State of Tennessee v. Demontez D. Watkins

12/16/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
March 23, 2021 Session
STATE OF TENNESSEE v. DEMONTEZ D. WATKINS
Appeal from the Criminal Court for Davidson County
No. 2017-C-1811 Cheryl A. Blackburn, Judge
No. M2020-00035-CCA-R3-CD
The Defendant, Demontez D. Watkins, was convicted by a Davidson County Criminal
Court jury of first degree felony murder; two counts of attempted first degree premeditated
murder, a Class A felony; second degree murder, a Class A felony; attempted especially
aggravated robbery, a Class B felony; and two counts of employing a firearm in the
commission of a dangerous felony, a Class C felony. See T.C.A. §§ 39-13-202(a)(2) (2018)
(first degree murder), 39-13-210 (2014) (subsequently amended) (second degree murder);
39-13-403 (2018) (especially aggravated robbery); 39-17-1324(b)(1), (2) (2018)
(employing a firearm during the commission of a dangerous felony); 39-12-101 (2018)
(criminal attempt). The trial court merged the first degree felony murder and second degree
murder convictions and imposed an effective sentence of life plus twenty-seven years. On
appeal, the Defendant contends that: (1) the evidence is insufficient to support his
convictions, (2) the trial court erred in admitting expert testimony regarding probabilistic
genotyping regarding DNA evidence, (3) the court erred in denying his motion to suppress
his pretrial statement, (4) the court erred in admitting evidence because the chain of custody
was not adequately shown, and (5) the court erred in imposing consecutive sentencing. We
affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and D. KELLY THOMAS, JR., JJ., joined.
Martesha L. Johnson, District Public Defender; Jeffrey A. DeVasher (on appeal), Patrick
Hakes (at trial and on appeal), Kristin Neff (at trial), and Jessica Dragonetti (at trial),
Assistant District Public Defenders, for the Appellant, Demontez D. Watkins.
Herbert H. Slatery III, Attorney General and Reporter; T. Austin Watkins, Assistant
Attorney General; Glenn R. Funk, District Attorney General; Doug Thurman and David
Orlando Jones, Jr., Assistant District Attorneys General, for the appellee, State of
Tennessee.
OPINION
The Defendant’s convictions relate to the homicide and attempted especially
aggravated robbery of Reginald Ford, Sr.1 and other offenses occurring
contemporaneously. The Defendant was indicted with codefendants Davonta Jewan
Sherrill, Rolandus Latraye Denzmore, and Troyvonte Deshawn Watkins, but the Defendant
was tried separately.
At the trial, Cheressa Miller, the victim’s wife, testified that she and the victim lived
with their children in a duplex. She said the victim had two children from other
relationships. She said that on the night of August 5, 2015, the victim had been at work
and that she expected him to come home after work. She said she heard banging noises
around midnight. She said her son ran into the room and said the victim had been shot.
She said she went outside to the victim, who was lying on his back with his right foot in
his car and who had been shot in the head. She said she administered CPR and called the
police. She said that the victim was not known to carry a gun and that she did not think he
had a gun that night.
Linnea Harris testified that she and the victim had a child together and that she saw
the victim on the night of August 5, 2015. She said that after they were together, they had
a telephone conversation and that she knew he reached his house because she heard his car
door open and dinging sounds. She said that during their conversation, the victim suddenly
said, “I ain’t got nothing, I ain’t got nothing.” She said he sounded panicked. She did not
hear other voices or any threats in the background. She said she heard gunshots ten to
twelve seconds later. She said she called the victim’s cousin, Tony, and 9-1-1.
Ms. Harris testified she had never heard the names of the Defendant or the
codefendants in her conversations with the victim.
Demetria Lavender testified that in August 2015, she lived in the duplex which was
part of the same building where the victim and his family lived. She said she lived with
Derek Mitchell, who was her husband, and their three children. She said her seven-year-
old child and her thirteen-year-old child were asleep in a bedroom which had a window
facing a parking lot. She said her husband woke her about an hour after she went to bed
and asked if she had heard a noise that sounded like gunshots. She said her husband
activated their home alarm system and that she heard Ms. Miller screaming outside. Ms.
Lavender said she noticed bullet holes in the curtains, dresser, headboard, a pillow, and
1
We will refer to Mr. Ford as “the victim.” We intend no disrespect to the other individuals who were the
victims of the attempted first degree premeditated murder convictions.
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walls of the bedroom in which the seven-year old and the thirteen-year old had been
sleeping. She said hallway walls, the kitchen, and the laundry room door were also
damaged by the gunfire. Photographs of the damage in the bedroom were received as
exhibits.
Metropolitan Nashville Police Department (MNPD) Officer Chase Burnett testified
that he was dispatched to the victim’s address around 12:05 a.m. on August 6, 2015. He
said that when he arrived, he saw the victim lying on his back on the ground with one leg
“hanging out of a maroon Dodge Charger.” Officer Burnett recognized the victim as a
civilian employee of the Davidson County Sheriff’s Department. Officer Burnett said the
victim had a gunshot wound to the head and was not breathing or conscious. He said that
he and other officers found about nine shell casings about twenty feet from the victim’s
body. He identified photographs of the area where the shell casings were found, and the
photographs were received as exhibits. He agreed that he did not state in his report that the
victim’s pockets had been “turned out.”
MNPD Crime Laboratory forensic scientist Christina Dradt testified that she went
to the scene around 1:30 a.m. on August 6, 2015. She said she collected evidence and
prepared a diagram of the scene. The diagram was received as an exhibit. She said that
four cars were in a parking lot, that fourteen nine-millimeter bullet cartridge casings were
found behind a red Mustang near an alley, that another car had two bullet “strike marks,”
and that a bullet projectile was lodged in a building’s exterior wall. She said the victim lay
face-up on the driver’s side of a car with his right leg partially inside the car. She said
Officer McClendon photographed the scene, and she identified evidentiary items depicted
in the photographs. She said hair found at the scene was in a braid or dreadlock style. Ms.
Dradt said she went inside the residence, where she observed evidence of gunfire.
MNPD crime scene investigator Justin Cregan testified that he went to the scene on
August 6, 2015, where he saw a “couple” of cars in the parking lot. He said the victim was
on the driver’s side of one of the cars. He said the victim’s car and the fascia of the house
contained bullet strikes. The house’s window facing the parking lot had bullet holes.
Inside the residence, which other evidence showed to be Ms. Lavender’s, Investigator
Cregan observed two bullet projectiles, which were collected as evidence.
Metropolitan Nashville and Davidson County Medical Examiner Feng Li, M.D., an
expert in forensic biology, testified that he performed the autopsy of the victim’s body. Dr.
Li stated that a bullet entered the victim’s body at the left earlobe; traveled into the ear
canal, brain, and cerebellum; and did not exit the victim’s head. Dr. Li identified two bullet
fragments that were recovered from the victim’s head. Dr. Li said the victim had a “powder
tattoo” on the victim’s head, which was caused by a gunshot burying gunpowder in human
skin, which caused Dr. Li to conclude that the victim had suffered an intermediate range
gunshot wound. Dr. Li said he wore gloves when he removed the victim’s clothing. Dr.
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Li’s report was received as an exhibit and reflected that the victim’s cause of death was a
“gunshot wound of the head” and that the manner of death was homicide.
MNPD Crime Laboratory employee Donald Carman, an expert in firearms and
toolmark identification, testified that he examined evidentiary items collected in this case,
which included a fired metal bullet jacket, fourteen fired nine-millimeter cartridge casings,
several bullet fragments, and two nine-millimeter bullets. He said bullet fragments
recovered by the medical examiner were .40 caliber. He said that all of the nine-millimeter
cartridge casings had been fired from the same gun and noted that the bullets had been
made by two different manufacturers. He said the firing pin impressions on the casings
were consistent with their having been fired from a gun manufactured by Glock. He said
the .40-caliber bullet fragments recovered by the medical examiner had markings which
were consistent with the bullet having been fired from a Smith & Wesson gun.
MNPD Crime Laboratory DNA Analyst Julie Ellis, an expert in forensic serology
and DNA analysis, testified that she received the Defendant’s buccal swab containing his
DNA, a sample of the victim’s blood, and the victim’s pants. Ms. Ellis stated that both
front pockets and the back right pocket were “partially pulled out.” She said she swabbed
the inside of the right front pocket to collect DNA evidence. She said that after analysis of
the items by another individual in the laboratory, she prepared a disc containing data related
to the samples and the analysis.
Ms. Ellis testified that trace DNA referred to DNA evidence which was sometimes
created when a person had limited contact with a surface. She said that trace DNA evidence
might remain on a surface for a year. She said it was possible for a person to leave trace
DNA evidence on clothing. She said DNA secondary transfer may occur when a person
touches an object previously touched by another person, whereby the first person’s DNA
is transferred upon the second person’s contact with the object. She said that the crime
laboratory was accredited and that its analysts underwent proficiency testing to ensure that
they followed procedures and performed their analysis correctly. She said laboratory
documentation showed that the proper procedures were followed in the present case.
Ms. Ellis testified that she never received known DNA profiles for the codefendants.
MNPD Crime Laboratory employee Benjamin DeBlanc, an expert in forensic DNA
analysis, testified that every person, other than identical twins, had unique DNA. Relative
to the present case, he said he developed DNA profiles from the samples collected from
the Defendant and the victim. Mr. DeBlanc said he analyzed a sample from the victim’s
pants pocket and concluded that it was a mixture from at least four individuals and that it
was too complex for the Metro laboratory to determine the identity of any single
contributor. He said that another person in the laboratory reviewed his analysis and reached
the same conclusions. Mr. DeBlanc testified that the complexity of the mathematics
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involved in DNA comparisons from a sample of four or more contributors was too complex
for human calculations and that he recommended that Investigator Frank contact
Cybergenetics, a company that could complete the analysis using probabilistic genotyping
computer technology.
Jennifer Hornyak, a Cybergenetics employee and expert in forensic DNA and
probabilistic genotyping, testified that her employer was a biotechnology company that
developed “computer systems that interpret DNA.” She said the company was privately
owned and worked with both prosecutors and defense attorneys.
Ms. Hornyak testified that Cybergenetics had developed TrueAllele software, which
was used for forensic DNA analysis. She said TrueAllele was first used in a criminal case
in 2009 and that “TrueAllele results have been produced in forty-three states as well as
federal and foreign courts.” She said TrueAllele had been used to help identify remains of
2700 victims in the World Trade Center attack.
Ms. Hornyak testified that TrueAllele was based upon mathematical probabilities
that had been “around since the late 1700s” and statistical computing that had “been around
since about the 1950s,” and that the two had been applied in combination to forensic DNA
analysis for about ten years. She said that a human “can only look at so much before
[forensic DNA analysis] gets too complex” and that computers were capable of more
complex analysis. She said the ability of TrueAllele software to analyze DNA and DNA
mixtures had been tested in thirty-six validation studies, seven of which had been peer
reviewed and published in journals. She said one validation study showed the software’s
reliability for mixtures containing the DNA of up to ten unknown contributors. She said a
validity study examined the error rate and reliability of the subject of the study. She said
eight crime laboratories currently used TrueAllele software in their regular casework. She
thought about seven laboratories used the software at the time of the analysis conducted in
the present case. She said other probabilistic genotyping software products existed and did
not know Cybergenetics’ market share.
Ms. Hornyak testified that MNPD Detective Jason Frank contacted Cybergenetics
to perform DNA analysis relative to this case. Using a visual presentation, she explained
the process of DNA analysis. She said that the evidence submitted by Detective Frank was
analyzed in twenty-two DNA locations for matches against known samples. She said
TrueAllele analyzed the peaks in the data from the DNA mixture collected from the
victim’s pants pocket to determine the number of contributors and the DNA profile for
each. She said TrueAllele analyzed hundreds of thousands of possibilities to determine the
best explanation for the DNA profiles of the individual contributors to the DNA mixture.
She said that during this stage of the analysis, the DNA profiles of the known individuals
were not entered into TrueAllele. Thus, TrueAllele completed this portion of the analysis
without information regarding the DNA profiles of known individuals. She said the DNA
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profiles of the known individuals were later input into TrueAllele for comparison with the
DNA profiles identified in the TrueAllele analysis of the DNA mixture.
Ms. Hornyak testified that TrueAllele analysis showed that a match between the
DNA mixture from the pants and the Defendant’s DNA profile was 470,000 times more
probable than a coincidental match to an unrelated African-American male and that the
error rate for the Defendant’s DNA being a match was one in 6.1 million. In other words,
the odds of the DNA from the mixture identified as the Defendant’s belonging to another
person was one in 6.1 million. She said a match between the DNA from the mixture from
the pants and the victim’s DNA profile was 204 trillion times more probable than
coincidence. Ms. Hornyak said her report was reviewed by three other analysts, one of
whom was Dr. Mark Perlin, the chief scientific officer of Cybergenetics. She said
Cybergenetics did not receive known DNA profiles for anyone other than the Defendant
and the victim.
William Watson, Ph.D., a defense witness called out of order and an expert in DNA
forensic analysis, testified that he had training and experience with TrueAllele software
from his former employment as a laboratory director for Orchid Cellmark’s Nashville
office. He acknowledged that he was not an expert in probabilistic genotyping. He said
that he did not analyze the evidence in this case but that he had reviewed the MNPD Crime
Laboratory’s analysis. His review showed that the laboratory followed generally accepted
scientific principles. He concluded from his review of the data that the DNA mixture from
the khaki pants contained the DNA of at least five people. He said the laboratory’s records
reflected that an analyst initially determined the mixture contained the DNA of at least
three people and that an analyst later determined the mixture contained the DNA of at least
four people. Dr. Watson said reanalysis of complex mixtures was common. He said Mr.
DeBlanc’s report of the mixture containing the DNA of at least four people was “reported
that way . . . because of the requirement in [the MNPD Crime Laboratory] manual.” Dr.
Watson said he did not mean that Mr. DeBlanc’s analysis was flawed. Dr. Watson said
that Cybergenetics tested various “iterations” and that the testing they did, which assumed
the DNA mixture had four contributors, was “wrong.” Dr. Watson said that about thirty
percent of the DNA in the mixture was likely from a female. He said he could not identify
the number of males and number of females whose DNA was in the mixture.
Dr. Watson testified that he could not determine from his review the assumptions
made by Cybergenetics in calculating the likelihood ratio for the match between the
Defendant’s DNA and the DNA mixture from the khaki pants. He did not know whether
Cybergenetics had used a restrictive analysis method or a broad analysis method.
Dr. Watson testified that if two suspects were half-brothers, testing and obtaining a
DNA profile for both would be “the only way to determine” whether a profile from a
mixture matched one of the suspects. He said this was generally true of related individuals,
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such as cousins. He said the likelihood ratio is calculated based upon the likelihood of a
match to any unrelated individuals.
Dr. Watson testified that primary transfer DNA was left when a person touched an
object. He said that DNA could also be transferred to a second person when the second
person touched an object previously touched by a first person.
Dr. Watson testified that Dr. Perlin had “developed one of the better known software
packages for doing this type of analysis.” Dr. Watson agreed he had a degree in molecular
biology but did not have a computer science degree. He said he knew Dr. Perlin had a
computer science degree and was a medical doctor. Dr. Watson said that seven of the 200
to 300 state forensic testing laboratories in the United States used software from
Cybergenetics.
Ms. Hornyak was recalled by the State and testified that Cybergenetics used the data
it received from the MNPD Crime Laboratory using assumptions of four, five, six, and
seven contributors to the DNA mixture. She said that after reviewing the data, they
concluded that the DNA from more than four people was present and that at least six
contributors were likely. She said the likelihood ratio was generated based upon the
assumption of six contributors. She said the likelihood ratio was based upon multiple
computer “runs” for the given assumption regarding number of contributors and was the
“number in the middle from each of those independent runs.”
Codefendant Davonta Sherrill testified that he had not been promised anything in
exchange for his testimony but that he hoped the State would consider his cooperation in
the Defendant’s trial when resolving Mr. Sherrill’s charges. Mr. Sherrill said that
codefendant Troyvante Watkins and the Defendant were brothers and that Mr. Sherrill was
their cousin. Mr. Sherrill said he was not related to codefendant Denzmore. Mr. Sherrill
described his height as 6ʹ3″ and the Defendant’s height as 5ʹ0″.
Mr. Sherrill testified that on the night of the incident, which he agreed was “August
5th or 6th,” he drove a white Chrysler in which codefendant Watkins was a passenger to
the victim’s address because he and the codefendants wanted to “contact Michael’s uncle,”
whose name Mr. Sherrill did not know. Mr. Sherrill said that he had not known the victim
at the time. He said the Defendnat and codefendant Denzmore arrived at the same time in
a separate car that was “the same kind.” Mr. Sherrill said they all had handguns in their
pockets: he had a Ruger 380; the codefendant Watkins and codefendant Denzmore each
had a nine-millimeter; the Defendant had a .40-caliber. Mr. Sherrill said they arrived
around 10:00 to 11:00 p.m., that they parked in a college parking lot, that he tried to call
Michael’s uncle, and that he did not see anyone outside. Mr. Sherrill said that they walked
up a hill in an alley to “a certain spot” and that he was still unable to reach Michael’s uncle.
Mr. Sherrill said he was unable to see the parking lot that corresponded with the victim’s
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address. Mr. Sherrill said that the Defendant and codefendant Denzmore walked further
up the alley with their guns out of their pockets, that he and codefendant Watkins remained
in the “spot,” and that the Defendant and codefendant Denzmore were gone for a few
minutes. Mr. Sherrill said that he and codefendant Watkins were “basically ready to go”
because Mr. Sherrill had been unable to contact Michael’s uncle. Mr. Sherrill said that
when the Defendant and codefendant Denzmore returned, codefendant Denzmore “stated
that it was a n----- sitting in the car and to wait for them because they fixing to rob him.”
Mr. Sherrill described the Defendant as “kinda . . . like agreeing with him” when
codefendant Denzmore made the statement. Mr. Sherrill said that codefendant Denzmore
“was kind of . . . gassing it up” and that the Defendant told Mr. Sherrill and codefendant
Watkins to wait for him. Mr. Sherrill said, “We basically told them y’all b---s------.” Mr.
Sherrill said he and codefendant Watkins walked back to the car. Mr. Sherrill stated that
the Defendant and codefendant Denzmore walked up the hill a second time, that Mr.
Sherrill heard gunshots and breaking glass as he and codefendant Watkins were getting
into the car. Mr. Sherrill said he and codefendant Watkins left in the car. Mr. Sherrill said
he had not seen who fired the shots. Mr. Sherrill agreed that he did not see the Defendant
shoot a gun and kill the victim, that he did not see the Defendant go through the victim’s
pants pocket, and that he and his codefendants did not go to the scene to rob, hurt, or kill
anyone.
Mr. Sherrill agreed that he was at Hallmark Apartments, near his grandmother’s
house, on August 4, 2015. He agreed that he was at Hallmark Apartments to sell marijuana
to Mike Cotton. Mr. Sherrill was unsure if Mr. Cotton’s uncle’s name was Derek Mitchell.
When asked if Mr. Cotton was supposed to provide a gun in exchange for the marijuana,
Mr. Sherrill stated that Mr. Cotton had told Mr. Cotton’s uncle the exchange was marijuana
for a gun but that, according to Mr. Sherrill, the exchange was to be marijuana for cash.
Mr. Sherrill agreed that Mr. Cotton brought a .40-caliber Smith & Wesson gun to the
exchange. Mr. Sherrill said that it was his understanding that the gun belonged to Mr.
Cotton’s uncle.
Mr. Sherrill agreed that codefendant Denzmore was with him at Hallmark
Apartments, that codefendant Denzmore had a nine-millimeter Glock with him, and that
Mr. Cotton and Mr. Mitchell arrived. Mr. Sherrill agreed that Mr. Cotton showed him the
.40-caliber gun and asked to see the marijuana, but Mr. Sherrill denied that he stole the .40-
caliber gun. Mr. Sherrill agreed he “ended up with” the .40-caliber gun after Mr. Cotton
dropped it in a struggle. Mr. Sherrill acknowledged that he left the meeting with the
marijuana and the .40-caliber gun. He said he had seen Mr. Cotton’s uncle and another
person when Mr. Cotton ran away. Mr. Sherrill agreed that after this incident, Mr. Mitchell
threatened Mr. Sherrill’s grandmother’s house and threatened to kill Mr. Sherrill. Mr.
Sherrill agreed that Mr. Mitchell called him at least four times, that codefendant Denzmore
was with Mr. Sherrill for at least one of these calls, and that codefendant Denzmore told
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Mr. Sherrill, “I got it.” Mr. Sherrill denied calling Mr. Mitchell and stating, “[T]he murder
game is on.”
Mr. Sherrill testified that he spoke with Detective Frank on August 10, 2015. Mr.
Sherrill agreed that in the interview, he denied being “at that location.” He said that at the
time, he was trying to “save” himself because he “didn’t have nothing to do with it.” He
agreed he met with Detective Frank again on August 12, at which time he identified the
Defendant in a photograph lineup and told Detective Frank the caliber of the handgun the
Defendant had on the night of the incident. Mr. Sherrill identified the Defendant in the
courtroom.
Mr. Sherrill acknowledged that in his August 10 interview with Detective Frank, he
told Detective Frank that he “went to the deal for a .40 Smith & Wesson.” Mr. Sherrill
said, “I [just told] them what they wanted to hear so I could go.” Mr. Sherrill said he did
not take the gun from Mr. Cotton. Mr. Sherrill claimed that he picked up the gun after Mr.
Cotton dropped it. Mr. Sherrill said he did not give Mr. Mitchell and Mr. Cotton the
marijuana. Mr. Sherrill said that in the first interview, he had not told the officers that he
did not know anything about a robbery involving the .40-caliber Smith & Wesson. Mr.
Sherrill stated that he had been the victim in that situation. He said he told the police he
did not know anything about a murder and had not been at the scene. He agreed he had
been untruthful when he told the police in the first interview that codefendant Denzmore
had dropped him off “out west” and that he had been at a recording studio on the night the
victim was shot.
Mr. Sherrill testified that he was taken into custody after the August 10 interview
and that he was brought from the jail for the August 12 interview. Mr. Sherrill agreed that
in the second interview, he told Detective Frank that on August 4, the .40-caliber Smith &
Wesson “ended up on the ground” and that eventually, he got it. Mr. Sherrill agreed that
he first said in the second interview that no one had the .40-caliber Smith & Wesson from
the April 4 incident at the scene on the night of the victim’s shooting, that he later stated
he did not remember who had it, and that he eventually said the Defendant had it. Mr.
Sherrill agreed that when he was asked in the August 10 interview about $380 he had at an
unspecified time, he said that the Defendant had the money but later acknowledged he was
the person with the money. He agreed that he provided information about the guns he and
the codefendants had on the night of the victim’s shooting. Mr. Sherrill said he did not tell
the officers where to find the gun he had that night. He agreed he told the officers that the
Defendant did not carry a gun regularly. Mr. Sherrill agreed that he never told the officers
that the Defendant and codefendant Denzmore told him to “hold up” in order for the
Defendant and codefendant Denzmore to rob the victim.
Regarding the night of the victim’s shooting, Mr. Sherrill testified that he and his
codefendants went to the scene because Mr. Sherrill had a prior conversation in which Mr.
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Mitchell agreed to buy the gun Mr. Sherrill had taken from Mr. Cotton on August 4. Mr.
Sherrill said he went without the gun because he first wanted to determine whether Mr.
Mitchell was serious about the transaction. Mr. Sherrill said that Mr. Mitchell’s mother
and Mr. Sherrill’s grandmother lived in the same apartment complex and that if Mr.
Mitchell proved to be serious about the transaction, they could make the exchange at the
apartment complex.
MNPD Detective Jason Frank testified that on August 6, 2015, he went to the scene
where the victim was shot. He said he saw a red Dodge Charger with the driver’s door
open. He said the victim’s body lay outside the car except for one leg still in the car.
Detective Frank said he saw cartridge casings at the scene, bullet strike marks on a duplex,
and bullet holes in windows. He said he spoke with the victim’s wife, the victim’s son,
Mr. Mitchell, and Mr. Mitchell’s wife or girlfriend. He said Mr. Mitchell lived in one of
the duplexes. He said that in the following days, he spoke with Ms. Harris, who had dated
the victim previously.
Detective Frank testified that on August 12, 2015, he obtained the victim’s clothing,
including the khaki pants, from the medical examiner and took them to the Metro Police
Department’s property room. He said that he had not interviewed the Defendant before he
retrieved the pants and that he interviewed the Defendant on August 17.
Detective Frank testified that on August 12, 2015, codefendant Sherrill identified
the Defendant in a photograph lineup. Detective Frank said that codefendant Sherill stated
that the person he identified showed him a .40-caliber gun at the scene on the night of the
victim’s shooting.
Detective Frank testified that he interviewed codefendant Denzmore and the
Defendant on August 17, 2015. He identified a disc containing a recording of the
Defendant’s interview and a transcript, and they were received as exhibits. The recording
was played for the jury.
In the Defendant’s interview, Detective Frank told the Defendant that an eyewitness
had identified him and that the police had “some footage” from the alley. Detective Frank
stated that he wanted the Defendant to tell him what happened on August 6 and that he
believed it was related to a gun robbery on August 4. The Defendant denied that he owned
a gun and that he fired a gun or shot anyone on August 6, but he later said he shot once in
the air, heard gunshots, and ran. The Defendant agreed to provide a DNA sample. The
Defendant asked repeatedly to view the video recording that Detective Franks claimed to
have. The Defendant agreed that the “intent . . . was to go over here . . . and scare this guy
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so that he would leave Smiley2 alone . . [because] the beef was between him and Smiley
not [the Defendant] and him.”
Detective Frank acknowledged that, in an effort to make the Defendant “talk,”
Detective Frank falsely told the Defendant that a video recording of the incident existed.
Detective Frank agreed he also falsely told the Defendant that a witness had identified the
Defendant.
Detective Frank testified that he collected a DNA sample from the Defendant.
Detective Frank said he requested ballistics testing on the bullet removed from the victim’s
body during the autopsy and on cartridge casings recovered from the scene. He said that
he had information that a .40-caliber gun and a nine-millimeter gun were used during the
incident but that the weapons were not recovered during the investigation. He said that
after he learned the MNPD Crime Laboratory could not identify the four or more
individuals who contributed to the DNA mixture on the victim’s pants, he sent the
“standards” collected from the pants and the Defendant’s DNA to Cybergenetics for
analysis.
Detective Frank testified that a purse found in a trash can at the scene was
determined to be unrelated to the present case and that testing of items related to Reginald
Ford, Jr., were determined to be unrelated to the present case. Detective Frank said that no
blood was found on the victim’s car and that the investigation did not establish that the
victim had a prior relationship with or knowledge of the Defendant and the codefendants.
Detective Frank testified that the victim lived in the front of a duplex at the scene
and that Mr. Mitchell lived in the back. He agreed he saw bullet holes in the back of the
duplex and agreed that fourteen nine-millimeter cartridge casings were recovered. He
agreed that the Defendant had not fired the nine-millimeter weapon and that the victim had
been killed by a .40-caliber bullet. Detective Frank agreed that no .40-caliber casings were
recovered. He acknowledged, however, that it had been raining when the police searched
the alley at the scene, that water had run down the hill in the alley, and that they thought at
the time that they were searching for nine-millimeter casings. He agreed that he returned
to the scene later to look for .40-caliber casings but that he did not find any.
Detective Frank agreed that in the course of the investigation, he learned about the
“preceding robbery” involving “Sosa3 and Smiley” having taken a .40-caliber Smith &
Wesson gun. Detective Frank agreed that the investigation of this robbery led him to
2
Other evidence showed that codefendant Sherrill was known as Smiley.
3
Other evidence showed that Sosa was codefendant Denzmore’s nickname.
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codefendants Denzmore and Sherrill and that, to his knowledge, the Defendant had no
involvement. Detective Frank agreed that he interviewed codefendants Denzmore and
Sherrill twice before speaking to the Defendant and that he never interviewed codefendant
Watkins.
Detective Frank agreed that in codefendant Sherrill’s August 10, 2015 interview,
codefendant Sherrill made statements that Detective Watkins later determined were untrue.
Detective Watkins agreed that codefendant Sherill stated that “the original deal was trading
a Smith & Wesson .40 caliber for some marijuana.”
Detective Frank agreed that he knew the Defendant and codefendant Sherrill were
cousins and that the Defendant and codefendant Watkins were brothers. Detective Frank
agreed that he did not obtain DNA samples from codefendants Sherrill, Watkins, and
Denzmore. Detective Frank said the decision to submit the victim’s khaki pants for DNA
testing was made based upon the information received during the investigation. He said
the cartridge casings were not submitted because the act of firing a bullet results in any
DNA and fingerprint evidence on a bullet being burned away.
Rolandus Denzmore testified that he was charged as a codefendant in the present
case. He agreed that he had not been promised anything in exchange for his testimony but
hoped the prosecution would consider his cooperation.
Mr. Denzmore testified that on the night of August 5 and 6, 2015, he had been with
the Defendant, codefendant Watkins, and codefendant Sherrill at a location which other
evidence showed was on the victim’s street. Mr. Denzmore said that he drove a white
Chrysler Sebring with the Defendant as his passenger and that codefendants Sherrill and
Watkins arrived in Mr. Denzmore’s other white Chrysler Sebring. Mr. Denzmore said they
parked, saw the victim drive up the alley, talked as they sat in the cars, and waited. Mr.
Denzmore said that he, the Defendant, and codefendants Watkins and Sherrill walked up
the hill in the alley and saw the victim sitting in his car. Mr. Denzmore said that he had
not known the victim before that night. Mr. Denzmore said that on the night of the
shooting, he had a Glock 17 nine-millimeter gun, that codefendant Watkins had a nine-
millimeter handgun, that codefendant Sherrill had a .380-caliber gun, and that the
Defendant had a .40-caliber gun. Mr. Denzmore said he and the Defendant walked to the
parking area where the victim was sitting in his car. Mr. Denzmore said they had not yet
called Mr. Mitchell and that he “figured” they were going to tell the victim to go inside
before they called Mr. Mitchell.
Mr. Denzmore testified that he stood about five yards from the victim’s car and that
the Defendant, codefendant Watkins, and codefendant Sherrill stood next to him. Mr.
Denzmore said he saw a man “raise up [out of the victim’s car] and kind of lunge towards”
the Defendant. Mr. Denzmore said he heard a gunshot and saw the man and the Defendant
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“go down.” Mr. Denzmore said that he saw a porch light come on and that he “panic fired”
his nine-millimeter gun about ten times at “[t]he house.” Photograph exhibits show that
Mr. Denzmore fired multiple shots into a window of a bedroom where other evidence
showed two children were sleeping. Mr. Denzmore agreed he could have fired fourteen
times. He said he and the Defendant were the only people who fired guns that night.
Mr. Denzmore testified that after he fired his gun, he returned to his car. He said he
and the Defendant left together and went to East Nashville. He agreed that the police tried
to stop them “for something else,” that he drove fast to get away, and that they threw their
guns “out the window.” He agreed he was arrested that night. He said he did not recall
having called codefendant Sherrill from the jail to have codefendant Sherrill look for the
discarded guns, but Mr. Denzmore agreed he might have done so. He said he returned later
to look for the guns but did not find them.
Mr. Denzmore said that in a conversation with the Defendant after the incident, the
Defendant stated he “went into [the victim’s] pockets and found a lighter and a piece of
paper.” Mr. Denzmore said he had not seen the Defendant go into the victim’s pockets.
Mr. Denzmore acknowledged he had not told Detective Franks about the Defendant’s
having said he found a lighter in the victim’s pocket. Mr. Denzmore agreed that when he
met with Detective Frank a week or two later, Mr. Denzmore identified the Defendant from
a photograph lineup.
Mr. Denzmore agreed that in August 2015, he often stayed with codefendant Sherrill
in codefendant Sherrill’s grandmother’s apartment. Mr. Denzmore agreed that
codefendant Sherrill did not have a gun at the time but that codefendant Sherrill sometimes
possessed Mr. Denzmore’s nine-millimeter gun. Mr. Denzmore acknowledged that
codefendant Sherrill “probably” used Mr. Denzmore’s gun to take Mr. Cotton’s .40-caliber
Smith & Wesson gun about two days before the incident in the present case. Mr. Denzmore
agreed that he had been aware codefendant Sherrill had marijuana inside a City Gear bag.
He said he did not know the quantity of the marijuana and agreed he previously told
Detective Frank that it was less than one pound.
Regarding the prior incident involving Mr. Cotton, Mr. Denzmore agreed that he
had been at codefendant Sherrill’s grandmother’s apartment with codefendant Sherrill, that
Mr. Denzmore went outside to talk to a girl, and that Mr. Cotton arrived “to buy some
weed.” Mr. Denzmore agreed that he saw Mr. Cotton run out of the apartment and that
codefendant Sherrill came out of the apartment with Mr. Denzmore’s nine-millimeter gun
and a black and silver Smith & Wesson gun. Mr. Denzmore agreed that he saw Mr.
Mitchell “watching the whole time,” but Mr. Denzmore said he had not known Mr.
Mitchell’s identity at the time. Mr. Denzmore agreed that Mr. Mitchell was Mr. Cotton’s
uncle. Mr. Denzmore agreed that after this incident, codefendant Sherrill began receiving
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threats by telephone. Mr. Denzmore said he had not been present for the telephone calls.
Mr. Denzmore said codefendant Sherrill knew where Mr. Mitchell lived.
Mr. Denzmore testified that he, the Defendant, codefendant Sherrill, and
codefendant Watkins decided to “squash the beef” by going to Mr. Mitchell’s house. Mr.
Denzmore said they wanted to end the disagreement, that they were “[n]ot necessarily”
going to Mr. Mitchell’s house to scare Mr. Mitchell, and that they were not going to “shoot
up” the house.
Mr. Denzmore agreed that in his interviews with Detective Frank, he stated that the
victim was shot with the .40-caliber Smith & Wesson gun taken in the robbery of Mr.
Cotton, that it was not the Defendant’s gun, that the Defendant did not load it, and that the
Defendant’s fingerprints would not be on it. Mr. Denzmore agreed that codefendant
Sherrill had possessed the .40-caliber Smith & Wesson gun that night. Mr. Denzmore
acknowledged that when he shot the nine-millimeter gun, he knew he was shooting at Mr.
Mitchell’s house. Mr. Denzmore said Mr. Mitchell lived in the unit in the back of the
house, next to the alley.
Mr. Denzmore agreed that he felt pressured to provide information during his
interviews, that he was in jail at the time of the interviews, and that he wanted to go home.
He agreed that after he was charged and had posted bond in the present case, he removed
his ankle monitor and failed to appear for a court date and that he had to be captured by
“bounty hunters” about five months later. He agreed that he had been in jail without bond
since then and that he hoped his testifying would result in his release from jail.
Michael Cotton testified for the defense that in August 2015, he knew codefendants
Sherrill and Denzmore as Smiley and Sosa, respectively. Mr. Cotton said that he had a
planned transaction with codefendant Sherrill to trade Mr. Cotton’s gun for a pound of
marijuana at codefendant Sherrill’s grandmother’s house. Mr. Cotton said that after he
arrived for the transaction, codefendant Sherrill showed him marijuana, that it was less than
one pound, and that Mr. Cotton was going to walk out. Mr. Cotton said codefendant
Sherrill “put a gun to” Mr. Cotton’s stomach and said, “I’m gonna need that, Mike, I’m
gonna need that for real, come on.” Mr. Cotton said codefendant Sherrill told codefendant
Denzmore to “crack [Mr. Cotton] up side the head” because Mr. Cotton initially was not
going to surrender his .40-caliber gun. Mr. Cotton said he gave codefendant Sherrill the
gun, fled, and told his uncle what happened. Mr. Cotton said he gave codefendant Sherrill’s
telephone number to Mr. Cotton’s uncle.
After receiving the evidence, the jury found the Defendant guilty of first degree
felony murder of the victim in the commission of or attempt to commit theft, second degree
murder of the victim, attempted especially aggravated robbery of the victim, two counts of
attempted first degree premeditated murder of Ms. Mitchell’s two minor children, and two
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counts of employing a firearm in the commission of a dangerous felony. After the
sentencing hearing, the trial court merged the first degree felony murder and second degree
murder convictions. The court imposed a life sentence for first degree felony murder and
Range I sentences as follows: twenty-one years for each of the two convictions for
attempted first degree murder, six years for each of the two convictions for employing a
firearm during the commission of a dangerous felony, and ten years for the conviction for
attempted especially aggravated robbery. The court imposed the sentences for attempted
first degree premeditated murder concurrently with each other but consecutively to the first
degree felony murder sentence. It imposed the sentences for employing a firearm during
the commission of a dangerous felony concurrently with each other but consecutively to
the sentences for attempted first degree murder. It imposed a ten-year sentence for
attempted especially aggravated robbery, to be served concurrently with the first degree
felony murder sentence. The effective sentence was life plus twenty-seven years. This
appeal followed.
I
Sufficiency of the Evidence
In determining the sufficiency of the evidence, the standard of review is “whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979); see State v. Vasques, 221 S.W.3d 514, 521
(Tenn. 2007). The State is “afforded the strongest legitimate view of the evidence and all
reasonable inferences” from that evidence. Vasques, 221 S.W.3d at 521. The appellate
courts do not “reweigh or reevaluate the evidence,” and questions regarding “the credibility
of witnesses [and] the weight and value to be given the evidence . . . are resolved by the
trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see State v. Sheffield, 676
S.W.2d 542, 547 (Tenn. 1984).
“A crime may be established by direct evidence, circumstantial evidence, or a
combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see State v.
Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). “The standard of review ‘is the same whether
the conviction is based upon direct or circumstantial evidence.’” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)).
“Identity of the perpetrator is an essential element of any crime.” State v. Rice, 184
S.W.3d 646, 662 (Tenn. 2006). Circumstantial evidence alone may be sufficient to
establish the perpetrator’s identity. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002). The
identity of the perpetrator is a question of fact for the jury to determine. State v. Thomas,
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158 S.W.3d 361, 388 (Tenn. 2005). “The jury decides the weight to be given to
circumstantial evidence, and ‘[t]he inferences to be drawn from such evidence, and the
extent to which the circumstances are consistent with guilt[.]’” Rice, 184 S.W.3d at 662(quoting Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)).
A. First Degree Felony Murder & Second Degree Murder
The Defendant argues that the evidence is insufficient to support his merged
convictions for first degree felony murder and second degree murder of the victim. The
Defendant argues that the State failed to establish beyond a reasonable doubt that he was
the perpetrator of the crimes and because his convictions rest solely upon the
uncorroborated testimony of his accomplices. The Defendant also argues that the evidence
is insufficient to support his first degree felony murder conviction because the evidence
failed show that he committed the predicate felony of robbery or attempted robbery. The
record reflects, however, that the indicted predicate felony in the present case was theft or
attempted theft. We will consider the sufficiency of the evidence of the offenses of which
the Defendant was charged and convicted.
1. First Degree Felony Murder
As relevant to this appeal, first degree felony murder is “[a] killing of another
committed in the perpetration of or attempt to perpetrate any . . . theft[.]” T.C.A. § 39-13-
202(a)(2) (2018) (subsequently amended). “A person commits theft of property if, with
intent to deprive the owner of property, the person knowingly obtains or exercises control
over the property without the owner’s effective consent.” Id. § 39-14-103(a) (2018).
A person commits criminal attempt who, acting with the kind of culpability
otherwise required for the offense:
(1) Intentionally engages in action or causes a result that
would constitute an offense, if the circumstances
surrounding the conduct were as the person believes them
to be;
(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
(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
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believes them to be, and the conduct constitutes a
substantial step toward the commission of the offense.
Id. § 39-12-101(a)(1)-(3) (2018).
“[A] conviction may not be based solely upon the uncorroborated testimony of an
accomplice.” See, e.g., State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001); State v. Bigbee,
885 S.W.2d 797, 803 (Tenn. 1994); Monts v. State, 379 S.W.2d 34, 43 (Tenn. 1964),
overruled on other grounds by State v. Collier, 411 S.W.3d 886 (Tenn. 2013). In order for
accomplice testimony to be adequately corroborated:
[T]here must be some fact testified to, entirely independent of the
accomplice’s testimony, which, taken by itself, leads to the inference, not
only that a crime has been committed, but also that the defendant is
implicated in it; and this independent corroborative testimony must also
include some fact establishing the defendant’s identity. This corroborative
evidence may be direct or entirely circumstantial, and it need not be adequate,
in and of itself, to support a conviction; it is sufficient to meet the
requirements of the rule if it fairly and legitimately tends to connect the
defendant with the commission of the crime charged. It is not necessary that
the corroboration extend to every part of the accomplice’s evidence.
Bigbee, 885 S.W.2d at 803 (quoting State v. Gaylor, 862 S.W.2d 546, 552 (Tenn. Crim.
App. 1992) (citations omitted)); see Shaw, 37 S.W.3d at 903.
Viewed in the light most favorable to the State, the evidence shows that
codefendants Sherrill and Denzmore had been involved in a planned drug deal with Mr.
Cotton days before the victim’s death. An altercation occurred during the purported drug
deal, during which codefendant Sherrill took Mr. Cotton’s .40-caliber gun. Mr. Mitchell,
who was Mr. Cotton’s uncle, threatened codefendant Sherrill after the gun was taken. On
the night of the victim’s shooting, the Defendant and his codefendants went to the area
where Mr. Mitchell lived in a duplex to find Mr. Mitchell. When the Defendant and
codefendants were unable to find Mr. Mitchell, codefendant Denzmore and the Defendant
hatched a plan to rob the victim, who was seated in his car outside the duplex. The
Defendant fired a single .40-caliber bullet from the .40-caliber Smith & Wesson handgun
codefendant Sherrill had taken in the earlier purported drug deal. After the victim was on
the ground, the Defendant went through the victim’s pockets.
The record reflects that codefendants Sherrill and Denzmore testified that the
Defendant was with them during the offenses and that they, the Defendant, and codefendant
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Watkins were armed. Codefendant Sherrill testified that codefendant Denzmore stated at
the scene that he and the Defendant were going to rob a man who was sitting in a car and
that the Defendant’s mannerisms indicated the Defendant agreed to the plan. Codefendant
Sherrill stated that the Defendant told codefendants Sherrill and Watkins to wait while they
committed the robbery. Codefendant Sherrill said that he and codefendant Watkins were
walking to a car when they heard gunshots and breaking glass. Codefendant Denzmore
testified that the Defendant walked to the victim’s car, that the victim lunged at the
Defendant, and that codefendant Denzmore heard a gunshot and saw the Defendant and
the victim go down. In his pretrial statement, the Defendant admitted that he was at the
scene with his codefendants, that he was armed with a gun he obtained from codefendant
Sherrill, and that he fired a shot, despite denying that he shot the victim. The Defendant
said in his statement that he had gone to the scene because he and the codefendants wanted
to scare a man into leaving codefendant Sherrill alone. Additional evidence showed that
codefendant Sherrill had been involved in a dispute with Mr. Mitchell about a gun
codefendant Sherrill took in an encounter that he and codefendant Denzmore had with Mr.
Cotton days earlier. Mr. Mitchell lived in a duplex at the scene. Forensic evidence showed
that the Defendant’s DNA was identified as a probable match with a DNA profile collected
from the victim’s pants pocket. Codefendant Denzmore testified that the Defendant told
him after the shooting that the Defendant had gone through the victim’s pants pockets. A
forensic analyst testified that some of the victim’s pants pockets were turned out or partially
turned out. Codefendant Denzmore testified that the Defendant had a .40-caliber weapon
on the night of the incident, and remnants of a .40-caliber bullet were recovered during the
victim’s autopsy.
The testimony of codefendants Sherrill and Denzmore, which inculpated the
Defendant in a plan to rob the victim, in possessing and firing a gun, and in rifling through
the victim’s pockets, was corroborated by the DNA evidence from the victim’s pants and
the .40-caliber bullet remnants recovered during the autopsy. Although the Defendant said
in his pretrial statement that he went to the scene with the codefendants to scare Mr.
Mitchell and that he shot once in the air and fled when he heard other gunshots, the jury
was free to discredit his testimony and to credit the other evidence pointing to his guilt.
This court will not invade the province of the trier of fact by reassessing the credibility of
witnesses and reweighing the evidence. See Bland, 958 S.W.2d at 659; Sheffield, 676
S.W.2d at 547.
Viewed in the light most favorable to the State, the evidence is sufficient to show
that the Defendant possessed the intent to commit a theft and that the victim was killed
during the perpetration of or attempt to perpetrate the theft. The felony murder statute
merely requires that a defendant have the requisite intent to commit the predicate offense
and that a killing occur during the commission of the predicate offense. See T.C.A. § 39-
13-202(a)(2); State v. Buggs, 995 S.W.2d 102, 107 (Tenn. 1999). Thus, the evidence is
sufficient to support the Defendant’s conviction of first degree felony murder.
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In reaching this conclusion, we have considered the Defendant’s argument that the
evidence is insufficient to support his first degree felony murder conviction because the
trial court erred in admitting evidence of his pretrial statement and of the DNA analysis
identifying him as a probable contributor to the DNA mixture collected from the victim’s
pants pocket. For reasons stated elsewhere in this opinion, the trial court did not err in
admitting this evidence. In any event, a review of the sufficiency of the evidence
necessarily includes all of the evidence admitted at the trial, whether admitted within the
trial court’s discretion or admitted in error. See, e.g., State v. Longstreet, 619 S.W.2d 97,
100-01 (Tenn. 1981).
2. Second Degree Murder
As relevant here, second degree murder is the unlawful and knowing killing of
another. T.C.A. § 39-13-210 (2014) (subsequently amended). Viewed in the light most
favorable to the State, the evidence shows that the Defendant approached the victim and
shot him in the head at close range. The act of shooting someone in the head at intermediate
range is reasonably certain to cause the result of death. See id. § 39-11-106(a)(20) (2018)
(subsequently amended) (“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.”). For the reasons we have stated above, the rational jury could credit the evidence
that the Defendant was the person who shot the victim and that adequate corroboration
existed for the testimony of codefendants Sherrill and Denzmore.
The evidence is sufficient to support first degree felony murder and second degree
murder convictions for the homicide of the victim.
B. Attempted First Degree Premeditated Murder
Relative to his convictions for attempted first degree premeditated murder of the
two children inside the duplex, the Defendant argues that the State failed to prove beyond
a reasonable doubt that he was criminally responsible for the conduct of codefendant
Denzmore, whom the evidence shows fired multiple shots into the Mitchell residence.
Alternatively, the Defendant argues that the evidence is insufficient to show that
codefendant Denzmore committed the acts with premeditation.
First degree premeditated murder is the unlawful, intentional, and premeditated
killing of another. Id. §§ 39-13-201 (2018), 39-13-202(a)(1). In the context of first degree
murder, intent is shown if the defendant has the conscious objective or desire to cause the
victim’s death. T.C.A. § 39-11-106(a)(18) (2018) (subsequently amended) (defining
intentional as the “conscious objective or desire to engage in the conduct or cause the
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result”); State v. Page, 81 S.W.3d 781, 790-91 (Tenn. Crim. App. 2002). “It is not
necessary that the purpose to kill preexist in the mind of the accused for any definite period
of time.” T.C.A. § 39-13-202(d). The element of premeditation is a question for the jury
which may be established by proof of the circumstances surrounding the killing.” State v.
Young, 196 S.W.3d 85, 108 (Tenn. 2006). As a result, the jury “may infer premeditation
from the manner and circumstances of the killing.” State v. Jackson, 173 S.W.3d 401, 408
(Tenn. 2005); see State v. Vaughn, 279 S.W.3d 584, 595 (Tenn. Crim. App. 2008). Our
supreme court has provided a list of factors which “tend to support the existence” of
premeditation and deliberation. See Bland, 958 S.W.2d at 660. The list includes the use
of a deadly weapon upon an unarmed victim, the particular cruelty of the killing,
declarations by the defendant of an intent to kill, evidence of procurement of a weapon,
preparations before the killing for concealment of the crime, and calmness immediately
after the killing. Id. (citing State v. Brown, 836 S.W.2d 530, 541-42 (Tenn. 1992); State v.
West, 844 S.W.2d 144, 148 (Tenn. 1997)).
“Criminal responsibility, while not a separate crime, is an alternative theory under
which the State may establish guilt based upon the conduct of another.” Dorantes, 331
S.W.3d at 386 (quoting State v. Lemacks, 996 S.W.2d 166, 170 (Tenn. 1999)).
A person is criminally responsible for an offense committed by the conduct
of another, if:
...
(2) Acting with intent to promote or assist the commission of the offense, or
to benefit in the proceeds or results of the offense, the person solicits, directs,
aids, or attempts to aid another person to commit the offense[.]
T.C.A. § 39-11-402 (2018). For a defendant to be convicted of a crime under the theory
of criminal responsibility, the “evidence must establish that the defendant in some way
knowingly and voluntarily shared in the criminal intent of the crime and promoted its
commission.” Dorantes, 331 S.W.3d at 386; see State v. Maxey, 898 S.W.2d 756, 757
(Tenn. Crim. App. 1994).
Viewed in the light most favorable to the State, the evidence shows that the
Defendant and his codefendants each armed themselves with guns and went to the scene
looking for Mr. Mitchell, who was the victim’s neighbor. The Defendant and the
codefendants either planned to sell a gun to Mr. Mitchell that codefendant Sherrill had
taken from Mr. Mitchell’s nephew, Mr. Cotton, a few days earlier, or they planned to scare
Mr. Mitchell, who had endeavored upon an intimidation campaign directed at codefendant
Sherrill. Codefendant Denzmore had been present for codefendant Sherrill’s earlier
encounter with Mr. Cotton, although codefendant Denzmore had been outside the
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apartment where it occurred, and codefendant Denzmore was aware of Mr. Mitchell’s
threats to codefendant Sherrill after the gun was taken. While searching for Mr. Mitchell,
the Defendant and codefendant Denzmore saw the victim sitting in his car. Codefendant
Denzmore announced a plan to rob the victim. The Defendant indicated his agreement and
told the other codefendants to wait while he and codefendant Denzmore committed the
robbery. Codefendant Denzmore testified that he heard a gunshot, that he saw the
Defendant and the victim “go down,” that he saw a porch light come on, and that he “panic
fired” his gun about ten times at “[t]he house” but might have fired fourteen times.
Photograph exhibits show that codefendant Denzmore fired multiple shots into a window,
and other evidence showed that two children were in the bedroom. Codefendant Denzmore
testified that he and the Defendant were the only people who fired a gun that night and that
they disposed of their weapons as they fled the scene.
From this evidence, a rational jury could conclude that codefendant Denzmore went
to the scene armed with a handgun with the intent to provide protection to codefendant
Sherrill, who planned to resell to Mr. Mitchell the gun codefendant Sherrill had recently
taken from Mr. Cotton, or with the intent to otherwise intimidate Mr. Mitchell. Once they
arrived and were unable to find Mr. Mitchell, codefendant Denzmore and the Defendant
developed the plan to rob the victim. They approached the victim, and the Defendant shot
the victim in the head. Codefendant Denzmore heard the gunshot and saw a light come on,
and he fired his gun at least ten times into an occupied bedroom in the duplex as the
Defendant went through the victim’s pockets. Although codefendant Denzmore claimed
he “panic fired” his gun, the jury could have rejected his credibility on this point and have
inferred, given codefendant Denzmore’s repeated firing into a residence that he knew was
occupied due to his having seen the light come on, that he fired the shots in order to
facilitate the Defendant’s efforts to commit a theft from the victim, to prevent the person
who turned on the light from coming outside or seeing that events transpiring outside, and
to allow himself and his companions to escape after the homicide. The jury could also
infer from the evidence that codefendant Denzmore fled the scene and threw his gun out
the window during the escape in order to conceal his involvement in the crimes he had just
committed.
The Defendant’s common intent in this endeavor is shown by the evidence that the
Defendant and the codefendants armed themselves and went to the scene to locate Mr.
Mitchell, that the Defendant agreed with and acted on codefendant Denzmore’s
announcement of a plan to rob the victim, that the Defendant told codefendants Sherrill
and Watkins to wait while the Defendant and codefendant Denzmore committed the
robbery, that the Defendant fled the scene with codefendant Denzmore after both had fired
their guns in furtherance of the criminal acts, and that the Defendant and codefendant
Denzmore discarded their weapons while fleeing together.
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The evidence is sufficient to support the Defendant’s convictions for attempted first
degree murder.
C. Attempted Especially Aggravated Robbery
In the same vein as his arguments for first degree felony murder and second degree
murder, the Defendant argues that the evidence is insufficient to support his conviction of
attempted especially aggravated robbery of the victim because the State failed to establish
his identity as the perpetrator and because the conviction rests upon uncorroborated
testimony of accomplices.
Especially aggravated robbery is defined as robbery “[a]ccomplished with a deadly
weapon . . . [w]here the victim suffers serious bodily injury.” T.C.A. 39-13-403(a)(1), (2)
(2018). Robbery is defined as the “intentional or knowing theft of property from the person
of another by violence or putting the person in fear.” Id. 39-13-401(a) (2018).
Viewed in the light most favorable to the State, the evidence shows that the
Defendant and his codefendants armed themselves and went to the scene in search of Mr.
Mitchell. Although they failed to locate him, they embarked upon an alternate plan to rob
the victim. The Defendant indicated his agreement with the plan when it was announced
by codefendant Denzmore, told the other codefendants to wait, approached the victim, shot
the victim in the head, and rifled through the victim’s pockets. As we have stated above,
the State provided sufficient evidence of the Defendant’s identity and to corroborate the
testimony of codefendants Sherrill and Denzmore. The evidence is sufficient to support
the especially aggravated robbery conviction.
D. Employing a Firearm During the Commission of a Dangerous Felony
The Defendant argues that the evidence is insufficient to support his convictions of
of employing a firearm in the commission of a dangerous felony because the State failed
to prove beyond a reasonable doubt that he committed the predicate offenses, attempted
first degree premeditated murder.
As relevant to this case, “It is an offense to employ a firearm or antique firearm
during the . . . [c]ommission of a dangerous felony [or] [a]ttempt to commit a dangerous
felony[.] Id. § 39-17-1324(b)(1), (2) (2018) (subsequently amended). Viewed in the light
most favorable to the State, the evidence shows that the Defendant possessed a firearm
when he acted with criminal responsibility for codefendant Denzmore’s shooting into an
occupied duplex. We have concluded previously that the evidence is sufficient to support
the Defendant’s attempted first degree murder convictions. Likewise, the evidence is
sufficient to support the convictions for employing a firearm during the commission of a
dangerous felony.
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The Defendant is not entitled to relief on this basis.
II
Admissibility of Expert Testimony
The Defendant contends that the trial court abused its discretion in denying his motion to
exclude evidence related to the DNA evidence. The record reflects that the State obtained
evidence which showed, through probabilistic genotyping DNA analysis, that the DNA
mixture collected from the victim’s pants pocket contained DNA that was 470,000 times
more likely to have come from the Defendant than from an unrelated person. The parties
engaged in substantial pretrial litigation regarding the State’s proposed evidence. The
Defendant sought exclusion of the evidence pursuant to Tennessee Rules of Evidence 104,
702, and 703; Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 573 (1993); and
McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257 (Tenn. 1997). The trial court
denied the motion to exclude the evidence. The Defendant argues in his brief that the
evidence should have been excluded because (1) probabilistic genotyping and its use of a
likelihood ratio are “not foundationally valid” and do not substantially assist the trier of
fact in understanding the evidence or determining a fact in issue, (2) the TrueAllele
software used to generate the analysis is not reliable because it was not properly validated
in this case, and (3) the probative value of the evidence was substantially outweighed by
the danger of unfair prejudice. At oral argument, the Defendant further refined his
argument. Defense counsel argued, “[The Defendant] is not arguing that probabilistic
genotyping is not valid in certain circumstances. Indeed it is.” Rather, counsel argued, the
issue before this court was how many contributors could be involved in a mixture before
the science became unreliable. The State counters that the trial court did not abuse its
discretion in admitting the evidence. Our research reflects that the question of the
admissibility of probabilistic genotyping evidence is one of first impression for a
Tennessee appellate court.
Tennessee Rule of Evidence 702 provides the following foundation for the
admission of expert testimony:
If scientific, technical, or other specialized knowledge will substantially
assist the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise.
Rule 703 provides, “The court shall disallow testimony in the form of an opinion or
inference if the underlying facts or data indicate lack of trustworthiness.” In McDaniel,
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our supreme court listed the following nonexclusive factors a trial court may consider “in
determining reliability” of proposed expert testimony:
(1) whether scientific evidence has been tested and the methodology with
which it has been tested;
(2) whether the evidence has been subjected to peer review or publication;
(3) whether a potential rate of error is known;
(4) whether . . . the evidence is generally accepted in the scientific
community; and
(5) whether the expert’s research in the field has been conducted
independent of litigation.
955 S.W.2d at 265. Our supreme court has also said that, in assessing the reliability of an
expert’s methodology, a trial court may consider the expert’s qualifications and the
connection between the expert’s knowledge and the basis of his or her opinion. See Brown
v. Crown Equip. Corp., 181 S.W.3d 268, 274-75 (Tenn. 2005). “[Q]uestions regarding the
admissibility, qualifications, relevancy and competency of expert testimony are left to the
discretion of trial court.” McDaniel, 955 S.W.2d at 263; see State v. Ballard, 855 S.W.2d
557, 562 (Tenn. 1993). An appellate court may disturb the trial court’s ruling only if the
trial court abused or arbitrarily exercised its discretion. McDaniel, 955 S.W.2d at 263-64;
see State v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000).
As regards expert evidence of DNA analysis, our legislature has recognized the
general trustworthiness and reliability of such evidence by enacting a statute providing for
its admissibility:
(a) As used in this section, unless the context otherwise requires,
“DNA analysis” means the process through which deoxyribonucleic acid
(DNA) in a human biological specimen is analyzed and compared with DNA
from another biological specimen for identification purposes.
(b)(1) In any civil or criminal trial, hearing or proceeding, the results
of DNA analysis, as defined in subsection (a), are admissible in evidence
without antecedent expert testimony that DNA analysis provides a
trustworthy and reliable method of identifying characteristics in an
individual’s genetic material upon a showing that the offered testimony
meets the standards of admissibility set forth in the Tennessee Rules of
Evidence.
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(2) Nothing in this section shall be construed as prohibiting any
party in a civil or criminal trial from offering proof that DNA analysis does
not provide a trustworthy and reliable method of identifying characteristics
in an individual’s genetic material, nor shall it prohibit a party from cross-
examining the other party’s expert as to the lack of trustworthiness and
reliability of such analysis.
(c) In any civil or criminal trial, hearing or proceeding, statistical
population frequency evidence, based on genetic or blood test results, is
admissible in evidence to demonstrate the fraction of the population that
would have the same combination of genetic markers as was found in a
specific biological specimen. For purposes of this subsection (c), “genetic
marker” means the various blood types or DNA types that an individual may
possess.
T.C.A. § 24-7-118 (2017) (formerly codified at § 24-7-117).
As we have stated, the issue of the admissibility of DNA analysis involving
probabilistic genotyping is one of first impression in Tennessee. The Defendant
acknowledges that evidence of DNA analysis is generally admissible pursuant to Code
section 24-7-118 but argues that the statute “narrowly defines” DNA analysis in a manner
that includes “‘traditional’ DNA analysis” involving comparison of a known DNA sample
with “a single-source sample or simple mixture of two individuals where one of the
contributors is known” and does not contemplate “the subsequent statistical analysis of the
[MNPD Crime Laboratory’s] findings by a computer program like TrueAllele.” We are
unpersuaded by the Defendant’s argument. The record reflects that the initial processing
of the DNA evidence was completed by the MNPD Crime Laboratory and that Mr.
DeBlanc and another, unnamed individual separately concluded that the computations
required for further analysis of the mixture were beyond human capacity and that computer
analysis was needed. Cybergenetics used TrueAllele’s established mathematical and
statistical methodology to complete the computations.
The trial court conducted lengthy hearings regarding the admissibility of the DNA
evidence developed through probabilistic genotyping. After receiving the evidence, the
court engaged in a McDaniel analysis and determined that the evidence was admissible.
We will summarize the evidence from the hearing, to the extent it is relevant to the issue
raised on appeal.
Dr. Mark Perlin, a medical doctor with Ph.D. degrees in mathematics and computer
science and the Chief Scientific Officer of Cybergenetics, testified as an expert in DNA
evidence interpretation, likelihood ratios, and computer science. He said that TrueAllele
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was a Cybergenetics “computer system that conducts a mathematical analysis using
software to derive identification information from DNA evidence” in a type of analysis
called probabilistic genotyping. Dr. Perlin testified at length about the biological
underpinnings of DNA evidence and the process of human DNA analysis. According to a
document offered as an exhibit to Dr. Perlin’s testimony,
Probabilistic genotyping refers to the use of biological modeling,
statistical theory, computer algorithms, and probability distributions to
calculate likelihood ratios (LRs) and/or infer genotypes for the DNA typing
results of forensic samples (“forensic DNA typing results”). Human
interpretation and review is required for the interpretation of forensic DNA
typing results in accordance with the FBI Director’s Quality Assurance
Standards for Forensic DNA Testing Laboratories. Probabilistic genotyping
is a tool to assist the DNA analyst in the interpretation of forensic DNA
typing results. Probabilistic genotyping is not intended to replace the human
evaluation of the forensic DNA typing results or the human review of the
output prior to reporting.
A probabilistic genotyping system is comprised of software, or
software and hardware, with analytical and statistical functions that entail
complex formulae and algorithms. Particularly useful for low-level DNA
samples (i.e., those in which the quantity of DNA for individuals is such that
stochastic effects may be observed) and complex mixtures (i.e., multi-
contributor samples, particularly those exhibiting allele sharing and/or
stochastic effects), probabilistic genotyping approaches can reduce
subjectivity in the analysis of DNA typing results. Historical methods of
mixture interpretation consider all interpreted genotype combinations to be
equally probable, whereas probabilistic approaches provide a statistical
weighting to the different genotype combinations. Probabilistic genotyping
does not utilize a stochastic threshold. Instead, it incorporates a probability
of alleles dropping out or in. In making use of more genotyping information
when performing statistical calculations and evaluating potential DNA
contributors, probabilistic genotyping enhances the ability to distinguish true
contributors and non-contributors. A higher LR is typically obtained when
evaluating a person of interest (POI) who is a true contributor to the evidence
profile, and a lower LR is typically obtained when the POI is not a true
contributor. While the absence of an allele or the presence of additional
allele(s) relative to a reference sample may support an exclusion,
probabilistic genotyping approaches allow inclusion and exclusion
hypotheses to be considered by calculating a LR in which allele drop-out and
drop-in may be incorporated.
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Scientific Working Group on DNA Analysis Methods, SWGDAM Guidelines for the
Validation of Probabilistic Genotyping Systems, at 2 (2015).
Dr. Perlin testified that validation studies regarding the reliability of TrueAllele had
been conducted by Cybergenetics, crime laboratories, or collaboratively by Cybergenetics
and crime laboratories. He said that thirty-six such studies existed, that seven had been
peer reviewed and published in journals, and that one of the peer-reviewed, published
studies had been conducted independently of any involvement by Cybergenetics. He said
that TrueAllele conformed with standards published by the Scientific Working Group on
DNA Analysis Methods (SWGDAM). Dr. Perlin said that TrueAllele and the
mathematical computation and algorithms it used were generally accepted in the scientific
community, that TrueAllele was used routinely in eight laboratories’ case work, and that
evidence derived from using TrueAllele had been the subject of “over fifteen admissibility
rulings” in courts in the United States. He said that TrueAllele’s source code was available
for review under secure conditions, that review would take about ten years, and that
validation of the software could be accomplished within one to two hours by testing the
software with known samples.
Regarding the reliability of TrueAllele to analyze mixtures containing DNA from
multiple contributors, Dr. Perlin testified that validation studies existed for mixtures
containing DNA from two, three, and four persons. He said the FBI had validated its
probabilistic genotyping system for use on mixtures containing up to five contributors. In
addition, Dr. Perlin said that a validation study for up to seven contributors had been
conducted and that publication of the study was forthcoming at the time of the hearing.
Nathaniel Adams, a Systems Engineer with Forensic Bioninformatic Services,
testified as a defense expert in computer science as applied to forensic DNA. He held a
bachelor’s degree in computer science and was working to complete his master’s degree.
He was critical of TrueAllele as not complying with the Institute of Electronic Engineers
(IEEE) verification and validation standard for software systems. He noted, as well, that a
President’s Council of Advisors on Science and Technology (PCAST) report from two
years earlier4 stated that probabilistic genotyping was appropriate for analyzing mixtures
of three or fewer DNA contributors, provided that the minor contribution was no less than
20%. Mr. Adams stated that the report said that further study was needed to establish the
propriety of using probabilistic genotyping systems on mixtures containing more than three
contributors or with lower-level contributions. Mr. Adams noted that human input
regarding the number of contributors and the choice of whether or not to apply the
differential degradation filter could affect TrueAllele’s output. In addition, Mr. Adams
expressed concern about “bugs” documented in the TrueAllele “wiki,” or “change log,”
4
The record reflects that the hearing took place in October 2018.
-27-
some of which reflected significant or critical issues with the software. He said that number
of identified bugs caused him concern that undetected bugs might exist. He advocated for
a “ground up” review of any probabilistic genotyping software to determine whether the
system operated “within its expected bounds.” Regarding TrueAllele, he acknowledged
that he had not reviewed its source code and said that the more lengthy a review, the more
productive it could be. He said that a “thorough verification and validation process”
following IEEE standards would take one and one-half to five years but that a shorter
review, “on the order of hours or days” could nevertheless be helpful.
Mr. Adams testified that, in his opinion based upon review of the material he had
been provided, which included validation studies involving DNA mixtures from four to
seven contributors, he “would question the reliability of [TrueAllele] to deliver the
underlying intent.” In his opinion, the validation studies were insufficient to ensure
reliability because little attention had been given to determining whether TrueAllele
“follow[ed] all of its claimed steps.”
Mr. Adams agreed that Dr. Perlin was “basically a world-renowned expert” in
probabilistic genotyping and that probabilistic genotyping was generally accepted in the
scientific community, with TrueAllele being among the available probabilistic genotyping
software programs.
Dr. Perlin was recalled after Mr. Adams’ testimony and stated that he was unaware
of any standards in the forensic scientific community with which Cybergenetics was
noncompliant. Dr. Perlin stated that IEEE standards were not legal or scientific standards
and that they were “created in order to facilitate communication for large software projects,
often involving thousands of programs in different locations.” He said that software
products such as TrueAllele were created by two or three programmers working closely
together. He noted, as well, that IEEE had said that its standards might not be appropriate
for smaller entities. He said that the TrueAllele bugs about which Mr. Adams had
expressed concern were identified during Cybergenetics’ internal testing of TrueAllele and
that the bugs had been resolved before the software was delivered to customers.
After receiving the testimony and the voluminous documentary and audiovisual
exhibits, the trial court entered its order denying the Defendant’s motion to exclude the
evidence. As we have stated, the court conducted an analysis pursuant to the Rules of
Evidence and McDaniel.
Our analysis begins with the question of whether the proper analysis of the question
of admissibility of probabilistic DNA evidence involves Code section 24-7-118, or whether
the statute does not apply and, instead, the full McDaniel analysis is proper. In that regard,
we observe that despite the lack of guidance in Tennessee specific to probabilistic
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genotyping evidence, our supreme court has had the opportunity to consider whether Code
section 24-7-118 applies to different scientific methods of DNA analysis.5
To date, our supreme court has resisted efforts to limit application of the DNA
admissibility statute to only certain types of DNA analysis. In applying the statute to
evidence involving polymerase chain reaction (PCR) analysis of DNA evidence, our
supreme court has said that the evidence is admissible pursuant to the statute but that the
parties “are nevertheless allowed to offer proof that DNA analysis is not trustworthy and
reliable” and that such evidence “will go to the weight, not the admissibility, of DNA
evidence.” State v. Begley, 956 S.W.2d 471, 478 (Tenn. 1997) (“For example, a party can
challenge the reliability of a particular test in any given case by a showing of sloppy
handling of samples, failure to train the personnel performing the testing, failure to follow
protocol, and the like.”); see State v. Reid, 164 S.W.3d 286, 336 (Tenn. 2005). In a case
involving mitochondrial DNA (mtDNA), the supreme court held that the plain language of
the statute compelled a conclusion that the trial court did not err in denying the defendant’s
request for a pretrial hearing on the admissibility of DNA evidence. See Scott, 33 S.W.3d
at 756-59 (“Because the very purpose of a McDaniel hearing is to determine the reliability
of scientific or technical evidence, it would make little sense for this Court to require such
a hearing for evidence that is statutorily admissible without antecedent testimony that it is
a reliable method of identification.”). A panel of this court has applied the statute to a
question of admissibility of restriction fragment length polymorphism (RFLP) DNA
analysis and associated statistical probability evidence. See State v. James Thomas
Manning, No. M2004-03035-CCA-R3-CD, 2006 WL 163636, at *3-6 (Tenn. Crim. App.
Jan. 24, 2006), perm. app. denied (Tenn. May 1, 2006).
We acknowledge that the science regarding DNA analysis is advancing. However,
the plain language of the DNA admissibility statute is clear, and our supreme court has
5
For example, in the PCR method, the DNA sample is processed with an enzyme and heating
treatment in order to “amplify” the DNA before it is compared to a known sample to determine if both
contain the same pattern. State v. Begley, 956 S.W.2d 471, 474 (Tenn. 1997). The RFLP method involves
enzymatic fractionalization of DNA molecules and comparing the length and location of the fragments
between a known sample and a specimen. Id. MtDNA analysis involves the examination of cellular
mitochondria, which comprises only a portion of a cell and is heritable from a person’s mother. State v.
Scott, 33 S.W.3d 746, 757 (Tenn. 2000). Unlike traditional DNA analysis involving a comparison of a
known sample with an unknown specimen to determine if a match between the two exists, mtDNA analysis
is more a tool of exclusion than one of inclusion because maternal relatives share the same mtDNA. Id. Y-
STR DNA analysis involves the examination of the Y chromosome, which only men have, and is identical
for all men of the same paternal lineage. Powers v. State, 343 S.W.3d, 36, 45 n.13 (Tenn. 2011) (citing
David H. Kaye, The Double Helix and the Law of Evidence, 209 (2010)).
-29-
enforced it accordingly: Evidence of DNA analysis involving comparison of a human
biological specimen with another biological specimen for identification purposes is
admissible, and no foundational testimony regarding trustworthiness and reliability is
required, provided the evidence is otherwise admissible in accord with the Tennessee Rules
of Evidence. See T.C.A. § 24-7-118(a), (b)(1). While a party may cross-examine a DNA
expert about the trustworthiness and reliability of the evidence, such evidence goes to the
weight to be afforded the evidence, not to its admissibility. See id. at (b)(2). The statute
makes no distinction as to the admissibility of various methods of DNA analysis, and to
date, our supreme court has not recognized any exceptions to our legislature’s broad rule
relative to the admissibility of DNA analysis evidence. As an intermediate appellate court,
we are compelled to follow the statutes promulgated by our legislature and are guided by
our supreme court’s prior interpretations of those statutes.
As applied to the facts of this case, Code section 24-7-118 provides for the
admissibility of DNA evidence regarding identification, and the record reflects the trial
court’s finding that the probabilistic genotyping evidence offered by the State was relevant
and material to the question of the Defendant’s identity as a perpetrator of the crimes. See
Tenn. R. Evid. 401, 402. The court’s findings addressed the requirement of Rule 702 that
the evidence must substantially assist the trier of fact. With respect to these matters, the
court stated:
Here, the Court finds the TrueAllele analysis relevant under Rule 401
because it tends to identify the Defendant as a participant in the aggravated
robbery. The State’s proposed expert, Dr. Mark Perlin, was shown to be
extensively qualified, by education and experience, in the fields of DNA
interpretation and computer science. His testimony would substantially
assist the jury to understand the complex genotyping evidence.
Although Dr. Perlin ultimately did not testify at the trial, the court accepted Cybergenetics
employee Jennifer Hornyak as an expert in forensic DNA and probabilistic genotyping at
the trial. As our supreme court has recognized, the requirement of Rule 703 that the
evidence be trustworthy has been addressed by Code section 24-7-118’s acceptance of
DNA identification evidence as trustworthy and reliable. See Begley, 956 S.W.2d at 477.
We conclude that based on our supreme court’s decisions analyzing Code section
24-7-118, probabilistic genotyping DNA analysis is “DNA analysis” encompassed by the
broad language of the statute. As a result, there is no threshold admissibility requirement
pursuant McDaniel for admission of DNA analysis which utilizes probabilistic genotyping
and otherwise meets the standards of admissibility set for in the Tennessee Rules of
Evidence. The record reflects that the court considered and made findings relative to the
relevant Rules of Evidence, and those findings are supported by the record. We conclude
that the trial court did not abuse its discretion in admitting the evidence.
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The Defendant argues that the evidence of the likelihood ratio should have been
excluded pursuant to Tennessee Rule of Evidence 403 because its probative value was
substantially outweighed by the danger of unfair prejudice. He argues that the likelihood
ratio evidence was too difficult for the jury to understand without misinterpretation. As
we have stated, the trial court found that the probabilistic genotyping evidence would
substantially assist the trier of fact, and Code section 24-7-118 provides for the
admissibility of DNA identification evidence. The record reflects that the likelihood ratio
is a component of probabilistic genotyping DNA identification evidence and that it
explains the relative strength or weakness of the association between the known sample
and the unknown mixture. Thus, it is an integral part of the probabilistic genotyping DNA
identification evidence. The question of whether the likelihood ratio evidence’s probative
value outweighs the danger of unfair prejudice is answered by the trial court’s finding that
the probabilistic genotyping evidence was relevant, probative, and would substantially
assist the trier of fact. We conclude after a review of the record and the relevant law that
Rule 403 did not bar the admission of the likelihood ratio evidence.
We note that the Defendant has not alleged that he was prevented from cross-
examining the State’s experts about the trustworthiness and reliability of the DNA
evidence. See T.C.A. § 24-7-118. In his brief, the Defendant argues that TrueAllele has
not been shown to be reliable and trustworthy for DNA analysis for complex mixtures
involving as many as seven contributors or for mixtures that may involve related persons.
The record reflects that the defense thoroughly explored these issues at the trial, both on
cross-examination of the State’s witnesses and through the testimony of a defense expert.
As contemplated by the statute, the weight and credibility to be afforded to the DNA
identification evidence was placed before the jury. The Defendant is not entitled to relief
on this basis.
III
Denial of Motion to Suppress
The Defendant contends that the trial court erred in denying his motion to suppress
his pretrial statement. He argues that the statement was not knowingly and voluntarily
given because it was given after “coercive promises of leniency and false claims about the
evidence against him.”
At the suppression hearing, Detective Frank testified that he interviewed the
Defendant on August 17, 2015. Detective Frank said that the Defendant appeared
voluntarily for the interview. Detective Frank agreed that he had interviewed codefendants
Sherrill and Denzmore before the Defendant’s interview. Detective Frank said he knew
from his earlier interviews with codefendants Sherrill and Denzmore that a homicide and
robbery occurred after codefendants Sherrill and Denzmore went to a location where they
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planned to scare a person whom they had robbed a couple of nights earlier. Detective
Frank said codefendant Denzmore stated that the Defendant had been present and had
killed the victim. Detective Frank recalled that codefendant Sherrill had stated, “[O]nce
they got there and saw [the victim], . . . they decided that they would attempt to rob him
while they were there.” Detective Frank said codefendant Sherrill stated that the Defendant
had “[t]he gun that was taken during the [earlier] robbery, which was a Smith and Wesson
forty caliber handgun.” Detective Frank said that at the time of the Defendant’s interview,
Detective Frank had not known the caliber of the bullet with which the victim had been
shot.
Detective Frank testified that codefendant Denzmore had said in his interview that
when codefendant Denzmore realized the victim had been shot, codefendant Denzmore
had asked the Defendant why he shot the victim and that the Defendant had responded that
it had been an accident which occurred when the Defendant “went to hit [the victim] in the
head, and the gun went off.” Detective Frank said codefendant Denzmore stated that the
Defendant had said he had gone through the victim’s pockets “looking for something to
get from him” but only found a lighter and a piece of paper.
Detective Frank testified that the Defendant had not been in custody at the time of
the Defendant’s interview. Detective Frank said that the Defendant was advised of his
Miranda rights and that the Defendant signed a written waiver of those rights. Detective
Frank said that the Defendant was not handcuffed and was free to leave and that the
Defendant was not arrested at the end of the interview. Detective Frank said the Defendant
agreed to provide a DNA sample. The Miranda waiver and the written waiver related to
the DNA sample were received as exhibits. Detective Frank said that the Defendant was a
high school graduate and “was getting ready to graduate [from] college.” Detective Frank
said he did not yell at the Defendant during the approximate one-hour interview. Detective
Frank said the Defendant never asked to stop the interview, to consult with an attorney, or
to leave.
Detective Frank testified that although the Defendant did not admit during the
statement that he killed the victim, the Defendant admitted he had a .40-caliber gun and
fired it in the air on the night of the victim’s death. When asked about his having told the
Defendant, “I want to help you out, but if you’re not honest with me I can’t help you out,”
Detective Frank said that he wanted the Defendant to be forthcoming and that Detective
Frank would tell the district attorney “the basis of what happened out there” if the
Defendant said the shooting had been an accident. Detective Frank said that based upon
codefendant Denzmore’s statement, Detective Frank thought at the time that the shooting
had been accidental.
Detective Frank acknowledged that he falsely told the Defendant that a video
recording of the shooting existed and that he used information from codefendants Sherrill
-32-
and Denzmore to create the false impression a video recording existed. Detective Frank
said that the Defendant asked to see the recording and that Detective Frank falsely told the
Defendant that he did not have the capability to play the recording in the interview room.
Detective Frank said, however, that the Defendant “never based his statements off of me
saying I had the video.” Detective Frank said the Defendant never stated that he shot the
victim but that it had been an accident. Detective Frank agreed that the Defendant admitted
he had discarded the gun he had on the night of the shooting. Detective Frank
acknowledged that he knew at the time of the Defendant’s interview that the district
attorney’s office might charge felony murder in the case, as the occurrence of an accidental
death was immaterial to the crime of felony murder. Detective Frank agreed that he asked
the Defendant about facts that Detective Frank had learned in the interviews of
codefendants Sherrill and Denzmore and that the Defendant did not admit involvement
other than having been present and having shot a gun “in the air.”
Detective Frank testified that he attempted to interview the Defendant a second time,
after the Defendant had been arrested, but that the Defendant invoked his rights and did
not agree to another interview.
The video recording of the interview was received as a defense exhibit. We have
reviewed the recording, and it reflects the following regarding the question of whether the
statement was knowingly and voluntarily given: The Defendant, Detective Frank, and
another police officer spoke in a small room. Detective Frank advised the Defendant of
his Miranda rights and told the Defendant he was not in custody or under arrest. The
Defendant indicated his understanding and agreed to waive his rights and speak to the
officers. The Defendant signed the written waiver of rights. The substance of the interview
regarding the crimes was consistent with Detective Frank’s testimony. Detective Frank
made repeated claims about what he had seen on the purported video recording and
suggested that the victim had been shot accidentally. Detective Frank also suggested that
self-defense might have been involved. Detective Frank claimed that a neighbor had
identified the Defendant. During the interview, the Defendant agreed to provide a DNA
sample, and Detective Frank advised him of his rights regarding the collection of the
sample. The Defendant signed the written waiver.
After receiving the evidence, the trial court filed a written order denying the motion
to suppress. The court found that the Defendant was not in custody and was free to leave
when the interview ended, that the Defendant did not appear to be under the influence of
an intoxicant or otherwise impaired, and that the Defendant did not ask for an attorney or
to end the interview. The court noted that the Defendant signed a waiver of his Miranda
rights and consented to provide a DNA sample. Upon review of the totality of the
circumstances, the court found that neither Detective Frank nor Detective Chouanard, the
other officer present, made promises or offers to the Defendant and did not threaten or
coerce the Defendant. The court found that the Defendant’s will was not overborne such
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that his statement was involuntary. The court also found that although Detective Frank
made false statements about having a video recording of the incident, the information he
represented he learned from the recording was based on interviews with codefendants
Sherrill and Denzmore, and that it was insufficient to overbear the Defendant’s will and to
render the statement involuntary.
A trial court’s findings of fact on a motion to suppress are conclusive on appeal
unless the evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn.
1996); State v. Jones, 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990). Questions about the
“credibility of the witnesses, the weight and value of the evidence, and resolution of
conflicts in the evidence are matters entrusted to the trial judge as the trier of fact.” Odom,
928 S.W.2d at 23. The prevailing party is entitled to the “strongest legitimate view of the
evidence and all reasonable and legitimate inferences that may be drawn from that
evidence.” State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998); see State v. Hicks, 55 S.W.3d
515, 521 (Tenn. 2001). The trial court’s application of the law to its factual findings is a
question of law and is reviewed de novo on appeal. State v. Yeargan, 958 S.W.2d 626, 629
(Tenn. 1997). In reviewing a trial court’s ruling on a motion to suppress, this court may
consider the trial evidence as well as the evidence presented at the suppression hearing.
See State v. Henning, 975 S.W.2d 290, 297-99 (Tenn. 1998); see also State v. Williamson,
368 S.W.3d 468, 473 (Tenn. 2012).
The Fifth Amendment of the United States Constitution, which applies to the states
via the Fourteenth Amendment, provides that “no person . . . shall be compelled in any
criminal case to be a witness against himself.” U.S. Const. amend. V. Similarly, Article
I, section 9 of the Tennessee Constitution states that “in all criminal prosecutions, the
accused . . . shall not be compelled to give evidence against himself.” Tenn. Const. Art. I,
§ 9. “The test of voluntariness for confessions under Article I, § 9 of the Tennessee
Constitution is broader and more protective of individual rights than the test of
voluntariness under the Fifth Amendment.” State v. Smith, 933 S.W.2d 450, 455 (Tenn.
1996); see State v. Northern, 262 S.W.3d 741, 763 (Tenn. 2008). To be considered
voluntary, a statement must not be the product of “any sort of threats or violence, nor
obtained by any direct or implied promises, however slight, nor by the exertion of any
improper influence.” State v. Smith, 42 S.W.3d 101, 109 (Tenn. Crim. App. 2000) (quoting
Bram v. United States, 168 U.S. 532, 542-43 (1897)). A defendant’s subjective perception
is insufficient to establish the existence of an involuntary confession. Id. The essential
inquiry is “whether the behavior of the State’s law enforcement officials was such as to
overbear [the defendant’s] will to resist and bring about confessions not freely self-
determined [.]” State v. Kelly, 603 S.W.2d 726, 728 (Tenn. 1980) (quoting Rogers v.
Richmond, 365 U.S. 534, 544 (1961)). A confession is involuntary if it is the product of
coercive state action. See, e.g., Colorado v. Connelly, 479 U.S. 157, 163-64 (1986). “The
State has the burden of proving the voluntariness of the confession by a preponderance of
the evidence.” State v. Willis, 496 S.W.3d 653, 695 (Tenn. 2016).
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In determining whether a confession is voluntary, a trial court examines the totality
of the circumstances, which encompasses “both the characteristics of the accused and the
details of the interrogation.” State v. Climer, 400 S.W.3d 537, 568 (Tenn. 2013) (quoting
Dickerson v. United States, 530 U.S. 428, 434 (2000)). Relevant circumstances include
the following:
[T]he age of the accused; his lack of education or his intelligence level; the
extent of his previous experience with the police; the repeated and prolonged
nature of the questioning; the length of the detention of the accused before
he gave the statement in question; the lack of any advice to the accused of
his constitutional rights; whether there was an unnecessary delay in bringing
him before a magistrate before he gave the confession; whether the accused
was injured, intoxicated[,] or drugged, or in ill health when he gave the
statement; whether the accused was deprived of food, sleep, or medical
attention; whether the accused was physically abused; and whether the
suspect was threatened with abuse.
State v. Huddleston, 924 S.W.2d 666, 671 (Tenn. 1996) (quoting People v. Cipriano, 429
N.W.2d 781, 790 (Mich. 1988)).
On appeal, the Defendant argues that his admissions of having been present at the
scene and having fired a gun were coerced by Detective Frank’s false statements regarding
the existence of a video recording and an eyewitness identification, false statements about
what was shown on the alleged recording, statements that Detective Frank wanted to “help
out” the Defendant but needed the Defendant to be honest, and statements that Detective
Frank thought the shooting had been accidental. The State responds that the record
supports the trial court’s denial of the motion to suppress the Defendant’s statement.
The record reflects that the trial court considered the totality of the circumstances in
ruling on the motion to suppress. To that end, the record reflects that the Defendant was a
high school graduate with additional education, that the interview was slightly less than
one hour long, that the Defendant was not in custody and appeared voluntarily for the
interview, that he showed no signs of impairment or distress during the interview, that the
interview was conversational and did not involve threats. The Defendant was advised of
his Miranda rights, and he signed a written waiver. Detective Frank told the Defendant
that he was not in custody or under arrest, and Detective Frank testified that the Defendant
was not arrested at the end of the interview. Later during the interview, the Defendant
agreed to provide a DNA sample and signed the waiver for collection of the sample.
Throughout the interview, the Defendant never tried to end the questioning, nor did he ever
ask for an attorney.
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This court has said that misrepresentations and promises of leniency may render a
statement involuntary. State v. Phillips, 30 S.W.3d 372, 377 (Tenn. Crim. App. 2000)
(affirming the trial court’s suppression of a defendant’s inculpatory statement obtained
after misrepresentations by a Department of Children’s Services investigator, the
defendant’s repeated denials of wrongdoing, statements by the investigator that law
enforcement would become involved unless the defendant confessed, and promises of
specific treatment conditioned upon the defendant’s full confession). In the present case,
the trial court found that the facts did not show that the Defendant’s will had been
overborne by Detective Frank’s misrepresentations and statements he might “help out” the
Defendant by presenting any mitigating facts, such as that the shooting had been accidental,
to the district attorney. Although Detective Frank falsely told the Defendant that a video
recording existed and that an eyewitness had identified the Defendant, Detective Frank’s
false representations about what he had learned from viewing the purported recording were
based upon factual information gathered in the interviews of codefendants Sherrill and
Denzmore. The trial court concluded that the State showed by a preponderance of the
evidence that the Defendant’s statement had been voluntarily given, and the record
supports the court’s determination.
The trial court did not err in denying the motion to suppress. The Defendant is not
entitled to relief on this basis.
IV
Chain of Custody
The Defendant contends that the trial court erred in admitting the DNA evidence
from the victim’s pants because the State failed to establish an unbroken chain of custody
for the pants. He argues that the State failed to show how the pants were transported from
the MNPD’s evidence room to the TBI Laboratory. The State counters that it presented
sufficient proof to authenticate the evidence.
Tennessee Rule of Evidence 901 states that evidence must be authenticated in order
to be admissible. Evidence is authenticated by providing proof “sufficient to the court to
support a finding by the trier of fact that the matter in question is what its proponent
claims.” Tenn. R. Evid. 901(a). “[W]hen the facts and circumstances that surround
tangible evidence reasonably establish the identity and integrity of the evidence,” it should
be admitted. State v. Cannon, 254 S.W.3d 287, 296 (Tenn. 2008). In order to prove the
reliability of tangible evidence, the State must prove “an unbroken chain of custody.”
Scott, 33 S.W.3d at 760 (internal citation omitted). Relative to the State’s burden in
proving the chain of custody, our supreme court has said:
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Even though each link in the chain of custody should be sufficiently
established, this rule does not require that the identity of tangible evidence
be proven beyond the possibility of all doubt; nor should the State be required
to establish facts which exclude every possibility of tampering . . . . An item
is not necessarily precluded from admission as evidence if the State fails to
call all of the witnesses who handled the item . . . . [If] the State fails to offer
sufficient proof of the chain of custody, the “evidence should not be admitted
. . . unless both identity and integrity can be demonstrated by other
appropriate means.” Scott, 33 S.W.3d at 760 (quoting Cohen, et al.,
Tennessee Law of Evidence § 901.12, at 624 (3rd ed. 1995)).
Cannon, 254 S.W.3d at 296. This court reviews chain of custody determinations for an
abuse of discretion. Id. at 295.
At the trial, witnesses were called out of order due to scheduling issues, and the
victim’s pants and evidence about the DNA testing related to the pants were introduced
before the chain of custody had been fully explored. We will recount the relevant evidence
and objections in the order in which they were received at the trial.
MNPD Crime Laboratory employee Ms. Dradt testified that all evidence collected
for a case was labeled with a bar code and central complaint number, after which the
evidence was taken to the “property room,” which was the location “where all the evidence
is stored.” She said the property room was in a secured building that was “locked down.”
Medical Examiner Dr. Li testified that the victim’s body was clothed in pants when
the body was received for the autopsy on August 6, 2015. The autopsy report states that
the body had been transported from the scene to the Center for Forensic Medicine for the
autopsy. Dr. Li stated that the usual practice was for either himself or an assistant to
remove clothing from a body, dry and pack the clothing, and “submit it for evidence.” He
said the police typically picked up the clothing. When asked whether he knew if the
clothing was picked up by police in this case, he said his report did not reflect whether it
was, but he said, “I am sure this is standard procedure.” He said that his office kept records
regarding the release of evidence to the police and that a technician typically released
evidence to the police.
MNPD Crime Laboratory employee Ms. Ellis testified that Detective Frank
submitted requests for DNA testing of the victim’s pants on August 4 and 18, 2015. Before
Ms. Ellis was asked to identify the pants, the prosecutor addressed defense counsel: “Mr.
Hakes, this would have actually been introduced through Mr. Frank, but if you have no
objection, I’ll do it now.” Defense counsel responded, “There’s no objection.” The record
reflects that Detective Frank had not yet testified. Ms. Ellis identified the pants, which
were packaged in a bag with evidence tape and which contained her initials. The pants
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were received as an exhibit. When asked if she had been the person who received the pants
when they entered the laboratory, Ms. Ellis stated that she had not been but that she
understood the procedure to be the following: “[O]nce a request is approved, the evidence
is then asked to be brought over from a property and evidence room to our crime lab, and
it is accepted into the evidence receiving unit. They then put unique identifiers on there
for us to know which case it goes with.” When asked if documentation would show “where
the pants would’ve been for each time they moved,” she responded, “Yes.” During her
testimony, Ms. Ellis identified her forensic biology report, which was received as an
exhibit. The document was addressed to Detective Frank as the “submitting officer” and
listed several items received and analyzed by the laboratory, including the victim’s pants.
After other witnesses testified about DNA analysis evidence related to the victim’s
pants, defense counsel moved to strike the evidence and provided the following
explanation:
[W]e’ve heard that the pants moved in this way. They went from [the victim]
right on his body to the [Medical Examiner]’s Office. [Dr]. Feng Li testified
that they were removed at the M.E.’s Office. From there, we do not know
who picked them up and how they got to the crime lab. The chain is broken.
We don’t know anything about how the first analyst, Ms. Julie Ellis, obtained
those pants from the . . . Evidence Receiving Unit.
The prosecutor responded that a written record existed “that the defense has had for a long
time” which showed that Detective Frank picked up the pants from the medical examiner’s
office. The prosecutor said he thought Detective Frank “can make that chain” in his
upcoming testimony. The prosecutor said that he understood the pants had been taken from
the property room to the MNPD Crime Laboratory and that “if we needed to track down
who that person is who gets it from the property room to the crime lab, we can try to do
that.” The prosecutor noted, however, that the defense had “known about this and [had]
not raised it.” The trial court noted that witnesses had been called out of order and denied
the objection, noting, “[I]f we need to bring somebody in from the property room or the
certified records from the property room, we will do so.”
Thereafter, Detective Frank testified that he picked up the victim’s clothing from
the medical examiner’s office on August 12, 2015. He identified the transfer receipt
showing that he took possession of the victim’s property, including a pair of khaki pants.
He acknowledged his signature on the transfer receipt. He said that when he received
evidence from the medical examiner, he created a MNPD Property Sheet and “log[ged] it
into [the] property room where it’s kept for safe storage.” He agreed that after he picked
up the evidence in the present case, he labeled it and took it to the property room. He said
the evidence was in his possession while he completed these tasks. At the conclusion of
Detective Frank’s direct examination, the court inquired whether the prosecutor wanted to
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introduce as exhibits “some documents” the prosecutor had shown to Detective Frank. The
prosecutor stated, “Unless there would be any chain of custody objections, I don’t see a
need to do that,” to which defense counsel responded, “No. I thought you were going to
ask him about the transcript [of the Defendant’s pretrial statement].” The court said, “No.
No. I’m asking about the ones he showed from the M.E.’s Office, the ones that Dr. Li
referred to and he signed.” One of the defense attorneys stated, “That’s fine.” The
prosecutor mentioned the “swabs,” and one of the defense attorneys said, “That’s fine.”
The same defense attorney then stated that the only issue was with the transcript of the
Defendant’s interview and that the defense did not “want that to go back with the jury.”
The court assured defense counsel that the transcript would not be provided to the jury
during deliberations and said, “I was interested [if there] is . . . still an objection to the chain
of custody such that that needs to be put into evidence?” One of the defense attorneys
responded, “I don’t think so.”
The defense next raised the issue in the motion for a new trial, in which it alleged
that the trial court erred in denying the “Motion to Withdraw [the Victim’s] Pants as an
Exhibit.” At the hearing on the motion, the defense did not offer argument. The prosecutor
stated that the defense had received a “receipt from the medical examiner” showing that
Detective Frank had picked up the victim’s pants from the medical examiner, and the
receipt was received as a hearing exhibit. In denying the motion for a new trial, the court
found that the chain of custody had been properly established “through the evidence
provided in discovery and the witness testimony of Detective Frank, Dr. Feng Li, Julie
Ellis, and Benjamin DeBlanc.”
The record reflects that the State offered a combination of evidence directly related
to the transfer of the victim’s pants from one custodial entity to another as well as standard
practices evidence regarding the receipt and transfer of evidence from the medical
examiner’s office, the MNPD Crime Laboratory, and Detective Frank. Although the State
did not offer evidence which directly addressed the transfer of the pants from the evidence
room to the Crime Laboratory, (1) Dr. Li testified about the standard procedures for
collecting, packaging, storing, and releasing the evidence to the police; (2) Detective Frank
testified about his procedure for receiving evidence from the medical examiner,
documenting it, and “logging” it in to the property room; (3) Ms. Ellis testified about the
general practice of the evidence remaining secured in the property room and being brought
to the crime laboratory once a testing request was approved; (4) Ms. Ellis’s report listed
Detective Frank as the “submitting officer” for evidentiary items, including the victim’s
pants; and (5) Ms. Ellis also testified that documentation was created to record the transfer
of evidence from one place to another. No evidence at the trial suggested any deviation
from these procedures or any irregularity with the integrity of the evidence. The defense
raised a challenge to the chain of custody at the trial, and the prosecutor and the court stated
that an additional witness could be called if necessary. After further evidence was received
from Detective Frank, however, the defense indicated it had no further objections to the
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chain of custody issue. The State cannot be faulted for not calling an additional witness
regarding the transfer of the victim’s pants between the medical examiner’s office and the
crime laboratory, given the circumstances. In any event, Detective Frank’s and Ms. Ellis’s
testimony adequately explained the process. When the defense resurrected the chain-of-
custody issue at the motion for a new trial, the trial court concluded that the State had
reasonably authenticated the evidence by proving an adequate chain of custody. The record
supports the court’s determination. The trial court did not abuse its discretion in admitting
and later refusing to strike the evidence. The Defendant is not entitled to relief on this
basis.
V
Consecutive Sentencing
In this final issue, the Defendant contends that the trial court abused its discretion
in imposing partially consecutive sentences. The record reflects that the Defendant’s
sentences consisted of the following: a life sentence for first degree felony murder, with
which the second degree murder and its attendant twenty-five-year sentence had been
merged; twenty-one-year sentences for each of two counts of attempted first degree murder
followed by six years for each of his two convictions for employment of a firearm in the
commission of a dangerous felony, as required by law, with the effective twenty-seven-
year sentences for attempted first degree murder and the firearms offenses to be served
consecutively to the life sentence; and ten years for attempted aggravated robbery, to be
served concurrently to the first degree felony murder conviction. The Defendant
acknowledges that the firearms offenses were statutorily required to be imposed with
consecutive service to the attendant attempted first degree murder offenses, but he
challenges the imposition of consecutive service for the effective twenty-seven-year
sentences for attempted first degree murder and the firearms offenses sentences with the
life sentence.
This court reviews challenges to the length of a sentence within the appropriate
sentence range “under an abuse of discretion standard with a ‘presumption of
reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). A trial court must
consider any evidence received at the trial and sentencing hearing, the presentence report,
the principles of sentencing, counsel’s arguments as to sentencing alternatives, the nature
and characteristics of the criminal conduct, any mitigating or statutory enhancement
factors, statistical information provided by the Administrative Office of the Courts as to
sentencing practices for similar offenses in Tennessee, any statement that the defendant
made on his own behalf, and the potential for rehabilitation or treatment. State v. Ashby,
823 S.W.2d 166, 168 (Tenn. 1991) (citing T.C.A. §§ 40-35-103, -210; State v. Moss, 727
S.W.2d 229, 236 (Tenn. 1986); State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987));
see T.C.A. § 40-35-102 (2019).
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Likewise, a trial court’s application of enhancement and mitigating factors are
reviewed for an abuse of discretion with “a presumption of reasonableness to within-range
sentencing decisions that reflect a proper application of the purposes and principles of our
Sentencing Act.” Bise, 380 S.W.3d at 706-07. “[A] trial court’s misapplication of an
enhancement or mitigating factor does not invalidate the sentence imposed unless the trial
court wholly departed from the 1989 Act, as amended in 2005.” Id. at 706. “So long as
there are other reasons consistent with the purposes and principles of sentencing, as
provided by statute, a sentence imposed . . . within the appropriate range” will be upheld
on appeal. Id.
The abuse of discretion with a presumption of reasonableness standard also applies
to the imposition of consecutive sentences. State v. Pollard, 432 S.W.3d 851, 859 (Tenn.
2013). A trial court has broad discretion in determining whether to impose consecutive
service. Id. A trial court may impose consecutive sentencing if it finds by a preponderance
of the evidence that one criterion is satisfied in Tennessee Code Annotated section 40-35-
115(b)(1)-(7) (2019). In determining whether to impose consecutive sentences, though, a
trial court must ensure the sentence is “no greater than that deserved for the offense
committed” and is “the least severe measure necessary to achieve the purposes for which
the sentence is imposed.” T.C.A. § 40-35-103(2), (4) (2019); see State v. Desirey, 909
S.W.2d 20, 33 (Tenn. Crim. App. 1995).
At the sentencing hearing, the trial court received as an exhibit the transcript of the
January 23, 2019 bond revocation hearing, at which the trial court revoked the Defendant’s
bond for the present offenses for several days and imposed additional conditions upon
rerelease. The court made its determination after receiving evidence that the Defendant,
who did not have a driver’s license, had been stopped for speeding and had been charged
with unlawful weapon possession, possession of drug paraphernalia, and misdemeanor
marijuana possession. The evidence at the hearing also showed that the Defendant had a
positive drug screen for marijuana and that he admitted using both marijuana and Lortab,
the latter of which he obtained from a family member. The transcript of a bond reduction
hearing was also received as an exhibit at the sentencing hearing, but it has not been
included in the appellate record.
The presentence report was received as an exhibit and reflected that the Defendant
was twenty-three years old at the time of sentencing, had one child, had completed high
school, and had been enrolled in technical schooling until his arrest in the present case.
The Defendant reported that he began smoking four to five marijuana “blunts” per day at
age twelve and that he had used marijuana until his incarceration in the present case. His
employment history included furniture assembly and food service. He had no prior
criminal convictions. The Strong-R Risk Assessment attached to the presentence report
reflected that the Defendant was at moderate risk of reoffending.
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The Defendant’s mother testified that the Defendant had had a minor juvenile
charge but that it had been “nothing.” She said the Defendant was a hard worker and had
begun full-time employment upon high school graduation. She said the Defendant was an
excellent father to his daughter. She said the Defendant had obtained a student loan in
order to attend technical school to learn to be a mechanic and that he had been a good
student. She identified photographs of the Defendant and some of his family members,
which were received as exhibits.
In an allocution, the Defendant stated: He was sorry for having been “around
activity that may have lead [sic] to [the victim’s] death” and for having caused stress to his
family. He said he was sorry he had gone from being a hard worker with a “clean record”
to a criminal defendant because he “chose to be around” a family member and a friend. He
said he planned to use his time in prison to attend programs that would help him be a better
human being and that he would like to be an advocate to steer others from criminal activity.
After receiving the evidence, the trial court found enhancement factors based upon
the Defendant’s prior history of criminal convictions or criminal behavior, his having been
a leader in the offenses involving two or more criminal actors, and the particular
vulnerability of the child victims. See T.C.A. § 40-35-114(1), (3), (4) (2019). The court
applied these factors to the convictions for attempted first degree murder and attempted
especially aggravated robbery. The court did not apply any mitigating factors. See id. §
40-35-113 (2019). The court found that the Defendant was a dangerous offender whose
behavior indicated little to no regard for human life and that partial consecutive sentencing
reasonably related to the seriousness of the offenses and was necessary to protect the public
from further criminal conduct committed by the Defendant. See id. § 40-35-115(b)(4)
(2019). In making this finding, the court noted the facts of the offense included the victim’s
having said he did not have “anything” and having nevertheless been shot in the head, the
Defendant’s having rifled through the victim’s pockets, the shooting into the bedroom
where two children slept, and the Defendant’s subsequent gun possession in the events
which led to the bond revocation.
On appeal, the Defendant does not challenge the court’s application of enhancement
factors or its decision not to apply any mitigating factors. He focuses solely on the trial
court’s imposition of consecutive sentencing based upon its finding that he was a dangerous
offender. He argues that proof he committed multiple dangerous crimes, standing alone,
is insufficient to support a dangerous offender finding. He argues, as well, that a sentence
of life plus twenty-seven years is greater than the sentence deserved for the crimes and is
not the least severe measure necessary to achieve the purposes for which the sentence is
imposed.
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In order to impose consecutive sentences on the basis that a defendant is “a
dangerous offender whose behavior indicates little or no regard for human life and no
hesitation about committing a crime in which the risk to human life is high,” a trial court
must also find that the sentences “are reasonably related to the severity of the offenses”
and “are necessary in order to protect the public from further criminal acts” by the
defendant. State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995); see State v. Moore, 942
S.W.2d 570, 574 (Tenn. Crim. App. 1996).
The record reflects that the trial court made the appropriate Wilkerson findings to
support its determination that the Defendant was a dangerous offender. The evidence
shows that Defendant and his codefendants went to the scene armed, that they decided to
rob the victim after they were unable to contact Mr. Mitchell, that the victim protested that
he did not have anything, that the Defendant nevertheless shot the victim, that the
Defendant searched the victim’s pockets for money while codefendant Denzmore shot into
the nearby duplex when he saw a light turn on, and that the Defendant and codefendant
Denzmore discarded their guns as they fled the scene. While on bond for these offenses,
the Defendant was arrested for new offenses, including possession of a handgun. We
conclude that the trial court did not abuse its discretion in determining that the Defendant
was a dangerous offender and that the effective sentence was appropriate for the offenses
and to protect the public from the Defendant’s future criminal conduct. The Defendant is
not entitled to relief on this basis.
In consideration of the foregoing and the record as a whole, the judgments of the
trial court are affirmed.
_____________________________________
ROBERT H. MONTGOMERY, JR., JUDGE
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