State of Tennessee v. Sedrick Clayton

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

March 1, 2016 Session

STATE OF TENNESSEE v. SEDRICK CLAYTON

Appeal from the Criminal Court for Shelby County

No. 1203160 Carolyn W. Blackett, Judge

No. W2015-00158-CCA-R3-DD - Filed August 18, 2016

_____________________________

The Defendant, Sedrick Clayton, was convicted by a Shelby County Criminal Court jury

of three counts of first degree murder, attempt to commit first degree murder, possession

of a firearm with the intent to go armed during the commission of a dangerous felony,

employing a firearm during the commission or attempt to commit a dangerous felony,

and unauthorized use of a motor vehicle. See T.C.A. §§ 39-12-101 (2014), 39-13-

202(a)(1) (2014), 39-14-106, 39-17-1324(a) (2010) (amended 2012). The jury sentenced

the Defendant to death for each first degree premeditated murder conviction. The trial

court sentenced the Defendant to fifteen years for attempted first degree murder, three

years for possession of a firearm with the intent to go armed during the commission of a

dangerous felony, six years for employing a firearm during the commission of or attempt

to commit a dangerous felony, and eleven months, twenty-nine days for unauthorized use

of a motor vehicle. On appeal, the Defendant contends that (1) the evidence is

insufficient to support his convictions for first degree premeditated murder and attempted

first degree murder; (2) the trial court erred in denying the Defendant‟s motion to

suppress his statements to the police; (3) double jeopardy principles prohibit his dual

convictions for possessing a firearm with the intent to go armed during the commission of

a dangerous felony and employing a firearm during the commission or attempt to commit

a dangerous felony; (4) the trial court erred in admitting photographs of the victims

during the penalty phase; (5) the trial court erred in admitting recordings of two 9-1-1

calls made from the victims‟ residence around the time of the murders; (6) Lieutenant

Goods‟ testimony during redirect examination was improper in numerous respects; (7)

Tennessee‟s death penalty scheme constitutes cruel and unusual punishment; (8)

Tennessee‟s death penalty scheme is unconstitutional in numerous other respects; and (9)

the Defendants sentences of death are disproportionate. Although we affirm the

Defendant‟s convictions and sentences for each first degree premeditated murder and

attempted first degree murder, we conclude that the trial court should have merged the

convictions for possession of a firearm with the intent to go armed during the commission

of a dangerous felony with the employing a firearm during the commission or attempt to

commit a dangerous felony. Therefore, we remand for the entry of corrected judgments.

We affirm the judgments of the trial court in all other respects.

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

in Part; Reversed in Part; Case Remanded

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which THOMAS

T. WOODALL, P.J., and ROBERT L. HOLLOWAY, JR., J., joined.

Steven C. Bush, District Public Defender; Tony N. Brayton and Harry Sayle III, Assistant

Public Defenders (on appeal); and Gerald Skahan, Kindle Nance, and Anna Benson,

Assistant Public Defenders (at trial), for the Appellant, Sedrick Clayton.

Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Senior Counsel;

John Bledsoe, Senior Counsel; Amy P. Weirich, District Attorney General; and Jennifer

Nichols and Karen Cook, Assistant District Attorneys General, for the Appellee, State of

Tennessee.

OPINION

The evidence presented at trial established that on January 19, 2012, the Defendant

shot and killed his girlfriend, Pashea Fisher, and Pashea‟s1 parents, Arithio and Patricia

Fisher, at the victims‟ home. The Defendant also attempted to kill Pashea‟s brother,

A‟Reco Fisher. The Defendant then fled the scene in Pashea‟s vehicle with his and

Pashea‟s four-year-old daughter, J.C.2

Guilt Phase

Stacey Polk, Patricia‟s niece, testified that Arithio, Patricia, Pashea, A‟Reco, and

J.C. lived in the same house. Pashea was twenty-three or twenty-four years old at the

time of her death and was older than A‟Reco. Arithio and Patricia‟s oldest son, Antonio,

lived elsewhere. Ms. Polk stated that the Defendant did not live in the home but visited

often. Ms. Polk recalled that she last saw the victims four days before their deaths on

Thursday, January 19. She last spoke to Patricia on the telephone the night before her

death.

1

Because the victims shared the same last name, we refer to the victims by their first names. We

mean no disrespect.

2

It is the policy of this court to refer to minors by their initials.

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Memphis Police Dispatcher Katie Montgomery testified that on Thursday, January

19, 2012, at 5:40 a.m., she received a 9-1-1 call that “broke” her. The call came from a

landline and was an “open line call” in which someone dialed 9-1-1 but did not speak.

Ms. Montgomery heard a man and a woman screaming in the background and a small

child crying. She also heard “gurgling” but did not know what was occurring.

Ms. Montgomery stated that while she was listening to the call, another 9-1-1 call

came in from a cell phone from the same address. Her coworker, Pam, answered the call

and began speaking with a male. Ms. Montgomery heard two gunshots in the

background of her call, after which she no longer heard the female “begging.” The

recording of each 9-1-1 call was played for the jury. Police officers, firefighters, and

emergency medical technicians were dispatched to the scene.

Memphis Police Officer Chase Merritt testified that he was dispatched to the scene

on January 19, 2012, at 5:42 a.m., and that he was the first officer to arrive. Officer

Merritt stepped onto the front porch and saw the interior wooden front door was open.

While looking through the glass on the exterior front door, Officer Merritt saw a young,

African-American female, later identified as Pashea, lying on the floor and not moving.

When he saw other patrol cars coming down the street, he opened the front door and

announced his presence. Officer Merritt said he observed blood on the female‟s clothing

and what he thought was a gunshot wound to her temple. He also saw a magazine for a

firearm near her body. He had to step over her body to enter the house.

Officer Merritt testified that after announcing his presence, someone called out

from the rear of the house. An African-American male, later identified as A‟Reco,

walked down the hallway toward the officers. Officer Merritt said officers instructed

A‟Reco to lie down, and he complied. Officer Merritt stated that the officers determined

A‟Reco was not a perpetrator within “a matter of seconds.” Officer Merritt escorted

A‟Reco to a squad car while other officers cleared the rest of the house.

Officer Merritt testified that A‟Reco was very quiet and could not believe what

was happening. A‟Reco told Officer Merritt that he was sleeping on the couch in the

living room when he awoke to Pashea and the Defendant‟s arguing. A‟Reco said that

Pashea walked down the hallway into their parents‟ bedroom, closed the door, and locked

it. The Defendant kicked open the door. A‟Reco heard gunshots and Pashea yelling,

“Stop, stop.” He saw the Defendant grab Pashea and drag her down the hallway toward

the front door as Pashea attempted to “fight off” the Defendant. A‟Reco told Officer

Merritt that the Defendant shot Pashea in the head with a black pistol and ran out of the

house. A‟Reco heard what sounded like Pashea‟s vehicle starting and called the police.

Officer Merritt stated that he learned a white car parked near the home when he had

arrived belonged to the Defendant.

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Officer Merritt testified that A‟Reco told him that the Defendant took J.C. with

him. A‟Reco never told Officer Merritt that he saw his parents fighting with anyone

outside the bedroom. He said he did not see his parents before he heard gunshots.

Officer Merritt stated that a male and a female, later identified as Arithio and Patricia,

were found in the back bedroom. One of them was dead at the scene, and the other was

transported to a hospital.

Officer Merritt testified that according to his supplemental report, A‟Reco said he

awoke to arguing and gunshots, saw Pashea and the Defendant arguing in the living

room, and saw Pashea go down the hallway to get away from the Defendant. Officer

Merritt stated that A‟Reco never said he heard his father arguing with anyone.

Memphis Police Officer Matthew Biggs testified that he and his partner, Officer

Michael Tran, responded to the scene of the shooting. When they arrived, they saw

Officer Merritt on the front porch. Officer Biggs said he observed Pashea lying on the

floor and had to step over her body to enter the living room. By that time, Officer Merritt

had A‟Reco detained on the living room floor.

Officer Biggs testified that he met Officer Tran at the entry of the bedroom and

saw that someone had kicked in the door. He said the edge of the door was frayed where

it had been latched to the door frame. Arithio was lying in front of the door and next to

the bed, and a black telephone cord was lying across his body. Officer Biggs said a table

in the bedroom was overturned. Officer Biggs heard no sounds of life coming from

Arithio.

Officer Biggs testified that Patricia was lying on the floor at the other end of the

bedroom and that she was making noises and “kind of moving, but she was having a hard

time.” Officer Biggs and his partner attempted to render aid, but she was unresponsive.

Officer Biggs testified that bullet holes and casings were inside the bedroom. He

said there were holes in some of the pillows on the bed. He also said no firearms were

found in the house. He stated that when he first entered the house, he saw a magazine for

a pistol on the floor next to Pashea‟s body.

Officer Michael Tran, Officer Biggs‟s partner, provided testimony similar to

Officer Biggs‟s testimony. Officer Tran said that when he initially entered the bedroom,

he saw the two victims and left the room to find his partner. He recalled that while at the

scene, they received a description of a white vehicle with large chrome rims that

belonged to the shooter. The vehicle was parked in front of the house.

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Theodore Novack, a firefighter and paramedic, testified that he responded to the

scene in an ambulance. He said it was reported that someone was still alive in the back

bedroom. He saw Pashea, who was approximately twenty years old, lying on the floor at

the front door. She appeared to have a gunshot wound to her head and was deceased.

Mr. Novack testified that as he walked into the bedroom, he saw Arithio, who was

approximately fifty years old, with multiple gunshot wounds to his chest. Mr. Novack

saw blood on the bed and said Arithio was deceased on the floor next to the bed.

Mr. Novack stated that Patricia, who was in the bedroom, had agonal respirations

and a weak pulse. He noted gunshot wounds to her chest and abdomen. Mr. Novack said

Patricia was moaning, was unable to answer questions, and was transported by

ambulance to the Regional Medical Center (the Med). While in route, she went into

cardiac arrest, and paramedics began CPR and administered cardiac drugs. Patricia died

from her wounds after arriving at the Med.

A‟Reco Fisher testified that at the time of the trial, he was twenty-five years old

and lived with various family members, including his niece, J.C. Patricia was an assistant

manager at the Memphis Zoo; Arithio was employed by the Internal Revenue Service;

and Pashea worked at the Shelby County Court Clerk‟s Office. In January 2012, A‟Reco

had completed high school and was a barber.

A‟Reco testified that his parents‟ house had two bedrooms. His parents shared

one bedroom, and A‟Reco, Pashea, and J.C. shared the other bedroom, which had two

beds. A‟Reco said that if he did not sleep in his bedroom, he slept on the couch in the

living room. He stated that he was sleeping on the couch on January 19, 2012. He said

that the Defendant arrived at approximately 12:40 a.m. and walked directly into Pashea‟s

bedroom.

A‟Reco testified that he later awoke to gunshots. He did not see his parents and

did not hear his father arguing with anyone. Rather, A‟Reco heard the Defendant and

Pashea‟s arguing and Pashea‟s crying. A‟Reco stated that he had never seen the

Defendant with a gun in the home before that morning and that he was unaware the

Defendant owned a gun. A‟Reco said no one in the home owned a gun.

A‟Reco testified that he saw the Defendant “handling” Pashea in the hallway.

The Defendant dragged Pashea down the hallway to the front of the house, told her that

he was going to shoot her, and dragged her further while Pashea attempted to flee.

A‟Reco saw the Defendant shoot Pashea in the head and saw Pashea fall on the floor.

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A‟Reco testified that at one point, he saw Pashea run into their parents‟ bedroom

and that the Defendant “bust down” the door while holding a gun. A‟Reco lost sight of

J.C. during the incident. Pashea yelled at A‟Reco to call 9-1-1, and A‟Reco did so while

on the couch in the living room. The Defendant later left the house with J.C. in a black

Escalade while his car remained parked in front of the house. A‟Reco stated that J.C. did

not want to go with the Defendant and that the Defendant had a handgun when he left the

house. A‟Reco said that after the Defendant left, he checked on his parents and Pashea.

His father and Pashea were unconscious, and his mother was “fighting for her life.”

On cross-examination, A‟Reco acknowledged that he had a prior conviction for

filing a false report. He testified that he had never heard the Defendant and Pashea argue

before that night. A‟Reco said Pashea attempted to calm the Defendant, who was

agitated and excited. A‟Reco said that the Defendant had “become an animal” and that

he had never seen the Defendant act that way previously. A‟Reco stated that the

Defendant never threatened him or pointed a gun at him or J.C. A‟Reco also stated that

he never slept in the recliner in the living room.

On redirect examination, A‟Reco testified that he was aware of a bullet hole found

in the arm of the couch and in the pillow where his head had been. A‟Reco said the hole

did not occur while he was awake. He also said that after he awoke, the Defendant did

not point the gun at him.

Memphis Police Sergeant Richard Borden testified that by the time he arrived at

the scene, the Defendant had been named as a suspect. At 7:15 a.m., Lillian Harvey, the

Defendant‟s mother approached Sergeant Borden and said that she had spoken to the

Defendant on his cell phone and that the Defendant stated that he wanted to surrender to

the police.

Sergeant Borden testified that Ms. Harvey called the Defendant and gave the

phone to Sergeant Borden. Sergeant Borden stated that he identified himself to the

Defendant and asked about J.C. The Defendant stated that J.C. was “fine.” Sergeant

Borden said that the Defendant was agitated and that the Defendant said he needed time

to calm down. The Defendant asked Sergeant Borden to call him back in twenty minutes.

When Sergeant Borden called the Defendant again, the Defendant said he was sitting in

his car, needed more time, and would call Sergeant Borden. At 7:50 a.m., Sergeant

Borden called the Defendant, but the call went to voicemail.

Sergeant Borden testified that at 8:12 a.m., he called the Defendant, who answered

and confirmed J.C. was still “fine.” The Defendant said that he wanted to surrender to

the police and that he was traveling to a precinct. Sergeant Borden stated that he became

concerned when the Defendant would not identify the precinct and that the Defendant

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then ended the call. Sergeant Borden called the dispatcher and instructed her to advise all

precincts that a homicide suspect with a four-year-old girl was en route to surrender to

the police.

Sergeant Borden testified that he called the Defendant at 8:34 a.m. The Defendant

said he still had the gun and asked Sergeant Borden what he should do with it. Sergeant

Borden instructed him to place the gun on the floor of the vehicle. The Defendant stated

that he was going to the Raines Station precinct, and Sergeant Borden‟s partner contacted

the precinct and informed officers to expect the Defendant. The Defendant said a patrol

car was behind his car and was going to stop him. Sergeant Borden instructed officers

over the radio not to stop the Defendant. When the Defendant arrived at the precinct,

Sergeant Borden instructed the Defendant to place his hands on the steering wheel.

Sergeant Borden told the Defendant that the Defendant should not touch the gun, and the

Defendant stated that he had placed the gun on the floor. The Defendant said he had to

go because the officers had ordered him to hang up. Sergeant Borden said that at 8:47

a.m., officers from the Raines Station precinct reported over the radio that the Defendant

was in custody and that J.C. was safe.

Sergeant Borden testified that he did not know the type of car in which the

Defendant traveled or whether the Defendant was driving the car. Sergeant Borden said

he heard another male voice during the last call. Sergeant Borden explained he did not

ask who the man was because he did not want to upset the Defendant. Sergeant Borden

said he only wanted to ensure that the Defendant went to the precinct and that J.C. was

safe. Sergeant Borden never went to the Raines Station precinct and never saw the

Defendant. On cross-examination, Sergeant Borden testified that the Defendant was

“mostly cooperative” and “cordial.”

Memphis Police Officer Dale Jones testified that he was a member of the Raines

Station Task Force in January 2012. On January 19, 2012, he learned from his lieutenant

that a murder suspect could be coming to the area. Officer Jones was instructed to watch

for a tan or brown Maxima in the area and to follow the car. After Officer Jones saw the

car, he, an unmarked car, and two squad cars followed the Maxima to the Raines Station

precinct. Officer Jones said that the car‟s driver, the Defendant, J.C., another girl around

J.C.‟s age, and the other girl‟s mother were inside the Maxima.

Officer Jones testified that he found a Smith & Wesson .40-caliber firearm on the

rear passenger-side floorboard. Officer Jones stated that the gun‟s safety was not

engaged, that the magazine was in the firearm, and that a bullet was in the chamber.

Memphis Police Sergeant Alpha Hinds testified that he went to Southaven,

Mississippi, to secure a black Escalade belonging to one of the victims. Sergeant Hinds

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said a crime scene officer and Adrienne Lewis, the mother of the Defendant‟s other

daughter, accompanied him. Sergeant Hinds said Ms. Lewis knew the vehicle‟s location.

The vehicle was found in an industrial area near Ms. Lewis‟s place of employment. The

vehicle was towed to the Memphis crime scene office.

Memphis Police Lieutenant Anthony Mullins testified that he was responsible for

assessing and documenting the crime scene and for directing crime scene investigators

relative to which items needed to be photographed and collected. Lieutenant Mullins said

a search warrant was obtained to allow officers to enter and process the scene. He saw

Pashea lying on the floor just inside the entryway.

Lieutenant Mullins testified that evidence was located in every room of the house

except the bathroom. He said the majority of the evidence was found in the dining room,

the front room, the master bedroom, and the interior hallway. Two fired cartridge casings

were found on the kitchen floor. One fired cartridge casing was on the floor of the

second bedroom by the doorway leading into the kitchen. Lieutenant Mullins noted

debris on the floor throughout the hallway, including papers, cologne or perfume, and

nail clippers. He said it appeared as though items had been knocked off a bookcase in the

hallway. Two fired cartridge casings, an unfired cartridge, and blood were found in the

hallway.

Lieutenant Mullins testified that a box that had held a ceramic or floor heater was

overturned in the hallway. He observed a transfer blood stain on top of the heater box.

He explained that a transfer blood stain occurs when a bloody object touches an object

that is not bloody, leaving a transfer, such as the transfer of blood from a person to an

object. Blood stains also dripped down the heater box. Lieutenant Mullins stated that it

appeared as though someone who was bleeding hit the heater box and knocked it over.

The person was dripping blood, and the blood dripped down the heater box. Blood drops

were also on the hallway floor.

Lieutenant Mullins testified that the doorframe to the master bedroom was

damaged and that its latch plate was lying on the hallway floor, was “deformed, a little

twisted,” and appeared to have been shot. He noted damage around the door latch and

said it appeared that a bullet was fired through the doorframe. Discoloration on the door

appeared to be soot and powder from a gunshot fired at close range.

Lieutenant Mullins testified that when he entered the master bedroom, he saw

Arithio lying on the floor just inside the door. An end table was overturned and partially

on top of Arithio. Clothing and papers were on the floor, and blood was on the bedding.

Lieutenant Mullins saw what appeared to be a gunshot entry point though the bedroom

door and damage to the closet door and walls. A fired bullet and multiple fired cartridge

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casings were found on the bedroom floor. Lieutenant Mullins stated that no firearms

were found around Arithio‟s body. Splinters of wood that appeared to have come from

the door were recovered near the door.

Lieutenant Mullins testified that by using a trajectory rod, he determined that a

bullet traveled through the door of the master bedroom, striking the closet door and the

door frame. The projectile was recovered from the frame of the closet door. Bullet holes

were found in the pillows on the bed. Lieutenant Mullins noted three defects in the wall

furthest from the door, indicating that the wall had been struck by bullets. A bullet also

went through shoe boxes on the floor and into the wall.

Lieutenant Mullins testified that a Chevrolet Camaro parked in the backyard

garage appeared to have bullet damage. The bullet entered the wall, exited the house,

struck the car, and deflected. The bullet was never recovered.

Lieutenant Mullins testified that Patricia had been transported to the Med before

he arrived at the scene. The officer at the scene showed Lieutenant Mullins where

Patricia was found, and Lieutenant Mullins observed blood stains in the general area.

Lieutenant Mullins testified that he believed the shooting began closer to the

bedroom area in the hallway and ended in the living room. A fired cartridge casing and a

cell phone were found on the carpet behind the love seat in the living room. A small

piece of a copper jacket was found on the arm of the love seat. Lieutenant Mullins

identified defects in the arm and pillow of the couch. A trajectory rod was placed

through the arm of the sofa, through a pillow, and into the seat cushion. Two fired

cartridge casings, an unfired cartridge, and a bullet fragment were collected from the

living room area. A fired cartridge casing was recovered from the couch.

Lieutenant Mullins testified that a magazine for a firearm containing unfired

cartridges was recovered next to Pashea‟s body. Pashea had a gunshot wound to her leg.

Lieutenant Mullins noted a piece of splintered wood on Pashea‟s pants leg, which he said

was consistent with the splinters of wood from the door found in the master bedroom.

Lieutenant Mullins testified that a stain, which appeared to be blood, found on the

exterior portion of the front door appeared to be a transfer stain but that it was difficult to

determine because the door was black. He stated that blood was on a pair of jeans

collected from the Defendant. Lieutenant Mullins knew Pashea‟s black 2004 Escalade

was taken from the scene. He said the value of the vehicle was probably more than

$10,000.

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On cross-examination, Lieutenant Mullins testified that portions of the house were

not well lit and that officers opened the front door to allow more light to enter the house.

He acknowledged that based upon the items overturned and the blood in the hallway, a

struggle or fight appeared to have occurred.

Dr. Miguel Laboy, an expert in forensic pathology, testified that he performed

Patricia‟s autopsy. He noted evidence of medical intervention on Patricia‟s body,

including various tubes and catheters. Dr. Laboy stated that Patricia sustained a gunshot

wound to the left side. The bullet perforated the soft tissue, fractured the medial posterior

aspect of the left pelvis, and exited through the right buttock. Dr. Laboy said that this

gunshot wound was not fatal and that most people would survive such an injury.

Dr. Laboy testified that Patricia sustained a superficial gunshot wound to the

abdomen. He explained that the bullet perforated the skin and exited close to the

shoulder. Dr. Laboy identified another gunshot wound that was located below the above-

described wound. The bullet perforated the soft tissue, entered the side, and exited at the

right buttock.

Dr. Laboy testified that Patricia had an entry gunshot wound on the upper outside

of her breast. The bullet perforated her breast and exited on the bottom part of her breast.

The bullet reentered her chest and perforated the diaphragm, the transverse colon, the

aorta, and the ilium bone. Dr. Laboy recovered the bullet in the pelvic area. He stated

that the gunshot was lethal. Dr. Laboy concluded that the cause of Patricia‟s death was

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

toxicology results were negative for drugs and alcohol.

Dr. Karen Chancellor, an expert in clinical, anatomic, and forensic pathology

testified that she performed Arithio‟s and Pashea‟s autopsies. Dr. Chancellor stated that

Arithio was approximately fifty-six years old, was 5′6″, and weighed 128 pounds.

Arithio received a gunshot wound to the right side of his neck, which corresponded with

an exit wound on the left side of his back. He had abrasions on his upper right arm and

two superficial abrasions on his lower abdomen. He also had a large, irregular-shaped

abrasion on the right side of his chest. Dr. Chancellor said that within the abrasion was a

“horizontally-oriented” abrasion, which was likely a grazing gunshot wound. A

corresponding defect was on Arithio‟s shirt. Dr. Chancellor stated that any of the

abrasions could have been grazing gunshot wounds. She concluded that the gunshot

wound to Arithio‟s neck was fatal and was the cause of death and that the manner of

death was homicide. Arithio‟s toxicology results were negative for drugs and alcohol.

Dr. Chancellor testified that Pashea was twenty-three years old, was 5′4″, and

weighed 134 pounds. Pashea suffered a gunshot wound to the left side of her head,

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which exited the back of her head. Small particles consistent with bullet fragments were

recovered from Pashea‟s head. Dr. Chancellor observed powder stippling surrounding

the entry wound and concluded the end of the gun‟s barrel was between five or six inches

and three feet from Pashea when the gun was fired. Dr. Chancellor explained that a more

accurate estimate would require testing of the gun and the ammunition.

Dr. Chancellor testified that Pashea had two gunshot entry wounds on her right leg

and two exit wounds on the back of her right leg. Dr. Chancellor observed four holes in

Pashea‟s pants that corresponded to the entry and exit wounds. She stated that there were

no fractures or vital injuries associated with those wounds and that the wounds were not

fatal. She also stated that if Pashea had only received the gunshot wounds to her leg,

Pashea would have been capable of walking.

Dr. Chancellor testified that the shot to Pashea‟s head rendered her unconscious

and that Dr. Chancellor did not expect Pashea would have lived long after sustaining the

head injury, absent medical attention. Dr. Chancellor stated that the cause of Pashea‟s

death was the gunshot wound to her head and that the manner of death was homicide.

The toxicology results were negative for drugs and alcohol.

On cross-examination, Dr. Chancellor testified that she was unable to determine

the positions of the victims when they were shot. She acknowledged that Arithio could

have been shot during a struggle but said she did not see any injuries indicative of a

struggle. She acknowledged that it was possible to receive abrasions during an

altercation.

Dr. Chancellor testified that the entry wound on Arithio‟s neck was five-sixteenths

of an inch in diameter, which was consistent with the size of a bullet. She explained that

the size of a wound was not always indicative of the size of a bullet because skin could

stretch and was “deformable.” She found no evidence of the bullet “tumbling” or

“yawing” and said the nose of the bullet likely entered Arithio‟s neck. She explained that

a bullet tumbles when it travels “end over end” as the result of a defective gun or a bullet

first striking another object.

On redirect examination, Dr. Chancellor testified that she would not have been

surprised if the same gun was used to kill Arithio and Pashea. Based upon her years of

experience, she noted a variance existed in the measurement of gunshot entry wounds.

She stated that any number of body positions was consistent with Arithio‟s gunshot

wound, including bending over, being in bed, or reaching for a telephone.

Tennessee Bureau of Investigation (TBI) Special Agent Cervinia Braswell, an

expert in firearms identification, testified that she examined a Smith & Wesson .40-

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caliber pistol in operating condition and two magazines that held up to fourteen bullets or

cartridges. She said the magazines fit and functioned in the .40-caliber pistol.

Agent Braswell testified that she examined twelve fired cartridge casings and nine

intact bullets or bullet fragments. She determined that the cartridge casings, intact

bullets, and fragments were all fired from the .40-caliber pistol. She also examined two

jacket fragments and a lead fragment, none of which had markings for comparison.

Finally, she examined two granular particles submitted by the Medical Examiner‟s Office

and determined the particles were consistent with gunpowder or stippling.

On cross-examination, Agent Braswell testified that one of the magazines

contained five live rounds and that the other magazine contained six live rounds. She

said that firing six bullets from a magazine would be a very quick process and that

ejecting and reloading a magazine could also be a quick process. She said that the gun

ejected cartridge casings more than eleven and one-half feet to the right as the gun was

fired but that this distance would be altered if the casings struck a surface.

Agent Braswell testified that tumbling would occur if someone shot at a door and

the bullet traveled through the door and hit a person. She explained that the shape of a

person‟s entry wound would depend upon the stage of the tumble when the bullet hit the

person. She explained that if a bullet hit a door, the bullet could become deformed or

change shape. She said it was impossible to determine the shape of a bullet after it hit an

intervening object.

On redirect examination, Agent Braswell testified that in addition to the fourteen

rounds contained in the magazine, one round could have been in the gun‟s chamber, for a

total of fifteen rounds. She said that if someone fired the gun in a narrow hallway, the

cartridge casings could have bounced off walls and surfaces. She acknowledged on

recross-examination that the fired cartridge casings found at the scene could have been

kicked around the house.

The parties stipulated that Pashea‟s blood was on the Defendant‟s jeans, the front

door, the heater box in the living room, on the floor in the hallway, and near where her

body was found. The parties also stipulated that Arithio‟s blood was found in the master

bedroom, near where his body was found, and on the bed sheets. Likewise, the parties

stipulated that Patricia‟s blood was found on the floor in the master bedroom and on the

bed sheets.

Memphis Police Lieutenant Darren Goods testified that after the Defendant

surrendered to the police, Sergeant Vivian Murray, the case coordinator, asked Lieutenant

Goods to assist with the Defendant‟s interview. Lieutenant Goods stated that he first saw

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the Defendant sitting in a large interview room at the police department. The

Defendant‟s hands were not handcuffed, but his leg was shackled to a bench. At

approximately 11:30 a.m., Lieutenant Goods offered the Defendant water and escorted

the Defendant to the restroom without questioning him.

Lieutenant Goods testified that he wanted the crime scene investigation completed

before interviewing the Defendant. Lieutenant Goods explained that waiting until

evidence was gathered before interviewing a suspect allowed the officer to determine

whether a suspect was being honest. The officers listened to the recordings of the 9-1-1

calls after Sergeant Murray briefed the officers. A‟Reco gave a formal statement, and

witnesses who were involved in the Defendant‟s surrender were interviewed.

Lieutenant Goods said that while the Defendant was in the interview room, the

Defendant was allowed to use the restroom, was provided lunch, and was offered water.

The interview began at 4:25 p.m. Lieutenant Goods was the primary officer who

interviewed the Defendant, and his partner took notes. Upon entering the interview

room, the two officers introduced themselves, obtained the Defendant‟s identifying

information, attempted to build a rapport with him, and advised the Defendant of his

Miranda rights.

Lieutenant Goods testified that while he and his partner were gathering personal

information and explaining why they were there, the Defendant said, “[M]an, I‟m sorry.

You don‟t even have to say it; I did it.” The Defendant then whispered, “I did it.”

Lieutenant Goods stated that because the Defendant had not yet been advised of his

rights, he stopped the Defendant and told him, “This is your opportunity to tell your side

of the story. We want the truth. That‟s why we‟re here. You don‟t need to beat around

the bush.” Lieutenant Goods also told the Defendant, “[Y]ou‟re going to go to jail. If I

killed my family, I would certainly expect to go to jail as well.” Lieutenant Goods then

advised the Defendant of his Miranda rights.

Lieutenant Goods testified that he read the Advice of Rights form to the Defendant

and that the Defendant read the form aloud. Lieutenant Goods explained that he wanted

to ensure the Defendant could read, comprehend what he was reading, and make an

intelligent waiver of his rights. The Defendant signed the Advice of Rights form at 4:32

p.m. The form indicated that the Defendant was age twenty-eight and had completed the

ninth grade. Lieutenant Goods said the Defendant reported that he had smoked marijuana

at approximately 9:00 p.m. “the night before last night.” The Defendant reported no

prescription drug use or mental health disorders. Lieutenant Goods stated that the

Defendant was responsive and had no difficulty answering questions. As the Defendant

was writing the date on the Advice of Rights form, he said that it was Arithio‟s birthday.

- 13 -

Lieutenant Goods testified that the Defendant said that at approximately 12:30

a.m. the morning of the shooting, he and Pashea were engaged in sexual intercourse when

he smelled an odor that led him to believe Pashea had sexual intercourse with someone

else earlier that day. The Defendant stated that they argued about his suspicions and that

Pashea mentioned someone named “Jason.” Over the next few hours, they made up and

had sexual intercourse. The Defendant told the officers that later he got out of bed and

acted as though he was leaving “for good” and that Pashea asked him not to leave. He

stated that he and Pashea continued talking and that Pashea continued telling him not to

leave her. He said that he heard an alarm at approximately 4:30 or 4:45 a.m. and that he

knew Arithio normally woke up around that time to drive Pashea to work. The

Defendant saw a light in Arithio and Patricia‟s bedroom. The Defendant stated that he

and Pashea were in the hallway and that Pashea pulled on him and told him not to go. He

said they were “tussling back and forth” but denied fighting.

Lieutenant Goods testified that the Defendant told the officers that he suddenly

saw a bright light and that he, Pashea, and Arithio ended up on the floor. The Defendant

dropped his gun, keys, cell phone, and scales. He said he picked up his gun and began

“kind of indiscriminately shooting.” He maintained that he continued shooting his gun

because he was afraid. He stated that at some point, Arithio returned to his bedroom and

that the Defendant shot his gun until it was empty. The Defendant said that he attempted

to leave but that Pashea pulled on his jacket and told him not to go. Pashea said she

would retrieve her shoes and J.C. and go with him. The Defendant stated that he made

his way through the house shooting. He also stated that he knew A‟Reco slept on the

couch in the living room and shot in the direction where he believed A‟Reco would have

been sleeping. The Defendant said that although he could not see anything because the

house was dark, he shot downward in the direction he believed A‟Reco was located.

The Defendant told the officers that at some point, Pashea pulled on the gun and

that the gun fired. He heard J.C. calling for him, retrieved her, and left the house. He

said he contacted a woman named “Adrienne” and met her before surrendering to the

police. He told the officers that after the shooting, he returned to retrieve his scales, keys,

and clip, all of which he had dropped. He said he left in Pashea‟s vehicle but gave no

explanation as to why he took her vehicle.

Lieutenant Goods testified that in the Defendant‟s initial version of the events, the

Defendant did not state what caused him to start shooting after he fell. The Defendant

did not indicate that he had shot any of the victims at that point but only said he had shot

at Arithio. Lieutenant Goods said that after he confronted the Defendant, the Defendant

included additional details. The Defendant denied shooting through or kicking down the

bedroom door. After the officers confronted the Defendant with evidence of bullet holes

in the door and door frame, the Defendant said that he hit the door with his shoulder and

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that it opened. Lieutenant Goods stated that the Defendant “tried to kind of quantify that

and said that the door was kind of torn up, was tearing up.”

Lieutenant Goods testified that in the Defendant‟s second version of the events,

the Defendant said that after seeing the bright light, Arithio kicked him in the chest,

causing the Defendant, Pashea, and Arithio to fall. Lieutenant Goods was unaware that

Arithio weighed 128 pounds but said he saw Arithio and knew he was not a large man.

Lieutenant Goods said that he told the Defendant that the Defendant was not being

completely honest and that the recordings of the 9-1-1 calls indicated that additional

events occurred. The Defendant said that Pashea begged him not to kill her parents but

that he had already shot them. The Defendant stated that he wanted to get inside the

bedroom because he heard Pashea tell someone over the telephone he had shot her

family.

Lieutenant Goods testified that the Defendant stated during his second or third

version of the events that the Defendant had a Smith & Wesson .40-caliber semi-

automatic handgun with a fourteen-round magazine and one round in the chamber. The

Defendant said he fired the weapon until it either jammed or was empty. He then

reloaded it with another full fourteen-round magazine and continued shooting. The

Defendant told Lieutenant Goods that while Pashea was holding on to him, he noticed

blood on her pants leg. He said that as he attempted to leave, Pashea tugged on him, that

he shot into the area where A‟Reco was located, that Pashea grabbed his gun, that the gun

fired, and that Pashea was shot. He stated that he and A‟Reco sold drugs out of the home

and that the Fishers were aware of their activities. The Defendant also stated that

although he did not see A‟Reco with a gun that morning, he knew that guns were in the

house and that A‟Reco normally possessed a gun. The Defendant said he knew A‟Reco

was asleep on the couch.

Lieutenant Goods testified that he told the Defendant that J.C. witnessed the

shooting. Lieutenant Goods stated the Defendant responded that J.C. “doesn‟t tell the

truth.” Lieutenant Goods said the Defendant never admitted firing into the bedroom door

but admitted forcing it open with his shoulder. Lieutenant Goods said the Defendant

placed himself inside the bedroom while shooting the gun. The Defendant said that

Patricia was shot as she crawled over the bed and that she fell between the bed and an

armoire.

Lieutenant Goods testified that during the interview, he played a recording of one

of the 9-1-1 calls, hoping to encourage the Defendant to tell the “absolute truth.”

Lieutenant Goods said that in the recording, Pashea was heard screaming, “Please don‟t

kill my parents, please don‟t kill my parents.” Lieutenant Goods recalled that he also

heard Pashea‟s mentioning J.C. and the Defendant‟s saying “something to the effect [of]

- 15 -

let me go or I‟m going to shoot her,” which was followed by a gunshot. Lieutenant

Goods said that the Defendant‟s response to hearing the recording was that Pashea was

“playing a game” when she was begging him not to kill her parents because they had

already been shot. Lieutenant Goods stated that he became angry, raised his voice, and

said “[s]omething to the effect of [either you are] full of s--- or you‟ve lost you f------

mind.” The Defendant did not respond.

Lieutenant Goods testified that the Defendant gave a written statement which

reflected that the Defendant was advised of his rights, that he understood his rights, and

that he wished to make a statement. The Defendant read the statement and made

numerous corrections.

Lieutenant Goods read the Defendant‟s corrected statement to the jury. In the

statement, the Defendant acknowledged that he was responsible for the victims‟ deaths.

He said he shot them with a .40-caliber “automatic” handgun. When asked to explain

what occurred before, during, and after the incident, the Defendant said in his statement:

It started with sex. Me and Pashea got into an argument and I ended up

putting all my stuff in my pocket, my clip and my scale, and she felt like I

was fixing to leave for good. This was around 12:30 a.m.

We made up around 4:30 a.m. and got up and she was getting ready

to work. It led to her wanting me to take her to work. That led to the

bathroom where it really wasn‟t an argument. It was, “don‟t leave right

now. Holding me and tussling and saying don‟t leave.”

„Til us coming out the bathroom seeming like we were apparently to

the father where he opened the room door. Arithio Fisher kicked me into

the stand where they keep their cologne. Me, Pashea and Arithio hit the

ground and I grabbed my gun. It fell out.

The Defendant later changed the last sentence to read, “It fell out after.” In the written

statement, the Defendant said, “I started shooting and at the same time I‟m being

snatched by Pashea off in Arithio‟s room towards the closet, but I‟m turn [sic] towards

the fan. And as he dive [sic] towards the bed, I kept shooting in the room. I really never

aimed.” Upon reviewing his statement, the Defendant wrote in “where I was on the

ground and while I was getting up” after “I started shooting.” He also included language

to state that he turned toward the fan and the bed. The Defendant continued in his written

statement, “Basically everything that moved, everything that I got a glimpse of I just kept

shooting and I ran towards the front door when my gun stopped shooting.” He later

- 16 -

crossed out “everything that I got a glimpse of” and replaced it with “scared me at the

time.”

In his written statement, the Defendant said that when he reached the front door,

he realized that he did not have his keys. He said he picked up his “second clip off the

floor” and later wrote in “when I got back to the room.” He did not recall loading the

second clip into the gun and breaking down the door. He said that when he reentered the

“room” to retrieve his keys, he told Pashea to “come on.” He said she told him that she

was going to get J.C. and her shoes and that she was “holding [him] towards the door.”

The Defendant later drew a line through “towards the door” and inserted “pulled me back

in the door.”

The Defendant stated that he “fired two or three more times in the living room in

the dark.” He later added “trying to get out of the house.” He said he had one hand

blocking his face in case any shots were fired back at him. He then fired two or three

shots and yelled, “I‟m sorry,” to A‟Reco. The Defendant stated that when he was at the

front door, Pashea held his sleeve and told him not to leave yet. He said he “just snatched

away and shot her . . . three or four more times and ran towards the truck.” The

Defendant later wrote in “to scare her.” He said he heard “Daddy, don‟t leave me,” but

later drew a line through this statement. The Defendant said he heard “daddy get me”

and saw J.C. standing on the porch. He took J.C. and left.

In his written statement, the Defendant stated that he called Adrienne Lewis, told

her that he needed her help and asked her to hide something for him. He met her near her

place of employment. He said that he got into Ms. Lewis‟s car and that they went to an

apartment in downtown Memphis where one of Ms. Lewis‟s friends lived. They

remained at the apartment for approximately forty-five minutes while the Defendant

called and spoke to members of his family. He said they went to the home of his brother-

in-law, Jesse Clements. The Defendant stated that he, Mr. Clements, J.C., Ms. Lewis,

and the Defendant‟s other daughter, Y.C., waited at the apartment for other members of

the Defendant‟s family to arrive. The Defendant said that they decided not to wait and

instead went to the Raines Station precinct, where he surrendered to the police.

The Defendant stated that he was unsure whether Arithio was shot first. He also

stated that he did not recall when he first shot Pashea but recalled seeing her bloody leg.

In reviewing his statement, the Defendant inserted language to state that he also did not

recall shooting “the mama.” He said he always carried his gun.

When asked why the Defendant believed it was necessary to start shooting, he

replied in his written statement, “I panicked when he kicked me to the floor . . . and my

gun fell out.” After reviewing the statement, the Defendant wrote “and felt afraid” to the

- 17 -

end of the sentence. The Defendant continued, “I saw my gun on the floor and the first

thing I did was grab it and I snapped.” The Defendant later crossed through “the first

thing I did was grab it and I snapped” and wrote “I grabbed it before they did.” He

maintained he was in fear of his life.

The Defendant said he was unsure whether Arithio was armed when he was shot.

When asked how he could have been in fear of his life if he was unsure whether Arithio

was armed, the Defendant replied, “Because as we [were] tussling, out of nowhere I am

kicked to the floor and everything right there. My gun flew out on the floor. He could

have grabbed my gun.” Defendant said Arithio did not grab the gun because the

Defendant picked up the gun as soon as he saw it. The Defendant was unsure whether

Patricia was armed with a gun or other deadly weapon before he shot her. He maintained

that he did not recall shooting Pashea. He also maintained that it was a mistake to shoot

and kill Arithio, Patricia, and Pashea and that he “didn‟t mean to hurt nobody.” When

the Defendant reviewed the typewritten statement, he wrote that Arithio “scared me when

he kicked me down.”

The Defendant stated that his gun held fourteen rounds plus one round in the

chamber and that he had two magazines. He was unsure of the number of rounds fired.

When asked about the number of times he shot Arithio, the Defendant replied, “I‟m not

sure. I was just shooting. I don‟t know where I hit him or when I hit him. The more he

moved, the more I panicked, the more he moved, the more scared I was.” The Defendant

later changed “was” to “got.” He was unsure how close he was to Arithio when he shot

Arithio because the Defendant and Pashea were involved in a “tussle” while he was

shooting. The Defendant said Arithio was within an arm‟s length when the Defendant

shot him. The Defendant denied placing the barrel of the gun against any part of

Arithio‟s body when he fired the shots.

The Defendant maintained that he did not see Patricia and said, “I was just firing

and shooting and she got hit by mistake.” Upon reviewing his statement, the Defendant

later added “I felt like they all was finna get me.” Lieutenant Goods questioned the

Defendant regarding his statement during the initial interview that he was shooting at

everything that came toward him and that he had seen Patricia in the bed before shooting

her. The Defendant denied making the statement and maintained that he was firing

toward Arithio, who was in bed. The Defendant, however, acknowledged that he was

shooting at everything that came at him. While he recalled seeing Patricia fall, he

maintained he did not think he shot her but he believed Patricia was attempting to get out

of the way. He said he was in “panic mode” and later added that he was scared.

The Defendant did not know how many rounds were in his gun when the police

seized it. He said that he had a handgun permit and that he was taught if two or more

- 18 -

people are within an arm‟s length and you are in fear of your life, “you shoot until you

drop.” He acknowledged that he was taught to use deadly force only in self-defense or in

the defense of the life of an innocent third party.

The Defendant stated that he was “positive” that his gun was not the only gun in

the house and that A‟Reco and Arithio each owned a gun. The Defendant said that he

believed Arithio was running to retrieve a gun and that the Defendant “kept firing to stop

him from hurting me.” After reviewing his written statement, the Defendant inserted, “I

was scared.” He was unsure whether he ever saw any of the victims with a gun and said

that “it was in the heat of the moment and I panicked.” The Defendant was unsure

whether he used deadly force on an unarmed person. He explained that Arithio‟s gun

“could have been right there. I guess I was keeping him from it. All I know, he had it in

his hand.” The Defendant later modified the sentence to state, “All I know, he could

have had it in his hand.” He denied shooting Arithio to prevent Arithio from retrieving a

gun. He explained he shot Arithio in a “panic to keep him from doing anything else” to

him. After reviewing the written statement, the Defendant inserted language explaining

that he was “scared” and “outnumbered.”

The Defendant told the officers that when he returned for his keys, he picked up

his second magazine off the floor and reloaded his gun. He stated that while shooting his

gun, his noticed that Pashea had gone into her parents‟ bedroom. He was unsure when

she had entered the bedroom and maintained that Pashea pulled him into the bedroom.

Lieutenant Goods said this statement was the first time the Defendant claimed Pashea had

pulled him into the bedroom.

The Defendant stated that after shooting Arithio and Patricia, he returned to the

master bedroom to retrieve the keys to Pashea‟s vehicle. Pashea tried to shut the

bedroom door and prevent him from entering. According to the Defendant, he broke

down the door to the bedroom because he was “in [a] panic to get the keys.” He did not

recall shooting through the door. The keys were on an end table next to the bed. The

Defendant stated that when he grabbed the keys and began walking toward the door,

Pashea told him to wait for her to retrieve her shoes and J.C. He said he thought that

Pashea initially had tried to keep him away from the bedroom because she believed he

was planning to injure her. He also said that Pashea told him not to kill her parents but

that he had shot her parents already. He stated that he did not notice Pashea had been

shot in the leg until he returned to the master bedroom for the keys. He also stated that

when he last saw J.C., she was in the bed in Pashea‟s bedroom.

The Defendant stated that after he retrieved the keys, he heard A‟Reco yelling,

“what the f---,” so the Defendant ran toward the front door while shooting his gun. After

reviewing his statement, the Defendant added “but I was not aiming at no one.”

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According to the Defendant, A‟Reco usually slept in the recliner in front of the television.

Lieutenant Goods testified that the Defendant earlier had stated that A‟Reco usually slept

on the couch. The Defendant maintained that A‟Reco was asleep in the recliner when the

shooting occurred. The Defendant denied shooting at A‟Reco and said that if he did, it

was not intentional. Upon reviewing his statement, the Defendant wrote, “I shot in the

living room to scare him so I could get out.”

When asked whether the Defendant wished to add anything else to aid in the

investigation, he replied, “I apologize. It happened out of fear. I didn‟t mean to hurt

nobody. I really didn‟t know what I did until the detectives let me know.” After

reviewing his statement, the Defendant added, “I‟m sorry.” After the written statement

was completed, the Defendant corrected the statement to read that he shot the victims

“out of fear.”

Lieutenant Goods testified that after the Defendant signed the statement and while

waiting on a transport car to take the Defendant to jail, Lieutenant Goods became angry

with the Defendant due to his “cavalier” attitude regarding the shooting. Lieutenant

Goods stated that the Defendant made a statement to the effect of “I don‟t know why

you‟re raising your voice. It‟s not a big deal.” Lieutenant Goods told the Defendant that

“he must be out of his f------ mind.”

On cross-examination, Lieutenant Goods testified that he first met with the

Defendant at 11:43 a.m. and that the Defendant signed his statement at 10:02 p.m.

Lieutenant Goods acknowledged that the Defendant had been in custody for “a couple of

hours” before the interview began. Other than bathroom breaks, the Defendant remained

in the interview room for eleven hours.

Lieutenant Goods testified that the Defendant often changed his answers to the

questions while the transcriptionist typed the statement. Lieutenant Goods said that after

the written statement was completed, the Defendant reviewed it and made additional

changes. Lieutenant Goods acknowledged that his partner stated in his supplemental

record that “this guy paid more attention to what was being typed and what was being

said in his statement than anybody we‟ve ever come across.” Lieutenant Goods said the

Defendant made the modifications in an effort to minimize his culpability.

Craig Harper testified that he was an instructor at Rangemaster, a firearm and self-

defense training facility in Memphis. He said the State of Tennessee mandated eight

hours of training to obtain a handgun carry permit. During the training, instructors taught

firearm safety, marksmanship, the legal aspects of self-defense, firearm maintenance,

ammunition, and methods of carrying the firearm. Mr. Harper stated that students were

required to pass written and marksmanship tests to obtain a permit. During the

- 20 -

marksmanship test, students were required to fire fifty rounds at a target, including

twenty rounds fired from three yards, twenty rounds from five yards, and ten rounds from

seven yards. The written examination consisted of thirty-three questions with a mixture

of true/false questions, multiple choice questions, and “fill in the blank” questions.

Mr. Harper testified that the Defendant graduated from the class on April 27,

2000. The Defendant obtained perfect scores on both the marksmanship and written

tests.

On cross-examination, Mr. Harper testified that Rangemaster offered low-light

shooting scenario classes. He stated that in the permit class, students were taught not to

discharge a firearm in the dark due to the inability to identify the target. Mr. Harper

found no record of the Defendant‟s having taken the low-light scenario class.

J.C. was age six at the time of the trial and testified that when she lived with the

victims, her grandparents slept in one bedroom, she and her mother slept in another

bedroom, and A‟Reco slept on the couch. J.C. recalled that the Defendant shot her

grandparents and her mother. She said that the gun was loud and that she was afraid.

Her grandparents were in their bedroom when they were shot. J.C. saw her grandmother

on the floor and her grandfather with blood on his chin. J.C. said that the Defendant hurt

her mother in the living room and that she saw her mother lying by the door. J.C. stated

that she had been sleeping prior to the shooting and that she did not see anyone fighting

before her grandparents were shot.

J.C. testified that after the shooting, she and the Defendant left in her mother‟s car.

She said that she did not want to go with the Defendant. J.C. said they later got into

another vehicle with additional people and ultimately drove to the police station.

On cross-examination, J.C. acknowledged that other people had spoken to her

about the shooting. She did not recall telling anyone that the Defendant and her

grandfather fought and that her grandfather kicked the Defendant.

J.C. was interviewed by a forensic interviewer at the Child Advocacy Center. By

agreement of the parties, several portions of J.C.‟s interview were played for the jury.

The recording of the interview was not received as an exhibit and is not included in the

appellate record.

Adrienne Lewis, the mother of the Defendant‟s eight-year-old daughter, Y.C.,

testified for the defense that in January 2012, she was living in Memphis and was

working from 12:15 a.m. to 7:45 or 8:00 a.m. She said that on January 19, 2012, the

Defendant called her between 5:00 and 6:00 a.m. and sounded scared. He said he needed

- 21 -

her to help him “think” and asked her to leave work. Ms. Lewis met the Defendant at a

truck stop down the street from her workplace approximately twenty minutes later. The

Defendant and J.C. were in Pashea‟s black Cadillac Escalade. The Defendant, J.C., and

Ms. Lewis left in Ms. Lewis‟s Ford Taurus and went to her home.

Ms. Lewis testified that the Defendant was nervous, scared, shaking, and crying.

She said that he was “constantly apologizing” and told her, “I just don‟t want you to

judge me and I want to tell you before you hear it from someone else.” He said he shot

“them” and “flipped out.” He told Ms. Lewis that he and Pashea began arguing between

midnight and 1:00 a.m. because he believed that she had cheated on him, that Pashea

initially denied it but later admitted to being with another man, and that Pashea provided

details about what had occurred. He stated that he attempted to leave but that Pashea

would not allow it. He also stated that while they were arguing, Pashea‟s father came out

of his bedroom and kicked the Defendant in the chest. The Defendant said he “flipped

out” and began shooting. Ms. Lewis asked the Defendant how he knew who to shoot,

and he replied, “[I]t was dark in the room. I just started shooting.” The Defendant said

he knew that if he did not shoot his way out of the house, “they [were] going to get him.”

He told Ms. Lewis that he did not know who had been shot but that he saw Pashea‟s leg

bleeding. He stated that A‟Reco had witnessed the incident and needed to tell the truth.

Ms. Lewis recalled that the Defendant was still scared and agitated when he was

describing what had occurred.

Ms. Lewis testified that the Defendant told her that he wanted his children with

him because he did not know when he would see them again. They went to Ms. Lewis‟s

home to retrieve their daughter and later went to the Defendant‟s sister‟s home. While at

his sister‟s home, the Defendant learned from a television broadcast that at least two of

the victims had died. Ms. Lewis said the Defendant began crying, dropped his head, and

walked out of the room. After leaving the Defendant‟s sister‟s home, they drove to the

Raines Station precinct, where the Defendant surrendered to the police.

On cross-examination, Ms. Lewis testified that the Defendant never told her that

he shot Patricia. He also did not tell her that anyone shot at him or that anyone had any

other weapon.

At the conclusion of the evidence, the jury convicted the Defendant of three counts

of first degree premeditated murder, attempt to commit first degree murder, possession of

a firearm with the intent to go armed during a dangerous felony, employing a firearm

during the commission or attempt to commit a dangerous felony, and unauthorized use of

a motor vehicle. The jury found the predicate felony for both firearm offenses to be

attempted first degree murder.

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Penalty Phase

Stacey Polk, Patricia‟s niece, testified that she and Patricia grew up together in the

same house and were raised as sisters. Ms. Polk said that their relationship continued

into adulthood and that a hole existed in her family due to Patricia‟s death. Ms. Polk

testified regarding the effect of Patricia‟s death on Patricia‟s sons, Antonio and A‟Reco.

She said that her family did not see Antonio for weeks and that he would not return calls

or respond to text messages. She described Antonio as a “functioning depressed adult.”

Antonio also had a daughter, whom Patricia never met.

Ms. Polk testified that following the killings, A‟Reco stopped communicating with

the family except through text messages. A‟Reco did not resume communications until

the family began preparing for the trial. When A‟Reco first met with the prosecutors, he

fell on his knees, cried, and apologized. His family told him that he did nothing wrong.

Oddye Fisher, Arithio‟s younger brother, testified that Arithio was a role model

and that through Arithio‟s encouragement, Oddye attended college with basketball and

academic scholarships. Arithio had cancer when he was a senior in high school and had

lost one of his kidneys and a portion of his stomach. In May 2013, Oddye received the

worst employment evaluation that he had ever received, and the supervisor included a

note stating that everything Oddye had experienced would have affected anyone. Oddye

said that Antonio and Arithio were best friends and that Antonio attended counseling and

missed work following his family‟s deaths. Antonio and the remainder of the family had

tried to fill the hole created by the victims‟ deaths.

Kyvonna Davis, Pashea‟s cousin, testified that she and Pashea were best friends

and were like sisters. Ms. Davis said that she felt lost without Pashea and that Pashea‟s

death had left a “gap” in her family. Ms. Davis testified that J.C. missed Pashea and had

written Pashea letters. J.C. also had imagined that Pashea was with her and had

pretended to have conversations with her.

Memphis Police Lieutenant Anthony Mullins, an expert in blood stain patterns and

crime scene investigation, testified that Pashea was shot twice in the leg and that he

believed she was shot while in the master bedroom or in the hallway before she entered

the master bedroom. He noted one of the photographs taken of Pashea‟s leg showed that

blood had saturated her pants. A splinter of wood was on Pashea‟s pants, and splintered

wood was found only in the master bedroom. Lieutenant Mullins stated that because the

splintered wood was stuck to the blood on the leg of her pants, the blood was there before

the splinter.

- 23 -

Lieutenant Mullins testified that impact spatter stains were found on the bottom of

Pashea‟s feet. He explained that the blood stains had a specific pattern indicating that

someone else‟s blood impacted her feet. He further explained that determining Pashea‟s

position when the blood impacted her feet was difficult because she moved after the

blood struck her feet.

Lieutenant Mullins testified that he believed Pashea and the Defendant were

arguing in the kitchen, Pashea‟s bedroom, and the bathroom when Arithio intervened.

Lieutenant Mullins concluded that Arithio, Patricia, and Pashea moved to the master

bedroom with the door closed, and the Defendant began shooting through the door.

Lieutenant Mullins noted that one bullet traveled through the door and continued into the

bedroom wall and closet. Another bullet traveled through the door frame, and Lieutenant

Mullins concluded the gun was fired from close range because gunpowder residue was on

the door frame. He believed that Pashea was in the master bedroom when her parents

were shot and that blood on the bottom of her feet belonged to one of her parents.

Lieutenant Mullins testified that he believed Arithio was shot first. He also

believed that when the Defendant shot through the door, one of the bullets struck Arithio

as he was bent over attempting to hold the door closed. The bullet entered Arithio‟s neck

and exited through his upper back, which Lieutenant Mullins said was consistent with

Arithio being bent over when he was shot. Arithio fell on the bed, where a large pool of

blood was found. The wound was fatal, and he expired quickly. Lieutenant Mullins said

the Defendant was able to get the door open with Patricia and Pashea in the bedroom.

Lieutenant Mullins testified that in his opinion, Patricia was shot and that some of

her blood expelled onto the bed. Patricia then ran around the room and ended up on the

floor by the television. Lieutenant Mullins believed Patricia received additional gunshot

wounds while she was running around the bedroom. He noted multiple defects in the

walls caused by bullets and said all of the shots could have been fired while the

Defendant was standing in one spot. Lieutenant Mullins stated that it appeared the

Defendant was “tracking” Patricia as she was attempting to escape.

Lieutenant Mullins testified that once Pashea left the master bedroom with the

Defendant, she transferred blood from what appeared to be her pants to the heater box at

the end of the hallway. Lieutenant Mullins said Pashea and the Defendant went to the

living room/dining room area where Pashea received either a fatal or immediately

incapacitating gunshot wound to her head. Lieutenant Mullins noted stippling on her face

and searing in the wound and said the muzzle of the gun was six inches or less from

Pashea‟s temple when the gun was fired.

- 24 -

Lieutenant Mullins testified that the shot through the arm of the couch would have

killed A‟Reco if he had been lying there. Lieutenant Mullins said the shot appeared to be

a deliberate and at a specific target. He also said that all of the shots appeared to be

deliberate, aimed shots except for the bullet that hit the wall near the ceiling in the master

bedroom.

Lieutenant Darren Goods testified that the Defendant indicated Pashea was in the

master bedroom when the shots were fired. Lieutenant Goods said that the Defendant

stated he used his shoulder to force his way into a room to get Pashea. Lieutenant Goods

said the master bedroom door was the only door with damage. He also said he did not

believe the 9-1-1 recordings supported the Defendant‟s claim that he left the house and

returned to retrieve the keys.

Lieutenant Goods testified that in the Defendant‟s oral statement, the Defendant

said A‟Reco normally slept on the couch but that in the written statement, the Defendant

said A‟Reco slept in the recliner. The Defendant also discussed walking into the living

room and shooting downward into the couch where A‟Reco generally slept. Lieutenant

Goods stated that the Defendant‟s actions suggested his intent to shoot A‟Reco.

Robert Gowen, a member of the capital defense team of the Shelby County Public

Defender‟s Office, testified for the defense that he initially assisted in representing the

Defendant. Mr. Gowen said that the defense presented a plea offer to the State. Defense

counsel spoke to the Defendant about settling the case, and the Defendant signed

paperwork agreeing to a plea whereby he would receive consecutive sentences of life

imprisonment without parole. Mr. Gowen explained that this was the most severe

sentence the Defendant could have agreed to receive. The offer was rejected by the

Shelby County District Attorney General.

Tawana Brown, the Defendant‟s sister, testified that she had two brothers and two

sisters and that the Defendant was her youngest sibling. They had the same biological

mother and father. During their childhood, their father served a sentence for a rape

conviction. Ms. Brown stated that when she and the Defendant were growing up, the

Defendant was funny, was not a bad person, and did not engage in fights.

Ms. Brown testified that the Defendant‟s male role model when he was younger

was their mother‟s husband, Jesse Harvey. Mr. Harvey and the Defendant were close,

and Mr. Harvey treated the Defendant and his siblings as though Mr. Harvey were their

biological father. Mr. Harvey passed away after complications from three aneurysms and

while the Defendant was comforting him. Ms. Brown believed the Defendant lost an

important person in his life and said he became quieter as a result.

- 25 -

Ms. Brown testified that the Defendant had two daughters, J.C. and Y.C. She said

Y.C. was age seven or eight at the time of the trial and was “crazy” about the Defendant.

She also said Y.C. regularly visited the Defendant and spoke to him on the telephone.

Ms. Brown believed it would hurt Y.C. if the Defendant were sentenced to death.

Ms. Brown testified that she loved Pashea and that Pashea was like a sister. Ms.

Brown had seen Pashea three days before the killings, and Pashea had discussed getting

married and moving into a condominium. Ms. Brown said she missed and loved the

Defendant. She apologized to the Fisher family on behalf of her family.

Adrienne Lewis testified that she met the Defendant at a party when she was age

fifteen and that they began a romantic relationship. She said Y.C. was born prematurely

and was hospitalized for two months. She said the Defendant visited Y.C. daily. Ms.

Lewis and the Defendant remained close friends and co-parented Y.C. Ms. Lewis stated

that Y.C. was age five when the Defendant was arrested. Ms. Lewis said that Y.C. and

the Defendant maintained a close relationship following his arrest but that Y.C. did not

understand why she could not see the Defendant. Ms. Lewis said it would hurt Y.C. if

the Defendant were sentenced to death. A video recording of Y.C. was shown to the jury

but was not received as an exhibit and is not included in the appellate record.

Tameka Rhodes, the Defendant‟s sister, testified that the Defendant was “fun” and

was someone in whom she could confide. She stated that the Defendant and Pashea

attended family dinners together and that she saw them as a happy couple. Ms. Rhodes

said that she and her mother still loved the Defendant and that he was sorry for what he

had done.

At the conclusion of the penalty phase, the jury found the following aggravating

circumstances beyond a reasonable doubt for each of the three first degree murder

convictions: (1) the Defendant “knowingly created a great risk of death to two (2) or

more persons, other than the victim murdered, during the act of murder,” and (2) the

Defendant committed mass murder. See T.C.A. § 39-13-204(i)(3), (12) (2014).3 The

jury also found that the aggravating circumstances outweighed the mitigating

circumstances beyond a reasonable doubt and imposed a sentence of death for each first

degree murder conviction.

3

The State also sought to establish as an aggravating circumstance that “[t]he murder was

committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or

prosecution of the defendant or another.” See T.C.A. § 39-13-204(i)(6) (Supp. 2011). The jury

did not find that the State had established this aggravating circumstance beyond a reasonable

doubt.

- 26 -

Following a separate sentencing hearing and pursuant to an agreement by the

parties, the trial court sentenced the Defendant to fifteen years as a Range I standard

offender for the conviction of attempt to commit first degree murder, three years at 100%

service for possession of a firearm with the intent to go armed during the commission of a

dangerous felony, six years at 100% service for employing a firearm during the

commission of a dangerous felony, and eleven months and twenty-nine days for

unauthorized use of a motor vehicle.

ANALYSIS

On appeal, the Defendant contends that (1) the evidence is insufficient to support

his convictions for first degree premeditated murder and attempted first degree murder;

(2) the trial court erred in denying the Defendant‟s motion to suppress his statements to

the police; (3) double jeopardy principles prohibit his dual convictions for possessing a

firearm with the intent to go armed during the commission of a dangerous felony and

employing a firearm during the commission or attempt to commit a dangerous felony; (4)

the trial court erred in admitting photographs of the victims during the penalty phase; (5)

the trial court erred in admitting recordings of two 9-1-1 calls made from the victims‟

residence around the time of the murders; (6) Lieutenant Goods‟ testimony during

redirect examination was improper in numerous respects; (7) Tennessee‟s death penalty

scheme constitutes cruel and unusual punishment; (8) Tennessee‟s death penalty scheme

is unconstitutional in numerous other respects; and (9) the Defendant‟s sentences of death

are disproportionate.

I. Sufficiency of the Evidence

The Defendant contends that the evidence is insufficient to support his convictions

for three counts of first degree premeditated murder and attempted first degree murder.

He argues that the evidence is insufficient to support premeditation. The State responds

that the evidence is sufficient to support the convictions. We agree with the State.

In determining the sufficiency of the evidence, the standard of review is “whether,

after viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319 (1979); see State v. Vasques, 221 S.W.3d 514,

521 (Tenn. 2007). The State is “afforded the strongest legitimate view of the evidence

and all reasonable inferences” from that evidence. Vasques, 221 S.W.3d at 521. The

appellate courts do not “reweigh or reevaluate the evidence,” and questions regarding

“the credibility of witnesses [and] the weight and value to be given the evidence . . . are

resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see

State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).

- 27 -

“A crime may be established by direct evidence, circumstantial evidence, or a

combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see State v.

Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). “The standard of review „is the same whether

the conviction is based upon direct or circumstantial evidence.‟” State v. Dorantes, 331

S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.

2009)).

A defendant commits criminal attempt when he acts “with the kind of culpability

otherwise required for the offense . . . [and] [a]cts with intent to cause a result that is an

element of the offense, and believes the conduct will cause the result without further

conduct on the person‟s part[.]” T.C.A. § 39-12-101(a)(2). Relevant to this case, first

degree murder is the unlawful, intentional, and premeditated killing of another. Id. §§

39-13-201 (2010), 39-13-202(a)(1). In the context of first degree murder, intent is shown

if the defendant has the conscious objective or desire to cause the victim‟s death. State v.

Page, 81 S.W.3d 781, 790-91 (Tenn. Crim. App. 2002); T.C.A. § 39-11-106(a)(18)

(Supp. 2011) (amended 2014) (defining intentional as the “conscious objective or desire

to engage in the conduct or cause the result”). A premeditated act is one which is

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 preexist in the mind of the accused for any

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

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

determine whether the accused was sufficiently free from excitement and

passion as to be capable of premeditation.

T.C.A. § 39-13-202(d). The question of whether a defendant acted with premeditation is

a question of fact for the jury to be determined from all of the circumstances surrounding

the killing. State v. Davidson, 121 S.W.3d 600, 614 (Tenn. 2003). Proof of

premeditation may be shown by direct or circumstantial evidence. State v. Brown, 836

S.W.2d 530, 541 (Tenn. 1992). “It is not necessary that the purpose to kill preexist in the

mind of the accused for any definite period of time.” T.C.A. § 39-13-202(d). As a result,

the jury “may infer premeditation from the manner and circumstances of the killing.”

State v. Jackson, 173 S.W.3d 401, 408 (Tenn. 2005); see State v. Vaughn, 279 S.W.3d

584, 595 (Tenn. Crim. App. 2008). Our supreme court has provided a list of factors

which “tend to support the existence” of premeditation and deliberation. See Bland, 958

S.W.2d at 660. The list includes the use of a deadly weapon upon an unarmed victim, the

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

of procurement of a weapon, preparations before the killing for concealment of the crime,

and calmness immediately after the killing. Id. (citing Brown, 836 S.W.2d at 541-42,

State v. West, 844 S.W.2d 144, 148 (Tenn. 1997)).

- 28 -

The record supports the jury‟s finding that the Defendant acted with premeditation

in killing Pashea, Arithio, and Patricia and in attempting to kill A‟Reco. When viewed in

the light most favorable to the State, the evidence established that the Defendant became

angry with Pashea after she admitted to cheating and that they argued. Pashea retreated

to her parents‟ bedroom and closed the door. The Defendant rammed the door and fired

his gun at the door in an effort to get to Pashea inside the bedroom. Once inside the

bedroom, the Defendant continued shooting his gun. Fired cartridge casings were found

throughout the bedroom, and multiple defects caused by bullets were found in the walls.

Arithio suffered a bullet wound to the neck and a grazing wound to the upper chest.

Patricia was shot in the chest, the left side, and the abdomen. At some point, the

Defendant also shot Pashea in the leg.

The Defendant acknowledged that he walked through the house shooting his gun.

At one point, he loaded another magazine into the gun and continued shooting. He

grabbed Pashea and dragged her down the hallway to the front of the house. Pashea

attempted to get away, and the Defendant told her that he was going to shoot her. The

Defendant then shot Pashea in the head at close range.

The Defendant also shot the gun into the couch where he believed A‟Reco was

sleeping. The Defendant maintained in his statement to the police that he shot at the

victims because he knew guns were in the house and that he feared A‟Reco and Arithio.

The jury by its verdict rejected this claim. Rather, the evidence established that none of

the victims were armed and that no firearms were found in the house. We note that the

Defendant did not render aid to the victims or summon help. Rather, he fled the scene in

Pashea‟s vehicle. He later abandoned the vehicle, got in another vehicle, and traveled to

multiple locations. It was not until he was contacted by police officers that he

surrendered. We conclude that this evidence is sufficient to establish premeditation and

that the Defendant is not entitled to relief on this basis.

II. Denial of the Suppression of the Defendant’s Statements

The Defendant asserts that the trial court erred in denying his motion to suppress

his statement to the police. According to the Defendant, his statements were obtained in

violation of his Fourth Amendment rights to a prompt probable cause determination

following a warrantless arrest. The State responds that the Defendant‟s statements were

properly admitted during the trial. We agree with the State.

1. Suppression Hearing

- 29 -

Before the trial, the Defendant filed a motion to suppress his statement to the

police on the basis that it was obtained in violation of the Fourth, Fifth, Sixth, and

Fourteenth Amendments of the United States Constitution and Article I, Sections 8 and 9

of the Tennessee Constitution. The Defendant alleged that he was arrested without a

warrant on January 19, 2012, at 8:43 a.m., after he surrendered to the police. He further

alleged that before giving his statement, he was denied medical treatment, that his request

for counsel was ignored, that he only had a ninth grade education, and that he smoked

marijuana within twenty-four hours of giving his statement. The Defendant also alleged

that “[a]n affidavit of complaint was sworn against [him on] January 20, 2012 at 11:34

a.m., almost 27 hours after his arrest.” In the “Analysis” portion of his motion, the

Defendant asserted

he was arrested without a warrant, and that his mental and medical

conditions at the time of his warrantless arrest demonstrate that any

statements made to the police were not voluntary under State v.

Huddleston, [924 S.W.2d 66 (Tenn. 1996)], thus violating his Fifth

Amendment right against self-incrimination. Defendant‟s Sixth

Amendment right to counsel was violated; additionally, he was held

unlawfully while police elicited a statement, waiting to get the statement

before taking Defendant before a magistrate.

The remainder of his motion discussed the issue of the voluntariness of his statement

under the Fifth Amendment and Article I, section 9 of the Tennessee Constitution and

whether his right to counsel was violated under the Sixth Amendment.

During the suppression hearing, Lieutenant Goods testified that he first met with

the Defendant in the interview room on January 19, 2012, at 2:30 p.m., when he escorted

the Defendant to the restroom. Lieutenant Goods said Sergeant Murray, the case

coordinator, assigned him to interview the Defendant later that afternoon. Lieutenant

Goods stated that before conducting an interview of a suspect, a victim, or a witness,

officers gathered as much evidence as possible in order to determine whether the person

was being truthful.

Lieutenant Goods testified that at approximately 4:20 or 4:25 p.m., he and

Sergeant Joe Stark entered the interview room to question the Defendant. Neither officer

was armed. The Defendant was not handcuffed but had one ankle shackled to a bench

that was bolted to the floor. Lieutenant Goods said he and Sergeant Starks introduced

themselves, told the Defendant they were investigating the homicides, and obtained

personal information from the Defendant.

- 30 -

Lieutenant Goods testified that the Defendant was “very coherent” and had no

issues understanding the questions. The Defendant stated he had completed the ninth

grade, denied consuming alcohol or prescription drugs prior to the interview, and said

that he had smoked marijuana at 8:00 or 9:00 p.m. the previous night. Lieutenant Goods

said the Defendant did not appear to have any affects from smoking marijuana when he

was interviewed.

Lieutenant Goods testified that before he advised the Defendant of his Miranda

rights, the Defendant said “something to the affect that I‟m sorry. I didn‟t mean to do it.”

The Defendant then whispered, “I‟m sorry.” The officers told the Defendant to stop

talking and advised him of his rights. Lieutenant Goods stated that he read the Advice of

Rights form to the Defendant and then had the Defendant read the form aloud. The

Defendant wrote “yes” next to the questions of whether he understood his rights and

whether he wished to speak to the officers. Lieutenant Goods said the Defendant had no

questions regarding his rights or his understanding of his rights. The Defendant signed

the Advice of Rights form at 4:32 p.m.

Lieutenant Goods testified that the Defendant gave an oral statement, which was

not “exactly consistent with the evidence.” The officers confronted the Defendant with

the initial evidence from the scene and from medical personnel. Lieutenant Goods said

he played the recording of the 9-1-1 call during which Pashea begged the Defendant not

to kill her parents. The Defendant responded that Pashea was “playing” because he had

already shot her parents. Lieutenant Goods stated that the oral statement lasted

approximately one hour, during which time the Defendant changed his story more than

once. Lieutenant Goods also stated that while giving the oral statement, the Defendant

never stopped the interview and never requested counsel. Lieutenant Goods said that had

the Defendant requested counsel, he would have stopped the interview immediately.

Lieutenant Goods testified that the Defendant was not free to leave regardless of

his statements during the interview. Lieutenant Goods stated that the Defendant was

under arrest and was going to jail regardless of whether the Defendant stopped the

interview. Toward the beginning of the interview, Lieutenant Goods told the Defendant

that “you‟re going to jail. You just killed a family. You are going to jail.”

Lieutenant Goods testified that the Defendant said he was willing to give a written

statement. The Defendant was advised of his Miranda rights. A transcriptionist typed

Lieutenant Goods‟s questions and the Defendant‟s answers verbatim while the Defendant

watched on a monitor what the transcriptionist typed. Lieutenant Goods stated that there

were times when the Defendant stopped the transcriptionist and instructed her to correct

or change an answer. Once the statement was completed, the Defendant was given a

copy of the statement to read and to make corrections. Lieutenant Goods said that the

- 31 -

written statement began at 6:55 p.m., that the statement ended at 8:43 p.m., and that the

Defendant signed the statement at 10:02 p.m. Lieutenant Goods also said the Defendant

“made more corrections in his statement . . . than I‟ve ever seen in all my years of police

work.”

Lieutenant Goods testified that the Defendant may have gotten a scrape on his

back during the shooting. Lieutenant Goods said that Sergeant Stark offered to call an

ambulance when the Defendant was initially brought to the interview room and that the

Defendant declined. Lieutenant Goods stated that the Defendant never mentioned the

scrape or complained of his back hurting during the interview. Lieutenant Goods also

stated that had the Defendant requested medical attention, he would have stopped the

interview and requested an ambulance.

Lieutenant Goods testified that during the third or fourth question of the written

statement, the Defendant asked, “What if I want an attorney?” Lieutenant Goods said he

told the Defendant that they would stop the interview and allow him to consult with

counsel. Lieutenant Goods explained that the Defendant was being charged with three

homicides regardless of any statement. Lieutenant Goods stated that the Defendant was

“crystal clear” that he wished to continue with his statement. Lieutenant Goods also

stated that had the Defendant not been “crystal clear,” the officers would not have

continued the interview. Lieutenant Goods denied that the Defendant requested an

attorney and that the officers ignored the request and continued questioning him.

Lieutenant Goods testified that the Defendant did not appear to have difficulty

understanding the interview process, his rights, or the questions. Lieutenant Goods said

the Defendant was attentive and recalled details. He also said that the changes the

Defendant made in his statement appeared to be an effort to benefit him or mitigate his

conduct. Lieutenant Goods stated that the Defendant‟s lack of a high school education

did not affect his ability to answer the questions appropriately. Lieutenant Goods

recalled that at one point, the officers decided to take a break and were about to leave

when the Defendant stated that he wanted to continue the interview. The officers

continued the interview.

Lieutenant Goods testified that neither he nor his partner touched the Defendant,

threatened him, or coerced him into giving a statement. Lieutenant Goods stated that

after the Defendant signed his statement, the Defendant commented that “he didn‟t know

why we were so upset. It wasn‟t a big deal.” Lieutenant Goods told the Defendant that

“he had lost his f------ mind. He had just killed a whole family.” The officers called for a

transport car to take the Defendant to the jail for processing. Lieutenant Goods did not

have any further contact with the Defendant during the course of his investigation.

- 32 -

On cross-examination, Lieutenant Goods testified that the Defendant took one

hour and fifteen minutes to review his statement and to make corrections. The statements

were not audio recorded. On redirect examination, Lieutenant Goods testified that the

Defendant was provided food, water, and restroom breaks. Lieutenant Goods said he

continued questioning the Defendant because he believed that the Defendant was lying

during his initial statement.

Following the hearing, the trial court entered an order denying the Defendant‟s

motion to suppress. The trial court found that the Defendant made a knowing and

voluntary waiver of his rights, was not intoxicated at the time of questioning, did not

require medical care, did not make an unequivocal request for counsel, and gave a

voluntary statement to the police.

2. Analysis

As a preliminary matter, the State asserts that the Defendant has waived the Fourth

Amendment issue by failing to raise the issue during the suppression hearing or in his

motion for a new trial. We note the Defendant included no argument or analysis on the

Fourth Amendment issue in his motion to suppress. Rather, he focused upon the Fifth

and Sixth Amendment issues and did not raise an alleged Fourth Amendment violation.

After the trial court issued its order, the Defendant did not request the court address the

Fourth Amendment issue. We conclude that the Defendant did not raise the alleged

Fourth Amendment violation in his motion to suppress or during the suppression hearing.

Furthermore, the Defendant failed to raise the issue in his motion for new trial.

Therefore, the issue is waived. See Tenn. R. App. P. 3(e), 36(a). Our review is limited to

plain error.

The Defendant bears the burden of persuading this court that the trial court

committed plain error and that the error was of sufficient magnitude that it probably

changed the outcome of the trial. State v. Bledsoe, 226 S.W.3d 349, 354-55 (Tenn.

2007). Under plain error review, relief will only be granted when five prerequisites are

met: (1) the record clearly establishes what occurred in the trial court, (2) a clear and

unequivocal rule of law was breached, (3) a substantial right of the accused was

adversely affected, (4) the accused did not waive the issue for tactical reasons, and (5)

consideration of the error is necessary to do substantial justice. State v. Gomez, 239

S.W.3d 733, 737 (Tenn. 2007).

The Fourth Amendment to the United States Constitution “requires a timely

judicial determination of probable cause as a prerequisite to detention.” Gerstein v.

Pugh, 420 U.S. 103, 125 (1975). When a person is arrested without a warrant, he or she

must be brought before a magistrate to “„seek a prompt judicial determination of probable

- 33 -

cause.‟” State v. Bishop, 431 S.W.3d 22, 42 (Tenn. 2014) (quoting Gerstein, 420 U.S. at

125); see Tenn. R. Crim. P. 5(a)(1); State v. Huddleston, 924 S.W.2d 666, 672 n.2 (Tenn.

1996). A delay of less than forty-eight hours is “presumptively reasonable.” Bishop, 431

S.W.3d at 42. When the delay exceeds forty-eight hours, the State must demonstrate that

“„a bona fide emergency or other extraordinary circumstance‟ caused the delay.” Id.

(quoting County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991)). A delay of less

than forty-eight hours may be unreasonable “if the delay is „for the purpose of gathering

additional evidence to justify the arrest‟ or if the delay is „motivated by ill will against the

arrested individual, or delay for delay‟s sake.‟” Id. (quoting McLaughlin, 500 U.S. at

56). Furthermore,

[c]ourts cannot ignore the often unavoidable delays in transporting arrested

persons from one facility to another, handling late-night bookings where no

magistrate is readily available, obtaining the presence of an arresting officer

who may be busy processing other suspects or securing the premises of an

arrest, and other practical realities.

McLaughlin, 500 U.S. 56-57.

When an officer fails to bring a defendant before a magistrate without unnecessary

delay, the exclusionary rule applies. Huddleston, 924 S.W.2d at 673. Under the “fruit of

the poisonous tree” doctrine, any evidence obtained due to a defendant‟s unlawful

detention must be excluded from the trial unless the defendant‟s statement was

“„sufficiently an act of free will to purge the primary taint‟” of the illegal detention.

Bishop, 431 S.W.3d at 42 (quoting Huddleston, 924 S.W.2d at 674-75). When a suspect

is arrested based on probable cause, the detention generally is not illegal until it “ripens”

into a Gerstein violation. Id. (citing Huddleston, 924 S.W.2d at 675). If the suspect gave

a statement “prior to the time the detention ripened into a constitutional violation, it is not

the product of the illegality and should not be suppressed.” Huddleston, 924 S.W.2d at

675.

We conclude that the Defendant has failed to establish the breach of a clear and

unequivocal rule of law. Nothing in the record shows when the judicial determination of

probable cause occurred. While the Defendant maintains that the judicial determination

of probable cause occurred at 11:34 a.m. on January 20, 2012, he has not cited to any

portion of the record to support his claim.4 Absent evidence of when the judicial

4

While the Defendant stated in his motion to suppress that the affidavit of complaint was sworn

against him at 11:34 a.m. on January 20, 2012, the affidavit of complaint was not included in the

appellate record.

- 34 -

determination of probable cause occurred, we cannot conclude that the delay was

unreasonable and in violation of the Fourth Amendment.

In any event, we note that even if the judicial determination of probable cause

occurred at 11:34 a.m. on January 20, 2012, the delay was within forty-eight hours and,

therefore, was not presumptively unreasonable. See Bishop, 431 S.W.3d at 42. Nothing

in the record shows that the delay was “„motivated by ill will against the arrested

individual, or delay for delay‟s sake.‟” Id. (quoting McLaughlin, 500 U.S. at 56).

Furthermore, the Defendant has failed to establish that the delay was “„for the purpose of

gathering additional evidence to justify the arrest.‟” Id. (quoting McLaughlin, 500 U.S. at

56). Rather, the officers had probable cause to arrest the Defendant based upon the 9-1-1

calls, A‟Reco‟s identification of the Defendant as the shooter, and the Defendant‟s flight

from the scene in Pashea‟s vehicle. See State v. Lewis, 36 S.W.3d 88, 98 (Tenn. Crim.

App. 2000) (stating that “[p]robable cause in the context of a warrantless arrest exists if,

at the time of the arrest, the facts and circumstances within the knowledge of the officers,

and of which they had reasonably trustworthy information, are sufficient to warrant a

prudent man in believing that the [defendant] had committed or was committing an

offense”) (citations omitted). Accordingly, we conclude that the Defendant‟s Fourth

Amendment rights were not violated and that he is not entitled to relief on to this issue.

III. Double Jeopardy

The Defendant contends that his dual convictions for possession of a firearm with

the intent to go armed during the commission of a dangerous felony and employing a

firearm during the commission or attempt to commit a dangerous felony violate double

jeopardy principles. The State concedes the convictions should merge, and we agree.

Our supreme court announced our current double jeopardy analysis in State v.

Watkins, 362 S.W.3d 530 (Tenn. 2012). In Watkins, the court abandoned the analysis

provided previously in State v. Denton, 938 S.W.2d 373 (Tenn. 1996), and adopted the

“same elements” analysis delineated by the United States Supreme Court in Blockburger

v. United States, 284 U.S. 299, 304 (1932). Therefore, whether dual convictions violate

double jeopardy principles requires a determination of “whether the convictions arise

from the same act or transaction.” Watkins, 32 S.W.3d at 557. If the convictions arise

from the same act or transaction, the second inquiry is whether the elements of the

offenses are the same or whether one offense is a lesser included offense of the other. Id.

If the elements are the same or one offense is a lesser included offense of the other, dual

convictions violate double jeopardy principles. Id. Appellate courts “will presume that

multiple convictions are not intended by the General Assembly” when the elements of the

offenses are the same or when one offense is a lesser included offense of the other. Id.

- 35 -

The jury found that the dangerous felony for both firearm convictions was

attempted first degree murder. Based upon the evidence presented at trial, we conclude

that the firearm convictions arose from the same act or transaction. Furthermore,

possession of a firearm with the intent to go armed during the commission of a dangerous

felony is a lesser included offense of employing a firearm during the commission of a

dangerous felony. State v. Fayne, 451 S.W.3d 362, 370 (Tenn. 2014). Accordingly, we

conclude that the Defendant‟s dual firearm convictions violate the principles of double

jeopardy. We remand the case to the trial court for entry of corrected judgment forms

reflecting merger of the possession of a firearm with the intent to go armed during the

commission of a dangerous felony conviction with the employing a firearm during the

commission or attempt to commit a dangerous felony conviction. See State v. Davis, 466

S.W.3d 49, 77-78 (Tenn. 2015) (providing that when dual convictions violate the

principles of double jeopardy, the lesser offense should be merged into the greater

offense).

IV. Admission of Photographs During the Penalty Phase

The Defendant contends that the trial court erred in admitting three photographs

depicting the face of each victim during the penalty phase of the trial. The State contends

that the trial court did not abuse its discretion in admitting the photographs. We agree

with the State.

During a jury-out hearing, the prosecutor stated that she was seeking to introduce

the three photographs in support of the mass murder aggravating circumstance. One

photograph was taken at the crime scene and depicted the side of Pashea‟s head and her

shoulder. The second photograph also was taken at the crime scene and depicted

Arithio‟s face after officers rolled over his body. The third photograph depicted

Patricia‟s face and was taken at the Med. Trial counsel objected and argued that the

photographs were unnecessary because the jury had convicted the Defendant of killing

three people. Counsel asserted that the mass murder aggravator had been established by

the jury‟s verdict and agreed to stipulate to the mass murder aggravator. The prosecutor

declined to stipulate and argued that the State was required to prove its case and that the

photographs would provide a greater impact than a stipulation.

The trial court found that while the photographs were “extremely, highly

prejudicial,” they were admissible during the penalty phase. The court noted that the

State was required to establish the aggravating circumstances. The court expressed

concern regarding the reaction of the victims‟ family upon viewing the photographs

during the penalty phase and any impact that such a reaction might have on the jury. The

prosecutor assured the court no outbursts would occur. During the penalty phase,

Lieutenant Mullins testified regarding the aggravating circumstances, and the three

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photographs were introduced to support his testimony. The record does not reflect any

outbursts from the trial spectators.

The Defendant maintains that the trial court abused its discretion in admitting the

photographs because the photographs were cumulative to evidence presented at the guilt

phase and because defense counsel had offered to stipulate to the mass murder

aggravator. In State v. Banks, 564 S.W.2d 947, 951 (Tenn. 1978), our supreme court

provided trial courts with guidance for determining the admissibility of relevant

photograph evidence. The trial court should consider: the accuracy and clarity of the

picture and its value as evidence; whether the picture depicts the body as it was found;

the adequacy of testimonial evidence in relating the facts to the jury; and the need for the

evidence to establish a prima facie case of guilt or to rebut the defendant‟s contentions.

Banks, 564 S.W.2d at 951. The supreme court noted the State‟s burden in establishing

that the probative value of particularly gruesome photographs outweighs any prejudicial

effect is often difficult to meet “[i]n the presence of an offer to stipulate the facts shown

in the photograph.” Id. This standard, however, “applies only during the guilt phase of

the trial under the more rigid guidelines established by our Rules of Evidence.” State v.

Odom, 336 S.W.3d 541, 566 (Tenn. 2011) (citing Banks, 564 S.W.2d at 949-51).

Although the Tennessee Rules of Evidence govern the admissibility of photographs at the

trial, the admission of photographs during the penalty phase of a capital case is governed

by Tennessee Code Annotated section 39-13-204(c). See id. at 564. The statute provides

for the admission of evidence on “any matter that the court deems relevant to the

punishment,” including “any evidence tending to establish or rebut the aggravating

circumstances . . . regardless of its admissibility under the rules of evidence.” T.C.A.

39-13-204(c); see also State v. Carter, 114 S.W.3d 895, 903 (Tenn. 2003) (providing that

under this statute, “any evidence relevant to the circumstances of the murder, the

aggravating circumstances relied upon by the State, or the mitigating circumstances is

admissible if such evidence has probative value in the determination of punishment”).

A trial court may use the Tennessee Rules of Evidence as guidance during the

penalty phase of a capital murder trial. Carter, 114 S.W.3d at 903. However, the Rules

of Evidence “should not be applied to preclude introduction of otherwise reliable

evidence that is relevant to the issue of punishment, as it relates to mitigating or

aggravating circumstances, the nature and circumstances of the particular crime, or the

character and background of the individual defendant.” State v. Sims, 45 S.W.3d 1, 14

(Tenn. 2001). Rather, the trial court must examine the “reliability, relevance, value, and

prejudicial effect” of the evidence. Id. “The admission of photographs lies within the

sound discretion of the trial court and will not be overturned on appeal absent a showing

that the trial court abused that discretion.” Odom, 336 S.W.3d at 565.

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We conclude that the trial court did not abuse its discretion in allowing the State to

introduce the photographs. The photographs were relevant to establishing the mass

murder aggravating circumstance. See T.C.A. § 39-13-204(i)(12). The photographs were

not unduly gruesome or unfairly prejudicial in light of the other evidence presented at the

trial, and the number of photographs was limited to one for each victim. The Defendant

is not entitled to relief with regard to this issue.

V. Admission of the Recordings of the 9-1-1 Calls

The Defendant maintains that the trial court erred in denying his motion to exclude

the audio recordings of the two 9-1-1 calls. He asserts that the recordings were irrelevant

and unfairly prejudicial. The State responds that the trial court did not abuse its

discretion in permitting the State to play the recordings to the jury. We agree with the

State.

Prior to the trial, the Defendant filed a motion to exclude the recordings and the

transcripts of the two 9-1-1 calls. He argued that the recordings were highly prejudicial.

Trial counsel stated that they were willing to stipulate to the identities of the three murder

victims and that their bodies were found after 9-1-1 dispatch sent ambulances to the

victims‟ home. The Defendant argued that as a result, the recordings had little probative

value and that playing the recordings would only elicit an emotional response from the

jury. He also requested that the transcripts of the calls be excluded as inherently

unreliable and inadmissible hearsay.

Following a hearing, the trial court entered an order on April 7, 2014, denying the

Defendant‟s motion to exclude the recordings. The trial court found that both calls were

relevant to establishing identity, state of mind, and premeditation.

With regard to the recording of the 9-1-1 call made by A‟Reco, the trial court

found as follows:

The caller clearly relays to the 911 operator the events that have occurred.

It is not difficult to hear the caller or the operator and both the caller and

operator can be easily understood. The call is relevant as it provides a

snapshot of the events surrounding the murders as they occurred in real

time. The caller identifies the perpetrator and provides details surrounding

the timeline of the murder and the state of mind and intent of the defendant.

While there appears to be a victim moaning in the background, this court

does not find the tape is inflammatory or overly prejudicial when weighed

against its probative value.

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During a hearing prior to entering the order, the trial court also stated that “the call

primarily consists of the caller relatively calmly informing the officers of the events that

have transpired” and that as a result, the recording of the call is not “overly

inflammatory.”

During a hearing prior to entering the order, the trial court also described the

“open line” call as “incredibly difficult to listen to. There is screaming. One of the

victims is moaning and the victim [is] pleading for her life, her parent‟s lives and the

child‟s life.” In its written order, the trial court found as follows:

The call is chaotic and contains multiple voices. There is screaming from

[the] victim, [Pashea] Fisher, the victim‟s small child[,] and the defendant.

In addition, at one point during the call, the subsequent call from [A‟Reco]

may be heard in the background and a victim can be heard moaning.

However, despite the fact that it is difficult to discern all of the statements

being made by the various individuals who can be heard on the call, this

court finds the call is highly relevant to the issue of identity and

premeditation. The call gives a real time snapshot of what occurred inside

the house at the time of the shooting. Additionally, the call contains the

statements of the defendant which may rebut the statement given by

defendant to police. Moreover, the tape is necessary to aid the state in

establishing a timeline of the events as they unfolded. For these reasons,

the court finds the probative value of the 911 call is great when compared

to the potential prejudice to the defendant; thus, the tape may be admitted at

trial.

The trial court found that the statements made during the calls qualified under the

excited utterance exception to the hearsay rule. See Tenn. R. Evid. 803(2). The trial

court also allowed the State to introduce a redacted version of the transcript of the 9-1-1

call made by A‟Reco but precluded the State from introducing a transcript of the “open

line” call.5 The trial court ordered collection of the copies of the transcript after the

recording was played and said a special instruction would be given to the jury.

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

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

it would be without the evidence.” Tenn. R. Evid. 401. Relevant evidence generally is

5

The Defendant does not challenge the trial court‟s ruling that the statements in the calls

qualified under the excited utterance exception to the hearsay rule or the court‟s determinations

regarding the transcripts. The transcript of the 9-1-1 call made by A‟Reco was not entered into

evidence and was not included in the appellate record.

- 39 -

admissible. Tenn. R. Evid. 402. Relevant evidence, however, may be excluded if its

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

of the issues, or misleading the jury, or by considerations of delay, waste of time, or

needless presentation of cumulative evidence. Tenn. R. Evid. 403. The admissibility of

evidence is within the sound discretion of the trial court, and this court will not overturn a

trial court‟s decision regarding the admissibility of the evidence absent an abuse of that

discretion. State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997); State v. Van Tran, 864

S.W.2d 465, 477 (Tenn. 1993).

We conclude that the trial court did not abuse its discretion in permitting the State

to introduce the recordings of the 9-1-1 calls. The Defendant argues that the trial court

erred in finding that the recordings were relevant to the issue of identity because identity

was not a disputed issue at the trial. The State, however, has the burden of establishing

every element of the charged offenses beyond a reasonable doubt, including the identity

of the Defendant as the perpetrator regardless of whether a defendant disputes those

issues at trial. Furthermore, the trial court correctly found that the recordings were

relevant to the issues of intent and premeditation, both of which were issues at the trial.

The recordings provided details surrounding the timeline of the shootings and were used

to rebut portions of the Defendant‟s statements to the police.

Relative to prejudice, the recording of the call made by A‟Reco consists of

A‟Reco calmly informing the officers of the shooting. The trial court properly found that

the record was not “overly inflammatory.” The “open line” call was more chaotic. The

recording reflected that J.C. was screaming, that Pashea and the Defendant were yelling,

that Pashea was begging the Defendant not to kill her parents, and that two shots were

fired, after which Pashea was no longer heard in the recording. However, in light of the

fact that the issues of premeditation and intent were highly contested at trial, we conclude

that the probative value of the two recordings was not substantially outweighed by the

danger of unfair prejudice. The Defendant is not entitled to relief on this issue.

VI. Admission of Lieutenant Goods’ Testimony

The Defendant asserts that the trial court erred in permitting Lieutenant Goods, on

redirect examination, to compare the victims‟ homicides with other killings he had

investigated and to testify regarding the impact the homicides in the present case had on

him. The Defendant also asserts that the court erred in permitting Lieutenant Goods to

compare the Defendant‟s attitude with the attitudes of other suspects Lieutenant Goods

previously interviewed.

On direct examination, Lieutenant Goods testified that after he played the open

line 9-1-1 recording for the Defendant, the Defendant stated that Pashea was “playing a

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game” when she begged him not to kill her parents because he already had shot them.

The prosecutor asked Lieutenant Goods how he responded, and he stated that he became

angry and said “[s]omething to the effect of [you‟re] either full of s--- or you‟ve lost your

f------ mind.” The prosecutor asked how the Defendant responded, and Lieutenant Goods

initially said that the Defendant stated that “it was no big deal.” Upon further questioning

by the prosecutor, Lieutenant Goods corrected his testimony and stated the Defendant‟s

statement that “it was not a big deal” occurred after the written statement was complete.

Lieutenant Goods clarified that the Defendant did not respond when Lieutenant Goods

became angry.

Lieutenant Goods later testified on direct examination that as they were waiting on

a car to transport the Defendant to jail for processing, the Defendant “was cavalier about

what had happened.” Lieutenant Goods said that he became angry and that the

Defendant made a statement to the effect that “I don‟t know why you‟re raising your

voice. It‟s not a big deal.” Lieutenant Goods said he told the Defendant that “he must be

out of his f------ mind.”

On cross-examination, trial counsel questioned Lieutenant Goods regarding the

importance of preserving evidence and taking notes because “memories fade over time.”

Lieutenant Goods testified that although he did not take notes during the interview,

Sergeant Stark took notes. In response to questioning by counsel, Lieutenant Goods said

his testimony was based upon his memory and his review of Sergeant Stark‟s report.

Counsel repeatedly questioned Lieutenant Goods about his not taking notes and not

recording the Defendant‟s interview.

Lieutenant Goods also testified on cross-examination that the policy of the

Memphis Police Department was not to record an interview with a suspect. Trial counsel

asked Lieutenant Goods whether it was the policy of the Memphis Police Department to

tell someone that they are “f------ crazy.” Lieutenant Goods acknowledged that he made

the statement to the Defendant twice and that the statement was his reaction to interacting

with the Defendant. Counsel further questioned Lieutenant Goods regarding whether

such a statement could be perceived as “mean” and could frighten someone.

On redirect examination, the prosecutor questioned Lieutenant Goods regarding

the policy of the Memphis Police Department against recording suspect interviews, and

Lieutenant Goods acknowledged that he would have recorded the interview had he been

required to do so. The prosecutor then questioned Lieutenant Goods as follows:

All right. You were asked some questions about calling the defendant or

asking the defendant if he was f------ crazy. I want to follow up on that

one. How many homicides do you think you‟ve participated in?

- 41 -

Trial counsel objected on the basis of relevance, and the trial court allowed the prosecutor

to continue after the prosecutor assured the court that she would “make it relevant.”

Lieutenant Goods testified that he had investigated about 200 homicides and that he

specifically recalled this investigation. The prosecutor asked him, “Did it get to you?,”

and he responded, “Yes.”

Trial counsel objected on the basis of relevance. The prosecutor responded that

counsel opened the door to the testimony by questioning Lieutenant Goods about whether

his use of particular language was consistent with police policy. The trial court allowed

the prosecutor to question Lieutenant Goods regarding whether his reaction to the

Defendant was a normal reaction based upon the number of cases that he had

investigated, but the court instructed the prosecutor to rephrase the question. The

prosecutor questioned Lieutenant Goods as follows:

Q. You said you remember this one. Why do you remember

this one?

A. Because of the 911 tape, because of [J.C.] and listening to

that tape and the first thing that I hear was her screaming, and

the fact that we don‟t get many triple homicides in this city at

one time and this was a triple homicide.

Q. Do you call every person that is interviewed by yourself or

ask every person that you interview are they f------ crazy?

A. No, ma‟am.

Q. And what was the reason for asking [the Defendant] was

he f------ crazy?

A. He had a very cavalier, nonchalant attitude about the entire

thing. And he made a statement I don‟t know why you‟re

upset, it‟s no big deal or something along those lines, and so

that was my response to that statement.

“The admissibility of testimony and other evidence, as well as the scope of

redirect examination, is within the discretion of the trial court, whose ruling will not be

reversed absent an abuse of that discretion.” State v. Chearis, 995 S.W.2d 641, 645

(Tenn. Crim. App. 1999) (citing State v. Barnard, 899 S.W.2d 617, 624 (Tenn. Crim.

App. 1994)). The trial court “„has discretion to permit the witness on redirect to testify

about new facts that were not mentioned on direct or cross-examination.‟” State v.

- 42 -

Danny Owens, No. M2012-02717-CCA-R3-CD, 2014 WL 1173371, at *19 (Tenn. Crim.

App. Mar. 24, 2014), (citing Neil P. Cohen et al., Tennessee Law of Evidence §

6.11[6][b] (4th ed. 2000)), perm. app. denied (Tenn. Sept. 25, 2014).

Contrary to the Defendant‟s argument on appeal, the record reflects the trial court

did not allow the prosecutor to elicit testimony from Lieutenant Goods comparing the

victims‟ homicides to other homicides he had investigated. Rather, after trial counsel

objected to the prosecutor‟s question about whether the homicides in this case affected

Lieutenant Goods, the court instructed the prosecutor to rephrase the question. The

prosecutor abandoned the line of questioning and asked Lieutenant Goods why he

recalled the homicides.

Lieutenant Goods‟s testimony that he specifically recalled these homicides

because of the 9-1-1 calls and because the investigation was a triple homicide rebutted

defense counsel‟s challenge on cross-examination to Lieutenant Goods‟s memory of the

events. Evidence that is not admissible based on relevance may be admitted if the

defendant “opens the door” by putting the issue into controversy. The doctrine of

“„opening the door‟ is an equitable principle that permits a party to respond to an act of

another party by introducing otherwise inadmissible evidence.” State v. Gomez, 367

S.W.3d 237, 246 (Tenn. 2012). A party who raises an issue at trial “„expand[s] the realm

of relevance,‟ and the opposing party may be permitted to present evidence on that

subject.” Id. (internal citations omitted). We conclude that counsel opened the door to

the testimony during cross-examination and that, as a result, Lieutenant Goods‟s

testimony regarding why he recalled the homicide was properly admitted.

Regarding Lieutenant Goods‟s testimony on redirect examination explaining why

he had cursed at the Defendant, we note that Lieutenant Goods provided the same

testimony on direct examination relative to the Defendant‟s “cavalier, nonchalant

attitude” without any objection by the Defendant. Therefore, this issue is waived. See

Tenn. R. Evid. 103(a)(1) “Error may not be predicated upon a ruling which admits ...

evidence unless a substantial right of the party is affected, and ... a timely objection ...

appears of record, stating the specific ground of objection if the specific ground is not

apparent from the context[.]”); see also T.R.A.P. 36(a) (“Nothing in this rule shall be

construed as requiring relief be granted to a party responsible for an error or who failed to

take whatever action was reasonably available to prevent or nullify the harmful effect of

an error.”).

Furthermore, we conclude that even if the admission of Lieutenant Goods‟s

testimony on redirect examination was error, the Defendant failed to demonstrate that the

trial court‟s error “more probably than not affected the judgment or would result in

prejudice to the judicial process.” T.R.A.P. 36(b); see also State v. Rodriguez, 254

- 43 -

S.W.3d 361, 375 (Tenn. 2008) (applying Tennessee Rule of Appellate Procedure 36(b)

harmless error review to trial court‟s erroneous admission of evidence).

VII. Cruel and Unusual Punishment

The Defendant asserts that Tennessee‟s death penalty scheme constitutes cruel and

unusual punishment under the United States and Tennessee Constitutions. As a

preliminary matter, the State asserts that the Defendant has waived these claims by failing

to raise them in the trial court. In the Defendant‟s amended motion for a new trial, he

claimed that the trial court erred in denying a motion to dismiss the indictment due to the

unconstitutionality of Tennessee‟s death penalty scheme and of the death penalty in

general. Neither the Defendant‟s motion to dismiss nor the trial court‟s order denying the

motion is included in the appellate record. The Defendant, as the appealing party, has the

burden of preparing a complete and accurate record relating to the issues on appeal. See

T.R.A.P. 24(b). Because the Defendant has not prepared an adequate record on appeal,

this issue is waived.

Regardless of waiver, we note that our supreme court has rejected claims that

capital punishment violates the state and federal constitutions. See State v. Black, 815

S.W.2d 166, 188-91 (Tenn. 1991); see also Baze v. Rees, 553 U.S. 35, 47 (2008)

(reaffirming that “capital punishment is constitutional” and upholding Kentucky‟s lethal

injection protocol); Keen v. State, 398 S.W.3d 594, 600 n.7 (Tenn. 2012) (stating that our

supreme court “has held, and repeatedly affirmed, that capital punishment itself does not

violate the state and federal constitutions”).

The Defendant maintains that the death penalty is imposed in an arbitrary and

unreliable fashion in Tennessee because the decision of whether to seek the death penalty

depends upon the county in which the trial is held. The Defendant, however, fails to

establish that the geographic distribution of death sentences undermines the

constitutionality of the death penalty. Rather, our supreme court has held that the

discretion afforded to prosecutors to choose whether to seek the death penalty in a

particular case does not render the death penalty unconstitutional. See State v. Banks,

271 S.W.3d 90, 154-55 (Tenn. 2008).

The Defendant asserts that “[l]engthy delays in the execution of a sentence of

death rob capital punishment of the penological values of deterrence or retribution” as

concluded by Justice Breyer in his dissent in Glossip v. Gross, __ U.S. __, __, 135 S.Ct.

2726, 2765-73 (2015). The Tennessee Supreme Court has held that the death penalty

“serves the valid and legitimate penological objectives of deterrence and retribution.”

Banks, 271 S.W.3d at 160-61. Moreover, as Justice Thomas wrote, “I am unaware of any

support in the American constitutional tradition or in this Court‟s precedent for the

- 44 -

proposition that a defendant can avail himself of the panoply of appellate and collateral

procedures and then complain when his execution is delayed.” Knight v. Florida, 528

U.S. 990 (1999) (Thomas, J., concurring in denial of certiorari). Justice Thomas

explained:

Consistency would seem to demand that those who accept our death

penalty jurisprudence as a given also accept the lengthy delay between

sentencing and execution as a necessary consequence. . . . It is incongruous

to arm capital defendants with an arsenal of “constitutional” claims with

which they may delay their executions, and simultaneously to complain

when executions are inevitably delayed.

Id. (citations omitted). Even if systematic delays could implicate a defendant‟s rights

under the state and federal constitutions, the Defendant has failed to demonstrate that any

delay in his case rendered his sentences of death unconstitutional.

Relying upon Woodson v. North Carolina, 428 U.S. 280 (1976) (plurality

opinion), the Defendant asserts that the death penalty is unreliable. In Woodson, the

United States Supreme Court held that the penalty of death is qualitatively different from

every other sentence. Woodson, 428 U.S. at 305. As a result, there is a corresponding

need in capital cases for reliability in the determination that death is the appropriate

punishment in a specific case. Id. In support of his claim, the Defendant discusses the

exonerations of defendants who had been sentenced to death, including three defendants

in Tennessee. The Defendant, however, fails to establish that those cases render

Tennessee‟s death penalty statute unconstitutional.

Finally, the Defendant argues that executions are rare and randomly implemented

and that executions are dependent upon the rate in which they proceed through the post-

conviction process. The Defendant, however, fails to explain how this undermines the

constitutionality of Tennessee‟s death penalty scheme. This court will not speculate, and

we conclude that the Defendant is not entitled to relief on this basis.

VIII. Constitutionality of the Death Penalty

The Defendant raises multiple constitutional challenges to Tennessee‟s capital

sentencing scheme. As we have held, the Defendant has waived the issues by failing to

include in the appellate record his motion to dismiss and the trial court‟s order denying

the motion. Regardless of waiver, however, the Defendant is not entitled to relief.

The Defendant submits that Tennessee‟s capital sentencing scheme fails to

meaningfully narrow the class of defendants eligible for the death penalty. He maintains

- 45 -

that “several” aggravating circumstances set forth in Tennessee Code Annotated section

39-13-204(i) have been so broadly interpreted that they do not provide a meaningful basis

for narrowing the class of defendants eligible for the death penalty. Our supreme court

has rejected this claim. See State v. Vann, 976 S.W.2d 93, 117-18 (Tenn. 1998); State v.

Keen, 926 S.W.2d 727, 742 (Tenn. 1994).

The Defendant asserts that the prosecutor has unlimited discretion in selecting

candidates for the death penalty which results in the arbitrary and capricious imposition

of the death penalty and an improper delegation of judicial authority. “While

Tennessee‟s district attorneys general have been entrusted with broad discretion in

making charging decisions, it would be inaccurate to characterize their discretion as

entirely unfettered.” Banks, 271 S.W.3d at 154. Rather, a district attorney general‟s

discretion is guided by the elements of the crime of first degree murder and by the

aggravating circumstances as defined by the legislature. “Furthermore, the United States

Supreme Court has recognized that prosecutorial discretion provides a vehicle for

individualized justice.” Id. at 155 (citing McCleskey v. Kemp, 481 U.S. 279, 311-12

(1987)). Our supreme court has “repeatedly rejected the argument that such discretion

raises a constitutional problem.” Id.

The Defendant maintains that the death penalty is imposed in a discriminatory

manner based on race, gender, and geography. The Defendant has failed to present any

evidence of discrimination in his case. Furthermore, this argument has been rejected by

our supreme court. See State v. Hester, 324 S.W.3d 1, 78 (Tenn. 2010); Banks, 271

S.W.3d at 155-58.

The Defendant contends that the jury instructions required jurors to agree

unanimously on the life sentence in violation of the holdings in Mills v. Maryland, 486

U.S. 367, 384 (1988) and McKoy v. North Carolina, 494 U.S. 433 (1990), which prohibit

a requirement that juries reach an unanimous agreement as to the existence of mitigating

circumstances. The trial court instructed the jury that “[t]here is no requirement of jury

unanimity as to any particular mitigating circumstance, or that you agree on the same

mitigating circumstance.” Our supreme court has held that this jury instruction does not

violate the mandates of Mills and McKoy. See State v. Sexton, 368 S.W.3d 371, 427

(Tenn. 2012).

The Defendant argues that requiring the jury to agree unanimously upon a life

verdict also violates Mills and McKoy. The Tennessee Supreme Court has rejected this

argument. Hester, 324 S.W.3d at 77; State v. Brimmer, 876 S.W.2d 75, 87 (Tenn. 1994).

The Defendant asserts that by requiring the jury to agree unanimously that the

aggravating circumstances do not outweigh the mitigating circumstances, Tennessee

- 46 -

Code Annotated section 39-13-204(f) impinges on a defendant‟s right to have each juror

consider and give effect to mitigating evidence. This argument has been rejected. See

State v. Nichols, 877 S.W.2d 722, 735 (Tenn. 1994).

The Defendant submits that a reasonable likelihood that jurors believe they must

unanimously agree to the existence of mitigating circumstances exists due to the trial

court‟s failure to instruct the jury on the meaning and function of mitigating

circumstances. The Defendant concedes that this argument was rejected generally in

State v. Thompson, 768 S.W.2d 239, 251-52 (Tenn. 1989). However, he maintains that

unlike the trial court in Thompson, the court in the Defendant‟s case did not give the

special additional instruction that “[b]ecause different people may have different views

about what tends to ameliorate or mitigate . . . you may weigh and consider any and all

circumstances which you feel tend to mitigate the offense or defendant in question.” See

Thompson, 768 S.W.2d at 251. In the present case, the court instructed the jury that

“[t]he Defendant does not have the burden of proving a mitigating circumstance. There

is no requirement of jury unanimity as to any particular mitigating circumstance, or that

you agree on the same mitigating circumstance.” The Tennessee Supreme Court has held

that this instruction “does not lead jurors to believe that they must unanimously agree on

the existence of a mitigating circumstance.” Banks, 271 S.W.3d at 157.

The Defendant maintains that the appellate review process in death penalty cases

is not “meaningful” because (1) the jury is not required to make written findings of

mitigating circumstances; (2) the informational basis for comparative review of first

degree murder convictions is inadequate and incomplete; (3) the methodology for

conducting comparative review is flawed; and (4) a defendant may waive presentation of

mitigating evidence without presenting an offer of proof regarding what mitigation is

available. Our supreme court has held that this claim is without merit. Id. at 159.

Finally, the Defendant contends that the appellate review process in death penalty

cases is constitutionally inadequate because the proportionality review employed violates

the due process clause of the United States Constitution and the law of the land provision

of the Tennessee Constitution. See U.S. Const. amend. XIV, § 1; Tenn. Const. art. I, § 8.

The Tennessee Supreme Court has recently upheld the comparative proportionality

review conducted by appellate courts in death penalty cases. See State v. Pruitt, 415

S.W.3d 180, 212-16 (Tenn. 2013). Our supreme court also has recognized that “[w]hile

comparative proportionality review provides an important safeguard against arbitrary and

capricious sentencing, it is not constitutionally required.” Banks, 271 S.W.3d at 159

(citing Bland, 958 S.W.2d at 663). The Defendant is not entitled to relief on this basis.

IX. Mandatory Review

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When reviewing a conviction for first degree murder and an accompanying

sentence of death, Tennessee Code Annotated section 39-13-206(c)(1) requires this court

to review the record to determine whether:

(A) The sentence of death was imposed in any arbitrary fashion;

(B) The evidence supports the jury‟s finding of statutory aggravating

circumstance or circumstances;

(C) The evidence supports the jury‟s finding that the aggravating

circumstance or circumstances outweigh any mitigating circumstances; and

(D) The sentence of death is excessive or disproportionate to the penalty

imposed in similar cases, considering both the nature of the crime and the

defendant.

1. Arbitrariness of Death Sentence

In accordance with the trial court‟s instructions, the jury unanimously determined

that the State proved beyond a reasonable doubt that aggravating circumstances applied

to each of the murders committed by the Defendant and that these aggravating

circumstances outweighed the mitigating circumstances. The record reveals that the

penalty phase was conducted pursuant to the applicable statutory provisions and the rules

of criminal procedure. We conclude that the Defendant‟s sentences of death were not

imposed in an arbitrary fashion.

2. Evidence Supporting Aggravating Circumstances

We next turn to the sufficiency of the evidence supporting the aggravating

circumstances found by the jury. In considering whether the evidence supports the jury‟s

findings of statutory aggravating circumstances, we must determine, after viewing the

evidence in the light most favorable to the State, whether a rational trier of fact could

have found the existence beyond a reasonable doubt of the aggravating circumstances.

State v. Rollins, 188 S.W.3d 553, 571 (Tenn. 2006) (citing State v. Reid, 164 S.W.3d 286,

314 (Tenn. 2005)).

The jury applied two aggravating circumstances when imposing the death penalty

for each of the Defendant‟s three convictions for first degree premeditated murder. First,

the jury found that the Defendant “knowingly created a great risk of death to two (2) or

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more persons, other than the victim murdered, during the act of murder.” T.C.A. § 39-

13-204(i)(3). This aggravating circumstance “„contemplates either multiple murders or

threats to several persons at or shortly prior to or shortly after an act of murder upon

which the prosecution is based.‟” Johnson v. State, 38 S.W.3d 52, 60 (Tenn. 2001)

(quoting State v. Cone, 665 S.W.2d 87, 95 (Tenn. 1984)). This aggravating circumstance

has been applied “„where a defendant fires multiple gunshots in the course of a robbery

or other incident at which persons other than the victim are present.‟” Id. (quoting State

v. Henderson, 24 S.W.3d 307, 314 (Tenn. 2000)). This aggravating circumstance also

has been applied where the defendant “„fired random shots with others present or

nearby,‟” “engaged in a shootout with others,” or “„actually shot people in addition to the

murder victim.‟” State v. Dotson, 450 S.W.3d 1, 79 (Tenn. 2014) (quoting Johnson, 38

S.W.3d at 60-61).

The evidence established that the Defendant shot and killed Arithio, Patricia, and

Pashea and that A‟Reco and J.C. were in the home at the time of the murders. While in

Arithio and Patricia‟s bedroom, the Defendant fatally shot Arithio and Patricia and shot

Pashea in her leg. The Defendant dragged Pashea to the living room where he fatally

shot her. J.C. was heard screaming in the recording of the 9-1-1 call as Pashea was shot.

The Defendant shot in an area where he believed A‟Reco was lying and fled with J.C.

We conclude that this evidence is sufficient to support the jury‟s finding of the (i)(3)

aggravating circumstance for each first degree premeditated murder.

The jury also applied the “mass murder” aggravating circumstance to each first

degree premeditated murder. See T.C.A. § 39-13-204(i)(12). The term “mass murder” is

defined as “the murder of three (3) or more persons, whether committed during a single

criminal episode or at different times within a forty-eight-month period.” Id. The

application of this aggravating circumstance requires proof that “the defendant has been

convicted of three or more murders in Tennessee within a period of forty-eight (48)

months prior to the sentencing hearing at which the murders are used to establish the

aggravating circumstance.” Dotson, 450 S.W.3d at 79 (emphasis in original). During

opening statements in the penalty phase, trial counsel conceded that this aggravating

circumstance applied. Prior to the penalty phase, the Defendant had been convicted of

murdering three people during the same criminal episode. This proof is sufficient to

support application of the mass murder aggravating circumstance to each first degree

premeditated murder.

3. Weighing Aggravating and Mitigating Circumstances

We next consider whether the evidence supports the jury‟s finding that the

aggravating circumstances outweighed any mitigating circumstances beyond a reasonable

doubt. We must determine “whether a rational trier of fact could find that the

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aggravating circumstances outweigh the mitigating circumstances beyond a reasonable

doubt when the evidence is taken in the light most favorable to the State.” State v.

Freeland, 451 S.W.3d 791, 820 (Tenn. 2014). The trial court instructed the jury

regarding the following mitigating circumstances: (1) the Defendant‟s lack of a

significant history of prior criminal activity; (2) evidence suggesting that the murder was

“out of character” for the Defendant; (3) evidence of “provocation or self-protection”; (4)

the relationship between the victims and the Defendant; (5) the Defendant‟s cooperation

with authorities and his actions in surrendering to the police; (6) the Defendant‟s role as a

“loving son and a loving family member”; (7) the Defendant‟s role as a “loving father”

who provides “love and support to his children”; (8) the loss of the Defendant‟s

stepfather, who was a “father figure” in the Defendant‟s life; (9) the impact of the

Defendant‟s death on his family; (10) any statements of remorse by the Defendant; and

(11) any other mitigating factor raised by the evidence.

The Defendant presented mitigation evidence during the penalty phase from his

former defense counsel, two of his sisters, and his former girlfriend. The testimony from

these witnesses established that the Defendant had three sisters, one brother, and two

daughters, that the Defendant‟s father was incarcerated during the Defendant‟s childhood,

that the Defendant‟s stepfather, with whom the Defendant was close, died after

complications from three aneurysms and while the Defendant was comforting him, that

he maintained a close relationship with his daughter, Y.C., while he was incarcerated,

that the Defendant‟s family was close and still loved him, and that the Defendant and his

counsel sought an agreement with the State whereby the Defendant would plead guilty to

the first degree murders in exchange for consecutive sentences of life without parole but

that the State rejected the proposed plea agreement.

The evidence presented to support the jury‟s finding of two aggravating

circumstances for each conviction of first degree premeditated murder was

overwhelming. In light of the overwhelming evidence to support the two aggravating

circumstances, the jury found that these aggravating circumstances outweighed the

mitigating circumstances beyond a reasonable doubt. Upon reviewing the statutory

mitigating circumstances and the mitigation evidence presented, we conclude that

viewing the evidence in the light most favorable to the State, a rational trier of fact could

have found that the (i)(3) and (i)(12) aggravating circumstances outweighed the

mitigating circumstances beyond a reasonable doubt.

4. Proportionality Review

When this court conducts the proportionality review required by Tennessee Code

Annotated section 39-13-206(c)(1)(D), we do not function as a “super jury” that

substitutes our judgment for the judgment of the sentencing jury. See State v. Godsey, 60

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S.W.3d 759, 782 (Tenn. 2001). Rather, we must take a broader perspective than the

jurors to determine whether the defendant‟s sentences are “disproportionate to the

sentences imposed for similar crimes and similar defendants.” State v. Thacker, 164

S.W.3d 208, 232 (Tenn. 2005) (quoting Bland, 958 S.W.2d at 664). The pool of cases

upon which we draw in conducting this analysis are “first degree murder cases in which

the State sought the death penalty, a capital sentencing hearing was held, and the jury

determined whether the sentence should be life imprisonment, life imprisonment without

possibility of parole, or death.” State v. Rice, 184 S.W.3d 646, 679 (Tenn. 2006).

The purpose of our review of other capital cases is not to identify cases that

correspond precisely with the particulars of the case being analyzed. State v. Copeland,

226 S.W.3d 287, 306 (Tenn. 2007). Rather, our task is to “identify and invalidate the

aberrant death sentence.” Thacker, 164 S.W.3d at 233. A sentence is not

disproportionate because other defendants have received a life sentence under similar

circumstances. State v. Carruthers, 35 S.W.3d 516, 569 (Tenn. 2000). A death sentence

is excessive or disproportionate where “the case taken as a whole is plainly lacking in

circumstances consistent with those in cases where the death penalty has been imposed.”

Thacker, 164 S.W.3d at 233 (quoting Bland, 958 S.W.2d at 668).

This court uses “the precedent-seeking method of comparative proportionality

review, in which we compare a case with cases involving similar defendants and similar

crimes.” Copeland, 226 S.W.3d at 305 (quoting State v. Davis, 141 S.W.3d 600, 619-20

(Tenn. 2004)). We examine “the facts and circumstances of the crime, the characteristics

of the defendant, and the aggravating and mitigating circumstances involved, and we

compare this case with other cases in which the defendants were convicted of the same or

similar crimes.” State v. Stevens, 78 S.W.3d 817, 842 (Tenn. 2002).

In conducting this comparison with regard to the nature of the crime, we generally

consider

(1) the means of death; (2) the manner of death; (3) the motivation for the

killing; (4) the place of death; (5) the victim‟s age, physical condition, and

psychological condition; (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 effect upon non-decedent victims.

State v. Rimmer, 250 S.W.3d 12, 35 (Tenn. 2008); see Rollins, 188 S.W.3d at 575. We

also compare the defendant‟s “(1) prior criminal record, if any; (2) age, race, and gender;

(3) mental, emotional, and physical condition; (4) role in the murder; (5) cooperation

with authorities; (6) level of remorse; (7) knowledge of the victim‟s helplessness; and (8)

potential for rehabilitation.” Rimmer, 250 S.W.3d at 35; Rollins, 188 S.W.3d at 575.

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The Defendant asserts that the comparative proportionality review adopted in State

v. Bland, 958 S.W.2d 651 (Tenn. 1997), is unconstitutionally flawed. He seeks to modify

proportionality review to broaden the pool of cases to be considered. The Tennessee

Supreme Court recently rejected this claim and affirmed the comparative proportionality

review adopted in Bland. See Pruitt, 415 S.W.3d at 217.

The evidence in the present case established that after the Defendant and Pashea

argued, Pashea retreated to her parents‟ bedroom and closed the door. The Defendant

rammed the door and fired his gun at the door in an effort to get to Pashea inside the

bedroom. The Defendant continued shooting once inside the bedroom. He shot Arithio

and Patricia multiple times and shot Pashea in the leg. The Defendant grabbed Pashea

and dragged her down the hallway to the front of the house while J.C. screamed. Pashea

attempted to get away. The Defendant told her that he was going to shoot her and then

shot her in the head at close range. The Defendant shot into the couch where he believed

A‟Reco was sleeping. The Defendant then fled the scene with J.C. in Pashea‟s vehicle.

The Defendant was the youngest of five siblings. When he was a child, his father

was imprisoned for a rape conviction. The Defendant had a close relationship with his

stepfather, who died while the Defendant was comforting him. The Defendant had two

daughters and continued to maintain a close relationship with Y.C. following his arrest.

The Defendant offered to enter a guilty plea to the charges in exchange for consecutive

sentences of life imprisonment without parole. The Shelby County District Attorney

General rejected the offer.

We conclude that the death sentences in this case are not excessive or

disproportionate when compared to the death penalty imposed in similar cases. The

sentence of death has been upheld in numerous cases in which the defendant committed

mass murder. See, e.g., Dotson, 450 S.W.3d at 1 (defendant shot and killed his brother

and three other adults and stabbed, beat, and killed his two nephews; multiple aggravators

including mass murder and great risk of death of two or more persons); State v. Jordan,

325 S.W.3d 1 (Tenn. 2010) (defendant shot and killed his estranged wife and two men at

his wife‟s place of employment; risk of death to two or more persons, felony murder, and

mass murder aggravators to the two men, same three aggravators and heinous, atrocious,

or cruel, and mutilation of body aggravators as to wife); State v. Holton, 126 S.W.3d 845

(Tenn. 2004) (defendant shot and killed his four children; mass murder and, as to three

victims, under-twelve-years-old aggravators); Carruthers, 35 S.W.3d at 516 (defendants

shot two men, strangled the mother of one of the men, and buried all three victims alive;

prior violent felony, heinous, atrocious, or cruel, felony murder, and mass murder

aggravators); State v. Smith, 868 S.W.2d 561 (Tenn. 1993) (defendant shot and stabbed

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his wife and two stepsons; heinous, atrocious, or cruel, murder to avoid apprehension,

felony murder, and mass murder aggravators).

Our supreme court has upheld the death sentence in numerous cases involving the

defendant‟s murder of his wife or girlfriend. See, e.g., State v. Ivy, 188 S.W.3d 132

(Tenn. 2006) (defendant shot estranged girlfriend multiple times; prior violent felony and

murder to avoid apprehension aggravating circumstances); State v. Faulkner, 154 S.W.3d

48 (Tenn. 2005) (defendant struck wife repeatedly in head with iron skillet; prior violent

felony aggravator); State v. Suttles, 30 S.W.3d 252 (Tenn. 2000) (defendant stabbed

girlfriend; prior violent felony and heinous, atrocious, or cruel aggravating

circumstances); State v. Keough, 18 S.W.3d 175 (Tenn. 2000) (defendant stabbed wife

after argument in bar and left her to bleed to death in car; prior violent felony

aggravator); State v. Hall, 8 S.W.3d 593 (Tenn. 1999) (defendant beat, strangled, and

drowned his wife following an argument; heinous, atrocious, or cruel aggravator); State

v. Hall, 958 S.W.2d 679 (Tenn. 1997) (defendant set fire to his girlfriend‟s car while she

was inside after she had ended the relationship; heinous, atrocious, or cruel and felony

murder aggravators); State v. Johnson, 743 S.W.2d 154 (Tenn. 1987) (defendant

suffocated wife with plastic bag; prior violent felony and heinous, atrocious, or cruel

aggravators).

In completing our review, we need not conclude that this case is identical to prior

cases in every respect, nor must this court determine that this case is “more or less” like

other death penalty cases. Thomas, 158 S.W.3d at 383. Rather, this court need only

identify aberrant death sentences by analyzing whether a capital case plainly lacks

circumstances similar to those cases in the pool of cases in which a death sentence has

been upheld. The penalties imposed by the jury in the present case are not

disproportionate to the penalty imposed for similar crimes.

X. Judgments for Non-Capital Offenses

During the sentencing hearing on the non-capital convictions, the parties

announced that they reached an agreement. The prosecutor described the agreement as

follows:

Your Honor, in 12-02160, count four, criminal attempted murder

first, the State is recommending and agreeing with the Defense as to that, as

a standard range one offender fifteen years at the Tennessee Department of

Correction[ ].

In count number five, possession of a firearm the recommendation is

three years at the Tennessee Department of Correction[ ], it is at one-

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hundred (100%) percent and will be consecutive [to] count[s] one, two,

three [the three convictions of first degree premeditated murder] and seven

[unauthorized use of a motor vehicle].

In count number six of the indictment, Your Honor, the

recommendation of both parties to employing a firearm during a dangerous

felony is again a six year sentence at one-hundred (100%) percent. It is to

be consecutive with counts one, two, three and seven, however concurrent

with count five.

And the remaining count seven, unauthorized use of a motor vehicle,

the lesser included offense, recommendation agreement between the parties

is eleven months and twenty nine days. It will be concurrent with

everything but counts five and six, the firearms.

The trial court accepted the sentences agreed upon by the parties.

The judgments, however, do not correctly reflect the concurrent or consecutive

nature of the sentences announced by the State and approved by the trial court.6 The

judgment for the conviction of attempt to commit first degree murder in count four of the

indictment provides that the fifteen-year sentence shall be served concurrently with

counts one, two, three, and seven and consecutively to counts five and six. The “Special

Conditions” portion of the judgment reflects that the fifteen-year sentence shall be served

concurrently with counts one, two, three, and six and consecutively to count five. The

judgment for the conviction of possession of a firearm with the intent to go armed during

the commission of a dangerous felony in count five of the indictment provides that the

three-year sentence shall be served concurrently with counts one, two, three, six, and

seven and consecutively to count four. The judgment for the conviction of employing a

firearm during the commission of a dangerous felony in count six provides that the six-

year sentence shall be served concurrently with counts one, two, three, and seven and

consecutively to count four. The judgment for the unauthorized use of a motor vehicle

conviction in count seven provides that the eleven-month, twenty-nine-day sentence shall

be served concurrently with counts one, two, three, four, and seven and consecutively to

count five.

6

In announcing that an agreement had been reached, trial counsel said, “We‟ve got paperwork

ready today.” The “paperwork” was not described during the sentencing hearing. Following

oral arguments in this case, this court entered an order requiring that the appellate record be

supplemented with any orders relating to the sentencing of the non-capital convictions. The trial

court clerk subsequently sent a notice to the clerk of this court that no such orders were located

in the case jackets.

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Because the trial court should have merged the possession of a firearm with the

intent to go armed during the commission of a dangerous felony in count five with the

employing a firearm during the commission or attempt to commit a dangerous felony

convictions in count six, we remand for the entry of corrected judgments reflecting

merger. The judgments also must be corrected to reflect accurately the sentences for the

non-capital offenses agreed upon by the parties.

CONCLUSION

After review of the record and the applicable law, we affirm the Defendant‟s

convictions and death sentences. We conclude that the trial court should have merged the

possession of a firearm with the intent to go armed during the commission of a dangerous

felony conviction with the employing a firearm during the commission or attempt to

commit a dangerous felony conviction. Pursuant to Tennessee Code Annotated section

39-17-1324(e)(1), the merged conviction must be served consecutively to the attempted

first degree murder conviction in count four, which should be reflected in the corrected

judgments. We remand for entry of corrected judgments reflecting merger and the

sentences for the non-capital offenses as agreed upon by the parties.

___________________________________

ROBERT H. MONTGOMERY, JR., JUDGE

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