State of Tennessee v. Lemaricus Devall Davidson ( 2016 )

IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
January 27, 2016 Session
STATE OF TENNESSEE v. LEMARICUS DEVALL DAVIDSON
Automatic Appeal from the Court of Criminal Appeals
Criminal Court for Knox County
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No. 86216B Walter C. Kurtz, Senior Judge
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No. E2013-00394-SC-DDT-DD – Filed December 19, 2016
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A jury imposed two sentences of death on the defendant after convicting him of multiple
counts of first degree murder, especially aggravated robbery, especially aggravated
kidnapping, aggravated rape, and facilitation of aggravated rape. The Court of Criminal
Appeals affirmed the convictions and sentences. State v. Davidson, No.
E2013-00394-CCA-R3-DD, 2015 WL 1087126, at *1 (Tenn. Crim. App. Mar. 10, 2015).
We have carefully considered the defendant‘s claims of error and conducted the review
mandated by Tennessee Code Annotated section 39-13-206. We hold that the trial court
did not err by admitting evidence obtained during searches of the defendant‘s house and
of his person; the trial court did not err by admitting the defendant‘s statement to law
enforcement officers; the trial court did not abuse its discretion by allowing the victims‘
family members to wear buttons containing images of the victims; the trial court did not
abuse its discretion by admitting into evidence post-mortem photographs of the victims;
the trial court did not abuse its discretion by allowing the jury to view the defendant‘s
video recorded statement in the courtroom during deliberations; the trial court did not
abuse its discretion by admitting expert testimony regarding ballistics and fingerprint
evidence; the defendant‘s convictions were supported by sufficient evidence; and the trial
court properly effectuated merger of the convictions. We affirm the Court of Criminal
Appeals on the remaining issues and include relevant portions of its opinion in the
appendix. We hold the sentences of death were not imposed in an arbitrary fashion; the
evidence fully supports the jury‘s findings of aggravating circumstances in Tennessee
Code Annotated sections 39-13-204(i)(5), (6), (7), and (13); the evidence supports the
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Judge Richard Baumgartner was the trial judge in this case until he resigned in March 2011.
This Court appointed Senior Judge Jon Kerry Blackwood and subsequently Senior Judge Walter C. Kurtz
to preside over the case.
jury‘s finding that these aggravating circumstances outweighed the mitigating
circumstances presented by the defendant; and the defendant‘s death sentences are
neither excessive nor disproportionate to the penalty imposed in similar cases. We affirm
the defendant‘s convictions and sentences of death and vacate the Court of Criminal
Appeals‘ remand to the trial court for correction of the judgment documents.
Tenn. Code Ann. § 39-13-206(a)(1) Automatic Appeal; Judgment of the Court of
Criminal Appeals Affirmed in Part and Vacated in Part
SHARON G. LEE, J., delivered the opinion of the Court, in which JEFFREY S. BIVINS, C.J.,
and CORNELIA A. CLARK and HOLLY KIRBY, JJ., joined.
David M. Eldridge, Douglas A. Trant, Loretta G. Cravens, and Troy S. Weston,
Knoxville, Tennessee, for the appellant, Lemaricus Devall Davidson.
Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor
General; John H. Bledsoe, Senior Counsel; Randall E. Nichols, District Attorney
General; and Leland Price and TaKisha Fitzgerald, Assistant District Attorneys General,
for the appellee, State of Tennessee.
OPINION
I.
Events of January 6–10, 2007
This case arises from the January 2007 kidnapping, robbery, rape, and murder of
Channon Christian and Christopher Newsom in Knoxville, Tennessee. On Saturday,
January 6, 2007, Channon and Chris planned to have dinner together and then spend the
evening at a party at a friend‘s home in the Halls community. Saturday afternoon,
Channon went to her friend Kara Sowards‘s apartment at the Washington Ridge
Apartments to get ready for the party. Around 8:00 p.m., Ms. Sowards went to the party,
and Channon stayed behind waiting for Chris to arrive. At 8:47 p.m., Chris withdrew
$100 from his bank account at an ATM machine in the Halls area. Around 9:00 p.m.,
Chris dropped off his friend, Josh Anderson, at the party, telling friends he and Channon
were going out to eat and would join the party later. Ms. Sowards called Channon and
told her Chris was on his way. It was about a ten-minute drive from the party to the
Washington Ridge Apartments.
Around 10:00 p.m., when Chris and Channon had not arrived at the party, their
friends called and texted them but received no reply. Around 11:00 p.m., two of Chris‘s
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friends went to the Washington Ridge Apartments in search of him and discovered that
his truck was in the parking lot and Channon‘s 2005 Toyota 4Runner was missing.
Chris and Channon never arrived at the party. Their friends never saw or spoke to
them again. Channon was last seen wearing jeans, hot pink high heels, and a navy blue,
hot pink, and white striped sweater and carrying a gray purse. Chris was last seen
wearing jeans, black and silver size 9½ Nike Shox athletic shoes, a blue sweater with a
white collar, and a baseball cap. Sometime between 9:10 p.m. and 11:00 p.m., Chris and
Channon were abducted from the parking lot of the Washington Ridge Apartments and
taken in Channon‘s vehicle to the home of Lemaricus Devall Davidson at 2316 Chipman
Street in Knoxville.
On Sunday, January 7, around 12:30 a.m., Xavier Jenkins, an employee of Waste
Connections on Chipman Street, arrived for work and waited in his car in the parking
area outside the Waste Connections gated parking lot for a coworker to arrive. From
where Mr. Jenkins was parked, he could see across the street to Mr. Davidson‘s house
and noticed Channon‘s vehicle parked in front of it. The porch lights were on, and the
house seemed to be ―pretty busy‖ for that time of night. He had never seen Channon‘s
vehicle before that evening. Mr. Jenkins briefly left to go to a nearby convenience store,
and when he returned, he waited in his vehicle in the parking area across from Mr.
Davidson‘s house. Around 12:50 a.m., he saw Channon‘s vehicle pull away from where
it had been parked in front of Mr. Davidson‘s house and come in his direction. As the
vehicle passed Mr. Jenkins, it slowed down, and he saw four African-American men in it.
The driver, wearing a hoodie, looked at him ―kind of strange‖ and ―kind of
mean-[mugged]‖ him.
On Sunday at 12:33 a.m., Channon called her father and told him she had changed
her mind and would not be spending the night at the party but would be home between
2:00 a.m. and 3:00 a.m. Cellular records indicate this call came from the Cherry Street
area in the general vicinity of Mr. Davidson‘s house.
On Sunday at 1:45 a.m., Jerome Arnold was watching television at his Chipman
Street residence a block from Mr. Davidson‘s house when he heard ―three fairly evenly
spaced pops‖ coming from the direction of the train tracks.
On Sunday around 3:30 a.m., Ms. Sowards returned from the party and noticed
that Chris‘s truck was in the parking lot and Channon‘s vehicle was gone. Ms. Sowards‘s
apartment door was locked, and Channon‘s overnight bag was missing.
On Sunday at 6:30 a.m., when Mr. Jenkins returned to Waste Connections from
running his route, he saw Channon‘s vehicle with an orange University of Tennessee
―Power T‖ decal on the window parked facing the train tracks in front of Waste
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Connections on Chipman Street. The vehicle appeared to be out of place, and when Mr.
Jenkins looked in the vehicle, he saw no one in it.
On Sunday at 7:45 a.m., when Roy Thurman arrived for work at a sandblasting
company in the Chipman Street area, he saw smoke rising from the direction of the train
tracks.
On Sunday morning and afternoon, Ms. Sowards and Channon‘s mother
repeatedly called Channon‘s cell phone, but there was no answer. On Sunday afternoon,
Channon‘s mother‘s fears were confirmed when the manager of the Shoe Department
where Channon worked called to check on Channon because she had not reported to
work. Channon‘s mother called local hospitals, Chris‘s family, and Channon‘s friends
trying to find her. When Channon still could not be located, Channon‘s mother notified
the Knox County Sheriff‘s Department and filed a missing persons report. Meanwhile,
Chris‘s family was also worried about him. They called the police, checked with local
hospitals and Chris‘s friends, and filed a missing persons report.
On Sunday at 12:20 p.m., J.D. Ford, a Norfolk Southern Railroad employee,
discovered Chris‘s severely burned body beside the train tracks not far from Mr.
Davidson‘s house. Chris had been shot, his hands tied behind his back, his eyes covered
with a bandana, a sock stuffed in his mouth, his head wrapped in a sweatshirt, and his
bare feet bound together. The police were notified and responded to the scene.
When Channon‘s family requested help from law enforcement, they were told that
the authorities would not search for their missing daughter and they would have to do it
themselves. And they did. The Christians contacted their cellular phone company and
learned that Channon‘s phone had last pinged off the Cherry Street phone tower. On
Sunday night, some of Channon‘s and Chris‘s family and friends went to the Cherry
Street area and searched street by street. This was a part of town that Channon and Chris
did not visit.
Early Monday, January 8, between 1:30 a.m. and 2:00 a.m., the search party
discovered Channon‘s vehicle at the corner of Chipman and Glider Streets. An orange
University of Tennessee ―Power T‖ decal and a ―NorthFace‖ sticker had been removed
from the back window. The police were called and responded to the scene. Bags of
clothing, including a pair of GLO jeans, which Channon had planned to donate to charity,
were missing from the back of the vehicle. Channon‘s overnight bag and its contents
were also missing. The front seats of the vehicle were pushed all the way back, and the
backseat floorboard was caked with mud. A crumpled pack of Newport cigarettes was in
the back of the vehicle. Neither Channon nor Chris smoked Newport cigarettes. The
vehicle was photographed, inventoried, and taken to the police impound lot. Sandra
Kileen Bible, who lived in the house at the corner of Chipman and Glider Streets, said
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she had not seen the vehicle there at midnight when she sat on the porch smoking a
cigarette. She had never seen Channon‘s vehicle in the neighborhood before.
Dan Crenshaw, senior evidence technician with the Knoxville Police Department
forensic unit and a certified fingerprint examiner, went to the scene and processed the
vehicle for fingerprints. The outside of the vehicle, however, appeared to have been
wiped clean, and he could not get any prints.
On Monday, January 8, at 11:00 p.m., when Mr. Crenshaw returned to work on the
night shift, he retrieved a bank envelope from the back seat of the vehicle and began
processing it.
On Tuesday, January 9, at 2:45 a.m., Mr. Crenshaw determined that the fingerprint
on the bank envelope matched Mr. Davidson‘s fingerprint. Mr. Crenshaw then discovered
that Mr. Davidson‘s address was on Chipman Street, close to where Channon‘s vehicle
and Chris‘s body were found. At 2:52 a.m., Mr. Crenshaw emailed Knoxville Police
Department Investigator Todd Childress and others informing them he had confirmed Mr.
Davidson‘s fingerprint on the envelope and his Chipman Street address. At 7:00 a.m., the
fingerprint match was verified by Tim Schade, another Knoxville Police Department
evidence technician. Mr. Crenshaw was certain that Mr. Davidson was involved in the
disappearance of Channon. Between 6:30 a.m. and 7:00 a.m., while waiting on the
fingerprint verification, Mr. Crenshaw drove by Mr. Davidson‘s Chipman Street house
hoping to see or hear something so he or someone else could take action. There were no
signs of activity at the house.
On Tuesday morning, after the fingerprint match to Mr. Davidson was verified,
Investigator Childress began to search for information regarding Mr. Davidson and
discovered, among other things, an outstanding attachment for his arrest for failure to
appear in court. Investigator Childress prepared an affidavit for a search warrant for Mr.
Davidson‘s house. Investigator Childress hurriedly printed the affidavit and did not
realize that he had printed it on letter-sized paper instead of legal-sized paper. As a result,
the signature line on the affidavit was cut off. Sometime between 10:30 a.m. and noon,
Investigator Childress appeared before Knox County General Sessions Judge Tony
Stansberry to request the issuance of a search warrant. Investigator Childress did not sign
the affidavit but instead signed the search warrant on the line marked ―Officer To Whom
Warrant Is Delivered For Execution.‖ Judge Stansberry reviewed the affidavit but did not
notice that Investigator Childress had failed to sign it. Investigator Childress raised his
hand and swore to the truth of the contents of the affidavit before Judge Stansberry. On
Tuesday, January 9, at 12:53 p.m., Judge Stansberry signed the search warrant.
At 1:39 p.m., officers entered Mr. Davidson‘s house to execute the search warrant.
They quickly checked the house and found no one at home. At 1:42 p.m., Sergeant Keith
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DeBow entered the kitchen and noticed an oddly shaped thirty-two-gallon plastic garbage
can. Fearing someone was hiding in the garbage can, he drew his weapon, lifted the lid,
and saw an arm partially covered with fabric. When he touched the arm, he knew he had
discovered a dead body.
At 2:04 p.m., Dr. Darinka Mileusnic-Polchan, Knox County‘s Medical Examiner,
arrived to supervise the removal of Channon‘s body. At approximately 3:10 p.m., the
garbage can, with Channon‘s body still inside, wrapped in a tarp, and secured with plastic
tie wires, was removed from the house. Officers discovered Channon‘s personalized iPod
on top of a container in Mr. Davidson‘s bedroom. At 3:30 p.m., the officers left the house
after Investigator Childress told them to ―[h]old what you‘re doing‖ because the Knox
County District Attorney General‘s Office had advised him that they were to secure the
location and leave the scene. Everyone left except for several officers who stayed outside
the home to ensure that no one entered the residence.
Investigator Childress prepared a second affidavit for a search warrant with
additional information, including that Channon‘s body was found in Mr. Davidson‘s
house. He signed the affidavit and presented it to Knox County General Sessions Court
Judge Chuck Cerny. At 7:25 p.m., Judge Cerny issued the second warrant. At 7:55 p.m.,
the officers reentered Mr. Davidson‘s residence and collected evidence until about 1:30
a.m. on Wednesday. The search of the house produced numerous items that belonged to
the victims, including clothing Channon had in her vehicle, photographs she kept in her
vehicle, the gray purse she carried on Saturday night, her pink high heels, her iPod with
the inscription ―Channon Christian, Mom and Dad, we love you,‖ two of Chris‘s baseball
caps including the one he was last seen wearing, Channon‘s camera, Chris‘s driver‘s
license, a pay stub from Channon‘s work, Channon‘s mother‘s Blockbuster card, a CD,
and Channon‘s personal toiletry items.
Mr. Davidson’s Whereabouts January 6–11, 2007
As of January 6, 2007, Mr. Davidson was twenty-five years old and a convicted
felon. He had no job and no vehicle. He supported himself by selling drugs. He snorted
cocaine and smoked marijuana. He lived in a rental house at 2316 Chipman Street and
had not paid the January rent. He owed money to Ethel Lynn Freeman for furniture he
bought from her. His relationship with his girlfriend, Daphne Sutton, had soured. The day
after Christmas 2006, Ms. Sutton moved her furniture out of the Chipman Street house.
In December 2006, Stacey Lawson of Lebanon, Kentucky, brought her boyfriend,
George Thomas, Mr. Davidson‘s half-brother, Letalvis Cobbins, and his friend, Vanessa
Coleman, from Kentucky to live with Mr. Davidson. None of them had vehicles or jobs.
Ms. Lawson recalled seeing an assault rifle and two revolvers—a black one and a silver
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one—at Mr. Davidson‘s house. Ms. Lawson had seen Mr. Thomas, Mr. Cobbins, and Ms.
Coleman smoke Newport cigarettes.
Ms. Sutton occasionally returned to Mr. Davidson‘s house. On Friday, January 5,
2007, Ms. Sutton and Mr. Davidson argued. Ms. Sutton then walked to a gas station on
Cherry Street and called her friend, Kassie Suttles, for a ride. Ms. Sutton‘s vehicle was
not operable, and she left it parked on Chipman Street near Mr. Davidson‘s house. Ms.
Suttles picked up Ms. Sutton and took her to the apartment that Ms. Suttles shared with
Brandi Pressley.
Mr. Davidson met Ms. Freeman through a mutual friend. In December 2006, Mr.
Davidson, Mr. Thomas, and Mr. Cobbins helped her move into her apartment at the
Washington Ridge Apartments. Ms. Freeman gave Mr. Davidson a comforter, some
bedding, pillow shams, and curtains and sold him some used furniture. He agreed to pay
her between $75 and $100 every two weeks for the furniture. Mr. Davidson promised Ms.
Freeman he would bring her a payment on Saturday night, January 6. She expected him
to be at her Washington Ridge apartment between 10:00 p.m. and 10:30 p.m., but he
never arrived. Ms. Freeman fell asleep, and when she woke up, she called Mr. Davidson
on his cell phone. Phone records indicate she called him on Sunday at 3:51 a.m. She said
he did not sound like himself; he sounded flustered and busy, his voice was different, and
he seemed like he was doing something at a high pace. Mr. Davidson told her he did not
come by because he had ―got busy.‖
On Sunday, January 7, at 2:10 a.m., a call was placed from Chris‘s cell phone to
Jason Mynatt. Mr. Mynatt did not know Mr. Davidson or any of his friends and
frequently got wrong numbers on his cell phone. Mr. Mynatt‘s number was
865-237-4625. The phone number of Ms. Sutton‘s friend, Taylor Shadix, was
865-237-7625. Mr. Davidson repeatedly called Ms. Sutton‘s friend, Kayla Troutt,
beginning around 2:30 a.m. Sunday morning. She did not take his calls during the night
but spoke with him by phone between 3:00 p.m. and 4:00 p.m. on Sunday afternoon. Mr.
Davidson was calling Ms. Troutt to try and reach Ms. Sutton because he had some
clothes for her.
James Mitchell, who worked for Mr. Davidson‘s landlord, went to Mr. Davidson‘s
house in early January on a Saturday to collect the rent. He spoke with Mr. Davidson,
who told him to come back in a few days. When Mr. Mitchell returned a few days later,
the police had the house taped off.
Darin Williams was one of Mr. Davidson‘s drug customers. One weekend after
dark in January 2007, Mr. Williams was driving to Mr. Davidson‘s house to buy cocaine.
While at a stop sign on Chipman Street, Mr. Williams saw an oncoming vehicle. The
driver, who he later identified as Mr. Davidson, was blowing the horn, but Mr. Williams
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did not recognize the vehicle and kept going. By the time he got to Mr. Davidson‘s
house, the vehicle had circled around the block and stopped. Mr. Davidson, who was
driving Channon‘s vehicle, got out of the vehicle, along with two other men. The two
passengers, wearing black hoodies with the hoods pulled up, stood on each side of the
vehicle. Mr. Davidson told Mr. Williams that he did not have any drugs for him. Mr.
Williams went back, maybe the next afternoon, and Mr. Davidson came out of the house
and asked him if he had seen the helicopters flying over that way and said, ―[T]hey found
a woman‘s body over here on the railroad tracks.‖ On this second trip to Mr. Davidson‘s
house, Mr. Williams saw Channon‘s vehicle parked in the parking area across the street
from Mr. Davidson‘s house. Mr. Davidson told Mr. Williams he had bought the vehicle
for $2,500. Mr. Williams knew that could not be true based on the value of the vehicle.
On Sunday around noon, Ms. Freeman drove to Mr. Davidson‘s house and parked
in front of it. As she was getting out of her car, a neighbor, Rhonda Dukes, motioned her
to come down the street and visit with her. After Ms. Freeman finished visiting with Ms.
Dukes, she saw Mr. Thomas walk by in a dark hoodie. She left without seeing Mr.
Davidson. She had to go home a different route because the road was closed due to the
discovery of a burned body near the train tracks. Mr. Davidson called her after she
returned home and said he had seen her at Ms. Dukes‘s house and planned to come down
there, but Ms. Freeman had left before he could do so. He promised to come to her house
around 3:00 p.m. to pay her for the furniture. He did not go to Ms. Freeman‘s residence
to pay her and did not answer her telephone calls.
On Sunday, Ms. Sutton learned from friends that Mr. Davidson was trying to reach
her. She talked to him on the phone a few times that day. Later Sunday evening, he told
her he had some clothes for her. He asked her to come to his house and get the clothes but
to wait thirty minutes before she came. Suspecting that Mr. Davidson had another woman
in the house, Ms. Sutton and her friends immediately went to Mr. Davidson‘s house.
When she arrived about five minutes after their phone conversation, Mr. Davidson was
standing at the front door. She entered the house and saw Mr. Cobbins sitting in a chair
next to the kitchen door and Mr. Thomas sitting in a chair in the living room. Ms. Sutton
wanted to retrieve her makeup bag from the bathroom. She walked through the front
bedroom to the bathroom, but the bathroom door was closed. Mr. Davidson told her that
Ms. Coleman was in the bathroom. When Ms. Sutton tried to get to the bathroom by
entering the kitchen, Mr. Davidson grabbed her and said, ―What are you doing? This is
my house.‖ He walked her to the front door and handed her a Sears bag filled with
clothes and tried to give her some money. She refused the money but took the bag of
clothes. After Ms. Sutton returned to Ms. Suttles‘s apartment, she looked at the clothes
and realized they were not new. She then called Mr. Davidson, and he explained he had
bought the clothes at a used clothing store and thought she would like them. The bag
contained items that included a red skirt, a pink blouse, a pair of GLO jeans, and a ring.
Ms. Sutton gave the GLO jeans to Ms. Suttles and told Mr. Davidson to come and get the
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rest of the clothes. When Mr. Davidson arrived at the apartment to retrieve the bag of
clothes, he was driving Channon‘s vehicle, which had a Tennessee decal and a NorthFace
sticker on the back window.
Late Sunday night or early Monday morning, Mr. Davidson called Ms. Sutton and
asked her to come and get him. He claimed that he could not get into his house because it
was locked and his brother had the keys. Ms. Sutton drove a friend‘s vehicle to pick up
Mr. Davidson, who was waiting in Ms. Sutton‘s car that was parked on Chipman Street.
They returned to Ms. Suttles‘s apartment and spent the night.
On Monday morning, Ms. Freeman returned to Mr. Davidson‘s house to collect
her money. She decided not to leave him a note because the house looked vacant, the
windows were ―down,‖ and it looked like a ―ghost house.‖ When she saw police officers
down the street with flashlights, she knew something was going on and left.
Ms. Sutton and Mr. Davidson stayed together at Ms. Suttles‘s apartment on
Sunday night and Monday night. On Tuesday afternoon, they were awakened by a call
from Ms. Sutton‘s mother who told Ms. Sutton that a girl‘s body had been found in Mr.
Davidson‘s house. When Mr. Davidson overheard this news, his eyes got really big, and
he begged Ms. Sutton to believe that he did not do anything and ―that it was on all his
fam . . . his brother.‖ Ms. Sutton told him he would have to leave, and he asked her if he
could wait until after dark. After the phone call, Ms. Sutton found his house keys and a
black revolver in his jacket pocket. Mr. Davidson was wearing a pair of black and silver
Nike Shox athletic shoes that appeared to be too small for him. When she questioned
him, he claimed he had bought the shoes. Ms. Sutton dropped him off beside Ridgebrook
Apartments, close to Reynolds Avenue.
Mr. Davidson’s Arrest and Statement to Police
On Thursday afternoon, January 11, 2007, the Knoxville Police Department
Special Operations Team and other officers arrested Mr. Davidson in a vacant house at
1800 Reynolds Avenue. Among the items found in the house were Chris‘s size 9½ Nike
Shox athletic shoes and a .22 caliber High Standard revolver.
Mr. Davidson was questioned by Tennessee Bureau of Alcohol, Tobacco,
Firearms, and Explosives Agent Forrest Webb and Knoxville Police Department
Investigator Ryan Flores. Before the interview, Mr. Davidson was advised of his
Miranda rights, and he signed a waiver of rights form. During questioning, Mr. Davidson
told more than five versions of what occurred January 6–8. First, he claimed he left his
house on Friday and knew nothing about what may have happened there. Next, he said
Mr. Cobbins showed up at his house with Channon‘s vehicle, but Mr. Davidson did not
see the victims. Mr. Davidson drove Channon‘s vehicle while making his drug deliveries.
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When he learned about the body found beside the train tracks, he went back and wiped
the vehicle down to remove his fingerprints. As he returned to the house, Ms. Dukes
called and said that the police were down at the end of the street, so he walked down the
street to her house and sat on the porch until Ms. Sutton picked him up. He claimed all of
this happened on Sunday night.
His next version of the story was that he was at home all day on Saturday and
around 5:00 p.m. started selling drugs from his house. He went to bed and woke up
Sunday around 4:00 p.m. or 5:00 p.m., when Ms. Sutton called to tell him about a dead
body found near the train tracks. He had her come pick him up, but before she did, he
wiped down Channon‘s vehicle. He stayed at Ms. Sutton‘s house on Monday and
Tuesday. He said that he did not know Chris or Channon. He claimed that Mr. Cobbins
indicated to him that Mr. Thomas killed Chris.
Next, he said Mr. Cobbins and Mr. Thomas had taken Chris and Channon from
some apartments and brought them back to his house. They took Chris‘s wallet and his
money. Then Mr. Davidson said that around 10:00 p.m. on Friday or Saturday night, Mr.
Cobbins and Mr. Thomas arrived at Mr. Davidson‘s house saying they had carjacked
some people and they were in the vehicle. Mr. Davidson saw Chris and Channon tied up
in the back seat. Mr. Davidson did not want to be part of it, so he left and walked down
the street and smoked some marijuana. When he returned about twenty minutes later,
Channon was in his house. Channon told Mr. Davidson ―she ain‘t want to die.‖ Mr.
Davidson said Chris was never in his house. Then Mr. Davidson added that after arriving
with Chris and Channon, Mr. Cobbins and Mr. Thomas left for less than twenty minutes
and returned with only Channon. When Channon came into Mr. Davidson‘s house, she
was wearing a hoodie and her eyes were not covered. Mr. Davidson became concerned
that she had seen him, so he left in her vehicle to sell some drugs. When Mr. Davidson
returned, he parked the vehicle down the street, wiped it clean, and went into his house.
He did not go beyond the living room and did not see Channon. Finally, he admitted that
he saw Channon sitting on a bed in his house and she told him she did not want to die.
Mr. Davidson denied having sex with her and did not know if anyone had sex with her.
He said his DNA would not be found on her.
On January 11, 2007, Mr. Thomas, Mr. Cobbins, and Ms. Coleman were arrested
at Natosha Hays‘s house in Lebanon, Kentucky. During the search of Ms. Hays‘s
residence, the officers seized a computer on which Mr. Thomas and Mr. Cobbins had
been viewing the Knoxville news coverage of the homicides and found a red purse that
contained documents and other items belonging to Channon. Later, a .22 caliber Clerke
revolver was recovered from Ms. Hays‘s house.
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Forensic and Scientific Evidence
Dr. Mileusnic-Polchan performed autopsies on Chris‘s and Channon‘s bodies and
determined the injuries they suffered and the causes of their deaths. Neither Chris nor
Channon had any defensive wounds. Their stomachs were empty; neither had eaten any
food in the hours before their deaths.
Chris was anally penetrated one to two hours before he died. He had significant
injuries to his anal/genital area with lacerations, tearing, and bruising around his anus.
Chris was shot three times, each time with a small caliber bullet. One bullet was shot
from at least two to three feet away and entered his body in the neck area between the
back of the neck and the shoulder. The second shot was to his lower back, and the bullet
traveled steeply upward, indicating he was bent over when the weapon was fired. This
shot severely damaged Chris‘s spinal cord. The fatal shot was fired with the muzzle of
the gun against his head above his right ear, severing his brain stem and causing
instantaneous death. All three bullets were still lodged in Chris‘s body when it was found.
Chris had a hematoma on his right forehead, indicating that he was struck with an
object or fell and hit his head on the ground, possibly when he was shot while bending
over. When the fatal shot was fired, Chris‘s head was wrapped in a gray hooded
sweatshirt, a blue bandana was tied around his eyes, and an ankle sock was rolled up,
stuffed in his mouth, and secured with a shoelace. His leather belt and some floral fabric
were wrapped around his ankles, securing them together. Some plant material was found
in the bindings. His wrists were tied together behind his back with a shoelace and some
nylon. He had on a shirt, a t-shirt, underwear, and no other clothing. His feet were bare
and muddy, indicating that he had walked barefoot to the area where he was killed. He
was placed on his back, a comforter was wrapped around his body, an accelerant was
poured over him, and he was set on fire. His face, head, and upper body were burned the
worst. Chris‘s anus had semen in it, but the high temperature of the fire destroyed the
DNA in the semen. Soil samples taken where Chris‘s body was found indicated the
presence of gasoline. A gasoline can was found in the kitchen of Mr. Davidson‘s house.
Channon‘s frenulum, the membrane that connects the lip to the gum, was torn. She
had bruising and abrasions around her mouth. These injuries occurred hours before her
death and were caused by an object, such as a penis, being forced into her mouth. One to
two hours before Channon‘s death, her anal/genital area suffered tremendous damage.
Her vaginal area had bruises, lacerations, contusions, and swelling, and a solid blood clot
had formed under the entire area. The depth and extent of her injury was so grave, it was
not caused by a ―regular‖ rape but caused by a blunt object coming in contact with her
genital area with sufficient force to inflict serious injury. She had bruises on the backs of
both arms, bruising on both sides of the top of her head with extensive hemorrhaging,
bruises on the front of her legs, deep bruising to her upper back close to her neck, and
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carpet burns and scratches to her lower back and upper buttocks. She also had a cut to her
right hand that occurred around the time of death.
Channon had been forced into a tight fetal position and then bound with her head,
neck, and shoulder twisted and pressed against her bent knees. Her left cheek had been
pressed tightly against her knee. A portion of a sheer curtain had been tied around her
ankles and wrapped around her neck. A floral fabric, like the one used to bind Chris, had
been tied around her thighs, bringing them tightly against her chest. A white plastic bag
had been placed over her head, covering her mouth and nose, and knotted in the back to
keep it in place. Her body had been put in five black plastic garbage bags, stuffed in a
large garbage can, and partially covered with bedding, sheets, and other bags. She was
dressed only in a camisole and a sweater. Because she could not breathe with the plastic
bag tied tightly over her face and due to her positioning in the confined space, she
suffocated to death. The time of her death was estimated to be sometime between Sunday
afternoon and Monday afternoon. Based on the plastic bag that covered her face and her
positioning inside the garbage can, the oxygen around her face would have been depleted
within ten to thirty minutes after she was placed in the garbage can, and she would have
died three to five minutes later.
Mr. Davidson‘s DNA from sperm was found in Channon‘s vagina, anus, and on
her jeans. Mr. Cobbins‘s DNA from sperm was found in Channon‘s mouth and on her
camisole, sweater, and jeans. A chlorine substance was found on Channon‘s camisole. A
bottle of cleaning liquid with bleach was found in Mr. Davidson‘s kitchen.
The fabric found with Chris‘s body and the fabric used to bind Channon in the
garbage bag were parts of the curtains and bedding that Ms. Freeman had given to Mr.
Davidson.
Mr. Davidson‘s fingerprint was discovered on a bank envelope recovered from
Channon‘s vehicle. His prints were also found on three of the five plastic garbage bags
that contained Channon‘s body. His palm print was found on the outermost exterior
garbage bag. This print was consistent with Mr. Davidson using his hand to lift the bag
with weight in it. Mr. Davidson‘s right palm print and two left palm prints were on the
next garbage bag. The third garbage bag bore his palm print. Mr. Davidson‘s fingerprints
were also on items belonging to Channon and Chris found in his house, including a pay
stub with Channon‘s name on it and photographs that had been in her vehicle. Mr.
Davidson‘s prints were also on a box of Brawny garbage bags in the kitchen.
Ballistics testing revealed that two bullets removed from Chris‘s body were fired
from the same gun. The third bullet was damaged, so the gun that had fired it could not
be identified. The bullets could have been fired from the High Standard revolver that was
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in Mr. Davidson‘s possession when he was arrested. The Clerke revolver associated with
Mr. Cobbins was eliminated as the murder weapon.
Presentment, Trial, and Convictions
On January 31, 2007, Mr. Davidson and his co-defendants, Mr. Thomas, Mr.
Cobbins, and Ms. Coleman, were charged in a forty-six-count presentment issued by a
Knox County Grand Jury. Mr. Davidson was tried separately, and this appeal only
involves Mr. Davidson‘s case.2 After the trial court merged a number of the charges, Mr.
Davidson stood trial on sixteen counts of first degree felony murder, two counts of first
degree premeditated murder, two counts of especially aggravated robbery, four counts of
aggravated kidnapping, nine counts of aggravated rape of Channon, three counts of
aggravated rape of Chris, one count of theft of property valued at $10,000 or more but
less than $60,000, and one count of theft of property valued at $500 or less. The State
sought the death penalty. Following an eight-day trial in October 2009, the jury found
Mr. Davidson guilty of sixteen counts of first degree felony murder, two counts of first
degree premeditated murder, two counts of especially aggravated robbery, four counts of
aggravated kidnapping, nine counts of aggravated rape of Channon, three counts of
facilitation of aggravated rape of Chris, one count of theft of property valued at $10,000
or more but less than $60,000, and one count of theft of property valued at $500 or less.
The jury imposed two sentences of death on Mr. Davidson.
After the jury returned its verdict, the State dismissed two felony murder counts.
The trial court merged the remaining murder counts into two counts of first degree
premeditated murder; merged the two especially aggravated robbery counts and the two
theft counts into two counts of especially aggravated robbery; merged the four especially
aggravated kidnapping counts into two counts of especially aggravated kidnapping;
merged the nine counts of aggravated rape of Channon into three counts of aggravated
2
Mr. Thomas was convicted of first degree murder, especially aggravated robbery, especially
aggravated kidnapping, and aggravated rape. State v. Thomas, No. E2013-01738-CCA-R3-CD, 2015 WL
513583, at *1 (Tenn. Crim. App. Feb. 5, 2015), perm. app. denied (Tenn. Aug. 12, 2015). He received
two life sentences for the murder convictions plus twenty-five years for his other convictions. Id. Mr.
Cobbins was convicted of first degree murder, facilitation of first degree murder, especially aggravated
robbery, especially aggravated kidnapping, facilitation of especially aggravated kidnapping, and
aggravated rape. State v. Cobbins, No. E2013-00476-CCA-R3-CD, 2014 WL 4536564, at *1 (Tenn.
Crim. App. Sept. 12, 2014). He received a total effective sentence of life without parole plus one hundred
years. Id. Ms. Coleman was convicted of facilitation of first degree murder, facilitation of aggravated
kidnapping, facilitation of rape, and facilitation of misdemeanor theft. State v. Coleman, No.
E2013-01208-CCA-R3-CD, 2014 WL 6908409, at *1 (Tenn. Crim. App. Dec. 9, 2014), perm. app.
denied, not for citation (Tenn. May 14, 2015). She received a total effective sentence of thirty-five years.
Id.
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rape; and merged the three counts of facilitation of aggravated rape of Chris into one
count of facilitation of aggravated rape.
The trial court ordered the two death sentences to be served consecutively to each
other and sentenced Mr. Davidson to forty years for each of the especially aggravated
robbery counts, to be served concurrently with the death sentences; forty years for each
of the especially aggravated kidnapping counts, to be served concurrently with the death
sentences; forty years for each of the aggravated rape counts, to be served concurrently
with the death sentence for Channon‘s murder; and twenty years for facilitation of
aggravated rape, to be served concurrently with the death sentence for Chris‘s murder.
Mr. Davidson filed a motion for new trial and amended motions for new trial, all of
which were denied.
Mr. Davidson appealed to the Court of Criminal Appeals, raising twenty-six
claims of error. The Court of Criminal Appeals affirmed the convictions and sentences.
Davidson, 2015 WL 1087126, at *58–60. The Court of Criminal Appeals remanded the
case for correction of clerical errors on the judgment forms regarding the merged counts,
finding that the jury‘s guilty verdicts on separate counts needed to be merged into a
single judgment document.
Under Tennessee Code Annotated section 39-13-206, we conduct this mandatory
review to consider the issues raised by Mr. Davidson and to review his death sentences.
II.
Searches of Mr. Davidson’s House and Person
Mr. Davidson argues that the trial court erred in denying his motions to suppress
evidence seized during the two searches of his house and the search of his person. He
contends that the first search warrant for his house was defective because it was not
supported by a signed affidavit, that the second search warrant for his house was
defective because it was based on facts impermissibly obtained from the first search, and
that the two search warrants for Mr. Davidson‘s person to obtain hair and DNA samples
for testing were defective because the warrants were based on evidence obtained during
the searches of his house. The State contends that the first search warrant was valid
despite technical flaws, and that if the search warrant was defective, the evidence
obtained from the search was admissible under the exigent circumstances exception to the
warrant requirement. The State further argues this Court should adopt a good-faith
exception for constitutional violations based on United States v. Leon, 468 U.S. 897
(1984). The State submits that the validity of the first search is dispositive of the issues
regarding the second search warrant and the search of Mr. Davidson‘s person.
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The trial court denied Mr. Davidson‘s motions to suppress, ruling that the first
search warrant was valid because although Investigator Childress did not sign the
affidavit, he swore to the truth of the facts in the affidavit before the judge who issued the
search warrant. The trial court further ruled that the first search of Mr. Davidson‘s house
was valid based on the outstanding attachment for Mr. Davidson‘s arrest and exigent
circumstances. The trial court held that the doctrine of inevitable discovery was not
applicable and that a good-faith exception had not been previously adopted in Tennessee.
As to the second search warrant, the trial court ruled it was not valid because it relied on
information discovered during the execution of the first invalid warrant.
The Court of Criminal Appeals held the trial court did not err in not suppressing
evidence obtained from the execution of the first search warrant but for different reasons
than the trial court. The intermediate appellate court ruled the first search warrant was not
supported by a signed affidavit and that neither service of the attachment nor exigent
circumstances justified entry into Mr. Davidson‘s house. Davidson, 2015 WL 1087126,
at *14, *16–18. The Court of Criminal Appeals held that the evidence obtained from the
first search was admissible under the doctrine of inevitable discovery. Id. at *21. As to
the second search warrant, the Court of Criminal Appeals ruled that it should not have
included information discovered in the first search, but after redacting this information,
the remaining facts in the affidavit established probable cause for its issuance. The Court
of Criminal Appeals found that evidence obtained from the search of Mr. Davidson‘s
person based on a federal search warrant and a state search warrant was admissible
because these warrants were based on information obtained during the lawful searches of
Mr. Davidson‘s house. The Court of Criminal Appeals reasoned that, because evidence
obtained during the first search of the house was admissible based on the inevitable
discovery doctrine, it could be used to establish probable cause for the search of Mr.
Davidson‘s person. The intermediate appellate court further concluded that if the search
warrants contained tainted information, the warrants were based on probable cause after
redaction of any tainted information. Id. at *24.
Standard of Review
A trial court‘s findings of fact on a motion to suppress are upheld on appeal unless
the evidence preponderates otherwise. State v. McCormick, 494 S.W.3d 673, 678 (Tenn.
2016) (citing State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). We defer to the trial
court‘s factual findings on the credibility of the witnesses, the weight and value of the
evidence, and resolution of conflicts in the evidence. Id. (quoting Odom, 928 S.W.2d at
23). This Court affords the party prevailing in the trial court the strongest legitimate view
of the evidence and all reasonable and legitimate inferences that may be drawn from that
evidence. State v. Ross, 49 S.W.3d 833, 839 (Tenn. 2001); State v. Carter, 16 S.W.3d
762, 765 (Tenn. 2000) (quoting State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998)). We
review the trial court‘s application of law to facts de novo with no presumption of
- 15 -
correctness. McCormick, 494 S.W.3d at 678; State v. Freeland, 451 S.W.3d 791, 810
(Tenn. 2014), cert. denied, 135 S. Ct. 1428 (2015).
First Search Warrant
A valid search warrant must comply with provisions of the United States
Constitution, the Tennessee Constitution, and Tennessee statutory requirements. The
federal and state constitutional prohibitions against unreasonable searches and seizures
―safeguard the privacy and security of individuals against arbitrary invasions of
government officials.‖ Keith, 978 S.W.2d at 865 (quoting Camara v. Mun. Ct., 387 U.S.
523, 528 (1967)) (internal quotation marks omitted); State v. Yeargan, 958 S.W.2d 626,
629 (Tenn. 1997) (quoting Camara, 387 U.S. at 528). Searches and seizures conducted
under valid warrants are presumptively reasonable, whereas warrantless searches and
seizures are presumptively unreasonable. McCormick, 494 S.W.3d at 678–79; see also
Yeargan, 958 S.W.2d at 629.
We begin with the constitutional requirements. The Fourth Amendment to the
United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
U.S. Const. amend. IV. To be valid under the federal constitution, a warrant must (1) be
issued by a neutral and detached magistrate, (2) particularly describe the place to be
searched and the persons or things to be seized, and (3) be based upon probable cause,
―supported by Oath or affirmation.‖ United States v. Clyburn, 24 F.3d 613, 617 (4th Cir.
1994) (quoting U.S. Const. amend. IV) (internal quotation marks omitted). The Fourth
Amendment has no affidavit requirement.
Article I, section 7 of the Tennessee Constitution provides:
That the people shall be secure in their persons, houses, papers and
possessions, from unreasonable searches and seizures; and that general
warrants, whereby an officer may be commanded to search suspected
places, without evidence of the fact committed, or to seize any person or
persons not named, whose offences are not particularly described and
supported by evidence, are dangerous to liberty and ought not to be granted.
- 16 -
Tenn. Const. art. I, § 7. The Tennessee Constitution, although ―identical in intent and
purpose with the Fourth Amendment,‖ State v. Smith, 484 S.W.3d 393, 400 (Tenn. 2016)
(quoting Sneed v. State, 423 S.W.2d 857, 860 (Tenn. 1968)), does not contain the Fourth
Amendment‘s oath or affirmation requirement and does not require an affidavit.
The first search warrant complied with the United States and Tennessee
Constitutions. The search warrant was issued by a neutral and detached magistrate.
Neutrality and detachment require ―severance and disengagement‖ from the activities of
law enforcement. Shadwick v. City of Tampa, 407 U.S. 345, 350 (1972). Under the
circumstances of this case, the issuing judge‘s failure to notice the unsigned affidavit
does not indicate he departed from his role as a ―neutral and detached‖ magistrate. See
United States v. Richardson, 943 F.2d 547, 550 (5th Cir. 1991) (holding that magistrate‘s
failure to administer oath during warrant application ―was inadvertent . . . [and] clearly
was not a departure from his neutral and detached role‖). The search warrant specifically
described the place to be searched and the persons or things to be seized and was based
on probable cause supported by testimony under oath. The facts relied on to establish
probable cause included the discovery of Chris‘s body wrapped in a sheet and/or
comforter; the discovery of Channon‘s abandoned vehicle, with identifying stickers
removed, in the area where Chris‘s body was found; that both victims went missing at the
same time; that a latent print was found on a bank envelope on the back seat of
Channon‘s vehicle matching Mr. Davidson‘s fingerprint; and that Mr. Davidson‘s house
is a short distance from where Channon‘s vehicle and Chris‘s body were found. The
Fourth Amendment‘s oath or affirmation requirement was satisfied when Investigator
Childress raised his right hand and swore to the truth of the facts in the unsigned
affidavit. Within the meaning of the Fourth Amendment, ―[o]ath or affirmation‖ includes
sworn oral and written testimony. Sparks v. United States, 90 F.2d 61, 64 (6th Cir. 1937);
see also Clyburn, 24 F.3d at 617; United States v. Shields, 978 F.2d 943, 946 (6th Cir.
1992). Under these circumstances, the first search of Mr. Davidson‘s house was valid
under the Fourth Amendment and Article I, section 7 of the Tennessee Constitution.
Although the search warrant passed constitutional muster, it failed to comply with
the affidavit requirements of Tennessee Code Annotated section 40-6-103, Tennessee
Code Annotated section 40-6-104, and Tennessee Rule of Criminal Procedure 41(c)(1).
Tennessee Code Annotated section 40-6-103 provides that a ―search warrant can
only be issued on probable cause, supported by affidavit, naming or describing the
person, and particularly describing the property, and the place to be searched.‖ (Emphasis
added).
- 17 -
Tennessee Code Annotated section 40-6-104 provides:
The magistrate, before issuing the warrant, shall examine on oath the
complainant and any witness the complainant may produce, and take their
affidavits in writing, and cause them to be subscribed by the persons
making the affidavits. The affidavits must set forth facts tending to establish
the grounds of the application, or probable cause for believing the grounds
exist.
(Emphasis added).
Tennessee Rule of Criminal Procedure 41(c)(1) provides that a ―warrant shall
issue only on an affidavit or affidavits that are sworn before the magistrate and establish
the grounds for issuing the warrant.‖ (Emphasis added).
In preparing the affidavit for the search warrant, Investigator Childress said he
―wanted to do things right‖ and ―go by the law.‖ He prepared an affidavit and search
warrant with the help of another officer, and he hurriedly printed the documents so he
could present them to a judge. Investigator Childress inadvertently failed to change the
printer selection from letter to legal size, which resulted in the bottom three inches,
including the signature line, being cut off of the affidavit. Investigator Childress and an
assistant district attorney appeared before Judge Stansberry in his chambers. After Judge
Stansberry reviewed the typewritten affidavit, Investigator Childress raised his right
hand, took the oath, and swore to the truth of the contents of the affidavit. Although
Investigator Childress signed the search warrant on the signature line labeled ―Officer To
Whom Warrant Is Delivered For Execution,‖ no one noticed the omission of Investigator
Childress‘s signature on the affidavit as the affiant. Judge Stansberry signed the warrant,
and Investigator Childress and other law enforcement officers commenced a search of
Mr. Davidson‘s house.
Tennessee statutory and procedural provisions require an affidavit before a
magistrate can issue a valid search warrant. The affidavit must contain the signature of
the affiant. See Keith, 978 S.W.2d at 869 (holding that a written and sworn affidavit is a
prerequisite to the issuance of a valid warrant); Harvey v. State, 60 S.W.2d 420, 420
(Tenn. 1933); Watt v. Carnes, 51 Tenn. (4 Heisk.) 532, 534 (1871) (―An affidavit is a
statement in writing, signed and made upon oath before an authorized magistrate.‖);
Freidlander, Stick & Co. v. Pollock & Co., 45 Tenn. (5 Cold.) 490, 495 (1868) (―An oath
may be oral or written. An affidavit is a written oath.‖); Grove v. Campbell, 17 Tenn. (9
Yer.) 7, 10 (1836) (―The word affidavit, ex vi termini, means an oath reduced to
writing.‖); Kenyon v. Handal, 122 S.W.3d 743, 752 n.6 (Tenn. Ct. App. 2003) (―An
- 18 -
unsigned document cannot qualify as an affidavit . . . .‖).3 Because Investigator Childress
inadvertently failed to sign as the affiant on the affidavit, the search warrant was not
issued on the basis of a signed affidavit as required by Tennessee Code Annotated
sections 40-6-103 and 40-6-104 and Tennessee Rule of Criminal Procedure 41(c)(1). All
other constitutional and statutory requirements were met.
Although this case does not involve a constitutional defect, the test for
constitutional violations is one of ―reasonableness,‖ and there are judicially crafted
exceptions to the general requirement that a warrant issue before a search by law
enforcement. State v. Meeks, 262 S.W.3d 710, 722 (Tenn. 2008) (citing Brigham City,
Utah v. Stuart, 547 U.S. 398, 403 (2006); State v. Scarborough, 201 S.W.3d 607, 616–17
(Tenn. 2006)). Among the commonly recognized exceptions to the requirement of a
warrant are: (1) a search incident to an arrest, (2) the plain view doctrine, (3) a consent to
the search, (4) a Terry stop and frisk, and (5) the existence of exigent circumstances. Id.
(citing State v. Berrios, 235 S.W.3d 99, 104 (Tenn. 2007); State v. Cox, 171 S.W.3d 174,
179 (Tenn. 2005)).
Given Investigator Childress‘s failure to sign the affidavit, the State contends that
the exigent circumstances exception applies to justify the search of Mr. Davidson‘s
house. This exception ―applies when the exigencies of the situation make the needs of
law enforcement so compelling that a warrantless search is objectively reasonable under
the Fourth Amendment.‖ Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013) (quoting
Kentucky v. King, 563 U.S. 452, 460 (2011)) (internal quotation marks omitted). The
State must show that the search is imperative, Meeks, 262 S.W.3d at 723, and there is no
time for law enforcement to secure a warrant. McNeely, 133 S. Ct. at 1559. Exigency is
determined on a fact-intensive, case-by-case basis. Id. at 1564. In making this
determination, we consider the totality of the circumstances to determine whether a law
enforcement officer was justified in acting without a warrant. Id.
Here, the State has failed to establish that the circumstances surrounding the
search were so compelling that law enforcement officers did not have time to obtain a
search warrant. Chris‘s body was discovered on Sunday afternoon, and Channon‘s
abandoned vehicle containing a bank envelope was found early Monday morning. The
crucial fingerprint evidence linking Mr. Davidson to Channon‘s vehicle was found on the
bank envelope early Tuesday morning. On Tuesday around noon, Investigator Childress
3
See also Sammons v. Collins, No. 01-A-01-9009CV00325, 1991 WL 1056, at *1 (Tenn. Ct.
App. Jan. 9, 1991) (―An affidavit is a written or printed declaration or statement of facts confirmed by
oath or affirmation of the party making it, taken before an officer having authority to administer such
oath.‖); Crocker v. Larson, No. OA-A-01-9002-CV00083, 1990 WL 130087, at *4 (Tenn. Ct. App. Sept.
11, 1990) (―An affidavit, in order to be considered, must be signed and sworn to. An unsigned ‗affidavit‘
is not evidence and cannot be considered.‖).
- 19 -
appeared before Judge Stansberry to obtain the search warrant. At 12:53 p.m., Judge
Stansberry issued the search warrant. Less than an hour later, law enforcement officers
searched Mr. Davidson‘s house. Viewing the totality of the circumstances, it does not
appear the search of Mr. Davidson‘s house was so imperative that law enforcement could
not take time to obtain a search warrant.
Although evidence seized from a warrantless search or a search stemming from an
invalid warrant is subject to suppression, the State contends we should adopt a good-faith
exception to the exclusionary rule based on the United States Supreme Court‘s holding in
United States v. Leon, 468 U.S. 897 (1984). There, the Court held that where the officer
has reasonably and in good faith conducted a search within the scope of a search warrant
later determined to be constitutionally defective, evidence obtained from that search
should not be excluded under the Fourth Amendment exclusionary rule. Leon, 468 U.S.
at 919–22. The Court reasoned that the exclusionary rule is a strong deterrent to police
misconduct and the violation of suspects‘ constitutional rights but that the ―unbending
application of the exclusionary sanction‖ may hamper the truth-finding function of a trial
and can lead to criminals escaping punishment because of police negligence or
misbehavior. Id. at 906–07 (quoting United States v. Payner, 447 U.S. 727, 734 (1980));
see also State v. Sanders, 452 S.W.3d 300, 310–11 (Tenn. 2014). Unlike Leon, which
involved a search warrant that was constitutionally defective, 468 U.S. at 905, the search
warrant here passed constitutional muster. Therefore, Leon is factually distinguishable.
Given the unusual facts in this case, we adopt a good-faith exception for the
admission of evidence when a law enforcement officer has reasonably and in good faith
conducted a search within the scope of a warrant the officer believes to be valid, but is
later determined to be invalid solely because of a good-faith failure to comply with the
affidavit requirement of Tennessee Code Annotated sections 40-6-103 and -104 and
Tennessee Rule of Criminal Procedure 41(c)(1). In doing so, we note that Rule 41(g), a
procedural rule promulgated by this Court, does not divest this Court of its authority to
decide whether a good-faith exception, or any other exception, should be adopted. State
v. Reynolds, No. E2013-02309-SC-R11-CD, 2016 WL 6525856, at *21 (Tenn. 2016).4
Further, the applicability and validity of the Exclusionary Rule Reform Act, Tennessee
Code Annotated section 40-6-108, effective July 1, 2011, are not at issue in this case.
4
In Reynolds, this Court held that the good-faith exception adopted in Davis v. United States, 564
U.S. 229 (2011), applied and prevented suppression of any evidence because the officer acted in
good-faith reliance on binding judicial precedent when he obtained a sample of Ms. Reynolds‘s blood
without a warrant. Reynolds, 2016 WL 6525856, at *21. The author of this opinion dissented in Reynolds
on the basis that a good-faith exception was not appropriate to excuse a constitutional violation but agrees
that Rule 41(g) cannot be read to divest this Court of its power to develop and adapt common law
principles and their application. See id. (citing Hodge v. Craig, 382 S.W.3d 325, 337 (Tenn. 2012)).
- 20 -
Investigator Childress intended to obtain a valid search warrant. He reasonably
believed that the warrant, based on probable cause and issued by a neutral and detached
magistrate, was valid. The search warrant was later determined to be invalid based on
noncompliance with statutory and procedural provisions because Investigator Childress
printed the affidavit on the wrong size paper, did not notice that the signature line was cut
off, and failed to sign the affidavit. Instead, he placed his signature on a line on the
warrant. All other constitutional and statutory requirements were met. Moreover, as soon
as Investigator Childress learned there was a problem with the first warrant, he
immediately stopped the search and, within hours, obtained a second search warrant
supported by a properly signed affidavit. When an officer has complied with
constitutional requirements to obtain a warrant, but in good faith failed to comply with
the state statutory and rule affidavit requirements, societal interests are not advanced
when the exclusionary rule applies to exclude evidence obtained from execution of the
warrant. We hold the trial court did not err in denying Mr. Davidson‘s motion to suppress
the evidence obtained from the search of his house.
Based on this ruling, we pretermit discussion of the issues regarding inevitable
discovery and the validity of the search warrant based on the outstanding attachment.
Second Search Warrant and the Search of Mr. Davidson’s Person
Our holding regarding the validity of the first search resolves any issue as to the
validity of the second search warrant and the warrants for the search of Mr. Davidson‘s
person. Because the first search of his house was valid, the trial court did not err in
denying Mr. Davidson‘s motions to suppress.
Mr. Davidson’s Statements to Law Enforcement
Mr. Davidson argues that the trial court erred by denying the motion to suppress
the recorded statement he made to law enforcement after his arrest. He submits that his
confession was coerced and involuntary because his will was overborne by law
enforcement‘s show of force during his arrest and the intimidating atmosphere of the
interrogation. Mr. Davidson also argues that incomplete Miranda warnings rendered his
waiver of rights invalid and his statement inadmissible. In response, the State argues that
Mr. Davidson‘s statement was voluntarily given without abuse, threats, or promises and
that the Miranda warnings were sufficient. After a pretrial hearing, the trial court denied
Mr. Davidson‘s motion to suppress the statement based on the totality of the
circumstances surrounding Mr. Davidson‘s arrest and interrogation. The Court of
Criminal Appeals affirmed. Davidson, 2015 WL 1087126, at *24, *61.
A trial court‘s findings of fact on a motion to suppress are upheld on appeal unless
the evidence preponderates otherwise. McCormick, 494 S.W.3d at 678 (citing Odom, 928
- 21 -
S.W.2d at 23). We defer to the trial court‘s factual findings on the credibility of the
witnesses, the weight and value of the evidence, and resolution of conflicts in the
evidence. Id. (quoting Odom, 928 S.W.2d at 23). This Court affords the party prevailing
in the trial court the strongest legitimate view of the evidence and all reasonable and
legitimate inferences that may be drawn from that evidence. Ross, 49 S.W.3d at 839;
Carter, 16 S.W.3d at 765 (quoting Keith, 978 S.W.2d at 864). However, we review the
trial court‘s application of law to facts de novo with no presumption of correctness.
McCormick, 494 S.W.3d at 678; Freeland, 451 S.W.3d at 810.
At the pretrial hearing, Knoxville Police Department Sergeant DeBow testified he
was a member of the Special Operations Squad, or SWAT team, that arrested Mr.
Davidson. Before Mr. Davidson‘s arrest, approximately sixteen SWAT members arrived
in an armored vehicle and surrounded the house. The SWAT members wore tactical
uniforms, green body dress uniforms, and body armor; some wore helmets; and most
wore tactical gloves and safety glasses. Some were armed with long weapons,
submachine guns or shotguns, and some had pistols or gas guns. Over thirty law
enforcement officers, including members of the Tennessee Bureau of Alcohol, Tobacco,
Firearms, and Explosives, the United States Marshals Service, the Knox County Sheriff‘s
Department, and other uniformed police officers, were present around the outer perimeter
of the house. As the armored vehicle approached the house, the vehicle‘s public address
system was used to order Mr. Davidson to come out of the house. Mr. Davidson placed
his hands on the window through the window shades and was ―somewhat complying.‖
After a ―reasonable amount of time . . . fifteen seconds or so,‖ Sergeant DeBow,
Lieutenant Mark Fortner, and ―a couple‖ of other officers approached the window.
Sergeant DeBow was armed with a submachine gun that was pointed toward the window
and leveled on Mr. Davidson. Sergeant DeBow ordered Mr. Davidson to drop what was
in his hands and to open the window. In response, Mr. Davidson made an apparent
attempt to open the window and said, ―I can‘t.‖ Sergeant DeBow told Mr. Davidson to
step back from the window, and then Sergeant DeBow broke the window with the barrel
of his weapon, raked it clean, and then cleared off as much of the glass as he could with
his gloved hands. Sergeant DeBow asked Mr. Davidson where the gun was, and as Mr.
Davidson lowered his hands, he pointed down toward either his waistline or the floor.
Sergeant DeBow was unable to describe exactly how Mr. Davidson was removed but
indicated that when Mr. Davidson put his hands on the window sill, a couple of officers
likely grabbed Mr. Davidson by the wrists and pulled him through the window onto the
ground on his stomach. At the same time, an emergency response team entered the house
through a side door. Sergeant DeBow did not see anyone beat or threaten Mr. Davidson.
Once Mr. Davidson was brought up off the ground, Sergeant DeBow and another officer
escorted Mr. Davidson to the police vehicle which transported him to the police
department. According to Sergeant DeBow, the goal when arresting someone is to safely
take the person into custody but agreed that psychological intimidation, including verbal
- 22 -
commands, officer presence, submachine guns, uniforms, and verbal commands, could be
used in an arrest.
Gregory McKnight, Knoxville Police Department crimes investigator, testified
that when he arrived at the house, Mr. Davidson was already in custody and seated in the
back of the police vehicle for no more than five minutes. Investigator McKnight and
another officer transported Mr. Davidson to the police department. Investigator
McKnight advised Mr. Davidson of his Miranda rights ―off the top of [his] head‖ and
engaged in general conversation with Mr. Davidson but did not interrogate him.
Investigator McKnight described Mr. Davidson‘s demeanor as ―kind of relaxed, not for
sure what was going on.‖ Upon arriving at the police department, the officers escorted
Mr. Davidson to an interview room on the third floor to wait for Investigator Flores.
Investigator McKnight observed a portion of Mr. Davidson‘s interview with police and
never saw anyone hit, yell at, ―be mean to,‖ or abuse Mr. Davidson.
Investigator Flores testified that he responded to a call to the house where Mr.
Davidson was arrested. Investigator Flores observed that after the Special Operations
Squad pulled up to the side of the house in an armored vehicle, Mr. Davidson appeared in
the window. A member of the Special Operations Squad knocked out the window, and
team members pulled Mr. Davidson out of the window and onto the ground on his
stomach. While officers were handcuffing Mr. Davidson, Investigator Flores introduced
himself to Mr. Davidson, reassured him that everything would be okay, and told him to
relax and stop resisting. Investigator Flores did not hear anyone threaten, kick, or hit Mr.
Davidson and observed no injuries to him.
Before Investigator Flores began questioning Mr. Davidson at the police
department, Investigator Flores offered him some food and water. Before the interview,
Investigator Flores advised Mr. Davidson of his Miranda rights by reading from a
statement and waiver of rights form:
STATEMENT OF YOUR RIGHTS
BEFORE WE ASK YOU ANY QUESTIONS, YOU MUST
UNDERSTAND YOUR RIGHTS:
1. YOU HAVE THE RIGHT TO REMAIN SILENT.
2. ANYTHING YOU SAY CAN BE USED AGAINST YOU IN
COURT.
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3. YOU HAVE THE RIGHT TO CONSULT WITH A LAWYER
AND TO HAVE A LAWYER PRESENT WITH YOU WHILE
YOU ARE BEING QUESTIONED.
4. IF YOU WANT A LAWYER BUT ARE UNABLE TO PAY FOR
ONE, A LAWYER WILL BE APPOINTED TO REPRESENT
YOU FREE OF ANY COST TO YOU.
5. IF YOU DECIDE TO ANSWER QUESTIONS NOW WITHOUT A
LAWYER PRESENT, YOU WILL STILL HAVE THE RIGHT TO
STOP ANSWERING AT ANY TIME. YOU ALSO HAVE THE
RIGHT TO STOP ANSWERING AT ANY TIME UNTIL YOU
HAVE A LAWYER.
WAIVER OF RIGHTS
I UNDERSTAND EACH OF MY RIGHTS AND I AM WILLING TO
MAKE A STATEMENT AND ANSWER QUESTIONS WITHOUT A
LAWYER PRESENT. NO PROMISES OR THREATS HAVE BEEN
MADE TO ME.
Mr. Davidson told Investigator Flores, ―I know my rights you ain‘t gotta read my rights I
know my rights.‖ Mr. Davidson initialed each of the stated rights and signed the Waiver
of Rights form. Investigator Flores signed the form as the Advising Officer/Investigator,
and Agent Webb signed the form as the witness. Thereafter, Mr. Davidson provided a
recorded statement and responded to questioning by Investigator Flores.
The due process clauses of the Fifth Amendment and Fourteenth Amendment of
the United States Constitution require a confession to be voluntary before its admission
into evidence. The due process voluntariness test is distinct from Miranda. Dickerson v.
United States, 530 U.S. 428, 434–35 (2000); Mincey v. Arizona, 437 U.S. 385, 397–98
(1978). The issue under Miranda is whether a suspect received certain warnings and
knowingly and voluntarily waived certain rights, whereas the essential inquiry under the
voluntariness test is whether a suspect‘s will was overborne so as to render the confession
a product of coercion. Freeland, 451 S.W.3d at 815 (quoting State v. Climer, 400 S.W.3d
537, 568 (Tenn. 2013); State v. Smith, 933 S.W.2d 450, 455 (Tenn. 1996)). The
voluntariness test includes an assessment of the psychological impact on the accused and
an evaluation of the legal significance of the accused‘s reaction. Schneckloth v.
Bustamonte, 412 U.S. 218, 226 (1973) (citing Culombe v. Connecticut, 367 U.S. 568, 603
(1961)). Whether a confession was made voluntarily must be determined by a totality of
the circumstances, including characteristics of the accused and the details of the
interrogation. Dickerson, 530 U.S. at 434 (quoting Schneckloth, 412 U.S. at 226);
- 24 -
Freeland, 451 S.W.3d at 815. Relevant factors include the age, education, and
intelligence of the accused; the extent of previous experience with law enforcement;
whether questioning was repetitive and prolonged; the length of the detention prior to
giving a statement; the lack of any advice to the accused of his constitutional rights;
whether the accused was injured, intoxicated, drugged, or in ill health; deprivation of
food, sleep, or medical attention; and physical abuse or threats of abuse. Climer, 400
S.W.3d at 568 (quoting State v. Huddleston, 924 S.W.2d 666, 671 (Tenn. 1996)); see also
Schneckloth, 530 U.S. at 226. Coerced confessions are inherently unreliable. Climer, 400
S.W.3d at 567–68 (citing Dickerson, 530 U.S. at 433; State v. Northern, 262 S.W.3d 741,
748 (Tenn. 2008)).
Mr. Davidson contends that his statement was coerced through law enforcement‘s
show of force during the arrest and threats of prosecution during the interview. Although
a number of uniformed and armed law enforcement officers were present during Mr.
Davidson‘s arrest, the show of force was not disproportionate to the seriousness of the
crimes Mr. Davidson was suspected of committing. Sergeant DeBow and Investigator
Flores testified consistently that Mr. Davidson was armed with a gun at the time of his
arrest and did not fully comply with police commands. The removal of Mr. Davidson
from the house by pulling him from the window was necessary given his failure to leave
the house or open the window and the SWAT team‘s inability to enter through the front
security door. Sergeant DeBow, Investigator McKnight, and Investigator Flores testified
that Mr. Davidson was not beaten, abused, or injured. Mr. Davidson was not detained for
an unreasonable time after his arrest and transport to the police department. Only
Investigator Flores and Agent Webb were present during the interview. Mr. Davidson
expressed to Investigator Flores that he did not want to be left alone for someone else to
take his DNA sample, but this statement fails to support Mr. Davidson‘s claims of fear
resulting from a coercive or intimidating atmosphere.
At the time of the statement, Mr. Davidson was twenty-five years old. He had
attended high school and had above-average intelligence. Mr. Davidson had previously
been convicted of aggravated robbery and carjacking and incarcerated. The duration of
his detention in the interview room at the police department was reasonable. Prior to
questioning, Investigator Flores provided food and water to Mr. Davidson, which Mr.
Davidson consumed during the interview. Investigator Flores advised Mr. Davidson of
his Miranda rights by reading from the Statement of Rights and the waiver form, and Mr.
Davidson signed the Waiver of Rights. The interview itself took less than three hours and
was not unreasonably lengthy under the circumstances. Mr. Davidson was not injured,
intoxicated, impaired, in ill health, abused, or threatened with abuse.
- 25 -
At one point in the questioning, Investigator Flores made the following statements:
[Y]ou tell me the truth and we work with you. . . . I can go and I can say,
―Well Mr. Attorney General . . . he‘s a liar and this is why and he
continued to lie to me all day long and he‘s gonna deny it and we . . . we‘ll
prove our case and we‘ll let 12 people judge this man who we can prove‘s
a liar.‖ Or I can say, ―Mr. District Attorney, Mr. Judge, this man . . . this is
what he said and it [corroborates] all our evidence. He‘s honest, he fessed
up to what part he had [in] these two deaths.‖ And their [sic] gonna go,
well, liar or somebody that was a man that fessed up.
Mr. Davidson argues that these statements constituted a threat of prosecution,
rendering the confession involuntary and inadmissible. Mr. Davidson relies on United
States v. Harrison, 34 F.3d 886 (9th Cir. 1994). In Harrison, an agent advised the
accused of evidence against her and that she might be facing up to twenty years in prison.
Id. at 890. The agent then asked the accused whether she thought it would be better if the
agent told the judge that the accused had cooperated or not cooperated. Id. The accused
gave a statement after responding that she understood it would be better if she talked to
the agents and they told the judge she had cooperated. Id. The trial court found the
defendant‘s confession voluntary and admitted the statement into evidence. Id. at 889–90.
The Court of Appeals for the Ninth Circuit reversed, holding that law enforcement
officers may not suggest that an exercise of the right to remain silent may result in
harsher treatment by a court or prosecutor. Id. at 891–92. The Ninth Circuit found that the
agent did not explicitly threaten a longer sentence if the accused did not give a statement,
but ―[t]he improper conduct was the suggestion that they might inform the court that she
had not cooperated.‖ Id. at 891. The Ninth Circuit suggested that the agents‘ statements
amounted to ―subtle psychological coercion [that] can effectively overbear a suspect‘s
free will.‖ Id. at 892. Noting that the defendant broke her silence only after the statement
was made to her, the Ninth Circuit reasoned that the defendant ―could only conclude that
she might suffer for her silence‖ despite the agents‘ ―thinly veiled‖ suggestion. Id. at 891.
Mr. Davidson‘s reliance on Harrison is misplaced. In Harrison, the issue before
the court was whether the defendant‘s will was so overborne by the agent‘s comment
about cooperation that the defendant was compelled to provide a statement in violation of
her Fifth Amendment right against self-incrimination. Mr. Davidson argues that his will
was so overborne by Investigator Flores‘s comments that his waiver and statement were
not freely and voluntarily given in violation of his due process rights. Unlike the
defendant in Harrison, who remained silent until the agent made that comment, Mr.
Davidson was engaged in the interview and responding to Investigator Flores before the
statements were made. The record does not indicate that Mr. Davidson remained silent,
resisted being interviewed, requested an attorney, or invoked his right against
self-incrimination before or during the interview. Investigator Flores read Mr. Davidson
- 26 -
the Statement of Rights and the waiver form, and Mr. Davidson initialed each of the five
stated rights. Mr. Davidson signed a Waiver of Rights, which states, ―No promises or
threats have been made to me.‖ There is no showing that he construed Investigator
Flores‘s statements as a promise of leniency that compelled him to confess. See Smith,
933 S.W.2d at 455 (holding that promises of leniency do not per se render subsequent
confessions involuntary, but instead the Fifth Amendment prohibits confessions
compelled by promises of leniency).
The trial court considered the Huddleston factors and concluded that Mr.
Davidson‘s recorded statement was not the result of an inappropriate atmosphere or
improper coercion. The evidence does not preponderate against the trial court‘s findings.
Based on these findings of fact, the trial court did not err in denying Mr. Davidson‘s
motion to suppress.
Mr. Davidson also argues that he did not voluntarily and knowingly waive his
right to remain silent before giving his statement because he was given incomplete
Miranda warnings by Investigator McKnight in the police car and on the written waiver
form provided by Investigator Flores. Specifically, Mr. Davidson argues that the
warnings failed to advise him that he was entitled to consult with an attorney before and
during the interview.
The Fifth Amendment to the United States Constitution provides: ―No person . . .
shall be compelled in any criminal case to be a witness against himself.‖ U.S. Const.
amend. V.
Article I, section 9 of the Tennessee Constitution provides that in criminal
prosecutions, ―the accused . . . shall not be compelled to give evidence against himself.‖
This privilege against self-incrimination affords criminal defendants the right to remain
silent. State v. Dotson, 450 S.W.3d 1, 52 (Tenn. 2014), cert. denied, 135 S. Ct. 1535
(2015); Freeland, 451 S.W.3d at 813; State v. Jackson, 444 S.W.3d 554, 585 (Tenn.
2014).
In Miranda v. Arizona, 384 U.S. 436 (1966), the United States Supreme Court
established procedural safeguards to protect the privilege against self-incrimination. Id. at
444. Miranda requires law enforcement to warn a person prior to custodial interrogation
that he has the right to remain silent, that anything he says can be used
against him in a court of law, that he has the right to the presence of an
attorney, and that if he cannot afford an attorney one will be appointed for
him prior to any questioning if he so desires.
- 27 -
Id. at 479. After being given these warnings and an opportunity to exercise these rights
throughout the interrogation, the person being questioned may knowingly and
intelligently waive these rights and agree to answer questions or make a statement. Id.
The interrogation must cease if the right to remain silent is invoked. Freeland, 451
S.W.3d at 814 (citing Miranda, 384 U.S at 473–74). However, the accused must
unambiguously invoke his constitutional right to remain silent. Dotson, 450 S.W.3d at 53
(citing Berghuis v. Thompkins, 560 U.S. 370, 381–82 (2010)).
The State bears the burden of proving by a preponderance of the evidence that the
defendant waived his or her Miranda rights. Freeland, 451 S.W.3d at 814 (citing Climer,
400 S.W.3d at 564; Missouri v. Seibert, 542 U.S. 600, 608 n.1 (2004)). To satisfy this
burden, the prosecution must demonstrate that
the waiver was voluntary in that ‗it was the product of a free and deliberate
choice rather than intimidation, coercion, or deception,‘ and was knowing
in that it was made ‗with a full awareness of both the nature of the right
being abandoned and the consequences of the decision to abandon it.‘
Id. (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). Unless the prosecution can
demonstrate that, based on the totality of circumstances, the defendant‘s waiver was
voluntary and knowing, statements given during the interrogation are not admissible in
the prosecution‘s case-in-chief. Id. 451 S.W.3d at 814 (quoting Miranda, 384 U.S. at
479).
The Miranda warnings given to Mr. Davidson sufficiently advised him of his
rights to consult with counsel and to remain silent. The Statement of Rights advised him
that he had the right to consult with a lawyer and to have one present during questioning.
The Statement of Rights also advised him that, even if he chose to answer questions
without a lawyer present, he could stop answering at any time. Mr. Davidson indicated
verbally that he understood his rights, and he voluntarily signed the written waiver,
acknowledging, ―I understand each of my rights, and I am willing to make a statement
and answer questions without a lawyer present.‖ The absence of the exact language,
―before and during,‖ does not render the warnings insufficient. Miranda does not
mandate a ―talismanic incantation‖ or precise formulation of the warnings. California v.
Prysock, 453 U.S. 355, 359 (1981). The question is only whether the warnings reasonably
conveyed a suspect‘s rights as required by Miranda. Duckworth v. Eagan, 492 U.S. 195,
203 (1989) (quoting Prysock, 453 U.S. at 361). Based on the totality of the
circumstances, we conclude that Mr. Davidson was properly advised of his right to
counsel and to remain silent, he understood his rights, and he knowingly and voluntarily
relinquished those rights.
- 28 -
We hold that the trial court did not err in denying Mr. Davidson‘s motion to
suppress his statement to law enforcement.
Spectator Buttons
Mr. Davidson asserts that the trial court abused its discretion by denying his
motion to prohibit spectators from wearing buttons displaying photographs of the victims
taken before their deaths. The trial court allowed buttons displaying images of the victims
to be worn at trial but imposed restrictions on their use: the buttons could only be worn
by the victims‘ immediate family members, defined as parents, siblings, and
grandparents; the buttons had to be worn on or close to the lapel; the buttons could not be
worn while the family member was testifying; the buttons could show only a photograph
of the victim as a young adult; and the same button had to be worn throughout the trial.
The trial court reasoned that the buttons would express nothing more than normal grief
occasioned by losing a family member and would not brand Mr. Davidson with the mark
of guilt. The trial court explicitly found that the buttons would not create an atmosphere
of coercion or intimidation at trial. The trial court enforced the restrictions and during the
trial, reminded spectators that only immediate family members could wear the buttons.
The Court of Criminal Appeals affirmed the trial court on this issue, noting that
the trial court utilized a measured approach when making its decision and carefully
crafted a rule designed to limit the negative impact of the buttons. Davidson, 2015 WL
1087126, at *35.
Mr. Davidson argues that a per se rule banning the display of buttons should be
adopted. He contends the buttons constituted impermissible victim impact evidence that
showed the emotional effect of the murders on the families, thereby creating an
unacceptable risk that the jurors would be unduly influenced by their own emotional
responses. Mr. Davidson submits that by allowing spectators to wear buttons, the trial
court created an inherently prejudicial courtroom condition that deprived him of his right
to a fair trial. Mr. Davidson also argues that the trial court failed to require spectators to
follow the restrictions placed on the display of the buttons. The State argues that Mr.
Davidson can show neither inherent prejudice nor actual prejudice and therefore is
entitled to no relief.
The right to a trial by an impartial jury is guaranteed by the Fifth, Sixth, and
Fourteenth Amendments to the United States Constitution and Article I, section 9 of the
Tennessee Constitution. State v. Carruthers, 35 S.W.3d 516, 559 (Tenn. 2000). These
constitutional provisions entitle a criminal defendant to a fair trial, not a perfect one.
Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986); State v. Hutchison, 482 S.W.3d 893,
921 (Tenn. 2016). The right to an impartial jury is a fundamental aspect of a fair trial.
State v. Odom, 336 S.W.3d 541, 556 (Tenn. 2011). An impartial jury is ―one which is of
- 29 -
impartial frame of mind at the beginning of trial, is influenced only by legal and
competent evidence produced during trial, and bases its verdict upon evidence connecting
defendant with the commission of the crime charged.‖ Durham v. State, 188 S.W.2d 555,
558 (Tenn. 1945). This Court‘s inquiry is whether the jury that tried the case was fair and
impartial. State v. Leath, 461 S.W.3d 73, 110–11 (Tenn. Crim. App. 2013) (quoting State
v. Taylor, No. W2011-00671-CCA-R3-CD, 2012 WL 2308088, at *6 (Tenn. Crim. App.
June 18, 2012)). A defendant is entitled to have his ―guilt or innocence determined solely
on the basis of the evidence introduced at trial, and not on grounds of official suspicion,
indictment, continued custody, or other circumstances not adduced as proof at trial.‖
Taylor v. Kentucky, 436 U.S. 478, 485 (1978).
We review the trial court‘s decision under an abuse of discretion standard. A trial
court abuses its discretion when it applies an incorrect legal standard, reaches a
conclusion that is not logical, bases its decision on a clearly erroneous assessment of the
evidence, or uses reasoning that causes an injustice to the complaining party. State v.
Davis, 466 S.W.3d 49, 61 (Tenn. 2015). The trial court has broad discretion in controlling
the course and conduct of trial. State v. King, 40 S.W.3d 442, 449 (Tenn. 2001); State v.
Cazes, 875 S.W.2d 253, 260 (Tenn. 1994). One of the court‘s basic responsibilities is to
ensure a fair trial. State v. Holton, 126 S.W.3d 845, 870 app. (Tenn. 2004) (quoting State
v. Franklin, 714 S.W.2d 252, 258 (Tenn. 1986)).
Generally, the trial court, which has presided over the proceedings, is in the
best position to make determinations regarding how to achieve this primary
purpose, and absent some abuse of the trial court‘s discretion in marshalling
the trial, an appellate court should not redetermine in retrospect and on a
cold record how the case could have been better tried.
Franklin, 714 S.W.2d at 258.
Whether spectators can wear buttons displaying images of the victims is an issue
of first impression in Tennessee. The United States Supreme Court addressed
state-sponsored courtroom practices in Estelle v. Williams, 425 U.S. 501, 503–06 (1976),
and Holbrook v. Flynn, 475 U.S. 560, 568 (1986). In Williams, the State required the
defendant to wear an orange prison jumpsuit during his trial. The Supreme Court found
this government action was highly prejudicial and deprived the defendant of due process.
Williams, 425 U.S. at 504. The Court reasoned that the defendant‘s clothing was likely to
be a continuing influence throughout the trial, and there was an unacceptable risk it
would affect a juror‘s judgment. Id. at 504–05. Finding that no essential state policy was
advanced by compelling a defendant to dress in prison clothing at trial, the Supreme
Court held that the practice constituted a violation of due process. Id. at 512. In Flynn, the
issue was whether four uniformed, armed state troopers seated in the front row of the
gallery directly behind the defendant was so inherently prejudicial that he was deprived
- 30 -
of his constitutional right to a fair trial. Flynn, 475 U.S. at 562. The Court determined that
conspicuous presence of security personnel in the courtroom was not an inherently
prejudicial practice, such as shackling and prison clothing. Id. at 568–69. The Court
noted that, unlike a policy requiring defendants to wear prison garb, the deployment of
troopers to maintain security during trial served a legitimate state interest. Id. at 571–72.
Both of these cases involved state-sponsored courtroom practices, rather than the
spectator or private-actor conduct at issue here. In Cary v. Musladin, 549 U.S. 70 (2006),
the United States Supreme Court reviewed a state trial court decision that allowed the
victim‘s family to wear buttons displaying the victim‘s image. The trial court found no
possible prejudice to the defendant and denied the defendant‘s motion to forbid the
buttons. The Court of Appeals for the Ninth Circuit reversed and remanded, concluding
that the state court applied a test for prejudice different from the one stated in Williams
and Flynn, and therefore, the trial court‘s decision was contrary to clearly established
applicable federal law. Id. at 73. In considering the case, the United States Supreme Court
noted that the issue of spectator button display was an open question and one that the
Court had not previously addressed. Id. at 76.
Due to a lack of guidance from the United States Supreme Court, lower courts
resolved the issue of spectator-conduct claims in divergent ways. Some courts applied the
Williams and Flynn standard to spectator conduct. For example, in Norris v. Risley, 918
F.2d 828, 829–30 (9th Cir. 1990), approximately fifteen female members of a Rape Task
Force and the National Organization for Women wore ―Women Against Rape‖ buttons
during the defendant‘s trial for kidnapping and rape. The buttons were two and one-half
inches in diameter with the word ―Rape‖ underlined with a broad red stroke. Id. at 830.
The trial court denied the defendant‘s motion to have the women excluded from the
courtroom or to prevent them from wearing the buttons. Id. at 829. The trial court ruled
that the public was entitled to attend court proceedings and that the buttons constituted no
imminent threat. Id. The defendant was convicted of kidnapping and rape, his convictions
were affirmed on appeal, and his application for habeas corpus relief was denied. Id. The
United States Court of Appeals for the Ninth Circuit held that the defendant did not
receive a fair trial because the risk that the buttons had an impact on the jurors was
unacceptably high. Id. at 834. Relying on the holdings of Williams and Flynn, the Ninth
Circuit concluded that ―these large and boldly highlighted buttons tainted Norris‘s right
to a fair trial both by eroding the presumption of innocence and by allowing extraneous,
prejudicial considerations to permeate the proceedings without subjecting them to the
safeguards of confrontation and cross-examination.‖ Id.
Other courts distinguished Flynn on its facts. For example, in Woods v. Dugger,
711 F. Supp. 586, 594 (M.D. Fla. 1989), the court found that the presence of correctional
officers and co-workers of the victim as spectators was not inherently prejudicial to
defendant‘s right to a fair trial or otherwise intimidated or influenced the jury.
- 31 -
Still other courts have ruled on the button issue without discussing Williams and
Flynn. See, e.g., Buckner v. State, 714 So. 2d 384, 389 (Fla. 1988) (holding that
photograph of the victim displayed by family members and a collage of photographs of
the victim by another spectator were non-prejudicial where the jury had only brief
exposure to the photographs and stated that the display of photographs would not
influence their decisions); State v. Speed, 961 P.2d 13, 30 (Kan. 1998) (finding no
evidence that jurors were affected by buttons or t-shirts but noting in dicta that the
wearing of buttons and t-shirts is ―not a good idea because of the possibility of
prejudice‖); State v. Braxton, 477 S.E.2d 172, 177 (N.C. 1996) (holding that the
incomplete record did not support claim that spectators were trying to influence the jury
by wearing buttons or that they were prejudicial to defendant‘s right to a fair trial); Pachl
v. Zenon, 929 P.2d 1088, 1093 (Or. Ct. App. 1996) (en banc) (holding that the failure of
the defendant‘s trial counsel to object to or move for a mistrial based on spectators
wearing ―Crime Victims United‖ buttons was a legal strategy upon which reasonable
minds could differ and did not entitle defendant to post-conviction relief).
In Musladin, after noting the lack of guidance and resulting divergent opinions, the
United States Supreme Court vacated the decision of the Court of Appeals, concluding
that the state court did not unreasonably apply clearly established federal law. Musladin,
549 U.S. at 77. The Supreme Court, however, did not establish a rule for trial courts to
follow in deciding issues regarding the display of buttons.
Since Musladin, there is no clear consensus on how trial courts should handle
spectator displays of buttons and other victim memorials in the courtroom. See, e.g.,
People v. Zielesch, 101 Cal. Rptr. 3d 628, 638 (Cal. Ct. App. 2009), as modified (Dec. 3,
2009) (following Flynn and Williams and finding that courtroom spectators wearing
buttons depicting image of fallen officer presented no probability of deleterious effects on
the defendant‘s right to a fair trial); Shootes v. State, 20 So. 3d 434, 438 (Fla. Dist. Ct.
App. 2009) (relying on Flynn and Musladin and finding that the presence of spectators
―wearing uniforms, insignia, buttons, or other indicia of support for the accused, the
prosecution, or the victim of the crime does not automatically constitute denial of the
accused‘s right to a fair trial‖); People v. Nelson, 53 N.E.3d 691, 698 (N.Y. 2016)
(declining to apply a per se rule of reversal to spectator conduct, declining to apply the
Williams-Flynn framework, and concluding that spectator displays depicting a victim
should be prohibited in the courtroom during trial, but applying a harmless error
analysis).
Mr. Davidson argues that we should adopt a per se rule banning all spectator
buttons in the courtroom, as images of the deceased create a courtroom condition that
conveys to the jury the emotional impact of the murders on the families and constitute
impermissible impact evidence during the guilt-innocence phase of trial. Victim impact
evidence is evidence that shows the ―financial, emotional, psychological, or physical
- 32 -
effects of the victim‘s death on the members of the victim‘s immediate family‖ and may
be considered by the jury in determining an appropriate punishment. State v. Nesbit, 978
S.W.2d 872, 892 (Tenn. 1998). In Nesbit, the evidence in question concerned the
testimony of the victim‘s mother regarding the impact of her daughter‘s death on the
family, particularly the children. Id. After concluding that victim impact evidence is
admissible at the sentencing phase of a capital trial under due process and evidentiary
constraints, this Court held that the probative value of the proof was not substantially
outweighed by the danger of unfair prejudice. Id. at 893. Nesbit, however, offers no
guidance on whether buttons worn by the immediate family constitute impermissible
victim impact evidence during the guilt-innocence phase of trial.
After carefully reviewing applicable authorities, we conclude that a per se rule
banning buttons is not appropriate. Instead, we extend the Williams-Flynn test to
spectator conduct. Under this framework, trial courts should consider the totality of the
circumstances and decide the issue on a case-by-case basis. Factors to be considered
include the size and appearance of the buttons; by whom, when, and where they are
worn; and whether the buttons display only a photograph of the deceased or contain a
message suggesting or advocating guilt or innocence. A trial court should not allow
buttons to be worn if they are so inherently prejudicial as to pose an unacceptable threat
to the defendant‘s right to a fair trial or when the defendant establishes actual prejudice.
In reaching this decision, we are guided by the decisions of courts from other
jurisdictions allowing buttons and t-shirts with victim photographs and other memorial
displays to be worn at trial in certain circumstances. See, e.g., United States v. Farmer,
583 F.3d 131, 149–50 (2d Cir. 2009) (holding that t-shirts displaying victim‘s photograph
were not so inherently prejudicial as to pose an unacceptable threat to the defendant‘s
right to a fair trial); Overstreet v. State, 877 N.E.2d 144, 159 (Ind. 2008) (finding that
defendant failed to show deficient performance by counsel for failing to object or move
the trial court to disallow spectators from wearing buttons); State v. Iromuanya, 806
N.W.2d 404, 432 (Neb. 2011) (holding that there was no reasonable probability that the
wearing of memorial buttons by spectators displaying an in-life photograph of the victim
created an unacceptable threat to the defendant‘s right to a fair trial); State v. Paige, 654
S.E.2d 300, 303–04 (S.C. Ct. App. 2007) (finding no actual or inherent prejudice resulted
from the trial court‘s refusal to order spectators to remove buttons from their clothing);
State v. Lord, 165 P.3d 1251, 1258–59 (Wash. 2007) (en banc) (finding that buttons
carrying in-life photograph of the victim were a silent display of affiliation, which did not
explicitly advocate guilt or innocence, were not inherently prejudicial); In re Woods, 114
P.3d 607, 616–17 (Wash. 2005) (en banc) (holding that black and orange ribbons worn
by victims‘ families were not inherently prejudicial so as to taint the defendant‘s right to
a fair trial).
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Here, the trial court properly recognized that a fair trial requires the courtroom
atmosphere to be free of coercion or intimidation. After consideration of Mr. Davidson‘s
objections, the trial court established and enforced restrictions on the appearance and
display of the buttons that minimized any prejudicial effect. The buttons were of
reasonably small size, worn by only immediate family members, and contained an image
of a deceased victim. They were not worn while the family member was testifying. The
buttons did not convey a specific message suggesting or advocating guilt or innocence.
The record does not indicate how many family members wore the buttons, the number of
days they were worn, or whether any juror saw the buttons or was affected by the buttons.
Although the trial court noted at one point during the trial that it observed non-family
members wearing the buttons and cautioned against this, there is no indication that the
trial court‘s restrictions on the display of the buttons were not heeded.
We conclude that Mr. Davidson failed to show that the buttons worn by the
victims‘ immediate family members were so inherently prejudicial as to pose an
unacceptable threat to his right to a fair trial or that there was any actual prejudice.
Admissibility of Post-Mortem Photographs
Mr. Davidson argues that the trial court abused its discretion by admitting into
evidence photographs of the victims taken after their deaths. He submits these
photographs, described as ―gruesome, graphic, disturbing, and horrifying,‖ had minimal
probative value. Mr. Davidson contends that the victims‘ injuries and causes of death
were not disputed and therefore the probative value of the photographs was outweighed
by their prejudicial effect and inflamed the jury against Mr. Davidson. The State responds
that the trial court did not abuse its discretion because the photographs were relevant to
show premeditation and the brutality and force of the injuries to the victims. The Court of
Criminal Appeals found no abuse of discretion, holding that the photographs accurately
illustrated the nature and circumstances of the crimes and that the probative value of the
photographs was not substantially outweighed by the danger of unfair prejudice.
Davidson, 2015 WL 1087126, at *26.
Mr. Davidson filed a pretrial motion to exclude the post-mortem photographs of
the victims, arguing that under Tennessee Rule of Evidence 401, the photographs were
not relevant and that under Tennessee Rule of Evidence 403, the photographs would be
substantially more unfairly prejudicial than probative and would inflame, confuse, and
distract the jury. The trial court allowed the State to introduce the photographs after
conducting two pretrial hearings, hearing testimony from the medical examiner that the
photographs were necessary to illustrate her testimony, reviewing approximately seventy
photographs, and excluding many photographs as redundant or lacking probative value.
The twenty-two color photographs that Mr. Davidson argues should not have been
admitted into evidence were introduced during the testimony of the medical examiner.
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Twelve photographs are of Chris‘s body and show the significant charring, how his hands
were tied behind his back and his feet bound together, the fabric wrapped around his
head, the bandana that covered his eyes, the sock in his mouth, the gunshot wounds, and
the blunt force trauma to his anus. Ten photographs show the condition of Channon‘s
body after being removed from the garbage can in Mr. Davidson‘s house. The
photographs show how her partially unclad body was bound, how she was positioned in
the garbage can, the injuries to her face, vagina, and anus from the rapes and the blunt
force trauma, and the evidence of asphyxiation and suffocation.
A trial court has broad discretion regarding the admissibility of photographs. State
v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). A trial court abuses its discretion when it
applies an incorrect legal standard, reaches a conclusion that is not logical, bases its
decision on a clearly erroneous assessment of the evidence, or uses reasoning that causes
an injustice to the complaining party. Davis, 466 S.W.3d at 61.
Before a photograph is admissible, it must be verified and authenticated by a
knowledgeable witness. Banks, 564 S.W.2d at 949. After authentication, the photographs
must be shown to be relevant to the issues at trial. See State v. Vann, 976 S.W.2d 93,
102–03 (Tenn. 1998) (citing State v. Stephenson, 878 S.W.2d 530, 542 (Tenn. 1994);
Banks, 564 S.W.2d at 951). Relevant evidence is ―evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.‖ Tenn. R. Evid. 401. In
other words, ―[t]o be relevant, evidence must tend to prove a material issue.‖ Tenn. R.
Evid. 401 advisory commission comment; see also State v. Faulkner, 154 S.W.3d 48, 67
(Tenn. 2005) (holding that ―a photograph must be found relevant to an issue that the jury
must decide before it may be admitted into evidence‖). Factors to be considered in
determining the relevance of photographic evidence include the photograph‘s accuracy
and clarity, the need for the photograph to be used in addition to testimonial evidence to
relate the facts to the jury, and the need to admit the photograph to establish the elements
of the crime or to rebut the defendant‘s contentions. Banks, 564 S.W.2d at 951.
Generally, relevant evidence is admissible. However, relevant evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice. Tenn. R. Evid. 403; see Vann, 976 S.W.2d at 102–03 (citing Stephenson, 878
S.W.2d at 542; Banks, 564 S.W.2d at 951). Exclusion of relevant evidence is an
extraordinary remedy that should be used sparingly, and the party seeking to exclude the
evidence bears a heavy burden of persuasion. State v. James, 81 S.W.3d 751, 757–58
(Tenn. 2002) (citing White v. Vanderbilt Univ., 21 S.W.3d 215, 227 (Tenn. Ct. App.
1999)).
After determining that photographic evidence is relevant, the trial court must then
weigh its probative value against any undue prejudice. Banks, 564 S.W.2d at 951. A
- 35 -
relevant photograph ―may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.‖ Id. (quoting Fed. R. Evid. 403). ―[T]he issue is not whether the evidence is
prejudicial, but whether it is unfairly prejudicial.‖ Vann, 976 S.W.2d at 103 (alteration in
original) (citing State v. DuBose, 953 S.W.2d 649, 655 (Tenn. 1997)). ―‗[U]nfair
prejudice‘ is ‗[a]n undue tendency to suggest decision on an improper basis, commonly,
though not necessarily, an emotional one.‘‖ Id. at 103 (quoting DuBose, 953 S.W.2d at
654). Photographs must never be used ―solely to inflame the jury and prejudice them
against the defendant.‖ Banks, 564 S.W.2d at 951 (citing Milam v. Commonwealth, 275
S.W.2d 921, 924 (Ky. 1955)).
Photographs of a corpse may be admissible even though the photographs may be
of a ―gruesome and horrifying character.‖ Id. at 950–51 (citing People v. Jenko, 102
N.E.2d 783, 785 (Ill. 1951)). The more gruesome the photograph, the more likely it is
that a defendant can establish that the photograph‘s prejudicial effect outweighs its
probative value. See id. at 951 (citing Commonwealth v. Scaramuzzino, 317 A.2d 225,
226 (Pa. 1974)).
Admission of photographs of a murder victim is often problematic. Post-mortem
photographs can be helpful to show how the victim died and the nature of the injuries
inflicted before death. Post-mortem pictures can also be relevant to the issue of
deliberation or premeditation. See id. at 950. The intent to kill may be inferred from the
brutality of the attack. Id. (quoting State v. LaChance, 524 S.W.2d 933, 937 (Tenn.
1975), abrogated on other grounds by State v. Brown, 836 S.W.2d 530, 543 (Tenn.
1992)). ―[T]he succession of blows, the patently vicious manner of their infliction, the
enormity of the cruelty and the horrendous injuries suffered provide further evidence of a
wil[l]ful execution of an intent to kill.‖ Id. (quoting LaChance, 524 S.W.2d at 937–38).
The manner in which the killing was committed, such as ―repeated shots, blows, and
other acts of violence‖ may constitute sufficient evidence of premeditation. Id. (quoting
LaChance, 524 S.W.2d at 938). Post-mortem photographs can be gruesome because of
their subject matter, and therefore their prejudicial effect must be considered.
In State v. Willis, 496 S.W.3d 653 (Tenn. 2016), petition for cert. filed, No.
16-6995 (U.S. Nov. 21, 2016), we held the trial court did not abuse its discretion in
admitting a number of graphic post-mortem photographs during the guilt and sentencing
phases of the defendant‘s capital trial. The challenged photographs in Willis included
color photographs of the decomposed bodies of the two victims, one of which had been
mutilated after death. Id. at 725. The photographs from the guilt phase depicted the
locations of the victims‘ bullet wounds, fly larvae and pupae, a storage tote containing the
body of one of the victims, one victim‘s bound hands and feet, and one victim‘s severed
head and hands. Id. The photographs from the sentencing phase depicted the severely
- 36 -
decomposed headless and handless body of one victim and that victim‘s severed and
severely decomposed head. Id. We found that each of these photographs had probative
value. Id. at 727. The photographs admitted during the guilt phase were probative on the
contested issues of premeditation and time of death, and the photographs admitted during
the sentencing phase were probative on the aggravating circumstances, which supported
the State‘s decision to seek the death penalty. Id. Further, in considering the danger of
unfair prejudice, we observed that it is fair to consider the grotesque and horrifying
nature of the charged conduct. Id. at 729. To the extent the photographs tended to be
shocking or gruesome, it was because the crime depicted was of that sort. Id. (quoting
State v. Sandles, 740 S.W.2d 169, 177 (Mo. 1987) (en banc)). We held in Willis that the
defendant‘s failure to establish the probative value of the challenged photographs was
substantially outweighed by the danger of unfair prejudice. Id.
In State v. Brown, 836 S.W.2d 530, 551–52 (Tenn. 1992), this Court found no
error in the trial court‘s admission of nine color, close-up photographs of the deceased
victim‘s body. The State presented testimony regarding the injuries, but under the Banks
standards, we held the graphic photographs were relevant to the brutality of the attack
and extent of force used against the victim, from which the jury could infer the element
of malice. Id. at 551 (citing Banks, 564 S.W.2d at 950). We noted that each photograph
represented a different part of the victim‘s body and that no two photographs depicted the
same injuries. Id.
In State v. Cole, 155 S.W.3d 885, 912–13 (Tenn. 2005), this Court upheld the
admissibility of post-mortem photographs of the victim‘s scalp, which showed a ring of
soot around a bullet wound. The photographs were relevant to supplement the medical
examiner‘s testimony that the bullet wound was inflicted from contact range, which
supported an inference of premeditation and contradicted the defendant‘s claim of
self-defense and the defendant‘s statement to police that he shot the victim from a few
feet away. Id. at 913. We concluded that the probative value of the photographs was not
outweighed by their prejudicial effect. Id.
In State v. Carter, 114 S.W.3d 895, 903–04 (Tenn. 2003), we upheld the trial
court‘s decision to admit into evidence three photographs depicting the bodies of two
murder victims at the crime scene. The photographs showed a male victim‘s body
crouched in a closet and covered with blood and a female victim‘s body lying in a pool of
blood on a bathroom floor. Id. at 901. One photograph showed that the female victim was
partially nude. Id. We held that the photographs were relevant to show the nature and
circumstances of the crimes and to demonstrate the ―especially heinous, atrocious, or
cruel‖ aggravating circumstance for the crimes. Id. at 903 (quoting Tenn. Code Ann.
§ 39-13-204(i)(5)). We further held that the probative value of the photographs was not
substantially outweighed by the danger of unfair prejudice. Id. at 904.
- 37 -
Applying these factors here, we find the trial court did not abuse its discretion in
admitting the photographs into evidence. The trial court reviewed numerous photographs
and only allowed certain photographs to be admitted into evidence. The verification and
authenticity of the photographs were not in dispute. The photographs accurately depicted
different aspects of Channon‘s and Chris‘s bodies and the injuries inflicted on them. The
photographs were not cumulative because they showed different views of various parts of
their bodies, and they assisted in the jury‘s understanding of the medical examiner‘s
testimony. During the pretrial hearing, the medical examiner stated that she could testify
about her findings but that her testimony alone was ―not good enough‖ for the jury to
truly comprehend the method and manner of the victims‘ deaths. During her trial
testimony, she used the photographs to describe how the victims died, including showing
the binding around Chris‘s hands and feet, the shirt wrapped around his head, the sock
placed in his mouth, the places where he had been shot, how severely burned and charred
his body was, the damage to his anus from blunt force trauma, how Channon was bound
and positioned in the garbage can, and the injuries to various parts of her body. These
photographs were relevant to the issues at trial. They showed that the manner in which
the rapes and murders were committed was deliberate, premeditated, and took some time
to accomplish. They also showed the repeated blunt force trauma that the victims endured
and the extent of their injuries. The photographs were graphic but not unnecessarily
gruesome or horrifying especially given the facts. The photographic evidence of the
torture inflicted on the victims during their last hours cannot be ignored or recreated in
any other manner. The photographs were likely prejudicial to Mr. Davidson—but not
unfairly prejudicial.
We conclude that the photographs were relevant and that their probative value was
not substantially outweighed by the danger of unfair prejudice. We hold that the trial
court did not abuse its discretion in admitting the photographs of the victims into
evidence.
Jury’s Review of Evidence in Courtroom
Mr. Davidson argues the trial court erred in allowing the deliberating jury to view
his video recorded statement in the courtroom with members of the public present. Mr.
Davidson contends this public display violated the sanctity of jury deliberations, and the
jury improperly conducted deliberations in the courtroom. The State submits the trial
court did not abuse its discretion in allowing the jury to review the video recorded
statement in open court and that the jury did not deliberate openly. The Court of Criminal
Appeals held that the trial court should have shown the jury how to operate the
equipment in the courtroom and then left them to review the recording alone. Because
this error did not prejudice the defendant, the intermediate appellate court concluded it
was harmless error. Davidson, 2015 WL 1087126, at *60.
- 38 -
A video recording of a statement Mr. Davidson gave to law enforcement after his
arrest was introduced into evidence as a part of the State‘s proof. During deliberations,
the jury sent the trial court a note asking to review Mr. Davidson‘s statement. The trial
court granted the jury‘s request and determined that the video should be shown on the
screen in the courtroom rather than in the jury room. The trial court reasoned this
procedure would allow the court and counsel to view the same evidence the jury was
viewing and to ensure the equipment worked properly. Because the viewing was to occur
in the courtroom, the trial court determined it was a public proceeding and spectators
could remain in the courtroom. The trial court admonished everyone not to make any
comments or react to the video. Mr. Davidson‘s counsel objected, arguing that jury
deliberations were not public proceedings and should not be conducted in the courtroom.
The trial court overruled the objection, stating the jury was only being brought into the
courtroom to view the video and that no jury deliberations or discussions would occur in
the courtroom. After the jury was brought into the courtroom, the foreperson asked the
trial court whether the video could be zoomed in on Mr. Davidson and the volume
increased. The trial court responded that the video recording could not be adjusted to
zoom in and that the volume was at the highest level. The jury watched a portion of Mr.
Davidson‘s statement while members of the public were present. After approximately one
hour and twenty minutes, the trial court recessed the proceedings for a break, and the jury
retired to the jury room. During the break, the jury sent a note to the trial court indicating
they had seen enough of the video.
We review this issue under an abuse of discretion standard. State v. Smith, 993
S.W.2d 6, 32 (Tenn. 1999); State v. Jenkins, 845 S.W.2d 787, 793 (Tenn. Crim. App.
1992). ―A trial court abuses its discretion when it applies an incorrect legal standard,
reaches an illogical conclusion, bases its decision on a clearly erroneous assessment of
the evidence, or employs reasoning that causes an injustice to the complaining party.‖
State v. Smith, 492 S.W.3d 224, 243 (Tenn. 2016) (citing Davis, 466 S.W.3d at 61).
Mr. Davidson argues that the jury‘s viewing of his statement in open court was an
intrusion on the secrecy of jury deliberations. It is well-established that jury deliberations
shall remain private and secret. See United States v. Olano, 507 U.S. 725, 737 (1993);
Rushing v. State, 565 S.W.2d 893, 895 (Tenn. Crim. App. 1977); see also Yeager v.
United States, 557 U.S. 110, 122 (2009) (―The jury‘s deliberations are secret and not
subject to outside examination.‖). The sanctity of jury deliberations is a fundamental
tenet of our criminal justice system. United States v. Schwarz, 283 F.3d 76, 97 (2d Cir.
2002). The right to a jury trial requires that the jury be unbiased and impartial when
deciding factual issues. State v. Smith, 418 S.W.3d 38, 45 (Tenn. 2013). ―[T]he primary if
not exclusive purpose of jury privacy and secrecy is to protect the jury‘s deliberations
from improper influence.‖ Olano, 507 U.S. at 737–38.
- 39 -
Although jury deliberations should remain private and no jury deliberations should
occur in public, the jury‘s viewing of evidence in the open courtroom does not
necessarily violate the privacy of jury deliberations. Tennessee Rule of Criminal
Procedure 30.1 provides that ―[u]nless for good cause the court determines otherwise, the
jury shall take to the jury room for examination during deliberations all exhibits and
writings, except depositions, that have been received in evidence.‖ Tenn. R. Crim. P.
30.1. Based on this rule, jurors may examine evidence in the jury room during
deliberations. This rule, however, does not address how jurors may view evidence, such
as video recorded statements that require special equipment for viewing and cannot be
appropriately examined or viewed in the jury room.
The Court of Criminal Appeals has held the trial court does not abuse its discretion
by allowing the jury to view evidence in the open courtroom. See, e.g., Jenkins, 845
S.W.2d at 793 (finding no abuse of discretion under ABA Standards for Criminal Justice,
Trial by Jury, Standard 15-5.25 where the trial court allowed the jury, in open court, to
view a tape of an eyewitness‘s testimony); State v. Phillips, No.
E1999-02776-CCA-R3-CD, 2000 WL 1877486, at *5 (Tenn. Crim. App. Dec. 28, 2000)
(citing Jenkins, 845 S.W.2d at 792, 793; Standards Relating to Admin. of Criminal
Justice 15-4.2) (holding that the trial court acted within its discretion in replaying
detective‘s testimony for the jury in open court); cf. State v. Case, No.
M2014-00949-CCA-R3-CD, 2015 WL 7458507, at *13 (Tenn. Crim. App. Nov. 24,
2015) (holding if the jury must review evidence in the courtroom, the better practice is
for the court officer to bring the jury into the courtroom without the presence of the trial
court and counsel; if the jury views the evidence in the courtroom with the judge and
counsel present, then the defendant should also be present); State v. Morris, No.
M2005-02909-CCA-R3-CD, 2007 WL 609203, at *3 (Tenn. Crim. App. Feb. 26, 2007)
(criticizing decision of the trial court to allow the jury during deliberations to view a
video in open court with the defendant and counsel present rather than instructing the jury
on the operation of the equipment and then leaving the jury alone to view the video, but
finding no prejudice to the defendant, no violation of Rule 30.1, and no abuse of
discretion).
Courts in other jurisdictions have also found no abuse of discretion by the trial
court in allowing the jury to review or rehear recorded evidence in open court. See, e.g.,
United States v. Muhlenbruch, 634 F.3d 987, 1001–02 (8th Cir. 2011) (finding no abuse
of discretion by the trial court by allowing the jury to review a videotaped confession in
5
ABA Standards Relating to the Administration of Criminal Justice, Standard 15-4.2 was revised
and redesignated 15-5.2. ABA Standard 15-5.2 provides that ―[u]nless the court decides that a review of
requested testimony is inappropriate, the court should have the requested parts of the testimony submitted
to the jury in the courtroom.‖
- 40 -
open court); United States v. Plato, 629 F.3d 646, 652 (7th Cir. 2010) (finding that the
district judge acted within her discretion by allowing the jurors to watch the surveillance
video in slow motion in open court); United States v. Thabateh, 40 F. App‘x 392, 395
(9th Cir. 2002) (holding that there was no error in permitting the jury to read along in the
transcript as the tape was replayed in open court during deliberations); Maples v. State,
758 So. 2d 1, 63 (Ala. Crim. App. 1999) (holding that the trial court did not err in
allowing jury‘s review of videotaped confession and audiotape of 911 call in open court);
State v. Blankinship, 622 P.2d 66, 70 (Ariz. Ct. App. 1980) (holding that ―[s]ince the jury
requested the repeated playings of the taped confession, the court acted within its
discretion in allowing the tape to be played in open court‖); State v. Jones, 102 A.3d 694,
701 (Conn. 2014) (holding that the trial court properly exercised its discretion by
requiring the jury to review video in open court because of equipment issues); State v.
Osbourne, 53 A.3d 284, 296–98 (Conn. App. Ct. 2012) (finding no error in replaying
video evidence in open court, under the supervision of the trial judge and in the presence
of counsel and the parties, despite the jury‘s request to review the evidence ―in private‖);
Bridges v. State, 613 S.E.2d 621, 625 (Ga. 2005) (stating that the accepted practice is to
bring the jury back into open court to rehear recorded evidence during deliberations);
Summage v. State, 546 S.E.2d 910, 913 (Ga. 2001) (holding that the trial court has the
discretion to allow the jury to rehear recorded statements if done in open court); Sturma
v. State, 683 N.E.2d 606, 609–10 (Ind. Ct. App. 1997) (finding the trial court did not
abuse its discretion by allowing testimony to be replayed for the jury in open court);
Linger v. State, 508 N.E.2d 56, 61 (Ind. Ct. App. 1987) (holding that state law ―required
the judge, on the jury‘s request, to replay the properly admitted audio tape in open
court‖); State v. Daby, 197 N.W.2d 670, 672 (Minn. 1972) (stating that when a jury
requests to review testimony, the proper procedure is set forth in ABA Standard 5.2(a));
State v. Anthony, 837 S.W.2d 941, 945 (Mo. Ct. App. 1992) (determining that ―allowing
the jury to hear the tape during deliberations was not an abuse of discretion. The tape had
been played in open court‖); State v. Weston, 118 A.3d 331, 340 (N.J. 2015) (holding that
replay of a videotaped witness statement or testimony ―must be conducted in open court,
under the careful supervision of the trial judge‖ to address concerns that a particular
segment will be overemphasized or viewed out of context); State v. Miller, 13 A.3d 873,
881 (N.J. 2011) (holding that video playbacks should take place in open court with all
parties present); State v. Morgensen, 197 P.3d 715, 718–19 (Wash. Ct. App. 2008)
(finding that the trial court took proper precautions prior to playing audiotape of
testimony in open court to the deliberating jury in part by cautioning the parties ―not to
make expressions of any kind during the playing of the tape‖); State v. Hughes, 691
S.E.2d 813, 826–27 (W. Va. 2010) (surveying cases and finding it is ―universally
accepted‖ that a trial court may allow the jury, while deliberating, to return to open court
to review a tape recording admitted into evidence).
We hold that during jury deliberations, when a jury requests to view or hear
evidence that cannot be appropriately examined in the jury room, the trial court should
- 41 -
bring the jury into the courtroom with the parties and counsel present to view the
evidence. The trial court, in its discretion, may allow members of the public to remain in
the courtroom or may conduct the viewing with only counsel and the parties present. The
trial court should instruct the jury that it is not to deliberate in the courtroom and should
admonish the parties, counsel, and any spectators not to comment on the evidence or in
any manner attempt to influence the jury.
Here, the trial court did not abuse its discretion by allowing the jury to view the
recorded statement in the courtroom. There is no evidence that the jury deliberated in
open court, that the jury was exposed to any outside influence, or that the public
interfered with the secretive deliberative process. The jury‘s request to adjust the video to
zoom in on Mr. Davidson and to increase the volume and the note from the jury that it
had seen enough of the video did not constitute jury deliberations. The trial court did not
abuse its discretion by allowing the jury to view the video recorded statement in the
courtroom with members of the public present.
Admissibility of Expert Testimony
Ballistics
Mr. Davidson argues that the trial court abused its discretion by admitting
ballistics evidence through the testimony of Knoxville Police Department Firearms
Examiner Patricia M. Resig. Mr. Davidson‘s argument is two-fold: the evidence was not
relevant under Tennessee Rules of Evidence 401 and 403, and as scientific testimony
under Tennessee Rules of Evidence 702 and 703, it failed to satisfy the factors required
for admissibility under McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257, 265
(Tenn. 1997). In response, the State argues Ms. Resig‘s testimony was relevant under
Rules 401 and 403 and her testimony was admissible based on the McDaniel factors and
Rules 702 and 703. The Court of Criminal Appeals held that the trial court had not
abused its discretion by admitting the ballistics evidence. Davidson, 2015 WL 1087126,
at *33.
At the pretrial hearing on Mr. Davidson‘s motion in limine, Ms. Resig testified she
has a Bachelor of Science degree in nursing, a Bachelor of Arts degree in anthropology,
and two years of intensive training in firearm and tool mark examination from the Florida
Department of Law Enforcement. She has worked as a Knoxville Police Department
firearms examiner for ten years and has made 600 to 700 comparisons yearly. The
Knoxville Police Department is accredited by the Commission on Accreditation for Law
Enforcement Agencies, which establishes and administers an accreditation process
specifically for law enforcement agencies. Ms. Resig is not certified by the Association
of Firearm and Tool Mark Examiners, and the Knoxville Police Department is not
accredited by the American Society of Crime Laboratory Directors. Ms. Resig had
- 42 -
previously been qualified as an expert in firearms examination and testified as an expert
witness regarding ballistics.6 On this record, we agree with the trial court that Ms. Resig
was qualified to testify as an expert witness.
Ms. Resig explained that her process for examining firearms involves a
comparative analysis of bullets to bullets, cartridge cases to cartridge cases, or bullets and
cartridge cases to those that have been test-fired. Ms. Resig testified that she looks at
firearms class characteristics, including caliber, the number and measurement of rifling
marks called lands and grooves, and the direction of twists. Ms. Resig then examines the
individual characteristics of the bullet or cartridge case being compared, such as firing
pin impressions, breech face marks, and location and shape of extractor and ejector
marks. The result of her analysis is either an identification or an elimination, or the result
is inconclusive. When determining whether a bullet was discharged from a particular
firearm, Ms. Resig compares it to a bullet test-fired from the same weapon. If the bullets
have different class characteristics, the finding is elimination. If they have shared class
characteristics, she compares the individual characteristics, such as unintentional
imperfections, irregularities of tool surfaces used to make the gun, the barrel, or the
breech face. Ms. Resig testified, ―It‘s like a fingerprint,‖ and uniqueness may result from
use, abuse, corrosion, and erosion. Ms. Resig stated that sufficient agreement of
individual characteristics allows her to make a positive identification.
6
See, e.g., State v. Brown, No. E2015-00899-CCA-R3-CD, 2016 WL 3633474, at *4 (Tenn.
Crim. App. June 29, 2016); State v. Jackson, No. E2014-01387-CCA-R3-CD, 2015 WL 6756318, at *3
(Tenn. Crim. App. Nov. 5, 2015), perm. app. denied (Tenn. May 5, 2016); State v. Campbell, No. E2014-
00697-CCA-R3-CD, 2015 WL 6155893, at *4 (Tenn. Crim. App. Oct. 20, 2015), perm. app. denied
(Tenn. Apr. 6, 2016), petition for cert. docketed, No. 16-5256 (U.S. July 19, 2016); State v. Keith, No.
E2014-00448-CCA-R3-CD, 2015 WL 4366575, at *4 (Tenn. Crim. App. July 16, 2015), perm. app.
denied (Tenn. Jan. 14, 2016); State v. Harris, No. E2014-00822-CCA-R3-CD, 2015 WL 871740, at *5
(Tenn. Crim. App. Feb. 28, 2015), perm. app. denied (Tenn. May 14, 2015); State v. Smith, No. E2013-
00215-CCA-R3-CD, 2014 WL 4215882, at *14 (Tenn. Crim. App. Aug. 27, 2014), perm. app. denied
(Tenn. Jan. 16, 2015); State v. James, No. E2012-01912-CCA-R3-CD, 2013 WL 4680205, at *12 (Tenn.
Crim. App. Aug. 29, 2013); State v. Goodman, No. E2011-02044-CCA-R3-CD, 2012 WL 6633845, at *4
(Tenn. Crim. App. Dec. 20, 2012); State v. Smith, No. E2010-00549-CCA-R3-CD, 2011 WL 5517646, at
*3 (Tenn. Crim. App. Nov. 14, 2011); State v. Echols, No. E2009-01697-CCA-R3-CD, 2011 WL
2418737, at *2 (Tenn. Crim. App. June 14, 2011), aff’d, 382 S.W.3d 266 (Tenn. 2012); State v. McLean,
No. E2009-00221-CCA-R3-CD, 2010 WL 4323029, at *2 (Tenn. Crim. App. Oct. 29, 2010); State v.
Nolan, No. E2008-02762-CCA-R3-CD, 2009 WL 5083496, at *5 (Tenn. Crim. App. Dec. 28, 2009);
State v. Foster, No. E2007-01585-CCA-R3-CD, 2009 WL 3335580, at *7 (Tenn. Crim. App. Oct. 16,
2009); State v. Burnett, No. E2007-01788-CCA-R3-CD, 2008 WL 4613531, at *2 (Tenn. Crim. App. Oct.
1, 2008); State v. Mattress, No. E2006-00862-CCA-R3-CD, 2007 WL 2325352, at *5 (Tenn. Crim. App.
Aug. 16, 2007); State v. Mobley, No. E2006-00469-CCA-R3-CD, 2007 WL 1670195, at *4 (Tenn. Crim.
App. June 11, 2007); State v. Thompson, No. E2003-00569-CCA-R3-CD, 2004 WL 1592817, at *3
(Tenn. Crim. App. July 16, 2004).
- 43 -
Ms. Resig examined a .22 caliber High Standard Model Sentinel revolver, a .22
caliber Clerke revolver, six .22 caliber long-rifle Remington cartridges, a .30 M1 caliber
Universal semi-automatic Carbine with a detachable magazine, two .22 caliber
Remington test-fired cartridges, and three .22 caliber bullets removed from Chris‘s body.
The High Standard revolver was found with Mr. Davidson when he was arrested, the
Clerke revolver was found in a box under a bed at Ms. Hays‘s house after Mr. Cobbins
was arrested, and the Carbine and .22 cartridges were found in Mr. Davidson‘s house
when it was searched.
Ms. Resig test fired each of the revolvers and compared the test-fired bullets to the
two bullets removed from Chris‘s neck and back. The bullet that was taken from his skull
was damaged and could not be compared. She concluded that the bullets removed from
Chris‘s neck and back were fired from the same weapon.
Ms. Resig compared the test-fired bullets from the High Standard and Clerke
revolvers with two bullets recovered from Chris‘s body. The bullets from the High
Standard shared similar class characteristics, but there was a lack of agreement or
disagreement of the individual characteristics such that she could not be 100 percent
certain they were fired from the High Standard revolver. The similar class characteristics
indicated the bullets could have been fired by the High Standard revolver and other
revolvers made by several manufacturers, including FIE, High Standard, Regent, Rossie,
Smith & Wesson, and Taurus. Ms. Resig‘s analysis showed that the six cartridge cases
found at Mr. Davidson‘s house were fired from the High Standard revolver. The test-fired
bullets from the Clerke revolver and the bullets removed from Chris‘s body shared class
characteristics, but there was significant disagreement of the individual characteristics
such that she excluded the Clerke revolver as the murder weapon.
The trial court admitted Ms. Resig‘s testimony under Tennessee Rules of Evidence
401 and 403, finding her testimony relevant and its probative value not substantially
outweighed by the danger of unfair prejudice or jury confusion. The trial court further
concluded that Ms. Resig‘s testimony satisfied the McDaniel factors. The Court of
Criminal Appeals affirmed the trial court‘s decision, finding no abuse of discretion.
Davidson, 2015 WL 1087126, at *33.
We first consider Mr. Davidson‘s challenge to the relevancy of Ms. Resig‘s
testimony. Tennessee Rule of Evidence 401 defines ―relevant evidence‖ as ―evidence
having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.‖ Tenn. R. Evid. 401. In general, relevant evidence is admissible, and irrelevant
evidence is inadmissible. Tenn. R. Evid. 402. The court may, however, exclude relevant
evidence if its ―probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of undue
- 44 -
delay, waste of time, or needless presentation of cumulative evidence.‖ Tenn. R. Evid.
403. Prejudicial evidence is not excluded as a matter of law under Rule 403. The court
must still determine the relevance of the evidence and weigh its probative value against
any undue prejudice. State v. Reid, 164 S.W.3d 286, 330 (Tenn. 2005) (citing Carruthers,
35 S.W.3d at 577).
The plain language of these rules ―strongly suggests that when the balance
between the evidence‘s probative value and any prejudicial effect is close, the evidence
should be admitted.‖ White v. Beeks, 469 S.W.3d 517, 528 (Tenn. 2015), as revised on
denial of reh’g (Aug. 26, 2015) (quoting Goodale v. Langenberg, 243 S.W.3d 575, 587
(Tenn. Ct. App. 2007)). Excluding relevant evidence under Rule 403 is an ―extraordinary
step that should be used sparingly.‖ Id. at 528 (quoting Levine v. March, 266 S.W.3d 426,
439 (Tenn. Ct. App. 2007)). Under these rules, trial courts possess the inherent authority
to exclude any evidence that would ―threaten the fairness of the trial process.‖ State v.
Sexton, 368 S.W.3d 371, 408 (Tenn. 2012), as corrected (Oct. 10, 2012) (citing Neil P.
Cohen et al., Tennessee Law of Evidence § 8.01[3][a], at 4–60 (5th ed. 2005)).
We review a trial court‘s decision to admit evidence under an abuse of discretion
standard. State v. Bell, No. W2012-02017-SC-DDT-DD, 2015 WL 12582638, at *15
(Tenn. Sept. 10, 2015), cert. denied, 136 S. Ct. 2006 (2016) (citing State v. Banks, 271
S.W.3d 90, 116 (Tenn. 2008)). A decision to admit evidence will be reversed only when
the court applied an incorrect legal standard, reached an illogical conclusion, or based its
decision on a clearly erroneous assessment of the evidence or employs reasoning that
causes an injustice to the party complaining. Bell, 480 S.W.3d at 508 (citing Banks, 271
S.W.3d at 116).
Mr. Davidson argues this ballistics evidence was not relevant because it did not
assist the trier of fact in determining whether the High Standard revolver was used in the
commission of crimes and any probative value was substantially outweighed by the
likelihood of unduly prejudicing, misleading, or confusing the jury. Although Ms. Resig
could not state with certainty that the High Standard revolver was the murder weapon,
she testified that it shared common class characteristics with the bullets found in Chris‘s
body and therefore could have been used to fire the bullets. Mr. Davidson argues this
testimony does not assist the trier of fact because thousands of guns made by different
manufacturers could have fired bullets with similar class characteristics to those test-fired
from the High Standard revolver. Mr. Davidson argues that the cartridge casings were
found at his house, not where Chris‘s body was found, and therefore, this evidence was
not probative.
We conclude that the trial court did not abuse its discretion in allowing Ms. Resig
to testify. Her testimony, while not highly probative, was sufficiently probative on
whether the bullets found in Chris‘s body were fired from Mr. Davidson‘s High Standard
- 45 -
revolver and thus material to the issue of Mr. Davidson‘s guilt or innocence. The jury
could infer from Ms. Resig‘s testimony that the High Standard revolver was the weapon
used to shoot Chris because test bullets and the bullets from Chris‘s body shared class
characteristics and that the cartridge cases found in Mr. Davidson‘s house were
associated with the murder. It was up to the jury to decide how much weight to give this
testimony. Mr. Davidson‘s counsel effectively cross-examined Ms. Resig and had the
option of calling his own expert ballistics witness. Under these circumstances, the trial
court did not err by admitting the evidence.
Mr. Davidson also argues that Ms. Resig‘s testimony was inadmissible under
Rules 702 and 703 because it failed to comply with the McDaniel factors. The trial court,
after considering the McDaniel factors, determined Ms. Resig‘s testimony was
admissible. We agree.
The admissibility of expert testimony is governed by Tennessee Rules of Evidence
702 and 703. Rule 702 addresses when expert testimony is needed and the expert‘s
qualifications.7 Rule 703 focuses on reliability of expert testimony.8 In McDaniel, this
Court identified five nonexclusive factors courts are to consider in assessing the
reliability of expert testimony:
(1) whether scientific evidence has been tested and the methodology with
which it has been tested; (2) whether the evidence has been subjected to
peer review or publication; (3) whether the potential rate of error is known;
(4) whether . . . the evidence is generally accepted in the scientific
community; and (5) whether the expert‘s research in the field has been
conducted independent of litigation.
7
Rule 702 provides: ―If scientific, technical, or other specialized knowledge will substantially
assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or
otherwise.‖ Tenn. R. Evid. 702.
8
Rule 703 provides:
The facts or data in the particular case upon which an expert bases an opinion or
inference may be those perceived by or made known to the expert at or before the
hearing. . . . Facts or data that are otherwise inadmissible shall not be disclosed to the jury
by the proponent of the opinion or inference unless the court determines that their
probative value in assisting the jury to evaluate the expert‘s opinion substantially
outweighs their prejudicial effect. The court shall disallow testimony in the form of an
opinion or inference if the underlying facts or data indicate lack of trustworthiness.
Tenn. R. Evid. 703.
- 46 -
McDaniel, 955 S.W.2d at 265. These factors are not requirements for admissibility but
may be considered by the trial judge when weighing the reliability of the expert
testimony and forensic evidence. A court ―must assure itself that the [expert‘s] opinions
are based on relevant scientific methods, processes, and data, and not upon an expert‘s
mere speculation.‖ Id. Instead of a rigid application of the McDaniel factors, their
application in assessing reliability depends upon the nature of the issue, the witness‘s
particular expertise, and the subject of the expert‘s testimony. Brown v. Crown Equip.
Corp., 181 S.W.3d 268, 277 (Tenn. 2005) (citing State v. Stevens, 78 S.W.3d 817, 833
(Tenn. 2002); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999)); State v. Scott,
275 S.W.3d 395, 402 (Tenn. 2009).
Determinations regarding the qualifications, admissibility, relevance, and
competence of expert testimony fall within the broad discretion of the trial court and will
be overturned only for an arbitrary exercise or abuse of that discretion. McDaniel, 955
S.W.2d at 263–64; Scott, 275 S.W.3d at 404 (citing State v. Reid, 91 S.W. 247, 294
(Tenn. 2002); Stevens, 78 S.W.3d at 832). A trial court abuses its discretion if it applies
an incorrect legal standard or reaches an illogical or unreasonable decision that results in
injustice to the complaining party. Stevens, 78 S.W.3d at 832 (quoting State v. Shuck, 953
S.W.2d 662, 669 (Tenn. 1997)). When assessing the admissibility of expert testimony,
the trial court must first determine whether the witness is qualified by knowledge, skill,
experience, training, or education to express an opinion within the limits of his or her
expertise. Scott, 275 S.W.3d at 402 (citing Stevens, 78 S.W.3d at 834). The determinative
factor is whether the witness‘s qualifications authorize him or her to give an informed
opinion on the subject. Stevens, 78 S.W.3d at 834.
On the first McDaniel factor regarding the validity of the methodology, Mr.
Davidson argues that the methodology underlying ballistics evidence is unreliable.
Relying again on a 2009 publication by the National Research Council, Mr. Davidson
contends ballistics testing to match a firearm to a particular bullet fired is unsupported by
science. Ms. Resig testified that firearms examination has been subject to scientific
review and repeated testing. She testified that ―there is an extensive body of research
extending back over probably 100 years which establishes the accuracy, the reliability,
and validity of conclusions rendered in the field of firearm and tool mark . . .
examination.‖ While the National Research Council publication may suggest more
research is needed in the field of ballistics, particularly for identification based on
individualized characteristics, Mr. Davidson has not demonstrated that the methodology
or science underlying ballistics evidence is unreliable.
On the second McDaniel factor regarding peer testing or publication, Ms. Resig
referenced studies from the Association of Firearm and Tool Mark Examiners Journal, a
scientific peer review journal published four times a year. As for her particular findings,
Ms. Resig testified that she submitted the evidence to Special Agent Don Carmas of the
- 47 -
Tennessee Bureau of Investigation for forensic consultation and verification of evidence,
who concurred with Ms. Resig‘s findings after examining the evidence and reviewing
Ms. Resig‘s report.
Regarding the third McDaniel factor, which concerns the rate of error, Ms. Resig
referred to data from a collaborative testing service for the years of 1978 through 1997
and for 1998 through 2002. She testified that the percentage of false identifications for
firearms was .9 percent and .1 percent. Upon cross-examination, Ms. Resig testified that a
study from 1978 through 1991 resulted in an error rate of 12 percent for firearms and 26
percent for tool marks when inconclusive results were included; however, she opined that
the error rate is ―much less‖ when inconclusive results are omitted and only incorrect
responses are considered. Ms. Resig further cited to a study that provided a 1.4 percent
error rate for firearms.9
On the fourth McDaniel factor regarding the general acceptance in the scientific
community, Ms. Resig testified that ballistics evidence has been relied upon for about
one hundred years and is generally accepted in the scientific community.
On the fifth McDaniel factor regarding whether the research was independent of
litigation, Ms. Resig testified that she conducted the testing in her employment with the
Knoxville Police Department, independently of litigation. The trial court found that Ms.
Resig‘s testimony strongly supported the admissibility of the ballistics evidence, and a
report prepared by a defense expert would go to the weight of Ms. Resig‘s testimony.
We conclude that the trial court did not abuse its discretion in admitting Ms.
Resig‘s expert testimony under Rules 402 and 702 of the Tennessee Rules of Evidence.
Ms. Resig was qualified to testify as an expert witness; the evidence was relevant and,
under the McDaniel factors, was properly admitted.
Fingerprints
Mr. Davidson argues that the trial court abused its discretion by admitting
fingerprint identification evidence through the testimony of Knoxville Police Department
Senior Evidence Technicians Daniel Crenshaw and Tim Schade. Mr. Davidson filed a
motion in limine to exclude their testimony, asserting that the ACE-V10 methodology of
9
In its written order, the trial court summarized this testimony as follows: ―When questioned
about whether a potential rate of error is known, she testified that proficiency testing facilities establish
that it is approximately .9%.‖
10
ACE-V is an acronym for ―analysis, comparison, evaluation, and verification.‖
- 48 -
fingerprint analysis was inherently unreliable and lacked scientific validity. Mr. Davidson
argues that fingerprint examination is the subject of considerable debate within the
forensic science community, and fingerprint analysis has not been subjected to sufficient
testing and peer review. Mr. Davidson contends the ACE-V methodology is heavily
reliant on subjective assessments, it is not subject to verifiable review, and its verification
process is flawed. He argues that the error rate for latent fingerprint analysis is unknown,
and the experts‘ analysis was conducted during criminal prosecution and therefore not
outside the context of litigation. The State argues the trial court properly considered all of
these factors and did not abuse its discretion by admitting the expert testimony of Mr.
Crenshaw and Mr. Schade. The Court of Criminal Appeals held that the trial court did not
abuse its discretion in admitting the expert testimony of Mr. Crenshaw and Mr. Schade.
Davidson, 2015 WL 1087126, at *59.
We analyze this issue using the same standards discussed above for the McDaniel
factors and Tennessee Rules of Evidence 702 and 703. At the pretrial hearing on the
motion in limine, Mr. Schade testified that he has college degrees in criminal justice and
political science and a master‘s degree in public administration. He attended the Federal
Bureau of Investigation fingerprint school for beginning and advanced training and
participated in a forty-hour ridgeology class. Since 1998, he has been certified as a latent
fingerprint examiner through the International Association for Identification and
recertified twice since his initial certification. Mr. Schade testified that a fingerprint
examiner can lose his certificate due to a misidentification. Mr. Schade has regularly
taught a course on fingerprint identification at the National Forensic Academy and
previously testified as an expert witness in state and federal courts.11 Mr. Crenshaw
testified he has worked for the Knoxville Police Department for sixteen years. He
received fingerprint training and worked for six years as a fingerprint examiner with the
Federal Bureau of Investigation. He is certified by the International Association of
Identification. Mr. Crenshaw estimated that he has examined and identified roughly
10,000 fingerprints. He has also previously testified as an expert witness in other cases.12
11
See, e.g., United States v. Hatcher, 513 F. App‘x 581, 584 (6th Cir. 2013); State v. Keith, 2015
WL 4366575, at *4; State v. Johnson, No. E2013-02356-CCA-R3-CD, 2015 WL 913657, at *4 (Tenn.
Crim. App. Mar. 2, 2015), perm. app. denied (Tenn. June 11, 2015); State v. Foust, 482 S.W.3d 20, 29
(Tenn. Crim. App. 2015); State v. Gray, No. E2010-00637-CCA-R3-CD, 2012 WL 2870264, at *2 (Tenn.
Crim. App. July 13, 2012), rev’d on other grounds, No. E2014-00849-CCA-R3-PC, 2015 WL 2257191
(Tenn. Crim. App. May 13, 2015); Taylor v. State, No. E2006-02555-CCA-R3-PC, 2007 WL 3332847, at
*3 (Tenn. Crim. App. Nov. 9, 2007); State v. Pierce, No. E2001-00437-CCA-R3-CD, 2002 WL 523453,
at *2 (Tenn. Crim. App. Apr. 9, 2002.
12
See, e.g., Echols, 2011 WL 2418737, at *2; State v. Williams, No. E2002-00325-CCA-R3-CD,
2003 WL 22462533, at *2 (Tenn. Crim. App. Oct. 31, 2003); State v. Wyrick, 62 S.W.3d 751, 760 (Tenn.
Crim. App. 2001); State v. Poole, No. 03C01-9802-CR-00060, 1998 WL 784252, at *2 (Tenn. Crim.
App. Nov. 5, 1998).
- 49 -
We agree with the trial court that Mr. Schade and Mr. Crenshaw were qualified to testify
as experts in fingerprint analysis.
Next, the trial court had to determine whether the expert testimony was reliable
and relevant. See Kumho Tire, 526 U.S. at 152. This included an analysis of the basis for
the witness‘s opinion, i.e., testing, research, studies, or experience-based observations,
and whether it adequately supported the expert‘s conclusions, to ensure there was not a
significant analytical gap between the expert‘s opinion and the data upon which the
opinion was based. Scott, 275 S.W.3d 402–03 (quoting Stevens, 78 S.W.3d 834–35). At
issue was the methodological and foundational reliability of the expert‘s testimony. Id. at
401–03. The first step in this process is an assessment of the expert‘s field or discipline
by focusing on the reliability of the studies, articles, and data that compose the field and
provide the underlying foundation for the expert‘s testimony. Id. The second step is an
analysis of the reliability of the underlying facts or data upon which the expert‘s opinion
is predicated. Id. Tennessee Rule of Evidence 703, unlike the comparable federal rule,
provides that ―[t]he court shall disallow testimony in the form of an opinion or inference
if the underlying facts or data indicate lack of trustworthiness.‖ Tenn. R. Evid. 703. In
this respect, our rule expresses a greater concern with the bases of expert testimony than
does Rule 703 of the Federal Rules of Evidence. Shuck, 953 S.W.2d at 668 (Tenn. 1997)
(citing McDaniel, 955 S.W.2d at 264; Omni Aviation v. Perry, 807 S.W.2d 276 (Tenn.
Ct. App. 1990)).
Mr. Schade detailed the ACE-V methodology and the process by which Mr.
Davidson‘s fingerprints were matched to various pieces of evidence linking him to the
crimes. Mr. Schade explained that the first step is to digitize an image of the latent print
and to mark the details for a comparison with prints in the Tennessee Bureau of
Investigation‘s Automated Fingerprint Identification system. Mr. Schade testified that the
analysis portion of fingerprint identification required the examination of ―three levels of
detail.‖ Level one concerns only the flow of ridges as they go through fingers and palms;
level two comprises bifurcations and closures, dots, islands, and the like; level three
entails ridgeology, which includes examination of the width of the ridges, the flow of the
ridges, how ridges go around each other, and pores. The comparison and evaluation
stages involve visual analysis to determine whether the fingerprints match. The last step
is verification of the identification by a second person. Mr. Schade and Mr. Crenshaw
verified each other‘s fingerprint identifications.
Mr. Davidson makes several arguments regarding the lack of reliability of
fingerprint identification. As we review this issue, we consider the McDaniel factors but
do not apply them rigidly, as not all factors are relevant here. Under Tennessee Rule of
Evidence 702, expert evidence is not limited to ―scientific‖ evidence but instead includes
technical or other specialized knowledge. Tenn. R. Evid. 702; see also Kumho Tire, 526
U.S. at 141; Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589–90 (1993). Mr.
- 50 -
Davidson challenges the general area of and methodology behind fingerprint evidence.
Citing excerpts from a 2009 study published by the National Research Council,
―Strengthening Forensic Science in the United States: A Path Forward,‖ Mr. Davidson
argues that the ACE-V methodology requires the subjective assessment by the examiner
and ―does not guard against bias; is too broad to ensure repeatability and transparency;
and does not guarantee that two analysts following it will obtain the same result.‖
According to the study, the ACE-V framework has not been sufficiently tested and is not
a validated method for friction ridge analysis. We disagree.
While there may be disagreement among experts in the field, this does not
establish the inherent unreliability of the ACE-V methodology that would render
fingerprint evidence inadmissible. This method of fingerprint identification has been
widely accepted by courts. See Andre A. Moenssens, Fingerprint Identification: A Valid,
Reliable “Forensic Science”?, 18-SUM Crim. Just. 30, 33 (2003); see also Hatcher, 513
F. App‘x at 584; United States v. Watkins, 450 F. App‘x 511, 516 (6th Cir. 2011); United
States v. Scott, 403 F. App‘x 392, 398 (11th Cir. 2010); United States v. Mahone, 453
F.3d 68, 72 (1st Cir. 2006); United States v. Sullivan, 246 F. Supp. 2d 700, 704 (E.D. Ky.
2003); Jarnigan v. State, 761 S.E.2d 256, 260–61 (Ga. 2014); People v. Luna, 989
N.E.2d 655, 679 (Ill. App. Ct. 2013); Burnett v. State, 815 N.E.2d 201, 208–09 (Ind. Ct.
App. 2004); Markham v. State, 984 A.2d 262, 276 (Md. 2009); Commonwealth v.
Gambora, 933 N.E.2d 50, 59 (Mass. 2010); State v. Langill, 945 A.2d 1, 12 (N.H. 2008);
State v. Leonard, 736 S.E.2d 647 (N.C. Ct. App. 2013); State v. Woodard, 330 P.3d 1283,
1288–89 (Utah Ct. App. 2014).
Our Court of Criminal Appeals has not examined the ACE-V methodology but has
held fingerprint evidence to be admissible. See, e.g., State v. Pugh, No.
W2011-02496-CCA-R3-CD, 2012 WL 5381375, at *7 (Tenn. Crim. App. Nov. 2, 2012);
Gray, 2012 WL 2870264, at *6; State v. Toomes, 191 S.W.3d 122, 131 (Tenn. Crim.
App. 2005); Rutherford v. State, No. E1999-00932-CCA-R3-PC, 2000 WL 246411, at
*15 (Tenn. Crim. App. Mar. 6, 2000); State v. Evans, 669 S.W.2d 708, 710 (Tenn. Crim.
App. 1984).
The trial court properly considered the McDaniel factors in finding that the expert
evidence was sufficiently reliable to be admissible. Mr. Davidson‘s counsel effectively
cross-examined Mr. Schade and Mr. Crenshaw and had the opportunity to present expert
testimony for the defense. We hold the trial court did not abuse its discretion in allowing
Mr. Schade and Mr. Crenshaw to testify as experts in fingerprint analysis and
identification.
- 51 -
Sufficiency of the Evidence
Mr. Davidson challenges the sufficiency of the evidence to support his
convictions. Mr. Davidson points to no specific facts but argues generally that the
evidence did not establish the elements of the offenses beyond a reasonable doubt. The
Court of Criminal Appeals concluded that the evidence was sufficient. Davidson, 2015
WL 1087126, at *41. Tennessee Rule of Appellate Procedure 13(e) provides that
―[f]indings of guilt in criminal actions . . . shall be set aside if the evidence is insufficient
to support the finding by the trier of fact of guilt beyond a reasonable doubt.‖ When
assessing whether there is sufficient evidence to support a criminal conviction, a jury‘s
verdict of guilt removes the presumption of innocence and replaces it with a presumption
of guilt. State v. Wilson, 211 S.W.3d 714, 718 (Tenn. 2007); Scarborough, 201 S.W.3d at
624. A defendant must demonstrate that the evidence is not sufficient to sustain a guilty
verdict. State v. Dotson, 254 S.W.3d 378, 395 (Tenn. 2008) (citing State v. Evans, 838
S.W.2d 185, 191 (Tenn. 1992)); State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008)
(citing Evans, 838 S.W.2d at 191).
When reviewing the evidence in a criminal case, appellate courts must afford the
State the strongest legitimate view of the evidence and give the State the benefit of all
reasonable inferences that may be drawn therefrom. Willis, 496 S.W.3d at 686; State v.
McGouey, 229 S.W.3d 668, 671 (Tenn. 2007) (citing Carruthers, 35 S.W.3d at 558). The
jury is entrusted with the responsibility of determining the weight and credibility to be
given to witnesses‘ testimony and reconciling conflicts in the testimony. Campbell, 245
S.W.3d at 335 (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978));
State v. Langford, 994 S.W.2d 126, 127 (Tenn. 1999). With this framework in mind, the
ultimate question for an appellate court ―is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.‖ Jackson v. Virginia, 443 U.S.
307, 319 (1979) (alteration in original); see also Dotson, 254 S.W.3d at 395 (citations
omitted); Campbell, 245 S.W.3d at 335; State v. Berry, 141 S.W.3d 549, 564 (Tenn.
2004).
Premeditated First Degree Murder Convictions
Mr. Davidson was convicted of first degree murder for the premeditated killing of
Chris and first degree murder for the premeditated killing of Channon. Under Tennessee
Code Annotated section 39-13-202(a)(1), first degree murder includes the ―premeditated
and intentional killing of another.‖
―Premeditation‖ is defined as an ―act done after the exercise of reflection and
judgment.‖ Id. § 39-13-202(d). The statute provides that premeditation
- 52 -
means that the intent to kill must have been formed prior to the act itself. It
is not necessary that the purpose to kill pre-exist in the mind of the accused
for any definite period of time. The mental state of the accused at the time
the accused allegedly decided to kill must be carefully considered in order
to determine whether the accused was sufficiently free from excitement
and passion as to be capable of premeditation.
Id. ―Premeditation may be inferred from the manner and circumstances of the killing.‖
Finch v. State, 226 S.W.3d 307, 318 (Tenn. 2007) (citing State v. Bland, 958 S.W.2d 651,
660 (Tenn. 1997)). Tennessee courts have identified a number of factors that tend to
demonstrate a homicide was premeditated. These factors include, but are not limited to:
(1) the use of a deadly weapon to kill an unarmed victim; (2) the procurement of weapons
used to commit a murder; (3) declarations of intent to kill the victim; (4) preparations for
the concealment of a crime; (5) lack of provocation by the victim; (6) failure to provide
aid or assistance to the victim; and (7) calmness after the killing. State v. Brooks, 249
S.W.3d 323, 329 (Tenn. 2008).
First degree murder also includes felony murder, which is defined as the ―killing
of another committed in the perpetration of . . . any first degree murder, . . . rape, robbery,
. . . theft, [or] kidnapping.‖ Tenn. Code Ann. § 39-13-202(a)(2). To come within the
definition of felony murder, a killing must have been ―done in pursuance of the unlawful
act, and not collateral to it.‖ State v. Rice, 184 S.W.3d 646, 663 (Tenn. 2006) (quoting
Farmer v. State, 296 S.W.2d 879, 883 (Tenn. 1956)) (internal quotation marks omitted).
In other words, ―[t]he killing must have had an intimate relation and close connection
with the felony . . . and not be separate, distinct, and independent from it.‖ Id. at 663
(quoting Farmer, 296 S.W.2d at 883). ―The killing may precede, coincide with, or follow
the felony and still be considered as occurring in the perpetration of the felony offense, so
long as there is a connection in time, place, and continuity of action.‖ State v. Thacker,
164 S.W.3d 208, 223 (Tenn. 2005) (quoting State v. Buggs, 995 S.W.2d 102, 106 (Tenn.
1999)) (internal quotation marks omitted). The defendant must have the intent to commit
the underlying felony either before or concurrent with the act causing the victim‘s death.
Id. at 223. The defendant‘s actions immediately after the killing can provide a basis from
which the jury may reasonably infer that the defendant, either prior to or concurrent with
committing the act that caused the victim‘s death, had an intent to commit the underlying
felony. Id. (quoting Buggs, 995 S.W.2d at 108).
―A person is criminally responsible as a party to an offense, if the offense is
committed by the person‘s own conduct, by the conduct of another for which the person
is criminally responsible, or by both.‖ Tenn. Code Ann. § 39-11-401(a). Criminal
responsibility for the actions of another arises when the defendant, ―[a]cting with intent to
promote or assist the commission of the offense, or to benefit in the proceeds or results of
the offense, . . . solicits, directs, aids, or attempts to aid another person to commit the
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offense.‖ Id. § 39-11-402(2); see also State v. Lemacks, 996 S.W.2d 166, 170 (Tenn.
1999) (―As reflected in this case, criminal responsibility is not a separate, distinct crime.
It is solely a theory by which the State may prove the defendant‘s guilt of the alleged
offense . . . based upon the conduct of another person.‖). Furthermore, ―[a] person is
criminally responsible for the facilitation of a felony, if, knowing that another intends to
commit a specific felony, but without the intent required for criminal responsibility under
[section] 39-11-402(2), the person knowingly furnishes substantial assistance in the
commission of the felony.‖ Tenn. Code Ann. § 39-11-403(a).
Mr. Davidson and his accomplices, using guns, kidnapped Chris and Channon and
stole Channon‘s vehicle. They tied Chris‘s and Channon‘s hands behind their backs and
stole money and personal items. After raping Chris, Mr. Davidson and his accomplices
forced Chris to walk without shoes, socks, or pants on a January night to a desolate area
beside a set of train tracks. They bound his feet with his belt. They blindfolded Chris,
stuck a sock in his mouth and secured it with a shoelace, and wrapped a hooded
sweatshirt around his head. They shot him three times and killed him. Two of the bullets
removed from Chris‘s body were shot from the same gun and shared class characteristics
with the High Standard revolver Mr. Davidson had in his possession when he was
arrested. To hide the evidence of the murder, they wrapped Chris‘s body in a comforter,
poured gasoline on him, and set his body on fire. Afterwards, Mr. Davidson was seen
wearing Chris‘s shoes. Within an hour of the murder, Mr. Davidson tried to contact his
girlfriend by using Chris‘s cell phone.
After killing Chris, Mr. Davidson and his friends returned to Mr. Davidson‘s
house where they beat and repeatedly raped Channon. Abusing her for many hours, they
then tied her into a fetal position, secured a plastic bag tightly over her head, put her in
five plastic garbage bags, and stuffed her in a garbage can to suffocate to death. While
Channon was dying in the garbage can, Mr. Davidson left to spend time with his
girlfriend. He gave Channon‘s clothes and personal items to his girlfriend. Mr. Davidson
and his friends could have released Chris and Channon unharmed after stealing
Channon‘s vehicle. Mr. Davidson did not know Chris and Channon and had no reason to
kidnap, rape, and murder them. Chris and Channon had no defensive wounds. According
to Mr. Davidson, Channon asked him if she was going to die, indicating she likely knew
her fate. Viewing the facts in the light most favorable to the State, a reasonable jury could
have easily found beyond a reasonable doubt that Mr. Davidson acted with premeditation
when he shot Chris three times and killed him and bound Channon and stuffed her into a
garbage can to die. A reasonable jury could have easily found beyond a reasonable doubt
that Mr. Davidson committed these murders while also committing the crimes of
kidnapping, robbery, and rape.
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Especially Aggravated Robbery Convictions
Mr. Davidson was convicted of especially aggravated robbery of Chris and
especially aggravated robbery of Channon. The record contains ample evidence to
support Mr. Davidson‘s convictions for these crimes. The Court of Criminal Appeals
concluded that the evidence presented was sufficient for a reasonable jury to conclude
that the elements of especially aggravated robbery had been proven beyond a reasonable
doubt. Davidson, 2015 WL 1087126, at *41. We agree.
Robbery ―is the intentional or knowing theft of property from the person of
another by violence or putting the person in fear.‖ Tenn. Code Ann. § 39-13-401(a).
Especially aggravated robbery is a robbery that is ―(1) [a]ccomplished with a deadly
weapon; and (2) [w]here the victim suffers serious bodily injury.‖ Id. § 39-13-403(a).
At the time of the robbery, Mr. Davidson did not have a vehicle or money. His
rent and his debt to Ms. Freeman were past due. Ms. Freeman, who lived in the
Washington Ridge Apartments, expected Mr. Davidson to come and pay her between
10:00 p.m. and 10:30 p.m. on Saturday night, January 6. He never arrived at her
apartment. Instead, Mr. Davidson and others intercepted Chris and Channon as they were
leaving the Washington Ridge Apartments between 9:10 p.m. and 11:00 p.m. He and his
accomplices tied them up and forced them into the back seat of Channon‘s vehicle.
Channon‘s vehicle was parked in front of Mr. Davidson‘s house around 12:30 a.m. on
Sunday morning. Mr. Davidson drove Channon‘s vehicle on Sunday morning and
evening. The evidence shows that Mr. Davidson had a handgun, he planned to go to the
Washington Ridge Apartments to pay his debt to Ms. Freeman around the time the young
couple was kidnapped, and his fingerprints were found on an envelope and other items
taken from Channon‘s vehicle. He admitted to wiping his fingerprints off the exterior of
the vehicle. He admitted to driving the stolen vehicle, which was corroborated by
witnesses who saw him driving it. Mr. Davidson was seen, and eventually arrested, while
in possession of Chris‘s Nike Shox athletic shoes. Viewing the facts in the light most
favorable to the State, a reasonable jury could find beyond a reasonable doubt that Mr.
Davidson committed the especially aggravated robberies of Chris and Channon.
Especially Aggravated Kidnapping Convictions
Mr. Davidson was convicted of the especially aggravated kidnapping of Chris and
the especially aggravated kidnapping of Channon. The Court of Criminal Appeals
concluded that the evidence presented was sufficient for a reasonable jury to conclude
that the elements of especially aggravated kidnapping had been proven beyond a
reasonable doubt. Davidson, 2015 WL 1087126, at *41. We conclude that the record
contains ample evidence to support Mr. Davidson‘s convictions for especially aggravated
kidnapping.
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Especially aggravated kidnapping is false imprisonment ―[a]ccomplished with a
deadly weapon or by display of any article used or fashioned to lead the victim to
reasonably believe it to be a deadly weapon; . . . or . . . [w]here the victim suffers serious
bodily injury.‖ Tenn. Code Ann. § 39-13-305(a). False imprisonment is defined as the
knowing removal or confinement of another unlawfully so as to interfere substantially
with that person‘s liberty. Id. § 39-13-302(a).
Mr. Davidson and others forced Chris and Channon to get into Channon‘s vehicle
at gunpoint and tied their hands behind their backs. After confining Chris against his will,
Mr. Davidson killed him. Mr. Davidson and his accomplices kept Channon confined in
Mr. Davidson‘s house from Saturday night until she died sometime between Sunday
afternoon and Monday afternoon. Viewing the facts in the light most favorable to the
State, a reasonable jury could find beyond a reasonable doubt that Mr. Davidson
committed the especially aggravated kidnappings of Chris and Channon.
Facilitation of Aggravated Anal Rape of Chris
Mr. Davidson was convicted of the facilitation of aggravated anal rape of Chris.
The record contains ample evidence to support Mr. Davidson‘s conviction. We agree
with the Court of Criminal Appeals that the evidence presented was sufficient for a
reasonable jury to conclude that the elements of facilitation of aggravated anal rape had
been proven beyond a reasonable doubt. See Davidson, 2015 WL 1087126, at *41.
Aggravated rape is the
unlawful sexual penetration of a victim by the defendant . . . accompanied
by any of the following circumstances: (1) Force . . . is used to accomplish
the act and the defendant is armed with a weapon . . . (2) The defendant
causes bodily injury to the victim; (3) The defendant is aided or abetted by
one (1) or more other persons; and (A) Force . . . is used to accomplish the
act; or (B) The defendant knows or has reason to know that the victim is . . .
physically helpless.
Tenn. Code Ann. § 39-13-502(a). Tennessee Code Annotated section 39-13-501(7)
defines ―sexual penetration‖ as ―sexual intercourse, cunnilingus, fellatio, anal intercourse,
or any other intrusion, however slight, of any part of a person‘s body or of any object into
the genital or anal openings of the victim‘s, the defendant‘s, or any other person‘s body,
but emission of semen is not required.‖
A person commits the facilitation of a crime when he or she ―knowing that
another intends to commit a specific felony, but without the intent required for criminal
responsibility under [Tennessee Code Annotated section] 39-11-402(2), the person
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knowingly furnishes substantial assistance in the commission of the felony.‖ Id.
§ 39-11-403(a).
The evidence showed that Chris had his hands tied behind his back during the
carjacking. He could not defend himself against the armed perpetrators. Chris was anally
raped with such force that his anus was injured. This occurred after Mr. Davidson robbed
and kidnapped Chris and while he was under Mr. Davidson‘s control. The DNA of any
semen left in Chris‘s anus was destroyed when his body was set on fire. Viewing the
facts in the light most favorable to the State, a reasonable jury could have easily found
beyond a reasonable doubt that Mr. Davidson facilitated the aggravated rape of Chris.
Aggravated Anal, Oral, and Vaginal Rapes of Channon
Mr. Davidson was convicted of the aggravated anal rape, the aggravated oral rape,
and the aggravated vaginal rape of Channon. We agree with the Court of Criminal
Appeals that the evidence presented was sufficient for a reasonable jury to conclude that
the elements of aggravated anal, oral, and vaginal rape had been proven beyond a
reasonable doubt. See Davidson, 2015 WL 1087126, at *41.
We have previously noted the elements of aggravated rape under Tennessee Code
Annotated section 39-13-502(a). The evidence is sufficient to show that Mr. Davidson
raped Channon in her mouth, anus, and vagina. He did so with such force that her mouth
and genital/anal area were injured. The membrane connecting her lip to her gum was
torn, and she had bruising and abrasions around her mouth. This was caused by an object,
such as a penis, being forced into her mouth. Her vaginal/anal area suffered tremendous
damage. Her vaginal area had bruises, lacerations, contusions, and swelling, and a solid
blood clot had formed under the entire area. The depth and extent of her injuries were so
grave, they were not caused by a ―regular‖ rape but were instead caused by her genital
area coming in contact with a blunt object. Mr. Davidson‘s DNA from sperm was found
in Channon‘s vagina and anus and on her jeans. A substance containing bleach had been
sprayed or poured into her mouth to remove any identifying DNA. These repeated rapes
of Channon were cruel, brutal, and vicious. Viewing the facts in the light most favorable
to the State, a reasonable jury could find beyond a reasonable doubt that Mr. Davidson
committed the especially aggravated anal, vaginal, and oral rapes of Channon.
Merger of Convictions
The Court of Criminal Appeals remanded this case to the trial court for correction
of clerical errors on the judgment forms regarding the merged counts, finding that the
trial court failed to properly effectuate the mergers. Davidson, 2015 WL 1087126, at
*57–58. The Court of Criminal Appeals directed the trial court to vacate the previously
entered judgment forms for the merged offenses and to enter a single judgment of
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conviction for first degree murder as to each victim, a single judgment of conviction for
especially aggravated kidnapping of each victim, a single judgment of conviction for
especially aggravated robbery of each victim, a single judgment of conviction for the
aggravated anal rape of Channon, a single judgment of conviction for the aggravated oral
rape of Channon, a single judgment of conviction for the aggravated vaginal rape of
Channon, and a single judgment of conviction for the facilitation of aggravated rape of
Chris. Id. at *58. Each judgment was required to identify the jury‘s verdicts that were
merged or subsumed into the convictions. Id.
Under certain circumstances, multiple convictions must merge into a single
conviction. Merger is required when a jury returns guilty verdicts on two offenses, one of
which is a lesser-included offense of the other offense. See, e.g., Davis, 466 S.W.3d at 77.
Merger is required when a jury returns guilty verdicts on two counts representing
alternative theories of the same offense. See, e.g., State v. Cribbs, 967 S.W.2d 773, 788
(Tenn. 1998) (citing Carter v. State, 958 S.W.2d 620, 624 n.6 (Tenn. 1997)). Here, the
trial court did not err in merging the offenses or in effectuating the merger. Merger only
requires a ―single judgment of conviction.‖ It does not require a ―single judgment
‗document.‘‖ State v. Berry, No. W2014-00785-SC-R11-CD, Order at 3–4 (Tenn. Nov.
16, 2015).
Where merger is required, the trial court should prepare the judgment using the
uniform judgment document. See Tenn. Sup. Ct. R. 17. The trial court ―should complete a
uniform judgment document for each count.‖ Berry, Order at 5. The trial court should
follow these guidelines when preparing the uniform judgment document:
The judgment document for the greater (or surviving) conviction should
reflect the jury verdict on the greater count and the sentence imposed by the
trial court. The judgment document for the lesser (or merged) conviction
should reflect the jury verdict on the lesser count and the sentence imposed
by the trial court. Additionally, the judgment document should indicate in
the ―Special Conditions‖ box that the conviction merges with the greater
conviction. To avoid confusion, the merger also should be noted in the
―Special Conditions‖ box on the uniform judgment document for the
greater or surviving conviction.
Id. This method ―maintains the integrity of each of the jury‘s dual verdicts and accurately
reflects the merger for purposes of appellate review and collateral challenges to the
conviction.‖ Id.
The Court of Criminal Appeals indicated that the trial court, by not effectuating
the judgment on a single form, exposed Mr. Davidson to double jeopardy and
undermined the holding in State v. Addison, 973 S.W.2d 260 (Tenn. Crim. App. 1997).
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Davidson, 2015 WL 1087126, at *58. However, effectuating merged convictions on
separate uniform judgment documents reflects that the guilty verdict in the lesser or
alternative charge is ―not mere surplusage but remains a valid jury verdict of guilt that
need not be ‗dismiss[ed],[‘] vacat[ed],‘ ‗or stri[cken].‘‖ Berry, Order at 5 (alterations in
original) (quoting Addison, 973 S.W.2d at 267).
The trial court prepared separate judgment documents for each of the guilty
verdicts, including those verdicts for alternative charges and lesser-included offenses.
This properly effectuated the necessary mergers. We vacate the portion of the Court of
Criminal Appeals‘ judgment remanding this case to the trial court to correct the
judgments of convictions.
Mandatory Review of Death Sentence
When reviewing a first degree murder conviction and an accompanying sentence
of death, we are statutorily required to review the record to determine whether
(A) The sentence of death was imposed in any arbitrary fashion;
(B) The evidence supports the jury‘s finding of statutory aggravating
circumstance or circumstances;
(C) The evidence supports the jury‘s finding that the aggravating
circumstance or circumstances outweigh any mitigating circumstances; and
(D) The sentence of death is excessive or disproportionate to the penalty
imposed in similar cases, considering both the nature of the crime and the
defendant.
Tenn. Code Ann. § 39-13-206(c)(1). The Court of Criminal Appeals found that the
sentences of death were not imposed in an arbitrary fashion, proof of the aggravating
circumstances was ―simply overwhelming,‖ the jury did not err by concluding that the
aggravating circumstances outweighed the mitigating circumstances, and the death
penalty imposed in the present case is not excessive or disproportionate to the penalty
imposed in other cases. Davidson, 2015 WL 1087126, at *54–57.
We have carefully reviewed the record and conclude that Mr. Davidson‘s
sentences were not imposed in any arbitrary fashion. We have also determined that the
evidence supports the jury‘s findings that the State proved the aggravating circumstances
in Tennessee Code Annotated sections 39-13-204(i)(5), 39-13-204(i)(6), 39-13-204(i)(7),
and 39-13-204(i)(13) beyond a reasonable doubt, and these aggravating circumstances
outweigh the mitigating circumstances offered by Mr. Davidson. Finally, we have
considered the nature of Mr. Davidson‘s crimes and all the evidence in the record
concerning Mr. Davidson as a person and have concluded that the sentences of death
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imposed by the jury are neither excessive nor disproportionate to the penalties imposed
for similar offenses.
Arbitrariness
The jury that imposed Mr. Davidson‘s sentences of death unanimously found the
State proved beyond a reasonable doubt that Mr. Davidson was guilty of two counts of
first degree premeditated murder, and the manner in which the murders occurred
supported the application of the aggravating circumstances in Tennessee Code Annotated
sections 39-13-204(i)(5), 39-13-204(i)(6), 39-13-204(i)(7), and 39-13-204(i)(13). We are
satisfied from our review of the entire record that Mr. Davidson‘s trial was conducted in a
manner that complied with all applicable statutes and rules of procedure. We hold that
Mr. Davidson‘s death sentences were not imposed arbitrarily.
Evidentiary Support for the Aggravating Circumstances
Before a death penalty can be imposed, a jury must unanimously determine that
the State proved beyond a reasonable doubt one or more of the aggravating circumstances
in Tennessee Code Annotated section 39-13-204(i). We must undertake this review of the
evidence presented even when the defendant does not expressly challenge the sufficiency
of an aggravating circumstance found by a jury. Tenn. Code Ann. § 39-13-206(c)(1)(B);
see also Reid, 164 S.W.3d at 314. In reviewing the jury‘s findings, we must view the
facts in the light most favorable to the State and consider whether a rational trier of fact
could have found the existence of an aggravating circumstance beyond a reasonable
doubt. Id. (citing Terry v. State, 46 S.W.3d 147, 160–61 (Tenn. 2001)). Here, the jury
determined that the State had proved the existence of three aggravating circumstances as
to the murders of Chris and Channon:
1. Tennessee Code Annotated section 39-13-204(i)(5) (―The murder was
especially heinous, atrocious, or cruel, in that it involved torture or serious physical abuse
beyond that necessary to produce death.‖);
2. Tennessee Code Annotated section 39-13-204(i)(6) (―The murder was
committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or
prosecution of the defendant or another.‖);
3. Tennessee Code Annotated section 39-13-204(i)(7) (―The murder was
knowingly committed, solicited, directed, or aided by the defendant, while the defendant
had a substantial role in committing or attempting to commit, or was fleeing after having
a substantial role in committing or attempting to commit, any first degree murder, . . .
rape, robbery . . . [or] kidnapping . . . .‖).
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In addition, the jury determined that the State proved the existence of the following
aggravating circumstance as to Chris‘s murder: Tennessee Code Annotated section
39-13-204(i)(13) (―The defendant knowingly mutilated the body of the victim after
death.‖).
1. Tennessee Code Annotated section 39-13-204(i)(5)
The jury unanimously found that the State proved beyond a reasonable doubt that
―[t]he murder was especially heinous, atrocious, or cruel, in that it involved torture or
serious physical abuse beyond that necessary to produce death.‖ Id. § 39-13-204(i)(5).
The phrase ―heinous, atrocious, or cruel‖ is a unitary concept that may be proven under
either of two prongs: torture or serious physical abuse. State v. Keen, 31 S.W.3d 196, 209
(Tenn. 2000) (citing State v. Van Tran, 864 S.W.2d 465, 479 (Tenn. 1993)). ―Torture‖ is
the ―infliction of severe physical or mental pain upon the victim while he or she remains
alive and conscious.‖ State v. Pike, 978 S.W.2d 904, 917 (Tenn. 1998) (citing State v.
Williams, 690 S.W.2d 517, 529 (Tenn. 1985)). ―Serious‖ alludes to a matter of degree,
and the physical, rather than mental, abuse must be beyond or more than what is
necessary to produce death. State v. Suttles, 30 S.W.3d 252, 262 (Tenn. 2000); see also
Odom, 928 S.W.2d at 26 (defining abuse as an act that is ―excessive‖ among other
things). Jurors do not have to agree on which prong makes the murder ―especially
heinous, atrocious, or cruel.‖ Keen, 31 S.W.3d at 208–09. As long as the proof is
sufficient under either prong for finding the aggravating circumstance beyond a
reasonable doubt, and all jurors agree that the aggravating circumstance is present and
applicable to the case at hand, different jurors may rely upon either theory to reach their
conclusion. Id. at 209.
The State‘s proof showed that Chris was robbed at gunpoint and taken against his
will to a place where he was anally raped with sufficient force to injure his anus. After
being raped, he was forced to walk without shoes, socks, and pants to a desolate area
beside a set of train tracks. Chris was blindfolded with a bandana, his sock was forced in
his mouth and tied with a shoelace, and his head wrapped in a sweatshirt. His ankles were
bound by his belt and a strip of fabric, and his wrists were tied behind his back. He was
shot three times—in his lower back, his neck, and his head. The trajectory of the bullet to
his back indicated he was bent over when the shot was fired. The contact shot to his head
was fatal. He had a hematoma in the right forehead region, indicating blunt force trauma
possibly resulting from his fall to the ground after being shot. Chris had no defensive
wounds because, according to the medical examiner, he could not defend himself.
The State introduced evidence that before her death, Channon was robbed, tied up,
and taken to Mr. Davidson‘s house where she was brutally raped—orally, vaginally, and
anally—by more than one assailant with such force that her anal/genital area and mouth
were injured. The medical examiner explained this was not ―just a rape,‖ explaining that
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some object came into contact with the genital area to inflict such serious injury; it may
have been caused by someone kicking her in the genital area. She had extensive
hemorrhages under her scalp, bruises on her arms, and ―carpet burns‖ on her lower back
and upper right buttock. A bleach-based cleaning liquid was sprayed into her mouth in an
attempt to destroy the perpetrators‘ DNA. After being repeatedly forcibly raped and
beaten, Channon was bound into a fetal position with her hands and feet tied, her face
wrapped in a plastic bag, her body put in five plastic garbage bags, and then stuffed into a
garbage can to suffocate to death.
Without question, the murders of Chris and Channon were especially heinous,
atrocious, or cruel and clearly involved torture and serious physical abuse beyond that
necessary to produce death. The evidence is more than sufficient to support the jury‘s
finding of this aggravating circumstance.
2. Tennessee Code Annotated section 39-13-204(i)(6)
The jury unanimously found that the State proved beyond a reasonable doubt that
―[t]he murder was committed for the purpose of avoiding, interfering with, or preventing
a lawful arrest or prosecution of the defendant or another.‖ Tenn. Code Ann.
§ 39-13-204(i)(6). This aggravating circumstance arises when one of the defendant‘s
reasons, but not necessarily the sole reason, for killing the victim was to avoid arrest or
prosecution. State v. Ivy, 188 S.W.3d 132, 149 (Tenn. 2006) (citing Reid, 164 S.W.3d at
315; Terry, 46 S.W.3d at 162). This can include the murder of a witness to a crime to
avoid arrest or prosecution. Banks, 271 S.W.3d at 149 (citing State v. Reid, 213 S.W.3d
792, 818 (Tenn. 2006); State v. Rollins, 188 S.W.3d 553, 572 (Tenn. 2006); State v.
Davis, 141 S.W.3d 600, 618–19 (Tenn. 2004)).
The State‘s proof showed that Chris and Channon were forcibly abducted from the
Washington Ridge Apartments, robbed, and taken in Channon‘s vehicle to Mr.
Davidson‘s house. Chris and Channon were witnesses to the robbery and kidnapping. Mr.
Davidson was determined to avoid detection. Chris and Channon were murdered, the
stolen vehicle was ―wiped down‖ to remove fingerprints, identifying decals were
removed from it, bleach was sprayed into Channon‘s mouth to attempt to destroy DNA,
gasoline was poured on Chris‘s body and set on fire in an apparent attempt to hide his
identity and destroy DNA, and Channon‘s body was hidden in a garbage can. In his
statement to police, Mr. Davidson admitted he had expressed concern to Mr. Cobbins that
Channon had been brought into the house after the carjacking without a blindfold and had
seen them.
The evidence fully supports the conclusion that the murders of Chris and Channon
were committed to avoid Mr. Davidson‘s arrest or prosecution for robbery and
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kidnapping. The evidence is more than sufficient to support the jury‘s finding of this
aggravating circumstance.
3. Tennessee Code Annotated section 39-13-204(i)(7)
The jury unanimously found that the State proved beyond a reasonable doubt that
―[t]he murder was knowingly committed, solicited, directed, or aided by the defendant,
while the defendant had a substantial role in committing or attempting to commit, or was
fleeing after having a substantial role in committing or attempting to commit‖ any first
degree murder, rape, robbery, theft, or kidnapping. Tenn. Code Ann. § 39-13-204(i)(7).
Besides the murder convictions, Mr. Davidson was convicted of two counts of especially
aggravated robbery, two counts of especially aggravated kidnapping, three counts of
aggravated rape of Channon, and one count of facilitation of aggravated rape of Chris.
The murders of Chris and Channon occurred in relation to Mr. Davidson‘s commission of
especially aggravated robbery, especially aggravated kidnapping, aggravated rape, and
facilitation of aggravated rape. The evidence is more than sufficient to support the jury‘s
finding of this aggravating circumstance.
4. Tennessee Code Annotated section 39-13-204(i)(13)
The jury unanimously found that, as to the murder of Chris, the State proved
beyond a reasonable doubt that ―[t]he defendant knowingly mutilated the body of the
victim after death.‖ Tenn. Code Ann.§ 39-13-204(i)(13). Mutilation includes destroying a
body by setting it on fire. Byford v. State, 994 P.2d 700, 717 (Nev. 2000); State v. Price,
46 S.W.3d 785, 827–28 (Tenn. Crim. App. 2000). After Chris was murdered, his body
was wrapped in a cloth comforter, gasoline was poured on him, and he was set on fire.
The evidence is more than sufficient to support the jury‘s finding of this aggravating
circumstance.
Aggravating Circumstances Outweigh the Mitigating Circumstances
Tennessee Code Annotated section 39-13-206(c)(1)(C) requires this Court to
consider whether the evidence supports the jury‘s finding that the aggravating
circumstance or circumstances outweigh any mitigating circumstances. Our standard of
review requires us to determine whether a rational trier of fact could find that the
aggravating circumstances outweigh the mitigating circumstances beyond a reasonable
doubt when the evidence is viewed in the light most favorable to the State. State v.
Stephenson, 195 S.W.3d 574, 593 (Tenn. 2006), abrogated on other grounds by State v.
Watkins, 362 S.W.3d 530 (Tenn. 2012). We have carefully reviewed the record and
conclude that a reasonable jury could find, based on the evidence, that the aggravating
circumstances outweigh the mitigating circumstances.
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Mr. Davidson presented mitigation evidence through the testimony of Rosalind
Andrews, Hugh Wilburn, Laquitta Boddie, Jason Bramblett, Alice Rhea, Flo Rudd, Carl
Rudd, Seth Rudd, Isinell Newbill, and Dr. Peter Brown.
Ms. Andrews, a mitigation specialist, described Mr. Davidson‘s social history and
personal background. Mr. Davidson‘s mother grew up as one of five children in a home
filled with violence, substance abuse, and incest. She continued the cycle of substance
abuse and violence with her own six children by five fathers. She had her first child at
age fifteen, with Mr. Davidson being her second-born child. Mr. Davidson‘s father
played no role in his life. Mr. Davidson‘s mother was neglectful and physically abusive
to her children, a crack cocaine addict, and a prostitute. Mr. Davidson moved back and
forth between his mother‘s house and his aunt‘s house, attending a different school nearly
every year. Mr. Davidson‘s uncle, Mr. Wilburn, confirmed the violence and instability of
Mr. Davidson‘s mother‘s home life. Mr. Davidson‘s sister, Ms. Boddie, testified to the
very difficult childhood she and Mr. Davidson endured, detailing the violence and neglect
they suffered because of their mother‘s drug and alcohol use.
Mr. Bramblett and Ms. Rhea testified about their interactions with Mr. Davidson
while he lived at the West Tennessee Children‘s Home. Mr. Bramblett, who worked as
weekend relief staff, recalled that Mr. Davidson did not have visitors during the
scheduled visitation days. He observed that Mr. Davidson did well at the Children‘s
Home and was active in church and school activities. Mr. Bramblett and Mr. Davidson
had a good, trustful relationship, and Mr. Davidson was in Mr. Bramblett‘s wedding. Ms.
Rhea, who with her husband was a house parent at the Children‘s Home, recalled that Mr.
Davidson was helpful, followed the rules, and did well in a structured environment. She
considered Mr. Davidson to be like a son and maintained contact with him after he left
the Children‘s Home.
Mr. and Mrs. Rudd and their son, Seth, testified they became acquainted with Mr.
Davidson around the time he left the Children‘s Home. Seth met Mr. Davidson while
playing basketball after church. Mr. and Mrs. Rudd became foster parents to Mr.
Davidson and took him into their home. He lived with them from December 1998 to
February 2000. While living with the Rudd family, Mr. Davidson attended a private
Christian school, went to church regularly, and played football. Mr. Davidson was
helpful, well-behaved, respectful, and never violent. Mr. Davidson violated Mr. and Mrs.
Rudd‘s rule against drug use by bringing marijuana into the house on two occasions.
After finding marijuana in Mr. Davidson‘s room the second time, Mr. and Mrs. Rudd
made Mr. Davidson leave their home. Mr. Davidson moved in with a coach from his
school until he got a job and rented an apartment.
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Mrs. Newbill, a retired teacher who helped Mr. Davidson with his math when he
stayed with the Rudds, confirmed the Rudds‘ testimony that Mr. Davidson was a friendly
and open young man.
Dr. Brown, a psychiatrist, testified about various risk factors for violence,
including neglect, rejection, poverty, family size, birth order, lack of monitoring,
violence/drugs/crime, school failure, and age of onset. In Dr. Brown‘s opinion, by the age
of ten, Mr. Davidson was exposed to all of these factors and was steered toward violent
behavior as an adult. Mr. Davidson had above-average intelligence, and his
neuropsychological evaluation was normal. According to Dr. Brown, Mr. Davidson has
the capacity to perform well in a stable, structured setting. He explained that when Mr.
Davidson is sober, he can show considerable empathy, understanding, and appreciation of
other people. Dr. Brown predicted that Mr. Davidson would do extremely well if living in
a structured environment and not using drugs.
The State introduced certified judgments of convictions dated January 18, 2001,
wherein Mr. Davidson was convicted of aggravated robbery and carjacking that occurred
September 6, 2000, in Madison County, Tennessee. He was sentenced to serve eight
years in the penitentiary.
From this evidence, it appears that Mr. Davidson had a difficult childhood due to a
neglectful, drug-addicted, abusive mother and an absent father. He had numerous adverse
childhood experiences that predisposed him to committing violent acts as an adult. Mr.
Davidson, however, was given opportunities to better himself. He had above-average
intelligence and no apparent psychological issues. He was removed from his mother‘s
abusive home and began living at the Children‘s Home. Ms. Rhea and Mr. Bramblett at
the Children‘s Home took an interest in him and encouraged and supported him. After
Mr. Davidson left the Children‘s Home, Mr. and Mrs. Rudd took him into their home and
treated him as one of their own children. He attended a private high school, was provided
tutoring assistance, went to church, played football, and had friends and a supportive
foster family. Yet, he violated Mr. and Mrs. Rudd‘s rule on drug use—not once but
twice—and Mr. Davidson had to leave their home. Even then, a coach at Mr. Davidson‘s
school gave him a place to live until he could get a job and find housing. Despite this
support and assistance, Mr. Davidson, at the age of nineteen, committed aggravated
robbery and carjacking and was incarcerated. Mr. Davidson had a chaotic and unstable
childhood, but as an adult, he had choices. Unfortunately, he made bad choices. Based on
this evidence, a reasonable jury could have easily concluded that any one or all four
aggravating circumstances outweighed the mitigating circumstances presented by Mr.
Davidson.
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Proportionality of the Death Sentences
Finally, we consider whether Mr. Davidson‘s death sentences are ―excessive or
disproportionate to the penalty imposed in similar cases, considering both the nature of
the crime and the defendant.‖ Tenn. Code Ann. § 39-13-206(c)(1)(D). In State v. Bland,
958 S.W.2d 651, 665 (Tenn. 1997), this Court determined that the precedent-seeking
method of analysis satisfied this statutory directive.13 Under this approach, we compare
Mr. Davidson‘s case with the cases of other defendants convicted of first degree murder
in which the State sought the death penalty, a capital sentencing hearing was held, and
the jury determined whether the sentence should be life, life without parole, or death.
Willis, 496 S.W.3d at 733 (citing Rice, 184 S.W.3d at 679). To identify similar cases, this
Court looks at several factors including: (1) the means of death; (2) the manner of death;
(3) the motivation for the killing; (4) the place of death; (5) the similarity of the victims‘
circumstances, including age, physical and mental conditions, and the treatment of the
victims during the killing; (6) the absence or presence of premeditation; (7) the absence
or presence of provocation; (8) the absence or presence of justification; and (9) the injury
to and effects on nondecedent victims. Pruitt, 415 S.W.3d at 213 (citing Bland, 958
S.W.2d at 667). The Court also identified several criteria used to compare the
characteristics of defendants including: (1) the defendant‘s prior criminal record or
activity; (2) the defendant‘s age, race, and gender; (3) the defendant‘s mental, emotional,
or physical condition; (4) the defendant‘s involvement or role in the murder; (5) the
defendant‘s cooperation with authorities; (6) the defendant‘s remorse; (7) the defendant‘s
knowledge of helplessness of victim(s); and (8) the defendant‘s capacity for
rehabilitation. Id. at 213–14 (citing Bland, 958 S.W.2d at 667).
In conducting a statutory comparative proportionality review, we do not search for
proof that a defendant‘s sentence is ―perfectly symmetrical‖ with the sentences imposed
in all other first degree murder cases. Godsey, 60 S.W.3d at 782. The Court‘s function is
not to second-guess the jury or act as a ―super jury,‖ but to identify and invalidate a death
sentence that is an aberration. Id. A sentence of death is disproportionate if ―the case
taken as a whole is plainly lacking in circumstances consistent with those cases where the
death penalty has been imposed.‖ Pruitt, 415 S.W.3d at 214 (quoting Bland, 958 S.W.2d
at 668); see also Godsey, 60 S.W.3d at 782.
13
In State v. Pruitt, 415 S.W.3d 180, 217 (Tenn. 2013), and State v. Godsey, 60 S.W.3d 759,
784–85 (Tenn. 2001), this Court adhered to Bland. I recognize the Court‘s adherence to Bland but
continue to support a broader analysis that includes all first degree murder cases, including those in which
the death penalty was not sought. See Pruitt, 415 S.W.3d at 230–31 (Koch and Lee, JJ., concurring in part
and dissenting in part). Based on these facts, however, I conclude that even under the broader analysis,
Mr. Davidson‘s sentences are ―[neither] excessive [n]or disproportionate to the penalty imposed in similar
cases, considering both the nature of the crime and the defendant.‖
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The proof established that Channon and Chris were forcibly robbed, kidnapped,
and abducted in Channon‘s vehicle. Chris was brutally raped. He was forced to walk
partially undressed and barefoot on a January night to a place near a set of train tracks.
His hands were tied behind his back, his feet were bound together, and he was
blindfolded, gagged, and then shot three times. His body was wrapped in a comforter,
gasoline was poured over him, and his partially naked body was set on fire. Channon was
beaten and repeatedly and brutally anally, orally, and vaginally raped by Mr. Davidson
before eventually being tightly bound, put in five plastic garbage bags, and left to
suffocate inside a garbage can in Mr. Davidson‘s kitchen. Chris was twenty-three years
old, healthy, and gainfully employed as a trim carpenter. He had a loving family, many
friends, and a promising future. Channon was twenty-one years old, a student at the
University of Tennessee, and worked two jobs. She also had a loving family, many
friends, and a promising future. Mr. Davidson did not know Chris and Channon before he
stole Channon‘s vehicle and kidnapped them. Mr. Davidson had no reason to murder
them other than to avoid arrest for the robberies and kidnappings; it does not appear they
fought back or provoked Mr. Davidson. The brutality and time span of the criminal
episode, among other factors, indicate premeditation. These were senseless and brutal
murders of two young people who had lived good and decent lives, had bright futures,
and left many family members and friends who mourn their passing.
We now review Mr. Davidson‘s circumstances. Mr. Davidson is an
African-American male with a high school education who was twenty-five years old
when the crimes were committed. He had previously been incarcerated for convictions of
aggravated robbery and carjacking. Even though Mr. Davidson did not have a stable and
nurturing home life and upbringing, he was given opportunities to better his
circumstances. He was removed from an abusive home and given the opportunity for a
fresh start. Staffers at the Children‘s Home where he lived supported him. His foster
family welcomed him into their family. A coach from his high school gave him a place to
live. He did well in school, succeeded in sports, and had the support of many people. His
stay with his foster parents ended when he refused to follow their rule regarding the
possession of drugs. As an adult, he did not make an honest living, choosing instead to
sell drugs. There was no proof that Mr. Davidson had any mental, emotional, or health
issues. He had an active and prominent role in the commission of the crimes for which he
was convicted. He did not cooperate with the authorities and took no responsibility for
the crimes—instead blaming his brother and others. He showed no remorse. Besides
kidnapping, robbing, facilitating the rape of, and murdering Chris, Mr. Davidson stole
Chris‘s shoes and wore them until he was arrested. After killing Chris, Mr. Davidson
tried to contact his girlfriend by using Chris‘s cell phone. After kidnapping, robbing, and
raping Channon, Mr. Davidson drove Channon‘s vehicle and gave her clothes to his
girlfriend. Chris and Channon suffered physically and emotionally before their deaths,
and both likely knew that Mr. Davidson would murder them. There was very little proof
that Mr. Davidson could be rehabilitated.
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The death sentences imposed on Mr. Davidson are neither excessive nor
disproportionate when compared to defendants in other cases. The following are cases in
which this Court determined that application of the death penalty was not
disproportionate in light of other similar circumstances:
 In State v. Willis, 496 S.W.3d 653 (Tenn. 2016), petition for cert. filed, No.
16-6995 (U.S. Nov. 21, 2016), the male defendant met the victims, ages seventeen
and sixteen, through his daughter, and the young couple lived in the defendant‘s
mobile home before they disappeared. Id. at 666, 668. The badly decomposed
bodies of the victims were discovered in a self-storage unit. Id. at 671. Like
Channon, the female victim was nude, gagged, and had been bound with ties while
alive. Id. at 672. She had two gunshot wounds to her head. Id. The male victim
had been shot beneath his chin. Id. at 673. As with Chris, the male victim‘s body
was mutilated after death. Id. at 672–73. The male victim‘s severed head and
hands were found in a nearby lake. Id. at 672. The defendant was convicted of first
degree premeditated murder of both victims and felony murder of the female
victim. Id. at 683. The defendant presented no mitigation evidence. As to the male
victim, the jury found aggravating circumstance (i)(13). As to the female victim,
the jury found aggravating circumstances (i)(5), (i)(6), and (i)(7). Id.
 In State v. Freeland, 451 S.W.3d 791 (Tenn. 2014), the twenty-eight-year-old,
African-American male defendant shot and killed an older female victim while
kidnapping her from a grocery store parking lot and then disposed of her body in a
remote location. Id. at 800–01. The defendant was a high school graduate with
some college education and the unmarried father of two children. Id. at 816. The
defendant argued that he was an accomplice in the murder committed by another
person, that his participation was relatively minor, and that he acted under extreme
duress or under the substantial domination of another person. Id. at 820. The
defendant‘s mother, stepfather, and younger brother testified in mitigation,
supplemented with photographs, certificates, and numerous letters of support from
community members and friends. Id. at 808–09. The jury found aggravating
circumstances (i)(2), (i)(6), and (i)(7).
 In State v. Davidson, 121 S.W.3d 600 (Tenn. 2013), the fifty-two-year-old,
Caucasian male defendant killed the victim during a kidnapping and severed her
head and left hand after death. Id. at 605–06. The jury found aggravating
circumstances (i)(2), (i)(7), and (i)(13).
 In Terry v. State, 46 S.W.3d 147 (Tenn. 2001), the middle-aged, Caucasian male
defendant was employed as a minister and had no prior criminal record. He
concocted an elaborate scheme to disappear and change his identity. Id. at 150–52.
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The defendant shot and killed the church handyman, dismembered the body, and
set fire to the church. Id. The jury found aggravating circumstances (i)(5) and
(i)(6).
 In State v. Carruthers, 35 S.W.3d 516 (Tenn. 2000), the twenty-six-year-old, male
defendant kidnapped, bound, and abused three victims before shooting them and
burying them alive. Id. at 525–28. During the penalty phase, the defendant‘s sister
explained that the defendant had endured a difficult upbringing, and she believed
his claim of innocence. Id. at 531. A prison minister said the defendant was a
―person of quality and worth‖ and was upset about the deaths of the victims. Id.
The jury found four aggravating circumstances: (i)(2), (i)(5), (i)(7), and (i)(12).
 In State v. Keen, 31 S.W.3d 196 (Tenn. 2000), the twenty-seven-year-old,
Caucasian male defendant forcibly raped his minor victim and killed her by
manual and ligature strangulation. Id. at 220. The evidence indicated that the
victim struggled to free herself and was alive and conscious during the beating and
rape. Id. The defendant had no significant criminal record. Id. The jury found the
(i)(1) and (i)(5) aggravating circumstances.
 In State v. Bondurant, 4 S.W.3d 662 (Tenn. 1999), the male defendant beat a man
to death and continued to beat him after death. Id. at 665. The defendant and his
brother dismembered the body and burned the pieces at their parents‘ home. Id. In
mitigation, the defendant was portrayed as an exemplary son, a family man, and a
good employee. Id. at 666. The jury found the (i)(2) and (i)(5) aggravating
circumstances.
 In State v. Pike, 978 S.W.2d 904 (Tenn. 1998), the eighteen-year-old, female
defendant was convicted of premeditated first degree murder and conspiracy to
commit first degree murder. Id. at 907. The defendant and others tortured and
mutilated the nineteen-year-old female victim, who begged the defendant to let her
live. Id. at 916. A clinical psychologist testified that the defendant had
above-average intelligence despite only completing ninth grade, was not insane,
suffered marijuana dependence and inhalant abuse, and had borderline personality
disorder. Id. at 912. In mitigation, the defendant presented evidence to show a lack
of maternal bonding and a family history of substance abuse. Id. at 913. The jury
found the (i)(5) and (i)(6) aggravating circumstances.
 In State v. Nichols, 877 S.W.2d 722 (Tenn. 1994), the male defendant broke into
the home of his twenty-one-year-old female victim and violently raped her. Id. at
726. Because of the victim‘s resistance, the defendant struck her in the head with a
two-by-four and later repeatedly struck her again after the rape, which eventually
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led to the victim‘s death. Id. In mitigation, the defendant highlighted his
cooperation with the police and the psychological effects of his childhood. Id. at
727. Several witnesses testified to his good character and passive nature. Id. The
jury found the (i)(2) and (i)(7) aggravating circumstances.
 In State v. Alley, 776 S.W.2d 506 (Tenn. 1989), the twenty-nine-year-old,
Caucasian male defendant struck a young woman jogging on the side of the road
while driving under the influence. Id. at 508. He then kidnapped her and took her
to another location where he stabbed her in the head with a screwdriver, raped her
with a thirty-one-inch tree branch, and beat and strangled her to death. Id. at 509.
The defendant was the father of two children. Id. at 508. The jury found
aggravating circumstances (i)(5) and (i)(7).
 In State v. Thompson, 768 S.W.2d 239 (Tenn. 1989), the African-American
defendant and a runaway female juvenile kidnapped their victim in a Walmart
parking lot, drove her to a remote area, and stabbed her repeatedly in the back. Id.
at 243. The jury found the (i)(5), (i)(6), and (i)(7) aggravating circumstances.
Based on our review of the entire record and similar cases where the death penalty
was imposed, Mr. Davidson‘s death sentences are neither excessive nor disproportionate.
The death penalty should never be imposed lightly. It is limited to those offenders who
commit ―a narrow category of the most serious crimes‖ and whose extreme culpability
makes them ―the most deserving of execution.‖ Atkins v. Virginia, 536 U.S. 304, 319
(2002). The death penalty is reserved for the ―worst of the worst.‖ Kansas v. Marsh, 548
U.S. 163, 206 (2006) (Souter, J., dissenting). Without question, Mr. Davidson has shown
by his conduct he is the ―worst of the worst‖ and deserves the death penalty.
III.
We have reviewed all the other issues raised by Mr. Davidson in this appeal and
hold that the Court of Criminal Appeals reached the correct results on these issues. All
issues not directly addressed in this opinion are included in the attached appendix. We
vacate the Court of Criminal Appeals‘ decision to remand this case to the trial court to
correct the judgment documents. We have conducted the statutorily mandated review and
have determined that the sentences of death imposed on Mr. Davidson were not arbitrary,
were supported by the evidence, and were neither disproportionate nor excessive.
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The sentences of death shall be carried out as provided by law on the 3rd day of
January, 2018, unless otherwise ordered by this Court or other proper authority. It
appearing that Mr. Davidson is indigent, the costs of this appeal are taxed to the State of
Tennessee.
______________________________
SHARON G. LEE, JUSTICE
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APPENDIX
(Excerpts from the Decision of the Court of Criminal Appeals)
Court of Criminal Appeals of Tennessee, at Knoxville.
State of Tennessee
v.
Lemaricus Devall Davidson
No. E2013-00394-CCA-R3-DD
October 21, 2014 Session
March 10, 2015
Direct Appeal from the Criminal Court for Knox County, No. 86216B; Walter C. Kurtz,
Judge.1
David M. Eldridge and Douglas A. Trant, Knoxville, Tennessee, for the appellant,
Lemaricus Devall Davidson.
Herbert H. Slatery III, Attorney General and Reporter; John H. Bledsoe, Assistant
Attorney General; Randall E. Nichols, Assistant District Attorney General; and Leland
Price and Takisha Fitzgerald, Assistant District Attorneys General, for the appellee, State
of Tennessee.
JAMES CURWOOD WITT, JR., J., delivered the opinion of the Court, in which D.
KELLY THOMAS, JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.
OPINION
[Deleted: Summary of Facts and Testimony]
1
[Deleted: footnote]
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I. Structural Error
We consider first the defendant‘s claim of structural error based upon the
out-of-court behavior of the trial judge because the judge‘s behavior, his subsequent plea
of guilty to criminal charges and resulting resignation, and the media frenzy that those
events created have loomed large over what was an already highly-publicized case. As
indicated above, after the trial judge resigned from the bench following his plea of guilty
to official misconduct, the defendant then sought a new trial based upon his claim that the
trial judge‘s misconduct constituted structural error. Our supreme court concluded that
the record did not support a conclusion that the trial judge‘s out-of-court misconduct had
resulted in structural error requiring a new trial. See Rule 10 Order, slip op. at 3–4. In this
appeal, the defendant revives his claim of structural error and argues that our supreme
court erred by requiring a showing of prejudice under the circumstances of this case. The
State asserts that the law-of-the-case doctrine prohibits this court from making a ruling on
this issue.
Like our supreme court, we do not condone or excuse the trial judge‘s out-of-court
malfeasance. That being said, our supreme court has held that ―a trial judge‘s out-of-court
misconduct, by itself‖ does not ―constitute[] structural error unless there is proof that the
misconduct affected the trial proceedings.‖ Rule 10 Order, slip op. at 3 (citing State v.
Benson, 973 S.W.2d 202, 206 (Tenn. 1998)). Our supreme court concluded that although
the trial judge‘s out-of-court misconduct in this case was reprehensible, the record
contained no proof that his misconduct ―affected the integrity of the trials.‖ Rule 10
Order, slip op. at 4. Two important principles of law prohibit us from revisiting that
ruling.
First, the law-of-the-case doctrine prevents this court from considering the
defendant‘s claim of structural error because that issue was already decided by our
supreme court in a previous appeal in the same case. Our supreme court addressed the
law-of-the-case doctrine in great detail in Memphis Publishing Company v. Tennessee
Petroleum Underground Storage Tank Board:
The phrase ―law of the case‖ refers to a legal doctrine which generally
prohibits reconsideration of issues that have already been decided in a prior
appeal of the same case. In other words, under the law of the case doctrine,
an appellate court‘s decision on an issue of law is binding in later trials and
appeals of the same case if the facts on the second trial or appeal are
substantially the same as the facts in the first trial or appeal. The doctrine
applies to issues that were actually before the appellate court in the first
appeal and to issues that were necessarily decided by implication. The
doctrine does not apply to dicta.
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The law of the case doctrine is not a constitutional mandate nor a
limitation on the power of a court. Rather, it is a longstanding discretionary
rule of judicial practice which is based on the common sense recognition
that issues previously litigated and decided by a court of competent
jurisdiction ordinarily need not be revisited. This rule promotes the finality
and efficiency of the judicial process, avoids indefinite relitigation of the
same issue, fosters consistent results in the same litigation, and assures the
obedience of lower courts to the decisions of appellate courts.
Therefore, when an initial appeal results in a remand to the trial
court, the decision of the appellate court establishes the law of the case
which generally must be followed upon remand by the trial court, and by an
appellate court if a second appeal is taken from the judgment of the trial
court entered after remand. There are limited circumstances which may
justify reconsideration of an issue which was [an] issue decided in a prior
appeal: (1) the evidence offered at a trial or hearing after remand was
substantially different from the evidence in the initial proceeding; (2) the
prior ruling was clearly erroneous and would result in a manifest injustice if
allowed to stand; or (3) the prior decision is contrary to a change in the
controlling law which has occurred between the first and second appeal.
Memphis Publ’g Co. v. Tenn. Petroleum Underground Storage Tank Bd., 975 S.W.2d
303, 306 (Tenn. 1998) (citations omitted). None of the delineated exceptions apply here.
The defendant offered no new evidence following the remand by our supreme court, and
there has been no change in the controlling law. Moreover, we cannot say that the ruling
of our supreme court was ―clearly erroneous.‖ In consequence, the law-of-the-case
doctrine requires that we adhere to the ruling of our supreme court that the out-of-court
misconduct of the trial judge did not constitute structural error in this case.
Second, even assuming for the sake of argument that we disagreed with the
previous ruling of our supreme court, we lack the authority to overturn the ruling because
the allocation of judicial power in this state forbids us from doing so. Our supreme court
―is a direct creature of the [state] Constitution and constitutes the supreme judicial
tribunal of the state and is a court of last resort.‖ Barger v. Brock, 535 S.W.2d 337, 340
(Tenn. 1976). This court and ―[a]ll other courts are constitutionally inferior tribunals
subject to the actions of the Supreme Court.‖ Id. The adjudications of the supreme court
―are final and conclusive upon all questions determined by it, subject only to review, in
appropriate cases by the Supreme Court of the United States.‖ Id. (citing Railroad v.
Bryne, 104 S.W. 460 (1907)).
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Accordingly, because our supreme court has already ruled that the malefactions of
the trial judge did not occasion structural error in this case, we cannot consider the issue
in this appeal.
[Deleted: II. Motion to Suppress Evidence Obtained During the
January 9, 2007 Searches of the Chipman Street Residence]
[Deleted: III. Motion to Suppress Pretrial Statements]
[Deleted: IV. Motion to Suppress Searches of the Defendant’s Person
on January 19, 2007, and March 13, 2008]
[Deleted: V. Admission of Photographs]
[Deleted: VI. Fingerprint Identification]
[Deleted: VII. Ballistics Testing]
[Deleted: VIII. Buttons Depicting Victims]
IX. Interception of Privileged Communications
The defendant asserts that the trial court erred by refusing to dismiss the
presentment following the discovery that the State had intercepted a letter from the
incarcerated defendant addressed to his counsel. The State avers that the trial court did
not err.
Prior to trial, the defendant moved the trial court to dismiss the presentment on
grounds that the State had violated his Sixth Amendment right to counsel by intercepting
privileged communications between the defendant and his attorneys. The defendant noted
that correspondence from the defendant, who was in jail, to his counsel had been opened,
copied, reviewed by members of the district attorney‘s office and reproduced in the
discovery materials provided to all the parties.
At the hearing on the defendant‘s motion, Knox County Sheriff‘s Office
(―KCSO‖) Officer Frank P. Nauss, Jr., the ―gang intelligence officer in the mailroom‖ of
the Knox County Detention Center, testified that in 2008, ―homeland security division‖
Officer Hugh Williams instructed Officer Nauss to ―censor‖ the defendant‘s mail, which
meant he was to copy all of the defendant‘s mail and send a copy to Officer Williams. He
said that he was to copy ―everything except legal mail,‖ which he described as
―off-limits‖ and ―irrelevant.‖ Every item he copied was forwarded to Officer Williams
- 75 -
and Investigator Tom Walker. He acknowledged that the request for copies of the
defendant‘s mail came from the district attorney general‘s office.
When ―censoring‖ mail, Officer Nauss typically opened the letters from the inmate
and copied the contents. He then returned the contents to the envelope and resealed it
before sending it on to the intended recipient. He insisted that he did not read the contents
while copying the letters. His process, he said, changed ―around July 1st of 2008‖ due to
an increase in ―the sheer volume of copies‖ that he was asked to make. At that point,
Officer Williams instructed him to ―pull the mail, look at it as needed, look at the
documentation – the letter as needed and then copy anything that [Officer Nauss] thought
was – would be of interest to homeland security.‖
On February 21, 2008, Officer Nauss ―processed and copied‖ an envelope from
the law firm of Eldridge & Blakney that was addressed to the defendant and marked
―personal and confidential.‖ On April 23, 2008, Officer Nauss opened and copied one
letteraddressed to and three letters from the defendant, including legal mail. All the
copies were sent to KCSO homeland security department.
Officer Nauss testified that he could not answer the question why the defendant‘s
legal mail had been opened and copied when it was his practice to avoid tampering with
legal mail. He said that he ―just did not catch it‖ when he opened the defendant‘s legal
mail. He maintained that he had not intentionally copied the defendant‘s legal mail. The
same thing happened, he said, when he accidentally opened and copied legal
correspondence between Vanessa Coleman and her attorney. He insisted that he had not
been instructed to copy legal mail and claimed that he copied Ms. Coleman‘s mail only
because he did not recognize the name of her attorney. Officer Nauss said that after
Officer Williams realized that a piece of legal mail had been copied, he alerted the district
attorney general‘s office. He was then instructed to shred his copy of the letter and
prepare a memorandum recounting the situation.
KCSO Officer Hugh Williams testified that shortly after the defendant‘s arrest, the
district attorney general‘s office instructed him to monitor the defendant‘s mail and that
his instructions strictly forbade the intercepting of legal mail. He identified a letter
addressed to the defendant‘s counsel that was intercepted in April 2008 and said that ―[i]t
stands to reason that‖ he had reviewed the letter in the course of his duties. He said that
the letter would have been copied and the copy forwarded to the district attorney
general‘s office. A copy of the letter would also be retained in his office.
Although Officer Williams could not recall the specific contents of the April 2008
letter, he said ―for a fact that it was nonconsequential [sic], whatever it was,‖ or he would
have remembered it, ―especially on a case of this magnitude.‖ He said that he had, ―[o]n
occasion,‖ discussed the contents of the defendant‘s mail with members of the district
- 76 -
attorney general‘s office. He could not explain how the April letter had come to be copied
given that it was obviously legal mail. He said that he was ―absolutely flabbergasted‖ that
his office ―had made a mistake, and this is obviously a mistake.‖
In the letter, which was exhibited to the hearing, the defendant asked his counsel
to obtain photographs and bring them to him at the detention center. He also raised
questions regarding the potential handling of Daphne Sutton‘s trial testimony and the
handling of the motion to suppress evidence obtained via the first search warrant
executed at the Chipman Street residence. The defendant specifically referenced his
personal knowledge of information revealed during the federal carjacking trial of Eric
Boyd.11
The parties stipulated that a member of the district attorney general‘s office read
the letter intercepted on April 23, 2008.
The defendant argued that the State‘s interception and the prosecution‘s reading of
the letter violated his First and Sixth Amendment rights and that the only appropriate
remedies available to the trial court were dismissal of the presentment or recusal of the
Knox County District Attorney General‘s Office. The State acknowledged that the
defendant‘s legal mail had been intercepted but claimed that the interception was
inadvertent. The State argued that the appropriate remedy was suppression of any
information gleaned from the erroneous interception. The prosecutor adamantly asserted
that the letter had not altered the State‘s theory of the case. Finally, the State averred that
the defendant could not establish that he had been prejudiced by the interception.
At the conclusion of the hearing, the trial court accredited the testimony of
Officers Nauss and Williams, finding that ―they testified truthfully,‖ ―that this was not an
intentional action on their behalf in copying this letter,‖ ―that they are aware of the fact
that this is privileged communication,‖ and ―that there was a mistake made here that they
readily admit and were embarrassed by.‖ The court also concluded that although the letter
was reviewed by someone in the district attorney general‘s office, ―it created no
particular interest on their behalf over there‖ because ―it was nothing of any great
significance.‖ The court observed that the fact that the communication was disseminated
in the discovery materials for all those charged in this case indicated that the State was
―unaware of the fact that they had in their possession a communication from a defendant
11
A federal jury convicted Eric Boyd of ―being an accessory after the fact to a carjacking leading
to serious bodily injury and death[] and (2) misprision of a felony‖ for providing aid to the defendant and
helping him elude authorities following the discovery of the victims‘ bodies. United States v. Boyd, 640
F.3d 657, 662 (6th Cir. 2011).
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to his lawyer.‖ The court noted that, despite that all the defense lawyers involved had
been in possession of the letter since June 2008, ―the first time that anybody has heard
anything about this is the first week of October of 2009 when, apparently, . . . you got
looking at what you had in your file.‖ The court said, ―[M]y point of all that is, is that this
is not something that – that caused a great deal of concern . . . it was not something that
jumped out as a matter of great concern.‖ The court commented that ―it certainly appears
that it affected in no way anybody‘s preparation for the trial of this case.‖ The court
emphasized that the letter was ―confined to a very specific issue at a very specific time,
which . . . is not of major import one way or the other.‖
The court concluded,
So it seems to me that although there‘s no question that this was a
privileged communication between a client and attorney that the
information that‘s discussed in this communication is not information that
is going to prejudice the defendant in the preparation or presentation of the
case. I think all of that preparation has already been done, that everything
that has transpired up until last week was done without any reference to or
interference by this communication. I don‘t think it affects the way that the
[S]tate is going to present their case or the way that the defendant is going
to defend their case.
The only thing that the Court can do, in my judgment, is as the trial
progresses, determine whether or not during the course of the trial anything
that . . . arises that in my judgment is influenced in any way by the contents
of this communication, and if it is, I‘ll fashion a remedy that I think is
appropriate at the time. . . .
. . . I believe it is an inadvertent, unintentional breach on behalf of
the Knox County Sheriff‘s Department, but it is a breach. I do not believe
that the appropriate remedy in this case is dismissal of the case.
On appeal, the defendant contends that ―the interception and review of this
correspondence between [the defendant] and his counsel violated the attorney client
privilege, [the defendant‘s] access to the courts, right to the assistance of counsel, and
right to free speech.‖ He argues that the only appropriate remedy is reversal of his
conviction. The State acknowledges that the defendant‘s legal mail should not have been
opened and read but maintains that the trial court did not err by refusing to dismiss the
presentment or recuse the Knox County District Attorney General‘s Office because the
action was unintentional and because it resulted in no prejudice to the defendant.
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To be sure, correspondence between the defendant and his counsel should not
have been opened and read by members of the KCSO outside the defendant‘s presence
and should not have, in any case, been copied and shared with the district attorney
general‘s office. See Wolff v. McDonnell, 418 U.S. 539, 576–77 (1974) (recognizing
Sixth Amendment protection for inmate legal correspondence but approving prison
policy of opening legal mail in the inmate‘s presence so long as the mail is not read).
Outside of those cases indicating a complete deprivation of the right to counsel, Sixth
Amendment violations ―are subject to the general rule that remedies should be tailored to
the injury suffered from the constitutional violation and should not unnecessarily infringe
on competing interests.‖ United States v. Morrison, 449 U.S. 361, 364 (1981). Indeed,
―certain violations of the right to counsel may be disregarded as harmless error.‖ Id. at
365. Absent proof that ―the constitutional infringement identified has had or threatens
some adverse effect upon the effectiveness of counsel‘s representation or has produced
some other prejudice to the defense,‖ ―there is no basis for imposing a remedy in that
proceeding, which can go forward with full recognition of the defendant‘s right to
counsel and to a fair trial.‖ Id.
In this case, the record contains no evidence to suggest that the reading of the
single letter from the defendant to his counsel that was exhibited to the hearing resulted
in any prejudice. The letter did not divulge any defense strategy and did not, based on the
record before us, result in the presentation of tainted evidence at the defendant‘s trial.
Under these circumstances, the trial court did not err by denying the defendant‘s motion.
See Weatherford v. Bursey, 429 U.S. 545, 558 (1977) (―There being no tainted evidence
in this case, no communication of defense strategy to the prosecution, and no purposeful
intrusion . . . , there was no violation of the Sixth Amendment insofar as it is applicable to
the States by virtue of the Fourteenth Amendment.‖).
[Deleted: X. Thirteenth Juror]
[Deleted: XI. Sufficiency]
XII. Presentment
The defendant makes two challenges to the presentment in this case: (1) that the
presentment was ―constitutionally insufficient‖ because it did not ―properly specify the
time, place, and a description of the occurrence of the alleged offenses‖ and (2) that the
presentment failed to charge the elements of criminal responsibility. The State asserts that
the presentment sufficiently apprised the defendant of the charges against him and that
the failure to include the elements of criminal responsibility in the presentment did not
render it deficient.
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The presentment in this case charged the defendant, George Thomas, Letalvis
Cobbins, and Vanessa Coleman with the following offenses, which, the presentment
alleged, occurred ―[o]n or about the ____ day of January, 2007‖:
[Deleted: Table of charges]
Each of the counts tracked the language of the relevant statute and contained an
appropriate statutory citation.
A. Sufficiency of the Presentment
Prior to trial, the defendant moved the trial court to dismiss the presentment on
grounds that it was insufficient in providing sufficient detail to allow the defendant to
defend the charges. The trial court denied the motion in summary fashion.
Challenges to the legal sufficiency of a presentment present questions of law
subject to de novo review on appeal. See State v. Wilson, 31 S.W.3d 189, 191 (Tenn.
2000); State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997); State v. Davis, 940 S.W.2d 558,
561 (Tenn. 1997).
―[T]he Sixth and Fourteenth Amendments to the United States Constitution and
Article I, Section 9 of the Tennessee Constitution guarantee to the accused the right to be
informed of the nature and cause of the accusation.‖ Hill, 954 S.W.2d at 727; State v.
Berry, 141 S.W.3d 549, 561 (Tenn. 2004) (―The overriding purpose of an indictment is to
inform the accused of ‗the nature and cause of the accusation.‘‖). ―[T]he touchstone for
constitutionality is adequate notice to the accused.‖ Hill, 954 S.W.2d at 729.
Additionally, Tennessee Code Annotated section 40-13-202 provides:
The indictment must state the facts constituting the offense in ordinary and
concise language, without prolixity or repetition, in a manner so as to
enable a person of common understanding to know what is intended and
with that degree of certainty which will enable the court, on conviction, to
pronounce the proper judgment. In no case are the words ―force and arms‖
or ―contrary to the form of the statute‖ necessary.
T.C.A. § 40-13-202 (2006). As a general rule, ―an indictment is valid if it provides
sufficient information (1) to enable the accused to know the accusation to which answer
is required, (2) to furnish the court adequate basis for the entry of a proper judgment, and
(3) to protect the accused from double jeopardy.‖ Hill, 954 S.W.2d at 729 (citing State v.
Byrd, 820 S.W.2d 739, 741 (Tenn. 1991); VanArsdall v. State, 919 S.W.2d 626, 630
(Tenn. Crim. App. 1995); State v. Smith, 612 S.W.2d 493, 497 (Tenn. Crim. App. 1980)).
- 80 -
―It is generally sufficient for the indictment to state the offense charged in the
words of the statute.‖ State v. Majors, 318 S.W.3d 850, 864 (Tenn. 2010); see also State
v. Carter, 121 S.W.3d 579, 587 (Tenn. 2003) (―[A]n indictment which references the
statute defining the offense is sufficient and satisfies the constitutional and statutory
requirements of Hill.‖); State v. Sledge, 15 S.W.3d 93, 95 (Tenn. 2000); State v. Carter,
988 S.W.2d 145, 148 (Tenn. 1999); Ruff v. State, 978 S.W.2d 95, 100 (Tenn. 1998)
(―[W]here the constitutional and statutory requirements outlined in Hill are met, an
indictment which cites the pertinent statute and uses its language will be sufficient to
support a conviction.‖). ―[A]n indictment need not allege the specific theory or means by
which the State intends to prove each element of an offense to achieve the overriding
purpose of notice to the accused.‖ State v. Hammonds, 30 S.W.3d 294, 300 (Tenn.
2000).
Here, the defendant concedes that the presentment includes a ―description of the
date and a recitation of the statutes,‖ and we observe that each count contains an
appropriate statutory reference. Nothing more is required.
Regarding the defendant‘s claim that the presentment was insufficient because it
failed to allege a date beyond ―the ___ day of January, 2007,‖ Code section 40-13-207
provides:
The time at which the offense was committed need not be stated in the
indictment, but the offense may be alleged to have been committed on any
day before the finding of the indictment, or generally before the finding of
the indictment, unless the time is a material ingredient in the offense.
T.C.A. § 40-13-207; see also Byrd, 820 S.W.2d at 740 (stating that ―the exact date, or
even the year, of an offense need not be stated in an indictment or presentment unless the
date or time ‗is a material ingredient in the offense.‘‖ (citations omitted)); Bosley v. State,
401 S.W.2d 770, 772 (Tenn. 1966) (―It is the well settled law of this state that an
indictment in a case of this character . . . that shows that the offense the defendant is
alleged to have committed occurred prior to the date of indictment is sufficient.‖). Our
courts have repeatedly ruled that inclusion of the month and year of an offense in the
indictment is sufficient. See, e.g., State v. Shaw, 82 S.W. 480 (Tenn. 1904) (stating that
―where there is no statute of limitations barring the offense, it is unnecessary to state the
day, or even the year, but it is sufficient to aver generally that the offense was committed
before the finding of the indictment; that it is not necessary to state in any case the day on
which the offense was committed, unless the day itself is of the essence of the offense‖).
With regard to his claim that the presentment should have stated a precise location
of the offense, Code section 40-13-208 provides: ―It is not necessary for the indictment
to allege where the offense was committed, but the proof shall show a state of facts
- 81 -
bringing the offense within the jurisdiction of the county in which the indictment was
preferred.‖ T.C.A. § 40-13-208. We have observed that ―[i]n the context of indictments,
the place of the offense is typically considered a matter of form rather than of substance.‖
State v. Gerald L. Powers, No. W1999-02348-CCA-R3-DD, slip op. at 13 (Tenn. Crim.
App., Jackson, Sept. 28, 2001) (citing State v. Nixon, 977 S.W.2d 119, 121 (Tenn. Crim.
App. 1997)); State v. Sowder, 826 S.W.2d 924, 928 (Tenn. Crim. App. 1991) (―The
indictment need not be specific regarding the time or place of the offense.‖).
B. Criminal Responsibility
The defendant also contends that the presentment should have been dismissed
because it ―failed to allege the elements of criminal responsibility and facts in support
thereof.‖ The defendant is correct that the presentment contains no reference to the
theory of criminal responsibility, but his claim that this omission voids the presentment is
inapt. As our supreme court explained in State v. Sherman, Code ―[s]ection 39-11-402(2)
does not prescribe a separate and distinct crime; rather, it works in synergy with the
charged offense to establish a defendant‘s guilt through the actions of another.‖ State v.
Sherman, 266 S.W.3d 395, 408 (Tenn. 2008) (citing State v. Lemacks, 996 S.W.2d 166,
170 (Tenn. 1999)). Importantly, ―[a] separate indictment for criminal responsibility is
unnecessary when a defendant has been indicted for the primary offense.‖ Sherman, 266
S.W.3d at 408 (citing Lemacks, 996 S.W.2d at 170; State v. Barnes, 954 S.W.2d 760, 763
(Tenn. Crim. App. 1997)). This is because ―[a]n indictment that charges an accused on
the principal offense ‗carries with it all the nuances of the offense,‘ including criminal
responsibility.‖ Lemacks, 996 S.W.2d at 173 (quoting State v. Johnson, 910 S.W.2d 897,
900 (Tenn. Crim. App. 1995)). Thus, the presentment need not have alleged the theory of
guilt via criminal responsibility for the acts of another.
XIII. Juror Questions
The defendant next contends that the trial court erred by informing the jurors that
they could ask questions of the witnesses and by permitting the jurors to ask questions
during the trial. He does not complain about any specific question posed by a particular
juror but instead asserts that the practice has no place in a capital trial.
Rule 24.1 of the Tennessee Rules of Criminal Procedure provides that the trial
court ―may permit a juror to ask a question of a witness‖ and provides a procedure for the
submission of juror questions:
(1) Written Submission of Questions.
The juror shall put the question in writing and submit it to the judge
through a court officer at the end of a witness‘ testimony. A juror‘s
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question shall be anonymous and the juror‘s name shall not be included in
the question.
(2) Procedure After Submission.
The judge shall review all such questions and, outside the hearing of the
jury, shall consult the parties about whether the question should be asked.
The judge may ask the juror‘s question in whole or part and may change the
wording of the question before asking it. The judge may permit counsel to
ask the question in its original or amended form in whole or part.
(3) Jury Instructions.
When juror questions are permitted, the court shall instruct jurors early in
the trial about the mechanics of asking a question and to give no meaning to
the fact that the judge chose not to ask a question or altered the wording of
a question submitted by a juror.
Tenn. R. Crim. P. 24.1(c). The purpose of the rule is ―to assist jurors in their
understanding of evidence and to make them feel more involved in the trial process.‖ Id.,
Advisory Comm‘n Comments. Although once described as ―a perilous practice which
trial courts should scrupulously avoid,‖ Branch v. State, 469 S.W.2d 533, 534 (Tenn.
Crim. App. 1969), the practice of permitting jurors to pose questions to witnesses is no
longer disfavored in this state, see State v. James, 315 S.W.3d 440, 458 (Tenn. 2010)
(observing that the adoption of Rule 24.1 ―changed that policy‖). A reviewing court will
not find error ―[a]bsent a clear abuse of the discretionary authority of the trial judge, one
that manifestly prejudices the rights of a defendant.‖ James, 315 S.W.3d at 460.
Here, the trial court denied the defendant‘s pretrial motion to prohibit the jurors
from submitting questions and then followed the procedure set forth in Rule 24.1 for the
handling of juror questions during the trial. The defendant cites no authority for the
proposition that Rule 24.1 is inapplicable to capital trials, and we find none. Under these
circumstances, we cannot say that the trial court abused its discretion by permitting jurors
to submit questions.
[Deleted: XIV. Jury Deliberations]
XV. Composition of Jury Venire
Prior to the trial, the defendant moved the court to dismiss the presentment on
grounds that the juror selection process resulted in the jury venire‘s being
unconstitutionally composed. The trial court summarily denied the motion, and the
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defendant now appeals, claiming that ―the structure of the jury selection process . . . and
the compensation rate for jurors made it so the jury venire, the grand jury, and the petit
jury were not composed of a fair cross section of the community.‖ Specifically, he
argues that ―the jury selection process systematically excluded distinctive groups within
the community‖ and that ―the compensation authorized to be paid to jurors does not even
provide the minimum wage . . . and therefore makes it practically impossible for wage
laborers and persons caring for young children to serve on the jury.‖
It is important that the defendant‘s issue be appropriately cast. His challenge is
solely to ―the potentially arbitrary and discriminatory method used to select the grand and
petit juries in his case.‖ (Emphasis added). To ―establish a prima facie violation of the
fair-cross-section requirement,‖ however, a
defendant must show (1) that the group alleged to be excluded is a
―distinctive‖ group in the community; (2) that the representation of this
group in venires from which juries are selected is not fair and reasonable in
relation to the number of such persons in the community; and (3) that this
underrepresentation is due to systematic exclusion of the group in the
jury-selection process.
Duren v. Missouri, 439 U.S. 357, 364 (1979). Although he claims that the method of
venire selection affected the grand and petit juries that heard his case, the defendant
presented no proof that those groups he alleges were excluded from the venire12 were
―distinctive‖ within 12 the community. Additionally, he did not establish that the
representation of the identified groups was ―not fair and reasonable in relation to the
number of such persons in the community.‖ Indeed, he offered no proof of the number of
members of the identified groups on the venire versus the number of those persons in the
community. Finally, the defendant offered no proof that any underrepresentation of the
identified groups was ―due to systematic exclusion.‖ Instead, he points to the Code
sections governing jury selection and compensation, a 2005 study from the University of
Wisconsin-Milwaukee titled ―The Driver License Status of the Voting Age Population in
Wisconsin,‖ and the United States Election Commission clearinghouse website. The
defendant correctly asserts that both the state and federal constitutions guarantee the right
to an impartial jury selected from a fair cross-section of the community, but he has failed
to establish that he was actually deprived of those constitutional guarantees.
12
The groups identified by the defendant were ―minorities and poor populations‖ along with
―wage laborers and persons caring for young children.‖
- 84 -
Moreover, our supreme court, considering a direct challenge identical to the one
presented by the defendant, approved the method of juror selection utilized in Knox
County:
The defendant insists that the method used by the Knox County Jury
Commission to select the jury pool denied defendant a fair and impartial
cross section of the community. The Commission selected prospective
jurors solely from the lists of registered voters. The defendant argued that
this excluded the class of those who are not registered to vote and
introduced evidence, largely held incompetent and irrelevant by the court,
to show that those who do not register to vote are less wealthy and less
educated than those who do register and that over a quarter of the city
population and almost one-third of the county population are not registered
to vote.
The method used by the Commission has been impliedly approved by the
Tennessee courts, although it may be that the list should be supplemented
with some other source of names. In the federal system voter registration
lists are the preferred method. Several federal cases approve the use of
such lists in choosing juries and note that those complaining must still show
that the method results in the systematic exclusion of a cognizable group
from the jury source. The defendant here has shown no discrimination,
either racial or sexual, by the Commission; in fact it is not even shown that
any cognizable group has been excluded. In Test, the court noted that voter
registration lists provide a large and easily accessible source of names, to
which all potential jurors have equal access and which disqualifies jurors
solely on the basis of objective criteria. The defendant has not proved any
constitutional invalidity in the method of jury selection in this case.
State v. Caruthers, 676 S.W.2d 935, 939 (Tenn. 1984) (citations omitted). The high court
has also specifically approved the use of driver‘s license records to select potential jurors,
noting that it found ―no material difference between the use of a list of registered voters
and the use of a list of registered drivers.‖ State v. Mann, 959 S.W.2d 503, 535 (Tenn.
1997). The defendant is not entitled to relief on this issue.
XVI. Death Penalty Related Issues
A. Economic Costs of the Death Penalty
The defendant raises two issues related to the economic costs of the death penalty
in this state. He first asserts that the trial court erred by refusing to allow him to present
proof during the penalty phase about the costs associated with implementing the death
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penalty. Prior to trial, the defendant filed a motion seeking permission to present
evidence that first degree murder trials where death is a potential punishment cost more
than those where death is not a potential punishment and that the cost of executing an
inmate is greater than the cost of imprisoning an inmate for the entirety of his life. In
support of his motion, the defendant pointed to the questionnaires returned by potential
jurors in this case, which revealed that 76 percent of potential jurors believed that it costs
more to imprison an individual for life than it does to execute an individual. The trial
court denied the defendant‘s motion but offered the following to the jury before giving
the jury charge:
Ladies and gentlemen, one of the issues that . . . was in your
questionnaire and one of the issues that had come up related to economic
costs of sentencing issues, and . . . we did not get into that during the proof
in this case. But what I‘ve agreed to do at the request of and with the
agreement of the parties is to make this following statement to you with
regard to economic costs as it relates to the death penalty and as it relates to
life imprisonment.
There was a study by the [C]omptroller of the [S]tate of Tennessee
that was done, and what that study showed is that the economic costs of . . .
imposing the death penalty . . . is more expensive than imprisoning
somebody for life without parole. Now that‘s one study done by the
[C]omptroller of the [S]tate of Tennessee.
Now, having said that, I want you to understand that the economic
cost[] . . . should have absolutely no bearing on your decision in this case.
What you should base your decision on in this case is the evidence that‘s
presented to you, the law that we tell you that applies on how you should
make your decision, and the weight to be given the evidence that‘s
presented to you.
We just . . . don‘t want people to operate under any . . . , misguided
misperceptions [sic] about . . . economics so that‘s why I told you that.
But I want to stress to you that you are to make your decision in this
case solely on the . . . evidence that‘s presented to you, the law that we tell
you that applies, and those are the things that are important to how you
decide what‘s appropriate in this case. I‘m going to leave it here, okay.
The defendant claims on appeal that the trial court‘s ruling and its instruction to
the jury deprived him of the right to present mitigation evidence. The State argues that
because the economic costs of the death penalty bear no relation to the defendant or his
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crime, evidence of the same was irrelevant and properly excluded by the trial court. We
agree with the State.
Tennessee Code Annotated section 39-13-204 provides, in pertinent part, as
follows:
In the sentencing proceeding, evidence may be presented as to any matter
that the court deems relevant to the punishment, and may include, but not
be limited to, the nature and circumstances of the crime; the defendant‘s
character, background history, and physical condition; any evidence
tending to establish or rebut the aggravating circumstances enumerated in
subsection (i); and any evidence tending to establish or rebut any mitigating
factors. Any such evidence that the court deems to have probative value on
the issue of punishment may be received, regardless of its admissibility
under the rules of evidence; provided, that the defendant is accorded a fair
opportunity to rebut any hearsay statements so admitted. However, this
subsection (c) shall not be construed to authorize the introduction of any
evidence secured in violation of the constitution of the United States or the
constitution of Tennessee. . . .
T.C.A. § 39-13-204(c). An accused facing the death penalty has the constitutional right
to present evidence of ―any aspect of a defendant‘s character or record and any of the
circumstances of the offense that the defendant proffers as a basis for a sentence less than
death,‖ Lockett v. Ohio, 438 U.S. 586, 604 (1978), but this right does not ―limit[] the
traditional authority of a court to exclude, as irrelevant, evidence not bearing on the
defendant‘s character, prior record, or the circumstances of his offense,‖ id. n.12; see also
State v. Odom, 928 S.W.2d 18, 31 n.10 (Tenn. 1996) (noting that ―evidence that does not
bear on the defendant‘s character, prior record or the circumstances of the offense is not
relevant and may be excluded by the trial court‖). Indeed, ―‗[t]he primary concern in the
Eighth Amendment context has been that the sentencing decision be based on the facts
and circumstances of the defendant, his background, and his crime.‘‖ State v. Dellinger,
79 S.W.3d 458, 473 (Tenn. 2002) (quoting Clemons v. Mississippi, 494 U.S. 738, 748
(1990)) (emphasis added).
Those courts to consider the issue have concluded that evidence of the economic
costs of imposing the death penalty is not relevant to the issue of punishment and, as
such, can be properly excluded from a capital sentencing hearing. For example, in State
v. Clabourne, the Arizona Supreme Court cited as error the sentencing court‘s decision to
permit Clabourne to utilize the cost of imposing the death penalty as a mitigating factor
because ―the economic cost of the death penalty is unrelated to Clabourne, his character
or record, or the circumstances of his offense.‖ State v. Clabourne, 983 P.2d 748, 757
(Ariz. 1999). The Clabourne court observed, ―The cost/benefit analysis of the death
- 87 -
penalty is a decision left to the legislature in the first instance, and to the State in any
given case.‖ Id.; see also State v. Bell, 33 A.3d 167, 180 (Conn. 2011) (stating that the
economic costs associated with a particular punishment ―are to be considered not by the
sentencing authority but by the legislature when it is enacting sentencing provisions‖).
In our view, the trial court did not err by refusing to allow the defendant to
introduce evidence regarding the cost of imposing the death penalty compared to the cost
associated with imprisoning an individual for life. Evidence of the expense associated
with implementing the death penalty bore no relation to the defendant or his crimes, and
as such, it was irrelevant.
In a related issue, the defendant contends that the ―enormous economic costs‖
associated with the death penalty render it unconstitutional, arguing that ―given the
substantial expense of imposing the death penalty as compared to a sentence of
incarceration for life without parole, the [S]tate does not have a compelling interest in the
continued use of capital punishment.‖
Regardless of the costs associated with implementing the death penalty, the
responsibility of weighing the economic costs associated with continuing the death
penalty in this State lies solely with the general assembly, not with this or any other court.
We cannot fathom a situation in which the potential financial burden on Tennessee
taxpayers associated with implementing the death penalty could result in the finding of a
violation of the death sentenced inmate‘s constitutional protection against cruel and
unusual punishment.
B. Death Qualified Jurors
The defendant next asserts that the trial court erred by excluding from the jury
those individuals who expressed that they could not impose the death penalty for
religious or other reasons. As the State correctly points out, our supreme court has
repeatedly approved of the process of death qualifying the jury by excluding those
individuals on the extremes, those who would flout the law and ―always‖ or ―never‖ vote
for the death penalty regardless of the evidence. See, e.g., State v. Sexton, 368 S.W.3d
371, 391 (Tenn. 2012); State v. Teel, 793 S.W.2d 236, 246 (Tenn. 1990). The
defendant‘s attempt to shoehorn this claim into a violation of the fair cross-section
requirement does not alter our decision. The defendant is not entitled to relief on this
issue.
C. Constitutionality of the Death Penalty
Finally, the defendant raises a number of separate but related challenges to the
constitutionality of the death penalty in general and the death penalty as it was imposed
- 88 -
in this case. He argues that these flaws should have resulted in the dismissal of the death
notice in this case.
1. Sufficient Narrowing
He first contends that Code section 39-13-204 ―does not sufficiently narrow the
population of defendants convicted of first degree murder who are eligible for a sentence
of death‖ in violation of constitutional protections. He claims that the (i)(5), (i)(6), (i)(7),
and (i)(13) aggravating circumstances, each of which was found by the jury in this case,
are unconstitutionally vague and do not achieve a constitutionally sufficient narrowing.
Again, as the State correctly points out, the supreme court has considered and rejected
arguments identical to those presented by the defendant.
The defendant claims that the (i)(5) aggravating factor, that ―[t]he murder was
especially heinous, atrocious, or cruel, in that it involved torture or serious physical abuse
beyond that necessary to produce death,‖ T.C.A. § 39-13-204(i)(5), does not sufficiently
narrow the class of death-eligible murderers because ―a person of ordinary sensibility
could fairly characterize almost every murder as involving the infliction of severe
physical or mental pain.‖ Our supreme court has ―consistently upheld the
constitutionality of [the (i)(5)] aggravating circumstance‖ and has ―rejected the argument
that the terms are vague or overbroad.‖ See Terry v. State, 46 S.W.3d 147, 159 (Tenn.
2001).
The defendant claims that the (i)(6) aggravating circumstance, that ―[t]he murder
was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest
or prosecution of the defendant or another,‖ T.C.A. § 39-13-204(i)(6), is unconstitutional
as ―significantly expanded‖ by our supreme court‘s ruling in State v. Coe, 655 S.W.2d
903 (Tenn. 1989). Specifically, he complains that the expanded definition afforded to the
(i)(6) aggravating circumstance by the ruling in Coe actually encroaches upon the
underlying justification for the (i)(7) aggravating circumstance, which justification is,
according to the defendant, ―to deter ‗witness killings.‘‖ We are unpersuaded by any part
of the defendant‘s argument. Our supreme court ―has consistently recognized that [the
(i)(6)] aggravating circumstance requires that a motive for the killing must have been
avoiding, interfering with, or preventing an arrest or prosecution. There is nothing vague
or overbroad about this aggravating circumstance.‖ State v. Banks, 271 S.W.3d 90, 152
(Tenn. 2008) (citation omitted). The (i)(7) aggravating circumstance does not require that
the murder be ―committed for the purpose of avoiding, interfering with, or preventing a
lawful arrest or prosecution of the defendant or another,‖ see T.C.A. § 39-13-204(i)(6),
and instead requires that the murder was ―knowingly committed . . . while the defendant
had a substantial role in committing or attempting to commit, or was fleeing after having
a substantial role in committing or attempting to commit, any‖ of the enumerated
felonies, see id. § 39-13-204(i)(7). The provisions are not duplicative. See Banks, 271
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S.W.3d at 153. Additionally, as our supreme court observed in Banks, ―Even assuming,
for the sake of argument, that the aggravating circumstances are duplicative, Mr. Banks
has failed to demonstrate or explain why this duplication would undermine their
constitutionality.‖ Id.
The defendant also invites this court ―to take a second look‖ at the rationale
underlying those supreme court cases specifically approving the application of the (i)(7)
aggravating circumstance to convictions of felony murder. Our supreme court has
recently and specifically concluded that ―pursuant to established precedent on this issue
. . . the (i)(7) aggravating circumstance sufficiently narrows the pool of death-eligible
defendants.‖ State v. Pruitt, 415 S.W.3d 180, 227 (Tenn. 2013). Thus the defendant‘s is
an invitation we must decline. See generally Barger v. Brock, 535 S.W.2d 337, 340
(Tenn. 1976) (holding that the adjudications of the supreme court ―are final and
conclusive upon all questions determined by it, subject only to review, in appropriate
cases by the Supreme Court of the United States‖).
Finally, the defendant alleges that the (i)(13) aggravating circumstance, that ―[t]he
defendant knowingly mutilated the body of the victim after death,‖ T.C.A.
§ 39-13-204(i)(13), is unconstitutionally vague. This court explained the (i)(13)
aggravating circumstance in State v. Price. Although ―the term ‗mutilate‘ is not defined
anywhere in our statutory code,‖ we held that because the (i)(13) aggravating
circumstance ―specifically addresses itself to mutilation of a victim after death, the only
logical conclusion to be drawn regarding the legislative intent underlying that section is
that the General Assembly . . . meant to discourage corpse desecration.‖ State v. Price, 46
S.W.3d 785, 827-28 (Tenn. Crim. App. 2000). The Price court utilized the definitions of
the term ―mutilate‖ found in Black‘s Law Dictionary and Webster‘s New International
Dictionary:
Black‘s Law Dictionary defines ―mutilation‖ as follows: ―2. Criminal law.
The act of cutting off or permanently damaging a body part, especially an
essential one.‖ Black‘s Law Dictionary 1039 (7th ed. 1999). Webster‘s
defines ―mutilate‖ as: ―1: to cut off or permanently destroy a limb or
essential part of . . . . 2: to cut up or alter radically so as to make imperfect .
. . .‖ Webster‘s New International Dictionary, 1493 (3d ed. 1993).
Id. at 827 (emphasis in Price). Our supreme court later approved this definition of the
term. State v. Jordan, 325 S.W.3d 1, 71 (Tenn. 2010). Our supreme court has never
declared this aggravating circumstance unconstitutional.
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2. Weighing of Aggravating and Mitigating Factors
The defendant argues that Code section 39-13-204 is unconstitutional because it
does not sufficiently direct the jury‘s discretion inasmuch as it permits the jury to
―impose a death sentence no matter what mitigation is shown.‖ He also complains that
the language of Code section 39-13-204 deprives the jury of the power ―to make the
ultimate determination that death is appropriate‖ because it requires that the jury impose
a sentence of death if it finds that the aggravating circumstances outweigh the mitigating
circumstances beyond a reasonable doubt.
Code section 39-13-204(g)(1) provides:
The sentence shall be death, if the jury unanimously determines that:
(A) At least one (1) statutory aggravating circumstance or several
statutory aggravating circumstances have been proven by the state beyond a
reasonable doubt; and
(B) Such circumstance or circumstances have been proven by the
state to outweigh any mitigating circumstances beyond a reasonable doubt.
T.C.A. § 39-13-204(g)(1). The plain language of the statute reveals the fallacy in the
defendant‘s argument. The Code does not permit the imposition of a death sentence ―no
matter what mitigation is shown‖ but only permits the jury to impose a sentence of death
when it concludes that the established aggravating circumstances ―have been proven by
the state to outweigh any mitigating circumstances beyond a reasonable doubt.‖ Id. This
language also does not mandate a sentence of death. See State v. Howell, 868 S.W.2d
238, 258 (Tenn. 1993). Moreover, as the defendant acknowledges, the Supreme Court has
held that ―complete jury discretion‖ in the consideration of aggravating and mitigating
circumstances ―is constitutionally permissible.‖ Buchanan v. Angelone, 522 U.S. 269,
276 (1998). Our own supreme court has expressly approved of Code section
39-13-204(g), concluding that it did not interfere with the jury‘s discretion. See Howell,
238 S.W.2d at 258-59. The defendant is not entitled to relief on this issue.
3. Mercy
The defendant asserts that Code section 39-13-204 is unconstitutional because it
does not permit the jury to impose a sentence of life out of mercy. Again, our supreme
court has specifically rejected this argument, concluding that the ability to act out of
mercy is incorporated into the jury‘s ability to find any non-statutory mitigating
circumstance. See State v. Melson, 638 S.W.2d 342, 366 (Tenn. 1982) (observing that
―the idea that ‗mercy‘ could be extended to a defendant is incorporated in the instructions
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on mitigating factors; and the admonition against being ruled by passion or prejudice runs
throughout‖); see also e.g., State v. Bigbee, 885 S.W.2d 797, 814 (Tenn. 1994).
4. Consequences of Deadlocked Jury
The defendant also claims that Code section 39-13-204 is unconstitutional because
it prohibits the trial court from instructing the jury that the consequence of its failure to
reach a verdict is the automatic imposition of a life sentence. He argues that this ―tilt[s]
the scales in favor of the prosecution and make[s] it easier to obtain the unanimous
verdict required for death.‖ Our supreme court has rejected this argument. See, e.g., State
v. Simon, 635 S.W.2d 498, 505 (Tenn. 1982) (―Such instructions are specifically
prohibited by statutes dealing with the death penalty.‖).
5. Cruel and Unusual Punishment
The defendant contends that the death penalty in general and lethal injection in
particular violate state and federal prohibitions on cruel and unusual punishment. Both of
these arguments have been considered and rejected by the United States Supreme Court,
see Baze v. Rees, 553 U.S. 35, 47 (2008) (reaffirming that ―capital punishment is
constitutional‖ and upholding Kentucky‘s lethal injection protocol), and our supreme
court, see, e.g., Keen v. State, 398 S.W.3d 594, 600 n.7 (Tenn. 2012) (―This Court has
held, and repeatedly affirmed, that capital punishment itself does not violate the state and
federal constitutions.‖); Banks, 271 S.W.3d at 108 (rejecting specific claim that lethal
injection is cruel and unusual); Abdur’Rahman v. Bredesen, 181 S.W.3d 292, 309 (Tenn.
2005) (―[W]e conclude that the petitioner has failed to establish that the lethal injection
protocol is cruel and unusual punishment under the United States or Tennessee
constitutions.‖).
6. Arbitrary and Capricious Application
The defendant argues that the death penalty in Tennessee has been implemented in
an ―arbitrary, capricious, and unconstitutional‖ manner.
He first claims that the ―unlimited discretion‖ afforded to prosecutors to choose
whether to seek the death penalty in a particular case violates his constitutional right to
equal protection under the law, represents an improper delegation of judicial authority,
and results in the usurping of legislative authority. ―While Tennessee‘s district attorneys
general have been entrusted with broad discretion in making charging decisions, it would
be inaccurate to characterize their discretion as entirely unfettered.‖ Banks, 271 S.W.3d at
154. Instead, their discretion is guided by the elements of the crime of first degree murder
and the aggravating circumstances as defined by the legislature. ―Furthermore, the United
States Supreme Court has recognized that prosecutorial discretion provides a vehicle for
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individualized justice.‖ Banks, 271 S.W.3d at 155 (citing McCleskey v. Kemp, 481 U.S.
279, 311–12 (1987)). Our supreme court has ―repeatedly rejected the argument that such
discretion raises a constitutional problem.‖ Banks, 271 S.W.3d at 155.
The defendant also claims that ―almost all‖ those sentenced to death are indigent.
He does not even attempt to explain why this ―fact‖ undermines the constitutionality of
the death penalty except to include it in his discussion of the arbitrary application of the
death penalty. He is not entitled to relief on this issue.
The defendant next contends that the implementation of the death penalty is
racially discriminatory, citing information that 85 percent of death row inmates executed
following Furman have been convicted of killing white victims. The single study cited by
the defendant, however, ―falls far short of the sort of exceptionally clear proof that would
enable the courts to conclude that the actions of the decision-makers in his case were
motivated by an improper discriminatory purpose.‖ Banks, 271 S.W.3d at 157.
The defendant claims that ―various studies suggest‖ that the likelihood of
receiving a sentence of death depends on the geographic location of the crime, noting that
Washington County juries have imposed the same number of death sentences as
Davidson County juries despite that Davidson County has a significantly larger
population. The defendant does not explain how the geographic distribution of death
sentences undermines the constitutionality of the death penalty and cites no authority for
his claim. He is not entitled to relief on this issue.
He also claims sexual discrimination in the implementation of the death penalty
without explanation or citation to authority. He is not entitled to relief on this issue.
The defendant also reiterates his earlier claims about the selection process for
capital juries and the costs associated with implementing the death penalty, attempting to
recast them as equal protection violations. We have already addressed these claims and
will not do so again.
7. Closing Arguments
As his next assignment of error, the defendant claims that allowing the State to
make the final closing argument to the jury during the penalty phase violated his right to
due process of law and the effective assistance of his counsel. He argues that although the
State has the burden of establishing the aggravating circumstances beyond a reasonable
doubt, ―[t]he real burden is on the defendant whose life hangs in the balance, and he
should have the opportunity to argue last.‖ Our supreme court has previously considered
and rejected this argument. See, e.g., Sexton, 368 S.W.3d at 428.
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8. Proportionality Review
The defendant contends ―that the proportionality review process in this [s]tate is
deficient and unconstitutionally inadequate.‖ The proportionality review process has been
developed and approved by our supreme court, see Pruitt, 415 S.W.3d at 212-17
(providing a discussion of the development of the comparative proportionality review
process and specifically approving the constitutionality of the current process), and, as
such, this court is without the authority to alter it, see Barger, 535 S.W.2d at 340.
9. Grand Jury Review
The defendant challenges both the death notice in this case and the aggravating
factors found by the jury on grounds that neither was submitted for grand jury review.
―The Tennessee Supreme Court has consistently rejected this argument by holding that
aggravating circumstances need not be pled in the indictment.‖ Banks, 271 S.W.3d at 167
(citing State v. Reid, 164 S.W.3d 286, 312 (2005); State v. Leach, 148 S.W.3d 42, 59
(Tenn. 2004); State v. Berry, 141 S.W.3d 549, 562 (Tenn. 2004); State v. Holton, 126
S.W.3d 845, 863 (Tenn. 2004); State v. Dellinger, 79 S.W.3d 458, 467 (Tenn. 2002)).
The supreme court has also repeatedly held ―that the provisions of Rule 12.3 satisfy the
constitutional requirements of notice‖ such that grand jury review is not constitutionally
required for death notices. Berry, 141 S.W.3d at 562 (citing State v. Odom, 137 S.W.3d
572 n.13; Dellinger, 79 S.W.3d at 467; State v. Bush, 942 S.W.2d 489, 520 (Tenn. 1997);
State v. Johnson, 762 S.W.2d 110, 117 (Tenn. 1988)).
10. Minimum Constitutional Standards
The defendant next asserts that the death penalty as implemented in this state fails
to meet the minimum constitutional standards provided by the United States Supreme
Court. In reality, the defendant‘s claim is another rehashing of his opposition to the
process of death qualifying capital juries. We will not address this issue again.
11. Due Process and Equal Protection
The defendant claims that the death penalty as implemented in this state violates
his constitutional rights to due process and equal protection ―by cutting off a defendant‘s
post-conviction ability to establish his actual innocence.‖ He contends that the State
effectively creates a statute of limitations for the presentation of an actual innocence
claim by setting an execution date. We fail to see how the availability of a future
postconviction claim undermines the constitutionality of the death penalty imposed in
this case. This is the direct appeal of the defendant‘s convictions and sentences. He was
afforded at trial the full and fair opportunity to defend himself against the charges.
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Nothing more is required. That other defendants in other cases may have established their
innocence does not alter this result.
XVII. Victim Impact Evidence
Finally, the defendant contends that the presentation of victim impact evidence
during the penalty phase violated his constitutional rights to due process and a fair trial.
Code section 39-13-204(c) provides that ―[t]he court shall permit a member or
members, or a representative or representatives of the victim‘s family to testify at the
sentencing hearing about the victim and about the impact of the murder on the family of
the victim and other relevant persons.‖ T.C.A. § 39-13-204(c). Our supreme court has
concluded that victim impact evidence is admissible in a capital sentencing hearing
subject to the limitation that it ―should be excluded if it ‗threatens to render the trial
fundamentally unfair or [if it] poses a danger of unfair prejudice.‘‖ Jordan, 325 S.W.3d at
56 (quoting State v. Nesbit, 978 S.W.2d 872, 891 (Tenn. 1998)). The defendant makes no
claim that the victim impact evidence admitted during the penalty phase in his case
violated these tenets and instead makes only broad, conclusory allegations regarding the
constitutionality of the presentation of such evidence. The constitutionality of presenting
victim impact evidence in a capital sentencing hearing is a matter that has been settled by
the state and federal supreme courts. Payne v. Tennessee, 501 U.S. 808, 827 (1991);
Nesbit, 978 S.W.2d at 891.
[Deleted: XVIII. Mandatory Review]
[Deleted: XIX. Merger]
[Deleted: Conclusion]
Accordingly, the judgments of the trial court are affirmed.
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