State of Tennessee v. John T. Freeland, Jr.

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

April 10, 2014 Session Heard at McKenzie1

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

Automatic Appeal from the Court of Criminal Appeals

Circuit Court for Madison County

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

No. W2011-01828-SC-DDT-DD - Filed September 17, 2014

Following a bench trial, the defendant was convicted of first degree premeditated murder,

first degree felony murder, especially aggravated kidnapping, and tampering with evidence.

The trial court imposed a sentence of death based on three aggravating circumstances: (1) the

defendant had previously been convicted of one or more felonies involving the use of

violence; (2) the murder was committed for the purpose of avoiding, interfering with, or

preventing a lawful arrest or prosecution of the defendant; and (3) the murder was knowingly

committed while the defendant had a substantial role in committing a robbery. See Tenn.

Code Ann. § 39-13-204(i)(2), (6), (7) (2010 & Supp. 2013). The Court of Criminal Appeals

affirmed the defendant’s conviction and sentence. On automatic appeal to this Court, we

designated the following issues for oral argument: (1) whether the Court of Criminal Appeals

committed error by affirming the trial court’s determination that the defendant’s confessions

were freely and voluntarily made; and (2) whether under our mandatory review required by

Tennessee Code Annotated section 39-13-206(c)(1), the sentence of death is disproportionate

or invalid.2 Having carefully considered the issues raised by the defendant and the

mandatory review provisions, we affirm the judgment of the Court of Criminal Appeals. We

remand the case to the trial court, however, for the entry of a corrected judgment reflecting

the trial court’s merger of the defendant’s convictions for first degree murder into a single

conviction.

1

Oral argument was heard in this case on April 10, 2014, at Bethel University in McKenzie,

Tennessee, as part of this Court’s S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students)

project.

2

“Prior to the setting of oral argument, the Court shall review the record and briefs and consider all

errors assigned. The Court may enter an order designating those issues it wishes addressed at oral argument.”

Tenn. Sup. Ct. R. 12(2).

Tenn. Code Ann. § 39-13-206(a)(1);

Judgment of the Court of Criminal Appeals Affirmed;

Case Remanded to the Trial Court for Entry of a Corrected Judgment

J ANICE M. H OLDER, J., delivered the opinion of the Court, in which G ARY R. W ADE, C.J., and

C ORNELIA A. C LARK, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.

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

Freeland, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;

Leslie E. Price, Assistant Attorney General; Jerry Woodall, District Attorney General; and

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

OPINION

I. Facts and Procedural History

On June 22, 2009, a Chester County, Tennessee grand jury indicted John T. Freeland,

Jr., on charges of first degree premeditated murder, first degree murder in the perpetration

of especially aggravated kidnapping, especially aggravated kidnapping, conspiracy to

commit aggravated robbery, and tampering with evidence.3 The State filed its notice of

intent to seek the death penalty based on the aggravating circumstances set forth in

Tennessee Code Annotated section 39-13-204(i)(2), (i)(6), (i)(7), and (i)(14). The trial court

granted Mr. Freeland’s motion for a change of venue and moved the case to Madison

County, Tennessee.

Mr. Freeland waived his right to a jury trial in the guilt and penalty phases.4 During

a bench trial, the following facts were revealed.

3

On April 14, 2010, the trial court granted the State’s motion to amend the indictment to correct the

date in count two from March 7, 2007, to March 7, 2009. On December 7, 2010, the trial court entered an

Order of Nolle Prosequi in count four of the indictment, which alleged conspiracy to commit aggravated

robbery, and renumbered the remaining counts.

4

Tennessee Code Annotated section 39-13-205(a) (2010) provides that “[i]n trials of first degree

murder . . . [and] with the advice of the defendant’s attorney and the consent of the court and district attorney

general,” the defendant may waive his right to have a jury determine both guilt and punishment.

2

Guilt Phase

On March 7, 2009, Harold Cain and his father, W.S. Cain, were walking on their

property near Dry Creek Lane in Chester County when they heard a gunshot. Approximately

fifteen minutes later, the Cains discovered a body lying near the road. Harold Cain described

the person as a “lady laying face down . . . spread out . . . [and] clothed” with what looked

like “a massive head wound.” He called 9-1-1, and the dispatcher asked him to check the

person’s wrist for a pulse. Mr. Cain said that although he found no pulse, the body was not

cold. Other than checking for a pulse, Mr. Cain did not touch or move the body, and the

Cains secured the area at the dispatcher’s request.

Bradley Crouse, a deputy with the Chester County Sheriff’s Department, responded

to the scene at 3:22 p.m. When Deputy Crouse arrived on the scene, he observed a white

female in her mid-to-late fifties or sixties lying face down with blood pooling around her

head. He had no contact with the body and collected no evidence. Deputy Crouse requested

assistance from Henderson Police Officer Jason Rose and contacted the Tennessee Bureau

of Investigation (“TBI”).

Dr. Paul Schwartz, the Chester County medical examiner, arrived at the scene in the

early afternoon to begin his assessment of the cause of death. He observed the body lying

along a dirt road with an apparent gunshot wound to the head and saw at least one shell

casing. Dr. Schwartz noted that the blood around her head was in the early stages of clotting,

which indicated to him that the body had not been on the roadside very long. He ordered an

autopsy to identify the victim and to determine the cause of her death.

At approximately 11:36 p.m. on March 7, 2009, Deputy Mark Taylor of the Madison

County Sheriff’s Department was dispatched to Potts Chapel Road in Madison County where

a car was on fire in a field. Deputy Taylor checked the vehicle identification number and

determined that the car, a Chevrolet Corsica, was registered to Carolyn Ward. The Chester

County Sheriff’s Department took possession of the car for further investigation.

Jason Crouse, an officer with the Chester County Sheriff’s Department, assisted in the

investigation at Dry Creek Lane. He initially was unable to determine the deceased woman’s

identity. When he learned of the burned vehicle in Madison County, however, Officer

Crouse suspected that the vehicle and the body were connected. Officer Crouse obtained a

driver’s license photo and confirmed that the victim was Carolyn Ward.

Dr. Stacy Turner, a forensic pathologist employed by Forensic Medical in Nashville,

Tennessee, performed Ms. Ward’s autopsy. Dr. Turner observed gunshot wounds to Ms.

Ward’s head and right hand. Dr. Turner agreed that the position of the body at the time

police responded to the call was consistent with Ms. Ward having been shot from behind.

3

Dr. Turner further opined that the bullet passed through Ms. Ward’s skull from right to left

and exited the left skull before entering her right hand and exiting through her right palm.

Following her examination of Ms. Ward’s body, Dr. Turner determined that the cause of

death was multiple gunshot wounds and that the manner of death was homicide.

The investigation revealed that at approximately 1:33 p.m. on March 7, 2009, Ms.

Ward called her son-in-law, Donnie Davis, to tell him that she was on her way to pick up the

Davises’ dog from their dog groomer and planned to leave the dog at their home. The dog

was at the Davis residence when Mr. Davis arrived between 2:15 p.m. and 2:30 p.m.

Johnna Arnold and her sister met Ms. Ward for lunch on March 7, 2009, and then

drove Ms. Ward to her home. Ms. Ward told Ms. Arnold that she planned to pick up her

daughter’s dog from the groomer by 2:00 p.m., return the dog to her daughter’s home, and

go to Fred’s to purchase several two-liter bottles of Pepsi that were on sale. Ms. Arnold and

her sister traveled to McNairy County, Tennessee, and returned to Henderson just before

2:00 p.m. As Ms. Arnold approached the intersection near Fred’s, she saw Ms. Ward leaving

the Fred’s parking lot with a passenger. She described the passenger as a black person

wearing a hoodie. Ms. Arnold initially gave no thought to the passenger because Ms. Ward

frequently gave rides to others. Ms. Arnold became concerned, however, when she noticed

Ms. Ward driving faster than her normal speed. Ms. Arnold saw another vehicle following

Ms. Ward’s vehicle. Both vehicles were traveling in the direction of Pinson, Tennessee.

Chester County Sheriff Blair Weaver, who was Chief Deputy on March 7, 2009, was

involved in the investigation of Ms. Ward’s murder. He obtained a video surveillance

recording from the Piggly Wiggly grocery store (“Piggly Wiggly”) located adjacent to

Fred’s. Sheriff Weaver viewed the video and identified a green Chevrolet Corsica that he

believed to be Ms. Ward’s car leaving the parking lot at approximately 1:59 p.m. Sheriff

Weaver noticed that another car was following “pretty close” to Ms. Ward’s car. The

recording showed that the second car, a blue Buick Roadmaster, had pulled into the Fred’s

parking lot at 1:53 p.m. Sheriff Weaver could not see the occupants of the Roadmaster and

could not obtain a license plate number. The vehicles were traveling toward Pinson, where

Ms. Ward’s body was eventually found and where the Corsica was burned.

Chief Deputy Mark Griffin of the Chester County Sheriff’s Department participated

in the investigation. He identified a number of photographs depicting the crime scene.

Deputy Griffin collected items of evidence including a .380-caliber shell casing, a bullet

found near Ms. Ward’s hand, and a water bottle. He provided these items to Agent Mark

Lewis of the TBI. He recalled seeing tire marks on Dry Creek Lane but did not order casting

of the tire prints. Deputy Griffin recalled that the burning car in Madison County helped

them identify Ms. Ward from her driver’s license photo. He also watched the surveillance

recording from Piggly Wiggly.

4

On Monday, March 9, 2009, Deputy Griffin sought assistance from Lieutenant Patrick

Willis, Sergeant Phillip Kemper, and Investigator Julian Wiser, all of the Jackson, Tennessee,

Police Department’s Gang Enforcement Team, concerning the Buick Roadmaster shown in

the video recording. Sergeant Kemper and Lieutenant Willis briefed Investigators Samuel

Gilley and Warren Olden, members of the Jackson Street Crimes Unit, and told them to be

on the lookout for a blue Buick Roadmaster.

On March 10, 2009, Investigator Gilley began looking for a heavy-set, black male and

a vehicle matching the description of the vehicle shown in the Piggly Wiggly surveillance

recording. Investigator Gilley and Officer Olden saw a blue Buick Roadmaster parked at a

shop on Royal Street across from the Popeye’s Chicken restaurant. They eventually

observed a heavy-set, black male with dreadlocks getting into the car. The two officers

followed the Roadmaster but lost sight of the vehicle. The officers searched the State’s

database for the license plate number on the Roadmaster and determined that the vehicle was

registered to John T. Freeland and that Mr. Freeland’s license was “suspended with priors.”

The driver’s license photo on record for Mr. Freeland matched the person whom they saw

driving the Roadmaster.

Soon thereafter, Investigator Gilley and Officer Olden saw the Roadmaster leaving

the Park Place Apartments in Jackson and initiated a traffic stop. Mr. Freeland was driving

the vehicle at the time of the stop, and his passenger was identified as Marcus Thompson.

Mr. Freeland produced a Tennessee driver’s license. After searching the State’s database,

Investigator Gilley confirmed that Mr. Freeland’s license was suspended. Investigator Gilley

placed Mr. Freeland under arrest, and Officer Olden began searching the vehicle. The search

revealed a gun and a copy of the Jackson Sun newspaper that contained a story about Ms.

Ward’s shooting in Chester County. The search also revealed a bandana, a ski mask, a live

.380-caliber handgun round, and a pair of sports gloves. In the trunk of the car, the officers

discovered a ski mask and a small amount of marijuana. Investigator Gilley placed Mr.

Freeland under arrest and handcuffed him but did not give him Miranda warnings.

Officers Gilley and Olden secured the vehicle and notified Sergeant Kemper that a

vehicle matching the Roadmaster in the Piggly Wiggly video recording had been stopped.

Sergeant Kemper arrived after the traffic stop and immediately recognized that Mr.

Thompson was wearing “gang type clothing,” specifically, a bandana hanging from his

pocket. Sergeant Kemper knew from his training and experience that gang members

commonly carry bandanas and refer to them as “flags” when folded and worn in the back

pocket. The vehicle also contained a camouflage face mask, a pair of black gloves, a blue

bandana, and a black bandana. Sergeant Kemper photographed the items in the vehicle, and

the vehicle was sealed and transported to the TBI laboratory in Nashville for processing.

5

The Jackson Police Department subsequently informed Deputy Griffin that they had

located the blue Buick Roadmaster and had two people in custody. Deputy Griffin viewed

the vehicle and described it as “very similar” to the car in the video recording. He learned

that the driver of the vehicle was John T. Freeland and that Lieutenant Willis and Sergeant

Kemper had spoken to Mr. Freeland. Mr. Freeland told the officers that he had taken two

license plates from the victim’s car and had thrown them into the area surrounding the

burned car. Deputy Griffin traveled to the scene and located two license plates, which he

gave to Agent Lewis. Johnny Garner, the Chester County Clerk, later identified the plates

as belonging to Ms. Ward.

On March 10, 11, and 16, 2009, Mr. Freeland submitted to three separate interviews

with Sergeant Kemper and Lieutenant Willis concerning his involvement in Ms. Ward’s

death. Before each interview, Sergeant Kemper read to Mr. Freeland the Jackson Police

Department’s “Rights Waiver Form,” which explains a suspect’s constitutional rights

pertaining to interviews, including his rights under Miranda v. Arizona, 384 U.S. 436 (1966).

Mr. Freeland signed the Rights Waiver Form before each interview began. Sergeant Kemper

further testified that he made written notes during each interview and reduced those notes to

formal, written statements that Mr. Freeland reviewed, approved, initialed, and signed.

In his March 10, 2009 statement, Mr. Freeland explained that on March 7, 2009, he

and Mr. Thompson picked up Mr. Thompson’s girlfriend, Tashondra Mosley, and were “just

chilling and riding around” in Henderson, eventually pulling into the Fred’s parking lot.

Moments later, Mr. Thompson exited Mr. Freeland’s car and jumped into the passenger seat

of a Chevrolet Corsica that was being driven by a white lady. The lady and Mr. Thompson

drove away in the Corsica, headed toward Jackson. Mr. Freeland and Ms. Mosley followed

behind them, and when the lady suffered an apparent seizure, the two vehicles stopped on

the shoulder of the road. Mr. Thompson told Mr. Freeland that “he was going to drop [the

lady] off.” According to Mr. Freeland, he then met Mr. Thompson, who was driving the

Corsica. Mr. Thompson got into Mr. Freeland’s car with Ms. Mosley and instructed Mr.

Freeland to drive the Corsica to an elementary school.

Later, Mr. Thompson and Ms. Mosley joined Mr. Freeland in the Corsica. After Mr.

Freeland purchased gloves from Dick’s Sporting Goods, the trio traveled to Memphis,

Tennessee, to commit robberies. When they returned to Jackson, Mr. Thompson drove the

Corsica to a rural area, and Mr. Freeland and Ms. Mosley followed in Mr. Freeland’s vehicle.

They removed license plates from the Corsica, which Mr. Freeland threw “like frisbees.”

Mr. Thompson poured gasoline on the front of the Corsica’s interior, lit it, and the three of

them drove away. Mr. Freeland said he did not know that anything was going to happen

when they drove to Henderson.

6

On March 11, 2009, Mr. Freeland was interviewed about other possible crimes that

he had referenced during the March 10 interview. During his second interview, Mr. Freeland

told Sergeant Kemper that he wanted to clarify portions of his March 10 statement because

he was tired from the night before and “had a lot on [his] mind.” Consistent with his

previous statement, Mr. Freeland stated that he, Mr. Thompson, and Ms. Mosley traveled to

Henderson in Mr. Freeland’s vehicle to “get a car to go to Memphis in.” As they sat in the

Fred’s parking lot, Mr. Thompson pointed to an older, white lady who had exited Fred’s and

was putting her bags into the trunk of a Corsica. At Mr. Thompson’s instruction, Mr.

Freeland got into the passenger side of the vehicle and ordered the lady to drive. Mr.

Freeland had a gun lying on his lap. Mr. Thompson and Ms. Mosley followed behind in Mr.

Freeland’s vehicle. The vehicles pulled off the road, however, when the lady had a seizure.

Mr. Thompson moved to the backseat, the lady moved to the passenger’s seat, and Mr.

Freeland drove the vehicle. Mr. Freeland stopped the vehicle on a dirt road, and Mr.

Thompson pulled the lady out of the car onto her knees. Mr. Freeland left them and drove

back down the road, turning the car around three times to confirm that they were alone. He

heard a gunshot and saw the lady lying face down with Mr. Thompson standing

approximately two feet away looking at the gun. Mr. Thompson got back into the vehicle

and sat silently for a minute before uttering, “Man, it was hard to pull the trigger.” The two

men met Ms. Mosley at the elementary school. After purchasing marijuana, they drove to

Memphis. When they returned to Jackson, Mr. Thompson placed bottles of Pepsi and clear

floor mats in Mr. Freeland’s trunk. Mr. Freeland confirmed his March 10 statement about

burning the lady’s car, and he told the officers that he believed the bottles of Pepsi were in

Ms. Mosley’s apartment.

On March 16, 2009, Investigator Willis advised Sergeant Kemper that Mr. Freeland

wanted to speak with them again to “clear up some confusion” created by his prior two

statements. Mr. Freeland explained that while he was checking the road, he only turned the

car around once instead of three times as previously stated. He told the officers that he heard

the gunshot as he was turning the car around and saw Mr. Thompson standing over the lady’s

body with a gun. When Mr. Thompson got into the car, he told Mr. Freeland that he knew

why the lady was in a hurry to get out of the car. Mr. Thompson said the lady had a cell

phone in her pocket. Mr. Thompson thought the lady would run, but she did not. Mr.

Freeland said the two liters of Pepsi at his apartment were probably from the lady’s trunk.

Mr. Freeland said it was unlike him to “be involved in these crimes” but that he “just got

caught up needing money.” He said he met Mr. Thompson when he was twenty-six years

old, was in bad financial shape, and did not want to move back into his parents’ home where

he would be subject to their rules.

On March 17, 2009, Lieutenant Willis asked Mr. Freeland if he would submit to a

polygraph examination. Mr. Freeland agreed, and on March 17, 2009, he was transported

7

to TBI headquarters for the examination. TBI Special Agent Valerie Trout met with Mr.

Freeland and explained that she would be conducting the polygraph examination.5 Special

Agent Trout first discussed with Mr. Freeland a TBI Consent to Polygraph form, which

informed Mr. Freeland that taking a polygraph examination was voluntary and established

the parameters of the examination. After Special Agent Trout read the form aloud to Mr.

Freeland, Mr. Freeland signed and dated it. Lieutenant Willis witnessed his signature, and

Special Agent Trout read aloud to Mr. Freeland a “TBI Warning of Constitutional Rights

Form.” Mr. Freeland read the waiver portion aloud and after indicating that he understood

his rights, signed the waiver, which was witnessed by Special Agent Trout and Lieutenant

Willis.

Lieutenant Willis went to an adjoining observation room with a two-way mirror where

he could observe and hear the interview. Shortly after the interview began, however, Mr.

Freeland dropped his head and told Special Agent Trout that he shot Ms. Ward. Based on

Mr. Freeland’s admission, Special Agent Trout stopped preparing Mr. Freeland for the

polygraph examination and asked Lieutenant Willis to return to the interview room to

witness the taking of Mr. Freeland’s written statement. Special Agent Trout explained to Mr.

Freeland that he could write the statement, she could write the statement, or she could type

the statement. Mr. Freeland indicated that he wanted the statement to be typed. The

statement began at 12:03 p.m. After the statement was typed, Special Agent Trout read the

statement with Mr. Freeland and allowed him to make and initial any changes. Mr. Freeland

signed the statement in the presence of Special Agent Trout and Lieutenant Willis. Special

Agent Trout read the statement into the record.

Mr. Freeland stated that on Saturday morning, March 7, 2009, he, Marcus Thompson,

and Ms. Mosley’s son, Hog, took Ms. Mosley to the location of her community service.

While Ms. Mosley was performing her community service, Mr. Thompson talked with Mr.

Freeland about the need for a car that could not be traced back to them to be used in

robberies. They discussed locations from which they could steal a car and planned to target

an older person, steal the older person’s car, and leave that person in another location outside

of town.

5

In a pretrial ruling, the trial court excluded any reference to a polygraph examination or to Mr.

Freeland’s willingness to take a polygraph test. As discussed below, Mr. Freeland’s counsel raised for the

first time during the trial the claim that Mr. Freeland’s March 17, 2009 statement should be suppressed

because he was induced by the false promise of a polygraph test. The trial court allowed counsel to pursue

this line of testimony for the limited purpose of determining whether Mr. Freeland was falsely induced into

giving his statement to Special Agent Trout. The trial court explained that it had the ability in a bench trial

to disregard inadmissible or irrelevant evidence without affecting the outcome of the trial.

8

At approximately 12:00 noon, they met Ms. Mosley at her community service

location, took Hog to the home of Ms. Mosley’s mother, and returned to Ms. Mosley’s home

to change clothes. When they left for Henderson, Ms. Mosley was wearing a black durag,

a black shirt, and blue gloves. Mr. Thompson was wearing the black pants and black

pullover later found in the trunk and black suede shoes with brown soles. Mr. Freeland was

wearing black Air Jordan shoes, black Dickies pants, a black sleeveless t-shirt, and the black

hoodie found in the trunk. Mr. Freeland also brought an orange t-shirt.

Ms. Mosley drove Mr. Freeland’s blue Buick Roadmaster to Henderson. Mr. Freeland

occupied the backseat, and Mr. Thompson rode in the front passenger seat. They intended

to steal a car at the car wash in Henderson, but Ms. Mosley missed the turn. Instead, they

ended up in the Fred’s parking lot. First, they followed an elderly couple driving a white

Lincoln automobile to their home. Ms. Mosley was unable to pull in behind them, and when

Ms. Mosley turned the car around, the elderly couple were removing groceries from their car.

When Mr. Freeland and his accomplices noticed an older woman sitting outside a

neighboring house, they abandoned their plan.

The three drove back to the Fred’s parking lot and followed a woman who was driving

a newer-model BMW. Ms. Mosley followed the BMW as it parked behind a restaurant. Ms.

Mosley asked the woman about the weather, and then Mr. Freeland told Ms. Mosley to drive

away.

When they went back to Fred’s, Mr. Thompson noticed a car that was parked in a

handicapped space in front of Fred’s and indicated to the others that “[r]ight there is the car.”

Mr. Thompson handed Mr. Freeland the .380-caliber handgun that Mr. Freeland had obtained

from a friend. Mr. Freeland jogged across the parking lot, got into the passenger seat of the

car, and with the gun on his leg, told the woman to drive.

The woman asked Mr. Freeland where they were going, but Mr. Freeland told her not

to worry about it. Ms. Mosley drove behind them in Mr. Freeland’s car. When Mr. Freeland

asked the woman why she was driving so slowly, she told him that she was epileptic and

should not be driving. The woman had a seizure while driving, but Mr. Freeland was able

to put his foot on the brake. Mr. Freeland said that he knew she was faking because he saw

her reach for the door handle when the car stopped. Ms. Mosley and Mr. Thompson stopped

the Buick Roadmaster in front of the woman’s vehicle. Mr. Thompson walked up to the

driver’s side and took the gun from Mr. Freeland. Mr. Thompson told the woman to

cooperate or he would kill her and handed the gun back to Mr. Freeland.

Ms. Mosley continued driving the Roadmaster, and the woman followed Ms. Mosley

and Mr. Thompson for several turns until Ms. Mosley stopped on a straight portion of the

road. Mr. Thompson got into the car with the woman and Mr. Freeland. The woman told

9

them that “[t]hey would not find all the money.” Mr. Thompson rummaged through the car

and found between sixty dollars and eighty dollars in her billfold. Mr. Thompson gave Ms.

Mosley twenty dollars and told her to go to the gas station and then to go home. Mr.

Freeland, Mr. Thompson, and the woman proceeded down a dirt road. Mr. Thompson

instructed the woman to get out of the vehicle, and when the woman moved too slowly for

Mr. Thompson, he yanked her to her knees. Mr. Thompson then told Mr. Freeland to go

down the road and make sure that no one was coming.

Mr. Freeland drove down the road, turned around, and came back. He saw Mr.

Thompson standing over the woman with the gun that Mr. Freeland had given him. Mr.

Thompson told Mr. Freeland that he could not pull the trigger and handed the gun to Mr.

Freeland. Mr. Freeland disengaged both safeties and began to return the gun to Mr.

Thompson when he saw a “look” in Mr. Thompson’s eyes that caused him to fear that Mr.

Thompson might shoot him. The woman was lying on the ground next to the driver’s side

of the car. Mr. Freeland stuck his arm out of the driver’s side window and shot the woman

in the head. Mr. Thompson asked Mr. Freeland why he shot the woman and questioned

whether Mr. Freeland was trying to “upstage him.” Mr. Thompson appeared to be angry that

he was not the shooter.

When questioned by Mr. Thompson as they drove away, Mr. Freeland confirmed that

the woman was dead. They saw Mr. Freeland’s car and realized that Ms. Mosley had not

returned home. Mr. Thompson scolded Ms. Mosley, got into the Roadmaster with her, and

told Mr. Freeland to meet them behind Lincoln Elementary School in Jackson. Because

others were in the area of the school, however, Mr. Freeland drove the stolen car into the

driveway of what appeared to be a vacant house. The three of them exited their vehicles and

examined the contents of the stolen car’s trunk but decided to leave when they saw a woman

on the front porch of the house. They drove to the apartment shared by Ms. Mosley and Mr.

Thompson, where they replaced the stolen car’s license plate with another license plate they

found in the trunk of the stolen car. Mr. Thompson gave Mr. Freeland twenty dollars to

purchase new gloves at Dick’s Sporting Goods, and they placed red tape over the light

illuminating the license plate of the stolen car so that it would not be obvious that the tag had

expired.

They purchased marijuana, and Ms. Mosley drove the two men to Memphis in the

stolen car to look for places to rob. On their way to Memphis, they stopped to purchase

gasoline, and Mr. Thompson asked Mr. Freeland to fill a Jungle Juice container with

gasoline. Later that day, they left Memphis after looking, without success, for places to rob.

They returned to the Mosley/Thompson apartment where they retrieved Mr. Freeland’s car.

Mr. Thompson removed from the stolen car some folding chairs, the two-liter bottles of

Pepsi, and the car’s floormats. He placed the floormats in the trunk of the Roadmaster.

10

Mr. Thompson drove away in the Corsica, and Mr. Freeland and Ms. Mosley followed

behind in the Roadmaster. Mr. Freeland originally thought that they were driving the Corsica

to the lake to dispose of it, but Mr. Thompson pulled the Corsica off the road and poured

gasoline into its interior. Mr. Freeland stood at the trunk of the Corsica and threw the license

plate “like a frisbee” toward the woods. Mr. Thompson dropped burning paper into the trunk

and into the interior of the vehicle. Mr. Freeland’s gloves were in the backseat of the vehicle.

After setting fire to the Corsica, Mr. Freeland drove Mr. Thompson and Ms. Mosley

back to the Mosley/Thompson apartment. Mr. Thompson left one of the bottles of Pepsi in

Mr. Freeland’s car, and Mr. Freeland put the other items in Mr. Thompson’s apartment.

When Mr. Thompson returned from the apartment, he told Mr. Freeland that Mr. Freeland

had obtained the status of “OBG, Original Baby Gangster,” which would make him second

in command. Mr. Thompson told Mr. Freeland that if they were incarcerated, Mr. Freeland

would be responsible for the murder and would become an “OG, Original Gangster.”

Mr. Thompson showed Mr. Freeland the victim’s cell phone. Mr. Freeland found a

license plate under the seat in his car. Mr. Freeland took the woman’s phone and the license

plate and threw them on his couch.

After providing this information to Special Agent Trout, Mr. Freeland initialed and

signed the statement.

Based on the information contained in Mr. Freeland’s statements, police searched the

residence shared by Mr. Thompson and Ms. Mosley. Lieutenant Willis also obtained the

consent of Mr. Freeland’s mother to search Mr. Freeland’s bedroom at her residence. There,

the officers retrieved black Dickies pants, black Air Jordan shoes, and a bandana. Jackson

Police Lieutenant Julian Wiser obtained consent to search the apartment of one of Mr.

Freeland’s girlfriends, Lakeshia Carroll, with whom he shared the apartment. Lieutenant

Wiser collected, among other things, mail addressed to Mr. Freeland at the apartment

address, a vehicle title for the Roadmaster, black Nike tennis shoes, an orange t-shirt, a black

t-shirt, brown pants, .22-caliber bullets, and a box of .380-caliber Remington ammunition.

Lieutenant Wiser also collected a cell phone and a handicapped hang tag, both of which were

later identified as belonging to the victim. Investigator Charles Mathis of the Jackson Police

Department assisted in the search of the apartment shared by Mr. Thompson and Ms.

Mosley. Investigator Mathis collected black clothing and several two-liter bottles of Pepsi

that he suspected were taken from the victim’s car.

TBI Special Agent Mark Lewis also participated in the investigation. He obtained a

surveillance video recording from the gas station where the three stopped after Ms. Ward was

killed. The video shows Mr. Freeland wearing an orange t-shirt and dancing while Mr.

Thompson purchased drinks. Special Agent Lewis also obtained DNA samples from Mr.

11

Freeland and Ms. Mosley.6 Special Agent Lewis examined Mr. Freeland’s cell phone and

reviewed photographs and text messages between Mr. Freeland and another girlfriend,

Chinita Perry. The State introduced as evidence a series of text messages exchanged

between Mr. Freeland and Ms. Perry near the time of Ms. Ward’s death. In addition, the

State introduced photographs retrieved from the cell phone showing Mr. Freeland in an

orange t-shirt and holding a gun.

TBI Special Agent Robert Daniel Royse, an expert in firearms and ballistics,

examined the .380-caliber handgun found in Mr. Freeland’s vehicle. The gun had three

safety features, two of which must be manually disengaged before firing. The gun was fully

functional and had no operational issues. Special Agent Royse examined the .380-caliber

cartridge found in the ashtray of Mr. Freeland’s vehicle, the shell casing found at the scene,

and the bullet found at the scene. He determined that the markings were consistent with

having been fired from the gun recovered from Mr. Freeland’s vehicle. Special Agent Royse

also determined that the box of ammunition recovered from Mr. Freeland’s apartment

matched the cartridge, shell casing, and bullet found in Mr. Freeland’s vehicle. Special

Agent Royse also concluded that the ammunition matched the bullet and shell casing that

were recovered at the crime scene and matched the three rounds remaining in the gun’s

magazine.

TBI Special Agent James Russell Davis analyzed swabs collected from Mr. Freeland’s

vehicle and from items found in his vehicle. He determined that the black Nike batting

gloves found in his vehicle contained gunshot residue. His tests also revealed the presence

of gunshot residue on the driver’s side door, passenger door, steering wheel, gearshift, and

console. Special Agent Davis found no gunshot residue on any of Mr. Freeland’s clothing

but explained that if the clothing had been washed or if Mr. Freeland shot the victim while

seated in the vehicle, the vehicle door would have prevented gunshot residue from scattering

to his clothing.

Hunter Greene, a TBI latent fingerprint examiner, examined items collected from Mr.

Freeland’s vehicle and residence. Mr. Greene found no identifiable prints on the handgun,

floor mats, cartridges, license tags, cell phone, or shell casings. He found, however, an

identifiable print on the handicapped hang tag that was recovered from Mr. Freeland’s

apartment. Mr. Greene explained that the absence of prints could be caused by a person

wearing gloves.

Special Agent Jennifer Shipman, a TBI serologist, examined a pair of green and white

gloves and a pair of black Nike gloves recovered from the blue Buick Roadmaster for the

6

Mr. Thompson’s DNA sample was already in the DNA database.

12

presence of DNA. Agent Shipman excluded Ms. Ward as a contributor of the DNA found

on either pair of gloves. She determined that Mr. Freeland was not a contributor of the DNA

found on the green and white gloves but that he was “the major contributor” of DNA on the

black Nike gloves.

Mr. Freeland testified on his own behalf against the advice of counsel and following

the trial court’s discussion with him concerning his decision to testify. Mr. Freeland said he

was guilty only of tampering with evidence through his participation in burning Ms. Ward’s

vehicle. As to the March 10, 2009 statement, Mr. Freeland said he did not execute a waiver

of his Miranda rights prior to giving the statement. According to Mr. Freeland, the officers

told him that they needed his signature on a waiver form approximately thirty or forty

minutes into the interrogation. Mr. Freeland acknowledged, however, that he understood

what he was signing and that he freely had a discussion with the officers.

When asked to identify the truthful portions of the March 10, 2009 statement, Mr.

Freeland said that the statement was false until the point at which he described Mr.

Thompson’s and Ms. Mosley’s return to Jackson from Memphis. He testified that he had no

knowledge of what occurred in Henderson and learned the details from talking with Mr.

Thompson and Ms. Mosley. Mr. Freeland explained that he was not under oath when he

gave the statement and that the officers threatened him, telling him that they had his car on

a video recording. Mr. Freeland asserted, however, that his trial testimony was truthful

because he was under oath.

Mr. Freeland recalled giving a statement on March 11, 2009, and signing a waiver

form within five or ten minutes of entering the interrogation room. He testified that he had

been sleeping “very little” at the time and had given false information to the officers but was

not under oath. He knew about the bottles of Pepsi because he saw Mr. Thompson remove

items from Mr. Freeland’s car after they burned the stolen car.

On March 16, 2009, Mr. Freeland gave his third statement after he told his mother that

he would like to speak with the investigators because he wanted to tell the officers that he

was not in Chester County and had nothing to do with Ms. Ward’s murder. Mr. Freeland

claimed that when he tried to tell the officers the truth, they told him that they had evidence.

Mr. Freeland acknowledged, however, that he signed the waiver form.

Mr. Freeland testified that he agreed to take a polygraph examination and was

transported to the TBI office. When he arrived, Mr. Freeland signed two waivers—waiver

of rights and a consent to take the polygraph examination. He testified that his sole purpose

in going to the TBI office was to submit to a polygraph examination. When asked about the

resulting statement, Mr. Freeland stated that he learned the details of the crime scene from

conversations with Mr. Thompson and Ms. Mosley and from the various officers’

13

interrogations. He explained that he lied to Special Agent Trout about shooting the victim

because it was the only way that he could take a polygraph examination.

Mr. Freeland admitted that he went to the gas station shortly after Ms. Ward’s death

but claimed that he was unaware that she had been killed. He acknowledged that his black

gloves may have contained gunshot residue. He claimed, however, that the presence of the

gunshot residue resulted from a secondary transfer and not from firing the weapon.

Mr. Freeland testified that he lied to investigators because he felt threatened by Mr.

Thompson. He stated that he never gave them details because he did not know the details.

He claimed that the investigators inserted the details and that the only changes he made to

his statement on March 17 were those that the officers permitted him to make. Mr. Freeland

stated that he would have admitted to anything just to be allowed to take the polygraph test.

Finally, Mr. Freeland denied speaking with anyone else about the crime and denied knowing

anyone named “Hywon Reed.”

In rebuttal, the State called Hywon Reed, who shared a jail cell with Mr. Freeland in

Jackson in December 2010. According to Mr. Reed, Mr. Freeland gave him details about

carjacking someone in Chester County. Mr. Freeland described how he, his friend, and his

friend’s girlfriend targeted a victim in a parking lot. Mr. Freeland told him that he had a gun

and got into the car with the victim. Mr. Freeland’s friend and girlfriend drove behind them

in his vehicle. Mr. Freeland told Mr. Reed that the victim “pissed him off” because she

would not give him any money or her ATM code. Mr. Reed testified that Mr. Freeland told

him that the victim said she was going to report them to the police and could identify them.

Mr. Freeland admitted that at that point he knew he would have to kill her. Mr. Reed sent

a letter to the district attorney general detailing his conversation with Mr. Freeland.

At the close of the proof, the trial court found Mr. Freeland guilty of all charges. As

noted by the Court of Criminal Appeals, No. W2011-01828-CCA-R3-DD, 2013 WL

2423934, at *19 (Tenn. Crim. App. June 3, 2013), the trial court erred by failing to merge

count two into count one for a single conviction for first degree murder. See State v. Cribbs,

967 S.W.2d 773, 778 (Tenn. 1998).

By agreement of the parties, the penalty phase was continued to May 23, 2011.

Penalty Phase

14

On May 23, 2011, the trial court conducted the penalty phase of Mr. Freeland’s trial.7

In its notice of intent to seek the death penalty, the State relied on four statutory aggravating

circumstances: (1) the defendant was previously convicted of one or more felonies, other

than the present charge, the statutory elements of which involve the use of violence to the

person; (2) the murder was committed for the purpose of avoiding, interfering with, or

preventing a lawful arrest or prosecution of the defendant or another; (3) 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 aggravated robbery; and (4) the

victim of the murder was particularly vulnerable due to a significant handicap or significant

disability, whether mental or physical, and at the time of the murder the defendant knew or

reasonably should have known of such handicap or disability. See Tenn. Code Ann.

§ 39-13-204(i)(2), (6), (7), (14).

The State introduced evidence of Mr. Freeland’s January 4, 2010 conviction for the

aggravated robbery of a Dollar General Store in Jackson committed on March 5, 2009.

Specifically, the State introduced, without objection, a transcript of Mr. Freeland’s guilty

plea and a certified copy of his conviction.

Lieutenant Willis testified that Mr. Freeland gave a statement concerning his

participation in the robbery in which Mr. Freeland explained that he and Mr. Thompson

needed money and decided to rob the Dollar General Store. They wore all-black clothing

with bandanas over their faces and waited nearby for approximately thirty minutes. Mr.

Thompson said, “Let’s go,” and the two men approached the store. Mr. Freeland was the

first to go inside the store and carried the only gun. He instructed the clerk to open the

register and give them the money. When the clerk explained that the register would not open

without a purchase, Mr. Freeland grabbed a pack of batteries, which the clerk rang up on the

register. The register drawer opened, and Mr. Thompson grabbed the cash. The two men

walked back to the car and divided approximately eighty dollars.

The State next presented the testimony of Sergeant Kemper, who interviewed Mr.

Freeland on a number of occasions. Sergeant Kemper reviewed his notes from the March

11, 2009 interview and recalled that Lieutenant Willis asked Mr. Freeland in reference to Ms.

7

The sentencing hearing combined the penalty phase of the death penalty trial with a sentencing

hearing for the especially aggravated kidnapping and tampering with evidence convictions. The trial court

therefore heard evidence relating to matters not relevant to its determination of the appropriate penalty for

Mr. Freeland’s convictions for first degree murder. While this evidence would clearly have been inadmissible

in the penalty phase if a jury had been empaneled, the trial court’s ruling clearly states its separate

consideration of the evidence pertaining to the death penalty and the remaining convictions. In our review,

we are primarily interested in the evidence relating to the three statutory aggravating circumstances, the

statutory and non-statutory mitigating circumstances, and the trial court’s imposition of the death penalty.

15

Ward, “Why did she have to die?” According to Sergeant Kemper’s notes, Mr. Freeland

responded that their faces were not covered.

The State also called Rhonda Hunt, a nurse practitioner at Trinity Medical Clinic in

Selmer, Tennessee. Ms. Hunt previously worked at Frix-Jennings Clinic in Henderson,

where she became acquainted with Ms. Ward and provided care to her for arthritis, morbid

obesity, severe edema, cellulitis of her lower extremities, weakness, blood clots in her legs,

and seizures. Ms. Hunt testified that Ms. Ward was approximately five feet tall and weighed

approximately 280 pounds. She stated that Ms. Ward’s weight affected her gait and that her

waddling gait was immediately apparent. Due to Ms. Ward’s mobility issues, Ms. Hunt

assisted Ms. Ward in obtaining a disability tag. She testified that Ms. Ward occasionally had

petit mal seizures, which caused her to lose consciousness for up to sixty seconds. Ms. Hunt

added that these seizures can be attributed to several factors, including stress.

The State presented victim impact evidence through witnesses Jimmy Dyer and Mary

Davis. Jimmy Dyer, the former principal at West Chester Elementary School, knew Ms.

Ward through her years of volunteer work at the school. Ms. Ward provided individual

tutoring to children, ran errands for the teachers, and did almost anything that the teachers

asked her to do. At some point, she had worked with all three hundred students, and the

students referred to her as “Granny.” Mr. Dyer stated that Ms. Ward had a great influence

on everyone in the building and that she often purchased necessities for low income children.

Mary Davis, Ms. Ward’s daughter, stated that her mother was on a fixed income but

was a very giving person. Ms. Ward made baby quilts and blankets for almost every baby

born in Chester County whether or not she knew their families. Ms. Davis agreed that her

mother waddled and had health issues. She stated that her mother had a handicap hang tag

on the rearview mirror of her vehicle. Ms. Davis heard about the murder on the police

scanner and later learned from her boss that the murder victim was her mother. Ms. Davis

said she thinks of her mother every day.

Mr. Freeland presented the testimony of his mother, his stepfather, and his younger

brother. Mr. Freeland’s mother, Paula Renee Johnson, described Mr. Freeland as a normal

son who liked to play baseball and soccer. She explained that she married Johnny Johnson

when Mr. Freeland was two years old and that Mr. Johnson raised Mr. Freeland. Mrs.

Johnson identified photographs of Mr. Freeland and his report cards through the years. She

explained that Mr. Freeland and his younger brother are very close. The family went to

church regularly. They urged Mr. Freeland to move out of the family home to help him

succeed in life and become a man. She explained that Mr. Freeland has a good relationship

with his daughter and son.

16

Johnny Johnson testified that his stepson is a “good son” but is easily persuaded. He

described Mr. Freeland as an outgoing and very respectful person and testified that he had

never been a violent person. Mr. Johnson identified various certificates that Mr. Freeland

had received through Job Corps. He stated that Mr. Freeland loves his two children and asks

about them frequently. Mr. Freeland originally admitted to him that he killed Ms. Ward, but

after being incarcerated for some time, he denied killing her. Mr. Johnson testified that he

believes Mr. Freeland.

Howard Jarrell Johnson, Mr. Freeland’s younger brother, testified that he and his

brother have a supportive relationship and that Mr. Freeland loves his children and tried to

provide for them. Mr. Johnson stated that Mr. Freeland felt sorry about the current situation,

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

Mr. Freeland also testified during the penalty phase of his trial. He stated that he was

sorry for whatever role he played in Ms. Ward’s death and for any pain that he had caused

by allowing Mr. Thompson and Ms. Mosley to use his vehicle. He maintained his innocence

in Ms. Ward’s kidnapping and murder and stated that he lied to the police when he told them

that he was involved. Mr. Freeland claimed that he told the investigators that he did not kill

Ms. Ward and that he did not know why she had to die. He added that Sergeant Kemper was

lying if he said otherwise. Mr. Freeland admitted that he pleaded guilty to the aggravated

robbery of a Dollar General Store in Jackson on March 9, 2009.

Mr. Freeland said that he grew up in a loving home and had received a good

education. He added that he had taken some college classes and had participated in Job

Corps. Mr. Freeland stated that he could have returned to his parents’ home but that he

wanted to make it on his own instead. Finally, Mr. Freeland admitted that he made money

committing robberies and that he went to Memphis on the day of Ms. Ward’s murder with

Mr. Thompson and Ms. Mosley to look for additional places to rob.

After a recess to consider the evidence, the trial court rendered its decision on the

issue of punishment for first degree premeditated murder and first degree felony murder.

The trial court found that the State had proven the (i)(2), (i)(6), and (i)(7) aggravating

circumstances beyond a reasonable doubt and had proven that these aggravating

circumstances outweighed the mitigating circumstances beyond a reasonable doubt. Based

on these findings, the trial court imposed a sentence of death. The trial court also imposed

a twenty-year sentence for Mr. Freeland’s conviction for especially aggravated kidnapping

and a five-year sentence for his conviction for tampering with evidence, which were to be

served consecutively.

The Court of Criminal Appeals affirmed the conviction and sentence. In our

mandatory review, we designated the following issues for oral argument: (1) whether the

17

Court of Criminal Appeals committed error by affirming the trial court’s determination that

the defendant’s confessions were freely and voluntarily made and (2) whether the sentence

of death is disproportionate or invalid pursuant to the mandatory review of Tennessee Code

Annotated section 39-13-206(c)(1).

II. Analysis

A. Motion to Suppress

We first consider Mr. Freeland’s claims that the trial court erred in denying his motion

to suppress the four statements that he gave to law enforcement officers. Mr. Freeland

argues that his statements should have been suppressed because he did not knowingly and

voluntarily waive his rights under Miranda prior to giving his statements. Mr. Freeland also

contends that his statements should have been suppressed because each was the product of

duress and coercion.

In reviewing a ruling on a motion to suppress, the prevailing party “is entitled to the

strongest legitimate view of the evidence adduced at the suppression hearing as well as all

reasonable and legitimate inferences that may be drawn from that evidence.” State v. Odom,

928 S.W.2d 18, 23 (Tenn. 1996). Questions of witness credibility, the weight and value of

the evidence, and the resolution of conflicts in the evidence are matters entrusted to the trial

judge as the trier of fact. Id. “[A] trial court’s findings of fact in a suppression hearing will

be upheld unless the evidence preponderates otherwise.” Id. Our review of a trial court’s

application of the law to the facts, however, is de novo with no presumption of correctness.

State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001).

At the suppression hearing, the State presented the testimony of Chief Deputy Mark

Griffin of the Chester County Sheriff’s Department as well as the testimony of Sergeant

Kemper, Officer Gilley, and Lieutenant Willis, all of the Jackson Police Department. Their

testimony at the suppression hearing closely matched their subsequent testimony at trial.

Deputy Griffin testified about his participation in the investigation into Ms. Ward’s

murder and his request for assistance from Lieutenant Willis, Sergeant Kemper, and

Investigator Wiser, all of the Jackson Police Department’s Gang Enforcement Team. Officer

Gilley testified about his participation in the stop of Mr. Freeland’s vehicle in Jackson. The

record does not indicate, however, that Deputy Griffin or Officer Gilley participated in any

of Mr. Freeland’s four interviews.

Sergeant Kemper testified that the information provided by Deputy Griffin about a

blue Buick Roadmaster led to the arrest of Mr. Freeland on March 10, 2009, on the charge

of driving on a suspended license. Later in the evening of March 10, 2009, Sergeant Kemper

18

and Lieutenant Willis interviewed Mr. Freeland at the Criminal Justice Center. Sergeant

Kemper explained that before the interview began, he presented Mr. Freeland with a rights

waiver form in accordance with the Jackson Police Department’s standard policy. The form

was titled “Your Rights” and included the following language:

Before we ask you any questions, we want you to understand your rights. You

have the right to remain silent. Anything you say can and will be used against

you in a court of law. You have the right to talk to a lawyer and have him

present with you while you are being questioned. If you cannot afford a

lawyer, one will be appointed to represent you before we question you, if you

wish one. If you wish to answer questions now, without a lawyer present, you

have the right to stop answering questions at any time.

WAIVER

I have read the statement of my rights shown above. I understand my rights.

I am willing to answer questions and make a statement. I do not want a

lawyer. I understand and know what I am doing. No promises or threats have

been made to me and no pressure of any kind has been used against me.

Sergeant Kemper identified a rights waiver form signed by Mr. Freeland at 8:00 p.m. on

March 10, 2009, at the Criminal Justice Center and witnessed by Sergeant Kemper and

Lieutenant Willis.

Sergeant Kemper explained that when he interviews a suspect, he asks questions and

takes notes to “get a story” about the particular crime. Next, he reduces the notes to a formal,

written statement and places boxes throughout the statement where the suspect places his

initials indicating that the particular portion of the statement is accurate. Once the suspect

has reviewed the statement for accuracy and has made any desired additions, deletions, or

corrections, the suspect signs the statement at the bottom. According to Sergeant Kemper,

he followed this procedure with Mr. Freeland. Mr. Freeland signed the statement in the

presence of Sergeant Kemper and Lieutenant Willis at 12:13 a.m. on March 11, 2009. Mr.

Freeland’s March 10, 2009 signed statement was made an exhibit to the suppression hearing.8

During the March 10, 2009 interview, Sergeant Kemper and Mr. Freeland also

discussed a robbery at the Upper Level Hair Salon. On the evening of March 11, 2009,

8

On March 10, 2009, Mr. Freeland also executed a consent to search his 1992 Buick Roadmaster.

During the March 10, 2009 interview, Sergeant Kemper also learned that Mr. Freeland was staying with his

girlfriend, Nakeisha Carroll. Ms. Carroll executed a consent to search her apartment. Neither the consents

nor resulting searches are at issue in this appeal.

19

Sergeant Kemper returned to interview Mr. Freeland about the salon robbery. Sergeant

Kemper followed the standard procedure and again advised Mr. Freeland of his rights. Mr.

Freeland signed a rights waiver form dated March 11, 2009, in the presence of Sergeant

Kemper and Lieutenant Willis. Lieutenant Willis interviewed Mr. Freeland about the salon

robbery and Ms. Ward’s homicide. Mr. Freeland’s statement about the homicide, which

began at 7:10 p.m., was reduced to writing in the method previously described by Sergeant

Kemper and signed by Mr. Freeland at 9:43 p.m. on March 11, 2009. Sergeant Kemper read

Mr. Freeland’s March 11, 2009 statement into the record.

Sergeant Kemper spoke with Mr. Freeland for a third time on March 16, 2009. As

with Mr. Freeland’s prior statements of March 10 and 11, 2009, Sergeant Kemper advised

Mr. Freeland of his rights as explained in the rights waiver form. Mr. Freeland signed the

waiver form in the presence of Sergeant Kemper and Lieutenant Willis. Sergeant Kemper

followed his standard interview procedure and formalized Mr. Freeland’s third statement,

which began at 2:00 p.m. and ended at 3:45 p.m. on March 16, 2009. In his statement, Mr.

Freeland indicated that during his mother’s visit, he told her that he wanted to speak with

Lieutenant Willis again “to clear up some confusion from [his] previous statements.”

Sergeant Kemper read the third statement into the record.

Lieutenant Willis testified that he was present on March 10, 11, and 16, 2009, for each

of Mr. Freeland’s statements. He recalled that both he and Sergeant Kemper explained the

Miranda warnings to Mr. Freeland. Mr. Freeland neither asked questions nor expressed

concerns on any of the three occasions and did not ask for an attorney. Lieutenant Willis

reviewed the three rights waiver forms signed by Mr. Freeland and confirmed that he

witnessed each of the forms. As to the March 16 statement, Lieutenant Willis testified that

he received a telephone call from Mr. Freeland’s mother who told him that Mr. Freeland

wanted to speak with him again.9

Following the March 16, 2009 statement, Lieutenant Willis discussed the case with

TBI Agent Mark Lewis, who asked him to inquire into Mr. Freeland’s willingness to take a

polygraph examination. Lieutenant Willis conveyed the TBI’s request to Mr. Freeland, and

Mr. Freeland agreed to take a polygraph examination. Mr. Freeland was transported to the

TBI office on March 17, 2009, where Special Agent Valerie Trout was awaiting his arrival.

Lieutenant Willis was present when Special Agent Trout advised Mr. Freeland of his

Miranda rights using the form titled “Tennessee Bureau of Investigation Warnings as to

Constitutional Rights,” which read:

9

Ms. Johnson executed a consent to search Mr. Freeland’s room at her home. Neither Ms. Johnson’s

consent nor the resulting search are at issue in this appeal.

20

Before we ask you any questions, you must understand your constitutional

rights: You have the right to remain silent, and you need not answer any

questions; If you do answer questions, your answers can be used as evidence

against you in court; You have the right to consult with a lawyer before or

during questioning; If you cannot afford to hire a lawyer, one will be provided

to you without cost; If you decide to answer questions now, without a lawyer

present, you will still have the right to stop answering questions at any time

until you talk to a lawyer.

WAIVER

I have read, or have had read to me, my constitutional rights. I understand

what my rights are, and I am willing to make a statement and answer any

questions without a lawyer being present.

According to Lieutenant Willis, Mr. Freeland stated that he understood his rights and signed

the waiver form. Both Special Agent Trout and Lieutenant Willis witnessed Mr. Freeland

sign the form. Mr. Freeland did not request an attorney.

Lieutenant Willis said that he was not permitted to be in the room during the

polygraph examination. After Special Agent Trout gave the Miranda warnings and began

to prepare Mr. Freeland for the polygraph examination, Lieutenant Willis went into an

adjoining observation room with a one-way mirror where he could view and listen to the

conversation. Lieutenant Willis testified that before the polygraph examination began, Mr.

Freeland told Special Agent Trout that he “wanted to tell the truth about the situation.” He

said that Special Agent Trout stopped preparing Mr. Freeland for the polygraph examination

and summoned him back into the room.

Lieutenant Willis stated that Special Agent Trout typed Mr. Freeland’s statement and

that Mr. Freeland was afforded the opportunity to review the statement and make corrections.

Mr. Freeland signed the statement in the presence of Special Agent Trout and Lieutenant

Willis, who signed as witnesses. The March 17, 2009 statement began at 12:03 p.m. and

ended at 1:23 p.m. A copy of the statement was made an exhibit to the suppression hearing.

At the conclusion of the hearing, the trial court found that it was “unchallenged” that

Mr. Freeland was advised of his Miranda rights before each of the four statements were

given. The trial court found that Mr. Freeland “never once requested an attorney . . . [and]

signed the waiver each time.” The trial court further concluded that “on each occasion . . . ,

Mr. Freeland . . . freely, voluntarily, and intelligently waive[d] his rights in this case and gave

statements.” The trial court also found that the testimony “very clear[ly]” established that

Mr. Freeland initiated contact with the officers so that he could give an additional statement

21

or clarify his prior statements. Finally, the trial court found that the officers did not engage

in “force or pressure or coercion,” and entered a “specific finding that [Mr. Freeland] freely,

voluntarily, and intelligently made those waivers and gave those statements.”

In its written order denying Mr. Freeland’s motion to suppress, the trial court

confirmed its verbal findings that the Jackson Police Department advised Mr. Freeland of his

constitutional rights pursuant to Miranda before each interview. The trial court concluded

that Mr. Freeland therefore “freely, voluntarily, knowingly, and intelligently gave a written

adopted statement on each occasion he was questioned.” The written order did not reference

the March 17, 2009 statement to TBI Special Agent Trout.

At trial, Mr. Freeland sought to suppress his March 17, 2009 statement to Special

Agent Trout, alleging for the first time that the statement was coerced because it was induced

by the promise that he could take a polygraph examination. Defense counsel conceded that

the issue was not raised in the pretrial motion to suppress. The State objected. The trial

court recognized that Mr. Freeland failed to raise the issue in his motion to suppress but

noted, “I’m always concerned and attentive to questions of possible error.” The trial court

agreed to allow Mr. Freeland to elicit testimony for this “limited purpose” and stated, “I will

give it what weight the court finds it should be given as to the voluntariness of the

statement.” Mr. Freeland agreed that the State could offer any other evidence it deemed

relevant for the limited purpose of the voluntariness of the statement.

The Court of Criminal Appeals concluded that “[t]o the extent that [Mr. Freeland]

challenges the voluntariness of his first three statements,” the evidence does not preponderate

against the trial court’s findings at the suppression hearing. Freeland, 2013 WL 2423934,

at *17. The intermediate appellate court also concluded that the evidence from the

suppression hearing and the trial established that Mr. Freeland “voluntarily waived his

Miranda rights before making each statement” and even twice initiated conversations with

the investigators. Id. The intermediate appellate court denied relief on this issue,

emphasizing Mr. Freeland’s admission at trial that he gave each statement voluntarily.

Citing Tennessee Rule of Criminal Procedure 12(b)(2)(C), the Court of Criminal Appeals

further concluded that Mr. Freeland waived the issue of “coercion by promise of a polygraph

examination” because he failed to raise it in his motion to suppress. Id. We must therefore

determine whether the Court of Criminal Appeals erred by affirming the trial court’s finding

that Mr. Freeland’s confessions were freely and voluntarily made.

i. Knowing and Voluntary Waiver of Miranda

Mr. Freeland first contends that he did not knowingly and voluntarily waive his rights

under Miranda. Both the United States and Tennessee Constitutions recognize a privilege

against compelled self-incrimination. See U.S. Const. amend. V (protecting a person from

22

being “compelled in any criminal case to be a witness against himself”); Tenn. Const. art. I,

§ 9 (guaranteeing that “in all criminal prosecutions, the accused . . . shall not be compelled

to give evidence against himself”).

In Miranda, the United States Supreme Court established procedural safeguards to

secure the Fifth Amendment privilege against self-incrimination. 384 U.S. at 444. Pursuant

to Miranda, law enforcement officers are required to warn a person prior to custodial

interrogation that

he has the right to remain silent, that anything he says can be

used against him in a court of law, that he has the right to the

presence of an attorney, and that if he cannot afford an attorney

one will be appointed for him prior to any questioning if he so

desires.

Id. at 479. An interrogation must cease if the suspect invokes his right to remain silent at any

time. Id. at 473-74. If a suspect indicates that he wants an attorney, the interrogation must

cease until an attorney is present. Id.

After these warnings have been given, a person may “knowingly and intelligently

waive these rights and agree to answer questions or make a statement.” Id. at 479; see also

Edwards v. Arizona, 451 U.S. 477, 484 (1981); North Carolina v. Butler, 441 U.S. 369,

372-76 (1979). “[U]nless and until such warnings and waiver are demonstrated by the

prosecution at trial,” statements given during custodial interrogation are not admissible in the

prosecution’s case-in-chief. Miranda, 384 U.S. at 479.

The State bears the burden of proving by a preponderance of the evidence that the

defendant waived his rights under Miranda. State v. Climer, 400 S.W.3d 537, 564 (Tenn.

2013); see also Missouri v. Seibert, 542 U.S. 600, 608 n.1 (2004). The State satisfies this

burden if, based on the totality of the circumstances surrounding the interrogation, it shows

that the waiver was voluntary in that “it was the product of a free and deliberate choice rather

than intimidation, coercion, or deception,” and was knowing in that it was made “with a full

awareness of both the nature of the right being abandoned and the consequences of the

decision to abandon it.” Moran v. Burbine, 475 U.S. 412, 421 (1986); Butler, 441 U.S. at

374-75; Colorado v. Spring, 479 U.S. 564, 573 (1987); Berghuis v. Thompkins, 560 U.S.

370, 382-83 (2010); Climer, 400 S.W.3d at 564-65.

It is undisputed that Mr. Freeland was advised of his Miranda rights before he gave

each of his four statements. Both Sergeant Kemper and Lieutenant Willis indicated that the

Jackson Police Department and TBI rights waiver forms provided Mr. Freeland with this

information. The information contained in both forms substantially complies with the

23

language of Miranda. See Miranda, 384 U.S. at 379. Although Mr. Freeland did not testify

at the suppression hearing, he admitted at trial that he was advised of his Miranda rights

before each statement.

The rights waiver forms provided Mr. Freeland with the opportunity to waive his

Miranda rights. As the testimony revealed, Mr. Freeland signed the rights waiver form

before each of the four interviews began. Mr. Freeland’s claim that his waiver was not

voluntary and knowing is unsupported in this record. In fact, the record is devoid of any

evidence that Mr. Freeland was coerced, threatened, or tricked into signing any of the

waivers. See Miranda, 384 U.S. at 476 (stating that evidence that the suspect was

“threatened, tricked, or cajoled” into a waiver will show that the Fifth Amendment privilege

was not voluntarily waived). Furthermore, Mr. Freeland’s express waiver after being

informed of his Miranda rights is “strong proof of the validity of the waiver.” Butler, 441

U.S. at 373. The record unequivocally establishes that Mr. Freeland was fully aware of his

Miranda rights and the consequences of his decision to abandon those rights. We therefore

conclude that the evidence does not preponderate against the trial court’s findings that Mr.

Freeland knowingly and voluntarily waived his Miranda rights.

ii. Voluntariness of His Confessions

In addition to our inquiry into Mr. Freeland’s waiver of his Miranda rights, we must

also determine whether his subsequent statement or confession was voluntarily given. See

Dickerson v. United States, 530 U.S. 428, 432-33 (2000) (indicating that the test to determine

the voluntariness of a statement or confession is distinct from the determination concerning

a defendant’s waiver of his Miranda rights).

In Climer, 400 S.W.3d at 568, we recognized that Miranda requires us to determine

whether a suspect was advised of certain enumerated rights and then whether he knowingly

and voluntarily waived those rights. 400 S.W.3d at 568. To determine the voluntariness of

a confession, however, “the essential inquiry . . . is whether a suspect’s will was overborne

so as to render the confession a product of coercion.” Id.; see also State v. Smith, 933

S.W.2d 450, 455 (Tenn. 1996) (“The test of voluntariness for confessions under article I, § 9

of the Tennessee Constitution is broader and more protective of individual rights than the test

of voluntariness under the Fifth Amendment.”).

In determining voluntariness of a confession, we must examine the totality of the

circumstances surrounding the statement or confession, including “both the characteristics

of the accused and the details of the interrogation.” Climer, 400 S.W.3d at 568 (quoting

Dickerson, 530 U.S. at 434). The circumstances relevant to this determination are:

24

[T]he age of the accused; his lack of education or his

intelligence level; the extent of his previous experience with the

police; the repeated and prolonged nature of the questioning; the

length of the detention of the accused before he gave the

statement in question; the lack of any advice to the accused of

his constitutional rights; whether there was an unnecessary delay

in bringing him before a magistrate before he gave the

confession; whether the accused was injured[,] intoxicated[,] or

drugged, or in ill health when he gave the statement; whether the

accused was deprived of food, sleep[,] or medical attention;

whether the accused was physically abused; and whether the

suspect was threatened with abuse.

Id. (alterations in original) (quoting State v. Huddleston, 924 S.W.2d 666, 671 (Tenn. 1996));

State v. Blackstock, 19 S.W.3d 200, 208 (Tenn. 2000) (recognizing that no single factor is

necessarily determinative).

Initially, we recognize that Mr. Freeland presented no evidence at the suppression

hearing to support the claim that his statements or confessions were involuntarily given, and

we are unable to glean such evidence from the record of the hearing. At trial, Mr. Freeland

made only veiled references to officers’ alleged coercive conduct. For example, Mr.

Freeland testified that he felt threatened by the officers during his interviews. The record

reveals, however, that the “threats” were actually the officers’ challenges to the veracity of

Mr. Freeland’s answers in light of contradictory evidence discovered during the

investigation. Mr. Freeland also stated that he was tired during the first interview and had

not been resting well. He provided no evidence to support his claim of sleep deprivation or

that any deprivation was the product of police conduct. Similarly, Mr. Freeland suggested

that he was deprived of food or drink during the first interview that lasted approximately four

hours. Again, he offered no evidence that the officers deprived him of food, that he

requested food, or that the officers denied a request for food.

Considering the factors cited in Climer, we observe that Mr. Freeland was twenty-

eight years old at the time of trial. He finished high school, completed college courses, and

participated in Job Corps. Mr. Freeland was familiar with the legal system through his long

history of traffic offenses, including his incarceration for driving on a suspended license. He

also committed a series of robberies leading up to Ms. Ward’s murder.

None of the interviews were prolonged. Mr. Freeland gave the first statement during

his first night in jail after having been arrested for driving on a suspended license. As we

have determined, he was advised of his Miranda rights before each interview and voluntarily

25

waived those rights. The record contains no evidence that Mr. Freeland was physically

abused, threatened with abuse, or deprived of food, sleep, or medical attention.

Finally, we consider Mr. Freeland’s claim that his statement to Special Agent Trout

was induced by the promise that he could take a polygraph examination. Although Mr.

Freeland challenged generally the voluntariness of all four statements in his pre-trial motion

to suppress, he did not raise his claim concerning the polygraph examination until his oral

suppression motion at trial. The Court of Criminal Appeals therefore determined that Mr.

Freeland waived this issue pursuant to Tennessee Rule of Criminal Procedure 12(b)(2)(C).

We disagree. Although waiver is routinely raised in non-capital cases, we have consistently

held that “there is no waiver of error directed to the admissibility of evidence when the

defendant is under a sentence of death.” State v. Duncan, 698 S.W.2d 63, 67-68 (Tenn.

1985).

Consistent with our prior decisions, the trial court permitted Mr. Freeland to elicit

testimony concerning the promise of a polygraph examination. The trial court did not

specifically reference Duncan or its progeny but stated that it was “attentive to questions of

possible error” and indicated that it would “give [this testimony] what weight the court finds

it should be given as to the voluntariness of the statement.” The trial court did not make

specific findings of fact as to Mr. Freeland’s oral suppression motion. Because the trial court

considered Mr. Freeland’s statement to Agent Trout, however, we conclude that the trial

court denied the suppression motion.

When the trial court fails to set out its factual findings on the record, the reviewing

appellate court must decide “where the preponderance of the evidence lies.” See Fields v.

State, 40 S.W.3d 450, 457 n.5 (Tenn. 2001). It is undisputed that Mr. Freeland agreed to take

a polygraph examination and was transported to the TBI office for that purpose. Mr.

Freeland executed a consent form to take the polygraph examination and a rights waiver

form, both of which were read aloud to Mr. Freeland.

Special Agent Trout testified that she intended to conduct a polygraph examination

but that Mr. Freeland’s admission of having murdered Ms. Ward rendered the examination

moot. Mr. Freeland testified, however, that he would have admitted to anything because he

believed that making those admissions was the only way he would be given a polygraph

examination. Mr. Freeland suggested that the polygraph examination would have proven that

his admissions to Special Agent Trout were false. As to this credibility dispute, the trial

court obviously accredited Special Agent Trout’s testimony.

No evidence in this record suggests that the polygraph examination was a ruse to

coerce Mr. Freeland into giving a statement or that the officers engaged in any coercive

police activity. Colorado v. Connelly, 479 U.S. 157, 167 (1986) (stating that “coercive

26

police activity is a necessary predicate to finding that a confession is not ‘voluntary’ within

the meaning of the Due Process Clause of the Fourteenth Amendment”). We conclude that

the evidence does not preponderate against the trial court’s implicit denial of Mr. Freeland’s

oral motion to suppress. Mr. Freeland has therefore failed to establish that the trial court

erred by admitting his statement to Special Agent Trout during the trial.

B. Mandatory Review

Tennessee Code Annotated section 39-13-206(c)(1) (2010) requires us to review the

application of the death penalty to determine if:

(A) The sentence of death was imposed in any arbitrary fashion;

(B) The evidence supports the [trial court’s] finding of statutory aggravating

circumstance or circumstances;

(C) The evidence supports the [trial court’s] finding that the aggravating

circumstance or circumstances outweigh any mitigating circumstances; and

(D) The sentence of death is excessive or disproportionate to the penalty

imposed in similar cases, considering both the nature of the crime and the

defendant.

Tenn. Code Ann. § 39-13-206(c)(1).

i. Arbitrariness of Death Sentence

Our review of the record confirms that the death sentence in this case was not imposed

arbitrarily. When the penalty phase began, the trial court accurately recited the capital

sentencing procedures established in Tennessee Code Annotated section 39-13-204 as

summarized in the Tennessee Pattern Jury Instructions–Criminal 7.04. See also Tenn. Code

Ann. § 39-13-205(c) (applying the references to a jury in Tennessee Code Annotated section

39-13-204 to a judge if the jury is waived).

After hearing the evidence and the arguments of counsel, the trial court sentenced Mr.

Freeland to death based on his conviction for first degree murder. In this appeal, Mr.

Freeland does not contend that the trial court disregarded the facts or circumstances of his

case or otherwise misapplied the applicable statutes and procedural rules. We therefore

conclude that the death sentence was not imposed in an arbitrary fashion.

27

ii. Evidence of Statutory Aggravating Circumstances

We next consider whether the evidence supports the trial court’s finding of three

statutory aggravating circumstances set forth in Tennessee Code Annotated section

39-13-204(i)(2), (i)(6), and (i)(7).10

a. Tenn. Code Ann. § 39-13-204(i)(2)

The trial court found that the State had proven beyond a reasonable doubt that “[t]he

defendant was previously convicted of one (1) or more felonies, other than the present

charge, the statutory elements of which involve the use of violence to the person.” See Tenn.

Code Ann. § 39-13-204(i)(2). The State relied on Mr. Freeland’s previous conviction for

aggravated robbery, which is a Class B felony. Tenn. Code Ann. §§ 39-13-401, -402

(including the requisite element of theft “by violence or putting the person in fear”).

The State introduced Mr. Freeland’s statement concerning a March 5, 2009 robbery

of a Dollar General Store in Jackson. According to Mr. Freeland’s statement, he and Marcus

Thompson entered the Dollar General Store wearing bandanas over their faces. Mr. Freeland

carried the only gun and ordered the store clerk to give them the money from the cash

register. Mr. Freeland testified that the clerk became nervous after she saw his gun. When

the cash drawer opened, Marcus Thompson removed approximately eighty dollars from the

drawer, and the two men left the store. Mr. Freeland and Mr. Thompson subsequently

divided the proceeds. A copy of the resulting indictment for aggravated robbery was made

an exhibit to the sentencing hearing.

The State also introduced transcripts of Mr. Freeland’s January 4, 2010 guilty plea to

aggravated robbery and the February 16, 2010 sentencing hearing. Finally, the State

introduced a certified copy of Mr. Freeland’s judgment of conviction for the aggravated

robbery of the Dollar General Store. From our review of the evidence, we conclude that the

trial court correctly found that the State proved the (i)(2) aggravating circumstance beyond

a reasonable doubt.

10

In the “Amended State’s Notice of Intent to Seek the Death Penalty and/or A Sentence of Life

Without Parole,” the State indicated that it would also rely on the (i)(14) aggravating circumstance relating

to the vulnerability of the victim. The trial court found, however, that the State failed to prove the existence

of this aggravating circumstance beyond a reasonable doubt.

28

b. Tenn. Code Ann. § 39-13-204(i)(6)

The trial court also found that the State had proven beyond a reasonable doubt that

“[t]he murder was committed for the purpose of avoiding, interfering with, or preventing a

lawful arrest or prosecution of the defendant or another.” Tenn. Code Ann.

§ 39-13-204(i)(6). This aggravating circumstance focuses on a defendant’s motives for

killing the victim. See State v. Reid, 164 S.W.3d 286, 315 (Tenn. 2005). In proving the

(i)(6) aggravating circumstance, the State is not required to prove that the defendant’s only

motive for murdering the victim was his desire to avoid arrest or prosecution. See State v.

Henderson, 24 S.W.3d 307, 314 (Tenn. 2000). Instead, the State must only show that

avoiding arrest or prosecution was “one of the [defendant’s] motives in the killing.” Id.;

Terry v. State, 46 S.W.3d 147, 162 (Tenn. 2001); State v. Hartman, 42 S.W.3d 44, 58 (Tenn.

2001); State v. Smith, 868 S.W.2d 561, 581 (Tenn. 1993); State v. Carter 714 S.W.2d 241,

250 (Tenn. 1986).

Hywon Reed, the State’s rebuttal witness during the guilt phase, testified that he

briefly shared a jail cell with Mr. Freeland in Jackson and that Mr. Freeland engaged in a

conversation with him about the circumstances of his indicted offenses. Mr. Reed sent a

letter to the district attorney’s office outlining the details of the conversation. According to

Mr. Reed’s letter and trial testimony, Mr. Freeland described how he, his friend, and his

friend’s girlfriend carjacked a white woman in Chester County. Mr. Freeland forced the

woman to drive the car to the side of an isolated road and asked her about ATM cards and

money. Mr. Freeland told Mr. Reed that it angered him when the woman refused to give him

PIN numbers or otherwise cooperate. He also explained to Mr. Reed that the woman had a

cell phone and told him that she was going to call the police and report them for kidnapping

her. He also told Mr. Reed that he shot the woman in the back of the head with her face to

the ground and that he had to kill the woman because she could identify them. We conclude

that this evidence established that at least one motive for the killing was to avoid lawful

arrest or prosecution. Accordingly, the trial court correctly found that the State proved the

(i)(6) aggravating circumstance beyond a reasonable doubt.

c. Tenn. Code Ann. § 39-13-204(i)(7)

Finally, the trial court found that the State had proven beyond a reasonable doubt that

“[t]he murder was knowingly committed, solicited, directed, or aided by the defendant, while

the defendant had a substantial role in committing or attempting to commit any . . . robbery.”

Tenn. Code Ann. § 39-13-204(i)(7). The State relied on aggravated robbery as the

underlying felony offense, not the indicted offense of aggravated kidnapping. Accordingly,

we must review the evidence to determine if Mr. Freeland “knowingly” murdered Ms. Ward

while he had a substantial role in committing or attempting to commit aggravated robbery.

29

No culpable mental state is required for a felony murder conviction other than the

intent required to commit the underlying felony. Tenn. Code Ann. § 39-13-202(a)(2), (b),

First degree premeditated murder, however, requires that the killing be “premeditated and

intentional.” Tenn. Code Ann. § 39-13-202(a)(1). Mr. Freeland was convicted of both first

degree felony murder and first degree premeditated murder. We therefore conclude that the

evidence establishing Mr. Freeland’s premeditated and intentional killing of Ms. Ward,

which is the highest culpable mental state, is sufficient to establish the lesser culpable mental

state of “knowing” required by the (i)(7) aggravating circumstance. See Tenn. Code Ann.

§§ 39-11-301, -302 (defining the hierarchy of culpable mental states in Tennessee and

providing that the knowing culpable mental state is also established if a person acts

intentionally).

We next consider whether the evidence is sufficient to show that the “knowing”

murder of Ms. Ward was committed during an aggravated robbery. We must “view[] the

evidence in the light most favorable to the prosecution” to determine whether “any rational

trier of fact could have found the essential elements of [aggravated robbery] beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).

Aggravated robbery is a Class B felony and is defined as “the intentional or knowing

theft of property from the person of another by violence or putting the person in fear . . . (1)

[a]ccomplished with a deadly weapon . . . or (2) [w]here the victim suffers serious bodily

injury.” Tenn. Code Ann. §§ 39-13-401, -402. The evidence adduced at trial revealed that

Mr. Freeland knowingly exercised control over property owned by Ms. Ward without her

effective consent and with the intent to deprive her of the property. Specifically, Mr.

Freeland took Ms. Ward’s automobile because he, Marcus Thompson, and Tashondra

Mosley needed a vehicle to drive to Memphis to commit robberies. Displaying a weapon,

Mr. Freeland ordered Ms. Ward to drive to a secluded road against her will. By his own

admission, Mr. Freeland shot Ms. Ward in the head and drove away in her vehicle.

Eventually, other items belonging to Ms. Ward were recovered in Mr. Freeland’s possession.

Without question, the evidence is sufficient to establish that Ms. Ward’s murder was

“knowingly” committed while Mr. Freeland had a substantial role in committing or

attempting to commit aggravated robbery. We therefore affirm the trial court’s finding that

the State proved the (i)(7) aggravating circumstance beyond a reasonable doubt.

iii. Weighing Aggravating and Mitigating Circumstances

We next consider whether the evidence supports the trial court’s finding that the

aggravating circumstances outweighed any mitigating circumstances beyond a reasonable

doubt. The trial court noted at the beginning of the sentencing hearing that before a sentence

of death or a sentence of imprisonment for life without the possibility of parole could be

30

imposed, the court must find that the State proved beyond a reasonable doubt the existence

of one or more statutory aggravating circumstances.

The trial court found that the State had proven beyond a reasonable doubt the (i)(2),

(i)(6), and (i)(7) aggravating circumstances. In mitigation, Mr. Freeland proposed two

statutory mitigating circumstances. First, Mr. Freeland argued that he “was an accomplice

in the murder committed by another person and [his] participation was relatively minor.”

Tenn. Code Ann. § 39-13-204(j)(5). Second, Mr. Freeland maintained that he “acted under

extreme duress or under the substantial domination of another person.” Tenn. Code Ann.

§ 39-13-204(j)(6). Mr. Freeland also presented the testimony of his mother, stepfather, and

younger brother. The testimony was supplemented with photographs, certificates, and

numerous letters of support from community members and friends. Mr. Freeland’s counsel

urged the trial court to consider any residual doubt as to Mr. Freeland’s guilt and to “choose

life.”

Our standard of review requires us determine whether a rational trier of fact could find

that the aggravating circumstances outweigh the mitigating circumstances beyond a

reasonable doubt when the evidence is taken in the light most favorable to the State. State

v. Stephenson, 195 S.W.3d 574, 593 (Tenn. 2006) (abrogated on other grounds by State v.

Watkins, 362 S.W.3d 530 (Tenn. 2012)). We concluded in the previous section that the

evidence was sufficient to support the trial court’s finding of the three statutory aggravating

circumstances. We have reviewed the statutory mitigating circumstances and the remaining

mitigation evidence presented. We conclude that viewing the evidence in the light most

favorable to the State, a rational trier of fact could have found that the (i)(2), (i)(6), and (i)(7)

aggravating circumstances outweighed the mitigating circumstances beyond a reasonable

doubt.

iv. Proportionality of Death Sentence

Finally, we consider whether Mr. Freeland’s sentence of death is excessive or

disproportionate to the penalty imposed in similar cases, considering both the nature of the

crime and the defendant. Tenn. Code Ann. § 39-13-206(c)(1)(D). Our comparative

proportionality review standards formalized in State v. Bland, 958 S.W.2d 651 (Tenn. 1997),

were recently affirmed by a majority of this Court in State v. Pruitt, 415 S.W.3d 180 (Tenn.

2013).

We continue to utilize as the pool of similar cases those in which a capital sentencing

hearing was conducted to determine whether the sentence should be death, life imprisonment

without the possibility of parole, or life imprisonment, regardless of the sentence returned

by the jury. Bland, 958 S.W.2d at 666. The factors relevant to the process of identifying and

comparing similar cases include (1) the means of death; (2) the manner of death; (3) the

31

motivation for the killing; (4) the place of death; (5) the similarity of the victims’

circumstances including age, physical and mental conditions, and the victims’ treatment

during the killing; (6) the absence or presence of premeditation; (7) the absence or presence

of provocation; (8) the absence or presence of justification; and (9) the injury to and effects

on non-decedent victims. Id. at 667. The relevant criteria when comparing the

characteristics of defendants include the defendant’s (1) prior criminal record or prior

criminal activity; (2) age, race, and gender; (3) mental, emotional, or physical condition; (4)

involvement or role in the murder; (5) cooperation with authorities; (6) remorse; (7)

knowledge of helplessness of victim(s); and (8) capacity for rehabilitation. Id.

We now consider whether Mr. Freeland’s case, taken as a whole, is plainly lacking

in circumstances consistent with cases in which the death penalty was imposed. Id. at 665.

Mr. Freeland is an African American male from Madison County. He was twenty-four years

old when he committed these offenses. He joined two others in a plan to steal someone’s car

to commit robberies in Memphis. These three individuals parked outside a discount store

and chose a sixty-one-year-old, obese, female victim whose vehicle was parked in a

handicapped space. Mr. Freeland displayed a gun and ordered the victim to drive him and

his co-defendants to a remote area. The victim did not cooperate with Mr. Freeland and

threatened to call the police to report them for kidnapping. Mr. Freeland knew that the

victim had a cell phone, but he could not locate it. Fearing that the victim would report and

identify him to police, Mr. Freeland fired a single gunshot into the back of the victim’s head

while she was lying face down along the edge of the roadway.

According to one of his statements, Mr. Freeland was congratulated by Mr. Thompson

for achieving the status of “Original Baby Gangster” for the victim’s murder. Some of the

victim’s possessions were found inside Mr. Freeland’s residence and in his co-defendants’

residences. These items were taken from the victim’s vehicle before it was set afire in a

field. Mr. Freeland gave four separate statements with differing accounts of the events

surrounding the victim’s death. In the first three statements, Mr. Freeland was a participant

but not the killer. In his fourth statement, however, Mr. Freeland explained in detail how he

shot the victim in the back of her head. At a bench trial, Mr. Freeland’s testimony was

contrary to the remaining evidence. He admitted minimal participation in the burning of the

victim’s vehicle. He maintained, however, that Mr. Thompson killed the victim. Mr.

Freeland expressed remorse for the role he played in burning the vehicle. The trial court

found Mr. Freeland guilty of first degree premeditated murder, first degree felony murder,

especially aggravated kidnapping, and tampering with evidence.

At the penalty phase, the State presented evidence that Mr. Freeland had a prior

conviction for an aggravated robbery that occurred just days before Ms. Ward’s murder. Mr.

Freeland presented the family members’ testimony and letters from various community

32

members. The trial court found Tennessee Code Annotated section 39-13-204(i)(2), (i)(6),

and (i)(7) as aggravating circumstances and imposed the death penalty.

We next consider prior capital cases with similarities to Mr. Freeland’s case based on

the Bland criteria. We are mindful that comparative proportionality review is not a rigid,

objective test and that we must also rely on the experienced judgment and intuition of the

members of the reviewing court. Bland, 958 S.W.2d at 668.

In State v. Powers, 101 S.W.3d 383, 388 (Tenn. 2003), the defendant, a forty-two-

year-old Asian male, followed the female victim from Tunica to Memphis where he abducted

her from her father-in-law’s driveway. The defendant took the victim to an abandoned house

and shot her in the back of the head. Id. at 389. The defendant robbed the victim of her

gambling winnings and jewelry and left her body in a storage room. Id. The jury convicted

the defendant of felony murder. Id. at 390. During the penalty phase, the State presented

victim impact evidence and introduced evidence of the defendant’s prior felony convictions.

Id. In mitigation, the defendant presented the testimony of his first wife who described the

defendant as a good student and athlete and as quiet and withdrawn but polite. Id. She

pleaded for his life so that he could meet his two grandchildren. Id. The jury imposed a

death sentence based on the (i)(2), (i)(6), and (i)(7) aggravating circumstances. Id. at 391;

see also Tenn. Code Ann. § 39-13-204(i)(2), (6), (7) (Supp. 1996).

In State v. Stout, 46 S.W.3d 689, 693 (Tenn. 2001), the defendant and three co-

defendants abducted a twenty-six-year-old woman from her driveway and forced her into the

backseat of their vehicle at gunpoint. The men drove the victim to an isolated location and

shot her once in the head. Id. After taking a suitcase from the victim’s car, the defendant left

the area. Id. In his statement, the defendant said that he was a member of the “Gangster

Disciples.” Id. at 695. The defendant was convicted of first degree felony murder, especially

aggravated kidnapping, and especially aggravated robbery. Id. at 694-95. During the penalty

phase, the State introduced evidence of the defendant’s prior felony conviction for especially

aggravated robbery. Id. at 695. The defendant presented several witnesses including the

defendant’s mother who testified that she was an exotic dancer and prostitute when she

became pregnant with the defendant. Id. The defendant’s grandmother testified that she

raised the defendant as one of her own and took him to church every Sunday. The jury

imposed a sentence of death based on the (i)(2), (i)(6), and (i)(7) aggravating circumstances.

Id. at 696; see also Tenn. Code Ann. § 39-13-204(i)(2), (6), (7) (Supp. 1995).

In State v. Young, 196 S.W.3d 85, 96 (Tenn. 2006), the defendant, a white male from

Shelby County, carjacked the victim while she was sitting alone in her car at a stop sign. The

defendant forced the victim into the passenger seat and drove to a remote location in another

county. Id. While there, the defendant stabbed the victim in the back then concealed her

body under a sheet of tin near an old fuel tank. Id. The defendant left the victim to die and

33

drove away in her vehicle. The knife wounds caused the victim’s death within a matter of

minutes. Id. at 98-99. The jury convicted the defendant of theft under $10,000, especially

aggravated kidnapping, and first degree premeditated murder. Id. at 99. During the penalty

phase, the State introduced victim impact evidence and evidence of the defendant’s prior

convictions for robbery with a deadly weapon, rape, kidnapping, manslaughter, and robbery

in the first degree. Id. at 99-101. The jury found the existence of the (i)(2), (i)(6), and (i)(7)

aggravating circumstances and imposed a sentence of death. Id. at 101; see also Tenn. Code

Ann. § 39-13-204(i)(2), (6), (7).

After reviewing prior decisions and comparing his case with similar cases, we

conclude that Mr. Freeland’s case, taken as a whole, is not plainly lacking in circumstances

consistent with other cases in which the death penalty has been imposed. Accordingly, Mr.

Freeland’s sentence of death is not disproportionate.

IV. Conclusion

We have reviewed the issues raised by Mr. Freeland and conclude that they do not

warrant relief. As to the issues raised in this Court but not addressed in this opinion, we

affirm the decision of the Court of Criminal Appeals. Relevant portions of that opinion are

published hereafter as an appendix. We remand the case to the trial court, however, for the

entry of a corrected judgment reflecting the merger of count two into count one for a single

conviction for first degree murder. In accordance with Tennessee Code Annotated section

39-13-206(c)(1) and the principles adopted in prior decisions, we have considered the entire

record in this case and conclude that the sentence of death has not been imposed arbitrarily,

that the evidence supports the trial court’s finding of the statutory aggravating circumstances

beyond a reasonable doubt, that the evidence supports the trial court’s finding that the

aggravating circumstances outweigh any mitigating circumstances beyond a reasonable

doubt, and that the sentence is not excessive or disproportionate. The sentence of death shall

be carried out as provided by law on the 6th day of October, 2015, unless otherwise ordered

by this Court or other proper authority. It appearing that the defendant, John T. Freeland, Jr.,

is indigent, the costs of this appeal are taxed to the State of Tennessee.

______________________________

JANICE M. HOLDER, JUSTICE

34

Appendix

(Excerpts from the Decision of the Court of Criminal Appeals)

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

January 9, 2013 Session

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

Direct Appeal from the Circuit Court for Madison County, Tennessee

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

No. W2011-01828-CCA-R3-DD

THOMAS T. WOODALL, J., delivered the opinion of the Court, in which JERRY L.

SMITH and D. KELLY THOMAS, JR., JJ. joined.

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

Freeland, Jr.

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

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

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

OPINION

[Analysis]

Sufficiency of the Evidence

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

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

especially aggravated kidnapping, and especially aggravated kidnapping. The Defendant

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

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

arguing that "the Defendant's conviction was based solely on the Defendant's confession."

The State argues that the evidence sufficiently established the Defendant's convictions.

When an accused challenges the sufficiency of the convicting [*47] evidence, our

standard on review is whether, after reviewing the evidence in the light most favorable to the

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

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 2789, 61 L.

Ed. 2d 560 (1979). The trier of fact, not this Court, resolves questions concerning the

credibility of witnesses and the weight and value to be given the evidence as well as all

factual issues raised by the evidence. State v. Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim. App.

1995). Nor may this Court reweigh or re-evaluate the evidence. State v. Cabbage, 571

S.W.2d. 832, 835 (Tenn. 1978). On appeal, the State is entitled to the strongest legitimate

view of the evidence and all inferences therefrom. Id. Because a verdict of guilt removes the

presumption of innocence and replaces if with a presumption of guilt, the accused has the

burden in this Court of illustrating why the evidence is insufficient to support the verdict

returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). "[D]irect and

circumstantial evidence should be treated the same when weighing the sufficiency of [the]

evidence." State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011).

Premeditated [*48] first degree murder is "[a] premeditated and intentional killing

of another[.]" Tenn. Code Ann. § 39-13-202(a)(1). Premeditation "is an act done after the

exercise of reflection and judgment. 'Premeditation' means that the intent to kill must have

been formed prior to the act itself. It is not necessary that the purpose to kill pre-exist in the

mind of the accused for any definite period of time." Tenn. Code Ann. § 39-13-202(d). The

element of premeditation is a question of fact to be determined by the jury. State v. Suttles,

30 S.W.3d 252, 261 (Tenn. 2000); State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997).

Premeditation "may be established by proof of the circumstances surrounding the killing."

Suttles, 30 S.W.3d at 261. The Tennessee Supreme Court noted that there are several factors

which tend to support the existence of premeditation, including the use of a deadly weapon

upon an unarmed victim, the fact that the killing was particularly cruel, declarations of an

intent to kill by the defendant, evidence of procurement of a weapon, the making of

preparations before the killing for the purpose of concealing the crime, and calmness

immediately after the killing. Id.; see Bland, 958 S.W.2d at 660.

Felony [*49] murder is "[a] killing of another committed in the perpetration or

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

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

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

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

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

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

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

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supreme court, "a criminal conviction cannot be based solely on a defendant's uncorroborated

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

271 S.W.3d 90, 140 (Tenn. 2008); State v. Housler, 193 S.W.3d 476, 490 (Tenn. 2006); State

v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000); Ashby v. State, 124 Tenn. 684, 139 S.W. 872,

875 (1911); Williams v. State, 80 Tenn. 211, 212-13 (1883)). In Wagner, the court explained

that "th[e] rule requiring corroboration of a confession is known as the corpus delicti [*50]

rule." Id. at fn 9 (citing United States v. Brown, 617 F.3d 857, 860 (6th Cir. 2010)). As the

court also noted in Wagner, we are cognizant that the issue of whether the corpus delicti rule

should be abrogated or modified is presently pending before the supreme court. State v.

Bishop, No. W2010-01207-SC-R11-CD, 2012 Tenn. LEXIS 522 (Tenn. Aug. 15, 2012)

(order granting Tennessee Rule of Appellate Procedure 11 application and requesting

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

corpus delicti rule does not garner the Defendant any relief because his confession was

sufficiently corroborated by physical evidence and witness testimony.

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

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

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

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

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

Defendant's involvement in the offenses. In addition to the Defendant's admissions to

investigators [*51] and to a cell mate that he shot the victim, the record as a whole

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

aggravated kidnapping.

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

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

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

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

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

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

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

Constitutionality of the Death Penalty and Proportionality Review

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

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

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

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

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

3

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

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

claim as outlined in the Defendant's brief.

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

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

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

The Defendant contends that Tennessee's death penalty statutes fail to "sufficiently

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

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

147, 159 (Tenn.), [*57] cert. denied, 534 U.S. 1023, 122 S. Ct. 553, 151 L. Ed. 2d 428

(2001).

The Defendant argues that Tennessee's death penalty statutes fail to "limit the exercise

of the [trier of fact's] discretion because, once the [trier of fact] finds aggravation it can

impose a death sentence no matter what mitigation is shown." This argument has been

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

The Defendant argues that Tennessee's death penalty statutes unconstitutionally

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

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

our supreme court. State v. Boyd, 797 S.W.2d 589, 596 (Tenn. 1990), cert. denied, 498 U.S.

1074, 111 S. Ct. 800, 112 L. Ed. 2d 861 (1991).

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

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

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

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

The Defendant contends that Tennessee's death penalty statutes fail to "inform the

[trier of fact] of its ability [*58] to impose a life sentence out of mercy." This argument has

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

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

The Defendant argues that Tennessee's death penalty statutes unconstitutionally

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

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

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

268.

4

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

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

courts. State v. Keen, 31 S.W.3d 196, 233 (Tenn. 2000), cert. denied, 532 U.S. 907, 121 S.

Ct. 1233, 149 L. Ed. 2d 142 (2001) (rejecting general argument that the death penalty is cruel

and unusual); State v. Banks, 271 S.W.3d 90, 108 (Tenn. 2008) (rejecting specific claim that

lethal injection is cruel and unusual). Furthermore, the Supreme Court has rejected the same

challenge to Kentucky's lethal injection protocol. Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520,

170 L. Ed. 2d 420 (2008).

The Defendant argues that the death penalty [*59] is imposed in Tennessee in a

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

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

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

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

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

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

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

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

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

5