State of Tennessee v. James Hawkins

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

February 3, 2015 Session Heard at Memphis

STATE OF TENNESSEE v. JAMES HAWKINS

Direct Appeal from the Criminal Court for Shelby County

No. 0806057 Chris Craft, Judge

No. W2012-00412-CCA-R3-DD - Filed August 28, 2015

Defendant, James Hawkins, appeals from his Shelby County Criminal Court jury

convictions of premeditated first degree murder, see T.C.A. ' 39-13-202(a)(1); initiating

a false report, see id. ' 39-16-502, a Class D felony; and abuse of a corpse, see id. '

39-17-312, a Class E felony. The jury sentenced Defendant to death for the first degree

murder conviction based upon its findings that the defendant was previously convicted of

one (1) or more felonies whose statutory elements involve the use of violence to the

person, see id. ' 39-13-204(i)(2); and that the defendant knowingly mutilated the body of

the victim after death, see id. ' 39-13-204(i)(13); and that these aggravating

circumstances outweighed any mitigating circumstances beyond a reasonable doubt. For

the remaining felonies, the trial court imposed an effective sentence of 18 years=

incarceration to be served consecutively to the death sentence. On appeal, Defendant

alleges that (1) the trial court erred by denying Defendant=s motion to suppress his

statements given to the police; (2) the trial court erred by refusing to accept Defendant=s

guilty pleas to counts two and three of the indictment; (3) the trial court erred by

admitting statements made by the victim through the victim=s children, through Melvin

Gaither, and through an application for order of protection; (4) the trial court erred by

admitting evidence of other acts in violation of Tennessee Rule of Evidence 404(b); (5)

the trial court erred by admitting photographs of bone fragments taken from the victim;(6)

the trial court erred by admitting crime scene photographs that had not been provided

during pretrial discovery; (7) the trial court erred by permitting improper closing

argument by the State; (8) the evidence is insufficient to support Defendant=s conviction

of first degree murder; (9) the trial court erred by not requiring the State to provide

discovery concerning an ongoing investigation of sexual abuse committed by Defendant=s

father against Defendant=s sisters for use in the penalty phase of the trial; (10) the trial

court erred by denying Defendant=s special jury instruction request to charge the jury on

the presumption that any sentence imposed for the first degree murder conviction would

be carried out according to the laws of this State; (11) myriad aspects of Tennessee=s

death penalty statutes and procedure are unconstitutional in general and as applied to

Defendant; (12) the trial court imposed an excessive sentence in both length and manner

of service relative to the sentences for filing a false report and abuse of a corpse; and (13)

the cumulative effect of these errors violated Defendant=s right to due process. As an

additional issue, Defendant alleges that the trial court erred by denying his petition for

writ of error coram nobis. Following oral argument at the Cecil C. Humphreys School of

Law at the University of Memphis and this court=s full consideration, we affirm the

judgments of the trial court.

Tenn. R. App. P. 3; Judgments of the Criminal Court are Affirmed

THOMAS T. WOODALL, P.J., delivered the opinion of the Court, in which JOHN EVERETT

WILLIAMS and CAMILLE R. MCMULLEN, JJ. joined.

Steven C. Bush, District Public Defender; Phyllis Aluko and Barry Kuhn, Assistant

Public Defenders (on appeal); Gerald Skahan, Larry Nance, and Kindle Nance, Assistant

Public Defenders (at trial), for the appellant, James Hawkins.

Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Assistant

Attorney General; Amy P. Weirich, District Attorney General; Patience Branham,

Marianne Bell, Jennifer Nichols, and Danielle McCollum, Assistant District Attorneys

General, for the appellee, State of Tennessee.

OPINION

Procedural History

On September 11, 2008, the Shelby County Grand Jury indicted Defendant, James

Hawkins, for the premeditated first degree murder of his girlfriend, Charlene Gaither, for

initiating a false report relative to her disappearance, and for abuse of a corpse. The

State filed a notice of its intention to seek the death penalty as to the first degree murder

charge, relying upon two aggravating circumstances: that Defendant was previously

convicted of felonies involving the use of violence, Tennessee Code Annotated section

39-13-204(i)(2), and that Defendant knowingly mutilated the victim=s body after death,

Tennessee Code Annotated section 39-13-204(i)(13). On June 10, 2011, a Shelby

County Criminal Court jury convicted Defendant of premeditated first degree murder,

initiating a false report, and abuse of a corpse. On June 11, 2011, the jury sentenced

Defendant to death for the first degree murder conviction, finding beyond a reasonable

doubt the existence of both aggravating circumstances and that the aggravating

circumstances outweighed any mitigating circumstances beyond a reasonable doubt.

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Following the trial court=s denial of Defendant=s motion for new trial, Defendant filed a

timely notice of appeal to this court.

While the appeal was pending before this court, Defendant filed a petition for writ

of error coram nobis in the trial court, alleging that newly discovered evidence warranted

the reversal of the conviction and death sentence. This court stayed all appellate

proceedings pending the resolution of the petition for writ of error coram nobis in the trial

court. See State v. Mixon, 983 S.W.2d 661 (Tenn. 1999). On April 25, 2014, the trial

court denied coram nobis relief. Defendant filed a timely notice of appeal from the

denial of coram nobis relief and, on June 2, 2014, this court consolidated the appeals with

this case becoming the primary case number for appellate review. State v. James

Hawkins, W2012-00412-CCA-R3-DD, W2014-00981-CCA-R3-ECN (Order) (Tenn.

Crim. App., at Jackson, June 2, 2014).

Factual Background

On February 12, 2008, Officer Kimberly Houston of the Memphis Police

Department (MPD) interviewed Defendant at an apartment, referred to as Prince Rupert

No. 4, concerning a missing person report he had made regarding his girlfriend, Charlene

Gaither. Ms. Gaither was the mother of Defendant=s three children, K.T., J.W.I., and

J.S.I. (we will refer to child witnesses by their initials). K.T., a daughter, was 12 years

old at the time of the victim=s disappearance. J.W.I., an older son, was 11 years old, and

J.S.I., a younger son, was 9 years old. Officer Houston recalled seeing mothballs

scattered near the entrance to the apartment at the time of her initial interview of

Defendant. Defendant explained that the mothballs were to repel cats. Officer Houston

noticed a very strong odor of ammonia emanating from the apartment, so strong that her

eyes watered as she stood in the open doorway to interview Defendant. Defendant

explained that one of the children had spilled bleach inside the apartment. Regarding his

girlfriend=s disappearance, Defendant told Officer Houston that Ms. Gaither left the

apartment at 9:00 a.m. on Saturday, February 9, 2008, after the two had Aan altercation.@

Officer Houston recalled that Defendant=s daughter, K.T., seemed angry during the

interview with Defendant. She said that K.T. did not divulge any information when

asked by Officer Houston if there was a problem. Officer Houston recalled that

Defendant seemed Acalm but just confused@ during their conversation.

On the afternoon of February 14, 2008, Lance McCallum, an employee with the

Mississippi Department of Transportation, was patching holes on the Coldwater River

bridge on Highway 78 when he glanced down the embankment below the bridge and saw

A[a] body with the hands cut off above the wrist, both feet cut above the ankles, and the

head and neck removed.@ He determined that the body, which was nude and lying on its

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back, was an adult female. Mr. McCallum and his coworkers immediately telephoned

9-1-1. The authorities arrived within minutes.

Detective Mike Pate of the DeSoto County Mississippi Sheriff=s Department

responded to the call of the body=s discovery. Detective Pate recalled that the body

appeared to have been dropped from the top of the hill and rolled down the embankment.

He observed that the body had three very deep cuts Ato the bone@ on the thigh, knee, and

mid-shin of the right leg. An examination of the body revealed no stab or gunshot

wounds. DeSoto County authorities searched the area for the missing body parts but

were unable to locate them. Because of the condition of the body, Detective Pate was

unable to make an initial identification. On February 15, 2008, after speaking with MPD

investigators concerning the missing person report filed by Defendant, Detective Pate

collected a buccal swab from Ms. Gaither=s mother, Jerilene Irvin. Deoxyribonucleic

analysis (DNA) later confirmed the body to be that of the victim, Charlene Gaither.

On February 15, 2008, then-Lieutenant Toney Armstrong of the MPD contacted

the DeSoto County Sheriff=s Department concerning the discovery of a body and

determined that the body fit the description of the missing person in the report filed by

Defendant. Lieutenant Armstrong contacted Defendant to ask him to come to the police

station for an additional interview. Lieutenant Armstrong recalled that Defendant

became Avery defensive@ and told Lieutenant Armstrong that he could not come to the

station until he completed his shift at the Nike Store. Lieutenant Armstrong and other

investigators decided to locate Defendant at his apartment later that afternoon. He

testified at trial that when they spoke to Defendant at the apartment complex that day,

Defendant Aseemed extremely agitated to talk to us, almost to a paranoid state.@ He

recalled a strong odor of bleach emanating from the apartment and Defendant=s

explanation to investigators that he had been cleaning. While other MPD investigators

transported Defendant to the police station for further questioning, Lieutenant Armstrong

secured the scene and obtained a search warrant for the apartment.

Crime Scene Investigator Jeffrey Alan Garey assisted in the search of the

apartment on February 15 and 16, 2008. He noticed Aa strong smell of bleach@ in the

apartment, particularly in the hallway bathroom, master bedroom, and master bathroom

areas of the residence. Investigator Garey used luminol to detect the presence of any

blood evidence that could not be visually seen. The luminol testing revealed the

presence of blood on the bed rail in the master bedroom. Further testing in the bathroom

produced Aan immediate bright blue reaction throughout eighty percent of the bathroom.@

He testified that an adverse effect of luminol testing to locate blood evidence is the

degradation of DNA from the blood evidence once revealed. Investigator Garey

documented scrape marks across the kitchen floor that appeared to have been made by

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moving a large appliance through the kitchen. Across the hall in an unlocked vacant

apartment, Investigator Garey observed an unplugged upright freezer with a Avery strong

odor of bleach@ that he described as Aextremely clean.@ He recalled that all of the

shelving in the freezer had been pushed to the top.

MPD Sergeant Anthony Mullins located Defendant at the apartment on February

15, 2008. He recalled that, although Defendant seemed very nervous and was Avisibly

shaking,@ Defendant agreed to speak to the officers concerning the missing person report

he had filed days earlier. Sergeant Mullins testified that once Defendant=s three children

were placed in the care of family members, Defendant went willingly with investigators

to the station for further questioning. Sergeant Mullins testified that Defendant was not

under arrest at the time but that Defendant was transported to the station in a police

cruiser. At the station, investigators placed Defendant in an interview room. Defendant

was not handcuffed during questioning on February 15.

On the evening of February 15, 2008, Defendant gave a statement denying

knowledge of the victim=s location. Defendant told investigators that he and the victim

had an argument because the victim had suspected him of Acheating.@ Defendant told

investigators that the victim left the apartment at approximately 9:00 a.m. on Saturday,

February 9. Defendant told investigators that J.S.I. told Defendant that he had seen the

victim leaving in a dark-colored car driven by a light-skinned woman. Defendant

claimed to have spoken to the victim on Sunday, February 10. He said that the victim

had telephoned him to let him know that he could raise the children. Defendant told

investigators that the victim and their children had lived in the apartment for three to four

weeks but that he had only moved there two weeks before the victim=s disappearance.

Defendant explained that a piece of missing carpet in the master bedroom had been

missing since he had lived there.

Unbeknownst to Defendant, other investigators were interviewing the children

while Defendant gave his initial statement. Noting several inconsistencies between the

children=s and Defendant=s statements, investigators decided to detain Defendant on a A48

hour investigative hold.@ Sergeant Mullins testified that the Ahold@ is an option utilized

when Awe believe we have probable cause that we could charge somebody with a crime

but we=re not prepared to do so@ and need additional time to Aconfirm or deny@ the

inconsistencies in the statements. In the early morning of February 16, 2008, Defendant

was booked into the jail on a first degree murder Ahold.@

On February 16, 2008, Sergeant Mullins assisted in a search of the apartment

where he observed evidence of heavy cleaning in the hallway bathroom, drag marks on

the kitchen floor, and an unplugged freezer that appeared to have been moved to the

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vacant apartment across the hallway. He testified that the hallway bathroom contained a

bathtub while the master bathroom contained only a shower. Sergeant Mullins testified

that investigators were unable to locate any additional evidence from area garbage

dumpsters. Investigators did, however, locate a Craftsman skill saw at a nearby Kmart

that the children reported Defendant had purchased and then returned to Kmart later on

the day of the victim=s disappearance. In addition to the skill saw, investigators retrieved

video surveillance footage showing Defendant and the children at the Kmart on February

9, 2008.

After confirming various aspects of the children=s statements, investigators

initiated an interview with Defendant on the evening of February 16, 2008. Sergeant

Mullins testified that because Defendant was then under arrest on the 48-hour hold, he

advised Defendant of his Miranda rights before initiating the interview. Defendant

refused to sign the rights waiver, while Aemphatic[ally]@ stating that he understood his

rights and would agree to give a statement. During the interview, Defendant denied (1)

throwing out a mattress from the master bedroom; (2) owning a freezer; and (3) that the

carpet in the master bedroom had been cut. Sergeant Mullins recalled that Defendant

tried to be cooperative during the interview but at times would turn away, refusing to

respond to questions.

MPD Sergeant Caroline Mason testified that, while walking Defendant back to the

jail, Defendant told her that he wanted to talk outside an interview room. Investigators

returned Defendant to the upstairs office area where Defendant once again refused to sign

a rights waiver form after being advised of his Miranda rights. Defendant, nevertheless,

offered a third statement concerning the victim=s disappearance. Defendant told

investigators that Ahe did not want his daughter to go to jail, he was trying to cover for his

daughter.@ He reported that K.T. stabbed the victim and that he had held the victim for

30 to 60 minutes while she died. Defendant said that he moved the victim to the bathtub

in the hallway bathroom where he dismembered the victim. He said that he and K.T.

then drove to Mississippi where he disposed of the victim=s body and body parts in

separate areas off Highway 78. Defendant agreed to guide investigators to the locations

where he had abandoned the victim=s body parts. Efforts to locate the body parts,

however, were futile due to heavy rains that had occurred in the days following the

victim=s death.

Sergeant Mason testified that she accompanied Sergeant Mullins to the apartment

on February 15, 2008, to gather a more detailed statement from Defendant regarding the

missing person report. Later that evening at the police station, Sergeant Mason

interviewed J.S.I. in the presence of J.S.I.=s maternal grandfather, Louis Irvin, Jr. Based

upon discrepancies between Defendant=s statement and those of the children, investigators

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arrested Defendant on a 48-hour hold in the early morning of February 16. On February

16, 2008, Sergeant Mason assisted in the search of the apartment. She recalled seeing a

pair of children=s panties on top of a pair of dark blue pajama bottoms on the master

bedroom floor. On the evening of February 16, Sergeant Mason assisted in the second

interview of Defendant. She testified that Defendant refused to sign a rights waiver form

but affirmed that he understood his rights and agreed to talk to investigators. She

recalled that Defendant controlled the interview by participating at times and then

refusing to answer questions. She said that Defendant denied involvement in the victim=s

disappearance. On the return walk to the jail, however, Defendant stopped Sergeant

Mason and said, AI didn=t do it. I didn=t do it, but I may have covered it up.@ Defendant

agreed to return to the investigator floor of the building to give a statement.

During the third interview, Defendant once again refused to sign a rights waiver.

Investigators agreed to interview Defendant in an office area because Defendant

expressed reservations about being surreptitiously recorded in an interview room.

Sergeant Mason explained that, although the MPD does not record suspect or witness

interviews, Defendant was fearful of being included in an episode of the crime

documentary television show, AThe First 48.@ Defendant told investigators that he had

taken the children to a movie on Friday, February 8, while the victim stayed home.

When they returned, the boys went to bed, and he and K.T. went to the living room to

watch television. He told investigators that the victim woke up and Afussed@ at him about

K.T. staying up late. He claimed that he fell asleep in the living room.

Defendant told investigators that he awoke on Saturday morning to the victim and

K.T. arguing. He went to the master bedroom to see K.T. holding a knife. As he

approached K.T. to stop her, K.T. stabbed the victim in the neck. Defendant said that he

held the victim for one to two hours until she died. He claimed that K.T. said, ADaddy,

you [have] got to help me cover this up, I don=t want to go to prison for the rest of my

life.@ Defendant told investigators that he then decided to dismember the victim and

dispose of her body in Mississippi. At the conclusion of the interview, Defendant agreed

to show investigators the locations where he had disposed of the victim=s body parts.

On February 17, 2008, Sergeant Mason interviewed K.T. regarding the victim=s

disappearance. Sergeant Mason testified that K.T. had not been Aforthcoming@ during

her first statement on February 15, but two days later, K.T. spoke openly with

investigators during her second statement. Sergeant Mason recalled K.T.=s telephone

ringing during the interview. K.T. answered and became nervous because it was

Defendant telephoning her from the jail. K.T. hung up on Defendant, but he called back

three times. Sergeant Mason testified that K.T. seemed nervous but was reassured after

being told that Defendant was in the jail. Following K.T.=s statement, Defendant was

formally charged with the victim=s murder.

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Sergeant Vivian Murray participated in K.T.=s February 17 interview. She

recalled Defendant=s calling K.T.=s telephone from the jail. Sergeant Murray testified

that she answered the telephone and that Defendant said, ABitch, don=t talk to my

daughter@ and hung up the phone.

At trial, the parties stipulated that the victim died as a result of Astabbing,

strangulation or a combination of both.@ Doctor Qadriyyah Debnam, a Special Agent

Forensic Scientist with the Tennessee Bureau of Investigation, performed DNA and

serology analysis on items collected from the apartment and the trunk of the victim=s car.

Samples of carpeting from the victim=s trunk and one freezer tray revealed the presence of

the victim=s blood. Doctor Steven A. Symes, a forensic anthropologist, testified that the

cuts to the victim=s body were consistent with having been made with a Atypical seven and

a quarter inch circular saw blade.@ He determined that the three cuts to the victim=s right

leg were Aabandoned@ because the saw could not cut through that particularly large

section of the leg. The saw was capable, however, of cutting the wrists, ankles, and

neck.

At trial, Louis Irvin, Jr., the victim=s father, testified that Defendant was the father

of the victim=s children. He testified that Defendant had been absent from the family for

some time but that Defendant returned in the fall of 2007. Mr. Irvin testified that the

victim soon Abroke communications@ with him after Defendant began living with the

victim and the children. Mr. Irvin recalled the victim=s being bothered by the attention

Defendant paid to K.T. He recalled that Defendant and K.T. Astayed off to themselves@

at family gatherings, but he assumed that it was because Defendant had been absent for so

long.

Angela Hilton testified that she had worked with the victim at the Tipton County

Adult Development Center, where the victim worked with the Amost severe[ly]@

handicapped patients. She recalled that the victim was an Aextraordinary@ employee who

only missed work when her children were sick. Ms. Hilton last saw the victim in

November 2007. She said that the victim did not show up for the office Thanksgiving

party. She knew that the victim had moved to Memphis with Defendant, and she

assumed that the drive to Tipton County became burdensome for the victim.

MPD Officer Nancy Trentham testified that she responded to a call at 3461

Wingood Circle on January 12, 2008, where she spoke to the victim, who was standing

outside the apartment with her two sons. The victim wanted K.T. to leave with her and

her sons. The victim told Officer Trentham that she suspected Asomething inappropriate

was going on@ between Defendant and K.T. Officer Trentham and another officer spoke

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to Defendant. She described Defendant as Avery cooperative . . . polite . . . [and] very

calm.@ She spoke to K.T. privately in another room of the apartment. She described

K.T. as Avery quiet@ and Avery soft spoken.@ After speaking to all the parties, Officer

Trentham advised the victim that she could not force K.T. to leave because there was no

custody arrangement between the parents. The victim became very upset and repeated

her suspicion that something inappropriate was happening between Defendant and K.T.

Officer Trentham completed a memorandum to the Child Advocacy Center, but she did

not refer the victim for an order of protection because she saw no signs of abuse,

domestic or otherwise, during the call to the residence.

Melvin Gaither was married to the victim from 2003 until 2007. He testified that

Defendant and the victim renewed their relationship in late-September 2007. He recalled

that Defendant helped move the victim and the children from his home on October 18,

2007. On Christmas Day 2007, the victim contacted Mr. Gaither and told him that

Defendant had been threatening her. On January 5, 2008, the victim told Mr. Gaither

that she needed to get away from Defendant, stating AI believe he wants to kill me.@ Mr.

Gaither spoke to the victim in person once more on January 16, 2008, when she told him

that Defendant was threatening her again and that the children would not leave with her.

Shannon Hein, the keeper of records at Methodist LeBonheur Children=s Hospital,

testified that K.T. was hospitalized from December 26-27, 2007, after suffering a

miscarriage. The medical examination revealed that K.T. was 10 weeks pregnant. K.T.

reported to the medical staff that she had consensual sex with a classmate from school

and was unwilling to discuss the pregnancy any further.

Milton Harris was married to the victim from 1998 until 2002. He testified that

he and the victim remained friends after their divorce. In January 2008, the victim met

him at a Pizza Hut. He recalled that the victim had her sons with her but that she was

Ahysterical@ and Avery upset@ because she had left K.T. with Defendant. Mr. Harris

testified that he talked to the victim the next day, and the victim told him that K.T. was

now with her. Several days later, the victim showed up at FedEx, where Mr. Harris

worked, with her three children. Mr. Harris recalled that the victim was Areally terrified@

and Awanted to leave@ Defendant. Mr. Harris gave the victim keys to an old apartment,

Prince Rupert number 4, that he still had leased and gave her money to file a restraining

order against Defendant.

Deborah Coffman, an employee with Citizens Dispute, testified that, on January

15, 2008, she assisted the victim in preparing an application for an order of protection.

By that time, the victim had changed residences and moved to the Prince Rupert

apartment. The victim listed Defendant=s address as the apartment located at Wingood

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Circle. The victim reported that on January 12, 2008, Defendant became violent and

pulled her hair when she informed him that she and the children were leaving. The

victim told Ms. Coffman that Defendant had been sleeping in the same bed with K.T.,

although both Defendant and K.T. denied any sexual abuse was occurring. The victim

told Ms. Coffman that she wanted Defendant to Ajust stay away.@ Several weeks after

assisting the victim, Ms. Coffman learned that the victim had been killed. Ms. Coffman

testified that the ex parte order of protection had never been served on Defendant and that

the case had been dismissed on January 29, 2008.

J.W.I. was eleven years old when the victim died. He testified at trial that he was

attending the fifth grade in Covington, Tennessee in the fall of 2007. He lived with the

victim, his siblings, and Melvin Gaither. He moved to Memphis when the victim

reunited with Defendant. J.W.I. said that Aeverything was simple and quiet@ at first when

Defendant returned. He soon noticed, however, that Defendant paid more attention to

K.T. and that his parents argued about the attention Defendant paid to K.T. During one

argument, the victim threatened to telephone the police, and Defendant Asnapped@ the

victim=s cellular telephone. During another argument, the victim woke the children, and

they left the apartment. The victim and the children waited in the FedEx parking lot until

Milton Harris could bring the victim keys to the Prince Rupert apartment. J.W.I. recalled

another argument, which occurred at the Prince Rupert apartment, during which he heard

a slap and later saw the victim=s face was red.

Regarding Defendant=s relationship with K.T., J.W.I. testified that some time after

Christmas 2007, Defendant told J.W.I. and J.S.I. to stay in the living room while

Defendant took K.T. to another room. J.W.I. testified that when he left the living room

to look for batteries, Aout of the corner of my eye I could see [Defendant] on top of my

sister.@ Defendant scolded J.W.I. for leaving the living room. J.W.I. testified that he

never discussed with anyone what he had witnessed until after the victim=s death.

J.W.I. testified that on the day of the victim=s death, K.T. came to the children=s

bedroom and told them to stay in the room and turned up the television Aas loud as it

could go.@ J.W.I. never saw the victim that day. After K.T. returned to the bedroom and

turned down the television, Defendant told the brothers that the victim Awas gone@ and

that she had left during the night. J.W.I. thought at the time that Asomething was wrong

because [the victim] wouldn=t just up and leave like that.@ That afternoon, Defendant

drove the children to a discount store for cleaning supplies and to Kmart to purchase a

saw. Defendant instructed the boys to sit in the car, claiming that he had a surprise for

them. The brothers sat outside in the car for approximately three hours before being

allowed to return to the apartment. They then helped Defendant clean the apartment but

were forbidden from going into the hallway bathroom. They helped Defendant dispose

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of the master bedroom mattress and box spring set. J.W.I. also recalled that when he was

allowed into the apartment, the upright freezer was missing. Defendant told him that he

had moved the freezer out of the apartment because it was broken. J.W.I. identified at

trial the surveillance video from Kmart showing Defendant=s purchasing and returning the

saw. J.W.I. learned approximately a week later that his mother had been killed.

J.S.I. was nine years old when the victim died. He testified that Defendant lived

Abriefly@ with him, his mother, and his siblings when he was in the fourth grade. He

recalled that for the first two to three weeks of Defendant=s return, Ait was nice.@ He soon

noticed, however, that Defendant showed little attention or affection to himself or J.W.I.

He testified that he saw Defendant Atongue kissing@ his sister, but he did not tell anyone

because he was scared. J.S.I. testified that the victim and Defendant fought violently at

times. He recalled an incident when Defendant snapped the victim=s cellular telephone

after she threatened to telephone the police. He also recalled leaving the first apartment

and meeting Mr. Harris for a key to the new apartment. J.S.I. testified that things were

worse in the second apartment and that he thought Defendant had slapped the victim once

during an argument. J.S.I. recalled that K.T. Awould get beat[en]@ if she disobeyed

Defendant. He said that K.T.=s personality changed when Defendant began living with

them and that she was often disobedient to the victim. He recalled Defendant=s

forbidding K.T. from talking to the victim.

Regarding the night before the victim=s disappearance, J.S.I. testified that

Defendant had taken the children to the movies while the victim, who was not feeling

well, stayed home. When they returned home, Defendant and the victim argued

throughout much of the night. J.S.I. recalled hearing the victim say at least four or five

times, A[K.T.]=s my baby.@ The next morning, K.T. told the boys to stay in their

bedroom, and she turned up the television. J.S.I. could hear the victim yelling and then

heard nothing. He looked out the window and saw a car with dark-tinted windows

leaving the parking lot. On cross-examination, J.S.I. admitted telling Sergeant Mason

that he thought the victim left in the car, but he explained that he later learned that he was

mistaken. He left the bedroom, and Defendant told J.S.I. that he and the victim had been

arguing again and directed J.S.I. to go back to bed. Later that day, Defendant took the

children to Kmart where he purchased a saw. J.S.I. waited outside for three hours while

Defendant and K.T. were inside the apartment. J.S.I. went to the apartment once to use

the bathroom, and Defendant directed him to the master bathroom. When he was leaving

the apartment, he saw a tennis shoe through the partially opened door of the hallway

bathroom, but K.T. quickly shut the door before J.S.I. could see anything else. When

Defendant and K.T. came outside, Defendant and the children drove around throwing

black garbage bags into different dumpsters. J.S.I. recalled seeing a red liquid dripping

from the upright freezer. Defendant told J.S.I. that it was Hawaiian Punch but forbade

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J.S.I. from opening the freezer. Defendant moved the freezer from the apartment later

that night, claiming that it no longer worked.

K.T. was twelve years old when the victim died. She testified that she lived in

Covington, Tennessee with her brothers, the victim, and Mr. Gaither before Defendant=s

return in the fall of 2007. K.T. said that Defendant had been gone for a long time. She

recalled that she saw Defendant at her aunt=s house while visiting with the victim and her

brothers. Defendant awakened her to watch television with him. She fell asleep in the

living room and awoke to Defendant=s touching her vagina. She told him to stop but he

refused. He later threatened to hurt her if she told anyone about the incident.

K.T. testified that Defendant moved the family from Covington to Memphis. She

said that he Aconstantly@ touched her on her vagina, breasts, and buttocks. He also asked

her to touch his penis with her hand or her mouth. K.T. said that the touching occurred

Aabout every other day.@ She said that if she protested or fought back, Defendant would

force her to comply. She testified that Defendant hit her, punched her in the stomach,

choked her, put a knife to her throat, and threatened to kill her.

K.T. testified that she went to the hospital after suffering a miscarriage.

Defendant and the victim rode with her in the ambulance and were present when the

doctors interviewed her. She never told anyone that Defendant was having sex with her.

She testified that she never had sex with anyone other than Defendant. After the

miscarriage, Defendant=s sexual acts against K.T. continued. K.T. explained that when

she was interviewed by the Child Advocacy Center, she did not disclose what Defendant

was doing because he had driven her to the interview and she knew that she would be

going home with him.

K.T. recalled the victim=s leaving Defendant and moving the family to the Prince

Rupert apartment. She said that the victim began talking to Defendant again and

eventually allowed him to move back with the family. K.T. testified that the sexual

abuse resumed immediately. She said that Defendant would Aget crazy@ when angered,

so she always did what he instructed her to do.

K.T. testified that Defendant and the victim had been arguing about K.T. being up

late watching television on the night of February 8, 2008. K.T. went to bed. The next

morning, she awoke to the victim=s and Defendant=s arguing. As K.T. walked to the

hallway bathroom, she saw Defendant walk from the kitchen to the master bedroom with

a knife in his hand. When the victim threatened to telephone the police, Defendant bent

over and stabbed the victim in the neck. K.T. testified that she just Astood in shock.@

12

K.T. testified that Defendant ordered her to help him dismember the victim. He

threatened her with a knife. She testified that she turned up the volume of the television

and told her brothers to stay inside their bedroom. Defendant moved the victim=s body to

the upright freezer, cleaned the bedroom, and cut bloodstains from the carpet and

mattress. Defendant, K.T., and her brothers went to Kmart where Defendant purchased a

saw and to Family Dollar where Defendant purchased cleaning supplies. K.T. testified

that Defendant disposed of the kitchen knife in a garbage can at Kmart.

When they returned to the apartment, Defendant told the brothers to wait in the

car. Upstairs, Defendant moved the victim=s body from the freezer to the bathtub in the

hallway bathroom. Defendant taped K.T.=s hands behind her back and ordered her to

turn away as he removed the victim=s hands, feet, and head with the saw. K.T. testified

that she held the victim=s head after Defendant removed it and that Defendant ordered her

to wrap the body parts in plastic garbage bags and place them in the freezer. When the

boys returned to the apartment, they complained of the smell. Defendant had the

children assist in cleaning the apartment. Later that afternoon, Defendant returned the

saw to Kmart. During the night, Defendant asked K.T. to help him move the victim to

the trunk of the car. He then drove K.T. to Mississippi where he disposed of the victim=s

body parts in multiple locations. While removing the victim=s body from the trunk,

Defendant instructed K.T. to stand by the car with the hood open and a cellular telephone

in her hand in order to feign having car trouble should someone drive by. K.T. admitted

that she never telephoned the police because she was scared of Defendant. She said that

once Defendant was in handcuffs, she was no longer scared. She testified that, while

giving her statement on February 17, she Afelt like he couldn=t hurt [her] anymore.@

K.T. admitted to making allegations of sexual abuse when she was younger. Of

the many missed opportunities she had to tell someone about Defendant=s sexual abuse,

she explained A[Defendant] was around and at the end of the day I had to go home with

him.@ She testified that she told the truth during her February 17 statement because

Defendant was finally Alocked up.@ She testified that Defendant impregnated her,

leading to the miscarriage, but that she told the doctors about a boy at school because

Defendant was in the examination room with her.

Following a Momon colloquy, Momon v. State, 18 S.W.3d 152, 161-62 (Tenn.

1999), Defendant elected not to testify. Defendant presented no other evidence. Based

upon this evidence, the jury convicted Defendant of premeditated first degree murder,

initiating a false report, and abuse of a corpse.

At the sentencing phase of the trial, the State presented evidence concerning the

emotional and financial strain suffered as a consequence of the victim=s death. Cynthia

13

Guy, the victim=s older sister, testified that she and her husband are raising the victim=s

children, along with their two children, in a two-bedroom, one-bath home. She said that

K.T. attends weekly counseling appointments. Doctor Karen Elizabeth Chancellor,

Chief Medical Examiner for Shelby County, testified that the wounds to the victim=s body

were inflicted post mortem and were consistent with wounds from a circular saw.

Michelle Jones, keeper of records with the Shelby County Criminal Court Clerk=s Office,

testified that Defendant was previously convicted of 10 counts of aggravated robbery and

7 counts of aggravated assault. The parties stipulated to the accuracy of Defendant=s

prior convictions. Sheila Johnson, one of the aggravated robbery victims, testified that

Defendant participated in the robbery of a Piggly Wiggly market on November 12, 1997,

and that he employed a handgun during the robbery.

Defendant also presented proof at the sentencing phase of the trial. Jeannette

Stanback, a mitigation investigator with the Shelby County Public Defender=s Office,

testified that Defendant was one of four children born to James Hawkins, Sr. (AMr.

Hawkins@) and Della Thomas. Ms. Thomas had borne four other children. Mr.

Hawkins had fathered Amore than twenty@ children. Ms. Stanback testified that the

family history revealed that Defendant=s father sexually abused at least five of his

daughters. Ms. Stanback testified that Defendant=s brother, Chris, died at the age of 15

when he was shot standing outside the apartment where Defendant and his siblings

resided with their mother. Ms. Stanback testified that anecdotal reports from

Defendant=s family indicated that Defendant, who was 19 years old when his brother died,

received no counseling concerning his brother=s death and was arrested for the Piggly

Wiggly robbery within one year of Chris=s death. Defendant=s educational records

revealed that Defendant dropped out of school during the eighth grade and that

intelligence quotient testing of Defendant showed a full-scale IQ of 77. Ms. Stanback

testified that Defendant had been a Amodel inmate@ while in jail awaiting trial on these

charges.

Defendant=s mother, Della Thomas, testified that Mr. Hawkins never supported the

family financially and that he was abusive and controlling. Ms. Thomas was not aware

of any allegations of sexual abuse while the children were growing up but had recently

learned that two of Defendant=s sisters claimed Mr. Hawkins had sexually abused them.

Ms. Thomas recalled that Defendant was diagnosed with Attention Deficit Hyperactivity

Disorder and was prescribed Ritalin as a child. She testified that her son Chris died in

Defendant=s arms and that Defendant became violent and moody after Chris=s death. On

cross-examination, Ms. Thomas testified that she raised her children and that Mr.

Hawkins was Aout of the picture@ during most of their childhoods.

14

Following a full Momon colloquy, id., Defendant elected not to testify during the

sentencing phase. The State presented rebuttal evidence from Keely Gray, a Shelby

County Sheriff=s Department jailer, who testified that Defendant had received a sanction

for noncompliance when he refused a staff order. Although Defendant did not have a

disciplinary hearing, he did spend time in Alock down@ due to the sanction. Following

deliberations, the jury found beyond a reasonable doubt the existence of both aggravating

circumstances and that the aggravating circumstances outweighed any mitigating

circumstances beyond a reasonable doubt.

At hearings concerning Defendant=s petition for writ of error coram nobis,

Defendant presented two instances of allegedly newly discovered evidence: (1) that

previously undisclosed DNA testing performed on the fetal tissue taken from K.T.=s

miscarriage excluded Defendant as the father of K.T.=s child, and (2) that the State

concealed instances of sexual abuse committed by Defendant=s father that would have

been relevant to mitigation during the sentencing phase of the trial. As to the DNA

testing, the trial court found that the evidence would not result in a different outcome had

it been presented at trial because the testing results were inconclusive as to the paternity

of the fetal tissue. As to the evidence of sexual abuse committed by Defendant=s father,

the trial court found that such evidence was, in fact, presented at the sentencing phase of

the trial and that the State=s subsequent indictment of Defendant=s father was of no

consequence to the outcome of the sentencing phase.

ANALYSIS

GUILT-INNOCENCE PHASE ISSUES

Suppression of February 16 Statement

In his initial issue on appeal, Defendant contends that the trial court erred by

denying his motion to suppress his statements made to investigators on February 16,

2008, wherein he admitted to dismembering the victim=s body. He argues that he was

illegally detained without a warrant and without probable cause when approached by

officers on February 15 at 4:15 p.m. or, alternatively, that he was illegally detained

without a warrant and without probable cause when booked on a 48-hour investigative

hold at 1:59 a.m. on February 16. Thus, he argues that his statement made to

investigators on the evening of February 16 should be suppressed as fruit of the poisonous

tree flowing from the illegal detention. For the first time on appeal, Defendant also

raises, as plain error, that the delay in taking him before a magistrate should result in the

suppression of his February 16 statement.

15

The State contends that the trial court correctly denied Defendant=s motion to

suppress. The State argues that the evidence does not preponderate against the trial

court=s finding that Defendant accompanied investigators voluntarily to the police station

on the evening of February 15 and that Defendant=s detention on February 16 was

supported by probable cause relative to initiating a false report. Further, the State argues

that the February 16 statement was voluntarily and knowingly given after receiving full

Miranda advice. As to Defendant=s claim that his statement should be suppressed due to

a delay in taking him before a magistrate, the State argues that this issue does not rise to

the level of plain error because a clear and unequivocal rule of law has not been breached

because Defendant made the statement within the first 48 hours of his detention.

Three Memphis Police Department investigators, two of whom were called by the

State, testified at the hearing on Defendant=s motion to suppress evidence. No other

person, including Defendant, testified at the hearing. The following is a summary of the

evidence presented at the suppression hearing. Lieutenant Armstrong wanted to talk to a

man who at the time was a witness relative to the missing person report concerning the

victim in this case. When the witness failed to drive to the police department to give a

statement when he was asked to do so, Lieutenant Armstrong ultimately dispatched at

least three investigators in unmarked police vehicles to the area of the apartment where

the witness resided. Lieutenant Armstrong instructed investigators to look for the

vehicle used by the witness and to prevent the witness from leaving the premises. The

testimony indicated, however, that investigators were not authorized to knock on the

witness=s apartment door in order to obtain a statement from the witness.

While parked at the apartment complex watching the witness=s vehicle,

investigators observed the witness and his children getting into the car and driving away.

Investigators followed the witness toward the exit of the apartment complex. Soon the

witness turned around and started back in the direction of his apartment. Investigators

then Aturned on the blue lights to get [the witness] to stop.@

Upon making contact with the witness, investigators told the witness that he must

go downtown to the police department in order to give a statement concerning the missing

person report. The witness, however, wanted to give his statement at his apartment.

Investigators told the witness this was not possible. Investigators permitted the witness

and his children to return to the apartment to await the arrival of an adult to watch the

children. The witness had earlier expressed concerns about going to the police

department to give a witness statement because he had no one to stay with his three minor

children.

16

Lieutenant Armstrong drove to the witness=s apartment with an adult relative of the

children to alleviate the witness=s concern by providing a caregiver for the children.

Investigators required the witness to ride in a police vehicle to go to the police

department. However, he was not driven in one of the unmarked investigators= vehicles.

A Auniform patrol car@ was dispatched to transport the witness, who was placed into the

back seat, to the police department.

According to investigators, the witness was clearly not a suspect in any criminal

activity, and the officers had absolutely no legal grounds to arrest the witness.

Nevertheless, investigators stopped the witness by Ablue lighting@ the witness at

approximately 4:15 p.m. on Friday, February 15, 2008. Investigators transported the

witness in a marked patrol car and placed him in an interview room at the police station at

approximately 5:30 p.m. The interview room=s door locked so that a person inside could

not exit the room without a key. In other words, the witness was not free to leave the

interview room. Investigators entered the interview room at 6:00 p.m. and left at 6:24

p.m. Investigators did not return to the interview room until 7:24 p.m. It is undisputed

through the sworn testimony of investigators that throughout this time period the witness

was not a suspect in any criminal activity B therefore, according to investigators, there

were no legal grounds to hold the witness in custody.

On the evening of Friday, February 15, 2008, the witness gave a non-incriminating

statement, which was typed by investigators and later signed by the witness, denying any

knowledge of the victim=s disappearance or whereabouts. However, with multiple breaks

in the interview process taken by investigators, the statement was not signed until

approximately 10:00 p.m. At one point during the interview, the witness stated that he

wanted to go home, as he had provided all the information he could. Investigators then

told the witness that he could not leave because they wanted to ask him some more

questions. Investigators determined subjectively that the witness was not Aadamant@

enough in his request to be allowed to leave, so they kept the witness in the locked

interview room for some additional time period. The person who is described herein and

who investigators referred to as being only a Awitness@ is Defendant.

Additional evidence presented at trial showed that Defendant filed a missing

person report with MPD on February 12, 2008. On that day, Officer Houston went to the

Prince Rupert apartment to interview Defendant. Officer Houston recalled smelling a

strong odor of mothballs and ammonia, forcing her to stand in the doorway for the

interview. On February 14, 2008, an initially unidentifiable female body, without hands,

feet, or a head, was discovered in Mississippi. When the victim=s family inquired with

MPD about the possibility of the unidentified body being the victim, investigators decided

17

to contact Defendant in order to follow up on the missing person report that Defendant

filed on February 12.

In his February 15, 2008 statement to investigators, Defendant denied any

knowledge of the still unidentified body discovered in Mississippi. Defendant offered a

detailed account of the last time he saw the victim alive on February 9, 2008. On

February 15, investigators also interviewed J.S.I. and J.W.I., who gave statements

consistent to each another but different from Defendant=s account of the events leading up

to the victim=s leaving. The children also offered detailed accounts of Defendant=s and

the children=s activities on the weekend of the victim=s disappearance. When confronted

with statements made by the children, Defendant denied any knowledge of the events

reported by the children. On the evening of February 15, investigators searched the

apartment and found evidence of heavy cleaning and removal of a piece of carpeting and

a freezer from the apartment, confirming various aspects of the children=s statements and

refuting Defendant=s denials. We note that the search of the apartment and admission of

evidence from that search has not been challenged by Defendant. At 1:59 a.m. on

February 16, 2008, investigators arrested Defendant on a 48-hour investigative hold for

suspicion of first degree murder.

On February 16, following further investigation and a second search of the

apartment, investigators initiated a second interview with Defendant. This time

investigators advised Defendant of his Miranda rights. Although Defendant refused to

sign a waiver of rights form, he agreed to speak to investigators. During the first

interview on February 16, Defendant continued to deny any knowledge of the victim=s

whereabouts. While being walked back to the jail, however, Defendant spontaneously

said, AI didn=t do it, but I know who did.@ Defendant agreed to speak with investigators,

reportedly saying, AI=ll talk to you, but not in the [interview] room.@ Following an

additional Miranda advice, Defendant told investigators that he had assisted in covering

up the victim=s murder after K.T. killed the victim. Defendant admitted to dismembering

the victim=s body and disposing of her body in various locations in Mississippi.

Defendant then guided investigators to the areas where he had discarded the body, but

investigators were unable to locate the victim=s missing limbs and head.

At the conclusion of the hearing, the trial court found that the initial encounter

between investigators and Defendant on February 15 was consensual and that Defendant

voluntarily accompanied the investigators to the police station to give a statement

concerning the missing person report. The court found that the February 15 statement

occurred within a noncustodial setting and that Defendant voluntarily remained at the

police statement even when informing investigators that he had nothing more to tell them.

18

As to the statements made on February 16, the trial court found that Defendant=s

admissions in the hallway while being returned to the jail were Aspontaneous utterances@

that did not occur during interrogation and, therefore, did not require Miranda warnings.

The trial court further found that the investigators Acovered [Defendant=s] rights,

backwards and forwards,@ that Defendant understood his rights, and that the statements

were made voluntarily while being lawfully detained based upon probable cause to

believe Defendant had committed abuse of a corpse. The trial court made no specific

findings relative to whether Defendant was illegally detained by the officers= February 15

stop by activating the Ablue lights@ on their vehicle.

In Echols, our Supreme Court set forth the following standard of review for

suppression hearings:

[T]he standard of review applicable to suppression issues is well

established. When the trial court makes findings of fact at the conclusion

of a suppression hearing, they are binding upon this Court unless the

evidence in the record preponderates against them. Questions of credibility

of witnesses, the weight and value of the evidence, and resolution of

conflicts in the evidence are matters entrusted to the trial judge as the trier

of fact. The party prevailing in the trial court is entitled to the strongest

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

as all reasonable and legitimate inferences that may be drawn from that

evidence.

Our review of a trial court=s application of the law to the facts is de

novo with no presumption of correctness. Further, when evaluating the

correctness of the ruling on a motion to suppress, appellate courts may

consider the entire record, including not only the proof offered at the

hearing, but also the evidence adduced at trial.

State v. Echols, 382 S.W.3d 266, 277 (Tenn. 2012) (emphasis added) (citations omitted).

Because the State prevailed at the suppression hearing in this case, we afford the State the

strongest legitimate view of the evidence.

Defendant contends that he was illegally seized without a warrant on the afternoon

of February 15, 2008. The State argues that the trial court correctly found that Defendant

voluntarily accompanied investigators to the police station on the afternoon of February

15, 2008 and, therefore, no illegal seizure occurred.

19

There are three levels of police-citizen interactions: (1) a full-scale arrest, which

must be supported by probable cause in order to be valid; (2) a brief investigatory

detention, which must be supported by a reasonable suspicion, based upon specific and

articulable facts, of criminal wrong-doing; and (3) a brief Aencounter,@ which requires no

objective justification. State v. Day, 263 S.W.3d 891, 901 (Tenn. 2008). The definitive

test for determining whether a seizure has occurred under article I, section 7 of the

Tennessee Constitution is Awhether, >in view of all of the circumstances surrounding the

incident, a reasonable person would have believed he or she was not free to leave.=@

State v. Randolph, 74 S.W.3d 330, 336 (Tenn. 2002) (quoting State v. Daniel, 12 S.W.3d

420, 425 (Tenn. 2000)). As this court has stated, this determination requires the court to

Aexamine[] the circumstances from the standpoint of the citizen, not the police officer. If

a reasonable person would not feel free to leave due to an officer=s show of authority, that

constitutes a seizure, regardless of why the officer made the show of authority.@ State v.

Gonzales, 52 S.W.3d 90, 97-98 (Tenn. Crim. App. 2000). Our supreme court Ahas

adopted a totality of the circumstances test for determining whether a seizure has

occurred.@ State v. Moats, 403 S.W.3d 170, 182 (Tenn. 2013) (citing Daniel, 12 S.W.3d

at 425). As explained in Daniel,

Some of the factors which are relevant and should be considered by courts

when applying this totality of the circumstances test include the time, place

and purpose of the encounter; the words used by the officer; the officer=s

tone of voice and general demeanor; the officer=s statements to others who

were present during the encounter; the threatening presence of several

officers; the display of a weapon by an officer; and the physical touching of

the person of the citizen.

Id. at 425-26. AOnly when the officer, by means of physical force or show of authority,

has in some way restrained the liberty of a citizen may we conclude that a >seizure= has

occurred.@ Id. at 424. The activation of blue lights will often constitute a seizure because

Athe lights convey a message that the occupants are not free to leave.@ State v. Williams,

185 S.W.3d 311, 316 (Tenn. 2006).

We note that the trial court did not make any explicit finding of the credibility of

the testimony of the three investigators who testified at the suppression hearing, but we

are comfortable concluding that the trial court implicitly accredited their testimony. That

being said, we must respectfully disagree with the trial court=s determination that

Defendant voluntarily accompanied investigators to and remained at the police station on

the afternoon and evening of February 15. The evidence simply preponderates against

such a finding. Defendant ignored investigators= first request to meet at the police

station. Once stopped, Defendant indicated a desire to speak only at the apartment, but

20

investigators told him that was not possible. Investigators accompanied Defendant to the

apartment to wait on the arrival of childcare, which was arranged by Lieutenant

Armstrong. Defendant appeared nervous and did not want to go to the police station.

Despite this, Defendant was compelled to ride in the back seat of a uniform patrol car to

the police department. When he arrived at the police department, investigators secured

Defendant in a locked interview room for several hours while sporadically interviewing

him throughout the evening of February 15.

If we assume that the Memphis Police Department=s officers treat all Awitnesses@

who are not suspected of any criminal activity to this type of seizure and detention

without even reasonable suspicion of criminal activity, as testified to by investigators in

this case, it would be no surprise that witnesses are reluctant to come forward and

participate in any police investigation conducted by the department. A witness has the

same basic constitutionally protected rights as a person suspected of criminal activity.

Thus, whether Defendant is characterized by investigators as either a witness or a suspect,

we conclude that Defendant was seized and detained at the time investigators activated

their blue lights to stop Defendant. Williams, 185 S.W.3d at 318. This seizure was done

when, according to the testimony of the police officers, Defendant was only a Awitness@

and was not a suspect in any criminal activity.

Having determined that an illegal seizure occurred, we must now determine

whether Defendant=s statements made on February 16, 2008, should be excluded as fruit

of the illegal seizure. Our determination requires an examination of whether Defendant=s

February 16 statements were Asufficiently an act of free will to purge the primary taint@ of

the February 15 illegal seizure. Wong Sun v. U.S., 371 U.S. 471, 486, 83 S.Ct. 407, 406

(1963). In Brown v. Illinois, 522 U.S. 590, 95 S.Ct. 2254 (1975), the Supreme Court

outlined the factors to be considered when determining whether a statement obtained

following an illegal arrest should be suppressed:

The Miranda warnings are an important factor, to be sure, in determining

whether the confession is obtained in exploitation of an illegal arrest. But

they are not the only factor to be considered. The temporal proximity of

the arrest and the confession, the presence of intervening circumstances,

and, particularly, the purpose and flagrancy of the official misconduct are

all relevant.

Brown, 522 U.S. 590 at 603-04, 95 S.Ct. at 2261-62.

At the outset, we must note with disapproval the policy of the MPD that is

evidenced by the testimony of investigators concerning the use of a 48-hour investigative

21

hold when Awe believe we have probable cause that we could charge somebody with a

crime but we=re not prepared to do so.@ This testimony acknowledges that the MPD has

regularly employed a method of investigatory detentions that is unconstitutional, unless

the detention is otherwise supported by probable cause. State v. Bishop, 431 S.W.3d 22,

43, n.9 (Tenn. 2014) (citations omitted) (stating that A[i]f the Memphis Police Department

is, in fact, arresting suspects without probable cause and using this 48-hour hold

procedure to gather >additional evidence to justify the arrest,= this procedure clearly runs

afoul@ of constitutional precedent concerning illegal detentions). However, it matters not

whether the arresting officers themselves believed that probable cause existed. State v.

Huddleston, 924 S.W.2d 666, 667 (Tenn. 1996) (A[An officer=s] objective belief that he

did not have enough evidence to obtain a warrant is irrelevant to whether or not probable

cause actually existed.@).

Accordingly, we agree that the record supports the trial court=s determination that,

by 1:59 a.m. on February 16 when investigators arrested Defendant on a 48-hour

investigative hold, there existed probable cause to arrest Defendant for abuse of a corpse,

as well as initiating a false report. By that time in the investigation, investigators had

obtained statements from the children and confirmed certain aspects of the statements by

evidence gathered during the uncontested search of the apartment. That evidence, at a

minimum, implicated Defendant in the disposal of the victim=s body and cover-up of her

disappearance.

Likewise, we also agree that the record supports the trial court=s determinations

that Defendant=s statement made on the return to the jail was a spontaneous utterance and

that the inculpatory statements that followed during further interrogation were made

voluntarily and with full Miranda warnings. In our view, the evidence obtained through

the children=s statements, the search of the apartment, Defendant=s spontaneous

statements to investigators and offer of further discussion, and the voluntariness of the

ensuing statements establish intervening circumstances sufficient to purge the primary

taint of the initial illegal detention.

Turning now to Defendant=s claim that the February 16 statement should be

suppressed due to an unnecessary delay in taking him before a magistrate, Gerstein v.

Pugh, 420 U.S. 103, 95 S.Ct. 854 (1975), Defendant acknowledges that this claim was

not raised in the court below and argues that this court should grant relief via plain error.

Our supreme court has held that appellate courts are not precluded from reviewing issues

that are otherwise waived under the plain error doctrine. State v. Page, 184 S.W.3d 223,

230 (Tenn. 2006). This court may only consider an issue as plain error when all five of

the following factors are met:

22

(1) the record must clearly establish what occurred in the trial court;

(2) a clear and unequivocal rule of law must have been breached;

(3) a substantial right of the accused must have been adversely affected;

(4) the accused did not waive the issue for tactical reasons; and

(5) consideration of the error is Anecessary to do substantial justice.@

State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994) (footnotes omitted);

see also State v. Smith, 24 S.W.3d 274, 283 (Tenn. 2000) (adopting the Adkisson test for

determining plain error). Furthermore, the Aplain error must be of such a great

magnitude that it probably changed the outcome of the trial.@ Adkisson, 899 S.W.2d at

642 (internal quotations and citation omitted).

AThe Fourth Amendment requires a prompt judicial determination of probable

cause as a prerequisite to the extended detention of an individual after a warrantless

arrest.@ State v. Carter, 16 S.W.3d 762, 765 (Tenn. 2000) (citing Gerstein v. Pugh, 420

U.S. 103, 114 (1975)). A judicial determination of probable cause is generally

considered Aprompt@ if it is made within forty-eight hours. County of Riverside v.

McLaughlin, 500 U.S. 44, 55-56, 111 S.Ct. 1661, 1670, 114 L.Ed.2d 49 (1991).

We determine that Defendant is not entitled to relief via the plain error doctrine

because he cannot establish that a clear and unequivocal rule of law has been breached.

The challenged statement was given within 24 hours of his arrest on the 48-hour hold, for

which we have determined that probable cause existed to charge Defendant with abuse of

a corpse and initiation of a false report. As such, the detention had not yet ripened into a

constitutional violation for failure to take Defendant to a magistrate. AObviously if the

statement was given prior to the time the detention ripened into a constitutional violation,

it is not the product of the illegality and should not be suppressed.@ See Huddleston, 924

S.W.2d at 675. Accordingly, Defendant is not entitled to relief as to this issue.

Trial Court=s Refusal to Accept Guilty Plea

Defendant contends that the trial court abused its discretion by refusing to accept

his guilty plea, made after the jury was sworn, to counts two and three of the indictment,

to wit: initiating a false report and abuse of a corpse. Defendant argues that the trial

court=s refusal to accept the plea resulted in Defendant=s being unable to exclude evidence

of other acts pursuant to Tennessee Rule of Evidence 404(b), which in turn constituted a

23

deprivation of due process and his right to present a defense. The State argues that the

trial court properly exercised its discretion in refusing to accept the plea.

After the jury was sworn, Defendant pleaded guilty to counts two and three and

then, in a bench conference, asked that any evidence concerning the false report or abuse

of a corpse be excluded pursuant to Rule 404(b). The trial judge declined to accept the

pleas, ruling that to do so would be disruptive to the judicial process because it would

require the court to engage in a full plea colloquy and 404(b) hearing after the jury had

been sworn.

AThe right to plead not guilty has inherently and constitutionally within it the right

to plead guilty.@ Lawrence v. State, 455 S.W.2d 650, 651 (Tenn. Crim. App. 1970).

AThere is, of course, no absolute right to have a guilty plea accepted.@ Santobello v. New

York, 404 U.S. 257, 262, 92 S. Ct. 495, 498 (1971). AWhen a Defendant challenges the

court=s failure to accept a plea, our obligation as an appellate court is to determine if an

abuse of discretion occurred.@ VanArsdall v. State, 919 S.W.2d 626, 630 (Tenn. Crim.

App. 1995). An abuse of discretion occurs when Ano substantial evidence supports the

conclusion of the trial judge.@ State v. Williams, 851 S.W.2d 828, 830 (Tenn. Crim.

App.), perm. app. denied (Tenn. 1992).

In State v. Chett Allen Walker, No. E2002-03093-CCA-R3-CD, 2003 WL

22258181 (Tenn. Crim. App., Oct. 2, 2003), perm. app. denied (Tenn. Mar. 8, 2004),

Defendant was charged with first degree murder, setting fire to personal property, and

abuse of a corpse. Prior to trial, Defendant pleaded guilty to setting fire to personal

property and abuse of the corpse. Nevertheless, the trial court submitted those charges to

the jury at the trial on the first degree murder charge, and the jury found the defendant

guilty of all three charges. On appeal, Defendant argued that the trial court abused its

discretion by refusing to accept the guilty pleas and submitting the two charges to the

jury. This court concluded that no abuse of discretion occurred based upon the trial

court=s determination that all the charges should be submitted to the jury because they

were included in one indictment and arose from the same criminal episode. Chett Allen

Walker, at * 7. This court stated further that

even if the trial court did abuse its discretion by refusing to accept the

Defendant=s guilty pleas, it is difficult to conceive of how such an error

could have prejudiced the Defendant, as he was found guilty by the jury of

the charges to which he intended to plea and the evidence of the other

crimes would have been admissible in the trial for the first degree murder

charge.

24

Id.

In State v. Hall, 958 S.W.2d 679 (Tenn. 1997), Defendant was charged with first

degree premeditated murder, first degree felony murder, and aggravated arson and was

facing the death penalty if convicted of first degree premeditated or felony murder.

Defendant pleaded guilty after the jury was sworn to arson and first degree felony murder.

The trial court refused to accept the pleas. Defendant maintained his guilt of arson and

first degree felony murder throughout the trial, contesting only his guilt of first degree

premeditated murder. Although Defendant did not raise the issue on appeal concerning

the trial court=s failure to accept the guilty pleas, the supreme court noted the attempted

pleas and approved the verdicts of first degree murder and aggravated arson. Hall, 958

S.W.2d at 686 n.5.

A[A] trial judge has broad discretion in controlling the course and conduct of the

trial.@ See, e.g., State v. Cazes, 875 S.W.2d 253, 260 (Tenn. 1994). In this case, the trial

court refused to accept Defendant=s impromptu guilty pleas made after the jury was sworn

based upon a finding that to do so would be disruptive to the proceedings and delay the

progress of the trial. Furthermore, as in Chett Alan Walker, we observe that Defendant

Awas found guilty by the jury of the charges to which he intended to plea and the evidence

of the other crimes would have been admissible in the trial for the first degree murder

charge@ as evidence of Defendant=s attempts to conceal the crime. Chett Alan Walker, at

*7. Even if Defendant had been allowed to plead guilty, evidence of the pleaded-to

crimes would have been admissible in Defendant=s murder trial. Accordingly, we

conclude that the trial court committed no abuse of discretion by refusing to accept

Defendant=s guilty pleas.

Admission of Victim=s Statements

Defendant presents three distinct arguments concerning the trial court=s admission

of statements made by the victim. In his first issue, he contends that the trial court

erroneously admitted, via the state of mind exception to the hearsay rule, through the

children=s testimony statements made by the victim that she threatened to telephone the

police. Tenn. R. Evid. 803(3). In his second issue, he contends that the trial court

erroneously admitted, via the state of mind exception to the hearsay rule, through the

testimony of Melvin Gaither statements made by the victim concerning her fear of

Defendant and her belief that Defendant would kill her. Tenn. R. Evid. 803(3). In his

third issue, he contends that the trial court erroneously admitted, via the public records

and forfeiture by wrongdoing exceptions to the hearsay rule, statements made by the

victim contained in the report and application for an ex parte order of protection. Tenn.

R. Evid. 804(b)(6).

25

As to the first issue, the State contends that the statements admitted through the

children=s testimonies are not hearsay because they were offered to establish the fact that

the victim communicated the threat to Defendant, thereby giving him a motive to kill the

victim, and not to establish that the victim actually intended to call the police. As to the

second issue, the State argues that the victim=s statements to Mr. Gaither were properly

admitted and A[e]ven if they were not, any error was harmless@ because the statements

were admissible to establish conduct by the victim consistent with her mental state

concerning her efforts to move herself and the children away from Defendant. As to the

third issue, the State argues that the trial court correctly applied the forfeiture by

wrongdoing exception to the hearsay rule only, noting that the trial court did not admit the

document via the business record exception to the hearsay rule.

Recently, in Kendrick v. State, 454 S.W.3d 450 (Tenn. 2015), the supreme court

explained the standard of review to be utilized when addressing the admissibility of

hearsay evidence:

The standard of review for rulings on hearsay evidence has multiple layers.

Initially, the trial court must determine whether the statement is hearsay. If

the statement is hearsay, then the trial court must then determine whether

the hearsay statement fits within one of the exceptions. To answer these

questions, the trial court may need to receive evidence and hear testimony.

When the trial court makes factual findings and credibility determinations

in the course of ruling on an evidentiary motion, these factual and

credibility findings are binding on a reviewing court unless the evidence in

the record preponderates against them. State v. Gilley, 297 S.W.3d [739,]

759-61[(Tenn. Crim. App. 2008)]. Once the trial court has made its factual

findings, the next questions B whether the facts prove that the statement (1)

was hearsay and (2) fits under one the exceptions to the hearsay rule B are

questions of law subject to de novo review. State v. Schiefelbein, 230

S.W.3d 88, 128 (Tenn. Crim. App. 2007); Keisling v. Keisling, 196 S.W.3d

703, 721 (Tenn. Ct. App. 2005).

Kendrick v. State, 454 S.W.3d 450, 479 (Tenn. 2015). Hearsay is defined as Aa

statement, other than one made by the declarant while testifying at the trial or hearing,

offered in evidence to prove the truth of the matter asserted.@ Tenn. R. Evid. 801(c). As

a general rule, hearsay is not admissible during a trial, unless the statement falls under one

of the exceptions to the hearsay rule. Tenn. R. Evid. 802.

26

Turning to the first issue, the trial court admitted through the children=s testimonies

the victim=s threats, communicated to Defendant, to telephone the police. Contrary to

Defendant=s assertion that the statements were admitted via the state of mind exception to

the hearsay rule, the record reflects that the trial court admitted these statements as

non-hearsay and as probative of the effect that the victim=s statements had on Defendant

as the listener. This court has noted that when an extrajudicial statement is offered to

prove the effect that the statement had on the listener, it is not offered as truth of the

matter asserted and is, therefore, not hearsay. State v. Carlos Jones, No.

W2008-02584-CCA-R3-CD, 2010 WL 3823028, at *14-15 (Tenn. Crim. App., Sept. 30,

2010). Accordingly, we conclude that the statements admitted through the children=s

testimonies were properly admitted as non-hearsay and were probative of the effect they

had on Defendant as the listener.

Turning to the second issue, the trial court admitted the victim=s statements made

to Mr. Gaither as probative of the victim=s mental state concerning her desire and efforts

to protect herself and her children from Defendant. Tennessee Rule of Evidence 803(3)

provides the following exception to the general rule excluding the admission of hearsay

evidence:

A statement of the declarant=s then existing state of mind, emotion,

sensation, or physical condition (such as intent, plan, motive, design, mental

feeling, pain, and bodily health) . . . .

Tenn. R. Evid. 803(3). Pursuant to this rule, otherwise inadmissible hearsay may be

admitted to establish the declarant=s conduct consistent with the declarant=s mental state at

the time that the statement was made. We agree that the victim=s hearsay statements

made to Mr. Gaither were admissible pursuant to Rule 803(3) to establish the victim=s

mental state and were probative of the victim=s attempts to leave Defendant and her

efforts to protect herself and her children from Defendant.

Turning to the third issue, the statements contained in the order of protection

application include: that Defendant assaulted the victim when she informed him that she

intended to leave with the children, that the victim suspected that Defendant was

molesting K.T., that the victim did not want Defendant around herself or the children, and

that Defendant threatened to retaliate if the victim kept K.T. from him. Applying the

forfeiture by wrongdoing exception to the hearsay rule, the trial court found that, by the

time that the victim provided the statements in the order of protection application, the

relationship between the victim and Defendant Ahad deteriorated to such a point@ that the

State was able to show by a preponderance of the evidence that Defendant=s motive for

killing the victim was to prevent her from prosecuting him for assaultive offenses

27

committed against herself and K.T. Contrary to Defendant=s argument on appeal, the

trial court did not admit the statements via the public records exception to the rules of

evidence, but the trial court did admit the statements as admissible hearsay pursuant to the

forfeiture by wrongdoing exception to the hearsay rule.

Tennessee Rule of Evidence 804(b)(6) provides:

A statement [made by an unavailable declarant] offered against a party that

has engaged in wrongdoing that was intended to and did procure the

unavailability of the declarant as a witness.

Tenn. R. Evid. 804(b)(6). This case is similar to State v. Ivy, 188 S.W.3d 132, 146

(Tenn. 2006), wherein the trial court found that Defendant killed the declarant-victim in

order to prevent her from going to the police about an aggravated assault he had

committed against the declarant-victim. The court admitted the statements of the

declarant-victim concerning the aggravated assault. The record reflects that the trial

court made the requisite findings before admitting the statements pursuant to the

forfeiture by wrongdoing exception to the hearsay rule. The record does not

preponderate against the trial court=s factual findings, and on de novo review, we

conclude that the victim=s statements contained in the order of protection application were

admissible pursuant to the forfeiture by wrongdoing exception to the hearsay rule. Thus,

Defendant is not entitled to relief as to any of the challenges to the trial court=s admitting

the victim=s statements.

Admission of Evidence of Other Acts

Defendant contends that the trial court erroneously admitted evidence of other acts

in violation of Tennessee Rule of Evidence 404(b). He specifically objects to the

testimony of J.W.I. and J.S.I that Defendant broke the victim=s cellular phone on one

occasion and that they both saw the victim red-faced after hearing a Aslap@ while

overhearing Defendant and victim arguing. Defendant claims that the evidence was

inadmissible character evidence, admitted to show that Defendant committed previous

assaults and was dangerous. Defendant also objects to K.T.=s testimony concerning the

alleged acts of sexual abuse committed by Defendant because, he argues, the prior acts

were not established by clear and convincing proof.

The State argues that the evidence elicited from the brothers is relevant to

Defendant=s motive to kill the victim because in each instance the bad acts occurred

amidst the victim=s threats to telephone the police. As to the evidence of sexual acts

28

committed against K.T., the State argues that the acts were established by clear and

convincing evidence and were probative of Defendant=s motive to kill the victim.

Rule 404(b) of the Tennessee Rules of Evidence provides that:

Evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity with the

character trait. It may, however, be admissible for other purposes.

In State v. Mallard, 40 S.W.3d 473, 487 (Tenn. 2001), our supreme court held that

Aevidence that the defendant has committed some other crime wholly independent of that

for which he is charged, even though it is a crime of the same character, is usually not

admissible because it is irrelevant.@ Nonetheless, where the prior crime Ais relevant to

some matter actually in issue in the case on trial and if its probative value as evidence of

such matter in issue is not outweighed by its prejudicial effect upon the defendant, then

such evidence may be properly admitted.@ Mallard, 40 S.W.3d at 487. Additionally,

this court has previously stated, A[o]nly in an exceptional case will another crime, wrong,

or bad act be relevant to an issue other than the accused=s character. Such exceptional

cases include identity, intent, motive, opportunity, or rebuttal of mistake or accident.@

State v. Luellen, 867 S.W.2d 736, 740 (Tenn. Crim. App. 1992).

To admit such evidence, Rule 404(b) specifies the following:

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

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

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

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

(3) The court must find proof of the other crime, wrong, or act to be clear

and convincing; and

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

by the danger of unfair prejudice.

Tenn R. Evid. 404(b).

AThe safeguards in Rule 404(b) ensure that defendants are not convicted for

charged offenses based on evidence of prior crimes, wrongs or acts.@ State v. Gilley, 173

S.W.3d 1, 5 (Tenn. 2005) (citing State v. James, 81 S.W.3d 751, 758 (Tenn. 2002))

29

(emphasis in original). Should a review of the record indicate that the trial court

substantially complied with the requirements of Rule 404(b), the trial court=s admission of

the challenged evidence will remain undisturbed absent an abuse of discretion. James,

81 S.W.3d at 759; State v. Dubose, 953 S.W.2d 649, 652 (Tenn. 1997).

Defendant concedes that the trial court conducted the requisite inquiry before

admitting the other act evidence. The trial court determined that the acts were

established by clear and convincing evidence, that they were probative of Defendant=s

motive to kill the victim B to conceal and continue his sexual abuse of K.T. B and that the

probative value of the evidence was not outweighed by the danger of unfair prejudice.

Although the trial court admitted the prior acts of abuse, the trial court also limited

the State and its witnesses from referring to the sexual acts committed against K.T. as

Arape@ because K.T. did not specify in her pretrial testimony whether the sexual activity

occurred with her consent. At trial, K.T. testified extensively that the abuse occurred

without her consent. She recounted the sexual acts committed by Defendant, the

frequency of the acts, and her fear of Defendant. Overall, her testimony established that

the sexual activity occurred without her consent. To the extent that Defendant now

complains that K.T. characterized the abuse as Arape@ once during her testimony, we

determine that single reference is of no consequence to our analysis concerning the

propriety of the trial court=s ruling.

The State=s theory at trial was that Defendant killed the victim in an effort to

conceal and continue the sexual abuse of K.T. when the victim threatened to telephone

the police. In that vein, the testimony of J.S.I. and J.W.I. concerning Defendant=s two

prior assaults on the victim, which occurred during arguments about Defendant=s

relationship with K.T. and when the victim threatened to telephone the police, were

highly probative of Defendant=s motive. Likewise, K.T.=s testimony concerning the

sexual abuse she suffered from Defendant was highly probative of motive. The sexual

acts were established by clear and convincing evidence and corroborated at trial by the

testimony of both J.S.I. and J.W.I. who testified at trial to witnessing inappropriate

conduct between Defendant and K.T. We conclude that the trial court did not abuse its

discretion by admitting this evidence. Accordingly, Defendant is not entitled to relief as

to this issue.

Admission of Photographs of Bone Fragments

Defendant argues that the trial court erroneously admitted photographs of bone

fragments that he claims were gruesome and inflammatory. The State argues that the

photographs were in no manner gruesome. The State asserts that they were relevant to

30

Doctor Symes= testimony concerning the saw used to dismember the victim and that the

trial court committed no abuse of discretion by admitting the photographs.

It is within a trial court=s discretion to admit photographic evidence at trial, and

this court will not reverse the trial court=s determination absent an abuse of discretion.

State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). However, before a photograph may

be admitted into evidence, the relevance of the photograph must be established, and the

probative value of the photograph must outweigh any prejudicial effect. State v. Braden,

867 S.W.2d 750, 758 (Tenn. Crim. App. 1993). Doctor Symes testified concerning the

manner in which the victim=s feet, hands, and neck/head were removed. He utilized the

photographs of bone fragments to illustrate and explain that the cuts were consistent with

having been made by a standard skill saw blade. The photographs were not gruesome in

any way and merely showed the forensic samples examined by Doctor Symes as they

were packaged in plastic bags. We conclude that the photographs were relevant to the

manner in which Defendant dismembered the victim=s body, and we further determine

that the admission of the photographs was not outweighed by any prejudicial effect.

Accordingly, Defendant is not entitled to relief on this issue.

Alleged Discovery Violation

Defendant argues that the trial court should have excluded crime scene

photographs of luminol testing that were not provided during discovery. See Tenn. R.

Crim. P. 16(a)(1)(F). The State argues that the record does not establish that a discovery

violation occurred and that, assuming the photographs were not provided, Defendant

cannot establish any prejudice from the alleged discovery violation.

Tennessee Rule of Criminal Procedure 16(a)(1)(F)(iii) provides, in pertinent part:

Upon a defendant=s request, the state shall permit the defendant to inspect

and copy or photograph books, papers, documents, photographs, . . . if the

item is within the state=s possession, custody, or control and:

...

(iii) the government intends to use the item in its case-in-chief at

trial.

Tenn. R. Crim. P. 16(a)(1)(F)(iii). To enforce the rule, Rule 16(d)(2), provides that if

there has been noncompliance, the trial court may order the offending party to permit the

discovery or inspection, grant a continuance, prohibit the introduction of the evidence not

disclosed or enter such other order as the court deems just under the circumstances.

31

A[T]here is no mandatory exclusion that follows a violation.@ State v. Sherri Mathis,

M2009-00123-CCA-R3-CD, 2012 WL4461767, at *37 (Tenn. Crim. App., Sept. 26,

2012), perm. app. denied (Tenn. Feb. 25, 2013). Indeed, exclusion of the evidence is

disfavored.

[E]vidence should not be excluded except when it is shown that a party is

actually prejudiced by the failure to comply with the discovery order and

that the prejudice cannot be otherwise eradicated. See Rule 16(d)(2). The

exclusionary rule should not be invoked merely to punish either the State or

the defendant for the deliberate conduct of counsel in failing to comply with

a discovery order. The court=s contempt powers should be employed for

this purpose. Rules 12 and 16, as well as the other Rules of Criminal

Procedure[,] were adopted to promote justice; they should not be employed

to frustrate justice by lightly depriving the State or the defendant of

competent evidence.

State v. Garland, 617 S.W.2d 176, 185-86 (Tenn. Crim. App. 1981); State v. James, 688

S.W.2d 463, 466 (Tenn. Crim. App. 1984); State v. Briley, 619 S.W.2d 149, 152 (Tenn.

Crim. App. 1981).

At trial, Defendant objected to the introduction of the photographs during

Investigator Garey=s testimony concerning his use of luminol to detect blood evidence in

the Prince Rupert apartment. The State asserted that the photographs had been provided

during discovery but had possibly shown up very dark on the compact disc provided to

Defendant. The trial court took the issue under advisement pending Defendant=s

providing the compact disc of discovery items to the court for review and a determination

of whether the items had, in fact, been provided. The trial court admitted the

photographs, and the alleged discovery violation was not revisited until the motion for

new trial hearing.

At the motion for new trial hearing, Defendant maintained that he never received

the photographs and that had he received the photographs, he would have been able to

refute Investigator Garey=s testimony that luminol testing produced a degradation of

DNA material precluding any serology analysis of the Prince Rupert apartment hallway

bathroom. The trial court stated

I remember the one thing that came up was that ya=ll said you had

received them. The photographs were basically black. They looked

like over-exposed photographs that nobody could tell what they were.

And when I first saw the one on the screen, I said well, that=s just a B

32

there=s nothing there, but then there was some faint glow or something

like that they testified to.

There is no indication in the record that the trial court ever reviewed the compact disc that

was provided to Defendant in discovery.

In our opinion, Defendant failed to establish that a discovery violation occurred

relative to the crime scene photographs. Assuming for the sake of argument that the

photographs were not provided, we further conclude that Defendant failed to establish

any prejudice requiring exclusion of the photographs. Defendant confessed to

dismembering the victim=s body in the hallway bathroom. Indeed, during closing

argument, defense counsel acknowledged A[o]f course there=s going to be blood and

lumin[o]l in [the apartment]. I=d be shocked if they hadn=t found it.@ Furthermore,

Investigator Garey could have testified regarding the luminol testing and the degradation

of DNA evidence without the use of the photographs, which were only marginally

instructive to show the results of the luminol testing. The overall effect of the

photographs is neutral at best. Therefore, Defendant is not entitled to relief on this issue.

Improper Closing Argument

Defendant argues that the State=s improper closing argument deprived him of a fair

trial, citing to four instances of improper argument:

(1) the State=s reference to the Arape,@ after the trial court had precluded the

use of the word Arape@ prior to trial;

(2) the State=s characterization of Defendant as Amean;@

(3) the State=s characterization of Defendant as having Anever shed a tear@

for the victim; and

(4) the State=s utilization of a circular saw during rebuttal argument.

The State concedes that the reference to rape violated the trial court=s pretrial order, but

the State argues that the single reference cannot be prejudicial in light of K.T.=s testimony

that Defendant had sex with her every other day, that she did not want to have sex with

him, that he threatened her if she refused, and that he physically forced her to have sex

when she protested. As to the other instances of alleged improper argument, the State

contends that Defendant failed to object contemporaneously to them or include them in

his motion for new trial.

33

All of the instances of alleged improper argument occurred during the State=s

rebuttal argument. The record reflects that the State utilized the saw during rebuttal

argument by demonstrating a cutting motion as the power was turned on twice B once

while discussing the fear K.T. must have experienced by seeing her mother dismembered

and once more when describing Defendant as being Amean.@ The State then argued Athe

only person who shed one tear for Charlene Gaither was when [K.T.] sat in this stand and

talked about her mother dying and she cried. This man never shed a tear for Charlene

Gaither B never B never.@ Later, the State argued

Instead he goes and makes sure everything is clean but he makes his

kids do the cleaning. This is a nightmare. Horror films are supposed to

end, you=re supposed to be able to go home after the horror film. These

children lived in a horror film. Twelve year old [K.T.] sat there and

watched her mother be cut up and then a knife put to her throat and she was

threatened to be killed, after she had been raped repeatedly by this man.

Defendant failed to object contemporaneously to any of these instances of alleged

improper argument. At the motion for new trial hearing, Defendant raised as instances

of improper argument only the State=s characterization of him as Amean@ and the reference

to Arape.@

As previously discussed, Tennessee Rule of Appellate Procedure 36(b) provides

that A[w]hen necessary to do substantial justice, [this] court may consider an error that has

affected the substantial rights of a party at any time, even though the error was not raised

in the motion for a new trial or assigned as error on appeal.@ See also Tenn. R. Evid.

103(d). As stated previously, our supreme court has held that appellate courts are not

precluded from reviewing issues that are otherwise waived under the plain error doctrine.

Page, 184 S.W.3d at 230. As previously explained, this court may only consider an

issue as plain error, however, when all five of the following factors are met:

(1) the record must clearly establish what occurred in the trial court;

(2) a clear and unequivocal rule of law must have been breached;

(3) a substantial right of the accused must have been adversely affected;

(4) the accused did not waive the issue for tactical reasons; and

(5) consideration of the error is Anecessary to do substantial justice.@

34

Adkisson, 899 S.W.2d at 641-42 (footnotes omitted); see also Smith, 24 S.W.3d at 283

(adopting the Adkisson test for determining plain error). Furthermore, the Aplain error

must be of such a great magnitude that it probably changed the outcome of the trial.@

Adkisson, 899 S.W.2d at 642 (internal quotations and citation omitted).

It is well-established that closing argument is an important tool for both parties

during a trial; thus, counsel is generally given wide latitude during closing argument, and

the trial court is granted wide discretion in controlling closing arguments. See State v.

Carruthers, 35 S.W.3d 516, 577-78 (Tenn. 2000) (appendix). ANotwithstanding such,

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).

In Goltz, 111 S.W.3d at 6, this court outlined Afive general areas of prosecutorial

misconduct@ that can occur during closing argument:

(1) intentionally misleading or misstating the evidence;

(2) expressing a personal belief or opinion as to the truth or falsity of the

evidence or defendant=s guilt;

(3) making statements calculated to inflame the passions or prejudices of

the jury;

(4) injecting broader issues than the guilt or innocence of the accused; and

(5) intentionally referring to or arguing facts outside the record that are not

matters of common public knowledge.

AIn determining whether statements made in closing argument constitute reversible error,

it is necessary to determine whether the statements were improper and, if so, whether the

impropriety affected the verdict.@ State v. Pulliam, 950 S.W.2d 360, 367 (Tenn. Crim.

App. 1996). In connection with this issue, we must examine the following factors:

(1) the conduct complained of viewed in context and in light of the facts

and circumstances of the case[;]

(2) the curative measures undertaken by the court and the prosecution[;]

35

(3) the intent of the prosecutor in making the statement[;]

(4) the cumulative effect of the improper conduct and any other errors in the

record[; and]

(5) the relative strength or weakness of the case.

Id. (quoting Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976)).

At the motion for new trial hearing, the trial court reasoned that the pretrial

prohibition of the use of the word Arape@ stemmed from K.T.=s pretrial testimony and the

trial court=s understanding Athat the child was not going to say that [the sexual contact]

was without consent.@ The trial court determined that the single reference to rape did not

amount to improper argument when viewed in light of K.T.=s testimony at trial that the

sexual contact was without consent. We agree that the reference to rape was not

improper in light of K.T.=s testimony at trial and that Defendant is not entitled to relief as

to this allegation.

The trial court determined that the State=s characterization of Defendant as Amean@

was not improper or prejudicial in light of the overall arguments by both parties. We

also agree with this determination and conclude that Defendant is not entitled to relief as

to this allegation.

As to the allegation concerning the State=s reference in rebuttal argument that

Defendant Ahad not shed a tear@ for the victim, Defendant failed to object to this statement

at trial and also failed to raise it in his motion for new trial. We will not review this

alleged misconduct.

Defendant contends that the State=s use during rebuttal argument of the circular

saw, which was turned on, to demonstrate how Defendant dismembered the victim=s body

in K.T.=s presence amounted to improper argument intended to inflame the jury. While

we caution that the use of exhibits may, in certain circumstances, amount to an improper

use of an exhibit that would tend to inflame the jury, see, e.g., State v. Payne, 791 S.W.2d

10, 20 (Tenn. 1990), we conclude that the State=s use of the circular saw was not improper

in this case. The evidence established Defendant=s use of the saw to dismember the

victim=s body in the presence of K.T. The State=s demonstration during closing

argument, while gruesome, was based upon the evidence presented at trial and was not

solely a demonstration made by the prosecution Acalculated to inflame the passions or

prejudice of the jury.@ Goltz, 11 S.W.3d at 6; cf. State v. Lemaricus Devall Davidson,

E2013-00394-CCA-R3-DD, 2015 WL 1087126, at *26 (Tenn. Crim. App., Mar. 10,

36

2015) (admission of photographs not error when, although photographs Awere disturbing,

we are mindful that the injuries inflicted upon the victims were also disturbing@).

Accordingly, Defendant is not entitled to relief as to any of his allegations of improper

argument.

Sufficiency of the Evidence

Defendant argues that the evidence is insufficient to support his conviction for first

degree murder because there is insufficient proof of premeditation, other than the

uncorroborated testimony of K.T., whom Defendant characterizes as an accomplice. The

State argues that K.T. was not an accomplice and that, therefore, the proof is more than

sufficient to sustain Defendant=s conviction of premeditated first degree murder.

When an accused challenges the sufficiency of the convicting evidence, our

standard of review is whether, after reviewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. Jackson v. Virginia, 99 S. Ct. 2781, 2789 (1979).

The trier of fact, not this Court, resolves questions concerning the credibility of witnesses

and the weight and value to be given the evidence as well as all factual issues raised by

the evidence. State v. Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995). Nor may

this Court reweigh or re-evaluate the evidence. State v. Cabbage, 571 S.W.2d. 832, 835

(Tenn. 1978). On appeal, the State is entitled to the strongest legitimate view of the

evidence and all inferences therefrom. Id. Because a verdict of guilt removes the

presumption of innocence and replaces it with a presumption of guilt, the accused has the

burden in this Court of illustrating why the evidence is insufficient to support the verdict

returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

A[D]irect and circumstantial evidence should be treated the same when weighing the

sufficiency of [the] evidence.@ State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011).

Premeditated first degree murder is A[a] premeditated and intentional killing of

another[.]@ T.C.A. ' 39-13-202(a)(1). Premeditation Ais 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.@ T.C.A. ' 39-13-202(d). The

element of premeditation is a question of fact to be determined by the jury. State v.

Suttles, 30 S.W.3d 252, 261 (Tenn. 2000); State v. Bland, 958 S.W.2d 651, 660 (Tenn.

1997). Premeditation Amay be established by proof of the circumstances surrounding the

killing.@ Suttles, 30 S.W.3d at 261. The Tennessee Supreme Court noted that there are

several factors which tend to support the existence of premeditation, including the use of

a deadly weapon upon an unarmed victim, the fact that the killing was particularly cruel,

declarations of an intent to kill by the defendant, evidence of procurement of a weapon,

37

the making of preparations before the killing for the purpose of concealing the crime, and

calmness immediately after the killing. Id.; see Bland, 958 S.W.2d at 660.

Our supreme court recently explained the accomplice corroboration rule as follows

When the only proof of a crime is the uncorroborated testimony of one or

more accomplices, the evidence is insufficient to sustain a conviction as a

matter of law. State v. Collier, 411 S.W.3d 886, 894 (Tenn. 2013) (citing

State v. Little, 402 S.W.3d 202, 211-12 (Tenn .2013)). This Court has

defined the term Aaccomplice@ to mean Aone who knowingly, voluntarily,

and with common intent with the principal unites in the commission of a

crime.@ Id. (citing State v. Bough, 152 S.W.3d 453, 464 (Tenn. 2004);

Clapp v. State, 94 Tenn. 186, 30 S.W. 214, 216 (1895)). The test for

whether a witness qualifies as an accomplice is A>whether the alleged

accomplice could be indicted for the same offense charged against the

defendant.=@ Id. (quoting Monts v. State, 214 Tenn. 171, 379 S.W.2d 34,

43 (1964)). Although a defendant cannot be convicted solely upon the

uncorroborated testimony of an accomplice, Acorroborative evidence may be

direct or entirely circumstantial, and it need not be adequate, in and of itself,

to support a conviction; it is sufficient to meet the requirements of the rule if

it fairly and legitimately tends to connect the defendant with the commission

of the crime charged.@ State v. Bane, 57 S.W.3d 411, 419 (Tenn. 2001)

(quoting State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994)).

Corroborative evidence must lead to the inferences that a crime has been

committed and that the defendant is implicated in the crime. Id.

State v. Jones, 450 S.W.3d 866, 887-88 (Tenn. 2014) (emphasis in original).

The question of who determines whether a witness is an accomplice depends upon

the evidence introduced during the course of a trial. Bethany v. State, 565 S.W.2d 900,

903 (Tenn. Crim. App. 1978). When the undisputed evidence clearly establishes the

witness is an accomplice as a matter of law, the trial court, not the jury, must decide this

issue. State v. Lawson, 794 S.W.2d 363, 369 (Tenn. Crim. App. 1990). On the other

hand, if the evidence adduced at trial is unclear, conflicts, or is subject to different

inferences, the jury, as the trier of fact, is to decide if the witness is an accomplice. Id.

Under either scenario, the issue of whether the witness=s testimony has been sufficiently

corroborated becomes a matter entrusted to the jury as the trier of fact. State v. Bigbee,

885 S.W.2d 797, 803 (Tenn. 1994).

Notably, Defendant did not request a jury instruction concerning the accomplice

corroboration rule. That being said, we agree with the State that K.T. was not an

38

accomplice in this case. The evidence at trial established that twelve-year-old K.T. was

victimized and controlled by Defendant in the months leading up to the victim=s death.

K.T. testified that she saw Defendant obtain a small knife from the kitchen, approach the

victim in the bedroom, and slit the victim=s throat when the victim threatened to telephone

the police. K.T. watched in stunned silence as Defendant held the victim until she died.

She stated that Defendant then threatened her life if she did not assist him in disposing of

the victim=s body. The proof does not establish that K.T. Aknowingly, voluntarily, and

with common intent with the principal unite[d] in the commission of a crime.@ Collier,

411 S.W.3d at 894. To the contrary, the evidence at trial established that K.T. was yet

another victim of Defendant=s control and domination. Furthermore, even if we were to

consider K.T. an accomplice, J.W.I. and J.S.I.=s testimonies, as well as the physical

evidence collected at the apartment, all corroborate K.T.=s testimony implicating

Defendant in the premeditated first degree murder of the victim. Therefore, we conclude

that there is sufficient evidence to support Defendant=s conviction of first degree murder.

Accordingly, Defendant is not entitled to relief as to this issue.

SENTENCING PHASE ISSUES

Discovery of Investigation of James Hawkins, Sr.

Defendant contends that the trial court erred by failing to require the State to

provide discovery related to the State=s investigation of James Hawkins, Sr., concerning

the sexual abuse of Defendant=s sisters. Evoking Brady v. Maryland, Defendant argues

that the State=s failure to provide the investigative file deprived Defendant of information

relevant to mitigation. He claims that evidence in the file could have established

Defendant=s exposure to abuse and violence as a child. The State counters that

Defendant has failed to establish prejudice from the denial of access to the prosecution=s

investigative file of Defendant=s father because Defendant presented ample evidence of

his father=s alleged sexual abuse of Defendant=s sisters.

In Brady v. Maryland, 373 U.S. 83 (1963), the United States Supreme Court held

that Asuppression 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.@ Brady, 373 U.S. at 87.

The Tennessee Supreme Court has held that a defendant must show four elements in

order to establish a Brady violation by the State:

(1) that the defendant requested the information (unless the evidence is

obviously exculpatory, in which case the State is bound to release the

information whether requested or not);

39

(2) that the State suppressed the information;

(3) that the information was favorable to the accused; and

(4) that the information was material.

Johnson v. State, 38 S.W.3d 52, 56 (Tenn. 2001).

AEvidence >favorable to an accused= includes evidence deemed to be exculpatory in

nature and evidence that could be used to impeach the State=s witnesses.@ Id. at 55-56

(emphasis added). AEvidence is deemed to be material when >there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different.=@ Id. at 58 (quoting State v. Edgin, 902 S.W.2d

387, 390 (Tenn. 1995). In determining whether a defendant has adequately proven the

materiality of favorable evidence suppressed by the State, Aa reviewing court must

determine whether the defendant has shown that >the favorable evidence could reasonably

be taken to put the whole case in such a different light as to undermine the confidence of

the verdict.=@ Johnson, 38 S.W.3d at 58 (quoting Irick v. State, 973 S.W.2d 643, 657

(Tenn. Crim. App. 1998).

Ms. Stanback, the mitigation specialist, testified concerning Mr. Hawkins= sexual

abuse of Defendant=s sisters. Likewise, she also testified concerning the pending

criminal investigation. Ms. Thomas, Defendant=s mother, testified that she had only

recently learned of the sexual abuse allegations and that Defendant=s father was only

involved in a limited fashion during Defendant=s childhood. Under these circumstances,

we agree that Defendant has failed to establish the materiality of the pending criminal

investigation. Accordingly, Defendant is not entitled to relief as to this issue.

Special Requested Jury Instruction Regarding Presumptive Sentences

Defendant argues that the trial court should have instructed the jury that Athey were

to presume that a life sentence, a sentence of life without the possibility of parole, and a

death sentence would be carried out in accordance with the laws of the state.@ The State

correctly notes that this issue has been ruled to be without merit. State v. Thomas, 158

S.W.3d 361, 389-90 (Tenn. 2005).

Constitutional Attacks on the Death Penalty

40

Defendant makes myriad constitutional arguments concerning Tennessee=s death

penalty statute in general, as well as the imposition of the death penalty in this case.

Although not raised in this order in Defendant=s brief, we will address each one in turn for

the sake of clarity and cogency of our discussion.

Defendant argues that Tennessee Code Annotated section 40-23-114, concerning

the implementation of a lethal injection protocol, is an unconstitutional delegation of

legislative authority to the executive branch by permitting Athe department of correction . .

. to promulgate necessary rules and regulations to facilitate the implementation@ of a death

sentence. T.C.A. ' 40-23-114(c). The State argues that the legislature has determined a

conviction of first degree murder accompanied by aggravating circumstances is

punishable by death and that the method of execution shall be lethal injection. Allowing

the department of correction to establish a protocol for the implementation of lethal

injection does not constitute an unconstitutional delegation of legislative authority. See

Abdur=Rahman v. Bredesen, 181 S.W.3d 292, 309-310 (Tenn. 2005) (holding that the

department of correction may be tasked with determining protocol without violating

substantive or procedural due process).

Defendant argues that Tennessee Code Annotated section 39-13-204(h), the

unanimity requirement of the capital sentencing statute, is unconstitutional because it

precludes an instruction regarding the effect of a failure to agree on punishment. The

State fails to address this argument. In any event, this issue has been held to be without

merit. State v. Vann, 976 S.W.2d 93, 118 (Tenn. 1998).

Citing to Apprendi v. New Jersey, 530 U.S. 466, 494 (2000), Defendant argues that

the aggravating circumstances sought by the State to support the imposition of the death

penalty must be indicted by the grand jury. The State correctly notes that this issue has

been ruled to be without merit. Thomas, 158 S.W.3d at 389-90.

Defendant argues that the trial court=s use of the pattern instruction concerning

victim impact evidence amounted to an unconstitutional intrusion into the province of the

jury. The State correctly notes that this issue has been ruled to be without merit. State

v. Banks, 271 S.W.3d 90, 171-72 (Tenn. 2008).

Defendant argues that the death sentence is arbitrary and disproportionate.

Specific to the application of aggravating circumstances in this case, he contends that the

sentence is arbitrary because the trial court failed to determine whether his prior

convictions for aggravated assault involved the use of violence as required by State v.

Sims, 45 S.W.3d 1 (2001). The State correctly notes that Defendant failed to avail

himself of a Sims hearing when offered by the trial court, and thereby waived any

41

objection to the consideration of the aggravated assault convictions as prior violent

felonies. In any event, the ten remaining aggravated robbery convictions would render

the inclusion of the seven aggravated assault convictions harmless error, if error at all.

Defendant also contends that the death sentence is disproportionate when

compared to a broadened pool of first degree murder cases. This challenge to the

appellate review of capital cases have also been rejected. State v. Cazes, 875 S.W.2d

253, 270-71 (Tenn. 1994) (rejecting certain arguments concerning proportionality

review); State v. Pruitt, 415 S.W.3d 180 (Tenn. 2013) (refusal to broaden the pool of

cases considered in proportionality review).

Defendant challenges the constitutionality of the death penalty in that aggravating

circumstances (i)(2), (i)(5), (i)(6), and (i)(7) fail to narrow meaningfully the class of

eligible offenders. The State correctly notes that Defendant lacks standing to object to

the application of circumstances (i)(5), (i)(6), and (i)(7) because they were neither sought

nor found his case. As to his challenge to the application of (i)(2), that the aggravating

circumstance is overbroad because it has been construed to include as a prior conviction

any conviction which occurs prior to the sentencing hearing regardless of whether the

offense occurred prior to the first degree murder for which the defendant is being

sentenced, this argument must also fail. State v. Nichols, 877 S.W.2d 722, 736 (Tenn.

1994). Furthermore, we note that the prior convictions that were utilized in this case

concerned offenses that occurred years before the present offenses and, therefore, fall

squarely into that category of prior convictions to which Defendant seeks to limit the

application of the circumstance.

Defendant contends that prosecutorial discretion in seeking the death penalty

results in the unconstitutional and discriminatory imposition of the death penalty. This

argument has been rejected. Banks, 271 S.W.3d at 155-58.

Finally, Defendant contends that the pattern jury instructions create the mistaken

belief that jurors must agree unanimously on mitigating circumstances. This challenge to

the pattern jury instruction has likewise been rejected. Banks, 271 S.W.3d at 159.

Proportionality Review

In reviewing a case where a defendant has been sentenced to death, this court must

apply a comparative proportionality analysis. Tennessee Court Annotated section

39-13-206 provides that Athe reviewing court shall determine whether . . . the sentence of

death is excessive or disproportionate to the penalty imposed in similar cases, considering

both the nature of the crime and the defendant.@ T.C.A. ' 39-13-206.

42

Our supreme court has explained comparative proportionality review as follows:

In conducting a comparative proportionality review, we begin with

the presumption that the sentence of death is proportional with the crime of

first degree murder. State v. Hall, 958 S.W.2d 679 (Tenn. 1997). A

sentence of death may be found disproportionate if the case being reviewed

is Aplainly lacking in circumstances consistent with those in similar cases in

which the death penalty has previously been imposed.@ Id. (citing State v.

Ramsey, 864 S.W.2d 320, 328 (Mo. 1993)). A sentence of death is not

disproportionate merely because the circumstances of the offense are

similar to those of another offense for which a defendant has received a life

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

Carter, 714 S.W.2d 241, 251 (Tenn. 1986)). Our inquiry, therefore, does

not require a finding that a sentence Aless than death was never imposed in a

case with similar characteristics.@ Bland, 958 S.W.2d at 665. Our duty Ais

to assure that no aberrant death sentence is affirmed.@ Id. (citing State v.

Webb, 238 Conn. 389, 680 A.2d 147, 203 (Conn. 1996)).

Our proportionality review is neither a rigid nor an objective test.

Hall, 958 S.W.2d at 699. There is no Amathematical formula or scientific

grid,@ and we are not bound to consider only cases in which the same

aggravating circumstances were found applicable by a jury or trier of fact.

Id.; Brimmer, 876 S.W.2d at 84. This Court considers many variables

when choosing and comparing cases. Bland, 958 S.W.2d at 667. Among

these variables are: (1) the means of death; (2) the manner of death (e.g.,

violent, torturous, etc.); (3) the motivation for the killing; (4) the place of

death; (5) the similarity of the victims= circumstances including age,

physical and mental conditions, and the victims= treatment during the

killing; (6) the absence or presence of premeditation; (7) the absence or

presence of provocation; (8) the absence or presence of justification; and (9)

the injury to and effects on non-decedent victims. Id.; Hall, 958 S.W.2d at

699. Factors considered when comparing characteristics of defendants

include: (1) the defendants= prior criminal record or prior criminal activity;

(2) the defendants= age, race, and gender; (3) the defendants= mental,

emotional or physical condition; (4) the defendants= involvement or role in

the murder; (5) the defendants= cooperation with authorities; (6) the

defendants= remorse; (7) the defendants= knowledge of helplessness of

victim(s); and (8) the defendants= capacity for rehabilitation. Id.

State v. Hall, 976 S.W.2d 121, 135 (Tenn. 1998).

43

We have compared the circumstances of the present case with the circumstances of

similar cases and conclude that the sentence of death in this case is proportionate to the

sentences imposed in similar cases. See, e.g., State v. Davidson, 121 S.W.3d 600 (Tenn.

2003) (affirming death sentence where defendant had committed prior violent felonies

and had severed the victim=s head and hand); Terry v. State, 46 S.W.3d 147 (Tenn. 2001)

(affirming death sentence where defendant severed the victim=s head and hand); State v.

Bondurant, 4 S.W.3d 662 (Tenn. 1999) (affirming death sentence where defendant

dismembered the victim=s body). Likewise, the application of the prior violent felony

aggravating circumstance B a circumstance which the supreme court has described as

Amore qualitatively persuasive and objectively reliable than others,@ State v. Howell, 868

S.W.2d 238, 261 (Tenn. 1993) B lends further support to our conclusion that the sentence

imposed in this case is proportionate to sentences imposed in similar cases.

Sentencing on Related Felonies

Defendant argues that the trial court=s imposition of sentences for the remaining

felonies is excessive in both length and manner of service. At the sentencing hearing

concerning the false report and abuse of a corpse convictions, the trial court sentenced

Defendant as a Career Offender to a total effective sentence of 18 years. The trial court

also ordered the sentences to be served consecutively based upon its findings that

Defendant was a professional criminal and qualified as a dangerous offender.

First, Defendant argues that the State=s notice to seek enhanced punishment was

misleading because the notice cited to the code section concerning Career Offender but

indicated in the language of the notice that the State sought to sentence Defendant as a

Persistent Offender. The State argues that the typographical inconsistency on the notice

to seek enhanced punishment did not render it invalid and, in any event, Defendant

stipulated at the penalty phase of the trial the accuracy of his criminal history.

The purpose of the notice requirement is to provide a defendant with Afair notice@

that he is Aexposed to other than standard sentencing.@ State v. Adams, 788 S.W.2d 557

(Tenn. 1990). It is intended to facilitate plea-bargaining, to inform decisions to enter a

guilty plea, and to assist with decisions regarding trial strategy. When a detail of the

required information is omitted or incorrect, the inquiry should be whether the notice was

Amaterially misleading.@ Id. at 559. The supreme court specifically held that Awhen the

State has substantially complied with Section 40-35-202(a), an accused has a duty to

inquire about an ambiguous or incomplete notice and must show prejudice to obtain

relief. But it is the State=s responsibility to assert the appropriate sentencing status in the

44

first instance, and it may not shift these burdens to an accused by filing what is essentially

an empty notice.@ Id. (emphasis added).

The record reflects that Defendant did not challenge the notice to seek enhanced

punishment and, in fact, stipulated the accuracy of his prior convictions at the penalty

phase of the first degree murder trial. Based upon this stipulation, the trial court

sentenced Defendant as a Career Offender. We conclude that the notice to seek

enhanced punishment was not materially misleading. Defendant is not entitled to relief

on this issue.

Next, Defendant contends that the record does not support the trial court=s

determination that he is a professional criminal. The State acknowledges that the record

does not support the trial court=s finding of professional criminal but argues that the

record supports the trial court=s alternative determinations that Defendant possessed an

extensive history of criminal convictions and that he was a dangerous offender, justifying

the imposition of consecutive sentences in this case.

Our supreme court has held that Athe abuse of discretion standard, accompanied by

a presumption of reasonableness, applies to consecutive sentencing determinations@ Aif

[the trial court] has provided reasons on the record establishing at least one of the seven

grounds listed in Tennessee Code Annotated section 40-35-115(b)[.]@ State v. Pollard,

432 S.W.3d 851, 859-62 (Tenn. 2013). Thus, the imposition of consecutive sentencing is

subject to the general sentencing principles that the overall sentence imposed Ashould be

no greater than that deserved for the offense committed@ and that it Ashould be the least

severe measure necessary to achieve the purposes for which the sentence is imposed[.]@

T.C.A. ' 40-35-103(2) and (4). Further, A[s]o long as a trial court properly articulates

reasons for ordering consecutive sentences, thereby providing a basis for meaningful

appellate review, the sentences will be presumed reasonable and, absent an abuse of

discretion, upheld on appeal.@ Pollard, 432 S.W.3d at 862 (citing Tenn. R. Crim. P.

32(c)(1) (AThe order [for consecutive sentences] shall specify the reasons for this decision

and is reviewable on appeal.@)); see also State v. Bise, 380 S.W.3d 682, 705 (Tenn. 2012).

The application of an abuse of discretion with a presumption of reasonableness standard

of review when considering consecutive sentencing based upon the Adangerous offender@

category in T.C.A. ' 40-35-115(b)(4) does not eliminate the requirements of State v.

Wilkerson, 905 S.W.2d 933 (Tenn. 1995) that the Aproof must also establish that the terms

[of sentencing] imposed are reasonably related to the severity of the offenses committed

and are necessary in order to protect the public from further criminal acts by the

offender.@ Pollard, 432 S.W.3d at 863 (quoting Wilkerson, 905 S.W.2d at 938).

45

Tennessee Code Annotated section 40-35-115(b) provides that a trial court may

order sentences to run consecutively if it finds any one of the following criteria by a

preponderance of the evidence:

(1) The defendant is a professional criminal who has knowingly devoted the

defendant=s life to criminal acts as a major source of livelihood;

(2) The defendant is an offender whose record of criminal activity is

extensive;

(3) The defendant is a dangerous mentally abnormal person so declared by a

competent psychiatrist who concludes as a result of an investigation prior to

sentencing that the defendant=s criminal conduct has been characterized by a

pattern of repetitive or compulsive behavior with heedless indifference to

consequences;

(4) The defendant is a dangerous offender whose behavior indicates little or

no regard for human life, and no hesitation about committing a crime in

which the risk to human life is high;

(5) The defendant is convicted of two (2) or more statutory offenses

involving sexual abuse of a minor with consideration of the aggravating

circumstances arising from the relationship between the defendant and

victim or victims, the time span of defendant=s undetected sexual activity,

the nature and scope of the sexual acts and the extent of the residual,

physical and mental damage to the victim or victims;

(6) The defendant is sentenced for an offense committed while on

probation;

or

(7) The defendant is sentenced for criminal contempt.

T.C.A. ' 40-35-115(b).

These criteria are stated in the alternative; therefore, only one need exist to support

the appropriateness of consecutive sentencing. Here, the trial court applied factors (1),

(2), and (4) that Defendant is a professional criminal who knowingly devoted his life to

criminal acts as a major source of his livelihood, an offender whose history of criminal

activity is extensive, and a dangerous offender whose behavior indicates little or no

regard for human life. Because the trial court provided reasons on the record

46

establishing two of the statutory grounds for consecutive sentencing B extensive criminal

history and dangerous offender B we afford the trial court=s decision a presumption of

reasonableness. Furthermore, the record shows that the trial court followed the

principles and purposes of the Sentencing Act, and the record supports the trial court=s

findings. We conclude that the trial court did not abuse its discretion by ordering

Defendant=s sentences to run consecutively. Accordingly, Defendant is not entitled to

relief on this issue.

Denial of Petition for Writ of Error Coram Nobis

On October 30, 2013, while this appeal was pending, Defendant filed a petition for

writ of error coram nobis in the trial court alleging that previously undisclosed DNA

testing of fetal tissue collected at K.T.=s hospitalization for the December 2007

miscarriage and the State=s subsequent indictment of James Hawkins, Sr., for multiple

instances of sexual abuse committed against Defendant=s sisters warranted coram nobis

relief in the form of a new trial. Following a hearing, the trial court denied relief,

concluding that the DNA testing result, which was inconclusive as to paternity, would not

have resulted in a different judgment had it been presented at trial and that the evidence

concerning Defendant=s father=s history of sexually abusing Defendant=s sisters was

known and presented at trial as mitigation evidence.

On appeal, Defendant argues that the trial court erred in denying coram nobis

relief. The State argues that the DNA evidence was inconclusive as to paternity and,

therefore, could not reasonably affect the outcome of the trial; and that the evidence

concerning Defendant=s father was known and presented at trial and, therefore, does not

qualify as newly discovered pursuant to the coram nobis statute.

A writ of error coram nobis is a very limited remedy which allows a petitioner the

opportunity to present newly discovered evidence Awhich may have resulted in a different

verdict if heard by the jury at trial.@ State v. Workman, 41 S.W.3d 100, 103 (Tenn.

2001); see also State v. Mixon, 983 S.W.2d 661 (Tenn. 1999). The remedy is limited Ato

matters that were not and could not be litigated on the trial of the case, on a motion for

new trial, on appeal in the nature of a writ of error, on writ of error, or in a habeas

proceeding.@ T.C.A. ' 40-26-105. Examples of newly discovered evidence include a

victim=s recanted testimony or physical evidence which casts doubts on the guilt of the

Petitioner. Workman, 41 S.W.3d at 101; State v. Ratliff, 71 S.W.3d 291 (Tenn. Crim.

App. 2001); State v. Hart, 911 S.W.2d 371 (Tenn. Crim. App. 1995). The Supreme court

has stated the following concerning the standard to be applied when a trial court reviews a

petition for writ of error coram nobis:

47

[T]he trial judge must first consider the newly discovered evidence and be

Areasonably well satisfied@ with its veracity. If the defendant is Awithout

fault@ in the sense that the exercise of reasonable diligence would not have

led to a timely discovery of the new information, the trial judge must then

consider both the evidence at trial and that offered at the coram nobis

proceeding in order to determine whether the new evidence may have led to

a different result.

State v. Vasques, 221 S.W.3d 514, 527 (Tenn. 2007). Whether to grant or deny a petition

for writ of error coram nobis rests within the sound discretion of the trial court. Id. at

527-28.

The record reflects that the DNA testing neither excluded nor established

Defendant=s paternity because the testing yielded no evidence of paternal DNA. We

agree with the trial court that such inconclusive results, when viewed in light of the

testimony presented at trial that K.T. suffered a miscarriage and that Defendant was the

person who impregnated her, would not have resulted in a different outcome if presented

at trial. See, e.g., Antonio Leonard Sweatt v. State, M2006-00289-CCA-R3-PC (Tenn.

Crim. App., at Nashville, May 9, 2007), perm. app. denied (Tenn. Sept. 24, 2007)

(inconclusive DNA results do not warrant coram nobis relief). As to Defendant=s claim

concerning his father=s subsequent indictment for sexually abusing Defendant=s sisters,

the evidence presented at trial concerning the sexual abuse supports the trial court=s

findings that this evidence does not qualify as newly discovered. Therefore, we conclude

that the trial court did not abuse its discretion by denying coram nobis relief. Defendant

is not entitled to relief as to this issue.

Cumulative Error

Defendant argues that the cumulative effect of the alleged errors entitle him to a

new trial. Because we conclude any error was harmless beyond a reasonable doubt, we

further conclude that Defendant=s due process rights were not violated by any cumulative

effect of the alleged errors.

CONCLUSION

In accordance with Tennessee Code Annotated section ' 39-13-206(c), we have

considered the entire record and conclude that the sentence of death has not been imposed

arbitrarily, that the evidence supports the trial court=s finding of the statutory

circumstances, that the evidence supports the trial court=s finding that the aggravating

circumstances outweigh the mitigating circumstances beyond a reasonable doubt, and that

48

the sentence is not disproportionate. We have also reviewed all issues raised by

Defendant and conclude there is no reversible error. The judgments of the trial court are

affirmed.

______________________________________

_

THOMAS T. WOODALL, PRESIDING

JUDGE

49