State of Tennessee v. John T. Freeland Jr.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

January 9, 2013 Session

STATE OF TENNESSEE v. JOHN T. FREELAND, JR.

Direct Appeal from the Circuit Court for Madison County

No. 10-409 Roy B. Morgan, Jr., Judge

No. W2011-01828-CCA-R3-DD - Filed June 3, 2013

The Defendant, John T. Freeland, Jr., appeals from his Madison County Circuit Court

convictions of first degree premeditated murder, see Tenn. Code Ann. § 39-13-202(a)(1);

first degree murder committed in the perpetration of an especially aggravated kidnapping,

see id. § 39-13-202(a)(2); especially aggravated kidnapping, see id. § 39-13-305; and

tampering with evidence, see id. § 39-16-503(a)(1). Following a bench trial regarding both

guilt and punishment, see id. § 39-13-205, the trial court sentenced Defendant to death for

each first degree murder conviction based upon its findings that the defendant was previously

convicted of one or more felonies whose statutory elements involve the use of violence, see

id. § 39-13-204(i)(2); the murder was committed for the purpose of avoiding, interfering

with, or preventing a lawful arrest or prosecution of the defendant, see id. § 39-13-204(i)(6);

the murder was knowingly committed, solicited, directed, or aided by the defendant, while

the defendant had a substantial role in committing or attempting to commit, an aggravated

robbery, see id. § 39-13-204(i)(7); and that these aggravating circumstances outweighed any

mitigating circumstances beyond a reasonable doubt. The trial court also imposed

consecutive sentences of 20 years’ incarceration for the especially aggravated kidnapping

conviction and five years’ incarceration for the tampering with evidence conviction. In

addition to challenging the sufficiency of the evidence to support his convictions of first

degree murder and especially aggravated kidnapping, Defendant challenges the trial court’s

denial of his motion to suppress statements and the imposition of the death penalty. Because

we determine that the trial court failed to merge the first degree murder convictions at

sentencing, we remand the case for correction of the judgments to effectuate proper merger.

In all other respects, however, we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right;

Judgments of the Circuit Court Affirmed as Modified; Remanded

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J ERRY L. S MITH and

D. K ELLY T HOMAS, J R., JJ. joined.

A. Russell Larson and Angela Hopson, Jackson, Tennessee, for the appellant, John T.

Freeland, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney

General; James G. Woodall, District Attorney General; and Jody S. Pickens, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

On March 7, 2009, Harold Cain visited his parents’ land in the Dry Creek Lane area

of Pinson, Tennessee. While he and his father, W.S. Cain, drove “up in the woods looking

around,” they heard a single gunshot. Mr. Cain could not determine the direction of the shot,

so he “fired [his] pistol three or four times into the ground to let people know that [they] were

in the area.” As he and his father returned to the highway via Dry Creek Lane, they “saw

something on the side of the road” that they hoped was “a bag of clothes or trash.” As they

approached, they realized that the item was “a body facing down,” parallel to the road. Mr.

Cain immediately telephoned 9-1-1.

Once on the telephone with 9-1-1, the 9-1-1 operator asked Mr. Cain to check the

victim for a pulse. Mr. Cain recalled that the victim had no pulse. He also determined that

the victim had recently died because the body was not cold to the touch. Mr. Cain reported

to 9-1-1 that the victim had suffered a “massive head injury” from an apparent gunshot

wound. The 9-1-1 operator instructed the Cains to secure the scene and wait for the police

to arrive. Mr. Cain testified that approximately 15 minutes passed from his hearing the single

gunshot to discovering the victim’s body on the side of the road.

On cross-examination, Mr. Cain explained that, after hearing the gunshot, he fired his

pistol into the base of a tree. He testified that he and his father were approximately 200 yards

away and out of view from the area where he discovered the victim’s body minutes later. He

said that approximately 10 minutes passed while he and his father waited for the police to

arrive and that no one entered the scene during that time.

On March 7, 2009 at approximately 3:22 p.m., Deputy Bradley Crouse of the Chester

County Sheriff’s Department (CCSD) responded to investigate the discovery of a body on

Dry Creek Lane. Henderson Police Department (HPD) Officer Jason Rose arrived soon

thereafter to assist Deputy Crouse. Mr. Cain directed the officers to the victim’s body.

Deputy Crouse testified at trial that he “observed a white female lying face down to the right

side of the roadway. It was gravel road with blood pooling around her head.” Deputy

Crouse did not collect any evidence. He instead secured the area and immediately contacted

the Tennessee Bureau of Investigation (TBI) to investigate the incident. In securing the area,

-2-

Deputy Crouse instructed Mr. Cain to move his vehicle, which was parked within the

perimeter of the crime scene. Deputy Crouse denied that Mr. Cain’s checking the victim’s

pulse contaminated the crime scene. He recalled seeing tire tracks in the gravel road

indicative of someone’s accelerating while leaving the scene.

Doctor Paul Schwartz, Medical Examiner for Chester County, arrived at the scene to

determine the victim’s cause and time of death. He found the victim lying in the dirt road

with a gunshot wound to her head. He observed the “early state of clotting” of blood around

the victim’s head and her “reasonably warm” skin. Thus, Doctor Schwartz determined that

the victim’s death had occurred “relatively recent[ly].” He also observed what appeared to

be a 9 millimeter shell casing near the victim’s body.

A few hours later, Deputy Mark Taylor of the Madison County Sheriff’s Department

(MCSD) arrived at the scene of a burning vehicle on Potts Chapel Road in nearby Madison

County. He observed that the car was “completely burned” and “r[a]n the VIN number” to

determine ownership of the vehicle. When he checked the vehicle identification number, the

MCSD dispatcher instructed Deputy Taylor to contact the Chester County Sheriff’s

Department because the car was “wanted in relation to something else.” Once CCSD

investigators arrived at the scene of the burned vehicle, Deputy Taylor learned that the car

was registered to Carolyn Ward.

CCSD Investigator Jason Crouse (Deputy Bradley Crouse’s brother) learned that

MCSD officers had discovered a burned car and suspected the vehicle could be linked to the

body found on Dry Creek Lane. From the vehicle’s registration information, Investigator

Crouse looked up Carolyn Ward’s driver’s license information. He then determined the

victim on Dry Creek Lane to be Carolyn Ward. Investigator Crouse also learned that the

victim’s daughter, Mary Davis, worked as a corrections officer in the Chester County Jail.

He went to the jail to inform Ms. Davis of her mother’s death. Investigator Crouse recalled

that, although Ms. Davis was aware of a body’s discovery on Dry Creek Lane, she was “very

surprised” to learn that the victim was her mother.

Doctor Staci Turner, a forensic pathologist with Forensic Medical at the time of the

victim’s death, performed the autopsy of the victim. Doctor Turner determined that the

victim suffered a gunshot wound to her head and right hand. She explained at trial that a

bullet entered the victim’s head on the right back side and exited on the left temple. She

testified that the bullet damaged “multiple areas of the brain” as it forged a path from the

“right to left, back to front, and slightly upward” direction through the victim’s head. She

opined that the wound was not survivable. Doctor Turner’s examination also revealed a

gunshot wound to the back of the victim’s right hand that exited through the victim’s palm,

-3-

causing a contact burn to one of the fingers. Doctor Turner testified that it was “possible”

that a single bullet caused the victim’s injuries.

Emma Hawkins, a forensic technician with Forensic Medical, collected clothing and

other items from the victim’s body. She also collected fingerprints and a deoxyribonucleic

acid (DNA) sample from the victim for later use by the TBI in the investigation of the

victim’s death.

Donnie Davis, the victim’s son-in-law, last talked to the victim at approximately 1:30

p.m. on March 7, 2009. He recalled that the victim telephoned him to inform him that she

had picked up his family’s dog at the groomer and dropped it off at his home. Mr. Davis

returned home at approximately 2:15 p.m. to find the dog at home. His wife, Mary Davis,

was asleep having worked the third shift at the jail the night before.

Mary Davis learned of her mother’s death while at work on the night of March 7-8,

2009. She testified at trial that she had given her mother a cellular telephone just prior to her

death. By locating the packaging from the telephone, Ms. Davis provided the serial number

of the telephone to investigators. Investigators later located the cellular telephone at the

Defendant’s residence.

Johnna Arnold, the victim’s best friend, had taken the victim to lunch in Jackson on

March 7, 2009. After lunch, Ms. Arnold asked the victim to join her while she ran errands.

The victim declined because she needed to pick up Ms. Davis’s dog at the groomer by 2:00

p.m. Ms. Arnold recalled telling the victim that Fred’s in Henderson had Pepsi on sale. The

victim indicated that she would go to Fred’s to purchase Pepsi later that afternoon.

Sometime before 2:00 p.m., Ms. Arnold saw the victim leaving the Fred’s parking lot. She

noticed a passenger in the victim’s car. She also noticed that the victim was driving faster

than usual and that another car followed closely behind the victim’s car as it exited the

parking lot. Ms. Arnold testified that both vehicles turned onto the highway toward Pinson,

Tennessee. Ms. Arnold described the passenger in the vehicle as having a “black”

complexion, but she admitted that she could not see any distinct facial features because the

passenger was wearing a hooded sweatshirt.

Jeff Bobo, manager of the Piggly Wiggly Market in Henderson, testified that his store

shares a parking lot with Fred’s. He said that the store maintains video surveillance of the

parking lot. He provided surveillance footage from March 7, 2009, to Deputy Blair Weaver

of the CCSD.

Mr. Weaver, who was Chester County Sheriff at the time of the trial, obtained the

surveillance recording from Mr. Bobo. On the video, Sheriff Weaver observed the victim’s

-4-

car leaving the parking lot at approximately 1:57 p.m. He also observed a blue Buick

Roadmaster following the victim’s car. Sheriff Weaver alerted law enforcement that the

Buick was a “suspect” vehicle.

CCSD Chief Deputy Mark Griffin responded to the scene at Dry Creek Lane. He

described the area as “a one lane dead end road out in the rural part of the country.” Deputy

Crouse and Officer Rose had already secured the scene when Chief Deputy Griffin arrived.

Chief Deputy Griffin observed “blood pooling around the [victim’s] head.” He also observed

a gunshot wound to the victim’s right hand and a burn on one of the victim’s fingers. He

located a bullet near the victim’s right hand and a single .38 caliber shell casing at the scene.

Through his investigation, he learned that a Buick traveled “in close proximity” to the victim

as she left the Fred’s parking lot. Chief Deputy Griffin sought the assistance of the Jackson

Police Department (JPD) “Gang Unit” to locate the vehicle, owned by the Defendant. After

taking the Defendant’s statement, Chief Deputy Griffin revisited the arson scene and located

two license plates, registered to the victim’s 1996 Chevrolet Corsica, that had been thrown

into the woods. This was the vehicle that had been burned in Madison County.

On cross-examination, Chief Deputy Cain testified that when he arrived at the scene,

Mr. Cain’s vehicle was located inside the perimeter tape. He then asked Mr. Cain to move

the vehicle outside the perimeter. Although he observed tire tracks in the gravel road, he did

not take any tire print castings. He testified that the “tire prints” appeared to be “where

gravel had been spun loose from the packed down roadway.” He said that the tires on Mr.

Cain’s vehicle bore a “distinctive tread pattern” that did not match the tracks that he

observed.

On March 9, 2009, JPD Sergeant Phillip Kemper and Captain Patrick Willis briefed

Investigators Samuel Gilley and Warren Olden, both members of the Street Crimes Unit in

March 2009, to be on the lookout for a blue Buick Roadmaster believed to have been

involved in the victim’s homicide. During the briefing, the investigators watched the

surveillance video from the Piggly Wiggly parking lot and observed a “heavy set black

male,” who was suspected to be involved in the victim’s death. The investigators also

learned that the victim’s assailant employed a small caliber handgun.

Sometime the next day, Investigators Gilley and Olden located a blue Buick

Roadmaster parked near a mechanic shop in Jackson. The investigators parked at a nearby

church until someone exited the shop to leave in the vehicle. They then saw a “[h]eavy set

black male [with] dreadlocks” get into the vehicle. Although the traffic was too heavy to

stop the vehicle at that time, the investigators ran the license tag number of the vehicle and

learned that it was registered to the Defendant. A search of the Defendant’s driver’s license

-5-

records confirmed that he was the individual fitting the description seen driving the vehicle.

The investigators also learned that the Defendant was driving on a suspended license.

Later that day, the investigators located the vehicle once more at the Park Place

Apartments in Jackson where they were able to initiate a stop. Investigator Gilley then

arrested the Defendant for driving on a suspended license. Investigator Olden approached

the passenger side of the vehicle where Marcus Thompson was seated. He observed the butt

of a handgun near the power seat controls on the passenger seat. Because Mr. Thompson did

not have a valid driver’s license, the investigators towed the vehicle. A search of the vehicle

uncovered a bandana, two ski masks, a pair of green and white “batting gloves,” a newspaper

opened to the story of the victim’s murder, a “small amount of marijuana,” and a live round

of .38 caliber ammunition.

TBI Special Agent Mark Lewis and CCSD Chief Deputy Griffin consulted JPD

Sergeant Kemper after the initial investigation of the victim’s death revealed that the victim

“didn’t have any enemies. And [the death] appeared to be something that could have

possibly been gang related.” Sergeant Kemper briefed members of the Street Crimes and

Gang Enforcement Units to be on the lookout for the blue Buick Roadmaster. Sergeant

Kemper arrived at the scene of the Defendant’s March 10, 2009 arrest and immediately

recognized that Mr. Thompson wore “gang type clothing.” He testified at trial that the items

recovered from the Defendant’s vehicle – bandanas, ski masks, and gloves – were “gang type

paraphernalia.” Sergeant Kemper further testified that the discovery of the vehicle, .38

caliber handgun, ski masks, and newspaper article concerning the victim’s death “definitely

indicated” the Defendant’s involvement.

Sergeant Kemper, with the assistance of Captain Willis, took three statements from

the Defendant. Prior to each statement, he read the Defendant a rights waiver, the Defendant

indicated his understanding of his rights, and the Defendant signed a waiver each time.

In his first statement to investigators, made at 8:00 p.m. on March 10, 2009, the

Defendant denied being in Henderson on March 7, 2009. Once confronted with the

surveillance video from the Piggly Wiggly parking lot, the Defendant admitted that he had

been in Henderson on the day of the victim’s death. The Defendant told investigators that

he, Mr. Thompson, and Tashondra Mosely (Mr. Thompson’s girlfriend) traveled to

Henderson in the Defendant’s car. At the Fred’s parking lot, Mr. Thompson approached the

victim’s vehicle, got into the passenger seat, and ordered the victim to drive while the

Defendant and Ms. Mosely followed in the Defendant’s car. They stopped once on the side

of the highway when the victim suffered an apparent epileptic seizure. The Defendant told

investigators that he saw Mr. Thompson pull a gun on the victim and order her to “wake up.”

He said that the victim “came to,” and they drove off again. The Defendant claimed that Mr.

-6-

Thompson told him “he was going to drop [the victim] off” and instructed the Defendant and

Ms. Mosely to drive in another direction. The Defendant told investigators that they later

met Mr. Thompson, who was driving the victim’s car, at a Texaco where they purchased

gasoline and switched vehicles. The Defendant and his cohorts then left his vehicle at

Lincoln Elementary School in Jackson, and the three went to Memphis in the victim’s car

with plans to commit a robbery. When their trip to Memphis proved fruitless, the three

returned to Jackson, picked up the Defendant’s car, and drove both vehicles to an isolated

area where they salvaged items from the victim’s car. Mr. Thompson then doused the car

with gasoline to set it on fire. The Defendant told investigators that he found two license

plates in the victim’s trunk that he threw into the woods. The Defendant claimed that he did

not know that Mr. Thompson had a gun or that Mr. Thompson intended to kill the victim.

On March 11, 2009, at 6:05 p.m., the Defendant asked to speak with investigators in

order to “clear up some things” from his first statement. After executing a second rights

waiver, the Defendant told investigators that he and Mr. Thompson planned to go to

Henderson “to get a car to go to Memphis in” to commit a robbery. After following two

other vehicles without attempting to take them, they spotted the victim parked in Fred’s

parking lot. The Defendant said that Mr. Thompson handed him the .38 caliber handgun and

instructed him to approached the victim by entering the passenger side of the victim’s car.

The Defendant said that he entered the car and ordered the victim to drive. The Defendant

said that he held the gun on his lap.

The Defendant told investigators that the victim exited the parking lot and then

suddenly began “jerking around like she was having a seizure.” The Defendant told

investigators that he had to take control of the car and pull over to the shoulder of the

highway. When he pulled over, Mr. Thompson approached the vehicle, took the gun from

the Defendant, and threatened the victim. Once the victim “came to,” Mr. Thompson told

the victim to follow the Defendant’s car, and he then returned the gun to the Defendant.

They stopped once more and Mr. Thompson got into the backseat of the victim’s car and

ordered the victim to switch seats with the Defendant. Mr. Thompson gave Ms. Mosely

money to purchase gas for the Defendant’s car and told her to return to Jackson. Mr.

Thompson then instructed the Defendant to drive to a dirt road. The Defendant said that,

once they arrived at the dirt road, Mr. Thompson dragged the victim from the car and told

the Defendant to turn the vehicle around to watch for traffic on the highway. The Defendant

told investigators that he heard a single gunshot as he turned the vehicle. The Defendant

denied seeing Mr. Thompson shoot the victim. When he did turn to look, the Defendant saw

the victim “laying face down and M[r. Thompson] standing a couple of feet away from her

and looking at the gun.” The Defendant told investigators that he then pulled the car around

to get Mr. Thompson. He said that the two sat in silence for some time until Mr. Thompson

said, “‘Man, it was hard to pull the trigger.’”

-7-

In his second statement to investigators, the Defendant said that he and Mr. Thompson

returned to the highway and found Ms. Mosely driving around, apparently lost. They met at

a gas station, and Mr. Thompson then rode with Ms. Mosely in the Defendant’s car. After

dropping the Defendant’s car off at Lincoln Elementary School, the trio stopped at Dick’s

Sporting Goods where the Defendant purchased black batting gloves. They bought some

marijuana on their way to Memphis. When the trip to Memphis proved fruitless, they

returned to Madison Apartments in Jackson. They set fire to the victim’s car later that

evening after salvaging several items from the car.

On March 16, 2009, the Defendant initiated contact with the investigators and gave

a third statement. After executing a third waiver of rights, the Defendant told the

investigators that he only turned the car around once while on the dirt road. He also said that

he heard the gunshot while turning the car and looked to see Mr. Thompson standing over

the victim. When Mr. Thompson returned to the car, he told the Defendant that he shot the

victim because she had a cellular telephone in her pocket. The Defendant told investigators

that the Pepsi found in the trunk of his car had been taken from the victim’s car. He

explained to the investigators that he was “in pretty bad shape money wise” and did not want

to move home so he “just got caught up needing money and listening to M[r. Thompson].”

Captain Patrick Willis of the JPD assisted Sergeant Kemper during each of the

Defendant’s statements. Captain Willis witnessed each rights waiver executed by the

Defendant at the Jackson Police Department. Captain Willis testified that searches of the

Defendant’s parent’s home and the Defendant’s girlfriend’s apartment uncovered black

Dickie pants, black Air Jordans, and bandanas resembling those seen in the surveillance

video. On March 17, 2009, Captain Willis accompanied the Defendant to TBI headquarters

where the Defendant agreed to take a polygraph examination and ultimately gave a fourth

statement. Captain Willis testified that the Defendant went to the TBI office voluntarily and

was not handcuffed during the interview. He recalled the Defendant’s executing a fourth

rights waiver and polygraph consent form. Before TBI Special Agent Valerie Trout could

begin the polygraph examination, however, the Defendant admitted to Special Agent Trout,

“I shot her.” Once the Defendant made this inculpatory admission, the tenor of the interview

changed from a polygraph examination to an interrogation. Therefore, the Defendant never

took a polygraph test.

TBI Special Agent Valerie Trout met with the Defendant on March 17, 2009, to

administer a polygraph examination. She testified at trial, “After talking to [the Defendant]

for a short period, he dropped his head and told me that he was in fact the one who shot the

woman.” Once the Defendant made this admission, Special Agent Trout called Captain

Willis into the interview room. The Defendant then agreed to give a statement.

-8-

In his fourth statement, the Defendant explained that Mr. Thompson wanted to obtain

untraceable cars to use in robberies in Memphis. He said, “The plan was to target an older

person, take them out of town, [and] drop them off somewhere.” The Defendant told Special

Agent Trout and Captain Willis that he wore black Air Jordan tennis shoes, black Dickie

pants, a black sleeveless t-shirt, and a black hoodie on the day of the victim’s death. He told

the investigators that he and his cohorts followed an elderly couple from the Fred’s parking

lot to the couple’s home, but the trio abandoned their plan to steal the couple’s car because

too many people were outside. Next, the trio followed a woman in a white BMW to a

parking lot, but they also abandoned their plan to steal her vehicle. They returned to Fred’s

parking lot where they soon spotted the victim in her car. The Defendant said that Mr.

Thompson gave him a gun and told him to approach the victim. The Defendant again said

that the victim suffered a seizure while driving, causing them to pull over. He told

investigators that Mr. Thompson walked over to the victim and said, “Cooperate or I’ll kill

you right here.” Mr. Thompson handed the gun back to the Defendant. Soon, they stopped

again. This time, Mr. Thompson got into the victim’s car and sent Ms. Mosely to get gas for

the Defendant’s car.

The Defendant told investigators that when they drove to the dirt road and parked, Mr.

Thompson pulled the victim from the car and told the Defendant to keep a lookout. When

the Defendant looked back at Mr. Thompson, Mr. Thompson told the Defendant that he

“could not pull the trigger.” Mr. Thompson gave the gun to the Defendant, who was still

seated in the driver’s seat of the victim’s car. The Defendant told investigators that he

wanted to hand the gun back to Mr. Thompson, but he feared Mr. Thompson would shoot

him. He said, “I had a thought that [Mr. Thompson] may shoot me so I shot the lady from

the driver’s window.” He added, ‘I think I shot her in the head.”

The Defendant told investigators that Mr. Thompson became angry with the

Defendant because “he wasn’t the one to shoot” the victim. The men drove to Jackson where

the Defendant stopped at Dick’s Sporting Goods to purchase gloves. They bought marijuana.

They then drove to Memphis to commit a robbery but abandoned that plan once they were

unable to find any suitable victims. The Defendant said that they “counted everything as a

loss” and returned to Jackson. After returning to Jackson, they salvaged the floor mats,

folding chairs, and Pepsi bottles from the victim’s car before setting the car on fire. The

Defendant told investigators that Mr. Thompson told him that he “had gained gang status”

and would “make [him] second in command.”

On cross-examination, Special Agent Trout testified that the Defendant “knew

absolutely that he was there for the purpose of a polygraph examination involving the

homicide of Carolyn Ward” and that the Defendant came to TBI headquarters voluntarily.

She explained that she never administered the polygraph test because after the Defendant

-9-

made his initial admission, Special Agent Trout could no longer function as an unbiased

examiner. She further stated that the Defendant’s admission eliminated any “unresolved”

issues relative to the investigation of the case.

Mary Sedberry, a Henderson restaurant owner, testified at trial that on March 7, 2009,

a car followed her to the back parking lot of her restaurant as she returned from buying

cigarettes in her white BMW. She recalled, “[A]s I was proceeding to go to the backdoor not

too far from the car I immediately heard something come around and there came the blue car

around with three people in it.” She said an African-American woman drove the car with one

African-American male riding in the passenger seat and another riding in the backseat. Ms.

Sedberry recalled that the driver said that she “thought this was a drive-thru.” Ms. Sedberry

testified that she told the woman, “[H]ell no it’s not a drive-thru.” She recalled that the three

individuals looked shocked by her response and then drove away. After viewing photographs

of the Defendant’s vehicle, Ms. Sedberry maintained “that is the same car that followed me

around the restaurant.”

Reida Watson, a Dick’s Sporting Goods Assistant Manager, testified that the JPD

requested surveillance video of the store from March 7, 2009. A review of the video

revealed the Defendant’s purchasing black batting gloves at 3:20 p.m. that day. Ms. Watson

testified that the Defendant used his rewards card to make the purchase.

JPD Investigator Charles Mathis assisted in the March 12, 2009 search of Mr.

Thompson and Ms. Mosely’s shared apartment. He collected black clothing and two-liter

bottles of Pepsi from the apartment. He testified at trial that he collected the Pepsi because

he suspected it had been taken from the victim’s car.

On March 11, 2009, JPD Lieutenant Julian Wiser searched the apartment of Lakeisha

Carroll, one of the Defendant’s girlfriends with whom the Defendant had been staying.

Lieutenant Wiser collected mail addressed to the Defendant, a title indicating the

Defendant’s ownership of the blue Buick Roadmaster, digital scales and baggies, black Nike

tennis shoes, an orange t-shirt, a black t-shirt, brown pants, .22 caliber bullets, and a box of

.38 caliber Remmington ammunition from the apartment. He also collected a cellular

telephone and a handicapped hang-tag, both of which were later identified as belonging to

the victim.

David Nagi, the owner of a BP gas station, provided surveillance video of his store

from March 7, 2009. The video showed a man wearing an orange t-shirt dancing at the

register while another man purchased bottles of Jungle Juice and root beer. Mr. Nagi’s

nephew, Eddie Saleh, testified that he worked for his uncle at the gas station. He recognized

the Defendant on the surveillance video as an occasional customer at the store.

-10-

TBI Special Agent Mark Lewis assisted in the investigation of the victim’s murder.

He obtained surveillance video from Mr. Nagi’s gas station showing the Defendant dancing

in the store while Mr. Thompson purchased Jungle Juice and root beer. Special Agent Lewis

obtained DNA samples from the Defendant and Ms. Mosely, but Mr. Thompson did not

volunteer a sample. Special Agent Lewis testified that Mr. Thompson’s DNA sample was

already in the database. Special Agent Lewis reviewed photographs and text messages on

the Defendant’s cellular telephone. Photographs taken from the Defendant’s telephone

showing the Defendant wearing an orange t-shirt and holding a gun were admitted into

evidence at trial.

Chinita Perry testified that she dated the Defendant briefly in March 2009. She

recalled showing Special Agent Lewis text messages she had received from the Defendant

during the time surrounding the victim’s death. At trial, Ms. Perry acknowledged the

accuracy of the text message records. On March 7, 2009, at 11:30 a.m., the Defendant sent

Ms. Perry a text message that he was “on the road” that day. Later that afternoon, the couple

discussed meeting the following Monday. Throughout the evening, Ms. Perry received

scattered responses from the Defendant. On March 10, 2009 at 4:47 p.m. the Defendant sent

Ms. Perry a text message: “Just got stopped. Fixing to go to jail. I love you, babe.” He also

asked Ms. Perry to telephone his parents. At 5:31 p.m., the Defendant sent another text

message: “They fixing to tow it. They found a gun. Don’t tell him about gun.” Ms. Perry

explained that the Defendant did not want his parents to find out about the gun discovered

in his vehicle.

TBI Special Agent Miranda Terry, an expert in microanalysis, swabbed the

Defendant’s vehicle for evidence of gunshot residue. Special Agent James Russell Davis

analyzed swabs collected by Special Agent Terry and determined that the black Nike batting

gloves collected from the Defendant’s vehicle contained gunshot residue particles. His

testing also revealed the presence of gunshot residue particles on the driver’s side door,

passenger door, steering wheel, gearshift, and console. He did not discover the presence of

any gunshot residue particles on any of the Defendant’s clothing. He explained that the

absence of gunshot residue on the clothing did not necessarily rule out the Defendant’s

shooting a weapon because the clothing could have been washed. Likewise, if the Defendant

shot the victim while seated in the car, the door would have prevented gunshot residue

particles from scattering to his clothing.

Special Agent Hunter Greene, a latent fingerprint examiner with the TBI Crime

Laboratory, examined items collected from the Defendant’s vehicle and residence to

determine the presence of fingerprints. He found no identifiable prints on the handgun, floor

mats, cartridges, license tags, cellular telephone, or shell casings submitted for examination.

He did, however, find an identifiable print matching the Defendant on the disabled hang tag

-11-

recovered from the Defendant’s apartment. He testified that the absence of prints could be

explained by the Defendant’s wearing gloves during the offenses.

Special Agent Jennifer Shipman, an expert in serology analysis, examined both pairs

of gloves collected from the Defendant’s vehicle. She did not find the presence of the

victim’s DNA on either pair of gloves. She did not find either the Defendant’s or Ms.

Mosely’s DNA on the green and white gloves. She did, however, determine that the

Defendant was “the major contributor” of DNA to the black Nike gloves.

Special Agent Robert Daniel Royce, an expert in firearms and ballistics, examined the

.38 handgun collected from the Defendant’s vehicle. He testified that the “Fratelli Tanfoglio

Model EA 380 semi-automatic pistol” was manufactured with three safety features, two of

which had to be manually disengaged before firing. He determined that the gun was fully

functional with no operational issues. His examination of the .38 caliber cartridge found in

the ashtray of the Defendant’s vehicle, the shell casing found at the scene, and the bullet

found at the scene revealed markings consistent with having been fired from the Fratelli

Tanfoglio pistol. He also opined that the box of ammunition recovered from the Defendant’s

apartment matched the ballistics evidence found at the scene.

With this evidence, the State rested its case. The trial court denied the Defendant’s

motion for judgment of acquittal. The record next reveals a colloquy between the Defendant

and the trial court concerning the Defendant’s decision to testify against the advice of

counsel.

The 28-year-old Defendant testified, denying any involvement in the victim’s

kidnapping or murder. He did admit, however, to tampering with evidence when he assisted

Mr. Thompson in setting the victim’s car on fire. The Defendant initially denied signing

multiple rights waivers but ultimately admitted that he talked with investigators voluntarily.

He denied the veracity of his statements to the investigators and claimed that he felt

threatened by them. He denied traveling to Henderson. He denied driving the victim’s car.

He claimed that Mr. Thompson and Ms. Mosely borrowed his car while he stayed in Jackson

and explained that he knew details of the murder from talking to Mr. Thompson and Ms.

Mosely. The Defendant acknowledged that he initialed and signed each statement, but he

denied their truthfulness. Regarding his statement made to Special Agent Trout, he claimed

he only spoke to the TBI because he was promised a polygraph examination. He explained

that he told Special Agent Trout that he shot the victim after becoming frustrated by Agent

Trout’s delaying the polygraph examination.

On cross-examination, the Defendant admitted going to the BP gas station to purchase

gasoline and Jungle Juice, but he claimed he did not know that the victim had been killed.

-12-

When confronted with his text messages to Ms. Perry, the Defendant claimed that he told her

he was out “making some moves” because he did not want to be bothered by her on that day.

He admitted that his black gloves might have contained gunshot residue but claimed that the

presence of the residue resulted from a secondary transfer, not his firing a weapon. The

Defendant testified that he felt threatened by Mr. Thompson. He said that he admitted all the

crimes “[t]o get out of trouble” and that he “felt like [he] had no other choice but to say [he]

did it in order to take the lie detector test.” The Defendant maintained that a lie detector test

would have shown that he was lying when he made his inculpatory statements. The

Defendant also denied telling any cell mates in jail that he had shot the victim.

Hywon Reed, a former cell mate of the Defendant, testified in rebuttal for the State.

He said that he and the Defendant shared a cell for approximately two days in December

2010. He testified that the Defendant described his participation in the offenses in great

detail. The Defendant told Mr. Reed that the victim “pissed him off” when she would not

give him any money or her automated teller machine code. The Defendant told Mr. Reed

that the victim threatened to telephone the police, so the Defendant decided to kill her.

With this evidence, the guilt phase of the Defendant’s bench trial concluded. The trial

court found the Defendant guilty of first degree premeditated murder, first degree murder

committed in the perpetration of an especially aggravated kidnapping, especially aggravated

kidnapping, and tampering with evidence. By agreement of the parties, the sentencing phase

of the bench trial was scheduled for several weeks later.

At the sentencing phase of the trial, Captain Willis testified that the Defendant

admitted in his statements to participating with Mr. Thompson in the February 24, 2009

robbery of the Upper Level Hair Salon in Jackson because he “needed the money.” A

presentence investigation report prepared by Bruce Ingram of the Tennessee Board of

Probation and Parole documented the Defendant’s history of criminal convictions consisting

of multiple driving offenses and a theft dating back to 2004. The criminal history also

documented the Defendant’s 2010 conviction for the March 5, 2009 aggravated robbery of

a Dollar General Store. Following this proof, the trial court sentenced the Defendant to 20

years’ incarceration to be served at one hundred percent for the especially aggravated

kidnapping conviction and to five years’ incarceration for the tampering with evidence

conviction. The trial court also found the Defendant qualified for consecutive sentencing as

a dangerous offender and ordered these sentences to be served consecutively.

Concerning the Defendant’s punishment for first degree murder, Captain Willis

testified that the Defendant disclosed details of the March 5, 2009 Dollar General Store

aggravated robbery during one of his statements. The Defendant told investigators that he

“had the only gun” and that he entered the store before Mr. Thompson. He disclosed that

-13-

both he and Mr. Thompson were disguised to avoid identification. He admitted that they

split the $80 proceeds of the robbery. The Defendant pleaded guilty to this offense and

received a 12-year sentence.

Sergeant Kemper testified that the Defendant told him that the victim “had to die”

because she had seen his and Mr. Thompson’s faces.

Rhonda Hunt, a nurse practitioner who had treated the victim, testified that the 60-

year-old victim suffered from morbid obesity, arthritis, cellulitis, edema in her legs, seizures,

and blood clots. She said that the victim’s legs were two to three times their normal size due

to swelling and that the victim “could not actually physically lift her legs.” She explained

that the victim suffered “absence seizures” during which she would lose consciousness for

seconds at a time. Ms. Hunt said that the seizures were often prompted by stress. Ms. Hunt

recalled that, despite her obvious physical limitations, the victim was “the sweetest, most

gentle person God could create.”

Jimmy Dyer, retired principal of West Chester Elementary School, testified that the

victim performed volunteer work at the elementary school. He recalled all the children

calling her “Granny.” He said that the victim had no enemies and that she, in fact, provided

selflessly for many of the children’s needs and was always an encouragement to the teachers

at the school.

Mary Davis, the victim’s daughter, testified that her mother was generous beyond her

means. She said that the victim made quilts for every baby born in Chester County, whether

she knew the family or not. Ms. Davis said that she thinks about her mother every day.

Paula Renee Johnson, the Defendant’s mother, described the Defendant as a “normal

child” who did well in school, was baptized at the age of 15, graduated from high school, and

attended some college. She said that the Defendant was very close to his younger brother.

She also said that the Defendant maintained a relationship with his own children, a five-and-

one-half-year-old daughter and a one-year-old son.

Johnny Johnson, the Defendant’s step-father, testified that he married the Defendant’s

mother when the Defendant was only two years old. He explained that he is the only father

that the Defendant has known. He admitted that the Defendant had a history of driving

offenses, usually due to his inability to afford insurance. Mr. Johnson testified that the

Defendant was “never a violent person.” On cross-examination, Mr. Johnson admitted that

the Defendant confessed his involvement in the offenses to him. He claimed, however, that

the Defendant was not guilty because the “story changed” later.

-14-

Howard Jerrell Johnson, the Defendant’s brother, testified that the Defendant loves

his children and wishes he could change “where he’s sitting at right now.” Mr. Johnson

asked the trial court to show leniency and forgiveness to the Defendant.

The Defendant apologized, yet maintained his innocence. While admitting that he

“was there” at the previous robberies, the Defendant denied robbing anyone or possessing

a gun during the robberies. Likewise, he denied telling Sergeant Kemper that he killed the

victim because she had seen their faces. He said that “crime wasn’t [his] way” and that “[f]or

the most part” the other participants were responsible for the victim’s death.

At the conclusion of the sentencing phase hearing, the trial court found that the State

had proven beyond a reasonable doubt the existence of three aggravating circumstances: that

the Defendant was previously convicted of one or more felonies whose statutory elements

involve the use of violence to the person; that the murder was committed for the purpose of

avoiding a lawful arrest or prosecution; and that the murder was knowingly committed while

the Defendant had a substantial role in committing an aggravated robbery. The trial court

did not find the existence of any mitigating circumstances. Thus, the court ruled that the

aggravating circumstances outweighed the mitigating circumstances beyond a reasonable

doubt and sentenced the Defendant to death for each first degree murder conviction.

On appeal, the Defendant challenges the trial court’s denial of his motion to suppress

statements, the sufficiency of the evidence to support his convictions of first degree murder

and especially aggravated kidnapping, the trial court’s imposition of the death penalty, and

the constitutionality of the death penalty. The State argues that the Defendant’s appeal is

untimely and should be dismissed. Alternatively, the State argues that the Defendant waived

any issue concerning the denial of his motion to suppress by failing to include a transcript

of the suppression hearing in the record on appeal, that the evidence is sufficient to support

the convictions, and the death penalty is appropriate in this case.

ANALYSIS

Timeliness of the Notice of Appeal

Initially, we must address the State’s argument that the Defendant’s appeal should be

dismissed because the Defendant failed to file a timely notice of appeal. The Defendant fails

to address this argument in any responsive brief or pleading. The record reflects that the trial

court entered judgments on May 26, 2011. Fifty-three days after the entry of judgments, on

July 18, 2011, the Defendant filed a motion to set aside the death penalty, motion for

judgment of acquittal pursuant to Tennessee Rule of Criminal Procedure 29, and a motion

for new trial pursuant to Tennessee Rule of Criminal Procedure 33. The trial court denied

-15-

these motions on August 1, 2011. The Defendant filed a notice of appeal on August 24,

2011.

Rule 29 provides that after a jury has returned a verdict of guilty, “a defendant may

move for a judgment of acquittal . . . within 30 days of the date the order of sentence is

entered.” Likewise, Rule 33(b) provides that a motion for new trial must be filed “within

thirty days of the date the order of sentences is entered.” Furthermore, Rule 45(b)(3)

specifically forbids the trial court from “extend[ing] the time for taking any action under the

Rules of Criminal Procedure 29, 33 and 34.” See State v. Martin, 940 S.W.2d 567, 569

(Tenn. Crim. App. 1997) (stating that 30-day time limit is mandatory and cannot be

extended). “Subsequent review or considerations by the trial court or agreements of parties

to hear a late-filed motion will not validate the motion for purposes of appellate review.”

State v. Heather Massengill, E2006-02602-CCA-R3-CD, slip op. at 1 (Tenn. Crim. App., at

Knoxville, May 12, 2008) (citing State v. Dodson, 780 S.W.2d 778 (Tenn. Crim. App. 1989);

State v. Davis, 748 S.W.2d 206 (Tenn. Crim. App. 1987)); see also Martin, 940 S.W.2d at

569. The State correctly notes, however, that the Defendant in this case was not required to

file a motion for new trial in order to preserve his issues on appeal because he was convicted

at a bench trial. See Tenn. R. App. P.3(e) (providing that “in all cases tried by a jury, no

issue presented for review shall be predicated upon error . . . unless the same was specifically

stated in a motion for new trial”).

Tennessee Rule of Appellate Procedure 4(a) requires the filing of a notice of appeal

“within 30 days after the date of entry of the judgment appealed from.” Certain post-trial

motions, such as a motion for judgment of acquittal or motion for new trial, when timely

filed, toll the time for filing the notice of appeal “from entry of the order denying a new trial

or granting or denying any other such motion.” Tenn. R. App. P. 4(c). Because the

Defendant’s post-trial motions in this case were untimely and ineffectual, the notice of appeal

was also untimely. The timely filing of a notice of appeal, however, is not a prerequisite to

the jurisdiction of this court, and this court may waive the requirement of the timely filing

of a notice of appeal in the interest of justice. Tenn. R. App. P. 4(a).

As previously noted, the Defendant fails to address the timeliness of the notice of

appeal in any responsive brief or pleading before this court. This court has advised that “the

more proper and efficient practice for a party seeking a waiver of the timeliness of the notice

of appeal is to file a motion with this court requesting the waiver pursuant to Tennessee Rule

of Appellate Procedure 4(a).” State v. Rockwell, 280 S.W.3d 212, 214 (Tenn. Crim. App.

2007). That being said, we also recognize this court’s statutory authority to review by direct

appeal any first degree murder conviction in which the death penalty is imposed, even in the

absence of a defendant’s seeking such review. See Tenn. Code Ann. § 39-13-206(a)(2).

-16-

Accordingly, we determine that the interest of justice requires a waiver of the timely filing

of a notice of appeal in this case. We will now review each of the Defendant’s issues in turn.

Suppression of Statements

The Defendant argues that the trial court erroneously denied his motion to suppress

his statements. Although the record reflects that the Defendant filed a pretrial motion to

suppress alleging that each of his statements were involuntary and the product of an illegal

arrest, the Defendant’s argument on appeal focuses predominantly on the trial court’s

admission of his fourth statement made to Special Agent Trout. The Defendant alleges that

he made this statement only when promised a polygraph examination that was ultimately

never administered. The Defendant also makes a general argument that his three previous

statements were involuntary because “there were [n]ever any offers of food or drink during

the questioning.” The State argues that the Defendant has waived this issue by failing to

include a transcript of the suppression hearing in the record on appeal. See Tenn. R. App.

P. 24(b) (“the appellant shall have prepared a transcript of such part of the evidence or

proceedings as is necessary to convey a fair, accurate and complete account of what

transpired with respect to those issues that are the bases of appeal”). On January 7, 2013, we

sua sponte ordered the record supplemented with the suppression hearing transcript. On

February 5, 2013, the appellate court clerk received and filed the supplemental transcript.

On March 6, 2013, the State filed a supplemental brief.

The record reflects that on March 24, 2010, the Defendant filed a motion seeking

suppression of all statements and any evidence obtained from searches of the homes of the

Defendant’s parents and girlfriend. In the motion, the Defendant claimed he did not

knowingly waive his rights prior to giving his statements, that searches of the homes were

conducted without consent, and that any evidence flowing from his arrest was tainted by the

illegality of his March 10, 2009 arrest.

At the April 14, 2010 suppression hearing, Chief Deputy Mark Griffin testified

concerning his involvement in the investigation of the victim’s death. He stated that after

viewing the surveillance video from the Piggly Wiggly parking lot, “[i]t was obvious that the

[defendant’s] blue Buick Rodamaster was following the [victim’s] Corsica.”

Investigator Phillip Kemper testified at the suppression hearing that Chief Deputy

Griffin briefed the JPD gang enforcement team concerning the victim’s homicide.

Investigator Kemper located the Defendant in his vehicle on March 10, 2009. Investigator

Kemper testified that he arrested the Defendant for driving on a suspended license and that

a .38 caliber handgun was found sticking out from underneath the passenger seat of the

Defendant’s vehicle. Investigator Kemper testified that he took three statements from the

-17-

Defendant. He recalled the Defendant initiating the third statement. Prior to each statement,

Investigator Kemper advised the Defendant of his Miranda rights and the Defendant executed

a waiver of rights. Investigator Kemper testified that the Defendant confessed to

participation in two local robberies, leading to further charges while the murder investigation

continued. Investigator Samuel Gilley testified consistently with Investigator Kemper’s

testimony concerning the apprehension and questioning of the Defendant.

Lieutenant Patrick Willis testified at the suppression hearing that the Defendant

executed three rights waivers prior to giving statements to investigators. He also recalled

obtaining the Defendant’s consent to search his vehicle and areas of both the Defendant’s

parent’s and his girlfriend’s homes. Lieutenant Willis testified that the Defendant agreed to

take a polygraph examination with TBI Agent Valerie Trout. He recalled advising the

Defendant of his rights a fourth time and the Defendant’s signing a fourth rights waiver. He

said, “Prior to the polygraph beginning [the Defendant] told Ms. Trout that he wanted to tell

the truth about the situation. At that point she stopped prepping him for the polygraph and

she summoned me back in the room.” The Defendant then confessed to shooting the victim.

Following the presentation of this evidence by the State, the Defendant presented no

other proof or argument and “submit[ted] the motion to the court.” The State argued that

“multiple waivers [occurred]” evidencing the voluntariness of the Defendant’s statements.

The court found that the investigators had reasonable suspicion to stop the Defendant’s

vehicle and then had probable cause to arrest the Defendant for driving on a suspended

license. The court found that the handgun was recovered in plain view during the stop.

Regarding the Defendant’s four statements to investigators, the court found that the evidence

was “unchallenged” that the Defendant waived his rights voluntarily and “never once

requested an attorney.” The court further found that the evidence was “uncontroverted” that

the Defendant freely, voluntarily and intelligently gave each statement. Based upon these

findings, the trial court denied the motion to suppress.

At trial, the Defendant challenged the admission of the fourth, and most inculpatory,

statement alleging for the first time that he was coerced by promises of a polygraph

examination. The record reflects that the trial court specifically asked counsel whether the

issue of the polygraph examination had been raised pretrial, and counsel admitted that the

Defendant had not challenged the admission of the statement in that vein prior to trial. While

noting that the motion to suppress failed to challenge the admission of the fourth statement

relative to the promise of a polygraph examination, the trial court allowed the Defendant to

elicit testimony concerning the invitation to take the polygraph test and Special Agent Trout’s

ultimate decision not to administer the test. The trial court did not, however, make any ruling

concerning suppression of the fourth statement relative to the polygraph examination claim.

-18-

“[A] trial court’s findings of fact in a suppression hearing will be upheld unless the

evidence preponderates otherwise.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). We

review a trial court’s applications of law to the facts de novo, however. See State v. Walton,

41 S.W.3d 75, 81 (Tenn. 2001). The party prevailing at the suppression hearing is further

“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.”

Odom, 928 S.W.2d at 23.

To the extent that the Defendant challenges the voluntariness of his first three

statements, we conclude that the evidence does not preponderate against the trial court’s

findings at the suppression hearing. The evidence presented at both the suppression hearing

and at trial established that the Defendant voluntarily waived his Miranda rights before

making each statement. The evidence further showed that the Defendant initiated

conversations with the investigators on two occasions. Although he denied the veracity of

his statements to the police when testifying at trial, the Defendant admitted at trial that he

gave each statement voluntarily. Accordingly, the Defendant is not entitled to relief as to this

issue.

We further conclude that the Defendant’s failure to include the allegation of coercion

by promise of a polygraph examination in the motion to suppress filed pretrial results in a

waiver of the issue on appeal. See Tenn. R. Crim. P. 12(b)(2)(C) (listing a motion to

suppress as a motion that “must be raised before trial”). We also note that the trial court was

not asked to make and did not make any ruling concerning the polygraph issue. Under these

circumstances, we conclude that the Defendant waived review of the issue as it relates to the

promise of a polygraph examination.

Sufficiency of the Evidence

Next, the Defendant argues that the evidence is insufficient to support his convictions

of first degree premeditated murder, felony murder committed in the perpetration of an

especially aggravated kidnapping, and especially aggravated kidnapping. The Defendant

does not challenge the sufficiency of the evidence to support his conviction of tampering

with the evidence. The Defendant contends that the State failed to establish the corpus

delicti arguing that “the Defendant’s conviction was based solely on the Defendant’s

confession.” The State argues that the evidence sufficiently established the Defendant’s

convictions.

When an accused challenges the sufficiency of the convicting evidence, our standard

on 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

-19-

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

if 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). “[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] premeditated and intentional killing of

another[.]” Tenn. Code Ann. § 39-13-202(a)(1). Premeditation “is 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.” Tenn. Code Ann. § 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 “may 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, 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.

Felony murder is “[a] killing of another committed in the perpetration or attempt to

perpetrate any . . . kidnapping. . . .” Tenn. Code Ann. § 39-13-202(a)(2).

“Especially aggravated kidnapping is false imprisonment, as defined in § 39-13-302,

[w]here the victim suffers serious bodily injury.” Tenn. Code Ann. § 39-13-305. False

imprisonment is the knowing removal or confinement of “another unlawfully so as to

interfere substantially with the other's liberty.” Tenn. Code Ann. § 39-13-302.

The Defendant argues that the State failed to establish the corpus delicti in that his

conviction is based solely upon his uncorroborated confession. As recently noted by our

supreme court, “a criminal conviction cannot be based solely on a defendant’s

uncorroborated confession.” State v. Wagner, 382 S.W.3d 289, 297-98 (Tenn. 2012) (citing

-20-

State v. Banks, 271 S.W.3d 90, 140 (Tenn. 2008); State v. Housler, 193 S.W.3d 476, 490

(Tenn. 2006); State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000); Ashby v. State, 124 Tenn.

684, 139 S.W. 872, 875 (1911); Williams v. State, 80 Tenn. 211, 212-13 (1883)). In Wagner,

the court explained that “th[e] rule requiring corroboration of a confession is known as the

corpus delicti rule.” Id. at fn 9 (citing United States v. Brown, 617 F.3d 857, 860 (6th Cir.

2010)). As the court also noted in Wagner, we are cognizant that the issue of whether the

corpus delicti rule should be abrogated or modified is presently pending before the supreme

court. State v. Bishop, No. W2010-01207-SC-R11-CD (Tenn. Aug. 15, 2012) (order granting

Tennessee Rule of Appellate Procedure 11 application and requesting additional briefing

concerning the corpus delicti rule). In any event, we conclude that the corpus delicti rule

does not garner the Defendant any relief because his confession was sufficiently corroborated

by physical evidence and witness testimony.

Eyewitness testimony placed the Defendant in Henderson in the company of Mr.

Thompson and Ms. Mosely on the day of the victim’s murder. Surveillance video recordings

admitted at trial established the Defendant’s presence and participation in the initial

kidnapping of the victim, as well as the Defendant’s presence with Mr. Thompson

throughout the day. Gunshot residue, ballistic evidence, and fingerprint evidence likewise

revealed the Defendant’s involvement in the offenses. In addition to the Defendant’s

admissions to investigators and to a cell mate that he shot the victim, the record as a whole

sufficiently established the Defendant’s guilt of the first degree murder and especially

aggravated kidnapping.

Having found the evidence sufficient to support the Defendant’s convictions, we do

note, however, that the trial court failed to merge the felony murder conviction into the

premeditated murder conviction at sentencing. See State v. Cribbs, 967 S.W.2d 773, 788

(Tenn. 1998) (“Obviously, when only one person has been murdered, a jury verdict of guilt

on more than one count of an indictment charging different means of committing first degree

murder will support only one judgment of conviction. . . .”). Accordingly, we direct the trial

court to correct the judgments on remand to effectuate proper merger of the convictions.

Imposition of the Death Penalty

The Defendant challenges the trial court’s imposition of the death penalty. Citing to

the inapplicable 1982 version of the first degree murder sentencing statute, see Tenn. Code

Ann. § 39-13-203(g), the Defendant argues that “his mitigating factors outweighed any

aggravating factors.” The argument relative to this issue contains no other reference to

authority and simply relates that the trial court should have given more weight to the

mitigating circumstances proffered by the Defendant. We could deem this issue waived for

the Defendant’s failure to cite to authority in support of his arguments. See Tenn. Ct. Crim.

-21-

App. R. 10(b) (“Issues which are not supported by argument, citation to authorities, or

appropriate references to the record will be treated as waived in this court.”). The State

argues that the evidence supported the trial court’s findings and ruling relative to punishment.

Tennessee Code Annotated section 39-13-204(g)(1) mandates the imposition of a

death sentence when two criteria are met:

(A) At least one (1) statutory aggravating circumstance or

several statutory aggravating circumstances have been proven by

the state beyond a reasonable doubt; and

(B) Such circumstance or circumstances have been proven by

the state to outweigh any mitigating circumstances beyond a

reasonable doubt.

Tenn. Code Ann. § 39-13-204(g)(1). The trial court found that the State had proven three

statutory aggravating circumstances beyond a reasonable doubt: “[t]he defendant was

previously convicted of one (1) or more felonies, other then the present charge, whose

statutory elements involve the use of violence to the person,” id. § 39-13-204(i)(2), “[t]he

murder was committed for the purpose of avoiding . . . a lawful arrest or prosecution of the

defendant or another,” id. §39-13-204(i)(6), and “[t]he murder was knowingly committed,

solicited, directed, or aided by the defendant, while the defendant had a substantial role in

committing or attempting to commit . . . [an] aggravated robbery,” id. §39-13-204(i)(7). The

trial court further found that no mitigating circumstances existed. Consequently, the trial

court found that the aggravating circumstances outweighed the mitigating circumstances

beyond a reasonable doubt and determined that the defendant should be sentenced to death

for his convictions of first degree murder. See id. § 39-13-204(g)(1).

As to the aggravating circumstance that the defendant was previously convicted of one

or more felonies involving the use of violence, Captain Willis testified that the Defendant

confessed his participation in the February 24, 2009 aggravated robbery of the Upper Level

Hair Salon. Significantly, the Defendant also confessed to Captain Willis his participation

as the sole gunman during the March 5, 2009 aggravated robbery of a Dollar General store.

The Defendant pleaded guilty to the Dollar General robbery prior to the trial in this case. In

our view, the evidence sufficiently established this aggravating circumstance.

Testimony presented at the trial showed also that the Defendant killed the victim to

avoid being arrested. In statements to investigators, the Defendant said that the victim,

having seen his and Mr. Thompson’s faces, could identify them. The Defendant told a cell

mate that he shot the victim when the victim threatened to telephone the police on her

cellular telephone. At the sentencing phase hearing, Sergeant Kemper testified that the

-22-

Defendant told him that the victim “had to die” because she had seen his and Mr.

Thompson’s faces. The evidence sufficiently established that the murder was committed to

avoid arrest.

As to the aggravating circumstance that the defendant committed the murder in the

perpetration of an aggravated robbery, the Defendant’s statements indicated that he and his

cohorts planned to steal the victim’s car so that they could use it to commit additional

robberies in nearby Memphis. A search of the Defendant’s residence also uncovered items

belonging to the victim. In our view, the evidence sufficiently established that the murder

was committed in the perpetration of an aggravated robbery.

As to the mitigating evidence presented by the Defendant, the Defendant’s family

members testified that the Defendant was the father to two young children whom he loved

very much. His family testified that he had a normal childhood and made good grades in

school but that the Defendant struggled to “make it on [his] own” as an adult. Each family

member asked the trial court for leniency in sentencing. The Defendant testified at the

sentencing hearing, maintaining his innocence. He stated that others were responsible for

the victim’s death “[f]or the most part” and that “crime wasn’t [his] way.” Based upon this

evidence, the trial court found no mitigating factors.

Having carefully reviewed the evidence presented at both the trial and sentencing

phases of the Defendant’s capital bench trial, we conclude that the evidence fully supports

the trial court’s findings relative to the aggravating and mitigating circumstances and that the

aggravating circumstances outweigh the mitigating circumstances beyond a reasonable doubt.

Constitutionality of the Death Penalty and Proportionality Review

In his final issue, the Defendant lodges myriad attacks upon the constitutionality of

the death penalty under both the Eighth and Fourteenth Amendments of the United States

Constitution and Article I, sections Eight and Sixteen of the Tennessee Constitution. The

Defendant, however, fails to cite to any authority in support of his arguments. For this

reason, we could deem these issues waived. See Tenn. Ct. Crim. App. R. 10(b) (“Issues

which are not supported by argument, citation to authorities, or appropriate references to the

record will be treated as waived in this court.”). That being said, we choose to review each

claim as outlined in the Defendant’s brief.

First, the Defendant contends “that the death sentence infringes upon his fundamental

right to life.” This argument has been rejected previously by our supreme court. State v.

Hester, 324 S.W.3d 1, 78-79 (Tenn. 2010).

-23-

The Defendant contends that Tennessee’s death penalty statutes fail to “sufficiently

narrow the population of defendant convicted of first degree murder who are eligible for a

sentence of death.” Our supreme court has rejected this argument. Terry v. State, 46 S.W.3d

147, 159 (Tenn.), cert. denied, 122 S. Ct. 553 (2001).

The Defendant argues that Tennessee’s death penalty statutes fail to “limit the

exercise of the [trier of fact’s] discretion because, once the [trier of fact] finds aggravation

it can impose a death sentence no matter what mitigation is shown.” This argument has been

rejected by our supreme court. State v. Smith, 857 S.W2d 1, 21-22 (Tenn. 1993).

The Defendant argues that Tennessee’s death penalty statutes unconstitutionally

mandate the trier of fact to impose the death penalty upon a finding that the aggravating

circumstances outweigh the mitigating circumstances. This argument has been rejected by

our supreme court. State v. Boyd, 797 S.W.2d 589, 596 (Tenn. 1990), cert. denied, 111 S.

Ct. 800 (1991).

The Defendant argues that Tennessee’s death penalty statute is unconstitutional

because it fails to “require the [trier of fact] to make the ultimate determination that death is

appropriate.” This argument has been rejected by our supreme court. State v. Hall, 958

S.W.2d 679, 718 (Tenn. 1997); State v. Brimmer, 876 S.W.2d 75, 87 (Tenn. 1994).

The Defendant contends that Tennessee’s death penalty statutes fail to “inform the

[trier of fact] of its ability to impose a life sentence out of mercy.” This argument has been

rejected by our supreme court. State v. Cauthern, 967 S.W.2d 726, 749 (Tenn. 1998); State

v. Cazes, 875 S.W.2d 253, 269 n.6 (Tenn. 1994).

The Defendant argues that Tennessee’s death penalty statutes unconstitutionally

“prohibit the [trier of fact] from being informed of the consequences of its failure to reach

a unanimous verdict in the penalty phase.” This argument has also been rejected by our

supreme court. Terry, 46 S.W.3d at 170; Brimmer, 876 S.W.2d at 87; Cazes 875 S.W.2d at

268.

The Defendant argues that the death penalty is cruel and unusual punishment and that

lethal injection, specifically, is cruel and unusual. Both arguments have been rejected by our

courts. State v. Keen, 31 S.W.3d 196, 233 (Tenn. 2000), cert. denied, 121 S. Ct. 1233 (2001)

(rejecting general argument that the death penalty is cruel and unusual); State v. Banks, 271

S.W.3d 90, 108 (Tenn. 2008) (rejecting specific claim that lethal injection is cruel and

unusual). Furthermore, the Supreme Court has rejected the same challenge to Kentucky’s

lethal injection protocol. Baze v. Rees, 553 U.S. 35 (2008).

-24-

The Defendant argues that the death penalty is imposed in Tennessee in a capricious,

arbitrary, and discriminatory manner “on the basis of race, sex, geographic region and

economic and political status of the defendant.” This argument has been rejected by our

supreme court. State v. Thomas, 158 S.W.3d 361, 407 (Tenn. 2005); State v. Hines, 919

S.W.2d 573, 582 (Tenn. 1995).

In his final attack on the constitutionality of Tennessee’s death penalty scheme, the

Defendant argues that the statutes erroneously allow the State to make final closing

arguments to the [trier of fact] during the sentencing phase of the trial. This argument has

been rejected numerous times. Brimmer, 876 S.W.2d at 87; Cazes, 875 S.W.2d at 269; State

v. Caughron, 855 S.W.2d 526, 542 (Tenn. 1993).

Proportionality Review

Finally, Defendant contends that the sentence of death in his case is disproportionate

to the sentences imposed in similar cases. In reviewing a defendant’s sentence of death for

first degree murder, “the 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.” Tenn. Code Ann. § 39-13-206.

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 “plainly

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 “less

than death was never imposed in a case with similar characteristics.” Bland,

958 S.W.2d at 665. Our duty “is 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 “mathematical formula or scientific grid,” and

-25-

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).

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. Powers, 101 S.W.3d 383 (Tenn.), cert.

denied, 123 S. Ct. 2083 (2003) (finding aggravating circumstances (i)(2), (i)(6), and (i)(7)

and imposing death where defendant shot victim in head and committed aggravated robbery);

State v. Reid, 91 S.W.3d 247 (Tenn. 2002), cert. denied, 124 S. Ct. 56 (2003) (finding

aggravating circumstances (i)(2), (i)(6), and (i)(7) and imposing death despite evidence of

defendant’s troubled childhood, multiple head injuries, and brain abnormality where

defendant shot and killed two fast food employees during a robbery); State v. Chalmers, 28

S.W.3d 913 (Tenn. 2000), cert. denied, 121 S. Ct. 1367 (2001) (finding aggravating

circumstances (i)(2) and (i)(7) and imposing death where defendant shot and robbed sixty-

nine-year old victim); State v. Smith, 868 S.W.2d 561 (Tenn. 1994), cert. denied, 115 S. Ct.

417 (1994) (finding the (i)(5), (i)(6), (i)(7), (i)(12) aggravating circumstances, and imposing

death despite fact that defendant had been hospitalized for depression, paranoid personality

disorder, chronic depressive neurosis and paranoid delusional disorder); State v. Van Tran,

864 S.W.2d 465 (Tenn. 1993), cert. denied, 114 S. Ct. 1577 (1994) (death sentence upheld

based upon aggravating circumstances (i)(5) and (i)(12) where defendant shot and killed

victims during a robbery of a restaurant); State v. Howell, 868 S.W.2d 238 (Tenn. 1993), cert.

denied, 114 S. Ct. 1339 (1994) (finding aggravating circumstance (i)(2) and imposing death

-26-

where twenty-seven-year-old defendant shot and killed clerk during robbery of convenience

store); State v. King, 694 S.W.2d 941 (Tenn. 1985) (thirty-three-year-old defendant murdered

the proprietor of a tavern during the course of a robbery, death sentence upheld based upon

aggravating circumstances (i)(2) and (i)(7)). We are of the opinion that the penalty imposed

by the trial court in this case is not disproportionate to the penalty imposed for similar crimes.

CONCLUSION

In accordance with Tenn. Code Ann. § 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 the sentence is not disproportionate. We

have also reviewed all issues raised by Defendant and conclude there is no reversible error.

We do note, however, that the trial court failed to merge the felony murder conviction into

the premeditated murder conviction. Accordingly, we remand the case and direct the trial

court to amend the judgments to effectuate a proper merger of the first degree murder

convictions. The judgments of the trial court are affirmed in all other respects.

_________________________________

THOMAS T. WOODALL, JUDGE

-27-