State of Tennessee v. Jessie Dotson - APPENDIX

Appendix

(Excerpts from the Decision of the Court of Criminal Appeals)

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

April 9, 2013 Session

STATE OF TENNESSEE v. JESSIE DOTSON

Appeal from the Criminal Court for Shelby County

No. 0807688 James C. Beasley, Jr., Judge

No. W2011-00815-CCA-R3-DD

A LAN E. G LENN, J., delivered the opinion of the Court, in which J OHN E VERETT W ILLIAMS

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

Kathleen Morris, Nashville, Tennessee, and Marty Brett McAfee, Memphis, Tennessee, for

the appellant, Jessie Dotson.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey Dean Zentner, Assistant

Attorney General; Amy P. Weirich, District Attorney General; and Damon Griffin, Reginald

Henderson, and Raymond Lepone, Assistant District Attorneys General, for the appellee,

State of Tennessee.

OPINION

[Analysis]

I. Sufficiency of the Evidence

The defendant contends that the evidence is insufficient to support his convictions,

saying that it is insufficient to establish premeditation and his identity as the perpetrator and

that the physical facts rule requires the reversal of his convictions.

Once a jury finds a defendant guilty, his presumption of innocence is removed and

replaced with a presumption of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992).

On appeal, the convicted defendant has the burden of demonstrating to this court why the

evidence does not support the jury’s verdict. State v. Carruthers, 35 S.W.3d 516, 557-58

(Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). To meet this burden, the

defendant must establish that no “rational trier of fact” could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319

(1979); State v. Evans, 108 S.W.3d 231, 236 (Tenn. 2003); Tenn. R. App. P. 13(e). In

contrast, the jury’s verdict approved by the trial judge accredits the State’s witnesses and

resolves all conflicts in favor of the State. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992).

The State is entitled to the strongest legitimate view of the evidence and all reasonable

inferences which may be drawn from that evidence. Carruthers, 35 S.W.3d at 558; Tuggle,

639 S.W.2d at 914. Questions concerning the credibility of the witnesses, conflicts in trial

testimony, the weight and value to be given the evidence, and all factual issues raised by the

evidence are resolved by the trier of fact and not this court. State v. Bland, 958 S.W.2d 651,

659 (Tenn. 1997). We do not attempt to reweigh or reevaluate the evidence. State v. Reid,

91 S.W.3d 247, 277 (Tenn. 2002); Bland, 958 S.W.2d at 659. Likewise, we do not replace

the jury inferences drawn from the circumstantial evidence with our own inferences. See

State v. Elkins, 102 S.w.3d 578, 582 (Tenn. 2003); Reid, 91 S.W.3d at 277.

First degree murder is defined as the “premeditated and intentional killing of another.”

Tenn. Code Ann. § 39-13-202(a)(1). An intentional act requires that the person have the

desire to engage in conduct or cause the result. Id. § 39-11-106(a)(18). A premeditated

killing is one “done after the exercise of reflection and judgment.” Id. § 39-13-202(d).

Premeditation means that

the intent to kill must have been formed prior to the act itself. It is not

necessary that the purpose to kill pre-exist in the mind of the accused for any

definite period of time. The mental state of the accused at the time the accused

allegedly decided to kill must be carefully considered in order to determine

whether the accused was sufficiently free from excitement and passion as to

be capable of premeditation.

Id.

Whether premeditation is present is a question of fact for the jury, and it may be

determined from the circumstances surrounding the killing. Bland, 958 S.W.2d at 660; State

v. Anderson, 835 S.W.2d 600, 605 (Tenn. Crim. App. 1992). Circumstances that may be

indicative of premeditation include declarations of the intent to kill, procurement of a

weapon, the use of a deadly weapon upon an unarmed victim, the fact that the killing was

-2-

particularly cruel, infliction of multiple wounds, the making of preparations before the killing

for the purpose of concealing the crime, destruction or secretion of evidence, and calmness

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

Nichols, 24 S.W.3d 297, 302 (Tenn. 2000). A defendant’s failure to render aid to a victim

can also indicate the existence of premeditation. State v. Lewis, 36 s.W.3d 88, 96 (Tenn.

Crim. App. 2000).

In cases where a defendant has been charged with the attempted commission of a

crime, there must be evidence that the defendant acted “with the kind of culpability otherwise

required for the offense” and acted “with intent to cause a result that is an element of the

offense, and believes the conduct will cause the result without further conduct on the

person’s part.” Tenn. Code Ann. § 39-12-101(a)(2). Criminal attempt also occurs when the

defendant “[a]cts with intent to complete a course of action or cause a result that would

constitute the offense, under the circumstances surrounding the conduct as the person

believes them to be, and the conduct constitutes a substantial step toward the commission of

the offense.” Id. § 39-12-101(a)(3).

A. Premeditation

The defendant argues that the evidence at trial established that he committed the

crimes while in a state of excitement and passion. In support, he points to his statement to

police in which he related how he and Cecil were arguing and that Cecil was waving a gun

around when the defendant grabbed his own gun and started shooting. The defendant argues

that there is no evidence that he was “sufficiently free of that ‘excitement and passion’ before

the children were assaulted, some of them fatally.” We respectfully disagree.

Viewed in the light most favorable to the State, the evidence established that the

defendant shot the adult victims multiple times and then repeatedly stabbed and beat the

young children, moving from room to room to do so. Although the defendant told police that

he first began shooting after Cecil reached for a shotgun, he told his mother that he began

shooting after Cecil laid down his gun and that he attacked the children because they had

seen him. We note that Sergeant Mullins testified that the shotgun appeared to have been

placed in the corner near Cecil, the position in which police discovered it, as part of the

staging of the scene.

Moreover, the killings and attempted killings were particularly cruel. Seals was shot

in the face and chest, and the gun was close enough to Seals’s face that it left stippling on his

face when fired. Williams was shot in the head, chest, leg, thigh, and abdomen. Roberson

was shot in both thighs and the left knee twice. Cecil had eight gunshot wounds, including

to the head, neck, chest, thigh, and foot, and there was material on his face consistent with

-3-

a pillow having been placed over his face and a gun fired through the pillow. The children

were repeatedly and violently stabbed with knives and beaten with wooden boards, and

C.D.1. was left in the bathtub with a knife sticking out of his head. In addition, the defendant

talked to some of the victims, rejecting their claims that they loved him and continuing with

his violent attacks.

The defendant altered the scene to make it appear as if the murders were drug or gang-

related, moved bodies, disposed of or hid kitchen knives and handles, and collected the

cartridge casings. He escaped on a bicycle and hid it in his girlfriend’s shed. Instead of

attempting to render aid or summon help, he went to a restaurant for dinner the next night

and reported to work on the Monday following the attacks, without telling anyone about the

crimes. He also lied to his family about the last time he had seen Cecil. This evidence was

more than sufficient to establish the element of premeditation in the defendant’s convictions

for first degree murder and attempted first degree murder.

B. Physical Facts Rule

The defendant also contends that the evidence against him was largely based on the

testimony of C.D.1, portions of which were negated by the “physical facts rule,” requiring

reversal of his convictions. We, again, respectfully disagree.

The physical facts rule is “‘the accepted proposition that in cases where the testimony

of a witness is entirely irreconcilable with the physical evidence, the testimony can be

disregarded.’” State v. Allen, 259 S.W.3d 671, 679 (Tenn. 2008) (quoting State v. Hornsby,

858 S.W.2d 892, 894 (Tenn. 1993)). When a witness’s testimony “cannot possibly be true,

is inherently unbelievable, or is opposed to natural laws, courts can declare the testimony

incredible as a matter of law and decline to consider it.” Id. (quotation omitted). For the

physical facts rule to apply, the testimony “must be unbelievable on its face, i.e., testimony

as to facts or events that the witness physically could not have possibly observed or events

that could not have occurred under the laws of nature.” Id. at 680. For example, testimony

that a witness “saw the sun set in the east” could be disregarded. Id.

The physical facts rule, however, is a power “that should be used sparingly.”

Hornsby, 858 S.W.2d at 895. When the testimony “is capable of different interpretations,

the matter should be left for the jury to decide as the sole arbiter of credibility.” Id. The

determination of whether there are inconsistencies in testimony, the reconciliation of

conflicts in testimony, and the determination of how this might affect a witness’s credibility,

are within the province of the jury. Id. “[T]he improbability of the truth of the testimony,

which justifies rejection under the physical facts rule, cannot rest upon any theory involving

the consideration of the comparative credibility of the witnesses.” Id. at 896 (quotations

-4-

omitted). The physical facts rule may not be invoked “where its application depends upon

assumptions or calculations based upon estimates as to speed, distance, time, and other such

uncertain matters in the movement of objects.” Allen, 259 S.W.3d at 680 (quotations

omitted).

The defendant asserts that although C.D.1 testified that he saw the defendant attacking

his siblings and speaking to Williams while C.D.1 was in the bathtub, “it would have been

impossible to see inside the bedroom from his vantage point in the tub.” The defendant also

asserts that C.D.1’s testimony that he was stabbed in the neck while lying on the bed in his

sister’s room was contradicted by the lack of his blood on that bed.

C.D.1 did not, however, testify that the defendant “stabbed” him in the neck, but

instead that the defendant “cut” his neck. We note that Dr. Muhlbauer confirmed that C.D.1

had a superficial laceration across his neck and that no evidence was presented regarding

what amount of blood, if any, such a superficial laceration would have produced.

Regardless, we cannot conclude that C.D.1’s testimony regarding the attack violated the

physical facts rule. As this court has previously noted, “the fact that a witness testifies and

that testimony ends up being inconsistent with other testimony raised at trial, . . . even if [it

is] scientific testimony, does not make it inadmissible testimony.” Lemar Brooks v. State,

No. M2010-02451-CCA-R3-PC, 2012 WL 112554, at *16 (Tenn. Crim. App. Jan. 11, 2012),

perm. app. denied (Tenn. May 16, 2012) (quotations omitted). Throughout his testimony,

C.D.1 identified the defendant as the perpetrator. The jury could have resolved any conflicts

and discrepancies in his testimony by attributing them to his youth, his head injury, or the

extreme trauma he must have experienced by witnessing and experiencing the horrific attacks

against him and his family members. We conclude, therefore, that this issue is without merit.

C. Identity

Lastly, the defendant contends that the evidence is insufficient to establish his identity

as the perpetrator. Specifically, he argues that his statement was inconsistent with the

physical evidence and that the forensic evidence excluded him as the perpetrator. However,

he confessed that he was the perpetrator, both in a statement to police and during his

conversation with his mother. In addition, two of the child victims identified him as their

attacker. By convicting the defendant of the indicted crimes, the jury obviously rejected the

defendant’s trial testimony in which he claimed to have been hiding under the bed while the

murders and attempted murders were perpetrated by others. We conclude, therefore, that the

evidence is more than sufficient to sustain the defendant’s convictions.

***

-5-

VI. Trial Court’s Treatment of Defense Counsel

The defendant next contends that the trial court’s reprimand of defense counsel in

open court prejudiced his right to a fair trial. The exchange about which the defendant

complains occurred after defense counsel first questioned Sergeant Mullins about the

presence at the crime scene and during the defendant’s police interview of a camera crew

from the television show, The First 48, and then asked Sergeant Mullins the following

question about a cameraman who was recording the trial:

Q. . . . That guy is from A and E, isn’t he, The First 48? We’re still

continuing the story, aren’t we?

A. As far as I know, yes, sir.

Q. We’re filming the rest of the show; right?

Before Sergeant Mullins answered the question, the trial court interrupted, stating:

THE COURT: [F]or the record, the Supreme Court of the State of Tennessee

has authorized cameras in the courtroom. This Court allows one camera in the

courtroom and all media outlets feed off of the one camera. That camera and

the TV station associated with that is the lead camera that’s in the courtroom.

Every media outlet and every channel is peeling off of one camera. That is one

that has been authorized by the Supreme Court to be here.

[DEFENSE COUNSEL]: I understand.

THE COURT: This Court is not authorizing a television show or to be part of

a television show. They are following the rules that the Supreme Court says.

So let’s make sure the record is clear that this is not a TV show and this is not

being produced as a TV show and it’s not being edited as a TV show. This is

a trial.

[DEFENSE COUNSEL]: Can I ask him who the producer that’s running the

camera works for?

THE COURT: No, sir.

[PROSECUTOR]: I’m going to object to relevance.

-6-

THE COURT: That camera is in this courtroom and you know that camera is

in this courtroom under the rules of the Supreme Court of Tennessee. They are

one of a party of media outlets that are using that feed. So let’s don’t talk

about this being part of a TV show. You want to ask questions, let’s ask

relevant questions.

[DEFENSE COUNSEL]: I am asking questions about this.

THE COURT: This is not apart [sic] of a television show . . . . Let’s move on

to something that’s relevant.

Defense counsel continued by questioning Sergeant Mullins about the presence of a

camera and the crew from The First 48 during the time the defendant was interviewed by

police. The trial court again interrupted, informing defense counsel that it believed Sergeant

Mullins had previously answered that question. The State requested a bench conference, and

the trial court denied the request:

That he was not present when that interview was conducted so let’s move into

areas that he’s aware of, okay. I’ve allowed this to go for a long way, and I

know where you’re going and I understand why you’re going there. He’s

already testified he wasn’t present when that interview was conducted. He

doesn’t know who was in there.

During a subsequent jury-out hearing, co-counsel objected to the trial court’s “calling

down” defense counsel when he was questioning a witness. The trial court explained that

defense counsel had accused the court of being part of a television show. The court stated,

“And that’s when I said enough. This is not part of a TV show. This is a court of law.” The

trial court agreed that in the future, it would not “call [defense counsel] down” in the jury’s

presence but would call them to the bench instead. The court thereafter apologized to

defense counsel “for losing [its] temper.” When the jury returned, the trial court then offered

the following apology to the jury:

All right. Ladies and gentlemen, first, let me apologize to you for

losing my temper. I’ve already apologized to the lawyers. You need to

understand that – and I know you do, this is an adversarial proceeding. But

within that adversarial proceeding there [are] certain rules of decorum that we

all must operate under, me included. I’ve worked with these lawyers for many

years.

-7-

Sometimes I lose my temper and it’s inappropriate. I should not do that.

I should not do it in the manner in which I sometimes lose my temper. So I’ve

apologized to them. I apologize to you. I will say to you, you cannot, should

not, nor would it be proper for you to in any way hold [the defendant] or

anybody else responsible for my lack of being able to maintain my own cool.

So I say that to you with all d[ue] respect. I hope you accept my apology.

“[A]ll litigants are entitled to the ‘cold neutrality of an impartial court’ and have a

right to have their cases heard by fair and impartial judges.” Wright v. Pate, 117 S.W.3d 774,

778 (Tenn. Ct. App. 2002) (quoting Kinard v. Kinard, 986 S.W.2d 220, 227 (Tenn. Ct. App.

1998)). Cannon 3(A) of the Code of Judicial Conduct provides that a trial judge should be

“patient, dignified, and courteous to the litigants, jurors, witnesses and lawyers” during the

course of a trial, and instructs the trial judge to perform his or her judicial duties without bias

or prejudice. Tenn. Sup. Ct. R. 10.1 While the trial judge is extended broad discretion in

controlling the course and conduct of the trial, the trial judge must refrain from expressing

“any thought that might lead the jury to infer that the judge is in favor of or against the

defendant in a criminal trial.” State v. Cazes, 875 S.W.2d 253, 260 (Tenn. 1994); State v.

Harris, 839 S.W.2d 54, 66 (Tenn. 1992).

It is apparent that defense counsel’s cross-examination of Sergeant Mullins about the

presence of the camera crew and the fact that the trial was being filmed for possible use in

a future television show came across to the trial court as an attack on the integrity and

formality of the trial process, which led to the court’s reprimand to counsel. While we can

understand and sympathize with the trial court’s frustration, we agree that the court should

have avoided reprimanding defense counsel in the presence of the jury.

We do not, however, believe that the trial court’s remarks, when viewed in the context

of the entire trial, deprived the defendant of his constitutional right to a fair trial. The

remarks constituted a brief portion of a multi-week trial; the trial court apologized to both

defense counsel and the jury for the remarks; and the trial court appropriately instructed the

jury that it was not to consider its comments against the defendant. We, therefore, conclude

that, considering the record in its entirety, the error was harmless beyond a reasonable doubt.

See State v. John D. Joslin, No. 03C01-9510-CR-00299, 1997 WL 583071, at *42-43 (Tenn.

Crim. App. Sept. 22, 1997), perm. app. denied (Tenn. Nov. 9, 1998) (holding that while the

trial court’s remark was improper, the error was “harmless beyond a reasonable doubt”).

1

The Code of Judicial Conduct was revised, effective July 1, 2012. Because the trial occurred prior

to the effective date of the revisions, we refer to the Code that was in effect at the time of the trial.

-8-

The defendant also complains that his right to a fair trial was violated by the fact that

the trial court continued to interject during defense counsel’s cross-examination of Sergeant

Mullins, instructing defense counsel to repeat or rephrase questions and refusing to allow

defense counsel to ask certain questions. The record, however, demonstrates that the trial

court merely asked defense counsel to repeat or rephrase questions that were unclear and

refused to allow counsel to repeatedly ask the same questions. By doing so, the trial court

was fulfilling its duty to ensure that the proceedings “move[d] along in an orderly and

systematical manner.” State v. Evans, 838 S.W.2d 185, 195 (Tenn. 1992). We conclude,

therefore, that the defendant is not entitled to relief regarding this issue.

***

VIII. Admission of Photographs

The defendant contends that the trial court erred in denying his motion to prohibit the

display of photographs of the victims after death. The admissibility of relevant photographs

of victims and the crime scene is within the sound discretion of the trial court, and the court’s

ruling on admissibility will not be disturbed on appeal absent a showing of an abuse of that

discretion. State v. Carruthers, 35 S.W.3d 516, 576-77 (Tenn. 2000); State v. Van Tran, 864

S.W.2d 465, 477 (Tenn. 1993); State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). As our

supreme court stated in Carruthers, the modern trend is to vest more discretion in the trial

court’s rulings on admissibility. 35 S.W.3d at 577 (citing Banks, 564 S.W.2d at 949).

Evidence is relevant if it has “any tendency to make the existence of any fact that is

of consequence to the determination of the action more probable or less probable than it

would be without the evidence.” Tenn. R. Evid. 401. Relevant evidence “may be excluded

if its probative value is substantially outweighed by the danger of unfair prejudice, confusion

of the issues, or misleading the jury.” Tenn. R. Evid. 403. The court must determine the

relevance of the visual evidence and weigh its probative value against any undue prejudice.

Id. The term “unfair prejudice” has been defined as “an undue tendency to suggest decision

on an improper basis, commonly, though not necessarily, an emotional one.” Banks, 564

S.W.2d at 950-51.

In Banks, our supreme court provided trial courts with guidance for determining the

admissibility of relevant photographic evidence. The trial court should consider: the

accuracy and clarity of the picture and its value as evidence; whether the picture depicts the

body as it was found; the adequacy of testimonial evidence in relating the facts to the jury;

and the need for the evidence to establish a prima facie case of guilt or to rebut the

defendant's contentions. Id. at 951.

-9-

The defendant argues that the trial court erred in admitting photographs of the victims’

facial injuries and crime scene photographs of the three child victims. We note, however,

that the defendant raised no objections to the admission of the photographs at trial and at a

pretrial hearing objected only to six photographs that depicted the children’s injuries, which

were taken at the hospital. At the conclusion of the hearing, the trial court ruled that five of

the six photographs were relevant and admissible to show the extent and nature of the

injuries in order for the State to prove premeditation. The court reserved its ruling on the

sixth photograph in order for the State to determine whether it depicted a bloody bandage on

a victim’s head, or a portion of the child’s scalp, stating that if it were a bandage, it would

admit the photograph. The defendant has, thus, waived review of this issue.

Even if not waived, we would conclude that the trial court did not err in admitting the

photographs. Photographs of a corpse are admissible in murder prosecutions if they are

relevant to the issues at trial, notwithstanding their gruesome and horrifying character. See

Banks, 564 S.W.2d at 950-51. The photographs admitted by the trial court were relevant to

supplement the testimony of the medical examiner and the treating physician regarding the

victims’ injuries and to support the aggravating circumstances alleged by the State. See,

generally, State v. Cole, 155 S.W.3d 885, 913 (Tenn. 2005) (Appendix). We conclude,

therefore, that the probative value of the photographs was not outweighed by their prejudicial

effect, and the trial court did not abuse its discretion in admitting them.

IX. Denial of Motion to Provide DNA Analysis

The defendant next contends that the trial court erred in denying his second amended

motion to provide DNA analysis for all those who were in contact with the crime scene. The

defendant filed his initial motion on May 13, 2010, stating that the purpose of the request was

to eliminate law enforcement, medical, and other personnel who were present at the crime

scene from physical evidence at the scene that did not match the defendant or the victims.

During a hearing, defense counsel informed the trial court that the motion was filed in

response to a report from the FBI crime laboratory which stated that two Caucasian or Asian

Mongoloid hairs that were discovered mixed in the blood on the buttocks and thigh region

of Roberson’s body could not be identified as belonging to the defendant or the victims. The

trial court ordered the State to determine those of Caucasian or Asian Mongoloid descent

who had contact with the victim’s body in investigating the crime scene.

During a subsequent hearing, the State informed the trial court that five individuals

had direct contact with the victim’s body: the medical examiner, the medical examiner’s

assistant, an emergency response officer, and two people from the private corpse removal

service that the medical examiner’s office used to transport the victims’ bodies. The trial

court denied the defendant’s motion to require those five people to provide DNA samples for

-10-

comparison with the unidentified hairs, observing that it was unaware of any authority that

would permit it to compel private citizens who were not suspected of a crime to provide

DNA samples to the court for testing by a criminal defendant. The court also noted that even

if DNA testing were to exclude those five individuals as contributors, such evidence would

not, alone, exculpate the defendant.

The trial court further noted that the defendant could request that those five people

voluntarily provide a DNA sample and that defense counsel could, during trial: (1) question

the State’s experts regarding the availability of DNA testing and their decision not to perform

such tests in order to eliminate investigators and medical personnel as contributors of the

hairs; (2) question law enforcement and medical witnesses regarding the protocols they

followed in preserving the evidence and avoiding scene contamination; and (3) argue that the

hairs possibly belonged to an unknown perpetrator or an additional perpetrator. The

defendant also could employ his own expert to review and potentially refute the State’s

findings upon a showing of particularized need for funding. Finally, the trial court prohibited

the State from unfairly benefitting from its ruling by either claiming or inferring that the

unidentified hairs conclusively belonged to one of those five individuals, or other individuals,

who had entered the crime scene. The only inference that the trial court allowed the State

to draw was that the hairs remained unidentified and could have been left by someone other

than an unknown perpetrator.

Shortly thereafter, the defendant filed amended motions in which he argued that the

testing was necessary in order to protect his rights to confront witnesses, compulsory process

of the law, and present a third party defense. The defendant asserted that the trial court could

enter a protective order prohibiting disclosure of the testing absent court order. The trial

court, however, once again denied the request.

The defendant acknowledges there is no Tennessee precedent for court-ordered DNA

testing of law enforcement and medical personnel. See, e.g., Bartlett v. Hamwi, 626 So. 2d

1040, 1042-43 (Fla. Dist. Ct. App. 1993) (upholding the trial court’s denial of the

defendant’s motion to obtain a hair sample from a prosecution witness based upon the

absence of a rule or statute authorizing such discovery, as well as a consideration of the

witness’s constitutional rights); State v. McKinney, 730 N.W.2d 74, 89-90 (Neb. 2007)

(applying the analysis in Bartlett in upholding the denial of the defendant’s motion to obtain

DNA samples from witnesses). The defendant argues, however, that such DNA testing is

similar to law enforcement officers requesting “elimination fingerprints” when investigating

a crime. We note, however, that in State v. Dailey, 273 S.W.3d 94, 97 (Tenn. 2009), the case

upon which the defendant relies, the trial court did not order the fingerprinting, but

individuals were instead asked to voluntarily provide elimination fingerprints. Id.

-11-

Moreover, the withdrawal of blood for testing “infringes an expectation of privacy”

and is subject to the constraints of the Fourth Amendment. Skinner v. Ry. Labor Executives’

Ass’n, 489 U.S. 602, 616 (1989); State v. Scarborough, 201 S.W.3d 607, 616 (Tenn. 2006).

Although we recognize that it is possible to “extract DNA by applying a sticky patch to the

skin on an individual’s forearm for a moment to acquire epidermal cells without puncturing

the skin surface,” Scarborough, 201 S.W.3d at 619 (quotations omitted), DNA analysis

performed after the collection of a biological specimen “is a separate and distinct search

which ‘is potentially a far greater intrusion than the initial extraction of DNA, since the state

analyzes DNA for information and maintains DNA records indefinitely.’” Id. (quoting

Nicholas v. Goord, 430 F.3d 652, 670 (2d Cir. 2005)).

“[A] witness, who is not a suspect, defendant or victim, should have no less protection

against bodily intrusion than defendants or suspects in criminal cases.” Bartlett, 626 So. 2d

at 1042 (footnote omitted). While the present case involves the defendant’s request for

evidence, a witness continues to be protected under the Fourth Amendment and the

constitutional rights to privacy guaranteed by the United States Constitution. See id. at 1042-

43. Thus, we must balance the constitutional rights of those third parties from whom the

defendant sought to compel DNA samples against any rights that the defendant might have

in presenting his defense. See McKinney, 730 N.W.2d at 90. In so doing, we agree with the

trial court’s observation that the exclusion of the personnel who came into contact with

Roberson’s body as the contributors of the hairs would not have exculpated the defendant,

especially given the testimony at trial about the amount of traffic at the home during the five

months in which Cecil lived there. After balancing these competing rights, we conclude that

“[t]he circumstances presented here do not constitute a ‘rare instance’ where justice may

require an invasion of a witness’ privacy rights or an invasion of [a third party’s] Fourth

Amendment rights.” Bartlett, 626 So. 2d at 1043.

X. Denial of Motion for Production of Statements

of Those Not Called as Witnesses

The defendant next contends that the trial court erred in denying his motion for

production of statements of those not called as witnesses by the State and that the State was

required to disclose those statements pursuant to Brady v. Maryland, 373 U.S. 83 (1963).

“[T]he suppression by the prosecution of evidence favorable to an accused upon

request violates due process where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.” Id. at 87. In order to establish

a Brady violation, a defendant must show that he or she requested the information, the State

suppressed the information, the information was favorable to his or her defense, and the

information was material. State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). Evidence is

-12-

“material” only if there is a reasonable probability that the result of the proceeding would

have been different had the evidence been disclosed to the defense. United States v. Bagley,

473 U.S. 667, 682 (1985). “Materiality” has been further explained as follows:

The question is not whether the defendant would more likely than not have

received a different verdict with the evidence, but whether in its absence he

received a fair trial, understood as a trial resulting in a verdict worth of

confidence. A “reasonable probability” of a different result is accordingly

shown when the government’s evidentiary suppression “undermines

confidence in the outcome of the trial.”

Kyles v. Whitley, 514 U.S. 419, 434 (1995) (quoting Bagley, 473 U.S. at 678). The burden

of proving a Brady violation rests with the defendant, and the violation must be proven by

a preponderance of the evidence. Edgin, 902 S.W.2d at 389.

First, the defendant has failed to establish that the State suppressed the information

or that the information was favorable to the defense. During the pretrial hearing on the

motion, defense counsel acknowledged that the State provided open-file discovery. The

prosecutor also commented that “anything that’s in the possession of the Memphis Police

Department has to be turned over to the Defense.” The defendant identifies testimony from

various officers at trial that they received numerous tips regarding problems that Cecil was

having with a gang and money that he allegedly took. The defendant, however, was able to

present evidence through cross-examination of the State’s witnesses, as well as through

witnesses that he called to testify, that Cecil was in trouble with the Gangster Disciples for

committing a gang violation and that Cecil owed $300,000 to “the mob.” The defendant does

not state what additional information he alleges that the State failed to disclose.

Moreover, the defendant has failed to show that the information was material.

Evidence of the defendant’s guilt was overwhelming. The jury heard and rejected evidence

suggesting that Cecil might have been killed due to his debt with “the mob,” in retaliation

for the shooting death of a member of a rival gang, or as the result of committing a violation

against one of his fellow gang members. The defendant fails to establish a reasonable

probability that the result of the proceedings would have been different had such additional

evidence been disclosed to the defense. We conclude, therefore, that the defendant is not

entitled to relief on the basis of this issue.

-13-

XI. Improper Jury Instructions

The defendant challenges as prejudicially improper multiple jury instructions given

during the guilt phase of his trial. Because the defendant did not object to the instructions

at trial or raise the issues in his motion for new trial, the issues are waived, and our review

is limited to plain error. Faulkner, 154 S.W.3d at 58; see also Tenn. R. App. P. 3(e); Tenn.

R. App. P. 36(a); Tenn. R. Crim. P. 52(b).

We must review jury instructions in their entirety, and we may not examine phrases

in isolation. State v. Rimmer, 250 S.W.3d 12, 31 (Tenn. 2008). In determining whether a

defendant is harmed by an ambiguous, erroneous instruction, we must consider “‘whether

the ailing instruction by itself so infected the entire trial that the resulting conviction violates

due process.’” Id. (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). The significant

question is “whether there is a reasonable likelihood that the jury has applied the challenged

instruction in a way that violates the Constitution.” Id. (quotations omitted). An ambiguous

term does not necessarily constitute error. Id.

[J]urors do not sit in solitary isolation booths parsing instructions for subtle

shades of meaning in the same way that lawyers might. Differences among

them in interpretation of instructions may be thrashed out in the deliberative

process, with commonsense understanding of the instructions in the light of all

that has taken place at the trial likely to prevail over technical hairsplitting.

Id. (quotations omitted).

The defendant first asserts that the trial court’s instruction defining “reasonable doubt”

at the close of proof in the guilt phase improperly reduced the State’s burden of proof. The

trial court instructed the jury as follows:

The law presumes that the defendant is innocent of the charges against

him, therefore, you as the jury, must enter upon this investigation with the

presumption that the defendant is not guilty of any crime and this presumption

stands as a witness for him unless it is rebutted and overturned by competent

and credible proof. It is, therefore, incumbent upon the State, before you can

convict the defendant, to establish to your satisfaction, beyond a reasonable

doubt, that the crime charged in the indictment has been committed; that the

same was committed in Shelby County, Tennessee, before the indictment was

returned and that the defendant on trial committed the crime in such a manner

that would make him guilty under the law as it has been defined and explained

to you.

-14-

The State has the burden of proving the guilt of the defendant beyond

a reasonable doubt, and this burden never shifts but it remains on the State

throughout the trial of the case. The defendant is not required to prove his

innocence. The State must have proven beyond a reasonable doubt all of the

elements of the crime charged and that it was committed before the finding and

returning of the indictment in this case.

A reasonable doubt is that doubt created by an investigation of all the

proof in the case and an inability, after such investigation, to let the mind rest

easily as to the certainty of guilt. Reasonable doubt does not mean a doubt that

may arise from possibility. Absolute certainty of guilt is not demanded by the

law to convict of any criminal charge, but moral certainty is required and this

certainty is required as to every element of proof requisite to constitute the

offense.

The defendant takes issue with the statement, “Reasonable doubt does not mean a

doubt that may arise from possibility.” This issue was addressed by the Tennessee Supreme

Court in Rimmer, 250 S.W.3d at 30-31. The court stated that a fair interpretation of the

phrase is that “reasonable doubt does not mean a doubt that may arise from mere possibility

no matter how improbable.” Id. at 31. The court concluded that the jury instruction did not

result in the denial of due process and that there was not a reasonable likelihood that the jury

applied the burden of proof in an unconstitutional way. Id.

The defendant attempts to distinguish Rimmer from the present case because the

instruction in Rimmer was given in the penalty phase, rather than the guilt phase as in the

present case. The defendant does not cite any authority holding that the meaning of

“reasonable doubt” differs between the guilt and penalty phases. Under the circumstances

of this case, we cannot conclude that the jury was reasonably likely to have applied the

burden of proof in an unconstitutional way. While further use of this instruction is

discouraged, see id., the instruction is not unconstitutional.

The defendant also takes issue with the trial court’s instruction during the guilt phase

that “[t]here are nine counts in this indictment. You will have a packet of sentencing forms

for each count as to each victim.” (emphasis added). According to the defendant, the

instruction indicated that “guilt was a foregone conclusion and the jury was charged with

sentencing.” Given that the trial court repeatedly instructed the jury that the defendant was

innocent until proven guilty, we cannot conclude that the instruction affected a substantial

right as to rise to the level of plain error.

-15-

The defendant next argues that the trial court improperly combined each of the six

counts of first degree murder and each of the three counts of attempted first degree murder

into one instruction. According to the defendant, the instruction suggested that all of the

murder counts should have one verdict and all of the attempted murder counts should have

one verdict. The trial court instructed the jury that it was to return a verdict on each of the

nine counts, and the jury did as instructed. The defendant is not entitled to relief on this

issue.

The defendant also complains about the following statement the trial court made after

instructing the jury regarding the definitions of “intentionally,” “knowingly,” “recklessly,”

and “criminal negligence”:

These definitions apply to the offenses of Murder in the First Degree,

Murder in the Second Degree, Voluntary Manslaughter, Reckless Homicide

and Criminally Negligent Homicide. They also apply to the offenses of

Attempted Murder in the First Degree, Attempted Murder in the Second

Degree and Attempted Voluntary Manslaughter.

The defendant argues that through this instruction, the jury was told to apply the mental states

of “recklessly” and “negligently” to the first degree murder charge. The trial court, however,

then defined each of the offenses, which included the mental state applicable for each

offense. The trial court specifically instructed the jury that in order to convict the defendant

of premeditated first degree murder, it must find that the defendant acted “intentionally.”

Because the trial court’s instruction for first degree and attempted first degree murder

specifically limited their applications to an intentional mental state, we cannot conclude that

the jury was told to apply and that the jury did apply the mental states of “recklessly” or

“negligently” to the first degree and attempted first degree murder charges.

The defendant next asserts that the trial court’s instruction to “[t]ake the case, consider

all of the facts and circumstances fairly and impartially and return to the court with the

verdict that TRUTH dictates and JUSTICE demands” informed the jury that if it believed

that the defendant committed the offenses as alleged, it could render a verdict of guilt

regardless of whether the State proved its allegations beyond a reasonable doubt. The trial

court, however, repeatedly instructed the jury that the defendant was innocent until proven

guilty. Thus, we cannot conclude that the instruction affected a substantial right of the

defendant such as to rise to the level of plain error.

-16-

XII. Failure to Instruct Facilitation as a Lesser-Included Offense

The defendant next contends that the trial court erred in failing to instruct the jury on

facilitation as a lesser-included offense of premeditated first degree murder and attempted

first degree murder. Whether a particular instruction regarding a lesser-included offense

should have been given is a mixed question of law and fact. State v. Hatfield, 130 S.W.3d

40, 41 (Tenn. 2004). We review mixed questions of law and fact de novo with no

presumption of correctness. Carpenter v. State, 126 S.W.3d 879, 892 (Tenn. 2004).

Facilitation of the charged offense is a lesser-included offense under the test

established in State v. Burns, 6 S.W.3d 453, 466-67 (Tenn. 1999). The issue is whether the

evidence presented at trial was sufficient to support an instruction for facilitation. A two-step

analysis is necessary to determine if an instruction on a lesser-included offense is supported

by the evidence. First, we must determine if any evidence exists that “reasonable minds

could accept as to the lesser-included offense.” State v. Richmond, 90 S.W.3d 648, 660

(Tenn. 2002). Second, we must determine “if the evidence, when viewed liberally in the

light most favorable to the existence of a lesser-included offense, is legally sufficient to

support a conviction for the lesser-included offense.” Id.

The theory presented by the State at trial was that the defendant acted alone in

shooting the adults and stabbing and beating the children. The theory presented by the

defense was that someone else attacked the victims while the defendant hid in a bedroom

under the bed. Neither of these theories support a facilitation instruction. We conclude,

therefore, that the trial court properly declined to instruct the jury on facilitation as a lesser-

included offense of premeditated first degree murder and attempted first degree murder.

XIII. Denial of Motion to Strike Aggravating Circumstances

The defendant next contends that the trial court erred in denying his motion to strike

the (i)(3) and (i)(12) aggravating circumstances as duplicitous. The (i)(3) aggravating

circumstance provides that the defendant “knowingly created a great risk of death to two (2)

or more persons, other than the victim murdered, during the act of murder.” Tenn. Code

Ann. § 39-13-204(i)(3). The (i)(12) aggravating circumstance provides that the defendant

“committed ‘mass murder,’ which is defined as the murder of three (3) or more persons,

whether committed during a single criminal episode or at different times within a forty-eight-

month period.” Id. at (i)(12). The defendant argues that these aggravating circumstances are

duplicitous “[i]nasmuch as the risk of death factor in this case is inclusive in the mass murder

factor.”

-17-

Our supreme court has, however, already rejected the claim that the (i)(3) and (i)(12)

aggravating circumstances are duplicitous, finding that each of these aggravating

circumstances relies upon different policy justifications for rendering a defendant eligible for

the death penalty. State v. Jordan, 325 S.W.3d 1, 74 (Tenn. 2010). The court recognized that

the fact that “the same conduct may satisfy certain elements of different aggravating

circumstances does not contaminate the jury’s sentencing process, or invalidate its weighing

process.” Id. The court, thus, declined to hold as unconstitutional the use of the same

evidence to satisfy elements of different but valid aggravating circumstances. Id. The

defendant, therefore, is not entitled to relief on this issue.

XIV. Denial of Motion for Probable Cause Finding

that Aggravating Circumstances Existed

The defendant next contends that the decision to charge a capital offense must be

made by the grand jury and not the prosecutor. He further argues that the failure to allege

any aggravating circumstances in the indictment violated his Fifth Amendment right to an

indictment by grand jury. The Tennessee Supreme Court has, however, rejected this

argument. See State v. Thomas, 158 S.W.3d 361, 406 (Tenn. 2005). The defendant is not,

therefore, entitled to relief on the basis of this issue.

XV. Denial of Motion for Disclosure of Information

Regarding Proportionality Review

The defendant next contends that the trial court erred in denying his motion for

disclosure of information regarding proportionality review so that he may challenge the

constitutionality of comparative proportionality review. Our supreme court has, however,

rejected other similar challenges to the meaningfulness of comparative proportionality

review. See, e.g., State v. Bland, 958 S.W.2d 651, 663 (Tenn. 1997); State v. Brimmer, 876

S.W.2d 75, 87 (Tenn. 1994). Moreover, as fully discussed below, we conclude that the

defendant’s death sentences are proportionate to the penalty imposed in similar cases. This

issue is, therefore, without merit.

XVI. Admission of Victim Impact Evidence

The defendant next contends that the trial court erred in admitting victim impact

evidence in the penalty phase of the trial. The defendant does not identify specific testimony

that he claims was erroneously admitted, but instead urges this court to adopt Justice Stevens’

dissent in Payne v. Tennessee, 501 U.S. 808, 859-60 (1991), in which he opines that victim

impact evidence is improper in any capital case. Our supreme court has, however,

recognized the admissibility of victim impact evidence during the penalty phase of a capital

-18-

case even after Justice Stevens’ dissent in Payne. See State v. Nesbitt, 978 S.W.2d 872, 899-

90 (Tenn. 1998) (finding no federal or state constitutional barriers to victim impact evidence

at capital sentencing). This issue is, therefore, without merit.

XVII. Denial of Motion to Argue Last

The defendant next contends that the trial court erred in denying his motion to argue

last during the penalty phase. Tennessee Code Annotated section 39-13-204(d) provides that

during the penalty phase, “the state shall be allowed to make a closing argument to the jury;

and then the attorney for the defendant shall also be allowed such argument, with the state

having the right of closing.” The practice of allowing the State to argue last at sentencing

has been held to be constitutional. See State v. Melson, 638 S.W.2d 342, 368 (Tenn. 1982).

This issue is without merit.

XVIII. Prosecutorial Misconduct

The defendant contends that the State committed prosecutorial misconduct during the

rebuttal closing arguments in both the guilt and penalty phases of the trial. The defendant

did not object to all the portions of the State’s argument at trial that he claims are improper

or raise the issue of prosecutorial misconduct in his motion for new trial. Therefore, the issue

is waived, and our review is limited to plain error. Faulkner, 154 S.W.3d at 58; see also

Tenn. R. App. P. 3(e); Tenn. R. App. P. 36(a); Tenn. R. Crim. P. 52(b).

Closing arguments are a “valuable privilege” and should not be unduly restricted.

Terry v. State, 46 S.W.3d 147, 156 (Tenn. 2001). “Consequently, attorneys are given greater

leeway in arguing their positions before the jury, and the trial court has significant discretion

in controlling these arguments, to be reversed only upon a showing of an abuse of that

discretion.” Id. We have explained that “arguments must be temperate, based upon the

evidence introduced at trial, relevant to the issues being tried, and not otherwise improper

under the facts or law.” State v. Goltz, 111 S.W.3d 1, 5 (Tenn. Crim. App. 2003).

The generally recognized areas of prosecutorial misconduct in closing arguments

occur when the prosecutor intentionally misstates the evidence or misleads the jury on the

inferences it may draw from the evidence; expresses his or her personal opinion on the

evidence of the defendant’s guilt; uses arguments calculated to inflame the passions or

prejudices of the jury; diverts the jury from its duty to decide the case on the evidence by

injecting issues broader than the guilt or innocence of the accused under the controlling law

or by making predictions on the consequences of the jury’s verdict; and intentionally refers

to or argues facts outside the record, other than those that are matters of common public

knowledge. Id. at 6.

-19-

The defendant first argues that the State denigrated the defense by referring to

alternate theories as “smoke and mirrors,” “ridiculous,” and “insane” and by referring to

defense counsel as a “tricky lawyer.” A review of the record reveals that the prosecutor used

the phrase “smoke and mirrors” to refer to the defense’s attempts to divert attention from the

issues and not as a suggestion that evidence was fabricated by the defense. The prosecutor

used the phrase “ridiculous” to rebut the defense’s argument that the murders were

committed by gang members who then remained at the crime scene to rearrange the scene,

and to rebut defense counsel’s argument that the defendant’s behavior following the murders

could not be explained. The prosecutor described defense counsel’s attempts to use evidence

that the State believed to be irrelevant to argue reasonable doubt as “ridiculous” and

“insane.” When viewed in their context, we cannot conclude that the prosecutor’s comments

violated a clear rule of law. Moreover, even if the arguments were improper, the error was

harmless in light of the strong evidence of guilt. Thus, the defendant also has failed to

establish that the issue involves a substantial right. Accordingly, the issue does not rise to

the level of plain error.

The defendant also complains about the prosecutor’s rebuttal argument in the guilt

phase of the trial that the jury should not discredit the testimony of two of the surviving

children “because of some tricky lawyer or expert.” When viewed in its context, we cannot

conclude that the prosecutor’s comment was an attack on defense counsel’s credibility.

Rather, the comment was an attempt by the prosecutor to persuade the jurors to focus on their

own views of the credibility of these witnesses and the evidence.

The defendant also complains of the following statement by the prosecutor:

And you want to talk about this tape and the five hours? Sure. The

defense has a golden nugget because The First 48 when they were editing their

television show only played certain parts on TV and the rest they destroyed the

raw footage. That wasn’t in the Memphis Police Department’s control.

Remember that please because they’re getting blamed for it.

So now [the defendant] can say whatever he wants. Oh, that five hours

that you don’t get to see, this is what I was doing.

At the conclusion of the prosecutor’s argument, defense counsel objected, asserting

that evidence was never presented that employees from The First 48 destroyed the tape

recording of the officers’ interrogation of the defendant. The defendant, however, does not

make this argument on appeal. Rather, the defendant argues that the prosecutor interjected

his own opinion by arguing that the defendant can “say whatever he wants.” Based upon our

review of the record, we conclude that the prosecutor was not interjecting his own opinion

-20-

but was attacking the credibility of the defendant’s testimony based upon the evidence

presented at trial and the inferences drawn from the evidence.

The defendant also argues that the prosecutor testified when he stated the following:

Prosecution witnesses are coached. That’s another thing they’re going

to throw out at you. What proof do they have? Did they put me on the stand?

Did they ask me hey, did you coach him last night? Because I would have

given you an answer. These children wanted to come in here and tell you what

happened to them the best they could.

We agree that the prosecutor’s comment suggesting that defense counsel could have

and should have called him to testify was improper. While the prosecutor’s argument that

the children who testified were not coached was not artfully made, we cannot conclude that

the prosecutor’s statement that “[t]hese children wanted to come in here and tell you want

happened to them the best they could” constituted testimony from the prosecutor. After

making the statement, the prosecutor discussed the trauma that the children suffered and the

difficulties that the children experienced recalling details. Thus, the statement was consistent

with the evidence presented at trial. The prosecutor’s argument does not rise to the level of

plain error.

The defendant also contends that the prosecutor injected his own opinion during

closing arguments in the guilt phase by telling the jury that the defendant’s testimony was

“not believable” and that the defendant was “lying.” The prosecutor did not offer his

opinion. Rather, he argued that based on the evidence, the defendant’s testimony was not

believable and that he was lying. This argument was proper.

According to the defendant, the prosecutor encouraged the jury to experience the

victims’ fear during rebuttal argument in the penalty phase. The prosecutor’s references to

the fear that the victims must have felt related to the “nature and circumstances” of the

offenses and, therefore, were proper. See State v. Odom, 336 S.W.3d 541, 562 (Tenn. 2011).

The defendant contends that the prosecutor misrepresented the weighing procedure

for aggravating and mitigating circumstances. While true, the prosecutor later corrected

himself and stated the appropriate burden of proof. The trial court also instructed the jury

on the correct burden of proof. This issue is, therefore, without merit.

Finally, the defendant complains of the prosecutor’s comment that the defendant

“stamped them out like they were insects in a two-hour period,” as well as the following

argument:

-21-

What’s going to stop him? You. You. And how are you going to do

it? With the law, with the law. We’re not asking anything of you but to follow

the law. And the law does give you your verdict in this case, shall be death.

The defendant argues that by such language, the prosecutor urged the jurors to exact their

personal retribution. When viewed in the context of the prosecutor’s argument, these

comments were not an effort to urge the jurors to exact their personal retribution but were

an attempt to persuade the jury to impose the punishment afforded by the law. The

prosecutor did not violate a clear rule of law in making such an argument. Thus, the issue

does not rise to the level of plain error, and the defendant is not entitled to relief.

XIX. Allowing Death Verdicts to Stand

The defendant next challenges the constitutionality of Tennessee’s murder and death

penalty statutes, arguing that the death penalty statute is unconstitutional because it limits the

jury’s discretion to exercise mercy by requiring the jury to impose a sentence of death if

aggravating factors outweigh mitigating factors. The defendant also asserts that the statute

does not require the jury to make the ultimate determination that the appropriate punishment

is death, in violations of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United

States Constitution. The Tennessee Supreme Court has, however, rejected this argument.

See State v. Smith, 857 S.W.2d 1, 22 (Tenn. 1993); State v. Boyd, 797 S.W.2d 589, 596

(Tenn. 1990).

The defendant next argues that Tennessee’s murder and death penalty statutes violate

the equal protection clauses of the state and federal constitutions because they do not provide

uniform standards for qualifying jurors for service on capital cases. This challenge, however,

was rejected in State v. Reid, 91 S.W.3d 247, 313 (Tenn. 2002).

The defendant also argues that the statutes are unconstitutional because they invest

prosecutors with unlimited discretion to seek the death penalty. This argument has also been

rejected. See State v. Hines, 919 S.W.2d 573, 582 (Tenn. 1995).

The defendant next argues that the “heinous, atrocious, or cruel” aggravating factor

is vague and overbroad. This argument likewise has been rejected. See State v.

Middlebrooks, 995 S.W.2d 550, 556-57 (Tenn. 1999).

According to the defendant, the language in the “mass murder” aggravating

circumstance is too reminiscent of terrorism. The defendant does not cite to any authority

in support of his claim. “Mass murder” is defined as “the murder of three (3) or more

persons, whether committed during a single criminal episode or at different times within a

-22-

forty-eight-month period.” Tenn. Code Ann. § 39-13-204(i)(12). We conclude that the plain

language of this statute does not imply terrorism. Moreover, the Tennessee Supreme Court

has upheld the application of this aggravating circumstance in other capital cases. See, e.g.,

Jordan, 325 S.W.3d at 70. The defendant is not entitled to relief regarding this issue.

The defendant next contends that Tennessee’s death penalty statute is unconstitutional

because it permitted evidence of his prior conviction for second degree murder. Tennessee

Code Annotated section 39-13-204, which permits the admission of the conviction and the

facts and circumstances underlying the conviction, has been upheld as constitutional. See

Reid, 91 S.W.3d at 312.

The defendant contends that Tennessee’s death penalty statute violates state and

federal constitutions because it does not give the jury unlimited discretion not to impose the

death penalty. This argument is similar to the argument that the defendant made above and

has been rejected. See Smith, 857 S.W.2d at 22; Boyd, 797 S.W.2d at 596. The defendant

also contends that the death penalty is capriciously and arbitrarily imposed. This argument

likewise has been rejected. See Reid, 91 S.W.3d at 312-13.

***

XXI. Sentencing for Non-Capital Offenses

The defendant challenges the trial court’s order imposing forty-year consecutive

sentences for each of the three attempted first degree murder convictions and also challenges

the reasonableness of the sentencing hearing.

In determining an appropriate sentence, a trial court must consider the following

factors: (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the

presentence report; (3) the principles of sentencing and arguments as to sentencing

alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) evidence

and information offered by the parties on mitigating and enhancement factors; (6) any

statistical information provided by the administrative office of the courts as to sentencing

practices for similar offenses in Tennessee; (7) any statement the defendant makes on his

own behalf as to sentencing; and (8) the potential for rehabilitation. Tenn. Code Ann. §§

40-35-103(5), -113, -114, -210(b). “The sentence imposed should be the least severe

measure necessary to achieve the purposes for which the sentence is imposed.” Tenn. Code

Ann. § 40-35-103(4).

-23-

Pursuant to the 2005 amendments, the Sentencing Act abandoned the statutory

minimum sentence and rendered enhancement factors advisory only. See Tenn. Code Ann.

§§ 40-35-114, 40-35-210(c). The 2005 amendments set forth certain “advisory sentencing

guidelines” that are not binding on the trial court; however, the trial court must consider

them. Tenn. Code Ann. § 40-35-210(c). Although the application of the factors is advisory,

the court shall consider “[e]vidence and information offered by the parties on the mitigating

and enhancement factors in §§ 40-35-113 and 40-35-114.” Tenn. Code Ann. § 40-35-

210(b)(5). The trial court also must place on the record “what enhancement or mitigating

factors were considered, if any, as well as the reasons for the sentence, in order to ensure fair

and consistent sentencing.” Tenn. Code Ann. § 40-35-210(e). The weighing of mitigating

and enhancing factors is left to the sound discretion of the trial court. State v. Carter, 254

S.W.3d 335, 345 (Tenn. 2008). The trial court’s weighing of the various enhancement and

mitigating factors is not grounds for reversal under the revised Sentencing Act. Id. (citations

omitted).

When a defendant challenges the length and manner of service of a sentence, this

court reviews the trial court’s sentencing determination under an abuse of discretion standard

accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn.

2012). If a trial court misapplies an enhancing or mitigating factor, the error will not remove

the presumption of reasonableness from its sentencing determination. Id. at 709. This court

will uphold the trial court’s sentencing decision “so long as it is within the appropriate range

and the record demonstrates that the sentence is otherwise in compliance with the purposes

and principles listed by statute.” Id. at 709-10. Moreover, under such circumstances, we

may not disturb the sentence even if we had preferred a different result. See Carter, 254

S.W.3d at 346. The party challenging the sentence imposed by the trial court has the burden

of establishing that the sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing

Comm’n Cmts.; State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

In sentencing the defendant, the trial court considered the purposes of sentencing set

forth in Tennessee Code Annotated sections 40-35-102 and 40-35-103. The court found that

based upon the defendant’s prior conviction for second degree murder, he was a Range II,

multiple offender.

The trial court applied seven enhancement factors to each of the three convictions for

attempted first degree murder. The court found the following enhancement factors applied:

(1) The defendant has a previous history of criminal convictions or criminal

behavior in addition to those necessary to establish the appropriate range;

-24-

(2) A victim of the offense was particularly vulnerable because of age or

physical or mental disability;

(3) The defendant treated or allowed a victim to be treated with exceptional

cruelty during the commission of the offense;

(4) The personal injuries inflicted upon, or the amount of damage to property,

sustained by or taken from the victim was particularly great;

(5) The defendant possessed or employed a firearm, explosive device, or other

deadly weapon during the commission of the offense;

(6) The felony resulted in death or serious bodily injury or involved the threat

of death of serious bodily injury to another person and the defendant has

previously been convicted of a felony that resulted in death or serious bodily

injury; and

(7) During the commission of the felony, the defendant intentionally inflicted

serious bodily injury upon another person, or the actions of the defendant

resulted in the death of or serious bodily injury to a victim or a person other

than the intended victim.

Tenn. Code Ann. § 40-35-114(1), (4), (5), (6), (9), (11), (12). The trial court placed little

weight on the prior criminal history enhancement factor and no weight on the serious bodily

injury during the commission of a felony enhancement factor. See id. (1), (12). With regard

to the defendant’s conviction for the attempted first degree murder of C.D.1, the trial court

placed little weight on the particularly vulnerable victim enhancement factor. See id. (4).

The trial court found that no mitigating factors applied. The court sentenced the defendant

to forty years for each conviction of attempted first degree murder. The court also found that

the defendant was a dangerous offender whose behavior indicated little or no regard for

human life and no hesitation about committing a crime in which the risk to human life was

high. See Tenn. Code Ann. § 40-35-114(b)(5). The court ordered the defendant to serve his

three convictions for attempted first degree murder consecutively to each other and to his

death sentences.

A. Reasonableness of Sentencing Hearing

The defendant challenges the reasonableness of the sentencing hearing and argues that

the trial court did not allow defense counsel to respond to the State’s argument before

imposing the sentences. The trial court asked defense counsel whether they wished to

-25-

present any evidence and whether the defendant wished to make a statement. Defense

counsel declined both offers. Defense counsel did not object or request that they be allowed

to respond to the State’s argument. This issue is without merit.

B. Reasonableness of Sentences

The defendant contends that the forty-year sentences were unreasonable. The

defendant does not challenge the trial court’s application of the seven enhancement factors.

Rather, the defendant contends that the trial court erred in not considering evidence of non-

statutory mitigating factors presented during the penalty phase.

As a Range II, multiple offender convicted of a Class A felony, the defendant was

subject to a sentence of twenty-five to forty years. See Tenn. Code Ann. §§ 39-11-117, 40-

35-112(b)(1). The trial court imposed the maximum sentence within the range. Upon a

challenge to the sentence imposed, it is the duty of this court to analyze the issues under “an

abuse of discretion standard of review, granting a presumption of reasonableness to

within-range sentencing decisions that reflect a proper application of the purposes and

principles of our Sentencing Act.” Bise, 380 S.W.3d 707. Because the application of

enhancement and mitigating factors to adjust a sentence was rendered advisory by the 2005

amendments, the trial court may set a sentence anywhere within the applicable range so long

as the sentence is consistent with the principles and purposes of the Act, regardless of the

presence or absence of mitigating and enhancement factors. The trial court in this case

thoroughly considered the purposes and principles of the Sentencing Act in rendering its

decision. The trial court did not abuse its discretion in imposing the maximum sentence

within the applicable range.

C. Consecutive Sentences

The defendant asserts that the trial court erred in ordering that he serve his sentences

for attempted first degree murder consecutively to each other and to his death sentences. In

ordering consecutive sentences, the trial court found that the defendant is a “dangerous

offender whose behavior indicates little or no regard to human life and no hesitation about

committing a crime in which the risk to human life is high.” Tenn. Code Ann. § 40-35-

115(b)(4). “[W]hen a trial court uses the ‘dangerous offender’ factor, it must also decide

whether consecutive sentences (1) reasonably relate to the severity of the offenses

committed; (2) serve to protect the public from further criminal conduct by the offender; and

(3) are congruent with general principles of sentencing.” State v. Alder, 71 S.W.3d 299, 307

(Tenn. Crim. App. 2001).

-26-

The trial court found that the circumstances of the offenses were “aggravated,”

stating, “I don’t know of anything that I can think of is more aggravated than this.” The

court further found that consecutive sentences were reasonably related to the severity of the

offenses and were necessary to protect the public from the defendant and his “reserve to

criminal activity.” The record fully supports these findings. We conclude, therefore, that the

trial court properly imposed consecutive sentences based on its classification of the defendant

as a dangerous offender.

XXII. Cumulative Error

The defendant asserts that the cumulative effect of the errors at trial rendered both the

guilt, penalty, and sentencing phases of his trial fundamentally unfair. As explained above,

any errors, when considered both individually and cumulatively, did not result in prejudice.

The defendant is not, therefore, entitled to relief on the basis of this issue.

CONCLUSION

After review of the record and the applicable law, we affirm the defendant’s

convictions and sentences.

-27-