State of Tennessee v. Marcus Thurman Wade

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

August 11, 2015 Session

STATE OF TENNESSEE v. MARCUS THURMAN WADE

Direct Appeal from the Circuit Court for Coffee County

No. 38,622 L. Craig Johnson, Judge

No. M2014-01418-CCA-R3-CD – Filed September 28, 2016

A jury in the Coffee County Circuit Court found the Appellant, Marcus Thurman Wade,

guilty of the first degree premeditated murders of Richard Elliott and Timothy Gill, the

felony murders in the perpetration of aggravated robbery of Mr. Elliott and Mr. Gill, and

the especially aggravated robbery of Mr. Elliott. The trial court merged the premeditated

murder convictions and the felony murder convictions and imposed a total effective

sentence of life without the possibility of parole plus thirty-five years. On appeal, the

Appellant challenges (1) the sufficiency of the evidence sustaining his convictions, (2)

the trial court‟s decision to allow testimony regarding a prior bad act of the Appellant, (3)

the trial court‟s refusal to give the pattern jury instruction on circumstantial evidence that

was in place at the time of the offenses, and (4) the trial court‟s ruling on the Appellant‟s

motion to suppress his statement. Upon review, we affirm the judgments of the trial

court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court are

Affirmed.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT

WILLIAMS and ROBERT W. WEDEMEYER, JJ., joined.

Robert T. Carter (at trial and on appeal) and Judith St. Clair (at trial), Tullahoma,

Tennessee, for the Appellant, Marcus Thurman Wade.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; C.

Michael Layne, District Attorney General; and Jason Michael Ponder, Felicia B. Walkup,

and Marla R. Holloway, Assistant District Attorneys General, for the Appellee, State of

Tennessee.

OPINION

I. Factual Background

The Appellant‟s convictions stemmed from the shooting deaths of Richard Elliott

and Timothy Gill. The proof adduced at trial revealed that at 10:08 a.m. on October 30,

2010, Coffee County 911 received a call reporting that the victims‟ bodies had been

found in room 123 of the Quality Inn in Tullahoma. When the police arrived, they went

into the room and found the victims‟ bodies. The door showed no signs of forced entry,

and the inside of the room showed no signs of a struggle, which led the police to believe

that the victims knew the perpetrator or that the perpetrator had a key to the room. Mr.

Elliott was lying on his back on the bed closest to the door, and Mr. Gill was lying on his

back on the other bed. Mr. Elliott, who weighed 233 pounds, was wearing exercise

shorts and socks but no shirt. Mr. Gill, who weighed 372 pounds, was wearing bib

overalls and socks. Paramedics arrived and determined that the victims were dead.

The police searched the room but did not find any weapons. They found one

bullet hole in the headboard of the bed on which Mr. Elliott was lying, and another bullet

hole was in the wall between the two beds. Two nine-millimeter shell casings and two

bullets were found in the room. Mr. Gill had thirteen dollars in his pockets, but Mr.

Elliott had no money. The police found Mr. Gill‟s cellular telephone and a cellular

telephone belonging to Mr. Elliott‟s stepdaughter, but Mr. Elliott‟s cellular telephone was

never found. Officer Kennedy said that a “crack pipe” and a bag containing 1.08 grams

of crack cocaine were discovered in the room, but he did not specify where. The only

fingerprints found in the room belonged to the victims.

During the investigation, the police learned that Ronald and Sharon Nixon, who

discovered the victims‟ bodies, knew both men. Mr. Gill was the best friend of the

Nixons‟ son, Ray. Mr. Elliott also was friends with Ray Nixon and occasionally did odd

jobs for the Nixons.

Ronald Nixon testified at trial that around the end of July 2010, Mr. Elliott asked

Mr. Nixon to “front” him money, explaining that he was supposed to receive an

inheritance of cash and land and that he would repay the money when the legal

proceedings concluded. Mr. Nixon agreed to provide money for Mr. Elliott‟s room,

board, transportation, and cellular telephone “until this estate was settled.” Mr. Nixon

said that he could not help Mr. Elliott on a long term basis but that he wanted to help Mr.

Elliott change his life.

In early September 2010, Mr. Elliott told Mr. Nixon that “that he was going on the

payroll of the Winchester Police Department. Mr. Nixon described Mr. Elliott as

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“evasive” about his job, but he eventually revealed that he was going “to go out as an

informant and trap people” and that Mr. Gill was going to help him on one of the jobs.

Mr. Nixon said that he kept “track” of all of the money he spent on Mr. Elliott.

On October 28, 2010, Mr. Nixon wrote Mr. Elliott a check for $2,000, and the next day

wrote another check for $2,150. Additionally, Mr. Nixon spent over $1,000 for Mr.

Elliott to stay in a room at the Quality Inn in Tullahoma for almost the entire month of

October 2010. Occasionally, Mr. Elliott‟s wife, Mitzi Elliott, and Mr. Gill stayed in the

room with him. The total amount Mr. Nixon gave Mr. Elliott was approximately

$44,000.

Around 9:00 a.m. on October 30, the Nixons went to Ascend Federal Credit Union

to meet with Mr. Elliott in order to complete a “real estate deal” that would result in

money being deposited into Mrs. Nixon‟s account. They waited for Mr. Elliott until 9:20

a.m. and then called him but got no answer. They left and drove by Mr. Gill‟s house and

Richard Elliott, Jr.‟s house. Eventually, they stopped at the motel when they saw Mr.

Elliott‟s van in the parking lot. Mr. Nixon knocked on the door of room 123 but received

no response. He went to the motel office, and Rakish Patel, the motel manager,

authorized issuing Mr. Nixon a key.

Mr. Nixon returned to the room, opened the door, and saw the victims lying on the

beds in the room. Mr. Nixon did not see any blood and thought the victims were passed

out or asleep. He pushed Mr. Elliott‟s stomach to wake him and noticed that he was cold.

Mr. Nixon also attempted to wake Mr. Gill. Mrs. Nixon, who was a registered nurse,

checked on the victims, discovered they were “stiff and cold,” and confirmed they were

deceased. Mrs. Nixon exited the room and called 911.

On November 1, Mr. Nixon met with Floyd Davis, who was supposedly Mr.

Elliott‟s attorney. Mr. Davis told Mr. Nixon that there was no inheritance. At that point,

Mr. Nixon realized “that it was a scam.” Mr. Nixon acknowledged that Mr. Elliott

previously had “scammed” him on a car deal.

The medical examiner determined that both victims died instantly from a

perforating gunshot wound to the head. The shots were fired from a distance over six

feet. Mr. Gill had another gunshot wound to his right arm. Toxicology reports showed

that both victims tested positive for cocaine and alcohol.

During the investigation into the victims‟ deaths, the police learned that the

victims had spent several months setting up controlled drug buys and acting as

confidential informants for the Winchester Police Department. As a result of their work,

several people, including Anthony Hill, the Appellant‟s nephew; JaCarl Fuqua; and

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Casey Tarrant, were indicted for felony drug offenses. The Appellant, however, was not

charged.

Viola Stephens, Mr. Gill‟s aunt, testified that the victims came to her house around

7:40 p.m. on October 20, 2010. They had been drinking but were not drunk. Mr. Elliott

told Ms. Stephens that he wanted some crack cocaine but could not find anyone willing to

sell it to him. Mr. Elliott “flashed a bundle of money,” and Ms. Stephens knew he could

pay for the drugs. Ms. Stephens asked who his supplier was, and he replied that it was

the Appellant. Ms. Stephens called the Appellant and asked if he knew Mr. Elliott and if

he would “serve” Mr. Elliott. The Appellant replied “yes” and came to her house five or

ten minutes later. He and Mr. Elliott went into the kitchen for the transaction.

Afterward, the Appellant left, and Mr. Elliott, Ms. Stephens, and Mr. Gill smoked some

of the crack cocaine Mr. Elliott had purchased. Ms. Stephens thought they did not smoke

all of the crack cocaine because Mr. Elliott “wadded” something up and “put it in his

pocket” after they finished smoking. Five or ten minutes later, the victims left. Ms.

Stephens left to spend the night at her boyfriend‟s residence.

The next morning, Ms. Stephens‟s boyfriend drove her home. Later, her son

called and told her that the victims were dead. Ms. Stephens called the Appellant and

asked if he had “bother[ed her] family.” The Appellant responded that he had not

bothered them and that he “didn‟t go to Tullahoma[.]” Ms. Stephens said that she had not

mentioned Tullahoma. Ms. Stephens‟s testimony was consistent with her interview with

Officer Kennedy on March 3, 2011.

Richard Elliott, Jr., testified that at around 10:00 or 11:00 p.m., the victims came

to his house and asked him to drink a beer with them. Mr. Elliott, Jr., agreed to drink one

beer with them. Mr. Elliott, Jr.‟s girlfriend and his children were in the house, and the

victims visited with them. During the visit, Mr. Elliott “counted out” $2,100 in cash,

“showing off.”

Mr. Elliott, Jr., was concerned about the victims‟ driving while they were

intoxicated and offered to let them stay at his house. The victims declined the offer.

Before they left, Mr. Elliott made a telephone call. Mr. Elliott, Jr., did not know whom

he called but heard him “trying to explain directions of how to get to Tullahoma to where

he was at.” Mr. Elliott told his granddaughter that he would be at her birthday party the

next day. Mr. Elliott, Jr., estimated that the victims were at his house thirty to forty-five

minutes. They left in Mr. Elliott‟s white van.

Officer Kennedy viewed the security video of the Quality Inn‟s lobby. The video

showed that Mr. Elliott came into the office at 11:48 p.m. to reactivate the card key for

his motel room.

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The police examined Mr. Elliott‟s cellular telephone records and learned that

between 7:45 p.m. on October 29 and 12:27 a.m. on October 30, twenty-two

“communications” occurred between the Appellant and Mr. Elliott. Half of the

communications were initiated by Mr. Elliott, and the others were initiated by the

Appellant. The last call from Mr. Elliott‟s telephone was made at 12:27 a.m. on October

30 to the Appellant‟s cellular telephone. At the time the call was made, both telephones

were accessing the same cellular tower. At 12:53 a.m. on October 30, 2010, a call was

made from the Appellant‟s telephone to Mr. Hill‟s telephone. Mr. Hill‟s telephone

number was saved in the contact list of the Appellant‟s telephone under Mr. Hill‟s

nickname, “Black.”

Casey Tarrant testified that sometime during the day of October 29, 2010, the

Appellant, the Appellant‟s nephew, Mr. Hill, Mr. Fuqua, Rontye Gray, and he were at

Mr. Gray‟s house. They discussed the potential five-year prison sentences Mr. Tarrant

and Mr. Hill were facing if convicted of the drug charges. Mr. Tarrant said that he was

worried about going to prison, and the Appellant responded, “„Don‟t worry about it.

Everything is going to be all right.‟” Mr. Hill, who was upset that he had been set up by

Mr. Elliott, said that “he had money for – if something would happen to” Mr. Elliott. The

Appellant said, “„I got you.‟”

Mr. Tarrant testified that after leaving Mr. Gray‟s house, he went to Ernie Mill‟s

house. While there, he saw the Appellant and Timica Jones. Mr. Tarrant thought that the

Appellant and Ms. Jones left Mr. Mill‟s house in a silver “van or some kind of vehicle.”

In early February 2011, Officer Kennedy interviewed Mr. Tarrant. The information Mr.

Tarrant gave largely mirrored his trial testimony.

On January 12, 2011, Winchester Police Officer Jason Kennedy and Detective

Chris Layne interviewed Timica Jones, the Appellant‟s girlfriend. Ms. Jones initially

was not “very forthcoming with information,” but eventually she acknowledged that she

and the Appellant went to the Quality Inn on the night of the offenses. Ms. Jones told the

officers that afterward, the Appellant discarded a gun at the side of a road near the top of

Sewanee Mountain. Approximately one week later, Officer Kennedy and other officers

went to Sewanee Mountain with Ms. Jones to search for the gun, but they were unable to

locate it.

Ms. Jones testified that she and the Appellant went “riding around” together on the

night of October 29. The Appellant was wearing a black jacket and blue jeans and was

driving his mother‟s white, four-door car. They drove on a back road toward Tullahoma

and met a man Ms. Jones had never seen before that night. Another man was in the

vehicle with him. The Appellant sold the man crack cocaine. Afterward, the Appellant

and Ms. Jones went to the Appellant‟s mother‟s house on Elm Street in Winchester. The

Appellant went inside the house to check on his mother, and Ms. Jones waited in the car.

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When the Appellant returned, they drove to Walmart in Winchester, and the Appellant

bought a “pay-as-you-go” cellular telephone. After leaving Walmart, they went to Sonic.

After they ate, the Appellant and Ms. Jones went to a trailer park in Tullahoma.

The Appellant got out of the car and visited his brother for approximately five minutes.

When the Appellant returned, they drove to the Quality Inn in Tullahoma. The Appellant

backed into a parking space and got out of the car. Ms. Jones waited in the car. She had

seen the Appellant with a gun earlier that evening, knew he routinely carried a gun, and

thought he had the gun with him when he got out of the car. Shortly after the Appellant

left, Ms. Jones heard two distant “pops” that sounded like fireworks. She looked around

but saw nothing.

Ms. Jones said that the Appellant returned to the car carrying something that

appeared to be a “touchscreen” cellular telephone. When he got into the car, he leaned

toward the back seat and seemed to be putting something in a bag. They left the motel

and drove to the Appellant‟s mother‟s house. Mr. Hill was driving away as they arrived.

The Appellant waved at Mr. Hill but did not speak with him. The Appellant took the bag

from the back seat and went into the house. Approximately ten minutes later, the

Appellant returned to the car with the bag and told Ms. Jones that they were “fixing to

ride for a while.” Ms. Jones said okay, and they drove toward Cowan. Ms. Jones

testified that she did not see the stolen cellular telephone again, but she knew that he

threw it away as they drove past North Lake Elementary School.

Ms. Jones recalled that they were stopped for speeding in Cowan.1 As the officer

was walking toward the car, the Appellant reached into the back seat. Ms. Jones did not

look, but she heard a bag rattling in the back seat. After the stop, the Appellant drove up

Sewanee Mountain and threw a bag out the window. Ms. Jones did not see what was in

the bag. They stopped at a gasoline station/convenience store in Monteagle, and the

Appellant purchased cigarettes and drinks. He asked Ms. Jones to rent a motel room in

Monteagle in her name and gave her cash to pay for the room. They went to the room

and watched television, then Ms. Jones slept, and the Appellant took a shower. After “a

while,” the Appellant woke Ms. Jones, saying, “Let‟s go.” They left the motel and drove

toward Chattanooga. It was still dark outside when they stopped at a house. Ms. Jones

did not know the person who was there. While they were at the house, the Appellant and

Ms. Jones had sex, then Ms. Jones slept for a while. They left the house near daylight

and drove to South Pittsburg. The Appellant stopped for gasoline and went into a store.

They drove to the nursing home in South Pittsburg where the Appellant‟s stepfather

lived, and the Appellant visited his stepfather for approximately twenty minutes.

Afterward, the Appellant and Ms. Jones returned to Winchester. He asked her where he

1

Cowan Police Officer James Wrisner confirmed that he stopped the Appellant for speeding at 1:25 a.m.

on October 30, 2010, and that a white female was in the Appellant‟s car at the time.

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could rent a car, and she told him about a place in Estill Springs. They drove to Estill

Springs, rented a van, and then returned to his mother‟s house. They left the car at the

house, and the Appellant took Ms. Jones home in the van. The police verified the route

Ms. Jones and the Appellant took on the night of October 29 and on October 30 by

examining their cellular telephone records.

Ms. Jones said that after she arrived home, she went to her room and slept. When

she woke, it was dark outside. Her mother told her to look at a television news report

about a murder in a motel room in Tullahoma. The report showed the victims‟

photographs, and Ms. Jones saw that one of the victims was the man who had bought

cocaine from the Appellant on the back road. Ms. Jones told her mother that she and the

Appellant had been at that motel the previous night. Ms. Jones “started putting 2 and 2

together . . . and . . . freaking out.” She called the Appellant and asked about the news

report. The Appellant “told [her] to shut up, he didn‟t want to hear it and not to speak of

it again, and if [she] did, [she] would come up missing.” Ms. Jones did not call the police

because she was afraid.

Officer Jason Kennedy testified that on February 15, 2011, Agent Kendall Barham

and he interviewed the Appellant. They advised the Appellant of his Miranda rights, and

he was cooperative. Officer Kennedy told the Appellant that the police were

investigating the homicides of the victims. The Appellant said that he did not know the

victims and would not recognize them from a photograph. During the interview,

however, the Appellant referred to Mr. Gill as “the bigger one.” The Appellant said that

he was with Ms. Jones on October 29 and that they were stopped by a police officer in

Cowan. The Appellant said that he was in Cowan all night and was not in Tullahoma.

He denied knowing before the victims‟ deaths that they were responsible for “setting up”

Mr. Hill. The Appellant acknowledged that he sold crack cocaine and that he may have

sold crack cocaine to Mr. Elliott through Viola Stephens, who was Mr. Gill‟s aunt. The

interview, which had been videotaped, was shown to the jury.

On February 25, 2011, Officer Kennedy, Federal Bureau of Investigation (FBI)

Agent Richard Poff, and Winchester Police Chief Dennis Young transported the

Appellant from Winchester to Chattanooga. The Appellant was advised of his Miranda

rights. Officer Kennedy told the Appellant that the police knew about the Appellant‟s

movements before, during, and after the murders. Agent Poff watched the Appellant

during the conversation. When Officer Kennedy said that the police knew the Appellant

had been at Mr. Gray‟s house with Mr. Gray, Mr. Hill, Mr. Fuqua, and Mr. Tarrant, the

Appellant nodded, “acknowledging that he had been at Mr. Gray‟s residence.”

Officer Kennedy told the Appellant that the police knew he sold crack cocaine to

Mr. Elliott in the afternoon before the murders. The Appellant again nodded

affirmatively. Officer Kennedy told the Appellant that the police knew he ate a

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hamburger at Sonic, that he bought a new cellular telephone at Walmart, and that he and

Ms. Jones drove his mother‟s vehicle to the Quality Inn. The Appellant “nodded his head

affirmatively up and down, acknowledging that he had done each of those things.”

Officer Kennedy said that he told the Appellant that the police knew the Appellant threw

a cellular telephone and a gun out the window of the vehicle as he was driving from

Tullahoma. Officer Kennedy described the drive through Winchester and Cowan, up

Sewanee Mountain, and the stop at a nursing home in South Pittsburg. Chief Young also

revealed that the victims were shot. The Appellant said, “„Yeah,‟ and nodded his head.”

Agent Poff testified that before they left the jail, the Appellant was read his

Miranda rights. He told the Appellant that “different people had different motives for

killing someone, and . . . said that there was a difference between killing someone simply

to rob a person or killing someone to avenge a relative.” Agent Poff asked the Appellant

if he had killed the victims to avenge a relative or just to rob them. At that point, the

Appellant‟s “eyes filled up with tears, and he nodded his head forward twice,

acknowledging that the reason he had killed them was to avenge a relative.” Officer

Kennedy noted that the Appellant “had previously said he would never hurt anyone

unless they had harmed his family” and asked if the Appellant had killed the victims to

protect Mr. Hill. Again, the Appellant “nodded his head forward, acknowledging that

was why he had killed them.”

Chief Dennis Young testified he told the Appellant the police had heard that Mr.

Fuqua acquired the gun used in the murder, that Mr. Fuqua gave the gun to Mr. Hill, and

that Mr. Hill gave the gun to the Appellant. The Appellant did not react to Chief

Young‟s statement. Chief Young said the police had heard that Mr. Fuqua and Mr. Hill

each paid the Appellant $2,500 to kill the victims. The Appellant responded, “„I didn‟t

get paid.‟”

Chief Young told the Appellant that he understood the Appellant‟s wanting to

protect his nephew, Mr. Hill, but that he did not understand the Appellant‟s protecting

Mr. Fuqua, who was not a relative. The Appellant replied, “„I will take care of it when I

get out.‟” Officer Kennedy asked the Appellant to provide some details about the

murders, and the Appellant asked for an attorney. At that point, the questioning ended.

Ten or fifteen minutes later, the Appellant “pronounced that anyone that he had ever laid

hands on is still walking and that he had not killed anyone.”

Kimberly Eddings testified at trial that a couple of weeks prior to the murders, she

went “riding around” in Tullahoma with the Appellant, who was her boyfriend at the

time, and Ernie May. They drove to the Quality Inn and saw a white minivan parked in

the motel parking lot. The Appellant said that “he was going to hit a lick,” which Ms.

Eddings thought meant he intended to rob someone. The Appellant was wearing a dark

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blue or black hoodie with the hood up. He and Mr. May put on gloves, got a knife, exited

the car, and walked upstairs to a motel room. Ms. Eddings stayed in the car.

Mrs. Elliott, the victim‟s wife, testified that she and her niece were in Mr. Elliott‟s

motel room on the “top floor” at the Quality Inn. Mrs. Elliott heard a knock and opened

the door. Mr. May and the Appellant inquired as to Mr. Elliott‟s whereabouts, and Mrs.

Elliott responded that he was not in the room and that they could return later. She tried to

close the door, but the men stopped her. Shortly thereafter, the men returned to the car

and left with Ms. Eddings. Ms. Eddings testified that the Appellant and she ended their

relationship shortly after the attempted robbery, and the Appellant and Ms. Jones began

dating.

Terry Whitaker, who was serving a sentence in a federal prison in Kentucky for

selling crack cocaine, testified that in November 2011, he was housed in a federal holding

facility in Bradley County and that he shared a cell pod with the Appellant. The

Appellant told Mr. Whitaker that he went to a hotel room and shot two people who were

confidential informants. The Appellant said that a female was waiting for him in the car

and that he drove away after the shooting. The Appellant said that “he did it for

somebody else, one of his family members and all of that.” Mr. Whitaker recalled that

the family member‟s “name was A. Hill or something like that, Andrew Hill or

something, A. Hill something.”

Shannon Quintel Pentecost, who was serving a sentence in a federal prison in

Arkansas for selling crack cocaine, testified that he had known the Appellant for many

years. Just after Halloween 2010, the Appellant called Mr. Pentecost and said he needed

to talk. Mr. Pentecost told the Appellant that he was at a friend‟s house and that the

Appellant should come to the house. When the Appellant arrived, the Appellant got into

a car with Mr. Pentecost, and they smoked marijuana. The Appellant told Mr. Pentecost,

“„Man, I f[***]ed up.‟” Mr. Pentecost asked what was wrong. The Appellant responded,

“„Man, me and Mica was going through so much. I should have knocked her off, too.‟”

Mr. Pentecost asked, “„For what?‟” The Appellant said, “„Because she was there when I

murdered those white guys.‟” The Appellant told Mr. Pentecost that he needed

“something,” and Mr. Pentecost gave him some crack cocaine. The Appellant told Mr.

Pentecost that he shot the two white men in the head and “made it look like it was

suicide.”

Mr. Pentecost said that in January 2012, he told the police about his conversation

with the Appellant. On April 11, 2012, he gave a second statement to the authorities. In

the second statement, Mr. Pentecost said that the Appellant said that the shooting

occurred at a hotel in Manchester.

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Terry Elliott, Mr. Elliott‟s brother, testified for the Appellant that he went to the

Quality Inn around 10:00 or 10:30 a.m. on October 30, 2010. After he arrived, he learned

that Mr. Nixon had found the victims‟ bodies. Mr. Nixon told Terry Elliott that he went

through Mr. Elliott‟s pockets before the police arrived, looking for Mr. Elliott‟s mother‟s

telephone number.

On cross-examination, Terry Elliott said that he did not tell the police that Mr.

Nixon mentioned going through Mr. Elliott‟s pockets. He said, however, that he thought

Mr. Nixon had already disclosed that information to the police.

Ellen Meeks testified that in the fall of 2010, she was working at Dunlap‟s Market,

which was located on Highway 130 between Winchester and Tullahoma. Ms. Meeks

knew Mr. Elliott and said that “[a]ll [she] really knew about him [was that] he partied a

lot and drank.” She said that Mr. Elliott was a drug addict and often was intoxicated

when he came into the store. Mr. Elliott typically came into the store to cash checks. The

checks usually were for $500 or more and written by Mr. Nixon, who was a frequent

customer of the store. Ms. Meeks said that approximately three months before Mr.

Elliott‟s death, his visits became more frequent, sometimes as often as three times a day.

Ms. Meeks said that she had seen Mr. Elliott and Ray Nixon together “a handful of

times” in the months before Mr. Elliott‟s death. On one occasion, Ray Nixon was upset

and angry that his father gave money to Mr. Elliott but would not give any money to him.

Rakish Patel testified that other guests stayed in the same wing of the Quality Inn

as the victims on the night of October 29, 2010. None of the guests lodged a noise

complaint that night.

Based upon the foregoing, the jury found the Appellant guilty of the first degree

premeditated murders of Mr. Elliott and Mr. Gill, the felony murders of Mr. Elliott and

Mr. Gill, and the especially aggravated robbery of Mr. Elliott. The trial court merged the

first degree premeditated murder convictions and the felony murder convictions into a

single conviction for each victim. The Appellant was sentenced to concurrent sentences

of life without parole for the murder convictions and thirty-five years for the especially

aggravated robbery conviction, with the sentence to be served consecutively to the

murder convictions.

On appeal, the Appellant challenges the sufficiency of the evidence sustaining his

convictions, the trial court‟s decision to allow Kimberly Eddings to testify regarding a

prior bad act of the Appellant, the jury instruction on circumstantial evidence, and the

trial court‟s ruling on the Appellant‟s motion to suppress the statement he gave to Officer

Kennedy and Agent Barham.

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II. Analysis

A. Motion to Suppress

Prior to trial, the Appellant filed a motion to suppress his statement to Officer

Kennedy and Agent Barham, arguing that the officers should have stopped all

questioning after he asserted his Fifth Amendment right to remain silent. At a hearing on

the motion, the parties relied solely on the video of the statement, which shows that when

the officers joined the Appellant in the interview room at the jail and sat at the table with

him Officer Kennedy told the Appellant that they were investigating the victims‟ deaths

and asked if the Appellant could provide any information regarding the crimes. Officer

Kennedy advised the Appellant of his Miranda rights and asked the Appellant if he

understood his rights, and the Appellant responded affirmatively. Officer Kennedy asked

if the Appellant had any problem talking to the officers, and the Appellant said, “Yeah. It

ain‟t nothing against y‟all, but like you just said, I‟m in jail. And they‟re not treating me

too good right now.” Officer Kennedy asked, “They‟re not treating you good?” and the

Appellant replied, “They‟re not treating me good at all.” Officer Kennedy asked which

agency was mistreating the Appellant, and the Appellant said that it was the Winchester

Police Department. The Appellant said that he would not mind helping Officer Kennedy

and Agent Barham and that he had nothing against them; however, Winchester police

officers had threatened to beat him, and a $100,000 bond had been set to ensure that he

stayed in jail. While he was incarcerated and unable to take care of his mother, she fell

and was taken to the hospital. The Appellant explained that he lived with his mother and

was reponsible for taking care of her.

Agent Barham told the Appellant that he and Officer Kennedy met the Appellant‟s

mother when they went to her house to see the Appellant. The Appellant was not at

home, but they spoke with his mother. She told the officers that the Appellant took good

care of her. Agent Barham asked the Appellant if his brothers could help take care of his

mother while the Appellant was incarcerated. The Appellant replied, “Evidently not,”

and said that one of his brothers lived in Chicago.

At that point, Officer Kennedy mentioned that he was born in Chicago and that he

knew the Appellant had lived in Chicago. The Appellant began laughing and talking

with the officers about the neighborhoods where he and Officer Kennedy were born. He

then asked Officer Kennedy, “[A]re you a Cubs fan or a White Sox fan?” Officer

Kennedy responded, “I‟m going to have to say the Cubs.” The Appellant, who was a

Cubs fan, laughed and told Officer Kennedy that he had “just won one free question.”

Officer Kennedy did not ask a question at that time. Instead, the three men talked about

the Chicago Cubs, visiting Wrigley Field, eating at Harry Carey‟s restaurant, the Chicago

Bears, Jay Cutler, and then moved on to other sports for a while. The Appellant said that

he was not able to visit Chicago often because his mother had serious kidney problems

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and was in the hospital at that time. The officers offered to allow the Appellant to write a

note, which they would deliver to her. While the Appellant was writing the note, Officer

Kennedy offered to get the Appellant some refreshments, and the Appellant asked for a

soft drink. When Officer Kennedy returned with the drink, he told the Appellant that he

wanted to use his “one free question” to ask the Appellant what he knew about the

victims. Before the Appellant responded, Officer Kennedy asked if the Appellant had

any problems talking with the officers “now.” The Appellant said, “Nah, man.”

The Appellant told the officers that he did not know the victims and that “if you

put a picture down, if he saw them, he wouldn‟t even know who they were.” However,

during the interview, the Appellant referred to one of the victims “as the bigger one,

because you know, Timothy Gill was a big man.” He said that after he was incarcerated,

he discovered that the victims were involved in his nephews‟ cases but that his nephews

never talked to him about the victims. The Appellant said that his nephews‟ names were

“Anthony” and “Morris.” He acknowledged that he knew a female named Viola, that

“the biggest one” was her nephew,” and that the “Ricky one goes with her sister.”

The Appellant said that he had heard the killing was “professional” and that

approximately $10,000 to $15,000 was in the room. Officer Kennedy said that it sounded

as if someone was “setting up” the Appellant. The Appellant responded that anyone who

knew him knew that he was “straight” and that he came “with God‟s love and respect.”

He acknowledged, however, that actions had “repercussions” and that if someone

touched him physically, he would retaliate physically. He explained that the only time he

would feel the need to retaliate was if he or his family were threatened. He

acknowledged that as a result of his “philosophy,” he had developed “a reputation.”

The Appellant explained that initially, he was reluctant to talk with Agent Barham

and Officer Kennedy because of the way he had been treated by other officers. He stated

that he had no prior relationship with the victims, could not recognize them from a

photograph, and had never spoken with either of the victims on the telephone. The

Appellant acknowledged that he “did drop some dope off to Viola” sometime in

September and that after the victims‟ deaths, she told him the drugs were for Mr. Elliott.

The Appellant said that he did not know Mr. Elliott and that if he had, there was “no way

in hell” he would have sold Mr. Elliott drugs because he could not be trusted. The

Appellant later said that he “served them about three times” through Viola and that he

once asked Viola who the man was that he saw run back from the door. The Appellant

said that on the third occasion, he was with a man named Ernie and that Ernie told him

the man was Mr. Elliott. The Appellant said at that time, he did not know Mr. Elliott was

the person who was “setting people up.” The Appellant said that he did not know where

the victims lived until “after the fact” but that he knew where Viola and her sister lived.

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Near the end of the interview, the Appellant told the officers that he had been

willing to talk with them because Officer Kennedy was a Cubs fan and because the

officers were willing to take a letter to his mother, which he “respect[ed].” The officers

told the Appellant that whoever killed the victims was on “their A game” and that it was

“just business.” The Appellant stated that if he had been involved, he would not have left

any money. When asked his whereabouts on the night of the murders, the Appellant

responded that he and his girlfriend were in Cowan and that they were pulled over by the

police. Before the end of the interview, Officer Kennedy asked the Appellant if they

could “holler back at” him in a couple of weeks, and the Appellant immediately

responded, “Yeah.” Throughout most of the discussion, the Appellant was animated,

laughed, and talked freely without any apparent reluctance.

At the conclusion of the hearing, the trial court stated:

Regarding the motion to suppress the statement based upon

the [Appellant‟s] allegation or the [Appellant‟s] argument that

he had asserted his Fifth Amendment rights during a

questioning or a meeting that took place, I believe, at the

Winchester Police Department, the Court believes that the

[Appellant], although stating at one point that he didn‟t wish

to talk to the police about this, he continued to make

statements and kept giving information, that the giving of

information wasn‟t really prompted by the police department.

The Court finds the statements that he gave during that

questioning were voluntary, that the State and their agents

neither coerced him physically or psychologically. I also find

that no threats or promises were rendered to entice the

[Appellant] to make those statements and that in no way did

the State try to overcome the suspect‟s or the [Appellant‟s]

will in making those statements. In fact, as the Court recalls,

[the Appellant] actually became quite cooperative and kept

making statements and kept talking to the police without

being really prompted by the police. I think there was a few

times when the police officers asked him what he meant by

something, but other than that, I believe the discussions that

took place between [the Appellant] and [Officer] Kennedy

and Agent Barham were nothing but volunatry conversation

made at the time.

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On appeal, the Appellant again argues that the officers should have ceased

questioning after he asserted his Fifth Amendment right to remain silent. 2 The State

responds that the trial court correctly found that the Appellant did not invoke his right to

remain silent. We agree with the State.

Both the Fifth Amendment to the United States Constitution and article I, section 9

of the Tennessee Constitution provide protection against compulsory self-incrimination.

As our supreme court has explained:

In Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct.

1602, 1612, 16 L. Ed. 694 (1966), the United States Supreme

Court held that “the prosecution may not use statements,

whether exculpatory or inculpatory, stemming from custodial

interrogation of the defendant unless it demonstrates the use

of procedural safeguards effective to secure the privilege

against self-incrimination.” The procedural safeguards must

include warnings prior to any custodial questioning that an

accused has the right to remain silent, that any statement he

makes may be used against him, and that he has the right to

an attorney.

State v. Blackstock, 19 S.W.3d 200, 207 (Tenn. 2000). However, Miranda rights may be

waived by an accused. Id. Whether a waiver has been voluntarily, knowingly, and

intelligently made must be determined by the totality of the circumstances surrounding

the interrogation. State v. Van Tran, 864 S.W.2d 465, 472-73 (Tenn. 1993). A trial

judge‟s findings of fact at a motion to suppress hearing are accorded the weight of a jury

verdict. See State v. Tate, 615 S.W.2d 161, 162 (Tenn. Crim. App. 1981). Accordingly,

the trial court‟s decision is binding upon this court if the decision is supported by a

preponderance of the evidence. State v. Odom, 928 S.W.2d 18, 22-23 (Tenn. 1996).

We agree with the trial court that the Appellant‟s right to remain silent was not

violated. Our supreme court has cautioned that “if „at any time prior to or during

questioning‟ the suspect invokes his right to remain silent, „the interrogation must

cease.‟” State v. Climer, 400 S.W.3d 537, 557 (Tenn. 2013) (quoting Miranda, 384 U.S.

at 473-74). Moreover, “this court has stated that whether a suspect has invoked his right

to counsel is an objective, not subjective, standard. We see no reason why the standard

for the right to remain silent would be any different.” State v. Robert Nelson Buford, III,

2

In both his motion to suppress and his appellate brief, the Appellant claimed that the officers violated

his “unambiguous assertion of his Fifth Amendment right to counsel during a custodial interrogation.”

However, the Appellant never cited to a place in the record where he asserted his right to counsel.

Moreover, the substance of his argument, both in the lower court and this court, concerned the

Appellant‟s invocation of his right to remain silent.

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No. M2011-00323-CCA-R3-CD, 2013 WL 375424, at *11 (Tenn. Crim. App. at

Nashville, Jan. 31, 2013) (citing State v. Koffman, 207 S.W.3d 309, 318 (Tenn. Crim.

App. 2006)).

The trial court noted that although the Appellant initially stated that he did not

want to talk, he nevertheless continued speaking with the officers. We agree with the

trial court that the Appellant did not unequivocally invoke his right to remain silent. See

State v. Dotson, 450 S.W.3d 1, 53 (Tenn. 2014).

Moreover, as the trial court found, the officers did not pressure or threaten the

Appellant to get him to make a statement. Instead, the Appellant, after being advised of

his Miranda rights and saying that he understood those rights, freely spoke with the

officers. Further, when the Appellant turned from such topics as sports, family, and food

and started to talk about the victims‟ murders, the officers asked if he had any problem

talking to them, and the Appellant responded that he did not. Indeed, during the

conversation with the officers, the Appellant remarked that speaking with the officers

might benefit him in some way. The trial court held that the Appellant‟s statement was

given freely and voluntarily. We agree and conclude that the trial court did not err by

allowing the statement to be admitted at trial.

B. Rule 404(b)

The Appellant contends that the trial court erred by allowing Ms. Eddings to

testify that the Appellant went to a motel room to rob Mr. Elliott.

During trial, the State advised the trial court that it intended to call Kimberly

Eddings and Mitzi Elliott to testify that the Appellant was lying in his recorded statement

when he said that he did not know the victims. The State argued that the testimony was

admissible to show motive. The State said that Ms. Eddings would testify that the

Appellant, Ernie May, and she went to the Quality Inn in Tullahoma “sometime” prior to

the murders with the intent to rob Mr. Elliott. Mrs. Elliott would testify that the

Appellant and Mr. May came to the motel room and asked for Mr. Elliott but that they

left because Mr. Elliott was not in the room. Defense counsel objected, arguing that the

evidence regarding the “attempt at a robbery that never happened” was not reliable.

The trial court asked the State whether “there ha[s] to be an inference or a question

about why they were there, other than they were there for Mr. Elliott and Mr. Gill.” The

State explained that the testimony would demonstrate “that there was a prior attempt to

rob this same individual who was robbed on the night of the murders by the same

[Appellant].” The court then asked, “So action in conformity with?” The State

responded, “This was a second attempt to make the first crime. I don‟t believe it is

character evidence per se. I think it is really more along the lines of a common scheme or

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plan.” Defense counsel contended that the testimony was “clearly conformity evidence”

and was “too speculative” to be admissible.

During a jury-out hearing, Ms. Eddings testified that a couple of weeks prior to

October 30, the Appellant, Ernie May, and she drove to the Executive Inn in Tullahoma.

The complex contained a Mexican restaurant and another motel, but she could not recall

the name of the other motel. It was dark outside when they arrived. The Appellant and

Mr. May “got out of the car with a pair of gloves and a knife to go and rob some guys

upstairs because they thought they had money.” Ms. Eddings said that she knew the

Appellant intended to rob someone because he “said that he was going to go hit a lick,”

which she explained meant to rob someone. Ms. Eddings did not know the person‟s

name. Ms. Eddings saw the men walk upstairs; however, they quickly returned to the

car, which made Ms. Eddings think that their intended target was not there.

After Ms. Eddings‟s testimony, the trial court stated:

I think under the procedures laid out in the Tennessee Rules of

Evidence, I first must find that the evidence is relevant. I

think it is relevant for a couple of reasons. One, robbery is a

motive for the incident in question on the night in question

the murders happened, also relevant in the fact that it has

been at least insinuated that [the Appellant] didn‟t know these

guys and didn‟t know where they were staying at the time,

and I think it also corroborates that. Finding it relevant, I

then must look at whether or not its probative value is

substantially outweighed by the danger of unfair prejudice. If

it had to do maybe that he was going over there to possibly

harm them, it might be a little bit of a different story, so since

this is a criminal case, I also have to look at it under 404(b).

In regards to character evidence, that is usually not admissible

to prove conduct. However, under character evidence

generally, (b) under “Other crimes, wrongs, and acts,” I have

previously determined, and I am determining again, that a

material issue does exist in regards to the [Appellant‟s]

motive for the alleged crime of murder in the case and for the

fact that it has been at least insinuated and otherwise stated

that he didn‟t know these gentlemen and/or know where they

were living. I find that this evidence is clear and convincing

that this did occur, and finally, I find that its probative value

is not outweighed by the danger of unfair prejudice. . . .

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On appeal, the Appellant does not challenge the relevance of the evidence but

contends that the proof of the prior attempt was not clear and convincing and that its

probative value did not outweigh its prejudicial effect.

Generally, a party may not introduce evidence of an individual‟s character or a

particular character trait in order to prove that the individual acted in conformity with that

character or trait at a certain time. Tenn. R. Evid. 404(a). Similarly, evidence “of other

crimes, wrongs, or acts is not admissible to prove the character of a person in order to

show action in conformity with the character trait.” Tenn. R. Evid. 404(b). Such

evidence may be admitted for other purposes, though, if relevant to some matter actually

at issue in the case and if its probative value is not outweighed by the danger of its

prejudicial effect. Tenn. R. Evid. 404(b); State v. Wyrick, 62 S.W.3d 751, 771 (Tenn.

Crim. App. 2001). Issues to which such evidence may be relevant include identity,

motive, common scheme or plan, intent, or the rebuttal of accident or mistake defenses.

Tenn. R. Evid. 404(b), Advisory Comm‟n Cmts. Before allowing such evidence,

(1) The court upon request must hold a hearing outside the

jury‟s presence;

(2) The court must determine that a material issue exists other

than conduct conforming with a character trait and must upon

request state on the record the material issue, the ruling, and

the reasons for admitting the evidence;

(3) The court must find proof of the other crime, wrong, or

act to be clear and convincing; and

(4) The court must exclude the evidence if its probative value

is outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b). Where, as here, a trial court has substantially complied with the

procedural requirements of the rule, we will review the court‟s decision regarding the

admissibility of the evidence for an abuse of discretion. State v. DuBose, 953 S.W.2d

649, 652 (Tenn. 1997).

As we noted, the trial court found that Ms. Eddings‟s testimony was relevant to the

Appellant‟s motive for committing the offenses. State v. Leach, 148 S.W.3d 42, 58

(Tenn. 2004). In Tennessee, evidence of other acts has generally been admitted

to establish motive in three types of cases. In the first, the

evidence suggests that a second crime was committed to

conceal or continue a prior crime. In the second type, a prior

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crime may establish an accused‟s desire to obtain or retain

money, property, or a relationship which led to another crime.

In the last type, evidence of the other crime may tend to show

that the accused had previously opposed or attempted to

injure the victim.

State v. John Henry Wallen, No. 03C01-9304-CR-00136, 1995 WL 702611, at *13

(Tenn. Crim. App. at Knoxville, Nov. 30, 1995) (citation and footnotes omitted); see

State v. Richard Lee Sheckles, No. 1, 1990 WL 180339, at *4 (Tenn. Crim. App. at

Jackson, Nov. 21, 1990); Neil P. Cohen et al., Tennessee Law of Evidence § 4.04[9]

(LEXIS publishing, 6th ed. 2011).

In the instant case, the State contended at trial that the Appellant knew Mr. Elliott

had money and that he intended to rob and kill the victims to protect and/or avenge his

nephew. The State maintained that proof of the earlier attempted robbery demonstrated

that the Appellant knew the victims had money. From our review, we conclude that the

evidence showed that the Appellant had motive to rob the victim and that he previously

attempted to rob the victim. Further, the evidence contradicted the Appellant‟s statement

to Officer Kennedy and Agent Barham that he did not know the victims or where they

were staying.

On appeal, the Appellant argues that Ms. Eddings‟s testimony was “too

speculative” to constitute clear and convincing evidence of the first attempt. In support

of his argument, the Appellant cites Ms. Eddings‟s testimony that she did not know the

victims‟ names, did not know the specific date on which the incident occurred, and did

not see what the Appellant did. The Appellant also contends that the phrase to “hit a

lick” meant to “make some money.” However, Ms. Eddings said that to “hit a lick”

meant to rob someone and that she was certain the Appellant and Mr. May went to the

motel room with gloves and knife to rob the victims. Moreover, Mrs. Elliott testified that

the Appellant and another man came to Mr. Elliott‟s motel room one night around the

same time alleged by Ms. Eddings. The trial court was in the unique position to observe

the witness‟ demeanor and conduct and make a determination about her credibility. See

State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). We conclude that the trial court did not

abuse its discretion by concluding that the proof of the first attempt was established by

clear and convincing evidence.

The Appellant further complains that the trial court erred by finding that the

probative value of the evidence outweighed the danger of unfair prejudice, noting that

Appellant was facing charges of especially aggravated robbery and that the evidence

concerned a robbery. It is within the trial court‟s discretion to assess the probative value

and danger of unfair prejudice regarding the evidence. State v. Burlison, 868 S.W.2d

713, 720-21 (Tenn. Crim. App. 1993). In the instant case, the identity of the perpetrator

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and his motive were highly contested issues at trial. Ms. Eddings‟s testimony revealed

that the Appellant planned to rob the victims approximately two weeks before the

murders in a scenario similar to the one in which the victims were killed. The evidence

showed that the Appellant knew the victims had money, thereby establishing a motive.

Therefore, we conclude that the trial court did not abuse its discretion by finding that the

probative value of the other act outweighed the danger of unfair prejudice.

Further, we note that the trial court instructed the jury during the testimony and

during the final charge that it could not consider the previous attempt to rob the victims

as evidence of the Appellant‟s propensity to commit the crimes for which he was on trial.

Generally, we presume that a jury has followed the trial court‟s instructions. See State v.

Butler, 880 S.W.2d 395, 399 (Tenn. Crim. App. 1994). Thus, we conclude that the

Appellant is not entitled to relief on this issue.

C. Jury Instructions

The Appellant contends that the trial court erred in its instruction to the jury on

circumstantial evidence and that the instruction violated his constitutional protection

against ex post facto laws. The Appellant notes that in 2010, when the crimes were

committed, the pattern jury instruction comported with the standard for evaluating the

sufficiency of circumstantial evidence set forth in State v. Crawford, 470 S.W.2d 610

(Tenn. 1971). Crawford provided that in order to sustain a conviction based soley on

circumstantial evidence, the facts and circumstances of the offense “must be so strong

and cogent as to exclude every other reasonable hypothesis save the guilt of the

defendant.” Id. at 612.

In 2011, our supreme court rejected the Crawford standard, holding that “direct

and circumstantial evidence should be treated the same when weighing the sufficiency of

the evidence.” State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011). As a result of

Dorantes, the pattern jury instruction on circumstantial evidence was changed. The

Appellant contends that because the offenses occurred in 2010, the trial court should have

used the Crawford standard. He asserts that instructing the jury regarding the Dorantes

standard violated constitutional ex post facto provisions by “lower[ing] the standard the

prosecution must prove in order to convict a defendant.” In response, the State contends

that “the ex post facto provisions of our federal and state constitutions do not apply to

judicial decisions such as Dorantes.”

This court has previously examined this exact issue and stated “that the Ex Post

Facto Clause does not by its own terms apply to judicial decisions.” State v. George

Geovonni Thomas, No. E2013-01738-CCA-R3-CD, 2015 WL 513583, at *32 (Tenn.

Crim. App. at Knoxville, Feb. 5, 2015), perm. to appeal denied, (Tenn., Aug. 12, 2015).

Further, “[t]o the extent that due process protects interests similar to those protected by

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the Ex Post Facto Clauses of the state and federal constitutions, retroactive application of

an alteration of a common law doctrine of criminal law violates due process only where

the alteration is „unexpected and indefensible by reference to the law which had been

expressed prior to the conduct in issue.‟” Id. (quoting Rogers v. Tennessee, 532 U.S.

451, 461 (2001)). This court concluded that using the Dorantes standard did not violate

the constitutional ex post facto provisions, noting that

both the Tennessee Supreme Court and [the Court of Criminal

Appeals] began utilizing the same standard for direct and

circumstantial evidence shortly after the issuance of Dorantes

to cases in which the crimes had occurred before January

2011. See State v. Sisk, 343 S.W.3d 60, 62 (Tenn. 2011)

(crimes committed in 2006); State v. Parker, 350 S.W.3d 883,

888, 903 (Tenn. 2011) (crimes committed in 2003); State v.

Martinez, 372 S.W.3d 598, 601, 604-05 (Tenn. Crim. App.

2011) (crimes committed in 2008).

Id. The Appellant is not entitled to relief on this issue.

D. Sufficiency of the Evidence

Finally, the Appellant challenges the sufficiency of the evidence sustaining his

convictions. On appeal, a jury conviction removes the presumption of the appellant‟s

innocence and replaces it with one of guilt, so that the appellant carries the burden of

demonstrating to this court why the evidence will not support the jury‟s findings. See

State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The appellant must establish that no

reasonable trier of fact could have found the essential elements of the offense beyond a

reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Tenn. R. App. P.

13(e).

Accordingly, on appeal, the State is entitled to the strongest legitimate view of the

evidence and all reasonable inferences which may be drawn therefrom. See State v.

Williams, 657 S.W.2d 405, 410 (Tenn. 1983). In other words, questions concerning the

credibility of witnesses and the weight and value to be given the evidence, as well as all

factual issues raised by the evidence, are resolved by the trier of fact, and not the

appellate courts. See State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).

The guilt of a defendant, including any fact required to be proven, may be

predicated upon direct evidence, circumstantial evidence, or a combination of both direct

and circumstantial evidence. See State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn.

Crim. App. 1999). Even though convictions may be established by different forms of

evidence, the standard of review for the sufficiency of that evidence is the same whether

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the conviction is based upon direct or circumstantial evidence. See State v. Dorantes,

331 S.W.3d 370, 379 (Tenn. 2011).

In order to obtain the Appellant‟s conviction for first degree premeditated murder,

the State was required to prove, beyond a reasonable doubt, that the Appellant committed

the “premeditated and intentional killing of [the victim].” Tenn. Code Ann. ' 39-13-

202(a)(1). Premeditation “is an act done after the exercise of reflection and judgment”

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

[However,] [i]t is not necessary that the purpose to kill pre-exist in the mind of the

accused for any definite period of time.” Id. at (d). Although there is no concrete test for

determining the existence of premeditation, Tennessee courts have relied upon certain

circumstances to infer premeditation. See State v. Pike, 978 S.W.2d 904, 914 (Tenn.

1998). Specifically, the following factors have been used to support a jury‟s inference of

premeditation: (1) the appellant‟s prior relationship to the victim which might suggest a

motive for the killing; (2) the appellant‟s declarations of intent to kill; (3) the appellant‟s

planning activities before the killing; (4) the manner of the killing, including the

appellant‟s using a deadly weapon upon an unarmed victim, killing the victim while the

victim is retreating or attempting escape, or killing the victim in a particularly cruel

manner; (5) the appellant‟s demeanor before and after the killing, including a calm

demeanor immediately after the killing. See Pike, 978 S.W.2d at 914-915; State v.

Bland, 958 S.W.2d 651, 660 (Tenn. 1997).

Felony murder is defined as “[a] killing of another committed in the perpetration

of or attempt to perpetrate any . . . robbery.” Tenn. Code Ann. § 39-13-202(a)(2).

Especially aggravated robbery is robbery accomplished with a deadly weapon where the

victim suffers serious bodily injury. Tenn. Code Ann. § 39-13-403(a)(1) and (2).

Robbery is defined as “the intentional or knowing theft of property from the person of

another by violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401(a). A

theft of property occurs when someone, with the intent to deprive the owner of property,

knowingly obtains or exercises control over the property without the owner‟s effective

consent. Tenn. Code Ann. § 39-14-103. Serious bodily injury is defined as a bodily

injury that involves a substantial risk of death. Tenn. Code Ann. § 39-11-106(a)(34)(A).

The Appellant‟s challenge to the sufficiency of the evidence of his convictions

largely concerns the credibility of the State‟s witnesses. Specifically, the Appellant

contends that in Timica Jones‟s initial statement, she told the police that the Appellant

did not have a gun on the night in question; however, she testified at trial that he did have

a gun. The Appellant also contends that Mr. Tarrant testified that the Appellant was

driving a silver van when he met with Mr. Hill at Mr. Gray‟s residence prior to the

shooting but that the proof at trial revealed that the Appellant rented a maroon van after

the shooting. However, determining the credibility of witnesses is within the purview of

the jury. See State v. Millsaps, 30 S.W.3d 364, 368 (Tenn. Crim. App. 2000) (stating that

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“the weight and credibility of the witnesses‟ testimony are matters entrusted exclusively

to the jury as the trier[ ] of fact”). In the instant case, the jury clearly resolved the issue

of credibility in the State‟s favor. We may not now reconsider the jury‟s credibility

assessment. See State v. Carruthers, 35 S.W.3d 516, 558 (Tenn. 2000).

In the light most favorable to the State, the proof adduced at trial revealed that as a

result of the victims‟ work as confidential informants, the Appellant‟s nephew was

indicted for a felony drug offense. On October 29, the Appellant was at Mr. Gray‟s

house with his nephew and Mr. Tarrant, who were concerned about going to prison. The

Appellant told them, “„Don‟t worry about it. Everything is going to be all right.‟” Mr.

Hill said that “he had money for – if something would happen to” Mr. Elliott. The

Appellant said, “„I got you.‟”

That same evening, Mr. Elliott persuaded Ms. Stephens to help him obtain crack

cocaine from the Appellant. The Appellant went to Ms. Stephens‟s house, sold Mr.

Elliott the crack cocaine, then left. The victims and Ms. Stephens used some of the crack

cocaine before the victims left. A couple of hours later, the victims went to Mr. Elliott,

Jr.‟s house. While there, the victims drank beer, and Mr. Elliott showed his son $2,100 in

cash. Before Mr. Elliott left, he called and gave someone directions to his location in

Tullahoma, presumably the first of twenty-two calls he had that evening with the

Appellant. The victims left Mr. Elliott, Jr.‟s house and returned to the Quality Inn shortly

before midnight.

Ms. Jones identified Mr. Elliott as the man who bought the drugs from the

Appellant on a back road on the evening of October 29. Later that night, she and the

Appellant went to the Quality Inn. The Appellant went into a motel room with a gun.

While the Appellant was gone, Ms. Jones heard two “pops.” When the Appellant

returned to the car, he was carrying an item that appeared to be a cellular telephone.

During the drive that night, the Appellant threw away the telephone at one location and

threw away the gun at a different location. Cellular telephone records confirmed the

route that the Appellant and Ms. Jones traveled that night. Additionally, cellular

telephone records confirmed that the Appellant and Mr. Elliott spoke several times that

night. Mr. Elliott‟s last telephone conversation with the Appellant was at 12:27 a.m. on

October 30.

While in jail, the Appellant confessed to Mr. Whitaker and Mr. Pentecost that he

was involved in the murder of two white men in a motel. Further, in response to

questions asked by Officer Kennedy, Agent Poff, and Chief Young, he nodded his head,

acknowledging his involvement in the murders.

Regarding the conviction of especially aggravated robbery, the Appellant argues

that the State failed to prove that anything was taken from the victims, that a deadly

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weapon was involved, or that the victims suffered serious bodily injury. The testimony at

trial revealed that two weeks earlier, the Appellant went to Mr. Elliott‟s motel room to

“hit a lick,” which meant to rob Mr. Elliott. Ms. Jones testified that on the night of the

crimes, the Appellant went into the victims‟ motel room with a gun and shortly thereafter,

she heard two “pops.” The victims died from gunshot wounds to the head. Ms. Stephens

and Mr. Elliott, Jr., saw Mr. Elliott with a considerable amount of money earlier in the

evening; however, when Mr. Elliott‟s body was found, he had no money. Ms. Jones saw

the Appellant leave the motel room with an object in his hand that she thought was a

cellular telephone. The Appellant later disposed of the telephone while they drove

toward Chattanooga. The police never found Mr. Elliott‟s cellular telephone. We

conclude that the evidence was sufficient to sustain the Appellant‟s convictions.

III. Conclusion

Based upon the foregoing, we affirm the judgments of the trial court.

_________________________________

NORMA MCGEE OGLE, JUDGE

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