make these must include some corroborative de being does them from used fact circumstance which affects the prohibit es or 76 identity. Boxley, State v. in the motion new trial. fendant’s grounds as Washington (Tenn.Crim.App.2001). S.W.3d 4. Shaun State, Bethany v. this court stated: The defendant Shaun contends Wash- question who determines whether ington’s identification should be considered person an accomplice upon is depends accomplice testimony. Washington did not each facts of case. the facts testify When as a witness in this matter. Ser- participation of a in a witness’s crime geant William Ashton testified that Chris- undisputed, question are clear and it ais James topher identified the defendant in a of law for the court to photo line-up decide. When as the person whom James such are in dispute susceptible facts or referred to as “Shaun.” Defense counsel of an may inference that a witness or Sergeant asked on Ashton cross-examina- may an accomplice, anyone not be then it be- tion if else identified question jury Ashton, comes a of fact for photo line-up. Sergeant in the decide. response question, stated that Washington had identified the defendant 903 (Tenn.Crim.App.1978); S.W.2d being present apartment at the on the Lawson, see State v. night There murder. was no re- (Tenn.Crim.App.1990). quest Washington included in be accomplice instruction. This issue is Christopher 3. James waived. The evidence established that Christo- pher a relatively James was member new Shipp] [Deleted: 5. Jarvis Disciples of the Gangster and had no D. Identification Evidence “rank” group. within the The evidence that, further challenge sufficiency established at the “aid and his Within evidence, meeting apartment, assist” held at challenges the defendant (1) punished following James was to take fading identifications: the identifica- part in fight the earlier that initiated the made Christopher using tion James (2) chain culminating of events in the murder. photograph array; identification (3) Although present was when Vernon Shaun Washington; made the testi- (4) brought Green apartment, mony Shipp; into the of Jarvis the testimo- any- there is no did ny exception evidence James of Nichole Black. theWith thing beating for challenge Shipp’s other than sustain a his testimony, six, failure to gang assist fellow earli- issues are members these discussed issue day. proof er that Regarding Shipp, fails to establish infra. accomplice testimony

that James an the mur- contends his is uncorrob- However, kidnapping der and Green.1 Vernon orated. we have concluded that Thus, argument sufficiently the defendant’s that the evidence corroborated Moreover, have an in- Shipp’s testimony. should submitted con- testimony struction to the as to whether Chris- Shipp’s flicts between topher was an without accomplice prior police thoroughly James statement were merit. addressed cross-examination. accomplice kidnapping 1. We note in the case of co-defendant to the murder of Jackson, panel Jackson, Antonio of this court con- State v. Green. presence cluded that evidence of James's (Tenn.Crim.App.2001). apartment implicate did not him as an

5H Testimony We dis- Christopher incidental to murder. E. of James was agree. testimony The of alleges defendant kidnapping separate A conviction thought Christopher James as to what he kidnap may process violate due when happen to to the victim going was when to the ac “essentially incidental” ping is apartment “pure, left was baseless felony conviction and companying speculation” and be from should excluded itself, “significant enough, appeal. During di- consideration this prosecution.” State independent warrant James, following rect examination (Tenn. 299, Anthony, S.W.2d 306 v. 817 colloquy occurred: 1991). issue, examining we must Q: you say? him What did hear whether the movement or first determine know A: “Y’all what to do.” beyond that employed confinement was necessary to was commit accom

which Dixon, felony. State v. 957 panying Now, Q: they was this after had beaten (Tenn.1997). so, 532, If we S.W.2d you up? the addition must next determine whether Yes, A: ma’am. “(1) prevent confinement: al movement or Q: you you did think —what did What (2) help; summoning victim from ed the feel time on? going at this detection; lessened defendant’s risk really say. A: I couldn’t (3) or significant danger in created Q: you did think was going What risk harm.” Id. creased the victim’s happen to Vernon? dual con- We conclude defendant’s A: They going to kill him. aggravated kidnap- for especially victions premeditated degree murder ping and first objection No was made the defen The process. do not violate due movement By failing dant. make a contemporane beyond and confinement of Green was objection testimony, ous a defendant necessary commit the murder. Fur- appellate waives issue. consideration thermore, additional confinement and Alder, (Tenn. v. State S.W.3d prevented Green from summon- movement Crim.App.2001); Thompson, State help and the risk of detection. ing lessened (Tenn.Crim.App.2000). Therefore, especially aggravated kid- objection, Accordingly, absent an the state incidental” to napping “essentially was not properly proof. ment was admitted as murder. premeditated Stevens, at 849 app. denied, 537 (Tenn.2002), cert. U.S. [Deleted: IV. PROSECUTORIAL (2003). 873, 154 123 S.Ct. L.Ed.2d We INCONSISTENCY] plain further no discern error. See Tenn. 52(b). R.Crim. P. MISCONDUCT V. PROSECUTORIAL AND WITNESS SHIPP JARVIS Improperly [Deleted: F. Admitted Evi- prior complains The dence] defendant trial, Shipp attributed acts to various Anthony G. Issue not to Phillips, Prentiss contends convictions identify defendant as a co- failed to degree murder premeditated for both first perpetrator in these crimes. defen- aggravated alleges vio- violations Bra- especially kidnapping specifically dant 87,83 Giglio S.Ct. 1194 and kidnapping dy, late 373 U.S. at process due because 512 States, 150, United

v. 405 92 already possesses, U.S. S.Ct. that the defense or is 763, (1972). obtain, 31 L.Ed.2d 104 able to or to The defen- information not in the or possession control of the or prosecution dant asserts that prosecution withheld governmental agency. another v. State information of: (Tenn.Crim. Marshall, 228, 845 S.W.2d 233 (1) an a informal “wink and nod” ... App.1992). exchange testimony, for Shipp’s which the state would not the death prove seek a process order due violation penalty against trial; Brady, him went if he under must show suppressed state “material” information. 87, 1194; at Brady, 373 U.S. 83 S.Ct. (2) hearing the transcript of a held on (Tenn.1995). 387, Edgin, v. 389 Shipp’s motion to his own suppress “only Undisclosed information is material (which given statement police that, if there a reasonable probability is denied), been in which testified to Shipp had the been evidence disclosed to a why motive he had confessed defense, the result of proceeding would crime dramatically [which] was at odds Bagley, have been different.” 473 U.S. (and with the claimed he motives (citations omitted); 105 S.Ct. 3375 prosecutors) State’s told the were Johnson, Furthermore, 38 S.W.3d at 58. (re- “courageous” to do so reasons probability is a “probability reasonable morse for the victim desire to sufficient to undermine in the confidence make family). amends to the victim’s materiality, Id. To outcome.” establish an The defendant requested claims he excul- required “by accused is to demonstrate patory during pretrial information discov- preponderance disclosure of ery; the state produce failed to the infor- suppressed evidence would have resulted mation; and the would information have ultimately acquittal.” defendant’s impeached Shipp’s credibility. 419, 434, Kyles Whitley, 115 U.S. duty exculpatory disclose evi- (1995). S.Ct. L.Ed.2d 490 extends dence to all “favorable informa- Therefore, question “[t]he is not whether irrespective tion” of whether the evidence likely the defendant would more than not State, admissible at trial. Johnson have received different verdict with the (Tenn.2001). 52, 56 prosecu- S.W.3d evidence, whether in its he but absence duty tion’s to disclose material also Brady trial, fair received a understood as a applies credibility to evidence affecting the in a resulting worthy verdict of confi- witness, a government including evi- dence.” Id. any agreement promise dence of Agreement A. and a Nod” “Wink

leniency given exchange to the witness testimony for favorable an accused. against trial, During defendant’s Jarvis Giglio, 763; 405 U.S. at S.Ct. Shipp on direct testified examination Johnson, Brady While any promises 56. the state had not made him testimony for his require investigate exchange does not and that state to freely testifying voluntarily. On pros- it does burden the cross-examination, colloquy the following disclosing responsibility ecution occurred between defense counsel statements of witnesses to the favorable Shipp: Reynolds, defense. State v. However, (Tenn.Crim.App.1984). Q: you you ... Let me ask this. Do duty does information some expect type although not extend to there’s — from the deal, you expect hoping for better deal

not formal do he was in co-defendant Prentiss state. Later your for type some consideration trial, in- Shipp admitted that he Phillips’ testimony today? here his guilty plea to to tended enter Yes, I’m simple fact A: because the He further in the events. involvement death facing penalty. stated, my “I life to be saved.” expect you expect gain Q: Okay. So do his on motion hearing At the defendant’s something your by testifying case trial, attorney, Shipp’s new Gerald Ska- today, here correct? han, testify regarding was called progress[sic]. A: If in the it’s agreement between his client and following colloquy occurred: state. Q: you let You Okay. So me ask this. I Q: you telling me Do recall when by telling story feel like that if agreement, sort of asked what

you’ve today told that that could agreement you an had help you, correct? you me prosecutors, telling do recall and a nod? basically it was a wink A: Yes. ... in a A: I did use those words but Q: you feel if you help And them I testified to ear- context that —like they Mr. convict Robinson that ner, enough ... I was fortunate might penalty not seek that death somebody have able against you, right? give testimony.... No, they A: because still—I still could my personal opinion What is about go they still get done, everybody I think way it’s penalty. death I happening. think knows what’s Q: But you’re hoping they consid- I lawyers know. think the defense that, er correct? And I think the prosecutors know. being jail. know from defendants A: Yes. way But done that’s it’s here.... Q: you’re hoping And that that consid- that, I Giglio And as for and stuff like you will not eration result [sic] it I use in the think-—that’s where situation, at a looking death-penalty nod; ... I a wink and a context of correct? going everybody think knows what’s A: Correct. offer happen, but there is never an that, in sub The defendant asserts two conveyed. something There never i.e., trials, State v. Antonio Jack sequent this. saying specifically that we will do Phillips, son Prentiss Jarvis just every It’s at the end of one acknowledged trials, an it that’s Shipp agreement he had these works out. And and a nod. what I mean a wink Anto During with the state. co-defendant trial, Shipp initially nio Jackson’s denied denying defendant’s mo- In its order agreement with state. that he had an trial, the trial court found tion new Later, however, attorney his he stated that trial, Shipp the time of the defendant’s pled guilty, him that if he state, informed al- a “deal” with did have of life with would receive sentence may hoped testimo- though Shipp have It Shipp further to a further possibility parole ny less. lead “deal.” would trial, did not withhold evidence that, by at Jackson’s found state testifying stated of a “deal” Traveling from the Lords. Vice The defendant questioned defendant thoroughly claims that motive of fear in Shipp Shipp’s giving trial regarding a “deal.” possible alleged The trial statement was at odds with his court trial, concluded the state did not noble motive testifying violate which Brady Giglio. agree my We with the trial was “to tell the truth on behalf and on court. family.” behalf of the victim’s In denying its order the motion for may

While new Shipp hoped have that his trial, the trial found this testimony court information would result favorable treat- ment, would not have the verdict. affected We the record does not establish that an likewise see that agreement little benefit would have existed between the state and been pointing derived from out to the Shipp at the of the time defendant’s trial. State, Shipp’s that 94, giving pretrial motive for See Hartman v. 101- (Tenn.1995). fear, statement Furthermore, alleged was whereas his 02 the fact testifying motive for trial was that more Shipp pled guilty later to a lesser fact, In noble. it charge posi- was defendant’s of facilitation the offenses does tion at trial that of Shipp’s not the contents establish existence of prior statement, pretrial Williams, which did mention agreement. v. See State 690 (Tenn.1985). 517, by involvement was Moreover, 525 accurate. Shipp testified this case that he indeed expected to receive favorable treatment Regardless, this transcript we conclude exchange testimony. In his the ab- does not Bagley meet the test for material any proof agreement sence of that an in- ity. The Shipp trial court noted testified deed existed at the time of Shipp’s hoped gain to some favor with the state

testimony trial, at the defendant’s this is- through testimony. The trial his sue is without merit. questioned found that defense counsel Shipp regarding extensively inconsisten Transcript Suppress B. Motion to police cies between to his statement Next, asserts his testimony Accordingly, at trial. we state, in Brady, pro- probabil violation of failed to conclude there nowas reasonable that, vide a copy transcript ity disclosed, of the from Shipp’s had this evidence been hearing on suppress the motion to the result his would have proceeding police. statement transcript, Bagley, been different. 473 See U.S. at 682, Shipp original averred that statement 105 The failure to S.Ct. 3375. reveal to police given out of fear transcript that he undermine the con did not placed pod would in a be members of fidence in of the trial. the outcome Id2 238, 784, transcript 2. Ill.App.3d The state also contends this 263 200 Ill.Dec. 635 1367, defense, public (1994) equally (holding prior record available to the N.E.2d 1376 exempting Brady require- thus from the it inconsistent contained in tran- statements Marshall, scripts public ments. See 845 S.W.2d at 233. were a record matter and no Several courts have concluded the failure less available to the defendant than to the state). public Brady. reveal does not violate suppres- records The defendant contends the See, State, 427, e.g., hearing transcript readily Kidwell v. 264 Ga. 444 sion was not avail- (1994) 789, (concluding S.E.2d 792 tran- able to We need defense counsel. not deter- scripts pub- light holding of trials of other defendants were mine of our this issue in that the therefore, and, transcript Bagley materiality lic records state was not did not meet them); required People Salgado, to disclose test.

515 denied, 985, Act”), 507 U.S. cert. fail Jencks defendant also contends (1993); 123 L.Ed.2d S.Ct. ing transcript Shipp’s provide the Harris, F.2d United States at the suppression hearing conclusion Cir.1976) denied, (7th (same), cert. testimony, Ten Shipp’s the state violated L.Ed.2d 430 U.S. S.Ct. nessee Rule of Criminal 26.2 Procedure (1977). rule is similar The Tennessee commonly failing provide what is re rule. Fed.R.Crim.P. 26.2. the federal See ferred to as Jencks material.3 did not defendant contends he Here the 26.2(a) provides Rule that: transcript. ready to this We have access After a witness other than the defendant For the need not determine issue. examination, has on direct the testified transcript the did same we found reasons court, party trial on motion of a who did materiality Bag- the under not meet test witness, the not call the shall order at- the defendant was not ley, we conclude torney for the state or the defendant alleged of Rule prejudiced by any violation attorney, and defendant’s as the case the 26.2. may be, produce, for the examination moving and the party, use of state- IDENTIFICATION ISSUES VI. the in ment of witness that is their asserts that numerous The defendant possession and that to the relates sub- array regarding photograph and errors ject concerning which the wit- matter trial. identifications warrant new We ness has testified. disagree. A of a includes “statement” witness “[a] Array Photograph Suggestive A.

written statement made the witness or signed adopted otherwise that the trial The defendant first asserts approved by the witness.” Tenn. R.Crim. photo- allowing suggestive in court erred P. 26.2(g). objection. array over graph into evidence Numerous federal courts have held that disagree. We

prior testimony qualify does not as Jencks Hearing Suppression 1. material the statements because witness’s See, public are a matter of e.g., record. hearing, the de- During suppression Chanthadara, United v. 230 F.3d States testimony presented fendant (10th Cir.2000) 1237, (holding that 1254-55 Poole, he also Charles who stated was prior testimony expert of an wit charged with the murder arrested material), ness was not Jencks cert. de after he was Green. Poole testified that nied, 457, 992, 122 151 534 U.S. S.Ct. arrested, Sergeant Ashton him questioned (2001); array. L.Ed.2d 376 United States photograph him a showed Cir.1998) Jones, (8th F.3d n. 5 not Poole that when he did identi- testified (noting public pointed that matters of record do Ashton to- fy anyone, Sergeant scope photograph not fall within the of the Jencks the defendant. ward the Act); although not Isgro, States v. 974 F.2d Poole he did iden- United stated Cir.1992) (9th array, (stating tify anyone that “tri he believed identify him to defen- testimony scope al is not within officer wanted States, holding of Criminal Pro- Federal and Tennessee Rules 3. The Jencks United 657, 672, cedure, production requiring U.S. S.Ct. 1 L.Ed.2d 1103 of state- (1957), congressional subsequent action trial. of witnesses at ments incorporated both was into Rule 26.2 of five, photograph. viewing dant’s Upon rely upon and the witnesses did array, anything suggestive making their identi- photograph array Poole stated the fications. depicted five “dark-skinned” African- “light

Americans one skinned” Afri- Review 3.Standard can-American. He stated findings depicted six, who fact made the trial photograph court at motion hearing sup on a person light with the skin tone. press binding upon are this court unless Ashton, Sergeant William the case coor- pre evidence contained in the record dinator, testified he prepared photograph Ross, ponderates against them. State v. array and showed it to witnesses. He (Tenn.2001). Absent a arranged array stated by using showing by the defendant the evi photograph photo- defendant’s and other preponderates against judgment dence graphs of those who resembled the defen- court, of the trial this court must defer to dant. officer presented then the ar- ruling of the trial court. State v. ray to various witnesses and asked them if Cribbs, (Tenn.), 773, 967 S.W.2d 795 cert. they in identify anyone could array. the denied, 932, 343, 525 U.S. 119 S.Ct. 142 Sergeant Ashton sug- testified never (1998). L.Ed.2d 283 gested they to witnesses whom were to identify. 4.Analysis Sergeant Ashton the described defen- eyewitness Convictions based on identifi dant’s “light” opined skin tone as photo cation following pre-trial at trial depicted all of men the photograph the graphic only set identification will be aside array light skin He had tones. stated he if photographic the identification was “so array showed Washington the to Shaun impermissibly suggestive give toas rise to James, Christopher both of whom a very irreparable substantial of likelihood photograph. identified the defendant’s v. misidentification.” Simmons United States, 377, 384, 967, 390 S.Ct. U.S. 88 19 Findings

2.Trial Court’s (1968). However, a pre-trial L.Ed.2d 1247 In denying the defendant’s motion to procedure may confrontation be unlawful suppress photo- the identifications and if, circumstances, totality under the graph array, the trial court found that procedure unnecessarily suggestive. the is credibility Denno, 293, Poole’s was “about as narrow as 301-02, Stovall v. 388 U.S. 87 (1967). it can The trial get.” 1967, 18 court then stated it S.Ct. L.Ed.2d 1199 array photograph examined the and de- Although may suggestive, it be an iden array scribed as photographs the six may satisfy process tification as reli due African-American males either a considering able and admissible the when very, very “shaved or short cropped head totality of the circumstances. See State v. “lighter” hair” and skin It tones. found (Tenn.Crim. Brown, 689, 694 photograph array overly that the was not App.1990). This court must consider five six, suggestive photograph and that which in- determining factors whether the depicted not unique the court enough identification is reliable the compared photographs other five process despite withstand a due attack The trial then array. concluded suggestiveness pre-trial identifica 188, the photograph array suggestive, was not Biggers, tion. Neil U.S. 409 (1972); sugges- the officer’s actions not S.Ct. L.Ed.2d 401 were witness, (Tenn. Strickland, the cross-examination defense (1) anticipated by defen- have been These factors are: should Crim.App.1993). most, dant, testimony, at indicated and the of the witness view opportunity At (2) of an alteration. crime; possibility a mere at the time of criminal made, (3) the defendant request time attention; degree of the accu witness’s expert any particular identified racy prior description of of the witness’s had his tattoos been examined (4) nor criminal; certainty level they exhib- to determine whether someone at con by the witness demonstrated signs alteration. ited (5) frontation; time between Strickland, crime and the confrontation. hearing, At the motion for new trial (citing Biggers, 409 U.S. Owens, a stated Jason tat- defense counsel 375). 93 S.Ct. artist, examined the de- too “would have tattoos, and he would have testi- fendant’s upon photo- our Based review [defense to the effect that counsel fied graph array, that the evidence we conclude and, also, represented opin- as to had] preponderate against findings does not there had been ion as whether complex- trial court. Although cover-up erasure of the defendant’s tat- or lighter ion of somewhat toos.” Defense counsel stated Owens complexions persons than the of other testify eoverups era- would further the array, impermissibly sugges- it was not are The defendant also sures detectable. tive. This issue is without merit. from the records clerk presented proffer [Deleted: B. Out-of-Court Identifica- The proffer of a dentist. indicated Washington] by tion Shaun paid gold for crowns Testimony] [Deleted: gave C. Nichole prior Black’s to the murder and two months crowns contained no indication D. Failure to a Grant Continuance designs type attributed to letters challenges defendant trial The noted, “MacGreg.” As the trial court grant overnight refusal to con- court’s an testimony to the fact that there had been permit tinuance to him a “tattoo to obtain removable, caps proffer are and the gold expert.” At motion trial hear- for new possibility. not address that did ing, expanded claim this was include grant a The whether to motion decision dental de- regarding witness work. The matter for a continuance is a of discretion prevented fendant asserts that the denial court, denial which will for the trial testimony him obtaining from which would appeal not be overturned absent clear upon have cast doubt serious defen- showing trial its discre court abused identity gave the person dant’s as the who prejudice tion to the of the defendant. night orders on the of murder. Melson, 342, v. 638 S.W.2d 359 State denied, 1137, (Tenn.1982), surprised asserts he was cert. 459 U.S.

The defendant (1983); witness, 770, 74 L.Ed.2d 983 Bax by testimony of his 103 S.Ct. Officer (Tenn. State, 226, Parker, 503 230 on cross-examination ter v. S.W.2d who testified In order to establish an by possibly Crim.App.1973). a tattoo could be the state that discretion, complaining party permission The sought altered. abuse showing of as prejudice make a clear expert a tattoo who could examine must find being denied. a result of the continuance his tattoos. The trial court denied (Tenn.), Teel, 236, 245 noting testimony was from a 793 S.W.2d request, State denied, cert. U.S. S.Ct. further these allegations contends are oth- (1990). 112 L.Ed.2d 577 without merit. erwise The testimony offer secure dental A. Witness Voucher not a for basis the motion for a continu The defendant asserts that pros- various ance. an appellant change Since cannot ecutorial comments made relation to the appel theories from the trial to the testimony of Christopher James and Jarvis court, aspect late this of the issue is Shipp improper vouching constituted for Alder, 303; waived. State v. credibility their his trial rendered un (Tenn.Crim. Dooley, During closing argu fair. the state’s App.2000). request As to tattoo ments, prosecutor made comments re note, court, expert, we the trial did honesty of garding the both James and testimony the controverted was elicited Shipp. prosecutor The also made com Parker, from Officer who was a defense during ments the direct-examination of only witness. witness that it stated Shipp closing arguments regarding possible the defendant’s tattoos Shipp’s bravery in testifying. state could have been particular altered. No responds, part, that the defendant has witness was identified at the time failing waived issue enter a continuance, request for a nor had the contemporaneous objection. agree We by defendant’s tattoos been examined with the state that the defendant has potential witness. The court had no waived this due to issue his failure to assurance that a witness could be secured proffer objections contemporaneous to the day next trial. We also note that Green, challenged remarks. See the basis identification the state’s 186, 188(Tenn.Crim.App.1997); 947 S.W.2d gold did not witnesses relate tattoos or Farmer, State v. teeth. The issue of gold tattoos and teeth (Tenn.Crim.App.1996); R.App. Tenn. P. during arose testimony wit defense 36(a). plain We discern further no error. circumstances, nesses. Under these we 52(b). Tenn. P. See R.Crim. are unable to conclude the trial abused its discretion in denying the re Argued B. The not in Facts Evi- quest for a continuance.4 dence The next complains defendant

[Deleted: THE VII. USE OF VICTIM’S following prosecu- by statement made the SKULL AND DUR- PHOTOGRAPHS during closing argument: tor “[T]here THE PHASE] ING GUILT murder, an was because there was exe- VIII. PROSECUTORIAL person, cution of a and the State has a MISCONDUCT to duty investigate that and do the best The in- alleges defendant numerous they responsible can to determine who is by stances of misconduct the state. The argues for that.” The defendant this state that in most contends instances the prosecutor’s statement transforms the issue is waived due the of a to absence regarding credibility statements the contemporaneous objection. state into not in Shipp The James "facts evi- 4. We see no quest indication in record that for funds retain was filed to Owens artist, Owens, had tattoo Jason examined shortly prior to motion for new hear- tattoos The cor- defendant. defendant ing and denied the trial court. rectly parte states in his that an ex re- brief they’re feeling in this mat- complains hibiting, The further dence.” defendant ter. No else did. one following argument about the made re- sen- garding death Shipp: “[TJhat was an argues now defendant got ... right tence then there [h]e’s not on his election to improper remark rest of everyday California, to watch his back 380 U.S. testify. See Griffin addition, 609, 613, 1229, 14 challenges L.Ed.2d his life.” S.Ct. (1965) may not com- (holding prosecutor in to following statement made reference testify). failure to ment on defendant’s and Jarvis “[Chris both -witnesses: James appear prop- Although these statements They haven’t conferred.... haven’t Shipp] erly gang to an attack on members relate They haven’t met.... These men talked. defense, failure for the who testified testimony have not conferred their object waives the is- contemporaneously any Finally, states way.” 36(a). Further, P. R.App. sue. Tenn. See argued prosecutor improperly plain error. Tenn. we discern no See that, Triplett], is in “[Sepacus now that he 52(b). P. R.Crim. peo- with other realm confinement ple Gangster are involved in the Dis- who Evi- D. The State Presented Irrelevant all ciples organization, of a sudden now he Regarding dence the Victim memory has clear about his involve- case-in-chief, pre- the state During its ment.” The contends no evi- Green, testimony of Christina sented support dence exists the record to Ms. Green stated she victim’s sister. these statements. had a “real close” relation- and the victim ship. further stated she attended She Although all of these state- we conclude and that it was a “closed victim’s funeral ments are reasonable inferences from the objected, counsel then casket.” Defense evidence, the defendant has waived objection, and the trial court sustained challenge failing these issues raise regarding the cas- finding information contemporaneous objection. Tenn. See probative the state’s ket not case- 36(a). P. R.App. We further discern no prosecutor then asked Ms. in-chief. 52(b). plain error. See Tenn. R.Crim. P. brother, and she Green if she missed her affirmatively. responded C. The Defen- State Commented that Christina The defendant asserts Testify dant’s Decision not to the testimony was irrelevant Green’s arguments guilt During closing guilt issue or innocence and was phase, prosecutor stated any purpose but to other introduced said, this, I’m I’m Shipp] doing [Jarvis jury. of the Howev- passions inflame the me, truth telling you help to but also er, testimony regarding than the other help doing family. this to the victim’s the trial court coffin which victim’s anybody that you Did hear from else?— sustained, contem- defendant did not in this anybody who sat chair and else testimony. object to this poraneously said, this, know, I pled you I to was Therefore, any regarding issue Ms. there? entirety testimony in its is Green’s 36(a). P. R.App. See Tenn. waived. any anyone else remorse? Did exhibit right I Deer- anyone say, Next, alleges want to do the Dr. Did ing’s shotgun I to want to that wound to thing. want do—I assist remark painful was have been family grief they’re in the that ex- buttocks would this Identity guilt to a F. relevant determination Victim’s only jury. innocence inflamed the The defendant contends the state en- However, charged the defendant was in gaged prosecutorial misconduct seek- especially aggravated kidnapping, one ele- ing suggest he to intended to obliter- bodily injury. ment which is serious identity despite ate the victim’s the lack of 39-13-305(a)(4). § Ann. See Tenn.Code supporting evidence and the trial court’s bodily injury” “Serious includes “extreme instructions not to so. do 39-ll-106(a)(34)(C). § physical pain.” Id. trial, guilt During phase of the Accordingly, testimony regarding such photo- sought state introduce numerous gunshot wound to the buttocks was rele- graphs upon theory into evidence its based vant. that the defendant intended that the vic- identity The trial tim’s be obliterated. Improper E. The Made State- photographs court refused to admit the During ments Voir Dire However, theory. based this Ser- upon The defendant contends the state made geant Peppers upon Alvin testified that improper during statements scene, arriving at the unable to dire, voir which denied him a fair trial. identify of the victim’s features be- dire, voir During prosecutor, dis- body mutilat- cause “the face of the was so cussing the different roles of the court- counsel, objection by ed.” Upon defense participants, room stated: court trial disallowed the introduction one agree, On matter that we all we of a photograph depicting the victim’s face a fair impartial judicial want trial and prejudicial due to effect permitted its but proceeding. The defense wants for Sergeant Peppers testify regarding client, them But Mr. Robinson. there’s observations while at scene. courtroom, person another in this ladies Deering’s testimony, Prior to Dr. gentlemen. you Someone that can’t hearing trial held a to dis- jury-out court see. And that victim. cuss intro- photographs which would be objected The defense and the trial court during testimony. duced the doctor’s The jurors prosecutor instructed the ask again from prohibited the state question. prosecutor The then stated to introducing upon photographs based this jury, ... “My question you, is that theory no because one testified you keep your that in mind all throughout gang the defendant had instructed the person in- deliberations —there’s one other identity. members erase the victim’s process.” volved this The defendant However, the trial court further stated objection. no prosecutor made then argue could an infer- prosecutor engaged lengthy discussion law upon ence based the evidence admitted. legal various defined terms. We are unable to conclude the state prosecutor’s during comments voir prosecutorial engaged in misconduct. The dire had no effect on the result the trial. pho- trial court refused to admit numerous minuscule were com- These statements theory. based Fur- tographs upon pared to voir Further- lengthy the dire. thermore, prosecutor the properly could more, prose- there is no indication that the argue Sergeant an upon inference based provoke cutor the to acting with intent Peppers’ testimony regarding appear- the potential jurors. unfair bias the among ance of the victim at the scene Dr. location Deering’s testimony regarding This issue lacks merit. the

521 murder, trial court second-degree the gunshot to and effect of the various wounds. fur- “intentionally” and similarly defined This issue is without merit. jury as follows: ther instructed the IX. JURY INSTRUCTIONS— acts person that a “Knowingly” means PHASE GUILT or respect to the conduct knowingly with trial court The claims that the surrounding con- the to circumstances charged jury. Specifically, improperly person is aware duct when the alleges jury defining instructions or that the circum- of the conduct nature conduct, “knowing” knowingly “intentional” and di- person A acts stances exist. evidence, person’s rect and circumstantial rea- a respect with to result of dis- person sonable doubt were erroneous. We is aware that conduct when to agree. reasonably is certain the conduct the result. cause Under the United States and Tennessee “knowingly” requirement Constitutions, right to defendant has if it is that the shown also established Garrison, by jury. trial State v. 40 S.W.3d intentionally. defendant acted (Tenn.2000). 426, 432 A defendant also right complete has a correct and trial defendant cites as error the law, charge of the that each issue of fact “intentionally’ so on court’s instruction raised the evidence will be submitted degree premeditated premeditated first Id. In jury proper on instructions. “knowingly degree for second murder and jury claims instruc evaluating they of error are because result-of-conduct murder “ tions, ‘jurors must argument, courts remember that In of his support offenses. solitary pars do not sit in isolation court’s decision upon booths defendant relies this (Tenn. of mean 781 ing Page, instructions subtle shades v. State ” Vann, long at decision filed after ing.’ (quoting Crim.App.2002), 101 ar 370, 380-381, case. The defendant Boyde California, v. 494 U.S. trial 1190, (1990)), Page this court’s decision gues 110 S.Ct. 108 L.Ed.2d 316 (1999). denied, present in the case requires cert. There reversal U.S. fore, the same error court committed jury charge we review each to deter trial disjunctive fairly by instructing jury if in the legal mine it issues defined the “intentionally” and jury. on definition of involved and did not mislead the See (Tenn.1997), Hall, conclude the “knowingly.” Id. at 788.[W]e denied, harmless error. 524 U.S. instructions constituted rt. S.Ct. ce Dotson, (1998). 2348, 141 No. M2001-01970- L.Ed.2d 718 See State *4, CCA-R3-CD, 2002 WL Intentionally A. Instruction on *12 Tenn.Crim.App. LEXIS Knowingly Nashville), 21, 2002, at Oct. (Tenn.Crim.App. (Tenn.2003). pe app. denied rm, instructing jury In on the elements murder, degree premeditated first Circum- B. on Direct and Instruction as, “A “intentionally” trial court defined Evidence stantial intentionally respect person acts challenges a result of The defendant conduct nature pattern alternative court’s use person’s when it is con- conduct ev- and circumstantial engage instruction direct objective scious or desire (4th 42.03(a) regard T.P.I.—CRIM. idence. See conduct or cause the result....” ed.1995). provides It in pertinent certainty every part required proposi- is as to follows: proof requisite tion to constitute the offense.

Direct parts evidence is those of the testimony admitted court which re- ed.1995). (4th See T.P.I.—CRIM. 2.03 ferred to what testi- happened and was upheld Our courts have the constitution by fied to witnesses who saw or heard ality of the language in this rea contained otherwise what happened [or sensed] See, e.g., sonable doubt instruction. If first hand. witnesses about testified Bush, 489, at app. they what themselves saw or heard [or (Tenn.), denied, cert. 522 U.S. sensed], they presented otherwise direct (1997); Petty S.Ct. 139 L.Ed.2d 293 evidence. (Tenn. State, john Circumstantial evidence is all the tes- Crim.App.1994). Accordingly, this issue is timony and give you exhibits which clues without merit. way. about what in an happened indirect It consists of all the evidence which is [Deleted: X. LESSER —INCLUDED not direct evidence.... OFFENSES] The defendant claims the instruction er- XL JURY MISCONDUCT roneously implies “all is evidence di- complains right defendant that his evidence, Here, rect except hearsay.” impartial to an was violated when understanding “commonsense in- juror Boyd during Gina was untruthful structions of all light that has taken dire, and, despite voir the sequestration place prevailed] at the trial ... likely over order, Boyd person had contact with a hairsplitting.” Boyde, technical 494 U.S. jury. outside 110 S.Ct. 1190. We conclude there is no reasonable likelihood that the Bias/Prejudice A. jurors interpreted instruc- court’s dire, During Boyd voir stated she prevent tions so as to proper consideration deputy jailer worked “intake” as a in Shel- of direct and circumstantial evidence. by County. knowing She denied the de- or anything fendant about Boyd the case. C. Reasonable Doubt Instruction stated she able fair would be to be argues The defendant that the instruc- all impartial hearing the evidence. Dur- provided by tion the trial court erroneous- trial, ing the motion for new Boyd testified ly defined reasonable doubt. The trial although there were when she times provided following instruction on jail, was in different areas of the she did doubt: reasonable jail. not recall in the seeing engen- Reasonable doubt is that doubt trial, proof an investigation Boyd during dered of all the stated she inability, in the case and an such after noticed an arm band on the defendant’s investigation, inmate, easily let mind rest wrist and realized he was an al- guilt. certainty as to the she though Reasonable still did know where he was captious, does not possible jail doubt mean She did not return housed. or an imaginary doubt. Absolute cer- until after the trial. the conclusion of tainty guilt is the Boyd superviso- not demanded maintained she never had charge, authority law to convict of criminal ry over the defendant certainty required Shelby County but moral and this Jail. this issue Although question whether subsequently we presented

Defense counsel to the preserved due properly has been jail that on Oc- records which established proffer of the a formal failure make 8, 1998, Boyd temporarily as- tober was testimony, find it we proposed mother’s signed in the the defen- pod to work where a se- of separation merit. Once without of period dant was housed for a three has shown questered jury been duty log sheet re- Although hours. of state has burden may have been flects that a head count did result separation that showing such working pod, in the Boyd while was taken v. prejudice the defendant. State took is no indication as who there (Tenn.1999). Bondurant, count. head Here, finding by supports the record is on defendant to estab The burden showing court that there was no trial juror prima lish a case of bias. facie if the prejudice mother testified even (Tenn.Crim Akins, counsel’s declara- accordance with defense juror fails intentionally If a .App.1993). This lacks merit. tions. issue disclose information on voir dire which THIRTEENTH might partiality, presumption indicate XII. Id.

prejudice arises. JUROR/JUDGMENT ACQUITTAL OF no “nex- The trial court found there was trial asserts The defendant us” shown to exist between the defendant court, as the thir- acting capacity in its juror. and the The trial court further granted a new juror, teenth have should Boyd recog- found there was no indication guilty were con- trial because the verdicts nized the defendant. conclude that the We Alter- trary weight of the evidence. ruling supported trial court’s is court natively, he the trial asserts This issue without merit. evidence. judg- have his motion for granted should acquittal. ment of Jury Separation Sequestered B. Rule of Procedure Tennessee Criminal hearing on At the the motion for new 33(f) provides may trial court “[t]he trial, juror Boyd being testified after grant following new verdict for the jury, selected she advised her disagrees if it about guilty “profile” mother she was selected for a evidence.” When a trial weight upset. murder case and was Defense following court makes a determination they counsel stated had interviewed the 33(f), acting Rule court is as thirteenth mother,

juror’s daughter who stated her Gillon, juror. See State clothing came home in order to secure (Tenn.Crim.App.1997). the instant sequestration her said was “ex- she case, expressly approved the trial court tremely upset” having to serve “a juror in the order the verdict thirteenth high profile gangster case.” overruling motion for new trial. Con- trary argument, the tri- to the defendant’s juror Boyd The trial court found that required al is not to delete from its already upset testified she might later consideration evidence that be sitting “pro- her mother she on a told found to be inadmissible. Thus, file” murder case. the court saw no proposed the mother’s testi- argues relevance also that the trial The defendant made formal motion mony. by failing grant no court erred Tenn. proffer judgment acquittal. See testimony. of the mother’s P. 29. § R.Crim. This court has noted life high.” is Tenn.Code Ann. 40-35- 115(b)(4). However, dealing with a for a judgment ordering “[i]n motion before defendant serve consecutive acquittal judge ... sentences the trial is con- on the he dangerous basis that is a offend- only cerned with the legal sufficiency of er, the trial court must that the find result- weight evidence not with the ing is reasonably sentence related to the Hall, the evidence.” State v. 656 S.W.2d severity of the necessary crimes and 60, 61 (Tenn.Crim.App.1983). The stan- protect against public further criminal dard for reviewing grant the denial or of a Imfeld, 708-09; conduct. See 70 S.W.3d at judgment acquittal motion for is analo- Wilkerson, 905 S.W.2d at 939. gous to the standard employed when re- record, Based on our review of the we viewing sufficiency the convicting trial findings parallel conclude the court’s evidence after a has conviction been im- requirements addressing the statute Ball, posed. 288, State See 973 S.W.2d sentencing consecutive and Wilkerson. Thus, 292 (Tenn.Crim.App.1998). our re- See 35—115(b)(4); § Ann. TenmCode view of 40— encompassed this issue is within Wilkerson, 905 S.W.2d at 938-39. The previous our review of the sufficiency of trial imposed court sentencing consecutive the evidence. finding based on its that the defendant was a dangerous offender. It further found [Deleted: XIII. CUMULATIVE the resulting reasonably sentence was re- ERROR] severity lated to the of the crimes due to XIV. SENTENCE FOR ESPECIALLY in which manner the victim was beaten AGGRAVATED KIDNAPPING prior death. humiliated challenge The defendant does not trial specifically society court also found length of his twenty-five-year sentence for protected needed to be from the defen- especially aggravated kidnapping. How- findings dant. The trial are sup- court’s ever, argues the trial court’s order that ported by record based on defen- it run consecutively to the sentence of dant’s conduct. death is flawed in that the trial court failed requisite findings

to make the for consecu- [Deleted: OF ANALYSIS ISSUES sentencing. Imfeld, tive See 70 PRESENTED —PENALTY 698, (Tenn.2002); 708-09 State v. PHASE] Lane, (Tenn.1999); 3 S.W.3d 460 (i)(5) [XV. THE CHALLENGES TO Wilkerson, State v. (i)(7) AGGRAVATORS] AND (Tenn.1995). challenges the constitu- defendant A court may impose consecutive (i)(7) (i)(5) aggra- tionality of both the upon a sentencing determination that one §Ann. vating factors. See Tenn.Code 39- or more of the criteria set forth Tennes- (7). 204(i)(5), disagree We 13— 40-35-115(b) see Code Annotated section defendant’s contentions. permits exist. This section the trial court (i)(5) Aggravator A. impose consecutive sentences if the —Unconstitution- ally Vague and Overbroad criteria, finds, court among other that “the is a dangerous offender whose “heinous, argues The defendant that the

behavior indicates no regard little or atrocious, vague cruel” aggravator life, human and no about However, hesitation com- supreme and overbroad. our mitting rejected a crime which risk to human argument. has State v. Keen, (Tenn.2000), she was aware 196, 211 sister whether cert. defendant’s denied, The trial prior arrest. defendant’s U.S. S.Ct. (2001). objection court sustained the defendant’s L.Ed.2d disregard and instructed jury instruc He farther asserts the and answer. question tion, given, unitary not a instruction. as is difficulty Although we have understand- supreme previously Our court has stated why prosecutor ask such a heinous, ing a would phrase “especially that the atro capital penalty phase in the a question cious, unitary concept, or cruel” fail prior approval, court we (Tenn.1993), trial without Tran, 465, 479 864 Van S.W.2d any resulting prejudice light to find denied, 1046, 114 rt. 511 U.S. S.Ct. ce instruc- prompt the trial court’s curative 1577, (1994), “may 220 which 128 L.Ed.2d tion. prongs: proved be under either of two abuse,” Keen, physical

torture serious INFORMA- PREJUDICIAL XVII. (citations omitted). Fur 31 at 209 S.W.3d THE TION REACHING JURY ther, supreme our court has previ state ously argument found the defendant’s Aggravating A. List of Circumstances jury charge deprived the him of unani argues that the trial The defendant jury mous verdict to be without merit. jury all the improperly court read to the Sims, 1, 18 (Tenn.), State v. 45 cert. aggravating during circumstances possible denied, 956, 357, 534 U.S. S.Ct. just relied jury selection and two (2001). L.Ed.2d 270 upon the state. The record reflects to that the trial court did recite the venire (i)(5) Aggravator Failing B. to Mean- — during jury the entire process selection ingfully Pool Narrow statutory cir- aggravating list available (i)(5) ag- The argues defendant that the cumstances. gravator, either alone or combined with trial court instruct It is error to (i)(7) fails aggravator, meaningfully jury cir inapplicable aggravating eligible narrow the class of death defen Blanton, cumstances. State v. Supreme dants. has The Tennessee Court denied, 269, 281(Tenn.1998), cert. 525 U.S. rejected argument. Terry this See 1180, 119 143 L.Ed.2d 113 S.Ct. State, (Tenn.), cert. (1999). However, aggra the entire list of denied, 534 U.S. S.Ct. vating submitted to circumstances was not (2001). L.Ed.2d 428 jury prior part as instructions (i)(5) (i)(7) Aggrava- [Deleted: C. simply part of the deliberations. It was Application] tors —Vicarious of the trial court’s dis explanatory portion XVI. DEFENDANT’S At close of cussion with the venire.

PRIOR ARREST proof sentencing phase, at the only instructed two properly The defendant next asserts the upon factors relied grant aggravating failing court erred mistrial merit. when, This issue is without phase, state. during sentencing improperly state asked defense witness Aggravated Especially Kid- B. Use of “prior about the arrest.” defendant’s napping Punishment to Enhance testimony presented defendant his sister’s family. complains that the trial concerning relationship his with cross-examination, improp- permitted prosecution On state asked erly suggest felony aggra- murder ment on this issue ruled the state was vator, not limited to one upon underly- only aggravating which was based factor. It further given proper noted the state had ing especially aggravated kidnapping, agree notice of both aggravators. We given weight should be against extra ruling prejudice no discern undue mitigators. Specifically, to the defendant. argument, cites to the al- state’s “You’ve ready come this determination that XVIII. PROHIBITION FROM was, indeed, especially aggravat- there an CONSIDERING MITIGATING was, indeed, kidnapping ed and that there EVIDENCE heinous, a murder. The other one is the The defendant contends the trial court atrocious, and cruel.” This is argument unconstitutionally prevented the sentenc- misplaced. prosecution merely The jury from ing considering mitigat- relevant reiterating to jury they the had found ing by excluding evidence consideration of during guilt phase the of elements evidence of the character defendant’s especially aggravated un- kidnapping, the record. (i)(7) derlying felony in the aggravator. argues

The defendant also that the use Jury Regarding A. Instruction Miti- to bodily of the to injury” same “serious gating Factors kidnapping victim to enhance especially to complains of follow- aggravated and to kidnapping apply the ing regarding instruction consideration of (i)(7) aggravator counting,” was “double mitigating evidence: which jeopardy. Initially, violated double Any mitigating other factor which is we note that the felony aggravator murder by by raised produced the evidence ei- triggered by is in perpetration murder prosecution ther the defense either required it not be an “kidnapping”; is to guilt hearing; is, or sentencing “especially aggravated See kidnapping.” you any shall consider aspect 13—204(i)(7). § Ann. Tenn.Code Re 39— of the offense favorable to circumstances gardless, there is jeopardy no double viola by is supported which Stout, tion. See State v. 46 S.W.3d evidence. denied, (Tenn.), 122 cert. 534 U.S. by failing The defendant asserts that (2001). 471, 151 S.Ct. L.Ed.2d may it jury instruct the also consider “any aspect of the defendant’s character or Aggra- C. Failure to Limit the State’s record,” erroneously this instruction limit- (i)(5) vators to jury mitigating ed the evidence related The defendant asserts offense, and, to the circumstances permitted court improperly the state to effect, jury was instructed not to con- rely two upon aggravating circumstances any sider evidence related to the defen- detrimentally after defense counsel had re- language dant’s character or record. The in the upon opening argument suggested pat- lied the state’s the defendant is jury inadvertently tern but instruction penalty phase indicating relying it was (i)(5) omitted the trial court. T.P.I.— See upon only state aggravator. 7.04(c) (4th ed.1995); also CRIM. see id. only “heinous, indeed mentioned the atro- (7th ed.2002). cious, aggravator opening or cruel” its However, prior statement. to the defen- jury mitigating A instruction on circum- proof, argu- may “prejudicially dant’s the trial court stances be erro- heard found “ Gentlemen, say you let me Ladies and fairly if ‘it only neons” fails submit appear- or lack appearance, that the jury it as to legal issues or if misleads ” ance, Mr. Robinson of behalf Reid, law.’ applicable State you to consid- remorse not a factor is (Tenn.2002) (quot app. punishment determining what the er 346, 352 ing Hodges, State v. 944 S.W.2d should be.... in the case denied, 999, 118 (Tenn.), cert. U.S. statutory aggra not a Lack of remorse is (1997)). In the S.Ct. 139 L.Ed.2d circumstance, proper it not is vating case, instruc instant we conclude that the not ar the defendant did rebuttal because court when provided by tions the trial mitigating factor. remorse as a gue his entirety fairly submitted viewed their However, follow jury presumed legal Accordingly, the issues. of the trial court. instruction curative in the trial court’s instruction did omission (Tenn. Butler, 395, 399 prejudice the defendant. although Crim.App.1994). Accordingly, erred, harm error is prosecutor such Proving Mitigators B. Burden light of curative instruction. less in failure to in- The defendant asserts the De- Limitation on the D.Trial Court’s jury that he did not have the struct Testimony fendant’s any mitigating to fac- of proof burden pre- he was complains defendant The prejudicial. jurors in- tors was were of his presenting from evidence vented had the of structed that the state burden by of phase virtue penalty innocence at proving beyond a reasonable doubt Specifically, de- an limine order. They further in- aggravating factor. were ruling fendant refers to trial court’s no for requirement structed there was given outside the regarding his statement unanimity respect any particular' to beginning of jury presence of the in- Upon reading factor. mitigating During jury- this sentencing phase. whole, a to structions as we fail conclude he was hearing, the defendant asserted out alleged jury. omission misled the he convicted. He also stated wrongfully due to the receive a fair trial

did not testimony, which improper admission Closing Argument the State C. He further disregard. did not objects portion to a The defendant next instances of misconduct alluded to various during closing argument of the state’s juror remov- improper by particular it prosecutor “pat- asserted was which by the the courtroom al of evidence from ently argue to that the defen- offensive” state- response to these prosecutor. life be his spared dant’s should because ments, following court made the the trial plea equally such a children and that was ruling: lack of offensive view the defendant’s testify I’m not to allow him to going made These statements were remorse. jury, of the entire case front about the follow- during closing the state’s rebuttal he, got if he testify whether wants plea mercy for based ing the defendant’s trial, fair trial and get or didn’t a fair family potential support upon he wants other statements on all these The trial court rehabilitation. cautioned may I’m proper, be but to make. That objected up after the defense to' prosecutor get him to there going to allow that’s the juror, The trial court fur- so particular to these statements. attack my decision. basis jury: ther instructed the 528

The defendant subsequently testified but Photographs injuries a victim’s depicting no alleged made reference to the have unfair been held admissible to establish tor ture physical ness of his trial. or serious ag The defendant has cited abuse under (i)(5). See, authority gravating e.g., no circumstance indicating a defendant has the (Tenn. Smith, 908, State 893 S.W.2d right testify 924 that he did not receive 1994) (photographs depicting the victim’s fair verbally jurors. trial and attack Nor body, including one the slash wounds do we find such proper attacks be resid neck, “undeniably which grue was ual testimony. doubt evi “Residual doubt some,” prove were relevant generally dence” consists of proof at the heinous, atrocious, killing “especially was sentencing phase indicating the or cruel” and were admissible for that offense, did not commit the notwithstand denied, purpose), 829, cert. 516 U.S. ing guilty McKinney, verdict. State v. (1995). 99, S.Ct. 133 L.Ed.2d pho (Tenn.), denied, cert. tograph question accurately depicts the U.S. S.Ct. 154 L.Ed.2d severity injuries nature and inflicted (2002); Hartman, upon the victim. This evidence was rele (Tenn.2001). Although 55-56 de “heinous, proof vant to the state’s right proclaim fendant had the his inno atrocious, or aggravating cruel” circum cence, we are unable to conclude that he stance. The admit photo decision to prevented doing from so virtue graph not an abuse of discretion. ruling. trial court’s XX.PROSECUTOR’S ARGUMENTS E. Other Errors The defendant complains the state at- The defendant asserts numerous errors tempted to suggest the defendant intended during penalty phase regarding closing identity to obliterate the despite victim’s arguments jury and the instructions which the fact there was no evidence to mitigating related circumstances. We effect, and repeatedly the trial court in- have reviewed defendant’s assertions structed the state not to so. The do defen- and find the defendant is not entitled following dant argument references the relief on of these issues. the state: “This was an extortion of his face, identity. whole His whole identi- XIX.ADMISSION OF PHOTO- ty. aggravator proven we’ve is that GRAPH DURING PENAL- felony there awas involved and that this TY PHASE heinous, atrocious, and cruel.” We The defendant contends that the trial regarding discern no error this statement. court erred admitting photograph de- picting close-up a detailed and view of the XXI.JURY INSTRUCTIONS gruesome DURING SENTENCING wounds the victim’s face dur- ing penalty phase. Although the trial The defendant asserts the written ver- photograph court refused to admit the dict form misstated the law and allowed guilt phase, permitted the court its jury impose penalty with- death introduction at the penalty phase, advising out requiring prove aggra- the state to only to consider it for the purpose vating outweighed circumstances the miti- determining whether the crime hei- gating circumstances beyond reasonable nous, atrocious, cruel, or constituted tor- portion doubt. At is issue charge setting ture. requirements forth the au-

529 (Tenn.2002); 247, app. at 312-14 trial of death. The thorizing sentence (Tenn.1995), Hines, 573, 582 State v. ver- jury charge pattern quoted court 847, denied, 117 S.Ct. 519 U.S. rt. (4th 7.04(e) See T.P.I.—CRIM. ce batim. (1996). 133, 136L.Ed.2d 82 ed.2002) (con- (7th ed.1995); see also id. un- are language). identical We le taining argues death also The defendant charge misled the While injection to conclude this unconstitutional. able thal is not ex Court has Supreme jury. the Tennessee issue, v. see State pressly addressed the trial The defendant further contends (Tenn.), 252, Suttles, cert. the “know- by failing define court erred 401, denied, 967, 121 S.Ct. 531 U.S. mur- felony ing” required mens rea for the (2000), challenges have such L.Ed.2d 310 Tenn.Code Ann. aggravator. der See rejected courts. See Poland by other been (7). 13—204(i) erred, § If 39— (9th Stewart, 1094, 1104-05 v. 117 F.3d error was harmless. denied, Cir.1997), 523 U.S. cert. (1998); 140 L.Ed.2d 683 S.Ct. [Deleted: XXII. EXISTENCE OF 448, 458, Webb, 128, 750 A.2d 252 Conn. FACTORS) AGGRAVATING 93, 148 835, 121 denied, S.Ct. cert. 531 U.S. [Deleted: XXIII. PROSECUTORIAL (2000); Hinchey, and State L.Ed.2d 53 AND THE INCONSISTENCIES 602, 610, P.2d cert. 181 Ariz. PENALTY] DEATH denied, 993, 116 S.Ct. 516 U.S. (1995). likewise conclude L.Ed.2d 434 We APPRENDI [Deleted: XXIV. constitutionally injection that lethal JERSEY} V. NEW prohibited. THIRTEENTH

XXV. JUROR- PENALTY PHASE [Deleted: XXVII. COMPARATIVE argues that The defendant PROPORTIONALITY court, acting capacity its as “thirteenth REVIEW] juror” pursuant to Tennessee Rule of REMAND] [Deleted: 33(f), Procedure should have Criminal CONCLUSION] [Deleted: granted sentencing hearing a new since jury’s contrary to death verdict was BIRCH, JR., J., ADOLPHO A. previously weight evidence. As dissenting. concurring and opinion, in this trial court indicated majori- in of the I concur the conclusion expressly approved the verdict as thir- be ty that convictions should Robinson’s in juror overruling teenth its order death, sentence of As to the affirmed. specifical- motion for new trial. The order views, my however, I to adhere continue ly the convictions as well as the referred to a expressed long in line dis- previously This issue lacks merit. penalty death. sents, comparative proportionality that the by the protocol currently embraced review OF CONSTITUTIONALITY XXVI. inadequate to shield defendants majority is DEATH THE TENNESSEE arbitrary disproportionate and from the PENALTY STATUTE penalty. Tenn. of the death See imposition pen- 39-13-206(c)(l)(D) (1995 contends our death The defendant § Ann. Code alty unconstitutional. The Ten- expressed my statute is repeatedly I have Supp.). penalty up- protocol death statute has been since nessee with the current displeasure Bland, See, Reid, adoption in State v. repeatedly. e.g., held State v. of its the time 530 (Tenn.1997). Keen,

958 651 dissenting); S.W.2d See State v. and v. 31 State S.W.3d Davis, (Tenn.2004) 600, 141 632 S.W.3d (Tenn.2000) 196, J., (Birch, 233-34 dissent (Birch, J., concurring dissenting); and discussed, ing). previously As I believe (Tenn. 549, Berry, v. 141 State S.W.3d 590 problems the three basic with the 2004) (Birch, J., concurring and dissent analysis proportionality current are that: Holton, ing); 845, State v. 126 S.W.3d 872 (1) overbroad,1 the proportionality test is (Tenn.2004) (Birch, J., and concurring dis (2) pool comparison of cases is used Davidson, senting); State v. 121 S.W.3d (3) inadequate,2 subject and review too is 600, (Tenn.2003) (Birch, J., 629-36 dissent I previously discussed, ive.3 in have Carter, 895, ing); v. State 114 910- S.W.3d depth, my perception un that these flaws (Tenn.2003) J., (Birch, 11 dissenting); dermine reliability the current pro Reid, 247, State v. 91 S.W.3d 288-89 portionality protocol. Godsey, See v. State (Tenn.2002) (Birch, J., concurring and dis (Birch, J., concurring S.W.3d at 793-800 Austin, senting); 447, State v. 87 S.W.3d I dissenting). and continue to adhere (Tenn.2002) J., (Birch, 467-68 dissenting); (Tenn. my that the Stevens, comparative pro view current 817, State v. 78 S.W.3d 2002) (Birch, J., concurring portionality protocol woefully and dissent is inadequate ing); v. McKinney, 291, State 74 S.W.3d protect arbitrary from defendants (Tenn.2002) (Birch, J., 320-22 concurring or disproportionate imposition of the death Bane, dissenting); and State v. 57 S.W.3d penalty.4 411, (Tenn.2001) (Birch, J., 431-32 concur beyond But the foregoing, which ad- Stout,

ring dissenting); State v. proportionality general, dresses review (Tenn.2001) (Birch, J., the number of participants this offense State, concurring and dissenting); Terry v. and the disparity wide the sentences (Tenn.2001) (Birch, J., Sims, imposed yet in this case invite dissenting); v. more State (Tenn.2001) (Birch, J., 23-24 concurring specific scrutiny. four pros- Of the others lar, urged adopting 1. I have protocol prime example in which is of the arbitrariness each be compared factually protocol. case would similar cases in which a life either sentence or capital punishment was imposed to determine my concurring/dissenting As I stated in 3. is whether case more consistent with opinion Godsey, scope "[t]he State "life” cases or "death” cases. See employed appears analysis majority J., (Birch, McKinney, 74 S.W.3d at 321 con- amorphous expand- be rather and undefined — curring dissenting). proto- The current contracting, ing, shifting analysis finding proportionality col allows a if case moves from case to case.” 60 S.W.3d existing J., penalty (Tenn.2001)(Birch, is similar to death cases. concurring words, disproportionate only other dissenting). case if lacking plainly case under review "is in circumstances consistent with those in similar study 4. I also note that on the in a recent penalty cases in which the death has been consequences pen- costs and the of the death Bland, (em- imposed.” at alty Comptroller, conducted the State one added). phasis prosecutors of the conclusions was that are pur- across state inconsistent in their view, my excluding comparison In penalty, from suit of the death a fact that also 2. that group in did imposition cases which contributes to arbitrariness in the penalty, capital seek the death penalty. Morgan, or in which no G. the death See John held, sentencing hearing Comptroller Treasury, was frustrates of the Tennessee's meaningful comparison Consequences proportionality Penalty: for Death Costs and Bland, 2004), purposes. (July www.comptrol- See 958 S.W.2d at 679 available (Birch, J., case, dissenting). particu- ler.state.tn.us/orea/reports. This in by the reached offense, the conclusion agree re only for this Robinson ecuted no ration- Appeals Phil of Criminal penalty. Prentiss Court the death ceived —that Robinson’s distinguish first-degree murder al basis exists lips convicted from the lesser sen- of death aggravated kidnapping sentence especially parole upon the other defendants. imposed without received sentences life tences murder, res sentence plus twenty-five years, Accordingly, I deem Robinson’s for excessive, Phillips, dispropor- arbitrary, See State v. be pectively.5 perm. 1 (Tenn.Crim.App.2001), tionate. (Tenn.2001). Antonio Jackson app. denied foregoing, respectfully I of the light first-degree of facilitation of was convicted majority portion of the dissent from especially aggravated kidnap murder and imposition that affirms opinion twenty-five sentences of ping and received Gregory Robinson upon penalty death offenses, to be each of those years on of his convictions. affirmance concur v. Jack consecutively. See State served son, 661 (Tenn.Crim.App.2001), (Tenn.2001). Kevin app. denied

perm. first-degree conviction for murder Wilkins’ sentence) (and parole was re life without evidence, insufficient appeal versed on for single leaving him with a conviction al especially aggravated kidnapping, THE OF MEMPHIS CITY though testimony it is from the evident person was the who this record that he into Vernon actually fired fatal shots ELECTION SHELBY COUNTY Wilkins, body. Green’s See State v. Kevin COMMISSION, et al. W1999-01462-CCA-MR3-CD, 2000 No. Jackson, (Tenn.Crim.App. WL No. (Tenn. 2000),

Aug. perm. app. denied Tennessee, Court of Supreme 2001).6 at Jackson. course, a death sentence for one de- Of Sept. 2004. arbitrary, fendant is not rendered exces- disproportionate merely because sive same case has

another defendant But less than received sentence death.7 here, arbitrary nature of the sentenc- process strikingly manifest. ing becomes Thus, wholeheartedly amI constrained to against testifying de- Appeals record that he

5. As noted Court of Criminal opinion, receiving unredacted State also hope its a favorable fendant in the sought against Phillips, penalty the death something bargain, presumably more plea comparison, making prime even it case for penalty. Majori- See than the death favorable Grego the standards of Bland. State under ty Opinion, at 518-520. Robinson, ry No. W2001-01299-CCA-R3-DD 52-53, (Tenn. pp. 2003 WL 21946735 Burns, 7.See, e.g., Jackson, 2003). Aug. Crim.App. at Cauthern, 1998); (Tenn. State v. (Tenn.1998). disposition Shipp's of Jarvis case 6. The unknown, although evidence in the there is

Case Details

Case Name: State v. Robinson

Court Name: Tennessee Supreme Court

Date Published: Sep 28, 2004

Citation: 146 S.W.3d 469

Docket Number: W2001-01299-SC-R11-DD

Court Abbreviation: Tenn.