State of Tennessee v. Urshawn Eric Miller ( 2020 )

09/18/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
January 7, 2020 Session
STATE OF TENNEESSEE v. URSHAWN ERIC MILLER
Appeal from the Circuit Court for Madison County
No. 16-435 Donald H. Allen, Judge
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No. W2019-00197-CCA-R3-DD
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Defendant, Urshawn Eric Miller, was convicted by a Madison County jury of
premeditated first degree murder, felony first degree murder, attempted especially
aggravated robbery, attempted second degree murder, aggravated assault, employing a
firearm during the commission of a dangerous felony, evading arrest, and resisting arrest.
The trial court merged the felony murder conviction into the premeditated murder
conviction and the aggravated assault conviction into the attempted second degree
murder conviction. The jury sentenced Defendant to death for the first degree murder
conviction. For the remaining convictions, the trial court imposed an effective sentence
of thirty years, to be served concurrently with his death sentence. On appeal, Defendant
raises the following issues, as renumbered and reorganized by this Court: (1) the evidence
was insufficient to sustain his convictions; (2) the trial court erred in ruling on various
challenges during jury selection; (3) the trial court erred in admitting a video of his prior
aggravated robbery during the penalty phase; (4) the death penalty is unconstitutional; (5)
the aggravating factors did not outweigh the mitigating factors beyond a reasonable
doubt; and (6) the death penalty is disproportionate in this case. Having carefully
reviewed the record before us, we affirm the judgments of the trial court. However, we
remand the case to the trial court for the correction of a clerical error.
Tenn. R. App. P. 3 Appeal as of right; Judgments of the Circuit Court Affirmed;
Case Remanded
THOMAS T. WOODALL, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ALAN E. GLENN, JJ., joined.
George Morton Googe, District Public Defender, and Gregory D. Gookin, Assistant
Public Defender, for the appellant, Urshawn Eric Miller.
Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Senior
Assistant Attorney General; Jody Pickens, District Attorney General; and Shaun A.
Brown and Al Earls, Assistant District Attorneys General, for the appellee, State of
Tennessee.
OPINION
Factual and Procedural Background
I. Guilt Phase
On November 25, 2015, the night before Thanksgiving, the victim in this case,
twenty-four-year-old Ahmad “Mike” Dhalai, was working the cash register at the Bull
Market, located on the corner of Arlington Avenue and Hollywood in Jackson,
Tennessee. Abdul “Eddie” Saleh, whose brother owned the Bull Market and who was a
cousin of the victim, was also working that evening, along with Lawrence Austin and Mr.
Saleh’s fourteen-year-old son, Foad. Mr. Saleh was in the back of the store near the
restrooms when he heard a “loud pop” followed by two more “pops.” He yelled, “What’s
going on?” as he came toward the front of the store. Mr. Saleh saw the victim on the
floor with blood around his head. Mr. Saleh also saw a person standing in front of the
cash register by the victim’s feet. Mr. Saleh described the person as being tall and
wearing dark clothing with a hoodie, mask, and gloves. Mr. Saleh went back toward the
office because he was scared. When the person left, Mr. Saleh went to the victim. He
saw a hole in the victim’s head and blood everywhere. Mr. Saleh tried to stop the
bleeding with paper towels while he called 911. Mr. Saleh handed the store’s gun to Mr.
Austin in case the assailant came back before the police arrived.
Surveillance cameras from the Bull Market recorded the shooting from various
angles. The videos were entered into evidence and played for the jury. In the videos, the
victim can be seen behind the cash register assisting Timothy Sinclair, Sr., a customer,
and then assisting a female customer. Mr. Austin can also be seen mopping the floors
nearby. A person wearing black clothing, gray gloves, and a white face covering enters
the store. The person puts one hand up toward Mr. Austin while pointing a gun in his
other hand toward the victim. The person approaches the victim and says, “Drop that shit
off or I’ma shoot you dead in the head.” The person looks back toward Mr. Austin, then
again says to the victim, “Drop that shit off.” The victim flinches as the person fires a
shot that narrowly misses the victim’s head. The victim turns and starts to walk away as
the person continues saying, “Drop that shit off. Quit playing.” The person then shoots
the victim in the back of the head. The victim immediately falls to the ground, dropping
his phone. The person turns and fires one shot in the direction of Mr. Austin, who is
backing away towards one of the coolers. The person then jumps over the counter and
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briefly bangs on the cash register with his elbow. The person then jumps back over the
counter and flees the store. The entire incident lasts less than twenty-five seconds.
Mr. Austin testified that he had been working at the Bull Market for more than ten
years, primarily cleaning and restocking. On November 25, 2015, he was mopping the
floor and getting ready for closing. When a man came in with something covering his
face, Mr. Austin did not pay much attention to it because the weather was getting cool.
Mr. Austin believed that the person was black because he could see part of the person’s
face around his eyes. Mr. Austin then heard a voice say, “Drop it off.” Although he did
not see a gun, Mr. Austin heard a gunshot. Mr. Austin kept mopping, trying not to attract
attention to himself, while he moved toward a refrigerator for cover. He then saw the gun
when the person pointed it at him and fired. Mr. Austin hid behind one of the
refrigerators. When he looked out, he saw the person jumping over the counter and
running out of the door. Mr. Austin ran after him but did not see which way he went.
Mr. Austin then went back in the store, asked Mr. Saleh if the victim had been hit, and
saw “all this blood and stuff.”
Foad Saleh, who was sixteen at the time of trial, testified that around 11:00 p.m.
on November 25, 2015, he was riding his bike around the parking lot of the Bull Market
when he heard two or three gunshots. Foad saw a black man wearing a black hoodie and
pants come out of the store. The man was wearing a white mask over his face. The man
ran toward Arlington Avenue around the corner of the store and jumped over a small
ledge. Foad went into the store, where he saw blood on the floor and was told that his
uncle had been hurt. Foad provided a description of the suspect and his direction of
travel to the police when they arrived.
Timothy Sinclair, Sr., testified that he regularly shopped at the Bull Market. On
the night of November 25, 2015, he drove to the store in his burgundy Tahoe in order to
purchase a bag of ice and some beverages. He had parked his vehicle by the front door.
As Mr. Sinclair was placing his purchased items in the back of his vehicle, he saw a
person coming around the side of the building. The person was a black male wearing
dark-colored clothes, a hoodie, and something white across his face. Mr. Sinclair saw a
gun in the person’s hand as the person entered the store. When the person fired two shots
inside of the store, Mr. Sinclair quickly backed his vehicle into the street trying to get
away. The person then came out of the store and went around the side of the building in
the same direction from which he had come. Mr. Sinclair pulled his vehicle back into the
parking lot and called 911. The police arrived on the scene very quickly.
The first officer on the scene was Officer Kevin Livingston, who was less than a
mile away when the call came in at 10:55 p.m. Officer Livingston arrived on the scene in
less than two minutes. When he arrived, he saw “a bunch of people standing outside in
the parking lot pointing, yelling . . . [I]t was kind of chaotic.” Officer Livingston went
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inside the store and saw a man kneeling behind the counter putting pressure on the
victim’s head. The victim, who had a “pretty massive exit wound” on the upper left side
of his head, was not moving but was still making shallow “gurgling” sounds. Officer
Livingston described that “[t]here was blood, brain matter on the floor around [the
victim].” Officer Livingston checked for a pulse but could not find one.
Other officers also quickly arrived on the scene, including Lieutenant Shane
Beaver, the shift commander for the patrol division. After securing the scene, Lieutenant
Beaver obtained a description of the suspect and a direction of travel. Lieutenant Beaver
testified that there were approximately twenty officers in the area because it was shift
change, and he directed them to set up a perimeter. K9 Officer Jeremy Stines and his
dog, a German Shepherd named Pax, began to track the suspect. The dog led officers
toward an old bowling alley and a wooded area near Lion’s Field. At the top of an
incline, Pax led the officers to a shirt and a pair of pants. Pax then led them toward a
wooded area near the outfield fence of the baseball field. Officer Stines heard some
rustling in the bushes and gave a warning that he had a dog.
As Lieutenant Beaver crossed the baseball field, he spotted an individual “just
inside the wood line” near the scoreboard and the outfield fence. This person turned out
to be Defendant. Lieutenant Beaver “began to issue verbal challenges” to Defendant by
saying “something to the effect of [‘]police, come out with your hands up[.’]” Defendant
responded, “[expletive] you. You’re going to have to come in here and get me.”
Defendant had a shirt wrapped around his hand, and Lieutenant Beaver was concerned
that he was concealing a weapon. Defendant was pacing back and forth in the wood line
and shouting expletives. Lieutenant Beaver testified that Defendant said, “You might get
me, but I’m going to take one of you mother [expletive] with me,” and “you’re going to
have to kill me . . . I’m not giving up.”
Defendant was boxed in by officers. Sergeant Brandon Moss, along with Officer
Stines and Pax, got into position on the other side of the fence. They could hear the
challenges being given by Lieutenant Beaver to Defendant. Defendant then climbed over
the fence and came in their direction. Sergeant Moss shined a flashlight on Defendant
and gave verbal commands to him. Defendant refused to show his hands. Officer Stines
released Pax, who charged at Defendant and bit him on the shoulder. Both Defendant
and the dog fell to the ground. Defendant had the dog around the neck in a chokehold
and refused to let go. Officer Stines struck Defendant’s head with his gun. Defendant let
go of the dog but still refused to comply with commands to show his hands. Officer Kyle
Hamilton used his Taser to subdue Defendant. Officer Hamilton was then able to
handcuff Defendant and take him into custody. Video from Officer Hamilton’s Taser
was entered into evidence and played for the jury.
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After Defendant was taken into custody, Sergeant Moss used his dog, Kyra, to
search the area for additional evidence. Sergeant Moss located a cell phone, clothing,
and a black .38 caliber revolver. The gun was found approximately ten to fifteen yards
away and on the same side of the fence from where Defendant had been taken into
custody. The cylinder of the revolver was opened, and it contained three unfired
cartridges and three fired cartridges. Other officers on the scene also found a pair of gray
gloves, a piece of white fabric made out of a t-shirt type of material, and a set of keys.
Defendant stipulated that the cell phone found at the scene was registered to him.
Investigator Marvin Rodish, Jr., processed the crime scene at the Bull Market. He
photographed a hole in one of the coolers and a hole and an indentation in the wall
behind the counter. He found a projectile behind a package of cigarettes behind the
counter. Another projectile went through the wall behind the counter into the back office
and lodged in the sheet metal of a walk-in freezer. A third projectile was recovered from
the ceiling above a cooler inside the store.
Investigator Daniel Long testified that he was involved in the search of
Defendant’s residence. One of the keys found in the woods opened a lock on the back
door of the residence. The other key opened the door of a car parked on the street in front
of the house, which was registered to Defendant at that address. Inside Defendant’s
bedroom, Investigator Long found a white t-shirt with a section cut out of it.
Dr. Thomas Deering, a forensic pathologist for Forensic Medical Management
Services in Nashville, conducted the autopsy of the victim. The victim’s cause of death
was a gunshot wound to the head. The victim had an entrance wound on the right side of
his head behind his ear. The bullet fractured the victim’s skull and passed through his
brain before exiting on the left side of the victim’s forehead. The victim also had
gunpowder stippling on his right hand and wrist and bruises on his knuckles. Dr. Deering
was able to collect one of the larger bullet fragments that were still inside the victim’s
head. On cross-examination, Dr. Deering testified that because the bullet passed through
both sides of the victim’s brain, he “would expect that person to go immediately
unconscious” and that the victim’s death would have been quick.
Dr. Eric Warren, a former special agent with the Tennessee Bureau of
Investigation (“TBI”), testified as an expert in firearms identification. The gun found at
the scene was a RG .38 special caliber revolver. Dr. Warren test fired the gun, but the
bullets recovered from the scene were too damaged to make a definitive match.
However, Dr. Warren was able to determine that the bullets were .38 caliber and had
matching class characteristics to the recovered revolver.
Special Agent Charly Castelbuono testified as an expert witness in serology and
DNA analysis. She compared DNA samples from the victim and Defendant to items
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recovered in this case. The piece of white fabric found in the woods had a blood stain
that matched Defendant. The t-shirt found in the Defendant’s bedroom had a mixture of
DNA, with Defendant being the major contributor. Although the tests on the inside of
the right glove were inconclusive, the inside of the left glove contained a mixture of DNA
with Defendant being the major contributor. Both the hooded sweatshirt and the jeans
found in the woods also contained a mixture of DNA with Defendant being the major
contributor. Agent Castelbuono was able to obtain a partial DNA profile from swabs
taken from the gun and determined that Defendant was the major contributor.
Special Agent Rielly Lewis Gray determined that the outside of both the gray
gloves found in the woods were positive for gunshot residue. Special Agent Miranda
Gaddes compared the piece of white fabric found in the woods to the cut t-shirt found in
Defendant’s bedroom. She determined that they possessed “matching characteristics
along the fracture line to conclude that the piece of white fabric from the woods and the t-
shirt from the subject’s bedroom were joined at one time.”
At the conclusion of the State’s proof, Defendant made a motion for judgment of
acquittal. The trial court determined that the State had not established premeditation with
regard to the charge of attempted first degree murder of Lawrence Austin and reduced the
charge to attempted second degree murder. Defendant chose not to testify or present any
proof. After deliberation, the jury found Defendant guilty of premeditated first degree
murder of Ahmad Dhalai, first degree felony murder of Ahmad Dhalai, attempted
especially aggravated robbery of Ahmad Dhalai, attempted second degree murder of
Lawrence Austin, aggravated assault of Lawrence Austin, employment of a firearm
during the commission of a dangerous felony, resisting arrest, and evading arrest. The
State moved to nolle prosequi the charge for possession of a handgun by a convicted
felon, which was granted by the trial court.
II. Penalty Phase
The State entered into evidence a certified copy of a judgment in Madison County
case number 09-34, in which Defendant was convicted of aggravated robbery and
sentenced to serve eight years at 30%. The State then called Captain Jeff Fitzgerald of
the Madison County Sheriff’s Department. Captain Fitzgerald testified that he
investigated a robbery of the Riverside Express gas station and convenience store in 2008
when he was a lieutenant. Defendant turned himself in and voluntarily gave a statement
concerning his involvement in the robbery.
Alison Deaton testified that she worked at the Riverside Express convenience
store when it was robbed in 2008. The robbery occurred around 11:00 p.m., close to
closing time. Three men with their faces covered came into the store holding guns.
Defendant was identified as one of the men. Ms. Deaton testified that one of the men
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said, “Bitch, give me all your money or I’m going to shoot you in the mother[expletive]
face.” A video recording of the robbery from one of the store’s surveillance cameras was
admitted into evidence. The video shows three masked men entering the store, pointing
guns at Ms. Deaton, jumping over the counter, and taking money from the cash register.
Ali Dhalai testified as a representative for the victim’s family because the victim’s
parents lived in New York and could not travel due to their health. Mr. Dhalai testified
that the victim had seven brothers and sisters and was very close to his family. The
victim worked at his family’s store while he attended school at Jackson State Community
College. The victim was studying radiology and wanted to go into the healthcare field.
Mr. Dhalai described the victim as mild mannered and a “kind, caring, giving person.”
After the victim died, his family discovered that he gave money to several charities,
including the Red Cross and some charities that worked overseas in Africa and the
Middle East.
In mitigation, the defense called Dr. James Stanley Walker, a psychologist who
was double board certified in clinical neuropsychology and forensic psychology. Dr.
Walker testified that he evaluated Defendant and administered a comprehensive battery
of psychological tests. Dr. Walker also reviewed information from several of
Defendant’s family members. Dr. Walker diagnosed Defendant with cognitive disorder,
cannabis use disorder, post-traumatic stress disorder, and antisocial personality disorder.
Dr. Walker testified that Defendant had a “history of some intellectual
limitations.” At eight years old, Defendant’s IQ was tested at 78, which was in the 7th
percentile compared to the average child. Defendant dropped out of school in the 10th
grade. When Dr. Walker tested Defendant’s IQ in January 2017, he scored an 86, which
was in the 18th percentile. Dr. Walker testified that Defendant’s attention score was “in
the range where we would expect a person who would be severely mentally retarded to
be” and that his speed of mental processing was “quite limited.” Defendant’s work
history, which included working in a warehouse and as a fast food cook, was “consistent
with his limited cognitive skills” and never required much responsibility.
Defendant admitted that he was dependent on marijuana and had smoked an
excessive amount for years. Several other family members also had chronic substance
abuse problems and criminal histories. Defendant’s mother smoked marijuana heavily
while she was pregnant with Defendant. Defendant was abandoned by his biological
father, and his mother had “a succession of boyfriends or husbands who persistently
mistreated [Defendant] over the years.” One told Defendant to pour rubbing alcohol on
his penis so that he would scream with pain. Defendant’s mother was not very loving
and nurturing, calling Defendant names like “dumb” or “stupid.” Defendant was often in
the care of his grandmother, who was a chronic alcoholic and also mistreated him.
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Dr. Walker testified that a genetic predisposition combined with childhood trauma
led to Defendant’s developing antisocial personality disorder. Dr. Walker described
someone with antisocial personality disorder as “tend[ing] to be irresponsible . . .
reckless, impulsive, deceptive.” He testified that people with antisocial personality
disorder “are constantly getting into trouble because they violate other people[’]s rights.
They don’t obey the rules. They bend the rules. They break the rules when they have the
opportunity.”
Dr. Walker also found that Defendant’s rough childhood, in addition to the fact
that he was shot in the back as a teenager and spent seven years in prison, contributed to
his developing post-traumatic stress disorder, or PTSD. Dr. Walker explained that
Defendant did not have the classic presentation of PTSD that involves flashbacks and
reliving traumatic experiences. Instead, Dr. Walker testified that Defendant’s PTSD
manifested as emotional numbing as well as being overly suspicious of others, ready to
be mistreated or persecuted.
On cross-examination, Dr. Walker agreed that Defendant did not cooperate with
an initial evaluation at Middle Tennessee Mental Health Institute and that he was
diagnosed with malingering, which involves fabricating or exaggerating symptoms of
mental illness. Dr. Walker agreed that Defendant sought out stressful situations, like
participating in robberies, rather than avoiding them like someone with PTSD typically
might do. Dr. Walker explained that Defendant did not go into a lot of details about his
past traumas and that much of the information came from interviews with Defendant’s
family. Dr. Walker testified that at the time of this incident, Defendant had recently been
kicked out of the house he had been living in because his uncle discovered marijuana in
Defendant’s room. Defendant also joined a gang when he was younger, which would be
consistent with antisocial personality disorder. Dr. Walker explained that PTSD is not
related to either participating in or avoiding criminal activity.
The defense also called Dr. Keith Caruso, a board certified forensic psychiatrist
with special expertise in mitigation. Dr. Caruso evaluated Defendant, interviewed
Defendant and several family members, and reviewed other reports and information. Dr.
Caruso agreed that this was not a case where a mental disorder prevented Defendant from
appreciating the wrongfulness of his conduct. Dr. Caruso agreed with Dr. Walker that
Defendant fit the diagnosis for PTSD, cannabis use disorder, and antisocial personality
disorder.
Dr. Caruso explained that Defendant had a disadvantaged childhood, being
abused, neglected, and raised in poverty. Defendant had a genetic predisposition to
antisocial personality disorder and substance abuse disorder. Defendant was abandoned
by his biological father, who also had a criminal history. Defendant’s mother smoked
marijuana heavily during her pregnancy. Defendant’s mother had been abused and had
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eventually been placed in foster care, leading to what Dr. Caruso called a “generational
lack of instruction and normal coping mechanisms in his family.” Defendant and his
family moved eight times before Defendant was ten years old, creating instability.
Defendant was also exposed to violence in the community at a young age, which Dr.
Caruso explained “models violence as problem solving.” Defendant had a lower than
average intelligence as well as ADHD as a child, which negatively impacted his
performance in school.
Dr. Caruso, who had a lot of experience with PTSD as a former military
psychiatrist, explained that a person can develop PTSD by being “exposed to actual or
threatened death or serious bodily injury.” Defendant was shot in the back when he was
seventeen years old. Dr. Caruso explained that Defendant avoided talking about the
shooting and acted distressed when he was asked questions about it. However,
Defendant did mention having a flashback to the shooting when he was held at gunpoint
a year later. Defendant also talked about having dreams where people were trying to hurt
him. Dr. Caruso testified that Defendant saw the world as a threatening place and that he
became distrustful and emotionally detached. Defendant coped by binge drinking and
using marijuana. Defendant also dropped out of high school and began carrying a gun.
Defendant’s troubles with the legal system accelerated after he was shot. Defendant
spent several years in prison and had only been out for a few months at the time of this
incident. Dr. Caruso did not believe that Defendant was malingering, which he described
as someone faking or exaggerating a condition for some kind of gain, like getting out of
trouble. Dr. Caruso explained that Defendant did not try to draw attention to his
condition or use terms that he did not really understand the way a person who was
malingering might.
On cross-examination, Dr. Caruso testified that having PTSD did not prevent
Defendant from being the aggressor but instead caused him to avoid being put in the
position of the victim. Additionally, the numbing effect contributed to Defendant’s
committing crimes against other people. Dr. Caruso agreed that this was not a classic
response to having PTSD. Dr. Caruso agreed that Defendant appreciated the
wrongfulness of his conduct. Dr. Caruso agreed that Defendant made a plan to rob the
Bull Market and that he made the choice to kill someone.
In rebuttal, the State called Dr. Kimberly Brown, an associate professor in clinical
psychology and director of the Forensic Evaluation Team at Vanderbilt University. Dr.
Brown evaluated Defendant, which included interviewing both Defendant and his
mother, reviewing the records in this case, and reviewing the reports of the other experts.
Dr. Brown agreed that Defendant had antisocial personality disorder, cannabis use
disorder, and a history of ADHD. Dr. Brown did not agree that Defendant, whose IQ was
86, had borderline intellectual functioning, which applies to people with an IQ between
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70 and 80. She explained that Defendant’s IQ, although considered low-average
compared to the general population, was “pretty typical for a criminal defendant.”
Dr. Brown also did not agree that Defendant met the criteria to be diagnosed with
PTSD. Dr. Brown acknowledged that Defendant had been “exposed to several traumas,”
some of which he reported to Dr. Brown that he had never told anyone else. Dr. Brown
explained that not everyone who experiences traumatic events in their childhood
develops PTSD. Although Defendant may have experienced flashbacks or nightmares in
the past, he did not report that he was actively experiencing those types of symptoms.
Additionally, one of the tests administered to Defendant by Dr. Walker, the Trauma
Symptom Inventory, indicated that all of Defendant’s skills were in the normal range,
which was not consistent with someone who has PTSD. Rather than avoiding talking
about his past, Dr. Brown found Defendant to be very open and cooperative. While he
did minimize certain things, like the impact of his father not being in his life, Defendant
readily talked about traumas in his life and provided details. Dr. Brown did not find
Defendant to be emotionally numb and testified that he became tearful when talking
about some of his past traumas. Dr. Brown testified that Defendant’s paranoia and
hypervigilance were typical of someone facing trial for capital murder. Dr. Brown also
did not find Defendant to be emotionally distant or avoiding relationships, explaining that
he had close relationships with his mother, aunts, and several close friends. Defendant
even reported to Dr. Brown that the reason he lost his job a month before this incident
was because he quit over how his boss was treating a coworker. After his uncle kicked
him out for having marijuana, Defendant went back to living with his mother.
On cross-examination, Dr. Brown testified that she primarily focuses on forensic
evaluations to determine competency to stand trial and insanity at the time of the offense
and that capital sentencing issues make up a minority of her evaluations. Dr. Brown
agreed that Defendant tended to minimize certain things, like the impact of his father’s
absence and the abuse to which his mother was exposed. Dr. Brown agreed that
Defendant did not display any signs of malingering during her evaluation of him. Dr.
Brown testified that Defendant was diagnosed with malingering when he was evaluated
by Middle Tennessee Mental Health Institute (MTMHI) shortly after his arrest. Rather
than just being silent or uncooperative, Defendant claimed that he was hearing voices and
gave nonsensical answers to questions about his charges. Dr. Brown agreed that
Defendant had some symptoms of PTSD but not enough for a diagnosis.
Dr. Brown agreed that Defendant had antisocial personality disorder. She
explained that antisocial personality disorder has both a genetic component and an
environmental component, such as exposure to violence and other disadvantages in
childhood. Dr. Brown agreed that Defendant had a disadvantaged childhood and a
significant family history of substance abuse. Dr. Brown testified that there is a
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relationship between exposure to marijuana while in the womb and a person having
ADHD and a low IQ.
Dr. Brown found some mitigating factors in Defendant’s case, primarily
“revolv[ing] around his exposure to disadvantage, neglect and trauma.” Defendant had
two stepfathers that were abusive to his mother, and one was also abusive toward
Defendant. When Defendant was three years old, he was whipped by his stepfather,
leaving marks on Defendant. Defendant’s mother also struggled with her own issues.
She often ridiculed Defendant and called him names.
Dr. Brown testified about four major traumas that Defendant experienced. When
he was eight years old, Defendant witnessed two teenaged boys beating up a girl and saw
her bleeding from the mouth. When he was twelve years old, Defendant’s older brother
got into a serious fight and had his head stomped. Defendant tried to protect his brother
but was pushed away. His brother ended up in the hospital with his jaw wired shut.
When Defendant was seventeen years old, he was shot in the back during an argument
with a person who owed Defendant money. When he was eighteen years old, Defendant
was held at gunpoint during an attempted robbery at his friend’s house. Defendant
reported to Dr. Brown that he was more scared by this incident than when he was actually
shot because he could see the gun and had time to think about what could happen.
The trial court instructed the jury with regard to the statutory aggravating
circumstances as follows:
1. Defendant was previously convicted of one or more felonies,
other than the present charge, the statutory elements of which involve the
use of violence to the person.
The State is relying upon the crime of aggravated robbery, the
statutory elements of which involve the use of violence to the person.
2. The murder was knowingly committed, solicited, directed, or
aided by Defendant while Defendant had a substantial role in committing or
attempting to commit or was fleeing after having a substantial role in
committing or attempting to commit any especially aggravated robbery.
The trial court then instructed the jury as follows with regard to mitigating circumstances:
Tennessee law provides that in arriving at the punishment, the jury
shall consider as previously indicated any mitigating circumstances raised
by the evidence which shall -- which shall include, but are not limited to,
the following:
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1. There are choices other than sentence of death.
2. Life without parole means that Urshawn Miller will never be
released from prison.
3. If Mr. Miller is sentenced to life without possibility of parole, he
will die in prison.
4. Mr. Miller has a mother, two aunts, an uncle, a brother, a sister,
and other close family members. Mr. Miller’s execution would have a
devastating lifetime impact on all of these family members.
5. If Mr. Miller is executed, his execution will not undo the harm
suffered by Mr. Dhalai’s family, but life without parole will provide Mr.
Miller the time to reflect on Mr. Dhalai’s death for the rest of his life.
6. Mr. Miller suffers from mental disorders due to circumstances
beyond his control, including genetics, abuse, neglect, trauma, and other
upbringing and environmental factors.
7. Any other mitigating factor which is raised by the evidence
produced by either the prosecution or defense at either the guilt or
sentencing hearing. That is, you shall consider any aspect of Defendant’s
character or record or any aspect of the circumstances of the offense
favorable to Defendant, which is supported by the evidence.
Defendant does not have the burden of proving a mitigating
circumstance. There is no requirement of jury unanimity to any particular
mitigating circumstance or that you agree on the same mitigating
circumstance.
The jury found that both aggravating circumstances outweighed any mitigating
circumstances beyond a reasonable doubt. The jury imposed a sentence of death for both
premeditated murder in Count 1 and felony murder in Count 2. The trial court merged
Count 2 into Count 1. At a later sentencing hearing, the trial court imposed a sentence of
twelve years for especially aggravated robbery, twelve years for attempted second degree
murder, six years for aggravated assault, six years for employment of a firearm during the
commission of a dangerous felony, six months for resisting arrest, and eleven months and
twenty-nine days for evading arrest. The trial court merged the aggravated assault
conviction into the attempted second degree murder conviction. The trial court ran the
felony sentences consecutively to each other but concurrently with the death sentence and
the misdemeanor sentences.
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Analysis
I. Sufficiency of the Evidence
When a defendant challenges the sufficiency of the evidence, this Court is obliged
to review that claim according to certain well-settled principles. The relevant question is
whether any rational trier of fact could have found the accused guilty of every element of
the offense beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia,
443 U.S. 307, 319 (1979); State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011). Because
the jury’s verdict replaces the presumption of innocence with one of guilt, the burden on
appeal is shifted onto Defendant to show that the evidence introduced at trial was
insufficient to support such a verdict. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002).
Thus, “‘we afford the prosecution the strongest legitimate view of the evidence as well as
all reasonable and legitimate inferences which may be drawn therefrom.’” Davis, 354
S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)). Questions
involving the credibility of witnesses and the weight and value to be given the evidence,
as well as all factual disputes raised by the evidence, are resolved by the jury as the trier
of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); State v. Pruett, 788 S.W.2d
559, 561 (Tenn. 1990). “A guilty verdict by the jury, approved by the trial court,
accredits the testimony of the witnesses for the State and resolves all conflicts in favor of
the prosecution’s theory.” Reid, 91 S.W.3d at 277 (quoting Bland, 958 S.W.2d at 659).
It is not the role of this Court to reweigh or reevaluate the evidence, nor to substitute our
own inferences for those drawn from the evidence by the trier of fact. Id. The standard
of review is the same whether the conviction is based upon direct evidence,
circumstantial evidence, or a combination of the two. State v. Dorantes, 331 S.W.3d 370,
379 (Tenn. 2011); State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009).
As relevant to this case, first degree murder is defined as either “[a] premeditated
and intentional killing of another” or “[a] killing of another committed in the perpetration
of or attempt to perpetrate any . . . robbery[.]” T.C.A. § 39-13-202(a)(1), (2). Especially
aggravated robbery is defined as “the intentional or knowing theft of property from the
person of another by violence or putting the person in fear,” which is accomplished with
a deadly weapon and the victim suffers serious bodily injury. T.C.A. §§ 39-13-401, -403.
As charged to the jury, criminal attempt is defined as follows:
A person commits criminal attempt who, acting with the kind of culpability
otherwise required for the offense: . . . .
(2) Acts with intent to cause a result that is an element of the
offense, and believes the conduct will cause the result without
further conduct on the person’s part; or
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(3) Acts with intent to complete a course of action or cause a
result that would constitute the offense, under the
circumstances surrounding the conduct as the person believes
them to be, and the conduct constitutes a substantial step
toward the commission of the offense.
T.C.A. § 39-12-101(a). Second degree murder is defined as “[a] knowing killing of
another.” T.C.A. § 39-13-210(a)(1). Aggravated assault is defined as “[i]ntentionally or
knowingly caus[ing] another person to reasonably fear imminent bodily injury” by “the
use or display of a deadly weapon.” T.C.A. §§ 39-13-101(a)(2); -102(a)(1)(A)(iii). It is
an offense to employ a firearm during the commission of or attempt to commit a
dangerous felony, including attempted second degree murder. T.C.A. § 39-17-1324(b),
(i)(1)(B). Defendant does not challenge his convictions for resisting arrest or evading
arrest.
A. Identity
Defendant challenges his convictions for first degree murder, attempted especially
aggravated robbery, attempted second degree murder, aggravated assault, and
employment of a firearm during the commission of a dangerous felony on the basis that
the State did not adequately establish his identity as the perpetrator. “The identity of the
perpetrator is an essential element of any crime.” State v. Rice, 184 S.W.3d 646, 662
(Tenn. 2006). The perpetrator’s identity “may be established solely on the basis of
circumstantial evidence.” State v. Lewter, 313 S.W.3d 745, 748 (Tenn. 2010). The State
has the burden of proving the identity of Defendant as the perpetrator beyond a
reasonable doubt. State v. Sneed, 908 S.W.2d 408, 410 (Tenn. Crim. App. 1995). The
identification of Defendant as the perpetrator is a question of fact for the jury after
considering all the relevant proof. State v. Strickland, 885 S.W.2d 85, 87 (Tenn. Crim.
App. 1993) (citing State v. Crawford, 635 S.W.2d 704, 705 (Tenn. Crim. App. 1982)).
Viewed in the light most favorable to the State, the evidence at trial established
Defendant’s identity as the masked assailant at the Bull Market. Although none of the
eyewitnesses could identify Defendant, they were able to provide a description of the
suspect and a direction of travel to the police, who responded to the scene within minutes
of the shooting. Using a trained police dog, the officers were able to track the suspect to
a nearby wooded area behind a baseball field. Defendant was seen hiding in some bushes
in that wooded area, and he responded to the officers’ commands to come out with death
threats and profanity. After Defendant was taken into custody, the police found several
items in the immediate vicinity that connected Defendant to the robbery at the Bull
Market. The police found clothing that matched the clothing worn by the gunman, as
described by the witnesses and seen in a video recording from the Bull Market’s security
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cameras. The police also found a .38 caliber revolver that was consistent with the fired
projectiles recovered from the Bull Market. The revolver contained three spent shell
casings, and the assailant fired his gun three times. The police found a pair of gloves that
tested positive for gunshot residue. The police also found a piece of white cloth that was
consistent with the white mask worn by the assailant and that was determined to have
been cut from a t-shirt found in Defendant’s bedroom. The clothing, gloves, revolver,
and white cloth all contained Defendant’s DNA. From this evidence, a rational trier of
fact could conclude that Defendant’s identity as the person who shot Mr. Dhalai and
attempted to rob the Bull Market had been established beyond a reasonable doubt.
B. Premeditated First Degree Murder
With regard to his conviction for premeditated first degree murder, Defendant
contends that the State did not establish the element of premeditation beyond a
reasonable doubt. As stated above, first degree murder is defined as “[a] premeditated
and intentional killing of another.” T.C.A. § 39-13-202(a)(1). “[A] person acts
intentionally with respect to the nature of the conduct or to a result of the conduct when it
is the person’s conscious objective or desire to engage in the conduct or cause the result.”
T.C.A. § 39-11-302(a). Premeditation is defined as “an act done after the exercise of
reflection and judgment.” T.C.A. § 39-13-202(d). “[T]he intent to kill must have been
formed prior to the act itself,” but it need not “pre-exist in the mind of the accused for
any definite period of time.” Id. Additionally, at the time the accused allegedly decided
to kill, the accused must have been “sufficiently free from excitement and passion as to
be capable of premeditation.” Id.
The State must establish the element of premeditation beyond a reasonable doubt.
See State v. Sims, 45 S.W.3d 1, 7 (Tenn. 2001); State v. Hall, 8 S.W.3d 593, 599 (Tenn.
1999). Premeditation may be proved by circumstantial evidence. See, e.g., State v.
Brown, 836 S.W.2d 530, 541-42 (Tenn. 1992). Whether a killing was premeditated is a
question of fact for the jury to determine and may be inferred from the circumstances
surrounding the offense. State v. Young, 196 S.W.3d 85, 108 (Tenn. 2006); State v.
Suttles, 30 S.W.3d 252, 261 (Tenn. 2000). Factors that may support the existence of
premeditation include, but are not limited to, the use of a deadly weapon upon an
unarmed victim, the particular cruelty of the killing, the infliction of multiple wounds,
declarations by Defendant of an intent to kill, lack of provocation by the victim, failure to
aid or assist the victim, evidence of procurement of a weapon, preparations before the
killing for concealment of the crime, destruction and secretion of evidence of the killing,
and calmness immediately after the killing. State v. Kiser, 284 S.W.3d 227, 268 (Tenn.
2009); State v. Leach, 148 S.W.3d 42, 53-54 (Tenn. 2004); State v. Davidson, 121
S.W.3d 600, 615 (Tenn. 2003); Bland, 958 S.W.2d at 660. This Court has also noted that
the jury may infer premeditation from any planning activity by Defendant before the
killing. State v. Bordis, 905 S.W.2d 214, 222 (Tenn. Crim. App. 1995) (citation omitted).
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Shooting a retreating victim may also be circumstantial evidence of premeditation. State
v. Dickson, 413 S.W.3d 735, 746 (Tenn. 2013).
Viewed in the light most favorable to the State, the evidence at trial established
that Defendant committed premeditated first degree murder. Defendant made
preparations to conceal his identity prior to the killing by cutting a mask from a t-shirt.
Defendant used a deadly weapon against an unarmed victim. Immediately prior to the
shooting, Defendant threatened that he would “shoot [the victim] dead in the head” if the
victim did not comply with Defendant’s demands. Defendant fired one shot that
narrowly missed the victim’s head. The victim had turned away from Defendant when
Defendant fatally shot the victim in the back of the head, just like he threatened that he
would. Rather than rendering aid to the victim, Defendant fired another shot at the
witness, Mr. Austin, before jumping over the counter and attempting to open the cash
register. When he was unsuccessful, Defendant jumped back over the counter and fled
the scene. Defendant attempted to conceal evidence of his involvement in the shooting
by abandoning his revolver, his make-shift mask, and his incriminating clothing in the
wooded area behind a baseball field, where he was apprehended by police. All of these
circumstances support a finding by a rational trier of fact that Defendant premeditated the
killing of Ahmad Dhalai.
C. Felony Murder
With regard to his conviction for first degree felony murder, Defendant argues that
the killing of the victim occurred prior to the attempted robbery and that “the connection
between the demand for money and the killing is not close enough to support a
conviction for” felony murder. As stated above, first degree felony murder is defined as
“[a] killing of another committed in the perpetration of or attempt to perpetrate any . . .
robbery[.]” T.C.A. § 39-13-202(a)(2). “In order for a killing to occur ‘in the perpetration
of’ the felony, the killing must be ‘done in pursuance of the unlawful act, and not
collateral to it.’” State v. Kiser, 284 S.W.3d 227, 286 (Tenn. 2009) (quoting Farmer v.
State, 296 S.W.2d 879, 883 (Tenn. 1956)). The only required mental state for felony
murder is the intent to commit the underlying felony. T.C.A. § 39-13-202(b). The
Tennessee Supreme Court has held that the “intent to commit the underlying felony must
exist prior to or concurrent with the commission of the act causing the death of the
victim,” even if the actual killing occurs prior to the commission of the felony. State v.
Buggs, 995 S.W.2d 102, 107 (Tenn. 1999). “Proof that such intent to commit the
underlying felony existed before, or concurrent with, the act of killing is a question of
fact to be decided by the jury after consideration of all the facts and circumstances.” Id.
“[A] jury may reasonably infer from a defendant’s actions immediately after a killing that
Defendant had the intent to commit the felony prior to, or concurrent with, the killing.”
Id. at 108.
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 Viewed in the light most favorable to the State, the evidence at trial established
that Defendant had the intent to commit a robbery at the time he killed Ahmad Dhalai and
that the killing was in pursuance of, not collateral to, the robbery. Defendant entered the
Bull Market wearing a mask over his face and carrying a gun. As can be seen in the
video from the Bull Market’s security cameras, Defendant approached Mr. Dhalai, who
was standing behind the cash register. With his gun drawn, Defendant said “Drop that
[expletive] off or I’ma shoot you dead in the head.” When Mr. Dhalai did not
immediately comply with this demand, Defendant fired his gun at Mr. Dhalai’s head
twice, fatally wounding him. Defendant then jumped over the counter and attempted to
open the cash register. The entire incident lasted only twenty-two seconds. From this
evidence, a rational trier of fact could easily conclude that Defendant intended to commit
a robbery and that he killed Ahmad Dhalai in the perpetration of that robbery.
D. Attempted Second Degree Murder
Defendant argues that the evidence is not sufficient to sustain his conviction for
attempted second degree murder of Lawrence Austin because the shooter did not make
any threats toward Mr. Austin, only fired in Mr. Austin’s direction one time, and did not
attempt to chase Mr. Austin or shoot him again when the first shot missed. As stated
above, second degree murder is defined as “[a] knowing killing of another.” T.C.A. § 39-
13-210(a)(1). To support a conviction for attempted second degree murder, the State was
required to prove that Defendant acted with the intent to knowingly kill another and took
a substantial step toward doing so. See T.C.A. § 39-12-101. Second degree murder is a
result-of-conduct offense. State v. Ducker, 27 S.W.3d 889, 896 (Tenn. 2000). “A person
acts knowingly with respect to a result of the person’s conduct when the person is aware
that the conduct is reasonably certain to cause the result.” T.C.A. § 39-11-302(b). In
other words, “the State is not required to prove that Defendant wished to cause his
victim’s death but only that Defendant knew that his or her actions were reasonably
certain to cause the victim’s death.” State v. Brown, 311 S.W.3d 422, 432 (Tenn. 2010).
Whether a defendant acts knowingly is a question of fact for the jury and may be inferred
from the circumstances of the offense. Id. (citing State v. Inlow, 52 S.W.3d 101, 104-05
(Tenn. Crim. App. 2000)).
Viewed in the light most favorable to the State, the evidence established that
Defendant attempted to commit a knowing killing of Mr. Austin. The video from the
Bull Market’s security cameras showed that Defendant looked in Mr. Austin’s direction
prior to approaching the service counter and demanding money from Mr. Dhalai. After
shooting Mr. Dhalai, Defendant turned and fired his gun once in the direction of the
fleeing Mr. Austin. A rational juror could infer that Defendant was aware that this
conduct was reasonably certain to kill Mr. Austin had his shot not missed. This Court has
previously upheld a conviction for attempted second degree murder under similar
circumstances. State v. Abel Caberra Torres, No. M2001-01412-CCA-R3-CD, 2003 WL
- 17 -
21349921, at *5 (Tenn. Crim. App. June 10, 2003) (holding that the evidence was
sufficient to support a conviction for attempted second degree murder when Defendant
fired a gun in the direction of the victim who was not the intended victim of an attempted
robbery), no perm. app. filed. The evidence in this case is sufficient to sustain all of
Defendant’s convictions.
II. Jury Selection
Defendant argues that the trial court erred during voir dire by either excusing or
failing to excuse certain jurors for cause based on their views on the death penalty. Both
the United States and Tennessee Constitutions guarantee a criminal defendant to the right
to a trial by an impartial jury. See U.S. Const. amend. VI; Tenn. Const. art. I, § 9. Both
Defendant and the State have an interest in an impartial capital sentencing jury. State v.
Sexton, 368 S.W.3d 371, 395 (Tenn. 2012) (citing Uttecht v. Brown, 551 U.S. 1, 9
(2007)). The trial court must balance these interests by eliminating potential jurors who
would either automatically impose the death penalty or who, because of their personal
scruples, would never impose the death penalty. Id. (citing Morgan v. Illinois, 504 U.S.
719, 734 n.7 (1992)). To that end, the “proper standard for determining when a
prospective juror may be excluded for cause because of his or her views on capital
punishment . . . is whether the juror’s views would ‘prevent or substantially impair the
performance of his duties as a juror in accordance with his instructions and his oath.’”
Wainwright v. Witt, 469 U.S. 412, 424 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45
(1980)); see State v. Reid, 213 S.W.3d 792, 835-36 (Tenn. 2006). “[T]his standard . . .
does not require that a juror’s biases be proved with ‘unmistakable clarity.’” Id. Instead,
the trial court must have the “definite impression” that the prospective juror cannot
follow the law. State v. Hutchison, 898 S.W.2d 161, 167 (Tenn. 1994) (citing
Wainwright, 469 U.S. at 425-26).
The trial court’s determination of whether a juror should be excused due to his or
her views on the death penalty “shall be accorded a presumption of correctness and the
burden shall rest upon the appellant to establish by convincing evidence that that
determination was erroneous.” State v. Alley, 776 S.W.2d 506, 518 (Tenn. 1989).
“Deference to the trial court is appropriate because it is in a position to assess the
demeanor of the venire, and of the individuals who compose it, a factor of critical
importance in assessing the attitude and qualifications of potential jurors.” Uttecht, 551
U.S. at 9.
However, any error by the trial court in either excusing or failing to excuse a
potential juror is harmless unless the jury who actually heard the case was not fair and
impartial. State v. Howell, 868 S.W.2d 238, 248 (Tenn. 1993). “The failure to correctly
excuse a juror for cause is grounds for reversal only if Defendant exhausts all of his
peremptory challenges and an incompetent juror is forced upon him.” State v.
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Schmeiderer, 319 S.W.3d 607, 633 (Tenn. 2010) (citing Ross v. Oklahoma, 487 U.S. 81,
89 (1988); State v. Jones, 789 S.W.2d 545, 549 (Tenn. 1990)). “A defendant must not
only exhaust his peremptory challenges, but he must also challenge or offer to challenge
any additional prospective juror in order to complain on appeal that the trial judge’s error
in refusing to excuse for cause rendered his jury not impartial.” State v. Irick, 762
S.W.2d 121, 125 (Tenn. 1988).
Though not raised as an issue on appeal, we note that the trial court, the parties,
and the jury questionnaire all repeatedly referred to the authorized statutory punishment
of “imprisonment for life,” Tennessee Code Annotated section 39-13-202(c)(3) as “life
with parole.” Arguably, there is no “parole” from a sentence of imprisonment for life.
“The determinate sentence for a life sentence [imprisonment for life] is sixty years, as set
forth in Tennessee Code Annotated section 40-35-501(h)(1).” Brown v. Jordan, 563
S.W.3d 196, 200 (Tenn. 2018). For first degree murder committed on or after July 1,
1995, as in the case sub judice, 100% of the sentence of sixty years must be served. It is
axiomatic that when a defendant’s sentence is fully served, that defendant must be
released with no further restraint or supervision, unless otherwise statutorily authorized,
as in certain sex crimes offenders who remain under community supervision for life, that
begins “immediately upon the expiration of the term of imprisonment imposed upon the
person by the court or upon the person’s release from regular parole supervision,
whichever first occurs.” T.C.A. § 39-13-524(c). However, a person convicted of a
murder which occurs on or after July 1, 1995, and who receives a sentence of
imprisonment for life, can be granted certain statutorily authorized “sentence reduction
credits” up to nine years. T.C.A. § 40-35-501(i)(1). Thus, if such an inmate obtains the
maximum number of allowable sentence reduction credits, he will obtain credit for
service of the entire sixty-year sentence after having been incarcerated for fifty-one years.
See T.C.A. § 41-21-236 (“‘sentence credits’ includes any credit, whether called that or
not, that results in a reduction of the amount of time an inmate must serve on the original
sentence or sentences.”) Thus, a person convicted after July 1, 1995, and who receives a
sentence of imprisonment for life will never be on parole. When that person has actually
served the determinate sentence of sixty years (comprising years actually incarcerated
plus time credited by sentence reduction credits) he is released. “Life imprisonment
without possibility of parole,” Tennessee Code Annotated section 39-13-202(c)(2) is a
statutory definition of a sentence created by the Tennessee General Assembly for the
situation when a convicted defendant literally serves a sentence in the custody of the
Tennessee Department of Correction, day for day, for the remainder of his life.
Notwithstanding the use of this misnomer that there is a sentence of “life with parole,”
for purposes of clarity we will describe the proceedings in the trial court using the same
misnomer used in the trial court.
In this case, the potential jurors completed questionnaires several weeks prior to
trial that contained questions designed to elicit their views on the three possible
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punishments for first degree murder: life, life without parole, and death. Most of the jury
selection process was comprised of individual voir dire, wherein counsel for both parties
as well as the trial court could ask the potential jurors more detailed questions. After
each potential juror was questioned, the trial court would ask whether either party wished
to challenge the juror for cause and would then rule accordingly. On appeal, Defendant
argues that the trial court erred in denying his challenges for cause with respect to three
potential jurors – Juror Robinson, Juror Little, and Juror Graves – forcing Defendant to
use peremptory challenges to remove them. Additionally, Defendant argues that the trial
court erred in granting the State’s challenges for cause over Defendant’s objection with
respect to three potential jurors – Juror Eads, Juror Milhorn, and Juror Sesti. Finally,
Defendant argues that the trial court erred in denying his challenge for cause with respect
to Juror Crum after Defendant had exhausted all of his peremptory challenges, resulting
in a jury that was not fair and impartial.
A. Potential Jurors Not Removed For Cause
Prospective Juror Robinson wrote on his questionnaire that he did not believe that
life without the possibility of parole was an appropriate punishment because of the cost of
keeping someone imprisoned. In response to a question about that comment, Juror
Robinson stated, “I believe in the Bible and I just think we need to go ahead with the
death penalty in some cases like that.” However, he also stated that he could fairly
consider both life and life without parole as possible punishments and that the death
penalty was “absolutely not” appropriate in all cases. In response to defense counsel’s
questions, Juror Robinson stated that he believed the death penalty was the appropriate
punishment if the killing was premeditated and the person had “malice in their heart”;
however, he would not consider a killing during a robbery of a store to be a premeditated
act. Juror Robinson stated that in considering the appropriate punishment, he would take
into account “the circumstances and the background of the person.” Juror Robinson
reiterated that he would listen to the proof, follow the law, and fairly consider all three
punishments. The trial court found that Juror Robinson “would properly follow the law”
and “would properly consider all sentencing options.” Defendant has not established by
convincing evidence that the trial court abused its discretion in not excusing Mr.
Robinson for cause.
Potential Juror Little stated that she was familiar with the prosecutor because her
brother worked for the District Attorney’s Office as a child support investigator and her
husband was a retired officer from the Jackson Police Department. This Court has held
that the “relationship of jurors to people connected with law enforcement . . . does not
give rise to an inherently prejudicial situation in and of itself.” State v. Taylor, 669
S.W.2d 694, 699 (Tenn. Crim. App. 1983). Juror Little stated that she may have a
potential hardship with being sequestered due to her responsibility caring for her elderly
mother but that she could “probably work it out if [she] had to.” Juror Little also
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informed the court that she was taking various prescribed pain medications. She stated
that she might be uncomfortable with sitting for long periods of time but that her ability
to concentrate would not be impeded. Whether a juror should be excused due to either
health or hardship is also within the discretion of the trial court. Cf. State v. H.R. Hester,
No. E2006-01904-CCA-R3-DD, 2009 WL 275760, at *19 (Tenn. Crim. App. Feb. 5,
2009), aff’d and remanded, 324 S.W.3d 1 (Tenn. 2010).
With regard to her views on the death penalty, Juror Little wrote on her
questionnaire that she had “no problem with it” and that it could be the appropriate
punishment in “some cases.” Juror Little stated that she would fairly consider life
without parole. On her questionnaire, Juror Little wrote that she believed there should be
“no parole” for “taking life.” However, in response to the State’s question, she stated that
“[i]t’s possible” she would fairly consider life with parole depending on the
circumstances of the offense and the background of Defendant. She reiterated that she
would fairly consider all three forms of punishment. The trial court found that Juror
Little’s medications did not appear to be “affecting her mentally as far as decisions” and
that the jurors would be provided with comfortable chairs to sit in. Additionally, the trial
court found that Juror Little could be a fair and impartial juror in considering the possible
punishments. Defendant has not established by convincing evidence that the trial court
abused its discretion in not excusing Juror Little for cause.
Prospective Juror Graves stated that she was personally familiar with the District
Attorney because he had gone to school with her daughters and that she had known him
since he was in the sixth grade. She did not believe that her familiarity with him would
affect her view of the case, but she “would trust him” because she knew his character and
reputation. Juror Graves wrote on her questionnaire that she was unsure if she would be
able to devote her full attention to this case because of her husband’s health. She
explained during voir dire that he was a diabetic and that he was still breaking in a new
insulin pump that had not yet been properly regulated, which could lead to a potentially
life-threatening situation if she were not there when he might have hypoglycemia during
the night. She stated that she did not trust her husband to properly regulate his pump
while she was sequestered and that she did not have any other family member nearby that
would be able to check on him.
With regard to her opinion on the death penalty, Juror Graves wrote on her
questionnaire that it “depends on the crime and the evidence.” She also indicated that she
agreed with the statement “Although I do not believe that the death penalty ever ought to
be imposed, as long as the law provides for it, I could impose it if I believed it was
warranted in a particular case, depending on the evidence, the law, and what I learned
about Defendant.” Juror Graves stated that she did “believe in the death penalty, but
under certain circumstances” and agreed that she would fairly consider it among the
sentencing options. Juror Graves stated that she had previously been on a jury in a
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capital case in the 1980s. She recalled that the jury deliberated a long time because the
evidence was largely circumstantial. She stated that she initially was in favor of
imposing the death penalty, but the jury ultimately imposed a sentence of life without
parole due to the circumstantial nature of the evidence. Juror Graves said that she had a
tendency to faint at the sight of blood and that she might pass out if she viewed graphic
photographs or video; however, she was able to glance at the photographs admitted in the
prior trial and stated that she would try her best to view the video in this case. Juror
Graves stated that she was “[p]robably” inclined to impose the death penalty for
premeditated murder but that she “would have to weigh everything that’s presented[.]”
Although she wrote on her questionnaire that life with parole might be an appropriate
punishment if Defendant had been rehabilitated, Ms. Graves stated during voir dire that
she had “vacillated with it” and that ultimately she did not believe that life with parole
was an appropriate punishment. However, Ms. Graves stated that she would fairly
consider life with parole “[i]f that’s the letter of the law.” She agreed that her preference
would be to impose the death penalty unless there was some lingering doubt about
Defendant’s guilt, but she agreed that she would fairly consider each of the sentencing
options.
Defendant challenged Juror Graves for cause, citing her tendency to faint at the
sight of blood, her inclination toward the death penalty, and her husband’s health. The
trial court found that Juror Graves’ responses indicated that the prior capital jury on
which she served “considered all options” before imposing a sentence of life without
parole. The trial court found that Juror Graves was “qualified to serve” because “[s]he
indicated she would fairly consider all sentencing options.” Defendant has not
established by convincing evidence that the trial court abused its discretion in not
excusing Juror Graves for cause due to her views on the death penalty. We note that the
trial court did not address the potential hardship related to Juror Graves’ husband’s health
and the potentially life-threatening situation that could occur if she were to be
sequestered for the length of the trial. However, Defendant did not raise this as an error
on appeal, potentially waiving the issue. See Tenn. R. App. P. 36(a). Moreover, even if
the trial court abused its discretion in not excusing Juror Graves for this reason, any error
is harmless unless Defendant can establish that the jury that actually heard his case was
not fair and impartial. See Howell, 868 S.W.2d at 248.
B. Potential Jurors Removed For Cause Over Defendant’s Objection
Potential Juror Eads wrote on his questionnaire that he believed the death penalty
was “fair for the crime” and that he would fairly consider all three forms of punishment.
Juror Eads acknowledged that he accidentally circled two responses to a question asking
which statement best reflected his beliefs about the death penalty, one of which stated “I
believe that the death penalty is the appropriate form of punishment in some murder
cases. I could return a verdict of death if I believed it was warranted in a particular
- 22 -
case . . .” while the other stated “Although I do not believe that the death penalty ever
ought to be imposed, as long as the law provides for it, I could impose it if I believed it
was warranted in a particular case . . . .” Juror Eads clarified that he believed “that it
never ought to be imposed.” Juror Eads also stated that he was confused by the question
that asked him to rate his willingness to impose the death penalty on a scale of 1 to 10.
On his questionnaire, Juror Eads rated himself a 10, indicating a person who would
always impose the death penalty, but upon questioning, Juror Eads stated “there is no
zero on there” and that he would never impose the death penalty. Juror Eads said he was
confused by the whole questionnaire.
In summarizing his beliefs, Juror Eads said, “I don’t believe anybody should be
put to death” unless they “killed several people.” Juror Eads agreed with the prosecutor
that he would not fairly consider the death penalty. In response to defense counsel’s
question, Juror Eads stated that he could consider the death penalty “[i]f the law informs
me I am supposed to consider it,” but then he immediately asked if he was being
“forc[ed] . . . into it[.]” Juror Eads stated that he probably could not consider the death
penalty in this case because Defendant did not kill multiple people on a “murderous
outrage.” Agreeing that he did not know the circumstances of this case, Juror Eads
stated, “I guess I could” consider all three forms of punishment and agreed that he did not
know what he would do about the sentence until he heard the evidence. In response to
the trial court’s attempt to clarify his position, Juror Eads stated, “I don’t know which one
to decide whether I’m for the death penalty or against it. . . . I’m confused over the whole
thing.” The State challenged Juror Eads for cause, stating that his responses were “all
over the place.” The trial court agreed and excused Juror Eads for cause over
Defendant’s objection.
Potential Juror Milhorn wrote on her questionnaire that she was “not sure about
[the] death penalty or that [she] would want that decision. [I]t would be hard and depend
on the case [and] proven facts.” She also indicated that she could never impose a
sentence of death. Upon questioning by the State, Juror Milhorn agreed that the death
penalty could be the appropriate punishment under certain circumstances but that she
could not impose it. Juror Milhorn stated that she could impose the death penalty if she
had to, explaining that “you do things in life that you don’t want to do sometimes because
that is the right thing to do.” However, given the other choices of life and life without
parole, Juror Milhorn agreed that she would disregard the death penalty. In response to
defense counsel’s questions, Juror Milhorn stated that her preference would be life
without parole but that she could consider the death penalty “if I had to and it was a
situation where it was proved.” In response to the trial court’s questions, Juror Milhorn
stated that “there [are] times, yes, that the death penalty is called for” and that she could
consider it if the person acted “intentionally and was vicious . . . or would be a threat to
someone else.” The trial court ultimately granted the State’s challenge for cause, finding
that Juror Milhorn initially stated that she could not “impose the death penalty if there
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were other options . . . [a]nd then she kind of went back and forth several times after
that.”
Potential Juror Sesti informed the parties that she had a potential hardship with
being sequestered because her fifteen-year-old son would be at home alone while her
husband was at work and that she did not have any friends or family that could help with
transportation to and from school. She said that when she spoke to her husband after
filling out the questionnaire, he told her “don’t get sequestered.” With regard to her
views on the death penalty, Juror Sesti wrote on her questionnaire, “I guess it depends on
the circumstances. I am not for it or against it” but that it “would be [her] last choice if
other punishment was available.” She also indicated that she agreed with the statement,
“Although I do not believe that the death penalty ever ought to be imposed, as long as the
law provides for it, I could impose it if I believed it was warranted in a particular case[.]”
During voir dire, Juror Sesti explained, “I don’t know that I could do the death penalty. I
don’t feel like I’m the judge[.]” She said that she did not know if she could put her name
on a verdict form imposing the death penalty and she would “[p]robably not” fairly
consider the death penalty based on her religious beliefs. In response to the trial court’s
questions, Juror Sesti kept reiterating that she did not know if she could impose the death
penalty. She said that she would change her answer on the questionnaire to the statement
that read “I believe that the death penalty is the appropriate form of punishment in some
murder cases, but I could never return a verdict of death.” She stated, “If I had to say one
way or the other, I would probably say no, but I don’t know.” The State challenged Juror
Sesti for cause, arguing that “she is either incapable or unwilling to give us an answer to
any of these questions that allow us to truly judge her ability to be an appropriate juror in
this case.” The trial court excused her for cause, finding that it was “not certain she
would be able to vote death penalty if it were warranted.”
On appeal, Defendant argues that the trial court abused its discretion in excusing
each of these jurors for cause. Defendant asserts that “[a]ny conscientious potential juror
could be conflicted about what he would do when placed in this hypothetical situation”
about imposing the death penalty. However, the supreme court has held that a juror may
be excused for cause due to “inconclusive responses” that indicate “he either would not
or could not follow the instructions of the trial court.” State v. Keen, 926 S.W.2d 727,
740 (Tenn. 1994), on reh’g (July 8, 1996). Additionally, the supreme court has affirmed
a trial court’s finding that a potential juror’s “personal reservations [with the death
penalty] . . . could have prevented or substantially impaired the performance of her
duties’” under similar circumstances where a potential juror gave “equivocal” responses
and expressed a general “unwillingness” to judge another. State v. Odom, 336 S.W.3d
541, 558-59 (Tenn. 2011) (internal quotation omitted). Defendant has not established by
convincing evidence that the trial court abused its discretion in excusing Jurors Eads,
Milhorn, and Sesti for cause.
- 24 -
C. Juror Crum
As stated above, any error on the part of the trial court in excusing or failing to
excuse a potential juror for cause is harmless unless the jury who actually heard the case
was not fair and impartial because an incompetent juror was forced upon Defendant. See
Howell, 868 S.W.2d at 248. In this case, Defendant had exhausted his peremptory
challenges before Juror Crum was seated on the panel and subjected to individual voir
dire. We note that the questionnaires of the jurors who were ultimately selected to try
this case, including Juror Crum’s, were not included in the record on appeal. However,
according to the transcript of the individual voir dire, Juror Crum wrote on her
questionnaire, “I am in favor of the death penalty if no doubt of crime committed.” She
clarified that she would want to have “[a]bsolute [sic] no doubt” because she “would not
want to put an innocent person to death.” Juror Crum agreed with the statement that she
“believe[d] that the death penalty is the appropriate form of punishment in some murder
cases and [she] could return a verdict of death if [she] believed it was warranted in a
particular case[.]” Juror Crum stated that she was not open to considering life with parole
for a premeditated murder conviction. After being told that life with parole meant that
Defendant would serve a minimum of 51 years before release, Juror Crum said that she
would consider it after hearing the evidence but that she was still “leaning more toward
one way” and did “not agree with parole.” Juror Crum explained that she believed that a
sentence of life without parole would give a person a chance for “repentance” while still
suffering a “consequence of what they did.” While she did not want “to put some
innocent person to death,” she also did not want to take the chance that someone would
be able to get “out and kill again.” In response to the trial court’s questions, Juror Crum
stated that she would consider life with parole “but it would have to be very convincing
evidence to not tell me that they didn’t need to be without parole.” She stated, “I would
take a lot of notes and I would go back and look at them and prayerfully consider wisdom
in a case that’s going to affect someone’s life.” She agreed that she would consider each
of the sentencing options “evenly” and “fairly” but that she would “lean towards the other
two.”
Defendant challenged Juror Crum for cause, arguing that her responses indicated
that “she would put [the] burden on the [D]efendant” to convince her to vote for a life
sentence with the possibility of parole. The State responded that Juror Crum stated
multiple times that she would consider all of the evidence and was willing to consider all
three forms of punishment. The trial court agreed with the State and did not excuse Juror
Crum for cause. Because Defendant had exhausted all of his peremptory challenges,
Juror Crum sat on the jury that tried the case. On appeal, Defendant argues that the trial
erred in failing to excuse Juror Crum for cause because her responses during voir dire
indicated that she “was not seriously inclined to listen to the trial court’s instructions
regarding consideration of each of the three forms of punishment” and that “she would
only favor life with parole if the [D]efendant was to repent.” However, a fair reading of
- 25 -
Juror Crum’s responses indicates that although she had a preference for a sentence of life
without parole because it provides someone a “second chance” without risking the safety
of society, she would carefully consider all of the evidence presented and would fairly
consider all three sentencing options. We note that in the transcript, the prosecutor made
reference to a physical gesture that Juror Crum made while giving her responses that
would support this interpretation. As our supreme court has said, “An assessment of the
juror’s ability to adhere to her oath made by the trial court, based upon not only the
answers to questions posed by counsel but also nonverbal responses, is owed deference.”
Odom, 336 S.W.3d at 559 (citing Uttecht, 551 U.S. at 9). The trial court clearly did not
get a “definite impression” from Juror Crum’s responses that she could not follow the
law. See Hutchison, 898 S.W.2d at 167.
Also, as a result of the jury’s imposition of death as to both convictions for
murder, any risk of unfairness to Defendant from Juror Crum sitting as a juror was
essentially removed. Her responses during voir dire indicated, according to Defendant,
that she would never vote to impose a sentence of “life with parole.” A portion of the
trial court’s jury instructions at the conclusion of the sentencing hearing is as follows:
Now, I want to go over the verdicts in this matter, which you’ll be
asked to consider, okay?
First is life imprisonment. If you do not unanimously determine
that a statutory aggravating circumstance has been proven by the State
beyond a reasonable doubt, then the sentence shall be life imprisonment.
You will write your verdict upon the enclosed form attached hereto
and make a - - and made part of this charge.
The verdict shall be, we, the jury, unanimously determine that no
statutory aggravating circumstance has been proven by the State beyond
a reasonable doubt. We, the jury, therefore, find that the sentence shall
be imprisonment for life. The verdict must be unanimous and signed by
each juror, okay? That’s the verdict of life imprisonment.
Next is life imprisonment without the possibility of parole, which
would be the next possible verdict.
If you unanimously determine that a statutory aggravating
circumstance or circumstances have been proved by the State beyond a
reasonable doubt, but that said statutory aggravating circumstance or
circumstances have not been proven by the State to outweigh any
mitigating circumstances beyond a reasonable doubt, you shall in your
- 26 -
considered discretion, sentence the Defendant either to imprisonment for
life without possibly [sic] of parole or to imprisonment for life.
In choosing between the sentences of imprisonment of life without
possibility of parole and imprisonment for life, you shall weigh and
consider the statutory aggravating circumstance or circumstances proven
by the State beyond a reasonable doubt and any mitigating circumstance
or circumstances.
In your verdict, you shall reduce to writing the statutory
aggravating circumstance or circumstances so found and shall return
your verdict upon the enclosed form attached hereto and made a part of
this charge.
The verdict should be as follows: We, the jury, unanimously find
that the State has proven the following listed statutory aggravating
circumstance or circumstances beyond a reasonable doubt.
We, the jury, unanimously find that any statutory aggravating
circumstance or circumstances do not outweigh any mitigating
circumstance or circumstances beyond a reasonable doubt. Therefore,
you shall then indicate on the enclosed verdict form either - - either of
these two: We, the jury, unanimously agree that the Defendant shall be
sentenced to imprisonment of life without possibility of parole, or we,
the jury, unanimously agree that the Defendant shall be sentenced to
imprisonment for life. The verdict must be unanimous and signed by
each juror.
And then third is the verdict of death. If you unanimously
determine that at least one statutory aggravating circumstance or several
aggravating statutory circumstances have been proven by the State
beyond a reasonable doubt and said circumstances or circumstances have
been proven by the State to outweigh any mitigating circumstances
beyond a reasonable doubt, the sentence shall be death.
The jury shall reduce to writing the statutory aggravating
circumstance or statutory aggravating circumstances so found and
signify that the State has proven beyond a reasonable doubt that the
statutory aggravating circumstance or circumstances outweigh any
mitigating circumstances.
- 27 -
The jury was instructed that it must impose “life with parole” if it found no
aggravating factor was proven beyond a reasonable doubt. If the jury found that at least
one aggravating factor was proven beyond a reasonable doubt, but this did not outweigh
mitigating factors beyond a reasonable doubt, then the jury must choose between life
without possibility of parole and “life with parole.” However, the jury found the
existence of two aggravating factors for premeditated murder and two for felony murder
(one of which is invalid by law – see below) and that the aggravating factor(s)
outweighed the mitigating factors beyond a reasonable doubt. At that point, the jury was
not permitted to even consider either life without the possibility of parole or life
imprisonment (referred to by the parties as “life with parole”). The only sentence
available was the death penalty.
Defendant has not established by convincing evidence that the trial court erred in
failing to excuse Juror Crum for cause and, therefore, has not established that the jury
that tried his case was not fair and impartial. Defendant is not entitled to relief on this
issue.
III. Video of Prior Aggravated Robbery
Prior to trial, Defendant filed a motion in limine to exclude a video recording
depicting his prior aggravated robbery of a different convenience store. Instead,
Defendant offered to stipulate that he had a prior conviction for aggravated robbery. The
trial court denied the motion in limine, and the State played the video during the penalty
phase. On appeal, Defendant argues that the similarities between the video of the prior
robbery and the video of the instant offense combined to create a “shocking effect” that
violated his right to a fair sentencing hearing. Defendant argues that the prejudice
created by the video of the prior robbery outweighed any probative value it had,
especially given that Defendant offered to concede the fact of his prior conviction and
that the underlying facts could have been proven with other evidence. Defendant argues
that the admission of the video “likely caused the jury to give undue weight to the
aggravating factor regarding [Defendant’s] prior crime of violence.” Defendant asserts
that “[t]he State’s sole purpose for admitting the video was to inflame the passions of the
jury and elicit feelings of contempt and horror towards the [Defendant].”
A trial court’s decision to admit evidence is reviewed for an abuse of discretion.
State v. James, 81 S.W.3d 751, 759 (Tenn. 2002). A trial court abuses its discretion by
applying an incorrect legal standard, reaching a decision that is illogical or unreasonable,
or basing its decision on a clearly erroneous assessment of the evidence. State v.
McCaleb, 582 S.W.3d 179, 186 (Tenn. 2019) (quoting Lee Med., Inc. v. Beecher, 312
S.W.3d 515, 524 (Tenn. 2010)). This standard of review “does not permit an appellate
court to substitute its judgment for that of the trial court.” Id. (citing State v. Harbison,
539 S.W.3d 149, 159 (Tenn. 2018)).
- 28 -
The admissibility of evidence during a capital sentencing hearing is governed by
Tennessee Code Annotated section 39-13-204(c), which states that “[a]ny such evidence
that the court deems to have probative value on the issue of punishment may be received,
regardless of its admissibility under the rules of evidence.” As relevant to the issue
herein, the statute further provides:
In all cases where the state relies upon the aggravating factor that
Defendant was previously convicted of one (1) or more felonies, other than
the present charge, whose statutory elements involve the use of violence to
the person, either party shall be permitted to introduce evidence concerning
the facts and circumstances of the prior conviction. Such evidence shall not
be construed to pose a danger of creating unfair prejudice, confusing the
issues, or misleading the jury and shall not be subject to exclusion on the
ground that the probative value of the evidence is outweighed by prejudice
to either party.
Id.
“This statute expressly exempts evidence adduced in capital sentencing
proceedings from the usual evidentiary rules.” State v. Odom, 928 S.W.2d 18, 28 (Tenn.
1996). The Tennessee Supreme Court “has refrained, however, from holding that all
evidence related to punishment is admissible without further inquiry.” State v. Sims, 45
S.W.3d 1, 13 (Tenn. 2001). Instead, they have provided the following guidance:
[I]n general, § 39-13-204(c) should be interpreted to allow trial judges
wider discretion than would normally be allowed under the Tennessee
Rules of Evidence in ruling on the admissibility of evidence at a capital
sentencing hearing. The Rules of Evidence should not be applied to
preclude introduction of otherwise reliable evidence that is relevant to the
issue of punishment, as it relates to mitigating or aggravating
circumstances, the nature and circumstances of the particular crime, or the
character and background of the individual defendant. As our case history
reveals, however, the discretion allowed judges and attorneys during
sentencing in first degree murder cases is not unfettered. Our constitutional
standards require inquiry into the reliability, relevance, value, and
prejudicial effect of sentencing evidence to preserve fundamental fairness
and protect the rights of both Defendant and the victim’s family. The rules
of evidence can in some instances be helpful guides in reaching these
determinations of admissibility. Trial judges are not, however, required to
adhere strictly to the rules of evidence. These rules are too restrictive and
unwieldy in the arena of capital sentencing.
- 29 -
Id. at 14. Under the statute, trial courts should “exclude any evidence that is repugnant to
the constitutional guarantees of due process, or that would violate a defendant’s right to
confrontation or cross-examination.” State v. Berry, 141 S.W.3d 549, 564 (Tenn. 2004).
After viewing the video, the trial court found that it was reliable, relevant to the
prior violent felony aggravating circumstance, and admissible under Tennessee Code
Annotated section 39-13-204(c). Defendant’s sole argument on appeal is that the
prejudicial effect of the video of the prior robbery outweighed any probative value given
his offer to stipulate to the prior conviction. As an initial matter, we note that an offer to
stipulate to the facts depicted in the video does not diminish its probative value under the
sentencing statute the way it might under the rules of evidence during the guilt phase.
See Odom, 336 S.W.3d at 566. Moreover, Tennessee Code Annotated section 39-13-
204(c) specifically states that evidence concerning the facts and circumstances of a prior
violent felony “shall not be construed to pose a danger of creating unfair prejudice,
confusing the issues, or misleading the jury and shall not be subject to exclusion on the
ground that the probative value of the evidence is outweighed by prejudice to either
party.” The Tennessee Supreme Court has previously upheld the admission of testimony
from a victim of the prior violent felony, which may be very detailed. See Young, 196
S.W.3d at 114 n.9; State v. Cole, 155 S.W.3d 885, 906 (Tenn. 2005). Although
Defendant argues that admission of the video of the prior robbery violated his right to a
fair sentencing hearing and generally cites the federal and state constitutions, he does not
make a specific argument as to how the admission of the video violated a specific
constitutional right, such as the right to due process or the right to confront adverse
witnesses. See Berry, 141 S.W.3d at 564. Defendant has not established that the trial
court abused its discretion in admitting the video of Defendant’s prior aggravated robbery
during the capital sentencing phase.
IV. Constitutionality of Death Penalty and Lethal Injection
Defendant argues that “the death penalty in general, and lethal injection in
particular, violate the United States and Tennessee constitutions’ prohibition on cruel and
unusual punishment.” Defendant acknowledges that both the United States and
Tennessee Supreme Courts have rejected this argument. See Baze v. Rees, 553 U.S. 35,
47 (2008) (reaffirming that “capital punishment is constitutional” and upholding
Kentucky’s lethal injection protocol); Abdur’Rahman v. Parker, 558 S.W.3d 606, 618
(Tenn. 2018) (rejecting Eighth Amendment challenge to the current three-drug lethal
injection protocol); Keen v. State, 398 S.W.3d 594, 600 n.7 (Tenn. 2012) (“This Court
has held, and repeatedly affirmed, that capital punishment itself does not violate the state
and federal constitutions.”). However, Defendant urges this Court to “reconsider earlier
precedent.” We decline to do so because “we, as an intermediate appellate court, are
bound by the decisions of the Tennessee Supreme Court as to state and federal
- 30 -
constitutional questions, and the United States Supreme Court as the ultimate authority as
to federal constitutional questions.” State v. Pendergrass, 13 S.W.3d 389, 397 (Tenn.
Crim. App. 1999).
V. Mandatory Review
In this case, the jury imposed a death sentence for both the conviction for
premeditated first degree murder and the conviction for felony murder. The trial court
then merged the convictions into a single conviction and death sentence for premeditated
first degree murder. On appeal, Defendant contends that his death sentence is
disproportionate and that the aggravating factors found by the jury do not outweigh the
mitigating factors beyond a reasonable doubt.
When reviewing a conviction for first degree murder and an accompanying
sentence of death, this Court is required to review the record to determine whether the
sentence of death was imposed in any arbitrary fashion; whether the evidence supports
the jury’s finding of the statutory aggravating circumstances; whether the evidence
supports the jury’s finding that the aggravating circumstances outweigh any mitigating
circumstances; and whether the sentence of death is excessive or disproportionate to the
penalty imposed in similar cases, considering both the nature of the crime and Defendant.
See T.C.A. § 39-13-206(c)(1).
A. Whether the sentence of death was imposed in any arbitrary fashion
The death penalty is not imposed in an arbitrary fashion if Defendant’s trial “was
conducted pursuant to the procedure established in the applicable statutory provisions and
rules of criminal procedure.” Young, 196 S.W.3d at 115. A review of the record
indicates that the trial court conducted the trial according to the laws and procedures of
the State of Tennessee. The jury reached a unanimous verdict beyond a reasonable doubt
that Defendant committed the crimes for which he was charged. Additionally, the jury
reached a unanimous decision beyond a reasonable doubt that the aggravating
circumstances outweighed any mitigating circumstances. Defendant’s sentence of death
was not imposed in an arbitrary fashion. See T.C.A. § 39-13-206(c)(1)(A).
B. Whether the evidence supports the jury’s finding of statutory aggravating
circumstances
Under Tennessee Code Annotated section 39-13-206(c)(1)(B), this Court must
independently determine whether the evidence in the record supports the jury’s finding of
the statutory aggravating circumstances. See State v. Keen, 31 S.W.3d 196, 205 (Tenn.
2000). This Court must view the evidence in a light most favorable to the State and
determine whether a rational trier of fact could have found the existence of the
- 31 -
aggravating circumstances beyond a reasonable doubt. State v. Rollins, 188 S.W.3d 553,
571 (Tenn. 2006). In this case, the State presented two of the statutory aggravating
factors under Tennessee Code Annotated section 39-13-204(i):
(2) Defendant was previously convicted of one (1) or more felonies, other
than the present charge, whose statutory elements involve the use of
violence to the person; [and] . . .
(7) The murder was knowingly committed, solicited, directed, or aided by
Defendant, while Defendant had a substantial role in committing or
attempting to commit, or was fleeing after having a substantial role in
committing or attempting to commit, any first degree murder, arson, rape,
robbery, burglary, theft, kidnapping, aggravated child abuse, aggravated
child neglect, rape of a child, aggravated rape of a child, aircraft piracy, or
unlawful throwing, placing or discharging of a destructive device or
bomb[.]
The record supports the jury’s finding that Defendant was previously convicted of
a violent felony. See T.C.A. § 39-13-204(i)(2). The State admitted into evidence a
certified judgment of Defendant’s 2009 conviction for aggravated robbery in Madison
County, as well as a written statement from Defendant admitting his role in that robbery.
As discussed above, the State also admitted a video recording of that robbery, which
showed Defendant and two other men entering a convenience store wielding guns. One
of the men pointed his gun at the clerk. The Tennessee Supreme Court has held that the
“use of a deadly weapon, such as pointing a gun at the victim, constitutes violence.”
State v. McKinney, 74 S.W.3d 291, 305-06 (Tenn. 2002). Defendant does not contest that
his prior conviction for aggravated robbery constitutes a violent felony under the (i)(2)
aggravating factor.
With regard to Defendant’s conviction for premeditated first degree murder, the
record also supports the jury’s finding that the murder was committed while Defendant
had a substantial role in attempting to commit a robbery. See T.C.A. § 39-13-204(i)(7).
The killing of Mr. Dhalai occurred between Defendant’s demand for money and his
attempt to open the cash register. As to Defendant’s conviction for felony murder
however, we note that the Tennessee Supreme Court has held that this aggravating factor
cannot be applied to a conviction for felony murder. See State v. Middlebrooks, 840
S.W.2d 317, 346 (Tenn. 1992); but see State v. Howell, 868 S.W.2d 238, 259 (Tenn.
1993) (holding that such error may be deemed harmless beyond a reasonable doubt).
However, we need not determine whether the error is harmless beyond a reasonable
doubt because Defendant’s felony murder conviction and death sentence were merged
into his conviction and death sentence for premeditated first degree murder, to which this
aggravating circumstance was appropriately applied. If for some reason the premeditated
- 32 -
first degree murder is ever set aside, then this aggravating factor could not be applied to
support a sentence of death for felony murder. Thus, it is necessary to vacate application
of the aggravating factor in Tennessee Code Annotated section 39-13-204(i)(7) for the
conviction of felony murder. As noted above, since it was merged, there is no need to
determine at this time whether the error is harmless beyond a reasonable doubt.
C. Whether the evidence supports the jury’s finding that the aggravating circumstances
outweigh any mitigating circumstances
Under Tennessee Code Annotated section 39-13-206(c)(1)(C), this Court must
independently determine whether the evidence supports the jury’s finding that the
aggravating circumstances outweigh any mitigating circumstances beyond a reasonable
doubt. See Keen, 31 S.W.3d at 205. Again, this Court must view the evidence in the
light most favorable to the State to determine whether “a rational trier of fact could have
found that the aggravating circumstances outweighed the mitigating circumstances
beyond a reasonable doubt.” Berry, 141 S.W.3d at 570.
In this case, the trial court instructed the jury on the following mitigating factors:
1. There are choices other than [a] sentence of death.
2. Life without parole means that [Defendant] will never be released from
prison.
3. If [Defendant] is sentenced to life without the possibility of parole, he
will die in prison.
4. [Defendant] has a mother, two aunts, an uncle, a brother, a sister, and
other close family members. [Defendant’s] execution would have a
devastating lifetime impact on all of these family members.
5. If [Defendant] is executed, his execution will no undue [sic] the harm
suffered by Mr. Dhalai’s family, but life without parole will provide
[Defendant] the time to reflect on Mr. Dhalai’s death for the rest of his life.
6. [Defendant] suffers from mental disorders due to circumstances beyond
his control, including genetics, abuse, neglect, trauma, and other upbringing
and environmental factors.
7. Any other mitigating factor which is raised by the evidence produced by
either the prosecution or defense at either the guilt or sentencing hearing.
That is, you shall consider any aspect of Defendant’s character or record or
- 33 -
any aspect of the circumstances of the offense favorable to Defendant,
which is supported by the evidence.
During the penalty phase, Defendant presented the testimony of two experts who
opined that Defendant suffered from low intelligence, cannabis use disorder, post-
traumatic stress disorder, and antisocial personality disorder. In rebuttal, the State
presented an expert witness who agreed that Defendant had antisocial personality
disorder and cannabis use disorder but disagreed that he suffered from post-traumatic
stress disorder. The State’s expert described Defendant’s IQ as low average, which she
said was “typical for a criminal defendant or inmate.” The experts agreed that Defendant
had a disadvantaged childhood, including exposure to marijuana in the womb, poverty,
an abusive stepfather, poor performance in school, and a family history of both substance
abuse and criminal behavior. Defendant also suffered a trauma when he was shot in the
back and again when he was held at gunpoint as a teenager. However, the experts
disagreed about whether this caused Defendant to be emotionally numb and distant
towards other people. The experts did agree on the fact that Defendant was capable of
formulating and carrying out a plan to rob the Bull Market and that Defendant made a
voluntary choice to kill Mr. Dhalai.
Moreover, this was not the first time that Defendant was involved in the armed
robbery of a convenience store, as evidenced by his 2009 conviction for aggravated
robbery committed under very similar circumstances. Defendant had only been out of
prison for about six months at the time of this incident. Unlike in the prior robbery case
where Defendant cooperated with the police by providing a voluntary statement, in this
case Defendant responded with profanities and death threats when he was confronted by
the police. Viewing this evidence in the light most favorable to the State, a rational trier
of fact could have found that the aggravating circumstances outweighed any mitigating
circumstances beyond a reasonable doubt.
D. Whether the sentence of death is excessive or disproportionate to the penalty imposed
in similar cases, considering both the nature of the crime and Defendant
Finally, this Court must conduct a comparative proportionality review under
Tennessee Code Annotated section 39-13-206(c)(1)(D) in order to ensure that the death
penalty is not imposed in an arbitrary and capricious manner. Terry v. State, 46 S.W.3d
147, 163 (Tenn. 2001). This Court does not function as a “super jury” to substitute our
judgment for that of the sentencing jury. State v. Godsey, 60 S.W.3d 759, 782 (Tenn.
2001). Instead, we are to “apply a precedent-seeking method of comparative
proportionality review” to determine whether Defendant’s death sentence “‘is
disproportionate to the sentences imposed for similar crimes and similar defendants’” in
order to “‘identify and invalidate the aberrant death sentence.’” State v. Thacker, 164
S.W.3d 208, 232-33 (Tenn. 2005) (quoting Bland, 958 S.W.2d at 664).
- 34 -
The comparable cases for analysis are first degree murder cases in which the State
sought the death penalty, a capital sentencing hearing was held, and the jury determined
whether the sentence should be life imprisonment, life imprisonment with the possibility
of parole, or death. State v. Rice, 184 S.W.3d 646, 679 (Tenn. 2006). This Court must
examine “the facts and circumstances of the crime, the characteristics of Defendant, and
the aggravating and mitigating circumstances involved.” State v. Stevens, 78 S.W.3d
817, 842 (Tenn. 2002). In conducting this comparison with regard to the nature of the
crime, we generally consider
(1) the means of death; (2) the manner of death; (3) the motivation for the
killing; (4) the place of death; (5) the victim’s age, physical condition, and
psychological condition; (6) the absence or presence of premeditation; (7)
the absence or presence of provocation; (8) the absence or presence of
justification; and (9) the injury to and effect upon non-decedent victims.
State v. Rimmer, 250 S.W.3d 12, 35 (Tenn. 2008); see Rollins, 188 S.W.3d at 575. We
also compare the characteristics of Defendants, including their
(1) prior criminal record, if any; (2) age, race, and gender; (3) mental,
emotional, and physical condition; (4) role in the murder; (5) cooperation
with authorities; (6) level of remorse; (7) knowledge of the victim’s
helplessness; and (8) potential for rehabilitation.
Rimmer, 250 S.W.3d at 35; Rollins, 188 S.W.3d at 575. This case need not be identical
to other cases in every respect, nor must we determine that this case is “more or less” like
other death penalty cases. See State v. Thomas, 158 S.W.3d 361, 383 (Tenn. 2005). A
sentence is not disproportionate because other defendants have received a life sentence
under similar circumstances. State v. Carruthers, 35 S.W.3d 516, 569 (Tenn. 2000).
Rather, “a death sentence is disproportionate if a case is ‘plainly lacking in circumstances
consistent with those in cases where the death penalty has been imposed.’” State v.
Davis, 141 S.W.3d 600, 620 (Tenn. 2004) (quoting Bland, 958 S.W.2d at 668).
Defendant was twenty-six years old at the time of the instant offenses. He had one
prior conviction for aggravated robbery. Although Defendant presented evidence of his
mental condition and disadvantaged childhood, there was no indication that these
impaired his judgment or ability to control his actions. Defendant shot the victim at the
victim’s place of employment during an attempted robbery. The victim did not provoke
Defendant but simply did not comply with Defendant’s demands. Defendant also fired a
shot at Mr. Austin, causing Mr. Austin to fear for his life. Defendant did not offer
assistance to the police, and the trial court found that he expressed no remorse throughout
the trial.
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We conclude that the death sentence in this case is not excessive or
disproportionate when compared to the death penalty imposed in similar cases. The
Tennessee Supreme Court has upheld the death penalty in cases where the victim was
shot during the course of a robbery of the victim’s place of employment and Defendant
had at least one prior conviction for a violent felony. See State v. Reid, 91 S.W.3d 247,
287 (Tenn. 2002); State v. Smith, 993 S.W.2d 6, 18 (Tenn. 1999); State v. Harries, 657
S.W.2d 414 (Tenn. 1983). In State v. Howell, 868 S.W.2d 238 (Tenn. 1993), the twenty-
seven-year-old defendant murdered the clerk of a convenience store by shooting him in
the head during the course of a robbery. As in this case, Defendant did not cooperate
with the police, showed no remorse, and had previously been convicted of violent
felonies, including another robbery. The defense presented mitigation proof related to
Defendant’s childhood environment and psychological testing. The Tennessee Supreme
Court has also upheld the death penalty in cases involving defendants who presented
evidence of mitigating circumstances substantially similar to that presented by Defendant
in this case, including evidence of their backgrounds, poor childhood environments,
parents who used drugs, and similar circumstances. Odom, 336 S.W.3d at 574; Thomas,
158 S.W.3d at 383; Davis, 141 S.W.3d at 621; State v. Hines, 919 S.W.2d 573 (Tenn.
1995). The penalty imposed by the jury in the present case is not disproportionate to the
penalty imposed for similar crimes.
Conclusion
Based on the foregoing, we affirm all the judgments except those for resisting
arrest and felony murder. We note that the judgment for Count 8, resisting arrest, lists
the incorrect conviction offense. Therefore, we remand the case to the trial court to
correct the clerical error in the judgment for Count 8. Also, the trial court shall enter an
amended judgment reflecting that the aggravating factor set forth in Tennessee Code
Annotated section 39-13-204(i)(7) cannot be applied in the death sentence for the
conviction of felony murder.
____________________________________
THOMAS T. WOODALL, JUDGE
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