State of Tennessee v. John Curtis Perry Sr. and Ashley N. Hankins ( 2021 )

03/23/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs October 13, 2020
STATE OF TENNESSEE v. JOHN CURTIS PERRY, SR., AND ASHLEY
NICOLE HANKINS
Appeal from the Circuit Court for Stewart County
Nos. 81CC-2017-CR-155-D, 81CC-2017-CR-155-B David D. Wolfe, Judge
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No. M2019-01311-CCA-R3-CD
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The Defendants, John Curtis Perry, Sr., and Ashley Nicole Hankins, appeal their
convictions for three counts of felony murder for which they were sentenced to life
imprisonment. On appeal, the Defendants, either individually or collectively, argue that:
(1) the evidence is insufficient to support the convictions; (2) the trial court erred in
granting and denying various requests to continue the trial; (3) the trial court erroneously
admitted evidence of prior bad acts; (4) the trial court erred in limiting the cross-
examination of a witness; (5) the trial court erred in excluding a co-defendant’s
statement; (6) the trial court erred in instructing the jury regarding the concealment and
destruction of evidence; (7) the prosecutor made improper comments during rebuttal
closing arguments; and (8) cumulative error warrants relief. Upon reviewing the record,
the parties’ briefs, and the applicable law, we affirm the judgments of the trial court.
However, we remand for entry of corrected judgments reflecting merger of the felony
murder convictions into one conviction for each of the Defendants.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed;
Case Remanded
JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.
Anthony L. Clark, Paris, Tennessee, for the appellant, John Curtis Perry, Sr.
Anthony W. Kirby, Jr. (on appeal); and Kenneth Merriweather (at trial), Clarksville,
Tennessee, for the appellant, Ashley Nicole Hankins.
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior
Assistant Attorney General; W. Ray Crouch, Jr., District Attorney General; and Joshua
Turnbow and Joseph C. Hall, Assistant District Attorneys General, for the appellee, State
of Tennessee.
OPINION
FACTUAL AND PROCEDURAL BACKGROUND
During the early morning hours of June 7, 2016, the victim, Mr. Donnie Cooksey,
was shot and killed in his home in Cumberland City, Tennessee, during a robbery. As a
result, the Defendants and their co-defendants, Gerald Lovelace, Abdullah Hassan
Powell, and Amy Brooke Hankins, were charged with felony murder during the
perpetration of or attempt to perpetrate robbery, felony murder during the perpetration of
or attempt to perpetrate burglary, and felony murder during the perpetration of or attempt
to perpetrate theft. The Defendants and their co-defendants were also charged with
aggravated burglary of another victim’s home that occurred on June 5, 2016. The trial
court severed the Defendants’ trials from the co-defendants’ trials and severed the felony
murder charges from the aggravated burglary charge. The Defendants proceeded to trial
on the felony murder charges.
The State’s Proof
The State presented evidence at trial that Ms. Ashley Hankins, the girlfriend of
one of the victim’s brothers, persuaded others to rob the victim, who sold drugs from his
home. Mr. Perry drove Mr. Lovelace and Mr. Powell to the area of the victim’s home.
Mr. Perry waited in his truck while Mr. Lovelace and Mr. Powell entered the victim’s
home and shot the victim while attempting to rob him. The victim died as a result of his
injuries.
The victim was last seen alive on the night of June 6 and early morning hours of
June 7, 2016, when a friend, Ms. Samantha Kizer, visited him at his home. Ms. Kizer
testified that she left the victim’s home around midnight, that she received a text message
from him at around 1:30 a.m., and that she did not hear from the victim again. At around
2:00 a.m., Ms. Anita Stephens, who was staying at her mother’s home located across the
street from the victim’s home, woke up to her dog barking outside of her window, which
was within view of the victim’s front door. Ms. Stevens testified that she then heard a
loud “popping” noise, which she believed to be a car backfiring. She looked outside but
did not see anything. Between 7:45 a.m. and 8:00 a.m. on June 7th, Ms. Georgia
Cooksey, the victim’s sister-in-law, drove by his house and saw that his front door was
open. She testified that she found this to be unusual because the victim generally did not
get up in the mornings until 9:00 or 9:30 a.m.
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Ms. Brandy Burns, who was involved in a relationship with the victim for several
years up until his death, testified that the victim sold marijuana and occasionally cocaine
to a customer base of five or six people and would not sell drugs to just anyone who
wished to purchase them. He stored the drugs in his kitchen cupboards, his recliner, and
his bedroom. Ms. Burns stated that she visited the victim on the weekend prior to his
death and that he had approximately $3,000 in cash, which he planned to use as a down
payment on a house.
Multiple members of the victim’s family called the victim on June 7th, but the
victim did not answer their calls. As a result, Mr. Troy Cooksey, one of the victim’s
brothers, went to the victim’s home around 2:00 p.m. The victim’s front door was
slightly open, and the storm door was closed. Mr. Troy Cooksey knocked on the front
door and called the victim’s name, but the victim did not come to the door. Mr. Troy
Cooksey looked inside through the storm door and saw the victim lying on the living
room floor.
Mr. Troy Cooksey testified that he entered the home and unsuccessfully attempted
to awaken the victim. Because he did not have cellular service inside the victim’s home,
he exited the home and asked a neighbor to call 911. When he returned to the victim, he
saw that the victim had a gunshot wound to the chest and that the victim’s gun was lying
beside him. Mr. Troy Cooksey observed blood in the living room leading down the
hallway. He believed the victim was wearing shorts and a t-shirt, which he described as
“bed clothes.” Ms. Georgia Cooksey testified that the victim, generally, would not come
to the door while wearing such clothing. Mr. Troy Cooksey acknowledged taking
marijuana that the victim had rolled up in five cigarillos from the home.
Officer Rick Smith of the Cumberland City Police Department responded to the
scene. He entered the home through the front door and saw the victim lying on the living
room floor with his head close to a wall adjacent to a hallway. The victim was wearing a
t-shirt, socks, and underwear, and stains consistent with blood were on his shirt, his legs,
the floor, and on the top and side of a red chair sitting upright by the door. Officer Smith
checked the victim for a pulse and called for an EMS unit. Mr. Edward Wood, a
paramedic, responded to the scene and found that the victim had no vital signs. Mr.
Wood observed a gunshot entrance wound to the left side of the victim’s upper chest.
Special Agent Kevin Warner, a forensic scientist with the Tennessee Bureau of
Investigation (“TBI”), also responded to the scene. Upon entering the home, he observed
reddish brown stains on the top and side of a red chair in the living room, and he testified
that the stain appeared to have begun on the top of the chair and run down the side.
Drops consistent with blood were on the floor in the living room near the victim and on
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the floor in the hallway leading away from the victim to outside of the victim’s bedroom.
A pistol was on the living room floor next to the victim. A fired cartridge casing and
what appeared to be blood drops were on the carpet next to the bed in the bedroom, and
reddish-brown stains consistent with blood were on the bedding. On cross-examination,
Special Agent Warner testified that although the front door was open, the dead bolt was
extended, and the area of the door where the dead bolt had been was damaged. The items
recovered from the home included plant material in a bag in the bedroom and in a jar in a
kitchen cabinet, and Special Agent Warner also found four cell phones in the home.
Ms. Amanda Blake, a friend of Ms. Ashley Hankins, testified that around the time
of the victim’s death, Ms. Ashley Hankins was in a relationship with both Mr. Chris
Cooksey, who was the victim’s brother, and Mr. Powell, to whom she referred as “D.”
Ms. Blake stated that in March or April of 2016 while at her home, Ms. Ashley Hankins
asked Ms. Blake’s brother, Mr. Johnny Blake, to rob the victim. Ms. Ashley Hankins
described the victim’s home and told Mr. Blake that he would need to have a gun with
him because the victim owned guns. Ms. Ashley Hankins instructed Mr. Blake to take a
black box containing money from the home. Ms. Blake stated that she interrupted Ms.
Ashley Hankins and told her to not ask Mr. Blake to commit a robbery. Ms. Blake told
Ms. Ashley Hankins that if she wanted the victim to be robbed, she should do it herself.
Ms. Blake testified that on June 6th, she was in her car with Ms. Ashley Hankins,
Ms. Amy Hankins, and Ms. Angela Sweeney as Ms. Ashley Hankins was laughing and
stating that “they had gotten the wrong house and that she had to show them … ‘stupid N.
words’ the right house.” Ms. Blake did not know that Ms. Ashley Hankins was referring
to the victim’s home until the following day.
On cross-examination, Ms. Blake acknowledged that she had a prior theft
conviction. She stated that when Ms. Ashley Hankins was speaking to Mr. Blake, she did
not refer to the victim by name but just described his house. Ms. Blake recalled that at
one point, Ms. Ashley Hankins and Mr. Blake went outside together.
Mr. Johnny Blake testified that in April of 2016, while at Ms. Blake’s home, Ms.
Ashley Hankins asked him to burglarize a home in Cumberland City and told him that a
large amount of money was possibly in the home. Ms. Ashley Hankins told him that he
would need to be armed because the owner of the home may carry a gun. Mr. Blake
refused to commit the burglary. Mr. Blake stated that Ms. Ashley Hankins did not tell
him who owned the home and that he did not know the identity of the owner until after
the victim was killed. A few minutes after the conversation, Mr. Blake and Ms. Ashley
Hankins went outside where she again asked him to commit the burglary, and he
declined. On cross-examination, Mr. Blake acknowledged that at the time of trial, he was
on probation for a theft conviction.
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Ms. Angela Sweeney testified that while she was inside a vehicle with Ms. Ashley
Hankins and Ms. Blake, Ms. Ashley Hankins said, “The fools hit the wrong house, I’m
going to have to show them the right one.” Ms. Sweeney did not realize about what Ms.
Ashley Hankins was referring until after the victim’s death. Ms. Sweeney recalled
another conversation with Ms. Blake, Ms. Ashley Hankins, and Ms. Amy Hankins during
which Ms. Ashley Hankins and Ms. Amy Hankins were laughing about “them hitting the
wrong house.” On cross-examination, Ms. Sweeney testified that the first conversation
occurred a couple of weeks prior to the victim’s death and that the second conversation
occurred a few days or weeks after the first conversation.
Mrs. Jessie Bell, who was in custody at the time of trial due to her failure to attend
a prior court hearing in accordance with a subpoena, testified that she had known Ms.
Ashley Hankins for seven or eight years and that they used drugs together. Mrs. Bell also
knew Ms. Amy Hankins, Mr. Lovelace, and Mr. Powell, whom she only knew as “D.”
Ms. Amy Hankins and Mr. Lovelace were in a relationship, and Mr. Lovelace was a
friend of Mrs. Bell’s husband, Mr. Lamaro Bell. Mrs. Bell recalled that Ms. Ashley
Hankins asked Mr. Bell and one of his friends to rob the victim and that she asked Mrs.
Bell to do so a few days later. Ms. Ashley Hankins was angry at the victim for being
“greedy” and said they would be able to get money, cocaine, and marijuana from the
victim’s home.
Mrs. Bell testified that a few days after their conversation, Ms. Ashley Hankins
told her that the victim had been killed. Police officers had released a video recording of
a nearby parking lot showing two people entering a truck in an effort to obtain
information regarding their identities. Ms. Ashley Hankins showed Mrs. Bell the video
and asked her whether she could identify anyone, and Mrs. Bell recognized Mr. Lovelace
as one of the people in the video. She stated that Ms. Ashley Hankins was not upset that
the victim had died but was upset that the intruders did not take anything out of the home.
Ms. Ashley Hankins told Mrs. Bell that the victim was not supposed to be in the home
and that the intruders were afraid, shot the victim, and left without searching the home.
Mrs. Bell stated that sometime after the victim’s death, Ms. Ashley Hankins
offered to trade her a black handgun for drugs and that Mrs. Bell refused. Once officers
began coming to Mrs. Bell’s home to talk to her, she called Ms. Ashley Hankins, who
instructed her not to provide the officers with any information.
On cross-examination, Mrs. Bell testified that she had a prior theft conviction.
She acknowledged that although she testified at trial that Ms. Ashley Hankins solicited
her a few days before the victim’s death, Mrs. Bell testified during a preliminary hearing
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that the solicitation occurred three weeks to one month prior to his death. She explained
that she had difficulty in keeping up with dates.
On redirect examination, Mrs. Bell testified that she also recognized from the
video “D” and Mr. Perry, whom she met shortly before the victim’s death. She stated
that Mr. Perry drove a white truck similar to the truck in the video.
Ms. Tiffany Miller, Mr. Perry’s former girlfriend, testified that during the summer
of 2016, while living with Mr. Perry, she overheard a telephone conversation between
Mr. Perry and Mr. Powell during which Mr. Powell asked Mr. Perry to commit a robbery.
Ms. Miller begged Mr. Perry not to do it. Later, following an argument, Mr. Perry left
their apartment and did not return until the following morning. Ms. Miller stated that
once he returned, he denied that anything had occurred even though his behavior
indicated otherwise. Ms. Miller also stated that at some point, Mr. Perry said he did not
want to tell her “anything” because he did not want her to get in trouble. On cross-
examination, Ms. Miller testified that the telephone conversation occurred sometime
between May and August of 2016. She clarified that she did not hear Mr. Powell’s
portion of the telephone conversation but that Mr. Perry later told her that Mr. Powell
wanted Mr. Perry to drive him to rob someone. A few days after the telephone
conversation, Mr. Perry left the apartment and was shaken when he returned the
following morning.
Ms. Amy Hankins, a co-defendant in the case, testified that she had pled guilty to
facilitation of the second degree murder of the victim and had received a sentence of
eight years at thirty percent. As part of her plea agreement, she agreed to testify against
the other defendants. Ms. Amy Hankins stated that she and her sister, Ms. Ashley
Hankins, were addicted to drugs and that at the time of the offense, Ms. Amy Hankins
was in a relationship with Mr. Lovelace, who also was addicted to drugs. Mr. Powell and
Mr. Lovelace were friends, and Ms. Ashley Hankins was involved in a romantic
relationship with Mr. Powell. Ms. Amy Hankins knew the victim through Ms. Ashley
Hankins.
Ms. Amy Hankins testified that in March or April of 2016, Ms. Ashley Hankins
asked her and Mr. Lovelace whether they would be interested in robbing the victim, and
Ms. Amy Hankins and Mr. Lovelace declined. However, Ms. Ashley Hankins was
persistent and had asked multiple people to participate. Ms. Amy Hankins stated that
because they needed money for rent, Mr. Lovelace agree to participate in the robbery.
Ms. Amy Hankins recalled that on June 6, 2016, she, Ms. Ashley Hankins, Ms.
Sweeney, and Ms. Blake were in Ms. Blake’s car in Clarksville because Ms. Amy
Hankins had to be in court and Ms. Ashley Hankins had a doctor’s appointment. While
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in the car, Ms. Ashley Hankins asked Ms. Amy Hankins when the robbery would occur,
and Ms. Amy Hankins replied that it would occur that night. Ms. Amy Hankins later was
dropped off at Mr. Powell’s home where Mr. Lovelace was waiting with the children of
Mr. Lovelace and Ms. Amy Hankins.
Later that evening once it was dark outside, Mr. Perry and another man arrived at
Mr. Powell’s home. Mr. Perry was driving a white truck, and the other man was driving
a black Pontiac Grand Am. The man in the black car drove Ms. Amy Hankins, Mr.
Lovelace, and their children to their home in Dover, Tennessee, while Mr. Perry and Mr.
Powell followed them in Mr. Powell’s truck. The man dropped them off at their home
and left. Ms. Amy Hankins stated that at around 11:30 p.m. or midnight, Mr. Lovelace
changed into black clothing and that he, Mr. Powell, and Mr. Perry prepared to leave for
the robbery. She said that Mr. Lovelace and Mr. Powell both had black, semi-automatic
pistols that they hid underneath the hood of Mr. Perry’s truck. Ms. Amy Hankins
previously had seen Mr. Lovelace hide a pistol underneath the hood and on top of the air
filter of a vehicle. Mr. Lovelace, Mr. Powell, and Mr. Perry left together in Mr. Perry’s
truck. Mr. Lovelace called Ms. Amy Hankins around 2:30 or 3:00 a.m. but did not return
home until the “next afternoon.”
Ms. Amy Hankins testified that while she did not go to the victim’s home to assist
in the robbery, she knew that the robbery was going to occur and did not try to stop it.
She maintained that the robbery was Ms. Ashley Hankins’s idea. Ms. Amy Hankins
called Ms. Ashley Hankins on the following morning and told her to check on the victim,
but Ms. Ashley Hankins refused. At approximately 3:30 p.m., Ms. Ashley Hankins
called Ms. Amy Hankins and told her that the victim had died. Ms. Ashley Hankins later
told her sister that she did not feel bad about the victim’s death.
On cross-examination, Ms. Amy Hankins agreed that she gave three prior
statements to law enforcement during which she denied that she, Mr. Lovelace, and Ms.
Ashley Hankins were involved in the victim’s death. During one of the interviews, she
told officers that Mr. Lovelace was at home with her on the night of the victim’s death.
She acknowledged she may have also told officers that the victim’s death was gang-
related. She recalled that during one interview, she told the officers that she did not know
Mr. Perry before the officers actually mentioned his name, and she knew this statement
implicated her in the crime. She also told officers that Mr. Lovelace did not own a gun
and that she had never seen Mr. Powell with a gun. She agreed that she lied to the
officers.
Ms. Amy Hankins testified that she and Mr. Lovelace had purchased marijuana
from the victim at his home on multiple occasions and that she also had purchased
cocaine from the victim. She said she first met Mr. Perry on the night of the offense. She
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agreed that she previously had stated that Mr. Lovelace, Mr. Powell, and Mr. Perry left
her home “suited and booted,” which means that “[j]ust dark clothes, guns, ready to go.”
She did not recall what Mr. Perry was wearing.
Ms. Amy Hankins acknowledged having four prior theft convictions. She denied
that she was guilty of felony murder. She maintained that she did not set up the robbery
but that she knew that it was to occur, that she was to receive some of the proceeds of the
robbery, and that she did not take any action to stop the robbery. She denied “begging”
the prosecutor for a plea deal. She explained that her attorney met with her and stated
that the prosecutor had offered a plea deal in exchange for her testimony. Ms. Amy
Hankins agreed that in order to keep her plea deal in place, her testimony at trial must be
similar to her statements during her proffer made prior to the plea hearing. On redirect
examination, Ms. Amy Hankins agreed that the district attorney general, an assistant
district attorney general, and her attorneys were present when she made a proffer
statement to law enforcement officers. She denied that any of them coached her,
threatened her, or otherwise told her what to say.
Dr. Erin Carney, a forensic pathologist, performed the autopsy of the victim. She
testified that the victim sustained a gunshot wound to the left side of his upper chest. She
did not observe any soot or gun powder stippling on the victim’s skin or clothing, which
would indicate that the gun was discharged at a close range. The victim did not have any
defensive wounds. The bullet broke one of the victim’s left ribs and traveled through the
left lung, the left side of the heart, the diaphragm, the stomach, and the left kidney. The
bullet was recovered in the muscle on top of the left iliac bone, which is part of the hip.
Dr. Carney determined that the cause of the victim’s death was the gunshot wound to the
chest and that the manner of his death was homicide.
Dr. Carney testified that the victim had a large amount of internal bleeding and
that it would have taken several minutes before he lost consciousness and died. She
agreed that if the victim were shot in one room of his house, he could have walked or
could have crawled to another area of the home before dying. She stated that because the
bullet entered at an angle and traveled downward, the gun had to be over the victim when
he was shot. She agreed that the victim possibly was sitting on his bed and leaned over
when someone stood up and shot him.
TBI Special Agent Shaun Adkins, the lead agent in the case, testified that based
upon the cartridge casing found in the bedroom, the blood on the bed coverings, and the
location of the gunshot wound, officers determined that the victim was sitting on the foot
of the bed when he was shot. Special Agent Adkins noted that blood droplets were in the
hallway and that aspirated blood, which generally results from someone coughing up
blood, was on the side of the wall about knee level. He also noted that the blood
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continued into the living room and was on a red chair at the end of the hallway. Special
Agent Adkins believed that the victim managed to support himself on the chair as blood
ran down the chair’s side before he collapsed on the floor.
Special Agent Adkins testified that he did not observe any signs of forced entry.
He noted that the front interior door was open and that the dead bolt lock was extended in
the locked position. He stated that while there were tool marks on the door and on the
side of the doorframe, those tool marks did not appear to be recent. The murder weapon
was not recovered from the crime scene. Officers collected the victim’s wallet,
marijuana, three cell phones, a Samsung tablet, $1,250 in cash from a bag in the
bedroom, a grinder for grinding marijuana, a scale, a plastic container with cocaine, and
prescription pills. The victim’s car, a Lexus, was parked at the home.
Officers obtained a video recording from an apartment complex that overlooked
the victim’s residence. The recording depicted a white truck with three African-
American men in and around the truck. Law enforcement released the recording to the
media in an effort to generate leads. Special Agent Adkins testified about the video as it
was played for the jury. He noted that the timer for the recorder was off by one hour and
fifteen minutes and that the actual time depicted in the video was 1:51 a.m. The exhibit
included two different videos where the cameras were directed at the back of the truck.
One of the videos depicted the back left side and the driver’s side of the truck, and the
other video depicted the back right side and passenger’s side of the truck.
During the first ten to fifteen minutes of the video of the driver’s side, the truck
was parked, and then an African-American man exited the driver’s side of the truck,
walked to the front of the truck, raised the hood, stood behind the raised hood for a period
of time, closed the hood, and reentered the truck on the driver’s side. Special Agent
Adkins testified that he was unable to see anyone in the video in possession of a bottle of
motor oil. The truck remained in the parking lot approximately twenty-five minutes
before the driver drove away.
The video depicting the passenger’s side of the truck showed two African-
American men walk up to the truck and enter through the passenger side at around 2:03
a.m. The video showed the hood of the truck being raised and one of the passengers
exiting the truck and approaching the front of the truck and behind the raised hood. Once
the hood was closed, the passenger reentered the truck. At 2:10 a.m., the two passengers
exited the truck and walked toward the front of the truck, and the truck backed up and
drove away a short time later.
Special Agent Adkins interviewed Ms. Ashley Hankins on three occasions. The
first two interviews were non-custodial, and officers advised her of her rights during the
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last interview. A video recording of one of the interviews was played at trial. During the
interview, Ms. Ashley Hankins denied shooting the victim and maintained that she did
not know who did. She stated that the victim may have been killed by a competitor or
due to “a jealousy thing.” She denied setting the victim up and maintained that there was
no reason to do so because the victim would have given her money if she needed it. She
also denied recognizing the truck or anyone depicted in the video.
Ms. Ashley Hankins said that about two weeks prior to the victim’s death, she was
at Ms. Amy Hankins’s home when she overheard Mr. Lovelace talking on his telephone
about committing robberies. Ms. Ashley Hankins stated that she did not believe Mr.
Lovelace killed the victim because Mr. Lovelace did not know the victim and the victim
would not have allowed someone whom he did not know to enter his home. She also
stated that she had never seen Mr. Lovelace with a gun. She denied that Ms. Amy
Hankins could have set up the robbery. Special Agent Adkins testified that while Ms.
Ashley Hankins cried during the interview, he did not believe she was upset about the
victim’s death but was upset about the situation in which she found herself.
In the video, Ms. Ashley Hankins stated that after previously speaking to officers
about the victim’s death, she went to her sister’s house and asked questions about the
victim. Mr. Lovelace was at the house, began acting strange, and said she was no longer
welcome in their home. Ms. Ashley Hankins said that a short time later, she received a
call from “Greg,” from whom she previously purchased pills in Clarksville. Greg told
her that “D” had discussed planning to sell pills mixed with fentanyl to her in an attempt
to kill her. Ms. Ashley Hankins denied ever meeting “D” or knowing his real name. She
said that “D” was a friend of Mr. Lovelace and that she learned through her sister that
“D” was a tall, skinny African-American man.
Ms. Ashley Hankins denied ever owning or possessing a gun and denied
attempting to dispose of a gun in Clarksville. She acknowledged that she may have sold
a gun on the streets a few years prior to the interview. She then stated that she traded a
black, automatic handgun for pills with “LeAnn,” who was at Greg’s house. Ms. Ashley
Hankins told the officers that she stole the gun from “Fred,” who was also known as
“Mississippi” and was a drug dealer in Clarksville. Ms. Ashley Hankins stated that
“LeAnn” was supposed to hold the gun until Ms. Ashley Hankins could bring her money
to pay for the pills but that “LeAnn” sold the gun instead.
Special Agent Adkins interviewed Mr. Perry twice, and one of the interviews,
which occurred in March of 2017, was video recorded and played for the jury at trial.
When officers arrived at Mr. Perry’s home, he had the same truck that was depicted in the
video from the night of the victim’s death. Once the officers and Mr. Perry entered the
interview room and before the officers advised Mr. Perry of his rights, Mr. Perry stated,
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“You better Mirandize me, because if you don’t I’m going to use it against you.” The
officers then advised Mr. Perry of his rights, and Mr. Perry waived his rights and agreed
to speak to them.
Mr. Perry told Special Agent Adkins that he was willing to make a deal that would
involve ensuring that his family was financially secure. Mr. Perry stated that he was not
requesting “millions or hundreds of thousands.” He further stated that “I’m not even
asking for ten” but that “ten would be a great number.” Special Agent Adkins believed
Mr. Perry was referring to $10,000. Special Agent Adkins testified that he and the other
officer were taken aback because interviewees typically do not request payment in
exchange for information, and he denied offering to pay Mr. Perry.
Mr. Perry acknowledged that his truck was the truck depicted in the video
recording taken during the early morning hours of the victim’s murder and that he was
shown as the driver in the video. He stated that he knew “G,” who was identified at trial
as Mr. Lovelace, through a pain management class, but Mr. Perry denied knowing “G’s”
real name. Mr. Perry referred to Mr. Powell as “D” and said that although he had seen
“D” around, he had never met him previously. Special Agent Adkins testified, however,
that he received information indicating that Mr. Perry and Mr. Powell had known each
other since they were in middle school.
Mr. Perry stated that he met Mr. Lovelace and Mr. Powell at the pain management
clinic in Clarksville prior to the victim’s death and that the two men told him that they
knew someone in Cumberland City who would sell marijuana to them. They planned to
purchase 3.5 ounces of marijuana for $60 and told Mr. Perry that they would share the
marijuana with him and give him $20 for gas if he would drive them to the location. Mr.
Perry said he agreed to do so. He stated that once they arrived in Cumberland City, Mr.
Powell and Mr. Lovelace directed him to the parking lot of the apartment complex
depicted in the video. The men told Mr. Perry that they were going to walk down the
street to purchase marijuana, and Mr. Perry waited in his truck twenty to thirty minutes
for them to return. Mr. Perry recalled that at one point, he got out of his truck and raised
the hood to check the oil. He noted that he had a small amount of oil left in the truck and
that he added some additional oil. He believed one of the men got out with him, but Mr.
Perry denied handing the man anything while they were concealed by the truck’s open
hood. Mr. Perry stated that once he saw the two men walking down the street, he drove
out of the parking lot to pick them up. He maintained that the men were walking at a
normal pace, were not out of breath, and appeared as if nothing was wrong. Mr. Perry
drove the men back to Clarksville and dropped them off at a hotel.
Mr. Perry denied knowing whether either of the men possessed weapons but stated
that he had previously seen Mr. Powell with a gun in his waistband. Mr. Perry stated that
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although he owned a gun at the time, he did not have the gun with him that night. He
said the gun was stolen out of his truck sometime after the victim’s death, and Special
Agent Adkins was able to locate the police report regarding the stolen gun with the
Clarksville Police Department.
Toward the end of the interview, Special Agent Adkins showed Mr. Perry a
photographic array that included Mr. Powell’s photograph and asked Mr. Perry whether
he recognized the person to whom he referred as “D” in the array. Mr. Perry stated that
although he recognized “D” in the array, he did not want to identify him without the
presence of an attorney and without a deal in place. Special Agent Adkins testified that
Mr. Perry was essentially saying “that’s going to cost you.” Special Agent Adkins stated
that once they were outside of the interview room and away from the view of the camera,
Mr. Perry identified Mr. Powell as “D” in the array.
On cross-examination, Special Agent Adkins testified that he believed Mr. Powell
and Mr. Lovelace entered the victim’s home and killed him. Mr. Powell, Mr. Lovelace,
and Ms. Amy Hankins were charged with first degree murder. Special Agent Adkins did
not believe that he asked Mr. Perry or Mr. Lovelace about Ms. Ashley Hankins’s
involvement in the case even though he had information at that time of their interviews
that she was involved in setting up the robbery. Special Agent Adkins did not recall Mr.
Blake’s mentioning his conversation with Ms. Ashley Hankins that occurred inside Ms.
Blake’s home when he interviewed Mr. Blake.
Special Agent Adkins did not recall any witness who stated that Mr. Perry knew of
the plan to commit a robbery before driving the two men to the apartment complex or
what had occurred once he left the apartment complex. On redirect examination, Special
Agent Adkins acknowledged that Ms. Miller stated that she overheard Mr. Perry on the
telephone, after which he told her that the call was “about hitting a lick to get some
money.” Special Agent Adkins stated that the drive from the pain clinic in Clarksville to
Cumberland City was a thirty- to forty-minute drive. He did not believe that Mr. Perry
and the two men would travel such a distance in the middle of the night in order to
purchase three ounces or grams of marijuana, which amounted to “less than a handful” of
marijuana, when the men could have easily purchased such an amount in numerous
places in Clarksville. Special Agent Adkins also did not believe that Mr. Perry was
putting oil in the truck when the hood was up in the video. On recross examination,
Special Agent Adkins acknowledged that he could not see what Mr. Perry was doing
when the hood of his truck was up, and Special Agent Adkins did not know whether Mr.
Perry checked the oil dipstick in the truck.
TBI Special Agent Lela Jackson, an expert in forensic chemistry, analyzed various
drugs recovered from the home, which included 84.76 grams of marijuana, 21.6 grams of
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marijuana, .18 grams of cocaine, and three tablets of Diazepam, a prescription drug.
Another package contained 459.24 grams of plant material, but Special Agent Jackson
did not analyze the material to determine if it was marijuana.
TBI Special Agent Shelly Betts, who was accepted by the trial court as an expert
in firearm and tool mark examinations, testified that she examined bullet fragments
removed from the victim’s body, a Federal brand nine-millimeter cartridge casing
recovered from the bedroom floor, and a Hi Point .380 auto-caliber pistol recovered from
the living room floor. The bullet fragments were consistent with a nine-millimeter bullet.
Special Agent Betts determined that the bullets fragments and the cartridge casing were
not fired from the pistol. She also examined another firearm, which she excluded as
firing the bullet fragments or the cartridge casing.
TBI Special Agent Lisa Burgee, who was accepted by the trial court as an expert
in the area of forensic biology, testified that she determined that the victim’s blood was
on the slide of the pistol recovered from the living room, on the floor in the living room
and the hallway, and in the bedroom. Special Agent Burgee also tested various areas of
Mr. Perry’s truck. Presumptive tests indicated the presence of blood on the middle
seatbelt, but the stain could not be “localized,” which meant that she could not find
another positive result when she attempted to determine the location of the blood on the
seatbelt. Special Agent Burgee noted various areas of the truck and a cigarette butt inside
the truck where she found Ms. Miller’s DNA. She obtained a DNA profile from another
cigarette from inside the truck that was a mixture of at least two individuals with the
major contributor matching the DNA of Mr. Perry.
TBI Special Agent Lucas Riley, who was accepted by the trial court as an expert
in the field of latent prints, testified that he went to the scene where he dusted the
entryway door for fingerprints. He was able to lift one fingerprint, but he was unable to
identify to whom the fingerprint belonged. He was able to lift two latent fingerprints
belonging to Mr. Perry from a soda bottle inside of the truck.
TBI Special Agent Miranda Gaddes, a forensic scientist who was accepted by the
trial court as an expert in microanalysis, testified that she compared a partial tire
impression found at the crime scene with photographs of the tires of the vehicles that
were parked at the scene and determined that they did not match. Special Agent Gaddes
stated that she searched tread design guidebooks to determine the type of tire that made
the partial tire impression and determined that the impression was consistent with a
Falkin Sincera SNA828 tire or another tire with the same tire design. She later compared
the partial tire impression to the tires from Mr. Perry’s Chevrolet truck and determined
that they did not match. She agreed that if the tires on the truck had been changed, she
would unable to determine if the original tires matched the impression.
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The Defense Proof
Counsel for Ms. Ashley Hankins recalled Ms. Amy Hankins, who testified that she
came into contact with Ms. Candice Butler while incarcerated in the Montgomery County
Jail but denied discussing the case with her. Ms. Amy Hankins stated that Ms. Butler
knew Ms. Ashley Hankins and told Ms. Amy Hankins information that had been
provided to her by Ms. Ashley Hankins. Ms. Amy Hankins denied informing Ms. Butler
of the State’s plea offer, explaining that she had not yet received the offer when she was
incarcerated with Ms. Butler. Ms. Amy Hankins testified that she provided the proffered
statement on August 21, 2018, and that her plea hearing was on September 7th.
Ms. Candice Butler testified that at the time of trial, she was incarcerated in the
Stewart County Jail for a charge of violating her probation and that from May 28 through
August 14, 2018, she was incarcerated in the Montgomery County Jail on a
methamphetamine charge. She stated that she and Ms. Amy Hankins were housed in the
same pod for about one and one-half months, during which time Ms. Amy Hankins spoke
to her about the case. Ms. Butler testified that the day before she was transferred to the
Stewart County Jail, Ms. Amy Hankins returned from court and stated that she had been
offered a plea deal with an eight-year sentence and that she would be required to testify.
According to Ms. Butler, Ms. Amy Hankins told her that she would lie or say anything
necessary in order to receive a favorable deal. On cross-examination, Ms. Butler testified
that she believed she had this conversation with Ms. Amy Hankins on August 13, 2018.
Ms. Butler acknowledged having prior multiple theft convictions.
Mr. Perry did not present any additional proof. At the conclusion of the proof, the
jury returned verdicts convicting both of the Defendants of felony murder during the
perpetration of robbery, felony murder during the perpetration of aggravated burglary,
and felony murder during the perpetration of theft.1 The trial court imposed sentences of
life imprisonment for each of the convictions. The Defendants filed motions for a new
trial, which were denied by the trial court following separate hearings. They each filed
timely notices of appeal, and this court entered an order consolidating their appeals.
On appeal, the Defendants, either individually or collectively, argue that: (1) the
evidence is insufficient to support the convictions; (2) the trial court erred in granting and
denying various requests to continue the trial; (3) the trial court erroneously admitted
1
The indictment charged the Defendants with felony murder during the perpetration of or attempt
to perpetrate robbery, felony murder during the perpetration of or attempt to perpetrate burglary, and
felony murder during the perpetration or of attempt to perpetrate theft. The trial court instructed the jury
on and the jury returned verdicts for felony murder during the perpetration of robbery, felony murder
during the perpetration of aggravated burglary, and felony murder during the perpetration of theft.
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evidence of prior bad acts; (4) the trial court erred in limiting the cross-examination of
Mrs. Bell; (5) the trial court erred in excluding Mr. Lovelace’s statement; (6) the trial
court erred in instructing the jury regarding the concealment and destruction of evidence;
(7) the prosecutor made multiple improper comments during rebuttal closing argument;
and (8) cumulative error warrants relief.
ANALYSIS
I. Jurisdiction
As an initial matter, Mr. Perry contends that this court does not have jurisdiction
over the appeal because the separate aggravated burglary charge is still pending. He
asserts that this court should remand the case to the trial court for a final disposition on
the aggravated burglary charge. The State responds that this appeal is properly before
this court because the trial court severed the aggravated burglary charge from the felony
murder charges prior to trial. We agree with the State.
This appeal comes to this court as an appeal as of right pursuant to Tennessee Rule
of Appellate Procedure 3(b). A defendant in a criminal case has the right to appeal from
a “final judgment of conviction.” State v. Comer, 278 S.W.3d 758, 760-61 (Tenn. Crim.
App. 2008) (quotation omitted); see Tenn. R. App. P. 3(b). A judgment is deemed final
“‘when it decides and disposes of the whole merits of the case leaving nothing for the
further judgment of the court.’” Comer, 278 S.W.3d at 761 (quoting Richardson v.
Tennessee Bd. of Dentistry, 913 S.W.2d 446, 460 (Tenn. 1995)). “[A] judgment is final if
it decides the controversy between the parties on the merit and fixes their rights so that, if
the judgment is affirmed, nothing remains for the trial court to do but to proceed with its
execution.” Id. (quotation omitted).
The record reflects that Ms. Ashley Hankins filed a motion to sever the aggravated
burglary charge, which was committed against a different victim, from the felony murder
charges. The trial court entered an “agreed order” granting the motion, and the order was
signed by the prosecutor and Ms. Ashley Hankins’s counsel. Mr. Perry did not challenge
the severance in the trial court and does not challenge it on appeal. By severing the
offenses, the trial court essentially created two separate cases, one involving the felony
murder charges and the second involving the aggravated burglary charge. While Mr.
Perry contends that this court does not have jurisdiction over the appeal of the felony
murder convictions until after the aggravated burglary charge is resolved, he cites to no
authority depriving this court of jurisdiction over a conviction of a severed offense until
the remaining severed charges are resolved. We likewise find no such authority. Rather,
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we conclude that the judgments for the felony murder convictions constitute final
judgments over which we have jurisdiction.2
II. Sufficiency
Mr. Perry challenges the sufficiency of the felony murder convictions. He argues
that the evidence failed to sufficiently corroborate the accomplice testimony of Ms. Amy
Hankins. He also argues that the evidence failed to establish that he had the requisite
intent to commit robbery, burglary, or theft. The State responds that the evidence is
sufficient to support the convictions. We agree with the State.
When a defendant challenges the sufficiency of the evidence, the relevant question
for this 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). On appeal,
“‘the State is entitled to the strongest legitimate view of the evidence and to all
reasonable and legitimate inferences that may be drawn therefrom.’” State v. Elkins, 102
S.W.3d 578, 581 (Tenn. 2003) (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn.
2000)). Therefore, this court will not re-weigh or reevaluate the evidence. State v.
Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Instead, it is the trier of fact,
not this court, who resolves any questions concerning “the credibility of witnesses, the
weight and value to be given the evidence, as well as all factual issues raised by the
evidence.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).
A guilty verdict removes the presumption of innocence and replaces it with a
presumption of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). The burden is
then shifted to the defendant on appeal to demonstrate why the evidence is insufficient to
support the conviction. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This court
applies the same standard of review regardless of whether the conviction was predicated
on direct or circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 381 (Tenn.
2011). “Circumstantial evidence alone is sufficient to support a conviction, and the
circumstantial evidence need not exclude every reasonable hypothesis except that of
guilt.” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012).
As it relates to the present case, felony murder is the killing of another committed
during the perpetration of “any … robbery, burglary, [or] theft.” T.C.A. § 39-13-
202(a)(2). The only culpable mental state required of felony murder is “the intent to
2
The State notes in its brief that the Assistant Attorney General spoke to the prosecutor, who
stated that the aggravated burglary charge was dismissed. However, a judgment reflecting the dismissal
is not included in the appellate record.
- 16 -
commit the enumerated offenses.” T.C.A. § 39-13-202(b). “Robbery is the intentional or
knowing theft of property from the person of another by violence or putting the person in
fear.” T.C.A. § 39-13-401(a). A person commits aggravated burglary when, without the
effective consent of the property owner, he enters a habitation with the intent to commit a
felony, theft, or assault. T.C.A. §§ 39-14-402(a)(1), -403(a). Theft occurs when a
person, “with intent to deprive the owner of property, … knowingly obtains or exercises
control over the property without the owner’s effective consent.” T.C.A. § 39-14-103(a).
A. Accomplice Testimony
A criminal defendant in Tennessee cannot be convicted “solely upon the
uncorroborated testimony of an accomplice.” State v. Shaw, 37 S.W.3d 900, 903 (Tenn.
2001) (citing State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994), superseded by statute
as stated in State v. Odom, 137 S.W.3d 572, 583 (Tenn. 2004); Monts v. State, 379
S.W.2d 34, 43 (Tenn. 1964), overruled on other grounds by State v. Collier, 411 S.W.3d
886, 899 (Tenn. 2013)). “An accomplice is defined as a person who knowingly,
voluntarily and with common intent unites with the principal offender in the commission
of the crime.” State v. Anderson, 985 S.W.2d 9, 16 (Tenn. Crim. App. 1997) (citing State
v. Perkinson, 867 S.W.2d 1, 7 (Tenn. Crim. App. 1992)). The general test of whether a
witness qualifies as an accomplice is “whether the alleged accomplice could be indicted
for the same offense charged against the defendant.” State v. Allen, 976 S.W.2d 661, 666
(Tenn. Crim. App. 1997). Ms. Amy Hankins was indicted for the same offenses charged
against the Defendants and, therefore, qualified as an accomplice.
Our supreme court has stated that in order to properly corroborate accomplice
testimony,
“[T]here must be some fact testified to, entirely independent of the
accomplice’s testimony, which, taken by itself, leads to the inference, not
only that a crime has been committed, but also that the defendant is
implicated in it; and this independent corroborative testimony must also
include some fact establishing the defendant’s identity. This corroborative
evidence may be direct or entirely circumstantial, and it need not be
adequate, in and of itself, to support a conviction; it is sufficient to meet the
requirements of the rule if it fairly and legitimately tends to connect the
defendant with the commission of the crime charged. It is not necessary
that the corroboration extend to every part of the accomplice’s evidence.”
Shaw, 37 S.W.3d at 903 (quoting Bigbee, 885 S.W.2d at 803). The corroborating
evidence need only be “slight.” State v. Griffs, 964 S.W.2d 577, 589 (Tenn. Crim. App.
- 17 -
1997). Whether sufficient corroboration exists is for the jury to determine. Shaw, 37
S.W.3d at 903; Anderson, 985 S.W.2d at 16.
Mr. Perry does not argue that the evidence failed to establish that “a crime has
been committed” independent of Ms. Amy Hankins’s testimony. Rather, he asserts that
the evidence does not sufficiently corroborate Ms. Amy Hankins’s testimony implicating
him in the commission of the crime. However, Mr. Perry admitted to officers that he
drove Mr. Lovelace and Mr. Powell to Cumberland City on the night of the victim’s
death and that he and his truck were in the video of the parking lot of an apartment
complex located near the victim’s home around the time of the victim’s death. Ms. Amy
Hankins testified that Mr. Lovelace and Mr. Powell hid their guns under the hood of Mr.
Perry’s truck, and Mr. Perry and one of the other men were shown in the video in front of
the truck with the hood raised after Mr. Lovelace and Mr. Powell walked across the
parking lot and got into the truck. Ms. Miller testified that during the summer of 2016,
she overheard a telephone conversation between Mr. Perry and Mr. Powell after which
Mr. Perry told her that Mr. Powell asked him to drive Mr. Powell to commit a robbery. A
few days later, Mr. Perry left his and Mr. Miller’s apartment, did not return until the
following morning, and appeared shaken upon his return. We conclude that this evidence
sufficiently corroborates Ms. Amy Hankins’s testimony regarding Mr. Perry’s role in the
offenses.
B. Elements of the Offenses
At trial, the State proceeded on a theory of criminal responsibility, and the trial
court instructed the jury on criminal responsibility for the conduct of another. “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.” T.C.A. § 39-11-401(a). A person is criminally responsible for
an offense committed by the conduct of another, if “[a]cting with intent to promote or
assist the commission of the offense, or to benefit in the proceeds or results of the
offense, the person solicits, directs, aids, or attempts to aid another person to commit the
offense.” T.C.A. § 39-11-402(2). While not a separate crime, criminal responsibility is a
theory by which the State may alternatively establish guilt based on the conduct of
another. Dorantes, 331 S.W.3d at 386 (citing State v. Lemacks, 996 S.W.2d 166, 170
(Tenn. 1999)). No specific act or deed needs to be demonstrated by the State, and the
presence and companionship of an accused with the offender before and after the offense
are circumstances from which participation in the crime may be inferred. State v. Ball,
973 S.W.2d 288, 293 (Tenn. Crim. App. 1998). However, to be convicted, “the evidence
must establish that the defendant in some way knowingly and voluntarily shared in the
criminal intent of the crime and promoted its commission.” Dorantes, 331 S.W.3d at 386
- 18 -
(citing State v. Maxey, 898 S.W.2d 756, 757 (Tenn. Crim. App. 1994); State v. Foster,
755 S.W.2d 846, 848 (Tenn. Crim. App. 1988)).
When viewed in the light most favorable to the State, the evidence presented at
trial established that Ms. Ashley Hankins persuaded Mr. Lovelace and Mr. Powell to
enter the victim’s home and commit a burglary, robbery, and theft. Mr. Powell contacted
Mr. Perry and requested that Mr. Perry drive him to a location to commit a robbery. Ms.
Amy Hankins testified that on the night of the victim’s death, Mr. Perry and Mr. Powell
followed her and Mr. Lovelace to their home in Mr. Perry’s truck. Upon arriving, Mr.
Lovelace, Mr. Powell, and Mr. Perry began preparing to commit the robbery. Mr.
Lovelace changed into dark clothing, and Mr. Lovelace and Mr. Powell hid their guns
under the hood of Mr. Perry’s truck. Mr. Perry drove Mr. Lovelace and Mr. Powell to
Cumberland City where Mr. Lovelace and Mr. Powell entered the victim’s home while
Mr. Perry waited in his truck in the parking lot of a nearby apartment complex. The
video recording of the parking lot showed Mr. Perry and one of the other men outside of
Mr. Perry’s truck with the hood raised, and a reasonable jury could infer that they were
hiding the guns. Although Mr. Perry told officers that he did not know that a robbery
was to occur, that he believed they were going to the location to purchase marijuana, and
that his hood was raised because he was checking the oil, the jury, by convicting Mr.
Perry of felony murder, determined that Mr. Perry’s claims were not credible and instead
chose to credit the testimony of Ms. Amy Hankins and Ms. Miller, which was well within
the jury’s purview.
We conclude that this evidence is sufficient to establish that Mr. Perry knew that
Mr. Lovelace and Mr. Powell intended to enter the victim’s home in order to take drugs
and cash from him and that Mr. Perry agreed to drive Mr. Lovelace and Mr. Powell to the
victim’s home in order to commit the aggravated burglary, robbery, and theft. During the
commission of the offenses, the victim was shot and killed. We hold that the evidence is
sufficient to support Mr. Perry’s felony murder convictions on the basis of criminal
responsibility for the conduct of another.
III. Continuances
Ms. Ashley Hankins asserts that the trial court erred in continuing the trial
scheduled for May 2018 when counsel for Ms. Amy Hankins, who, at that time, was to be
tried along with the Defendants, had to withdraw due to a conflict of interest. Ms. Ashley
Hankins maintains that the trial court, instead, should have severed Ms. Amy Hankins’s
trial and allowed the Defendants’ trial to proceed. Ms. Ashley Hankins also asserts that
the trial court erred in denying her request to continue the trial scheduled for September
2018, alleging that additional time was needed to adequately investigate and prepare a
defense after the State disclosed Ms. Amy Hankins’s cooperation. The State responds
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that the trial court properly exercised its discretion in granting and denying requests for
continuances. We agree with the State.
The granting of a continuance rests within the sound discretion of the trial court.
Odom, 137 S.W.3d at 589. This court will reverse the trial court’s denial of a
continuance only if the trial court abused its discretion and the defendant was prejudiced
by the denial. State v. Hines, 919 S.W.2d 573, 579 (Tenn. 1995). To show prejudice, the
defendant must establish that a different result might reasonably have been reached if the
trial court had granted the continuance or that the trial court’s failure to grant the
continuance denied the defendant a fair trial. Id. Although a continuance may be
appropriate in order to afford a defendant a “reasonable opportunity” to locate a witness,
the defendant has the burden of showing that a continuance might have reasonably
resulted in locating the witness. State v. Morgan, 825 S.W.2d 113, 117 (Tenn. Crim.
App. 1991).
An indictment and superseding indictments were returned against the Defendants
and their co-defendants in May, September, and November of 2017. The trial was
scheduled to begin on October 30, 2017. The Defendants and other co-defendants filed
motions to continue the trial due to the voluminous amount of discovery provided by the
State. During the hearing, the trial court granted the continuance, noting that, at that
time, no trials had been severed. The trial court reset the trial to begin on May 17, 2018.
At some point prior to April of 2018, the trials of Mr. Lovelace and Mr. Powell
were severed from the trials of the remaining defendants. On April 3rd, Ms. Ashley
Hankins filed a motion to exclude evidence of prior bad acts pursuant to Tennessee Rule
of Evidence 404(b). The State filed a motion to continue the hearing on the motion,
asserting that the evidence to be presented during the hearing related to both Ms. Ashley
Hankins and Ms. Amy Hankins and that counsel for Ms. Amy Hankins filed a motion to
withdraw. The State requested that the hearing be continued until after Ms. Amy
Hankins was appointed new counsel.
During a hearing on April 20th, the trial court granted the request of counsel for
Ms. Amy Hankins to withdraw due to a conflict of interest, and the trial court appointed
new counsel to represent her. The trial court stated that it would need to continue the trial
because the court would not require Ms. Amy Hankins to proceed to trial with an attorney
who had been representing her for only a few weeks. The trial court continued the trial
until September 24, 2018.
Counsel for Ms. Ashley Hankins requested an opportunity to file a motion for
severance based upon speedy trial issues. The trial court allowed counsel the opportunity
to file a motion. The trial court explained:
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I’m not trying to prejudice any of [the defendants]. That’s the reason I’m
setting a new trial date four months down the road. So while that is a delay,
in my opinion, it’s not an extraordinary delay. If it had to have been moved
to 2019, then I could understand that would be a delay that would create
some problems.
But I am not foreclosing you from filing a Motion to Sever. Right
now, all I have is that the three of [the defendants] are still consolidated,
and for that reason, they are all three being moved to that date in
September. You file whatever you feel like is in the benefit of your client,
and I will schedule a hearing.
On May 3rd, Ms. Ashley Hankins filed a “Motion for Speedy Trial,” in which she
noted that she had been incarcerated for more than one year and asserted her right to a
speedy trial. The trial court’s written order denying the motion reflects that a hearing was
held on May 31, 2018. However, a transcript of the hearing is not included in the
appellate record. The trial court denied the motion, stating that no trial dates were
available until the September 24th trial date.
Ms. Ashley Hankins asserts that the trial court erred in continuing her trial and,
instead, should have severed her trial from the trial of Ms. Amy Hankins so that Ms.
Ashley Hankins’s trial could have proceeded in May as scheduled. However, Ms. Ashley
Hankins never sought to sever her trial and did not file a severance motion when given
the opportunity to do so. The trial court continued the trial for four months after Ms.
Amy Hankins’s attorney withdrew due to a conflict of interest and new counsel was
appointed. We conclude that the trial court did not abuse its discretion in granting this
short continuance.
Ms. Ashley Hankins also appears to challenge the trial court’s order denying her
speedy trial motion. However, a transcript of the May 31st hearing during which the
motion was addressed was not included in the appellate record. The appellant has a duty
to prepare a record that conveys “a fair, accurate and complete account of what transpired
with respect to those issues that are the bases of appeal.” Tenn. R. App. P. 24(b).
“Where ... the record is incomplete, and does not contain a transcript of the proceedings
relevant to an issue presented for review, or portions of the record upon which a party
relies, this Court is precluded from considering the issue.” State v. Roberts, 755 S.W.2d
833, 836 (Tenn. Crim. App. 1998) (citing State v. Groseclose, 615 S.W.2d 142, 147
(Tenn. 1981); State v. Jones, 623 S.W.2d 129, 131 (Tenn. Crim. App. 1981)). We note
that the transcript is particularly important in light of the trial court’s statement to Ms.
Ashley Hankins’s counsel during a subsequent hearing that “you indicated at that time on
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the record that as long as the case could be guaranteed to go forward on that day that that
was sufficient compliance with your client’s request for a speedy trial.” Accordingly,
Ms. Ashley Hankins is not entitled to relief on this issue.
Finally, Ms. Ashley Hankins challenges the trial court’s denial of her motion to
continue the September 24th trial. Her counsel filed a motion on September 7th, stating
that the State sent him an email on August 31st advising him that Ms. Amy Hankins
would be testifying for the prosecution, that counsel did not read the email until
September 4th, that counsel had another upcoming trial in which to prepare, and that
additional time was necessary to prepare a defense and an effective cross-examination of
Ms. Amy Hankins. During the hearing, Ms. Ashley Hankins’s counsel stated that he
recently received a letter from Ms. Candice Butler, an inmate at the local jail who stated
that Ms. Amy Hankins told her that she would say anything necessary to keep her deal in
place. Counsel stated that he believed some evidence, which would have been
inadmissible in a joint trial, would be admissible as a result of Ms. Amy Hankins’s
testifying for the State. Counsel maintained that additional time was necessary in order
to interview Ms. Butler, investigate Ms. Amy Hankins’s statement about another
unknown individual, and obtain the transcripts of Ms. Amy Hankins’s prior interviews
with officers. The State opposed the continuance, arguing that counsel was provided
with Ms. Amy Hankins’s proffered statement on August 31st, which was three weeks
prior to trial and the deadline imposed by the trial court to provide its witness list of the
defense. Mr. Perry’s counsel stated that although he did not oppose the continuance, Mr.
Perry asked for the trial to move forward as scheduled.
The trial court denied the continuance request, noting that Ms. Ashley Hankins
previously filed a speedy trial motion and that the court had assured her at a prior hearing
that the trial would commence on September 24th. The trial court stated that Ms. Butler
was available for counsel to interview at the jail and could be subpoenaed to testify at
trial. The trial court observed that in criminal cases with multiple defendants, one of the
defendants routinely settles his or her case and becomes a potential witness for the State.
The trial court found that Ms. Amy Hankins’s agreement to cooperate with the State was
not “so out of the ordinary” as to necessitate a continuance.
Ms. Ashley Hankins failed to establish that the trial court abused its discretion in
denying her request for a continuance. The case had been pending for more than one
year. The State provided counsel with notice of Ms. Amy Hankins’s cooperation three
weeks prior to trial and by the deadline imposed by the trial court for release of the
State’s witness list. Counsel for Ms. Ashley Hankins extensively questioned Ms. Amy
Hankins on cross-examination at trial regarding her prior statements to officers in which
she claimed no knowledge of the offenses. Counsel also presented the testimony of Ms.
Butler regarding Ms. Amy Hankins’s comments to her. Ms. Ashley Hankins failed to
- 22 -
present any additional proof that could have been obtained had the trial court granted a
continuance. Therefore, she is not entitled to relief regarding this issue.
IV. The Admission of Evidence of Other Bad Acts
Ms. Ashley Hankins maintains that the trial court erred in admitting evidence of
other bad acts pursuant to Tennessee Rule of Evidence 404(b). She specifically
challenges testimony of her solicitation of others to commit a robbery, of her prior drug
use, and of her trading or selling a firearm following the victim’s death. The State
responds that Ms. Ashley Hankins waived her claims regarding evidence of her drug use
and the trading or selling of a firearm by failing to challenge the evidence in the trial
court. The State also responds that the trial court properly admitted the testimony and
that any error is harmless.
A. Proceedings in the Trial Court
Prior to trial, Ms. Ashley Hankins filed a motion seeking to exclude evidence of
prior bad acts pursuant to Tennessee Rule of Evidence 404(b). She specifically sought to
exclude evidence that she previously solicited others to commit a robbery.
During a pretrial hearing, the State presented the testimony of Ms. Blake, who
stated that in March or April of 2016, while at her home, Ms. Ashley Hankins asked Mr.
Blake if he wanted to rob someone and make money. Ms. Blake testified that Ms. Ashley
Hankins identified the person to be robbed as “Donnie” and stated that the robbery would
be easy due to the location of his home in Cumberland City. Ms. Ashley Hankins told
Mr. Blake that “Donnie” would have a gun and that Mr. Blake would need a gun too.
Ms. Blake stated that she stopped the conversation and told Ms. Ashley Hankins that she
should not ask Mr. Blake to commit the robbery and that Ms. Ashley Hankins should
commit the robbery herself. Ms. Blake acknowledged on cross-examination that she did
not provide a statement to the police until 2017, after the defendants had been arrested.
She explained on redirect examination that she did not feel that she could safely speak to
officers until after the defendants’ arrests.
The transcript of the parties’ arguments following Ms. Blake’s testimony and any
oral findings by the trial court are not included in the appellate record. The trial court
entered a written order, finding that Ms. Blake was a credible witness and that the
conversation was established by clear and convincing evidence. The trial court also
found that the evidence was relevant to establish intent and a common scheme or plan
and that the probative value of the evidence was not outweighed by the danger of unfair
prejudice.
- 23 -
During a hearing at trial outside the presence of the jury, Ms. Bell testified that she
had known Ms. Ashley Hankins since 2010 or 2011 and that they were doing drugs
together in 2016. Ms. Bell stated that Ms. Ashley Hankins initially asked Ms. Bell’s
husband and his friend to rob the victim. Once Ms. Bell learned of the conversation, Ms.
Ashley Hankins asked Ms. Bell to participate, and Ms. Bell refused. Ms. Bell testified
that sometime after the victim’s death, Ms. Ashley Hankins offered to trade her a black
and gray handgun for drugs. When Ms. Bell declined, Ms. Ashley Hankins traded the
gun at Mr. Greg Brown’s home. On cross-examination, Ms. Bell testified that Ms.
Ashley Hankins solicited her to commit the robbery two or three days before the victim’s
death.
The trial court found that evidence that Ms. Ashley Hankins solicited others to
commit a robbery of the actual victim was admissible because it went “hand-in-hand with
the State’s theory about this case and the criminal responsibility that the State alleges Ms.
Hankins bears.” The trial court stated that it was not defining the solicitation as a “prior
bad act” but as part of the State’s evidence of a common scene or plan. The trial court
explained that “it’s not just a prior bad act but rather a part of the scheme, the crime that
the State is alleging took place, and the planning and executing of a common scheme or
plant is the theory of why the State is introducing this, and I find that to be a credible
argument.” The trial court further stated that even if the evidence constituted a prior bad
act, the evidence was “a part of the planning that took place in this case.” The trial court
concluded that the evidence was relevant and, although cumulative, the probative value
of the evidence outweighed any prejudice.
At the conclusion of the presentation of the proof, the trial court instructed the jury
that if the jury determined that any of the Defendants committed a crime or crimes other
than those for which they were on trial, such evidence could not be used to determine the
Defendants’ disposition to commit the crimes for which they were on trial. The trial
court instructed the jury that evidence of other crimes could only be considered to
complete the story or as proof of the Defendants’ identities, a scheme or plan, motive,
intent, or guilty knowledge.
B. Analysis
“Evidence of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity with the character trait.” Tenn. R. Evid.
404(b). Rule 404(b) has been described as a rule of exclusion rather than inclusion. State
v. Jones, 450 S.W.3d 866, 891 (Tenn. 2014). “Trial courts have been encouraged to take
a ‘restrictive approach of [Rule] 404(b) ... because “other act” evidence carries a
significant potential for unfairly influencing a jury.’” Id. (quoting State v. Dotson, 254
S.W.3d 378, 387 (Tenn. 2008)).
- 24 -
Evidence of other acts may be admissible for other non-propensity purposes, such
as “to establish motive, intent, identity, absence of mistake, or common plan or scheme,”
or contextual background. State v. Little, 402 S.W.3d 202, 210 (Tenn. 2013); see Tenn.
R. Evid. 404(b), Advisory Comm’n Cmts. Evidence may be admitted for these purposes
if the following requirements have been met:
(1) The court upon request must hold a hearing outside the jury’s presence;
(2) The court must determine that a material issue exists other than conduct
conforming with a character trait and must upon request state on the record
the material issue, the ruling, and the reasons for admitting the evidence;
(3) The court must find proof of the other crime, wrong, or act to be clear
and convincing; and
(4) The court must exclude the evidence if its probative value is outweighed
by the danger of unfair prejudice.
Tenn. R. Evid. 404(b).
If the trial court has substantially complied with the procedure mandated by Rule
404(b), a trial court’s decision to admit or exclude evidence pursuant to Rule 404(b) is
reviewed under an abuse of discretion standard. State v. DuBose, 953 S.W.2d 649, 652
(Tenn. 1997). A trial court abuses its discretion when “‘it applies an incorrect legal
standard or its decision is illogical or unreasonable, is based on a clearly erroneous
assessment of the evidence, or utilizes reasoning that results in injustice to the
complaining party.’” Jones, 450 S.W.3d at 892 (quoting State v. Adams, 405 S.W.3d
641, 660 (Tenn. 2013)). If the trial court has failed to substantially comply with the
procedural mandates of Rule 404(b), our standard of review is de novo. State v. Mallard,
40 S.W.3d 473, 486 n.13 (Tenn. 2001) (citing DuBose, 953 S.W.2d at 652-53).
With regard to the evidence of Ms. Ashley Hankins’s solicitation of Mr. Blake, the
trial court held a pretrial hearing after which the trial court found that the solicitation was
established by clear and convincing evidence, that the evidence was relevant on the issues
of intent and a common scheme or plan, and that the probative value of the evidence was
not outweighed by the danger of unfair prejudice. Because the trial court substantially
complied with the procedure set forth in Rule 404(b), our standard of review is abuse of
discretion. However, the trial court made no finding that Ms. Ashley Hankins’s
solicitation of Ms. Bell and her husband was established by clear and convincing
evidence before admitting the testimony. Because the trial court did not substantially
- 25 -
comply with the procedure in Rule 404(b) before admitting this evidence, our standard of
review is de novo. See State v. Benjamin Foust, No. E2017-02420-CCA-R3-CD, 2019
WL 3824028, at *16 (Tenn. Crim. App. Aug. 15, 2019) (reviewing the admission of
evidence under Rule 404(b) do novo when the trial court did not make explicit findings
that the evidence supporting the bad acts was clear and convincing or that the danger of
unfair prejudice did not outweigh the probative value of the evidence), no perm. app.
filed.
As found by the trial court, Ms. Ashley Hankins’s prior solicitations of others
were relevant evidence of a common scheme or plan. To constitute a common scheme or
plan, the offenses must either be: “(1) offenses that reveal a distinctive design or are so
similar as to constitute ‘signature’ crimes; (2) offenses that are part of a larger, continuing
plan or conspiracy; and (3) offenses that are all part of the same criminal transaction.”
State v. Shirley, 6 S.W.3d 243, 248 (Tenn. 1999). The trial court found that the
solicitations were part of a larger, continuing plan.
When offenses are alleged to be part of a larger, continuing plan or conspiracy, the
prosecution must present proof of “‘a working plan, operating towards the future with
such force as to make probable the crime for which the defendant is on trial.’” State v.
Prentice, 113 S.W.3d 326, 331 (Tenn. Crim. App. 2001) (quoting State v. Hoyt, 928
S.W.2d 935, 943 (Tenn. Crim. App. 1995), overruled on other grounds by Spicer v. State,
12 S.W.3d 438, 447 n.12 (Tenn. 2000)). “[A] larger, continuing plan or conspiracy
‘involves not the similarity between the crimes, but [rather] the common goal or purpose
at which they are directed.’” State v. Denton, 149 S.W.3d 1, 15 (Tenn. 2004) (quoting
Hoyt, 928 S.W.2d at 943); see State v. Hallock, 875 S.W.2d 285, 290 (Tenn. Crim. App.
1993). The offenses may not be simply a string of similar crimes, but must be committed
“in furtherance of a plan that has a readily distinguishable goal.” Denton, 149 S.W.3d at
15.
Ms. Ashley Hankins’s prior solicitations of others were part of a continuing plan
to have someone rob the victim of his drugs and money. See State v. Chivous Sirrel
Robinson, No. E2001-00865-CCA-R3-CD, 2003 WL 649115, at *3-4 (Tenn. Crim. App.
Feb. 28, 2003) (concluding that the defendant’s prior solicitation of a witness to kill his
wife was admissible as proof of a common scheme or plan). Although Ms. Blake
testified at trial that Ms. Ashley Hankins did not specify the individual whom she wanted
robbed, Ms. Blake provided sufficient detail to allow a reasonable person to infer that the
victim was the intended target. Ms. Bell testified that Ms. Ashley Hankins made the
solicitation within a day of the victim’s death and identified the victim as the target. By
admitting the evidence, the trial court implicitly credited this testimony. Evidence of the
prior solicitations also were relevant to the issue of intent and the State’s theory of
criminal responsibility. The probative value of the evidence was great, especially in light
- 26 -
of Ms. Ashley Hankins’s defense at trial that she was not involved in the home invasion
and the victim’s death. The probative value of the evidence was not outweighed by the
danger of unfair prejudice. We conclude that the trial court properly admitted the
evidence.
Ms. Ashley Hankins also challenges the admission of Ms. Bell’s testimony
regarding Ms. Ashley Hankins’s prior drug use and her attempts to trade a gun for drugs
following the victim’s death. However, Ms. Ashley Hankins did not challenge this
evidence pursuant to Rule 404(b) in the trial court. Accordingly, this issue is waived.
See State v. Gordon Scot Katz, No. E2017-02516-CCA-R3-CD, 2018 WL 4697267, at *5
(Tenn. Crim. App. Oct. 1, 2018); State v. Benjamin Gunn, No. W2016-00338-CCA-R3-
CD, 2017 WL 4861664, at *12 (Tenn. Crim. App. Oct. 26, 2017); see also State v. Jones,
151 S.W.3d 494, 498 n.3 (Tenn. 2004) (declining to consider whether evidence should
have been excluded under Rule 404(b) when the defendant did not request a 404(b)
hearing in the trial court).
V. Limitation of Cross-Examination of a Witness
Ms. Ashley Hankins maintains that the trial court erred in limiting her counsel’s
cross-examination of Ms. Bell. The State responds that the trial court properly limited
counsel in cross-examining Ms. Bell on an issue of “marginal relevance.”
A defendant’s constitutional right to confront the witnesses against him includes
the right to conduct meaningful cross-examination. Pennsylvania v. Ritchie, 480 U.S. 39,
51 (1987); State v. Brown, 29 S.W.3d 427, 430-31 (Tenn. 2000); State v. Middlebrooks,
840 S.W.2d 317, 332 (Tenn. 1992) superseded by statute as stated in State v. Reid, 91
S.W.3d 247, 306 n.13 (Tenn. 2002). “‘[T]he Confrontation Clause guarantees only an
opportunity for effective cross-examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense might wish.’” State v. Davis, 466
S.W.3d 49, 68 (Tenn. 2015) (quoting United States v. Owens, 484 U.S. 554, 559 (1988)).
Furthermore, “a defendant’s right to confrontation does not preclude a trial court from
imposing limits upon cross-examination which take into account such factors as
harassment, prejudice, issue confrontation, witness safety, or merely repetitive or
marginally relevant interrogation.” State v. Reid, 882 S.W.2d 423, 430 (Tenn. Crim.
App. 1994); see State v. Sheline, 955 S.W.2d 42, 47 (Tenn. 1997) (stating that a
defendant’s right to confront and cross-examine witnesses “does not mean that a
defendant has a right to present irrelevant evidence”). “The propriety, scope, manner and
control of the cross-examination of witnesses … rests within the sound discretion of the
trial court.” State v. Dishman, 915 S.W.2d 458, 463 (Tenn. Crim. App. 1995). This court
will not disturb the limits that a trial court has placed upon cross-examination unless the
trial court has unreasonably restricted the right. Id.- 27 -
In cross-examining Ms. Bell at trial, Ms. Ashley Hankins’s counsel questioned her
about her posts on Facebook regarding Ms. Sharon Hopkins, who had no apparent
relation to the offenses on trial. In response to the questioning, Ms. Bell denied making
any posts in an attempt to intimidate Ms. Hopkins and denied making a post stating,
“snitches get stitches.” Counsel began reading from what appeared to be another post
when the State objected and argued that the line of questioning was irrelevant.
During a hearing outside the jury’s presence, counsel for Ms. Ashley Hankins
argued that Ms. Bell’s intimidation of another was character evidence that was relevant to
Ms. Bell’s credibility. Counsel acknowledged that Ms. Bell’s Facebook posts were
unrelated to the present case and that he did not know who Ms. Hopkins was. The trial
court found that counsel’s argument that Ms. Bell was intimidating a witness was
speculative, was unrelated to the trial, and was not relevant. The trial court sustained the
State’s objection and instructed the jury to disregard the line of questioning.
Although Ms. Ashley Hankins contends that the trial court improperly restricted
her right to cross-examine Ms. Bell, Ms. Ashley Hankins failed to make an offer of proof
regarding what any additional cross-examination would have revealed. Counsel did not
question Ms. Bell outside the jury’s presence regarding who Ms. Hopkins was, the
meaning of the posts, and the circumstances under which the posts were made. Counsel
also failed to enter a print-out of the Facebook posts into the record as part of an offer of
proof. The failure to make an offer of proof precludes this court from reviewing the
issue. See State v. McCaleb, 582 S.W.3d 179, 199 (Tenn. 2019) (holding that the State’s
failure to make an offer of proof regarding the excluded evidence precluded the trial court
from making specific findings regarding the proposed testimony and precluded the
appellate court from considering the issue); State v. Hall, 958 S.W.2d 679, 691 n. 10
(Tenn. 1997) (“[G]enerally, if an offer of proof is not made, the issue is deemed waived
and appellate review is precluded.”). Accordingly, Ms. Ashley Hankins is not entitled to
relief on this issue.
VI. Exclusion of Mr. Lovelace’s Statement
Ms. Ashley Hankins asserts that the trial court erred in excluding Mr. Lovelace’s
statement to law enforcement in which he implicated himself in the offense but never
mentioned Ms. Ashley Hankins’s involvement. Ms. Ashley Hankins maintains that Mr.
Lovelace’s statement qualified under the hearsay exception for a statement against
interest. The State responds that the trial court properly exercised its discretion in
excluding the statement. We agree with the State.
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Counsel for Ms. Ashley Hankins asked Special Agent Adkins on cross-
examination whether Mr. Lovelace had given any statements against his interest. The
State objected, arguing that the response called for hearsay. During a hearing outside the
jury’s presence, counsel again asked Special Agent Adkins whether Mr. Lovelace made
any statements against his interest, and Special Agent Adkins stated that Mr. Lovelace
admitted that he was at the victim’s home with Mr. Perry and Mr. Powell. Counsel asked
whether Mr. Lovelace implicated Ms. Ashley Hankins in the offense, and Special Agent
Adkins responded that Mr. Lovelace did not.
Counsel for Ms. Ashley Hankins agreed with the trial court that he was seeking to
admit the absence of an allegation against Ms. Ashley Hankins in Mr. Lovelace’s
statement. The trial court sustained the State’s objection. The trial court found that Mr.
Lovelace’s statement implicating himself in the offense did not “make more or less true
[Ms. Ashley Hankins’s] guilt or innocence on the charge.” The trial court also found Mr.
Lovelace’s failure to mention Ms. Ashley Hankins as participating in the offense was not
a statement against Mr. Lovelace’s penal interest.
As part of the defense proof at trial, counsel for Ms. Ashley Hankins sought to
recall Special Agent Adkins as a witness in order to question him regarding Mr.
Lovelace’s statement, and the State again objected. During a jury-out hearing, Special
Agent Adkins testified that during the interview, Mr. Lovelace admitted to going to the
victim’s home and participating in the offense. Special Agent Adkins stated that Mr.
Lovelace never mentioned Ms. Ashley Hankins, and Special Agent Adkins could not
recall whether he asked Mr. Lovelace whether she was involved in the offense. Special
Agent Adkins acknowledged that at the time, he suspected that Ms. Ashley Hankins was
involved, and he agreed that it would have been important to the investigation if Mr.
Lovelace admitted that Ms. Ashley Hankins asked him to rob the victim.
The trial court found that Mr. Lovelace was unavailable as a witness but that his
statements were not admissible as statements against his penal interest. The trial court
noted that Mr. Lovelace did not state that he committed the offense instead of Ms. Ashley
Hankins. The trial court stated that the fact that Mr. Lovelace was not asked about Ms.
Ashley Hankins and did not mention her did not prove that she was or was not involved
in the offense and that “[i]n other words, the statement that’s being sought doesn’t
inculpate Mr. Lovelace and exonerate [Ms. Ashley Hankins].”
In determining whether a statement is hearsay and whether the statement fits
within one of the hearsay exceptions, the trial court may make factual findings and
credibility determinations in ruling on an evidentiary motion, and “these factual and
credibility findings are binding on a reviewing court unless the evidence in the record
preponderates against them.” Kendrick v. State, 454 S.W.3d 450, 479 (Tenn. 2015)
- 29 -
(citing State v. Gilley, 297 S.W.3d 739, 759-61 (Tenn. Crim. App. 2008)). “Once the
trial court has made its factual findings, the next questions—whether the facts prove that
the statement (1) was hearsay and (2) fits under one of the exceptions to the hearsay
rule—are questions of law subject to de novo review.” Id. (citing State v. Schiefelbein,
230 S.W.3d 88, 128 (Tenn. Crim. App. 2007); Keisling v. Keisling, 196 S.W.3d 703, 721
(Tenn. Ct. App. 2005)).
Hearsay is “a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn.
R. Evid. 801(c). Generally, hearsay is not admissible unless the statement falls within
one of the exceptions provided by the rules of evidence or otherwise by law. Tenn. R.
Evid. 802. When a declarant is unavailable as a witness, the hearsay rule does not
exclude “a statement which was at the time of its making so far contrary to the
declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to
civil or criminal liability … that a reasonable person in the declarant’s position would not
have made the statement unless believing it to be true.” Tenn. R. Evid. 804(b)(3). Each
specific assertion must be examined individually in determining whether the statements
in an accomplice’s confession were against his or her interests. See State v. Dotson, 254
S.W.3d 378, 392-93 (Tenn. 2008).
In Dotson, the Tennessee Supreme Court concluded that the trial court properly
determined that an accomplice’s confession to a robbery did not qualify under the
hearsay exception as statements against his penal interest. Id. The court reasoned, in
part, that while the accomplice’s confession was clearly against his penal interest, “the
statement did not tend to exculpate the [d]efendant for the robbery.” Id. at 393. The
court observed that “‘the most frequent application of [Rule 804(b)(3)] in criminal cases
is the tender of hearsay evidence that an unavailable declarant had confessed to the
witness that declarant, not defendant, committed the crime that is the subject of the
prosecution.’” Id. (quoting Smith v. State, 587 S.W.2d 659, 660 (Tenn. 1979)).
In the present case, the trial court determined that Mr. Lovelace, a co-defendant
whose trial was pending, was unavailable to testify. However, while Mr. Lovelace’s
confession was against his penal interest, the statement did not exculpate Ms. Ashley
Hankins for the offense. Mr. Lovelace did not mention Ms. Ashley Hankins, and there is
no evidence that Mr. Lovelace was asked about her during the interview. Based on the
Tennessee Supreme Court’s holding in Dotson, we cannot conclude that the trial court
erred in excluding the evidence. Furthermore, counsel was able to elicit testimony from
Special Agent Adkins at trial that he never asked Mr. Perry or Mr. Lovelace about
whether Ms. Ashley Hankins had a role in the commission of the offense. This line of
questioning accomplished what counsel sought to do with Mr. Lovelace’s statement in
that the jury essentially was told that Ms. Ashley Hankins’s name was not mentioned
- 30 -
during the interviews of the co-defendants. Accordingly, any error in the exclusion of
Mr. Lovelace’s statement was harmless. See State v. Rodriguez, 254 S.W.3d 361, 374
(Tenn. 2008) (holding that a defendant is entitled to relief from a non-constitutional error
only if it “more probably than not affected the judgment or would result in prejudice to
the judicial process”).
VII. Jury Instruction on Concealment/Destruction of Evidence
Both of the Defendants contend that the trial court erred in including in its final
jury instructions an instruction regarding the concealment or destruction of evidence.
However, neither of the Defendants raised this issue in their respective motions for new
trial and, thus, have waived the issue. See Tenn. R. App. P. 3(e) (“[I]n all cases tried by a
jury, no issue presented for review shall be predicated upon error in … jury instructions
granted or refused … unless the same was specifically stated in a motion for new
trial….”); State v. Faulkner, 154 S.W.3d 48, 58 (Tenn. 2005) (holding that failure to
object to erroneous definitions of intentionally and knowingly did not result in waiver of
the issue but that the failure to include the issue in a motion for new trial did result in
waiver).
VIII. Closing Arguments
Mr. Perry asserts that the prosecutor made multiple improper comments during
rebuttal closing arguments. “Closing arguments serve ‘to sharpen and to clarify the
issues that must be resolved in a criminal case’” and enable “‘the opposing lawyers to
present their theory of the case and to point out the strengths and weaknesses in the
evidence to the jury.’” State v. Hawkins, 519 S.W.3d 1, 47 (Tenn. 2017) (quoting State v.
Banks, 271 S.W.3d 90, 130 (Tenn. 2008)). Because counsel in criminal cases are
“‘expected to be zealous advocates,’” they are afforded “‘great latitude in both the style
and the substance of their arguments.’” Id. (quoting Banks, 271 S.W.3d at 130-31).
Prosecutors, however, “must not lose sight of their duty to seek justice impartially and
their obligation ‘to see to it that the defendant receives a fair trial.’” Id. at 47-48 (quoting
Banks, 271 S.W.3d at 131). Accordingly, “a prosecutor’s closing argument must be
temperate, must be based on the evidence introduced at trial, and must be pertinent to the
issues in the case.” Banks, 271 S.W.3d at 131 (citations omitted). “[P]rosecutors, no less
than defense counsel, may use colorful and forceful language in their closing arguments,
as long as they do not stray from the evidence and the reasonable inferences to be drawn
from the evidence, or make derogatory remarks or appeal to the jurors’ prejudices.” Id.(citations omitted). Although not exhaustive, this court has recognized five general areas
of potentially improper prosecutorial argument: (1) intentionally misstating the evidence
or misleading the jury as to the inferences it may draw; (2) expressing personal beliefs or
opinions as to the truth or falsity of any testimony or the guilt of the defendant; (3)
- 31 -
inflaming or attempting to inflame the passions or prejudices of the jury; (4) injecting
issues broader than the guilt or innocence of the accused under controlling law, or
making predictions regarding the consequences of the jury’s verdict; and (5) arguing or
referring to facts outside the record unless the facts are matters of common knowledge.
State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003).
However, “[a] criminal conviction should not be lightly overturned solely on the
basis of the prosecutor’s closing argument.” Banks, 271 S.W.3d at 131. Instead, “[a]n
improper closing argument will not constitute reversible error unless it is so inflammatory
or improper that i[t] affected the outcome of the trial to the defendant’s prejudice.” Id.The following factors should be considered when making this determination:
“(1) the conduct complained of viewed in context and in light of the facts
and circumstances of the case; (2) the curative measures undertaken by the
[c]ourt and the prosecution; (3) the intent of the prosecutor in making the
improper statement; (4) the cumulative effect of the improper conduct and
any other errors in the record; and (5) the relative strength or weakness of
the case.”
State v. Buck, 670 S.W.2d 600, 609 (Tenn. 1984) (quoting Judge v. State, 539 S.W.2d
340, 344 (Tenn. Crim. App. 1976)); see also Goltz, 111 S.W.3d at 5-6.
Mr. Perry contends that the prosecutor made numerous comments during rebuttal
closing arguments that were designed to flame the jury, disparage defense counsel and
the Defendants, express the prosecutor’s personal beliefs and opinions as to the truth and
falsity of the testimony presented at trial, inject issues broader than the guilt or innocence
of the Defendants, reference matters outside the record, misstated the evidence, and
reference Mr. Perry’s exercise of his constitutional right to remain silent and to not
testify. Mr. Perry acknowledges that he did not object to the prosecutor’s comments at
trial, which generally results in waiver of the issue on appeal. See Tenn. R. App. P.
36(a); State v. Fusco, 404 S.W.3d 504, 519 (Tenn. Crim. App. 2012). However, he
requests review under the plain error doctrine.
“When necessary to do substantial justice, an appellate court may consider an
error that has affected the substantial rights of a party at any time, even though the error
was not raised in the motion for a new trial or assigned as error on appeal.” Tenn. R.
App. P. 36(b). Five factors must be met before this court will conclude that plain error
exists:
“(a) the record must clearly establish what occurred in the trial court; (b) a
clear and unequivocal rule of law must have been breached; (c) a
- 32 -
substantial right of the accused must have been adversely affected; (d) the
accused did not waive the issue for tactical reasons; and (e) consideration of
the error is ‘necessary to do substantial justice.’”
State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d
626, 641-42 (Tenn. Crim. App. 1994) (footnotes omitted)). All five factors must be
established before this court will recognize plain error and “‘complete consideration of all
the factors is not necessary when it is clear from the record that at least one of the factors
cannot be established.’” State v. Martin, 505 S.W.3d 492, 504 (Tenn. 2016) (quoting
Smith, 24 S.W.3d at 283). “‘When asserting plain error, the defendant bears the burden
of persuading the appellate court that the trial court committed plain error and that the
error was of sufficient magnitude that it probably changed the outcome of the trial.’” Id.
at 505 (quoting State v. Smith, 492 S.W.3d 224, 232 (Tenn. 2016)).
Mr. Perry challenges the following comments made by the prosecutor during
rebuttal closing arguments:
 Because all you have heard really from the Defense the last few days in
their questioning of the witnesses are reasons to not think about the
murder of Donnie Cooksey. Everything they have done, the questions
they have asked, the interviews they have given is designed with one
thing, to distract you from what we all know absolutely, beyond any
doubt happened, which was the cold blooded murder of a man inside his
home in the middle of the night. That should resonate more than
anything else in your deliberations is that a man in Stewart County was
murdered in cold blood. That’s an absolute, rock solid truth that all of
the other B.S. should bring to the front.
 The prosecutor’s use of the Watergate scandal as an example of criminal
responsibility.
 So yes, it’s a dirty deal that sometimes has to be made, and I made it.
And I had to look at that family right there, and they looked at me,
knowing that Amy Hankins could be called upon to testify and begin an
eight year sentence. We know who are responsible, the family and the
State of Tennessee, and for [defense counsel for Ms. Ashley Hankins] to
sit up there and make up some crap about us intimidating another
witness, going to meet Ms. Hankins, that’s untrue. That’s a decision
made between myself and the family. The family of Donnie Cooksey.
The people that matter. [Defense counsel for Ms. Ashley Hankins]
doesn’t matter. His thoughts on Donnie Cooksey don’t matter to me.
- 33 -
Only these people out here. And if they’re good with me offering Amy
Hankins a deal, then so be it.
 There are several things that Ms. Hankins, Mr. Powell, Mr. Lovelace all
have in common, and Amy Hankins. And Amy Hankins. All of them
are liars. All of them. Not a one of them ain’t a liar. Now it’s up to
you to decide which one is the most truthful. Which one is the most
truthful. Well, you heard Amy Hankins sit up here today and
acknowledge that she was a liar. At least she did that. When cross-
examined she acknowledged that she had lied on multiple occasions to
these investigators.
 But [Mr. Perry] wants you to believe that he was putting oil in his truck.
And the man sitting next to him on the first day of the trial, [Mr. Cox,
Mr. Perry’s co-counsel,] had the audacity to refer to us as silver tongued
devils. And this guy is telling you he is putting oil in this truck. Bought
three grams of marijuana. And if Mr. Cox were here I would tell him
that that story smells like his heifer farm. Like cow poo. Silver tongued
devils. They’re the ones lying.
 I had Agent Adkins weigh these things. This is three packs of Sweet
and Low. They weigh combined 3.8 grams. Grams. This cookie, 17
grams. Mr. Perry, because he was so desperate for marijuana, drove
from Clarksville, a city of 100,000 people, more than that, to
Cumberland City to buy less than this. His own statement, and you can
listen to it, I encourage you to, he says three grams of marijuana, at two
o’clock in the morning. Yes, right, but we’re silver tongued devils.
Three grams of marijuana. That’s 17 grams right there.
 There’s the truck parked, he gets out. Puts the hood up. Now, you have
also seen the other camera angle of the two other gentlemen who are
alongside the truck at the same time. If you compare the time stamps as
he is getting out, one of them goes up to the front of the truck, too. I
even asked Agent Adkins about it. It appears, based on Perry’s
statement that two people would be adding oil. That is a lie. It’s a very
thin foundation that he is lying about. All of his lies have crumbled.
 He also tells you and wants you to believe that he doesn’t know D’s
name. Abdullah Powell. But we know because Agent Adkins testified
they have known each other since middle school. Another thing that all
of these people have in common if you notice is that none of them know
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anybody’s last name. They can’t remember, they don’t know, they
don’t know where they live. That’s because they’re all liars. And
they’re all lying to you.
 They want you to forget about this. They’re all pill heads. How many
times did you hear in these interviews of—Amy Hankins testified that
she is a pill addict. She said in her statement that she is a pill addict.
She said in her statement that she is a pill addict.
 Don’t you think it’s strange that if he really was going to go to
Cumberland City from Clarksville to buy three grams of weed, an Oreo
cookie, less than an Oreo cookie weighs, that he would have stayed in
the truck. You listen to his interview. Why didn’t he get out of the
truck. I guess the guy didn’t want you to see his face.
 I’m almost finished. And I know your time is valuable. The biggest
thing to me that stands out, both defendants in this case today and
throughout this entire trial is that neither one of them have shown an
ounce or a gram of remorse at all. At all. Don’t care at all. You heard
at least two witnesses testify that she killed him and wanted him—not
killed him, but wanted him killed because he was greedy and she was
jealous. And then didn’t care that he was dead after the fact. Neither
one have ever shown any remorse at all.
 …[Mr. Perry’s counsel] was disclosing, said he has got an old truck.
And I do, too. A 1997 Chevrolet with 256,000 miles on it, a Tahoe. It
takes oil.
Now, Ladies and Gentlemen, this case does turn on credibility. And
if you believe that he got out of that truck at two o’clock in the morning to
add oil, if you believe that, I know what you are going to do in the jury
room. But if you don’t believe that he brought oil then you need to convict
him. If you don’t believe that he put oil in that truck then he’s convicted.
Because what he was doing was getting under that hood and getting a
weapon out for a homicide that had not yet occurred, but did shortly after
he opened the hood.
We note that some of the prosecutor’s comments regarding defense counsel and
their trial tactics were in response to the Defendants’ closing arguments during which Ms.
Ashley Hankins’s counsel suggested that the State suborned perjury by presenting Ms.
Amy Hankins’s testimony and Mr. Perry’s counsel vouched for Special Agent Adkins’s
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testimony regarding Mr. Perry’s lack of involvement. Although the prosecution “is not
permitted to reflect unfavorably upon defense counsel or the trial tactics employed during
the course of the trial,” State v. Gann, 251 S.W.3d 446, 460 (Tenn. Crim. App. 2007)
(citations omitted), this court has held that a prosecutor’s comments during rebuttal
closing argument reflecting unfavorably on defense counsel and the defense’s trial tactics
were not error when the comments were in response to statements made by defense
counsel during closing arguments, see, e.g. State v. Brandon Robert Vandenburg, No.
M2017-01882-CCA-R3-CD, 2019 WL 3720892, at *52-53 (Tenn. Crim. App. Aug. 8,
2019), perm. app. denied (Tenn. Jan. 15, 2020) (concluding that the prosecutor’s
comments during rebuttal argument addressing the defense’s arguments as “red herrings”
did not breach a clear and unequivocal rule of law to rise to the level of plain error when
the comments were in response to defense counsel’s statements during closing
arguments); State v. Lance Burton, No. W2009-01875-CCA-R3-CD, 2010 WL 3244949,
at *5 (Tenn. Crim. App. Aug. 17, 2010) (addressing the prosecutor’s comments
referencing the defense’s arguments as “defense attorney tricks, defense attorney
strategy”). In light of the holdings in Brandon Robert Vandenburg and Lance Burton, we
cannot conclude that these comments by the prosecutor breached a clear and unequivocal
rule of law as to rise to the level of plain error.
The majority of the prosecutor’s comments regarding the terms of Ms. Amy
Hankins’s plea deal and the prosecutor’s role in procuring the deal and the prosecutor’s
arguments regarding Mr. Perry’s claims that he believed he was going to purchase a
small amount of marijuana and that he lifted the hood of his truck in order to check the
oil and/or put oil in the truck were based on the evidence presented at trial or were
reasonable inferences to be drawn from the evidence. However, the prosecutor
improperly referred to matters outside the record when he discussed the role of the
victim’s family in Ms. Amy Hankins’s plea deal and their acquiescence of the plea deal,
the weight of three packets of Sweet-n-Low, and the weight of an Oreo cookie, and when
he referred to Mr. Lovelace and Mr. Powell as “liars” when neither of them testified at
trial and their statements were not introduced into evidence. See Goltz, 111 S.W.3d at 6(prohibiting a prosecutor from arguing or referring to facts outside the record unless the
facts are matters of common knowledge). The prosecutor also improperly provided his
personal opinion regarding the credibility of witnesses and Mr. Perry’s guilt or innocence
by referring to the Defendants and the co-defendants as “liars” and by stating that Mr.
Perry’s claims are “lies” and that his claim of putting oil in his truck “smells like [co-
counsel’s] heifer farm. Like cow poo.”
Mr. Perry also maintains that at some point, the prosecutor used a bottle of motor
oil as a demonstrative aid and walked over to the defense table where Mr. Perry was
sitting and set down the bottle. Because defense counsel did not object, the transcript of
the closing argument does not include any reference to the prosecutor’s actions. Mr.
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Perry raised the issue in his motion for new trial, and during the hearing on the motion,
Mr. Perry’s counsel stated that “the State walked over to our table and placed down a
bottle of motor oil.” Defense counsel argued that the prosecutor’s conduct was improper
because the bottle of motor oil was not entered as an exhibit at trial and the use of motor
oil was never referenced at trial. The State responded that the use of demonstrative aids
during closing arguments was appropriate and that Mr. Perry had stated that he raised the
hood of his truck in order to check the oil and add oil. In denying Mr. Perry’s motion for
new trial, the trial court noted that the State’s position at trial was that had Mr. Perry
raised the hood of his truck in order to add oil as he claimed, he would have been seen
carrying the bottle in his hand. The trial court noted that the defense failed to make a
contemporaneous objection and that while “[p]utting it on the table of the Defense might
not have been necessarily called for, but I don’t think it rose to the level of inflaming the
passions of the Jury.”
The introduction of demonstrative evidence is permissible not only during trial but
also during closing arguments, so long as the demonstrative evidence is based on the
proof introduced at trial. See, e.g., Hawkins, 519 S.W.3d at 50 (concluding that the
prosecutor’s use of a saw similar to that used by the defendant during rebuttal closing
argument to demonstrate how the defendant dismembered the victim did not breach a
clear rule of law as to constitute plain error); State v. Travis Seiber, No. W2015-00221-
CCA-R3-CD, 2016 WL 716307, at *5 (Tenn. Crim. App. Feb. 23, 2016) (holding that the
trial court did not abuse its discretion in allowing the prosecutor to use a plastic handgun
as a demonstrative aid to demonstrate distance during closing argument). At one point,
Mr. Perry told officers that he raised the hood of his truck, checked the oil, and added
more oil. The trial court found that the State used the bottle of motor oil in order to argue
that had Mr. Perry added oil to his truck as he claimed, he would have been seen holding
the bottle of motor oil in the video. We agree with the trial court that the prosecutor’s
placing the bottle of motor oil was not necessary. However, given the limited record
regarding the use of the demonstrative aid as a result of Mr. Perry’s failure to object, we
cannot conclude that the prosecutor breached a clear and unequivocal rule of law.
Furthermore, we conclude that Mr. Perry is not entitled to relief based upon any
impropriety by the prosecutor in using the bottle of motor oil and the prosecutor’s
improper comments. Reversal under the plain error doctrine for improper closing
argument is warranted “only in exceptional circumstances.” Banks, 271 S.W.3d at 132
n.30 (citing United States v. Smith, 508 F.3d 861, 864 (8th Cir. 2007). “‘[F]leeting
comments that passed without objection during the rough-and-tumble of closing
argument in the trial court should not be unduly magnified when the printed transcript is
subjected to painstaking review in the reflective quiet of an appellate judge’s chambers.’”
Id. (quoting United States v. Mullins, 446 F.3d 750, 758 (8th Cir. 2006)).
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The evidence supporting the convictions was strong and included the testimony of
a co-defendant and Mr. Perry’s former girlfriend, as well as a video recording of Mr.
Perry near the victim’s home at the time of the offense. Mr. Perry acknowledged to
officers that he drove Mr. Lovelace and Mr. Powell to the area but maintained that he
believed the two men only intended to purchase a small amount of marijuana. However,
Mr. Perry lied to officers regarding his knowledge of Mr. Powell and attempted to extort
money from the officers in exchange for information regarding the offense. Although
Mr. Perry did not object to the prosecutor’s comments, the trial court instructed the jury
in response to objections made by the prosecutor during the defense’s closing arguments
that counsel’s statements are not evidence and that the jury should reach a decision based
upon the evidence presented at trial. Accordingly, we conclude that the prosecutor’s
improper comments did not impact the jury’s verdict or otherwise adversely affect a
substantial right of Mr. Perry and that consideration of the error is not necessary to do
substantial justice. See Smith, 24 S.W.3d at 282.
We note that although Mr. Perry did not object to the prosecutor’s use of a bottle
of motor oil as a demonstrative aid or the prosecutor’s statements that Mr. Perry’s claim
smelled like “cow poo,” Mr. Perry raised the issues in his motion for new trial. Our
supreme court has applied plenary review rather than plain error review to allegations of
prosecutorial misconduct during closing arguments that were raised in a motion for new
trial even though the defendant failed to contemporaneously object at trial. See Hawkins,
519 S.W.3d at 8. However, our supreme court recently granted permission to appeal in a
case on the issue of whether plenary review or plain error review should apply to a claim
of prosecutorial misconduct during closing arguments when the defendant failed to make
a contemporaneous objection but raised the issue in a motion for new trial. See State v.
Edward Walsh, No. M2019-00989-SC-R11-CD (Tenn. Jan. 15, 2021) (order). Even if
we apply plenary review to the two claims raised by Mr. Perry in his motion for new trial,
Mr. Perry is not entitled to relief because the prosecutor’s comments and use of the bottle
of motor oil were not so inflammatory or improper that they affected the outcome of the
trial to Mr. Perry’s detriment. See Banks, 271 S.W.3d at 131.
Finally, Mr. Perry asserts that the prosecutor improperly commented on the
exercise of his constitutional right to remain silent and not testify at trial by stating:
I’m almost finished. I know your time if valuable. This biggest
thing to me that stands out, both defendants in this case today and
throughout this entire trial is that neither one of them have shown an ounce
or a gram of remorse at all. At all. Don’t care at all. You heard at least
two witnesses testify that she killed him and wanted him—not killed him,
but wanted him killed because he was greedy and she was jealous. And
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then didn’t care that he was dead after the fact. Neither one of them have
ever shown any remorse at all.
Because Mr. Perry failed to object to these comments at trial and did not raise the issue in
his motion for new trial, our review is limited to plain error.
Both the United States Constitution and the Tennessee Constitution “guarantee
criminal defendants the right to remain silent and the right not to testify at trial.” State v.
Jackson, 444 S.W.3d 554, 585 (Tenn. 2014). This right prohibits a prosecutor from
commenting on a defendant’s decision not to testify at trial. See Griffin v. California,
380 U.S. 609, 614-15 (1965); Jackson, 444 S.W.3d at 585-86. Moreover, “‘indirect
references on the failure to testify also can violate the Fifth Amendment privilege.’”
Jackson, 444 S.W.3d at 587 (quoting Byrd v. Collins, 209 F.3d 486, 533 (6th Cir. 2000),
superseded by statute on other grounds as stated in Stewart v. Winn, 967 F.3d 534, 540
(6th Cir. 2020)). Our supreme court has adopted a two-part test for determining whether
a prosecutor’s remark constitutes an improper comment on a defendant’s constitutional
right to remain silent and not testify. Id. at 587-88. The reviewing court must consider
“(1) whether the prosecutor’s manifest intent was to comment on the defendant’s right
not to testify; or (2) whether the prosecutor’s remark was of such a character that the jury
would necessarily have taken it to be a comment on the defendant’s failure to testify.” Id.
at 588.
When viewed in the context in which the remarks were made, we cannot conclude
that the prosecutor’s manifest intent was to comment on Mr. Perry’s right not to testify or
that the jury would necessarily have taken the remarks to be a comment on Mr. Perry’s
failure to testify. In making the argument, the prosecutor focused on Ms. Ashley Hankins
and the witnesses who testified that she was not upset that the victim was killed.
Although Mr. Perry did not testify at trial, a recording of his interview with law
enforcement was played, and during the interview, Mr. Perry sought compensation for
information regarding the victim’s death. The jury could reasonably view Mr. Perry’s
actions as showing a lack of remorse. Accordingly, the prosecutor’s remarks did not
violate a clear and unequivocal rule of law, and Mr. Perry has failed to establish that the
prosecutor’s remarks constituted plain error.
IX. Cumulative Error
Mr. Perry seeks relief based upon cumulative error. However, Mr. Perry has
failed to establish any error entitling him to relief when considered either individually or
cumulatively.
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CONCLUSION
Based on the foregoing, we affirm the judgments of the trial court. However, it
appears from the record that the trial court failed to properly merge the Defendants’ three
convictions for felony murder into a single conviction. See State v. Berry, 503 S.W.3d
360, 362 (Tenn. 2015) (“Merger ... is required when a jury returns guilty verdicts on two
counts that represent alternative theories of the same offense.”). Accordingly, we remand
for entry of amended judgments reflecting that the Defendants’ separate felony murder
convictions are merged into a single felony murder conviction for each of the Defendants.
___________________________________________
JOHN EVERETT WILLIAMS, PRESIDING JUDGE
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