State of Tennessee v. Lemaricus Devall Davidson

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

January 27, 2016 Session

STATE OF TENNESSEE v. LEMARICUS DEVALL DAVIDSON

Automatic Appeal from the Court of Criminal Appeals

Criminal Court for Knox County

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No. 86216B Walter C. Kurtz, Senior Judge

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No. E2013-00394-SC-DDT-DD – Filed December 19, 2016

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A jury imposed two sentences of death on the defendant after convicting him of multiple

counts of first degree murder, especially aggravated robbery, especially aggravated

kidnapping, aggravated rape, and facilitation of aggravated rape. The Court of Criminal

Appeals affirmed the convictions and sentences. State v. Davidson, No.

E2013-00394-CCA-R3-DD, 2015 WL 1087126, at *1 (Tenn. Crim. App. Mar. 10, 2015).

We have carefully considered the defendant‘s claims of error and conducted the review

mandated by Tennessee Code Annotated section 39-13-206. We hold that the trial court

did not err by admitting evidence obtained during searches of the defendant‘s house and

of his person; the trial court did not err by admitting the defendant‘s statement to law

enforcement officers; the trial court did not abuse its discretion by allowing the victims‘

family members to wear buttons containing images of the victims; the trial court did not

abuse its discretion by admitting into evidence post-mortem photographs of the victims;

the trial court did not abuse its discretion by allowing the jury to view the defendant‘s

video recorded statement in the courtroom during deliberations; the trial court did not

abuse its discretion by admitting expert testimony regarding ballistics and fingerprint

evidence; the defendant‘s convictions were supported by sufficient evidence; and the trial

court properly effectuated merger of the convictions. We affirm the Court of Criminal

Appeals on the remaining issues and include relevant portions of its opinion in the

appendix. We hold the sentences of death were not imposed in an arbitrary fashion; the

evidence fully supports the jury‘s findings of aggravating circumstances in Tennessee

Code Annotated sections 39-13-204(i)(5), (6), (7), and (13); the evidence supports the

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Judge Richard Baumgartner was the trial judge in this case until he resigned in March 2011.

This Court appointed Senior Judge Jon Kerry Blackwood and subsequently Senior Judge Walter C. Kurtz

to preside over the case.

jury‘s finding that these aggravating circumstances outweighed the mitigating

circumstances presented by the defendant; and the defendant‘s death sentences are

neither excessive nor disproportionate to the penalty imposed in similar cases. We affirm

the defendant‘s convictions and sentences of death and vacate the Court of Criminal

Appeals‘ remand to the trial court for correction of the judgment documents.

Tenn. Code Ann. § 39-13-206(a)(1) Automatic Appeal; Judgment of the Court of

Criminal Appeals Affirmed in Part and Vacated in Part

SHARON G. LEE, J., delivered the opinion of the Court, in which JEFFREY S. BIVINS, C.J.,

and CORNELIA A. CLARK and HOLLY KIRBY, JJ., joined.

David M. Eldridge, Douglas A. Trant, Loretta G. Cravens, and Troy S. Weston,

Knoxville, Tennessee, for the appellant, Lemaricus Devall Davidson.

Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor

General; John H. Bledsoe, Senior Counsel; Randall E. Nichols, District Attorney

General; and Leland Price and TaKisha Fitzgerald, Assistant District Attorneys General,

for the appellee, State of Tennessee.

OPINION

I.

Events of January 6–10, 2007

This case arises from the January 2007 kidnapping, robbery, rape, and murder of

Channon Christian and Christopher Newsom in Knoxville, Tennessee. On Saturday,

January 6, 2007, Channon and Chris planned to have dinner together and then spend the

evening at a party at a friend‘s home in the Halls community. Saturday afternoon,

Channon went to her friend Kara Sowards‘s apartment at the Washington Ridge

Apartments to get ready for the party. Around 8:00 p.m., Ms. Sowards went to the party,

and Channon stayed behind waiting for Chris to arrive. At 8:47 p.m., Chris withdrew

$100 from his bank account at an ATM machine in the Halls area. Around 9:00 p.m.,

Chris dropped off his friend, Josh Anderson, at the party, telling friends he and Channon

were going out to eat and would join the party later. Ms. Sowards called Channon and

told her Chris was on his way. It was about a ten-minute drive from the party to the

Washington Ridge Apartments.

Around 10:00 p.m., when Chris and Channon had not arrived at the party, their

friends called and texted them but received no reply. Around 11:00 p.m., two of Chris‘s

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friends went to the Washington Ridge Apartments in search of him and discovered that

his truck was in the parking lot and Channon‘s 2005 Toyota 4Runner was missing.

Chris and Channon never arrived at the party. Their friends never saw or spoke to

them again. Channon was last seen wearing jeans, hot pink high heels, and a navy blue,

hot pink, and white striped sweater and carrying a gray purse. Chris was last seen

wearing jeans, black and silver size 9½ Nike Shox athletic shoes, a blue sweater with a

white collar, and a baseball cap. Sometime between 9:10 p.m. and 11:00 p.m., Chris and

Channon were abducted from the parking lot of the Washington Ridge Apartments and

taken in Channon‘s vehicle to the home of Lemaricus Devall Davidson at 2316 Chipman

Street in Knoxville.

On Sunday, January 7, around 12:30 a.m., Xavier Jenkins, an employee of Waste

Connections on Chipman Street, arrived for work and waited in his car in the parking

area outside the Waste Connections gated parking lot for a coworker to arrive. From

where Mr. Jenkins was parked, he could see across the street to Mr. Davidson‘s house

and noticed Channon‘s vehicle parked in front of it. The porch lights were on, and the

house seemed to be ―pretty busy‖ for that time of night. He had never seen Channon‘s

vehicle before that evening. Mr. Jenkins briefly left to go to a nearby convenience store,

and when he returned, he waited in his vehicle in the parking area across from Mr.

Davidson‘s house. Around 12:50 a.m., he saw Channon‘s vehicle pull away from where

it had been parked in front of Mr. Davidson‘s house and come in his direction. As the

vehicle passed Mr. Jenkins, it slowed down, and he saw four African-American men in it.

The driver, wearing a hoodie, looked at him ―kind of strange‖ and ―kind of

mean-[mugged]‖ him.

On Sunday at 12:33 a.m., Channon called her father and told him she had changed

her mind and would not be spending the night at the party but would be home between

2:00 a.m. and 3:00 a.m. Cellular records indicate this call came from the Cherry Street

area in the general vicinity of Mr. Davidson‘s house.

On Sunday at 1:45 a.m., Jerome Arnold was watching television at his Chipman

Street residence a block from Mr. Davidson‘s house when he heard ―three fairly evenly

spaced pops‖ coming from the direction of the train tracks.

On Sunday around 3:30 a.m., Ms. Sowards returned from the party and noticed

that Chris‘s truck was in the parking lot and Channon‘s vehicle was gone. Ms. Sowards‘s

apartment door was locked, and Channon‘s overnight bag was missing.

On Sunday at 6:30 a.m., when Mr. Jenkins returned to Waste Connections from

running his route, he saw Channon‘s vehicle with an orange University of Tennessee

―Power T‖ decal on the window parked facing the train tracks in front of Waste

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Connections on Chipman Street. The vehicle appeared to be out of place, and when Mr.

Jenkins looked in the vehicle, he saw no one in it.

On Sunday at 7:45 a.m., when Roy Thurman arrived for work at a sandblasting

company in the Chipman Street area, he saw smoke rising from the direction of the train

tracks.

On Sunday morning and afternoon, Ms. Sowards and Channon‘s mother

repeatedly called Channon‘s cell phone, but there was no answer. On Sunday afternoon,

Channon‘s mother‘s fears were confirmed when the manager of the Shoe Department

where Channon worked called to check on Channon because she had not reported to

work. Channon‘s mother called local hospitals, Chris‘s family, and Channon‘s friends

trying to find her. When Channon still could not be located, Channon‘s mother notified

the Knox County Sheriff‘s Department and filed a missing persons report. Meanwhile,

Chris‘s family was also worried about him. They called the police, checked with local

hospitals and Chris‘s friends, and filed a missing persons report.

On Sunday at 12:20 p.m., J.D. Ford, a Norfolk Southern Railroad employee,

discovered Chris‘s severely burned body beside the train tracks not far from Mr.

Davidson‘s house. Chris had been shot, his hands tied behind his back, his eyes covered

with a bandana, a sock stuffed in his mouth, his head wrapped in a sweatshirt, and his

bare feet bound together. The police were notified and responded to the scene.

When Channon‘s family requested help from law enforcement, they were told that

the authorities would not search for their missing daughter and they would have to do it

themselves. And they did. The Christians contacted their cellular phone company and

learned that Channon‘s phone had last pinged off the Cherry Street phone tower. On

Sunday night, some of Channon‘s and Chris‘s family and friends went to the Cherry

Street area and searched street by street. This was a part of town that Channon and Chris

did not visit.

Early Monday, January 8, between 1:30 a.m. and 2:00 a.m., the search party

discovered Channon‘s vehicle at the corner of Chipman and Glider Streets. An orange

University of Tennessee ―Power T‖ decal and a ―NorthFace‖ sticker had been removed

from the back window. The police were called and responded to the scene. Bags of

clothing, including a pair of GLO jeans, which Channon had planned to donate to charity,

were missing from the back of the vehicle. Channon‘s overnight bag and its contents

were also missing. The front seats of the vehicle were pushed all the way back, and the

backseat floorboard was caked with mud. A crumpled pack of Newport cigarettes was in

the back of the vehicle. Neither Channon nor Chris smoked Newport cigarettes. The

vehicle was photographed, inventoried, and taken to the police impound lot. Sandra

Kileen Bible, who lived in the house at the corner of Chipman and Glider Streets, said

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she had not seen the vehicle there at midnight when she sat on the porch smoking a

cigarette. She had never seen Channon‘s vehicle in the neighborhood before.

Dan Crenshaw, senior evidence technician with the Knoxville Police Department

forensic unit and a certified fingerprint examiner, went to the scene and processed the

vehicle for fingerprints. The outside of the vehicle, however, appeared to have been

wiped clean, and he could not get any prints.

On Monday, January 8, at 11:00 p.m., when Mr. Crenshaw returned to work on the

night shift, he retrieved a bank envelope from the back seat of the vehicle and began

processing it.

On Tuesday, January 9, at 2:45 a.m., Mr. Crenshaw determined that the fingerprint

on the bank envelope matched Mr. Davidson‘s fingerprint. Mr. Crenshaw then discovered

that Mr. Davidson‘s address was on Chipman Street, close to where Channon‘s vehicle

and Chris‘s body were found. At 2:52 a.m., Mr. Crenshaw emailed Knoxville Police

Department Investigator Todd Childress and others informing them he had confirmed Mr.

Davidson‘s fingerprint on the envelope and his Chipman Street address. At 7:00 a.m., the

fingerprint match was verified by Tim Schade, another Knoxville Police Department

evidence technician. Mr. Crenshaw was certain that Mr. Davidson was involved in the

disappearance of Channon. Between 6:30 a.m. and 7:00 a.m., while waiting on the

fingerprint verification, Mr. Crenshaw drove by Mr. Davidson‘s Chipman Street house

hoping to see or hear something so he or someone else could take action. There were no

signs of activity at the house.

On Tuesday morning, after the fingerprint match to Mr. Davidson was verified,

Investigator Childress began to search for information regarding Mr. Davidson and

discovered, among other things, an outstanding attachment for his arrest for failure to

appear in court. Investigator Childress prepared an affidavit for a search warrant for Mr.

Davidson‘s house. Investigator Childress hurriedly printed the affidavit and did not

realize that he had printed it on letter-sized paper instead of legal-sized paper. As a result,

the signature line on the affidavit was cut off. Sometime between 10:30 a.m. and noon,

Investigator Childress appeared before Knox County General Sessions Judge Tony

Stansberry to request the issuance of a search warrant. Investigator Childress did not sign

the affidavit but instead signed the search warrant on the line marked ―Officer To Whom

Warrant Is Delivered For Execution.‖ Judge Stansberry reviewed the affidavit but did not

notice that Investigator Childress had failed to sign it. Investigator Childress raised his

hand and swore to the truth of the contents of the affidavit before Judge Stansberry. On

Tuesday, January 9, at 12:53 p.m., Judge Stansberry signed the search warrant.

At 1:39 p.m., officers entered Mr. Davidson‘s house to execute the search warrant.

They quickly checked the house and found no one at home. At 1:42 p.m., Sergeant Keith

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DeBow entered the kitchen and noticed an oddly shaped thirty-two-gallon plastic garbage

can. Fearing someone was hiding in the garbage can, he drew his weapon, lifted the lid,

and saw an arm partially covered with fabric. When he touched the arm, he knew he had

discovered a dead body.

At 2:04 p.m., Dr. Darinka Mileusnic-Polchan, Knox County‘s Medical Examiner,

arrived to supervise the removal of Channon‘s body. At approximately 3:10 p.m., the

garbage can, with Channon‘s body still inside, wrapped in a tarp, and secured with plastic

tie wires, was removed from the house. Officers discovered Channon‘s personalized iPod

on top of a container in Mr. Davidson‘s bedroom. At 3:30 p.m., the officers left the house

after Investigator Childress told them to ―[h]old what you‘re doing‖ because the Knox

County District Attorney General‘s Office had advised him that they were to secure the

location and leave the scene. Everyone left except for several officers who stayed outside

the home to ensure that no one entered the residence.

Investigator Childress prepared a second affidavit for a search warrant with

additional information, including that Channon‘s body was found in Mr. Davidson‘s

house. He signed the affidavit and presented it to Knox County General Sessions Court

Judge Chuck Cerny. At 7:25 p.m., Judge Cerny issued the second warrant. At 7:55 p.m.,

the officers reentered Mr. Davidson‘s residence and collected evidence until about 1:30

a.m. on Wednesday. The search of the house produced numerous items that belonged to

the victims, including clothing Channon had in her vehicle, photographs she kept in her

vehicle, the gray purse she carried on Saturday night, her pink high heels, her iPod with

the inscription ―Channon Christian, Mom and Dad, we love you,‖ two of Chris‘s baseball

caps including the one he was last seen wearing, Channon‘s camera, Chris‘s driver‘s

license, a pay stub from Channon‘s work, Channon‘s mother‘s Blockbuster card, a CD,

and Channon‘s personal toiletry items.

Mr. Davidson’s Whereabouts January 6–11, 2007

As of January 6, 2007, Mr. Davidson was twenty-five years old and a convicted

felon. He had no job and no vehicle. He supported himself by selling drugs. He snorted

cocaine and smoked marijuana. He lived in a rental house at 2316 Chipman Street and

had not paid the January rent. He owed money to Ethel Lynn Freeman for furniture he

bought from her. His relationship with his girlfriend, Daphne Sutton, had soured. The day

after Christmas 2006, Ms. Sutton moved her furniture out of the Chipman Street house.

In December 2006, Stacey Lawson of Lebanon, Kentucky, brought her boyfriend,

George Thomas, Mr. Davidson‘s half-brother, Letalvis Cobbins, and his friend, Vanessa

Coleman, from Kentucky to live with Mr. Davidson. None of them had vehicles or jobs.

Ms. Lawson recalled seeing an assault rifle and two revolvers—a black one and a silver

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one—at Mr. Davidson‘s house. Ms. Lawson had seen Mr. Thomas, Mr. Cobbins, and Ms.

Coleman smoke Newport cigarettes.

Ms. Sutton occasionally returned to Mr. Davidson‘s house. On Friday, January 5,

2007, Ms. Sutton and Mr. Davidson argued. Ms. Sutton then walked to a gas station on

Cherry Street and called her friend, Kassie Suttles, for a ride. Ms. Sutton‘s vehicle was

not operable, and she left it parked on Chipman Street near Mr. Davidson‘s house. Ms.

Suttles picked up Ms. Sutton and took her to the apartment that Ms. Suttles shared with

Brandi Pressley.

Mr. Davidson met Ms. Freeman through a mutual friend. In December 2006, Mr.

Davidson, Mr. Thomas, and Mr. Cobbins helped her move into her apartment at the

Washington Ridge Apartments. Ms. Freeman gave Mr. Davidson a comforter, some

bedding, pillow shams, and curtains and sold him some used furniture. He agreed to pay

her between $75 and $100 every two weeks for the furniture. Mr. Davidson promised Ms.

Freeman he would bring her a payment on Saturday night, January 6. She expected him

to be at her Washington Ridge apartment between 10:00 p.m. and 10:30 p.m., but he

never arrived. Ms. Freeman fell asleep, and when she woke up, she called Mr. Davidson

on his cell phone. Phone records indicate she called him on Sunday at 3:51 a.m. She said

he did not sound like himself; he sounded flustered and busy, his voice was different, and

he seemed like he was doing something at a high pace. Mr. Davidson told her he did not

come by because he had ―got busy.‖

On Sunday, January 7, at 2:10 a.m., a call was placed from Chris‘s cell phone to

Jason Mynatt. Mr. Mynatt did not know Mr. Davidson or any of his friends and

frequently got wrong numbers on his cell phone. Mr. Mynatt‘s number was

865-237-4625. The phone number of Ms. Sutton‘s friend, Taylor Shadix, was

865-237-7625. Mr. Davidson repeatedly called Ms. Sutton‘s friend, Kayla Troutt,

beginning around 2:30 a.m. Sunday morning. She did not take his calls during the night

but spoke with him by phone between 3:00 p.m. and 4:00 p.m. on Sunday afternoon. Mr.

Davidson was calling Ms. Troutt to try and reach Ms. Sutton because he had some

clothes for her.

James Mitchell, who worked for Mr. Davidson‘s landlord, went to Mr. Davidson‘s

house in early January on a Saturday to collect the rent. He spoke with Mr. Davidson,

who told him to come back in a few days. When Mr. Mitchell returned a few days later,

the police had the house taped off.

Darin Williams was one of Mr. Davidson‘s drug customers. One weekend after

dark in January 2007, Mr. Williams was driving to Mr. Davidson‘s house to buy cocaine.

While at a stop sign on Chipman Street, Mr. Williams saw an oncoming vehicle. The

driver, who he later identified as Mr. Davidson, was blowing the horn, but Mr. Williams

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did not recognize the vehicle and kept going. By the time he got to Mr. Davidson‘s

house, the vehicle had circled around the block and stopped. Mr. Davidson, who was

driving Channon‘s vehicle, got out of the vehicle, along with two other men. The two

passengers, wearing black hoodies with the hoods pulled up, stood on each side of the

vehicle. Mr. Davidson told Mr. Williams that he did not have any drugs for him. Mr.

Williams went back, maybe the next afternoon, and Mr. Davidson came out of the house

and asked him if he had seen the helicopters flying over that way and said, ―[T]hey found

a woman‘s body over here on the railroad tracks.‖ On this second trip to Mr. Davidson‘s

house, Mr. Williams saw Channon‘s vehicle parked in the parking area across the street

from Mr. Davidson‘s house. Mr. Davidson told Mr. Williams he had bought the vehicle

for $2,500. Mr. Williams knew that could not be true based on the value of the vehicle.

On Sunday around noon, Ms. Freeman drove to Mr. Davidson‘s house and parked

in front of it. As she was getting out of her car, a neighbor, Rhonda Dukes, motioned her

to come down the street and visit with her. After Ms. Freeman finished visiting with Ms.

Dukes, she saw Mr. Thomas walk by in a dark hoodie. She left without seeing Mr.

Davidson. She had to go home a different route because the road was closed due to the

discovery of a burned body near the train tracks. Mr. Davidson called her after she

returned home and said he had seen her at Ms. Dukes‘s house and planned to come down

there, but Ms. Freeman had left before he could do so. He promised to come to her house

around 3:00 p.m. to pay her for the furniture. He did not go to Ms. Freeman‘s residence

to pay her and did not answer her telephone calls.

On Sunday, Ms. Sutton learned from friends that Mr. Davidson was trying to reach

her. She talked to him on the phone a few times that day. Later Sunday evening, he told

her he had some clothes for her. He asked her to come to his house and get the clothes but

to wait thirty minutes before she came. Suspecting that Mr. Davidson had another woman

in the house, Ms. Sutton and her friends immediately went to Mr. Davidson‘s house.

When she arrived about five minutes after their phone conversation, Mr. Davidson was

standing at the front door. She entered the house and saw Mr. Cobbins sitting in a chair

next to the kitchen door and Mr. Thomas sitting in a chair in the living room. Ms. Sutton

wanted to retrieve her makeup bag from the bathroom. She walked through the front

bedroom to the bathroom, but the bathroom door was closed. Mr. Davidson told her that

Ms. Coleman was in the bathroom. When Ms. Sutton tried to get to the bathroom by

entering the kitchen, Mr. Davidson grabbed her and said, ―What are you doing? This is

my house.‖ He walked her to the front door and handed her a Sears bag filled with

clothes and tried to give her some money. She refused the money but took the bag of

clothes. After Ms. Sutton returned to Ms. Suttles‘s apartment, she looked at the clothes

and realized they were not new. She then called Mr. Davidson, and he explained he had

bought the clothes at a used clothing store and thought she would like them. The bag

contained items that included a red skirt, a pink blouse, a pair of GLO jeans, and a ring.

Ms. Sutton gave the GLO jeans to Ms. Suttles and told Mr. Davidson to come and get the

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rest of the clothes. When Mr. Davidson arrived at the apartment to retrieve the bag of

clothes, he was driving Channon‘s vehicle, which had a Tennessee decal and a NorthFace

sticker on the back window.

Late Sunday night or early Monday morning, Mr. Davidson called Ms. Sutton and

asked her to come and get him. He claimed that he could not get into his house because it

was locked and his brother had the keys. Ms. Sutton drove a friend‘s vehicle to pick up

Mr. Davidson, who was waiting in Ms. Sutton‘s car that was parked on Chipman Street.

They returned to Ms. Suttles‘s apartment and spent the night.

On Monday morning, Ms. Freeman returned to Mr. Davidson‘s house to collect

her money. She decided not to leave him a note because the house looked vacant, the

windows were ―down,‖ and it looked like a ―ghost house.‖ When she saw police officers

down the street with flashlights, she knew something was going on and left.

Ms. Sutton and Mr. Davidson stayed together at Ms. Suttles‘s apartment on

Sunday night and Monday night. On Tuesday afternoon, they were awakened by a call

from Ms. Sutton‘s mother who told Ms. Sutton that a girl‘s body had been found in Mr.

Davidson‘s house. When Mr. Davidson overheard this news, his eyes got really big, and

he begged Ms. Sutton to believe that he did not do anything and ―that it was on all his

fam . . . his brother.‖ Ms. Sutton told him he would have to leave, and he asked her if he

could wait until after dark. After the phone call, Ms. Sutton found his house keys and a

black revolver in his jacket pocket. Mr. Davidson was wearing a pair of black and silver

Nike Shox athletic shoes that appeared to be too small for him. When she questioned

him, he claimed he had bought the shoes. Ms. Sutton dropped him off beside Ridgebrook

Apartments, close to Reynolds Avenue.

Mr. Davidson’s Arrest and Statement to Police

On Thursday afternoon, January 11, 2007, the Knoxville Police Department

Special Operations Team and other officers arrested Mr. Davidson in a vacant house at

1800 Reynolds Avenue. Among the items found in the house were Chris‘s size 9½ Nike

Shox athletic shoes and a .22 caliber High Standard revolver.

Mr. Davidson was questioned by Tennessee Bureau of Alcohol, Tobacco,

Firearms, and Explosives Agent Forrest Webb and Knoxville Police Department

Investigator Ryan Flores. Before the interview, Mr. Davidson was advised of his

Miranda rights, and he signed a waiver of rights form. During questioning, Mr. Davidson

told more than five versions of what occurred January 6–8. First, he claimed he left his

house on Friday and knew nothing about what may have happened there. Next, he said

Mr. Cobbins showed up at his house with Channon‘s vehicle, but Mr. Davidson did not

see the victims. Mr. Davidson drove Channon‘s vehicle while making his drug deliveries.

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When he learned about the body found beside the train tracks, he went back and wiped

the vehicle down to remove his fingerprints. As he returned to the house, Ms. Dukes

called and said that the police were down at the end of the street, so he walked down the

street to her house and sat on the porch until Ms. Sutton picked him up. He claimed all of

this happened on Sunday night.

His next version of the story was that he was at home all day on Saturday and

around 5:00 p.m. started selling drugs from his house. He went to bed and woke up

Sunday around 4:00 p.m. or 5:00 p.m., when Ms. Sutton called to tell him about a dead

body found near the train tracks. He had her come pick him up, but before she did, he

wiped down Channon‘s vehicle. He stayed at Ms. Sutton‘s house on Monday and

Tuesday. He said that he did not know Chris or Channon. He claimed that Mr. Cobbins

indicated to him that Mr. Thomas killed Chris.

Next, he said Mr. Cobbins and Mr. Thomas had taken Chris and Channon from

some apartments and brought them back to his house. They took Chris‘s wallet and his

money. Then Mr. Davidson said that around 10:00 p.m. on Friday or Saturday night, Mr.

Cobbins and Mr. Thomas arrived at Mr. Davidson‘s house saying they had carjacked

some people and they were in the vehicle. Mr. Davidson saw Chris and Channon tied up

in the back seat. Mr. Davidson did not want to be part of it, so he left and walked down

the street and smoked some marijuana. When he returned about twenty minutes later,

Channon was in his house. Channon told Mr. Davidson ―she ain‘t want to die.‖ Mr.

Davidson said Chris was never in his house. Then Mr. Davidson added that after arriving

with Chris and Channon, Mr. Cobbins and Mr. Thomas left for less than twenty minutes

and returned with only Channon. When Channon came into Mr. Davidson‘s house, she

was wearing a hoodie and her eyes were not covered. Mr. Davidson became concerned

that she had seen him, so he left in her vehicle to sell some drugs. When Mr. Davidson

returned, he parked the vehicle down the street, wiped it clean, and went into his house.

He did not go beyond the living room and did not see Channon. Finally, he admitted that

he saw Channon sitting on a bed in his house and she told him she did not want to die.

Mr. Davidson denied having sex with her and did not know if anyone had sex with her.

He said his DNA would not be found on her.

On January 11, 2007, Mr. Thomas, Mr. Cobbins, and Ms. Coleman were arrested

at Natosha Hays‘s house in Lebanon, Kentucky. During the search of Ms. Hays‘s

residence, the officers seized a computer on which Mr. Thomas and Mr. Cobbins had

been viewing the Knoxville news coverage of the homicides and found a red purse that

contained documents and other items belonging to Channon. Later, a .22 caliber Clerke

revolver was recovered from Ms. Hays‘s house.

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Forensic and Scientific Evidence

Dr. Mileusnic-Polchan performed autopsies on Chris‘s and Channon‘s bodies and

determined the injuries they suffered and the causes of their deaths. Neither Chris nor

Channon had any defensive wounds. Their stomachs were empty; neither had eaten any

food in the hours before their deaths.

Chris was anally penetrated one to two hours before he died. He had significant

injuries to his anal/genital area with lacerations, tearing, and bruising around his anus.

Chris was shot three times, each time with a small caliber bullet. One bullet was shot

from at least two to three feet away and entered his body in the neck area between the

back of the neck and the shoulder. The second shot was to his lower back, and the bullet

traveled steeply upward, indicating he was bent over when the weapon was fired. This

shot severely damaged Chris‘s spinal cord. The fatal shot was fired with the muzzle of

the gun against his head above his right ear, severing his brain stem and causing

instantaneous death. All three bullets were still lodged in Chris‘s body when it was found.

Chris had a hematoma on his right forehead, indicating that he was struck with an

object or fell and hit his head on the ground, possibly when he was shot while bending

over. When the fatal shot was fired, Chris‘s head was wrapped in a gray hooded

sweatshirt, a blue bandana was tied around his eyes, and an ankle sock was rolled up,

stuffed in his mouth, and secured with a shoelace. His leather belt and some floral fabric

were wrapped around his ankles, securing them together. Some plant material was found

in the bindings. His wrists were tied together behind his back with a shoelace and some

nylon. He had on a shirt, a t-shirt, underwear, and no other clothing. His feet were bare

and muddy, indicating that he had walked barefoot to the area where he was killed. He

was placed on his back, a comforter was wrapped around his body, an accelerant was

poured over him, and he was set on fire. His face, head, and upper body were burned the

worst. Chris‘s anus had semen in it, but the high temperature of the fire destroyed the

DNA in the semen. Soil samples taken where Chris‘s body was found indicated the

presence of gasoline. A gasoline can was found in the kitchen of Mr. Davidson‘s house.

Channon‘s frenulum, the membrane that connects the lip to the gum, was torn. She

had bruising and abrasions around her mouth. These injuries occurred hours before her

death and were caused by an object, such as a penis, being forced into her mouth. One to

two hours before Channon‘s death, her anal/genital area suffered tremendous damage.

Her vaginal area had bruises, lacerations, contusions, and swelling, and a solid blood clot

had formed under the entire area. The depth and extent of her injury was so grave, it was

not caused by a ―regular‖ rape but caused by a blunt object coming in contact with her

genital area with sufficient force to inflict serious injury. She had bruises on the backs of

both arms, bruising on both sides of the top of her head with extensive hemorrhaging,

bruises on the front of her legs, deep bruising to her upper back close to her neck, and

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carpet burns and scratches to her lower back and upper buttocks. She also had a cut to her

right hand that occurred around the time of death.

Channon had been forced into a tight fetal position and then bound with her head,

neck, and shoulder twisted and pressed against her bent knees. Her left cheek had been

pressed tightly against her knee. A portion of a sheer curtain had been tied around her

ankles and wrapped around her neck. A floral fabric, like the one used to bind Chris, had

been tied around her thighs, bringing them tightly against her chest. A white plastic bag

had been placed over her head, covering her mouth and nose, and knotted in the back to

keep it in place. Her body had been put in five black plastic garbage bags, stuffed in a

large garbage can, and partially covered with bedding, sheets, and other bags. She was

dressed only in a camisole and a sweater. Because she could not breathe with the plastic

bag tied tightly over her face and due to her positioning in the confined space, she

suffocated to death. The time of her death was estimated to be sometime between Sunday

afternoon and Monday afternoon. Based on the plastic bag that covered her face and her

positioning inside the garbage can, the oxygen around her face would have been depleted

within ten to thirty minutes after she was placed in the garbage can, and she would have

died three to five minutes later.

Mr. Davidson‘s DNA from sperm was found in Channon‘s vagina, anus, and on

her jeans. Mr. Cobbins‘s DNA from sperm was found in Channon‘s mouth and on her

camisole, sweater, and jeans. A chlorine substance was found on Channon‘s camisole. A

bottle of cleaning liquid with bleach was found in Mr. Davidson‘s kitchen.

The fabric found with Chris‘s body and the fabric used to bind Channon in the

garbage bag were parts of the curtains and bedding that Ms. Freeman had given to Mr.

Davidson.

Mr. Davidson‘s fingerprint was discovered on a bank envelope recovered from

Channon‘s vehicle. His prints were also found on three of the five plastic garbage bags

that contained Channon‘s body. His palm print was found on the outermost exterior

garbage bag. This print was consistent with Mr. Davidson using his hand to lift the bag

with weight in it. Mr. Davidson‘s right palm print and two left palm prints were on the

next garbage bag. The third garbage bag bore his palm print. Mr. Davidson‘s fingerprints

were also on items belonging to Channon and Chris found in his house, including a pay

stub with Channon‘s name on it and photographs that had been in her vehicle. Mr.

Davidson‘s prints were also on a box of Brawny garbage bags in the kitchen.

Ballistics testing revealed that two bullets removed from Chris‘s body were fired

from the same gun. The third bullet was damaged, so the gun that had fired it could not

be identified. The bullets could have been fired from the High Standard revolver that was

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in Mr. Davidson‘s possession when he was arrested. The Clerke revolver associated with

Mr. Cobbins was eliminated as the murder weapon.

Presentment, Trial, and Convictions

On January 31, 2007, Mr. Davidson and his co-defendants, Mr. Thomas, Mr.

Cobbins, and Ms. Coleman, were charged in a forty-six-count presentment issued by a

Knox County Grand Jury. Mr. Davidson was tried separately, and this appeal only

involves Mr. Davidson‘s case.2 After the trial court merged a number of the charges, Mr.

Davidson stood trial on sixteen counts of first degree felony murder, two counts of first

degree premeditated murder, two counts of especially aggravated robbery, four counts of

aggravated kidnapping, nine counts of aggravated rape of Channon, three counts of

aggravated rape of Chris, one count of theft of property valued at $10,000 or more but

less than $60,000, and one count of theft of property valued at $500 or less. The State

sought the death penalty. Following an eight-day trial in October 2009, the jury found

Mr. Davidson guilty of sixteen counts of first degree felony murder, two counts of first

degree premeditated murder, two counts of especially aggravated robbery, four counts of

aggravated kidnapping, nine counts of aggravated rape of Channon, three counts of

facilitation of aggravated rape of Chris, one count of theft of property valued at $10,000

or more but less than $60,000, and one count of theft of property valued at $500 or less.

The jury imposed two sentences of death on Mr. Davidson.

After the jury returned its verdict, the State dismissed two felony murder counts.

The trial court merged the remaining murder counts into two counts of first degree

premeditated murder; merged the two especially aggravated robbery counts and the two

theft counts into two counts of especially aggravated robbery; merged the four especially

aggravated kidnapping counts into two counts of especially aggravated kidnapping;

merged the nine counts of aggravated rape of Channon into three counts of aggravated

2

Mr. Thomas was convicted of first degree murder, especially aggravated robbery, especially

aggravated kidnapping, and aggravated rape. State v. Thomas, No. E2013-01738-CCA-R3-CD, 2015 WL

513583, at *1 (Tenn. Crim. App. Feb. 5, 2015), perm. app. denied (Tenn. Aug. 12, 2015). He received

two life sentences for the murder convictions plus twenty-five years for his other convictions. Id. Mr.

Cobbins was convicted of first degree murder, facilitation of first degree murder, especially aggravated

robbery, especially aggravated kidnapping, facilitation of especially aggravated kidnapping, and

aggravated rape. State v. Cobbins, No. E2013-00476-CCA-R3-CD, 2014 WL 4536564, at *1 (Tenn.

Crim. App. Sept. 12, 2014). He received a total effective sentence of life without parole plus one hundred

years. Id. Ms. Coleman was convicted of facilitation of first degree murder, facilitation of aggravated

kidnapping, facilitation of rape, and facilitation of misdemeanor theft. State v. Coleman, No.

E2013-01208-CCA-R3-CD, 2014 WL 6908409, at *1 (Tenn. Crim. App. Dec. 9, 2014), perm. app.

denied, not for citation (Tenn. May 14, 2015). She received a total effective sentence of thirty-five years.

Id.

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rape; and merged the three counts of facilitation of aggravated rape of Chris into one

count of facilitation of aggravated rape.

The trial court ordered the two death sentences to be served consecutively to each

other and sentenced Mr. Davidson to forty years for each of the especially aggravated

robbery counts, to be served concurrently with the death sentences; forty years for each

of the especially aggravated kidnapping counts, to be served concurrently with the death

sentences; forty years for each of the aggravated rape counts, to be served concurrently

with the death sentence for Channon‘s murder; and twenty years for facilitation of

aggravated rape, to be served concurrently with the death sentence for Chris‘s murder.

Mr. Davidson filed a motion for new trial and amended motions for new trial, all of

which were denied.

Mr. Davidson appealed to the Court of Criminal Appeals, raising twenty-six

claims of error. The Court of Criminal Appeals affirmed the convictions and sentences.

Davidson, 2015 WL 1087126, at *58–60. The Court of Criminal Appeals remanded the

case for correction of clerical errors on the judgment forms regarding the merged counts,

finding that the jury‘s guilty verdicts on separate counts needed to be merged into a

single judgment document.

Under Tennessee Code Annotated section 39-13-206, we conduct this mandatory

review to consider the issues raised by Mr. Davidson and to review his death sentences.

II.

Searches of Mr. Davidson’s House and Person

Mr. Davidson argues that the trial court erred in denying his motions to suppress

evidence seized during the two searches of his house and the search of his person. He

contends that the first search warrant for his house was defective because it was not

supported by a signed affidavit, that the second search warrant for his house was

defective because it was based on facts impermissibly obtained from the first search, and

that the two search warrants for Mr. Davidson‘s person to obtain hair and DNA samples

for testing were defective because the warrants were based on evidence obtained during

the searches of his house. The State contends that the first search warrant was valid

despite technical flaws, and that if the search warrant was defective, the evidence

obtained from the search was admissible under the exigent circumstances exception to the

warrant requirement. The State further argues this Court should adopt a good-faith

exception for constitutional violations based on United States v. Leon, 468 U.S. 897

(1984). The State submits that the validity of the first search is dispositive of the issues

regarding the second search warrant and the search of Mr. Davidson‘s person.

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The trial court denied Mr. Davidson‘s motions to suppress, ruling that the first

search warrant was valid because although Investigator Childress did not sign the

affidavit, he swore to the truth of the facts in the affidavit before the judge who issued the

search warrant. The trial court further ruled that the first search of Mr. Davidson‘s house

was valid based on the outstanding attachment for Mr. Davidson‘s arrest and exigent

circumstances. The trial court held that the doctrine of inevitable discovery was not

applicable and that a good-faith exception had not been previously adopted in Tennessee.

As to the second search warrant, the trial court ruled it was not valid because it relied on

information discovered during the execution of the first invalid warrant.

The Court of Criminal Appeals held the trial court did not err in not suppressing

evidence obtained from the execution of the first search warrant but for different reasons

than the trial court. The intermediate appellate court ruled the first search warrant was not

supported by a signed affidavit and that neither service of the attachment nor exigent

circumstances justified entry into Mr. Davidson‘s house. Davidson, 2015 WL 1087126,

at *14, *16–18. The Court of Criminal Appeals held that the evidence obtained from the

first search was admissible under the doctrine of inevitable discovery. Id. at *21. As to

the second search warrant, the Court of Criminal Appeals ruled that it should not have

included information discovered in the first search, but after redacting this information,

the remaining facts in the affidavit established probable cause for its issuance. The Court

of Criminal Appeals found that evidence obtained from the search of Mr. Davidson‘s

person based on a federal search warrant and a state search warrant was admissible

because these warrants were based on information obtained during the lawful searches of

Mr. Davidson‘s house. The Court of Criminal Appeals reasoned that, because evidence

obtained during the first search of the house was admissible based on the inevitable

discovery doctrine, it could be used to establish probable cause for the search of Mr.

Davidson‘s person. The intermediate appellate court further concluded that if the search

warrants contained tainted information, the warrants were based on probable cause after

redaction of any tainted information. Id. at *24.

Standard of Review

A trial court‘s findings of fact on a motion to suppress are upheld on appeal unless

the evidence preponderates otherwise. State v. McCormick, 494 S.W.3d 673, 678 (Tenn.

2016) (citing State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). We defer to the trial

court‘s factual findings on the credibility of the witnesses, the weight and value of the

evidence, and resolution of conflicts in the evidence. Id. (quoting Odom, 928 S.W.2d at

23). This Court affords the party prevailing in the trial court the strongest legitimate view

of the evidence and all reasonable and legitimate inferences that may be drawn from that

evidence. State v. Ross, 49 S.W.3d 833, 839 (Tenn. 2001); State v. Carter, 16 S.W.3d

762, 765 (Tenn. 2000) (quoting State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998)). We

review the trial court‘s application of law to facts de novo with no presumption of

- 15 -

correctness. McCormick, 494 S.W.3d at 678; State v. Freeland, 451 S.W.3d 791, 810

(Tenn. 2014), cert. denied, 135 S. Ct. 1428 (2015).

First Search Warrant

A valid search warrant must comply with provisions of the United States

Constitution, the Tennessee Constitution, and Tennessee statutory requirements. The

federal and state constitutional prohibitions against unreasonable searches and seizures

―safeguard the privacy and security of individuals against arbitrary invasions of

government officials.‖ Keith, 978 S.W.2d at 865 (quoting Camara v. Mun. Ct., 387 U.S.

523, 528 (1967)) (internal quotation marks omitted); State v. Yeargan, 958 S.W.2d 626,

629 (Tenn. 1997) (quoting Camara, 387 U.S. at 528). Searches and seizures conducted

under valid warrants are presumptively reasonable, whereas warrantless searches and

seizures are presumptively unreasonable. McCormick, 494 S.W.3d at 678–79; see also

Yeargan, 958 S.W.2d at 629.

We begin with the constitutional requirements. The Fourth Amendment to the

United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated,

and no Warrants shall issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be searched, and the

persons or things to be seized.

U.S. Const. amend. IV. To be valid under the federal constitution, a warrant must (1) be

issued by a neutral and detached magistrate, (2) particularly describe the place to be

searched and the persons or things to be seized, and (3) be based upon probable cause,

―supported by Oath or affirmation.‖ United States v. Clyburn, 24 F.3d 613, 617 (4th Cir.

1994) (quoting U.S. Const. amend. IV) (internal quotation marks omitted). The Fourth

Amendment has no affidavit requirement.

Article I, section 7 of the Tennessee Constitution provides:

That the people shall be secure in their persons, houses, papers and

possessions, from unreasonable searches and seizures; and that general

warrants, whereby an officer may be commanded to search suspected

places, without evidence of the fact committed, or to seize any person or

persons not named, whose offences are not particularly described and

supported by evidence, are dangerous to liberty and ought not to be granted.

- 16 -

Tenn. Const. art. I, § 7. The Tennessee Constitution, although ―identical in intent and

purpose with the Fourth Amendment,‖ State v. Smith, 484 S.W.3d 393, 400 (Tenn. 2016)

(quoting Sneed v. State, 423 S.W.2d 857, 860 (Tenn. 1968)), does not contain the Fourth

Amendment‘s oath or affirmation requirement and does not require an affidavit.

The first search warrant complied with the United States and Tennessee

Constitutions. The search warrant was issued by a neutral and detached magistrate.

Neutrality and detachment require ―severance and disengagement‖ from the activities of

law enforcement. Shadwick v. City of Tampa, 407 U.S. 345, 350 (1972). Under the

circumstances of this case, the issuing judge‘s failure to notice the unsigned affidavit

does not indicate he departed from his role as a ―neutral and detached‖ magistrate. See

United States v. Richardson, 943 F.2d 547, 550 (5th Cir. 1991) (holding that magistrate‘s

failure to administer oath during warrant application ―was inadvertent . . . [and] clearly

was not a departure from his neutral and detached role‖). The search warrant specifically

described the place to be searched and the persons or things to be seized and was based

on probable cause supported by testimony under oath. The facts relied on to establish

probable cause included the discovery of Chris‘s body wrapped in a sheet and/or

comforter; the discovery of Channon‘s abandoned vehicle, with identifying stickers

removed, in the area where Chris‘s body was found; that both victims went missing at the

same time; that a latent print was found on a bank envelope on the back seat of

Channon‘s vehicle matching Mr. Davidson‘s fingerprint; and that Mr. Davidson‘s house

is a short distance from where Channon‘s vehicle and Chris‘s body were found. The

Fourth Amendment‘s oath or affirmation requirement was satisfied when Investigator

Childress raised his right hand and swore to the truth of the facts in the unsigned

affidavit. Within the meaning of the Fourth Amendment, ―[o]ath or affirmation‖ includes

sworn oral and written testimony. Sparks v. United States, 90 F.2d 61, 64 (6th Cir. 1937);

see also Clyburn, 24 F.3d at 617; United States v. Shields, 978 F.2d 943, 946 (6th Cir.

1992). Under these circumstances, the first search of Mr. Davidson‘s house was valid

under the Fourth Amendment and Article I, section 7 of the Tennessee Constitution.

Although the search warrant passed constitutional muster, it failed to comply with

the affidavit requirements of Tennessee Code Annotated section 40-6-103, Tennessee

Code Annotated section 40-6-104, and Tennessee Rule of Criminal Procedure 41(c)(1).

Tennessee Code Annotated section 40-6-103 provides that a ―search warrant can

only be issued on probable cause, supported by affidavit, naming or describing the

person, and particularly describing the property, and the place to be searched.‖ (Emphasis

added).

- 17 -

Tennessee Code Annotated section 40-6-104 provides:

The magistrate, before issuing the warrant, shall examine on oath the

complainant and any witness the complainant may produce, and take their

affidavits in writing, and cause them to be subscribed by the persons

making the affidavits. The affidavits must set forth facts tending to establish

the grounds of the application, or probable cause for believing the grounds

exist.

(Emphasis added).

Tennessee Rule of Criminal Procedure 41(c)(1) provides that a ―warrant shall

issue only on an affidavit or affidavits that are sworn before the magistrate and establish

the grounds for issuing the warrant.‖ (Emphasis added).

In preparing the affidavit for the search warrant, Investigator Childress said he

―wanted to do things right‖ and ―go by the law.‖ He prepared an affidavit and search

warrant with the help of another officer, and he hurriedly printed the documents so he

could present them to a judge. Investigator Childress inadvertently failed to change the

printer selection from letter to legal size, which resulted in the bottom three inches,

including the signature line, being cut off of the affidavit. Investigator Childress and an

assistant district attorney appeared before Judge Stansberry in his chambers. After Judge

Stansberry reviewed the typewritten affidavit, Investigator Childress raised his right

hand, took the oath, and swore to the truth of the contents of the affidavit. Although

Investigator Childress signed the search warrant on the signature line labeled ―Officer To

Whom Warrant Is Delivered For Execution,‖ no one noticed the omission of Investigator

Childress‘s signature on the affidavit as the affiant. Judge Stansberry signed the warrant,

and Investigator Childress and other law enforcement officers commenced a search of

Mr. Davidson‘s house.

Tennessee statutory and procedural provisions require an affidavit before a

magistrate can issue a valid search warrant. The affidavit must contain the signature of

the affiant. See Keith, 978 S.W.2d at 869 (holding that a written and sworn affidavit is a

prerequisite to the issuance of a valid warrant); Harvey v. State, 60 S.W.2d 420, 420

(Tenn. 1933); Watt v. Carnes, 51 Tenn. (4 Heisk.) 532, 534 (1871) (―An affidavit is a

statement in writing, signed and made upon oath before an authorized magistrate.‖);

Freidlander, Stick & Co. v. Pollock & Co., 45 Tenn. (5 Cold.) 490, 495 (1868) (―An oath

may be oral or written. An affidavit is a written oath.‖); Grove v. Campbell, 17 Tenn. (9

Yer.) 7, 10 (1836) (―The word affidavit, ex vi termini, means an oath reduced to

writing.‖); Kenyon v. Handal, 122 S.W.3d 743, 752 n.6 (Tenn. Ct. App. 2003) (―An

- 18 -

unsigned document cannot qualify as an affidavit . . . .‖).3 Because Investigator Childress

inadvertently failed to sign as the affiant on the affidavit, the search warrant was not

issued on the basis of a signed affidavit as required by Tennessee Code Annotated

sections 40-6-103 and 40-6-104 and Tennessee Rule of Criminal Procedure 41(c)(1). All

other constitutional and statutory requirements were met.

Although this case does not involve a constitutional defect, the test for

constitutional violations is one of ―reasonableness,‖ and there are judicially crafted

exceptions to the general requirement that a warrant issue before a search by law

enforcement. State v. Meeks, 262 S.W.3d 710, 722 (Tenn. 2008) (citing Brigham City,

Utah v. Stuart, 547 U.S. 398, 403 (2006); State v. Scarborough, 201 S.W.3d 607, 616–17

(Tenn. 2006)). Among the commonly recognized exceptions to the requirement of a

warrant are: (1) a search incident to an arrest, (2) the plain view doctrine, (3) a consent to

the search, (4) a Terry stop and frisk, and (5) the existence of exigent circumstances. Id.

(citing State v. Berrios, 235 S.W.3d 99, 104 (Tenn. 2007); State v. Cox, 171 S.W.3d 174,

179 (Tenn. 2005)).

Given Investigator Childress‘s failure to sign the affidavit, the State contends that

the exigent circumstances exception applies to justify the search of Mr. Davidson‘s

house. This exception ―applies when the exigencies of the situation make the needs of

law enforcement so compelling that a warrantless search is objectively reasonable under

the Fourth Amendment.‖ Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013) (quoting

Kentucky v. King, 563 U.S. 452, 460 (2011)) (internal quotation marks omitted). The

State must show that the search is imperative, Meeks, 262 S.W.3d at 723, and there is no

time for law enforcement to secure a warrant. McNeely, 133 S. Ct. at 1559. Exigency is

determined on a fact-intensive, case-by-case basis. Id. at 1564. In making this

determination, we consider the totality of the circumstances to determine whether a law

enforcement officer was justified in acting without a warrant. Id.

Here, the State has failed to establish that the circumstances surrounding the

search were so compelling that law enforcement officers did not have time to obtain a

search warrant. Chris‘s body was discovered on Sunday afternoon, and Channon‘s

abandoned vehicle containing a bank envelope was found early Monday morning. The

crucial fingerprint evidence linking Mr. Davidson to Channon‘s vehicle was found on the

bank envelope early Tuesday morning. On Tuesday around noon, Investigator Childress

3

See also Sammons v. Collins, No. 01-A-01-9009CV00325, 1991 WL 1056, at *1 (Tenn. Ct.

App. Jan. 9, 1991) (―An affidavit is a written or printed declaration or statement of facts confirmed by

oath or affirmation of the party making it, taken before an officer having authority to administer such

oath.‖); Crocker v. Larson, No. OA-A-01-9002-CV00083, 1990 WL 130087, at *4 (Tenn. Ct. App. Sept.

11, 1990) (―An affidavit, in order to be considered, must be signed and sworn to. An unsigned ‗affidavit‘

is not evidence and cannot be considered.‖).

- 19 -

appeared before Judge Stansberry to obtain the search warrant. At 12:53 p.m., Judge

Stansberry issued the search warrant. Less than an hour later, law enforcement officers

searched Mr. Davidson‘s house. Viewing the totality of the circumstances, it does not

appear the search of Mr. Davidson‘s house was so imperative that law enforcement could

not take time to obtain a search warrant.

Although evidence seized from a warrantless search or a search stemming from an

invalid warrant is subject to suppression, the State contends we should adopt a good-faith

exception to the exclusionary rule based on the United States Supreme Court‘s holding in

United States v. Leon, 468 U.S. 897 (1984). There, the Court held that where the officer

has reasonably and in good faith conducted a search within the scope of a search warrant

later determined to be constitutionally defective, evidence obtained from that search

should not be excluded under the Fourth Amendment exclusionary rule. Leon, 468 U.S.

at 919–22. The Court reasoned that the exclusionary rule is a strong deterrent to police

misconduct and the violation of suspects‘ constitutional rights but that the ―unbending

application of the exclusionary sanction‖ may hamper the truth-finding function of a trial

and can lead to criminals escaping punishment because of police negligence or

misbehavior. Id. at 906–07 (quoting United States v. Payner, 447 U.S. 727, 734 (1980));

see also State v. Sanders, 452 S.W.3d 300, 310–11 (Tenn. 2014). Unlike Leon, which

involved a search warrant that was constitutionally defective, 468 U.S. at 905, the search

warrant here passed constitutional muster. Therefore, Leon is factually distinguishable.

Given the unusual facts in this case, we adopt a good-faith exception for the

admission of evidence when a law enforcement officer has reasonably and in good faith

conducted a search within the scope of a warrant the officer believes to be valid, but is

later determined to be invalid solely because of a good-faith failure to comply with the

affidavit requirement of Tennessee Code Annotated sections 40-6-103 and -104 and

Tennessee Rule of Criminal Procedure 41(c)(1). In doing so, we note that Rule 41(g), a

procedural rule promulgated by this Court, does not divest this Court of its authority to

decide whether a good-faith exception, or any other exception, should be adopted. State

v. Reynolds, No. E2013-02309-SC-R11-CD, 2016 WL 6525856, at *21 (Tenn. 2016).4

Further, the applicability and validity of the Exclusionary Rule Reform Act, Tennessee

Code Annotated section 40-6-108, effective July 1, 2011, are not at issue in this case.

4

In Reynolds, this Court held that the good-faith exception adopted in Davis v. United States, 564

U.S. 229 (2011), applied and prevented suppression of any evidence because the officer acted in

good-faith reliance on binding judicial precedent when he obtained a sample of Ms. Reynolds‘s blood

without a warrant. Reynolds, 2016 WL 6525856, at *21. The author of this opinion dissented in Reynolds

on the basis that a good-faith exception was not appropriate to excuse a constitutional violation but agrees

that Rule 41(g) cannot be read to divest this Court of its power to develop and adapt common law

principles and their application. See id. (citing Hodge v. Craig, 382 S.W.3d 325, 337 (Tenn. 2012)).

- 20 -

Investigator Childress intended to obtain a valid search warrant. He reasonably

believed that the warrant, based on probable cause and issued by a neutral and detached

magistrate, was valid. The search warrant was later determined to be invalid based on

noncompliance with statutory and procedural provisions because Investigator Childress

printed the affidavit on the wrong size paper, did not notice that the signature line was cut

off, and failed to sign the affidavit. Instead, he placed his signature on a line on the

warrant. All other constitutional and statutory requirements were met. Moreover, as soon

as Investigator Childress learned there was a problem with the first warrant, he

immediately stopped the search and, within hours, obtained a second search warrant

supported by a properly signed affidavit. When an officer has complied with

constitutional requirements to obtain a warrant, but in good faith failed to comply with

the state statutory and rule affidavit requirements, societal interests are not advanced

when the exclusionary rule applies to exclude evidence obtained from execution of the

warrant. We hold the trial court did not err in denying Mr. Davidson‘s motion to suppress

the evidence obtained from the search of his house.

Based on this ruling, we pretermit discussion of the issues regarding inevitable

discovery and the validity of the search warrant based on the outstanding attachment.

Second Search Warrant and the Search of Mr. Davidson’s Person

Our holding regarding the validity of the first search resolves any issue as to the

validity of the second search warrant and the warrants for the search of Mr. Davidson‘s

person. Because the first search of his house was valid, the trial court did not err in

denying Mr. Davidson‘s motions to suppress.

Mr. Davidson’s Statements to Law Enforcement

Mr. Davidson argues that the trial court erred by denying the motion to suppress

the recorded statement he made to law enforcement after his arrest. He submits that his

confession was coerced and involuntary because his will was overborne by law

enforcement‘s show of force during his arrest and the intimidating atmosphere of the

interrogation. Mr. Davidson also argues that incomplete Miranda warnings rendered his

waiver of rights invalid and his statement inadmissible. In response, the State argues that

Mr. Davidson‘s statement was voluntarily given without abuse, threats, or promises and

that the Miranda warnings were sufficient. After a pretrial hearing, the trial court denied

Mr. Davidson‘s motion to suppress the statement based on the totality of the

circumstances surrounding Mr. Davidson‘s arrest and interrogation. The Court of

Criminal Appeals affirmed. Davidson, 2015 WL 1087126, at *24, *61.

A trial court‘s findings of fact on a motion to suppress are upheld on appeal unless

the evidence preponderates otherwise. McCormick, 494 S.W.3d at 678 (citing Odom, 928

- 21 -

S.W.2d at 23). We defer to the trial court‘s factual findings on the credibility of the

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

evidence. Id. (quoting Odom, 928 S.W.2d at 23). This Court affords the party prevailing

in the trial court the strongest legitimate view of the evidence and all reasonable and

legitimate inferences that may be drawn from that evidence. Ross, 49 S.W.3d at 839;

Carter, 16 S.W.3d at 765 (quoting Keith, 978 S.W.2d at 864). However, we review the

trial court‘s application of law to facts de novo with no presumption of correctness.

McCormick, 494 S.W.3d at 678; Freeland, 451 S.W.3d at 810.

At the pretrial hearing, Knoxville Police Department Sergeant DeBow testified he

was a member of the Special Operations Squad, or SWAT team, that arrested Mr.

Davidson. Before Mr. Davidson‘s arrest, approximately sixteen SWAT members arrived

in an armored vehicle and surrounded the house. The SWAT members wore tactical

uniforms, green body dress uniforms, and body armor; some wore helmets; and most

wore tactical gloves and safety glasses. Some were armed with long weapons,

submachine guns or shotguns, and some had pistols or gas guns. Over thirty law

enforcement officers, including members of the Tennessee Bureau of Alcohol, Tobacco,

Firearms, and Explosives, the United States Marshals Service, the Knox County Sheriff‘s

Department, and other uniformed police officers, were present around the outer perimeter

of the house. As the armored vehicle approached the house, the vehicle‘s public address

system was used to order Mr. Davidson to come out of the house. Mr. Davidson placed

his hands on the window through the window shades and was ―somewhat complying.‖

After a ―reasonable amount of time . . . fifteen seconds or so,‖ Sergeant DeBow,

Lieutenant Mark Fortner, and ―a couple‖ of other officers approached the window.

Sergeant DeBow was armed with a submachine gun that was pointed toward the window

and leveled on Mr. Davidson. Sergeant DeBow ordered Mr. Davidson to drop what was

in his hands and to open the window. In response, Mr. Davidson made an apparent

attempt to open the window and said, ―I can‘t.‖ Sergeant DeBow told Mr. Davidson to

step back from the window, and then Sergeant DeBow broke the window with the barrel

of his weapon, raked it clean, and then cleared off as much of the glass as he could with

his gloved hands. Sergeant DeBow asked Mr. Davidson where the gun was, and as Mr.

Davidson lowered his hands, he pointed down toward either his waistline or the floor.

Sergeant DeBow was unable to describe exactly how Mr. Davidson was removed but

indicated that when Mr. Davidson put his hands on the window sill, a couple of officers

likely grabbed Mr. Davidson by the wrists and pulled him through the window onto the

ground on his stomach. At the same time, an emergency response team entered the house

through a side door. Sergeant DeBow did not see anyone beat or threaten Mr. Davidson.

Once Mr. Davidson was brought up off the ground, Sergeant DeBow and another officer

escorted Mr. Davidson to the police vehicle which transported him to the police

department. According to Sergeant DeBow, the goal when arresting someone is to safely

take the person into custody but agreed that psychological intimidation, including verbal

- 22 -

commands, officer presence, submachine guns, uniforms, and verbal commands, could be

used in an arrest.

Gregory McKnight, Knoxville Police Department crimes investigator, testified

that when he arrived at the house, Mr. Davidson was already in custody and seated in the

back of the police vehicle for no more than five minutes. Investigator McKnight and

another officer transported Mr. Davidson to the police department. Investigator

McKnight advised Mr. Davidson of his Miranda rights ―off the top of [his] head‖ and

engaged in general conversation with Mr. Davidson but did not interrogate him.

Investigator McKnight described Mr. Davidson‘s demeanor as ―kind of relaxed, not for

sure what was going on.‖ Upon arriving at the police department, the officers escorted

Mr. Davidson to an interview room on the third floor to wait for Investigator Flores.

Investigator McKnight observed a portion of Mr. Davidson‘s interview with police and

never saw anyone hit, yell at, ―be mean to,‖ or abuse Mr. Davidson.

Investigator Flores testified that he responded to a call to the house where Mr.

Davidson was arrested. Investigator Flores observed that after the Special Operations

Squad pulled up to the side of the house in an armored vehicle, Mr. Davidson appeared in

the window. A member of the Special Operations Squad knocked out the window, and

team members pulled Mr. Davidson out of the window and onto the ground on his

stomach. While officers were handcuffing Mr. Davidson, Investigator Flores introduced

himself to Mr. Davidson, reassured him that everything would be okay, and told him to

relax and stop resisting. Investigator Flores did not hear anyone threaten, kick, or hit Mr.

Davidson and observed no injuries to him.

Before Investigator Flores began questioning Mr. Davidson at the police

department, Investigator Flores offered him some food and water. Before the interview,

Investigator Flores advised Mr. Davidson of his Miranda rights by reading from a

statement and waiver of rights form:

STATEMENT OF YOUR RIGHTS

BEFORE WE ASK YOU ANY QUESTIONS, YOU MUST

UNDERSTAND YOUR RIGHTS:

1. YOU HAVE THE RIGHT TO REMAIN SILENT.

2. ANYTHING YOU SAY CAN BE USED AGAINST YOU IN

COURT.

- 23 -

3. YOU HAVE THE RIGHT TO CONSULT WITH A LAWYER

AND TO HAVE A LAWYER PRESENT WITH YOU WHILE

YOU ARE BEING QUESTIONED.

4. IF YOU WANT A LAWYER BUT ARE UNABLE TO PAY FOR

ONE, A LAWYER WILL BE APPOINTED TO REPRESENT

YOU FREE OF ANY COST TO YOU.

5. IF YOU DECIDE TO ANSWER QUESTIONS NOW WITHOUT A

LAWYER PRESENT, YOU WILL STILL HAVE THE RIGHT TO

STOP ANSWERING AT ANY TIME. YOU ALSO HAVE THE

RIGHT TO STOP ANSWERING AT ANY TIME UNTIL YOU

HAVE A LAWYER.

WAIVER OF RIGHTS

I UNDERSTAND EACH OF MY RIGHTS AND I AM WILLING TO

MAKE A STATEMENT AND ANSWER QUESTIONS WITHOUT A

LAWYER PRESENT. NO PROMISES OR THREATS HAVE BEEN

MADE TO ME.

Mr. Davidson told Investigator Flores, ―I know my rights you ain‘t gotta read my rights I

know my rights.‖ Mr. Davidson initialed each of the stated rights and signed the Waiver

of Rights form. Investigator Flores signed the form as the Advising Officer/Investigator,

and Agent Webb signed the form as the witness. Thereafter, Mr. Davidson provided a

recorded statement and responded to questioning by Investigator Flores.

The due process clauses of the Fifth Amendment and Fourteenth Amendment of

the United States Constitution require a confession to be voluntary before its admission

into evidence. The due process voluntariness test is distinct from Miranda. Dickerson v.

United States, 530 U.S. 428, 434–35 (2000); Mincey v. Arizona, 437 U.S. 385, 397–98

(1978). The issue under Miranda is whether a suspect received certain warnings and

knowingly and voluntarily waived certain rights, whereas the essential inquiry under the

voluntariness test is whether a suspect‘s will was overborne so as to render the confession

a product of coercion. Freeland, 451 S.W.3d at 815 (quoting State v. Climer, 400 S.W.3d

537, 568 (Tenn. 2013); State v. Smith, 933 S.W.2d 450, 455 (Tenn. 1996)). The

voluntariness test includes an assessment of the psychological impact on the accused and

an evaluation of the legal significance of the accused‘s reaction. Schneckloth v.

Bustamonte, 412 U.S. 218, 226 (1973) (citing Culombe v. Connecticut, 367 U.S. 568, 603

(1961)). Whether a confession was made voluntarily must be determined by a totality of

the circumstances, including characteristics of the accused and the details of the

interrogation. Dickerson, 530 U.S. at 434 (quoting Schneckloth, 412 U.S. at 226);

- 24 -

Freeland, 451 S.W.3d at 815. Relevant factors include the age, education, and

intelligence of the accused; the extent of previous experience with law enforcement;

whether questioning was repetitive and prolonged; the length of the detention prior to

giving a statement; the lack of any advice to the accused of his constitutional rights;

whether the accused was injured, intoxicated, drugged, or in ill health; deprivation of

food, sleep, or medical attention; and physical abuse or threats of abuse. Climer, 400

S.W.3d at 568 (quoting State v. Huddleston, 924 S.W.2d 666, 671 (Tenn. 1996)); see also

Schneckloth, 530 U.S. at 226. Coerced confessions are inherently unreliable. Climer, 400

S.W.3d at 567–68 (citing Dickerson, 530 U.S. at 433; State v. Northern, 262 S.W.3d 741,

748 (Tenn. 2008)).

Mr. Davidson contends that his statement was coerced through law enforcement‘s

show of force during the arrest and threats of prosecution during the interview. Although

a number of uniformed and armed law enforcement officers were present during Mr.

Davidson‘s arrest, the show of force was not disproportionate to the seriousness of the

crimes Mr. Davidson was suspected of committing. Sergeant DeBow and Investigator

Flores testified consistently that Mr. Davidson was armed with a gun at the time of his

arrest and did not fully comply with police commands. The removal of Mr. Davidson

from the house by pulling him from the window was necessary given his failure to leave

the house or open the window and the SWAT team‘s inability to enter through the front

security door. Sergeant DeBow, Investigator McKnight, and Investigator Flores testified

that Mr. Davidson was not beaten, abused, or injured. Mr. Davidson was not detained for

an unreasonable time after his arrest and transport to the police department. Only

Investigator Flores and Agent Webb were present during the interview. Mr. Davidson

expressed to Investigator Flores that he did not want to be left alone for someone else to

take his DNA sample, but this statement fails to support Mr. Davidson‘s claims of fear

resulting from a coercive or intimidating atmosphere.

At the time of the statement, Mr. Davidson was twenty-five years old. He had

attended high school and had above-average intelligence. Mr. Davidson had previously

been convicted of aggravated robbery and carjacking and incarcerated. The duration of

his detention in the interview room at the police department was reasonable. Prior to

questioning, Investigator Flores provided food and water to Mr. Davidson, which Mr.

Davidson consumed during the interview. Investigator Flores advised Mr. Davidson of

his Miranda rights by reading from the Statement of Rights and the waiver form, and Mr.

Davidson signed the Waiver of Rights. The interview itself took less than three hours and

was not unreasonably lengthy under the circumstances. Mr. Davidson was not injured,

intoxicated, impaired, in ill health, abused, or threatened with abuse.

- 25 -

At one point in the questioning, Investigator Flores made the following statements:

[Y]ou tell me the truth and we work with you. . . . I can go and I can say,

―Well Mr. Attorney General . . . he‘s a liar and this is why and he

continued to lie to me all day long and he‘s gonna deny it and we . . . we‘ll

prove our case and we‘ll let 12 people judge this man who we can prove‘s

a liar.‖ Or I can say, ―Mr. District Attorney, Mr. Judge, this man . . . this is

what he said and it [corroborates] all our evidence. He‘s honest, he fessed

up to what part he had [in] these two deaths.‖ And their [sic] gonna go,

well, liar or somebody that was a man that fessed up.

Mr. Davidson argues that these statements constituted a threat of prosecution,

rendering the confession involuntary and inadmissible. Mr. Davidson relies on United

States v. Harrison, 34 F.3d 886 (9th Cir. 1994). In Harrison, an agent advised the

accused of evidence against her and that she might be facing up to twenty years in prison.

Id. at 890. The agent then asked the accused whether she thought it would be better if the

agent told the judge that the accused had cooperated or not cooperated. Id. The accused

gave a statement after responding that she understood it would be better if she talked to

the agents and they told the judge she had cooperated. Id. The trial court found the

defendant‘s confession voluntary and admitted the statement into evidence. Id. at 889–90.

The Court of Appeals for the Ninth Circuit reversed, holding that law enforcement

officers may not suggest that an exercise of the right to remain silent may result in

harsher treatment by a court or prosecutor. Id. at 891–92. The Ninth Circuit found that the

agent did not explicitly threaten a longer sentence if the accused did not give a statement,

but ―[t]he improper conduct was the suggestion that they might inform the court that she

had not cooperated.‖ Id. at 891. The Ninth Circuit suggested that the agents‘ statements

amounted to ―subtle psychological coercion [that] can effectively overbear a suspect‘s

free will.‖ Id. at 892. Noting that the defendant broke her silence only after the statement

was made to her, the Ninth Circuit reasoned that the defendant ―could only conclude that

she might suffer for her silence‖ despite the agents‘ ―thinly veiled‖ suggestion. Id. at 891.

Mr. Davidson‘s reliance on Harrison is misplaced. In Harrison, the issue before

the court was whether the defendant‘s will was so overborne by the agent‘s comment

about cooperation that the defendant was compelled to provide a statement in violation of

her Fifth Amendment right against self-incrimination. Mr. Davidson argues that his will

was so overborne by Investigator Flores‘s comments that his waiver and statement were

not freely and voluntarily given in violation of his due process rights. Unlike the

defendant in Harrison, who remained silent until the agent made that comment, Mr.

Davidson was engaged in the interview and responding to Investigator Flores before the

statements were made. The record does not indicate that Mr. Davidson remained silent,

resisted being interviewed, requested an attorney, or invoked his right against

self-incrimination before or during the interview. Investigator Flores read Mr. Davidson

- 26 -

the Statement of Rights and the waiver form, and Mr. Davidson initialed each of the five

stated rights. Mr. Davidson signed a Waiver of Rights, which states, ―No promises or

threats have been made to me.‖ There is no showing that he construed Investigator

Flores‘s statements as a promise of leniency that compelled him to confess. See Smith,

933 S.W.2d at 455 (holding that promises of leniency do not per se render subsequent

confessions involuntary, but instead the Fifth Amendment prohibits confessions

compelled by promises of leniency).

The trial court considered the Huddleston factors and concluded that Mr.

Davidson‘s recorded statement was not the result of an inappropriate atmosphere or

improper coercion. The evidence does not preponderate against the trial court‘s findings.

Based on these findings of fact, the trial court did not err in denying Mr. Davidson‘s

motion to suppress.

Mr. Davidson also argues that he did not voluntarily and knowingly waive his

right to remain silent before giving his statement because he was given incomplete

Miranda warnings by Investigator McKnight in the police car and on the written waiver

form provided by Investigator Flores. Specifically, Mr. Davidson argues that the

warnings failed to advise him that he was entitled to consult with an attorney before and

during the interview.

The Fifth Amendment to the United States Constitution provides: ―No person . . .

shall be compelled in any criminal case to be a witness against himself.‖ U.S. Const.

amend. V.

Article I, section 9 of the Tennessee Constitution provides that in criminal

prosecutions, ―the accused . . . shall not be compelled to give evidence against himself.‖

This privilege against self-incrimination affords criminal defendants the right to remain

silent. State v. Dotson, 450 S.W.3d 1, 52 (Tenn. 2014), cert. denied, 135 S. Ct. 1535

(2015); Freeland, 451 S.W.3d at 813; State v. Jackson, 444 S.W.3d 554, 585 (Tenn.

2014).

In Miranda v. Arizona, 384 U.S. 436 (1966), the United States Supreme Court

established procedural safeguards to protect the privilege against self-incrimination. Id. at

444. Miranda requires law enforcement to warn a person prior to custodial interrogation

that he has the right to remain silent, that anything he says can be used

against him in a court of law, that he has the right to the presence of an

attorney, and that if he cannot afford an attorney one will be appointed for

him prior to any questioning if he so desires.

- 27 -

Id. at 479. After being given these warnings and an opportunity to exercise these rights

throughout the interrogation, the person being questioned may knowingly and

intelligently waive these rights and agree to answer questions or make a statement. Id.

The interrogation must cease if the right to remain silent is invoked. Freeland, 451

S.W.3d at 814 (citing Miranda, 384 U.S at 473–74). However, the accused must

unambiguously invoke his constitutional right to remain silent. Dotson, 450 S.W.3d at 53

(citing Berghuis v. Thompkins, 560 U.S. 370, 381–82 (2010)).

The State bears the burden of proving by a preponderance of the evidence that the

defendant waived his or her Miranda rights. Freeland, 451 S.W.3d at 814 (citing Climer,

400 S.W.3d at 564; Missouri v. Seibert, 542 U.S. 600, 608 n.1 (2004)). To satisfy this

burden, the prosecution must demonstrate that

the waiver was voluntary in that ‗it was the product of a free and deliberate

choice rather than intimidation, coercion, or deception,‘ and was knowing

in that it was made ‗with a full awareness of both the nature of the right

being abandoned and the consequences of the decision to abandon it.‘

Id. (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). Unless the prosecution can

demonstrate that, based on the totality of circumstances, the defendant‘s waiver was

voluntary and knowing, statements given during the interrogation are not admissible in

the prosecution‘s case-in-chief. Id. 451 S.W.3d at 814 (quoting Miranda, 384 U.S. at

479).

The Miranda warnings given to Mr. Davidson sufficiently advised him of his

rights to consult with counsel and to remain silent. The Statement of Rights advised him

that he had the right to consult with a lawyer and to have one present during questioning.

The Statement of Rights also advised him that, even if he chose to answer questions

without a lawyer present, he could stop answering at any time. Mr. Davidson indicated

verbally that he understood his rights, and he voluntarily signed the written waiver,

acknowledging, ―I understand each of my rights, and I am willing to make a statement

and answer questions without a lawyer present.‖ The absence of the exact language,

―before and during,‖ does not render the warnings insufficient. Miranda does not

mandate a ―talismanic incantation‖ or precise formulation of the warnings. California v.

Prysock, 453 U.S. 355, 359 (1981). The question is only whether the warnings reasonably

conveyed a suspect‘s rights as required by Miranda. Duckworth v. Eagan, 492 U.S. 195,

203 (1989) (quoting Prysock, 453 U.S. at 361). Based on the totality of the

circumstances, we conclude that Mr. Davidson was properly advised of his right to

counsel and to remain silent, he understood his rights, and he knowingly and voluntarily

relinquished those rights.

- 28 -

We hold that the trial court did not err in denying Mr. Davidson‘s motion to

suppress his statement to law enforcement.

Spectator Buttons

Mr. Davidson asserts that the trial court abused its discretion by denying his

motion to prohibit spectators from wearing buttons displaying photographs of the victims

taken before their deaths. The trial court allowed buttons displaying images of the victims

to be worn at trial but imposed restrictions on their use: the buttons could only be worn

by the victims‘ immediate family members, defined as parents, siblings, and

grandparents; the buttons had to be worn on or close to the lapel; the buttons could not be

worn while the family member was testifying; the buttons could show only a photograph

of the victim as a young adult; and the same button had to be worn throughout the trial.

The trial court reasoned that the buttons would express nothing more than normal grief

occasioned by losing a family member and would not brand Mr. Davidson with the mark

of guilt. The trial court explicitly found that the buttons would not create an atmosphere

of coercion or intimidation at trial. The trial court enforced the restrictions and during the

trial, reminded spectators that only immediate family members could wear the buttons.

The Court of Criminal Appeals affirmed the trial court on this issue, noting that

the trial court utilized a measured approach when making its decision and carefully

crafted a rule designed to limit the negative impact of the buttons. Davidson, 2015 WL

1087126, at *35.

Mr. Davidson argues that a per se rule banning the display of buttons should be

adopted. He contends the buttons constituted impermissible victim impact evidence that

showed the emotional effect of the murders on the families, thereby creating an

unacceptable risk that the jurors would be unduly influenced by their own emotional

responses. Mr. Davidson submits that by allowing spectators to wear buttons, the trial

court created an inherently prejudicial courtroom condition that deprived him of his right

to a fair trial. Mr. Davidson also argues that the trial court failed to require spectators to

follow the restrictions placed on the display of the buttons. The State argues that Mr.

Davidson can show neither inherent prejudice nor actual prejudice and therefore is

entitled to no relief.

The right to a trial by an impartial jury is guaranteed by the Fifth, Sixth, and

Fourteenth Amendments to the United States Constitution and Article I, section 9 of the

Tennessee Constitution. State v. Carruthers, 35 S.W.3d 516, 559 (Tenn. 2000). These

constitutional provisions entitle a criminal defendant to a fair trial, not a perfect one.

Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986); State v. Hutchison, 482 S.W.3d 893,

921 (Tenn. 2016). The right to an impartial jury is a fundamental aspect of a fair trial.

State v. Odom, 336 S.W.3d 541, 556 (Tenn. 2011). An impartial jury is ―one which is of

- 29 -

impartial frame of mind at the beginning of trial, is influenced only by legal and

competent evidence produced during trial, and bases its verdict upon evidence connecting

defendant with the commission of the crime charged.‖ Durham v. State, 188 S.W.2d 555,

558 (Tenn. 1945). This Court‘s inquiry is whether the jury that tried the case was fair and

impartial. State v. Leath, 461 S.W.3d 73, 110–11 (Tenn. Crim. App. 2013) (quoting State

v. Taylor, No. W2011-00671-CCA-R3-CD, 2012 WL 2308088, at *6 (Tenn. Crim. App.

June 18, 2012)). A defendant is entitled to have his ―guilt or innocence determined solely

on the basis of the evidence introduced at trial, and not on grounds of official suspicion,

indictment, continued custody, or other circumstances not adduced as proof at trial.‖

Taylor v. Kentucky, 436 U.S. 478, 485 (1978).

We review the trial court‘s decision under an abuse of discretion standard. A trial

court abuses its discretion when it applies an incorrect legal standard, reaches a

conclusion that is not logical, bases its decision on a clearly erroneous assessment of the

evidence, or uses reasoning that causes an injustice to the complaining party. State v.

Davis, 466 S.W.3d 49, 61 (Tenn. 2015). The trial court has broad discretion in controlling

the course and conduct of trial. State v. King, 40 S.W.3d 442, 449 (Tenn. 2001); State v.

Cazes, 875 S.W.2d 253, 260 (Tenn. 1994). One of the court‘s basic responsibilities is to

ensure a fair trial. State v. Holton, 126 S.W.3d 845, 870 app. (Tenn. 2004) (quoting State

v. Franklin, 714 S.W.2d 252, 258 (Tenn. 1986)).

Generally, the trial court, which has presided over the proceedings, is in the

best position to make determinations regarding how to achieve this primary

purpose, and absent some abuse of the trial court‘s discretion in marshalling

the trial, an appellate court should not redetermine in retrospect and on a

cold record how the case could have been better tried.

Franklin, 714 S.W.2d at 258.

Whether spectators can wear buttons displaying images of the victims is an issue

of first impression in Tennessee. The United States Supreme Court addressed

state-sponsored courtroom practices in Estelle v. Williams, 425 U.S. 501, 503–06 (1976),

and Holbrook v. Flynn, 475 U.S. 560, 568 (1986). In Williams, the State required the

defendant to wear an orange prison jumpsuit during his trial. The Supreme Court found

this government action was highly prejudicial and deprived the defendant of due process.

Williams, 425 U.S. at 504. The Court reasoned that the defendant‘s clothing was likely to

be a continuing influence throughout the trial, and there was an unacceptable risk it

would affect a juror‘s judgment. Id. at 504–05. Finding that no essential state policy was

advanced by compelling a defendant to dress in prison clothing at trial, the Supreme

Court held that the practice constituted a violation of due process. Id. at 512. In Flynn, the

issue was whether four uniformed, armed state troopers seated in the front row of the

gallery directly behind the defendant was so inherently prejudicial that he was deprived

- 30 -

of his constitutional right to a fair trial. Flynn, 475 U.S. at 562. The Court determined that

conspicuous presence of security personnel in the courtroom was not an inherently

prejudicial practice, such as shackling and prison clothing. Id. at 568–69. The Court

noted that, unlike a policy requiring defendants to wear prison garb, the deployment of

troopers to maintain security during trial served a legitimate state interest. Id. at 571–72.

Both of these cases involved state-sponsored courtroom practices, rather than the

spectator or private-actor conduct at issue here. In Cary v. Musladin, 549 U.S. 70 (2006),

the United States Supreme Court reviewed a state trial court decision that allowed the

victim‘s family to wear buttons displaying the victim‘s image. The trial court found no

possible prejudice to the defendant and denied the defendant‘s motion to forbid the

buttons. The Court of Appeals for the Ninth Circuit reversed and remanded, concluding

that the state court applied a test for prejudice different from the one stated in Williams

and Flynn, and therefore, the trial court‘s decision was contrary to clearly established

applicable federal law. Id. at 73. In considering the case, the United States Supreme Court

noted that the issue of spectator button display was an open question and one that the

Court had not previously addressed. Id. at 76.

Due to a lack of guidance from the United States Supreme Court, lower courts

resolved the issue of spectator-conduct claims in divergent ways. Some courts applied the

Williams and Flynn standard to spectator conduct. For example, in Norris v. Risley, 918

F.2d 828, 829–30 (9th Cir. 1990), approximately fifteen female members of a Rape Task

Force and the National Organization for Women wore ―Women Against Rape‖ buttons

during the defendant‘s trial for kidnapping and rape. The buttons were two and one-half

inches in diameter with the word ―Rape‖ underlined with a broad red stroke. Id. at 830.

The trial court denied the defendant‘s motion to have the women excluded from the

courtroom or to prevent them from wearing the buttons. Id. at 829. The trial court ruled

that the public was entitled to attend court proceedings and that the buttons constituted no

imminent threat. Id. The defendant was convicted of kidnapping and rape, his convictions

were affirmed on appeal, and his application for habeas corpus relief was denied. Id. The

United States Court of Appeals for the Ninth Circuit held that the defendant did not

receive a fair trial because the risk that the buttons had an impact on the jurors was

unacceptably high. Id. at 834. Relying on the holdings of Williams and Flynn, the Ninth

Circuit concluded that ―these large and boldly highlighted buttons tainted Norris‘s right

to a fair trial both by eroding the presumption of innocence and by allowing extraneous,

prejudicial considerations to permeate the proceedings without subjecting them to the

safeguards of confrontation and cross-examination.‖ Id.

Other courts distinguished Flynn on its facts. For example, in Woods v. Dugger,

711 F. Supp. 586, 594 (M.D. Fla. 1989), the court found that the presence of correctional

officers and co-workers of the victim as spectators was not inherently prejudicial to

defendant‘s right to a fair trial or otherwise intimidated or influenced the jury.

- 31 -

Still other courts have ruled on the button issue without discussing Williams and

Flynn. See, e.g., Buckner v. State, 714 So. 2d 384, 389 (Fla. 1988) (holding that

photograph of the victim displayed by family members and a collage of photographs of

the victim by another spectator were non-prejudicial where the jury had only brief

exposure to the photographs and stated that the display of photographs would not

influence their decisions); State v. Speed, 961 P.2d 13, 30 (Kan. 1998) (finding no

evidence that jurors were affected by buttons or t-shirts but noting in dicta that the

wearing of buttons and t-shirts is ―not a good idea because of the possibility of

prejudice‖); State v. Braxton, 477 S.E.2d 172, 177 (N.C. 1996) (holding that the

incomplete record did not support claim that spectators were trying to influence the jury

by wearing buttons or that they were prejudicial to defendant‘s right to a fair trial); Pachl

v. Zenon, 929 P.2d 1088, 1093 (Or. Ct. App. 1996) (en banc) (holding that the failure of

the defendant‘s trial counsel to object to or move for a mistrial based on spectators

wearing ―Crime Victims United‖ buttons was a legal strategy upon which reasonable

minds could differ and did not entitle defendant to post-conviction relief).

In Musladin, after noting the lack of guidance and resulting divergent opinions, the

United States Supreme Court vacated the decision of the Court of Appeals, concluding

that the state court did not unreasonably apply clearly established federal law. Musladin,

549 U.S. at 77. The Supreme Court, however, did not establish a rule for trial courts to

follow in deciding issues regarding the display of buttons.

Since Musladin, there is no clear consensus on how trial courts should handle

spectator displays of buttons and other victim memorials in the courtroom. See, e.g.,

People v. Zielesch, 101 Cal. Rptr. 3d 628, 638 (Cal. Ct. App. 2009), as modified (Dec. 3,

2009) (following Flynn and Williams and finding that courtroom spectators wearing

buttons depicting image of fallen officer presented no probability of deleterious effects on

the defendant‘s right to a fair trial); Shootes v. State, 20 So. 3d 434, 438 (Fla. Dist. Ct.

App. 2009) (relying on Flynn and Musladin and finding that the presence of spectators

―wearing uniforms, insignia, buttons, or other indicia of support for the accused, the

prosecution, or the victim of the crime does not automatically constitute denial of the

accused‘s right to a fair trial‖); People v. Nelson, 53 N.E.3d 691, 698 (N.Y. 2016)

(declining to apply a per se rule of reversal to spectator conduct, declining to apply the

Williams-Flynn framework, and concluding that spectator displays depicting a victim

should be prohibited in the courtroom during trial, but applying a harmless error

analysis).

Mr. Davidson argues that we should adopt a per se rule banning all spectator

buttons in the courtroom, as images of the deceased create a courtroom condition that

conveys to the jury the emotional impact of the murders on the families and constitute

impermissible impact evidence during the guilt-innocence phase of trial. Victim impact

evidence is evidence that shows the ―financial, emotional, psychological, or physical

- 32 -

effects of the victim‘s death on the members of the victim‘s immediate family‖ and may

be considered by the jury in determining an appropriate punishment. State v. Nesbit, 978

S.W.2d 872, 892 (Tenn. 1998). In Nesbit, the evidence in question concerned the

testimony of the victim‘s mother regarding the impact of her daughter‘s death on the

family, particularly the children. Id. After concluding that victim impact evidence is

admissible at the sentencing phase of a capital trial under due process and evidentiary

constraints, this Court held that the probative value of the proof was not substantially

outweighed by the danger of unfair prejudice. Id. at 893. Nesbit, however, offers no

guidance on whether buttons worn by the immediate family constitute impermissible

victim impact evidence during the guilt-innocence phase of trial.

After carefully reviewing applicable authorities, we conclude that a per se rule

banning buttons is not appropriate. Instead, we extend the Williams-Flynn test to

spectator conduct. Under this framework, trial courts should consider the totality of the

circumstances and decide the issue on a case-by-case basis. Factors to be considered

include the size and appearance of the buttons; by whom, when, and where they are

worn; and whether the buttons display only a photograph of the deceased or contain a

message suggesting or advocating guilt or innocence. A trial court should not allow

buttons to be worn if they are so inherently prejudicial as to pose an unacceptable threat

to the defendant‘s right to a fair trial or when the defendant establishes actual prejudice.

In reaching this decision, we are guided by the decisions of courts from other

jurisdictions allowing buttons and t-shirts with victim photographs and other memorial

displays to be worn at trial in certain circumstances. See, e.g., United States v. Farmer,

583 F.3d 131, 149–50 (2d Cir. 2009) (holding that t-shirts displaying victim‘s photograph

were not so inherently prejudicial as to pose an unacceptable threat to the defendant‘s

right to a fair trial); Overstreet v. State, 877 N.E.2d 144, 159 (Ind. 2008) (finding that

defendant failed to show deficient performance by counsel for failing to object or move

the trial court to disallow spectators from wearing buttons); State v. Iromuanya, 806

N.W.2d 404, 432 (Neb. 2011) (holding that there was no reasonable probability that the

wearing of memorial buttons by spectators displaying an in-life photograph of the victim

created an unacceptable threat to the defendant‘s right to a fair trial); State v. Paige, 654

S.E.2d 300, 303–04 (S.C. Ct. App. 2007) (finding no actual or inherent prejudice resulted

from the trial court‘s refusal to order spectators to remove buttons from their clothing);

State v. Lord, 165 P.3d 1251, 1258–59 (Wash. 2007) (en banc) (finding that buttons

carrying in-life photograph of the victim were a silent display of affiliation, which did not

explicitly advocate guilt or innocence, were not inherently prejudicial); In re Woods, 114

P.3d 607, 616–17 (Wash. 2005) (en banc) (holding that black and orange ribbons worn

by victims‘ families were not inherently prejudicial so as to taint the defendant‘s right to

a fair trial).

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Here, the trial court properly recognized that a fair trial requires the courtroom

atmosphere to be free of coercion or intimidation. After consideration of Mr. Davidson‘s

objections, the trial court established and enforced restrictions on the appearance and

display of the buttons that minimized any prejudicial effect. The buttons were of

reasonably small size, worn by only immediate family members, and contained an image

of a deceased victim. They were not worn while the family member was testifying. The

buttons did not convey a specific message suggesting or advocating guilt or innocence.

The record does not indicate how many family members wore the buttons, the number of

days they were worn, or whether any juror saw the buttons or was affected by the buttons.

Although the trial court noted at one point during the trial that it observed non-family

members wearing the buttons and cautioned against this, there is no indication that the

trial court‘s restrictions on the display of the buttons were not heeded.

We conclude that Mr. Davidson failed to show that the buttons worn by the

victims‘ immediate family members were so inherently prejudicial as to pose an

unacceptable threat to his right to a fair trial or that there was any actual prejudice.

Admissibility of Post-Mortem Photographs

Mr. Davidson argues that the trial court abused its discretion by admitting into

evidence photographs of the victims taken after their deaths. He submits these

photographs, described as ―gruesome, graphic, disturbing, and horrifying,‖ had minimal

probative value. Mr. Davidson contends that the victims‘ injuries and causes of death

were not disputed and therefore the probative value of the photographs was outweighed

by their prejudicial effect and inflamed the jury against Mr. Davidson. The State responds

that the trial court did not abuse its discretion because the photographs were relevant to

show premeditation and the brutality and force of the injuries to the victims. The Court of

Criminal Appeals found no abuse of discretion, holding that the photographs accurately

illustrated the nature and circumstances of the crimes and that the probative value of the

photographs was not substantially outweighed by the danger of unfair prejudice.

Davidson, 2015 WL 1087126, at *26.

Mr. Davidson filed a pretrial motion to exclude the post-mortem photographs of

the victims, arguing that under Tennessee Rule of Evidence 401, the photographs were

not relevant and that under Tennessee Rule of Evidence 403, the photographs would be

substantially more unfairly prejudicial than probative and would inflame, confuse, and

distract the jury. The trial court allowed the State to introduce the photographs after

conducting two pretrial hearings, hearing testimony from the medical examiner that the

photographs were necessary to illustrate her testimony, reviewing approximately seventy

photographs, and excluding many photographs as redundant or lacking probative value.

The twenty-two color photographs that Mr. Davidson argues should not have been

admitted into evidence were introduced during the testimony of the medical examiner.

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Twelve photographs are of Chris‘s body and show the significant charring, how his hands

were tied behind his back and his feet bound together, the fabric wrapped around his

head, the bandana that covered his eyes, the sock in his mouth, the gunshot wounds, and

the blunt force trauma to his anus. Ten photographs show the condition of Channon‘s

body after being removed from the garbage can in Mr. Davidson‘s house. The

photographs show how her partially unclad body was bound, how she was positioned in

the garbage can, the injuries to her face, vagina, and anus from the rapes and the blunt

force trauma, and the evidence of asphyxiation and suffocation.

A trial court has broad discretion regarding the admissibility of photographs. State

v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). A trial court abuses its discretion when it

applies an incorrect legal standard, reaches a conclusion that is not logical, bases its

decision on a clearly erroneous assessment of the evidence, or uses reasoning that causes

an injustice to the complaining party. Davis, 466 S.W.3d at 61.

Before a photograph is admissible, it must be verified and authenticated by a

knowledgeable witness. Banks, 564 S.W.2d at 949. After authentication, the photographs

must be shown to be relevant to the issues at trial. See State v. Vann, 976 S.W.2d 93,

102–03 (Tenn. 1998) (citing State v. Stephenson, 878 S.W.2d 530, 542 (Tenn. 1994);

Banks, 564 S.W.2d at 951). Relevant evidence is ―evidence having any tendency to make

the existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.‖ Tenn. R. Evid. 401. In

other words, ―[t]o be relevant, evidence must tend to prove a material issue.‖ Tenn. R.

Evid. 401 advisory commission comment; see also State v. Faulkner, 154 S.W.3d 48, 67

(Tenn. 2005) (holding that ―a photograph must be found relevant to an issue that the jury

must decide before it may be admitted into evidence‖). Factors to be considered in

determining the relevance of photographic evidence include the photograph‘s accuracy

and clarity, the need for the photograph to be used in addition to testimonial evidence to

relate the facts to the jury, and the need to admit the photograph to establish the elements

of the crime or to rebut the defendant‘s contentions. Banks, 564 S.W.2d at 951.

Generally, relevant evidence is admissible. However, relevant evidence may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice. Tenn. R. Evid. 403; see Vann, 976 S.W.2d at 102–03 (citing Stephenson, 878

S.W.2d at 542; Banks, 564 S.W.2d at 951). Exclusion of relevant evidence is an

extraordinary remedy that should be used sparingly, and the party seeking to exclude the

evidence bears a heavy burden of persuasion. State v. James, 81 S.W.3d 751, 757–58

(Tenn. 2002) (citing White v. Vanderbilt Univ., 21 S.W.3d 215, 227 (Tenn. Ct. App.

1999)).

After determining that photographic evidence is relevant, the trial court must then

weigh its probative value against any undue prejudice. Banks, 564 S.W.2d at 951. A

- 35 -

relevant photograph ―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 undue delay, waste of time, or needless presentation of cumulative

evidence.‖ Id. (quoting Fed. R. Evid. 403). ―[T]he issue is not whether the evidence is

prejudicial, but whether it is unfairly prejudicial.‖ Vann, 976 S.W.2d at 103 (alteration in

original) (citing State v. DuBose, 953 S.W.2d 649, 655 (Tenn. 1997)). ―‗[U]nfair

prejudice‘ is ‗[a]n undue tendency to suggest decision on an improper basis, commonly,

though not necessarily, an emotional one.‘‖ Id. at 103 (quoting DuBose, 953 S.W.2d at

654). Photographs must never be used ―solely to inflame the jury and prejudice them

against the defendant.‖ Banks, 564 S.W.2d at 951 (citing Milam v. Commonwealth, 275

S.W.2d 921, 924 (Ky. 1955)).

Photographs of a corpse may be admissible even though the photographs may be

of a ―gruesome and horrifying character.‖ Id. at 950–51 (citing People v. Jenko, 102

N.E.2d 783, 785 (Ill. 1951)). The more gruesome the photograph, the more likely it is

that a defendant can establish that the photograph‘s prejudicial effect outweighs its

probative value. See id. at 951 (citing Commonwealth v. Scaramuzzino, 317 A.2d 225,

226 (Pa. 1974)).

Admission of photographs of a murder victim is often problematic. Post-mortem

photographs can be helpful to show how the victim died and the nature of the injuries

inflicted before death. Post-mortem pictures can also be relevant to the issue of

deliberation or premeditation. See id. at 950. The intent to kill may be inferred from the

brutality of the attack. Id. (quoting State v. LaChance, 524 S.W.2d 933, 937 (Tenn.

1975), abrogated on other grounds by State v. Brown, 836 S.W.2d 530, 543 (Tenn.

1992)). ―[T]he succession of blows, the patently vicious manner of their infliction, the

enormity of the cruelty and the horrendous injuries suffered provide further evidence of a

wil[l]ful execution of an intent to kill.‖ Id. (quoting LaChance, 524 S.W.2d at 937–38).

The manner in which the killing was committed, such as ―repeated shots, blows, and

other acts of violence‖ may constitute sufficient evidence of premeditation. Id. (quoting

LaChance, 524 S.W.2d at 938). Post-mortem photographs can be gruesome because of

their subject matter, and therefore their prejudicial effect must be considered.

In State v. Willis, 496 S.W.3d 653 (Tenn. 2016), petition for cert. filed, No.

16-6995 (U.S. Nov. 21, 2016), we held the trial court did not abuse its discretion in

admitting a number of graphic post-mortem photographs during the guilt and sentencing

phases of the defendant‘s capital trial. The challenged photographs in Willis included

color photographs of the decomposed bodies of the two victims, one of which had been

mutilated after death. Id. at 725. The photographs from the guilt phase depicted the

locations of the victims‘ bullet wounds, fly larvae and pupae, a storage tote containing the

body of one of the victims, one victim‘s bound hands and feet, and one victim‘s severed

head and hands. Id. The photographs from the sentencing phase depicted the severely

- 36 -

decomposed headless and handless body of one victim and that victim‘s severed and

severely decomposed head. Id. We found that each of these photographs had probative

value. Id. at 727. The photographs admitted during the guilt phase were probative on the

contested issues of premeditation and time of death, and the photographs admitted during

the sentencing phase were probative on the aggravating circumstances, which supported

the State‘s decision to seek the death penalty. Id. Further, in considering the danger of

unfair prejudice, we observed that it is fair to consider the grotesque and horrifying

nature of the charged conduct. Id. at 729. To the extent the photographs tended to be

shocking or gruesome, it was because the crime depicted was of that sort. Id. (quoting

State v. Sandles, 740 S.W.2d 169, 177 (Mo. 1987) (en banc)). We held in Willis that the

defendant‘s failure to establish the probative value of the challenged photographs was

substantially outweighed by the danger of unfair prejudice. Id.

In State v. Brown, 836 S.W.2d 530, 551–52 (Tenn. 1992), this Court found no

error in the trial court‘s admission of nine color, close-up photographs of the deceased

victim‘s body. The State presented testimony regarding the injuries, but under the Banks

standards, we held the graphic photographs were relevant to the brutality of the attack

and extent of force used against the victim, from which the jury could infer the element

of malice. Id. at 551 (citing Banks, 564 S.W.2d at 950). We noted that each photograph

represented a different part of the victim‘s body and that no two photographs depicted the

same injuries. Id.

In State v. Cole, 155 S.W.3d 885, 912–13 (Tenn. 2005), this Court upheld the

admissibility of post-mortem photographs of the victim‘s scalp, which showed a ring of

soot around a bullet wound. The photographs were relevant to supplement the medical

examiner‘s testimony that the bullet wound was inflicted from contact range, which

supported an inference of premeditation and contradicted the defendant‘s claim of

self-defense and the defendant‘s statement to police that he shot the victim from a few

feet away. Id. at 913. We concluded that the probative value of the photographs was not

outweighed by their prejudicial effect. Id.

In State v. Carter, 114 S.W.3d 895, 903–04 (Tenn. 2003), we upheld the trial

court‘s decision to admit into evidence three photographs depicting the bodies of two

murder victims at the crime scene. The photographs showed a male victim‘s body

crouched in a closet and covered with blood and a female victim‘s body lying in a pool of

blood on a bathroom floor. Id. at 901. One photograph showed that the female victim was

partially nude. Id. We held that the photographs were relevant to show the nature and

circumstances of the crimes and to demonstrate the ―especially heinous, atrocious, or

cruel‖ aggravating circumstance for the crimes. Id. at 903 (quoting Tenn. Code Ann.

§ 39-13-204(i)(5)). We further held that the probative value of the photographs was not

substantially outweighed by the danger of unfair prejudice. Id. at 904.

- 37 -

Applying these factors here, we find the trial court did not abuse its discretion in

admitting the photographs into evidence. The trial court reviewed numerous photographs

and only allowed certain photographs to be admitted into evidence. The verification and

authenticity of the photographs were not in dispute. The photographs accurately depicted

different aspects of Channon‘s and Chris‘s bodies and the injuries inflicted on them. The

photographs were not cumulative because they showed different views of various parts of

their bodies, and they assisted in the jury‘s understanding of the medical examiner‘s

testimony. During the pretrial hearing, the medical examiner stated that she could testify

about her findings but that her testimony alone was ―not good enough‖ for the jury to

truly comprehend the method and manner of the victims‘ deaths. During her trial

testimony, she used the photographs to describe how the victims died, including showing

the binding around Chris‘s hands and feet, the shirt wrapped around his head, the sock

placed in his mouth, the places where he had been shot, how severely burned and charred

his body was, the damage to his anus from blunt force trauma, how Channon was bound

and positioned in the garbage can, and the injuries to various parts of her body. These

photographs were relevant to the issues at trial. They showed that the manner in which

the rapes and murders were committed was deliberate, premeditated, and took some time

to accomplish. They also showed the repeated blunt force trauma that the victims endured

and the extent of their injuries. The photographs were graphic but not unnecessarily

gruesome or horrifying especially given the facts. The photographic evidence of the

torture inflicted on the victims during their last hours cannot be ignored or recreated in

any other manner. The photographs were likely prejudicial to Mr. Davidson—but not

unfairly prejudicial.

We conclude that the photographs were relevant and that their probative value was

not substantially outweighed by the danger of unfair prejudice. We hold that the trial

court did not abuse its discretion in admitting the photographs of the victims into

evidence.

Jury’s Review of Evidence in Courtroom

Mr. Davidson argues the trial court erred in allowing the deliberating jury to view

his video recorded statement in the courtroom with members of the public present. Mr.

Davidson contends this public display violated the sanctity of jury deliberations, and the

jury improperly conducted deliberations in the courtroom. The State submits the trial

court did not abuse its discretion in allowing the jury to review the video recorded

statement in open court and that the jury did not deliberate openly. The Court of Criminal

Appeals held that the trial court should have shown the jury how to operate the

equipment in the courtroom and then left them to review the recording alone. Because

this error did not prejudice the defendant, the intermediate appellate court concluded it

was harmless error. Davidson, 2015 WL 1087126, at *60.

- 38 -

A video recording of a statement Mr. Davidson gave to law enforcement after his

arrest was introduced into evidence as a part of the State‘s proof. During deliberations,

the jury sent the trial court a note asking to review Mr. Davidson‘s statement. The trial

court granted the jury‘s request and determined that the video should be shown on the

screen in the courtroom rather than in the jury room. The trial court reasoned this

procedure would allow the court and counsel to view the same evidence the jury was

viewing and to ensure the equipment worked properly. Because the viewing was to occur

in the courtroom, the trial court determined it was a public proceeding and spectators

could remain in the courtroom. The trial court admonished everyone not to make any

comments or react to the video. Mr. Davidson‘s counsel objected, arguing that jury

deliberations were not public proceedings and should not be conducted in the courtroom.

The trial court overruled the objection, stating the jury was only being brought into the

courtroom to view the video and that no jury deliberations or discussions would occur in

the courtroom. After the jury was brought into the courtroom, the foreperson asked the

trial court whether the video could be zoomed in on Mr. Davidson and the volume

increased. The trial court responded that the video recording could not be adjusted to

zoom in and that the volume was at the highest level. The jury watched a portion of Mr.

Davidson‘s statement while members of the public were present. After approximately one

hour and twenty minutes, the trial court recessed the proceedings for a break, and the jury

retired to the jury room. During the break, the jury sent a note to the trial court indicating

they had seen enough of the video.

We review this issue under an abuse of discretion standard. State v. Smith, 993

S.W.2d 6, 32 (Tenn. 1999); State v. Jenkins, 845 S.W.2d 787, 793 (Tenn. Crim. App.

1992). ―A trial court abuses its discretion when it applies an incorrect legal standard,

reaches an illogical conclusion, bases its decision on a clearly erroneous assessment of

the evidence, or employs reasoning that causes an injustice to the complaining party.‖

State v. Smith, 492 S.W.3d 224, 243 (Tenn. 2016) (citing Davis, 466 S.W.3d at 61).

Mr. Davidson argues that the jury‘s viewing of his statement in open court was an

intrusion on the secrecy of jury deliberations. It is well-established that jury deliberations

shall remain private and secret. See United States v. Olano, 507 U.S. 725, 737 (1993);

Rushing v. State, 565 S.W.2d 893, 895 (Tenn. Crim. App. 1977); see also Yeager v.

United States, 557 U.S. 110, 122 (2009) (―The jury‘s deliberations are secret and not

subject to outside examination.‖). The sanctity of jury deliberations is a fundamental

tenet of our criminal justice system. United States v. Schwarz, 283 F.3d 76, 97 (2d Cir.

2002). The right to a jury trial requires that the jury be unbiased and impartial when

deciding factual issues. State v. Smith, 418 S.W.3d 38, 45 (Tenn. 2013). ―[T]he primary if

not exclusive purpose of jury privacy and secrecy is to protect the jury‘s deliberations

from improper influence.‖ Olano, 507 U.S. at 737–38.

- 39 -

Although jury deliberations should remain private and no jury deliberations should

occur in public, the jury‘s viewing of evidence in the open courtroom does not

necessarily violate the privacy of jury deliberations. Tennessee Rule of Criminal

Procedure 30.1 provides that ―[u]nless for good cause the court determines otherwise, the

jury shall take to the jury room for examination during deliberations all exhibits and

writings, except depositions, that have been received in evidence.‖ Tenn. R. Crim. P.

30.1. Based on this rule, jurors may examine evidence in the jury room during

deliberations. This rule, however, does not address how jurors may view evidence, such

as video recorded statements that require special equipment for viewing and cannot be

appropriately examined or viewed in the jury room.

The Court of Criminal Appeals has held the trial court does not abuse its discretion

by allowing the jury to view evidence in the open courtroom. See, e.g., Jenkins, 845

S.W.2d at 793 (finding no abuse of discretion under ABA Standards for Criminal Justice,

Trial by Jury, Standard 15-5.25 where the trial court allowed the jury, in open court, to

view a tape of an eyewitness‘s testimony); State v. Phillips, No.

E1999-02776-CCA-R3-CD, 2000 WL 1877486, at *5 (Tenn. Crim. App. Dec. 28, 2000)

(citing Jenkins, 845 S.W.2d at 792, 793; Standards Relating to Admin. of Criminal

Justice 15-4.2) (holding that the trial court acted within its discretion in replaying

detective‘s testimony for the jury in open court); cf. State v. Case, No.

M2014-00949-CCA-R3-CD, 2015 WL 7458507, at *13 (Tenn. Crim. App. Nov. 24,

2015) (holding if the jury must review evidence in the courtroom, the better practice is

for the court officer to bring the jury into the courtroom without the presence of the trial

court and counsel; if the jury views the evidence in the courtroom with the judge and

counsel present, then the defendant should also be present); State v. Morris, No.

M2005-02909-CCA-R3-CD, 2007 WL 609203, at *3 (Tenn. Crim. App. Feb. 26, 2007)

(criticizing decision of the trial court to allow the jury during deliberations to view a

video in open court with the defendant and counsel present rather than instructing the jury

on the operation of the equipment and then leaving the jury alone to view the video, but

finding no prejudice to the defendant, no violation of Rule 30.1, and no abuse of

discretion).

Courts in other jurisdictions have also found no abuse of discretion by the trial

court in allowing the jury to review or rehear recorded evidence in open court. See, e.g.,

United States v. Muhlenbruch, 634 F.3d 987, 1001–02 (8th Cir. 2011) (finding no abuse

of discretion by the trial court by allowing the jury to review a videotaped confession in

5

ABA Standards Relating to the Administration of Criminal Justice, Standard 15-4.2 was revised

and redesignated 15-5.2. ABA Standard 15-5.2 provides that ―[u]nless the court decides that a review of

requested testimony is inappropriate, the court should have the requested parts of the testimony submitted

to the jury in the courtroom.‖

- 40 -

open court); United States v. Plato, 629 F.3d 646, 652 (7th Cir. 2010) (finding that the

district judge acted within her discretion by allowing the jurors to watch the surveillance

video in slow motion in open court); United States v. Thabateh, 40 F. App‘x 392, 395

(9th Cir. 2002) (holding that there was no error in permitting the jury to read along in the

transcript as the tape was replayed in open court during deliberations); Maples v. State,

758 So. 2d 1, 63 (Ala. Crim. App. 1999) (holding that the trial court did not err in

allowing jury‘s review of videotaped confession and audiotape of 911 call in open court);

State v. Blankinship, 622 P.2d 66, 70 (Ariz. Ct. App. 1980) (holding that ―[s]ince the jury

requested the repeated playings of the taped confession, the court acted within its

discretion in allowing the tape to be played in open court‖); State v. Jones, 102 A.3d 694,

701 (Conn. 2014) (holding that the trial court properly exercised its discretion by

requiring the jury to review video in open court because of equipment issues); State v.

Osbourne, 53 A.3d 284, 296–98 (Conn. App. Ct. 2012) (finding no error in replaying

video evidence in open court, under the supervision of the trial judge and in the presence

of counsel and the parties, despite the jury‘s request to review the evidence ―in private‖);

Bridges v. State, 613 S.E.2d 621, 625 (Ga. 2005) (stating that the accepted practice is to

bring the jury back into open court to rehear recorded evidence during deliberations);

Summage v. State, 546 S.E.2d 910, 913 (Ga. 2001) (holding that the trial court has the

discretion to allow the jury to rehear recorded statements if done in open court); Sturma

v. State, 683 N.E.2d 606, 609–10 (Ind. Ct. App. 1997) (finding the trial court did not

abuse its discretion by allowing testimony to be replayed for the jury in open court);

Linger v. State, 508 N.E.2d 56, 61 (Ind. Ct. App. 1987) (holding that state law ―required

the judge, on the jury‘s request, to replay the properly admitted audio tape in open

court‖); State v. Daby, 197 N.W.2d 670, 672 (Minn. 1972) (stating that when a jury

requests to review testimony, the proper procedure is set forth in ABA Standard 5.2(a));

State v. Anthony, 837 S.W.2d 941, 945 (Mo. Ct. App. 1992) (determining that ―allowing

the jury to hear the tape during deliberations was not an abuse of discretion. The tape had

been played in open court‖); State v. Weston, 118 A.3d 331, 340 (N.J. 2015) (holding that

replay of a videotaped witness statement or testimony ―must be conducted in open court,

under the careful supervision of the trial judge‖ to address concerns that a particular

segment will be overemphasized or viewed out of context); State v. Miller, 13 A.3d 873,

881 (N.J. 2011) (holding that video playbacks should take place in open court with all

parties present); State v. Morgensen, 197 P.3d 715, 718–19 (Wash. Ct. App. 2008)

(finding that the trial court took proper precautions prior to playing audiotape of

testimony in open court to the deliberating jury in part by cautioning the parties ―not to

make expressions of any kind during the playing of the tape‖); State v. Hughes, 691

S.E.2d 813, 826–27 (W. Va. 2010) (surveying cases and finding it is ―universally

accepted‖ that a trial court may allow the jury, while deliberating, to return to open court

to review a tape recording admitted into evidence).

We hold that during jury deliberations, when a jury requests to view or hear

evidence that cannot be appropriately examined in the jury room, the trial court should

- 41 -

bring the jury into the courtroom with the parties and counsel present to view the

evidence. The trial court, in its discretion, may allow members of the public to remain in

the courtroom or may conduct the viewing with only counsel and the parties present. The

trial court should instruct the jury that it is not to deliberate in the courtroom and should

admonish the parties, counsel, and any spectators not to comment on the evidence or in

any manner attempt to influence the jury.

Here, the trial court did not abuse its discretion by allowing the jury to view the

recorded statement in the courtroom. There is no evidence that the jury deliberated in

open court, that the jury was exposed to any outside influence, or that the public

interfered with the secretive deliberative process. The jury‘s request to adjust the video to

zoom in on Mr. Davidson and to increase the volume and the note from the jury that it

had seen enough of the video did not constitute jury deliberations. The trial court did not

abuse its discretion by allowing the jury to view the video recorded statement in the

courtroom with members of the public present.

Admissibility of Expert Testimony

Ballistics

Mr. Davidson argues that the trial court abused its discretion by admitting

ballistics evidence through the testimony of Knoxville Police Department Firearms

Examiner Patricia M. Resig. Mr. Davidson‘s argument is two-fold: the evidence was not

relevant under Tennessee Rules of Evidence 401 and 403, and as scientific testimony

under Tennessee Rules of Evidence 702 and 703, it failed to satisfy the factors required

for admissibility under McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257, 265

(Tenn. 1997). In response, the State argues Ms. Resig‘s testimony was relevant under

Rules 401 and 403 and her testimony was admissible based on the McDaniel factors and

Rules 702 and 703. The Court of Criminal Appeals held that the trial court had not

abused its discretion by admitting the ballistics evidence. Davidson, 2015 WL 1087126,

at *33.

At the pretrial hearing on Mr. Davidson‘s motion in limine, Ms. Resig testified she

has a Bachelor of Science degree in nursing, a Bachelor of Arts degree in anthropology,

and two years of intensive training in firearm and tool mark examination from the Florida

Department of Law Enforcement. She has worked as a Knoxville Police Department

firearms examiner for ten years and has made 600 to 700 comparisons yearly. The

Knoxville Police Department is accredited by the Commission on Accreditation for Law

Enforcement Agencies, which establishes and administers an accreditation process

specifically for law enforcement agencies. Ms. Resig is not certified by the Association

of Firearm and Tool Mark Examiners, and the Knoxville Police Department is not

accredited by the American Society of Crime Laboratory Directors. Ms. Resig had

- 42 -

previously been qualified as an expert in firearms examination and testified as an expert

witness regarding ballistics.6 On this record, we agree with the trial court that Ms. Resig

was qualified to testify as an expert witness.

Ms. Resig explained that her process for examining firearms involves a

comparative analysis of bullets to bullets, cartridge cases to cartridge cases, or bullets and

cartridge cases to those that have been test-fired. Ms. Resig testified that she looks at

firearms class characteristics, including caliber, the number and measurement of rifling

marks called lands and grooves, and the direction of twists. Ms. Resig then examines the

individual characteristics of the bullet or cartridge case being compared, such as firing

pin impressions, breech face marks, and location and shape of extractor and ejector

marks. The result of her analysis is either an identification or an elimination, or the result

is inconclusive. When determining whether a bullet was discharged from a particular

firearm, Ms. Resig compares it to a bullet test-fired from the same weapon. If the bullets

have different class characteristics, the finding is elimination. If they have shared class

characteristics, she compares the individual characteristics, such as unintentional

imperfections, irregularities of tool surfaces used to make the gun, the barrel, or the

breech face. Ms. Resig testified, ―It‘s like a fingerprint,‖ and uniqueness may result from

use, abuse, corrosion, and erosion. Ms. Resig stated that sufficient agreement of

individual characteristics allows her to make a positive identification.

6

See, e.g., State v. Brown, No. E2015-00899-CCA-R3-CD, 2016 WL 3633474, at *4 (Tenn.

Crim. App. June 29, 2016); State v. Jackson, No. E2014-01387-CCA-R3-CD, 2015 WL 6756318, at *3

(Tenn. Crim. App. Nov. 5, 2015), perm. app. denied (Tenn. May 5, 2016); State v. Campbell, No. E2014-

00697-CCA-R3-CD, 2015 WL 6155893, at *4 (Tenn. Crim. App. Oct. 20, 2015), perm. app. denied

(Tenn. Apr. 6, 2016), petition for cert. docketed, No. 16-5256 (U.S. July 19, 2016); State v. Keith, No.

E2014-00448-CCA-R3-CD, 2015 WL 4366575, at *4 (Tenn. Crim. App. July 16, 2015), perm. app.

denied (Tenn. Jan. 14, 2016); State v. Harris, No. E2014-00822-CCA-R3-CD, 2015 WL 871740, at *5

(Tenn. Crim. App. Feb. 28, 2015), perm. app. denied (Tenn. May 14, 2015); State v. Smith, No. E2013-

00215-CCA-R3-CD, 2014 WL 4215882, at *14 (Tenn. Crim. App. Aug. 27, 2014), perm. app. denied

(Tenn. Jan. 16, 2015); State v. James, No. E2012-01912-CCA-R3-CD, 2013 WL 4680205, at *12 (Tenn.

Crim. App. Aug. 29, 2013); State v. Goodman, No. E2011-02044-CCA-R3-CD, 2012 WL 6633845, at *4

(Tenn. Crim. App. Dec. 20, 2012); State v. Smith, No. E2010-00549-CCA-R3-CD, 2011 WL 5517646, at

*3 (Tenn. Crim. App. Nov. 14, 2011); State v. Echols, No. E2009-01697-CCA-R3-CD, 2011 WL

2418737, at *2 (Tenn. Crim. App. June 14, 2011), aff’d, 382 S.W.3d 266 (Tenn. 2012); State v. McLean,

No. E2009-00221-CCA-R3-CD, 2010 WL 4323029, at *2 (Tenn. Crim. App. Oct. 29, 2010); State v.

Nolan, No. E2008-02762-CCA-R3-CD, 2009 WL 5083496, at *5 (Tenn. Crim. App. Dec. 28, 2009);

State v. Foster, No. E2007-01585-CCA-R3-CD, 2009 WL 3335580, at *7 (Tenn. Crim. App. Oct. 16,

2009); State v. Burnett, No. E2007-01788-CCA-R3-CD, 2008 WL 4613531, at *2 (Tenn. Crim. App. Oct.

1, 2008); State v. Mattress, No. E2006-00862-CCA-R3-CD, 2007 WL 2325352, at *5 (Tenn. Crim. App.

Aug. 16, 2007); State v. Mobley, No. E2006-00469-CCA-R3-CD, 2007 WL 1670195, at *4 (Tenn. Crim.

App. June 11, 2007); State v. Thompson, No. E2003-00569-CCA-R3-CD, 2004 WL 1592817, at *3

(Tenn. Crim. App. July 16, 2004).

- 43 -

Ms. Resig examined a .22 caliber High Standard Model Sentinel revolver, a .22

caliber Clerke revolver, six .22 caliber long-rifle Remington cartridges, a .30 M1 caliber

Universal semi-automatic Carbine with a detachable magazine, two .22 caliber

Remington test-fired cartridges, and three .22 caliber bullets removed from Chris‘s body.

The High Standard revolver was found with Mr. Davidson when he was arrested, the

Clerke revolver was found in a box under a bed at Ms. Hays‘s house after Mr. Cobbins

was arrested, and the Carbine and .22 cartridges were found in Mr. Davidson‘s house

when it was searched.

Ms. Resig test fired each of the revolvers and compared the test-fired bullets to the

two bullets removed from Chris‘s neck and back. The bullet that was taken from his skull

was damaged and could not be compared. She concluded that the bullets removed from

Chris‘s neck and back were fired from the same weapon.

Ms. Resig compared the test-fired bullets from the High Standard and Clerke

revolvers with two bullets recovered from Chris‘s body. The bullets from the High

Standard shared similar class characteristics, but there was a lack of agreement or

disagreement of the individual characteristics such that she could not be 100 percent

certain they were fired from the High Standard revolver. The similar class characteristics

indicated the bullets could have been fired by the High Standard revolver and other

revolvers made by several manufacturers, including FIE, High Standard, Regent, Rossie,

Smith & Wesson, and Taurus. Ms. Resig‘s analysis showed that the six cartridge cases

found at Mr. Davidson‘s house were fired from the High Standard revolver. The test-fired

bullets from the Clerke revolver and the bullets removed from Chris‘s body shared class

characteristics, but there was significant disagreement of the individual characteristics

such that she excluded the Clerke revolver as the murder weapon.

The trial court admitted Ms. Resig‘s testimony under Tennessee Rules of Evidence

401 and 403, finding her testimony relevant and its probative value not substantially

outweighed by the danger of unfair prejudice or jury confusion. The trial court further

concluded that Ms. Resig‘s testimony satisfied the McDaniel factors. The Court of

Criminal Appeals affirmed the trial court‘s decision, finding no abuse of discretion.

Davidson, 2015 WL 1087126, at *33.

We first consider Mr. Davidson‘s challenge to the relevancy of Ms. Resig‘s

testimony. Tennessee Rule of Evidence 401 defines ―relevant evidence‖ as ―evidence

having any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the

evidence.‖ Tenn. R. Evid. 401. In general, relevant evidence is admissible, and irrelevant

evidence is inadmissible. Tenn. R. Evid. 402. The court may, however, exclude relevant

evidence 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 undue

- 44 -

delay, waste of time, or needless presentation of cumulative evidence.‖ Tenn. R. Evid.

403. Prejudicial evidence is not excluded as a matter of law under Rule 403. The court

must still determine the relevance of the evidence and weigh its probative value against

any undue prejudice. State v. Reid, 164 S.W.3d 286, 330 (Tenn. 2005) (citing Carruthers,

35 S.W.3d at 577).

The plain language of these rules ―strongly suggests that when the balance

between the evidence‘s probative value and any prejudicial effect is close, the evidence

should be admitted.‖ White v. Beeks, 469 S.W.3d 517, 528 (Tenn. 2015), as revised on

denial of reh’g (Aug. 26, 2015) (quoting Goodale v. Langenberg, 243 S.W.3d 575, 587

(Tenn. Ct. App. 2007)). Excluding relevant evidence under Rule 403 is an ―extraordinary

step that should be used sparingly.‖ Id. at 528 (quoting Levine v. March, 266 S.W.3d 426,

439 (Tenn. Ct. App. 2007)). Under these rules, trial courts possess the inherent authority

to exclude any evidence that would ―threaten the fairness of the trial process.‖ State v.

Sexton, 368 S.W.3d 371, 408 (Tenn. 2012), as corrected (Oct. 10, 2012) (citing Neil P.

Cohen et al., Tennessee Law of Evidence § 8.01[3][a], at 4–60 (5th ed. 2005)).

We review a trial court‘s decision to admit evidence under an abuse of discretion

standard. State v. Bell, No. W2012-02017-SC-DDT-DD, 2015 WL 12582638, at *15

(Tenn. Sept. 10, 2015), cert. denied, 136 S. Ct. 2006 (2016) (citing State v. Banks, 271

S.W.3d 90, 116 (Tenn. 2008)). A decision to admit evidence will be reversed only when

the court applied an incorrect legal standard, reached an illogical conclusion, or based its

decision on a clearly erroneous assessment of the evidence or employs reasoning that

causes an injustice to the party complaining. Bell, 480 S.W.3d at 508 (citing Banks, 271

S.W.3d at 116).

Mr. Davidson argues this ballistics evidence was not relevant because it did not

assist the trier of fact in determining whether the High Standard revolver was used in the

commission of crimes and any probative value was substantially outweighed by the

likelihood of unduly prejudicing, misleading, or confusing the jury. Although Ms. Resig

could not state with certainty that the High Standard revolver was the murder weapon,

she testified that it shared common class characteristics with the bullets found in Chris‘s

body and therefore could have been used to fire the bullets. Mr. Davidson argues this

testimony does not assist the trier of fact because thousands of guns made by different

manufacturers could have fired bullets with similar class characteristics to those test-fired

from the High Standard revolver. Mr. Davidson argues that the cartridge casings were

found at his house, not where Chris‘s body was found, and therefore, this evidence was

not probative.

We conclude that the trial court did not abuse its discretion in allowing Ms. Resig

to testify. Her testimony, while not highly probative, was sufficiently probative on

whether the bullets found in Chris‘s body were fired from Mr. Davidson‘s High Standard

- 45 -

revolver and thus material to the issue of Mr. Davidson‘s guilt or innocence. The jury

could infer from Ms. Resig‘s testimony that the High Standard revolver was the weapon

used to shoot Chris because test bullets and the bullets from Chris‘s body shared class

characteristics and that the cartridge cases found in Mr. Davidson‘s house were

associated with the murder. It was up to the jury to decide how much weight to give this

testimony. Mr. Davidson‘s counsel effectively cross-examined Ms. Resig and had the

option of calling his own expert ballistics witness. Under these circumstances, the trial

court did not err by admitting the evidence.

Mr. Davidson also argues that Ms. Resig‘s testimony was inadmissible under

Rules 702 and 703 because it failed to comply with the McDaniel factors. The trial court,

after considering the McDaniel factors, determined Ms. Resig‘s testimony was

admissible. We agree.

The admissibility of expert testimony is governed by Tennessee Rules of Evidence

702 and 703. Rule 702 addresses when expert testimony is needed and the expert‘s

qualifications.7 Rule 703 focuses on reliability of expert testimony.8 In McDaniel, this

Court identified five nonexclusive factors courts are to consider in assessing the

reliability of expert testimony:

(1) whether scientific evidence has been tested and the methodology with

which it has been tested; (2) whether the evidence has been subjected to

peer review or publication; (3) whether the potential rate of error is known;

(4) whether . . . the evidence is generally accepted in the scientific

community; and (5) whether the expert‘s research in the field has been

conducted independent of litigation.

7

Rule 702 provides: ―If scientific, technical, or other specialized knowledge will substantially

assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an

expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or

otherwise.‖ Tenn. R. Evid. 702.

8

Rule 703 provides:

The facts or data in the particular case upon which an expert bases an opinion or

inference may be those perceived by or made known to the expert at or before the

hearing. . . . Facts or data that are otherwise inadmissible shall not be disclosed to the jury

by the proponent of the opinion or inference unless the court determines that their

probative value in assisting the jury to evaluate the expert‘s opinion substantially

outweighs their prejudicial effect. The court shall disallow testimony in the form of an

opinion or inference if the underlying facts or data indicate lack of trustworthiness.

Tenn. R. Evid. 703.

- 46 -

McDaniel, 955 S.W.2d at 265. These factors are not requirements for admissibility but

may be considered by the trial judge when weighing the reliability of the expert

testimony and forensic evidence. A court ―must assure itself that the [expert‘s] opinions

are based on relevant scientific methods, processes, and data, and not upon an expert‘s

mere speculation.‖ Id. Instead of a rigid application of the McDaniel factors, their

application in assessing reliability depends upon the nature of the issue, the witness‘s

particular expertise, and the subject of the expert‘s testimony. Brown v. Crown Equip.

Corp., 181 S.W.3d 268, 277 (Tenn. 2005) (citing State v. Stevens, 78 S.W.3d 817, 833

(Tenn. 2002); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999)); State v. Scott,

275 S.W.3d 395, 402 (Tenn. 2009).

Determinations regarding the qualifications, admissibility, relevance, and

competence of expert testimony fall within the broad discretion of the trial court and will

be overturned only for an arbitrary exercise or abuse of that discretion. McDaniel, 955

S.W.2d at 263–64; Scott, 275 S.W.3d at 404 (citing State v. Reid, 91 S.W. 247, 294

(Tenn. 2002); Stevens, 78 S.W.3d at 832). A trial court abuses its discretion if it applies

an incorrect legal standard or reaches an illogical or unreasonable decision that results in

injustice to the complaining party. Stevens, 78 S.W.3d at 832 (quoting State v. Shuck, 953

S.W.2d 662, 669 (Tenn. 1997)). When assessing the admissibility of expert testimony,

the trial court must first determine whether the witness is qualified by knowledge, skill,

experience, training, or education to express an opinion within the limits of his or her

expertise. Scott, 275 S.W.3d at 402 (citing Stevens, 78 S.W.3d at 834). The determinative

factor is whether the witness‘s qualifications authorize him or her to give an informed

opinion on the subject. Stevens, 78 S.W.3d at 834.

On the first McDaniel factor regarding the validity of the methodology, Mr.

Davidson argues that the methodology underlying ballistics evidence is unreliable.

Relying again on a 2009 publication by the National Research Council, Mr. Davidson

contends ballistics testing to match a firearm to a particular bullet fired is unsupported by

science. Ms. Resig testified that firearms examination has been subject to scientific

review and repeated testing. She testified that ―there is an extensive body of research

extending back over probably 100 years which establishes the accuracy, the reliability,

and validity of conclusions rendered in the field of firearm and tool mark . . .

examination.‖ While the National Research Council publication may suggest more

research is needed in the field of ballistics, particularly for identification based on

individualized characteristics, Mr. Davidson has not demonstrated that the methodology

or science underlying ballistics evidence is unreliable.

On the second McDaniel factor regarding peer testing or publication, Ms. Resig

referenced studies from the Association of Firearm and Tool Mark Examiners Journal, a

scientific peer review journal published four times a year. As for her particular findings,

Ms. Resig testified that she submitted the evidence to Special Agent Don Carmas of the

- 47 -

Tennessee Bureau of Investigation for forensic consultation and verification of evidence,

who concurred with Ms. Resig‘s findings after examining the evidence and reviewing

Ms. Resig‘s report.

Regarding the third McDaniel factor, which concerns the rate of error, Ms. Resig

referred to data from a collaborative testing service for the years of 1978 through 1997

and for 1998 through 2002. She testified that the percentage of false identifications for

firearms was .9 percent and .1 percent. Upon cross-examination, Ms. Resig testified that a

study from 1978 through 1991 resulted in an error rate of 12 percent for firearms and 26

percent for tool marks when inconclusive results were included; however, she opined that

the error rate is ―much less‖ when inconclusive results are omitted and only incorrect

responses are considered. Ms. Resig further cited to a study that provided a 1.4 percent

error rate for firearms.9

On the fourth McDaniel factor regarding the general acceptance in the scientific

community, Ms. Resig testified that ballistics evidence has been relied upon for about

one hundred years and is generally accepted in the scientific community.

On the fifth McDaniel factor regarding whether the research was independent of

litigation, Ms. Resig testified that she conducted the testing in her employment with the

Knoxville Police Department, independently of litigation. The trial court found that Ms.

Resig‘s testimony strongly supported the admissibility of the ballistics evidence, and a

report prepared by a defense expert would go to the weight of Ms. Resig‘s testimony.

We conclude that the trial court did not abuse its discretion in admitting Ms.

Resig‘s expert testimony under Rules 402 and 702 of the Tennessee Rules of Evidence.

Ms. Resig was qualified to testify as an expert witness; the evidence was relevant and,

under the McDaniel factors, was properly admitted.

Fingerprints

Mr. Davidson argues that the trial court abused its discretion by admitting

fingerprint identification evidence through the testimony of Knoxville Police Department

Senior Evidence Technicians Daniel Crenshaw and Tim Schade. Mr. Davidson filed a

motion in limine to exclude their testimony, asserting that the ACE-V10 methodology of

9

In its written order, the trial court summarized this testimony as follows: ―When questioned

about whether a potential rate of error is known, she testified that proficiency testing facilities establish

that it is approximately .9%.‖

10

ACE-V is an acronym for ―analysis, comparison, evaluation, and verification.‖

- 48 -

fingerprint analysis was inherently unreliable and lacked scientific validity. Mr. Davidson

argues that fingerprint examination is the subject of considerable debate within the

forensic science community, and fingerprint analysis has not been subjected to sufficient

testing and peer review. Mr. Davidson contends the ACE-V methodology is heavily

reliant on subjective assessments, it is not subject to verifiable review, and its verification

process is flawed. He argues that the error rate for latent fingerprint analysis is unknown,

and the experts‘ analysis was conducted during criminal prosecution and therefore not

outside the context of litigation. The State argues the trial court properly considered all of

these factors and did not abuse its discretion by admitting the expert testimony of Mr.

Crenshaw and Mr. Schade. The Court of Criminal Appeals held that the trial court did not

abuse its discretion in admitting the expert testimony of Mr. Crenshaw and Mr. Schade.

Davidson, 2015 WL 1087126, at *59.

We analyze this issue using the same standards discussed above for the McDaniel

factors and Tennessee Rules of Evidence 702 and 703. At the pretrial hearing on the

motion in limine, Mr. Schade testified that he has college degrees in criminal justice and

political science and a master‘s degree in public administration. He attended the Federal

Bureau of Investigation fingerprint school for beginning and advanced training and

participated in a forty-hour ridgeology class. Since 1998, he has been certified as a latent

fingerprint examiner through the International Association for Identification and

recertified twice since his initial certification. Mr. Schade testified that a fingerprint

examiner can lose his certificate due to a misidentification. Mr. Schade has regularly

taught a course on fingerprint identification at the National Forensic Academy and

previously testified as an expert witness in state and federal courts.11 Mr. Crenshaw

testified he has worked for the Knoxville Police Department for sixteen years. He

received fingerprint training and worked for six years as a fingerprint examiner with the

Federal Bureau of Investigation. He is certified by the International Association of

Identification. Mr. Crenshaw estimated that he has examined and identified roughly

10,000 fingerprints. He has also previously testified as an expert witness in other cases.12

11

See, e.g., United States v. Hatcher, 513 F. App‘x 581, 584 (6th Cir. 2013); State v. Keith, 2015

WL 4366575, at *4; State v. Johnson, No. E2013-02356-CCA-R3-CD, 2015 WL 913657, at *4 (Tenn.

Crim. App. Mar. 2, 2015), perm. app. denied (Tenn. June 11, 2015); State v. Foust, 482 S.W.3d 20, 29

(Tenn. Crim. App. 2015); State v. Gray, No. E2010-00637-CCA-R3-CD, 2012 WL 2870264, at *2 (Tenn.

Crim. App. July 13, 2012), rev’d on other grounds, No. E2014-00849-CCA-R3-PC, 2015 WL 2257191

(Tenn. Crim. App. May 13, 2015); Taylor v. State, No. E2006-02555-CCA-R3-PC, 2007 WL 3332847, at

*3 (Tenn. Crim. App. Nov. 9, 2007); State v. Pierce, No. E2001-00437-CCA-R3-CD, 2002 WL 523453,

at *2 (Tenn. Crim. App. Apr. 9, 2002.

12

See, e.g., Echols, 2011 WL 2418737, at *2; State v. Williams, No. E2002-00325-CCA-R3-CD,

2003 WL 22462533, at *2 (Tenn. Crim. App. Oct. 31, 2003); State v. Wyrick, 62 S.W.3d 751, 760 (Tenn.

Crim. App. 2001); State v. Poole, No. 03C01-9802-CR-00060, 1998 WL 784252, at *2 (Tenn. Crim.

App. Nov. 5, 1998).

- 49 -

We agree with the trial court that Mr. Schade and Mr. Crenshaw were qualified to testify

as experts in fingerprint analysis.

Next, the trial court had to determine whether the expert testimony was reliable

and relevant. See Kumho Tire, 526 U.S. at 152. This included an analysis of the basis for

the witness‘s opinion, i.e., testing, research, studies, or experience-based observations,

and whether it adequately supported the expert‘s conclusions, to ensure there was not a

significant analytical gap between the expert‘s opinion and the data upon which the

opinion was based. Scott, 275 S.W.3d 402–03 (quoting Stevens, 78 S.W.3d 834–35). At

issue was the methodological and foundational reliability of the expert‘s testimony. Id. at

401–03. The first step in this process is an assessment of the expert‘s field or discipline

by focusing on the reliability of the studies, articles, and data that compose the field and

provide the underlying foundation for the expert‘s testimony. Id. The second step is an

analysis of the reliability of the underlying facts or data upon which the expert‘s opinion

is predicated. Id. Tennessee Rule of Evidence 703, unlike the comparable federal rule,

provides that ―[t]he court shall disallow testimony in the form of an opinion or inference

if the underlying facts or data indicate lack of trustworthiness.‖ Tenn. R. Evid. 703. In

this respect, our rule expresses a greater concern with the bases of expert testimony than

does Rule 703 of the Federal Rules of Evidence. Shuck, 953 S.W.2d at 668 (Tenn. 1997)

(citing McDaniel, 955 S.W.2d at 264; Omni Aviation v. Perry, 807 S.W.2d 276 (Tenn.

Ct. App. 1990)).

Mr. Schade detailed the ACE-V methodology and the process by which Mr.

Davidson‘s fingerprints were matched to various pieces of evidence linking him to the

crimes. Mr. Schade explained that the first step is to digitize an image of the latent print

and to mark the details for a comparison with prints in the Tennessee Bureau of

Investigation‘s Automated Fingerprint Identification system. Mr. Schade testified that the

analysis portion of fingerprint identification required the examination of ―three levels of

detail.‖ Level one concerns only the flow of ridges as they go through fingers and palms;

level two comprises bifurcations and closures, dots, islands, and the like; level three

entails ridgeology, which includes examination of the width of the ridges, the flow of the

ridges, how ridges go around each other, and pores. The comparison and evaluation

stages involve visual analysis to determine whether the fingerprints match. The last step

is verification of the identification by a second person. Mr. Schade and Mr. Crenshaw

verified each other‘s fingerprint identifications.

Mr. Davidson makes several arguments regarding the lack of reliability of

fingerprint identification. As we review this issue, we consider the McDaniel factors but

do not apply them rigidly, as not all factors are relevant here. Under Tennessee Rule of

Evidence 702, expert evidence is not limited to ―scientific‖ evidence but instead includes

technical or other specialized knowledge. Tenn. R. Evid. 702; see also Kumho Tire, 526

U.S. at 141; Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589–90 (1993). Mr.

- 50 -

Davidson challenges the general area of and methodology behind fingerprint evidence.

Citing excerpts from a 2009 study published by the National Research Council,

―Strengthening Forensic Science in the United States: A Path Forward,‖ Mr. Davidson

argues that the ACE-V methodology requires the subjective assessment by the examiner

and ―does not guard against bias; is too broad to ensure repeatability and transparency;

and does not guarantee that two analysts following it will obtain the same result.‖

According to the study, the ACE-V framework has not been sufficiently tested and is not

a validated method for friction ridge analysis. We disagree.

While there may be disagreement among experts in the field, this does not

establish the inherent unreliability of the ACE-V methodology that would render

fingerprint evidence inadmissible. This method of fingerprint identification has been

widely accepted by courts. See Andre A. Moenssens, Fingerprint Identification: A Valid,

Reliable “Forensic Science”?, 18-SUM Crim. Just. 30, 33 (2003); see also Hatcher, 513

F. App‘x at 584; United States v. Watkins, 450 F. App‘x 511, 516 (6th Cir. 2011); United

States v. Scott, 403 F. App‘x 392, 398 (11th Cir. 2010); United States v. Mahone, 453

F.3d 68, 72 (1st Cir. 2006); United States v. Sullivan, 246 F. Supp. 2d 700, 704 (E.D. Ky.

2003); Jarnigan v. State, 761 S.E.2d 256, 260–61 (Ga. 2014); People v. Luna, 989

N.E.2d 655, 679 (Ill. App. Ct. 2013); Burnett v. State, 815 N.E.2d 201, 208–09 (Ind. Ct.

App. 2004); Markham v. State, 984 A.2d 262, 276 (Md. 2009); Commonwealth v.

Gambora, 933 N.E.2d 50, 59 (Mass. 2010); State v. Langill, 945 A.2d 1, 12 (N.H. 2008);

State v. Leonard, 736 S.E.2d 647 (N.C. Ct. App. 2013); State v. Woodard, 330 P.3d 1283,

1288–89 (Utah Ct. App. 2014).

Our Court of Criminal Appeals has not examined the ACE-V methodology but has

held fingerprint evidence to be admissible. See, e.g., State v. Pugh, No.

W2011-02496-CCA-R3-CD, 2012 WL 5381375, at *7 (Tenn. Crim. App. Nov. 2, 2012);

Gray, 2012 WL 2870264, at *6; State v. Toomes, 191 S.W.3d 122, 131 (Tenn. Crim.

App. 2005); Rutherford v. State, No. E1999-00932-CCA-R3-PC, 2000 WL 246411, at

*15 (Tenn. Crim. App. Mar. 6, 2000); State v. Evans, 669 S.W.2d 708, 710 (Tenn. Crim.

App. 1984).

The trial court properly considered the McDaniel factors in finding that the expert

evidence was sufficiently reliable to be admissible. Mr. Davidson‘s counsel effectively

cross-examined Mr. Schade and Mr. Crenshaw and had the opportunity to present expert

testimony for the defense. We hold the trial court did not abuse its discretion in allowing

Mr. Schade and Mr. Crenshaw to testify as experts in fingerprint analysis and

identification.

- 51 -

Sufficiency of the Evidence

Mr. Davidson challenges the sufficiency of the evidence to support his

convictions. Mr. Davidson points to no specific facts but argues generally that the

evidence did not establish the elements of the offenses beyond a reasonable doubt. The

Court of Criminal Appeals concluded that the evidence was sufficient. Davidson, 2015

WL 1087126, at *41. Tennessee Rule of Appellate Procedure 13(e) provides that

―[f]indings of guilt in criminal actions . . . shall be set aside if the evidence is insufficient

to support the finding by the trier of fact of guilt beyond a reasonable doubt.‖ When

assessing whether there is sufficient evidence to support a criminal conviction, a jury‘s

verdict of guilt removes the presumption of innocence and replaces it with a presumption

of guilt. State v. Wilson, 211 S.W.3d 714, 718 (Tenn. 2007); Scarborough, 201 S.W.3d at

624. A defendant must demonstrate that the evidence is not sufficient to sustain a guilty

verdict. State v. Dotson, 254 S.W.3d 378, 395 (Tenn. 2008) (citing State v. Evans, 838

S.W.2d 185, 191 (Tenn. 1992)); State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008)

(citing Evans, 838 S.W.2d at 191).

When reviewing the evidence in a criminal case, appellate courts must afford the

State the strongest legitimate view of the evidence and give the State the benefit of all

reasonable inferences that may be drawn therefrom. Willis, 496 S.W.3d at 686; State v.

McGouey, 229 S.W.3d 668, 671 (Tenn. 2007) (citing Carruthers, 35 S.W.3d at 558). The

jury is entrusted with the responsibility of determining the weight and credibility to be

given to witnesses‘ testimony and reconciling conflicts in the testimony. Campbell, 245

S.W.3d at 335 (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978));

State v. Langford, 994 S.W.2d 126, 127 (Tenn. 1999). With this framework in mind, the

ultimate question for an appellate court ―is whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found the

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

307, 319 (1979) (alteration in original); see also Dotson, 254 S.W.3d at 3

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