State of Tennessee v. Devin Banks

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

April 10, 2007 Session

STATE OF TENNESSEE v. DEVIN BANKS

Direct Appeal from the Criminal Court for Shelby County

No. 03-01956 Joseph B. Dailey, Judge

No. W2005-02213-CCA-R3-DD - Filed July 6, 2007

A Shelby County jury found the Appellant, Devin Banks, guilty of the first degree premeditated

murder of Kadhem Al-Maily and the Class A felonies of criminal attempt to commit first degree

murder and especially aggravated robbery of Hussain Atilebawi. Following the penalty phase

hearing, the jury found the presence of two statutory aggravating circumstances and imposed the

sentence of death. In a separate sentencing hearing, the trial court sentenced Banks to twenty-five

years for each of the Class A felonies and ordered them to be served consecutively to one another

and to the sentence of death. Banks now seeks review by this court of both his convictions and

resulting sentences, presenting the following issues for review: (1) whether the evidence is sufficient

to sustain his convictions; (2) whether the trial court erred in admitting a photograph of the surviving

victim; (3) whether the trial court erred in admitting Banks’ statements absent a ruling on the motion

to suppress; (4) whether the trial court erred in admitting hearsay statements made by the victim; (5)

whether the trial court failed to properly certify the Arabic translator; (6) whether the trial court

failed to properly instruct the jury as to lesser included offenses; (7) whether the indictment failed

to charge a capital offense; (8) whether the victim impact jury instruction was coercive; (9) whether

the closing argument by the prosecutor was improper; (10) whether the sentences for the non-capital

offenses are excessive; (11) whether Tennessee’s death penalty statutes are constitutional; and (12)

whether the death sentence in this case is disproportionate to death sentences in other cases.

Following review, we affirm Banks’ convictions for first degree murder, criminal attempt to commit

first degree murder, and especially aggravated robbery. His sentences for the Class A felony

convictions are also affirmed. We further conclude that the evidence does not support application

of the (i)(6) statutory aggravating circumstance. Nonetheless, we conclude that the error is harmless,

and the sentence of death is affirmed.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and

ALAN E. GLENN , JJ., joined.

-1-

Robert Jones, Shelby County Public Defender; Phyllis Aluko and Tony Brayton, Assistant Public

Defenders (on appeal); Kathy Kent and Latonya Burrow, Assistant Public Defenders (at trial),

Memphis, Tennessee, for the Appellant, Devin Banks.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael Moore, Solicitor General; Clarence

Lutz, Assistant Attorney General; William L. Gibbons, District Attorney General, Stacy McEndree,

Assistant District Attorney General, and Karen Cook, Assistant District Attorney General, for the

Appellee, State of Tennessee.

OPINION

Factual Background

I. Guilt Phase Evidence

In September 2002, Hussain Atilebawi, who emigrated to the United States in 1997,

resided at 1191 North Graham in Memphis. Atilebawi owned a mechanic shop, worked at a

grocery store, and sold cars. On September 16, 2002, Atilebawi was at his home watching

Arabic satellite television with a friend, Kadhem Al-Maily, who was commonly referred to as

“Uncle.” At approximately 2:00 a.m., an individual known to Atilebawi as “Boo” visited his

home and asked to use the telephone. “Boo” went outside with the phone, and Atilebawi

followed. When Atilebawi approached “Boo,” he was shot multiple times, including two shots

to the head. “Boo” was later identified as the Appellant, whom Atilebawi had previously hired to

perform various jobs.

Following the shooting, Atilebawi was unable to move, and he watched the Appellant

enter the house, where $6,500 in cash was on the table. While outside, Atilebawi heard two

gunshots fired inside the house. Shortly thereafter, the Appellant left in one of Atilebawi’s

vehicles, a red Jeep Cherokee, and another person left in “Uncle’s” Chevrolet Caprice. As the

Appellant was leaving, Atilebawi observed the cash in the Appellant’s hand. After the

Appellant left, Atilebawi managed to re-enter his house and call for help.

Memphis Police Officer Steven Jones responded to the call at 1191 North Graham Street.

Upon arrival, Officer Jones discovered Atilebawi, still alive, in the den with multiple gunshot

wounds. Jones was able to speak with Atilebawi, whom he described as being in a “dazed,

confused state.” Jones further noted that Atilebawi had a “[gunshot wound] to the shoulder, one

to the leg, and also had a laceration, what appeared to be a laceration on his arm and a severe

head injury.” He also discovered Al-Maily in the bedroom with a fatal gunshot wound to the

head. Jones further observed blood “all over the walls . . . looked like it had . . . hand prints and

different stuff like that. . . .”

Atilebawi informed Officer Jones that “a person that he knew as Boo had asked to use

his phone.” He further explained:

-2-

As [Boo] was talking on the phone he was acting very suspicious. And at that

time [Boo] walked out. [Atilebawi] felt a very sharp pain to his head and to his

shoulder and heard a couple pops and [Boo] ran back inside the house.

....

. . . They were outside talking because [Boo] walked back outside with the phone.

. . . He said that some of it happened outside and some of it happened inside. . . .

Atilebawi was transported to The Regional Medical Center at Memphis, where Sergeant Mark

Miller was able to speak with him. At this time, Atilebawi was able to identify his assailant as a

black male known to him as “Bull” or “Boo.” Atilebawi told Miller that “Boo” had knocked on

his door and asked to use the telephone. According to Atilebawi, “Boo” proceeded to use the

telephone and, after handing the telephone back to Atilebawi, shot him multiple times.

While at the scene, Officer Jones observed that several vehicles were missing from the

driveway. Officer Patricia Turnmire also responded to the scene, and she discovered numerous

items on which blood splatters were observed, including a telephone receiver, a cut-up shirt, and

an envelope. Sergeant James Fitzpatrick responded to the scene and was designated scene

coordinator. Sergeant Fitzpatrick observed blood in the driveway prior to entering the house. He

also noted that the bedroom in which the body of Al-Maily was found was ransacked and that the

condition of this room was “out of the ordinary” compared to the remainder of the house, which

was neatly kept.

Later that morning, at approximately 9:30 a.m., Sergeant Miller observed a red Jeep

Cherokee which matched the description and tag number of Atilebawi’s vehicle. Officer Jones,

along with Sergeant Miler and two other officers, stopped the vehicle. The driver of the vehicle

identified himself as Devin Banks, and he was placed under arrest at that time. Officers

discovered $1253 in cash on the Appellant’s person.

Sergeant Miller, along with Lieutenant Michael Williams, interviewed the Appellant.

Sergeant Miller advised the Appellant of his rights, and the Appellant signed the Advice of

Rights form acknowledging that he understood his rights. The Appellant also consented to the

search of a 1993 Ford Explorer. During the interview process, the Appellant indicated that he

was aware of the death of Al-Maily and the shooting of Atilebawi, describing his relationship

with Atilebawi as “best friends.” The Appellant admitted that he was present during the

commission of the offenses, but he stated that another individual, Brian Winters, had also been

present. The Appellant related that, while at the residence, he used the telephone and later got

into an argument with Atilebawi. The Appellant admitted that he struck Atilebawi three or four

times in the face during the argument, which involved Atilebawi’s alleged molestation of the

Appellant’s girlfriend a year earlier. However, he maintained he was not responsible for either

shooting.

-3-

Brian Winters was interviewed by police on September 17, 2002. During the interview,

he maintained that he was at his home on Buchanan the entire night of the crime, and he provided

the names of other persons who were supposedly at the house with him.

On September 17, 2002, Sergeant Fitzpatrick conducted a second interview of the

Appellant. The Appellant again indicated that he understood his rights and agreed to provide a

statement to police. In his second statement, the Appellant admitted that his prior statement was

not entirely truthful. Specifically, the Appellant now stated that he, not Brian Winters, was the

person responsible for the shootings of Al-Maily and Atilebawi. He added that he used “a small

black automatic weapon a .22 or a .25” belonging to Michael Hilliard. According to the

Appellant, he had obtained the gun from Hilliard on Sunday evening, September 15th. The

Appellant explained that the shootings were “[t]o get revenge on [Atilebawi] because he cheated

me out of a large sum of money and molested my four-month pregnant fiancée.” He added that

Michael Hilliard knew of the Appellant’s plans and that they had talked about disposing of

Atilebawi’s body in the Wolf River.1

During this second interview, the Appellant further explained that he did not expect Al-

Maily to be at Atilebawi’s residence and, further, that he did not intend to shoot Atilebawi. The

Appellant related the events preceding the shooting as follows:

[Atilebawi] kept saying that I was a no good – that I was no good and [a] bad

father to my son. I pulled the pistol from my right pocket and I closed my eyes

and I fired one round off. [Atilebawi] went to reach at me to grab me and I fired

two more and ran inside the house. And Uncle stood by the door and let me in.

By the time Mike was coming around the corner, Uncle handed me money and

asked me what was going on. I made Uncle go [to] the bedroom and stay. Mike

comes in and we started searching the house for the money. Mike grabbed keys

from the living room . . . coffee table to the Jeep and the Caprice. I seen speakers

and clothes and put them in the Jeep. Uncle was laying on the floor face down

and I covered up Uncle with a brown blanket, pointed the gun to the floor, closed

my eyes and fired one more shot and ran out of the house. I got in the red Jeep

and Mike got in the Caprice and we left. . . .

The Appellant stated that, when he left, Atilebawi was still in the driveway. The Appellant

added that he knew Atilebawi was alive because Atilebawi was looking at him, repeating the

Appellant’s name.

Memphis Police Officer Eric Hutchison later located “Uncle’s” 1990 Caprice Classic at

the Tupelo Manor Apartments in the area of Meagher and Jackson. Three vehicles were

1

Co-defendant Michael Hilliard was jointly charged with the Appellant in a five-count indictment for the murder of

Kahdem Al-Maily and the attempted first degree murder of Hussain Atilebawi. However, Hilliard’s case was severed

from the Appellant’s case prior to the start of the trial.

-4-

ultimately seized and towed by the Memphis Police Department during the investigation: a

Chevrolet Caprice, a red Grand Jeep Cherokee, and a white Ford Explorer. Officer Kevin

Shaver, along with Sergeant Fitzgerald, processed the vehicles. Upon inspection of the Ford

Explorer, Officer Shaver discovered a small revolver, a .22 or .25 caliber, located in the console

area. When discovered, the weapon was not loaded.

The nineteen-year-old Appellant was a friend of Sherry Tomason’s children. On

September 15, 2002, Ms. Tomason was sitting on her front porch when her son John arrived

home at approximately 11:00 to 11:15 p.m. with the Appellant in a white SUV, which had a flat

tire. John informed Ms. Tomason that they had already changed one flat tire on the vehicle

earlier that evening. Ms. Tomason permitted the Appellant to park the vehicle in the yard, and

she asked him if he needed a ride, as it was so late. The Appellant responded that he did not

need a ride because he was going to meet his brother at the church. The Appellant added that he

and his brother were going to see the man that he had bought the car from in order to get another

one. Ms. Tomason later saw the Appellant and his brother walk by her house and again asked the

men if they needed a ride. They responded that they did not and informed her that “the guy they

bought the car from lived just around the corner.” Ms. Tomason next saw the Appellant around

7:15 a.m. the following morning driving a red Jeep Cherokee.

In September 2002, Lonnell Smith was employed as the manager of Maco Tire and Auto

Care in Memphis. On September 16, 2002, a customer, between eighteen and twenty years old,

came into the store to purchase tires for a Jeep Cherokee, which Smith described as a red Jeep

Laredo. Smith stated that nothing was wrong with the tires on the Jeep, but, nonetheless, the

customer stated that he was interested in purchasing new tires and new rims for the vehicle.

While at the store, the customer purchased a set of tires and rims for $1,500.00, with payment in

cash, “reeling off hundred dollar bills.” As he was placing the old tires and rims in the back of

the vehicle, Smith observed “a lot of clothes and hats” in the car. The customer explained that

“he sold clothes and that he just came back from St. Louis selling clothes.” Smith later identified

the Appellant as the customer who purchased the rims and tires on September 16, 2002.

Dr. Shelly Timmons, a neurosurgeon whose primary practice is at The Regional Medical

Center at Memphis, treated Atilebawi during his post-operative treatment following the shooting.

Atilebawi suffered “two injuries that were gunshot rounds inflicted.” “One was to the right

temporal region . . . [a]nd one was to the left occipital. . . .” The injury to the right temporal

region required surgery as “[i]t had penetrated through the scalp and the skull and there was some

bone and bullet fragments within in the brain.” Atilebawi also had “a partial lobectomy, which is

removal of the temporal lobe, which is part of the brain that had to be taken out that was

damaged.” Dr. Timmons related that part of the frontal lobe also had to be removed. As a result

his injuries, Atilebawi was hospitalized for one month. He no longer resides at 1191 North

Graham, and he is no longer able to work.

Dr. O’Brian Cleary Smith performed the autopsy of Al-Maily on September 16, 2002.

Dr. Smith concluded that Al-Maily died as a result of a near gunshot wound to the head. The

-5-

bullet entered his head behind the right ear about four and one-half inches below the top of his

head. There were also powder burns present on the scalp. “The bullet proceeded through the

scalp, through the skull to impact the front portion of the skull and then ricocheted from the front

portion on the right side of the head, it ricocheted over to the left portion of the brain in the front

. . . and that was the lethal injury.” According to Smith, Al-Maily also sustained other injuries to

his head, which were inflicted prior to his death.

Following trial, the jury returned verdicts finding the Appellant guilty of first degree

premeditated murder, first degree felony murder, criminal attempt to commit first degree murder,

and especially aggravated robbery. The trial court subsequently merged the convictions for

premeditated murder and felony murder into one judgment of conviction for first degree

premeditated murder.

II. Proof at Penalty Phase

Hussain Atilebawi, the surviving victim of the Appellant’s actions, testified that he had

known the deceased victim, “Uncle,” for a very long time and that the two men were quite close.

Since “Uncle’s” death, Atilebawi “cri[es] everyday,” and he feels like he lost “something big.”

He stated that “Uncle” helped everyone, including his family members in Iraq to whom he sent

money.

Mary Hughes, Atilebawi’s caretaker and girlfriend, testified that she has known

Atilebawi for ten years. She explained that she also knew “Uncle,” who was given the nickname

“[b]ecause he was, like, the Uncle of the whole group. If they needed something, he’ll help

them. He was a real good guy like that. . . .” She further explained that, as Atilebawi had no

family in the United States, “Uncle” had been his family. Ms. Hughes testified that Atilebawi

had first learned that “Uncle” had died when he was in the hospital being treated for his gunshot

wounds and that he was devastated. She stated that Atilebawi keeps a photograph of “Uncle” in

his wallet and cries to himself almost every day.

In mitigation, the Appellant presented several witnesses. The Appellant’s mother,

Margaret Banks, testified that the Appellant was one of ten children, but the children did not

share the same father. She explained, “Kevin, Myron and Tommy has the same father. Devin

has a father. Nicole has a father. Jimmy Lee, the father is dead. Robert has a father. Deangela

and Eva has a father.” Ms. Banks stated that the Appellant was the seventh son and that he was

born on August 2, 1983. While Ms. Banks never married the Appellant’s father, he did,

however, pay child support until the Appellant turned seventeen.

Ms. Banks stated that she was currently confined in the Tennessee Department of

Correction for a parole violation, and she admitted that she had previously been incarcerated on

other occasions, explaining “[m]ost of my time I spent in jail or either in halfway houses.” Ms.

Banks has a criminal history going back to 1985, and she stated that she was incarcerated in

1985, in 1990, from 1997 until 2000, and in 2005. During the periods of her incarceration, she

-6-

relied upon the church to raise the Appellant. She further explained that, during the periods

when she was not incarcerated, she and her children “moved around a lot.” Ms. Banks stated

that, although she was frequently incarcerated, she retained custody of all children with the

exception of Jimmy Lee, who was raised by the mother of a “son that I was with at the time.”

However, she further explained that she had lost custody of two of her daughters, Deangela and

Eva, when she was in correctional custody and that Kevin was taken by DHS, but she did not

lose custody of him.

Regarding the Appellant’s education, Ms. Banks testified that he attended at least eight

different schools. The longest time he was at one school was two years, and he never graduated

from high school. Ms. Banks stated that, as a child, the Appellant enjoyed country music and

cooking. The Appellant also enjoyed writing poetry, and he liked his pets. Ms. Banks testified

that the Appellant “went to church whenever church was opened.” She described the Appellant

as a “loner,” explaining that older children “used to beat on him and talk crazy to him” because

he was smaller. Ms. Banks further admitted several incidents in which the Appellant was in

trouble as a juvenile. Specifically, the Appellant was in juvenile court in May 1996, on a charge

of theft of property, and in September 1996, on a charge of theft of a motor vehicle.

Ms. Banks stated that her mother, Eva Hill, died in 1997. According to Banks, her

mother was the one responsible for keeping the family together, and, when she died, Ms. Banks

“got lost within [her]self.” The Appellant was also deeply affected by the passing of his

grandmother.

Ms. Banks testified that the Appellant had been employed at a McDonald’s restaurant and

that he also worked for a carpenter. The Appellant also had a job welding, but he had injured his

eyes. Ms. Banks further testified that the Appellant has been HIV-positive since he was sixteen

years old.

Ms. Banks stated that the Appellant was never a “problem child.” She related that she

has a “close” relationship with the Appellant, describing their relationship, at times, as more

friends than mother-son. Ms. Banks pleaded for the jury to spare his life and not impose the

death penalty, and she stated that should a sentence less than death be imposed, she would not

abandon the Appellant and would keep in contact with him.

Kiley Shay, who had known the Appellant for about eight years, testified that she

attended church with the Appellant at Leewood Baptist Church. Since his arrest, the Appellant

has maintained contact with Ms. Shay and has written her letters. Ms. Shay stated that she

“love[s] [the Appellant] with all [her] heart as a friend,” and she explained that the Appellant had

helped her through the hardest time of her life. She asked the jury to give the Appellant the

chance to live.

-7-

Thomas Fitzpatrick also attended church with the Appellant. He and the Appellant

participated in church-related functions together, and Fitzpatrick considers himself to be a friend

of the Appellant’s. He asked that the Appellant not be sentenced to death.

Debra Shay, the mother of Kiley Shay, testified that she had known the Appellant since

1997. As did her daughter, Ms. Shay first met the Appellant at Leewood Baptist Church, which

no other member of the Appellant’s family attended. Ms. Shay testified that the Appellant called

her “mom,” and she identified various drawings of the Appellant’s that he intended to have

tattooed on his person. She described the Appellant as “sweet and kind” and stated that he “just

wanted somebody to love him.” Ms. Shay specifically stated that the Appellant “wouldn’t hurt a

fly.” She also testified that she would continue to have contact with the Appellant. She

explained that the Appellant had “[e]verything . . . stacked against him.” Despite the Appellant’s

numerous infractions of the law, Ms. Shay still felt the Appellant was a good person.

The Appellant’s half sister, Denise Johnson, explained that she and the Appellant had

different fathers. Ms. Johnson testified that, when their mother was incarcerated, their

grandmother, Eva Hill, was responsible for their care. Ms. Johnson confirmed accounts of the

Appellant’s participation in church activities, his fondness of dogs, and his work history. She

further confirmed that the Appellant learned that he was HIV-positive when he was sixteen years

old and that he had a hard time coping with this diagnosis and had attempted suicide on two

occasions. Ms. Johnson also testified that the Appellant had previously dated Sondra Renee

Thompson.

Ms. Johnson further testified that the Appellant was a good person and that they were

close, and she stated that she would not abandon the Appellant if he was sentenced to life

imprisonment. She explained that the Appellant was a “very, very loving person” and that, if he

was sentenced to death, it would “hurt.” She further related that the Appellant had lived with her

for a short time in 2002, and explained that, due to their mother’s absence, she often had to

assume the role of mother.

The Appellant’s brother, Robert Hill, also testified and explained that he was fifteen years

older than the Appellant and that he had been incarcerated from 1992 to 2000. Hill explained

that he was raised by his grandmother and that he had assumed his grandfather Hill’s last name.

Hill confirmed that the Appellant was HIV-positive, and he described the Appellant as “a

peaceful, calm kid.” He recalled that the Appellant liked to draw and that he was active in the

church. Hill also pleaded with the jury that they not sentence his brother to death. He explained

that the members of his family were often separated from one another, and, in this regard, Hill

stated that the Appellant needed “more love,” “more attention,” and “an unbroken home.”

Four deputy jailers from the Shelby County jail testified that the Appellant was not a

problem inmate and that he was a kind individual. These officers all stated that, although the

Appellant had been written-up on two jail infractions, their opinion of the Appellant was not

changed.

-8-

Commander Roy L. Rogers of the Shelby County Sheriff’s Department testified that he is

the program manager for inmates housed at 201 Poplar and also at the Jail East facility.

Available programs supervised by Commander Rogers include educational and religious

programs. Commander Rogers is also the recreational manager and the volunteer coordinator.

He explained that participation in the programs is entirely voluntarily on behalf of the inmates.

Commander Rogers stated that the Appellant had completed the “Stop the Violence” program,

the anger management program, the driving under the influence of alcohol program, the Keeping

It Real program, the Alcohol and Drugs Anonymous program, and the moral recognition

program. The Appellant also completed Bible correspondence courses. Additionally, in

conjunction with Tennessee State University, the Appellant completed courses in starting your

own business and financial planning.

Commander Rogers further testified that, during his incarceration at the Shelby County

Jail, the Appellant received two write-ups, one in January 2004, and another in September 2004.

He described one infraction as major and the other as medium. The January 2004 incident

involved a verbal altercation between the Appellant and another inmate, but no physical violence

was involved. The second incident involved the Appellant’s refusal of a staff order.

Commander Rogers stated, however, that the fact that the Appellant had received only two write-

ups in two years of incarceration was rare.

In rebuttal, the State presented the testimony of Sondra Thompson, the Appellant’s

former girlfriend, who began dating the Appellant in November 2000 and ended their

relationship in December 2001. She explained that she had to end the relationship because she

“couldn’t deal with the abuse, the verbal abuse, the physical abuse, I couldn’t deal with it

anymore.”

Ms. Thompson learned of the Appellant’s medical condition through one of the

Appellant’s ex-girlfriends. The Appellant himself denied being HIV-positive, only confirming to

Thompson that he had a blood disease. In fact, the Appellant only verified the true status of his

disease when Ms. Thompson took him to St. Jude to get his medication. She stated that at no

time during their relationship was the Appellant hospitalized or unable to work due to his being

HIV-positive. Ms. Thompson further related that the Appellant would not regularly take his

medication, only taking it when he got to the point that it was needed.

Ms. Thompson testified that the Appellant did not act like the same person around her,

stating that he acted like a totally different person around his friends and other people. On

October 13, 2001, Ms. Thompson called the police because the Appellant had grabbed her and

punched her in the eye. Ms. Thompson had to call the police again on December 28, 2001, after

the Appellant had slapped her and grabbed her throat. Ms. Thompson reported yet another

incident, which occurred when she was eight months pregnant. During that incident, in which

she and the Appellant had gotten into an argument, the Appellant held a gun to her stomach and

then to himself.

-9-

Ms. Thompson stated that she was sexually molested by the victim Atilebawi during an

incident which occurred in September 2001 at Atilebawi’s home. She stated that the incident

involved her waking up with her shorts cut. However, Ms. Thompson explained that she never

saw Atilebawi do anything to her, nor did she recall Atilebawi ever touching her sexually. She

further stated that the Appellant was also in the room at the time of the incident. The police were

never contacted, and Ms. Thompson recalled that the Appellant did not seem surprised or upset

over Atilebawi’s conduct.

Following the proof, the trial court instructed the jury regarding the statutory aggravating

and mitigating factors as follows:

Tennessee law provides that no sentence of death or sentence of imprisonment for

life without the possibility of parole shall be imposed by a jury, but upon

unanimous finding that the State has proven beyond a reasonable doubt the

existence of one or more of the statutory aggravating circumstances, which in this

case shall be limited to the following:

One, the murder was committed for the purpose of avoiding, interfering with or

preventing a lawful arrest or prosecution of the defendant or another;

Two, the murder was knowingly committed, solicited, directed, or aided by the

defendant while the defendant had a substantial role in committing or attempting

to commit or was fleeing after having a substantial role in committing or

attempting to commit any robbery.

....

Members of the jury, I have read to you the aggravating circumstances which the

law requires you to consider if you find proven beyond a reasonable doubt. You

shall not consider any other facts or circumstances as an aggravated circumstance

in deciding whether the death penalty, or imprisonment for life without the

possibility of parole, would be appropriate punishment in this case.

Mitigating circumstances. Tennessee law provides that in arriving at the

punishment the jury shall consider as previously indicated, any mitigating

circumstances raised by the evidence, which shall include, but are not limited to

the following: The [Appellant] . . . has no significant history of prior criminal

activity. Convictions for the crimes of aggravated assault, aggravated burglary,

domestic violence assault, and attempted aggravated burglary are not aggravating

circumstances to be considered in determining the penalty but . . . convictions of

these crimes may be considered in determining whether or not the [Appellant] has

a significant history of prior criminal activity.

-10-

Two, the youth of the [Appellant] at the time of the crime.

Three, the [Appellant] was an accomplice in the murder committed by another

person and the [Appellant]’s conduct was relatively minor.

Four, the [Appellant] is HIV positive and as a result of his illness, the [Appellant]

has attempted to take his own life.

Five, the [Appellant] has held several jobs in spite of his illness.

Six, the [Appellant] transferred from school to school and was unable to maintain

friendships established at school and did not complete high school.

Seven, the [Appellant] was one of ten children and he received only limited

support from his mother and father.

Eight, the [Appellant]’s family moved around from place [to place] and were

never really together. Additionally, some of the children were removed from the

home.

Nine, the [Appellant]’s two younger sisters were raped.

Ten, [the Appellant]’s mother is currently incarcerated and has been incarcerated

for the majority of the [Appellant]’s life. In addition, the [Appellant]’s brother

Robert Hill was incarcerated during a majority of the [Appellant]’s life.

Eleven, the [Appellant] . . . was the youngest of seven brothers and the brothers

beat the [Appellant] and picked on him to the point that others had to intervene.

Twelve, despite the lack of family support, the [Appellant] was an active member

of Leewood Church and participated in the youth activities.

Thirteen, the [Appellant] cared for his pets, tried to improve his domestic skills by

learning to cook and has a talent for drawing.

Fourteen, the [Appellant] has been a good inmate.

Fifteen, while incarcerated the [Appellant] has completed numerous programs

aimed at rehabilitation.

Sixteen, the [Appellant] has touched the lives of others in a positive way.

-11-

Seventeen, both the [Appellant]’s family and friends from church will continue to

keep in contact with the [Appellant] and support him while he is incarcerated.

And eighteen, any other mitigating factor which is raised by the evidence

produced either by the prosecution or the defense at either the guilt or the

sentencing hearing. That is, you shall consider any aspect of the [Appellant]’s

character, or record or any aspect of the circumstances of the offense favorable to

the [Appellant] which is supported by the evidence.

The trial court further instructed the jury that, should they find that at least one statutory

aggravating circumstance had been proven beyond a reasonable doubt and that that circumstance

had been proven by the State to outweigh any mitigating circumstances beyond a reasonable

doubt, the sentence shall be death. The trial court also provided instructions as to how the jury

was to reduce their verdict to writing.

Court was adjourned for the day, and the jury was to begin deliberations the next morning

at 9:00 a.m. At 11:06 a.m., the following morning, the jury returned with its verdict, finding that

the State had proven beyond a reasonable doubt the presence of both the (i)(6) and the (i)(7)

aggravating circumstances. The jury further determined that these factors outweighed any

mitigating circumstances and, accordingly, imposed the sentence of death.

Analysis

I. Guilt Phase Issues

a. Sufficiency of the Evidence

The Appellant challenges the sufficiency of the convicting evidence to support his

convictions for first degree premeditated murder, first degree felony murder, criminal attempt to

commit first degree murder, and especially aggravated robbery. Specifically, he asserts that the

“dearth of evidence presented at trial that would establish [his] mens rea would prevent a rational

trier of fact from finding him guilty beyond a reasonable doubt of all charges.” In support of his

argument, the Appellant relies upon what he deems the only proof of premeditation, his own

statements. Specifically, he contends that he was not even aware that Al-Maily was at

Atilebawi’s residence. Moreover, he argues that the evidence suggests that he acted in the heat

of passion during an argument with Atilebawi concerning the sexual assault of the Appellant’s

former fiancée and the swindling of a large sum of money from the Appellant.

When a challenge is made on appeal to the sufficiency of the convicting evidence, this

court is guided by certain well-established principles. First, a jury conviction removes the

presumption of innocence with which a defendant is 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. Rice, 184 S.W.3d 646, 661 (Tenn. 2006); State v. Tuggle, 639 S.W.2d 913,

-12-

914 (Tenn. 1982). In determining the sufficiency of the evidence, this court does not reweigh or

reevaluate the evidence. Rice, 184 S.W.3d at 662; State v. Cabbage, 571 S.W.2d 832, 835

(Tenn. 1978). Likewise, it is not the duty of this court to revisit questions of witness credibility

on appeal, that function being within the province of the trier of fact. See generally State v.

Adkins, 786 S.W.2d 642, 646 (Tenn. 1990); State v. Burlison, 868 S.W.2d 713, 718-19 (Tenn.

Crim. App. 1993). Instead, the defendant must establish that the evidence presented at trial was

so deficient that no reasonable trier of fact could have found the essential elements of the offense

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);

State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994), cert. denied, 513 U.S. 1086, 115 S. Ct. 743

(1995); Tenn. R. App. P. 13(e). Moreover, the State is entitled to the strongest legitimate view of

the evidence and all reasonable inferences which may be drawn therefrom. State v. Harris, 839

S.W.2d 54, 75 (Tenn. 1992), cert. denied, 507 U.S. 954, 113 S. Ct. 1368 (1993). In State v.

Matthews, 805 S.W.2d 776, 779-80 (Tenn. Crim. App. 1990), perm. app. denied, (Tenn. 1990),

this court held these rules applicable to findings of guilt predicated upon direct evidence,

circumstantial evidence, or a combination of both.

1. First Degree Premeditated Murder

In State v. Jackson, our supreme court held that “the second degree murder presumption

is now obsolete.” 173 S.W.3d 401, 403 (Tenn. 2005). The State is held, at trial, to the burden of

establishing all the elements of the crime beyond a reasonable doubt. First degree premeditated

murder is statutorily defined as “[a] premeditated and intentional killing of another.” T.C.A. §

39-13-202(a)(1) (2003). An act is premeditated if the act is “done after the exercise of reflection

and judgment.” Id. at (d). In other words, the “intent to kill” must have been formed prior to the

act of murder itself. Id. Additionally, it is not necessary that the purpose to kill pre-exist in the

mind of the accused for a definite period of time; however, the trier of fact must be satisfied that

the accused was sufficiently free from excitement and passion as to be capable of premeditation.

Id.

The element of premeditation is a factual question to be determined by the trier of fact

with consideration of all the circumstances surrounding the killing. Jackson, 173 S.W.3d at 408

(citing State v. Davidson, 121 S.W.3d 600, 614 (Tenn. 2003)). Because the trier of fact cannot

speculate as to what was in the killer’s mind, the existence of facts of premeditation must be

determined from the killer’s conduct in light of the surrounding circumstances. Id. (citing State

v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997), cert. denied, 523 U.S. 1083, 118 S. Ct. 1536

(1998)). Our supreme court has identified numerous circumstances that may support a finding of

premeditation, including, but not limited to: declarations by the defendant of the intent to kill,

evidence of procurement of a weapon, the use of a deadly weapon upon an unarmed victim, the

particular cruelty of the killing, the infliction of multiple wounds, preparation before the killing

for concealment of the crime, destruction or secretion of evidence of the murder, and calmness

immediately after the killing. State v. Nichols, 24 S.W.3d 297, 302 (Tenn. 2000). In addition to

these factors, the establishment of the motive for the killing is yet another factor from which the

trier of fact may infer premeditation. State v. Leach, 148 S.W.3d 42, 54 (Tenn. 2004).

-13-

The proof presented in the present case reveals that the Appellant knew Hussain

Atilebawi. In his statement to law enforcement officers, the Appellant stated that, on the night

prior to the shootings, he obtained a weapon and went to Atilebawi’s home to confront him about

money he believed Atilebawi owed him and to question Atilebawi regarding an incident with the

Appellant’s pregnant girlfriend. The Appellant had previously enlisted the aid of Michael

Hilliard to assist in his objectives. Hilliard knew of the Appellant’s plans, and they had

discussed disposing of Atilebawi’s body in the Wolf River.

Arriving at Atilebawi’s residence, the Appellant was surprised to find Al-Maily, but,

nonetheless, the Appellant proceeded with his plan. The Appellant asked to borrow the

telephone and stepped outside the house. Atilebawi followed the Appellant outside, and the

Appellant fired one round from his weapon. Atilebawi attempted to grab the Appellant, and the

Appellant reacted by firing two more rounds. The Appellant then returned to the house leaving

Atilebawi outside. The Appellant took approximately $300 from Al-Maily and ordered him to

go into the bedroom. By this time, the Appellant’s accomplice, Michael Hilliard, had arrived.

The two then ransacked the home in search of valuables. The men took the keys to both Al-

Maily’s Chevrolet Caprice and Atilebawi’s Jeep Cherokee, as well as various other items, such

as speakers and clothes. After loading these items into the Jeep Cherokee, the Appellant returned

to the bedroom and ordered Al-Maily to lie face down on the floor. The Appellant proceeded to

cover Al-Maily with a blanket, and he fired one shot into Al-Maily’s head, killing him. The

Appellant then left the house, disregarded Atilebawi’s pleas for help, and proceeded to go on a

shopping spree. Atilebawi’s testimony and his statements to law enforcement officers shortly

after the incident confirmed that the Appellant was at Atilebawi’s home at the time of the

shootings. The Appellant’s statements to the police are corroborated by Atilebawi’s statements

that the Appellant had asked to use his telephone and that the two of them were outside the

residence when Atilebawi was shot.

Applying the factors identified by our supreme court, we conclude that there are

numerous circumstances from which the jury could have concluded that the murder was

premeditated. For example: (1) the victim was unarmed; (2) the particular cruelty of the killing,

as evidenced by the Appellant ordering the victim to lie face down and, in execution style,

shooting the helpless victim in the head; (3) the Appellant securing a weapon prior to the murder;

and (4) calmness immediately after the killing as shown by the Appellant leaving the crime scene

and proceeding to go on a shopping spree. Viewing the evidence and inferences in the light most

favorable to the State, the evidence is sufficient to support the jury’s finding of premeditation.

Thus, upon review, we conclude that the Appellant’s argument that he lacked the

requisite mental state for premeditated murder is not persuasive. The Appellant’s own statement

confirms that the execution-style murder of Al-Maily was committed without passion and was

completed after the Appellant had removed valuables from the home. Whether premeditation

exists is for the jury to decide. State v. Morris, 24 S.W.3d 788, 796 (Tenn. 2000). Having

reviewed the entire record, we conclude that a jury could have found the essential elements of

-14-

premeditation and intent beyond a reasonable doubt. Thus, the Appellant has not met his burden

of proving the evidence was insufficient to support his conviction for premeditated murder.

2. First Degree Felony Murder

First degree felony murder is “[a] killing of another committed in the perpetration of or

attempt to perpetrate any first degree murder, act of terrorism, arson, rape, robbery, burglary,

theft, kidnapping, aggravated child abuse, aggravated child neglect or aircraft piracy.” T.C.A. §

39-13-202(a)(2). No culpable mental state is required for conviction of felony murder except the

intent to commit the enumerated offenses or acts in subdivision (a)(2). T.C.A. § 39-13-202(b).

Additionally, the death must occur “in the perpetration of” the enumerated felony. State v.

Hinton, 42 S.W.3d 113, 119 (Tenn. Crim. App. 2000) (citations omitted). However, the killing

may precede, coincide with, or follow the felony and still be “in the perpetration of” the felony,

so long as there is a connection in time, place, and continuity of action. State v. Buggs, 995

S.W.2d 102, 106 (Tenn. 1999). If the underlying felony and killing were part of a continuous

transaction with no break in the chain of events and the felon had not reached a place of

temporary safety between the events, felony murder is sufficiently established. State v. Pierce,

23 S.W.3d 289, 294-97 (Tenn. 2000). Proof of the intention to commit the underlying felony,

and at what point it existed, is a question of fact to be decided by the jury after consideration of

all the facts and circumstances. Buggs, 995 S.W.2d at 107.

The Appellant contends that the evidence is insufficient to support a conviction for first

degree felony murder, arguing that there is no proof that he intended to rob Al-Maily. He asserts

that the removal of items from the residence was an afterthought and that he did not even know

that Al-Maily would be at the residence when he arrived. He further alleges that a conviction

may not be solely based upon a defendant’s confession.

The proof at trial revealed that after shooting Atilebawi, the Appellant went back inside

the house and demanded money from Al-Maily and ordered him to go the bedroom. Numerous

items were taken from the home in addition to Atilebawi’s Jeep Cherokee and Al-Maily’s

Chevrolet Caprice. After placing the various items in the Jeep Cherokee, the Appellant returned

to the bedroom and fatally shot Al-Maily. The proof reveals that the Appellant intentionally

deprived both Atilebawi and Al-Maily of their property by means of violence. Accordingly, we

conclude that the proof is sufficient to support the Appellant’s conviction for first degree felony

murder.

3. Criminal Attempt to Commit First Degree Murder

The Appellant additionally challenges his conviction for attempted first degree murder,

contending that the evidence was insufficient to establish the essential element of premeditation.

In order to support a conviction for criminal attempt to commit first degree murder, there must be

evidence of a criminal attempt, which, as relevant to this case, is defined as follows:

-15-

(a) A person commits criminal attempt who, acting with the kind of culpability

otherwise required for the offense:

(2) Acts with intent to cause a result that is an element of the

offense, and believes the conduct will cause the result without

further conduct on the person’s part . . . .

T.C.A. § 39-12-101(a)(2) (2006). Additionally, the proof must establish that the Appellant acted

with premeditation. T.C.A. § 39-13-202(a)(1).

As noted, the Appellant argues that the evidence does not support a finding that he acted

with premeditation. Rather, he alleges that the proof indicates that he only shot Atilebawi after

being provoked and while in a state of passion. Notwithstanding that the Appellant’s own

statements reveal that he went to Atilebawi’s residence to seek revenge, Atilebawi testified that

he was shot from behind, and the medical proof revealed that Atilebawi suffered multiple

gunshot wounds to his head. The Appellant asserts that the allegation that his intention was to

kill Atilebawi is belied by the fact that, despite the request “to finish Atilebawi off,” the

Appellant fled the scene leaving Atilebawi alive. Considered in the light most favorable to the

State, the proof clearly shows that the Appellant shot the unarmed victim multiple times in the

back of the head. The issue of whether the Appellant intended only to inflict serious bodily

injury or death upon his unarmed victim is a determination for the jury. From this proof, a

reasonable juror could have concluded that the Appellant’s actions were intended to result in the

death of Atilebawi.

4. Especially Aggravated Robbery

The Appellant also challenges the sufficiency of the evidence to support his conviction

for the especially aggravated robbery of Hussain Atilebawi. He argues that, because the purpose

of the shooting was not to steal the cars, money, or personal items, there exists no causal link

between the shooting and the theft necessary to constitute especially aggravated robbery.

Robbery is defined as “the intentional or knowing theft of property from the person of

another by violence or putting the person in fear.” T.C.A. § 39-13-401(a) (2006). Especially

aggravated robbery is robbery accomplished with a deadly weapon where the victim suffers

serious bodily injury. T.C.A. § 39-13-403(a)(1), (2) (2006).

The proof at trial revealed that the Appellant, armed with a weapon, arrived at

Atilebawi’s residence in need of a vehicle and intent on resolving some financial and personal

matters with Atilebawi. The proof also establishes that numerous personal items of Atilebawi’s,

including clothing, stereo speakers, money, and his Jeep Cherokee, were taken from his

household in close temporal proximity to the shooting. The proof further reveals that Atilebawi

suffered severe and permanent bodily injury as a result of the robbery. Based on this proof, we

-16-

conclude that a reasonable juror could have found that the State had proven the elements of

especially aggravated robbery beyond a reasonable doubt.

b. Introduction of Photograph of the Victim

During the testimony of Leonard Porter, a criminal investigator for the District Attorney

General’s Office, the prosecutor moved to admit a photograph of Atilebawi’s injuries. The

photograph, taken the week of the trial, depicted the right side of the victim’s head and showed a

large scar beginning at his forehead and continuing to the back of his head. The prosecutor stated

that introduction of the photograph was relevant to “show all of these elements of the criminal

attempt murder in the first degree. . . .” She further explained that no photographs of Atilebawi’s

injuries were taken at either “the crime scene or the hospital because they were trying to save his

life. . . .” The Appellant objected stating that the victim had testified in person and that the

photograph failed to prove any element of the crime. The trial court made the following ruling

regarding the admission of the photograph:

Well, my response to all of what all of you have said would be that as to

relevance, it’s very relevant. I mean, there is no question it was relevant. It shows

the horrific nature of the severe injury that this man sustained, and it tends to

corroborate what he testified to and what the doctor from The Med testified to.

It’s not prejudicial in that it doesn’t show – it’s not gory or bloody, and the jury

saw him when he was in here yesterday and saw essentially the same injury. The

only – I think the only plausible argument against allowing it in would be that it

would be cumulative. The victim was in here yesterday.

But I think that the State’s burden to prove their case, I think gives them the right

to introduce one photograph. They’re not asking to introduce ten or [twenty] but

to introduce one photograph that can be shown to the jury to corroborate the

injuries that were testified to by the victim himself and by the doctor from The

Med . . . [t]o show the injuries in general. To show that this man was severely

injured by the gunshot wounds to the back of the head, that half his head was

blown off to show all of those things of course.

The trial court continued:

. . . It is relevant and it’s not prejudicial. It is perhaps somewhat cumulative but

that – for example, had the State offered it into evidence when this victim was on

the stand, I would have let them introduce it at that time because I think it’s fair to

allow at least one photograph of injuries, even though the person is sitting here

live at this point in time, to document the record, to remind the jury later in the

trial, at closing argument, during deliberations, that this is what this man looks

like so that there is an actual photograph of it.

-17-

Photographs are always by their nature cumulative to some extent. By definition,

a photograph is going to be cumulative of something else. You can always have a

person come in and testify to what a photograph otherwise depicts. . . .

. . . And a photograph will provide [the jury] with that documented evidence that

they can look at of injuries that they saw in person four or five days earlier. . . .

On appeal, the Appellant contends that the trial court erred in permitting the introduction

of the photograph of the surviving victim, arguing that the trial court should have excluded the

photograph because of the inevitable danger of unfair prejudice. Additionally, he asserts that the

photograph exaggerated the victim’s injuries and was irrelevant, as the photograph was taken

years after the incident. Finally, the Appellant contends that, since the jury had already seen

Atilebawi’s injuries during his testimony at trial, the admission of the photograph was

prejudicially cumulative. The State responds that the trial court’s ruling was proper.

Specifically, the State contends that the photograph was relevant to establish the Appellant’s

intent to murder Atilebawi and that it establishes that Atilebawi suffered serious bodily injury.

Both elements are necessary to support convictions of attempted first degree murder and

especially aggravated robbery. See T.C.A. § 39-13-202, -403. The State also contends that the

photograph illustrated the testimony of Dr. Timmons and Atilebawi.

The admission of photographs is generally discretionary with the trial court and, absent an

abuse of that discretion, will not result in the grant of a new trial. State v. Banks, 564 S.W.2d

947, 949 (Tenn. 1978). However, a photograph must be relevant to an issue that the jury must

decide before it may be admitted into evidence. State v. Vann, 976 S.W.2d 93, 102 (Tenn. 1998),

cert. denied, 526 U.S. 1071, 119 S. Ct. 1467 (1999); State v. Braden, 867 S.W.2d 750, 758

(Tenn. Crim. App. 1993); see also Tenn. R. Evid. 401, 402. Evidence that is not relevant to

prove some part of the prosecution’s case should not be admitted solely to inflame the jury and

prejudice the defendant. Additionally, the probative value of the photograph must outweigh any

unfair prejudicial effect that it may have upon the trier of fact. Vann, 976 S.W.2d at 102-03; see

also Tenn. R. Evid. 403 (“[a]lthough relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice”).

While it can be said that photographs of crime victims who suffer serious bodily injury

are prejudicial by their very nature, a prejudicial photograph is not per se excludable. What is

excluded is evidence which is unfairly prejudicial, in other words, evidence which has an undue

tendency to suggest a decision on an improper basis, frequently, though not necessarily, an

emotional one. Banks, 564 S.W.2d at 951.

The trial court determined that the photograph was relevant and not prejudicial. We agree

that the photograph was relevant to supplement the testimony of Dr. Timmons, as well as that of

the victim himself. See State v. Cole, 155 S.W.3d 885, 913 (Tenn. 2005) (Appendix), cert.

denied, ____ U.S. ____, 126 S. Ct. 47 (2005). We also agree that the trial court’s

acknowledgment of the need to preserve a record for the jury is accurate. Additionally, the

photograph in question is not particularly gruesome. Thus, we conclude that the probative value

-18-

of the photograph is not outweighed by its prejudicial effect, and the trial court did not abuse its

discretion in allowing its admission. Further, it does not affirmatively appear that the “admission

of the photograph[] has affected the results of the trial.” See Banks, 564 S.W.2d at 953. The

Appellant is not entitled to relief on this issue.

c. Admission of the Appellant’s Statement

The Appellant next argues that the trial court erred in permitting introduction of

statements made by the Appellant without first ruling on the Appellant’s motion to suppress

those statements. The State responds that the issue is waived because the Appellant failed to

pursue the motion to suppress.

The record before this court reflects that the Appellant filed a motion to suppress his

statements on July 16, 2003, alleging that his statements were involuntarily given as he was

under duress at the time the statements were made. A hearing was conducted on July 25, 2003,

during which time the Appellant requested and was granted a continuance until October 31,

2003. As the State correctly asserts, the record is silent as to whether the Appellant actively

pursued the motion to suppress after this point. The record does indicate that on April 4, 2005,

before voir dire of the jury panel commenced, the Appellant’s counsel made the following

remarks:

Judge, I looked through the court jacket this morning, making sure since I was not

on this case originally or at the time the motions were heard and I believe that all

motions that have been filed have been discussed and ruled upon except for the

608, 609 motion that Your Honor took under advisement. 2

During the State’s case-in-chief, the Appellant’s statements to law enforcement officers were

admitted without any objection by the Appellant. Additionally, the Appellant, in his motion for

new trial, raised the issue of whether the trial court erred in denying the motion to suppress,

supporting the conclusion that the motion was in fact denied.

It is clear from the record before this court that, at the trial level, the Appellant proceeded

under the assumption that the trial court had denied his motion to suppress. The Appellant,

however, now maintains on appeal that he did not abandon the suppression issue. He adds that

the fact that the trial court failed to state its findings on the record violated his constitutional

rights to due process and to a fair jury trial, in addition to violating Tenn. R. Crim. P. 12(e).

From the actions of the parties and the trial court during the trial, including the failure of

the Appellant to object to the introduction of the statements, it appears that all parties believed

that the motion to suppress had been denied. Most notably, the trial court’s admission of the

2

It is undisputed that, during the course of the Appellant’s representation, certain reassignments in the Public Defender’s

Office resulted in Attorney Thackery being relieved from this case. Attorney W hite was appointed in her place. Prior

to trial, Attorney W hite was relieved, resulting in the appointment of Attorney Kent.

-19-

statements during the trial suggests that the trial court was under the assumption that it had

overruled the Appellant’s motion. While the record presently before this court does not contain

an order of the trial court reflecting its ruling upon the motion, we cannot conclude that its

absence is dispositive. It is the burden of the Appellant to prepare a full and complete record for

appellate review. See Tenn. R. App. P. 24(b). Moreover, the record clearly reflects that no

objection was made by the Appellant to the admission of his statements at trial.

Even assuming for argument’s sake that no ruling was ever made by the trial court, it

was the Appellant who failed to obtain a ruling on that motion and failed to object when the

evidence was introduced at trial. Accordingly, we agree with the State that the Appellant has

abandoned the motion by failing to call to the trial court’s attention the lack of a ruling on his

suppression motion and by failing to object to the admission of the statements at trial. See Tenn.

R. App. P. 36(a). If a motion is not acted upon, the litigant should renew it. “He may not lull the

judge into thinking that it has been abandoned and then, after he has lost, pull a rabbit out of his

pocket in the form of a forgotten motion.” United States v. Taglia, 922 F.2d 413, 416-17 (7th

Cir.), cert. denied, 500 U.S. 927, 111 S. Ct. 2040 (1991). As noted, the Appellant failed to renew

his motion or ask for a ruling prior to voir dire. Later, when the State sought introduction of his

statements, the Appellant remained silent and made no objection.

A similar issue was addressed by the Court of Appeals in Grandstaff v. Hawks, 36

S.W.3d 482 (Tenn. Ct. App. 2000). In Grandstaff, the trial court did not unequivocally overrule

a motion in limine. The Court of Appeals determined that the motion in limine should have been

renewed by objection and that the failure to renew the motion in limine had waived the issue. In

reaching this conclusion, the Court of Appeals held:

Objections to the introduction of evidence must be timely and specific. See

Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 702 (Tenn. Ct. App. 1999). An

evidentiary objection will be considered timely either if it is made in a motion in

limine or if it is made at the time the objectionable evidence is about to be

introduced. See Wright v. United Servs. Auto. Ass’n, 789 S.W.2d 911, 914 (Tenn.

Ct. App. 1990). A party who files an unsuccessful motion in limine need not

renew the motion when the evidence is introduced as long as the trial court

“clearly and definitively” overruled the motion in limine when it was made. See

State v. Brobeck, 751 S.W.2d 828, 833-34 (Tenn. 1988); State v. McGhee, 746

S.W.2d 460, 462 (Tenn. 1988); Wright v. United Servs. Auto. Ass’n, 789 S.W.2d

at 914. If, however, the trial court has not “clearly and definitively” acted on the

motion, the moving party must renew the motion contemporaneously with the

introduction of the objectionable evidence. Failure to renew the motion will

preclude the moving party from taking issue on appeal with the admission of the

evidence.

Grandstaff, 36 S.W.3d at 488.

-20-

Tennessee law is well-established that a party who invites or waives error, or who fails to

take reasonable steps to cure an error, is not entitled to relief on appeal. See Tenn. R. App. P.

36(a). Moreover, if waived, this court will not consider the issue on appeal unless it is clear from

the record that plain error was committed.

The motion to suppress filed by the Appellant on July 15, 2003, presented two allegations

in support of his contention that the statements were taken in violation of his constitutional

rights, namely that:

1. The [Appellant] did not freely, knowingly and voluntarily give said statements.

2. The [Appellant] made said statements while under duress.

No additional facts or argument were presented in support of the motion. At the July 25, 2003

motion to suppress hearing, Sergeant Mark Miller testified that the Appellant was advised of his

rights and signed a waiver of rights form. The Appellant informed Sergeant Miller that he had an

eleventh grade education. Sergeant Miller stated that the Appellant understood English and

could read and write. In addition to the written waiver, the Appellant verbally indicated that he

understood and waived his constitutional rights. Sergeant Miller testified that, at no time, did he

threaten, coerce, or make promises to the Appellant.

Sergeant James Fitzpatrick testified that, one day after the Appellant’s initial statement,

the Appellant informed law enforcement officials that he wanted to change some facts related in

his initial statement. Sergeant Fitzpatrick permitted the Appellant to make corrections to the

statement. Sergeant Fitzpatrick observed that the Appellant had no problems communicating and

appeared to be of sound mind. The Appellant never requested an attorney. Sergeant Fitzpatrick

testified that, at no time, did he threaten, coerce, or make promises to the Appellant. He also

recalled that the Appellant was permitted to use the restroom during the interview and that the

Appellant stopped to eat on two occasions.

Inherent in the admissibility of the written statement is that the statement was voluntarily

given by a defendant knowledgeable of his constitutional rights and accompanied by a valid and

knowing waiver of those rights. State v. Berry, 141 S.W.3d 549, 577 (Tenn. 2004) (quoting

Miranda v. Arizona, 384 U.S. 436, 467, 86 S. Ct. 1602, 1624 (1966); State v. Middlebrooks, 840

S.W.2d 317, 326 (Tenn. 1992), cert. dismissed, 510 U.S. 124, 114 S. Ct. 651 (1993)). In

determining the admissibility of a confession, the particular circumstances of each case must be

examined as a whole. Berry, 141 S.W.3d at 577 (citing State v. Smith, 933 S.W.2d 450, 455

(Tenn. 1996)). A defendant’s subjective perception alone is not sufficient to justify a conclusion

of involuntariness in the constitutional sense. Id. (citations omitted). The primary consideration

in determining the admissibility of the evidence is whether the confession is an act of free will.

Id. at 578 (citing State v. Chandler, 547 S.W.2d 918, 920 (Tenn. 1977)). A confession is not

voluntary when “the behavior of the state’s law enforcement officials was such as to overbear”

the will of an accused and “bring about confessions not freely self-determined.” Id. (citing State

v. Kelly, 603 S.W.2d 726, 728 (Tenn. 1980)).

-21-

The testimony revealed that the Appellant’s communication skills appeared adequate and

that he was capable of reading, writing, and comprehension. The Appellant was advised of his

constitutional rights and, without coercion or force, voluntarily waived his rights and provided an

inculpatory statement. Neither officer indicated that the Appellant was under duress at the time

he made his two statements. The officers provided the Appellant with food and restroom breaks

during the interview process, and the Appellant never asked for an attorney. Therefore, we

conclude that the Appellant knowingly waived his Miranda rights and voluntarily provided the

statements to the police. Thus, the Appellant is not entitled to relief on this issue.

d. Introduction of Hearsay Statements of Victim

During the trial, the court, over objection by the Appellant, permitted Officer Steven

Jones to testify as to statements made by Atilebawi concerning the identity of the shooter. The

following colloquy occurred:

Q: Officer Jones, when you asked Mr. Atilebawi what happened, what did he tell

you?

A: He told me that a person that he knew as Boo asked to use his phone. As he

was talking on the phone he was acting very suspicious. And at that time he

walked out. He felt a very sharp pain to his head and to his shoulder and heard a

couple pops and he ran back inside the house.

Q: . . . Who ran back inside the house?

A: The . . . suspect did . . . . They were outside talking because he walked back

outside with the phone. And as they ran back inside the house, he felt another –

he heard another pop and he felt a sharp pain to his shoulder.

Q: Okay. And when you say “he heard the pop,” are you talking about the victim

in this case Mr. Atilebawi?

A: Yes, ma’am.

....

Q: Did you ask Mr. Atilebawi at that time to describe this person named Boo?

A: Yes, ma’am, we did.

Q: What did he tell you?

A: Said it was a male black, late teens, early twenties.

-22-

Q: Did he know another name?

A: No, he actually did not know another name. He said he knew him as Boo

only.

On appeal, the Appellant asserts that these statements were improperly admitted under the

excited utterance exception. The Appellant contends that the hearsay statements made by

Atilebawi do not fall under the excited utterance exception, as Atilebawi did not spontaneously

utter the statements. Rather, the statements were made in response to questioning by Officer

Jones. Additionally, he argues that the “event” had not just occurred, asserting that it appeared

that the statements were not made until at least five hours after the incident. Similarly, the

Appellant contends that the statements do not fall under the dying declaration exception, as

Atilebawi was available for trial and had, in fact, already testified. Moreover, he argues that

there is no indication that the declarant believed that his death was imminent when the statements

were made.

1. Standard of Review

Questions concerning the admissibility of evidence generally rest within the sound

discretion of the trial court. State v. Maclin, 183 S.W.3d 335, 342 (Tenn. 2006). With the

discretion afforded to the trial court, this court will not interfere with the trial court’s ruling

absent a clear abuse appearing on the face of the record. Id. (citations omitted).

Notwithstanding this standard, the question of whether the admission of the hearsay statements

violated a defendant’s rights under the Confrontation Clause is purely a question of law. Id. at

342-43 (citing Lilly v. Virginia, 527 U.S. 116, 125, 119 S. Ct. 1887, 1894 (1999)); see also

Abdur’ Rahman v. Bredesen, 181 S.W.3d 292 (Tenn. 2005) (stating that “[a] constitutional claim

that is resolved after an evidentiary hearing generally presents a mixed question of law and fact”).

The application of the law to the facts found by the trial court is a question of law that this court

reviews de novo. Maclin, 183 S.W.3d at 343 (citing State v. Yeargan, 958 S.W.2d 626, 629

(Tenn. 1997); Beare Co. v. Tenn. Dep’t of Revenue, 858 S.W.2d 906, 907 (Tenn. 1993)).

2. Crawford v. Washington: Confrontation

The Appellant claims that the challenged statements were not admissible under hearsay

exceptions and violated his rights under the Confrontation Clause. The United States Supreme

Court held, in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), that the

Confrontation Clause bars admission of testimonial out-of-court statements unless the witness is

unavailable and the defendant has had a prior opportunity for cross-examination. Thus, even if a

hearsay exception applies to an out-of-court statement, the statement is not admissible if it is

testimonial and the defendant has not been afforded the opportunity to cross-examine the

declarant regarding the statement. Crawford, 541 U.S. at 68; 124 S. Ct. at 1374 (2004). The

Court clarified that the Confrontation Clause “applies to ‘witnesses’ against the accused – in

other words, those who ‘bear testimony.’” Id. at 51, 124 S. Ct. at 1364.

-23-

3. Testimonial v. Non-Testimonial Statements

The initial inquiry focuses on whether the particular statement is testimonial or non-

testimonial in nature. Id. If the statement is non-testimonial in nature, consistent with Ohio v.

Roberts, 448 U.S. 56, 100 S. Ct. 2531 (1980), the court must determine whether the out-of-court

statement bears adequate indicia of reliability, specifically whether it falls within a “firmly rooted

hearsay exception” or bears “particularized guarantees of trustworthiness.” Roberts, 448 U.S. at

66, 100 S. Ct. at 2539. If it is testimonial, the statement is inadmissible unless: (1) the declarant

is unavailable; and (2) the accused had a prior opportunity to cross-examine the declarant.

The Crawford decision did not spell out a comprehensive definition of the word

testimonial. However, the Court did provide that “it applies at a minimum to prior testimony at a

preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These

are the modern practices with closest kinship to the abuses at which the Confrontation Clause

was directed.” Crawford, 541 U.S. at 68, 124 S. Ct. at 1374.

In March of 2006, the United States Supreme Court’s decision in Davis v. Washington,

___ U.S. ___, 126 S. Ct. 2266 (2006), further distinguished between testimonial and non-

testimonial statements in the limited context of police interrogations, with the following

language:

Statements are non-testimonial when made in the course of police interrogation

under circumstances objectively indicating that the primary purpose of the

interrogation is to enable police assistance to meet an ongoing emergency. They

are testimonial when the circumstances objectively indicate that there is no such

ongoing emergency, and that the primary purpose of the interrogation is to

establish or prove past events potentially relevant to later criminal prosecution.

___ U.S. ___, 126 S. Ct. at 2273-74. The Davis Court further explained that, “[i]t is the

testimonial character of the statement that separates it from other hearsay that, while subject to

traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.” Id. at

___, 126 S. Ct. At 2273.

In Maclin, the Tennessee Supreme Court provided the following factors to consider when

deciding whether a particular statement is testimonial:

(1) whether the declarant was a victim or an observer; (2) whether contact was

initiated by the declarant or by law-enforcement officials; (3) the degree of

formality attending the circumstances in which the statement was made; (4)

whether the statement was given in response to questioning, whether the

questioning was structured, and the scope of such questioning; (5) whether the

statement was recorded (either in writing or by electronic means); (6) the

declarant’s purpose in making the statements; (7) the officer’s purpose in speaking

-24-

with the declarant; and (8) whether an objective declarant under the circumstances

would believe that the statements would be used at a trial.

Maclin, 183 S.W.3d at 349. Our supreme court noted that this “list is not exhaustive; other

considerations may also be meaningful depending on the particular facts of the case.” Id. The

Maclin decision also explained that the language of Crawford points to the following objective

standard for determining whether a particular witness’s statement is testimonial: “[W]hether the

statement was made ‘under circumstances which would lead an objective witness reasonably to

believe that the statement would be available for use at a later trial.’” Id. at 349. In other words,

“[t]he primary consideration under such an approach remains whether the declarant was acting as

a ‘witness’-that is, ‘bearing testimony’ against the accused.” Id. at 351. In this regard, our

supreme court adopted the definition of “testimony” articulated by the Supreme Court in

Crawford: “‘[a] solemn declaration or affirmation made for the purpose of establishing or

proving some fact.’” Crawford, 541 U.S. at 51, 124 S. Ct. at 1364 (citations omitted). Crawford

emphasized that the types of statements the Court considered “testimonial” were those formal

types of statements, including those made in a police interrogation, that a reasonable declarant

would expect to be used prosecutorially or at trial. Id. at 51-52, 124 S. Ct. at 1364.

4. Officer Jones’ Testimony

At 6:55 a.m., Officer Jones was the first officer to arrive at the crime scene, but the

shooting had occurred several hours prior to his arrival. No ongoing emergency prevailed at the

time of Officer Jones’ questions to the victim. Atilebawi’s statements were made in response to

questioning by Officer Jones. Like the statements labeled as testimonial by the Davis Court,

Atilebawi’s statements “were neither a cry for help nor the provision of information enabling

officers immediately to end a threatening situation.” See Davis, ___ U.S. ___, 126 S. Ct. at

2279. Officer Jones clearly questioned the victim in order to learn about past conduct and not in

order to address an instantaneous emergency. Thus, it appears that the victim’s statements

offered into evidence through Officer Jones’ testimony were testimonial in nature.

Notwithstanding, under the Crawford definition of testimonial, we are unable to conclude that

the victim, after suffering two gunshot wounds to the head, offered the statements under the

objective belief that they would be prosecutorially used against the Appellant’s at trial.

5. Analysis Under Crawford v. Washington

When the declarant testifies at trial and is available for cross-examination, the

Confrontation Clause places no constraints at all on the use of the declarant’s prior testimonial

statements. Crawford, 541 U.S. at 59 n.9, 124 S. Ct. at 1369 n.9. Crawford only bars the

admission of testimonial statements of a witness who is unavailable to testify at trial and whom

the defendant has had no prior opportunity to cross-examine. In this case, the victim Atilebawi

testified at trial and was subject to cross-examination by the Appellant. Thus, the Sixth

Amendment Confrontation Clause does not bar admission of Officer Jones’ testimony with

regard to Atilebawi’s statements.

-25-

6. Hearsay Exceptions- Excited Utterance

Because the admission and exclusion of evidence falls within the sound discretion of the

trial court, we review the admission of evidence only for abuse of discretion. State v. James, 81

S.W.3d 751, 760 (Tenn. 2002). “An appellate court should find an abuse of discretion when it

appears that the trial court applied an incorrect legal standard, or reached a decision which is

against logic or reasoning that caused an injustice to the party complaining.” Id. (internal

quotations omitted).

Hearsay is defined as “a statement, other than one made by the declarant while testifying

at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R.

Evid. 801(c). In general, hearsay statements are inadmissible. Tenn. R. Evid. 802 (“Hearsay is

not admissible except as provided by these rules or otherwise by law.”). However, the rules of

evidence provide an exception to the hearsay rule allowing hearsay statements to be admissible if

they meet the conditions of an “excited utterance.” Tenn. R. Evid. 803(2). An excited utterance

is a “statement relating to a startling event or condition made while the declarant was under the

stress of excitement caused by the event or condition.” Id. The rationale for admitting an

“excited utterance” is that the perceived event produces nervous excitement, which temporarily

suspends the capacity to reflect, making the fabrication of statements about that event unlikely.

State v. Gordon, 952 S.W.2d 817, 819 (Tenn. 1997) (citations omitted). In addition, a statement

relating to a startling event is typically made while the memory of the circumstance or event is

still fresh, thus creating a more accurate testimonial to the event than would be produced by a

later in-court description of it. Id. at 819-20.

In order to meet the parameters of the “excited utterance” exception: (1) there must be a

startling event or condition that causes the stress of excitement; (2) the statement must relate to

the startling event or condition; and (3) the statement must be made while the declarant was

under the stress of excitement caused by the event or condition. State v. Stout, 46 S.W.3d 689,

699-700 (Tenn. 2001), superseded by statute on other grounds as stated in State v. Odom, 137

S.W.3d 572 (Tenn. 2004); Gordon, 952 S.W.2d at 820. The ultimate issue is whether the

statement is deemed reliable because of its spontaneity and lack of thoughtful reflection and

deliberation.

The Appellant contends that the victim’s statements to Officer Jones do not fall within

the excited utterance exception because they did not occur so close in time to be made while the

declarant, Atilebawi, was under the stress of excitement caused by the event. He also contends

that the statements were not uttered spontaneously but, rather, were made in response to Officer

Jones’ questioning. For these reasons, the Appellant asserts that “the victim did not make the

statement[s] while still under the stress of a startling event.”

The State contends that the excited utterance hearsay exception was met because Officer

Jones observed that Atilebawi was in a “dazed, confused state.” Officer Jones testified that

Atilebawi was in shock and was “very disoriented.” The State also cites the fact that Atilebawi

-26-

sustained two gunshot wounds to his head. Accordingly, the State argues that the Appellant was

still under the stress caused by the shooting and his resulting injuries.

The amount of time that has passed between the event and the statement is not

dispositive. Rather, the issue for consideration is whether the declarant was still under the stress

of excitement caused by the startling event when the statement was made. Other relevant

circumstances to consider include the nature and seriousness of the event or condition; the

appearance, behavior, outlook, and circumstances of the declarant, including such characteristics

as age and physical or mental condition; and the contents of the statement itself, which may

indicate the presence or absence of stress. State v. Smith, 868 S.W.2d 561, 574 (Tenn. 1993).

Thus, contrary to the Appellant’s argument, the lapse of time between the startling event and the

declarant’s statement does not necessarily preclude a finding that the statement was a

spontaneous response to the event or that the declarant’s stress of excitement had not diminished.

See State v. Binion, 947 S.W.2d 867 (Tenn. Crim. App. 1996); see also Stout, 46 S.W.3d at 689

(because the court had considered all the relevant factors, including the time span between the

event and the statement, it was not an abuse of discretion for the trial court to determine that

statements made twelve hours after the event were admissible as excited utterances where the

declarant continued to be under the stress of the event). Here, the trial court properly determined

that Atilebawi was still under the stress or excitement of the shooting.

We next address whether the fact that Atilebawi’s statements were not spontaneous, but

rather were made in response to questioning by Officer Jones, precludes them being excited

utterances. A statement is not automatically precluded from the excited utterance exception

merely because it is made in response to a question. Rather, the pertinent inquiry is whether the

statement was made under the “excitement or stress of the event,” taking into consideration the

fact that the statement was in response to a question. Gordon, 952 S.W.2d at 820-21 (citing State

v. Smith, 857 S.W.2d 1, 9 (Tenn. 1993) (“statements made in response to questions may still be

admissible if the declarant is under the excitement or stress of the event”). In the present case,

Officer Jones was the first officer to arrive at the scene after the victims had been shot. Officer

Jones testified that Atilebawi was “dazed,” “confused,” and “very disoriented” as a result of

receiving two gunshot wounds to the head. When Officer Jones asked Atilebawi who shot him,

Atilebawi identified a young African-American male, known to him as “Boo,” as the shooter.

Further investigation identified the Appellant as “Boo.” We agree with the trial court that this

statement was certainly made under the stress of a startling event, notwithstanding the fact that

police questioning elicited the statement. As such, we conclude that the trial court properly

admitted the victim’s statement as an excited utterance.

7. Harmless Error

Finally, regardless of whether Officer Jones’ testimony fell under the excited utterance

exception to the hearsay rule, the introduction of the statement, even if error, was harmless. The

admission of hearsay is not grounds for reversal where it is merely cumulative of other evidence

admitted. See Tenn. R. Crim. P. 52(a); see also Newcomb v. Kohler Co., ___ S.W.3d ___ (Tenn.

-27-

Ct. App. 2006), perm. app. denied, (Tenn. 2007). Officer Jones’ testimony related the fact that

the victim, Atilebawi, identified the Appellant as the perpetrator. During the trial, Atilebawi

testified and identified the Appellant as the perpetrator. Thus, Officer Jones’ testimony was

merely cumulative of Atilebawi’s testimony at trial. Moreover, the Appellant provided a

statement in which he admitted his actions involving the shooting of the two victims. Clearly,

Officer Jones’ testimony regarding Atilebawi’s statements was merely cumulative evidence. The

Appellant’s convictions were supported by substantial independent evidence of guilt as to satisfy

us that there was no substantial likelihood that the alleged hearsay evidence contributed to the

conviction. Thus, even if error, the trial court’s admission of the hearsay testimony was

harmless.

e. Certification of Arabic Language Interpreter

The trial court appointed an Arabic language interpreter at trial. The Appellant argues

that: (1) there is no indication that the interpreter was registered or certified as a language

interpreter by the Tennessee Administrative Office of the Courts; and (2) the trial court failed to

make the mandated findings under Tenn. R. Sup. Ct. 42, § 3(e) before appointing a non-

credentialed interpreter and failed to summarize efforts made to obtain a certified interpreter and

to determine the capabilities of the non-credentialed interpreter in open court. The Appellant

asserts that these failures violated his federal and state rights to cross-examine the witness, to due

process, and to a fair trial. The State responds that the record reflects that the interpreter is a

state-certified court interpreter. Moreover, the State asserts that the Appellant has waived the

issue by failing to raise any objection to the interpreter’s qualifications at trial or in his motion

for new trial. See Tenn. R. App. P. 3(e), 36(a).

The State is correct that the record reflects that no objection was made by the Appellant

to the qualifications of the interpreter at trial and that the Appellant failed to raise the issue in his

motion for new trial. Thus, the Appellant has waived his right to challenge this issue on appeal.

See State v. Cole, 155 S.W.3d 885, 915 (Tenn. 2005); State v. McKinney, 74 S.W.3d 291, 303

n.5 (Tenn. 2002). Notwithstanding waiver, the record does reflect that the trial court noted that

the interpreter was a state-certified interpreter. Specifically, the following colloquy occurred:

THE COURT: And let me ask a couple of questions of you for the record. Your

name is Mr. Ghanem; correct?

THE INTERPRETER: Yes.

THE COURT: You are certified by the State of Tennessee as a

translator/interpreter for court proceedings; is that correct?

THE INTERPRETER: Yes. Yes, Your Honor.

THE COURT: And specifically in Arabic language?

-28-

THE INTERPRETER: Yes.

THE COURT: And in a variety of dialects of the Arabic language; correct?

THE INTERPRETER: Yes, sir.

THE COURT: Including the Iraqi language and dialect and idioms and related

matters?

THE INTERPRETER: I have record here also in the state of Shelby County of

doing this for over 15 years.

Following this colloquy, Alladin Ghanem was sworn by the court as the Arabic interpreter for

trial.

Section 3, Rule 42 of the Rules of the Tennessee Supreme Court, provides, in relevant

part:

(a) Appointing an interpreter is a matter of judicial discretion. It is the

responsibility of the court to determine whether a participant in a legal proceeding

has a limited ability to understand and communicate in English.

(b) Recognition of the need for an interpreter may arise from a request by a

party or counsel, the court’s own voir dire of a party or witness, or disclosures

made to the court by parties, counsel, court employees or other persons familiar

with the ability of the person to understand and communicate in English.

(c) The court shall appoint an interpreter according to the preference listed

below:

1. State certified court interpreter;

2. State registered court interpreter;

3. Non-credentialed court interpreter.

(d) The court may appoint an interpreter of lesser preference (i.e.,

registered instead of certified or non-credentialed instead of registered) only upon

a finding that diligent, good faith efforts to obtain the certified or registered

interpreter, as the case may be, have been made and none has been found to be

reasonably available. A non-credentialed interpreter may be appointed only after

the court has evaluated the totality of the circumstances including the gravity of

the judicial proceeding and the potential penalty or consequence involved.

-29-

(e) Before appointing a non-credentialed interpreter, the court shall make

the following findings:

(i) that the proposed interpreter appears to have

adequate language skills, knowledge of interpreting

techniques, familiarity with interpreting in a court

setting; and

(ii) that the proposed interpreter has read,

understands, and will abide by the Rules of Ethics

for Spoken Foreign Language Interpreters in

Tennessee Courts.

(f) A summary of the efforts made to obtain a certified or registered

interpreter and to determine the capabilities of the proposed non-credentialed

interpreter shall be made in open court.

(g) The court shall use the services of multiple interpreters where

necessary to aid interpretation of court proceedings.

After review of the voir dire of the proffered interpreter, we conclude that the mandates of Tenn.

R. Sup. Ct. 42 were sufficiently met. By appointing a certified interpreter, the trial court was not

required to comply with the conditions of subsections (e) and (f). The Appellant is not entitled to

relief on this issue.

f. Failure to Properly Instruct on Lesser Included Offenses

Next, the Appellant argues that the trial court erred by failing to charge all lesser included

offenses. Specifically, he asserts that: (1) with regard to his indictment for premeditated first

degree murder, the trial court failed to instruct on the lesser offenses of criminally negligent

homicide, attempted first degree murder, attempted second degree murder, attempted voluntary

manslaughter, and reckless endangerment; (2) as to the charge of felony murder, the trial court

failed to instruct upon the offenses of facilitation to commit second degree murder, voluntary

manslaughter, facilitation of voluntary manslaughter, facilitation of reckless homicide, criminally

negligent homicide, facilitation of criminally negligent homicide, and reckless endangerment; (3)

as to the charge of criminal attempt to commit first degree murder, the trial court failed to

instruct upon the offenses of intentional or knowing aggravated assault, facilitation of aggravated

assault, attempted aggravated assault, assault, and misdemeanor reckless endangerment; and (4)

as to the charge of especially aggravated robbery, the trial court failed to instruct upon the

offenses of attempted especially aggravated robbery, attempted aggravated robbery, attempted

robbery, solicitation to commit any of the above lesser included offenses, theft of property, and

aggravated assault.

-30-

The question of whether a given offense should be submitted to the jury as a lesser

included offense is a mixed question of law and fact. State v. Rush, 50 S.W.3d 424, 427 (Tenn.

2001) (citing State v. Smiley, 38 S.W.3d 521 (Tenn. 2001)). The standard of review for mixed

questions of law and fact is de novo with no presumption of correctness. Id.; see also State v.

Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

“In applying the lesser-included offense doctrine, three questions arise: (1) whether an

offense is a lesser-included offense; (2) whether the evidence supports a lesser-included offense

instruction; and (3) whether an instructional error is harmless.” State v. Allen, 69 S.W.3d 181,

187 (Tenn. 2002). In Burns, our supreme court adopted a modified version of the Model Penal

Code in order to determine what constitutes a lesser included offense, finding that an offense is a

lesser included offense if:

(a) all of its statutory elements are included within the statutory elements of the

offense charged; or

(b) it fails to meet the definition in part (a) only in the respect that it contains a

statutory element establishing:

(1) a different mental state indicating a lesser kind of culpability;

and/or

(2) a less serious harm or risk of harm to the same person, property

or public interest; or

(c) it consists of

(1) facilitation of the offense charged or of an offense that

otherwise meets the definition of lesser-included offense in part (a)

or (b); or

(2) an attempt to commit the offense charged or an offense that

otherwise meets the definition of lesser-included offense in part (a)

or (b); or

(3) solicitation to commit the offense charged or an offense that

otherwise meets the definition of lesser-included offense in part (a)

or (b).

Burns, 6 S.W.3d at 466-67. If an offense is a lesser included offense of the charged offense, the

trial court must then determine whether the record contains any evidence which reasonable minds

could accept as to the lesser included offense and whether the evidence is legally sufficient to

support a conviction of the lesser included offense. T.C.A. § 40-18-110(a) (2006). In making

-31-

these determinations, the trial court must consider the evidence liberally in the light most

favorable to the existence of the lesser included offense without making any judgment on the

credibility of such evidence. Id.

The failure to instruct the jury on lesser included offenses requires a reversal for a new

trial unless a reviewing court determines that the error was harmless beyond a reasonable doubt.

State v. Ely, 48 S.W.3d 710, 727 (Tenn. 2001). In making this determination, the reviewing

court must “conduct a thorough examination of the record, including the evidence presented at

trial, the defendant’s theory of defense, and the verdict returned by the jury.” Allen, 69 S.W.3d at

191.

1. Premeditated First Degree Murder

The Appellant contends that the trial court erred by failing to instruct the jury as to the

lesser offenses of: (1) attempted first degree murder; (2) attempted second degree murder; (3)

attempted voluntary manslaughter; (4) criminally negligent homicide; and (5) reckless

endangerment. The State responds that the Appellant has waived consideration of these offenses,

with the exception of the offenses of criminally negligent homicide and reckless endangerment,

because the Appellant failed to request a written instruction on these offenses and because he

failed to preserve the issue in his motion for new trial. See State v. Page, 184 S.W.3d 223 (Tenn.

2006); Tenn. R. App. P. 3(e).

In the Appellant’s written request for jury instructions on lesser offenses, he specifically

requested that instructions be given on the following lesser offenses of premeditated first degree

murder: facilitation of first degree murder, second degree murder, facilitation of second degree

murder, voluntary manslaughter, facilitation of voluntary manslaughter, reckless homicide,

criminally negligent homicide, and reckless endangerment. During the trial, the trial court made

the following remarks regarding lesser offenses of premeditated first degree murder:

. . . I am planning on charging facilitation of first degree murder, second degree

murder, facilitation of second degree murder, voluntary manslaughter. I hadn’t

planned on charging facilitation to commit voluntary manslaughter because . . .

I’m not sure how you would do that from just an intellectual standpoint. Explain

to me how, given what the definition of voluntary manslaughter is, how you could

facilitate someone else in the commission of a voluntary manslaughter . . . .[3]

....

. . . Then I am going to charge reckless homicide. I hadn’t planned on charging

criminally negligent homicide. . . . I’m still trying to figure out how the proof in

3

The Appellant subsequently withdrew the request for an instruction on facilitation of voluntary manslaughter, noting

that “that’s one I left in [by] accident.”

-32-

this case with this man lying face down . . . and shot in the back of the head within

24 inches, how that can be criminally negligent homicide. . . .

....

. . . But there is nothing in the proof that I can recall that comes close to that type

of factual scenario, nothing in the physical evidence, nothing in either of the

[Appellant’s] two statements if you were to believe – regardless of which one you

were to believe, I just don’t see any facts in this case that would in any way

warrant charging criminally negligent homicide.

....

And so I’m just not going to do it. I just feel that it’s putting something before the

jury for throwing it in front of them when there is – are absolutely no facts

whatsoever under the interpretation of the proof in the light most favorable to the

[Appellant], no facts whatsoever that would warrant . . . giving that charge. . . .

And reckless endangerment as in when somebody doesn’t even die but reckless

endangerment?

a. Waiver of Attempted Homicides

We initially observe that at the time of the Appellant’s trial, absent a written request for

an instruction on lesser included offenses, the failure of the trial court to instruct the jury on any

lesser included offense was not available as a ground for relief either in a motion for new trial or

for plenary review on appeal. T.C.A. § 40-18-110(c); Page, 184 S.W.3d at 230. The Appellant

failed to file a written request for the offenses of attempt to commit first degree murder, attempt

to commit second degree murder, and attempt to commit voluntary manslaughter.

Our supreme court has held that “the waiver of a lesser-included offense for purposes of

plenary appellate review is constitutionally permissible.” Page, 184 S.W.3d at 230; see also

State v. Vasques, ___ S.W.3d ___ (Tenn. 2007); State v. Wilson, 211 S.W.3d 714, 720 (Tenn.

2007). Our supreme court observed that “[a]s a non-structural constitutional error, the omission

of a lesser-included offense instruction is subject to waiver for purposes of plenary appellate

review when the issue is not timely raised and properly preserved.” Page, 184 S.W.3d at 230.

Irrespective of section 40-18-110, a defendant has a constitutional right to a correct and

complete charge of the law to ensure that he receives a fair trial. Wilson, 211 S.W.3d at 720;

State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). The review of the trial court’s failure to

instruct the jury on lesser included offenses, even when not requested in writing, proceeds under

a plain error analysis. Page, 184 S.W.3d at 230-31.

-33-

Rule 52(b) of the Tennessee Rules of Criminal Procedure provides that “plain error” is

“an error which has affected the substantial rights of an accused,” and, when necessary to do

substantial justice, an appellate court may consider such an error “at any time, even though not

raised in the motion for a new trial or assigned as error on appeal.” When determining whether

such plain error review is appropriate, the following factors must be established:

(a) the record must clearly establish what occurred in the trial court;

(b) a clear and unequivocal rule of law must have been breached;

(c) a substantial right of the accused must have been adversely affected;

(d) the accused [must not have waived] the issue for tactical reasons; and

(e) consideration of the error [must be] “necessary to do substantial justice.”

State v. Terry, 118 S.W.3d 355, 360 (Tenn. 2003) (quoting State v. Adkisson, 899 S.W.2d 626,

641-42 (Tenn. Crim. App. 1994)). In addition, “[a]ll five factors must be established by the

record” before an appellate court may “recognize the existence of plain error, and complete

consideration of all the factors is not necessary when it is clear from the record that at least one

of the factors cannot be established.” Id. (citing Smith, 24 S.W.3d at 283).

We hold that the trial court’s failure to submit charges on attempted first degree murder,

attempted second degree murder, and attempted voluntary manslaughter is not plain error. It is

without dispute that the victim, Al-Maily, died as a result of the gunshot wound to the back of his

head. It is also without dispute that either the Appellant or Michael Hilliard shot Al-Maily. The

only issue for the jury to determine was whether the Appellant did or did not shoot and kill Al-

Maily. Based on the proof at trial, no reasonable juror could have concluded that the Appellant

“attempted” any form of homicide, as the act was completed. See generally State v. Wilson, 92

S.W.3d 391, 396 (Tenn. 2002).

b. Criminally Negligent Homicide

The Appellant asserts that criminally negligent homicide is a lesser offense of first degree

premeditated murder. He contends that an instruction of the lesser offense is warranted even if it

is inconsistent with the theory of either the State or the defense. The State concedes that the trial

court should have granted the Appellant’s written request and instructed the jury on criminally

negligent homicide because, under Burns, it is clear that criminally negligent homicide is a lesser

included offense of first degree murder. Burns, 6 S.W.3d at 466-67; see also Ely, 48 S.W.3d at

727; State v. Sims, 45 S.W.3d 1, 21 (Tenn. 2001) (appendix).

Having concluded that the trial court erred in failing to instruct the jury on the lesser

offense of criminally negligent homicide, we must decide if the error was harmless beyond a

-34-

reasonable doubt. Reversal of the Appellant’s conviction is required unless we conclude

“beyond a reasonable doubt that the error did not affect the outcome of the trial.” See Allen, 69

S.W.3d at 189. In Allen, our supreme court stated:

When a lesser-included offense instruction is improperly omitted, we conclude

that the harmless error inquiry is the same as for other constitutional errors:

whether it appears beyond a reasonable doubt that the error did not affect the

outcome of the trial. In making this determination, a reviewing court should

conduct a thorough examination of the record, including the evidence presented at

trial, the defendant’s theory of defense, and the verdict returned by the jury. A

reviewing court may find the error harmless because the jury, by finding the

defendant guilty of the highest offense to the exclusion of the immediately lesser

offense, necessarily rejected all other lesser-included offenses. Harmless error is

not limited, however, to such cases.

Id. at 191 (citations omitted). Additionally, in deciding whether it was harmless beyond a

reasonable doubt not to charge a lesser included offense, the reviewing court must determine

whether a reasonable jury would have convicted the defendant of the lesser included offense

instead of the charged offense. In other words, the reviewing court must determine whether it

appears beyond a reasonable doubt that the trial court’s failure to instruct on the lesser included

offense did not affect the outcome of the trial. State v. Richmond, 90 S.W.3d 648, 662 (Tenn.

2002) (citing Allen, 69 S.W.3d at 191).

In the present case, the Appellant has failed to prove prejudice resulting from the trial

court’s error in not charging criminally negligent homicide, as the jury found the Appellant guilty

of the higher offense to the exclusion of the intervening lessers. See State v. Williams, 977

S.W.2d 101, 105 (Tenn. 1998). Moreover, criminally negligent homicide is defined as

“[c]riminally negligent conduct which results in death.” T.C.A. § 39-13-212(a) (2006). To be

criminally negligent, a defendant must fail to perceive a substantial and unjustifiable risk. T.C.A.

§ 39-11-106(a)(4) (2006). The Appellant placed a gun to the back of the victim’s head and fired.

It is inconceivable that the jury would have convicted the Appellant of criminally negligent

homicide rather than first degree murder. Thus, we conclude that the trial court’s failure to

instruct the jury on criminally negligent homicide was harmless beyond a reasonable doubt.

c. Reckless Endangerment

The Appellant makes no argument regarding the lower court’s failure to instruct the jury

on the offense of reckless endangerment. Accordingly, this issue is waived. See Tenn. Ct. Crim.

App. R. 10(b); Tenn. R. App. P. 27.

2. First Degree Felony Murder

-35-

The Appellant contends that the trial court erred by failing to instruct the jury as to the

lesser offenses of: (1) facilitation of second degree murder; (2) voluntary manslaughter; (3)

facilitation of voluntary manslaughter; (4) facilitation of reckless homicide; (5) criminally

negligent homicide; (6) facilitation of criminally negligent homicide; and (7) reckless

endangerment. Additionally, he asserts that the trial court failed to charge the requisite attempt

offenses. The State responds that the Appellant has waived consideration of these offenses, with

the exception of the offenses of facilitation of second degree murder and criminally negligent

homicide, because the Appellant failed to request a written instruction on these offenses and

because he failed to preserve the issue in his motion for new trial. See Page, 184 S.W.3d at 223;

Tenn. R. App. P. 3(e).

In the Appellant’s written request for jury instructions on lesser offenses, he specifically

requested that instructions be given on the following lesser offenses of first degree felony

murder: facilitation of felony murder, second degree murder, facilitation of second degree

murder, reckless homicide, and criminally negligent homicide. Additionally, during the trial, the

Appellant orally requested an instruction on voluntary manslaughter. The trial court made the

following pronouncements regarding lesser offenses of first degree felony murder:

. . . On the count two . . . the murder perp, facilitation to commit murder perp,

murder second and reckless homicide. I’m not charging criminally negligent for

the same reason that we’ve already discussed.

....

And I’m not charging facilitation to commit murder in the second degree as I am

in the first count because there is some case law that says in a murder perp count,

you don’t do that. . . .

....

You don’t charge voluntary in a murder perp situation either. . . .

....

. . . So I’m charging . . . murder perp, facilitation to commit murder perp, murder

second and reckless are the lesser[s] of count two.

a. Waived Offenses

The Appellant failed to file a written request for the offenses of facilitation of voluntary

manslaughter, facilitation of reckless homicide, facilitation of criminally negligent homicide, and

reckless endangerment. The Appellant also failed to file a request for any attempt offenses.

Accordingly, consideration on appeal of these offenses is waived. The review of the trial court’s

-36-

failure to instruct the jury on lesser included offenses, even when not requested in writing,

proceeds under a plain error analysis. Page, 184 S.W.3d at 230-31. In the instant case, the

Appellant was convicted of first degree murder committed during the perpetration of a robbery.

The victim is deceased; accordingly, we cannot conclude that the failure to instruct on the

inchoate offense of attempt constitutes plain error. Additionally, the jury was instructed as to the

offense of facilitation of felony murder. Clearly, the jury rejected the theory that the Appellant

was merely a facilitator, as well as rejecting lesser forms of homicide. We also cannot conclude

that the trial court’s failure to instruct on facilitation constituted plain error.

b. Facilitation of Second Degree Murder

The Appellant asserts that facilitation of second degree murder is a lesser offense of first

degree felony murder.4 We would agree that facilitation of second degree murder is a lesser

included offense of second degree murder under part (c) of the test set forth by our supreme court

in Burns. See Burns, 6 S.W.3d at 467. Facilitation of a felony is a lesser degree of criminal

responsibility for the conduct of another. Id. at 470. However, facilitation presents a separate

and distinct theory of criminal liability, as opposed to one charged as a principal offender. State

v. Jared Michael Christein, No. E2001-01856-CCA-R3-CD (Tenn. Crim. App., at Knoxville,

Mar. 4, 2003). In the instant case, the jury rejected the charge of second degree murder and

convicted the Appellant of the higher charged offense of felony murder. Thus, the jury found the

Appellant guilty of the higher offense to the exclusion of the intervening lessers. See Williams,

977 S.W.2d at 105-06. Accordingly, we conclude that the trial court’s failure to instruct the jury

on facilitation of second degree murder was harmless beyond a reasonable doubt.

c. Voluntary Manslaughter

The Appellant argues that voluntary manslaughter is a lesser offense of first degree felony

murder.5 The State concedes that this crime is a lesser offense of first degree felony murder and

should have been submitted to the jury but argues that the error is harmless beyond a reasonable

doubt. We agree. When a lesser included offense instruction is improperly omitted, such error

may be deemed harmless if it appears beyond a reasonable doubt that the error did not affect the

outcome of the trial. State v. Richmond, 90 S.W.3d 648, 662 (Tenn. 2002). In making a

harmless error inquiry, a reviewing court does not become a second jury determining whether the

defendant is guilty. Allen, 69 S.W.3d at 191 (citations omitted). Rather, the court asks whether

the record contains evidence that could rationally lead to a contrary finding with respect to the

omitted element. If the answer to that question is “no,” then holding the error harmless does not

“reflect a denigration of the constitutional rights involved.” On the contrary, it “serve[s] a very

useful purpose insofar as [it] block[s] setting aside convictions for small errors or defects that

4

The Appellant fails to make a specific argument regarding the failure to instruct on the offense of facilitation of second

degree murder as a lesser offense of felony murder.

5

The Appellant fails to make a specific argument regarding the failure to instruct on the offense of voluntary

manslaughter, nor does he make a specific argument as to why the omission of said instruction is not harmless.

-37-

have little, if any, likelihood of having changed the result of the trial.” Id. (citing State v.

Ducker, 27 S.W.2d at 899 (quoting Neder v. United States, 527 U.S. 1, 18-19, 119 S. Ct. 1827,

1838-39 (1999) (citations omitted))).

Voluntary manslaughter is the “intentional or knowing killing of another in a state of

passion produced by adequate provocation sufficient to lead a reasonable person to act in an

irrational manner.” T.C.A. § 39-13-211(a) (2006). The Appellant is correct that voluntary

manslaughter is a lesser included offense of felony murder. See generally State v. Marlon

Marktavias Fitzgerald, No. W2001-03096-CCA-R3-CD (Tenn. Crim. App., at Jackson, Feb. 7,

2003), perm. app. denied, (Tenn. July 7, 2003); State v. Alfonzo Williams, W2001-00452-CCA-

R3-CD (Tenn. Crim. App., at Jackson, Mar. 15, 2002), perm. app. denied, (Tenn. Sept. 23, 2002)

(citing State v. Daniel Wade Wilson, No. E2000-01885-CCA-R3-CD (Tenn. Crim. App., at

Knoxville, Aug. 2, 2001), perm. app. denied, (Tenn. Mar. 11, 2002)). The elements which

distinguish voluntary manslaughter from either first or second degree murder are those of

“adequate provocation” and the “state of passion.”

The proof relative to the murder of Kadhem Al-Maily reveals that the Appellant ordered

Al-Maily to the bedroom and, while the victim was laying face down on the floor, covered him

with a blanket and shot him in the head. There is absolutely no evidence in the record to support

an argument that Al-Maily ever “provoked” the Appellant, which is, as noted, an essential

element of the crime of manslaughter. See T.C.A. § 39-13-211(a). Rather, the record establishes

that the murder of Al-Maily was accomplished in the absence of passion or provocation. Indeed,

the Appellant indicated that he was surprised to find Al-Maily at Atilebawi’s residence. In light

of the evidence presented, we are unable to conclude that the jury would have found the

Appellant guilty of voluntary manslaughter had they been so instructed. The trial court’s failure

to instruct the jury on voluntary manslaughter was, thus, harmless beyond a reasonable doubt.

Accordingly, the Appellant is not entitled to relief on this issue.

d. Criminally Negligent Homicide

The Appellant asserts that criminally negligent homicide is a lesser offense of first degree

felony murder.6 He contends that an instruction of the lesser offense is warranted even if it is

inconsistent with the theory of either the State or the defense. The State concedes that the trial

court should have granted the written request and instructed the jury on criminally negligent

homicide, as criminally negligent homicide is a lesser included offense of felony murder under

part (b) of the Burns test. Ely, 48 S.W.3d at 721-22.

Having concluded that the error occurred, we, in turn, must decide if the error was

harmless beyond a reasonable doubt. After review, we conclude that the Appellant has failed to

6

The Appellant fails to make a specific argument regarding the failure to instruct on the offense of criminally negligent

homicide as a lesser offense of felony murder, nor does he make a specific argument as to why the omission of said

instruction is not harmless.

-38-

establish prejudice resulting from the trial court’s error in refusing to charge criminally negligent

homicide because the jury found the Appellant guilty of the higher offense to the exclusion of the

intervening lessers. See Williams, 977 S.W.2d at 105-06. Thus, we conclude that the trial

court’s failure to instruct the jury on criminally negligent homicide was harmless beyond a

reasonable doubt.

3. Attempt to Commit First Degree Murder

The Appellant contends that the trial court erred by failing to instruct the jury as to the

lesser offenses of: (1) intentional aggravated assault; (2) knowing aggravated assault; (3)

facilitation of aggravated assault; (4) attempt to commit aggravated assault; (5) assault; and (6)

reckless endangerment. The Appellant also asserts that facilitation of voluntary manslaughter is

not a lesser offense of criminal attempt to commit first degree premeditated murder.

Accordingly, he contends that the trial court’s oral instruction on facilitation of voluntary

manslaughter was error.

In the Appellant’s written request for jury instructions on lesser offenses, he specifically

requested that instructions be given with regard to the following lesser offenses of attempt to

commit first degree premeditated murder: facilitation of attempted first degree murder,

attempted second degree murder, facilitation of criminal attempt second degree murder,

attempted voluntary manslaughter, facilitation of criminal attempt to commit voluntary

manslaughter, reckless homicide, criminally negligent homicide, facilitation of criminally

negligent homicide, and reckless endangerment. However, during the trial, the Appellant orally

requested to withdraw his request for “reckless, the criminally negligent homicide on this count

since . . . he did not die. This is the attempted.”7 The trial court instructed the jury as to the

lesser offenses of facilitation of attempt to commit first degree murder, attempt to commit second

degree murder, facilitation of second degree murder, attempt to commit voluntary manslaughter,

and facilitation of attempt to commit voluntary manslaughter.

a. Facilitation of Voluntary Manslaughter

The Appellant contends that the trial court erred in its oral instruction to the jury with

regard to the offense of facilitation of voluntary manslaughter. However, the Appellant concedes

that the written instructions given to the jury list the offense as facilitation of attempted voluntary

manslaughter. The Appellant fails to make any argument or request for relief in support of this

alleged error. See Tenn. Ct. Crim. App. R. 10(b). In any event, the erroneous oral jury

instruction was clearly harmless.

A jury charge is prejudicially erroneous if it fails to fairly submit the legal issues or

misleads the jury. Vann, 976 S.W.2d at 101. Contradictory statements in a jury charge are

7

The Appellant also rejected the applicability of an instruction on attempt to commit reckless homicide, stating that “I

don’t think – can you attempt to act recklessly?”

-39-

subject to a harmless error analysis. State v. Dulsworth, 781 S.W.2d 277, 285 (Tenn. Crim. App.

1989). The instruction complained of by the Appellant is as follows:

The third count of this indictment charges that the [Appellant] . . . with the

offense of criminal attempt to wit murder in the first degree. This offense

embraces and includes the lesser offenses of facilitation of a felony to wit criminal

attempt murder in the first degree, criminal attempt murder in the second degree,

facilitation of a felony to wit criminal attempt murder in the second degree,

criminal attempt to wit voluntary manslaughter, facilitation . . . to commit a felony

to wit voluntary manslaughter.

A comparison with the written instruction clearly shows that the failure to include the word

attempt was an oversight in the oral instruction. We cannot conclude that the oversight of the

word attempt in the oral charge constitutes anything but harmless error. Cf. Gacy v. Welborn,

994 F.2d 305, 307-08 (7th Cir.) (affirming denial of habeas petition where correct written

instructions were available to resolve any potential confusion created by misstatement in oral

instructions), cert. denied, 510 U.S. 899, 114 S. Ct. 269 (1993); Wood v. Marshall, 790 F.2d 548,

551 (6th Cir. 1986) (no constitutional error where trial judge gave contradictory oral instructions,

but written instructions correctly stated burdens on insanity defense), cert. denied, 479 U.S.

1036, 107 S. Ct. 889 (1987). The Appellant is not entitled to relief on this issue.

b. Assault Offenses

In the instant case, the Appellant was charged and convicted of criminal attempt to

commit first degree premeditated murder. Aggravated assault is an assault accompanied by

serious bodily injury or the use of a deadly weapon. T.C.A. § 39-13-102(a) (2006). Thus,

aggravated assault and assault are not lesser included offenses of attempted first degree murder

under the Burns test because the statutory elements are different. Burns, 6 S.W.3d at 466-67;

State v. Trusty, 919 S.W.2d 305, 311-12 (Tenn. 1996), overruled on other grounds by State v.

Dominy, 6 S.W.3d 472, 475 (Tenn. 1999); State v. Joshua Lee Williams, No. W2000-01435-

CCA-R3-CD (Tenn. Crim. App., at Jackson, June 27, 2001), perm. app. denied, (Tenn. Oct. 29,

2001); State v. Christopher Todd Brown, No. M1999-00691-CCA-R3-CD (Tenn. Crim. App., at

Nashville, Mar. 9, 2000), perm. app. denied, (Tenn. Sept. 10, 2001). “If a lesser-included

offense is not included in the offense charged, then an instruction should not be given, regardless

of whether the evidence supports it.” Burns, 6 S.W.3d at 466-67. Accordingly, it was not error

to refuse to instruct the jury on aggravated assault and its lesser offenses including facilitation,

attempt, and assault.

c. Reckless Endangerment

The Appellant asserts that the trial court erred in failing to provide the jury with an

instruction on the offense of reckless endangerment. The State concedes that reckless

endangerment is a lesser included offense of attempt to commit first degree premeditated murder.

-40-

See Rush, 50 S.W.3d at 426. The State correctly asserts, however, that any error in failing to

instruct the jury as to reckless endangerment is harmless, as the jury convicted the Appellant of

the higher offense to the exclusion of all the charged lesser included offenses. See Williams, 977

S.W.2d at 105-06.

4. Especially Aggravated Robbery

The Appellant next raises as error the trial court’s failure to instruct the jury as to the

lesser offenses of: (1) attempt to commit especially aggravated robbery; (2) attempt to commit

aggravated robbery; (3) attempt to commit robbery; (4) solicitation to commit especially

aggravated robbery, aggravated robbery, and robbery; (5) theft of property; and (6) aggravated

assault. The Appellant asserts that the trial court must provide an instruction on lesser offenses

supported by the evidence even if such instruction is inconsistent with the theory of the State or

the defense. The State responds that the Appellant has waived consideration of instructions on

solicitation of especially aggravated robbery, solicitation of aggravated robbery, and solicitation

of robbery, because the Appellant failed to request a written instruction on these offenses and

because he failed to preserve the issue in his motion for new trial. See Page, 184 S.W.3d at 223;

Tenn. R. App. P. 3(e). The record reflects, however, that the Appellant made an oral request for

the charge of solicitation.

In the Appellant’s written request for jury instructions on lesser offenses, he specifically

requested that instructions be given on the following lesser offenses of especially aggravated

robbery: facilitation of especially aggravated robbery, attempt to commit especially aggravated

robbery, facilitation of attempt to commit especially aggravated robbery, aggravated robbery,

facilitation of aggravated robbery, attempt to commit aggravated robbery, facilitation of attempt

to commit aggravated robbery, robbery, attempt to commit robbery, facilitation of robbery,

facilitation of attempt to commit robbery, aggravated assault, facilitation of aggravated assault,

attempt to commit aggravated assault, facilitation of attempt to commit aggravated assault,

assault, attempt to commit assault, facilitation of assault, facilitation of attempt to commit

assault, theft of property, attempt to commit theft of property, facilitation of theft of property, and

facilitation of attempt to commit theft of property. The trial court made the following remarks

regarding lesser offenses of especially aggravated robbery: “I’m charging especially aggravated

robbery, aggravated robbery, and facilitation of each of those.” The court rejected the request to

instruct on theft of property or assault. Regarding the request to instruct on attempts of the lesser

offenses, the trial court stated:

. . . I don’t see any basis, factual basis on which to charge attempted especially

aggravated robbery or attempted aggravated robbery. Facilitation I do see a

factual basis . . . .

So facilitation would be appropriate, but the clear and undisputed proof

from start to finish in this case including the statements given by [y]our client that

are in evidence all establish the fact that if there was robbery at all, then it was a

-41-

completed robbery. At a minimum, that red Jeep was stolen and some items out

of the red Jeep . . . . So I don’t see any factual basis at all for charging attempted

robberies. . . .

a. Waived Offenses

The Appellant failed to file a written request for the offenses of solicitation of especially

aggravated robbery, solicitation of aggravated robbery, and solicitation of robbery. Accordingly,

consideration of these offenses is waived on appeal.8 The review of the trial court’s failure to

instruct the jury on lesser included offenses, even when not requested in writing, proceeds under

a plain error analysis. Page, 184 S.W.3d at 230-31.

In the instant case, the Appellant was convicted of the completed offense of especially

aggravated robbery. Solicitation is defined as follows:

Whoever, by means of oral, written or electronic communication, directly or

through another, intentionally commands, requests or hires another to commit a

criminal offense, or attempts to command, request or hire another to commit a

criminal offense, with the intent that the criminal offense be committed, is guilty

of the offense of solicitation.

T.C.A. § 39-12-102(a) (2006). However, part (c) of the Burns test is limited to “‘situations in

which a defendant attempts to commit, or solicits another to commit, either the crime charged or

a lesser-included offense, but no proof exists of the completion of the crime.’” State v. Robinson,

146 S.W.3d 469, 487 (Tenn. 2004) (quoting Ely, 48 S.W.3d at 717). As in these cases, the

evidence in the instant case established either the completed offense or a claim of innocence.

Thus, it was not error for the trial court to decline to instruct the jury on solicitation.

b. Attempt Offenses

The Appellant asserts that the trial court erred by failing to instruct the jury as to the

lesser offenses of attempt to commit especially aggravated robbery, attempt to commit

aggravated robbery, and attempt to commit robbery.9 The State asserts that the trial court

properly denied instruction as to the inchoate attempt offenses. Specifically, the State contends

that the proof established that the crime was complete. The Appellant admitted in his statements

to the police that he took cash, property, and a vehicle from the victim. Accordingly, the State

8

W e additionally note that the Appellant fails to make a specific argument regarding the failure to instruct on the

solicitation offenses as lesser offenses of especially aggravated robbery, nor does he make a specific argument as to why

the omission of said instruction is not harmless.

9

The Appellant fails to make a specific argument regarding the failure to instruct on the attempt offenses as lesser

offenses of especially aggravated robbery, nor does he make a specific argument as to why the omission of said

instruction is not harmless.

-42-

asserts that no reasonable juror could have found that the Appellant attempted to commit any

form of robbery.

Since inchoate offenses such as attempt are considered lesser included offenses of the

crime charged, the attempt crimes relating to the robbery offense are lesser included offenses of

especially aggravated robbery. See Burns, 6 S.W.3d at 466-67; State v. Samuel L. Giddfens, Jr.,

No. M2005-00691-CCA-R3-CD (Tenn. Crim. App., at Jackson, Mar. 13, 2006), perm. app.

denied, (Tenn. Jun. 26, 2006). Thus, the trial court should have instructed the jury as to these

offenses. Notwithstanding, since they jury found the Appellant guilty of the higher offense to the

exclusion of the intervening lessers, including rejecting lesser completed offenses, the trial

court’s failure to instruct the jury on the attempt offenses was harmless beyond a reasonable

doubt. See Williams, 977 S.W.2d at 105-06.

c. Theft of Property

The Appellant argues that theft of property is a lesser offense of especially aggravated

robbery.10 The State concedes that the trial court should have instructed the jury as to the offense

of theft of property.

Theft of property is a lesser included offense of especially aggravated robbery under part

(a) of the Burns test. Bowles, 52 S.W.3d at 79-80 (holding that theft is a lesser included offense

of robbery); State v. Lewis, 36 S.W.3d 88, 99-100 (Tenn. Crim. App. 2000) (stating theft of

property is a Burns part (a) lesser included offense of attempted robbery); State v. Curtis Buford,

No. W2003-00370-CCA-R3-CD (Tenn. Crim. App., at Jackson, Mar. 2, 2004), perm. app.

denied, (Tenn. Sept. 13, 2004) (theft of property is included in the definition of aggravated

robbery and is a lesser included offense). The error in failing to instruct on the offense of theft of

property is harmless, however. Our supreme court has held that when a jury convicts on the

greater offense to the exclusion of the immediately lesser included offense, the error in failing to

instruct will normally be harmless beyond a reasonable doubt. See Williams, 977 S.W.2d at 105-

06. The trial court instructed the jury on the charged offense of especially aggravated robbery

and the immediately lesser included offenses of aggravated robbery and robbery. The jury chose

to convict the Appellant of the greater offense. Therefore, consideration of the trial court’s error

is not necessary to do substantial justice, and the Appellant is not entitled to relief on this issue.

d. Aggravated Assault

The Appellant asserts that aggravated assault is a lesser offense of especially aggravated

robbery,11 and the State concedes that the trial court should have granted the written request and

10

The Appellant fails to make a specific argument regarding the failure to instruct on the offense of theft of property, nor

does he make a specific argument as to why the omission of said instruction is not harmless.

11

The Appellant fails to make a specific argument regarding the failure to instruct on the offense of aggravated assault

as a lesser offense of especially aggravated robbery, nor does he make a specific argument as to why the omission of said

instruction is not harmless.

-43-

instructed the jury on aggravated assault. Aggravated assault is a lesser included offense of

aggravated robbery. State v. Franklin, 130 S.W.3d 789, 798 (Tenn. Crim. App. 2003); State v.

Jason C. Carter, No. M1998-00798-CCA-R3-CD (Tenn. Crim. App., at Nashville, Apr. 27,

2000). Because the evidence was sufficient to warrant an instruction on the greater offense of

especially aggravated robbery, the evidence was necessarily sufficient to warrant an instruction

on the lesser offense of aggravated assault. See Richmond, 90 S.W.3d at 660. Accordingly, the

trial court erred in failing to instruct the jury on the lesser offense of aggravated assault.

Having concluded that the trial court’s failure to instruct the jury on aggravated assault

was error, we must now determine whether the error was harmless beyond a reasonable doubt. In

determining whether it was harmless beyond a reasonable doubt not to charge a lesser offense,

our supreme court has held that:

the reviewing court must determine whether a reasonable jury would have

convicted the defendant of the lesser offense instead of the charged offense. In

other words, the reviewing court must determine whether it appears beyond a

reasonable doubt that the trial court’s failure to instruct on the lesser offense did

not affect the outcome of the trial.

Id. at 662 (citing Allen, 69 S.W.3d at 191). There is no dispute in the proof that the Appellant

removed property belonging to the victim. The jury was instructed on the lesser offenses of

aggravated robbery and robbery but opted to convict the Appellant of the indicted offense of

especially aggravated robbery. Accordingly, we conclude that the trial court’s failure to charge

aggravated assault as a lesser offense was harmless beyond a reasonable doubt. See Williams,

977 S.W.2d at 105-06.

II. Penalty Phase Issues

a. Failure to Charge Aggravating Circumstances in Indictment

The Appellant asserts that the “imposition of the death penalty . . . violated due process of

law because the aggravating circumstances were not set forth in the indictment.” In this regard,

he contends that “[a]ny fact that increases the maximum penalty for a crime must be charged in

an indictment, submitted to a jury, and proven beyond a reasonable doubt in order to satisfy the

5th Amendment’s Due Process Clause and the 6th Amendment’s notice and jury trial

guarantees.” With reliance upon Apprendi v. New Jersey and Ring v. Arizona, the Appellant

submits that he was denied due process of law because the indictment returned by the grand jury

did not include facts that would qualify him for the death penalty. In other words, he maintains

that first degree murder is not a capital offense unless accompanied by aggravating factors. In

order to elevate the crime to capital murder, he alleges that the indictment must include language

of the statutory aggravating circumstance(s).

-44-

The Tennessee Supreme Court has consistently rejected this argument by holding that

aggravating circumstances need not be pled in the indictment. State v. Reid, 164 S.W.3d 286,

312 (2005); Leach, 148 S.W.3d at 59; Berry, 141 S.W.3d at 562; State v. Holton, 126 S.W.3d

845, 863 (Tenn. 2004); State v. Dellinger, 79 S.W.3d 458, 467 (Tenn. 2002). Our supreme court

explained, “[t]he focus in Apprendi, Ring, and Blakely was on the Sixth Amendment right to trial

by jury,” and “the Court expressly declined to impose the Fifth Amendment right to presentment

or grand jury indictment upon the States.” Berry, 141 S.W.3d at 560. The Appellant is not

entitled to relief on this issue.

b. Victim Impact Jury Instruction was Coercive

The Appellant next contends that “[t]he jury instructions given by the trial judge with

respect to the jury’s consideration of victim impact evidence constituted a coercive instruction.”

In instructing the jury, the trial court provided the following instruction as to victim impact

evidence:

The prosecution has introduced what is known as victim impact evidence. This

evidence has been introduced to show the financial, emotional, psychological or

physical effects of the victim’s death on the members of the victim’s immediate

family and close friends. You may consider this evidence in determining an

appropriate punishment.

However, your consideration must be limited to a rational inquiry into the

culpability of the [Appellant], not an emotional response to the evidence. Victim

impact evidence is not the same as an aggravating circumstance. Proof of an

adverse impact on the victim’s family or close friends is not proof of an

aggravating circumstance. Introduction of victim impact evidence in no way

relieves the State of its burden to prove beyond a reasonable doubt to you at least

one aggravating circumstance which has been alleged.

You may consider this victim impact evidence in determining the appropriateness

of the death penalty only if you first find the existence of one or more aggravating

circumstances has been proven beyond a reasonable doubt by evidence

independent from the victim impact evidence and find that the aggravating

circumstance or circumstances found outweigh the finding of one or more

mitigating circumstances beyond a reasonable doubt.

The Appellant, relying upon Johnson v. Hardin, 926 S.W.2d 236, 242 (Tenn. 1996),

asserts that the trial court’s instruction “amounts to an undue intrusion into the exclusive

province of the jury.” He adds that “there is a reasonable probability that the instruction coerced

a finding by the jury that the aggravating circumstances outweighed the mitigating circumstances

because to find otherwise would require the jury to ignore the emotional victim impact evidence

presented by the State.” The Appellant’s reliance upon Johnson is misplaced because in Johnson

-45-

our supreme court addressed the issue of the trial court’s deliverance of a “dynamite charge” to a

deadlocked jury. The instruction in Johnson “raised [to the deadlocked jury] the specter of the

time, effort, and money that a new trial would entail.” Johnson, 926 S.W.2d at 243. The charge

suggested that the jurors had a duty to agree. In this regard, our supreme court held “[n]othing

should be done or said to a juror which can in any manner be taken by that juror to indicate that

he or she should abandon an honestly held conviction in order to reach a verdict so that time and

money will be saved.” Id. (quoting Bass v. Barksdale, 671 S.W.2d 476, 486 (Tenn. Crim. App.

1984). Such a situation is not presently before the court, as the factual circumstances in Johnson

are clearly distinguishable from those in the present case.

In fact, the instruction provided to the jury in the present case was recommended by our

supreme court in State v. Nesbit, 978 S.W.2d 872, 892 (Tenn. 1998), and was again approved in

State v. Reid, 91 S.W.3d 247, 283 (Tenn. 2002). See also State v. Riels, ___ S.W.3d ___ (Tenn.

2007); Reid, 164 S.W.3d at 336-37 (Appendix); Cole, 155 S.W.3d at 914 (approving Nesbit

victim impact instruction). Moreover, in Reid, our supreme court specifically noted that any

contradiction arising between the instruction and the statute inured to the benefit of the defendant

and, thus, should not entitle a defendant to relief. Reid, 91 S.W.3d at 283. Accordingly, the

Appellant is not entitled to relief on this issue.

c. Improper Closing Argument

In his next issue, the Appellant challenges the closing argument made by the prosecution.

Specifically, he argues that: (1) the prosecutor misstated the law regarding mitigating factors; (2)

the prosecutor improperly argued that a sentence short of death would negate the conviction; and

(3) the prosecutor argued facts not in evidence.

In successful claims of prosecutorial misconduct, a defendant must show that the

argument was so inflammatory or the conduct so improper that it affected the verdict to his

detriment. Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965). Tennessee courts “have

traditionally provided counsel with a wide latitude of discretion in the content of their final

argument” and trial judges with “wide discretion in control of the argument.” State v. Zirkle, 910

S.W.2d 874, 888 (Tenn. Crim. App. 1995). A party’s closing argument “must be temperate,

predicated on evidence introduced during the trial, relevant to the issues being tried, and not

otherwise improper under the facts or law.” State v. Middlebrooks, 995 S.W.2d 550, 557 (Tenn.

1999). The five generally recognized areas of prosecutorial misconduct in closing argument

occur when the prosecutor intentionally misstates the evidence or misleads the jury on the

inferences it may draw from the evidence; expresses his or her personal opinion on the evidence

or the defendant’s guilt; uses arguments calculated to inflame the passions or prejudices of the

jury; diverts the jury from its duty to decide the case on the evidence by injecting issues broader

than the guilt or innocence of the accused under the controlling law or by making predictions on

the consequences of the jury’s verdict; or intentionally refers to or argues facts outside the record,

-46-

other than those which are matters of common public knowledge. State v. Goltz, 111 S.W.3d 1,

6 (Tenn. Crim. App. 2003), perm. app. denied, (Tenn. 2003).

For a defendant to be entitled to a new trial on the basis of allegedly improper remarks

during closing arguments, the remarks must be shown to have prejudiced the case by affecting

the jury’s verdict. Middlebrooks, 995 S.W.2d at 559. In determining whether this occurred, we

consider the following factors: (1) the conduct viewed in light of the circumstances and facts in

the case; (2) any curative measures taken by the trial court and the prosecution; (3) the

prosecutor’s intent in making the improper statements; (4) the cumulative effect of the

prosecutor’s statements and other errors in the record; and (5) the relative strength and weakness

of the case. Id. at 560.

1. Misstatements as to the Law Regarding Mitigating Factors

The Appellant asserts that the prosecutor improperly informed the jury that they did not

have to consider mitigating circumstances. He also complains that the prosecutor attempted to

negate the mitigating factor that the Appellant had no significant criminal history by informing

the jury that the Appellant had a juvenile adjudication for theft. Finally, he argues that the

prosecutor improperly used a “slippery slope” argument related to the consideration of mitigating

circumstances. The challenged portion of the argument is as follows:

But the law requires that the Court instruct you and give you every possible,

possible relevant factor, just like it did with the lesser included offenses. So

you’re going to get a whole list of 17 or 18 of them, a whole slew of them. But

the Court is not telling you that any of those are mitigating circumstances. The

Court can’t do that because that’s your job. That’s your function. And you get to

decide whether any of these 17 or 18 decisions are mitigating circumstances. And

after that, you get to decide whether to assess any of them any credibility.

The defense objected, but the trial court declined to give a curative instruction. Notwithstanding,

the trial court instructed the prosecutor to phrase her argument to convey that the circumstances

presented are mitigating circumstances and that the jury could only accept or reject them. The

prosecutor’s subsequent comments complied with the trial court’s directive. The Appellant’s

closing argument further honed the jury’s role regarding mitigating circumstances. We cannot

conclude that the original statement of counsel was so prejudicial as to invalidate the verdict.

The Appellant is not entitled to relief on this issue.

The Appellant also challenges the prosecutor’s attempt to correct her misstatement that

the Appellant had a prior juvenile adjudication for theft of property. While the Appellant

objected to the original misstatement, he did not request a curative instruction. Notwithstanding,

the trial court instructed the prosecutor to explain to the jury that the theft or property conviction

“is deleted.” In complying with the court’s direction, the prosecutor explained:

-47-

I apologize. I misspoke. The theft of property that you heard about was one that

wasn’t sustained or handled non-judicially, which means it didn’t stay on the

defendant’s criminal background.

The Appellant made no further objections to this argument. For this reason, the State asserts that

the Appellant has waived any further challenge to the comment. See Tenn. R. App. P. 36(a). We

agree.

The Appellant next asserts that the prosecutor improperly used a “slippery slope”

argument. Specifically, he challenges the following statement:

And I want you to think, too, when you look at those mitigating circumstances and

when you think about whether or not to give them any weight, I want you to each

ask yourself if I give this one weight, what else do I have to give weight? If I give

weight to the fact that he’s HIV, what else do I give weight to those that have

cancer and other diseases and tumors and high blood pressure? That’s what I

want you to ask yourself.

The State asserts that the Appellant has waived consideration of this issue on appeal by failing to

object to the argument at trial and by failing to raise the issue in his motion for new trial. The

record does reflect that no objection was made to the argument, nor was the issue raised in the

motion for new trial. “It is well settled that without a contemporaneous objection to a

prosecutor’s statements, the error is waived.” State v. Stephenson, 195 S.W.3d 574, 601 (Tenn.

2006) (citations omitted). Accordingly, consideration of the issue by this court is waived. See

Tenn. R. App. P. 3(e); 36(a).

Finally, the Appellant challenges the prosecutor’s comments that application of the

mitigating factors would give the Appellant special treatment. During closing arguments, the

prosecutor commented on all the mitigating circumstances alleged. At the conclusion of this

portion of her closing argument, she stated:

It’s sad but with your everyday common lifetime experiences, you know that it is

common for some kids to pick on others, especially in sibling situations. Does it

set him apart from any other defendant who commits murder? Does it make him

special? Does it make him different? Because a mitigating circumstance, ladies

and gentlemen, is one that sets it apart, something that makes this offense

something that deserves this [Appellant] – this [Appellant] deserved to be treated

differently than everybody else, special consideration.

The Appellant objected, stating that the prosecutor’s comments were geared to saying that the

mitigating circumstances were not mitigating factors. The trial court overruled the objection,

remarking:

-48-

Well, I guess it’s all part of application of the law. And it’s not so much that he’s

going to be given any special treatment. He’s going to be treated like anybody

else under the law and the jury is entitled to consider these things. I understand

your objection. I’ll simply state that you should – since you have your argument

yet to come, that you should respond to it in your argument. That would be a

better course.

During the Appellant’s closing argument, counsel carefully explained to the jury the role and

effect of mitigating circumstances.

Closing arguments must be temperate, must be based upon evidence introduced during

trial, and must be relevant to the issues at trial. State v. Sutton, 562 S.W.2d 820, 823 (Tenn.

1978). The State should refrain from argument designed to inflame or incite the emotions of the

jury. Coker, 911 S.W.2d 357, 368 (Tenn. Crim. App. 1995). Reading the prosecutor’s

statements within the context of her argument as to the mitigating factors, we concur with the

trial court’s finding that the argument was proper. The effect of the prosecutor’s statements went

to the weight that should be given to each mitigating factor.

2. Improper Argument that Sentence Short of Death Would Negate

Conviction

During closing argument, the prosecutor commented:

Now we’re moving into . . . the latter stage or the penalty phase. And it is

considerabl[y] shorter than the first phase or the rest of the trial. But make no

mistake, it is no less important. And in fact, it’s more important because the

wrong punishment negates the proper verdict. And the wrong punishment negates

a guilty verdict.

Defense counsel objected. The trial court sustained the objection and stated that the

comment “perhaps went beyond what is appropriate.” The trial court then offered the following

curative instruction:

Okay. Ladies and gentlemen, let me instruct you that the last comment made by

[the State] is not to be considered, that whatever your decision is ultimately will

be the right decision. And it will not in any way negate the verdict you’ve reached

or the decision you’ve made thus far. All right. You may proceed.

The Appellant asserts that the trial court erred by giving a curative instruction rather than

granting a mistrial. In support of this argument, he contends that an appeal to the jurors that a

sentence less than death would cancel the conviction could not be ignored during deliberations.

The State contends, however, that the issue is waived because the Appellant did not request a

-49-

mistrial and that, in any event, the trial court’s curative instruction was sufficient to safeguard the

Appellant from the comment’s prejudicial effect, if any.

While the Appellant objected after the comments were made, he did not ask the trial court

to declare a mistrial, nor did he raise the issue in his motion for new trial. Under Tenn. R. App.

P. 36(a), this court is not required to grant relief to a party when he or she “failed to take

whatever action was reasonably available to prevent or nullify the harmful effect of an error.”

Tenn. R. App. P. 36(a).

The decision of whether to grant a mistrial is within the sound discretion of the trial court.

State v. Smith, 871 S.W.2d 667, 672 (Tenn. 1994); State v. McKinney, 929 S.W.2d 404, 405

(Tenn. Crim. App. 1996). “Generally, a mistrial will be declared in a criminal case only when

there is a ‘manifest necessity’ requiring such action by the trial judge.” State v. Millbrooks, 819

S.W.2d 441, 443 (Tenn. Crim. App. 1991). In reviewing a trial court’s denial of a motion for

mistrial, this court will not disturb that decision unless there is an abuse of discretion. State v.

Brown, 53 S.W.3d 264, 284 (Tenn. Crim. App. 2000). Moreover, the burden of establishing the

necessity for mistrial lies with the party seeking it. State v. Williams, 929 S.W.2d 385, 388

(Tenn. Crim. App. 1996). No abstract formula should be mechanically applied in making this

determination, and all circumstances should be taken into consideration. State v. Mounce, 859

S.W.2d 319, 322 (Tenn. 1993).

In the present case, we do not find that a manifest necessity existed which required a

mistrial. As noted, in this case, the trial court provided a curative instruction, and jurors are

presumed to follow the instructions given them absent evidence to the contrary. State v.

Jordan, 116 S.W.3d 8, 18 (Tenn. Crim. App. 2003). Moreover, we cannot conclude, after

consideration of the curative instruction issued by the trial court, that the prosecutor’s remarks

were so prejudicial to the Appellant as to invalidate his conviction. See Judge v. State, 539

S.W.2d 340, 343 (Tenn. Crim. App. 1976). The Appellant is not entitled to relief on this issue.

3. Prosecutor Argued Facts not in Evidence

The Appellant also asserts that the prosecutor argued that the victim, Al-Maily, witnessed

the robbery and that he begged for his life, facts not established by the evidence. During closing

argument, the prosecutor stated:

Uncle stood by the door and let me in. The [Appellant] in his second statement

after he has shot Mr. Atilebawi three times and left him outside in a pool of his

own blood enters that house. And when he re-enters that house to get all of the

things that he wants to take away from another person. Uncle let him in. Uncle

was at the front door. And Uncle saw what he did. Uncle saw the gun. And

Uncle begged for his life. And you know that because he handed him

approximately $300. Take my money. Just don’t kill me. 300 bucks.

-50-

The State asserts that the Appellant has waived consideration of this issue by failing to

object to the argument at trial and by failing to raise the issue in his motion for new trial. The

record does reflect that no objection was made to the argument, and the issue was not raised in

the motion for new trial. “It is well settled that without a contemporaneous objection to a

prosecutor’s statements, the error is waived.” Stephenson, 195 S.W.3d at 601 (citations omitted).

Accordingly, consideration of the issue by this court is waived. See Tenn. R. App. P. 3(e), 36(a).

Notwithstanding waiver, we note that the jury was instructed that the arguments of counsel were

not evidence, and the jury is presumed to follow the instructions provided by the trial court.

Reid, 164 S.W.3d at 346 (citing State v. Smith, 893 S.W.2d 908, 914 (Tenn. 1994)). This issue

is without merit.

d. Excessive Sentences for Non-Capital Convictions

The Appellant contests the propriety of the sentences for his convictions of criminal

attempt to commit first degree murder and especially aggravated robbery, both Class A felonies.

For each conviction, the Appellant received a sentence of twenty-five years incarceration in the

Tennessee Department of Correction. The trial court further ordered that the sentences were to

be served consecutively to one another, as well as consecutively to the sentence of death. In

contesting the propriety of his sentences, the Appellant contends that the sentences are in

violation of Blakely v. Washington, are excessive, and that consecutive sentences are not proper.

Effective June 7, 2005, the Tennessee General Assembly, in response to the United States

Supreme Court case of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), amended

Tennessee Code Annotated sections 40-35-102, -210, and -401 to reflect the advisory nature of

enhancement factors. See 2005 Tenn. Pub. Acts ch. 353, §§ 1, 6, 8. The amendment, among

other things, removed the presumptive sentence language from our Sentencing Act and mandated

only that the trial “court shall impose a sentence within the range of punishment. . . .” See

T.C.A. § 40-35-210(c) (Supp. 2005); cf. T.C.A. § 40-35-210(c) (2003). The “Compiler’s Notes”

to this amendment states:

Acts 2005, ch. 353, § 18 provided that the act shall apply to sentencing for

criminal offenses committed on or after June 7, 2005. Offenses committed prior

to June 7, 2005, shall be governed by prior law, which shall apply in all respects.

However, for defendants who are sentenced after June 7, 2005, for offenses

committed on or after July 1, 1982, the defendant may elect to be sentenced under

the provisions of the act by executing a waiver of such defendant’s ex post facto

protections. Upon executing such a waiver, all provisions of the act shall apply to

the defendant.

T.C.A. § 40-35-210 (Supp. 2005), Compilers’s Notes. The transcript of the sentencing hearing

indicates that the Appellant executed such a waiver and expressly stated his desire to proceed

-51-

under the new act.12 Accordingly, the new act governs the Appellant’s sentencing with regard to

the Class A felony convictions.

“When reviewing sentencing issues . . ., the appellate court shall conduct a de novo

review on the record of such issues. Such review shall be conducted with a presumption that the

determinations made by the court from which the appeal is taken are correct.” T.C.A. § 40-35-

401(d) (2006). “However, the presumption of correctness which accompanies the trial court’s

action 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). In conducting our review, we must consider a defendant’s potential for

rehabilitation, the trial and sentencing hearing evidence, the pre-sentence report, the sentencing

principles, sentencing alternative arguments, the nature and character of the offense, the

enhancing and mitigating factors, and a defendant’s statements. T.C.A. §§ 40-35-103(5), -210(b)

(2006); Ashby, 823 S.W.2d at 169. We are to also recognize that the defendant bears “the burden

of demonstrating that the sentence is improper.” Ashby, 823 S.W.2d at 169.

The 2005 amended act requires the judge to consider, but not be bound by, these advisory

guidelines to arrive at an appropriate sentence, which is then subject to appellate review. In

making its sentencing determination, the trial court, at the conclusion of the sentencing hearing,

determines the range of sentence and then determines the specific sentence and the propriety of

sentencing alternatives by considering: (1) the evidence, if any, received at the trial and the

sentencing hearing; (2) the presentence report; (3) the principles of sentencing and arguments as

to sentencing alternatives; (4) the nature and characteristics of the criminal conduct involved; (5)

evidence and information offered by the parties on the enhancement and mitigating factors; (6)

any statistical information provided by the administrative office of the courts as to sentencing

practices for similar o

This text is long and has been trimmed here. Open the source document for the complete record.