State of Tennessee v. James Hawkins

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
February 3, 2015 Session Heard at Memphis
STATE OF TENNESSEE v. JAMES HAWKINS
Direct Appeal from the Criminal Court for Shelby County
No. 0806057 Chris Craft, Judge
No. W2012-00412-CCA-R3-DD - Filed August 28, 2015
Defendant, James Hawkins, appeals from his Shelby County Criminal Court jury
convictions of premeditated first degree murder, see T.C.A. ' 39-13-202(a)(1); initiating
a false report, see id. ' 39-16-502, a Class D felony; and abuse of a corpse, see id. '
39-17-312, a Class E felony. The jury sentenced Defendant to death for the first degree
murder conviction based upon its findings that the defendant was previously convicted of
one (1) or more felonies whose statutory elements involve the use of violence to the
person, see id. ' 39-13-204(i)(2); and that the defendant knowingly mutilated the body of
the victim after death, see id. ' 39-13-204(i)(13); and that these aggravating
circumstances outweighed any mitigating circumstances beyond a reasonable doubt. For
the remaining felonies, the trial court imposed an effective sentence of 18 years=
incarceration to be served consecutively to the death sentence. On appeal, Defendant
alleges that (1) the trial court erred by denying Defendant=s motion to suppress his
statements given to the police; (2) the trial court erred by refusing to accept Defendant=s
guilty pleas to counts two and three of the indictment; (3) the trial court erred by
admitting statements made by the victim through the victim=s children, through Melvin
Gaither, and through an application for order of protection; (4) the trial court erred by
admitting evidence of other acts in violation of Tennessee Rule of Evidence 404(b); (5)
the trial court erred by admitting photographs of bone fragments taken from the victim;(6)
the trial court erred by admitting crime scene photographs that had not been provided
during pretrial discovery; (7) the trial court erred by permitting improper closing
argument by the State; (8) the evidence is insufficient to support Defendant=s conviction
of first degree murder; (9) the trial court erred by not requiring the State to provide
discovery concerning an ongoing investigation of sexual abuse committed by Defendant=s
father against Defendant=s sisters for use in the penalty phase of the trial; (10) the trial
court erred by denying Defendant=s special jury instruction request to charge the jury on
the presumption that any sentence imposed for the first degree murder conviction would
be carried out according to the laws of this State; (11) myriad aspects of Tennessee=s
death penalty statutes and procedure are unconstitutional in general and as applied to
Defendant; (12) the trial court imposed an excessive sentence in both length and manner
of service relative to the sentences for filing a false report and abuse of a corpse; and (13)
the cumulative effect of these errors violated Defendant=s right to due process. As an
additional issue, Defendant alleges that the trial court erred by denying his petition for
writ of error coram nobis. Following oral argument at the Cecil C. Humphreys School of
Law at the University of Memphis and this court=s full consideration, we affirm the
judgments of the trial court.
Tenn. R. App. P. 3; Judgments of the Criminal Court are Affirmed
THOMAS T. WOODALL, P.J., delivered the opinion of the Court, in which JOHN EVERETT
WILLIAMS and CAMILLE R. MCMULLEN, JJ. joined.
Steven C. Bush, District Public Defender; Phyllis Aluko and Barry Kuhn, Assistant
Public Defenders (on appeal); Gerald Skahan, Larry Nance, and Kindle Nance, Assistant
Public Defenders (at trial), for the appellant, James Hawkins.
Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Assistant
Attorney General; Amy P. Weirich, District Attorney General; Patience Branham,
Marianne Bell, Jennifer Nichols, and Danielle McCollum, Assistant District Attorneys
General, for the appellee, State of Tennessee.
OPINION
Procedural History
On September 11, 2008, the Shelby County Grand Jury indicted Defendant, James
Hawkins, for the premeditated first degree murder of his girlfriend, Charlene Gaither, for
initiating a false report relative to her disappearance, and for abuse of a corpse. The
State filed a notice of its intention to seek the death penalty as to the first degree murder
charge, relying upon two aggravating circumstances: that Defendant was previously
convicted of felonies involving the use of violence, Tennessee Code Annotated section
39-13-204(i)(2), and that Defendant knowingly mutilated the victim=s body after death,
Tennessee Code Annotated section 39-13-204(i)(13). On June 10, 2011, a Shelby
County Criminal Court jury convicted Defendant of premeditated first degree murder,
initiating a false report, and abuse of a corpse. On June 11, 2011, the jury sentenced
Defendant to death for the first degree murder conviction, finding beyond a reasonable
doubt the existence of both aggravating circumstances and that the aggravating
circumstances outweighed any mitigating circumstances beyond a reasonable doubt.
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Following the trial court=s denial of Defendant=s motion for new trial, Defendant filed a
timely notice of appeal to this court.
While the appeal was pending before this court, Defendant filed a petition for writ
of error coram nobis in the trial court, alleging that newly discovered evidence warranted
the reversal of the conviction and death sentence. This court stayed all appellate
proceedings pending the resolution of the petition for writ of error coram nobis in the trial
court. See State v. Mixon, 983 S.W.2d 661 (Tenn. 1999). On April 25, 2014, the trial
court denied coram nobis relief. Defendant filed a timely notice of appeal from the
denial of coram nobis relief and, on June 2, 2014, this court consolidated the appeals with
this case becoming the primary case number for appellate review. State v. James
Hawkins, W2012-00412-CCA-R3-DD, W2014-00981-CCA-R3-ECN (Order) (Tenn.
Crim. App., at Jackson, June 2, 2014).
Factual Background
On February 12, 2008, Officer Kimberly Houston of the Memphis Police
Department (MPD) interviewed Defendant at an apartment, referred to as Prince Rupert
No. 4, concerning a missing person report he had made regarding his girlfriend, Charlene
Gaither. Ms. Gaither was the mother of Defendant=s three children, K.T., J.W.I., and
J.S.I. (we will refer to child witnesses by their initials). K.T., a daughter, was 12 years
old at the time of the victim=s disappearance. J.W.I., an older son, was 11 years old, and
J.S.I., a younger son, was 9 years old. Officer Houston recalled seeing mothballs
scattered near the entrance to the apartment at the time of her initial interview of
Defendant. Defendant explained that the mothballs were to repel cats. Officer Houston
noticed a very strong odor of ammonia emanating from the apartment, so strong that her
eyes watered as she stood in the open doorway to interview Defendant. Defendant
explained that one of the children had spilled bleach inside the apartment. Regarding his
girlfriend=s disappearance, Defendant told Officer Houston that Ms. Gaither left the
apartment at 9:00 a.m. on Saturday, February 9, 2008, after the two had Aan altercation.@
Officer Houston recalled that Defendant=s daughter, K.T., seemed angry during the
interview with Defendant. She said that K.T. did not divulge any information when
asked by Officer Houston if there was a problem. Officer Houston recalled that
Defendant seemed Acalm but just confused@ during their conversation.
On the afternoon of February 14, 2008, Lance McCallum, an employee with the
Mississippi Department of Transportation, was patching holes on the Coldwater River
bridge on Highway 78 when he glanced down the embankment below the bridge and saw
A[a] body with the hands cut off above the wrist, both feet cut above the ankles, and the
head and neck removed.@ He determined that the body, which was nude and lying on its
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back, was an adult female. Mr. McCallum and his coworkers immediately telephoned
9-1-1. The authorities arrived within minutes.
Detective Mike Pate of the DeSoto County Mississippi Sheriff=s Department
responded to the call of the body=s discovery. Detective Pate recalled that the body
appeared to have been dropped from the top of the hill and rolled down the embankment.
He observed that the body had three very deep cuts Ato the bone@ on the thigh, knee, and
mid-shin of the right leg. An examination of the body revealed no stab or gunshot
wounds. DeSoto County authorities searched the area for the missing body parts but
were unable to locate them. Because of the condition of the body, Detective Pate was
unable to make an initial identification. On February 15, 2008, after speaking with MPD
investigators concerning the missing person report filed by Defendant, Detective Pate
collected a buccal swab from Ms. Gaither=s mother, Jerilene Irvin. Deoxyribonucleic
analysis (DNA) later confirmed the body to be that of the victim, Charlene Gaither.
On February 15, 2008, then-Lieutenant Toney Armstrong of the MPD contacted
the DeSoto County Sheriff=s Department concerning the discovery of a body and
determined that the body fit the description of the missing person in the report filed by
Defendant. Lieutenant Armstrong contacted Defendant to ask him to come to the police
station for an additional interview. Lieutenant Armstrong recalled that Defendant
became Avery defensive@ and told Lieutenant Armstrong that he could not come to the
station until he completed his shift at the Nike Store. Lieutenant Armstrong and other
investigators decided to locate Defendant at his apartment later that afternoon. He
testified at trial that when they spoke to Defendant at the apartment complex that day,
Defendant Aseemed extremely agitated to talk to us, almost to a paranoid state.@ He
recalled a strong odor of bleach emanating from the apartment and Defendant=s
explanation to investigators that he had been cleaning. While other MPD investigators
transported Defendant to the police station for further questioning, Lieutenant Armstrong
secured the scene and obtained a search warrant for the apartment.
Crime Scene Investigator Jeffrey Alan Garey assisted in the search of the
apartment on February 15 and 16, 2008. He noticed Aa strong smell of bleach@ in the
apartment, particularly in the hallway bathroom, master bedroom, and master bathroom
areas of the residence. Investigator Garey used luminol to detect the presence of any
blood evidence that could not be visually seen. The luminol testing revealed the
presence of blood on the bed rail in the master bedroom. Further testing in the bathroom
produced Aan immediate bright blue reaction throughout eighty percent of the bathroom.@
He testified that an adverse effect of luminol testing to locate blood evidence is the
degradation of DNA from the blood evidence once revealed. Investigator Garey
documented scrape marks across the kitchen floor that appeared to have been made by
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moving a large appliance through the kitchen. Across the hall in an unlocked vacant
apartment, Investigator Garey observed an unplugged upright freezer with a Avery strong
odor of bleach@ that he described as Aextremely clean.@ He recalled that all of the
shelving in the freezer had been pushed to the top.
MPD Sergeant Anthony Mullins located Defendant at the apartment on February
15, 2008. He recalled that, although Defendant seemed very nervous and was Avisibly
shaking,@ Defendant agreed to speak to the officers concerning the missing person report
he had filed days earlier. Sergeant Mullins testified that once Defendant=s three children
were placed in the care of family members, Defendant went willingly with investigators
to the station for further questioning. Sergeant Mullins testified that Defendant was not
under arrest at the time but that Defendant was transported to the station in a police
cruiser. At the station, investigators placed Defendant in an interview room. Defendant
was not handcuffed during questioning on February 15.
On the evening of February 15, 2008, Defendant gave a statement denying
knowledge of the victim=s location. Defendant told investigators that he and the victim
had an argument because the victim had suspected him of Acheating.@ Defendant told
investigators that the victim left the apartment at approximately 9:00 a.m. on Saturday,
February 9. Defendant told investigators that J.S.I. told Defendant that he had seen the
victim leaving in a dark-colored car driven by a light-skinned woman. Defendant
claimed to have spoken to the victim on Sunday, February 10. He said that the victim
had telephoned him to let him know that he could raise the children. Defendant told
investigators that the victim and their children had lived in the apartment for three to four
weeks but that he had only moved there two weeks before the victim=s disappearance.
Defendant explained that a piece of missing carpet in the master bedroom had been
missing since he had lived there.
Unbeknownst to Defendant, other investigators were interviewing the children
while Defendant gave his initial statement. Noting several inconsistencies between the
children=s and Defendant=s statements, investigators decided to detain Defendant on a A48
hour investigative hold.@ Sergeant Mullins testified that the Ahold@ is an option utilized
when Awe believe we have probable cause that we could charge somebody with a crime
but we=re not prepared to do so@ and need additional time to Aconfirm or deny@ the
inconsistencies in the statements. In the early morning of February 16, 2008, Defendant
was booked into the jail on a first degree murder Ahold.@
On February 16, 2008, Sergeant Mullins assisted in a search of the apartment
where he observed evidence of heavy cleaning in the hallway bathroom, drag marks on
the kitchen floor, and an unplugged freezer that appeared to have been moved to the
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vacant apartment across the hallway. He testified that the hallway bathroom contained a
bathtub while the master bathroom contained only a shower. Sergeant Mullins testified
that investigators were unable to locate any additional evidence from area garbage
dumpsters. Investigators did, however, locate a Craftsman skill saw at a nearby Kmart
that the children reported Defendant had purchased and then returned to Kmart later on
the day of the victim=s disappearance. In addition to the skill saw, investigators retrieved
video surveillance footage showing Defendant and the children at the Kmart on February
9, 2008.
After confirming various aspects of the children=s statements, investigators
initiated an interview with Defendant on the evening of February 16, 2008. Sergeant
Mullins testified that because Defendant was then under arrest on the 48-hour hold, he
advised Defendant of his Miranda rights before initiating the interview. Defendant
refused to sign the rights waiver, while Aemphatic[ally]@ stating that he understood his
rights and would agree to give a statement. During the interview, Defendant denied (1)
throwing out a mattress from the master bedroom; (2) owning a freezer; and (3) that the
carpet in the master bedroom had been cut. Sergeant Mullins recalled that Defendant
tried to be cooperative during the interview but at times would turn away, refusing to
respond to questions.
MPD Sergeant Caroline Mason testified that, while walking Defendant back to the
jail, Defendant told her that he wanted to talk outside an interview room. Investigators
returned Defendant to the upstairs office area where Defendant once again refused to sign
a rights waiver form after being advised of his Miranda rights. Defendant, nevertheless,
offered a third statement concerning the victim=s disappearance. Defendant told
investigators that Ahe did not want his daughter to go to jail, he was trying to cover for his
daughter.@ He reported that K.T. stabbed the victim and that he had held the victim for
30 to 60 minutes while she died. Defendant said that he moved the victim to the bathtub
in the hallway bathroom where he dismembered the victim. He said that he and K.T.
then drove to Mississippi where he disposed of the victim=s body and body parts in
separate areas off Highway 78. Defendant agreed to guide investigators to the locations
where he had abandoned the victim=s body parts. Efforts to locate the body parts,
however, were futile due to heavy rains that had occurred in the days following the
victim=s death.
Sergeant Mason testified that she accompanied Sergeant Mullins to the apartment
on February 15, 2008, to gather a more detailed statement from Defendant regarding the
missing person report. Later that evening at the police station, Sergeant Mason
interviewed J.S.I. in the presence of J.S.I.=s maternal grandfather, Louis Irvin, Jr. Based
upon discrepancies between Defendant=s statement and those of the children, investigators
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arrested Defendant on a 48-hour hold in the early morning of February 16. On February
16, 2008, Sergeant Mason assisted in the search of the apartment. She recalled seeing a
pair of children=s panties on top of a pair of dark blue pajama bottoms on the master
bedroom floor. On the evening of February 16, Sergeant Mason assisted in the second
interview of Defendant. She testified that Defendant refused to sign a rights waiver form
but affirmed that he understood his rights and agreed to talk to investigators. She
recalled that Defendant controlled the interview by participating at times and then
refusing to answer questions. She said that Defendant denied involvement in the victim=s
disappearance. On the return walk to the jail, however, Defendant stopped Sergeant
Mason and said, AI didn=t do it. I didn=t do it, but I may have covered it up.@ Defendant
agreed to return to the investigator floor of the building to give a statement.
During the third interview, Defendant once again refused to sign a rights waiver.
Investigators agreed to interview Defendant in an office area because Defendant
expressed reservations about being surreptitiously recorded in an interview room.
Sergeant Mason explained that, although the MPD does not record suspect or witness
interviews, Defendant was fearful of being included in an episode of the crime
documentary television show, AThe First 48.@ Defendant told investigators that he had
taken the children to a movie on Friday, February 8, while the victim stayed home.
When they returned, the boys went to bed, and he and K.T. went to the living room to
watch television. He told investigators that the victim woke up and Afussed@ at him about
K.T. staying up late. He claimed that he fell asleep in the living room.
Defendant told investigators that he awoke on Saturday morning to the victim and
K.T. arguing. He went to the master bedroom to see K.T. holding a knife. As he
approached K.T. to stop her, K.T. stabbed the victim in the neck. Defendant said that he
held the victim for one to two hours until she died. He claimed that K.T. said, ADaddy,
you [have] got to help me cover this up, I don=t want to go to prison for the rest of my
life.@ Defendant told investigators that he then decided to dismember the victim and
dispose of her body in Mississippi. At the conclusion of the interview, Defendant agreed
to show investigators the locations where he had disposed of the victim=s body parts.
On February 17, 2008, Sergeant Mason interviewed K.T. regarding the victim=s
disappearance. Sergeant Mason testified that K.T. had not been Aforthcoming@ during
her first statement on February 15, but two days later, K.T. spoke openly with
investigators during her second statement. Sergeant Mason recalled K.T.=s telephone
ringing during the interview. K.T. answered and became nervous because it was
Defendant telephoning her from the jail. K.T. hung up on Defendant, but he called back
three times. Sergeant Mason testified that K.T. seemed nervous but was reassured after
being told that Defendant was in the jail. Following K.T.=s statement, Defendant was
formally charged with the victim=s murder.
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Sergeant Vivian Murray participated in K.T.=s February 17 interview. She
recalled Defendant=s calling K.T.=s telephone from the jail. Sergeant Murray testified
that she answered the telephone and that Defendant said, ABitch, don=t talk to my
daughter@ and hung up the phone.
At trial, the parties stipulated that the victim died as a result of Astabbing,
strangulation or a combination of both.@ Doctor Qadriyyah Debnam, a Special Agent
Forensic Scientist with the Tennessee Bureau of Investigation, performed DNA and
serology analysis on items collected from the apartment and the trunk of the victim=s car.
Samples of carpeting from the victim=s trunk and one freezer tray revealed the presence of
the victim=s blood. Doctor Steven A. Symes, a forensic anthropologist, testified that the
cuts to the victim=s body were consistent with having been made with a Atypical seven and
a quarter inch circular saw blade.@ He determined that the three cuts to the victim=s right
leg were Aabandoned@ because the saw could not cut through that particularly large
section of the leg. The saw was capable, however, of cutting the wrists, ankles, and
neck.
At trial, Louis Irvin, Jr., the victim=s father, testified that Defendant was the father
of the victim=s children. He testified that Defendant had been absent from the family for
some time but that Defendant returned in the fall of 2007. Mr. Irvin testified that the
victim soon Abroke communications@ with him after Defendant began living with the
victim and the children. Mr. Irvin recalled the victim=s being bothered by the attention
Defendant paid to K.T. He recalled that Defendant and K.T. Astayed off to themselves@
at family gatherings, but he assumed that it was because Defendant had been absent for so
long.
Angela Hilton testified that she had worked with the victim at the Tipton County
Adult Development Center, where the victim worked with the Amost severe[ly]@
handicapped patients. She recalled that the victim was an Aextraordinary@ employee who
only missed work when her children were sick. Ms. Hilton last saw the victim in
November 2007. She said that the victim did not show up for the office Thanksgiving
party. She knew that the victim had moved to Memphis with Defendant, and she
assumed that the drive to Tipton County became burdensome for the victim.
MPD Officer Nancy Trentham testified that she responded to a call at 3461
Wingood Circle on January 12, 2008, where she spoke to the victim, who was standing
outside the apartment with her two sons. The victim wanted K.T. to leave with her and
her sons. The victim told Officer Trentham that she suspected Asomething inappropriate
was going on@ between Defendant and K.T. Officer Trentham and another officer spoke
8
to Defendant. She described Defendant as Avery cooperative . . . polite . . . [and] very
calm.@ She spoke to K.T. privately in another room of the apartment. She described
K.T. as Avery quiet@ and Avery soft spoken.@ After speaking to all the parties, Officer
Trentham advised the victim that she could not force K.T. to leave because there was no
custody arrangement between the parents. The victim became very upset and repeated
her suspicion that something inappropriate was happening between Defendant and K.T.
Officer Trentham completed a memorandum to the Child Advocacy Center, but she did
not refer the victim for an order of protection because she saw no signs of abuse,
domestic or otherwise, during the call to the residence.
Melvin Gaither was married to the victim from 2003 until 2007. He testified that
Defendant and the victim renewed their relationship in late-September 2007. He recalled
that Defendant helped move the victim and the children from his home on October 18,
2007. On Christmas Day 2007, the victim contacted Mr. Gaither and told him that
Defendant had been threatening her. On January 5, 2008, the victim told Mr. Gaither
that she needed to get away from Defendant, stating AI believe he wants to kill me.@ Mr.
Gaither spoke to the victim in person once more on January 16, 2008, when she told him
that Defendant was threatening her again and that the children would not leave with her.
Shannon Hein, the keeper of records at Methodist LeBonheur Children=s Hospital,
testified that K.T. was hospitalized from December 26-27, 2007, after suffering a
miscarriage. The medical examination revealed that K.T. was 10 weeks pregnant. K.T.
reported to the medical staff that she had consensual sex with a classmate from school
and was unwilling to discuss the pregnancy any further.
Milton Harris was married to the victim from 1998 until 2002. He testified that
he and the victim remained friends after their divorce. In January 2008, the victim met
him at a Pizza Hut. He recalled that the victim had her sons with her but that she was
Ahysterical@ and Avery upset@ because she had left K.T. with Defendant. Mr. Harris
testified that he talked to the victim the next day, and the victim told him that K.T. was
now with her. Several days later, the victim showed up at FedEx, where Mr. Harris
worked, with her three children. Mr. Harris recalled that the victim was Areally terrified@
and Awanted to leave@ Defendant. Mr. Harris gave the victim keys to an old apartment,
Prince Rupert number 4, that he still had leased and gave her money to file a restraining
order against Defendant.
Deborah Coffman, an employee with Citizens Dispute, testified that, on January
15, 2008, she assisted the victim in preparing an application for an order of protection.
By that time, the victim had changed residences and moved to the Prince Rupert
apartment. The victim listed Defendant=s address as the apartment located at Wingood
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Circle. The victim reported that on January 12, 2008, Defendant became violent and
pulled her hair when she informed him that she and the children were leaving. The
victim told Ms. Coffman that Defendant had been sleeping in the same bed with K.T.,
although both Defendant and K.T. denied any sexual abuse was occurring. The victim
told Ms. Coffman that she wanted Defendant to Ajust stay away.@ Several weeks after
assisting the victim, Ms. Coffman learned that the victim had been killed. Ms. Coffman
testified that the ex parte order of protection had never been served on Defendant and that
the case had been dismissed on January 29, 2008.
J.W.I. was eleven years old when the victim died. He testified at trial that he was
attending the fifth grade in Covington, Tennessee in the fall of 2007. He lived with the
victim, his siblings, and Melvin Gaither. He moved to Memphis when the victim
reunited with Defendant. J.W.I. said that Aeverything was simple and quiet@ at first when
Defendant returned. He soon noticed, however, that Defendant paid more attention to
K.T. and that his parents argued about the attention Defendant paid to K.T. During one
argument, the victim threatened to telephone the police, and Defendant Asnapped@ the
victim=s cellular telephone. During another argument, the victim woke the children, and
they left the apartment. The victim and the children waited in the FedEx parking lot until
Milton Harris could bring the victim keys to the Prince Rupert apartment. J.W.I. recalled
another argument, which occurred at the Prince Rupert apartment, during which he heard
a slap and later saw the victim=s face was red.
Regarding Defendant=s relationship with K.T., J.W.I. testified that some time after
Christmas 2007, Defendant told J.W.I. and J.S.I. to stay in the living room while
Defendant took K.T. to another room. J.W.I. testified that when he left the living room
to look for batteries, Aout of the corner of my eye I could see [Defendant] on top of my
sister.@ Defendant scolded J.W.I. for leaving the living room. J.W.I. testified that he
never discussed with anyone what he had witnessed until after the victim=s death.
J.W.I. testified that on the day of the victim=s death, K.T. came to the children=s
bedroom and told them to stay in the room and turned up the television Aas loud as it
could go.@ J.W.I. never saw the victim that day. After K.T. returned to the bedroom and
turned down the television, Defendant told the brothers that the victim Awas gone@ and
that she had left during the night. J.W.I. thought at the time that Asomething was wrong
because [the victim] wouldn=t just up and leave like that.@ That afternoon, Defendant
drove the children to a discount store for cleaning supplies and to Kmart to purchase a
saw. Defendant instructed the boys to sit in the car, claiming that he had a surprise for
them. The brothers sat outside in the car for approximately three hours before being
allowed to return to the apartment. They then helped Defendant clean the apartment but
were forbidden from going into the hallway bathroom. They helped Defendant dispose
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of the master bedroom mattress and box spring set. J.W.I. also recalled that when he was
allowed into the apartment, the upright freezer was missing. Defendant told him that he
had moved the freezer out of the apartment because it was broken. J.W.I. identified at
trial the surveillance video from Kmart showing Defendant=s purchasing and returning the
saw. J.W.I. learned approximately a week later that his mother had been killed.
J.S.I. was nine years old when the victim died. He testified that Defendant lived
Abriefly@ with him, his mother, and his siblings when he was in the fourth grade. He
recalled that for the first two to three weeks of Defendant=s return, Ait was nice.@ He soon
noticed, however, that Defendant showed little attention or affection to himself or J.W.I.
He testified that he saw Defendant Atongue kissing@ his sister, but he did not tell anyone
because he was scared. J.S.I. testified that the victim and Defendant fought violently at
times. He recalled an incident when Defendant snapped the victim=s cellular telephone
after she threatened to telephone the police. He also recalled leaving the first apartment
and meeting Mr. Harris for a key to the new apartment. J.S.I. testified that things were
worse in the second apartment and that he thought Defendant had slapped the victim once
during an argument. J.S.I. recalled that K.T. Awould get beat[en]@ if she disobeyed
Defendant. He said that K.T.=s personality changed when Defendant began living with
them and that she was often disobedient to the victim. He recalled Defendant=s
forbidding K.T. from talking to the victim.
Regarding the night before the victim=s disappearance, J.S.I. testified that
Defendant had taken the children to the movies while the victim, who was not feeling
well, stayed home. When they returned home, Defendant and the victim argued
throughout much of the night. J.S.I. recalled hearing the victim say at least four or five
times, A[K.T.]=s my baby.@ The next morning, K.T. told the boys to stay in their
bedroom, and she turned up the television. J.S.I. could hear the victim yelling and then
heard nothing. He looked out the window and saw a car with dark-tinted windows
leaving the parking lot. On cross-examination, J.S.I. admitted telling Sergeant Mason
that he thought the victim left in the car, but he explained that he later learned that he was
mistaken. He left the bedroom, and Defendant told J.S.I. that he and the victim had been
arguing again and directed J.S.I. to go back to bed. Later that day, Defendant took the
children to Kmart where he purchased a saw. J.S.I. waited outside for three hours while
Defendant and K.T. were inside the apartment. J.S.I. went to the apartment once to use
the bathroom, and Defendant directed him to the master bathroom. When he was leaving
the apartment, he saw a tennis shoe through the partially opened door of the hallway
bathroom, but K.T. quickly shut the door before J.S.I. could see anything else. When
Defendant and K.T. came outside, Defendant and the children drove around throwing
black garbage bags into different dumpsters. J.S.I. recalled seeing a red liquid dripping
from the upright freezer. Defendant told J.S.I. that it was Hawaiian Punch but forbade
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J.S.I. from opening the freezer. Defendant moved the freezer from the apartment later
that night, claiming that it no longer worked.
K.T. was twelve years old when the victim died. She testified that she lived in
Covington, Tennessee with her brothers, the victim, and Mr. Gaither before Defendant=s
return in the fall of 2007. K.T. said that Defendant had been gone for a long time. She
recalled that she saw Defendant at her aunt=s house while visiting with the victim and her
brothers. Defendant awakened her to watch television with him. She fell asleep in the
living room and awoke to Defendant=s touching her vagina. She told him to stop but he
refused. He later threatened to hurt her if she told anyone about the incident.
K.T. testified that Defendant moved the family from Covington to Memphis. She
said that he Aconstantly@ touched her on her vagina, breasts, and buttocks. He also asked
her to touch his penis with her hand or her mouth. K.T. said that the touching occurred
Aabout every other day.@ She said that if she protested or fought back, Defendant would
force her to comply. She testified that Defendant hit her, punched her in the stomach,
choked her, put a knife to her throat, and threatened to kill her.
K.T. testified that she went to the hospital after suffering a miscarriage.
Defendant and the victim rode with her in the ambulance and were present when the
doctors interviewed her. She never told anyone that Defendant was having sex with her.
She testified that she never had sex with anyone other than Defendant. After the
miscarriage, Defendant=s sexual acts against K.T. continued. K.T. explained that when
she was interviewed by the Child Advocacy Center, she did not disclose what Defendant
was doing because he had driven her to the interview and she knew that she would be
going home with him.
K.T. recalled the victim=s leaving Defendant and moving the family to the Prince
Rupert apartment. She said that the victim began talking to Defendant again and
eventually allowed him to move back with the family. K.T. testified that the sexual
abuse resumed immediately. She said that Defendant would Aget crazy@ when angered,
so she always did what he instructed her to do.
K.T. testified that Defendant and the victim had been arguing about K.T. being up
late watching television on the night of February 8, 2008. K.T. went to bed. The next
morning, she awoke to the victim=s and Defendant=s arguing. As K.T. walked to the
hallway bathroom, she saw Defendant walk from the kitchen to the master bedroom with
a knife in his hand. When the victim threatened to telephone the police, Defendant bent
over and stabbed the victim in the neck. K.T. testified that she just Astood in shock.@
12
K.T. testified that Defendant ordered her to help him dismember the victim. He
threatened her with a knife. She testified that she turned up the volume of the television
and told her brothers to stay inside their bedroom. Defendant moved the victim=s body to
the upright freezer, cleaned the bedroom, and cut bloodstains from the carpet and
mattress. Defendant, K.T., and her brothers went to Kmart where Defendant purchased a
saw and to Family Dollar where Defendant purchased cleaning supplies. K.T. testified
that Defendant disposed of the kitchen knife in a garbage can at Kmart.
When they returned to the apartment, Defendant told the brothers to wait in the
car. Upstairs, Defendant moved the victim=s body from the freezer to the bathtub in the
hallway bathroom. Defendant taped K.T.=s hands behind her back and ordered her to
turn away as he removed the victim=s hands, feet, and head with the saw. K.T. testified
that she held the victim=s head after Defendant removed it and that Defendant ordered her
to wrap the body parts in plastic garbage bags and place them in the freezer. When the
boys returned to the apartment, they complained of the smell. Defendant had the
children assist in cleaning the apartment. Later that afternoon, Defendant returned the
saw to Kmart. During the night, Defendant asked K.T. to help him move the victim to
the trunk of the car. He then drove K.T. to Mississippi where he disposed of the victim=s
body parts in multiple locations. While removing the victim=s body from the trunk,
Defendant instructed K.T. to stand by the car with the hood open and a cellular telephone
in her hand in order to feign having car trouble should someone drive by. K.T. admitted
that she never telephoned the police because she was scared of Defendant. She said that
once Defendant was in handcuffs, she was no longer scared. She testified that, while
giving her statement on February 17, she Afelt like he couldn=t hurt [her] anymore.@
K.T. admitted to making allegations of sexual abuse when she was younger. Of
the many missed opportunities she had to tell someone about Defendant=s sexual abuse,
she explained A[Defendant] was around and at the end of the day I had to go home with
him.@ She testified that she told the truth during her February 17 statement because
Defendant was finally Alocked up.@ She testified that Defendant impregnated her,
leading to the miscarriage, but that she told the doctors about a boy at school because
Defendant was in the examination room with her.
Following a Momon colloquy, Momon v. State, 18 S.W.3d 152, 161-62 (Tenn.
1999), Defendant elected not to testify. Defendant presented no other evidence. Based
upon this evidence, the jury convicted Defendant of premeditated first degree murder,
initiating a false report, and abuse of a corpse.
At the sentencing phase of the trial, the State presented evidence concerning the
emotional and financial strain suffered as a consequence of the victim=s death. Cynthia
13
Guy, the victim=s older sister, testified that she and her husband are raising the victim=s
children, along with their two children, in a two-bedroom, one-bath home. She said that
K.T. attends weekly counseling appointments. Doctor Karen Elizabeth Chancellor,
Chief Medical Examiner for Shelby County, testified that the wounds to the victim=s body
were inflicted post mortem and were consistent with wounds from a circular saw.
Michelle Jones, keeper of records with the Shelby County Criminal Court Clerk=s Office,
testified that Defendant was previously convicted of 10 counts of aggravated robbery and
7 counts of aggravated assault. The parties stipulated to the accuracy of Defendant=s
prior convictions. Sheila Johnson, one of the aggravated robbery victims, testified that
Defendant participated in the robbery of a Piggly Wiggly market on November 12, 1997,
and that he employed a handgun during the robbery.
Defendant also presented proof at the sentencing phase of the trial. Jeannette
Stanback, a mitigation investigator with the Shelby County Public Defender=s Office,
testified that Defendant was one of four children born to James Hawkins, Sr. (AMr.
Hawkins@) and Della Thomas. Ms. Thomas had borne four other children. Mr.
Hawkins had fathered Amore than twenty@ children. Ms. Stanback testified that the
family history revealed that Defendant=s father sexually abused at least five of his
daughters. Ms. Stanback testified that Defendant=s brother, Chris, died at the age of 15
when he was shot standing outside the apartment where Defendant and his siblings
resided with their mother. Ms. Stanback testified that anecdotal reports from
Defendant=s family indicated that Defendant, who was 19 years old when his brother died,
received no counseling concerning his brother=s death and was arrested for the Piggly
Wiggly robbery within one year of Chris=s death. Defendant=s educational records
revealed that Defendant dropped out of school during the eighth grade and that
intelligence quotient testing of Defendant showed a full-scale IQ of 77. Ms. Stanback
testified that Defendant had been a Amodel inmate@ while in jail awaiting trial on these
charges.
Defendant=s mother, Della Thomas, testified that Mr. Hawkins never supported the
family financially and that he was abusive and controlling. Ms. Thomas was not aware
of any allegations of sexual abuse while the children were growing up but had recently
learned that two of Defendant=s sisters claimed Mr. Hawkins had sexually abused them.
Ms. Thomas recalled that Defendant was diagnosed with Attention Deficit Hyperactivity
Disorder and was prescribed Ritalin as a child. She testified that her son Chris died in
Defendant=s arms and that Defendant became violent and moody after Chris=s death. On
cross-examination, Ms. Thomas testified that she raised her children and that Mr.
Hawkins was Aout of the picture@ during most of their childhoods.
14
Following a full Momon colloquy, id., Defendant elected not to testify during the
sentencing phase. The State presented rebuttal evidence from Keely Gray, a Shelby
County Sheriff=s Department jailer, who testified that Defendant had received a sanction
for noncompliance when he refused a staff order. Although Defendant did not have a
disciplinary hearing, he did spend time in Alock down@ due to the sanction. Following
deliberations, the jury found beyond a reasonable doubt the existence of both aggravating
circumstances and that the aggravating circumstances outweighed any mitigating
circumstances beyond a reasonable doubt.
At hearings concerning Defendant=s petition for writ of error coram nobis,
Defendant presented two instances of allegedly newly discovered evidence: (1) that
previously undisclosed DNA testing performed on the fetal tissue taken from K.T.=s
miscarriage excluded Defendant as the father of K.T.=s child, and (2) that the State
concealed instances of sexual abuse committed by Defendant=s father that would have
been relevant to mitigation during the sentencing phase of the trial. As to the DNA
testing, the trial court found that the evidence would not result in a different outcome had
it been presented at trial because the testing results were inconclusive as to the paternity
of the fetal tissue. As to the evidence of sexual abuse committed by Defendant=s father,
the trial court found that such evidence was, in fact, presented at the sentencing phase of
the trial and that the State=s subsequent indictment of Defendant=s father was of no
consequence to the outcome of the sentencing phase.
ANALYSIS
GUILT-INNOCENCE PHASE ISSUES
Suppression of February 16 Statement
In his initial issue on appeal, Defendant contends that the trial court erred by
denying his motion to suppress his statements made to investigators on February 16,
2008, wherein he admitted to dismembering the victim=s body. He argues that he was
illegally detained without a warrant and without probable cause when approached by
officers on February 15 at 4:15 p.m. or, alternatively, that he was illegally detained
without a warrant and without probable cause when booked on a 48-hour investigative
hold at 1:59 a.m. on February 16. Thus, he argues that his statement made to
investigators on the evening of February 16 should be suppressed as fruit of the poisonous
tree flowing from the illegal detention. For the first time on appeal, Defendant also
raises, as plain error, that the delay in taking him before a magistrate should result in the
suppression of his February 16 statement.
15
The State contends that the trial court correctly denied Defendant=s motion to
suppress. The State argues that the evidence does not preponderate against the trial
court=s finding that Defendant accompanied investigators voluntarily to the police station
on the evening of February 15 and that Defendant=s detention on February 16 was
supported by probable cause relative to initiating a false report. Further, the State argues
that the February 16 statement was voluntarily and knowingly given after receiving full
Miranda advice. As to Defendant=s claim that his statement should be suppressed due to
a delay in taking him before a magistrate, the State argues that this issue does not rise to
the level of plain error because a clear and unequivocal rule of law has not been breached
because Defendant made the statement within the first 48 hours of his detention.
Three Memphis Police Department investigators, two of whom were called by the
State, testified at the hearing on Defendant=s motion to suppress evidence. No other
person, including Defendant, testified at the hearing. The following is a summary of the
evidence presented at the suppression hearing. Lieutenant Armstrong wanted to talk to a
man who at the time was a witness relative to the missing person report concerning the
victim in this case. When the witness failed to drive to the police department to give a
statement when he was asked to do so, Lieutenant Armstrong ultimately dispatched at
least three investigators in unmarked police vehicles to the area of the apartment where
the witness resided. Lieutenant Armstrong instructed investigators to look for the
vehicle used by the witness and to prevent the witness from leaving the premises. The
testimony indicated, however, that investigators were not authorized to knock on the
witness=s apartment door in order to obtain a statement from the witness.
While parked at the apartment complex watching the witness=s vehicle,
investigators observed the witness and his children getting into the car and driving away.
Investigators followed the witness toward the exit of the apartment complex. Soon the
witness turned around and started back in the direction of his apartment. Investigators
then Aturned on the blue lights to get [the witness] to stop.@
Upon making contact with the witness, investigators told the witness that he must
go downtown to the police department in order to give a statement concerning the missing
person report. The witness, however, wanted to give his statement at his apartment.
Investigators told the witness this was not possible. Investigators permitted the witness
and his children to return to the apartment to await the arrival of an adult to watch the
children. The witness had earlier expressed concerns about going to the police
department to give a witness statement because he had no one to stay with his three minor
children.
16
Lieutenant Armstrong drove to the witness=s apartment with an adult relative of the
children to alleviate the witness=s concern by providing a caregiver for the children.
Investigators required the witness to ride in a police vehicle to go to the police
department. However, he was not driven in one of the unmarked investigators= vehicles.
A Auniform patrol car@ was dispatched to transport the witness, who was placed into the
back seat, to the police department.
According to investigators, the witness was clearly not a suspect in any criminal
activity, and the officers had absolutely no legal grounds to arrest the witness.
Nevertheless, investigators stopped the witness by Ablue lighting@ the witness at
approximately 4:15 p.m. on Friday, February 15, 2008. Investigators transported the
witness in a marked patrol car and placed him in an interview room at the police station at
approximately 5:30 p.m. The interview room=s door locked so that a person inside could
not exit the room without a key. In other words, the witness was not free to leave the
interview room. Investigators entered the interview room at 6:00 p.m. and left at 6:24
p.m. Investigators did not return to the interview room until 7:24 p.m. It is undisputed
through the sworn testimony of investigators that throughout this time period the witness
was not a suspect in any criminal activity B therefore, according to investigators, there
were no legal grounds to hold the witness in custody.
On the evening of Friday, February 15, 2008, the witness gave a non-incriminating
statement, which was typed by investigators and later signed by the witness, denying any
knowledge of the victim=s disappearance or whereabouts. However, with multiple breaks
in the interview process taken by investigators, the statement was not signed until
approximately 10:00 p.m. At one point during the interview, the witness stated that he
wanted to go home, as he had provided all the information he could. Investigators then
told the witness that he could not leave because they wanted to ask him some more
questions. Investigators determined subjectively that the witness was not Aadamant@
enough in his request to be allowed to leave, so they kept the witness in the locked
interview room for some additional time period. The person who is described herein and
who investigators referred to as being only a Awitness@ is Defendant.
Additional evidence presented at trial showed that Defendant filed a missing
person report with MPD on February 12, 2008. On that day, Officer Houston went to the
Prince Rupert apartment to interview Defendant. Officer Houston recalled smelling a
strong odor of mothballs and ammonia, forcing her to stand in the doorway for the
interview. On February 14, 2008, an initially unidentifiable female body, without hands,
feet, or a head, was discovered in Mississippi. When the victim=s family inquired with
MPD about the possibility of the unidentified body being the victim, investigators decided
17
to contact Defendant in order to follow up on the missing person report that Defendant
filed on February 12.
In his February 15, 2008 statement to investigators, Defendant denied any
knowledge of the still unidentified body discovered in Mississippi. Defendant offered a
detailed account of the last time he saw the victim alive on February 9, 2008. On
February 15, investigators also interviewed J.S.I. and J.W.I., who gave statements
consistent to each another but different from Defendant=s account of the events leading up
to the victim=s leaving. The children also offered detailed accounts of Defendant=s and
the children=s activities on the weekend of the victim=s disappearance. When confronted
with statements made by the children, Defendant denied any knowledge of the events
reported by the children. On the evening of February 15, investigators searched the
apartment and found evidence of heavy cleaning and removal of a piece of carpeting and
a freezer from the apartment, confirming various aspects of the children=s statements and
refuting Defendant=s denials. We note that the search of the apartment and admission of
evidence from that search has not been challenged by Defendant. At 1:59 a.m. on
February 16, 2008, investigators arrested Defendant on a 48-hour investigative hold for
suspicion of first degree murder.
On February 16, following further investigation and a second search of the
apartment, investigators initiated a second interview with Defendant. This time
investigators advised Defendant of his Miranda rights. Although Defendant refused to
sign a waiver of rights form, he agreed to speak to investigators. During the first
interview on February 16, Defendant continued to deny any knowledge of the victim=s
whereabouts. While being walked back to the jail, however, Defendant spontaneously
said, AI didn=t do it, but I know who did.@ Defendant agreed to speak with investigators,
reportedly saying, AI=ll talk to you, but not in the [interview] room.@ Following an
additional Miranda advice, Defendant told investigators that he had assisted in covering
up the victim=s murder after K.T. killed the victim. Defendant admitted to dismembering
the victim=s body and disposing of her body in various locations in Mississippi.
Defendant then guided investigators to the areas where he had discarded the body, but
investigators were unable to locate the victim=s missing limbs and head.
At the conclusion of the hearing, the trial court found that the initial encounter
between investigators and Defendant on February 15 was consensual and that Defendant
voluntarily accompanied the investigators to the police station to give a statement
concerning the missing person report. The court found that the February 15 statement
occurred within a noncustodial setting and that Defendant voluntarily remained at the
police statement even when informing investigators that he had nothing more to tell them.
18
As to the statements made on February 16, the trial court found that Defendant=s
admissions in the hallway while being returned to the jail were Aspontaneous utterances@
that did not occur during interrogation and, therefore, did not require Miranda warnings.
The trial court further found that the investigators Acovered [Defendant=s] rights,
backwards and forwards,@ that Defendant understood his rights, and that the statements
were made voluntarily while being lawfully detained based upon probable cause to
believe Defendant had committed abuse of a corpse. The trial court made no specific
findings relative to whether Defendant was illegally detained by the officers= February 15
stop by activating the Ablue lights@ on their vehicle.
In Echols, our Supreme Court set forth the following standard of review for
suppression hearings:
[T]he standard of review applicable to suppression issues is well
established. When the trial court makes findings of fact at the conclusion
of a suppression hearing, they are binding upon this Court unless the
evidence in the record preponderates against them. Questions of credibility
of 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. The party prevailing in the trial court is entitled to the strongest
legitimate view of the evidence adduced at the suppression hearing as well
as all reasonable and legitimate inferences that may be drawn from that
evidence.
Our review of a trial court=s application of the law to the facts is de
novo with no presumption of correctness. Further, when evaluating the
correctness of the ruling on a motion to suppress, appellate courts may
consider the entire record, including not only the proof offered at the
hearing, but also the evidence adduced at trial.
State v. Echols, 382 S.W.3d 266, 277 (Tenn. 2012) (emphasis added) (citations omitted).
Because the State prevailed at the suppression hearing in this case, we afford the State the
strongest legitimate view of the evidence.
Defendant contends that he was illegally seized without a warrant on the afternoon
of February 15, 2008. The State argues that the trial court correctly found that Defendant
voluntarily accompanied investigators to the police station on the afternoon of February
15, 2008 and, therefore, no illegal seizure occurred.
19
There are three levels of police-citizen interactions: (1) a full-scale arrest, which
must be supported by probable cause in order to be valid; (2) a brief investigatory
detention, which must be supported by a reasonable suspicion, based upon specific and
articulable facts, of criminal wrong-doing; and (3) a brief Aencounter,@ which requires no
objective justification. State v. Day, 263 S.W.3d 891, 901 (Tenn. 2008). The definitive
test for determining whether a seizure has occurred under article I, section 7 of the
Tennessee Constitution is Awhether, >in view of all of the circumstances surrounding the
incident, a reasonable person would have believed he or she was not free to leave.=@
State v. Randolph, 74 S.W.3d 330, 336 (Tenn. 2002) (quoting State v. Daniel, 12 S.W.3d
420, 425 (Tenn. 2000)). As this court has stated, this determination requires the court to
Aexamine[] the circumstances from the standpoint of the citizen, not the police officer. If
a reasonable person would not feel free to leave due to an officer=s show of authority, that
constitutes a seizure, regardless of why the officer made the show of authority.@ State v.
Gonzales, 52 S.W.3d 90, 97-98 (Tenn. Crim. App. 2000). Our supreme court Ahas
adopted a totality of the circumstances test for determining whether a seizure has
occurred.@ State v. Moats, 403 S.W.3d 170, 182 (Tenn. 2013) (citing Daniel, 12 S.W.3d
at 425). As explained in Daniel,
Some of the factors which are relevant and should be considered by courts
when applying this totality of the circumstances test include the time, place
and purpose of the encounter; the words used by the officer; the officer=s
tone of voice and general demeanor; the officer=s statements to others who
were present during the encounter; the threatening presence of several
officers; the display of a weapon by an officer; and the physical touching of
the person of the citizen.
Id. at 425-26. AOnly when the officer, by means of physical force or show of authority,
has in some way restrained the liberty of a citizen may we conclude that a >seizure= has
occurred.@ Id. at 424. The activation of blue lights will often constitute a seizure because
Athe lights convey a message that the occupants are not free to leave.@ State v. Williams,
185 S.W.3d 311, 316 (Tenn. 2006).
We note that the trial court did not make any explicit finding of the credibility of
the testimony of the three investigators who testified at the suppression hearing, but we
are comfortable concluding that the trial court implicitly accredited their testimony. That
being said, we must respectfully disagree with the trial court=s determination that
Defendant voluntarily accompanied investigators to and remained at the police station on
the afternoon and evening of February 15. The evidence simply preponderates against
such a finding. Defendant ignored investigators= first request to meet at the police
station. Once stopped, Defendant indicated a desire to speak only at the apartment, but
20
investigators told him that was not possible. Investigators accompanied Defendant to the
apartment to wait on the arrival of childcare, which was arranged by Lieutenant
Armstrong. Defendant appeared nervous and did not want to go to the police station.
Despite this, Defendant was compelled to ride in the back seat of a uniform patrol car to
the police department. When he arrived at the police department, investigators secured
Defendant in a locked interview room for several hours while sporadically interviewing
him throughout the evening of February 15.
If we assume that the Memphis Police Department=s officers treat all Awitnesses@
who are not suspected of any criminal activity to this type of seizure and detention
without even reasonable suspicion of criminal activity, as testified to by investigators in
this case, it would be no surprise that witnesses are reluctant to come forward and
participate in any police investigation conducted by the department. A witness has the
same basic constitutionally protected rights as a person suspected of criminal activity.
Thus, whether Defendant is characterized by investigators as either a witness or a suspect,
we conclude that Defendant was seized and detained at the time investigators activated
their blue lights to stop Defendant. Williams, 185 S.W.3d at 318. This seizure was done
when, according to the testimony of the police officers, Defendant was only a Awitness@
and was not a suspect in any criminal activity.
Having determined that an illegal seizure occurred, we must now determine
whether Defendant=s statements made on February 16, 2008, should be excluded as fruit
of the illegal seizure. Our determination requires an examination of whether Defendant=s
February 16 statements were Asufficiently an act of free will to purge the primary taint@ of
the February 15 illegal seizure. Wong Sun v. U.S., 371 U.S. 471, 486, 83 S. Ct. 407, 406
(1963). In Brown v. Illinois, 522 U.S. 590, 95 S. Ct. 2254 (1975), the Supreme Court
outlined the factors to be considered when determining whether a statement obtained
following an illegal arrest should be suppressed:
The Miranda warnings are an important factor, to be sure, in determining
whether the confession is obtained in exploitation of an illegal arrest. But
they are not the only factor to be considered. The temporal proximity of
the arrest and the confession, the presence of intervening circumstances,
and, particularly, the purpose and flagrancy of the official misconduct are
all relevant.
Brown, 522 U.S. 590 at 603-04, 95 S. Ct. at 2261-62.
At the outset, we must note with disapproval the policy of the MPD that is
evidenced by the testimony of investigators concerning the use of a 48-hour investigative
21
hold when Awe believe we have probable cause that we could charge somebody with a
crime but we=re not prepared to do so.@ This testimony acknowledges that the MPD has
regularly employed a method of investigatory detentions that is unconstitutional, unless
the detention is otherwise supported by probable cause. State v. Bishop, 431 S.W.3d 22,
43, n.9 (Tenn. 2014) (citations omitted) (stating that A[i]f the Memphis Police Department
is, in fact, arresting suspects without probable cause and using this 48-hour hold
procedure to gather >additional evidence to justify the arrest,= this procedure clearly runs
afoul@ of constitutional precedent concerning illegal detentions). However, it matters not
whether the arresting officers themselves believed that probable cause existed. State v.
Huddleston, 924 S.W.2d 666, 667 (Tenn. 1996) (A[An officer=s] objective belief that he
did not have enough evidence to obtain a warrant is irrelevant to whether or not probable
cause actually existed.@).
Accordingly, we agree that the record supports the trial court=s determination that,
by 1:59 a.m. on February 16 when investigators arrested Defendant on a 48-hour
investigative hold, there existed probable cause to arrest Defendant for abuse of a corpse,
as well as initiating a false report. By that time in the investigation, investigators had
obtained statements from the children and confirmed certain aspects of the statements by
evidence gathered during the uncontested search of the apartment. That evidence, at a
minimum, implicated Defendant in the disposal of the victim=s body and cover-up of her
disappearance.
Likewise, we also agree that the record supports the trial court=s determinations
that Defendant=s statement made on the return to the jail was a spontaneous utterance and
that the inculpatory statements that followed during further interrogation were made
voluntarily and with full Miranda warnings. In our view, the evidence obtained through
the children=s statements, the search of the apartment, Defendant=s spontaneous
statements to investigators and offer of further discussion, and the voluntariness of the
ensuing statements establish intervening circumstances sufficient to purge the primary
taint of the initial illegal detention.
Turning now to Defendant=s claim that the February 16 statement should be
suppressed due to an unnecessary delay in taking him before a magistrate, Gerstein v.
Pugh, 420 U.S. 103, 95 S. Ct. 854 (1975), Defendant acknowledges that this claim was
not raised in the court below and argues that this court should grant relief via plain error.
Our supreme court has held that appellate courts are not precluded from reviewing issues
that are otherwise waived under the plain error doctrine. State v. Page, 184 S.W.3d 223,
230 (Tenn. 2006). This court may only consider an issue as plain error when all five of
the following factors are met:
22
(1) the record must clearly establish what occurred in the trial court;
(2) a clear and unequivocal rule of law must have been breached;
(3) a substantial right of the accused must have been adversely affected;
(4) the accused did not waive the issue for tactical reasons; and
(5) consideration of the error is Anecessary to do substantial justice.@
State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994) (footnotes omitted);
see also State v. Smith, 24 S.W.3d 274, 283 (Tenn. 2000) (adopting the Adkisson test for
determining plain error). Furthermore, the Aplain error must be of such a great
magnitude that it probably changed the outcome of the trial.@ Adkisson, 899 S.W.2d at
642 (internal quotations and citation omitted).
AThe Fourth Amendment requires a prompt judicial determination of probable
cause as a prerequisite to the extended detention of an individual after a warrantless
arrest.@ State v. Carter, 16 S.W.3d 762, 765 (Tenn. 2000) (citing Gerstein v. Pugh, 420
U.S. 103, 114 (1975)). A judicial determination of probable cause is generally
considered Aprompt@ if it is made within forty-eight hours. County of Riverside v.
McLaughlin, 500 U.S. 44, 55-56, 111 S. Ct. 1661, 1670, 114 L. Ed. 2d 49 (1991).
We determine that Defendant is not entitled to relief via the plain error doctrine
because he cannot establish that a clear and unequivocal rule of law has been breached.
The challenged statement was given within 24 hours of his arrest on the 48-hour hold, for
which we have determined that probable cause existed to charge Defendant with abuse of
a corpse and initiation of a false report. As such, the detention had not yet ripened into a
constitutional violation for failure to take Defendant to a magistrate. AObviously if the
statement was given prior to the time the detention ripened into a constitutional violation,
it is not the product of the illegality and should not be suppressed.@ See Huddleston, 924
S.W.2d at 675. Accordingly, Defendant is not entitled to relief as to this issue.
Trial Court=s Refusal to Accept Guilty Plea
Defendant contends that the trial court abused its discretion by refusing to accept
his guilty plea, made after the jury was sworn, to counts two and three of the indictment,
to wit: initiating a false report and abuse of a corpse. Defendant argues that the trial
court=s refusal to accept the plea resulted in Defendant=s being unable to exclude evidence
of other acts pursuant to Tennessee Rule of Evidence 404(b), which in turn constituted a
23
deprivation of due process and his right to present a defense. The State argues that the
trial court properly exercised its discretion in refusing to accept the plea.
After the jury was sworn, Defendant pleaded guilty to counts two and three and
then, in a bench conference, asked that any evidence concerning the false report or abuse
of a corpse be excluded pursuant to Rule 404(b). The trial judge declined to accept the
pleas, ruling that to do so would be disruptive to the judicial process because it would
require the court to engage in a full plea colloquy and 404(b) hearing after the jury had
been sworn.
AThe right to plead not guilty has inherently and constitutionally within it the right
to plead guilty.@ Lawrence v. State, 455 S.W.2d 650, 651 (Tenn. Crim. App. 1970).
AThere is, of course, no absolute right to have a guilty plea accepted.@ Santobello v. New
York, 404 U.S. 257, 262, 92 S. Ct. 495, 498 (1971). AWhen a Defendant challenges the
court=s failure to accept a plea, our obligation as an appellate court is to determine if an
abuse of discretion occurred.@ VanArsdall v. State, 919 S.W.2d 626, 630 (Tenn. Crim.
App. 1995). An abuse of discretion occurs when Ano substantial evidence supports the
conclusion of the trial judge.@ State v. Williams, 851 S.W.2d 828, 830 (Tenn. Crim.
App.), perm. app. denied (Tenn. 1992).
In State v. Chett Allen Walker, No. E2002-03093-CCA-R3-CD, 2003 WL
22258181 (Tenn. Crim. App., Oct. 2, 2003), perm. app. denied (Tenn. Mar. 8, 2004),
Defendant was charged with first degree murder, setting fire to personal property, and
abuse of a corpse. Prior to trial, Defendant pleaded guilty to setting fire to personal
property and abuse of the corpse. Nevertheless, the trial court submitted those charges to
the jury at the trial on the first degree murder charge, and the jury found the defendant
guilty of all three charges. On appeal, Defendant argued that the trial court abused its
discretion by refusing to accept the guilty pleas and submitting the two charges to the
jury. This court concluded that no abuse of discretion occurred based upon the trial
court=s determination that all the charges should be submitted to the jury because they
were included in one indictment and arose from the same criminal episode. Chett Allen
Walker, at * 7. This court stated further that
even if the trial court did abuse its discretion by refusing to accept the
Defendant=s guilty pleas, it is difficult to conceive of how such an error
could have prejudiced the Defendant, as he was found guilty by the jury of
the charges to which he intended to plea and the evidence of the other
crimes would have been admissible in the trial for the first degree murder
charge.
24
Id.
In State v. Hall, 958 S.W.2d 679 (Tenn. 1997), Defendant was charged with first
degree premeditated murder, first degree felony murder, and aggravated arson and was
facing the death penalty if convicted of first degree premeditated or felony murder.
Defendant pleaded guilty after the jury was sworn to arson and first degree felony murder.
The trial court refused to accept the pleas. Defendant maintained his guilt of arson and
first degree felony murder throughout the trial, contesting only his guilt of first degree
premeditated murder. Although Defendant did not raise the issue on appeal concerning
the trial court=s failure to accept the guilty pleas, the supreme court noted the attempted
pleas and approved the verdicts of first degree murder and aggravated arson. Hall, 958
S.W.2d at 686 n.5.
A[A] trial judge has broad discretion in controlling the course and conduct of the
trial.@ See, e.g., State v. Cazes, 875 S.W.2d 253, 260 (Tenn. 1994). In this case, the trial
court refused to accept Defendant=s impromptu guilty pleas made after the jury was sworn
based upon a finding that to do so would be disruptive to the proceedings and delay the
progress of the trial. Furthermore, as in Chett Alan Walker, we observe that Defendant
Awas found guilty by the jury of the charges to which he intended to plea and the evidence
of the other crimes would have been admissible in the trial for the first degree murder
charge@ as evidence of Defendant=s attempts to conceal the crime. Chett Alan Walker, at
*7. Even if Defendant had been allowed to plead guilty, evidence of the pleaded-to
crimes would have been admissible in Defendant=s murder trial. Accordingly, we
conclude that the trial court committed no abuse of discretion by refusing to accept
Defendant=s guilty pleas.
Admission of Victim=s Statements
Defendant presents three distinct arguments concerning the trial court=s admission
of statements made by the victim. In his first issue, he contends that the trial court
erroneously admitted, via the state of mind exception to the hearsay rule, through the
children=s testimony statements made by the victim that she threatened to telephone the
police. Tenn. R. Evid. 803(3). In his second issue, he contends that the trial court
erroneously admitted, via the state of mind exception to the hearsay rule, through the
testimony of Melvin Gaither statements made by the victim concerning her fear of
Defendant and her belief that Defendant would kill her. Tenn. R. Evid. 803(3). In his
third issue, he contends that the trial court erroneously admitted, via the public records
and forfeiture by wrongdoing exceptions to the hearsay rule, statements made by the
victim contained in the report and application for an ex parte order of protection. Tenn.
R. Evid. 804(b)(6).
25
As to the first issue, the State contends that the statements admitted through the
children=s testimonies are not hearsay because they were offered to establish the fact that
the victim communicated the threat to Defendant, thereby giving him a motive to kill the
victim, and not to establish that the victim actually intended to call the police. As to the
second issue, the State argues that the victim=s statements to Mr. Gaither were properly
admitted and A[e]ven if they were not, any error was harmless@ because the statements
were admissible to establish conduct by the victim consistent with her mental state
concerning her efforts to move herself and the children away from Defendant. As to the
third issue, the State argues that the trial court correctly applied the forfeiture by
wrongdoing exception to the hearsay rule only, noting that the trial court did not admit the
document via the business record exception to the hearsay rule.
Recently, in Kendrick v. State, 454 S.W.3d 450 (Tenn. 2015), the supreme court
explained the standard of review to be utilized when addressing the admissibility of
hearsay evidence:
The standard of review for rulings on hearsay evidence has multiple layers.
Initially, the trial court must determine whether the statement is hearsay. If
the statement is hearsay, then the trial court must then determine whether
the hearsay statement fits within one of the exceptions. To answer these
questions, the trial court may need to receive evidence and hear testimony.
When the trial court makes factual findings and credibility determinations
in the course of ruling on an evidentiary motion, these factual and
credibility findings are binding on a reviewing court unless the evidence in
the record preponderates against them. State v. Gilley, 297 S.W.3d [739,]
759-61[(Tenn. Crim. App. 2008)]. Once the trial court has made its factual
findings, the next questions B whether the facts prove that the statement (1)
was hearsay and (2) fits under one the exceptions to the hearsay rule B are
questions of law subject to de novo review. State v. Schiefelbein, 230
S.W.3d 88, 128 (Tenn. Crim. App. 2007); Keisling v. Keisling, 196 S.W.3d
703, 721 (Tenn. Ct. App. 2005).
Kendrick v. State, 454 S.W.3d 450, 479 (Tenn. 2015). Hearsay is defined as Aa
statement, other than one made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted.@ Tenn. R. Evid. 801(c). As
a general rule, hearsay is not admissible during a trial, unless the statement falls under one
of the exceptions to the hearsay rule. Tenn. R. Evid. 802.
26
Turning to the first issue, the trial court admitted through the children=s testimonies
the victim=s threats, communicated to Defendant, to telephone the police. Contrary to
Defendant=s assertion that the statements were admitted via the state of mind exception to
the hearsay rule, the record reflects that the trial court admitted these statements as
non-hearsay and as probative of the effect that the victim=s statements had on Defendant
as the listener. This court has noted that when an extrajudicial statement is offered to
prove the effect that the statement had on the listener, it is not offered as truth of the
matter asserted and is, therefore, not hearsay. State v. Carlos Jones, No.
W2008-02584-CCA-R3-CD, 2010 WL 3823028, at *14-15 (Tenn. Crim. App., Sept. 30,
2010). Accordingly, we conclude that the statements admitted through the children=s
testimonies were properly admitted as non-hearsay and were probative of the effect they
had on Defendant as the listener.
Turning to the second issue, the trial court admitted the victim=s statements made
to Mr. Gaither as probative of the victim=s mental state concerning her desire and efforts
to protect herself and her children from Defendant. Tennessee Rule of Evidence 803(3)
provides the following exception to the general rule excluding the admission of hearsay
evidence:
A statement of the declarant=s then existing state of mind, emotion,
sensation, or physical condition (such as intent, plan, motive, design, mental
feeling, pain, and bodily health) . . . .
Tenn. R. Evid. 803(3). Pursuant to this rule, otherwise inadmissible hearsay may be
admitted to establish the declarant=s conduct consistent with the declarant=s mental state at
the time that the statement was made. We agree that the victim=s hearsay statements
made to Mr. Gaither were admissible pursuant to Rule 803(3) to establish the victim=s
mental state and were probative of the victim=s attempts to leave Defendant and her
efforts to protect herself and her children from Defendant.
Turning to the third issue, the statements contained in the order of protection
application include: that Defendant assaulted the victim when she informed him that she
intended to leave with the children, that the victim suspected that Defendant was
molesting K.T., that the victim did not want Defendant around herself or the children, and
that Defendant threatened to retaliate if the victim kept K.T. from him. Applying the
forfeiture by wrongdoing exception to the hearsay rule, the trial court found that, by the
time that the victim provided the statements in the order of protection application, the
relationship between the victim and Defendant Ahad deteriorated to such a point@ that the
State was able to show by a preponderance of the evidence that Defendant=s motive for
killing the victim was to prevent her from prosecuting him for assaultive offenses
27
committed against herself and K.T. Contrary to Defendant=s argument on appeal, the
trial court did not admit the statements via the public records exception to the rules of
evidence, but the trial court did admit the statements as admissible hearsay pursuant to the
forfeiture by wrongdoing exception to the hearsay rule.
Tennessee Rule of Evidence 804(b)(6) provides:
A statement [made by an unavailable declarant] offered against a party that
has engaged in wrongdoing that was intended to and did procure the
unavailability of the declarant as a witness.
Tenn. R. Evid. 804(b)(6). This case is similar to State v. Ivy, 188 S.W.3d 132, 146
(Tenn. 2006), wherein the trial court found that Defendant killed the declarant-victim in
order to prevent her from going to the police about an aggravated assault he had
committed against the declarant-victim. The court admitted the statements of the
declarant-victim concerning the aggravated assault. The record reflects that the trial
court made the requisite findings before admitting the statements pursuant to the
forfeiture by wrongdoing exception to the hearsay rule. The record does not
preponderate against the trial court=s factual findings, and on de novo review, we
conclude that the victim=s statements contained in the order of protection application were
admissible pursuant to the forfeiture by wrongdoing exception to the hearsay rule. Thus,
Defendant is not entitled to relief as to any of the challenges to the trial court=s admitting
the victim=s statements.
Admission of Evidence of Other Acts
Defendant contends that the trial court erroneously admitted evidence of other acts
in violation of Tennessee Rule of Evidence 404(b). He specifically objects to the
testimony of J.W.I. and J.S.I that Defendant broke the victim=s cellular phone on one
occasion and that they both saw the victim red-faced after hearing a Aslap@ while
overhearing Defendant and victim arguing. Defendant claims that the evidence was
inadmissible character evidence, admitted to show that Defendant committed previous
assaults and was dangerous. Defendant also objects to K.T.=s testimony concerning the
alleged acts of sexual abuse committed by Defendant because, he argues, the prior acts
were not established by clear and convincing proof.
The State argues that the evidence elicited from the brothers is relevant to
Defendant=s motive to kill the victim because in each instance the bad acts occurred
amidst the victim=s threats to telephone the police. As to the evidence of sexual acts
28
committed against K.T., the State argues that the acts were established by clear and
convincing evidence and were probative of Defendant=s motive to kill the victim.
Rule 404(b) of the Tennessee Rules of Evidence provides that:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity with the
character trait. It may, however, be admissible for other purposes.
In State v. Mallard, 40 S.W.3d 473, 487 (Tenn. 2001), our supreme court held that
Aevidence that the defendant has committed some other crime wholly independent of that
for which he is charged, even though it is a crime of the same character, is usually not
admissible because it is irrelevant.@ Nonetheless, where the prior crime Ais relevant to
some matter actually in issue in the case on trial and if its probative value as evidence of
such matter in issue is not outweighed by its prejudicial effect upon the defendant, then
such evidence may be properly admitted.@ Mallard, 40 S.W.3d at 487. Additionally,
this court has previously stated, A[o]nly in an exceptional case will another crime, wrong,
or bad act be relevant to an issue other than the accused=s character. Such exceptional
cases include identity, intent, motive, opportunity, or rebuttal of mistake or accident.@
State v. Luellen, 867 S.W.2d 736, 740 (Tenn. Crim. App. 1992).
To admit such evidence, Rule 404(b) specifies the following:
(1) The court upon request must hold a hearing outside the jury=s presence;
(2) The court must determine that a material issue exists other than conduct
conforming with a character trait and must upon request state on the record
the material issue, the ruling, and the reasons for admitting the evidence;
(3) The court must find proof of the other crime, wrong, or act to be clear
and convincing; and
(4) The court must exclude the evidence if its probative value is outweighed
by the danger of unfair prejudice.
Tenn R. Evid. 404(b).
AThe safeguards in Rule 404(b) ensure that defendants are not convicted for
charged offenses based on evidence of prior crimes, wrongs or acts.@ State v. Gilley, 173
S.W.3d 1, 5 (Tenn. 2005) (citing State v. James, 81 S.W.3d 751, 758 (Tenn. 2002))
29
(emphasis in original). Should a review of the record indicate that the trial court
substantially complied with the requirements of Rule 404(b), the trial court=s admission of
the challenged evidence will remain undisturbed absent an abuse of discretion. James,
81 S.W.3d at 759; State v. Dubose, 953 S.W.2d 649, 652 (Tenn. 1997).
Defendant concedes that the trial court conducted the requisite inquiry before
admitting the other act evidence. The trial court determined that the acts were
established by clear and convincing evidence, that they were probative of Defendant=s
motive to kill the victim B to conceal and continue his sexual abuse of K.T. B and that the
probative value of the evidence was not outweighed by the danger of unfair prejudice.
Although the trial court admitted the prior acts of abuse, the trial court also limited
the State and its witnesses from referring to the sexual acts committed against K.T. as
Arape@ because K.T. did not specify in her pretrial testimony whether the sexual activity
occurred with her consent. At trial, K.T. testified extensively that the abuse occurred
without her consent. She recounted the sexual acts committed by Defendant, the
frequency of the acts, and her fear of Defendant. Overall, her testimony established that
the sexual activity occurred without her consent. To the extent that Defendant now
complains that K.T. characterized the abuse as Arape@ once during her testimony, we
determine that single reference is of no consequence to our analysis concerning the
propriety of the trial court=s ruling.
The State=s theory at trial was that Defendant killed the victim in an effort to
conceal and continue the sexual abuse of K.T. when the victim threatened to telephone
the police. In that vein, the testimony of J.S.I. and J.W.I. concerning Defendant=s two
prior assaults on the victim, which occurred during arguments about Defendant=s
relationship with K.T. and when the victim threatened to telephone the police, were
highly probative of Defendant=s motive. Likewise, K.T.=s testimony concerning the
sexual abuse she suffered from Defendant was highly probative of motive. The sexual
acts were established by clear and convincing evidence and corroborated at trial by the
testimony of both J.S.I. and J.W.I. who testified at trial to witnessing inappropriate
conduct between Defendant and K.T. We conclude that the trial court did not abuse its
discretion by admitting this evidence. Accordingly, Defendant is not entitled to relief as
to this issue.
Admission of Photographs of Bone Fragments
Defendant argues that the trial court erroneously admitted photographs of bone
fragments that he claims were gruesome and inflammatory. The State argues that the
photographs were in no manner gruesome. The State asserts that they were relevant to
30
Doctor Symes= testimony concerning the saw used to dismember the victim and that the
trial court committed no abuse of discretion by admitting the photographs.
It is within a trial court=s discretion to admit photographic evidence at trial, and
this court will not reverse the trial court=s determination absent an abuse of discretion.
State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). However, before a photograph may
be admitted into evidence, the relevance of the photograph must be established, and the
probative value of the photograph must outweigh any prejudicial effect. State v. Braden,
867 S.W.2d 750, 758 (Tenn. Crim. App. 1993). Doctor Symes testified concerning the
manner in which the victim=s feet, hands, and neck/head were removed. He utilized the
photographs of bone fragments to illustrate and explain that the cuts were consistent with
having been made by a standard skill saw blade. The photographs were not gruesome in
any way and merely showed the forensic samples examined by Doctor Symes as they
were packaged in plastic bags. We conclude that the photographs were relevant to the
manner in which Defendant dismembered the victim=s body, and we further determine
that the admission of the photographs was not outweighed by any prejudicial effect.
Accordingly, Defendant is not entitled to relief on this issue.
Alleged Discovery Violation
Defendant argues that the trial court should have excluded crime scene
photographs of luminol testing that were not provided during discovery. See Tenn. R.
Crim. P. 16(a)(1)(F). The State argues that the record does not establish that a discovery
violation occurred and that, assuming the photographs were not provided, Defendant
cannot establish any prejudice from the alleged discovery violation.
Tennessee Rule of Criminal Procedure 16(a)(1)(F)(iii) provides, in pertinent part:
Upon a defendant=s request, the state shall permit the defendant to inspect
and copy or photograph books, papers, documents, photographs, . . . if the
item is within the state=s possession, custody, or control and:
...
(iii) the government intends to use the item in its case-in-chief at
trial.
Tenn. R. Crim. P. 16(a)(1)(F)(iii). To enforce the rule, Rule 16(d)(2), provides that if
there has been noncompliance, the trial court may order the offending party to permit the
discovery or inspection, grant a continuance, prohibit the introduction of the evidence not
disclosed or enter such other order as the court deems just under the circumstances.
31
A[T]here is no mandatory exclusion that follows a violation.@ State v. Sherri Mathis,
M2009-00123-CCA-R3-CD, 2012 WL4461767, at *37 (Tenn. Crim. App., Sept. 26,
2012), perm. app. denied (Tenn. Feb. 25, 2013). Indeed, exclusion of the evidence is
disfavored.
[E]vidence should not be excluded except when it is shown that a party is
actually prejudiced by the failure to comply with the discovery order and
that the prejudice cannot be otherwise eradicated. See Rule 16(d)(2). The
exclusionary rule should not be invoked merely to punish either the State or
the defendant for the deliberate conduct of counsel in failing to comply with
a discovery order. The court=s contempt powers should be employed for
this purpose. Rules 12 and 16, as well as the other Rules of Criminal
Procedure[,] were adopted to promote justice; they should not be employed
to frustrate justice by lightly depriving the State or the defendant of
competent evidence.
State v. Garland, 617 S.W.2d 176, 185-86 (Tenn. Crim. App. 1981); State v. James, 688
S.W.2d 463, 466 (Tenn. Crim. App. 1984); State v. Briley, 619 S.W.2d 149, 152 (Tenn.
Crim. App. 1981).
At trial, Defendant objected to the introduction of the photographs during
Investigator Garey=s testimony concerning his use of luminol to detect blood evidence in
the Prince Rupert apartment. The State asserted that the photographs had been provided
during discovery but had possibly shown up very dark on the compact disc provided to
Defendant. The trial court took the issue under advisement pending Defendant=s
providing the compact disc of discovery items to the court for review and a determination
of whether the items had, in fact, been provided. The trial court admitted the
photographs, and the alleged discovery violation was not revisited until the motion for
new trial hearing.
At the motion for new trial hearing, Defendant maintained that he never received
the photographs and that had he received the photographs, he would have been able to
refute Investigator Garey=s testimony that luminol testing produced a degradation of
DNA material precluding any serology analysis of the Prince Rupert apartment hallway
bathroom. The trial court stated
I remember the one thing that came up was that ya=ll said you had
received them. The photographs were basically black. They looked
like over-exposed photographs that nobody could tell what they were.
And when I first saw the one on the screen, I said well, that=s just a B
32
there=s nothing there, but then there was some faint glow or something
like that they testified to.
There is no indication in the record that the trial court ever reviewed the compact disc that
was provided to Defendant in discovery.
In our opinion, Defendant failed to establish that a discovery violation occurred
relative to the crime scene photographs. Assuming for the sake of argument that the
photographs were not provided, we further conclude that Defendant failed to establish
any prejudice requiring exclusion of the photographs. Defendant confessed to
dismembering the victim=s body in the hallway bathroom. Indeed, during closing
argument, defense counsel acknowledged A[o]f course there=s going to be blood and
lumin[o]l in [the apartment]. I=d be shocked if they hadn=t found it.@ Furthermore,
Investigator Garey could have testified regarding the luminol testing and the degradation
of DNA evidence without the use of the photographs, which were only marginally
instructive to show the results of the luminol testing. The overall effect of the
photographs is neutral at best. Therefore, Defendant is not entitled to relief on this issue.
Improper Closing Argument
Defendant argues that the State=s improper closing argument deprived him of a fair
trial, citing to four instances of improper argument:
(1) the State=s reference to the Arape,@ after the trial court had precluded the
use of the word Arape@ prior to trial;
(2) the State=s characterization of Defendant as Amean;@
(3) the State=s characterization of Defendant as having Anever shed a tear@
for the victim; and
(4) the State=s utilization of a circular saw during rebuttal argument.
The State concedes that the reference to rape violated the trial court=s pretrial order, but
the State argues that the single reference cannot be prejudicial in light of K.T.=s testimony
that Defendant had sex with her every other day, that she did not want to have sex with
him, that he threatened her if she refused, and that he physically forced her to have sex
when she protested. As to the other instances of alleged improper argument, the State
contends that Defendant failed to object contemporaneously to them or include them in
his motion for new trial.
33
All of the instances of alleged improper argument occurred during the State=s
rebuttal argument. The record reflects that the State utilized the saw during rebuttal
argument by demonstrating a cutting motion as the power was turned on twice B once
while discussing the fear K.T. must have experienced by seeing her mother dismembered
and once more when describing Defendant as being Amean.@ The State then argued Athe
only person who shed one tear for Charlene Gaither was when [K.T.] sat in this stand and
talked about her mother dying and she cried. This man never shed a tear for Charlene
Gaither B never B never.@ Later, the State argued
Instead he goes and makes sure everything is clean but he makes his
kids do the cleaning. This is a nightmare. Horror films are supposed to
end, you=re supposed to be able to go home after the horror film. These
children lived in a horror film. Twelve year old [K.T.] sat there and
watched her mother be cut up and then a knife put to her throat and she was
threatened to be killed, after she had been raped repeatedly by this man.
Defendant failed to object contemporaneously to any of these instances of alleged
improper argument. At the motion for new trial hearing, Defendant raised as instances
of improper argument only the State=s characterization of him as Amean@ and the reference
to Arape.@
As previously discussed, Tennessee Rule of Appellate Procedure 36(b) provides
that A[w]hen necessary to do substantial justice, [this] court may consider an error that has
affected the substantial rights of a party at any time, even though the error was not raised
in the motion for a new trial or assigned as error on appeal.@ See also Tenn. R. Evid.
103(d). As stated previously, our supreme court has held that appellate courts are not
precluded from reviewing issues that are otherwise waived under the plain error doctrine.
Page, 184 S.W.3d at 230. As previously explained, this court may only consider an
issue as plain error, however, when all five of the following factors are met:
(1) the record must clearly establish what occurred in the trial court;
(2) a clear and unequivocal rule of law must have been breached;
(3) a substantial right of the accused must have been adversely affected;
(4) the accused did not waive the issue for tactical reasons; and
(5) consideration of the error is Anecessary to do substantial justice.@
34
Adkisson, 899 S.W.2d at 641-42 (footnotes omitted); see also Smith, 24 S.W.3d at 283
(adopting the Adkisson test for determining plain error). Furthermore, the Aplain error
must be of such a great magnitude that it probably changed the outcome of the trial.@
Adkisson, 899 S.W.2d at 642 (internal quotations and citation omitted).
It is well-established that closing argument is an important tool for both parties
during a trial; thus, counsel is generally given wide latitude during closing argument, and
the trial court is granted wide discretion in controlling closing arguments. See State v.
Carruthers, 35 S.W.3d 516, 577-78 (Tenn. 2000) (appendix). ANotwithstanding such,
arguments must be temperate, based upon the evidence introduced at trial, relevant to the
issues being tried, and not otherwise improper under the facts or law.@ State v. Goltz,
111 S.W.3d 1, 5 (Tenn. Crim. App. 2003).
In Goltz, 111 S.W.3d at 6, this court outlined Afive general areas of prosecutorial
misconduct@ that can occur during closing argument:
(1) intentionally misleading or misstating the evidence;
(2) expressing a personal belief or opinion as to the truth or falsity of the
evidence or defendant=s guilt;
(3) making statements calculated to inflame the passions or prejudices of
the jury;
(4) injecting broader issues than the guilt or innocence of the accused; and
(5) intentionally referring to or arguing facts outside the record that are not
matters of common public knowledge.
AIn determining whether statements made in closing argument constitute reversible error,
it is necessary to determine whether the statements were improper and, if so, whether the
impropriety affected the verdict.@ State v. Pulliam, 950 S.W.2d 360, 367 (Tenn. Crim.
App. 1996). In connection with this issue, we must examine the following factors:
(1) the conduct complained of viewed in context and in light of the facts
and circumstances of the case[;]
(2) the curative measures undertaken by the court and the prosecution[;]
35
(3) the intent of the prosecutor in making the statement[;]
(4) the cumulative effect of the improper conduct and any other errors in the
record[; and]
(5) the relative strength or weakness of the case.
Id. (quoting Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976)).
At the motion for new trial hearing, the trial court reasoned that the pretrial
prohibition of the use of the word Arape@ stemmed from K.T.=s pretrial testimony and the
trial court=s understanding Athat the child was not going to say that [the sexual contact]
was without consent.@ The trial court determined that the single reference to rape did not
amount to improper argument when viewed in light of K.T.=s testimony at trial that the
sexual contact was without consent. We agree that the reference to rape was not
improper in light of K.T.=s testimony at trial and that Defendant is not entitled to relief as
to this allegation.
The trial court determined that the State=s characterization of Defendant as Amean@
was not improper or prejudicial in light of the overall arguments by both parties. We
also agree with this determination and conclude that Defendant is not entitled to relief as
to this allegation.
As to the allegation concerning the State=s reference in rebuttal argument that
Defendant Ahad not shed a tear@ for the victim, Defendant failed to object to this statement
at trial and also failed to raise it in his motion for new trial. We will not review this
alleged misconduct.
Defendant contends that the State=s use during rebuttal argument of the circular
saw, which was turned on, to demonstrate how Defendant dismembered the victim=s body
in K.T.=s presence amounted to improper argument intended to inflame the jury. While
we caution that the use of exhibits may, in certain circumstances, amount to an improper
use of an exhibit that would tend to inflame the jury, see, e.g., State v. Payne, 791 S.W.2d
10, 20 (Tenn. 1990), we conclude that the State=s use of the circular saw was not improper
in this case. The evidence established Defendant=s use of the saw to dismember the
victim=s body in the presence of K.T. The State=s demonstration during closing
argument, while gruesome, was based upon the evidence presented at trial and was not
solely a demonstration made by the prosecution Acalculated to inflame the passions or
prejudice of the jury.@ Goltz, 11 S.W.3d at 6; cf. State v. Lemaricus Devall Davidson,
E2013-00394-CCA-R3-DD, 2015 WL 1087126, at *26 (Tenn. Crim. App., Mar. 10,
36
2015) (admission of photographs not error when, although photographs Awere disturbing,
we are mindful that the injuries inflicted upon the victims were also disturbing@).
Accordingly, Defendant is not entitled to relief as to any of his allegations of improper
argument.
Sufficiency of the Evidence
Defendant argues that the evidence is insufficient to support his conviction for first
degree murder because there is insufficient proof of premeditation, other than the
uncorroborated testimony of K.T., whom Defendant characterizes as an accomplice. The
State argues that K.T. was not an accomplice and that, therefore, the proof is more than
sufficient to sustain Defendant=s conviction of premeditated first degree murder.
When an accused challenges the sufficiency of the convicting evidence, our
standard of review is whether, after reviewing 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, 99 S. Ct. 2781, 2789 (1979).
The trier of fact, not this Court, resolves questions concerning the credibility of witnesses
and the weight and value to be given the evidence as well as all factual issues raised by
the evidence. State v. Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995). Nor may
this Court reweigh or re-evaluate the evidence. State v. Cabbage, 571 S.W.2d. 832, 835
(Tenn. 1978). On appeal, the State is entitled to the strongest legitimate view of the
evidence and all inferences therefrom. Id. Because a verdict of guilt removes the
presumption of innocence and replaces it with a presumption of guilt, the accused has the
burden in this Court of illustrating why the evidence is insufficient to support the verdict
returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
A[D]irect and circumstantial evidence should be treated the same when weighing the
sufficiency of [the] evidence.@ State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011).
Premeditated first degree murder is A[a] premeditated and intentional killing of
another[.]@ T.C.A. ' 39-13-202(a)(1). Premeditation Ais an act done after the exercise
of reflection and judgment. >Premeditation= means that the intent to kill must have been
formed prior to the act itself. It is not necessary that the purpose to kill pre-exist in the
mind of the accused for any definite period of time.@ T.C.A. ' 39-13-202(d). The
element of premeditation is a question of fact to be determined by the jury. State v.
Suttles, 30 S.W.3d 252, 261 (Tenn. 2000); State v. Bland, 958 S.W.2d 651, 660 (Tenn.
1997). Premeditation Amay be established by proof of the circumstances surrounding the
killing.@ Suttles, 30 S.W.3d at 261. The Tennessee Supreme Court noted that there are
several factors which tend to support the existence of premeditation, including the use of
a deadly weapon upon an unarmed victim, the fact that the killing was particularly cruel,
declarations of an intent to kill by the defendant, evidence of procurement of a weapon,
37
the making of preparations before the killing for the purpose of concealing the crime, and
calmness immediately after the killing. Id.; see Bland, 958 S.W.2d at 660.
Our supreme court recently explained the accomplice corroboration rule as follows
When the only proof of a crime is the uncorroborated testimony of one or
more accomplices, the evidence is insufficient to sustain a conviction as a
matter of law. State v. Collier, 411 S.W.3d 886, 894 (Tenn. 2013) (citing
State v. Little, 402 S.W.3d 202, 211-12 (Tenn .2013)). This Court has
defined the term Aaccomplice@ to mean Aone who knowingly, voluntarily,
and with common intent with the principal unites in the commission of a
crime.@ Id. (citing State v. Bough, 152 S.W.3d 453, 464 (Tenn. 2004);
Clapp v. State, 94 Tenn. 186, 30 S.W. 214, 216 (1895)). The test for
whether a witness qualifies as an accomplice is A>whether the alleged
accomplice could be indicted for the same offense charged against the
defendant.=@ Id. (quoting Monts v. State, 214 Tenn. 171, 379 S.W.2d 34,
43 (1964)). Although a defendant cannot be convicted solely upon the
uncorroborated testimony of an accomplice, Acorroborative 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.@ State v. Bane, 57 S.W.3d 411, 419 (Tenn. 2001)
(quoting State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994)).
Corroborative evidence must lead to the inferences that a crime has been
committed and that the defendant is implicated in the crime. Id.
State v. Jones, 450 S.W.3d 866, 887-88 (Tenn. 2014) (emphasis in original).
The question of who determines whether a witness is an accomplice depends upon
the evidence introduced during the course of a trial. Bethany v. State, 565 S.W.2d 900,
903 (Tenn. Crim. App. 1978). When the undisputed evidence clearly establishes the
witness is an accomplice as a matter of law, the trial court, not the jury, must decide this
issue. State v. Lawson, 794 S.W.2d 363, 369 (Tenn. Crim. App. 1990). On the other
hand, if the evidence adduced at trial is unclear, conflicts, or is subject to different
inferences, the jury, as the trier of fact, is to decide if the witness is an accomplice. Id.
Under either scenario, the issue of whether the witness=s testimony has been sufficiently
corroborated becomes a matter entrusted to the jury as the trier of fact. State v. Bigbee,
885 S.W.2d 797, 803 (Tenn. 1994).
Notably, Defendant did not request a jury instruction concerning the accomplice
corroboration rule. That being said, we agree with the State that K.T. was not an
38
accomplice in this case. The evidence at trial established that twelve-year-old K.T. was
victimized and controlled by Defendant in the months leading up to the victim=s death.
K.T. testified that she saw Defendant obtain a small knife from the kitchen, approach the
victim in the bedroom, and slit the victim=s throat when the victim threatened to telephone
the police. K.T. watched in stunned silence as Defendant held the victim until she died.
She stated that Defendant then threatened her life if she did not assist him in disposing of
the victim=s body. The proof does not establish that K.T. Aknowingly, voluntarily, and
with common intent with the principal unite[d] in the commission of a crime.@ Collier,
411 S.W.3d at 894. To the contrary, the evidence at trial established that K.T. was yet
another victim of Defendant=s control and domination. Furthermore, even if we were to
consider K.T. an accomplice, J.W.I. and J.S.I.=s testimonies, as well as the physical
evidence collected at the apartment, all corroborate K.T.=s testimony implicating
Defendant in the premeditated first degree murder of the victim. Therefore, we conclude
that there is sufficient evidence to support Defendant=s conviction of first degree murder.
Accordingly, Defendant is not entitled to relief as to this issue.
SENTENCING PHASE ISSUES
Discovery of Investigation of James Hawkins, Sr.
Defendant contends that the trial court erred by failing to require the State to
provide discovery related to the State=s investigation of James Hawkins, Sr., concerning
the sexual abuse of Defendant=s sisters. Evoking Brady v. Maryland, Defendant argues
that the State=s failure to provide the investigative file deprived Defendant of information
relevant to mitigation. He claims that evidence in the file could have established
Defendant=s exposure to abuse and violence as a child. The State counters that
Defendant has failed to establish prejudice from the denial of access to the prosecution=s
investigative file of Defendant=s father because Defendant presented ample evidence of
his father=s alleged sexual abuse of Defendant=s sisters.
In Brady v. Maryland, 373 U.S. 83 (1963), the United States Supreme Court held
that Asuppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.@ Brady, 373 U.S. at 87.
The Tennessee Supreme Court has held that a defendant must show four elements in
order to establish a Brady violation by the State:
(1) that the defendant requested the information (unless the evidence is
obviously exculpatory, in which case the State is bound to release the
information whether requested or not);
39
(2) that the State suppressed the information;
(3) that the information was favorable to the accused; and
(4) that the information was material.
Johnson v. State, 38 S.W.3d 52, 56 (Tenn. 2001).
AEvidence >favorable to an accused= includes evidence deemed to be exculpatory in
nature and evidence that could be used to impeach the State=s witnesses.@ Id. at 55-56
(emphasis added). AEvidence is deemed to be material when >there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.=@ Id. at 58 (quoting State v. Edgin, 902 S.W.2d
387, 390 (Tenn. 1995). In determining whether a defendant has adequately proven the
materiality of favorable evidence suppressed by the State, Aa reviewing court must
determine whether the defendant has shown that >the favorable evidence could reasonably
be taken to put the whole case in such a different light as to undermine the confidence of
the verdict.=@ Johnson, 38 S.W.3d at 58 (quoting Irick v. State, 973 S.W.2d 643, 657
(Tenn. Crim. App. 1998).
Ms. Stanback, the mitigation specialist, testified concerning Mr. Hawkins= sexual
abuse of Defendant=s sisters. Likewise, she also testified concerning the pending
criminal investigation. Ms. Thomas, Defendant=s mother, testified that she had only
recently learned of the sexual abuse allegations and that Defendant=s father was only
involved in a limited fashion during Defendant=s childhood. Under these circumstances,
we agree that Defendant has failed to establish the materiality of the pending criminal
investigation. Accordingly, Defendant is not entitled to relief as to this issue.
Special Requested Jury Instruction Regarding Presumptive Sentences
Defendant argues that the trial court should have instructed the jury that Athey were
to presume that a life sentence, a sentence of life without the possibility of parole, and a
death sentence would be carried out in accordance with the laws of the state.@ The State
correctly notes that this issue has been ruled to be without merit. State v. Thomas, 158
S.W.3d 361, 389-90 (Tenn. 2005).
Constitutional Attacks on the Death Penalty
40
Defendant makes myriad constitutional arguments concerning Tennessee=s death
penalty statute in general, as well as the imposition of the death penalty in this case.
Although not raised in this order in Defendant=s brief, we will address each one in turn for
the sake of clarity and cogency of our discussion.
Defendant argues that Tennessee Code Annotated section 40-23-114, concerning
the implementation of a lethal injection protocol, is an unconstitutional delegation of
legislative authority to the executive branch by permitting Athe department of correction . .
. to promulgate necessary rules and regulations to facilitate the implementation@ of a death
sentence. T.C.A. ' 40-23-114(c). The State argues that the legislature has determined a
conviction of first degree murder accompanied by aggravating circumstances is
punishable by death and that the method of execution shall be lethal injection. Allowing
the department of correction to establish a protocol for the implementation of lethal
injection does not constitute an unconstitutional delegation of legislative authority. See
Abdur=Rahman v. Bredesen, 181 S.W.3d 292, 309-310 (Tenn. 2005) (holding that the
department of correction may be tasked with determining protocol without violating
substantive or procedural due process).
Defendant argues that Tennessee Code Annotated section 39-13-204(h), the
unanimity requirement of the capital sentencing statute, is unconstitutional because it
precludes an instruction regarding the effect of a failure to agree on punishment. The
State fails to address this argument. In any event, this issue has been held to be without
merit. State v. Vann, 976 S.W.2d 93, 118 (Tenn. 1998).
Citing to Apprendi v. New Jersey, 530 U.S. 466, 494 (2000), Defendant argues that
the aggravating circumstances sought by the State to support the imposition of the death
penalty must be indicted by the grand jury. The State correctly notes that this issue has
been ruled to be without merit. Thomas, 158 S.W.3d at 389-90.
Defendant argues that the trial court=s use of the pattern instruction concerning
victim impact evidence amounted to an unconstitutional intrusion into the province of the
jury. The State correctly notes that this issue has been ruled to be without merit. State
v. Banks, 271 S.W.3d 90, 171-72 (Tenn. 2008).
Defendant argues that the death sentence is arbitrary and disproportionate.
Specific to the application of aggravating circumstances in this case, he contends that the
sentence is arbitrary because the trial court failed to determine whether his prior
convictions for aggravated assault involved the use of violence as required by State v.
Sims, 45 S.W.3d 1 (2001). The State correctly notes that Defendant failed to avail
himself of a Sims hearing when offered by the trial court, and thereby waived any
41
objection to the consideration of the aggravated assault convictions as prior violent
felonies. In any event, the ten remaining aggravated robbery convictions would render
the inclusion of the seven aggravated assault convictions harmless error, if error at all.
Defendant also contends that the death sentence is disproportionate when
compared to a broadened pool of first degree murder cases. This challenge to the
appellate review of capital cases have also been rejected. State v. Cazes, 875 S.W.2d
253, 270-71 (Tenn. 1994) (rejecting certain arguments concerning proportionality
review); State v. Pruitt, 415 S.W.3d 180 (Tenn. 2013) (refusal to broaden the pool of
cases considered in proportionality review).
Defendant challenges the constitutionality of the death penalty in that aggravating
circumstances (i)(2), (i)(5), (i)(6), and (i)(7) fail to narrow meaningfully the class of
eligible offenders. The State correctly notes that Defendant lacks standing to object to
the application of circumstances (i)(5), (i)(6), and (i)(7) because they were neither sought
nor found his case. As to his challenge to the application of (i)(2), that the aggravating
circumstance is overbroad because it has been construed to include as a prior conviction
any conviction which occurs prior to the sentencing hearing regardless of whether the
offense occurred prior to the first degree murder for which the defendant is being
sentenced, this argument must also fail. State v. Nichols, 877 S.W.2d 722, 736 (Tenn.
1994). Furthermore, we note that the prior convictions that were utilized in this case
concerned offenses that occurred years before the present offenses and, therefore, fall
squarely into that category of prior convictions to which Defendant seeks to limit the
application of the circumstance.
Defendant contends that prosecutorial discretion in seeking the death penalty
results in the unconstitutional and discriminatory imposition of the death penalty. This
argument has been rejected. Banks, 271 S.W.3d at 155-58.
Finally, Defendant contends that the pattern jury instructions create the mistaken
belief that jurors must agree unanimously on mitigating circumstances. This challenge to
the pattern jury instruction has likewise been rejected. Banks, 271 S.W.3d at 159.
Proportionality Review
In reviewing a case where a defendant has been sentenced to death, this court must
apply a comparative proportionality analysis. Tennessee Court Annotated section
39-13-206 provides that Athe reviewing court shall determine whether . . . the sentence of
death is excessive or disproportionate to the penalty imposed in similar cases, considering
both the nature of the crime and the defendant.@ T.C.A. ' 39-13-206.
42
Our supreme court has explained comparative proportionality review as follows:
In conducting a comparative proportionality review, we begin with
the presumption that the sentence of death is proportional with the crime of
first degree murder. State v. Hall, 958 S.W.2d 679 (Tenn. 1997). A
sentence of death may be found disproportionate if the case being reviewed
is Aplainly lacking in circumstances consistent with those in similar cases in
which the death penalty has previously been imposed.@ Id. (citing State v.
Ramsey, 864 S.W.2d 320, 328 (Mo. 1993)). A sentence of death is not
disproportionate merely because the circumstances of the offense are
similar to those of another offense for which a defendant has received a life
sentence. State v. Bland, 958 S.W.2d 651 (Tenn. 1997) (citing State v.
Carter, 714 S.W.2d 241, 251 (Tenn. 1986)). Our inquiry, therefore, does
not require a finding that a sentence Aless than death was never imposed in a
case with similar characteristics.@ Bland, 958 S.W.2d at 665. Our duty Ais
to assure that no aberrant death sentence is affirmed.@ Id. (citing State v.
Webb, 238 Conn. 389, 680 A.2d 147, 203 (Conn. 1996)).
Our proportionality review is neither a rigid nor an objective test.
Hall, 958 S.W.2d at 699. There is no Amathematical formula or scientific
grid,@ and we are not bound to consider only cases in which the same
aggravating circumstances were found applicable by a jury or trier of fact.
Id.; Brimmer, 876 S.W.2d at 84. This Court considers many variables
when choosing and comparing cases. Bland, 958 S.W.2d at 667. Among
these variables are: (1) the means of death; (2) the manner of death (e.g.,
violent, torturous, etc.); (3) the motivation for the killing; (4) the place of
death; (5) the similarity of the victims= circumstances including age,
physical and mental conditions, and the victims= treatment during the
killing; (6) the absence or presence of premeditation; (7) the absence or
presence of provocation; (8) the absence or presence of justification; and (9)
the injury to and effects on non-decedent victims. Id.; Hall, 958 S.W.2d at
699. Factors considered when comparing characteristics of defendants
include: (1) the defendants= prior criminal record or prior criminal activity;
(2) the defendants= age, race, and gender; (3) the defendants= mental,
emotional or physical condition; (4) the defendants= involvement or role in
the murder; (5) the defendants= cooperation with authorities; (6) the
defendants= remorse; (7) the defendants= knowledge of helplessness of
victim(s); and (8) the defendants= capacity for rehabilitation. Id.
State v. Hall, 976 S.W.2d 121, 135 (Tenn. 1998).
43
We have compared the circumstances of the present case with the circumstances of
similar cases and conclude that the sentence of death in this case is proportionate to the
sentences imposed in similar cases. See, e.g., State v. Davidson, 121 S.W.3d 600 (Tenn.
2003) (affirming death sentence where defendant had committed prior violent felonies
and had severed the victim=s head and hand); Terry v. State, 46 S.W.3d 147 (Tenn. 2001)
(affirming death sentence where defendant severed the victim=s head and hand); State v.
Bondurant, 4 S.W.3d 662 (Tenn. 1999) (affirming death sentence where defendant
dismembered the victim=s body). Likewise, the application of the prior violent felony
aggravating circumstance B a circumstance which the supreme court has described as
Amore qualitatively persuasive and objectively reliable than others,@ State v. Howell, 868
S.W.2d 238, 261 (Tenn. 1993) B lends further support to our conclusion that the sentence
imposed in this case is proportionate to sentences imposed in similar cases.
Sentencing on Related Felonies
Defendant argues that the trial court=s imposition of sentences for the remaining
felonies is excessive in both length and manner of service. At the sentencing hearing
concerning the false report and abuse of a corpse convictions, the trial court sentenced
Defendant as a Career Offender to a total effective sentence of 18 years. The trial court
also ordered the sentences to be served consecutively based upon its findings that
Defendant was a professional criminal and qualified as a dangerous offender.
First, Defendant argues that the State=s notice to seek enhanced punishment was
misleading because the notice cited to the code section concerning Career Offender but
indicated in the language of the notice that the State sought to sentence Defendant as a
Persistent Offender. The State argues that the typographical inconsistency on the notice
to seek enhanced punishment did not render it invalid and, in any event, Defendant
stipulated at the penalty phase of the trial the accuracy of his criminal history.
The purpose of the notice requirement is to provide a defendant with Afair notice@
that he is Aexposed to other than standard sentencing.@ State v. Adams, 788 S.W.2d 557
(Tenn. 1990). It is intended to facilitate plea-bargaining, to inform decisions to enter a
guilty plea, and to assist with decisions regarding trial strategy. When a detail of the
required information is omitted or incorrect, the inquiry should be whether the notice was
Amaterially misleading.@ Id. at 559. The supreme court specifically held that Awhen the
State has substantially complied with Section 40-35-202(a), an accused has a duty to
inquire about an ambiguous or incomplete notice and must show prejudice to obtain
relief. But it is the State=s responsibility to assert the appropriate sentencing status in the
44
first instance, and it may not shift these burdens to an accused by filing what is essentially
an empty notice.@ Id. (emphasis added).
The record reflects that Defendant did not challenge the notice to seek enhanced
punishment and, in fact, stipulated the accuracy of his prior convictions at the penalty
phase of the first degree murder trial. Based upon this stipulation, the trial court
sentenced Defendant as a Career Offender. We conclude that the notice to seek
enhanced punishment was not materially misleading. Defendant is not entitled to relief
on this issue.
Next, Defendant contends that the record does not support the trial court=s
determination that he is a professional criminal. The State acknowledges that the record
does not support the trial court=s finding of professional criminal but argues that the
record supports the trial court=s alternative determinations that Defendant possessed an
extensive history of criminal convictions and that he was a dangerous offender, justifying
the imposition of consecutive sentences in this case.
Our supreme court has held that Athe abuse of discretion standard, accompanied by
a presumption of reasonableness, applies to consecutive sentencing determinations@ Aif
[the trial court] has provided reasons on the record establishing at least one of the seven
grounds listed in Tennessee Code Annotated section 40-35-115(b)[.]@ State v. Pollard,
432 S.W.3d 851, 859-62 (Tenn. 2013). Thus, the imposition of consecutive sentencing is
subject to the general sentencing principles that the overall sentence imposed Ashould be
no greater than that deserved for the offense committed@ and that it Ashould be the least
severe measure necessary to achieve the purposes for which the sentence is imposed[.]@
T.C.A. ' 40-35-103(2) and (4). Further, A[s]o long as a trial court properly articulates
reasons for ordering consecutive sentences, thereby providing a basis for meaningful
appellate review, the sentences will be presumed reasonable and, absent an abuse of
discretion, upheld on appeal.@ Pollard, 432 S.W.3d at 862 (citing Tenn. R. Crim. P.
32(c)(1) (AThe order [for consecutive sentences] shall specify the reasons for this decision
and is reviewable on appeal.@)); see also State v. Bise, 380 S.W.3d 682, 705 (Tenn. 2012).
The application of an abuse of discretion with a presumption of reasonableness standard
of review when considering consecutive sentencing based upon the Adangerous offender@
category in T.C.A. ' 40-35-115(b)(4) does not eliminate the requirements of State v.
Wilkerson, 905 S.W.2d 933 (Tenn. 1995) that the Aproof must also establish that the terms
[of sentencing] imposed are reasonably related to the severity of the offenses committed
and are necessary in order to protect the public from further criminal acts by the
offender.@ Pollard, 432 S.W.3d at 863 (quoting Wilkerson, 905 S.W.2d at 938).
45
Tennessee Code Annotated section 40-35-115(b) provides that a trial court may
order sentences to run consecutively if it finds any one of the following criteria by a
preponderance of the evidence:
(1) The defendant is a professional criminal who has knowingly devoted the
defendant=s life to criminal acts as a major source of livelihood;
(2) The defendant is an offender whose record of criminal activity is
extensive;
(3) The defendant is a dangerous mentally abnormal person so declared by a
competent psychiatrist who concludes as a result of an investigation prior to
sentencing that the defendant=s criminal conduct has been characterized by a
pattern of repetitive or compulsive behavior with heedless indifference to
consequences;
(4) The 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;
(5) The defendant is convicted of two (2) or more statutory offenses
involving sexual abuse of a minor with consideration of the aggravating
circumstances arising from the relationship between the defendant and
victim or victims, the time span of defendant=s undetected sexual activity,
the nature and scope of the sexual acts and the extent of the residual,
physical and mental damage to the victim or victims;
(6) The defendant is sentenced for an offense committed while on
probation;
or
(7) The defendant is sentenced for criminal contempt.
T.C.A. ' 40-35-115(b).
These criteria are stated in the alternative; therefore, only one need exist to support
the appropriateness of consecutive sentencing. Here, the trial court applied factors (1),
(2), and (4) that Defendant is a professional criminal who knowingly devoted his life to
criminal acts as a major source of his livelihood, an offender whose history of criminal
activity is extensive, and a dangerous offender whose behavior indicates little or no
regard for human life. Because the trial court provided reasons on the record
46
establishing two of the statutory grounds for consecutive sentencing B extensive criminal
history and dangerous offender B we afford the trial court=s decision a presumption of
reasonableness. Furthermore, the record shows that the trial court followed the
principles and purposes of the Sentencing Act, and the record supports the trial court=s
findings. We conclude that the trial court did not abuse its discretion by ordering
Defendant=s sentences to run consecutively. Accordingly, Defendant is not entitled to
relief on this issue.
Denial of Petition for Writ of Error Coram Nobis
On October 30, 2013, while this appeal was pending, Defendant filed a petition for
writ of error coram nobis in the trial court alleging that previously undisclosed DNA
testing of fetal tissue collected at K.T.=s hospitalization for the December 2007
miscarriage and the State=s subsequent indictment of James Hawkins, Sr., for multiple
instances of sexual abuse committed against Defendant=s sisters warranted coram nobis
relief in the form of a new trial. Following a hearing, the trial court denied relief,
concluding that the DNA testing result, which was inconclusive as to paternity, would not
have resulted in a different judgment had it been presented at trial and that the evidence
concerning Defendant=s father=s history of sexually abusing Defendant=s sisters was
known and presented at trial as mitigation evidence.
On appeal, Defendant argues that the trial court erred in denying coram nobis
relief. The State argues that the DNA evidence was inconclusive as to paternity and,
therefore, could not reasonably affect the outcome of the trial; and that the evidence
concerning Defendant=s father was known and presented at trial and, therefore, does not
qualify as newly discovered pursuant to the coram nobis statute.
A writ of error coram nobis is a very limited remedy which allows a petitioner the
opportunity to present newly discovered evidence Awhich may have resulted in a different
verdict if heard by the jury at trial.@ State v. Workman, 41 S.W.3d 100, 103 (Tenn.
2001); see also State v. Mixon, 983 S.W.2d 661 (Tenn. 1999). The remedy is limited Ato
matters that were not and could not be litigated on the trial of the case, on a motion for
new trial, on appeal in the nature of a writ of error, on writ of error, or in a habeas
proceeding.@ T.C.A. ' 40-26-105. Examples of newly discovered evidence include a
victim=s recanted testimony or physical evidence which casts doubts on the guilt of the
Petitioner. Workman, 41 S.W.3d at 101; State v. Ratliff, 71 S.W.3d 291 (Tenn. Crim.
App. 2001); State v. Hart, 911 S.W.2d 371 (Tenn. Crim. App. 1995). The Supreme court
has stated the following concerning the standard to be applied when a trial court reviews a
petition for writ of error coram nobis:
47
[T]he trial judge must first consider the newly discovered evidence and be
Areasonably well satisfied@ with its veracity. If the defendant is Awithout
fault@ in the sense that the exercise of reasonable diligence would not have
led to a timely discovery of the new information, the trial judge must then
consider both the evidence at trial and that offered at the coram nobis
proceeding in order to determine whether the new evidence may have led to
a different result.
State v. Vasques, 221 S.W.3d 514, 527 (Tenn. 2007). Whether to grant or deny a petition
for writ of error coram nobis rests within the sound discretion of the trial court. Id. at
527-28.
The record reflects that the DNA testing neither excluded nor established
Defendant=s paternity because the testing yielded no evidence of paternal DNA. We
agree with the trial court that such inconclusive results, when viewed in light of the
testimony presented at trial that K.T. suffered a miscarriage and that Defendant was the
person who impregnated her, would not have resulted in a different outcome if presented
at trial. See, e.g., Antonio Leonard Sweatt v. State, M2006-00289-CCA-R3-PC (Tenn.
Crim. App., at Nashville, May 9, 2007), perm. app. denied (Tenn. Sept. 24, 2007)
(inconclusive DNA results do not warrant coram nobis relief). As to Defendant=s claim
concerning his father=s subsequent indictment for sexually abusing Defendant=s sisters,
the evidence presented at trial concerning the sexual abuse supports the trial court=s
findings that this evidence does not qualify as newly discovered. Therefore, we conclude
that the trial court did not abuse its discretion by denying coram nobis relief. Defendant
is not entitled to relief as to this issue.
Cumulative Error
Defendant argues that the cumulative effect of the alleged errors entitle him to a
new trial. Because we conclude any error was harmless beyond a reasonable doubt, we
further conclude that Defendant=s due process rights were not violated by any cumulative
effect of the alleged errors.
CONCLUSION
In accordance with Tennessee Code Annotated section ' 39-13-206(c), we have
considered the entire record and conclude that the sentence of death has not been imposed
arbitrarily, that the evidence supports the trial court=s finding of the statutory
circumstances, that the evidence supports the trial court=s finding that the aggravating
circumstances outweigh the mitigating circumstances beyond a reasonable doubt, and that
48
the sentence is not disproportionate. We have also reviewed all issues raised by
Defendant and conclude there is no reversible error. The judgments of the trial court are
affirmed.
______________________________________
_
THOMAS T. WOODALL, PRESIDING
JUDGE
49