State of Tennessee v. Eric Ricardo Middleton

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs September 7, 2011

STATE OF TENNESSEE v. ERIC RICARDO MIDDLETON

Direct Appeal from the Circuit Court for Madison County

No. 08-442 Donald H. Allen, Judge

No. W2010-01427-CCA-R3-CD - Filed November 14, 2011

The defendant, Eric Ricardo Middleton, was convicted by a Madison County Circuit Court

jury of first degree premeditated murder; second degree murder, a Class A felony; and

tampering with the evidence, a Class C felony. He was sentenced to an effective term of life

imprisonment plus twenty-five years. On appeal, the defendant argues that: (1) the trial

court erred in allowing the doctor who performed the autopsies on the victims to testify as

an expert; (2) the trial court erred in denying his request for a jury instruction that Mary

Thompson, the co-defendant, was an accomplice as a matter of law; (3) the evidence was

insufficient to sustain his convictions; and (4) the trial court erred in imposing partial

consecutive sentences. After review, we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

A LAN E. G LENN, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and

J EFFREY S. B IVINS, JJ., joined.

George Morton Googe, District Public Defender; and Gregory D. Gookin, Assistant Public

Defender, Tennessee, for the appellant, Eric Ricardo Middleton.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney

General; James G. (Jerry) Woodall, District Attorney General; and Shaun A. Brown,

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

OPINION

FACTS

As a result of their involvement in the homicides of Bobby Perry and Andreca

Manning and subsequent attempt to conceal the homicides, the defendant and co-defendant,

Mary Cormill Thompson, were indicted on two charges of first degree premeditated murder

and tampering with the evidence. The defendant was additionally charged with aggravated

arson.1 The defendant’s and co-defendant’s trials were severed.

State’s Proof

At the defendant’s trial, Thomas Jackson testified that he owned a single-family

residence at 10 Webb Street in Jackson, Tennessee. In March 2008, Jackson rented the

house to Mary Thompson, and Thompson’s sister also lived there with her. A fire at the

house on March 17, 2008, caused extensive damage, “total[ing] the house.” He had last

been at the house about a week prior to the fire at which time Mary Thompson was there

with “a young man. A friend[] of hers.” On cross-examination, Jackson stated that he

talked to Thompson around the time of the fire, and she informed him that she was getting

ready to move back to Mississippi because she could no longer afford the rent on the house.

Mary2 Thompson testified that, in March 2008, she was living in a rental house at 10

Webb Street with the defendant; her sister, Thelmisha Thompson; and her two-year-old

niece, Ricarla. The defendant was her boyfriend at the time, and they had dated since July

1999. Mary admitted that she had been charged with first degree murder, along with the

defendant, but denied that she had been promised a deal in exchange for her testimony.

Mary testified that, on March 14, 2008, the defendant had been living with her for

about three weeks, having recently moved from Mississippi where they both were from. The

night of the 14th, she was home with the defendant and her niece. She and the defendant

had both been drinking Paul Masson brandy, and the defendant had drunk “a couple” of

beers as well. Around 10:00 p.m., Bobby Perry stopped by the house. Mary had known

Perry for about five months and had rented cars from him in the past. Perry had told her that

he was going to stop by that evening to take her and her niece to get something to eat and

ride around until her sister got off work at 11:30 p.m. Perry came into the house and helped

Mary get her niece’s car seat and took it out to his car – a tan, late-model Cadillac.

Mary testified that, as they were walking to Perry’s car, a “young lady,” later

determined to be Manning, who was with Perry, asked to use the bathroom. Mary took

Manning inside and showed her to the bathroom. The defendant was in the house

1

The defendant was ultimately acquitted on this charge.

2

Mary Thompson and her sister, Thelmisha Thompson, are both lengthy witnesses. Therefore, for

clarity, we will refer to these women by their first names at times. We mean no disrespect to either of these

witnesses.

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somewhere. Mary waited by the bathroom door until she heard the toilet flush, and then she

went back out to the car to join Perry, thinking that Manning “was on her way out.”

However, Mary never saw Manning exit the bathroom. Mary sat in Perry’s car talking to

him for a few minutes before she started to wonder what was taking Manning so long. She

told Perry she was going to check on Manning, and Perry said, “‘No. I’ve got it.’ Like that

was his close friend and he would check on her.”

“Almost immediately” after Perry walked into the house, Mary heard a loud thumping

sound and saw the blinds moving in the living room in the front of the house. Mary left her

niece in the car and ran inside to see what was happening. Mary saw the defendant

“tussling” with Perry. She explained that Perry was lying on his back on the floor, and the

defendant had his knee in Perry’s neck. Mary saw blood “all over the area where [Perry]

was lying” and on Perry’s body.

Mary testified that she asked the defendant what was going on and what he was

doing, and the defendant said “[t]hat it was done there. ‘We got to get this mess up.’” Perry

told Mary, “‘Help me baby,’” and the defendant said, “No. No[]” and asked Mary to pass

him the kitchen knife that was on the floor out of his reach. Mary kicked the knife close to

Perry’s foot and prepared to run out of the house. However, the defendant stopped her and

told her to bring her niece inside. Mary said that she did not see what happened after she

kicked the knife, but she assumed that Perry had gotten it because the defendant told her

later that “Perry had got the knife and cut his index finger to the bone.”

Mary testified that she brought her niece into the house in the back bedroom. Perry

was lying on the kitchen floor and “still kind of gasping a little bit.” The defendant told her

that he needed her to help him. She told him that she could not, but the defendant kept

“insisting [and] threatening . . . like, you know, the police fixing to come get me because it’s

in my house.” The defendant took Mary into the kitchen where Perry lay unmoving and

gasping “[v]ery faintly.” The defendant tried to get her to help him pull Perry out the door,

but she refused because she did not want to touch the body.

Mary testified that the defendant then told her to wait with her niece in the bedroom.

Before going to the bedroom, however, Mary stopped to wash her hands in the bathroom

where she saw Manning lying on the bathroom floor, bloody, and with what “looked like

holes in her.” Mary ran out of the bathroom and asked the defendant “‘What did [you] do?

Why you do that?’” The defendant would not answer, but she thought “he said that he did

it for us.” She “had no idea” what the defendant meant by that statement.

Mary testified that the defendant had met Perry prior to the incident when they had

gone out to eat, but, to her knowledge, he had not met Manning. She had never discussed

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killing Perry or Manning with the defendant. Mary said that the reason Perry came by to

pick her up with Manning was because Perry wanted Mary to watch him and Manning have

sex “to see how it was done.” She said that she and Perry were not dating but had oral sex

once. Mary did not tell the defendant about her sexual encounter with Perry.

Mary testified that she waited in her bedroom with her niece until the defendant came

and got her. The victims’ bodies were no longer in the house. The defendant told her that

they “had to clean up that stuff,” and they “cleaned for a while” in the bathroom and kitchen

using bleach and Mean Green to try to remove the blood.

Mary testified that her sister, Thelmisha, was due home from work around 11:30 p.m.,

and the defendant left the house for ten to fifteen minutes. She said that the defendant

evidently ran into Thelmisha while he was away because he returned and told Mary not to

let Thelmisha in the house. When Thelmisha arrived, Mary told her that she could not come

in the house and that she needed to take her niece, Ricarla, with her. Thelmisha told Mary

“to get her some clothes,” and, while Mary was doing so, the defendant told her to send

Thelmisha to get more bleach. When Thelmisha returned with the bleach, Mary gave her

a change of clothes for herself and Ricarla, and they left. Mary saw that Thelmisha was with

her boyfriend.

Mary testified that, after Thelmisha left, she and the defendant hurriedly continued

to try to clean the house. When they were finished, the defendant “said that we had to go.”

The defendant had apparently moved Perry’s Cadillac and parked it nearby, and the two of

them walked to the car. They got into the car and drove to an alley where “a white truck,”

a Ford Excursion that also belonged to Perry, was located. Mary noticed that the backseat

of the Cadillac appeared to have “[a] whole bunch of things piled up on [it]” that had not

been there earlier. Mary believed that the defendant had placed “Perry on the back seat piled

up under a lot of stuff.” The defendant told her that Manning was in the trunk.

The defendant told Mary to drive the Excursion, while he followed behind her in the

Cadillac. She did not know where they were going at first, but the defendant stopped

outside of Jackson and told her they were to drive to Mississippi and for her to “‘[j]ust lead

the way and don’t speed.’” They drove through Memphis to Mississippi and then the

defendant pulled beside her and told her they needed to get a shovel. They went to a

Walmart in Greenwood, where Mary went in alone and bought a shovel. Mary identified

surveillance photographs from Walmart of her buying the shovel.

Mary testified that, when she left the store, the defendant told her to follow him “to

this place called Collins,” a trucking and detail company owned by Robert Collins, Sr.,

whom both Mary and the defendant knew. She parked the white Excursion and got into the

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Cadillac with the defendant. The business was closed, and the defendant told her that was

where he wanted to park the truck for the night.

Mary testified that the defendant drove them to an abandoned building outside the

city limits and dropped Mary off, telling her “to stay there until he g[ot] back and don’t go

nowhere and don’t move.” After about an hour, the defendant returned to the building,

picked her up, and drove them to a hotel in the Cadillac. She noted that the “stuff” was no

longer in the backseat of the car.

Mary testified that the defendant got them a room at the hotel and tried “to explain

things.” The defendant told her, “‘I know I F’d up, but you ain’t got nothing to worry about.

Everything is good.’” He did not provide any explanation for why he killed Perry and

Manning. They stayed at the hotel for a few hours, until around 9:00 a.m., when they drove

back to Collins’ business. The defendant offered to sell Collins the Cadillac and the

Excursion, but Collins did not buy either vehicle. Mary noted that there was visible blood

on the backseat of the Cadillac.

Mary testified that Collins gave them a check for some gas money, and they left

Collins’ business with Mary driving the Excursion and the defendant driving the Cadillac.

Mary drove the Excursion to a gas station and parked at a fuel pump, while the defendant

parked the Cadillac beside the building. Mary went in to pay for the gas, and the clerk must

have “automatically turned the pump on and it started pumping too much gas, but [she]

didn’t know until [she] got back out to the vehicle.” Mary told the clerk that she did not

have enough money and was “trying to create a scene” in hopes the clerk would call the

police to get her away from the defendant.

Mary testified that the clerk told her that she needed to keep Mary’s license until

Mary returned with money to pay for the fuel, but the defendant came into the store “kind

of like shoving [her] in the back like, ‘What the -- you doing? Let’s go. What is going on?’

And the lady said, ‘She went over in her gas,’ and he asked her, ‘How much?’ He had the

money to pay for the gas.” Mary said that the defendant gave her the money to pay for the

gas, but she still refused to pay because she “really wanted them just to call the police.”

Mary finally gave the clerk a signature and promised to come back and pay. She and the

defendant then left the gas station.

Mary testified that she had not called the police on her own because she did not have

a cell phone, and the cell phone her sister had given them was in the defendant’s possession.

Mary never had the cell phone unless the defendant was also present. Mary admitted that

she did not tell anyone in Walmart about what had happened but said she did not do so

because she “was scared.” She said that she did not tell Collins about what had happened

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because the defendant was standing beside her, although she did try to gesture behind the

defendant’s back “like don’t bother those vehicles.” She did not see anyone at the hotel

whom she could tell because the defendant was the one who “checked in and got the room.”

Mary testified that she drove the Excursion away from the gas station, and the

defendant drove the Cadillac. They drove “[d]own this back road down that could lead to

the next town over.” The defendant had Mary pull over and told her he was going to drive

the Cadillac into the lake; however, the car got stuck on a hill and the defendant was not able

to get it out. The defendant got into the Excursion with Mary and had her drive to a gas

station so they could get some gasoline in a jug. After getting the gas, they returned to the

Cadillac, which the defendant then set on fire. They tried to leave in the Excursion, but it

had become stuck in the mud. However, the defendant was able to dig the Excursion out

with the shovel.

Mary testified that they drove to a trailer park not far from the “fire site.” The

defendant told her that they “were going to chill” there for awhile, and “he was going to try

to get that truck sold before [they] left Mississippi.” The defendant’s aunt’s husband let

them into a trailer, and the defendant’s aunt arrived a few minutes later. They stayed there

“for hours.” The defendant talked to his aunt’s husband and then left with him, while Mary

remained at the trailer with the defendant’s aunt. Mary told the defendant’s aunt that “her

nephew had did something bad,” but she could not tell her what the defendant had done.

Mary testified that the defendant returned about thirty minutes later, and they

remained at the defendant’s aunt’s trailer until dark when they left in the Excursion. As they

passed through Grenada, Mississippi, on the way back to Jackson, Tennessee, they “ran into

this guy from Memphis that [Mary’s] sister knew,” named C.J. Mary told the defendant that

she wanted to ride with C.J., which she did with the defendant following them. During the

trip, Mary told C.J. that “there’s a lot going on and [she was] really trying to get away so he

kind of like sped off and tried to leave [the defendant] behind.” She did not tell C.J. exactly

what had happened, and the defendant was able to stay close behind them.

Mary testified that, when they arrived in Memphis, she called Thelmisha on C.J.’s

phone to have her meet them, and C.J. took her to a store near his house. Meanwhile, the

defendant also talked to Thelmisha and met them at the store where he cleaned the “doors

and stuff” of the Excursion. Mary and the defendant got into the car with Thelmisha;

Thelmisha’s boyfriend, Christopher; and Mary’s niece, Ricarla. They returned to Jackson,

leaving the Excursion at the store.

Mary testified that Christopher and Thelmisha dropped her and the defendant off at

the Webb Street house around 10:00 or 11:00 p.m. on Saturday night, and they spent the

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night there. She said that the defendant “still didn’t quite want Thelmisha in the house so

she spent the night with her boyfriend.” The next day, Sunday, a neighbor came to her

house, and Mary overheard the defendant talking to the neighbor about Bobby Perry. As far

as she knew, the defendant did not tell the neighbor anything about what had happened with

Bobby Perry.

Mary testified that, on Monday, she called a friend and asked for a ride to the store

to pick up some packing boxes. She had been having trouble paying her rent and had

thought about moving “before anything even happening.” The defendant told her that he

was going to the store with them, but Mary had asked her friend to “bring people so it

wouldn’t be room for him to get in,” so the defendant stayed at the house. While they were

driving, the defendant kept calling her friend’s cell phone trying to get Mary to come back

to the house. He then called another time and told them that Mary’s house was on fire.

Mary did not believe the defendant.

Mary testified that while she was at her friend’s house, she received another phone

call which led her to call the fire department to inquire whether there had been a fire. Mary

was informed that there had been a fire at 10 Webb Street and that the house was “heavily

damaged.” Thelmisha had also been called at work about the fire. Thelmisha picked up

Mary, and they spent the night at Thelmisha’s boyfriend’s house. The defendant called her

that night, but she did not tell him where she was staying.

Mary testified that the defendant’s explanation for killing Perry was that “he had to

do it.” She thought that Manning was killed “just because she was there.” The defendant

told her that he set the house on fire because “[h]e couldn’t leave no evidence.” The

defendant never told her what he did with the victims’ bodies; she “just kn[e]w when he

came back they weren’t in the Cadillac.” Mary recalled that the defendant told her that his

“alibi” was “[t]hat he was going to say that [Perry] tried to rape him in his butt and he killed

him.”

Mary testified that she had known Perry for four or five months and that the only

significant problem they had occurred sometime in February when she allowed the

defendant to drive a car she had rented from Perry, and Perry “told [her] he didn’t want [the

defendant] driving his car.” However, she allowed the defendant to again drive the car, and

Perry saw him. Perry confronted her, and they got into a dispute over the weekly rental rate

Mary had been paying. Mary called the police, and Perry had the car towed away. After

their disagreement, Mary and Perry had no further problems, and Perry or “his right-hand

man” continued to drive her places when needed.

Mary testified that she did not know that the defendant was going to kill the victims.

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She was not sure whether the defendant knew that the reason she was going out with Perry

and Manning on the night they were killed was so she could watch them have sex. Mary

said that, although she never told the defendant about she and Perry’s sexual encounter, she

believed that he knew about it because the defendant had said that he did not want Perry

coming by the house and did not want her in Perry’s vehicle. Mary said that she and the

defendant had dated off and on since July 1999, but she had not seen him in the two years

prior to his moving in with her on Webb Street. At the time of the incident, they were

“[t]rying to work it out[.]”

On cross-examination, Mary denied that she and Perry were dating even though she

testified at the preliminary hearing that Perry came by her house every Sunday and she

cooked dinner. Mary acknowledged that she testified at the preliminary hearing that Perry

liked her and flirted with her. She stated that Perry had given her money and helped pay her

utility bill once. Mary denied being angry at Perry for repossessing her rental car or making

the statement, “He will get his.” Mary acknowledged that when she went into the gas station

in Greenwood, Mississippi, she gave the store clerk a false name and did not ask the clerk

for help. Mary was confronted with various inconsistencies between her testimony on direct

and her statements to the authorities or at the preliminary hearing, particularly with regard

to whether she had possession of Thelmisha’s cell phone when not in the defendant’s

presence and with regard to how long the defendant was away from their hotel room in

Greenwood, Mississippi. On redirect, Mary explained that she gave the gas station clerk a

false name because the defendant “didn’t want anybody to know that [they] had been to

Mississippi.”

Christopher See testified that he knew Mary Thompson and had dated her sister,

Thelmisha. On March 14, 2008, See and Thelmisha worked at the same job, and he drove

her home to 10 Webb Street after they both got off work at 11:30 p.m. When they arrived

at the house, he and Thelmisha walked to the front door, and Mary “cracked the door open

a little bit . . . [and] whispered something to Thelmisha.” See was not allowed to go inside

and waited for ten to fifteen minutes until Thelmisha came back out.

See testified that Thelmisha “was looking kind of funny” when she exited the house

and asked him to take her to buy some bleach. The store was nearby, and they arrived back

at the house within five minutes. After Thelmisha took the bleach into the house, they

started to leave for See’s house. As they were leaving, he saw the defendant driving a

Cadillac, and the defendant “flagg[ed] [them] down.” Thelmisha got out of the car and

talked to the defendant. The evening of the next day, See and Thelmisha drove to Memphis

and picked up Mary and the defendant and brought them back to Jackson. Mary was “at

some guy’s house,” and the defendant was at a gas station in a white Excursion. On cross-

examination, See testified that Mary and Thelmisha “communicat[ed] throughout the day”

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on Saturday by telephone.

Sterling Melton testified that the morning of March 15, 2008, he was hunting in

Holmes County, Mississippi, when he found two bodies in a field near the Yazoo River.

After seeing the bodies, he ran to his truck and called his father, who in turn called the

sheriff’s department. He remained at the scene for two or three hours after law enforcement

arrived. Melton described the location where he found the bodies as very remote farmland,

with the nearest house approximately three miles away.

Thelmisha Thompson testified that, on March 14, 2008, her boyfriend at the time,

Christopher See, drove her home to 10 Webb Street after they got off work at 11:30 p.m.

She was planning to pick up some clothes at her house and then go to See’s house. When

she got home, Mary opened the door, and Thelmisha saw that she was “shaking” and

Ricarla, her niece, was crying on the couch. Mary “barely let [Thelmisha] past the living

room,” but Thelmisha saw blood and that “everything [was] messed up[.]” Mary asked her

if she had seen the defendant.

Thelmisha testified that she picked up her niece and some of her clothes, which she

kept in a “tote” in the living room beside the door. As she was leaving, Mary asked her to

go buy some bleach. See took her to the store, and she returned to the house and handed the

bleach to Mary. She did not go back inside the house. Thelmisha got back into See’s car

with her niece, and, as they were driving away, she saw the defendant driving Perry’s tan

Cadillac. The defendant “flash[ed] the lights” to get them to stop. Thelmisha got out of

See’s car and had a brief conversation with the defendant, during which the defendant told

her that he had “messed up” and asked whether Mary had told her what had happened. She

told him what Mary had told her, and the defendant did not respond. The defendant “didn’t

tell [her] everything, just that he had messed up. That’s all he kept saying.”

Thelmisha testified that she and See started driving again, but the defendant got

behind them and flashed his lights. They stopped again, and she got out and talked to the

defendant. The defendant was in “a panic mood” and again told her that he had “messed

up.” He did not give her any details, and she did not ask. Thelmisha could tell that the

defendant “was panicking. His eyes [were] bugged. He looked like he was in a state of

shock.”

Thelmisha testified that, both times she saw the defendant, she noticed that there “was

something big on the back seat [of the Cadillac] and it was like a lot of stuff on top of it.”

She also noticed that the defendant had blood on his shirt and face, and his shirt appeared

to be ripped. After speaking with the defendant the second time, Thelmisha saw the

defendant park Perry’s Cadillac and walk toward the Webb Street house. She and See left

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and drove to See’s house, where they remained for the rest of the night.

Thelmisha testified that the next day, which was Saturday, Mary called and asked her

to pick her up in Memphis at C.J.’s house. See drove her and Ricarla there. After they

picked up Mary, the defendant called Thelmisha’s phone and asked that they pick him up

at a gas station. The defendant was in a white Excursion she had never seen before, and he

left it “[b]acked in at the gas station.” The defendant got into See’s car, and they drove

back to Jackson. See took Mary and the defendant to the Webb Street house.

Thelmisha testified that she went back to the Webb Street house around noon the next

day, which was Sunday, and spoke to the defendant. The defendant told her that he and

Perry had “got[ten] into a fight and that was it.” He said that he took an object off the wall

“and clocked [Perry] up side the head.” The defendant did not say anything about a weapon

other than “[w]hat was off the wall.” She knew that Perry was dead, but the defendant did

not tell her what he did with the body or anything about Andreca Manning. Thelmisha did

not know that Manning had been at the house, and Thelmisha had not gone into the

bathroom on Friday night.

Thelmisha testified that she left the Webb Street house Sunday evening and did not

return until the next day after she received several messages and missed calls at work

informing her that “the house had got on fire.” Thelmisha left work immediately and went

to 10 Webb Street to find “[a] burned house.” Thelmisha recalled that, when she was

interviewed by police, she told the police that the defendant had said, “I did this for your

sister.” She thought that the defendant meant that it was “[b]ecause of Mary and Bobby

Perry’s relationship.”

On cross-examination, Thelmisha stated that Mary and Perry were dating and that

she, Mary, and Ricarla “went over to his house sometime[s].” Thelmisha said that, at the

time of the incident, the defendant had lived with her and Mary at the Webb Street house for

less than a month. She said that Mary and Perry’s relationship “was made clear [to the

defendant] because Mr. Bobby Perry was still coming over to [the] house and it was

accepted and he knew that it was a way that, you know, money was coming up in the house

because [Thelmisha] was the only one working.” She acknowledged that she had told the

police that she never had a conversation with the defendant about how he felt about Mary

and Perry’s relationship. Thelmisha said that she thought Mary was trying to end her

relationship with Perry.

Thelmisha testified that, if See testified that he walked with her to the front door of

the Webb Street house the night of the incident, that was incorrect. She acknowledged that

the defendant was not at the house when she arrived that night after getting off work.

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Thelmisha admitted that she did not call the police after seeing blood inside the residence

or after the defendant told her that he had “messed up.”

On redirect examination, Thelmisha testified that she did not contact the police the

night of the killings or over the weekend because she “really didn’t know the situation of

what had happened or what could have happened and [she] really just didn’t want to know

the details.”

Dywana Broughton, a crime scene investigator with the Mississippi Bureau of

Investigation (“MBI”), testified that she was called to a scene in Holmes County,

Mississippi, the morning of March 16, 2008. When she arrived, she saw two bodies lying

in a secluded “high, grassy area.” The victims were approximately sixteen feet apart.

Broughton videotaped and photographed the area and collected evidence, including a brandy

bottle, a tennis shoe that matched one worn by the male victim, a “loop earring” that

matched one worn by the female victim, and a black-handled knife with a broken blade. She

turned the items over for processing. The female victim had “an injury to the throat area and

numerous slashes on her head, face, chest and breast.” The male victim “had numerous

injuries. Cutting injuries to his back, stomach, head. Injuries on the knees and arms as

well.”

Kristopher Wingert, also a crime scene investigator with the MBI, testified that he

examined a burned Cadillac that had been towed to a lot in Greenwood, Mississippi. He

located partial fragments of burned clothing on the backseat of the car but noted that the car

was “too heavily consumed” for him to recover any DNA or fingerprint evidence. Wingert

also processed a white Ford Excursion that had been found in Memphis. He lifted

fingerprints from several areas of the interior and exterior of the vehicle and collected other

items to be tested, all of which he submitted to the crime lab. He also found seven areas

inside the vehicle that tested positive for the presence of blood and submitted swabs of those

areas to the crime lab as well.

Sergeant Tim Pyles, an investigator with the MBI, testified that the victims’ bodies

were discovered in a “very rural . . . field . . . off of the levy of the Yazoo [R]iver,” and he

requested the crime scene unit to process the scene. Sergeant Pyles observed that the male

victim had an “obvious . . . puncture wound to the chest,” and the female victim “had an

obvious slash wound to her throat and also puncture wounds on her body.” Sergeant Pyles

worked with other officers in trying to identify the victims and was eventually able to trace

the VIN number from a burned-out Cadillac recovered near the river to Bobby and Yolanda

Perry. He contacted the Jackson, Tennessee, Police Department to find out whether it had

any warrants or stolen reports on the car. The Jackson Police Department sent him driver’s

license photographs of Bobby Perry and Andreca Manning, which he used to identify the

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bodies.

Sergeant Pyles testified that he went to an address of the defendant’s relative in a

trailer park and “found a shovel leaning up against a tree.” He explained that “[t]he shovel

appeared to be brand new and it had a stain on the handle that appeared to be blood.” He

submitted the shovel to the crime lab. Sergeant Pyles said that he participated in

interviewing Mary Thompson on March 17, 2008, at the Holmes County Sheriff’s

Department.

On cross-examination, Sergeant Pyles admitted that Mary initially claimed to have

no knowledge of what had happened. After the officers told Mary that they knew she was

lying, Mary gave a different version of the events – a version more damaging to the

defendant and herself.

Ken Spencer, Chief Investigator for the Leflore County, Mississippi, Sheriff’s

Department, testified that he received a call on March 16, 2008, that a burned vehicle had

been discovered in a field. He went to the location and took photographs of the area. He

described the “burn site” as “rural . . . [f]arm land and crop land.”

Paul Wilkerson, Jr., the section chief of the Latent Print Section of the Mississippi

Crime Laboratory in Jackson, Mississippi, examined a number of items of evidence

recovered in the proximity of the victims’ bodies and in the white Ford Excursion for

comparison against known prints of the victims, the defendant, or Mary Thompson. He

either found no latent fingerprints, none with enough detail for identification, or none that

matched any of the four subjects.

Lynee Burleigh, a forensic scientist trainee at the Mississippi Crime Laboratory,

testified that she was a medical examiner assistant in 2008. On March 19, 2008, she

received two tubes of blood taken from the victims and logged them into the evidence vault.

She also received other biological evidence, such as fingernail scrapings, pulled scalp hair,

and known finger and palm prints, from Bobby Perry, as well as clothing from Andreca

Manning.

Joseph Heflin, a forensic serologist and DNA analyst with the Mississippi Crime

Laboratory, testified that he examined a shovel submitted to him for analysis and determined

that the dark-colored stains at the end of the handle tested positive for blood. He also tested

several swabs taken from the inside of the white Ford Excursion, and they tested positive

for blood. Heflin received buccal swabs that had been taken from the defendant and Mary

Thompson and preserved them for further DNA testing, along with any evidence that had

tested positive for blood. The preserved items were sent to Orchid Cellmark, a private

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laboratory, for DNA testing due to a high backlog of items at the crime lab.

Leslia Davis, a forensic biologist in the bioscience division of the Mississippi Crime

Laboratory, testified that she received, from Lynee Burleigh, a tube of blood and a sexual

assault kit taken from a victim labeled “Jane Doe.” A bloodstain card created from the tube

of blood was sent to Orchid Cellmark for DNA analysis. She testified that it was not

unusual for a sexual assault kit to be taken during an autopsy and that she performed

preliminary testing on it for blood and seminal fluid.

Peggy Rodriguez, a DNA analyst for Orchid Cellmark, testified that she received a

shipment of evidence from the Mississippi Crime Laboratory and took reference samples to

prepare the items for testing.

Aimee Rogers, a DNA analyst for Orchid Cellmark, analyzed the evidence received

by Rodriguez and determined that a swab of blood taken from the front car door seal of the

white Ford Excursion matched the defendant’s DNA profile.

Dexter Howard, the Holmes County, Mississippi, coroner, testified that he went to

the scene where the bodies of the victims were found bearing stab wounds and lacerations.

Howard ordered that the bodies be taken to the state crime lab for autopsy.

Dr. Steven Hayne, testifying as an expert in forensic pathology, stated that he

performed the autopsies on both victims. His examination of Bobby Perry showed that, in

addition to multiple superficial abrasions of the skin, the victim received fifty stab wounds

and nineteen slash wounds. Some of the non-fatal slash wounds were “consistent with

defensive posturing injuries.” There were also two lacerations to the back of the victim’s

head. Dr. Hayne opined that Perry died from two different types of injuries: “closed head

injuries [caused by] blunt force trauma” and multiple stab wounds. Six of the stab wounds

to Perry’s sides, back, and abdomen were lethal wounds, and the head injury itself would

have also been fatal. Dr. Hayne estimated that Perry would have died within twenty to thirty

minutes from his injuries. He opined that Perry could have been dead for twenty-four to

thirty-six hours “and possibly even 48 hours” before he was found.

Dr. Hayne testified that his examination of Andreca Manning showed that she had

“multiple abrasions on different sites of the body.” She suffered thirteen stab wounds,

including three lethal ones to her chest. She also suffered nine slash wounds, “two of which

were lethal on the front surface of the neck and a total of 6 slash wounds involving the digits

of the left hand . . . consistent with defensive posture injuries.” Dr. Hayne determined that

Manning died from a combination of stab and slash wounds to the neck and chest. He

opined that Manning would have become unconscious in less than a minute from her injuries

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and would have died in five minutes or less. He said that the only way Manning could have

survived her injuries was if they “occurred in the emergency room or trauma operating

room.”

Christine Robinson testified that she was working at a Shell gas station convenience

store in Greenwood, Mississippi, on Saturday, March 15, 2008, with three other employees

when a woman driving “a big white Excursion truck” came into the store around 11:45 a.m.

The woman pumped $51 worth of gas but then came inside and said that she did not have

enough money and only wanted $15 worth of gas. The woman used the store’s phone to call

someone at Collins Trucking Company to bring her money, and she also used one of the

employee’s phones to text someone to bring her money. “[S]he was there maybe 15 or 20

minutes or more.” After a while, “[a] little short guy came from beside the building and he

came in the store and they talked a few minutes and they left and she said she was going to

bring the money back.” Before the woman left, Robinson wrote down the tag number of the

truck and asked the woman to write down her name, which she wrote as “Lashonda

Townsend.” However, Robinson recalled that when the woman sent a text message, “she

texted as Mary.” Robinson called the sheriff’s department and reported the incident.

Robinson later learned that “the little guy brought the money back.”

On cross-examination, Robinson acknowledged that the woman did not ask her to

call the police, do anything to make a scene, or seem afraid of the man who came in the

store. On redirect, Robinson stated that, at one point, the man and woman were

“whispering” in front of her and the other store employees and they could not hear the

conversation.

Patricia Jordan, the defendant’s aunt, testified that she lived in a mobile home park

in Sidon, Mississippi, on Saturday, March 15, 2008. On that date, she arrived home and saw

an unfamiliar white Ford Excursion pulling out of her driveway. When she went inside,

there was an unfamiliar “female sitting on [her] couch,” who identified herself as the

defendant’s girlfriend. The defendant came in the house, and they talked for a few minutes

before Jordan went to her room to sleep. The defendant did not tell her why he and his

girlfriend were there.

Jordan testified that she slept for about three hours, while the defendant and his

girlfriend watched television in her living room. At some point after she got up, her husband

took the defendant to the store, and she remained at the house with the defendant’s

girlfriend. Jordan noticed that the white Ford Excursion had a Tennessee license plate and

“was kind of muddy.” The defendant borrowed a pair of pants from Jordan’s husband to

change into, and the defendant’s girlfriend had on a black sweat suit with “mud on the

bottom of her pant leg” and shoes that “were real muddy.” The defendant and his girlfriend

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left in the Excursion sometime after dark.

On cross-examination, Jordan testified that the defendant’s girlfriend had a cell phone

with her that kept ringing, and that she talked on it until the battery died. She never saw the

defendant’s girlfriend call the police on her cell phone, and she did not ask Jordan to call the

police for her. Jordan estimated that the defendant and his girlfriend were at her house for

eight hours, and she did not know where they were going when they left.

Cedric Smith, Patricia Jordan’s husband, testified that the defendant and his girlfriend

came to his house on March 15, 2008, around noon. He had only recently met the defendant

and had never met the defendant’s girlfriend. Smith “ran into [the defendant]” as he was

arriving home and the defendant was leaving on foot. The defendant told Smith that “they

had just got off the road and they were tired and needed to rest.” They had arrived in a white

Excursion.

Smith testified that he invited the defendant and his girlfriend into the house, and he

“drank a beer and watched TV and they took a nap.” When his wife got home, “[t]hey got

acquainted. They just reunited or whatever.” Sometime later, Smith took the defendant to

a convenience store to get some food, while his wife and the defendant’s girlfriend stayed

home. Before leaving for the store, the defendant told Smith that “[h]e was a little muddy

and he didn’t want to go to [the store] with mud on him, so [Smith] loaned him a pair of

sweat pants and . . . a shirt.” Around 6:00 or 7:00 that evening, after dark, the defendant and

his girlfriend left Smith’s house in the white Excursion. Smith did not know where they

were going, and the defendant was still wearing the clothing Smith had loaned him.

Aimee Oxley, a crime scene analyst and latent fingerprint examiner for the Jackson,

Tennessee, Police Department, testified that she was dispatched to 10 Webb Street in

response to a house having been set on fire and a “possible homicide.” When she arrived,

Oxley noted that the living room, kitchen, and hallway “were heavily damaged with soot and

fire,” and she determined that the fire appeared to have been started in the bathroom. She

observed that “there were areas especially in the living room even with the burn damage that

you could tell that there were portions of carpet that had been cut up.” She also discovered

a mop and a bucket containing “rusty color” water in the kitchen. Oxley noted that the water

in the bucket indicated “that there was a cleanup of the residence . . . after the homicide had

occurred.”

Oxley testified that she tested several areas around the house with a product that

reacts with blood “even after [the blood has] been cleaned up with bleach or any other

cleaning product.” Apparent bloodstains on the back of the couch in the living room tested

positive for blood, as did the couch cushions, the entryway from the front door, and most of

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the kitchen floor. She took samples from the fabric, linoleum, and wood that showed the

presence of blood. She did not get any reaction from the luminescing agent in the bathroom,

presumably because of the extensive burn damage in the bathroom.

Oxley testified that she collected several items from around the house, including

items in the kitchen trash can. She explained that “[t]here were broken pieces of wood and

broken ceramics and clothing and pills and there was a cell phone in the kitchen trash.” She

also found an empty gallon jug of bleach, empty bottles of “Mean Green Super Strength

cleaner,” and an empty bottle of Lysol in the kitchen trash. Also located in the kitchen trash

were a white men’s undershirt “with possible blood,” a used band-aid, a plastic cup “with

possible blood,” a pot holder, and sixty-four blue tablets and a prescription bottle “with

possible blood.” All of the evidence was sent to the Tennessee Bureau of Investigation

(“TBI”) Crime Laboratory.

Lieutenant Mike Turner with the Jackson, Tennessee, Police Department testified that

he was an evidence custodian and crime scene technician, and he assisted Oxley in collecting

and processing evidence at 10 Webb Street. Lieutenant Turner also took swabs for DNA

testing of possible bloodstains around the front door. He collected several knives, including

one “that came from the dish drainer in the kitchen area.”

Agent Cathy Ferguson with the Criminal Investigation Division of the TBI testified

that she assisted Aimee Oxley and Lieutenant Turner with the collection of evidence and

processing the scene at 10 Webb Street on March 18, 2008. Agent Ferguson also

photographed and sketched a diagram of the scene.

Agent Melanie Johnson with the TBI Drug Identification Section testified that she

tested thirty-five blue tablets as well as deteriorated partial tablets and fragments recovered

in this case and determined that they contained Hydrocodone, a Schedule III controlled

substance.

Agent Donna Nelson, a DNA forensic analyst with the TBI, testified that she tested

a blood sample taken from Bobby Perry, but the sample was too degraded for her to obtain

a DNA profile. However, she was able to obtain a DNA profile from the blood sample

taken from Andreca Manning. Agent Nelson tested a presumptive bloodstain on a white

tank top recovered from 10 Webb Street and determined that the blood was Manning’s.

Agent Nelson testified that she generated a DNA profile from the blood on a blue

plastic cup from the kitchen trash and determined that it matched the DNA of an unidentified

male. She later received the results of DNA testing done by Orchid Cellmark that generated

a profile from other samples taken from Bobby Perry and from that determined that the

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blood on the plastic cup matched Perry.

Agent Nelson testified that the blood found on the Hydrocodone tablets and

prescription bottle cap belonged to the defendant. A broken piece of wood taken from the

kitchen trash had blood on it from which, although the sample was degrading, she was able

to partially match to Bobby Perry’s DNA. Fabric taken from the back of the living room

sofa contained a bloodstain Agent Nelson determined belonged to the defendant. Swabs of

linoleum samples from the entryway and knives from the kitchen were negative for the

presence of any blood.

Investigator Danielle Jones with the Violent Crimes Unit of the Jackson, Tennessee,

Police Department testified that she photographed the white Ford Excursion at a Citgo gas

station in Memphis. On March 19, 2008, Investigator Jones traveled to Mississippi to

interview Mary Thompson and the defendant. She came into contact with the defendant on

March 20 and took photographs of his hands. The defendant had a bandage around the

index finger on one hand and, when he removed the bandage, Investigator Jones saw what

“appear[ed] to be a deep cut.”

Defendant’s Proof

Officer Justin Harris with the Jackson, Tennessee, Police Department testified that

he worked as a patrol officer in March 2008. On March 5, 2008, he was called to 10 Webb

Street in response to a “civil dispute . . . over a vehicle.” A female resident of the house

called in the complaint. Officer Harris learned that the car, belonging to Bobby Perry, was

being repossessed and “[n]obody had any paperwork at the time saying that car belong at 10

Webb Street so we allowed Mr. Perry’s tow truck driver to take the car.”

Officer Terry Buckley with the Jackson, Tennessee, Police Department testified that

he was also a patrol officer in March 2008 and responded to 10 Webb Street in reference to

a disturbance involving a vehicle. Bobby Perry was the owner of the car and was

repossessing the vehicle. However, Officer Buckley was “told that it was a rental

agreement,” but the renter could not produce any paperwork for such. The complainant was

one of several females on the scene that day, and the officers “just kept the peace between

the two parties.”

Officer Buckley testified that there was a tow truck at the scene, and the renter of the

vehicle “was upset that the car was being taken away from her [and] stated that she was

making payments on the vehicle and was current on the payments.” When Perry arrived at

the scene, the renter made a loud, angry statement directed toward Perry.

-17-

After the conclusion of the proof, the jury convicted the defendant of the first degree

premeditated murder of Bobby Perry, the second degree murder of Andreca Manning, and

tampering with the evidence. The defendant was acquitted on the aggravated arson charge.

ANALYSIS

I. Expert Witness

The defendant argues that the trial court erred in allowing Dr. Steven Hayne to testify

as an expert witness in forensic pathology. In a jury-out hearing, the State questioned Dr.

Hayne regarding his training and experience in forensic pathology. Dr. Hayne testified that

he was a licensed medical doctor and had practiced in forensic pathology for thirty-five

years. He graduated from Brown School of Medicine after completing most of his

undergraduate work at North Dakota State University. He did not obtain an undergraduate

degree but, after two years of medical school, was granted a baccalaureate degree in medical

science. He completed his residency training in pathology at Letterman Army Medical

Center in San Francisco and then was chief of pathology in military hospitals in Fort

Leavenworth, Kansas, and Fort Campbell, Kentucky.

Dr. Hayne testified that, after leaving the military, he spent two years working for

Shoal’s Medical Laboratories and then was medical director of Rankin Medical Center in

Mississippi for eighteen or nineteen years while also serving as medical director for several

small hospitals in the area. He worked in the medical examiner’s office in Mississippi as

“acting state medical [e]xaminer, designated state pathologist and chief state pathologist.”

He additionally worked “for some 10 or 12 years as a forensic pathologist for some of the

parishes in Louisiana.” Dr. Hayne then worked for twelve years as the medical director for

Rena Laboratory and presently worked as the “Medical Director of CyberNostic and the

Medical Director of the Pro Laboratory.” He was not, presently, an employee of the State

of Mississippi and currently performed “private autopsies, medical autopsies, not medical

legal autopsies.” Dr. Hayne stated that he had performed approximately 35,000 autopsies

in his thirty-five-year career. He had testified as an expert approximately 4500 times in

various state, federal, and military courts.

On cross-examination, Dr. Hayne acknowledged that the Mississippi Public Safety

Commissioner had recently removed him as the Chief State Pathologist and Designated

Pathologist. He admitted that he averaged 1000 autopsies a year but that the National

Association of Medical Examiners recommended that forensic pathologists only perform

between 250 and 325 autopsies a year. He claimed, however, that he and his attorney

surveyed pathologists around the country and “about 65 percent said they did more.” He

acknowledged that he was not certified by the American Board of Pathology in forensic

-18-

pathology, although he was in anatomic and clinical pathology. Because he was not certified

by the American Board of Pathology in forensic pathology, he was never officially the state

medical examiner for Mississippi, as Mississippi required such certification. However, he

said that the attorney general’s office had determined that he “was qualified.” He noted that

he was certified by the American Board of Forensic Pathology, but that board was not

recognized by the American Board of Medical Specialties. Dr. Hayne confirmed that

lawsuits had been filed against him by the Innocence Project on behalf of exonerated

inmates in whose cases he had testified. He acknowledged that, in 2003, he testified in a

deposition that he performed approximately 1500 autopsies a year.

After hearing Dr. Hayne’s testimony concerning his qualifications, the trial court

found that he was qualified as an expert in the field of forensic pathology and could give his

opinions concerning the cause and manner of the victims’ deaths.

Again, the defendant argues that the trial court erred in allowing Dr. Hayne to testify

as an expert witness in forensic pathology. He asserts that because Dr. Hayne was not

certified by the nationally recognized board for forensic pathologists, performed more

autopsies annually than the maximum recommended by the certifying board, and had been

sued by exonerated inmates, “[t]he cumulative effect of the challenges to Dr. Hayne’s

credibility as a reliable expert witness in the field of forensic pathology should serve as

grounds to grant [him] a new trial.” He does not challenge any of Dr. Hayne’s conclusions

about the cause and manner of the victims’ deaths.

The admission of expert testimony is governed by Tennessee Rule of Evidence 702,

which provides that “[i]f scientific, technical, or other specialized knowledge will

substantially assist the trier of fact to understand the evidence or to determine a fact in issue,

a witness qualified as an expert by knowledge, skill, experience, training, or education may

testify in the form of an opinion or otherwise.” Tenn. R. Evid. 702. “The witness may

acquire the necessary expertise through formal education or life experiences.” State v. Reid,

91 S.W.3d 247, 302 (Tenn. 2002) (citing Neil P. Cohen et al., Tennessee Law of Evidence

§ 7.02[4] (4th ed. 2000)). “However, the witness must have such superior skill, experience,

training, education, or knowledge within the particular area that his or her degree of

expertise is beyond the scope of common knowledge and experience of the average person.”

Id. The determining factor is “whether the witness’s qualifications authorize him or her to

give an informed opinion on the subject at issue.” State v. Stevens, 78 S.W.3d 817, 834

(Tenn. 2002) (emphasis omitted).

Questions regarding the admissibility, qualifications, relevancy and competency of

expert testimony are left to the discretion of the trial court. McDaniel v. CSX

Transportation, Inc., 955 S.W.2d 257, 263-64 (Tenn. 1997). As such, we will not disturb

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the trial court’s ruling absent a clear showing that it abused its discretion in admitting the

testimony. Id.; Stevens, 78 S.W.3d at 832.

We conclude that the trial court did not abuse its discretion in allowing Dr. Hayne to

testify as an expert witness in forensic pathology. Dr. Hayne’s training and extensive

experience in forensic pathology, including the performance of approximately 35,000

autopsies, clearly show a degree of expertise beyond the scope of common knowledge and

experience of the average person. The defense thoroughly cross-examined Dr. Hayne in

front of the jury, and the jury was instructed, “[I]t is up to you to decide whether you believe

this testimony and choose to rely upon it. Part of that decision will depend on your

judgment about whether the witness’[s] background or training and experience is sufficient

for the witness to give the expert opinion that you heard.” The defendant’s challenges are

essentially to Dr. Hayne’s credibility as an expert witness, not his qualifications, which was

assessed by the jury after proper instructions from the trial court. The defendant is not

entitled to relief on this issue.

II. Jury Instruction

The defendant argues that the trial court erred in not instructing the jury that Mary

Thompson was an accomplice as a matter of law. After the conclusion of the proof, the

defense requested that the trial court instruct the jury that Mary was an accomplice as a

matter of law as to the murder and tampering with the evidence charges. Defense counsel

asserted that Mary’s testimony, and the fact she was indicted along with the defendant,

showed she was an accomplice as a matter of law. The court reviewed Mary’s testimony and

determined that “it is a question of fact for the jury to determine . . . whether . . . she was in

fact an accomplice in these charges or these acts.” Thereafter, the trial court instructed the

jury accordingly, including the instruction that if it found Mary to be an accomplice, there

would have to be corroborating evidence to support her testimony.

An accomplice is defined as one who “knowingly, voluntarily, and with common

intent participates with the principal offender in the commission of the crime alleged in the

charging instrument.” State v. Griffis, 964 S.W.2d 577, 588 (Tenn. Crim. App. 1997). The

test for determining whether a witness is an accomplice is whether the witness could be

indicted for the same offense as the defendant. See State v. Green, 915 S.W.2d 827, 831

(Tenn. Crim. App. 1995); State v. Lawson, 794 S.W.2d 363, 369 (Tenn. Crim. App. 1990).

When the evidence is clear and undisputed that a witness participated in the crime, then the

trial court must declare the witness to be an accomplice as a matter of law and instruct the

jury that the witness’s testimony must be corroborated. Lawson, 794 S.W.2d at 369. On the

other hand, when the evidence is unclear, it becomes a question of fact for the jury to

determine whether the witness is an accomplice and, if so, whether there is corroborating

-20-

evidence to support the witness’s testimony. Id.; see Green, 915 S.W.2d at 831-32.

As mentioned above, Mary Thompson was indicted for the same charges as the

defendant; however, the court found that there was a factual question as to her degree of

participation in the crimes. The defendant specifically points to Mary’s testimony “that she

threw a knife towards [the defendant] while he was struggling with Mr. Perry” to assert that

there was no dispute to Mary’s “participation in the[] events.” However, Mary’s actual

testimony at trial was that she walked inside the house and saw Perry lying on the floor with

the defendant on top of him, holding his knee to Perry’s neck. She stated that Perry said to

her, “‘Help me baby,’” and the defendant said, “‘No. No[]’” and “tried to get [her] to give

[the knife] to him.” She “kicked” the knife “close to [Perry’s] foot” and ran out the door.

In ruling on the issue at the motion for new trial, the trial court stated, “[A]ccording to

[Mary’s] testimony, she simply kicked the knife over in the direction of where these two

individuals were struggling and then she ran out of the residence. . . . I certainly felt like it

was at least a jury question and I did instruct the jury as to the law of accomplice.”

We conclude that there was arguably a factual question as to Mary’s participation.

There was no proof of any participation on her part in the murder of Manning, the proof

concerning her involvement in the murder of Perry could be subject to different

interpretations, and questions were raised as to the voluntariness of her participation in

tampering with the evidence. In any event, any error in the trial court’s not instructing the

jury that Mary was an accomplice as a matter of law was harmless because there was

evidence to corroborate Mary’s testimony.

The principle of corroboration has been explained by our supreme court as follows:

“[T]here must be some fact testified to, entirely independent of the

accomplice’s testimony, which, taken by itself, leads to the inference, not only

that a crime has been committed, but also that the defendant is implicated in

it; and this independent corroborative testimony must also include some fact

establishing the defendant’s identity. This corroborative evidence may be

direct or entirely circumstantial, and it need not be adequate, in and of itself,

to support a conviction; it is sufficient to meet the requirements of the rule if

it fairly and legitimately tends to connect the defendant with the commission

of the crime charged. It is not necessary that the corroboration extend to every

part of the accomplice’s evidence. The corroboration need not be conclusive,

but it is sufficient if this evidence, of itself, tends to connect the defendant

with the commission of the offense, although the evidence is slight and

entitled, when standing alone, to but little consideration.”

-21-

State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994) (quoting State v. Gaylor, 862 S.W.2d

546, 552 (Tenn. Crim. App. 1992)). Whether sufficient corroboration exists is for the jury

to determine. State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001).

As evidence of corroboration, Thelmisha testified that, when she arrived home the

night of the offenses, there was blood inside the living room and she was asked to go buy

bleach. After dropping off the bleach, she saw the defendant driving Perry’s tan Cadillac

and noticed that there “was something big on the back seat [of the Cadillac] and it was like

a lot of stuff on top of it.” Thelmisha had a brief conversation with the defendant in which

she told the defendant what Mary had told her about what had just happened, and the

defendant told Thelmisha that he had “messed up.” The defendant later told her that he and

Perry had “got[ten] into a fight” and that he had taken an object off the wall “and clocked

[Perry] up side the head.” Christopher See, Thelmisha’s boyfriend at the time of the

offenses, testified that he took Thelmisha to buy bleach. After dropping off the bleach at the

house, he saw the defendant driving a Cadillac. See and Thelmisha both testified that they

drove to Memphis the next day to pick up Mary and the defendant. The defendant was at

a gas station in a white Excursion. Forensic testing confirmed the presence of both victims’

and the defendant’s blood at the scene. Forensic testing also revealed that blood had been

cleaned up in the living room and kitchen of the residence. This evidence fairly and

legitimately connects the defendant with the commission of the crimes; thus, any error in the

court’s instructions was harmless.

III. Sufficiency of the Evidence

The defendant challenges the sufficiency of the convicting evidence. He argues, with

respect to all of his convictions, that Mary Thompson lacked credibility. With respect to the

first degree murder conviction, the defendant argues that the State presented no evidence of

premeditation. With respect to the second degree murder conviction, the defendant argues

that no witness saw him attack Manning and that he did not know her or have reason to kill

her.

When the sufficiency of the convicting evidence is challenged, the relevant question

of the reviewing court is “whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn.

R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury shall

be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt

beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State

v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992).

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All questions involving the credibility of witnesses, the weight and value to be given

the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754

S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the

trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in

favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our

supreme court stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and

the jury see the witnesses face to face, hear their testimony and observe their

demeanor on the stand. Thus the trial judge and jury are the primary

instrumentality of justice to determine the weight and credibility to be given

to the testimony of witnesses. In the trial forum alone is there human

atmosphere and the totality of the evidence cannot be reproduced with a

written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212

Tenn. 464, 370 S.W.2d 523 (1963)).

“A jury conviction removes the presumption of innocence with which a defendant is

initially cloaked and replaces it with one of guilt, so that on appeal a convicted defendant has

the burden of demonstrating that the evidence is insufficient.” State v. Tuggle, 639 S.W.2d

913, 914 (Tenn. 1982).

First degree murder is “[a] premeditated and intentional killing of another.” Tenn.

Code Ann. § 39-13-202(a)(1) (2006). “Premeditation” is defined in our criminal code as

an act done after the exercise of reflection and judgment. “Premeditation”

means that the intent to kill must have been formed prior to the act itself. It is

not necessary that the purpose to kill pre-exist in the mind of the accused for

any definite period of time. 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. § 39-13-202(d).

Whether premeditation exists in any particular case is a question of fact for the jury

to determine based upon a consideration of all the evidence, including the circumstantial

evidence surrounding the crime. See State v. Suttles, 30 S.W.3d 252, 261 (Tenn. 2000);

State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997); State v. Pike, 978 S.W.2d 904, 914

-23-

(Tenn. 1998). Facts from which the jury may infer premeditation include the defendant’s

declaration of an intent to kill the victim; the use of a deadly weapon upon an unarmed

victim; the establishment of a motive for the killing; the particular cruelty of the killing; the

infliction of multiple wounds; the defendant’s procurement of a weapon, preparations to

conceal the crime, and destruction or secretion of evidence of the killing; and the defendant’s

calmness immediately after the killing. State v. Jackson, 173 S.W.3d 401, 409 (Tenn. 2005);

State v. Thacker, 164 S.W.3d 208, 222 (Tenn. 2005); State v. Leach, 148 S.W.3d 42, 54

(Tenn. 2004); State v. Nichols, 24 S.W.3d 297, 302 (Tenn. 2000); State v. Bland, 958 S.W.2d

651, 660 (Tenn. 1997).

Second degree murder is defined as “[a] knowing killing of another.” Tenn. Code

Ann. § 39-13-210(a)(1) (2006). “A person acts knowingly with respect to a result of the

person’s conduct when the person is aware that the conduct is reasonably certain to cause

the result.” Id. § 39-11-302(b). “Second degree murder is a result of conduct offense and

accordingly, the nature of the conduct that causes death or the manner in which one is killed

is inconsequential under the second degree murder statute.” State v. Brown, 311 S.W.3d

422, 431-32 (Tenn. 2010) (internal quotations omitted). Whether the defendant

“knowingly” killed the victim is a question of fact for the jury. See State v. Inlow, 52

S.W.3d 101, 104-05 (Tenn. Crim. App. 2000). The jury may infer intent from the character

of the offense and from all the facts and circumstances surrounding the offense. See id. at

105 (citing State v. Holland, 860 S.W.2d 53, 59 (Tenn. Crim. App. 1993)). If a defendant

acts intentionally, meaning he acted with a conscious objective or desire to cause the death

of the victim, then the requirement of “knowingly” is met. Tenn. Code Ann. §

39-11-301(a)(2).

Tampering with the evidence is proscribed as follows:

(a) It is unlawful for any person, knowing that an investigation or

official proceeding is pending or in progress, to:

(1) Alter, destroy, or conceal any record, document or thing with intent

to impair its verity, legibility, or availability as evidence in the investigation

or official proceeding[.]

Id. § 39-16-503(a)(1).

In the light most favorable to the State, the proof shows that the defendant was aware

that his girlfriend, Mary Thompson, was in a relationship of some type with Bobby Perry.

On the night of the incident, Perry arrived at Mary’s house to take her to watch him and

Manning have sex. Perry was attacked by the defendant soon after he walked inside the

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house to check on Manning, who had gone into the house to use the bathroom but had not

emerged. Mary was waiting outside in Perry’s car but, when she heard loud thumping

sounds, went inside to discover the defendant struggling on top of Perry. When Perry asked

for help and the defendant asked for a nearby knife, Mary kicked the knife toward Perry’s

leg and ran. Mary later discovered Manning’s dead body lying in her blood-covered

bathroom.

After the killings, the defendant concealed the dead bodies in Perry’s Cadillac and

directed the cleaning of the blood from the house. He then had Mary lead the way to

Mississippi in another of Perry’s vehicles, a Ford Excursion, while he followed in Perry’s

Cadillac. Once in Mississippi, the defendant had Mary purchase a shovel and then left her

at an abandoned building. When he returned, the backseat of the Cadillac, that previously

had “something big on the back seat [with] a lot of stuff on top of it,” was empty. The

defendant set the Cadillac on fire after an unsuccessful attempt to dispose of it by driving

it into a lake. The defendant and Mary went to the home of one of the defendant’s relatives

and waited until dark before eventually being picked up by Mary’s sister in Memphis and

abandoning Perry’s Excursion at a gas station.

Shortly after the killings, the defendant asked Thelmisha if Mary had told her what

had happened, but he did not respond when Thelmisha relayed what Mary had told her. The

defendant only told Thelmisha that he had “messed up.” The defendant later told Thelmisha

that he had hit Perry on the head with an object taken from the wall. The defendant told

Mary that he had killed Perry “for us” and because “he had to.” Mary believed that Manning

was killed “because she was there.”

The autopsy of Bobby Perry showed that Perry suffered a closed head injury, caused

by blunt force trauma, that would have been fatal. He also received fifty stab wounds and

nineteen slash wounds, some of which were “consistent with defensive posturing injuries.”

Six of the stab wounds to Perry’s sides, back, and abdomen were lethal wounds. The

autopsy of Andreca Manning showed that she suffered thirteen stab wounds, including three

lethal ones to her chest. She also suffered nine slash wounds, “two of which were lethal on

the front surface of the neck and a total of 6 slash wounds involving the digits of the left

hand . . . consistent with defensive posture injuries.” She died from a combination of stab

and slash wounds to the neck and chest. Manning would have become unconscious in less

than a minute from her injuries and would have died in five minutes or less.

The above evidence was abundantly sufficient to establish that the defendant’s killing

of Perry was premeditated and intentional. The evidence indicates that the defendant hit

Perry on the head with a heavy object when he entered the house and then stabbed and

slashed him repeatedly with a knife. The defendant told Mary that he killed Perry “for us.”

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The jury could infer that the killing was premeditated based on the number of wounds

inflicted on Perry, the defendant’s preparations to conceal the crime, and the defendant’s

destruction and secretion of evidence. In addition, even though there was testimony that

Perry was briefly able to obtain a knife and cut the defendant’s finger, that happened after

Perry was already on the floor bleeding heavily. Thus, the defendant attacked an effectively

unarmed victim.

With respect to the killing of Manning, the defendant argues that no witness saw him

attack her and that he did not know her or have reason to kill her. However, the evidence

showed that the defendant was the only other person in the house with Manning after Mary

left Manning in the bathroom and indicates that the defendant killed her to remove a witness

to his premeditated killing of Perry. Given the multiple stab and slash wounds to Manning’s

neck and chest, the jury certainly could have concluded that the defendant knowingly killed

her.

There was also considerable evidence that the defendant tampered with the evidence.

He cleaned the blood from the scene, removed and disposed of the dead bodies in an out-of-

state location, and set one of Perry’s cars on fire and abandoned the other at a gas station,

after an unsuccessful attempt to sell both cars to an acquaintance. The crux of the

defendant’s complaint regarding the tampering with the evidence conviction, and side

argument regarding the other convictions, is that the State’s witness, Mary Thompson, lacked

credibility. However, credibility of the witnesses is a jury determination, and there was

evidence to corroborate Mary’s account of the defendant’s actions. We conclude that the

evidence was sufficient to support the jury’s findings that the defendant committed the first

degree premeditated murder of Perry, second degree murder of Manning, and tampered with

the evidence.

IV. Sentencing

The trial court conducted a sentencing hearing, at which the State introduced a copy

of the presentence report with the attached victim impact statements. Loleta Middleton, the

defendant’s first cousin, testified on the defendant’s behalf. Middleton said that she was

present for the entire trial. She expressed the love she and her family had for the defendant

and also expressed sympathy for the families of the victims. After hearing the arguments

from counsel, the trial court sentenced the defendant to a mandatory life sentence on his first

degree murder conviction, twenty-five years on his second degree murder conviction, and

six years on his tampering with the evidence conviction. The court ordered that the twenty-

five-year sentence run consecutively to the life sentence and the six-year sentence run

concurrently.

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On appeal, the defendant challenges the trial court’s imposition of a partial

consecutive sentence, arguing that, because he received an automatic life sentence for the

first degree murder conviction, “[t]he trial court’s adding of twenty-five years to an already

lengthy sentence will not effectively serve the ends of justice.” When an accused challenges

the length and manner of service of a sentence, it is the duty of this court to conduct a de

novo review on the record “with a presumption that the determinations made by the court

from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d) (2006). This

presumption is “conditioned upon the affirmative showing in the record that the trial court

considered the sentencing principles and all relevant facts and circumstances.” State v.

Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The presumption does not apply to the legal

conclusions reached by the trial court in sentencing the accused or to the determinations

made by the trial court which are predicated upon uncontroverted facts. State v. Butler, 900

S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn.

Crim. App. 1994); State v. Bonestel, 871 S.W.2d 163, 166 (Tenn. Crim. App. 1993),

overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000).

In conducting a de novo review of a sentence, this court must consider (a) any

evidence received at the trial and/or sentencing hearing, (b) the presentence report, (c) the

principles of sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e)

the nature and characteristics of the offense, (f) any mitigating or enhancement factors, (g)

any statistical information provided by the administrative office of the courts as to Tennessee

sentencing practices for similar offenses, (h) any statements made by the accused in his own

behalf, and (i) the accused’s potential or lack of potential for rehabilitation or treatment.

Tenn. Code Ann. §§ 40-35-103, -210 (2006); State v. Taylor, 63 S.W.3d 400, 411 (Tenn.

Crim. App. 2001). The party challenging the sentence imposed by the trial court has the

burden of establishing that the sentence is erroneous. Tenn. Code Ann. § 40-35-401 (2006),

Sentencing Commission Cmts.; Ashby, 823 S.W.2d at 169.

Tennessee Code Annotated section 40-35-115(b) provides that it is within the trial

court’s discretion to impose consecutive sentencing if it finds by a preponderance of the

evidence that any one of a number of criteria applies, including that “[t]he defendant is a

dangerous offender whose behavior indicates little or no regard for human life, and no

hesitation about committing a crime in which the risk to human life is high.” Tenn. Code

Ann. § 40-35-115(b)(2), (4) (2006). When a trial court bases consecutive sentencing upon

its classification of the defendant as a dangerous offender, it is required to make further

findings that the aggregate length of the defendant’s sentence reasonably relates to the

severity of his offenses and is necessary to protect the public from further criminal conduct

of the defendant. State v. Lane, 3 S.W.3d 456, 460-61 (Tenn. 1999); State v. Wilkerson,

905 S.W.2d 933, 937-38 (Tenn. 1995). The trial court must “specify the reasons” behind

its imposition of a consecutive sentence. See Tenn. R. Crim. P. 32(c)(1). The criteria listed

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in section 40-35-115(b) are stated in the alternative; therefore, only one need exist to support

the appropriateness of consecutive sentencing.

In making its decision, the trial court found that the defendant was a dangerous

offender whose behavior indicated little or no regard for human life and who had no

hesitation committing a crime when the risk to human life was high. The court also found

that the circumstances surrounding the commission of the offenses were “particularly

aggravated” and that “confinement for an extended period of time [wa]s necessary to protect

society from [the] defendant’s unwillingness to lead a productive life and also the

defendant’s resort to criminal activity in furtherance of antisocial life-style.” The court

noted that “in this case the commission[] of these two murders was particularly brutal.

Horrendous murders.” The court then summarized the medical examiner’s testimony

regarding the severity of the injuries suffered by both victims.

The court found that an extended period of incarceration was necessary to protect

society. The court noted that the presentence report reflected that the defendant was charged

with two counts of first degree murder in Mississippi in 2001 at the age of seventeen and

that he had pled guilty to the lesser offense of accessory after the fact to capital murder,

receiving two consecutive five-year sentences. Thus, “[i]n less than a seven year period of

time, [the defendant was] involved to some extent in four murders of four different

individuals. Now, that’s not even considering the fact that the majority of that seven year

period of time . . . he was incarcerated . . . serving a ten year sentence.”

The court lastly found that “the aggregate length of the sentences . . . reasonably

relates to the offenses for which the defendant stands convicted,” observing that “there was

really no motive to kill Ms. Andreca Manning. . . . [S]he just happened to be at the wrong

place at the wrong time . . . . [She was] the one person that could perhaps identify him as the

perpetrator.” The court noted that concurrent sentences would “mean[] that [the defendant]

would go unpunished for the death of Ms. Manning.”

As carefully set out above, the trial court thoroughly considered the evidence and

the required sentencing considerations. The record abundantly supports that the defendant

is a dangerous offender whose behavior indicates little or no regard for human life, and no

hesitation about committing a crime in which the risk to human life is high, and that the

aggregate length of the defendant’s sentence reasonably relates to the severity of his offenses

and is necessary to protect the public from further criminal conduct of the defendant.

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the judgments of the

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trial court.

_________________________________

ALAN E. GLENN, JUDGE

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