State of Tennessee v. Asata Lowe

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

May 23, 2001 Session

STATE OF TENNESSEE v. ASATA LOWE

Direct Appeal from the Circuit Court for Blount County

Nos. C-11329, C-11330 D. Kelly Thomas, Jr., Judge

No. E2000-01591-CCA-R3-CD

September 16, 2002

A Blount County jury convicted the Defendant of two counts of first degree premeditated murder

and imposed concurrent sentences of life imprisonment without the possibility of parole. The jury

also convicted the Defendant of especially aggravated robbery, and the trial court sentenced the

Defendant to twenty-five years incarceration, to be served consecutive to the two sentences for first

degree premeditated murder. The Defendant now appeals, raising the following issues: (1) whether

the trial court properly instructed the jury on all lesser-included offenses raised by the evidence, (2)

whether the trial court erred by refusing to instruct the jury on duress, necessity and accessory after

the fact, (3) whether the trial court erred by allowing into evidence testimony regarding the

Defendant’s pending aggravated assault trial, (4) whether the trial court erred by allowing into

evidence a magazine clip confiscated from the Defendant by police two months before the murders,

(5) whether the trial court erred by refusing to find the sentencing provisions of the Tennessee

homicide laws to be unconstitutional, (6) whether the Defendant’s convictions for especially

aggravated robbery and theft violated his right against double jeopardy, (7) whether the indictment

was constitutionally defective on its face, and (8) whether there was sufficient evidence to convict

the Defendant of the charged offenses. We affirm the judgment of the trial court, but remand for

entry of a corrected judgment form in Count III of indictment number 11329.

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

Remanded

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and

THOMAS T. WOODA LL, J., joined.

F. D. Gibson, Maryville, Tennessee, for the Appellant, Asata Lowe.

Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant Attorney

General; Michael L. Flynn, District Attorney General; Edward P. Bailey, Jr., Assistant District

Attorney General; and Kirk E. Andrews, Assistant District Attorney General, for the Appellee, State

of Tennessee.

OPINION

The Defendant, Asata D. Lowe, was charged in indictment number 11329 with the following

crimes against Charles Hill: first degree premeditated murder, felony murder in the perpetration of

a robbery, especially aggravated robbery, theft of property valued over $1,000, and felony murder

in the perpetration of theft. A Blount County jury found the Defendant guilty of the following

offenses against Charles Hill: first degree premeditated murder, felony murder in the perpetration

of a robbery, and felony murder in the perpetration of a theft. At the close of the State’s proof, the

trial court dismissed the charges of robbery and theft. The trial court merged the two felony murder

convictions into the first degree premeditated murder conviction.

In indictment number 11330, the Defendant was charged with the following crimes against

Sammy Garner: first degree premeditated murder, felony murder in the perpetration of a robbery,

especially aggravated robbery, theft of property valued over $1,000, and felony murder in the

perpetration of theft. A Blount County jury convicted the Defendant of all charges in the second

indictment. The trial court merged the two felony murder convictions into the first degree

premeditated murder conviction and it also merged the theft conviction into the especially aggravated

robbery conviction.

I. FACTS

A. State’s Proof

Officer Robert Hubbard, a member of the Drug Task Force of the Blount County Sheriff’s

Department, testified that on October 16, 1998, he was at Shaggy’s Market, a convenience store on

Aluminum Avenue in Alcoa, Tennessee. According to Hubbard, late that afternoon the door to the

store “opened and a young man fell through the door.” Hubbard testified that the man was “bleeding

from . . . his sides.” Hubbard immediately dialed 911 and, at the same time, walked over to the

victim and “did chest compressions” to keep him breathing. Hubbard testified that the victim was

still alive when the ambulance arrived, but he appeared to be dying. Hubbard recognized the victim

as Charles “Bill” Hill and stated that the victim “frequented” Shaggy’s Market. Hubbard testified

that Stacey’s Place, also known as Stacy’s Bar and Grill, was separated from Shaggy’s Market by

two dumpsters. Hubbard stated that Stacey’s Place was not operated as a full-time business;

however, parties were often held there.

Larry Sankey testified that at around 5:15 or 5:30 p.m. on October 16, 1998, he stopped at

Shaggy’s Market to buy a Coke, and as he started to walk out the door, he heard gunshots. Sankey

recalled that approximately ten seconds later, he saw a man running towards him. According to

Sankey, just as the man “got to the drive . . . it was just like he hit a brick wall . . . his hands went

up.” Sankey could tell that the man had been shot because “the blood just spurted . . . out his side.”

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Sankey testified that the man fell when he reached the side of Sankey’s car in the parking lot,

and less than a minute later, Sankey heard a car pulling out of the driveway to Stacey’s Place.

Sankey described the car as an “older, large” Oldsmobile or Pontiac, which was dark red or wine-

colored. Sankey testified that he was sitting in his car when the wine-colored car pulled away from

Stacey’s Place. Sankey stated that his window was down and that the front windows of the wine-

colored car were also rolled down. Sankey testified that he was able to see two individuals in the

vehicle and he described them both as African-American males. Sankey stated that the driver had

a dark complexion and that the passenger was “light-skinned.” Sankey thought that the driver

appeared to be shorter than the passenger. Sankey was unable to positively identify the Defendant

in court as one of the men in the car.

According to Sankey, the car traveled down Aluminum Avenue, “[g]ot to the stop, took a

left, went up to Hall Road and took a right.” Sankey testified that the route that the vehicle took

leads to Alcoa Highway. Sankey stated that he “went up the street[,] . . . looked both ways, turned,

came back[,] . . . went to where the victim was . . . and waited on the police officers.” Sankey

testified that he did not see anyone else at Stacey’s Place. When police officers arrived, Sankey gave

them a description of the vehicle and the route that it had taken. Sankey stated that the car was

moving “fast” when it pulled out of Stacey’s Place.

Kevin Condee, a deputy sheriff with the Blount County Sheriff’s Department, testified that

on October 16, 1998, he was working as a patrol officer when he responded to a report that a major

crime had occurred on Aluminum Avenue. Condee first went to Shaggy’s Market, where he “saw

a black male subject slumped over in the doorway of the business, with some other people around

him.” Condee testified that the man was “bleeding severely from the front part of his body. There

was just a lot of blood.” Condee stated that the man appeared to be “struggling . . . to breathe,” but

Condee could not tell if the man was conscious. Condee recognized the man as Charles “Bill” Hill.

Condee then spoke with Larry Sankey, who gave him information regarding a car containing

passengers which had left the area of the crime. Condee immediately transmitted this information

on the radio to other officers. Condee described the car as a “maroon or wine-colored Buick, four-

door-type car,” and he announced that the car was traveling on Hall Road towards the bypass area.

Condee testified that there was blood outside Shaggy’s Market and that there was a “blood

trail” between Shaggy’s Market and Stacey’s Place. Condee testified that a red car was parked in

the garage behind Stacey’s Place. Condee recalled that a telephone was laying on the ground near

Stacey’s Place.

Rodney Lovin, a deputy sheriff with the Blount County Sheriff’s Department, testified that

on October 16, 1998, he was employed as a patrolman with the Alcoa Police Department. Lovin

testified that at approximately 5:45 p.m., he received a dispatch reporting a major crime on

Aluminum Avenue in Alcoa. When Lovin arrived at the scene, Officer Condee was already there.

At the scene, Lovin observed “a black male bent over in the doorway of Shaggy’s Market. He was

bent over on his knees. He was bleeding very badly from the front side of his body . . . .” Lovin

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tried to speak to the victim; however, the victim did not respond. Lovin identified the victim as

Charles Hill.

Lovin then located a trail of blood which led to Stacey’s Place. The trail “went up to the left

side of the parking lot, all the way back to underneath a carport area where a back door is.” Lovin

followed the blood trail and found in the carport a red vehicle with the motor still running. Lovin

testified that he was also made aware of a telephone laying near the crime scene. Once Lovin entered

Stacey’s Place, he observed a male lying on his left side behind the bar with his hand underneath him

and “what appeared to be an automatic weapon just a few inches from his body.” Unsure if the

person was alive, the officers told the person not to move. Upon further investigation, Lovin noticed

what appeared to be a bullet wound near the person’s jaw. After another officer moved the gun away

from the person, Lovin lifted the person’s arm and was not able to feel a pulse. Officers then radioed

for another ambulance. The second victim was later identified as Sammy Garner.

Deputy Sheriff James L. Wilson of the Blount County Sheriff’s Department testified that on

October 16, 1998, he was a senior police officer with the Maryville Police Department and that he

received a dispatch about a shooting on Aluminum Avenue. He and two other officers went to the

crime scene to assist the Alcoa Police Department. Wilson first went to Shaggy’s Market, where he

recognized Charles Hill in the doorway. Wilson testified that Hill was in distress; according to

Wilson, Hill was on his knees “bleeding profusely.” Wilson heard Hill “gurgling, attempting to

breathe.” Wilson stated that Hill appeared to have gunshot wounds to the front portion of his body.

Wilson then followed a trail of blood to Stacey’s Place. Wilson testified that he and Sergeant

Brooks went inside Stacey’s Place. Wilson observed a bullet hole in the glass portion of the

doorway leading to the carport. Wilson testified that Brooks noticed a person and a gun. Unsure if

the person was alive, Brooks called for assistance. The weapon was removed and secured. Wilson

then testified that one officer checked the victim and found no signs of life. Wilson testified that the

gun laying next to the victim was a semi-automatic Glock pistol. Wilson also testified that a bullet

was laying next to the gun. Wilson later saw a telephone laying on the ground. Wilson testified that

the phone was “directly out from the entrance of Stacey’s, l[a]ying in the middle of the road.”

Sergeant Steve Brooks of the Alcoa Police Department was also called to the crime scene on

Aluminum Avenue. Brooks testified that he entered Stacey’s Place through the carport. Brooks

recalled that the room he entered was very dark. Brooks looked behind the bar, saw a pair of feet

wearing work boots, and warned the other officers. Brooks testified that he then got on top of the

bar because he was not sure if the victim was dead. Brooks recognized the victim as Sammy Garner.

Brooks then checked the victim for signs of life and called an ambulance. Brooks also observed a

gun that was in a “locked and loaded position” and a bullet beside the victim.

Captain Lowell H. Ridings, Jr., testified that he is in charge of the Criminal Investigations

Division of the Alcoa Police Department. On the day of the offense, Ridings went to Stacey’s Place

to perform a “sweep” and to search for evidence of a crime. Ridings stated that the scene “[k]ind

of looked like chaos,” and he surmised that there had been a shooting. According to Ridings,

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Garner’s body was behind the counter. Near Garner’s body, Ridings found a .40-caliber Glock pistol

containing a magazine and “nothing in the breech.” Ridings also observed a .40-caliber unfired shell

laying against the edge of the counter. Ridings examined the gun and determined that it had not been

recently fired.

Ridings also found five ejected, fired .45-caliber shells. Three of the shells were located near

the door, one was near the corner of the bar, and one was behind the bar. Ridings stated that there

were indications that a bullet had penetrated the door; however, officers were unable to find a bullet

at that location. Ridings observed on the counter “about a double bread pan full of aluminum foil

. . . which contained a white powder substance.” Near the powdery substance, Ridings found a set

of digital scales which he stated are used to weigh small objects in grams.

Derrick Swenson, a patrol officer with the Alcoa Police Department, testified that on October

16, 1998, he was called upon to assist Captain Ridings in investigating the crime scene at Stacey’s

Place. Swenson testified that “on the counter top” inside the bar he observed one open container of

cocaine in aluminum foil. Also on the bar was a zip-lock bag containing a powdery substance.

Inside a vending machine, officers found “several baggies of what appeared to be . . . a large quantity

of crack cocaine.” Nine “baggies” of powder cocaine were found in the bottom of the vending

machine.

Ernest Kemper, III, a patrol officer with the Alcoa Police Department, testified that on

October 16, 1998, he was working as a uniformed police presence at the Clayton Homes Show

located on Alcoa Highway. Kemper was in a marked police vehicle. According to Kemper, around

5:30 or 5:45 p.m., he received an emergency dispatch that there had been a shooting on Aluminum

Avenue. The dispatch informed officers that the suspect vehicle was a maroon car occupied by two

black males. Kemper testified that within a minute of the dispatch, he observed a vehicle matching

that description pass by him on Alcoa Highway. Kemper stated that the driver of the vehicle had

darker skin than the passenger. Kemper got into his patrol car, pulled behind the vehicle, and called

in the license plate to the police department. Kemper was informed that the tag on the car was not

on file. Kemper testified that he then activated his lights and siren and tried to initiate a traffic stop.

However, the maroon car continued to accelerate. Kemper testified that the suspect vehicle was

traveling at a rate of speed that was at least seventy miles per hour.

Kemper recalled that as his car and the vehicle driven by the suspects neared the Blount and

Knox County line, he was not able to receive radio transmissions. The suspect vehicle turned onto

Woodson Drive in Knox County. Kemper testified that the vehicle slowed, and the driver’s door

opened. Kemper drove alongside the vehicle so that the suspects could not flee. Kemper testified

that when the cars were right beside each other, the passenger appeared to have a firearm pointed at

Kemper. At this point, the suspect vehicle had almost stopped, and Kemper stated that in order to

prevent the passenger from shooting, Kemper fired at least one round from his service pistol.

Kemper testified that he then tried to force the suspect vehicle off the road by hitting the rear

of the suspect vehicle. The suspect vehicle went through an intersection and was struck by a

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southbound station wagon. Kemper testified that he believed that his car hit the suspect vehicle

again after the first collision. Kemper recalled that the driver exited the vehicle through the rear

passenger door and “made a movement with his hands into his waistline.” Kemper testified that he

told the driver to put his hands in the air, but the driver did not comply. Kemper stated that the

driver then made a “sudden movement from his waist towards [Kemper],” so Kemper shot at the

driver. The driver fell to the ground. Kemper testified that the passenger tried to get out of the car,

but Kemper sprayed him with a chemical spray in order to subdue him. Kemper did not see any

weapons on either suspect. More officers soon arrived, and the suspects were transported to a

hospital.

At trial, Kemper identified the Defendant as the driver of the suspect vehicle. Kemper

testified that he believed that the Defendant was wearing “a pair of camoflauge britches . . . and a

red shirt and a bullet proof vest under his red shirt.” Kemper identified the passenger of the suspect

vehicle as Brian Whitman. Kemper admitted that during the chase, the men could have thrown a

weapon from their car without him noticing.

David Gilliam, M.D., the Blount County Medical Examiner, performed autopsies on both

victims in this case. Gilliam testified that Garner suffered a gunshot wound to the top of his head

and a gunshot near the right corner of his mouth. Gilliam determined that neither of the wounds

were “contact wounds.”

Gilliam testified that Hill suffered a gunshot to his right back, which penetrated his right lung

and hit his heart. Gilliam reported that Hill also suffered a gunshot wound to his left back. Gilliam

stated that Hill died of massive blood loss. Gilliam also noted that Hill was probably moving when

he was shot.

Greg McCallie testified that on the afternoon of October 16, 1998, he was in Howe Street

Park in the Hall-Oalfield community in Alcoa with Charles Hill and Sammy Garner, Jr. McCallie

testified that Garner owned an establishment called Stacey’s Place and that Garner lived in an

apartment above the shop. According to McCallie, Garner kept cocaine in the ceiling of the kitchen

and a gun underneath the counter behind the bar. McCallie stated that sometime before sundown

on October 16, 1998, Garner asked McCallie to transport him to Garner’s bar on Aluminum Avenue

because he was having car trouble. McCallie told Garner that he could not go because he had his

nephews in the park with him. At that time, Hill offered to take Garner to his bar.

Myron Lea Kellogg testified that on October 16, 1998, Garner also asked him for a ride.

Kellogg stated that Garner needed his help to make a drug deal. Kellogg testified that Garner told

him that he had cocaine. Kellogg further testified that on or about October 14, 1998, he went with

Garner to Atlanta, Georgia, where Garner purchased a kilogram (thirty-six ounces) of cocaine for

$27,000. According to Kellogg, when Garner returned to Stacey’s Place, he placed the cocaine in

the ceiling of the kitchen. Kellogg recalled that Garner kept a .40-caliber gun behind the bar at

Stacey’s Place. Kellogg testified that he had witnessed “about a thousand” drug deals, and he had

never seen anyone wear a flak jacket or a bullet-proof vest to the transactions.

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Seneca Toure Teeter was also in Howe Street Park in Alcoa on October 16, 1998. Teeter

testified that while in the park, Garner borrowed his cell phone to make a call. Teeter stated that

Garner stayed on the phone for approximately ten minutes, but Teeter was not able to hear the

conversation. According to Teeter, just before leaving, Garner stated that he was “about to go make

a sale and he would be back in a little bit.”

Brian Whitman testified that on October 16, 1998, the Defendant asked Whitman to ride with

him to Alcoa. Whitman stated that he decided to go with the Defendant because he wanted to see

Sammy Garner. According to Whitman, the Defendant was wearing a bullet-proof vest when they

left to go to Alcoa. Whitman stated that he had never seen the vest before. Whitman testified that

the Defendant was driving Jamal Tory’s “burgundy 98” Oldsmobile. Whitman recalled that when

they arrived at Garner’s club, nobody was there. After a few minutes, a small red car pulled up to

the club. Whitman stated that Hill was driving and Garner was in the passenger seat. Whitman

testified that he knew Garner but that he did not know Hill.

Whitman testified that both cars parked in the carport. According to Whitman, everyone got

out of the cars except Hill, who “came in maybe a minute after [everyone else] came in.” Whitman

recalled that he talked to Garner and that everyone was friendly. Whitman stated that the Defendant

and Garner began to talk, but he recalled that the Defendant and Hill did not even look at each other.

Whitman testified that once everyone was inside, he asked to use the phone, and he took the phone

outside to make a call. Whitman testified, “By the time I got outside to use the phone, I heard four

gunshots.” Whitman stated that he “threw [the phone] down and ducked out of the way when [he]

saw Mr. Hill run out the door.” According to Whitman, Hill ran down the street towards the

convenience store. Whitman then saw the Defendant run out of the building with something that

looked “[l]ike a little plastic Kroger bag.” Whitman testified that the Defendant got into the driver’s

side of the vehicle and Whitman got in on the passenger’s side. Whitman stated that the Defendant

threw the bag in Whitman’s lap and said that “they tried to kill him.”

Whitman testified that the Defendant left Stacey’s Place, driving “fast” past Shaggy’s Market

towards the highway. Whitman stated that he looked in the bag and saw that it was “full of dope.”

Whitman threw the bag onto the back seat and then he climbed onto the backseat. Whitman testified

that he stuffed the bag into the backseat, “[b]ehind the armrest.” Whitman climbed back onto the

front seat and saw a gun laying beside the Defendant. Whitman then saw a police officer on the side

of the road get into his patrol car and warned the Defendant. According to Whitman, the Defendant

said that he could not pull over “[b]ecause that’s how [he] got caught the last time.” Whitman

estimated that it took the police officer approximately two minutes to catch up to their vehicle and

turn on his lights and siren. Whitman stated that he last saw the gun right before the police officer

pulled behind their car. Whitman testified, “And then after he was behind us for so long, [the

Defendant] attempted . . . . to pull over or confuse the police officer or lose him or whatever.” The

Defendant then turned onto a side street. Whitman stated that by the time the Defendant turned, “the

policeman had shot at [them]. He let two rounds off at [them].”

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Whitman testified that at some point, the police car “rammed into the back of” their car,

which “pushed [them] through the intersection.” Whitman stated that their car “fishtailed” and was

hit by another car. According to Whitman, the Defendant began climbing out of the driver’s side

door and ran around to the back of the vehicle, at which time the officer, who was also out of his car,

“let off two more shots.” The Defendant then laid down on the ground. Whitman testified that he

remained in the car, and the police officer sprayed him in the face with “mace, pepper spray or

whatever it was” so he “couldn’t see anything.” Officers pulled Whitman out of the car and he laid

on the ground. Whitman recalled that his left knee was cut during the incident.

Whitman testified that the Defendant told him that he was going to Alcoa to buy cocaine.

Whitman maintained that he did not want to be involved in a drug transaction, but that he just rode

with the Defendant so he could see Garner. Whitman testified that he deliberately did not pay

attention to the conversation in the club. Whitman testified that the Defendant owned a .45-caliber

pistol with a “pointer” or laser sight on it. Whitman identified the gun recovered from the highway

median as the Defendant’s gun. Whitman testified that the Defendant always carried that gun, and

Whitman just assumed that the Defendant had it with him when they went to Alcoa.

Charles “Chuck” Lassetter, an officer with the Knox County Sheriff’s Department, testified

that the police department towed the suspect vehicle to the City County Building, where it was

turned over to detectives. According to Lassetter, the car was registered to Jamal Tory.

Brad Park, a crime scene technician with the Knox County Sheriff’s Office, performed the

final search of the suspect vehicle. Park testified that he also fingerprinted the vehicle and took

photographs of the vehicle. Park testified that during his search, he found a bullet in the vehicle

frame. Park also testified that he found a white plastic shopping bag “underneath the armrest

between the insulation and the frame of the trunk.” Park believed that someone would have to make

an effort to put the bag where it was found. Inside the shopping bag, Park found four separate

ziplock bags containing a white powdery substance. Park testified that no prints were found on the

bags; however, Brian Whitman’s fingerprints found were on the rearview mirror.

Celeste White, a drug chemist with the Tennessee Bureau of Investigation (TBI), testified

that she received four bags of white powder from the Knoxville Police Department. White

understood that the bags had been recovered from the suspect’s car. White analyzed the substance

and determined that the substance weighed 475.6 grams and contained cocaine.

Carl Smith, a forensic scientist with the TBI, analyzed powder that was obtained from the

crime scene. According to Smith, the sample contained 312.6 grams of cocaine hydrochloride,

which is commonly referred to as cocaine, and 82.4 grams of cocaine base, which is commonly

referred to as crack cocaine. Smith testified that some of the bags he received to test contained

powdered sugar.

John Casale, a research chemist with the Drug Enforcement Agency (DEA), examined the

cocaine taken from the suspect car and from the crime scene. Casale testified, “I reached the

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conclusion that all fourteen bags were from the same batch of cocaine.” Casale stated that the

cocaine came from Peru and was ninety-eight percent pure.

Deputy Sheriff Russell Hatcher of the Blount County Sheriff’s Department participated in

a law enforcement “sweep” of the median strip of Alcoa Highway on October 19, 1998. Hatcher

testified that during the sweep, he found a black, semi-automatic handgun with a magazine in it.

Hatcher believed that the gun was loaded, but he was not sure. Captain Lowell H. Ridings, Jr.,

testified that the gun later found in the median of Alcoa Highway had five rounds in the magazine.

Joseph Huckleby, an investigator in the Criminal Investigations Division of the Knoxville

Police Department, testified that on September 9, 1998, approximately one month before the crimes

in this case, he was working patrol when he recognized a man who had pending warrants against

him. The man was in a vehicle with two other men. Huckleby approached the vehicle, arrested the

suspect, and performed a “security pat-down” on the other occupants of the vehicle. The Defendant

was one of the occupants. Huckleby found a .45 Glock magazine containing ten rounds in the

Defendant’s front pants pocket. The Knoxville Police Department confiscated the magazine.

Harvey McGill testified that on October 16, 1998, he was driving home from work around

5:40 p.m. McGill testified that the traffic was heavy and that he was in a turn lane when he spotted

what he thought was a toy pistol laying on the ground. McGill testified that he opened his car door,

reached down, and picked up the gun. McGill then realized that he had found a nine-millimeter

pistol with a magazine. McGill testified that it looked as though the gun had been run over a couple

of times. McGill took the magazine out of the gun and noticed that the gun was loaded and ready

to fire. McGill wrapped the gun in a tee-shirt and left. When McGill read about the shooting on

Aluminum Avenue in the paper, he contacted the District Attorney General, who notified the Alcoa

Police Department. The police retrieved the gun shortly thereafter.

Oakley McKinney, a forensic scientist with the TBI, analyzed the two pistols found in

connection with this case. McKinney testified that he found no latent prints on one of the guns and

no identifiable latent prints on the other. McKinney stated that the nine-millimeter pistol had debris

on it.

Tom Heflin, a forensic scientist with the TBI, testified that he specializes in firearms

identification. Heflin examined the two guns associated with this case. Heflin also examined the

Glock magazine that was confiscated from the Defendant a month prior to the crime. Heflin testified

that the magazine that was submitted with the Glock pistol and the magazine confiscated from the

Defendant were basically the same. Heflin acknowledged that there was no indication that the

Defendant’s magazine had been in that particular gun. However, Heflin determined that three of the

cartridges in each magazine were “produced in the same lot of ammunition, which means that they

could have very well possibly have been boxed in the same box of ammunition.” Heflin also

testified that two of the fired cartridge casings found at the scene and the six cartridges in the two

magazines confiscated from the Defendant “had been produced by the same bunter tool.” Heflin

noted that usually when Glock pistols like the one in this case are sold to the public, they are sold

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with two magazines, each with a ten-round capacity. Both of the magazines that Heflin examined

had a ten-round capacity.

Kathleen Lundy, an examiner in the Federal Bureau of Investigation laboratory, testified that

she specializes in “elemental analysis and comparison of bullet and shot pellet lead specimens.”

Lundy testified that she performed a “comparative bullet lead analysis” in this case. Lundy

explained that “when you analyze two bullets, if you find the same chemical composition, the

conclusion is that they are from the same batch or pour or melt of lead.” In this case, Lundy

compared two bullets retrieved from Garner’s body, one bullet from the crime scene, a cartridge

from the Glock pistol found in the median of the highway, four “test fires” from the Glock pistol,

and the magazine that was confiscated from the Defendant. Lundy “found a total of three different

compositions of lead represented by all the specimens analyzed.” Lundy determined that the two

bullets from Garner’s body, the bullet from the crime scene, seven cartridges from the confiscated

magazine, and five cartridges from the magazine in the Glock pistol had “analytically

indistinguishable compositions.”

Captain Daniel Neubert, Jr., of the Blount County Sheriff’s Department testified that he is

the Facility Administrator for the Corrections Division. According to Neubert, the Defendant had

$38 and Whitman had no money when they were brought to the Blount County Jail on October 16,

1998.

Terrence Long testified that at the time of trial he was an inmate in the Blount County Jail,

and had talked to the Defendant while the Defendant was incarcerated. Long recalled that someone

asked the Defendant if he knew Sammy Garner. Long testified that the Defendant replied, “Oh, that

punk-ass bitch.” Regarding the last time the Defendant saw Garner, the Defendant stated, “Yeh, I

remember that punk-ass bitch when I seen his brains splatter.” Long testified that he and the

Defendant were arguing when the Defendant made the statements about Garner. Long stated that

he could not see the Defendant from his cell, but maintained that he knew that the Defendant made

the statements because the person making the statements responded to the name “Asata.” Long

testified that he lived with Garner for ten years when his mother was married to Garner’s father.

Long stated that he had previously been to Stacey’s Place and that he also knew Hill.

Dominic Rashad Kellogg testified that he was an inmate in the Blount County Jail at the time

of the trial in this case. Kellogg testified that on October 16, 1998, he saw Garner at the home of a

man named Jack. Kellogg stated that he noticed a gun in Garner’s pocket and asked him what was

going on. Garner said that he was going to sell a half of a kilogram of cocaine and left. Kellogg

asked Garner to whom he planned to sell the cocaine, and Garner responded, “I don’t know, I [have]

never seen them before.” Kellogg testified that Garner left Jack’s house and walked toward a

pavilion in the park.

Kellogg testified that he also knew the Defendant from the Blount County Jail. Kellogg

recalled that he “cursed [the Defendant] almost everyday” regarding Hill and Garner. Kellogg

testified that “[a]fter a couple of days, [the Defendant] finally said, ‘I watched that bitch-ass nigger’s

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brains splatter out of his head.’” According to Kellogg, the Defendant also said, “If Charles Hill

wouldn’t have never been there, this wouldn’t have never happened.” Kellogg further testified that

the Defendant stated that because the Defendant shot Hill in 1995, “[the Defendant] figured that they

would get him before he got them.” Kellogg testified that although he shared a cell with Terrence

Long, the arguments between the Defendant and Long occurred before Kellogg became incarcerated

or moved into the cell with Long. Kellogg testified that he also knew Hill.

Detective Dale Boring of the Alcoa Police Department testified that he was a witness for the

State in an aggravated assault case in which the Defendant was accused of shooting Charles “Bill”

Hill. According to Boring, Hill testified at the preliminary hearing, and the Defendant was present

in the courtroom during Hill’s testimony. The trial was subsequently set for November 10, 1998,

but the case was dismissed when Hill was killed. Boring testified that $3.48 was recovered from

Hill’s clothing and that $71.00 was recovered from Hill’s vehicle.

B. Defense Proof

The Defendant testified that he graduated from high school and joined the Army, where he

was a computer programmer from August 1992 until January 1995. At the time of the crime, the

Defendant was attending Pellissippi State. The Defendant testified that he had known Whitman for

about a year prior to the murders and that they saw each other once a week. The Defendant testified

that he is five feet, five inches tall and that Whitman is approximately six feet, two inches tall. The

Defendant stated that he introduced Whitman to Princeton Wells and that Whitman bought a .45

Glock pistol with a “laser beam” on it from Wells about five to eight months before the crime. The

Defendant testified that Whitman carried the gun with him at all times.

The Defendant recalled that around noon on October 16, 1998, he was at Keathy Smith’s

house. The Defendant had gone to Smith’s after leaving his girlfriend’s house, which was located

near Smith’s house. The Defendant explained that his car had been impounded the previous night

because the tags were expired. The Defendant testified that sometime between noon and one o’clock

that afternoon, Whitman and Kenny Jamal Tory also arrived at Smith’s house. The Defendant stated

that Whitman drove Tory’s car and took the Defendant to the impound lot to retrieve his car. After

retrieving the car, both men returned to Smith’s house. The Defendant testified, “When I first asked

[Whitman] to go take me to go get my car at the impound [lot], [Whitman] asked me would I take

him to Alcoa to see Sammy Garner.”

The Defendant testified that they returned to Smith’s house from the impound lot at

approximately 2:00 p.m., but they did not leave for Alcoa until after 4:00 p.m. because Whitman had

been “trying to page . . . Garner.” Jamal Tory gave the Defendant and Whitman directions to get to

Stacey’s Place. According to the Defendant, Whitman asked to borrow Tory’s 1998 four-door

Oldsmobile because the motor in the Defendant’s car began “ticking” on the way back from the

impound lot. The Defendant testified that he drove because Whitman did not have a driver’s license.

The Defendant stated that Whitman told him that he was going “to talk about some musical

equipment or to pick up some musical equipment or something like that.”

-11-

The Defendant testified that on the way to Stacey’s Place, he missed a turn and ended up at

a Texaco gas station. The Defendant stated that he and Whitman attempted to call for directions,

but the phone did not work so they drove down the street to a Food Lion grocery store to use the

phone. The Defendant recalled that Whitman dialed Tory’s number, but the Defendant talked to

him. The Defendant testified that when they finally arrived at Stacey’s Place, he pulled into the back

part of the carport. Not finding anyone else there, the Defendant left the car engine running. The

Defendant testified that Whitman got out of the car and told the Defendant, “I’ll be right back.”

However, a few minutes later, the Defendant saw a “little red car” drive up to Stacey’s Place.

According to the Defendant, Hill was driving the car, and Garner was in the passenger’s seat. Hill

parked the car beside the car that the Defendant was driving. The Defendant testified that it did not

bother him that Hill was there and that he had met Garner a couple of times previously through Tory.

The Defendant testified that Whitman and Tory were best friends, and he recalled that Tory had

previously indicated that Garner was Tory’s cousin.

The Defendant testified that after Hill and Garner arrived at Stacey’s Place, he still did not

turn the car engine off. The Defendant stated that he stayed in the car while Whitman, Hill and

Garner all went inside Stacey’s Place. The Defendant recalled that everyone appeared to be friendly

with one another.

The Defendant testified that after everyone went inside, his pager went off, so he went inside

to use the telephone. According to the Defendant, Garner handed Whitman a phone from behind the

counter, and Whitman handed the phone to the Defendant. The Defendant explained that he went

outside to make his phone call because he wanted some privacy. The Defendant stated that he

planned to sit on the car to make the phone call, but he had to step out into the light to see the

number on his pager. He stated, “[T]hat’s when I heard the first two gunshots.” The Defendant

testified that the first two shots were more muffled than the following shots.

The Defendant recalled that he “immediately ran back towards the two parallel parked cars,”

but he “tripped and fell and the phone came out of [his] hand.” The Defendant then noticed that the

door to the club had been opened. The Defendant testified that he reached up to the car door and

jumped into the back seat. According to the Defendant, he landed on a bullet-proof vest, put the vest

on over his shirt, and “balled up” in the back seat of the car. The Defendant testified that Whitman

jumped in the passenger seat of the car and asked the Defendant what he was doing. The Defendant

stated that he asked Whitman what happened, and Whitman responded that “Dude shot him.” The

Defendant testified that Hill had braids in his hair and that Whitman told him that the man with

braids shot Garner. The Defendant testified that Whitman, who had a gun when he got in the car,

struck the Defendant in the head with the gun and said, “Nigger, you need to get me back to

Knoxville . . . .” The Defendant stated that he then got in the front seat and drove.

The Defendant testified that Whitman told him that Hill and Garner were arguing and then

Hill “just pulled out the gun and shot [Garner] and ran out [of] the club.” The Defendant drove past

Shaggy’s Place, but stated that he did not remember seeing anything unusual. The Defendant

testified that he stopped at the stop sign at Aluminum Avenue and put his shirt on over the bullet-

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proof vest. The Defendant reported that he told Whitman that he wanted to go back to get Garner.

According to the Defendant, Whitman asked him why and then said no. The Defendant stated that

he then headed towards Alcoa Highway, but he “didn’t have much to say to [Whitman]” because he

was “way too upset.” At this time, according to the Defendant, the gun was in Whitman’s lap.

The Defendant testified, “[W]hen we passed by the police, [Whitman] took the gun and he

put it . . . in his waist and he grabbed a bag that was on the floor in front of him by his feet . . . and

jumped in the back seat with it.” He stated, “I guess that had . . . to be when he stuffed the drugs in

the back seat.” The Defendant stated that Whitman did not tell him what was in the bag and that

Whitman did not have the bag when he went into Stacey’s Place. The Defendant testified that

Whitman told him, “If the police get[] behind us . . . I’m going to shoot you if you pull over.” The

Defendant recalled that after a minute or two, Whitman crawled onto the front seat. The Defendant

testified that he did not see the gun when Whitman crawled onto the front seat, but stated that there

was a “bulge” in Whitman’s clothing where the gun could have been.

The Defendant testified that after the traffic thinned, he saw a police car behind them, but he

did not notice the lights or siren. The Defendant stated that he wanted to find a way to stop without

crashing or getting shot, so he turned right onto Woodson Drive. The Defendant maintained that he

allowed the police to catch up to his vehicle because he “didn’t want to lose them.” The Defendant

testified, “[The police officer] rammed us . . . [a]nd then he shot at us and then he rammed us again

right on through the stop sign. And then we crashed, we wrecked.” When the car the Defendant was

driving came to a stop, it had spun around and was facing the opposite direction.

The Defendant testified that the police car pulled up “door-to-door” with their vehicle, so the

Defendant jumped over the back seat and climbed out of the passenger door. The Defendant

observed the police officer slide across his seat and get out of his passenger side door. The

Defendant testified that the officer “shot at [him],” so the Defendant “laid on the ground.” The

Defendant stated that the officer then “maced” him, slammed him into the back windshield, threw

him on the ground, and handcuffed him. The police took the Defendant to the hospital and then to

the Alcoa Police Department.

When asked if he knew about the cocaine, the Defendant replied, “No, not really. I knew

[Whitman] put something . . . I knew he was doing something with a bag in the back seat, but as to

what, I really couldn’t say then.” The Defendant maintained that he would not have gone to Alcoa

if he had known about the drug transaction. The Defendant testified, “I don’t mess with [drugs] and

I don’t sell them.” He also testified that his mother was addicted to drugs and died at an early age.

Finally, the Defendant testified that while in jail he had arguments with Terrence Long and Dominic

Rashad Kellogg and that they accused the Defendant of killing their friends.

Princeton Wells testified that he knew both the Defendant and Whitman. Wells stated that

he sold a .45-caliber Glock pistol with two magazines to Whitman a couple of years before the trial.

Wells testified that he had not met Whitman before he sold the gun to him and stated that the

Defendant brought Whitman to Wells’ house. Wells responded that he bought the gun, as well as

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a laser sight for the gun, at a gun show. Wells testified that he was a State’s witness in a prior trial

against the Defendant.

Scotty Anderson testified that he was an inmate in the Blount County Jail and recalled that

he and the Defendant were housed in the same cell between March and June 1999. Anderson

testified that he also knew Dominic Rashad Kellogg and Terrence Long. Anderson testified that he

heard heated arguments between the Defendant, Kellogg, and Long. According to Anderson,

Kellogg and Long were “talking crazy to [the Defendant].” Anderson testified that when Kellogg

and Long accused the Defendant of killing Garner and Hill, the Defendant “just shook it off and said,

you’re crazy, you know, and just walked off.” Anderson stated that he never heard the Defendant

make any statements to Long or Kellogg indicating that he had any knowledge about the killings.

Anderson admitted that he had a longstanding problem with drugs, alcohol, and sniffing paint.

Clinton Andrew Hacker testified that he was an inmate in the Blount County Jail, where he

was housed in a cell with the Defendant for approximately one month. Hacker stated that he also

knew Terrence Long and Dominic Rashad Kellogg. Hacker recalled that there was quite a bit of

“bickering” between the Defendant and the other inmates. Hacker testified that they would “yell[]

and scream[] at each other.” Hacker testified that he never heard the Defendant talk about killing

either of the victims.

Jason D. Love testified that he lives in Alcoa and was housed in the same jail cell with the

Defendant during the summer of 1999. Love stated that he let the Defendant believe that he was

from New York so that the Defendant would tell him about the incident. According to Love, the

Defendant said that he went to Stacey’s Place because “he was going to get something” from Garner,

and then “he recognized somebody who he shot like a year or two ago.” Love stated that the

Defendant said he “knew something was funny because . . . both of them walked into the kitchen.”

According to Love, the Defendant said that he thought Hill and Garner were going to get the drugs,

but that while the Defendant was inside Stacey’s Place, “he heard something cock.” Love testified

that the Defendant “said he figured the guy recognized him when he walked in, so he had to get them

first. He said when he walked out, he had to do what he had to do.” Love acknowledged that the

Defendant never stated what he had to do. Love testified that the Defendant told him “not to say

nothing.”

Donnie Bridges testified that he was an inmate in the Blount County Jail with Love. He

testified that he had an argument with Love because Bridges “associated with” the Defendant.

According to Bridges, Love said that the Defendant had killed his friend.

II. ANALYSIS

A. Jury Instructions

1. Lesser-Included Offenses

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The Defendant argues that the trial court erred by failing to charge the jury on the lesser-

included offenses of voluntary manslaughter, criminally negligent homicide, and reckless homicide.

Initially, we note that voluntary manslaughter is a lesser-included offense of first and second degree

murder. State v. Dominy, 6 S.W.3d 472, 477 n.9 (Tenn. 1999). In addition, we note that the

offenses of reckless homicide and criminally negligent homicide are lesser-included offenses of

felony murder under part (b) of the Burns test. State v. Curtis Jason Ely, No. E1998-00099-SC-R11-

CD, No. E1999-00170-SC-R11-Cd, 2001 Tenn. LEXIS 600, at *29 (Tenn., Knoxville, June 5, 1999);

see generally State v. Burns, 6 S.W.3d 453, 469 (Tenn. 1999). However, the trial court is not

required to instruct the jury on all lesser-included offenses. Determining whether a lesser-included

offense must be charged in the jury instructions requires the following two-part inquiry:

First, the trial court must determine whether any evidence exists that reasonable

minds could accept as to the lesser-included offense. In making this determination,

the trial court must view the evidence liberally in the light most favorable to the

existence of the lesser-included offense without making any judgments on the

credibility of such evidence. Second, the trial court must determine if the evidence,

viewed in this light, is legally sufficient to support a conviction for the lesser-

included offense.

Burns, 6 S.W.3d at 469.

We thus turn to consideration of whether “any evidence exists that reasonable minds could

accept as to the lesser-included offense[s].” Id. Recently, in State v. Allen, 69 S.W.3d 181, 189

(Tenn. 2002), our supreme court determined that the “jury is not required to believe any evidence

offered by the State,” and held that the authority of the jury to convict on a lesser included offense

may not be taken away, even when proof supporting the element distinguishing the greater offense

from the lesser offense is uncontroverted. Our high court reiterated that “‘[t]he jury, not the judge,

performs the function of fact-finder.’” Id. (quoting State v. Burns, 6 S.W3d 453, 472 (Tenn. 1999)).

Further, the court determined that “the Burns analysis does not preclude a finding that the same

evidence supports an instruction on both the greater offense and the lesser offense. Id. at 188.

In this case, the evidence adduced at trial established that the defendant traveled to Stacey’s

Place to effectuate a drug transaction with Sammy Garner. The evidence also showed that the

defendant wore a bulletproof vest and carried a gun. Shots were fired inside the establishment and

the defendant ran to the car in possession of almost half of a kilogram of cocaine he had taken from

the interior of Stacey’s Place. Using the Burns analysis, the evidence was sufficient to support an

instruction on the offenses of reckless homicide, criminally negligent homicide, and robbery. The

evidence would also be legally sufficient to support convictions for these offenses. Thus, the

offenses should have been included in the instructions.

The state argues on appeal that because the defendant did not claim at trial that he shot the

victims after adequate provocation, the trial court was not required to instruct the jury on the lesser

included offense of voluntary manslaughter. Our supreme court, however, has held that “[t]he trial

court must provide an instruction on a lesser-included offense supported by the evidence even if such

instruction is not consistent with the theory of the State or of the defense. The evidence, not the

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theories of the parties, controls whether an instruction is required.” Allen, 69 S.W.3d at 188. Here,

several witnesses testified that the defendant told them that the victims “tried to kill him,” and that

the defendant felt as though he had to “get” the victims before they killed him. Under these

circumstances, the evidence warranted an instruction on voluntary manslaughter.

Having determined that the trial court was required to instruct the jury on the lesser included

offenses of voluntary manslaughter, reckless homicide, criminally negligent homicide, and robbery,

the next inquiry is whether the error was harmless. In State v. Williams, 977 S.W.2d 101, 105

(Tenn. 1998), our supreme court rejected a line of cases which had concluded that the right to

instructions on lesser offenses was founded in the Tennessee Constitution and instead ruled that

entitlement was based solely upon the statutory requirement. Id. Consequently, the high court

directed that any error in the omission of a lesser included offense would be subject to the following

harmless error analysis:

Reversal is required if the error affirmatively appears to have affected the result of

the trial on the merits, or in other words, reversal is required if the error more

probably than not affected the judgment to the defendant's prejudice.

Id.

In State v. Bolden, 979 S.W.2d 587, 593 (Tenn. 1998), our supreme court emphasized the

mandate of the statute requiring trial courts to "instruct the jury on all lesser offenses if the evidence

introduced at trial is legally sufficient to support a conviction of the lesser offense." Our high court

also acknowledged that the "purpose of the statute is to protect the right to trial by jury by instructing

the jury on the elements of all offenses embraced by the indictment [and to] facilitate the overall

truth-seeking function of the process." Id. If the failure to charge a lesser included offense was an

error of constitutional dimension, as Bolden implied, the proper question would have been whether

the error was harmless beyond a reasonable doubt.

In State v. Swindle, 30 S.W.3d 289, 293 (Tenn. 2000), however, our supreme court followed

the rationale in Williams and held that reversal was required only "if the error affirmatively affected

the result of trial, or if the error more probably than not affected the judgment to the defendant's

prejudice." The high court concluded that the trial court's failure to instruct on misdemeanor assault

as a lesser included offense of the primary charge, aggravated sexual battery, was harmless error

under Tennessee Rule of Criminal Procedure 52(a).

In State v. Ely, 48 S.W.3d 710, 727 (Tenn. 2001) (emphasis in original), our supreme court

clarified the holding in Williams and confirmed that the failure to charge a lesser included offense

qualifies as an error of constitutional proportions:

That the right of trial by jury is of constitutional dimension is evidenced by its

embodiment in Article I, section 6 of the Tennessee Constitution, which states, "the

right of trial by jury shall remain inviolate." Accordingly, we hold that this

constitutional right is violated when the jury is not permitted to consider all offenses

supported by the evidence.

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See also State v. Bowles, 52 S.W.3d 69, 77 (Tenn. 2001). Our high court directed that in reviewing

error arising from a failure to charge one or more lesser included offenses, "the proper inquiry for

an appellate court is whether the error is harmless beyond a reasonable doubt." Ely, 48 S.W.3d at

727.

Most recently, in Allen, our supreme court confirmed that “[a]n erroneous failure to give a

lesser-included offense instruction will result in reversal unless a reviewing court concludes beyond

a reasonable doubt that the error did not affect the outcome of the trial.” Allen, 69 S.W.3d at 189.

Our high court observed that “[t]he improper omission of a lesser-included offense is analogous to

the improper omission of an element of an offense. Omitting an instruction on a lesser-included

offense denies the jury the option of rejecting a greater offense in favor of a lesser offense.” Id.

Moreover, the court ruled as follows:

Constitutional harmless error analysis does not require harmlessness to be necessarily

demonstrated by the jury’s verdict. The same reasoning applies to the improper

omission of a lesser-included offense. The error may be harmless when the jury

“necessarily rejected” all the lesser-included offenses by rejecting an intermediate

offense. This analysis does not, however, limit harmless error to cases in which the

jury necessarily rejected all other lesser-included offenses.

Id. at 190 (citation omitted). Our supreme court directed that in determining whether the improper

omission of a lesser included offense was harmless beyond a reasonable doubt “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.” Id. at191.

Here, the defendant was convicted of the highest crimes with which he was charged, first

degree murder and especially aggravated robbery. The jury, therefore, was presented with and

declined to exercise its option of convicting on the intermediate offenses of second degree murder

and aggravated robbery. The evidence was overwhelming that the defendant, armed and wearing

a bulletproof vest, shot each of the victims to death while inside Stacey’s Place. It was also clearly

established that the defendant took almost half a kilogram of cocaine from the bar. The jury chose

to reject the defendant’s theory that he shot the victims in self-defense. Under these circumstances,

it is our view that the error was harmless beyond a reasonable doubt. See Allen, 69S.W.3d at 189.

2. Necessity and Duress

The Defendant argues that the trial court erred by failing to charge the jury, as requested by

the Defendant, on necessity and duress. Portions of the testimony of Brian Whitman, Jason Love,

and Dominic Rashad Kellogg form the basis for the Defendant’s arguments for instructions on

necessity and duress. Whitman testified that the Defendant stated that “they were trying to kill me”

as the Defendant exited Stacey’s Place following the shootings of the victims. Love testified that

while he was incarcerated with the Defendant after the shootings, the Defendant told Love that while

waiting for the two victims to return from the kitchen in Stacey’s Place, the Defendant heard

“something cock,” and “he had to do what he had to do.” Dominic Rashad Kellogg, another fellow

-17-

inmate of the Defendant, testified that the Defendant, presumably referring to the victims, said he

“figured that they would get him before he got them.”

A trial court has a duty to give a complete charge of law applicable to the facts of the case.

State v. Davenport, 973 S.W.2d 283, 287 (Tenn. Crim. App. 1998). When the trial court instructs

fully and fairly, setting forth the applicable law, it is not error to refuse to give a special instruction

requested by a party. State v. Bohanan, 745 S.W.2d 892, 897 (Tenn. Crim. App. 1987). The test for

whether a special instruction must be given is whether “there is any evidence which reasonable

minds could accept as to any such [defense] . . . .” Johnson v. State, 531 S.W.2d 558, 559 (Tenn.

1975).

Regarding the defense of necessity, Tennessee Code Annotated § 39-11-609 states that except

as provided in §§ 39-11-611 to 39-11-621, conduct is justified if:

(1) [t]he person reasonably believes the conduct is immediately necessary to avoid

imminent harm; and

(2) [t]he desirability and urgency of avoiding the harm clearly outweigh, according

to ordinary standards of reasonableness, the harm sought to be prevented by the law

proscribing the conduct.

Tenn. Code Ann. § 39-11-609. “The sentencing commission comments note that the statutory

provision codifies the common law defense of necessity and excuses criminal conduct in those

exceedingly rare situations where criminal activity is an objectively reasonable response to an

extreme situation.” State v. Green, 995 S.W.2d 591, 606 (Tenn. Crim. App. 1998). Necessity is

generally used when the extreme situation is brought on by something other than a human act.

Davenport, 973 S.W.2d at 287 (citing Neil P. Cohen et al., Prevalence and Use of Criminal

Defenses: A Preliminary Study, 60 Tenn. L. Rev. 957, 966 (1993)). “However, this court has

rejected claims of error in a trial court’s refusal to charge the defense of necessity in crimes of

violence.” State v. Marcus A. Terry, No. 02C01-9708-CR-00313, 1998 Tenn. Crim. App. LEXIS

1154, at *16 (Tenn. Crim. App., Jackson, Nov. 6, 1998).

The defense of duress is defined as follows:

Duress is a defense to prosecution where the person or a third person is threatened

with harm which is present, imminent, impending and of such a nature to induce a

well-grounded apprehension of death or serious bodily injury if the act is not done.

The threatened harm must be continuous throughout the time the act is being

committed, and must be one from which the person cannot withdraw in safety.

Further, the desirability and urgency of avoiding the harm must clearly outweigh,

according to ordinary standards of reasonableness, the harm sought to be prevented

by the law proscribing the conduct.

Tenn. Code Ann. § 39-11-504. “There must be no reasonable means to escape the compulsion to

commit the offense.” Davenport, 973 S.W.2d at 288.

Moreover, is important to point out that the trial court in this case charged the jury on self-

defense as follows:

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A person is justified in threatening or using force against another person when and

to the degree the person reasonably believes the force is immediately necessary to

protect against the other’s use or attempted use of unlawful force. The person must

have a reasonable believe [sic] that there is an imminent danger of death or serious

bodily injury. The danger creating the belief of imminent death or serious bodily

injury must be real, or honestly believed to be real at the time, and must be founded

upon reasonable grounds. There is no duty to retreat before a person threatens or

uses force.

In our view, the trial court’s instruction on self-defense was the appropriate instruction applicable

to the testimony of Whitman, Love, and Kellogg.

When read as a whole, the jury instructions in this case fairly submitted the legal issues to

the jury. The evidence at trial did not support the defenses of duress or necessity. The evidence

presented at trial established that Sammy Garner and Charles Hill were both shot to death and that

a large quantity of cocaine was stolen from Garner. The Defendant denied that he was involved in

shooting either Garner or Hill. The Defendant denied that he was involved in robbing or stealing

from either victim. We fail to see how the Defendant may have committed these acts out of duress

or necessity. The evidence does not show that the Defendant “attempted to avoid imminent harm

and the desirability and urgency of avoiding the harm clearly outweighed, according to ordinary

standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct.”

See State v. Deborah Leigh Goins, 2000 Tenn. Crim. App. LEXIS 158, at *25-*26; see also Tenn.

Code Ann. §§ 39-11-504, 39-11-609. This issue is without merit.

3. Accessory After the Fact

The Defendant also argues that the trial court erred in failing to charge the jury with the

offense of accessory after the fact. However, our supreme court has previously held that the offense

of accessory after the fact is a separate and distinct crime from that of the principal offense. State

v. Hoosier, 631 S.W.2d 474, 476 (Tenn. Crim. App. 1982) (citing Monts v. State, 379 S.W.2d 34,

43 (Tenn. 1964)). The Defendant was not indicted for accessory after the fact. Thus, the trial court

properly refused to submit the issue to the jury as to whether the Defendant was guilty as an

accessory after the fact. This issue is also without merit.

C. Evidence of Pending Aggravated Assault Charge and Ammunition Clip

The Tennessee Rules of Evidence state that all relevant evidence is generally admissible.

Tenn. R. Evid. 402. Relevant evidence is defined as “evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” Tenn. R. Evid. 401. However, “[a]lthough

relevant, evidence may be excluded if its probative value is substantially outweighed by the danger

of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue

delay, waste of time, or needless presentation of cumulative evidence.” Tenn. R. Evid. 403.

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The Defendant argues that the trial court erred in admitting evidence of a pending aggravated

assault charge against the Defendant in which the victim of the alleged aggravated assault was

Charles “Bill” Hill, Jr., one of the victims in this case. Specifically, the Defendant argues that the

prejudicial effect of the evidence substantially outweighed its probative value. We agree. In our

view, this situation is the quintessential example of the proof that Rule 404(b) of the Tennessee

Rules of Evidence was designed to prevent.

At the time of the murders, the defendant stood charged with aggravated assault for shooting

Charles “Bill” Hill, who was also one of the victims in this case. In 1995, some three years before

the shooting in this case, the defendant had allegedly shot Hill in the back. The state sought

introduction of the pending charge as proof of the defendant’s motive for killing the victims. The

trial court permitted the evidence, finding that “it’s . . . relevant to show on the question of motive

which leads to premeditation.” The trial court, however, failed to make a finding that the probative

value of the evidence outweighed the possibility of unfair prejudice.

Rule 404 of the Tennessee Rules of Evidence provides in pertinent part as follows:

Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is

not admissible to prove the character of a person in order to show action in

conformity with the character trait. It may, however, be admissible for other

purposes. The conditions which must be satisfied before allowing inquiry on

cross-examination about specific instances of conduct are:

(1) The court upon request must hold a hearing outside the jury's presence;

(2) The court must determine that a material issue exists other than conduct

conforming with a character trait and must upon request state on the record the

material issue, the ruling, and the reasons for admitting the evidence; and

(3) The court must exclude the evidence if its probative value is outweighed

by the danger of unfair prejudice.

Tenn. R. Evid. 404(b). A fourth prerequisite to admissibility is that the trial court find by clear and

convincing evidence that the defendant committed the other crimes or bad acts. State v. DuBose,

953 S.W.2d 649, 654 (Tenn. 1997). Rule 404 was patterned in great measure on State v. Parton, 694

S.W.2d 299 (Tenn. 1985), wherein our supreme court ruled that evidence of other crimes is generally

inadmissible. The terms of this rule establish that character evidence cannot be used to prove that

a person has a propensity to commit a crime. Tenn. R. Evid. 404(b); State v. Adkisson, 899 S.W.2d

626 (Tenn. Crim. App. 1994). Most authorities suggest that trial courts take a “restrictive approach

of 404(b) . . . because ‘other act’ evidence carries a significant potential for unfairly influencing a

jury.” Neil P. Cohen et al., Tennessee Law of Evidence § 4.04[8][e] (4th ed. 2000). That perhaps

best explains the traditional posture of the courts that any testimony of prior bad acts by a defendant

is not usually admissible when used as substantive evidence of guilt of the crime on trial. Parton,

694 S.W.2d at 302-03. In those instances where the prior conduct or acts are similar to the crimes

on trial, the potential for such a result increases. State v. Bordis, 905 S.W.2d 214, 232 (Tenn. Crim.

App. 1995).

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Exceptions to the rule may occur when the other crime is relevant to an issue other than the

accused's character such as identity, motive, common scheme or plan, intent, or absence of mistake.

If, however, unfair prejudice outweighs the probative value of the other crime evidence, courts are

required to exclude the evidence. State v. Howell, 868 S.W.2d 238, 254 (Tenn. 1993); see also State

v. Zagorski, 701 S.W.2d 808 (Tenn. 1985); State v. Taylor, 669 S.W.2d 694 (Tenn. Crim. App.

1983). When the trial court substantially complies with the requirements of Rule 404(b), this court

will review the trial court’s determination for an abuse of discretion. DuBose, 953 S.W.2d at 652.

In admitting evidence of the defendant’s pending aggravated assault charge, the trial court

failed to find by clear and convincing evidence that the defendant, in fact, shot Charles Hill in 1995.

Moreover, the trial court failed to engage in a balancing test to determine whether the probative value

of the evidence was outweighed by the danger of unfair prejudice. In consequence, the trial court

failed to substantially comply with the requirements of Rule 404(b).

As indicated, the state asserted at trial that the pending charges were relevant to establish the

defendant’s motive. Motive should not be confused with propensity. Parton, 694 S.W.2d at 303.

In State v. Rickman, our supreme court quoted the Delaware Supreme Court with approval:

“[W]e are no more inclined to endorse [the assumption that a defendant's propensity

for satisfying sexual needs is so unique that it is relevant to his guilt] than we are to

consider previous crimes of theft as demonstrating a larcenous disposition and thus

admissible to show proof of intent to commit theft on a given occasion.”

876 S.W.2d 824, 829 (Tenn. 1994) (quoting Getz v. State, 538 A.2d 726, 734 (Del. 1988)). We

cannot conclude that the defendant’s 1995 shooting of the victim Hill demonstrated a motive to

shoot Hill some three years later. The similarity of the crimes also militates against the admissibility

of the evidence. See Bordis, 905 S.W.2d at 232. Moreover, even if the previous shooting had some

minimal relevance to an issue that was before the jury, Rule 404(b) would require the trial court to

exclude the evidence as its insignificant probative value is outweighed by the danger of unfair

prejudice. Tenn. R. Evid. 404(b)(3). Thus, the trial court erred by admitting into evidence the

pending charges against the defendant. The error was harmless, however, given the overwhelming

proof of his guilt. See Tenn. R. App. P. 36(a).

The Defendant also argues that the trial court erred in allowing evidence of a prior

confiscation of an ammunition clip from the Defendant. Specifically, The Defendant argues that the

evidence, although relevant, should have been excluded because its probative value was substantially

outweighed by the danger of unfair prejudice. Investigator Joseph Huckleby testified that he found

a .45 Glock magazine containing ten rounds of ammunition in the Defendant’s front pants pocket

during a security check of a vehicle containing another passenger who had outstanding warrants.

The Knoxville Police Department confiscated the magazine. The defense filed a motion in limine

to exclude evidence of the magazine clip, arguing that the information was highly speculative and

prejudicial to the Defendant’s presumption of innocence. The State sought to prove that the

ammunition in the magazine clip probably came from the same box as the unfired cartridges found

in the weapon discovered on Alcoa Highway. The defense argued that the report was too speculative

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and that by introducing evidence of the clip, the Defendant was unfairly prejudiced because the

Defendant’s prior involvement with police was implied by introduction of the evidence.

After conducting a jury-out hearing, the trial court allowed the State to introduce the

testimony of Officer Joseph Huckleby regarding the confiscation of the magazine clip. The trial

court stated, “I think the testimony of why [Officer Huckleby] approached the car, that he had a

warrant on an occupant of the car, that he patted the people down in the car and found [the magazine]

is perfectly proper.” In ruling that the evidence concerning the clip was admissible, the trial court

stated that because of the circumstances surrounding the confiscation of the clip, Tennessee Rule of

Evidence 404(b) was not applicable. The trial court further noted that even if it was applicable,

“there’s no unfair prejudice and it’s clearly relevant.” The trial court allowed Officer Huckleby to

testify about the confiscation of the clip, but prohibited the introduction of any evidence concerning

the smell of marijuana in the car or any legal actions against the Defendant. We find no abuse of

discretion by the trial court in determining that the probative value of evidence concerning the clip

clearly outweighed any danger of unfair prejudice.

D. Constitutionality of Sentencing Provisions

The Defendant argues that the trial court erred in failing to declare the sentencing provisions

of the Tennessee homicide laws to be unconstitutional. Specifically, the Defendant argues that the

trial court erred in allowing the State to use elements of the crime as enhancement factors to increase

the Defendant’s punishment to life imprisonment without the possibility of parole.

Prior to trial, the State gave notice that it intended to seek life imprisonment without the

possibility of parole. The State relied on the following aggravating circumstance to enhance the

Defendant’s punishment:

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 first degree murder, arson, rape, robbery, burglary, theft, kidnapping, aircraft

piracy, or unlawful throwing, placing or discharging of a destructive device or bomb

....

Tenn. Code Ann. § 39-13-204(i)(7). First degree felony murder is “[a] killing of another committed

in the perpetration of or attempt to perpetrate any first degree murder, arson, rape, robbery, burglary,

theft, kidnapping, aggravated child abuse or aircraft piracy.” Id. 39-13-202(a)(2). Because the

language of the aggravating factor and the language of the first degree felony murder statute are

similar, the Defendant argues that the trial court erred by allowing the State to use elements of the

offense of felony murder to enhance the Defendant’s punishment.

Our supreme court has held that the elements of felony murder may be used to enhance a

sentence to life imprisonment without the possibility of parole. State v. Butler, 980 S.W.2d 359, 363

(Tenn. 1998). However, the Defendant argues that Butler should be reconsidered in light of

Tennessee Code Annotated § 40-35-114 and the subsequent United States Supreme Court decisions

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Apprendi v. New Jersey, 530 U.S. 466 (2000), and Jones v. United States, 526 U.S. 227 (1999).

Tennessee Code Annotated § 40-35-114 provides that the listed enhancement factors, “if not

themselves essential elements of the offense as charged in the indictment,” may be used to enhance

a defendant’s sentence. However, in Butler, our supreme court addressed the argument that

Tennessee Code Annotated § 40-35-114 “reveals the legislature’s disapproval of using an

aggravating circumstance when the aggravator duplicates an element of the offense.” Butler, 980

S.W.2d at 363. The court in Butler stated that a “unique sentencing scheme,” id., is used in first

degree murder cases; thus, “the provisions in [Tennessee Code Annotated §] 40-35-114 have no

bearing on the sentencing procedures in first degree murder cases.” Id. In this case, the Defendant

was convicted of two counts of premeditated murder and two counts of felony murder. The trial

court merged the felony murder convictions into the premeditated murder convictions. Thus, the

trial court sentenced the Defendant for two counts of premeditated murder. This issue is without

merit.

Next, the Defendant argues that the aggravating circumstance relied on by the State is

unconstitutionally vague because it charges the Defendant with crimes not recognized under

Tennessee law. The State relied on the following aggravating circumstance:

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 first degree murder, arson, rape, robbery, burglary, theft, kidnapping, aircraft

piracy, or unlawful throwing, placing or discharging of a destructive device or bomb

....

Tenn. Code Ann. § 39-13-204(i)(7). The culpable mental state “knowing” refers to

a person who acts knowingly with respect to the conduct or to circumstances

surrounding the conduct when the person is aware of the nature of the conduct or that

the circumstances exist. A person acts knowingly with respect to a result of the

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

cause the result.

Id. § 39-11-302(b). First degree murder is the “premeditated and intentional killing of another.” Id.

§ 39-13-202(a)(2). The culpable mental state “‘intentional’ refers to a person who acts intentionally

with respect to the nature of the conduct or to a result of the conduct when it is the person’s

conscious objective or desire to engage in the conduct or cause the result.” Id. § 39-11-302(a). The

Defendant argues that it was error for the State to be required to prove the culpable mental state of

“intentional” to convict the Defendant of first degree murder, but to be required to prove only the

less culpable mental state of “knowingly” with regard to the aggravating circumstance. The

Defendant argues that the State should not be allowed to enhance the Defendant’s punishment by

proving a less culpable mental state than is required to prove the underlying offense relied upon by

the State in the aggravating circumstance.

We do not find this argument to be persuasive. There is no requirement that an aggravating

circumstance include a mens rea “equal” to the mens rea required for first degree premeditated

murder. An aggravating circumstance is not necessarily a distinct criminal offense, involving a mens

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rea, but is rather a circumstance pertaining to a murder that is deemed by our legislature to warrant

a more severe punishment. Furthermore, several of the possible statutory aggravating circumstances

contain no language indicating that any mens rea is required. See, e.g., id. § 39-13-

204(i)(1),(2),(4),(5),(6),(8),(12). Thus, we conclude that there is no constitutional defect in the

enhancement of the Defendant’s punishment to life without the possibility of parole for intentionally

and with premeditation killing two victims if the jury concludes beyond a reasonable doubt that the

Defendant also knowingly killed the victims during an aggravated robbery. This issue is without

merit.

The Defendant next argues that his sentence of life imprisonment without the possibility of

parole is unconstitutional because it constitutes cruel and unusual punishment. Pursuant to the

Eighth Amendment to the United States Constitution, “excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishments inflicted.” The language of Article I,

§ 16 of the Tennessee Constitution is virtually identical to that of the Eighth Amendment.

The Defendant has failed to cite any authority for the proposition that a sentence of life

without the possibility of parole is disproportionate for the offense of first degree murder.

Accordingly, this issue is waived. Tenn. R. App. P. 27(a)(7). Regardless, we conclude that the

Defendant’s contention is without merit. The United States Supreme Court upheld the imposition

of a mandatory sentence of life imprisonment without the possibility of parole for a conviction of

possession of more than 650 grams of cocaine in the face of an Eighth Amendment challenge. See

Harmelin v. Michigan, 501 U.S. 957 (1991). Based on the Harmelin decision, our Court has held

that “a sentence of life imprisonment without the possibility of parole for first degree murder would

not violate [the Eighth Amendment].” State v. Jack Jay North, Jr., No. 02C01-9512-CC-00369,

1996 Tenn. Crim. App. LEXIS 758, at *91 (Tenn. Crim. App., Jackson, Dec. 9, 1996). Moreover,

the Tennessee Supreme Court has held that the death penalty is not a per se violation of Article I, §

16 of the Tennessee Constitution. State v. Black, 815 S.W.2d 166, 187-88 (Tenn. 1991). Therefore,

we conclude that the Defendant’s sentence is not, per se, cruel and unusual punishment under the

Tennessee Constitution. See State v. Jack Jay North, Jr., 1996 Tenn. Crim. App. LEXIS 758, at *9.

E. Indictment

The Defendant argues that his indictment was constitutionally defective on its face because

it failed to allege facts to enhance the Defendant’s punishment to life imprisonment without the

possibility of parole. Generally, defenses based upon indictment deficiencies must be presented prior

to trial. Tenn. R. Crim. P. 12(b), (f). Thus, this issue is waived. Nevertheless, we will briefly

address the Defendant’s argument.

The Defendant challenges the constitutionality of his indictment based upon the United States

Supreme Court decisions in Jones v. United States, 526 U.S. 227 (1999), and Apprendi v. New

Jersey, 530 U.S. 466 (2000).

In Jones, the Court construed a federal statute and noted that the constitutional

guarantees of due process, notice and trial by jury require that any fact, other than a

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previous conviction, used to enhance a sentence above the statutory maximum must

be (1) charged in the indictment, (2) submitted to the jury, and (3) proven beyond a

reasonable doubt. Jones, 526 U.S. at 243, n.6. In Apprendi, the Court held that the

Fourteenth Amendment extends these requirements to cases involving state statutes.

Apprendi, 530 U.S. at 476.

State v. James Henderson Dellinger and Gary Wayne Sutton, No. E1997-00196-SC-DDT-DD, 2002

Tenn. LEXIS 207, at *14-*15 (Tenn., Knoxville, May 7, 2002) (emphasis in original).

In this case, the Defendant contends that his indictment failed to comply with the Apprendi

requirements because it did not contain any facts alleging aggravating factors used to sentence the

Defendant. However, this argument fails because life imprisonment without the possibility of parole

is within the statutory range of punishment prescribed by the legislature for first degree murder. See

Tenn. Code Ann. § 39-13-204(a). “The Apprendi holding applies only to enhancement factors used

to impose a sentence above the statutory maximum.” James Henderson Dellinger, 2002 Tenn.

LEXIS 207, at *16 (citing Apprendi, 530 U.S. at 481).

The Defendant also argues that the indictment failed to “protect the [D]efendant against

double jeopardy.” The indictments charged the Defendant with two counts of especially aggravated

robbery and two counts of theft of property valued over $1,000. The Defendant argues that in

Tennessee, theft has been declared a lesser-included offense of especially aggravated robbery, and

as such, theft is incorporated into the elevated charge of especially aggravated robbery and becomes

part of this offense. Based on this reasoning, the Defendant argues that charging him with the same

offense violates his right against double jeopardy.

Both the United States and Tennessee Constitutions require that an accused be sufficiently

informed of the “nature and cause of the accusation.” U.S. Const. amend. VI, § 14; Tenn. Const. art.

I, § 10; see also State v. Hill, 954 S.W.2d 725, 726-27 (Tenn. 1997). These provisions have been

interpreted to require that an indictment:

(1) provide notice to the accused of the offense charged; (2) provide the court with

an adequate ground upon which a proper judgment may be entered; and (3) provide

the defendant with protection against double jeopardy.

Wyatt v. State, 24 S.W.3d 319, 324 (Tenn. 2000); see also Hill, 954 S.W.2d at 727; State v. Byrd,

820 S.W.2d 739, 741 (Tenn. 1991).

Tennessee Code Annotated further requires that an indictment

state the facts constituting the offense in an ordinary and concise language, without

prolixity or repetition, in such a manner as to enable a person of common

understanding to know what is intended, and with that degree of certainty which will

enable the court, on conviction, to pronounce the proper judgment . . . .

Tenn. Code Ann. § 40-13-202.

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The Defendant argues that the jury’s verdicts convicting him of especially aggravated robbery

and theft violate his right against double jeopardy. The Double Jeopardy Clauses of the United

States and Tennessee Constitutions state that no person shall be twice put in jeopardy of life or limb

for the same offense. U.S. Const. amend. V; Tenn. Const. art. I, § 10. In addition to protecting

against a second prosecution for the same offense where the defendant was either convicted or

acquitted, this clause has also been interpreted to protect against multiple punishments for the same

offense. North Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled on other grounds by

Alabama v. Smith, 490 U.S. 794 (1989); State v. Phillips, 924 S.W.2d 662, 664 (Tenn. 1996) ).

Two indictments were filed against the Defendant. Count two of each indictment alleges

felony murder in the perpetration of a robbery, and count five of each indictment alleges felony

murder in the perpetration of a theft. These multiple charges all constitute the offense of felony

murder. See Tenn. Code Ann. § 39-13-202(a)(2). The Defendant was found guilty of both

especially aggravated robbery and theft for the same offense. The Defendant contends that the

“multiplication of offenses” caused him unfair prejudice which violated his rights against double

jeopardy. However, the two verdicts were merged under one conviction. Thus, the Defendant was

subject to only one sentence for especially aggravated robbery. This issue is without merit.

F. Sufficiency of the Evidence

The Defendant argues that insufficient evidence was presented at trial to convict him of two

counts of first degree premeditated murder, two counts of first degree felony murder in perpetration

of a robbery, two counts of felony murder in perpetration of theft, one count of especially aggravated

robbery, and one count of theft of property valued over $1,000.

When an accused challenges the sufficiency of the evidence, an appellate court’s standard

of review is whether, after considering the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324 (1979); State v. Duncan, 698

S.W.2d 63, 67 (Tenn. 1985). This rule applies to findings of guilt based upon direct evidence,

circumstantial evidence, or a combination of both direct and circumstantial evidence. State v.

Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).

In determining the sufficiency of the evidence, this Court should not re-weigh or re-evaluate

the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this

Court substitute its inferences for those drawn by the trier of fact from the evidence. State v. Buggs,

995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956). Questions

concerning the credibility of the witnesses, the weight and value of the evidence, as well as all

factual issues raised by the evidence are resolved by the trier of fact. Liakas, 286 S.W.2d at 859.

This Court must afford the State of Tennessee the strongest legitimate view of the evidence

contained in the record, as well as all reasonable inferences which may be drawn from the evidence.

State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Because a verdict of guilt against a defendant

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removes the presumption of innocence and raises a presumption of guilt, the convicted criminal

defendant bears the burden of showing that the evidence was legally insufficient to sustain a guilty

verdict. Id.

The Defendant in this case was charged in separate counts with first degree premeditated

murder and felony murder of two victims. The jury found the defendant guilty of the premeditated

murder and the felony murder of each victim on both counts. The trial court correctly accepted the

verdicts, but merged them into a single conviction for first degree murder as to each victim. “[T]he

trial court’s entry of only one judgment of conviction imposing only one sentence of life

imprisonment protects the defendant from receiving multiple punishments for the same offense.”

State v. Addison, 973 S.W.2d 260, 267 (Tenn. Crim. App. 1997). When a merger occurs, proof of

either felony murder or premeditated murder is sufficient to sustain the conviction. See State v.

Patrick Wingate, No. M1999-00624-CCA-R3-CD, 2000 Tenn. Crim. App. LEXIS 414, at *19 (Tenn.

Crim. App., Nashville, May 25, 2000). The defendant in this case, consequently, cannot prevail on

his claim that the evidence is insufficient to support his convictions unless sufficient evidence of

both felony murder and premeditated murder is lacking. Such is not the case.

We conclude that the jury was presented with sufficient evidence to convict the Defendant

of first degree felony murder. Felony murder is defined as “[a] killing of another committed in the

perpetration of or attempt to perpetrate any first degree murder, arson, rape, robbery, burglary, theft,

kidnapping, aggravated child abuse or aircraft piracy . . . .” Tenn. Code Ann. § 39-13-202(a)(2).

Myron Lea Kellogg testified that just two days before the offense, Garner purchased a

kilogram of cocaine for $27,000. On the day of the offense, Garner asked Kellogg for a ride because

he said that he had a drug deal to make. Senecal Toure Teeter testified that on the day of the offense,

Garner stated that he was “about to go make a sale” and left Howe Park.

Brian Whitman testified that on the day of the offense, the Defendant went to Stacey’s Place

in Alcoa to buy cocaine from Garner. According to Whitman, while he was outside using the phone,

he heard four shots. Whitman saw the Hill run outside towards the convenience store; then he saw

the Defendant run outside with a plastic bag, which he later found out was full of “dope.” Whitman

testified that the Defendant sped away from Stacey’s Place and led the police on a chase. At some

point, Whitman observed a gun in the front seat of the car. Officers found a grocery bag full of

cocaine in the car that the Defendant was driving. We conclude that sufficient evidence was

presented to convict the Defendant of first degree felony murder in the perpetration of a robbery.

From the above facts, we also conclude that sufficient evidence was presented for the jury

to convict the Defendant of especially aggravated robbery. Especially aggravated robbery is an

intentional or knowing theft of property from the person of another by violence or by putting the

person in fear, “[a]ccomplished with a deadly weapon,” id. § 39-13-403(a)(1), and “[w]here the

victim suffers serious bodily injury.” Id. § 39-13-403(a)(2).

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Finally, we conclude that sufficient evidence was presented to convict the Defendant of first

degree premeditated murder. First degree premeditated murder is the premeditated and intentional

killing of another person. Id. § 39-13-202(a)(1). Once a homicide has been established, it is

presumed to be second degree murder, and the State has the burden of proving premeditation to raise

the offense to first degree murder. State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999) (citing State v.

Nesbit, 978 S.W.2d 872, 898 (Tenn. 1998)). Premeditation is defined as “an act done after the

exercise of reflection and judgment.” Tenn. Code Ann. § 39-13-202(d).

“Premeditation” means that the intent to kill must have been formed prior to the act

itself. It is not necessary that the purpose to kill pre-exist in the mind of the accused

for any definite period of time. The mental state of the accused at the time the

accused allegedly decided to kill must be carefully considered in order to determine

whether the accused was sufficiently free from excitement and passion as to be

capable of premeditation.

Id. Premeditation is the process of thinking about a proposed killing before engaging in the

homicidal conduct. State v. Brown, 836 S.W.2d 530, 540-41 (Tenn. 1992).

The existence of premeditation is a question of fact for the jury to determine and may be

inferred from the circumstances surrounding the offense. State v. Rosa, 996 S.W.2d 833, 837 (Tenn.

Crim. App. 1999) (citing Brown, 836 S.W.2d at 539). “[T]he use of a deadly weapon upon an

unarmed victim; the particular cruelty of the killing; declarations by the defendant of an intent to kill;

evidence of procurement of a weapon; preparations before the killing for concealment of the crime;

and calmness immediately after the killing” may support the existence of premeditation. See State

v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997). This Court has also ruled that the jury may infer

premeditation from planning activity by the defendant before the killing, evidence concerning the

defendant’s motive, and the nature of the killing. State v. Bordis, 905 S.W.2d 214, 222 (Tenn. Crim.

App. 1995).

Viewing the evidence in the light most favorable to the State, a jury could have reasonably

found that the Defendant killed the victims after the exercise of reflection and judgment. Whitman

testified that the Defendant was wearing a bullet-proof vest when Whitman and the Defendant left

to go to Alcoa. At the time of his arrest, the Defendant was wearing a bullet-proof vest. Autopsies

on the victims revealed that both Garner and Hill died from gunshot wounds. Garner was shot in

the top of the head and in the mouth. Hill was shot twice in the back. The jury could have

reasonably inferred that the Defendant procured and concealed the murder weapon prior to killing

the victims. Having carefully reviewed the record, we conclude that the evidence is sufficient to

support the jury's verdict in this case.

III. CONCLUSION

Although the trial court dismissed the charges of theft and especially aggravated robbery in

indictment number 11329, an erroneous judgment was entered in which the trial court found the

Defendant guilty of the especially aggravated robbery charge and sentenced him to twenty-five years

incarceration. Therefore, the case is remanded to the trial court solely to enter a corrected judgment

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in Count III of indictment number 11329. The judgment of the trial court is AFFIRMED in all other

respects.

___________________________________

ROBERT W. WEDEMEYER, JUDGE

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