State of Tennessee v. Nickolus L. Johnson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

June 28, 2011 Session

STATE OF TENNESSEE v. NICKOLUS L. JOHNSON

Appeal from the Criminal Court for Sullivan County

No. S50,059 R. Jerry Beck, Judge

No. E2010-00172-CCA-R3-DD - Filed March 5, 2012

A Sullivan County jury convicted the Defendant, Nickolus L. Johnson, of premeditated first

degree murder, see Tenn. Code Ann. § 39-13-202(a)(1) (2006), for the shooting death of

Officer Mark Vance of the Bristol Police Department. Following penalty phase proceedings,

the jury found the presence of the following two aggravating circumstances: (1) that the

defendant previously had been convicted of one or more felonies whose statutory elements

involved the use of violence to the person; and (2) that the defendant knew or should have

known when he committed the murder that the victim was a law enforcement officer engaged

in the performance of his official duties. See Tenn. Code Ann. § 39-13-204(i)(2), (9) (2006).

After finding that these aggravating circumstances outweighed any mitigating factors

presented by the defense, the jury sentenced the Defendant to death. See Tenn. Code Ann.

§ 39-13-204(g)(1) (2006). In this appeal, the Defendant challenges both his conviction and

accompanying death sentence. He raises the following issues for our review: (1) whether the

evidence presented during the guilt phase was sufficient to support his conviction; (2)

whether Tennessee’s death penalty statute violates article I, section 19 of the Tennessee

Constitution; (3) whether the exclusion of jurors from the jury based on their views on the

death penalty violates article I, sections 6 and 19 of the Tennessee Constitution; (4) whether

the trial court erred in admitting into evidence the videotape of the Defendant taken in

Officer Graham’s patrol car immediately following the Defendant’s arrest; (5) whether the

trial court erred in failing to require defense counsel to present mental health mitigation

evidence despite the Defendant’s objection to the presentation of such evidence; (6) whether

individual and cumulative instances of prosecutorial misconduct during closing argument at

the penalty phase denied the Defendant his right to a fair trial and should have resulted in the

trial court declaring a mistrial; (7) whether the trial court erred in denying defense counsel’s

requests for special jury instructions during the penalty phase in response to the prosecutor’s

assertion during closing that the Defendant had failed to express remorse; (8) whether the

trial court erred in denying the Defendant’s oral motion for a change of venue based on the

effect pretrial publicity in the case had on potential jurors; (9) whether the trial court erred

in denying defense counsel’s request for authorization of funds with which to hire an expert

to support the claim that pretrial publicity in the case required a change of venue in order to

protect the Defendant’s right to a fair trial; and (10) whether the trial court erred in denying

defense counsel’s request for additional peremptory challenges during jury selection.

Following our review of the record, and our mandatory review of the sentence, see Tenn.

Code Ann. § 39-13-206(c)(1) (2006), we affirm the judgments including the sentence of

death.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

D. K ELLY T HOMAS, J R., J., delivered the opinion of the Court, in which J ERRY L. S MITH and

J OHN E VERETT W ILLIAMS, JJ., joined.

James T. Bowman, Johnson City, Tennessee, and Stacy L. Street, Elizabethton, Tennessee,

for the appellant, Nickolus L. Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter, and Deshea Dulany Faughn, Assistant

Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

On the evening of November 27, 2004, Officer Mark Vance was shot and killed by

the Defendant at the Sullivan County home of the seventeen-year-old girl the Defendant had

gotten pregnant only a few months prior. Officer Vance responded to the residence that

evening, along with other officers, after the girl’s father, W.M.,1 placed a call to 911 about

a disturbance at his home. W.M., a long-haul truck driver, placed the emergency call after

receiving a call on his cell phone from his daughter, B.M., who told him that a man was at

their home threatening her with a gun. Unbeknownst to W.M. prior to having received this

call, B.M. engaged in consensual sex with the Defendant in the late summer of 2004 and

became pregnant as a result of the encounter. After learning of the pregnancy from B.M., the

Defendant pressed B.M. to get an abortion. B.M. refused. On the night of the murder, B.M.

and the Defendant argued on the telephone about the pregnancy because the Defendant still

wanted B.M. to get an abortion. After their argument on the telephone ended, the Defendant

arrived at B.M.’s residence with two guns. The Defendant’s concern that evening was that

1

In order to conceal the identity of the seventeen-year-old child victim of the Defendant’s uncharged

sexual offense, the court will adhere to its policy of referring to her only by her initials, B.M. The court will

also refer to B.M.’s father by his initials, W.M., and will refer to B.M.’s twin sister by her initials, T.M.

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W.M. would have the Defendant arrested for statutory rape upon learning of B.M.’s

pregnancy. Almost immediately upon entering the residence that night in response to the 911

call placed by W.M., Officer Vance was shot in the face by the Defendant at close range.

The remaining officers on the scene, including Lieutenant Eric Senter and Officer Daniel

Graham of the Bristol Police Department, attempted to provide medical assistance to Officer

Vance, who died from his injuries en route to the hospital.

I. Evidence Presented at Trial

Michael James Callahan, the custodian of records for the 911 call center in Bristol,

Tennessee, testified as the State’s first witness at trial. Through him, the jury heard the 911

call that was placed by W.M. on the night of November 27, 2004, and the resulting dispatch

of officers to 427 Belmont Drive, Bristol, Tennessee. The relevant portions of the 911 call

played for the jury were as follows:

W.M.: [C]ould you get an officer over to 427 Belmont Drive?

My daughter says some guy is over there threatening her

with a gun.

DISPATCHER: Did she call you?

W.M.: Yeah, she called me and said some guy was there.

Apparently my daughter is pregnant by this guy. So I

just left the house. I drive for J. B. Hunt, right. I just left

the house to get ready to go to work. I’m stopped here in

a rest area to call my company.

DISPATCHER: Uh-huh.

W.M.: And my daughter called and said he was there

threatening her with a gun.

DISPATCHER: Okay. Why didn’t she call the police?

W.M.: I don’t know.

....

DISPATCHER: Okay. What’s your daughter’s name?

W.M.: [B.M.]

....

DISPATCHER: Okay. Who’s her ex-boyfriend? What’s his name?

W.M.: Ma’am, I don’t know nothing about this ordeal.

DISPATCHER: You don’t? Okay. So you don’t know his name?

W.M.: No, I don’t know his name. My other daughter told me

the guy is married.

DISPATCHER: Okay.

W.M.: But apparently he’s got my daughter pregnant again. I

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don’t know what the facts are. . . .

DISPATCHER: Did she say anything else about what kind of gun it was

or just a gun?

W.M.: No, no, she just told me he was over there threatening her

with a gun. Now I just got on the road to go back to

work.

DISPATCHER: Okay. So you don’t know if he’s in a car or anything and

you don’t--

W.M.: No, I don’t —

DISPATCHER: You can’t tell me what he looks like either?

W.M.: No, I can’t tell you what he looks like, ma’am, because

I ain’t home. I’m sitting here in a rest area in my J. B.

Hunt truck.

DISPATCHER: Okay. How old is your daughter?

W.M.: She’s seventeen (17).

DISPATCHER: Seventeen (17).

W.M.: Yeah.

DISPATCHER: Okay. All right. Officers are already on their way over

there to check on her. Okay?

W.M.: Okay.

DISPATCHER: All right.

W.M.: There’s some other girls at the house. Her girlfriend was

there and my other daughter, [T.M.], is there.

The relevant portions of the resulting dispatch of officers to the residence, their report of

shots fired and request for a rescue unit, as heard by the jury, were as follows:

DISPATCHER: Central 438.

OFFICER VANCE: 438.

DISPATCHER: Can you start toward 427 Belmont Drive, 427

Belmont. I have a third party caller advising

there’s a female there being threatened with a

firearm.

....

DISPATCHER: Central 430.

OFFICER GRAHAM: Okay.

DISPATCHER: All units are 10-6. Can you start that way to

back?

OFFICER GRAHAM: 10-4. 427 Belmont?

DISPATCHER: 10-4. It’s third party. I had a male caller advising

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his daughter contacted him advising the ex-

boyfriend is there with a firearm.

OFFICER GRAHAM: Central, I’ll go that way.

DISPATCHER: 10-4.

....

OFFICER VANCE: 10-97. Appears to be about six, seven vehicles at

the residence.

DISPATCHER: 10-4.

OFFICER VANCE: I’ll be out.

....

OFFICER VANCE: Who called this in, male or female?

DISPATCHER: Their father called it in, [W.M.].

OFFICER VANCE: 10-4. And from not at the residence.

DISPATCHER: 10-4. He advised he just had left.

OFFICER SENTER: I’ve heard gunshots, gunshots. Get us four units,

get us four units. 427, shots fired.

DISPATCHER: Central is directing, leaving station.

....

OFFICER SENTER: Central, need a rescue unit.

DISPATCHER: 10-4.

OFFICER SENTER: Get us a rescue unit. Get us a rescue unit. Get us

a detective. Man down. Officer down.

DISPATCHER: 10-4, copy.

OFFICER SENTER: Central, we need an ambulance here right now.

Callahan testified that the events taking place during the quoted dispatch recording

took ten minutes and five seconds to transpire. The dispatch tape began at 9:22 p.m. on

November 27, 2004. Officer Senter’s last quoted dispatch from the scene occurred at

approximately 9:30 p.m. on November 27, 2004.

W.M. testified that he was sixty years old and resided at 427 Belmont Drive in the city

of Bristol which is located in Sullivan County, Tennessee. His twin seventeen-year-old

daughters, B.M. and T.M., live with him at the residence, along with B.M.’s one-year-old

son. W.M. is employed as a long distance truck driver. He was home for Thanksgiving

week in November of 2004. On the evening of Saturday, November 27, 2004, he was

scheduled to leave to pick up a load of freight in Red Boiling Springs, Tennessee. He left

his home that night at approximately 8:15 p.m. after calling Mrs. Brown, the woman he hired

to stay with his daughters when he went out of town for work. W.M. testified that he thought

Mrs. Brown would get to the house before he left, but she did not and he had to leave to get

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on the road. When he left, his daughters and grandson were in the house along with two

other girls, Aisha Clark and Addie Vereen, who were friends with his daughters. W.M.

called Mrs. Brown as he was leaving the residence and she advised that she was leaving for

his house in just a few minutes.

W.M. testified he was in his truck that evening at a rest stop checking messages on

the onboard computer when he received a call on his cell phone from his daughter, B.M.

After speaking with his daughter, W.M. called 911 and told the operator that there was a man

at his home threatening his daughter with a gun. W.M. then called his employer, told them

he had a serious situation in his home that meant he could not continue with the trip they had

planned for him, and obtained permission to return to his house.

W.M. testified that, prior to his phone conversation with his daughter that night, he

thought that B.M. might be pregnant; however, he did not have any idea who the father might

be. W.M. explained that the father of B.M.’s one-year-old son was not the Defendant. On

the evening of November 27, 2004, W.M. did not know the Defendant and had never seen

him or heard his name before.

W.M. testified that he called home several times before he arrived back at the

residence. During his last call to the residence, while he was speaking to B.M., he heard a

gunshot, then screaming and hollering and then the phone went dead. At that point, W.M.

“just knew that [his] daughter was shot” and drove in a confused daze the rest of the way

home. He received a phone call on the way from his friend, Ted Cox, who told him that there

had been a shooting at the residence. W.M. told Cox that he knew there had been a shooting

and arranged for Cox to meet him at the Belmont Bowling Lanes where he was going to

leave his truck. W.M.’s immediate concern upon arriving home was whether his family was

safe. He testified that he was not allowed in the residence when he got there. After he had

been there about forty-five minutes, an officer told W.M. that his daughters were safe and

informed him about what had happened to one of the officers.

On cross-examination, W.M. admitted that one of his daughters told him during one

of the calls he made to the house on his way back home that night that the man threatening

them with the gun left the residence before the police arrived. W.M. further testified on

cross-examination that he said as much to police that evening when they took his statement.

Eric Senter testified that on the night of November 27, 2004, he was employed as a

patrol lieutenant on the night shift with the Bristol Police Department. He had been Officer

Vance’s supervisor for about a year and a half. Senter explained that a dispatch went out that

night around 9:20 p.m. directing Officers Vance and Graham to proceed to 427 Belmont

Drive in Bristol, Tennessee. In accordance with departmental policy on calls involving guns,

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Senter, as the shift lieutenant, arrived as backup to the address about two or three minutes

after hearing the first dispatch. Officer Vance, who was also on duty that night, was the first

officer to arrive at the residence and was there when Senter arrived. Officer Graham was not

yet on the scene. Officer Vance’s patrol unit was parked on the street one house down from

the residence. As Senter pulled up, he saw Officer Vance enter the residence. Senter parked

his cruiser directly behind that of Officer Vance.

Senter testified that, as he approached the house, he could see through the front door

that the house had a split-level foyer with steps on the left that led downstairs and steps to

the right that led upstairs. As he was approaching the front door, Senter saw an arm extend

from left to right holding what appeared to be “an old Western revolver-type gun” fire a shot

from left to right. Senter was about twenty to twenty-five feet from the front door when he

saw and heard the shot and about thirty-five feet from the gun itself. After the shot, Senter

retreated about fifteen to twenty-five feet to a location behind a tree in the front yard, drew

his weapon, and radioed into dispatch that shots had been fired and to send more units.

Senter stated that it was dark outside, but there was lighting on inside the house. It had been

raining earlier and the ground was wet.

Senter testified that a black male wearing a pinkish-purple shirt came out of the

residence followed by another black male wearing dark clothes. Senter pointed his weapon

at both subjects and told them both to get on the ground, which they did. Senter identified

the second male in the dark clothes as the Defendant. A female came out of the residence

next holding a gun between her finger and her thumb saying, “Why’d you shoot him? Why’d

you shoot him?” Senter pointed his gun at the female and told her to drop the gun and get

on the ground, which she did. At that point, Officer Graham arrived on the scene. Senter

told Officer Graham to cover him as he handcuffed the two men and the woman.

As Senter placed handcuffs on the man in the dark clothes, who he identified at trial

as the Defendant, Senter asked the Defendant what was going on inside the house. The

Defendant responded: “I shot the fucker.” Senter asked the Defendant, “Who did you

shoot?” The Defendant responded: “I shot the fucking cop. I shot him in the head. He’s

dead. There ain’t no need in going in there. The fucker’s dead.” At which point, the

Defendant laughed. Senter asked the Defendant why he shot him. The Defendant stated that

he didn’t call the police and he didn’t want the police up there. Senter testified that the

Defendant laughed a couple more times and kept making comments like, “No need in going

in there because the fucker’s dead.” After the Defendant identified Vance as the shooting

victim, Senter called into dispatch for a rescue unit.

Senter testified that, at that point, it was “chaos inside” and that he could still hear

screaming coming from inside the house. Senter told Officer Mark Smalling, who was then

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on the scene, to cover the males handcuffed in the front yard while he and Officer Caudill,

another officer who had arrived after the shooting, secured the residence. Senter testified

that the female subject in the yard already had gotten up and ran leaving the gun she carried

out behind. However, Senter instructed an officer to go get her and bring her back.

When Senter reached the top of the stairs after entering the residence, he saw Officer

Vance lying in the hallway with a bleeding wound to his head. Senter also saw Officer’s

Vance flashlight near his body. Senter observed a small handgun resembling a Derringer

near the couch in the living room that was different than the weapon he observed fire the shot

earlier. The house was secured. Three additional black females were found inside the

residence. These three females were placed in a cruiser while the officers finished securing

the scene and tried to obtain medical treatment for Officer Vance.

Through Senter, the State introduced a series of photographs depicting how the

exterior of the house looked on the night of November 27, 2004, and a series of photographs

depicting how the inside of the house looked that evening immediately after the shooting.

Senter described for the jury from the photographs where he was in relation to the front door

when he saw the arm extend and fire the single shot that killed Officer Vance as well as the

relative distance from which he observed the shot. Senter also described for the jury from

the photographs the layout of the hallway at the top of the stairs with the living room to the

right and the bedrooms to the left, including the blood stains and pool of blood that were the

result of the injuries sustained by Officer Vance and where the Derringer handgun was found

in the living room.

Officer Daniel Edward Graham testified that he had been an officer with the Bristol

Police Department for the past five years. He was on duty on night of November 27, 2004.

Sometime after 9:00 p.m. that night, he heard a dispatch go out directing Officer Vance to

proceed as the primary responding officer to 427 Belmont Drive in Bristol, Tennessee.

Officer Graham was dispatched to the same location as a backup unit. Officer Graham was

at the police station when he received the dispatch and it took him approximately six minutes

to reach the given address. He did not proceed to the scene with his blue lights or sirens

activated. He was about a minute from the residence when he heard Officer Vance tell the

dispatcher that he was at the residence and getting out of his vehicle. Officer Graham was

wearing his police radio on his shoulder as part of his uniform that night, as were Officer

Vance and Lieutenant Senter.

Officer Graham was on Belmont Drive but not yet to the residence when he heard

Officer Vance ask dispatch who had made the 911 call. As he was pulling up in front of the

residence and putting his patrol unit in park, Officer Graham heard Lieutenant Senter’s radio

transmission regarding a shot or shots having been fired. Officer Graham observed that

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Officer Vance’s cruiser and Lieutenant Senter’s cruiser were already on the scene. Officer

Graham also observed Lieutenant Senter walking up to the door prior to hearing the shots

fired transmission. As soon as he heard that shots had been fired, Officer Graham

immediately got out of his cruiser and assumed a position of cover behind the engine block

of a car that was parked directly in front of the residence. He then observed Lieutenant

Senter running toward his position to the left of the house.

Officer Graham described in his testimony what happened next:

A few moments went by. A male wearing a pink shirt came out of the

house. Lt. Senter was to my left and I heard him telling the gentleman to get

down on the ground. He complied.

A lady — a young female came out. She had something in her hand

and I heard him say, “Put the gun down.” She had it down to her side so she

— she never did point it at anyone. She immediately followed his instructions,

laid the weapon down, and got down on the ground as well.

There was a third gentleman that come out. Would have been Mr.

Johnson. He too was told to get down on the ground, and he — he laid down.

Officer Graham explained that the grass and sidewalk in and upon which all three individuals

laid down was wet because it had rained not long before. Officer Graham provided cover

for Lieutenant Senter as he handcuffed the Defendant. The female was yelling, “Why did

you shoot him?” At that point, Lieutenant Senter directed Officer Graham to go into the

house and check on Officer Vance. On cross-examination, Officer Graham testified that he

did not hear any words exchanged between Lieutenant Senter and the Defendant while the

Defendant was being handcuffed. However, on redirect, Officer Graham described the scene

that night as very chaotic and hectic.

Officer Graham entered the residence with Reserve Officer Kistner. Officer Graham

briefly looked downstairs, saw nothing, heard people yelling upstairs, and proceeded up to

the main floor of the house. He saw a female standing in the kitchen at the top of the steps

yelling and screaming. He instructed her to get down on the ground and she did. When

asked by Officer Graham who had been shot, the female pointed down the hallway toward

the living room. Officer Graham told the female not to move, continued the rest of the way

up the steps, turned down the hallway to his right and saw Officer Vance lying on the floor

at the corner of the hallway and the living room. Officer Vance had been shot on the right

side of his face. His service revolver was still in his holster and he was wearing a bulletproof

vest. Officer Vance’s flashlight was still in his right hand, which would have been his “gun

hand” because he was right-handed. Officer Graham instructed Reserve Officer Kistner to

keep an eye on the female while he (Officer Graham) went outside to retrieve his medical

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bag.

Upon exiting the residence, Officer Graham told Lieutenant Senter that Officer Vance

had been shot and that the male wearing the pink shirt, who had not been handcuffed yet,

should be placed in handcuffs. As Officer Graham proceeded toward his patrol unit, he saw

a revolver lying on the ground. Officer Graham secured the revolver in the trunk of his

vehicle after advising Lieutenant Senter that he was going to do so. When placing the

revolver in the trunk of his cruiser, Officer Graham opened the cylinder and laid it on the

trunk floor without emptying any of the cartridges. Officer Graham then identified the

revolver he placed into his trunk that night and it was introduced into evidence.

After re-entering the residence with his medical bag, Officer Graham got out a trauma

dressing and placed it over Officer Vance’s head wound. Officer Graham was joined by

Officers Greene and Tate, who are paramedics, and they began administering CPR to Officer

Vance. Officer Graham explained in his testimony that one of the photographs introduced

into evidence showing Officer Vance’s flashlight on the carpet was taken after the flashlight

had been removed from his hand and his gunbelt taken off so that CPR could be

administered.

Officer Graham testified that when he went out to his cruiser at one point to retrieve

oxygen for Officer Vance, he saw Officer Bradley Tate and Officer Tina Kesterson escorting

the Defendant toward Officer Graham’s cruiser. Then, after the ambulance arrived for

Officer Vance, Officer Graham went out to his vehicle again. When he initially arrived on

the scene, Officer Graham left the engine and radio of his vehicle running. His cruiser is

equipped with a video camera capable of recording with audio. However, the camera for this

device faces forward and records what is visible through the windshield of the cruiser. It

cannot make a video recording of anything occurring in the backseat of the cruiser. Officer

Graham explained that he can activate the video equipment inside the cruiser from a remote

on his gunbelt. He stated that the video equipment was off when he first arrived on the scene

and remained off until he came out of the residence the third time. At that point, he remote

activated the video equipment inside his cruiser when he saw the Defendant appearing to be

yelling something.

Officer Bradley Michael Tate testified that he had been an officer with the Bristol

Police Department for just over three years. He currently is a detective, but on the night of

November 27, 2004, he was a patrol officer. That night, he received a dispatch directing him

to respond to 427 Belmont Drive in Bristol, Tennessee. By the time he arrived at the

residence, there already were three patrol units there and Lieutenant Senter had two males

on the ground in front of the residence, one of whom was the Defendant. Officer Tate

immediately saw a female run out the front door of the residence screaming with a baby in

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her arms. He ran after her, took her into custody and placed her in the back of one of the

patrol units. At the direction of Lieutenant Senter, Officer Tate then escorted the Defendant,

who was by then in handcuffs, to Officer Graham’s patrol unit where he was placed in the

back seat with the doors locked. The Defendant was laughing as Officer Tate took him to

the vehicle. Officer Tate left Sergeant Smalling in charge of monitoring the Defendant while

he was in the back of the patrol unit. Sgt. Smalling and several other officers were on the

scene in the front yard at that point.

Officer Tate testified that he then went into the residence and proceeded to the top of

the steps where he observed other officers administering basic life support to Officer Vance.

Because he is a paramedic, Officer Tate assisted the other officers in trying to stabilize

Officer Vance. Before assisting the other officers, Officer Tate observed that there were two

females laying prone in the kitchen area at the top of the stairs. Officer Tate observed that

Officer Vance had a traumatic injury to the right upper head area. The other officers were

administering bag oxygen, but advised Officer Tate that Officer Vance had no pulse. Officer

Tate advised the others to remove Officer Vance’s vest and belt and start doing CPR

compressions. Officer Vance was in full cardiac arrest, not breathing and with no pulse.

When the ambulance arrived, Officer Tate assisted in taking Officer Vance down the steps

and continued to administer life support to Officer Vance during his transport in the

ambulance. Officer Tate managed to get Officer Vance’s pulse back for about three minutes

in the ambulance before Officer Vance died en route to the hospital.

B.M. testified that on November 27, 2004, she was seventeen years old and lived at

427 Belmont Drive in Bristol with her father and her twin sister, T.M., as well as her one-

year-old son. B.M. testified that she had been introduced to the Defendant by her friend,

Termaine McMorris, during the summer approximately four months prior to the shooting

giving rise to this case. There had been a gathering of friends at her home when her father

was not there and McMorris brought the Defendant with him. B.M. testified that McMorris

was twenty years old at the time and the Defendant was twenty-six years old.

B.M. testified that on the night she first met the Defendant, she told him that she was

seventeen years old and had a child. The Defendant also told B.M. that he had just had a

child with his current girlfriend and that he already had a child with one of his former

girlfriends. The Defendant got B.M.’s phone number and called her the next day. They

spoke on the telephone a few times and had sex at her house about three and half weeks after

they first met. After that, the Defendant and B.M. spoke to each other regularly and the

Defendant would come over to B.M.’s house about every other night when her father was

not home.

B.M. testified that between two to three months prior to November 27, 2004, she took

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a home pregnancy test and found out that she was pregnant by the Defendant. B.M.

immediately told the Defendant that she was pregnant and his reaction was, “Oh, no.” The

Defendant told her that he did not want another baby and could not handle it because he was

already taking care of his other children. The Defendant asked B.M. to have an abortion and

B.M. agreed to do so. The Defendant even had one of his friends drive B.M. to a clinic to

have the abortion, but B.M. changed her mind and led the Defendant’s friend to believe that

she had the procedure before he drove her home. B.M. stated that she kept the money for the

procedure, presumably given to her by the Defendant, and told the Defendant that she was

no longer pregnant.

B.M. testified that communication between her and the Defendant decreased after the

Defendant believed she had the abortion. However, the Defendant did tell her during one

conversation that he was moving to Charlotte, North Carolina. She did not want the

Defendant to leave because she knew she was still pregnant. B.M. testified that at some

point before November 27, 2004, a friend of hers told the Defendant that B.M. was still

pregnant. According to B.M., the Defendant was not mad when he first found out that she

did not have the abortion.

B.M. testified that on the night of November 27, 2004, she was at home with her

sister, her one-year-old son and her friends, Aisha Clark and Addie Vareen. Her father left

the house around 8:00 or 8:30 p.m. to go on a trucking run for work. About fifteen to twenty

minutes after her father left, B.M. called the Defendant on the telephone to discuss with him

her pregnancy and the fact that B.M. did not have an abortion. B.M. stated that she wanted

to “kind of get things straight with him.” B.M. stated that she and the Defendant were not

arguing on the phone at first. However, B.M. stated that she kept telling the Defendant that

she did not want to have an abortion. She testified that they got into a bad fight during the

conversation as a result of her refusal to have an abortion. B.M. described the Defendant as

having been as mad as she had ever heard him on the phone that night. She stated that he had

never lost his temper in front of her before that night. She further stated that before that

night, B.M. had never heard the Defendant raise his voice.

B.M. testified that while she was talking to the Defendant on the telephone, her sister,

T.M., came home, picked up the phone and began listening in on the conversation. B.M.

was aware that T.M. was listening in on the call. After she hung up the phone with

Defendant, B.M. next saw him when he came to the house about ten minutes later. B.M.

stated that she did not know the Defendant was going to come over and that he just walked

into the house when he arrived. B.M. stated that Vareen tried to stop the Defendant from

coming in the door by locking it, but she was unsuccessful. The Defendant immediately

started “yelling and cussing” at B.M. and pacing back and forth.

-12-

B.M. testified that the Defendant had two guns with him in his jacket pockets. She

did not see the guns until the Defendant walked up the steps and into the living room where

he sat them on the coffee table. B.M. described the guns as “a silver piece” and “a big black

gun” wrapped in a white cloth. The Defendant told B.M. that he was going to “shoot [her]

daddy” because he thought B.M.’s father would press charges against him for getting B.M.

pregnant. However, B.M. admitted that the Defendant was angry with her and that his fight

was with her alone. The Defendant never threatened anyone else in the house that evening.

B.M. testified that she called her father at that point and told her father that she was

pregnant and that the man who got her pregnant was there at the house threatening her with

a gun. B.M. did not give her father the name of the man with the gun. Her father told her

that he was calling the police and turning around to come back home. After she hung up the

phone, B.M. told the Defendant that the police were coming. The Defendant said he did not

care. The Defendant and B.M. continued to fight. The Defendant stated, “The police can’t

dodge these shells.” In other words, the Defendant announced that he would shoot the police

if they showed up. The Defendant told B.M. that if he went to jail that night, it would be for

murder not for statutory rape. B.M. was frightened because the Defendant said he was going

to kill her too. However, she admitted on cross-examination that the Defendant did not

threaten her over the phone. B.M. described the Defendant as being “[j]ust in a rage.”

B.M. testified that she and the Defendant then heard a car drive by at which point the

Defendant “pointed the gun out the window.” As he did so, he said, “There’s the police.”

However, it was not the police. Instead, it was Termaine McMorris. The Defendant had

been at the house only about ten to fifteen minutes at that point. McMorris, B.M. and T.M.

then attempted to calm the Defendant down and get him to leave without success. When

another car pulled up in front of the house, B.M. and the Defendant were in B.M.’s bedroom

that has a window that looks out to the front of the house. She testified that she had gone

into that room to check on her baby who was sleeping there. When they heard the car, the

Defendant looked out that window and said, “There’s the police.”

B.M. testified that she saw the officer come to the front door from her bedroom. B.M.

left the bedroom and was standing in the hallway to the left of the stairs when T.M. and

McMorris went to the door to meet the officer. B.M. heard the officer ask what was wrong.

She also heard T.M. and McMorris tell the officer that everything was okay. The officer said

he still needed to come in and just check things out. The officer then proceeded up the stairs

with T.M. and McMorris in front of him. As the officer reached the top of the stairs, the

telephone rang in the kitchen and B.M. answered it. She was standing in the kitchen talking

on the phone with her father when she heard a gunshot. She did not hear any words

exchanged between the officer and the Defendant, who was also standing in the hallway,

prior to the gunshot. B.M. dropped the phone when she heard the gunshot and ran into her

-13-

room. She did not see who shot Officer Vance. She grabbed her baby and jumped into the

closet. She came out about five to six minutes later at which point she ran out of the house

with her baby. She was apprehended by an officer and placed in the back of a police cruiser.

She testified that she saw Officer Vance laying on the floor to the right of the stairs just

inside the living room. B.M. testified that she never saw the Defendant pick the guns up off

the living room coffee table after he laid them down.

T.M. testified that on November 27, 2004, she was living at 427 Belmont Drive in

Bristol with her father and her twin sister, B.M., as well as B.M.’s one-year-old son. She

testified that two of her friends, Addie Vereen and Aisha Clark, were there at the house with

her on the night in question. T.M. testified that she, Vereen and Clark had been riding

around in T.M.’s car earlier that afternoon and they were all going to spend the night together

at T.M.’s house. T.M. stated that when she and the other girls arrived back at her house

around 8:15 or 8:30 p.m., T.M.’s father was outside getting his truck ready for work. When

Mitchell left for work, T.M. and the other girls were all in the kitchen of the house.

T.M. testified that, at some point that evening after her father left for work, B.M.

called the Defendant and T.M. overheard them talking on the phone. While B.M. was on the

phone with the Defendant, T.M. and the other girls left in T.M.’s car to go buy chips and

drinks at the Quick Stop near the house. When they got back to the house, T.M. could hear

B.M. still on the phone yelling at the Defendant. T.M. walked down to the basement, picked

up a phone down there to listen in on the conversation, and heard the Defendant and B.M.

obviously having a fight about B.M. being pregnant. T.M. heard the Defendant “saying over

and over and over” that he thought the girls’ father was going to “press charges” against him

for getting B.M. pregnant. B.M. kept assuring the Defendant during the conversation that

her father was not going to “press charges” against the Defendant for the pregnancy. T.M.

also heard B.M. and the Defendant discussing the subject of abortion.

After B.M. hung up the phone, T.M. called the Defendant back in an effort to calm

him down. T.M. told the Defendant that her father did not even know that B.M. was

pregnant so he wasn’t going to press charges against him. The Defendant stated that “he was

going to shoot [the girls’] daddy” if he pressed charges against the Defendant for the

pregnancy. The Defendant also told T.M. “he wasn’t playing games” and that he wanted to

talk to B.M. again. T.M. could hear the anger in the Defendant’s voice and described the

Defendant as having been mad at B.M. T.M. gave B.M. the phone and B.M. hung it up

without saying a word to the Defendant.

According to T.M., the Defendant showed up about ten or fifteen minutes later and

entered the house. T.M. stated that Vereen ran downstairs to try to lock the door to keep the

Defendant from entering the house, but did not get to the door in time. The Defendant did

-14-

not say anything when he walked in the door. He just laid two guns on the living room table

and stated that he was going to “kill” both B.M. and the girls’ father. One of the guns was

“[a] big long gun” that was black and the other gun was silver and smaller. The bigger gun

was wrapped in a white cloth. The Defendant later picked up the guns, put them in his

pocket and continued to fight with B.M. about the pregnancy and his concern about being

charged for it. T.M. stated that the Defendant did not threaten her, Vereen or Clark at that

point because his fight was with B.M. The Defendant paced up and down the hallway while

he and B.M. continued to yell at one another.

T.M. testified that, before the Defendant arrived at the residence, B.M. called their

father because the Defendant told B.M. to make the call and tell her father to come home.

According to T.M., the Defendant told B.M. to tell her father to come home because the

Defendant wanted to talk to him. After B.M.’s conversation with her father, there was

discussion about the police coming to the residence. T.M. testified that the Defendant made

the following statement with regard to the police coming to the house: “[W]hoever walks

through the door will be the first to die I guess.” T.M. further testified that the Defendant

made the statement that if he was going to go to the penitentiary, it was going to be for

murder and not for statutory rape.

After B.M. got off the phone with her father, a mutual friend of both T.M.’s and the

Defendant’s, Termaine McMorris, arrived at the residence and attempted to get the

Defendant to leave. The Defendant refused to leave the residence. T.M. asked McMorris

to try to calm the Defendant down. McMorris tried to do this, but the Defendant just wanted

everyone to leave him and B.M. alone and let them fight it out. While McMorris was there,

the Defendant looked outside and pointed one of his guns out the window.

T.M. testified that a short time later she saw Officer Vance pull up in his police cruiser

outside the residence. B.M. and the Defendant were in B.M.’s bedroom and everyone else

was in the living room. T.M. and McMorris went down the stairs to meet Officer Vance at

the front door. As they were walking down the stairs, McMorris told T.M. to tell Officer

Vance that everything was okay. T.M. and McMorris met Officer Vance outside the front

door on the porch. The front door was open, but the glass outer door was shut. Officer

Vance was in uniform and talking to someone on his dispatch radio. When they got to

Officer Vance, T.M. told him that everything was okay. McMorris said nothing. Officer

Vance stated that he had to go into the house to see if everything was okay.

T.M. and McMorris then entered the house ahead of Officer Vance and walked up the

steps toward the kitchen. McMorris was the first up the steps followed by T.M. and Officer

Vance. His weapon was not drawn. When she was halfway up the steps, T.M. told Officer

Vance that “he has a gun.” Officer Vance asked her, “Who?” T.M. responded, “him,” but

-15-

T.M. does not think Officer Vance could see the Defendant at that point. Officer Vance

talked on his dispatch radio as they ascended the stairs. T.M. testified that Officer Vance

may have been using his left hand to activate the radio on his right shoulder.

When they reached the top of the steps, T.M. and McMorris turned left down a

hallway toward the bedrooms. They walked down the hallway to a point behind where the

Defendant was standing at the top and to the left of the steps near the entrance to the kitchen.

Officer Vance reached the top of the steps and was standing a little past the kitchen entrance

to the right when he was shot in the forehead by the Defendant. T.M. and McMorris were

standing close enough to the Defendant that they could have reached out and touched him.

The big long, black gun used by the Defendant to shoot Officer Vance was about one to two

feet from the officer when it discharged. No words were exchanged between Officer Vance

and the Defendant before the Defendant fired the gun.

T.M. testified that Officer Vance fell to the ground and the Defendant stated: “I’m

out.” The Defendant then threw the smaller of the two guns “in towards the living room” and

placed the long, black gun he used to shoot Officer Vance at the bottom of the stairs as he

walked outside. McMorris went out the front door of the residence ahead of the Defendant.

T.M. followed the Defendant outside the residence and picked the gun up at the bottom of

the steps on her way out. She does not know why she picked up the gun. As she walked out

the door, she asked the Defendant why he did it. The Defendant did not answer.

T.M. testified that the police told her to drop the weapon and lay down on the ground

as soon as she got outside. She did so, but then got back up and ran back into the house to

the kitchen. When officers entered the residence, T.M. was once again ordered to lay down

and was taken into custody. T.M. estimated that it only took about three to four minutes from

the time Officer Vance arrived at the house until she walked out of the residence with the gun

in her hand.

On cross-examination, T.M. testified that both she and B.M. knew the Defendant for

about four or five months prior to the shooting. She stated that both she and B.M. met the

Defendant at a party at their house. McMorris brought the Defendant to the party. T.M.

stated that she had known McMorris at that point for two years. T.M. testified that prior to

the shooting, the Defendant came over to her house to see B.M. on about a weekly basis

since the two of them met.

Aisha Clark testified that she was at the residence located at 427 Belmont Drive in

Bristol on the night of November 27, 2004, and witnessed the Defendant kill Officer Vance.

Clark testified that earlier that afternoon, T.M. picked her up and the two of them with Addie

Vereen went riding around in T.M.’s car. She stated that they arrived at the Belmont Drive

-16-

residence before dark but after her friends’ father left to go to work. She estimated that it

was somewhere around 8:15 or 8:30 p.m. and that she and her friends were riding around for

about two or three hours before that. The only two people at the residence were B.M. and

her infant son. B.M. was on the phone with the Defendant when Clark arrived at the

residence.

Clark testified that her plan that night had been to spend the night at the residence with

the twins, B.M. and T.M. Clark stated that the Defendant, who she had known “for years,”

showed up at the residence around 10:00 p.m. However, she conceded that she was not

wearing a watch and did not specifically look at a clock when he arrived. She stated that she

was sitting on the couch and the Defendant just walked through the front door. Clark

testified that she recalls Vereen going to the door to lock it or shut it; however, it is unclear

from the testimony whether that was before or after the Defendant entered the residence. On

cross-examination, Clark admitted that she told the police in the statement she gave the

morning after the shooting that Vereen tried to shut the door while the Defendant forced his

way in.

Clark testified that the Defendant was mad and began loudly arguing with B.M., but

she did not recall what the argument was about. She stated that the Defendant came into the

living room and “slammed” two guns down on the table, with the bigger of the two guns

being wrapped in a cloth. Clark stated that the Defendant never threatened her and that his

anger was directed only at B.M. Clark stated that the Defendant was walking up and down

the hallway while arguing with B.M, who just kept calmly asking the Defendant to leave.

At some point, someone told the Defendant the police were on their way, to which the

Defendant responded that he was not going to leave and that nobody could make him leave.

When asked what the Defendant said would happen when the police got there, Clark testified

that the Defendant said “[e]ither [B.M.’s] dad or the police officer, whoever got there first,

he was going to shoot in the face.” Clark also testified that she heard the Defendant say that

if he was going to the penitentiary, it would be for murder and not statutory rape.

Clark testified that at some point that night McMorris, who she had also known “for

years,” showed up at the residence. Clark testified that McMorris calmly tried to get the

Defendant to leave the residence, but that the Defendant told McMorris to “back up” because

“he ha[d] his finger on the trigger.” Clark testified that the Defendant was mad when he said

this, but “said it calmly.” Clark stated that McMorris and the Defendant were also friends.

Clark stated that the police arrived about three or four minutes after McMorris. T.M.

and McMorris walked to the front door, at which point Clark walked into B.M.’s bedroom.

Clark testified that she did this to check on B.M.’s infant son and Vereen who were both in

-17-

that bedroom at the time. Clark never saw Officer Vance walk up the stairs after he entered

the residence. She did hear Officer Vance talking as he came up the stairs, but she does not

recall what he was saying. She stepped out into the hallway and saw Officer Vance walking

into the living room. Officer Vance “was standing about four or five feet away from [Clark],

and [the Defendant was] standing about a foot away from him.” Both of their backs were

turned toward Clark. She saw Officer Vance talking into his walkie-talkie. She saw that he

had one hand on the walkie-talkie and nothing in the other hand. Clark saw the Defendant’s

arm go up in an upward motion and heard gunshots, at which point she saw Officer Vance

fall. T.M. and McMorris were standing in front of Clark and between Clark and the

Defendant when Clark heard the gun fire. Clark did not know where B.M. was in the house

at the moment. Clark testified that no words were exchanged between the Defendant and

Officer Vance prior to the gunshot and Officer Vance had made no threats toward the

Defendant.

Clark testified that after shooting Officer Vance, the Defendant “just sat the guns

down and walked outside.” Clark recalls McMorris walking outside after the Defendant, but

did not see anything that went on outside after that. Clark testified that she was scared for

her own safety at the time. She stated that everything happened very quickly and that people

were screaming after the Defendant shot Officer Vance. Clark testified that she ran into the

kitchen where the police found her about five minutes later. The police told everybody to

get down on the ground before taking them into custody for questioning.

Special Agent Brian Pritchard of the Tennessee Bureau of Investigation (“TBI”)

testified that he took charge of the investigation surrounding the shooting death of Officer

Vance at approximately 11:15 p.m. on the evening of November 27, 2004. He described it

as having “been raining substantially” with “drizzly rain off and on” when he arrived. He

also described the grass in the front yard of the residence as very wet. Agent Pritchard

testified that the Defendant was already in custody when he arrived. He was arrested and

handcuffed at approximately 9:30 p.m.

As part of his investigation, Agent Pritchard testified that he took custody of the .357

single-action, magnum revolver that Officer Graham locked in the trunk of his car. Agent

Pritchard checked the weapon and determined that it was loaded. The gun holds six rounds

and there were still five live rounds in the weapon. The hammer to the weapon was

positioned directly over a spent round. Agent Pritchard identified both the spent round and

the live rounds retrieved from the weapon, all of which were introduced into evidence.

Agent Pritchard testified that he also received into evidence that night a .22 caliber single-

action, five-shot revolver resembling a Derringer pistol. This gun was found in a holster and

contained five live rounds that Agent Pritchard removed from the weapon. The live rounds

retrieved from this weapon were introduced into evidence along with the pistol from which

-18-

they came and the holster.

Agent Pritchard further testified that he received into evidence that night and during

the course of his investigation various other items of evidence including: the flashlight

Officer Vance was carrying that night; the black, longsleeve windbreaker jacket worn by the

Defendant; some bullet fragments retrieved from the head of Officer Vance during the

autopsy; a blood sample from Officer Vance taken by Dr. McCormick during the autopsy;

gunshot residue test kits from testing performed at the scene on the Defendant, McMorris,

B.M., T.M., Clark and Vereen; fingerprint samples taken from the Defendant; and a swab

from a blood stain on a picture that was hanging on the wall of the living room of the

residence. Agent Pritchard stated that he performed the gunshot residue test on the

Defendant and other officers performed the tests on the other people at the scene. He stated

that he did not perform the gunshot residue test on the Defendant until sometime between

1:10 and 1:15 a.m. on November 28, 2004, after the Defendant already was in custody at the

Sullivan County Sheriff’s Department. He also did not take the Defendant’s jacket into

evidence until sometime between 1:45 and 2:00 a.m. on November 28, 2004, after the

Defendant was in custody at the jail.

Agent Pritchard testified that he sent all of the evidence he collected during the

investigation to the TBI crime lab in Nashville for processing. He stated that he asked the

crime lab to determine whether there was gunshot residue in any of the test kits or on the

jacket retrieved from the Defendant. He also asked the crime lab to determine whether there

were any fingerprints on the .357 revolver or the rounds retrieved from that weapon that

belonged to the Defendant. Agent Pritchard further directed the crime lab to determine

whether the swab of blood retrieved from the scene matched Officer Vance’s blood sample

and whether the bullet fragments retrieved from Officer Vance’s body were fired from the

.357 revolver. On cross-examination, Agent Pritchard conceded that if there were no gunshot

residue analysis results for T.M. it would mean that either her test kit was inadvertently not

delivered to the TBI crime lab for analysis or his directive for another officer to obtain a

gunshot residue test sample from her was not communicated properly.

Agent Pritchard was also shown the same series of photographs introduced into

evidence during Senter’s testimony and confirmed that the photographs depicted how both

the exterior and interior of the residence looked on night of November 27, 2004. During this

part of his testimony, Agent Pritchard confirmed from the photographs that the top of the

steps inside the house could be seen by someone standing on the front porch. Agent

Pritchard also testified with the aid of the photographs as to the distances he measured in the

front yard from the curb to the walkway leading up to the house and from where the driveway

meets the road to the front door. He stated that the first distance was between thirty-six and

forty feet and the second distance was a little over 51 feet. Agent Pritchard also described

-19-

from the photographs, as well as a diagram of the interior of the house, the layout of the

hallway at the top of the stairs with the living room to the right and the bedrooms to the left,

including where the blood stains from Officer Vance’s injuries were found, where the swab

of blood from the picture was taken, and where the .22 caliber pistol and flashlight were

found. Agent Pritchard further described from the photographs that the bedroom identified

as belonging to B.M. had a window from which the front yard and street could be seen.

Agent Pritchard also testified that he received into evidence that night and during the

course of the investigation the original VHS videotape recording from Officer Graham’s

police cruiser as well as two DVD digital recordings of what appeared on the tape. These

items were introduced into evidence during Agent Pritchard’s testimony. Agent Pritchard

stated that the tape lasted approximately two hours with extended periods of silence or just

the radio playing in the background.2 He explained that the Defendant could be heard

making statements on the tape at various points. Agent Pritchard then identified a transcript

as representing the first thirteen minutes and thirty-eight seconds of the tape. The transcript

was introduced into evidence as well. The portion of the tape covered by the transcript was

played for the jury and the Defendant can be heard on the tape verbally posturing about his

lack of remorse for having shot Officer Vance and total apathy about the consequences of

his actions. Specifically, the Defendant can be heard laughing while saying,

Listen, I’m all right. Am I alive or dead, cop? It ain’t nothing but a — it ain’t

nothing but clean sheets or maybe the electric chair. I’ll be all right. . . . That

don’t scare me. You can — you can do it right now. It don’t scare me, cop.

You’re a bitch if you don’t do it. . . . Yeah, I’m all right alive or dead, free or

alive. . . . It’s all a game to me, man. This ain’t nothing to me, man. . . . Lay

down sweet, lay down easy, go do my time and I’ll go to the chair if I got to.

She don’t mean nothing to me, man. . . . Take me for life. Take me to the chair

if you want to. Life ain’t sweet.

The Defendant also can be heard laughing while saying,

They don’t teach you that in training, do they? . . . Yeah, you weren’t ready

for that. You weren’t ready for that in training. . . . Don’t take me for no joke,

man. . . . It don’t feel good, do it? That’s how it feels when you took him

away for life, don’t it? I said that’s how it feels when you take my fucking jail

— take their life away from somebody. That’s how it feels.

2

The parties stipulated that any music playing during the tape came from the radio in the police

cruiser that was left on by Officer Graham. The jury was instructed not to have any bias or prejudice against

the Defendant as a result of the lyrics that can be heard on the videotape coming from the radio in the vehicle.

-20-

Agent Pritchard confirmed during his testimony that officers and EMS personnel can

be seen walking around outside the police cruiser during the tape. He stated that he arrived

on the scene near the end of the videotape recording and that after conducting some

preliminary interviews he directed that the Defendant be transported from the scene to the

Sullivan County Sheriff’s Department. On cross-examination, the remainder of the tape not

covered by the transcript, which mostly contains long periods of silence, was played for the

benefit of the jury at defense counsel’s request.

TBI Special Agent Laura Hodge, who has worked at the Nashville crime lab for the

past fourteen years, testified as to her credentials and was accepted without objection as an

expert in the field of gunshot residue analysis. Agent Hodge explained that in analyzing

gunshot residue test kits she looks for the presence of antimony, barium and lead which are

the three elements that make up the primer composition of a bullet cartridge. She stated that

Agent Pritchard submitted gunshot residue test kits for analysis from various subjects

including the Defendant, McMorris, B.M., Clark and Vereen. Agent Hodge testified that her

analysis of the test kit from the Defendant was inconclusive in that the results could not

eliminate nor confirm the possibility that the Defendant fired, handled or was near a gun

when it fired. Agent Hodge explained that her analysis of the Defendant’s test kit found the

presence of the three elements indicative of primer from a cartridge, but the amounts were

insufficient to make a definitive conclusion with regard to the presence of gunshot residue.

In contrast, her analysis of the test kits from B.M., Clark and Vereen were negative for the

presence of any of the three elements indicative of primer from a cartridge. However, she

conceded that it is possible for an individual to fire a weapon and have no gunshot residue

present on their person. She explained that gunshot residue “is very fragile evidence” that

can be impacted by many environmental factors including if the individual from whom the

evidence was taken had lain in wet grass before the sample was taken, if there were only one

shot fired, or if the subject had rubbed his or her hands onto something prior to the sample

having been taken. Agent Hodge could not perform an analysis of the test kit submitted for

McMorris because it was missing a key component necessary to conduct the analysis. She

also never received a gunshot residue test kit for analysis from the subject known as T.M.

TBI Special Agent James Russell Davis, II, who has worked at the Nashville crime

lab for twenty-five years, testified as to his credentials and was accepted without objection

as an expert in the field of gunshot residue analysis. He explained that while Agent Hodge

chemically analyzed gunshot residue test kits to determine the presence of the elements

within the primer of a bullet, he used an electron microscope to examine items of clothing

and other things looking for the presence of the metallic particles of those elements in

combination found in the primer discharge when a gun is fired. Agent Davis testified that

he received for gunshot residue analysis from Agent Pritchard a jacket obtained from the

Defendant. Agent Davis explained that his analysis of the Defendant’s jacket did not reveal

-21-

the presence of particles of gunshot primer residue. However, Agent Davis made clear that

the results of his analysis neither eliminated nor confirmed that the Defendant fired a gun

while wearing the jacket. Agent Davis testified that many things could happen to a garment

between the firing of a weapon in its proximity and his analysis of the garment for gunshot

residue that would impact his ability to achieve conclusive results regarding the presence of

gunshot residue. Specifically, Agent Davis stated that his ability to achieve meaningful

results in his analysis could have been impacted by the Defendant laying down in what

appeared to be the wet grass shown in the photographs of the front of the residence taken on

the night of the shooting.

On cross-examination, Agent Davis admitted that he did not analyze the back of the

jacket even though gunshot residue can transfer from a sleeve to the back of a jacket if the

subject wearing the jacket is being handcuffed. He also testified that no other articles of

clothing from the Defendant or any other subject were submitted for him to analyze.

TBI Special Agent Hoyt Eugene Phillips, who has worked at the Nashville crime lab

for thirty-two years, testified as to his credentials and was accepted without objection as an

expert in the field of latent fingerprint analysis. Agent Phillips testified that he received for

latent fingerprint analysis from Agent Pritchard the .357 magnum revolver and cartridges

taken into evidence by Officer Graham at the scene of the shooting. Agent Phillips explained

the methods he uses to obtain latent fingerprints for analysis and testified that he was unable

to find any useable prints on any of the items submitted to him for analysis. Agent Hoyt

stated that many factors could have contributed to the lack of any latent fingerprints being

found on the weapon or cartridges and that the lack of such prints did not rule out the

possibility that a particular individual handled the weapon or cartridges.

TBI Special Agent Charles S. Hardy, who has worked at the Nashville crime lab for

seven years, testified as to his credentials and was accepted without objection as an expert

in the field of DNA analysis. Agent Hardy testified that he received for DNA analysis from

Agent Pritchard several swabs taken at the crime scene of evidence believed to be blood

stains. He explained the methods he uses to determine whether a specific sample contains

a DNA profile and then how he analyzes that profile once obtained. He was able to extract

a DNA profile from a swab identified as being taken from a blood stain on a picture in the

living room of the residence and matched that DNA profile to a known DNA sample from

Officer Vance.

TBI Special Agent Steve Scott, who has worked at the Nashville crime lab for almost

twenty-one years, testified as to his credentials and was accepted without objection as an

expert in the field of firearms identification. Agent Scott testified that he received for

comparison analysis from Agent Pritchard the .357 magnum revolver, a fired cartridge casing

-22-

taken from the crime scene, and fired bullet fragments obtained during the autopsy of Officer

Vance. Agent Scott determined the weapon was in normal operating condition with properly

functioning safety features. His analysis of the weapon showed that once loaded, the hammer

of the weapon had to be pulled back “to a full-cock position” before it would fire for each

shot. Agent Scott explained that the trigger pull for this weapon was approximately two and

a half pounds, or, in other words, that it takes two and a half pounds of pressure on the

trigger to discharge the weapon. His analysis of the fired cartridge casing and the fired bullet

fragments revealed that they were all fired from the .357 magnum revolver submitted with

them for analysis. Agent Scott also testified that he created with the .357 magnum revolver

various test fire patterns at differing distances to be sent to the medical examiner, Dr.

William McCormick, for comparison with the wounds found on the body of Officer Vance.

Lieutenant Joseph Herman Strickler of the Sullivan County Sheriff’s Office testified

that he is familiar with the telephone system available to inmates at the jail facility, that all

calls made by inmates at the facility are recorded, that he is the custodian of record for the

recordings of telephone calls made by inmates, and that he had listened to recordings of

certain telephone calls made by the Defendant and others while incarcerated at the jail

facility. During his testimony, Strickler provided a diagram of the “Kilo Cell Block” in

which the Defendant was housed during his incarceration at the jail. Strickler explained that

inmates in that cellblock are kept in individual cells. They are allowed out of their cells for

only one hour each day to use the telephone, shower or exercise. Utilizing the diagram,

which was admitted into evidence, Strickler explained that the individual cell in which the

Defendant was housed was approximately thirteen feet from the telephone available to

inmates in that cellblock. Strickler also explained that an inmate named Dustin Ferguson was

housed in the same cell block during the Defendant’s incarceration.

Strickler explained that jail logs for the Defendant’s cellblock, which were introduced

into evidence, showed that on December 6, 2004, the Defendant was released from his cell

at 9:11 a.m. and returned to his cell at 10:11 a.m. The jail logs also showed that inmate

Ferguson was released from his cell on the same date at 10:15 a.m. and returned to his cell

at 11:16 a.m. The recordings of inmate telephone calls made on that date include a call made

by the Defendant at 10:07 a.m. and another call made by inmate Ferguson at 10:14 a.m., both

of which were to the same telephone number identified as belonging to Niki Booker, the

Defendant’s sister. The recordings of inmate telephone calls made on December 7, 2004,

include two telephone calls made by the Defendant to Booker in which McMorris can also

be heard speaking. Strickler explained that it appeared that Booker called McMorris during

the initial call from the Defendant and initiated a three-way call. The recordings of all four

telephone calls and transcripts of the calls were introduced into evidence and the tapes were

played for the jury.

-23-

During the first call between the Defendant and Booker on December 6, 2004, the

following exchange can be heard on the tape:

DEFENDANT: Yeah. Yeah, but Termaine need to tell ‘em what’s up.

BOOKER: Huh?

DEFENDANT: Termaine, how’d they get ahold of him? What, did

Termaine, lie to them people like a couple of times?

BOOKER: He what?

DEFENDANT: When they, when they questioned him, what did he lie to

‘em? Mama said he lied to ‘em?

BOOKER: Oh, he said, that’s what he was sayin’, I didn’t really hear

the whole thing because I was so upset I left the room.

DEFENDANT: All right.

BOOKER: But he was sayin’ —

DEFENDANT: Hurry up so it won’t —

BOOKER: Okay, he said that he was tryin’ to say that you didn’t do

it and then you had already told ‘em that you did and they

was gonna try to charge him with accessory.

DEFENDANT: All right, they, they, they’re comin’ to get me right now.

BOOKER: Okay.

During the second call, which was made by inmate Ferguson on December 6, 2004, a male

voice can be heard identifying himself to the telephone operator as “Nick Johnson” and the

following exchange can be heard on the tape:

MALE: Okay, Nick’s lawyer is supposed to call Termaine.

BOOKER: Okay.

MALE: He said his lawyer is the only person that knows what’s

goin’ on.

BOOKER: Okay.

MALE: Is that okay? He said talk to Termaine.

BOOKER: Okay.

MALE: But he —

BOOKER: Okay.

MALE: Okay, he said don’t let these people fool you into

thinkin’ nothin’.

BOOKER: Okay.

MALE: Fool Termaine into thinkin’ nothin’.

BOOKER: Okay.

-24-

MALE: He said that, he say he explained to his lawyer.[ 3 ]

BOOKER: What happened?

MALE: He say yeah.

BOOKER: Okay.

MALE: He, he said when, when he pulls for his —

BOOKER: Huh?

MALE: His exact words were when he pulled for his —

BOOKER: Uh-huh.

MALE: That’s what he said.

BOOKER: Okay.

MALE: All right. He said do you understand what he’s sayin’?

BOOKER: Yeah.

MALE: She said yeah. Okay, she said — he said make sure.

BOOKER: Okay. He said — yeah.

MALE: He said call Termaine on Tomeka’s phone.

BOOKER: Okay.

MALE: What else, [inaudible]? Okay, he, he — okay, he said to

call Termaine and make sure that, uh, he’s sayin’ the

same thing that he — he don’t, he don’t have to be scared

to talk to his lawyer. Is that okay?

BOOKER: Okay.

MALE: He said if anything, don’t let these — don’t believe

anything these people say.

BOOKER: I’m not.

MALE: He said, he say he could trust his lawyer.

BOOKER: Okay.

MALE: He said call on Tomeka phone.

BOOKER: I will.

MALE: And make sure that he knows everything is all right.

BOOKER: I will.

MALE: And he says, that, uh, make sure he doesn’t lie to his

lawyer.

BOOKER: Okay.

MALE: She said okay. He said make sure that when he talk to

people or ever he pulled for his that’s what happened.

BOOKER: Okay.

MALE: She said okay. He say he ain’t got to lie, just tell ‘em the

3

When this conversation took place, the Defendant had not yet had his preliminary hearing and was

still represented by the Office of the Public Defender.

-25-

truth.

BOOKER: Okay.

MALE: She said okay. He said don’t leave out no parts.

BOOKER: Okay.

MALE: And tell Termaine not to leave out no parts.

BOOKER: Okay.

MALE: To his lawyer and be honest with him.

BOOKER: Okay.

MALE: Okay, and he said explain to the lawyer how the whole

thing went down and how they was tryin’ to push him out

the house and everything.

BOOKER: Okay.

MALE: She said okay. All right, he say he loves you and thank

you.

BOOKER: Okay. Thank you for letting me use your call.

MALE: Okay. Okay.

BOOKER: All right.

MALE: Do you have everything understood, to understand me?

BOOKER: Yeah, he said to call Termaine and tell him that he needs

to talk to his lawyer and tell him to tell the truth, the

whole story and explain to ‘em how he was, they was

tryin’ to push him out of the house and when he pulled

for his that’s when it happened and, uh, —

MALE: She said she’s got it now. All right, he said he loves you.

BOOKER: I love you — tell him I love him too.

MALE: He said do you have Tomeka’s number?

BOOKER: Yeah.

MALE: She said yes. He said make sure you get this done

because this is real important.

BOOKER: I am, I’ll call now.

MALE: He said go ahead and call his lawyer because he’s tryin’

to get ahold of you too.

BOOKER: Okay.

MALE: And Termaine to get ahold of — he said talk to Termaine

first before you call the lawyer.

BOOKER: Okay.

MALE: He said just tell Termaine don’t be nervous, now just, the

best, the best thing is to tell the truth right now so his

lawyer will know what’s goin’ on.

BOOKER: Okay.

-26-

MALE: He said just the lawyer, don’t talk to nobody else.

BOOKER: Okay.

MALE: And he said make sure that he, that he, um, implicates

that — make sure that he know, that his lawyer knows

that —

BOOKER: Okay.

MALE: That the dude pulled first.

BOOKER: Okay.

MALE: Okay, he said that’s it.

During the entirety of this conversation, a muffled voice can be heard in the background

speaking to the male caller before the male caller makes his statements to Booker.

During the first call made by the Defendant on December 7, 2004, the following

conversation can be heard on the tape:

BOOKER: . . . I talked to Termaine.

DEFENDANT: What’d he say?

BOOKER: He was sayin’ that — I told him that you, what you had

said and he was like he’s not mad at me? I was like why

would he be mad —

DEFENDANT: Why would I be mad?

BOOKER: That’s what I said, why would you be mad, he said “I’m

scared and stuff.” I was like, well, Termaine —

DEFENDANT: He must have read a statement or somethin’.

BOOKER: Probably.

DEFENDANT: Yeah.

BOOKER: But I told him to talk to your lawyer and then you lawyer

called me.

DEFENDANT: Huh?

BOOKER: Your lawyer called me.

DEFENDANT: He did call you?

BOOKER: Yeah, and —

DEFENDANT: He probably got — did he, do you know if he got ahold

of Termaine?

BOOKER: He hadn’t at that point but he had called right after —

DEFENDANT: Try to call Termaine real quick.

....

DEFENDANT: Yeah. He think I’m mad. He must have a real messed

up statement or somethin’.

-27-

BOOKER: I don’t know, he said “Like he’s not mad at me.” I was

like, no, he’s not mad.

DEFENDANT: Answer the phone. Answer the phone. Answer the

phone.

MCMORRIS: Hello.

DEFENDANT: Hello, who’s this?

BOOKER: Termaine.

DEFENDANT: Termaine?

MCMORRIS: Who’s this?

DEFENDANT: This is Nick. Who’s this?

MCMORRIS: This is Termaine.

....

DEFENDANT: . . . My lawyer ever get ahold of you?

MCMORRIS: Oh, he called. I called him back but he wasn’t in his

office.

DEFENDANT: You still ain’t talked to him then?

MCMORRIS: No.

DEFENDANT: Try to get ahold of him, all right?

MCMORRIS: I will.

DEFENDANT: Niki talked to you already?

MCMORRIS: Huh?

DEFENDANT: Niki talk to you already?

MCMORRIS: Yeah.

DEFENDANT: I can’t say too much over this phone, all right?

MCMORRIS: Yeah.

DEFENDANT: Uh, they, they get you to write a statement down there?

MCMORRIS: Huh? Uh, they got, they took everybody’s statement

about what happened.

DEFENDANT: Yeah. Does everything look bad?

MCMORRIS: Huh?

DEFENDANT: Everything look bad?

MCMORRIS: If I was you I’d have blamed it on Tiff cause she’s the

one that came out the house with the gun.

DEFENDANT: Huh?

MCMORRIS: She the one that came out the house with the gun.

DEFENDANT: Don’t, don’t talk too much on the phone. Don’t, you

know, don’t, don’t talk too much over the phone.

MCMORRIS: All right.

DEFENDANT: You know what I’m sayin’, all these phone calls gonna

be recorded.

-28-

MCMORRIS: All right.

DEFENDANT: But, uh, like I say, everything is all right, man. Like I

say, talk to my lawyer man, don’t, don’t talk to noth —

don’t let them fool you into sayin’ anything else as far as

a statement, all right.

MCMORRIS: All right.

....

DEFENDANT: They can’t, they can’t, they can’t make you say nothin’.

MCMORRIS: Uh-huh.

DEFENDANT: You see what I’m sayin’. Like I say, talk to my lawyer.

You can trust my lawyer. Don’t, don’t trust the State

man, they gonna try to trick you up, man.

During the second call made by the Defendant on December 7, 2004, almost

immediately after the conclusion of the first, the following conversation can be heard on the

tape:

DEFENDANT: . . . Yeah, you know that one. Yeah, they can’t, they

can’t make you testify, man.

MCMORRIS: I’m not, I’m pleading the Fifth.

DEFENDANT: Yeah.

MCMORRIS: They can’t do nothin’ but be mad.

....

MCMORRIS: You play your, you play your cards right you can beat

that.

DEFENDANT: What you say?

MCMORRIS: You play your cards right you can beat that.

DEFENDANT: Like I said, you just tell my lawyer, tell my lawyer what

happened. Like I said, you know what I’m sayin’? I

don’t want to say too much over this phone, you know

what I’m sayin’, because I know it’s probably gonna be

recorded.

....

MCMORRIS: I’m, uh, talk, I’m gonna keep tryin’ to get in touch with

your lawyer.

DEFENDANT: Right.

MCMORRIS: If them cards is played right you can beat that. You can

beat that, no bull shit.

DEFENDANT: Like I say —

MCMORRIS: Now what — what I — if I get — they put me up there

-29-

and I get up I just say I plead the Fifth they ain’t nothin’

they can do to me, can they?

DEFENDANT: No, you ain’t, you ain’t got to do nothin’. But like I say,

what you say can help too, you know what I’m sayin’?

MCMORRIS: Yeah.

Dustin Ferguson testified that he was incarcerated in the Sullivan County Jail on

December 6, 2004, in what is known as the “Kilo Cell Block.” Ferguson stated that he met

the Defendant while incarcerated in that cell block. Ferguson testified that on December 6,

2004, when he was released from his individual cell for his one hour of personal time, the

Defendant asked him to call a particular number for him. Ferguson agreed and the Defendant

gave Ferguson the number to call. When the person on the other end of the line answered

the telephone, the Defendant told Ferguson what to say during the conversation. Ferguson

repeated during the conversation what the Defendant told him to say. The tape of the second

telephone conversation made on December 6, 2004, and already played for the jury, was then

played for Ferguson who identified himself as the caller. Ferguson stated that he had no idea

who he was talking to during the conversation. Ferguson was released from the jail eleven

days after making the call for the Defendant. Ferguson testified that has been in trouble

before and that he has been convicted of felony identity theft as well as theft of services. He

also admitted that he had charges pending against him for aggravated assault, possession of

a Schedule III drug, and possession of a Schedule IV drug for resale. However, Ferguson

testified that he had not been promised any leniency on his pending charges in exchange for

his testimony.

Dr. William Frederick McCormick, M.D., the Deputy Chief Medical Examiner for the

State of Tennessee, testified as the State’s last witness. He performed the autopsy on Officer

Mark Vance to determine the cause and manner of his death. Defense counsel did not object

to Dr. McCormick being accepted by the trial court as an expert in the field of forensic

pathology. Dr. McCormick testified that Officer Vance died “as a result of a single

intermediate range gunshot wound to the face, with the entrance slightly above the right eye

about the level of the mid-eyebrow with destruction of the skull, [and] damage to the brain.”

Dr. McCormick further testified that the cause of Officer Vance’s death was “[m]assive

damage to the head including soft tissues, [the] skull, and brain,” with “aspiration of blood”

and “inhaling [of] blood.” Dr. McCormick explained, using diagrams prepared during the

autopsy, that the spread of stippling burns on Officer Vance’s face resulting from the impact

on the skin of unburned powder from the muzzle of the weapon was only eleven centimeters

or between four and five inches. Dr. McCormick testified that this meant the gun was fired

between one and two feet away from Officer Vance’s face. Dr. McCormick stated that the

test fire patterns given to him for comparison by the TBI, even though damaged somewhat

upon receipt, were consistent with this distance estimate based upon the stippling pattern.

-30-

Dr. McCormick also testified that his distance estimate based on the stippling was consistent

with the weapon having been a .357 caliber firearm.

Dr. McCormick testified that the bullet that killed Officer Vance entered his head at

a sharp angle traveling downward, very slightly from his right to his left, and exited the skull

near the lower jawbone with bullet fragments lodging in the upper neck. This meant Officer

Vance was facing the gun that was positioned slightly above him at a distance of between

one to two feet. Dr. McCormick testified that the contents of Exhibit 57, previously

introduced into evidence for identification only, were the bullet fragments he removed from

the brain tissue of Officer Vance during the autopsy. Dr. McCormick testified that the bullet

that killed Officer Vance caused “massive fracturing” of and “virtually destroyed” the base

of the skull. Dr. McCormick opined that Officer Vance survived only a matter of minutes

after the bullet traveled through his skull, but that he was alive long enough to inhale blood

from his wounds. Dr. McCormick opined that Officer Vance would have been rendered

unconscious almost immediately upon receiving the fatal gunshot wound.

After the State rested its case, the Defendant presented no defense witnesses. The jury

found the Defendant guilty of first degree premeditated murder as charged in the indictment.

II. Evidence Presented at Sentencing

The State began its proof at the sentencing phase by introducing certified copies of

an indictment and conviction order establishing that the Defendant was convicted on June

19, 1997, pursuant to a written guilty plea, in the City of Bristol in the Commonwealth of

Virginia of the offense of malicious wounding. The indictment to which the Defendant pled

in the Virginia case alleged that, on or about November 19, 1996, the Defendant “did

maliciously cause bodily injury to Johnny C. Chafin, Jr., with intent to maim, disfigure,

disable or kill, in violation of Virginia Code Section 18.2-51.” The State also introduced

testimony from TBI Agent Pritchard establishing that the Defendant is the same person

referenced in the paperwork establishing this conviction.

The State concluded its sentencing phase proof with testimony from Captain Timothy

Eads of the Criminal Investigations Division of the Bristol Police Department establishing

that on November 27, 2004, Officer Mark Vance was a sworn police officer in uniform

performing his official duties when he responded to the dispatch at the residence where he

was killed. Captain Eads also testified that Officer Vance was thirty years old at the time of

his death and was survived his mother, his brother, his wife and his nine-year-old daughter.

The Defendant presented his twin sister, Niki Booker, as his first witness at

sentencing. Booker and the Defendant were born in Chicago, Illinois, and lived there with

-31-

their mother until they were two or three years old, at which point they moved to Bristol,

Virginia. They never knew their birth father. Booker and the Defendant have two older

sisters and an older brother. She stated that they all grew up together in Bristol.

Booker testified that she is married with four children. The Defendant has lived with

her on numerous occasions and was present at the births of three of her children. She

explained that the Defendant was always “a role model” to her children, “always in a positive

aspect,” and “continues to keep joy in [her] home.” Booker stated that the Defendant was

the uncle that her children needed him to be and that she loves the Defendant very much.

She explained that her children always expressed love for the Defendant and that she brought

them to see him while he had been in jail in this case as much as she could. Booker

described the Defendant as always having “a positive demeanor.” She stated that he tried to

pass that quality on to her children. Booker then described and showed to the jury various

colored pencil drawings from her family album that the Defendant sent to her children as

gifts while he was incarcerated for the malicious wounding conviction previously introduced

into evidence by the State. Booker finally described the special bond she has with the

Defendant as his twin and how devastating it would be for her if he were executed.

On cross-examination, the State established that Booker was the same person heard

on the taped phone calls from the Defendant heard earlier by the jury during the guilt phase.

On redirect, defense counsel clarified with Booker that the Defendant called her from the jail

and that she was not present at the scene the night Officer Vance was killed. Booker

admitted though that she called the number the Defendant asked her to during the taped

phone conversation.

The next witness presented by the defense was Dr. Latisha Sensabaugh Walker,4 the

Defendant’s cousin. Dr. Walker grew up with the Defendant in the same neighborhood when

they were kids and she considered him to be like an older brother. She explained that the

Defendant often acted as her protector growing up, making sure she stayed out of trouble and

stayed away from the wrong type of crowd. She described the Defendant as one of her

biggest supporters in terms of staying in school, keeping her grades up and making sure she

got a good education. She described the Defendant as being “very artistic” and shared with

the jury a card he drew for her when she was seventeen years old and away at school in New

Orleans. After she completed school and was working as an intern at a local pharmacy, the

Defendant would often come in and check on her to make sure she had lunch and gasoline

for her car. When her home was broken into when she was in pharmacy school, the

Defendant was the first person she called for help. The Defendant also was the first person

4

Dr. Walker received her Doctor of Pharmacy degree from the University of Tennessee before

moving to West Tennessee where she works as a pharmacist.

-32-

to make arrangements to get her home and make sure she had money to get home after the

break in. Dr. Walker stated that the Defendant’s primary focus during his incarceration on

this charge was not himself and his situation, but whether she was doing well and whether

her husband was treating her well. She concluded by stating that she felt that the Defendant

receiving a death sentence would not allow her to give back to the Defendant all that he had

given to her up to that point.

The Defendant’s next witness, Patty Aiello, testified that she had lived in Bristol,

Virginia for thirteen years and had known the Defendant since high school. She described

the Defendant as “a good guy,” “somebody that is fun to have around,” a person whose

“always been the life of everything,” a person who “smiles everywhere he goes,” and

“somebody that is always there for you.” She stated that she believed the Defendant was “a

good guy in general” and that he “treat[ed] everybody with respect and very nicely.”

However, she admitted that she knew the Defendant was found guilty as a juvenile in 1996

of concealing merchandise and that he was convicted as an adult in 1997 of possession of

cocaine with the intent to distribute, burglary and the offense of malicious wounding that the

State was using to support one of the aggravating circumstances in this case.5 On cross-

examination, she explained that she knew the victim involved in the malicious wounding

case and that the incident giving rise to that conviction “was a childish fight.” Aiello also

testified during her direct examination that she is good friends with Amanda Fields, that the

Defendant and Fields were also friends, and that she had witnessed herself how kind and

generous the Defendant always had been toward both Fields and Fields’ daughter from a

failed relationship with another man. Aiello told the jury that she had been able to continue

her relationship with the Defendant since he had been incarcerated and wished to continue

to do so.

The Defendant’s next witness, Amanda Fields, testified that she had lived in Bristol,

Virginia her entire life and had known the Defendant since 1991 when she was eleven years

old. Both she and her nine-year-old daughter considered the Defendant and his family as if

they were a part of her own family. She described the Defendant as being “like a brother.”

Fields’ daughter’s father had been “in and out of her life” since their daughter was born and

her daughter considers the Defendant like a stepfather. Fields explained that the Defendant

took it upon himself to be “a positive father figure” to her daughter. The Defendant always

remembered her daughter’s birthday and regularly talked to the child on the phone before his

incarceration. Fields stated that she felt it was important that her daughter had the Defendant

5

The jury was instructed to consider the specific instances of criminal conduct utilized by the State

during its cross-examination of Aiello only in terms of evaluating the credibility of Aiello, not as substantive

evidence of the Defendant’s character.

-33-

in her life as a father figure. Fields believed that the Defendant had made a valuable

contribution to her daughter’s well-being.

On cross-examination, the State established that there were periods of time in Fields’

daughter’s life when the Defendant was absent and unable to see her. However, Fields

testified that during those prior absences the Defendant talked to her daughter on the phone

and kept up with her life through pictures. Fields also stated that while the Defendant was

incarcerated for this offense he spoke with her daughter on the phone a few times. She

admitted that her daughter had not visited the Defendant at the jail. Fields also stated that

the Defendant continued to be the kind of father figure she wanted for her daughter despite

the events that gave rise to this case.

Mitzi Rebecca Young testified that she lived in Bristol, Virginia and had known the

Defendant since she was eleven years old. She testified that the Defendant had “loaned” her

$1,000.00 to be used toward the down payment on her house, but refused to allow her to pay

him back when she had the money to do so. She also explained how the Defendant helped

her mother pay her bills when her mother got laid off and also helped her mother with yard

work and things around her house. Young described the Defendant as “very generous” and

“a good friend” to her and her family.

Reverend Willis A. Johnson, the pastor of the Bay Street Baptist Church in Bristol,

Tennessee, testified that the Defendant attended the church regularly with his family since

he was about three or four years old. Rev. Johnson further testified that one of the

Defendant’s sons attended the daycare center at the church. Rev. Johnson described the

Defendant’s son as “the greatest little guy you ever want to see” and expressed concern about

the child’s ability “somewhere in his lifetime to have some kind of relationship, if he wanted

to, with his daddy.” Rev. Johnson stated that it did not matter whether the Defendant was

incarcerated for that relationship to be beneficial because a “[f]ather is a father.”

Natasha Michelle Pender testified that she and the Defendant have a two-year-old son

together. Pender described and shared with the jury various enlarged photographs of the

Defendant with their son.6 Pender admitted that her son’s contact with the Defendant was

limited because her son was born in September of 2004, only three months before the

shooting giving rise to this case. However, she stated that when the Defendant was able to

spend time with their son he “was real attentive” and actively assisted in taking care of the

boy when he was an infant. Pender testified that the Defendant continued to write letters to

their son from jail and send him drawings that Pender had framed in the boy’s room. Pender

explained that a death sentence for the Defendant would be devastating to both her and her

6

The photographs shown to the jury were not included in the record.

-34-

son because she needs the Defendant to help her teach their son how to be a man. She

clarified on cross-examination that she feels the Defendant, given his experiences in life up

to that point including the shooting of Officer Vance, could help teach their son what to

avoid in life.

The Defendant’s next witness, Linda Sensabaugh, is the mother of Dr. Walker. She

is the Defendant’s second cousin and has known him all of his life. The Defendant grew up

in the same neighborhood in which her family lived. The Defendant and his siblings would

often spend the night at her house and her children would similarly spend the night at the

Defendant’s mother’s house. From those experiences with the Defendant, Sensabaugh

explained that the Defendant often took the blame for the misdeeds of the other children and

would cry along with them if they got punished for something. She described the Defendant

as a “very helpful young man” toward her daughter when she was in school, calling her when

she was away at college and encouraging her to keep up with her studies. Sensabaugh also

stated that the Defendant would often ask her what he could do to help make sure her

daughter achieved her goal of becoming a pharmacist. She also recalled in her testimony the

day her nephew got upset at his birthday party when he did not get a scooter as a gift. She

explained that the Defendant went out that day “and spent his last penny to buy that child a

Razor Scooter.” Sensabaugh stated that the boy has looked up to the Defendant ever since.

The last witness for the defense at sentencing, Kimberly Delaney, testified that she

and the Defendant have a three-year-old son together. Delaney described and shared with

the jury various enlarged photographs of the Defendant with their son.7 She also shared with

the jury a photograph taken of the Defendant at the co-ed baby shower they had before their

son was born, a photograph of the Defendant in a hospital room with Delaney just prior to

the birth of their son, and a photograph of the Defendant and their son at his first Easter.

Delaney also shared with the jury a Valentine’s Day card the Defendant sent her during his

pretrial incarceration telling her how much he meant to her as well as a birthday card the

Defendant sent to their son for his second birthday. Delaney testified that the Defendant was

“always . . . a very genuine father to [their son]” and was “always . . . very active in his life

whether it was coming to pick him up, him staying with [the Defendant], you know, buying

formula, diapers, money for day care.” Delaney and her son visited the Defendant in jail

almost every Saturday since his arrest because she felt such visits were “crucial” for her

child. She testified that she believed it was important for her son to know and have a

relationship with his father, even if the Defendant was incarcerated for most of his life. She

stated that the effect on her son of the Defendant being executed obviously would be “very

dramatic.”

7

The photographs shown to the jury were not included in the record.

-35-

Following the presentation of Delaney’s testimony, the defense rested its case. The

jury later returned its verdict finding the presence of the two noticed statutory aggravating

circumstances, finding that these aggravating circumstances outweighed the presence of any

mitigating circumstances, and finding that death was the appropriate punishment.

ANALYSIS

I. Sufficiency of the Evidence

The Defendant argues that the evidence presented by the State during the guilt phase

was insufficient to support his conviction for first degree premeditated murder.8 Specifically,

the Defendant asserts that the evidence did not establish beyond a reasonable doubt that the

killing of Officer Vance was premeditated. The Defendant argues that the evidence

established that he was “in a state of irrational rage” when he shot Officer Vance, not that

the shooting was the result of “the cool, deliberate judgment required by the element of

premeditation.”

The standard of review applicable to the Defendant’s challenge to the sufficiency of

the evidence presented during the guilt phase of this trial is “whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,

443 U.S. 307, 319 (1979) (emphasis in original); State v. Majors, 318 S.W.3d 850, 857

(Tenn. 2010). “In making this determination, we afford the prosecution the strongest

legitimate view of the evidence as well as all reasonable and legitimate inferences which may

be drawn therefrom.” Majors, 318 S.W.3d at 857; see also State v. Cole, 155 S.W.3d 885,

897 (Tenn. 2005); State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). The presumption on

appeal is that the jury resolved in favor of the prosecution all issues concerning witness

credibility, conflicts in the testimony, and the weight and value to be given to the evidence

and drew all reasonable inferences from the evidence in favor of the State. See Majors, 318

S.W.3d at 857; Cole, 155 S.W.3d at 897; Bland, 958 S.W.2d at 659; State v. Sheffield, 676

S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

Because the jury’s verdict of guilt removes the presumption of innocence and replaces it with

a presumption of guilt, the Defendant bears the burden on appeal of demonstrating why the

evidence is insufficient to support the verdict. See Majors, 318 S.W.3d at 857; Cole, 155

S.W.3d at 897; Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.

1982).

8

The Defendant presented no evidence at the guilt phase of the trial other than through cross-

examination of the State’s witnesses.

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The Defendant was convicted of first degree premeditated murder. In order to

establish that the Defendant was guilty of this offense, the State had to prove beyond a

reasonable doubt that the Defendant committed a “premeditated and intentional killing of

another.” Tenn. Code Ann. § 39-13-202(a)(1) (2006). A premeditated killing is one

committed “after the exercise of reflection and judgment.” Tenn. Code Ann. § 39-13-202(d)

(2006). As the statute explains,

“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. The mental state of the accused

at the time the accused allegedly decided to kill must be carefully considered

in order to determine whether the accused was sufficiently free from

excitement and passion as to be capable of premeditation.

Id. Thus, premeditation simply is the process “of thinking about a proposed killing before

engaging in the homicidal conduct.” State v. Brown, 836 S.W.2d 530, 541 (Tenn. 1992).

“No specific period of time need elapse between the defendant’s formulation of the design

to kill and the execution of that plan.” Id. at 543.

The presence of premeditation is a question of fact for the jury to determine based

upon a consideration of all the evidence. See State v. Suttles, 30 S.W.3d 252, 261 (Tenn.

2000). Several factors may be considered by the jury in determining the presence of

premeditation, including: “use of a deadly weapon on an unarmed individual; the particular

cruelty of the killing; the defendant’s threats or declarations of intent to kill; the defendant’s

procurement of a weapon; making preparations to conceal the crime before the crime is

committed; destruction or secretion of evidence of the killing; and a defendant’s calmness

immediately after the killing.” State v. Thacker, 164 S.W.3d 208, 222 (Tenn. 2005); see also

State v. Leach, 148 S.W.3d 42, 54 (Tenn. 2004); State v. Davidson, 121 S.W.3d 600, 615

(Tenn. 2003); Bland, 958 S.W.2d at 660. In addition, the jury may also infer premeditation

from the evidence establishing a motive for the killing. See Thacker, 164 S.W.3d at 222;

Leach, 148 S.W.3d at 54; State v. Sims, 45 S.W.3d 1, 8 (Tenn. 2001); State v. Nesbit, 978

S.W.2d 872, 898 (Tenn. 1998).

The State argues that when the evidence properly is viewed in the light most favorable

to the prosecution, it supports the jury’s finding that the Defendant formed the intent to kill

another before fatally shooting Officer Vance. As the State asserts in its brief, the evidence

presented at trial established that the Defendant went to the Mitchell residence on the evening

of November 27, 2004, armed with two weapons, because he was angry at B.M. for refusing

to have an abortion and feared that B.M.’s father would have the Defendant arrested on

statutory rape charges upon learning that the Defendant had impregnated seventeen-year-old

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B.M. Upon learning that police had been called and were on their way to the residence, the

Defendant was heard by three separate witnesses—B.M., T.M. and Clark—to have said that

he would “shoot in the face” the first person who walked through the door of the residence,

whether it was B.M.’s father or a police officer. Those same three witnesses also heard the

Defendant state before the police arrived on the scene that if he was going to prison, it was

going to be for murder and not for statutory rape. The evidence presented at trial

demonstrates that the Defendant then executed his plan by shooting Officer Vance in the face

as he entered the residence and before the officer could draw a weapon. After shooting

Officer Vance, the Defendant stated, “I’m out,” placed the weapon on the stairs leading to

the front door, and walked out of the residence. Once outside the residence, the Defendant

admitted to having shot Officer Vance and advised the other responding officers, while

laughing, that Officer Vance was dead. The Defendant also attempted through phone calls

from the jail to his sister to conceal the severity of his offense by instructing her to have

McMorris, and then directly instructing McMorris, to tell the Defendant’s attorney that

Officer Vance drew his weapon first.

From all of this proof, a rational jury could have found beyond a reasonable doubt that

the Defendant killed Officer Vance intentionally and with premeditation. While the evidence

shows that the Defendant was agitated when he arrived at the Mitchell residence and may

have even made his statements of intent about shooting an officer while in an agitated state,

it was for the jury to decide whether the Defendant’s level of agitation prevented him from

forming the requisite intent to commit first degree premeditated murder. The jury made that

determination based upon the facts presented and the evidence supports the jury’s conclusion.

See State v. Bullington, 532 S.W.2d 556, 559 (Tenn. 1976) (holding that if the intent to kill

is formed with premeditation, it is irrelevant whether the defendant may have been in a “heat

of passion” when the premeditated intent to kill was carried into effect). Accordingly, we

conclude that the evidence was sufficient to sustain the Defendant’s conviction for first

degree premeditated murder.

II. Constitutionality of Tennessee’s Death Penalty Statute

The Defendant argues that the trial court erred in denying his pretrial motion to

dismiss the indictment on grounds that Tennessee’s death penalty statute violates article I,

section 19 and other related provisions of the Tennessee Constitution.9 Specifically, the

9

The State asserts in its brief that the Defendant also has challenged in this appeal the

constitutionality of Tennessee’s death penalty statute on grounds that the imposition of the death penalty is

per se cruel and unusual punishment under both the Eighth Amendment of the United States Constitution and

article I, section 16 of the Tennessee Constitution. However, the Defendant’s brief contains no such

(continued...)

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Defendant argues that the statute violates the Tennessee Constitution by mandating that a

jury must impose death upon finding that the aggravating circumstances proven by the State

outweigh all mitigating circumstances. The Defendant argues that the mandatory language

of the statute “constitutes a legislative usurpation of the jury’s duty to decide the appropriate

punishment to be imposed in individual cases.” The Defendant further argues that the

mandatory nature of the statute also misleads the jury as to its responsibilities and duties in

a capital sentencing hearing. The State contends that the trial court properly denied the

pretrial motion to dismiss because the argument presented in the motion has been considered

and rejected by our supreme court. We agree.

As the supreme court explained in State v. Black, 815 S.W.2d 166 (Tenn. 1991),

article I, section 19 of the Tennessee Constitution “guarantees freedom of speech and of the

press.” Id. at 185. The last clause of the final sentence of this constitutional provision

requires that “in all indictments for libel, the jury shall have a right to determine the law and

the facts, under the direction of the court, as in other criminal cases.” Tenn. Const. Art. I,

§ 19. After analyzing the origin of this provision and its historical significance, see Black,

815 S.W.2d at 185-86, the supreme court in Black held that the last clause of the final

sentence of this constitutional provision “was not meant to and does not effect the sentencing

and punishment of criminal defendants.” Id. at 187; see also State v. Reid, 164 S.W.3d 286,

335 (Tenn. 2005) (appendix); State v. Van Tran, 864 S.W.2d 465, 481 (Tenn. 1993).

Accordingly, this issue is without merit.

III. Constitutionality of Exclusion of Jurors Based on Views on the Death Penalty

The Defendant argues that the trial court erred in denying his pretrial motion in which

he sought to preclude the removal for cause during jury selection of any prospective jurors

who expressed religious, moral or philosophical opposition to the death penalty under any

circumstances. We agree with the State’s position on appeal that the trial court properly

rejected the Defendant’s blanket constitutional challenges to the exclusion of jurors for cause

whose views on the death penalty would have prevented them from discharging their duties

as jurors in this capital case.

In his brief, Defendant concedes that it is permissible under the United States

Constitution to exclude jurors for cause in a capital case if their views on capital punishment

would prevent them from imposing the death penalty in a particular case in accordance with

9

(...continued)

challenge. Even if the Defendant were raising this argument in this appeal, the State is correct that it has

been considered and rejected by our supreme court many times. See State v. Howell, 868 S.W.2d 238, 258

(Tenn. 1993) (collecting cases).

-39-

the law and the facts presented. However, the Defendant argues that article I, sections 6 and

19 of the Tennessee Constitution prohibit an otherwise qualified juror from being excluded

from jury service based solely on his or her opposition to the death penalty. The Defendant

also argues that the supreme court in State v. Harrington, 627 S.W.2d 345 (Tenn. 1981), held

that jurors should not be excluded for cause simply because they have expressed reservations

about or opposition to the death penalty. The Defendant then argues, despite his initial

concession to the contrary, that the exclusion of jurors based upon their opposition to the

death penalty infringes upon the right to an impartial jury drawn from a fair cross-section of

the community as guaranteed by Sixth and Fourteenth Amendments to the United States

Constitution as well as comparable provisions in the Tennessee Constitution.

It should be noted that the Defendant’s only challenge here is to the process of “death

qualifying” a jury in a capital case according to the standards set forth in Witherspoon v.

Illinois, 391 U.S. 510 (1968), and Wainwright v. Witt, 469 U.S. 412 (1985). The Defendant

references in his brief the exclusion for cause in his case of three prospective jurors—Penny

Hawk, Barbara Semones and Robert Hill—based upon their views on the death penalty.

However, the Defendant does not argue that the trial court improperly applied the standards

set forth in Witherspoon and Witt in excusing these particular jurors for cause. In fact, the

argument presented by the defense in response to the prosecutor’s motion to exclude these

jurors for cause was not that these jurors could set aside their personal beliefs and be open

to the possibility of the death penalty in a particular case after considering both the facts and

the law as presented to them in court. Instead, defense counsel argued that “excusing jurors

who have conscientious objections to the death penalty excludes otherwise qualified

members of the jury pool” and “deprives the Defendant of due process and equal protection

under the law.” In other words, defense counsel’s argument is that the process of “death

qualifying” a jury is unconstitutional under both the federal and state constitutions and the

cause excusals cited by counsel in support of this issue reinforce the limited scope of this

issue on appeal.10

In Uttecht v. Brown, 551 U.S. 1 (2007), a case decided only a few months after the

10

A review of the answers given during voir dire by prospective jurors Hawk, Semones and Hill

indicates that all three properly were excused for cause because they stated unequivocally that their personal

beliefs prevented them from voting to impose the death penalty as punishment for a crime under any

circumstances. We note that the lack of record citations in the brief to any other cause excusals of

prospective jurors based upon their views on the death penalty waives any argument that prospective jurors,

other than jurors Hawk, Semones and Hill, may have been excused for cause in error. See Tenn. R. App. P.

27(a)(7)(A) (requiring argument to contain “citations to the authorities and appropriate references to the

record”) (emphasis added); 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.”)

(emphasis added); see also State v. Schaller, 975 S.W.2d 313, 318 (Tenn. Crim. App. 1997).

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Defendant’s trial, the United States Supreme Court upheld the constitutionality of the process

of “death qualifying” a jury in a capital case in accordance with the standards set forth in

Witherspoon and Witt. See id. at 5-9. As the Supreme Court explained in Uttecht,

Witherspoon and Witt establish “at least four principles of relevance here”:

First, a criminal defendant has the right to an impartial jury drawn from

a venire that has not been tilted in favor of capital punishment by selective

prosecutorial challenges for cause. Second, the State has a strong interest in

having jurors who are able to apply capital punishment within the framework

state law prescribes. Third, to balance these interests, a juror who is

substantially impaired in his or her ability to impose the death penalty under

the state-law framework can be excused for cause; but if the juror is not

substantially impaired, removal for cause is impermissible. Fourth, in

determining whether the removal of a potential juror would vindicate the

State’s interest without violating the defendant’s right, the trial court makes a

judgment based in part on the demeanor of the juror, a judgment owed

deference by reviewing courts.

Uttecht, 551 U.S. at 9 (internal citations to Witherspoon and Witt omitted). Our supreme

court also has repeatedly rejected state and federal constitutional challenges to the process

of “death qualification,” including those raised by the Defendant in this case. See, e.g., State

v. Reid, 91 S.W.3d 247, 289-90 (Tenn. 2002) (rejecting state constitutional challenge to

removal for cause of prospective jurors who oppose the imposition of the death penalty

because of “sincerely held” religious, moral or philosophical beliefs); State v. Hall, 958

S.W.2d 679, 717 (Tenn. 1997) (appendix) (rejecting claim that the manner of selecting

“death qualified” jurors unconstitutionally results in juries that are prone to conviction);

State v. Jones, 789 S.W.2d 545, 547 (Tenn. 1990) (rejecting claim that “death qualification”

of jury violated the Sixth Amendment by depriving the defendant of a fair and impartial

jury). Moreover, as the State points out in its brief, the Defendant’s reliance on Harrington

is misplaced as it is no longer good law for the proposition for which it was cited. See State

v. Alley, 776 S.W.2d 506, 518 (Tenn. 1989) (“Harrington was decided four years before

Wainwright and on the juror bias issue is no longer of precedential value.”). Accordingly,

this issue is without merit.

IV. Admissibility of Videotape of Defendant

The Defendant argues that the trial court erred in denying his pretrial motion in limine

in which he sought to prevent the State from introducing into evidence at trial the videotape

containing statements by the Defendant immediately after his arrest while he was seated in

the back of Officer Daniel Graham’s patrol unit. The Defendant argues that his statements

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on the videotape were not relevant to any of the issues being tried and that, alternatively, the

probative value of the statements was far outweighed by their prejudicial effect. See Tenn.

R. Evid. 403.11

The State contends that the trial court did not abuse its discretion in admitting the

videotape into evidence because the Defendant’s recorded statements were relevant as both

a confession and corroborative evidence of the Defendant’s motive for the murder, i.e., that

if he was going to be sent to prison, it would be for murder and not for statutory rape. The

State argues that the statements made by the Defendant on the videotape were extremely

probative of the Defendant’s state of mind when he shot Officer Vance and that this

probative value far outweighed any prejudicial impact the statements made have had on the

jury.

It is within the trial court’s discretion to determine the admissibility of photographic

or videotape evidence and this court will not disturb such a decision on appeal absent a clear

showing of an abuse of that discretion. See State v. Reid, 213 S.W.3d 792, 840 (Tenn. 2006)

(appendix); State v. Carruthers, 35 S.W.3d 516, 576 (Tenn. 2000) (appendix); State v. Banks,

564 S.W.2d 947, 949 (Tenn. 1978). Evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the determination of the action more probable

or less probable than it would be without the evidence.” Tenn. R. Evid. 401. However,

relevant evidence “may be excluded if its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless presentation of cumulative

evidence.” Tenn. R. Evid. 403. “Of course, simply because evidence is prejudicial does not

mean the evidence must be excluded as a matter of law.” Carruthers, 35 S.W.3d at 577; see

also Reid, 213 S.W.3d at 840. Relevant evidence need only be excluded under Rule 403 if

11

We decline to consider because it has been waived the Defendant’s argument that the videotape

constituted improper evidence of the Defendant’s bad character and therefore was inadmissible pursuant to

Rule 404 of the Rules of Evidence. As the State asserts in its brief, this argument is raised for the first time

in this appeal. The Defendant did not assert this argument as a basis for the inadmissibility of the videotape

in either his motion in limine or his motion for new trial. It is well-settled that a defendant cannot change

on appeal his or her theory regarding the inadmissibility of evidence from what was asserted as the basis for

objection in the trial court. See State v. Dooley, 29 S.W.3d 542, 549 (Tenn. Crim. App. 2000). “Such action

constitutes waiver of the issue.” Id.

We also interpret the Defendant’s appellate challenge to the statements on the videotape as being

directed only at the first thirteen minutes and thirty-eight seconds of the tape introduced by the State.

Defense counsel made a tatical decision during his cross-examination of Agent Pritchard to have the

remainder of the videotape played for the judge pursuant to the “rule of completeness.” Tenn. R. Evid. 106.

As such, he may not now challenge on appeal the admission of that portion of the videotape heard by the jury

only at defense counsel’s request. See, e.g., State v. Jerry Breeding, No. M2001-00043-CCA-R3-CD, slip

op. at 9 (Tenn. Crim. App., at Nashville, Jan. 25, 2002), perm. app. denied, (Tenn. May 6, 2002).

-42-

it has “[a]n undue tendency to suggest decision on an improper basis, commonly, though not

necessarily, an emotional one.” Banks, 564 S.W.2d at 951.

In this case, we agree with the State that the statements from the Defendant that can

be heard on the videotape made immediately after his arrest were clearly relevant and

perhaps the best evidence of his state of mind at the time he shot Officer Vance. The primary

issue in this case was not whether a homicide occurred or whether the Defendant committed

it. Instead, the primary issue in this case was whether the Defendant formed the intent to kill

Officer Vance prior to the homicide and therefore committed first degree premeditated

murder. See Tenn. Code Ann. § 39-13-202(a)(1) (2006). On that crucial element, the

statements by the Defendant on the videotape were very relevant.

During the videotape, the Defendant can be heard posturing about his total lack of

remorse for having shot Officer Vance and apathy about the consequences of his actions.

Specifically, while laughing, the Defendant makes clear that he is ambivalent about facing

a death sentence for the murder of Officer Vance (“It ain’t nothing but a — it ain’t nothing

but clean sheets or maybe the electric chair. I’ll be all right. . . . That don’t scare me. You

can — you can do it right now. It don’t scare me, cop.”) and that the shooting itself was

nothing but a “game” to him. The Defendant also can be heard laughing while bragging

about how Officer Vance’s training did not prepare him for what happened. Finally, the

Defendant describes his shooting of Officer Vance as having shown the officer “how it feels

when you take [someone’s] life away” by sending that person to jail.

These statements made by the Defendant on the videotape can be interpreted as

confirmation by him that his shooting of Officer Vance was a follow-through on the threat

made to B.M. that he would “shoot in the face” the first person who walked through the door

of the residence because, if he were going to be sent to prison, it would be for murder and

not for statutory rape. To the extent the statements made by the Defendant on the videotape

are prejudicial, it is because they are so inculpatory on the issue of intent. Most relevant

evidence introduced by the State during a murder trial will be prejudicial to the defendant.

Rule 403 is directed to evidence that inflames the jury or appeals improperly to the jury’s

emotions. The challenged videotape was prejudicial to the Defendant only because it was

so probative of the Defendant’s state of mind at the time he shot Officer Vance. There is

nothing about the statements made by the Defendant on the videotape that would have any

tendency to improperly inflame the jury or appeal to the jury’s emotions in reaching a verdict.

As such, the Defendant’s argument that the videotape should have been excluded pursuant

to Rule 403 is without merit. However, even if we were to conclude that the trial court erred

in admitting the videotape into evidence, any such error would have been harmless given the

strength of the testimony from other witnesses regarding the Defendant’s statements of intent

immediately prior to the shooting. See Tenn. R. App. P. 36(b) (“A final judgment from

-43-

which relief is available and otherwise appropriate shall not be set aside unless, considering

the whole record, error involving a substantial right more probably than not affected the

judgment or would result in prejudice to the judicial process.”). Accordingly, this issue is

without merit.

V. Failure to Require Presentation of Mental Health Mitigation

The Defendant argues that the trial court erred in failing to direct defense counsel to

present mental health mitigation during the penalty phase, despite the Defendant’s objection

to and affirmative waiver of the presentation of such evidence. The Defendant alternatively

argues that, even if the trial court properly allowed defense counsel not to present mental

health mitigation, the trial court erred in not calling as its own witnesses those mental health

professionals who could have presented mental health mitigation evidence to the sentencing

jury. Citing to Lockett v. Ohio, 438 U.S. 586 (1978), the Defendant asserts that

consideration by a capital sentencing jury of all available mitigation evidence is

constitutionally required and therefore the penalty phase of his trial should not have gone

forward without the presentation of mental health mitigation notwithstanding the Defendant’s

objection to and waiver of the presentation of such evidence.

The State responds to this issue on appeal by arguing that the propriety of allowing

a competent capital defendant to waive the presentation of mitigating evidence during the

sentencing phase of a capital trial was resolved by the supreme court in Zagorski v. State,

983 S.W.2d 654 (Tenn. 1998). The State asserts that, in allowing the Defendant to waive the

presentation of mental health mitigation in this case, defense counsel and the trial court

complied with the requirements set forth in Zagorski regarding the acceptance of such a

waiver.

In Zagorski, the supreme court held that a competent capital defendant has the right

to waive the presentation of mitigating evidence during the penalty phase of his or her trial.

See id. at 658-59; see also State v. Kiser, 284 S.W.3d 227, 244 (Tenn. 2009). To aid the trial

courts in determining whether to permit the waiver of mitigating evidence by capital

defendants in prospective cases, the supreme court in Zagorski provided the following

guidelines for use when the issue of waiver of mitigating evidence arises in a capital case:

[W]hen a defendant, against his counsel’s advise, refuses to permit the

investigation and presentation of mitigating evidence, counsel must inform the

trial court of these circumstances on the record, outside the presence of the

jury. The trial court must then take the following steps to protect the

defendant’s interests and to preserve a complete record:

-44-

1. Inform the defendant of his right to present mitigating evidence and

make a determination on the record whether the defendant understands

this right and the importance of presenting mitigating evidence in both

the guilt phase and sentencing phase of trial;

2. Inquire of both the defendant and counsel whether they have discussed

the importance of mitigating evidence, the risks of foregoing the use of

such evidence, and the possibility that such evidence could be used to

offset aggravating circumstances; and

3. After being assured the defendant understands the importance of

mitigation, inquire of the defendant whether he or she desires to forego

the presentation of mitigating evidence.

Zagorski, 983 S.W.2d at 660. The supreme court explained that “[t]his procedure will insure

that the accused has intelligently and voluntarily made a decision to forego mitigating

evidence.” Id. The supreme court cautioned, however, that the trial court “shall not inquire

of counsel as to the content of any known mitigating evidence” because doing so “would

potentially force counsel to act against the client’s wishes and would risk the disclosure of

privileged or confidential information.” Id. at 660-61.

It should be noted that the Defendant’s argument in support of this issue appears not

to be that the trial court failed to follow the requirements of Zagorski in accepting his waiver

of the presentation of mental health mitigation in this case. Rather, the Defendant’s

argument appears to be that a competent capital defendant cannot waive the presentation of

any mitigating evidence because such a waiver would be inconsistent with the constitutional

requirement that a capital sentencing jury consider all available mitigating evidence before

determining that death is the appropriate punishment. However, as explained in State v.

Smith, 993 S.W.2d 6, 13-14 (Tenn. 1999), the supreme court in Zagorski considered and

rejected the arguments advanced by the Defendant here—namely, that a competent capital

defendant “may not waive the right to present mitigating proof and that such a waiver

violates the heightened reliability required in death penalty cases.” Nevertheless, despite the

fact that the Defendant is not challenging in this issue the trial court’s adherence to the

requirements of Zagorski, our review of the record confirms both that the Defendant was

competent and that he knowingly and voluntarily chose to waive the presentation of mental

health mitigation in this case.

Prior to the presentation of any evidence at the penalty phase, and during a jury-out

hearing, the State requested that defense counsel confirm whether the Defendant intended

to offer expert testimony in support of mental health mitigation during the penalty phase and,

-45-

if so, that the trial court unseal the reports prepared by the mental health experts for both the

State and the defense which had been submitted under seal pretrial pursuant to the dictates

of Reid v. State, 981 S.W.2d 166 (Tenn. 1998). In response to the State’s request, defense

counsel informed the trial court that the Defendant did not wish to present any mental health

mitigation at sentencing despite counsel’s advice that effective representation under both

state and federal precedent required them to present such evidence. In fact, defense counsel

stated that the Defendant was “violently opposed” to the presentation of any mental health

mitigation.

Defense counsel informed the trial court that their mental health experts had evaluated

the Defendant and were prepared to testify. Defense counsel made clear to the trial court that

this was not a case in which the Defendant had instructed them not to gather mental health

mitigation and they had honored that wish. Instead, defense counsel explained that this was

a case in which counsel had obtained and prepared expert testimony on the issue of mental

health mitigation, counsel fully intended to present such testimony, counsel were being

instructed by the Defendant not to present such testimony, and counsel intended to present

such testimony unless instructed by the trial court to do otherwise. Discussion of the

Zagorski and Smith cases then ensued with the trial court directing both defense counsel and

the State to have their mental health experts available in the event the trial court required a

determination from them regarding the Defendant’s competence to waive the presentation

of mental health mitigation.

After a short break, defense counsel presented the trial court with a written notice of

their intent to present mental health evidence during sentencing. However, the trial court

announced that it would withhold releasing the sealed reports to the State until the issue of

the Defendant’s waiver of mental health mitigation was resolved. At that point, the trial

court announced that it wished for the Defendant to make a limited appearance under oath

for the purpose of addressing the court concerning his desire to waive the presentation of

mental health mitigation.

Upon being examined under oath by the trial court, the Defendant stated that he

understood that the jury had found him guilty of first degree murder, that the State had to

prove at least one aggravating factor before the jury could consider imposing either a death

sentence or a sentence of life without parole, that the Defendant had the right to present any

evidence in mitigation through witnesses or otherwise that he believed was relevant and that

he had the right to have the jury consider mitigating evidence even if the State proved at least

one aggravating factor beyond a reasonable doubt. The Defendant further stated that he

understood that the jury did not have to reach a unanimous decision as to any one mitigating

factor, but that each individual juror could consider any mitigating evidence he or she wished

in determining the appropriate sentence. The Defendant stated that he understood that he did

-46-

not have to present evidence in mitigation to have the jury instructed that it should consider

as mitigating circumstances anything of a mitigating nature that was supported by the

evidence already presented. He also stated that he understood he had no obligation to testify

at sentencing or ask for mercy from the jury.

The Defendant stated that he knew his attorneys had investigated all manner of

potentially mitigating circumstances in his case, including obtaining evidence and witnesses

who could testify as to the Defendant’s mental health. He stated that he understood that his

attorneys wished to put on evidence in mitigation even though he did not. He stated that he

had discussed with his attorneys the risk of not putting on the mitigation evidence they

wished to present and that he understood that not presenting such evidence could mean the

difference between a death sentence and life imprisonment. The Defendant then

unequivocally stated to the trial court stated that, despite the risks that had been made known

to him of not presenting any mitigating evidence at sentencing, he did not want his attorneys

to present such evidence on his behalf. The Defendant explained that he felt that the result

of the sentencing was going to be the same regardless of what evidence was presented and

that if it was “God’s will” that he be sentenced to death then so be it. Upon further inquiry

from the trial court, the Defendant clarified that he was waiving the presentation of all

mitigating evidence and not just the presentation of mental health mitigation. The Defendant

explained that he had no desire to “beg these people no sympathy.”

The trial court then confirmed with both defense attorneys that they believed they had

investigated all available mitigating evidence in this case to the best of their ability, that they

had informed the Defendant of the availability of the evidence they believed was mitigating,

and that they had explained to the Defendant the importance of mitigating evidence and the

risks of not presenting such evidence. When asked by the trial court regarding the

Defendant’s competence, one of the Defendant’s attorneys stated that in his opinion any

Defendant who was “willing to roll over and let a jury kill him” was mentally incompetent.

The Defendant’s other attorney agreed and stated that “[a]nybody that would forego the

opportunity to save his life is incompetent.” However, both attorneys conceded that the

Defendant had been examined by a psychiatrist and found to be competent to stand trial and

that they had no evidence that they could tender to the court that called into question the

Defendant’s competence to waive the presentation of mitigating evidence.

After examining both the Defendant and his attorneys, the trial court announced that

he would recess for the evening in order to allow the Defendant to further think about his

decision to forego the presentation of mitigating evidence. The trial court also instructed the

parties to have available the next morning any mental health experts who had evaluated the

Defendant prior to trial.

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When the proceedings resumed the following day, the trial court confirmed with the

Defendant outside the presence of the jury that he still wished to forego the presentation of

any evidence in mitigation at sentencing. At that point, defense counsel asserted that they

had reviewed the Smith case the preceding evening and had determined that the Defendant’s

circumstances were different than those present in Smith. The Defendant’s attorneys asserted

that, unlike the situation in Smith, their prior comments to the trial court regarding the

Defendant’s competency, together with the Defendant’s own statements as to why he wished

to waive mitigation and the opinions of the experts defense counsel had obtained prior to

trial, sufficiently called into question the Defendant’s competence to waive mitigation such

that the trial court should order a new competency evaluation of the Defendant. Defense

counsel also continued to express to the trial court the difficulty they were having in

representing the Defendant effectively given his decision to waive the presentation of

mitigating evidence based upon his perception of the conduct of the proceedings up to that

point.

During the course of these discussions, defense counsel announced to the trial court

that the Defendant had changed his mind and now wished to put on some mitigating evidence

as long as it did not pertain to his mental health. Defense counsel advised the trial court that

the change in the Defendant’s position was a result of his mother having passed him a note.

Counsel asserted this was further evidence of the Defendant not being competent to make

his own decisions about the presentation of evidence on his own behalf. After the Defendant

attempted to speak and the trial court advised him to speak only through counsel, defense

counsel stated that the Defendant had instructed them to advise the trial court that “he knows

what we, his lawyers are doing, and that the medical evidence is irrelevant, and that he does

not want it done.”

The trial court advised defense counsel that the Defendant seeking advice from a

family member about what to do was not unusual and the court did not view that as calling

into question the Defendant’s competence to waive mitigation. Defense counsel did not

disagree, but merely emphasized that the Defendant appeared not to be making a “free

choice” about what evidence to present at sentencing. The Defendant responded:

My mother gives me advice as well. My family works together.

Like I say, my family is on my side. Everybody that’s back there is on

my side. Like I said, I’m not stupid. I make — I make choices on my own.

But at the same time they know as well as I know it’s a whole lot more going

on that’s not said as far as [defense counsel] and my stepfather almost getting

in a fight and everybody. We know all this. We — we’ve seen it, so we’ve

been here.

So as far as you getting on the stand and try to make everybody in my

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family look bad, look crazy, like they’re planning on doing, I’m not going to

allow that.

Thank you very much.

My family’s not crazy. We’re not stupid at all.

The trial court then emphasized to the Defendant that he was entitled to court-

appointed counsel as a matter of law, but that he was the “captain” of his own case and could

pursue whatever strategy and choose whatever evidence he wished to present to the jury

regardless of what his lawyers wanted to do. The trial court explained to the Defendant that

the extensive questioning of him regarding his decision was to protect his rights and to

ensure that his decision now to not present any mental health mitigation was made knowingly

and voluntarily. The Defendant responded that the “captain requests mitigation factors,” but

“[t]he captain does not want no mental or — or no doctors, psychologist, psychiatrist,

everything.” The Defendant stated: “I want my family and everybody else that he plans on

bringing up; you can go ahead and present that. I do not want no doctors, what I’m asking

you. And what I’m — what I’m telling you and letting you know.” The Defendant explained

to the trial court that he felt his attorneys had “tricked” him when they said that they were

going to work his case and that the story of what really happened had not been presented to

the jury because both defense counsel and the trial court had not allowed it to be presented.

At that point, the trial court elicited from the Defendant again that he did not want any mental

health mitigation presented because, as the Defendant put it, it was “irrelevant.” Instead, the

Defendant stated he wanted only “character witnesses so we can go on with mitigation.” The

Defendant further stated:

What I am saying, I’m going to say this one time and that’s the last. I’m

not — I’m not going to ask anymore questions [sic]. I’m not going to answer

no more questions.

I will allow mitigation. I do not want doctors. I want my family to

come on as character witnesses. And that’s as clear as I can put it. And I’m

not going to keep playing games.

In making some preliminary findings regarding the Defendant’s asserted waiver of his

right to present mental health mitigation, the trial court noted that the Smith case made clear

that a competent Defendant can waive the right to present mitigation evidence at sentencing.

The trial court also noted that there had been no motion for a competency evaluation by the

defense during the entire course of the trial until the Defendant advised defense counsel that

he did not wish to present mental health mitigation. The trial court further observed that

throughout the trial the Defendant had appeared to have cooperated with his attorneys and

been able to discuss issues with his counsel as they arose, including during jury selection.

The trial court stated that based upon the results of his independent questioning of the

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Defendant, he appeared to be competent to waive the presentation of mental health

mitigation. However, after discussing at length the case law regarding competence to stand

trial, the trial court announced that it would review in camera the sealed reports previously

submitted by the parties from their mental health experts before determining whether the

Defendant’s waiver of mental health mitigation could be accepted. The trial court also

directed the parties’ mental health experts—Dr. Steven Lawhon, a clinical psychologist

retained by the State, and Dr. William Bernet, a forensic psychiatrist from Vanderbilt

University retained by the defense—to conduct a joint competency evaluation of the

Defendant during the lunch break while the trial court reviewed the previously submitted

sealed reports from these experts.

Following the lunch break, the trial court inquired of both experts outside the presence

of the jury regarding the results of their joint evaluation of the Defendant. The parties

stipulated to the qualifications of both experts for the purpose of their testimony concerning

their opinions regarding the Defendant’s competence to make the decision to waive mental

health mitigation.

Dr. Bernet testified that both he and Dr. Lawhon attempted to conduct an evaluation

of the Defendant during the lunch break, but that the Defendant refused to cooperate. Dr.

Bernet stated that the Defendant’s refusal to cooperate made a competency evaluation

impossible. However, Dr. Bernet remarked that he was able to make some general

observations of the Defendant that seemed to indicate that he was competent to make the

decision to waive the presentation of mental health mitigation. Dr. Bernet explained that the

Defendant knew the names of both doctors, knew why they were there, and knew why the

three of them were talking during the lunch break. The Defendant also was able to articulate

that he was perfectly willing to have mitigation in the form of testimony from his family

members presented, but that he did not want any medical or psychiatric witnesses presented

as mitigation. Dr. Bernet also observed that the Defendant exhibited a “paranoid quality” to

his refusal to cooperate and kept referencing that the entire proceeding “was just a game.”

Dr. Bernet concluded by stating that all he could really say was that there were “certain

things that appeared to be in the direction of competence and there [were] other things that

appeared to be in the direction of having some sort of underlying thought or mental

disorder.”

Dr. Lawhon described his observations of the Defendant during the attempted

evaluation as follows:

Obviously the time we spent with Mr. Johnson was fairly brief. Not at

our choosing, but because of his choosing.

Mr. Johnson’s a very intelligent man. He was very rational, very

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interesting. He did remember my name. It’s been about two months since I’ve

seen him. And Dr. [Bernet’s] name. It’s been several months; in 2006. And

so he clearly knew who we were.

He knew the purpose of what our evaluation was. It was to look at his

competence and to look at the mitigating circumstances in this case. He knew

what mitigating circumstances were.

Like Dr. [Bernet] testified, he was comfortable having his mother and

family and other perhaps character witnesses testify as to those mitigating

circumstances, but much less comfortable with any mental health or

psychiatric or psychological testimony. He did not explain why about that.

He was very alert. He kind of talked in a fast and rapid manner, but

seemed to actually be somewhat unusually happy for the circumstances that we

found him in.

He was somewhat suspicious and guarded. He was cordial toward both

of us, and pleasant. He was a little bit we would describe as being emotionally

labile. In other words, something happens and it’s kind of like being upset,

although he wasn’t upset. But it’s kind of like when you’re with someone, say

they’re — you know, maybe your boss or somebody, and you kind of have to

walk on tiptoes because you know that they maybe have a — have a bad

temper or having a bad day, whatever. So he was kind of — kind of like in

that kind of frame of mind. But he clearly knew why he was here.

It was difficult in the time frame to reach a definitive conclusion. He

certainly displayed some evidence that he might be competent; but on the other

hand, as Dr. [Bernet] testified, he was suspicious, guarded. And if we had a

little more time I think we could have reached a conclusion. But based —

because it was so short I think we would be unfair to the Defendant if we tried

to reach a conclusion at this time.

In the sealed report prepared by Dr. Bernet following his evaluation of the Defendant

on September 12, 2006, and submitted by the defense prior to trial, Dr. Bernet opined that

the Defendant suffers from schizophrenia, paranoid type with interepisode residual

symptoms, along with antisocial personality traits. Dr. Bernet opined that the Defendant

“understood the nature of the charges against him, the possible outcomes of the trial, and

basic court procedures.” Dr. Bernet further opined that while the Defendant was suspicious

of his court-appointed attorneys, “he was able to cooperate with them in developing a

defense.” Therefore, Dr. Bernet concluded in his report that the Defendant was competent

to stand trial. Dr. Bernet based his conclusions on both his own interview of the Defendant

and the results of psychological and neuropsychological testing conducted by Dr. James S.

Walker, Ph.D., a professor of psychology at Vanderbilt University. Dr. Walker’s report of

his evaluation of the Defendant, which accompanied Dr. Bernet’s, concluded that the

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Defendant’s “neuropsychological test results reflected essentially normal cognitive function”

with his intelligence measuring “within the average range.” Dr. Walker further opined in his

written report that the Defendant was “able to understand, reason, and reflect about as well

as the average person” and that his psychological test results “by themselves do not raise any

serious questions about the [Defendant’s] understanding of his legal situation, his ability to

understand his rights, or his ability to cooperate [in] his own defense.” Dr. Bernet indicated

in his report that he also had reviewed the Defendant’s medical records from a juvenile

psychological evaluation in 1993, a brief inpatient psychiatric commitment in 1996 at

Woodridge Hospital in Johnson City, and a pretrial mental health evaluation conducted at

Middle Tennessee Mental Health Institute (“MTMHI”) during the course of this case. Dr.

Bernet finally stated that he had considered the Defendant’s general medical history, family

and work history, and educational background in reaching his conclusions.

In the sealed report prepared by Dr. Lawhon following his pretrial evaluation of the

Defendant on January 25, 2007, and submitted by the State to the trial court on April 3, 2007,

Dr. Lawhon opined that the Defendant suffers from bipolar disorder, mixed type without

psychosis, along with alcohol and drug abuse and an antisocial personality disorder. Dr.

Lawhon further opined that the Defendant “is an angry, narcissistic individual who cares

little for the rights of others.” Dr. Lawhon concluded that the Defendant was “aware of the

roles of the judge, jury, district attorney, defense attorney and other court officials” and was

“able to participate with his attorney in a defense in a rational manner.” Dr. Lawhon based

his conclusions on both his own interview of the Defendant and the results of various

standardized psychological assessment tests administered to the Defendant. Dr. Lawhon also

reviewed the Defendant’s medical records from the pretrial mental health evaluation

conducted at MTMHI as well as the records from Dr. Bernet’s evaluation of the Defendant.

Finally, Dr. Lawhon considered the Defendant’s background, family and work history, and

prior juvenile and adult criminal records in reaching his conclusions.

Based upon the testimony presented by Drs. Bernet and Lawhon, as well as a review

of the sealed reports submitted pretrial by these experts, the trial court concluded that the

Defendant was competent to waive the presentation of mental health mitigation. The trial

court made clear that while the testimony and reports of both experts had been considered

in reaching this conclusion, the court found Dr. Lawhon’s testimony to be more “descriptive

and credible.” The trial court also made clear that defense counsel had “conducted extensive

investigation” in this case and had “continued to investigate up until just before trial.” 12 The

12

Upon request of defense counsel, the trial court also allowed counsel to proffer to the court at the

conclusion of the proof at the sentencing hearing a sealed composite exhibit consisting of the reports from

Drs. Bernet, Lawhon and Walker reviewed by the trial court in making its determination regarding the

(continued...)

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trial court directed that all mental health experts retained by the parties would remain under

subpoena and available to testify until the close of the defense case at sentencing in the event

the Defendant changed his mind regarding the presentation of mental health mitigation. The

trial court also confirmed with the Defendant outside the presence of the jury both at the

conclusion of the State’s proof and at the conclusion of the proof presented by the defense

at sentencing that the Defendant was adhering to his prior waiver of any mental health

mitigation.

Clearly, the record in this case demonstrates that the trial court fulfilled its obligations

under Zagorski and Smith to ensure that the Defendant was competent and fully understood

his rights and the likely detrimental consequences of waiving those rights before he accepted

the Defendant’s decision to waive the presentation of mental health mitigation at sentencing.

We note that this is not a case like either Zagorski or Smith in which the Defendant refused

to present any mitigating evidence. This case involves a defendant who chose what

mitigating evidence he wanted to present. The trial court painstakingly inquired of both the

Defendant and defense counsel regarding the mitigation investigation conducted by counsel

prior to trial, the specific evidence the Defendant did not want presented in mitigation at

sentencing, and the Defendant’s understanding of the risks of not presenting the mental

health evidence counsel wished to present. The trial court also directed that the parties’

mental health experts attempt to conduct a competency evaluation of the Defendant during

the proceedings to determine whether his waiver of mental health mitigation could be

accepted. Even though the Defendant refused to cooperate with this evaluation, the trial

court specifically considered the pretrial reports submitted by the experts under seal prior to

trial in determining the Defendant’s competence to waive mental health mitigation in this

case. The substance of these reports supports the trial court’s conclusion that the Defendant

was competent when he decided to waive the presentation of mental health mitigation at

sentencing. Accordingly, there was no error in the acceptance of the Defendant’s waiver of

mental health mitigation and this issue is without merit.

VI.Individual and Cumulative Instances of Alleged Prosecutorial Misconduct During

Penalty Phase Closing Argument

The Defendant argues that the prosecutor made two remarks during his penalty phase

12

(...continued)

Defendant’s waiver of mental health mitigation as well as another written report prepared by Rebecca Smith,

a psychiatric social worker, in connection with the Defendant’s pretrial evaluation at MTMHI, which report

the trial court conceded it did not directly consider in making its determination regarding the Defendant’s

competence to waive mental health mitigation. Defense counsel announced that this proffer consisted of the

proof they would have presented had they been allowed to present mental health mitigation at sentencing.

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closing argument that both individually and cumulatively denied the Defendant a fair trial.

Specifically, the Defendant asserts that the prosecutor improperly asked the jury to consider

in rendering its sentencing verdict the fact that the Defendant attempted to induce B.M. to

have an abortion upon learning that she was pregnant and that the Defendant was the father.

The Defendant also asserts that the prosecutor improperly commented on the Defendant’s

right not to testify when he asked the jury to consider the Defendant’s lack of remorse for the

killing of Officer Vance. The Defendant asserts that he moved for a mistrial after the

prosecutor’s second remark and that the trial court erred in denying said motion. The State

contends that the trial court properly denied defense counsel’s motion for a mistrial because:

(a) appropriate curative and cautionary instructions were given after both of the challenged

rema

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