State of Tennessee v. Travis Lamonte Steed

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

January 6, 2015 Session

STATE OF TENNESSEE v. TRAVIS LAMONTE STEED

Appeal from the Criminal Court for Madison County

No. 12-523 Donald H. Allen, Judge

No. W2014-00146-CCA-R3-CD - Filed May 14, 2015

The defendant, Travis Lamonte Steed, was convicted by a Madison County Criminal

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

reckless endangerment, a Class E felony; convicted felon in possession of a handgun, a

Class E felony; and attempted second degree murder, a Class B felony. The court

sentenced the defendant as a Range I, violent offender to concurrent sentences of life for

the felony murder conviction and twenty-five years for the second degree murder

conviction. The court sentenced the defendant as a Range II, multiple offender to twenty

years for the attempted second degree murder conviction and four years each for the felon

in possession of a handgun and felony reckless endangerment convictions. The court

ordered that the defendant serve the four-year sentences for felony reckless endangerment

and felon in possession of a handgun concurrently to each other but consecutively to the

twenty-year sentence for attempted second degree murder. The court also ordered that

the defendant serve the twenty-year sentence for attempted second degree murder

consecutively to the life sentence, for a total effective sentence of life plus twenty-four

years in the Department of Correction. The defendant raises three issues on appeal: (1)

whether the evidence is sufficient to sustain his murder and attempted murder

convictions; (2) whether the jury‟s verdicts finding him guilty of first degree felony

murder and attempted second degree murder are mutually exclusive; and (3) whether the

trial court erred in ordering consecutive sentencing. Following our review, we affirm the

judgments of the trial court but remand for entry of corrected judgments to reflect that the

defendant‟s second degree murder conviction is merged into his felony murder

conviction.

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

and Remanded for Entry of Corrected Judgments

ALAN E. GLENN, J., delivered the opinion of the court, in which CAMILLE R. MCMULLEN

and ROGER A. PAGE, JJ., joined.

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

Public Defender, for the Defendant-Appellant, Travis Lamonte Steed.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;

James G. Woodall, District Attorney General; and Shaun A. Brown, Assistant District

Attorney General, for the Appellee, State of Tennessee.

OPINION

FACTS

On the night of February 26, 2012, a party in a downtown Jackson nightclub ended

in gunfire that left over a dozen people injured and one man dead. The defendant was

subsequently indicted by the Madison County Grand Jury with the premeditated first

degree murder of LeCarlos Todd, the first degree felony murder of Todd in the

perpetration of the attempted first degree premeditated murder of Triveno Freeman, the

attempted first degree premeditated murder of Freeman, the aggravated assault of Jarvis

Rockamore, the aggravated assault of Solomon Robinson, and being a felon in possession

of a handgun.

Jerry Gardner, who was the agent for Karma Ultra Lounge in February 2012,

testified that on the night of February 26, 2012, the club was holding a homecoming party

for Lane College, with a little over 200 in attendance. At approximately 2:00 a.m., he

was standing outside the front door to the club when he heard gunfire and saw patrons

running out of the club. He went around the side of the building, saw people coming out

the back door, and then went back around to the front. The gunfire started up again as he

was about to go inside the front door, so he went to the end of the building to raise the

double garage doors. When the building finally cleared out, he saw the defendant crawl

out the door and roll over onto his back.

Investigator Ron Pugh of the Jackson Police Department‟s Violent Crimes Unit

identified the copy he had made of the club‟s surveillance footage of the incident, which

was admitted as an exhibit and played for the jury.

Officer John Reese of the Jackson Police Department testified that at 2:00 a.m. on

February 26, 2012, he responded to a shots-fired call at the Karma Lounge in downtown

Jackson. The scene was chaotic, with “people running everywhere,” and by the time he

had taken two steps from his patrol car, a man came up to him and said he had been shot.

After calling for an ambulance, Officer Reese began making his way toward the building.

En route, he encountered a second injured person lying on the sidewalk and a third, later

identified as the defendant, lying in front of the garage doors. He stopped to assist the

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defendant, who had a fractured wrist, blood coming from his leg, and an entrance wound

to his torso, while his partner, Officer Arnold, continued inside the building, where

several people were performing CPR on a “totally unresponsive” victim.

When he went inside the club to help sweep for suspects, Officer Reese observed

cell phones, IDs, blood and blood trails, several projectiles and .45 and .380 casings, and

a semi-automatic .45 caliber Smith and Wesson, which was located near the bar. On

cross-examination, he testified that he personally encountered twelve or thirteen different

gunshot victims at the scene.

Officer Michael Arnold of the Jackson Police Department testified that when he

arrived at the club a few minutes after 2:00 a.m. on February 26, 2012, he observed

“hundreds of people trying to get out from inside the club,” as well as several people with

gunshot wounds. He entered the club to secure the scene and found an unresponsive

victim, later identified as LeCarlos Todd, lying on the floor behind the DJ booth with a

gunshot wound to the upper left side of his chest. Several individuals were standing

around him, and a young woman was beside him attempting CPR. He pulled away the

young woman and the other individuals, checked Todd‟s vital signs, found that he had no

pulse and was not breathing, and began performing CPR himself. He continued

performing CPR after EMS arrived, stopping only after Todd had been loaded into the

ambulance.

Officer Arnold testified that after EMS transported Todd from the scene, he went

back inside the club, where he observed shell casings, a magazine lying in the middle of

the floor on the lower level of the club, and a handgun by the bar. He started to clear the

handgun to make it safe but then realized that it was “stove-piped,” or jammed, and

therefore left it alone without touching it.

Officer Joseph King of the Jackson Police Department testified that he responded

to the scene to find “massive chaos,” with gunshot victims exiting the club, other victims

lying on the ground, and “vehicles . . . leaving in a hurry.” As he got out of his patrol

vehicle, he was approached by several gunshot victims asking for help. After directing

them to either the hospital or EMS, he continued toward the nightclub, where he observed

the defendant lying on the ground in front of the door with multiple gunshot wounds.

Sergeant Shane Beaver of the Jackson Police Department, who was down the

street from the Karma Lounge at the time of the shooting, testified that he first noticed

some people running from the club and then heard what sounded like gunshots. He drove

to the club, pulling up close to the front door as a “stampede of people” came out of the

building, with some rushing through the doors, others breaking windows to climb out,

and still others trampling each other in their haste to escape. Sergeant Beaver testified

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that the first victim he came into contact with was the defendant, who was lying directly

in front of the business. He said he went inside the club, where an officer was

performing CPR on another gunshot victim who was “for the most part already

deceased[,]” and then went back outside, where “a bunch of other people just started

coming back with gunshot wounds.” He stated that the worst injuries were to the

deceased victim and to the defendant. The other gunshot victims, who numbered “in the

teens,” had “superficial wounds” to the bottoms of their feet, the backs of their legs, or to

their ankles.

Sergeant Beaver identified himself on the club‟s video of the scene, which was

again played for the jury. He testified that he did not observe any weapon around the

defendant but inside the club found numerous shell casings and projectiles, as well as the

gun that was lying on the floor in the vicinity of the bar.

Dr. Thomas Deering, a forensic pathologist who was present during the autopsy of

Todd‟s body, testified that the cause of death was multiple gunshot wounds, with Todd

having suffered a “through and through” gunshot wound to each thigh and a gunshot

wound to the torso in which the bullet entered the left upper chest, traveled downward

into the chest cavity, hit the left lung, the heart, and the aorta, and finally lodged in one of

the vertebra of the backbone on the right side of the victim‟s back. On cross-

examination, he acknowledged he could not determine in what position Todd had been

when shot or whether the wounds to his legs came from the same weapon as the wound

to his torso.

Memphis resident Triveno Freeman, nicknamed “Veno,” a former Lane College

student, testified that he attended the February 26, 2012 homecoming party at the Karma

Lounge with several Memphis friends, including Solomon Robinson, nicknamed “Solo,”

two individuals nicknamed “Itchy,” and LeCarlos Todd. Sometime around 1:30 a.m., he

was walking across the crowded dance floor with some of his Memphis friends when he

grabbed a young woman‟s hand in an attempt to get her phone number. A man who was

walking with the woman responded by knocking into him with his shoulder, and the two

of them then got into a brief physical fight, exchanging several blows, until the man fell

down. At that point, Freeman said, he continued to the DJ area of the club, where he told

all his “Memphis people” what had just happened. A little later, the man he had fought

came up to the DJ area, shook “Mitchell‟s” hand, apologized, and told him that

everything was “cool.” Freeman and his Memphis friends then began to relax.

Approximately eight or nine minutes later, however, a man Freeman did not know, but

whom he identified in the courtroom as the defendant, walked up to the Memphis group,

pulled out a handgun, pointed it directly at Freeman, and fired two or three shots.

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Freeman testified that he was struck by a bullet on his right elbow and that he

initially froze in shock. He said the people who were standing with him, including

LeCarlos Todd, fell back when the defendant started shooting and that Robinson, who

was standing right behind Todd, responded by pulling out a .45 handgun and shooting at

the defendant. The defendant ran toward the middle of the dance floor, returning fire as

he ran, while Freeman ran toward the back door of the club, where he paused for a few

seconds to see if his “partner, Solo, g[o]t out,” before exiting the club. Freeman testified

that the door he exited led to a side street, where “some random car,” driven by a former

Lane College student that he recognized as not being from Jackson, stopped, picked him

up, and took him to the hospital.

Freeman testified that he did not initially tell the police what had happened

because he was afraid that Robinson would get into trouble. He said that he did not have

a gun and that he never saw anyone besides Robinson and the defendant with any

weapon. On cross-examination, he acknowledged that he lied in statements he gave to

police on February 26 and March 4, 2012, by, among other things, not telling the police

that he was involved in a physical fight at the club, saying that the person he saw

shooting a gun had a “low haircut” instead of dreads, telling the police that he saw two

men shoot into the ground, and not saying anything in his second statement about having

seen the defendant firing a gun at him.

Jarvis Rockamore, another former Lane College student who attended the 2012

homecoming party at the club, testified that he was talking with some friends at the DJ

area when the defendant tapped him on the shoulder and said something along the lines

of “Let me talk to V[e]no.” The defendant walked up to Triveno Freeman in an

aggressive manner and said something that Rockamore was unable to hear before taking

a step back. One of Rockamore‟s friends yelled out that the defendant had a gun, and the

defendant replied, “[Y]eah, I got a gun,” as he waved it toward Rockamore and his

friends, who had all jumped back and were standing together in the corner against the

wall. Next, the defendant fired the gun directly into the crowd of men. Rockamore

testified that he fell back and LeCarlos Todd fell on top of him. He said he was not shot

but was afraid for his life. Looking to the left, he saw “Little Itchy,” or “Jacq,” pull a gun

out of his coat and cock it. Although he did not see him fire the weapon, he was “pretty

sure” that he did. He did, however, see the defendant, who was “running low” down the

stairs of the club, still shooting as he ran toward the front door.

Rockamore testified that after the initial shooting had stopped and he was about to

get up, the gunfire started again and he looked up to see Solomon Robinson standing by

the bathroom shooting a handgun. When the shooting was over, Rockamore picked Todd

up, saw that he was dead, and then exited the club with his friends through the back door.

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He said he did not know the defendant at the time of the shooting but later identified him

as the shooter from a photographic array he was shown by the police.

On cross-examination, Rockamore insisted that his February 29, 2012 statement to

police in which he said, “Itchy and the dude with dreads started firing,” was not

inconsistent with his testimony that the defendant fired his gun first and that he “kn[e]w

for a fact [the defendant] shot first.” He acknowledged that in his preliminary hearing

testimony, he said that he did not see anyone besides the defendant with a gun. He

further acknowledged that he had pled guilty to criminal impersonation in 2009. On

redirect, he explained that he was confused during the preliminary hearing and thought he

was being asked if he saw anyone else with the defendant who had a gun.

Lane College student Solomon Robinson, who attended the homecoming party

with his friends, including LeCarlos Todd, testified that he was in the VIP area of the

club when the fight occurred. He said he then left the VIP section and was leaning

against a rail between the VIP section and the DJ area when the defendant, who had some

other people behind him, walked up to the DJ booth, said something, backed up, lifted his

shirt to show the gun that was in his waistband, and then pulled the gun out and started

shooting at the group of people that was standing with Robinson, which included Triveno

Freeman and LeCarlos Todd. Robinson said he was not hurt but was “traumatized” and

scared for his life. He stated that he dropped to the floor, crawled to the corner, and

began shooting back with his “45 Highpoint.” The defendant ran down the stairs and

Robinson followed, shooting at him. The defendant fired back, and Robinson fell down

and got behind the DJ booth. He did not know where the defendant went after that.

Robinson said he started to get up but then heard more gunshots originating from

somewhere else, so he stayed down a couple more seconds until the shooting stopped.

He then ran out the back door, taking his gun with him.

Robinson testified that he had never seen the defendant before that night. On

cross-examination, he said he brought the gun with him to the club “for protection,”

because he was expecting to run into trouble. He said he did not see either Mitchell

Jones, nicknamed “Cuz Boo,” or “Jacq” Mitchell with a gun that night. He

acknowledged that he lied in his March 5 statement to police by saying that he did not

have a gun himself and never saw anyone at the club with a gun. On redirect

examination, he said he told the police the truth in a March 7 statement, in which he

related the events just as he had in his direct examination testimony. On re-cross

examination, he conceded that he was released from jail after speaking with the

investigator and that no charges were brought against him for his role in the shooting.

Marvin Hall, a recent Lane College graduate who was still a student at the time he

attended the homecoming party at the club, testified that he was standing by the DJ booth

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with “Little Drink” and others when a man he had never seen before, whom he identified

in the courtroom as the defendant, walked up to the DJ booth and, after pacing back and

forth for a minute or two, pulled out a gun and began shooting at the group of people who

were standing with Hall. Hall said he was grazed in the head, hip, and thigh. He did not

know how many times the defendant fired and did not see anyone else with a gun but he

heard “[p]lenty” of gunfire. He was certain that the defendant fired first.

Hall testified that he eventually got up from his position of cover and left out the

back door of the club. As he was exiting, he saw “Josh” and “Cuz Boo.” “Cuz Boo” told

him that Todd was “down” and gave him a pistol. Although hesitant, he took the

weapon, placed it under the passenger seat of his car, and gave his car keys to “Josh”

before having his girlfriend drive him to the hospital in her vehicle. He never saw the

weapon again. On cross-examination, he acknowledged that when interviewed by the

police immediately after the shooting, he claimed not to have seen who was doing the

shooting.

Aimee Oxley, the director of the property and evidence unit for the Jackson Police

Department and a senior certified crime scene analyst, identified and described

photographs she took of the crime scene and various items that were collected into

evidence, including a bullet recovered from the murdered victim‟s back; spent .40, .45,

and .380 caliber projectiles and casings, a Smith and Wesson .45-caliber magazine, and

the Smith and Wesson pistol, which were recovered from various locations inside the

club; a Taurus PT 945 with magazine and four ACP hollow point ammunition, which was

submitted to the evidence room by Officer Mullins; and a bullet recovered from the

defendant‟s buttocks.

Officer James Mullins of the Jackson Police Department testified that at 2:30 a.m.

on February 26, 2012, he responded to the report of a suspicious vehicle at the Walgreens

on the corner of Campbell and Highland, in which a male driver, identified as Joshua

Matthews, appeared to be passed out at the wheel. During the inventory of that vehicle,

he and his fellow officers found a Taurus 45, which he subsequently transported to the

property and evidence room at the Jackson Police Department.

Sergeant John Gause of the Jackson Police Department testified that he recovered

a .45 caliber semi-automatic Highpoint handgun during the March 5, 2012 execution of a

search warrant at 405 Division Street.

Sergeant Danielle Jones of the Jackson Police Department identified the evidence

envelope containing a bullet that was recovered from the defendant‟s buttocks, which she

collected into evidence on February 26, 2012, from the Jackson-Madison County General

Hospital.

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Sergeant Chris Chestnut of the Violent Crimes Unit of the Jackson Police

Department described his investigation of the shooting, which included his collection of

buccal swabs from various suspects in the case and Jarvis Rockamore‟s February 29,

2012 identification from a photographic array of the defendant as the man who shot

LeCarlos Todd. On cross-examination, he testified that in other photographic arrays,

Rockamore identified Jacque Mitchell as “Little Itchy who shot the Jackson, Tennessee

man with dreads” and Solomon Robinson as “Solo” “the man . . . responsible for

shooting the Jackson dude in Karma.”

Investigator Aubrey Richardson of the Jackson Police Department‟s Violent

Crimes Unit testified that she participated in the collection of buccal swabs from

Solomon Robinson and Mitchell Jones.

Tennessee Bureau of Investigation (“TBI”) Special Agent Forensic Scientist Eric

Warren, an expert in firearms identification and ballistics analysis, testified at some

length regarding his examination of the various weapons, projectiles, and casings

submitted in the case. On cross-examination, he testified that he examined a total of

fourteen bullets, twenty-five cartridge cases, and three weapons and was able to

determine that one bullet and four cartridge cases came from the Smith and Wesson,

three bullets and four cartridge cases came from the Taurus pistol, and four bullets and

eight cartridge cases came from the Hi-Point pistol. All of the weapons he examined

were .45 caliber, but there were casings and/or projectiles from at least two unknown

weapons – a .380 caliber and a .40 caliber.

TBI Special Agent Forensic Scientist Donna Nelson, an expert in DNA analysis,

testified that the barrel of the .45 Smith and Wesson contained the DNA profile of an

unidentified male individual. The trigger and slide of the weapon contained a mixture of

genetic material from at least two different individuals, with eight of nine markers

consistent with the DNA profile of Jacque Mitchell and three of nine markers consistent

with the DNA profile of Solomon Robinson. She found DNA from an unidentified male

on the handle of the .45 Taurus pistol and a mixture of genetic material from that same

unidentified male and another unidentified male on the trigger of the weapon. She was

unable to locate any DNA on the Hi-Point .45 pistol.

At the conclusion of the State‟s proof, the trial court granted the defendant‟s

motion for judgment of acquittal as to count three of the indictment, which charged the

defendant with the aggravated assault of Jarvis Rockamore causing serious bodily injury.

The defendant elected not to testify and rested his case without presenting any evidence.

Following jury deliberations and a subsequent bench trial on the convicted felon element

of the weapons charge, the defendant was convicted of the second degree murder of Todd

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as a lesser offense of the first degree premeditated murder of Todd charged in count one

of the indictment, the first degree felony murder of Todd in the perpetration of the

attempted first degree premeditated murder of Triveno Freeman, as charged in count two

of the indictment, felony reckless endangerment as a lesser offense of the aggravated

assault against Solomon Robinson charged in count four of the indictment, being a

convicted felon in possession of a handgun as charged in count five of the indictment,

and the attempted second degree murder of Triveno Freeman as a lesser offense of the

attempted first degree premeditated murder of Freeman charged in count six of the

indictment.

At the sentencing hearing, the State introduced the defendant‟s presentence report

as well as certified copies of his prior convictions, probation violations, and community

corrections revocation orders. The State also introduced documents to show that the

defendant was on bond and on parole when the instant offenses occurred.

The deceased victim‟s mother, Charlotte Todd Watson, testified that her son was

only nineteen years old when murdered, was a good child who was never in any trouble,

and had been enrolled at Lane College with a bright future ahead of him that was cut

short by his untimely death. She said she forgave the defendant but believed that he

should remain in prison for the remainder of his life to prevent him from causing the

same kind of pain to another family.

Solomon Robinson testified the entire Lane College community had been affected

by the defendant‟s actions, and he was of the opinion that the defendant should remain in

prison for the rest of his life.

The thirty-two-year-old defendant opted not to speak and presented no evidence

on his behalf at the sentencing hearing.

The trial court found the following enhancement factors applicable to all the

offenses: the defendant had a previous history of criminal convictions or behavior in

addition to those necessary to establish his range; the defendant, before trial or

sentencing, failed to comply with the conditions of a sentence involving release into the

community; and, at the time the felonies were committed, the defendant was on parole

status for some offenses and had been released on pretrial bail or bond status in at least

one other pending case. See Tenn. Code Ann. § 40-35-114(1), (8), (13) (2014). The trial

court found enhancement factor (9), the defendant possessed or employed a firearm

during the commission of the offenses, applicable to counts one and six and enhancement

factor (10), the defendant had no hesitation about committing a crime when the risk to

human life was great, applicable to count six. See id. § 40-35-114(9), (10). The court

found no applicable mitigating factors.

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The trial court sentenced the defendant as a Range I offender to concurrent terms

of life for the felony murder conviction and twenty-five years at 100% for the second

degree murder conviction. The court sentenced the defendant as a Range II, multiple

offender to the maximum terms of four years at 35% for the reckless endangerment

conviction, four years at 35% for the convicted felon in possession of a handgun

conviction, and twenty years at 35% for the attempted second degree murder conviction.

Finding that the defendant was an offender whose record of criminal activity was

extensive and that he committed the felony offenses while on parole from other felony

convictions, the trial court ordered that the four-year sentences for reckless endangerment

and convicted felon in possession of a handgun be served concurrently to each other but

consecutively to the twenty-year sentence for attempted second degree murder. The

court additionally ordered that the twenty-year sentence be served consecutively to the

life sentence, for an effective term of life plus twenty-four years in the Department of

Correction, to be served consecutively to the sentences for which the defendant was on

parole at the time he committed the instant offenses.

ANALYSIS

I. Sufficiency of the Evidence

The defendant challenges the sufficiency of the evidence in support of his felony

murder, second degree murder, and attempted second degree murder convictions. In

considering this issue, we apply the rule that where sufficiency of the convicting evidence

is challenged, the relevant question of the reviewing court is “whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979); see also Tenn. R. App. P. 13(e) (“Findings of guilt in

criminal actions whether by the trial court or jury shall be set aside if the evidence is

insufficient to support the findings by the trier of fact of guilt beyond a reasonable

doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835

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

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

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

Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury,

approved by the trial judge, accredits the testimony of the witnesses for the State and

resolves all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474,

476 (Tenn. 1973). Our supreme court stated the rationale for this rule:

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

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

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

instrumentality of justice to determine the weight and credibility to be

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

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

written record in this Court.

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

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

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

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

defendant has the burden of demonstrating that the evidence is insufficient.” State v.

Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

A. First Degree Felony Murder

To sustain the conviction for first degree felony murder, the State had to prove

beyond a reasonable doubt that the defendant killed LeCarlos Todd during his attempt to

commit the first degree premeditated murder of Triveno Freeman. See Tenn. Code Ann.

§ 39-13-202(a)(2). “Premeditation” is defined as

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

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

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

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

the accused allegedly decided to kill must be carefully considered in order

to determine whether the accused was sufficiently free from excitement and

passion as to be capable of premeditation.

Id. § 39-13-202(d).

The “element of premeditation is a question of fact” for the jury to determine

based upon a consideration of all the evidence. State v. Suttles, 30 S.W.3d 252, 261

(Tenn. 2000) (citing State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997)).

“[P]remeditation may be established by any evidence from which a rational trier of fact

may infer that the killing was done „after the exercise of reflection and judgment‟ as

required by Tennessee Code Annotated section 39-13-202(d).” State v. Davidson, 121

S.W.3d 600, 615 (Tenn. 2003). A jury may infer premeditation from circumstantial

evidence surrounding the crime, including the manner and circumstances of the killing.

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See State v. Pike, 978 S.W.2d 904, 914 (Tenn. 1998); State v. Addison, 973 S.W.2d 260,

265 (Tenn. Crim. App. 1997). There are several factors which our courts have concluded

may be evidence of premeditation: “the use of a deadly weapon upon an unarmed victim;

the particular cruelty of the killing; declarations by the defendant of an intent to kill;

evidence of procurement of a weapon; preparations before the killing for concealment of

the crime; and calmness immediately after the killing.” Bland, 958 S.W.2d at 660.

Additional factors from which a jury may infer premeditation include the defendant‟s

failure to render aid to the victim, see State v. Lewis, 36 S.W.3d 88, 96 (Tenn. Crim.

App. 2000), and evidence establishing a motive for the killing. See State v. Nesbit, 978

S.W.2d 872, 898 (Tenn. 1998).

Viewed in the light most favorable to the State, the evidence is sufficient to sustain

the jury‟s finding that the defendant killed Todd during his attempt to commit a

premeditated killing of Freeman. The State‟s evidence showed that Freeman and another

man had engaged in a brief fist fight on the dance floor and that the man later apologized

to one of Freeman‟s associates, causing Freeman‟s group of friends, who were gathered

together around the DJ booth, to relax under the belief that tensions had subsided. Some

eight or nine minutes later, however, the defendant walked up to the same group of

Freeman‟s friends, asked to speak to Freeman, pulled out a gun, and, aiming directly at

Freeman, began shooting his weapon, in the process striking and killing Todd. From the

evidence presented at trial, the jury could reasonably infer that the defendant was a friend

or associate of the man Freeman fought and was motivated to kill the unarmed Freeman

as retaliation for Freeman‟s earlier fist fight with his friend. As the State points out, this

court has upheld convictions for felony murder even where the jury has acquitted the

defendant of the underlying predicate felony. See, e.g., State v. Shane Michael Grogger,

No. M2008-02015-CCA-R3-CD, 2009 WL 3832921, at *14 (Tenn. Crim. App. Nov. 17,

2009), perm. app. denied (Tenn. Apr. 14, 2010). We conclude, therefore, that the

evidence is sufficient to sustain the defendant‟s conviction for the first degree felony

murder of Todd.

B. Second Degree Murder

To sustain the second degree murder conviction, the State had to prove beyond a

reasonable doubt that the defendant committed a knowing killing of LeCarlos Todd. See

Tenn. Code Ann. § 39-13-210(a)(1). “In second degree murder, the result of the conduct

is the sole element of the offense. . . . The statute focuses purely on the result and

punishes an actor who knowingly causes another‟s death.” State v. Ducker, 27 S.W.3d

889, 896 (Tenn. 2000). “A person acts knowingly with respect to a result of the person‟s

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

result.” Tenn. Code Ann. § 39-11-302(b). “A person can act knowingly irrespective of

his or her desire that the conduct or result will occur.” State v. Gray, 960 S.W.2d 598,

12

604 (Tenn. Crim. App. 1997) (citing State v. Rutherford, 876 S.W.2d 118, 120 (Tenn.

Crim. App. 1993)).

Viewed in the light most favorable to the State, the evidence is sufficient to sustain

the jury‟s finding that the defendant committed a knowing killing of Todd. The State‟s

eyewitnesses testified that the defendant walked up to Freeman, who was standing in the

middle of a group of men, pulled out his gun, and began firing at Freeman, in the process

striking not only Freeman but also Todd, who died of his wounds. The jury could

reasonably conclude that the defendant was aware that his conduct of firing a gun into a

group of close-standing men in a crowded nightclub, regardless of his intended target,

was reasonably certain to cause the death of one or more of the men in the group. We

conclude, therefore, that the evidence is sufficient to sustain the defendant‟s second

degree murder conviction.

C. Attempted Second Degree Murder

To sustain the defendant‟s conviction for attempted second degree murder, the

State had to prove beyond a reasonable doubt that the defendant attempted to commit a

knowing killing of Triveno Freeman. The defendant argues that the evidence at trial

“would have, at most, supported a verdict of guilt for the offense of Attempted Voluntary

Manslaughter,” because provocation, in the form of Freeman‟s having punched the

defendant‟s associate on the dance floor, existed for firing his gun at Freeman. The jury,

however, found the defendant guilty of attempted second degree murder, despite being

instructed on the elements of attempted voluntary manslaughter as a lesser offense. By

so doing, the jury obviously rejected the defendant‟s claim of provocation. When viewed

in the light most favorable to the State, the evidence is more than sufficient to sustain the

jury‟s verdict. According to the eyewitnesses, there was a fairly significant lapse of time

between the cessation of the fist fight and the defendant‟s opening fire on Freeman with

his gun. There was enough time, in fact, for the man who had fought Freeman to come

up to Freeman‟s group to apologize to “Mitchell” for his actions, causing Freeman and

his friends to begin to relax. We conclude, therefore, that the evidence is sufficient to

sustain the defendant‟s conviction for attempted second degree murder.

II. Mutually Exclusive Verdicts

The defendant next contends that the jury‟s verdicts finding him guilty of the

attempted second degree murder of Freeman and the first degree felony murder of Todd,

with the predicate underlying felony being the attempted first degree premeditated

murder of Freeman, are mutually exclusive and therefore should be overturned and the

case remanded for new trials on those offenses. In the alternative, he argues that the

felony murder conviction should be reduced to second degree murder. The defendant

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acknowledges that the doctrine of mutually exclusive verdicts has not been adopted in

Tennessee and that the issue is currently pending before our supreme court in State v.

Marlo Davis, No. W2011-01548-CCA-R3-CD, 2013 WL 2297131 (Tenn. Crim. App.

May 21, 2013), perm. app. granted (Tenn. Nov. 13, 2013). The State responds by arguing

that the doctrine of mutually exclusive verdicts, even if adopted in Tennessee, affords the

defendant no relief because the separate convictions contain no conflict in mental state

and involve different victims. The State also points out that consistency in verdicts is not

required in Tennessee. We agree with the State.

This court thoroughly addressed the doctrines of “mutually exclusive verdicts” and

“inconsistent verdicts” in a recent case:

In states that recognize the doctrine [of mutually exclusive verdicts], it

applies when “a guilty verdict on one count logically excludes a finding of

guilty on the other.” State v. Chris Jones, No. W2009-01698-CCA-R3-CD,

2011 WL 856375, at *10 (Tenn. Crim. App. March 9, 2011), perm. app.

denied (Tenn. Aug. 25, 2011) (quoting Jackson v. State, 577 S.W.2d 570,

573 (Ga. 2003)). In finding the defendant guilty on both counts, the jury

“necessarily reache[s] two positive findings of fact that cannot logically

mutually exist.” Id.; see also State v. James Snipes, No. W2011-02161-

CCA-R3-CD, 2013 WL 1557367, at *8 (Tenn. Crim. App. April 12, 2013),

perm. app. denied (Tenn. Sept. 13, 2013). For example, verdicts would be

mutually exclusive if the jury returned a guilty verdict “on two counts

arising from the same act where one count requires proof of a negligent act

and the other count requires evidence of an intentional act.” James Snipes,

2013 WL 1557367, at *8; see also Chris Jones, 2011 WL 856375, at *10.

Conversely, inconsistent verdicts “arise when a defendant is

convicted of one offense and acquitted of another offense, although both

offenses arose from the same criminal transaction.” James Snipes, 2013

WL 1557367, at *8. “The key difference between the two doctrines is that

mutually exclusive verdicts involve two positive findings of fact, whereas

inconsistent verdicts involved one positive finding of fact and „the failure to

make a positive finding of fact.‟” Chris Jones, 2011 WL 856375, at *10

(quoting Jackson, 577 S.W.2d at 57).

Inconsistent verdicts have long been permitted in both the state and

federal systems. Such verdicts were first recognized in Dunn v. United

States, 284 U.S. 390, 393 (1932). In that case, the defendant was convicted

of maintaining a common nuisance by keeping intoxicating liquors for sale

at a specified location but was acquitted of the possession and sale of

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intoxicating liquors, even though the evidence was the same for all three

counts. In upholding the verdict, the United States Supreme Court stated:

The most that can be said in such cases is that the verdict

shows that either in the acquittal or the conviction the jury did

not speak their real conclusions, but that does not show that

they were not convinced of the defendant‟s guilt. We interpret

the acquittal as no more than their assumption of a power

which they had no right to exercise, but to which they were

disposed through lenity.

That the verdict may have been a result of compromise, or of

a mistake on the part of the jury, is possible. But verdicts

cannot be upset by speculation or inquiry into such matters.

Id. at 393-94 (quotation marks and citations omitted).

Over 50 years later, the same court upheld the Dunn jury lenity

rationale to support inconsistent verdicts in United States v. Powell, 469

U.S. 57 (1984). Further, the Powell Court noted that the Dunn rule

“embodies a prudent acknowledgment of a number of factors.” First,

“inconsistent verdicts -- even verdicts that acquit on a predicate offense

while convicting on the compound offense -- should not be necessarily

interpreted as a windfall to the Government at the defendant‟s expense.”

Powell, 469 U.S. at 65 (emphasis added). In such cases, there is no way to

tell why the jury returned an inconsistent verdict, but when it happens the

Government is precluded from redressing any perceived error on appeal by

application of the Double Jeopardy Clause. Id.

....

Second, the Powell Court reasoned that a defendant misunderstands

the nature of inconsistent verdicts when he argues that an acquittal on a

predicate offense necessitates a finding of insufficient evidence for the

compound offense. Id. at 68. Such argument “necessarily assumes that the

acquittal on the predicate offense was proper -- the one the jury „really

meant.‟ This, of course, is not necessarily correct; all we know is that the

verdicts are inconsistent.” Id. at 68. Because appellate courts cannot know

the jury‟s motivations in reaching their verdicts, inconsistent verdicts are

not subject to review. Id. at 68-69.

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The Tennessee Supreme Court specifically adopted the Dunn jury

lenity rationale in Wiggins v. State, 498 S.W.2d 92, 93 (Tenn.1973). In so

doing, the court stated, “Consistency in verdicts for multiple count

indictments is unnecessary.” Id. at 94. Under Wiggins each count is treated

as a separate indictment. Id. at 95. Accordingly, in reviewing the verdict,

this Court looks solely to the evidence underlying the convicted offense to

determine whether there is sufficient evidence to permit a rational fact

finder to find the defendant guilty beyond a reasonable doubt. State v.

Cynthia J. Finch, No. E2011-02544-CCA-R3-CD, 2013 WL 6174832, at

*13 (Tenn. Crim. App. Nov. 22, 2013). “We will not attempt to divine

some hidden meaning from the jury‟s actions regarding a separate count of

the indictment.”

State v. Calvin Ellison, No. W2013-02786-CCA-R3-CD, 2014 WL 6977725, at *7-9

(Tenn. Crim. App. Dec. 10, 2014) (footnotes omitted).

We agree with the State that the jury‟s verdicts are not mutually exclusive and that

sufficient evidence exists to sustain each conviction on the separate counts of the

indictment, regardless of any inconsistency involved in the jury‟s findings. We, therefore,

conclude that the defendant is not entitled to relief on the basis of this issue.

We note, however, that the trial court, concerned that the felony murder conviction

might not be upheld because of the defendant‟s conviction for a lesser included offense

on the predicate underlying felony, did not merge the second degree murder conviction

into the felony murder conviction. “[O]rdinarily, when a defendant is convicted of both

felony murder and second degree murder on alternative theories, the trial court will

merge the conviction for second degree murder into the conviction for felony murder[.]”

State v. Paul Lee Whited, No. M1998-00478-CCA-R3-CD, 1999 WL 1209786, at *10

(Tenn. Crim. App. Dec. 17, 1999) (citing State v. Jason Cross, No. 03C01-9805-CC-

00181, 1999 WL 592225, at *5 (Tenn. Crim. App. Aug. 9, 1999)). “[W]hen only one

person has been murdered, a jury verdict of guilt on more than one count of an indictment

charging different means of committing . . . murder will support only one judgment of

conviction for [the] murder.” State v. Cribbs, 967 S.W.2d 773, 788 (Tenn. 1998).

Accordingly, we remand to the trial court for entry of corrected judgments reflecting that

the second degree murder conviction is merged into the felony murder conviction.

III. Consecutive Sentencing

Lastly, the defendant contends that the trial court erred in ordering consecutive

sentencing. He acknowledges his extensive criminal record and the fact that the instant

offenses were committed while he was on parole but argues that concurrent sentencing,

16

given his life sentence, is sufficient “to appreciate the gravity of [the] offenses while

serving to protect the public.”

We review the trial court‟s consecutive sentencing determinations for an abuse of

discretion, with a presumption of reasonableness afforded to the trial court‟s decision.

See State v. Pollard, 432 S.W.3d 851, 860 (Tenn. 2013) (applying same deferential

standard announced in State v. Bise, 380 S.W.3d 682 (Tenn. 2012) to trial court‟s

consecutive sentencing decisions).

We find no abuse of discretion in the trial court‟s sentencing determinations. The

trial court may, in its discretion, order multiple sentences to run consecutively if it finds

by a preponderance of evidence that one or more of the seven factors listed in Tennessee

Code Annotated section 40-35-115(b) apply, including that the defendant is an offender

whose record of criminal activity is extensive or that the defendant committed the

offenses while on probation. Id. § 40-35-115(b)(2)(6) (emphasis added). Although not

entirely clear, the trial court appeared to find that factor (6) of the consecutive sentencing

statute was applicable based on the fact that the defendant was on parole at the time he

committed the offenses. Although a consecutive sentence is mandatory when a defendant

is sentenced for a felony committed while on parole from another felony, see Tenn. R.

Crim. P. 32(c)(3)(A), subsection (6) of Tennessee Code Annotated section 40-35-115(b),

which grants the trial court discretion to order consecutive sentencing in certain cases,

applies only when a defendant commits a felony while on probation. See State v. Tracy

Thomas Hepburn, No. M2008-01979-CCA-R3-CD, 2010 WL 2889101, at *10 (Tenn.

Crim. App. July 23, 2010), perm. app. denied (Tenn. Jan. 13, 2011) (citations omitted).

Regardless, subsection (1) of the consecutive sentencing statute applies and provides

ample basis for the trial court‟s discretionary imposition of consecutive sentences.

Accordingly, we affirm the sentences imposed by the trial court.

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the judgments of the

trial court but remand for entry of corrected judgments to reflect that the second degree

murder conviction is merged into the first degree felony murder conviction.

_________________________________

ALAN E. GLENN, JUDGE

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