State of Tennessee v. Joshua Hunter Bargery

10/06/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

May 2, 2017 Session

STATE OF TENNESSEE v. JOSHUA HUNTER BARGERY

Appeal from the Circuit Court for Lake County

No. 11-CR-9586 R. Lee Moore, Jr., Judge

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No. W2016-00893-CCA-R3-CD

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Joshua Hunter Bargery (“the Defendant”) appeals his Lake County Circuit Court

convictions for two counts of first degree felony murder and two counts of especially

aggravated robbery, for which he received a total effective sentence of two consecutive

life sentences. On appeal, the Defendant contends that: (1) his rights under the Fourth

Amendment of the United States Constitution and Article I, section 7 of the Tennessee

Constitution were violated by the trial court’s denial of his motions to suppress evidence

obtained during the search of the Defendant and his automobile; (2) the trial court

erroneously excluded as hearsay the Defendant’s testimony regarding statements made by

Mr. Hill, Mr. Hernandez, and “the three Mexicans”; (3) the trial court erred in excluding

relevant and material testimony from the Defendant’s crime scene expert; (4) the

Defendant is entitled to a new trial based on prosecutorial misconduct; (5) the trial court

erred in denying the Defendant’s motion to dismiss the indictment based on law

enforcement’s intentional destruction of exculpatory evidence; (6) the Defendant’s due

process rights were violated by the State’s failure to disclose Mr. Hernandez’s complete

criminal record and the State’s agreement not to treat him as a “suspect”; (7) the trial

court erred by admitting a copy of a letter written by the Defendant, which was not

produced by the State during discovery; (8) the trial court erred in its instructions to the

jury; (9) the evidence was insufficient to support his convictions; (10) the trial court erred

when it imposed consecutive sentences; (11) the trial court erred in denying the

Defendant’s motion for recusal; (12) the Defendant is entitled to a new trial based on

violations of the trial court’s order of sequestration; and (13) cumulative error deprived

the Defendant of due process and a fair trial. Following a thorough review of the record

and applicable law, we reverse the judgments of the trial court and remand for a new trial.

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

and Remanded for a New Trial

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which ALAN E.

GLENN and J. ROSS DYER, JJ., joined.

J. Houston Gordon (on appeal and at trial); Lyle Reid (on appeal and at trial); Amber

Griffin Shaw (on appeal and at trial); Charles Brasfield (at trial); and Samuel L. Ivy (at

trial), Covington, Tennessee; and Curtis F. Hopper (at trial), Savannah, Tennessee for the

appellant, Joshua Hunter Bargery.

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

Counsel; C. Phillip Bivens, District Attorney General; and Lance E. Webb, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

Factual and Procedural Background

In July 2011, the Lake County Grand Jury indicted the Defendant on two counts

each of first degree premeditated murder, first degree felony murder in the perpetration of

a robbery or theft, and especially aggravated robbery, all in connection with the killing of

Clarence and Sue Shell (“Mr. and Mrs. Shell” or “the victims”). The State subsequently

filed a Notice of Intention to Seek the Death Penalty and of Aggravating Circumstances.

State’s Case-in-Chief

At a trial conducted April 20, 2015, to May 9, 2015, Ashleigh Shell, the victims’

granddaughter, testified that she last saw the victims at their home on Owl Hoot Road on

the evening of March 3, 2011. She was there with her boyfriend for an hour, and they

left at 9:18 p.m. At the time they left, the victims were still in their “day clothes” and

were not dressed for bed.

Will Shell, the victims’ grandson, testified that he went to the victims’ residence

the following morning—March 4, 2011. When he arrived, he found that the blinds were

drawn, both the front and back doors were locked, and there was blood on the front door.

He looked into a window and saw Mr. Shell lying on the floor. When his father, Paul

Shell, arrived at the residence, Will1 kicked in the front door. He went about three steps

inside the front door but then exited the house and waited for police to arrive. Will

1

Because several witnesses share the same surname, we will refer to some witnesses by their first

name. We intend no disrespect.

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testified that the victims usually went to bed around 9:30 or 10:00 p.m. He stated that

Mr. Shell was seventy years old at the time of his death and had open heart surgery

several years before the murder. He agreed, however, that Mr. Shell had been a strong

man for his age.

Paul Shell, the victims’ son, testified that family members had asked the victims to

move into the residence on Owl Hoot Road in October 2010 to “watch over the place,”

after Paul’s aunt, who had been living in the residence, went to live in a nursing home.

Paul stated that the victims’ residence was located on the same tract of land as the house

where the Defendant’s great-grandmother, Carlene Smith, used to live. He explained that

Mrs. Smith had been married to Paul’s great-uncle, before he passed away in September

2010.

Paul testified that the victims normally went to bed around 10:00 or 10:30 p.m.

He went to the victims’ residence on the morning of March 4, 2011, after learning that

Will was at the residence and could not get inside. After trying unsuccessfully to pry

open the back door, Will kicked in the front door. When they walked inside the

residence, Paul saw Mr. Shell lying on the floor in the living room in front of a chair. He

then walked into the kitchen where he found Mrs. Shell. He exited the house and called

911.

Robin Surratt, the victims’ daughter, testified that Mrs. Shell was sixty-eight years

old and Mr. Shell was seventy years old at the time of their deaths. Both were retired.

Mr. Shell had “heart issues” and had undergone bypass surgery, and Mrs. Shell retired

just before her death because of her declining health. Ms. Surratt testified that Mrs. Shell

had undergone one knee replacement surgery and was “a month away from having a

second knee replacement,” and she used a walker to assist her mobility.

Jason Allison testified that he was Chief Deputy at the Lake County Sheriff’s

Department in 2011. On the morning of March 4, he responded to the victims’ residence

with two other officers. When he arrived, Paul and Will Shell were in the driveway,

“sobbing” and becoming “physically ill.” Paul told him, “They’re dead. They’re both

dead.” When he entered the front door of the residence, Deputy Allison saw Mr. Shell’s

body, but he could not initially see Mrs. Shell. During a sweep of the residence, Deputy

Allison noticed that the house had been “ransacked.” Inside the victims’ bedroom, he

saw that “there was stuff just thrown on the bed, looked like jewelry and maybe

drawers[.]” There was a wallet in the floor of the bedroom and another in the floor of the

master bathroom. After securing the residence, Deputy Allison called the Tennessee

Bureau of Investigation (TBI) to the scene.

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Deputy Allison testified that, after the discovery of the victims’ bodies, he

received a phone call from Assistant Chief Kenny Lee with the Ridgely Police

Department, who stated that he had received a tip that the Defendant was “selling some

guns.” Because he knew from the victims’ family members that there were guns missing

from the victims’ residence, Deputy Allison instructed his deputies that if they saw the

Defendant while out on patrol they should “ask him if he was selling any guns[.]”

Later that evening, Deputy Allison responded to the residence of Dennis Chisholm

after a deputy located the Defendant at the residence. The Defendant was standing in the

driveway with deputies when he arrived. Deputy Allison read the Defendant his Miranda

rights and asked the Defendant if he had been selling guns. When the Defendant

indicated that he had not, Deputy Allison asked for consent to search the Defendant’s

vehicle. The Defendant responded, “Go ahead, it’s fine. There’s nothing in there.” The

Defendant also asked, “[I]s this about the murders on . . . Owl Hoot Road[?]” During the

search of the vehicle, Deputy Allison found a knife that appeared to have blood on it in

the area of the console, and another deputy discovered costume jewelry in the trunk.

Deputy Allison knew that the victims had likely been stabbed and that costume jewelry

had been taken from the scene. Deputy Allison arrested the Defendant and placed him in

the back of a patrol car. The Defendant was later interviewed at the Lake County Jail by

TBI agents. The following morning, the Defendant’s mother came to the jail to visit him.

However, when Deputy Allison informed the Defendant that his mother was there, the

Defendant said that he did not want to see her. The Defendant said, “Just tell her I’m

sorry for everything.”

On cross-examination, Deputy Allison testified that he was given the Defendant’s

cell phone after the Defendant’s arrest but that, after leaving the Chisholm residence, he

turned the phone over to Investigator Joseph Vernon of the Lake County Sheriff’s

Department. Deputy Allison acknowledged that he had known the Defendant since the

Defendant was approximately nine years old and stated that he had not known the

Defendant to be violent. The Defendant had no prior criminal record, but Deputy Allison

had heard that the Defendant smoked marijuana and dealt drugs. Deputy Allison

acknowledged that Shondell Hill was a known drug dealer in Lake County.

Investigator Joseph Vernon testified that he responded to the victims’ residence on

the morning of March 4, with Deputy Allison. He and Deputy Allison cleared the home,

where the victims were “obviously deceased.” Investigator Vernon began taking

photographs of the scene. In the kitchen, he saw blood on the floor and several

shoeprints in the blood.

Investigator Vernon stated that he did not go to the Chisholm residence but stayed

at the crime scene until the TBI technicians finished processing the scene. He later took

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possession of the Defendant’s cell phone from Deputy Allison. Investigator Vernon

testified that, in his experience, drugs dealers often communicate through text messages

but that they “usually delete [the text messages] after they follow through with the deal or

make arrangements for the deal.” Investigator Vernon testified that he allowed defense

counsel access to the cell phone on two occasions at the TBI office in Jackson. The

Defendant’s cell phone was also sent to the TBI crime lab in Nashville for forensic

testing, where the TBI conducted a “phone dump” and pulled “all the information off the

phone.” The information from the “phone dump” was later provided to the Defendant.

Investigator Vernon recalled that, a few days after the Defendant’s arrest, Mr. Chisholm

contacted him about a laptop computer that Mr. Chisholm found in his son’s bedroom.

Investigator Vernon took possession of the laptop, which was identified as belonging to

Mrs. Shell. Investigator Vernon also recovered a digital camera belonging to the victims,

which the Defendant sold after the murders.

On cross-examination, Investigator Vernon recalled that the television was on

when he entered the victims’ residence, but the screen was blue. He testified that a gun

cabinet in the master bedroom had “a red liquid smeared” on the handle and that the

cabinet was “ajar.” He took photographs of several areas of blood. There were blood

smears on the front door and storm door. Investigator Vernon stated that, several weeks

after the Defendant’s arrest, he learned that Lake County Sheriff Bryan Avery had gone

to Boyette’s Resort on Reelfoot Lake (“Boyette’s”) as part of the investigation.

Investigator Vernon went to Boyette’s and spoke to people there, including the

housekeepers. Investigator Vernon learned that, in the days leading up to the victims’

murders, there had been “an unknown male . . . either a mixed or Mexican with short

hair” staying in a cabin rented by the Defendant. The housekeepers stated that they found

a bloody towel in the bathroom of the cabin when they cleaned up the room on the

morning of March 4. They also found “marijuana shake,” fruit juice cans, and potato

chips in the cabin. On redirect examination, Investigator Vernon explained that by the

time he spoke to the housekeepers, they did not have the bloody towel, and the cabin had

been cleaned.

Susan Lee testified that on March 4 the Defendant came by her residence to talk to

her husband, Andy Lee, at about 3:00 p.m., and Mr. Lee went outside to meet the

Defendant. After this meeting, Mrs. Lee called her father-in-law, who was Assistant

Chief of the Ridgley Police Department, and told him that the Defendant had “some guns

and stuff that he was trying to sell.” Mrs. Lee agreed that the Defendant was laid back,

quiet, and had a passive personality. She never saw him violent or angry.

Andy Lee testified that the Defendant came to his house on the afternoon of March

4, 2011. He went outside and got inside the Defendant’s vehicle because it was raining.

Mr. Lee and the Defendant smoked marijuana together, and the Defendant showed him

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several items of property, including some jewelry in a Crown Royal bag and a digital

camera. The Defendant also had four or five “long barrel guns, rifles, shotguns” in the

trunk of his car, which the Defendant was trying to sell. Mr. Lee was not interested in

purchasing the guns, so the Defendant left. Mr. Lee then told his wife about the

conversation with the Defendant.

Mr. Lee testified that he had purchased marijuana from Mr. Hill in the past. He

testified that the Defendant was not a violent person and that he had never seen the

Defendant angry or agitated. He agreed that the Defendant was not very strong or tough

and generally avoided conflict. He testified that, when he spoke with the Defendant that

afternoon, he never discussed the details of the crime scene with the Defendant.

Kenneth Lee testified that he was the Assistant Chief of the Ridgely Police

Department in March 2011. He stated that Mr. Hill lived on North Main Street in

Ridgely, about a block from the police department, and that Mr. Hill was known for

selling drugs. He testified that he had no idea if his son, Andy Lee, had a relationship

with Mr. Hill. He did not know who his son bought drugs from but agreed that his son

“used to” use drugs. He stated that he did not learn until March 2015 that his daughter-

in-law had called in the anonymous tip regarding the Defendant’s attempting to sell guns.

Laquisha Tyler testified that she purchased a digital camera from the Defendant on

March 4, 2011, for $35. She recalled that the Defendant was also attempting to sell a

laptop. She later turned the camera over to the Lake County Sheriff’s Department. Ms.

Tyler stated that she had not known the Defendant to be a violent person and agreed that

he was “a laid[-]back kind of person.”

Curt Chisholm testified that the Defendant was his best friend and that the

Defendant often stayed at his home. He stated that the Defendant was “never the type to

argue” and that the Defendant had never been violent. On the evening of March 4, the

Defendant came to his home with a laptop. The Defendant was “bagging marijuana” in

Curt’s bedroom when a deputy knocked on the door to the residence. At that time, the

Defendant walked out the back door of the residence with the marijuana in his pockets.

Deputy Patrick Leake from the Lake County Sheriff’s Department testified that on

March 4, 2011, he was instructed by Deputy Allison to try to locate the Defendant

because the Defendant had attempted to “sell some guns.” That evening, he saw the

Defendant’s vehicle at the Chisholm residence. Deputy Leake knocked on the side door

under the carport and was greeted by Dennis Chisholm. Deputy Leake asked if the

Defendant was there, and Mr. Chisholm responded, “Yeah, he’s in.” Deputy Leake then

asked for permission to enter the residence, and Mr. Chisholm stated, “Yeah, come on

in.” Deputy Leake saw Curt Chisholm inside the residence and asked him about the

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Defendant’s location. Curt responded, “He just ran out the back door.” Deputy Leake

went to the back door, which was standing wide open. He looked out the door and saw

the Defendant standing by a shed in the backyard with his hands in his pockets. Deputy

Leake said, “Hunter, come here,” and the Defendant “walked right to [him].” He told the

Defendant that he wanted to talk to him and asked the Defendant to “come out front.” He

and the Defendant walked back through the residence and out the door and then stood in

the driveway in front of the house. Deputy Leake stated that the Defendant did not

appear intoxicated. He asked for permission to pat down the Defendant for weapons, and

the Defendant consented. During the pat down, Deputy Leake found a digital scale with

marijuana residue on it and a cell phone, which Deputy Allison took into his possession.

While other officers searched the Defendant’s car, Deputy Leake obtained permission

from Mr. Chisholm to search his backyard where he found numerous baggies of

marijuana.

Deputy Jason Tubbs testified that he responded to the Chisholm residence after

hearing Deputy Leake’s radio transmission that the Defendant’s vehicle was in the

driveway of the residence. A few seconds after the initial report, Deputy Leake

announced that the Defendant was “running out the back door” of the residence. Deputy

Tubbs arrived at the residence a few minutes later as Deputy Leake and the Defendant

were walking out the front door. Deputy Tubbs asked the Defendant for consent to

search his vehicle, and the Defendant said, “Go ahead.” However, Deputy Tubbs waited

for Deputy Allison to arrive before beginning a search. After Deputy Allison obtained

additional consent from the Defendant, Deputy Tubbs assisted in the search of the

vehicle. Inside the trunk, Deputy Tubbs found a Crown Royal bag containing jewelry.

When he informed Deputy Allison what he found inside the trunk, Deputy Allison

instructed Deputy Tubbs to stop the search. In his interactions with the Defendant, the

Defendant did not appear to be intoxicated.

Dennis Chisholm testified that he was at home on March 4, when deputies arrived.

He recalled that deputies asked for his consent to search his backyard, and he provided a

lantern to help in the search. There, they found baggies containing marijuana. After the

Defendant’s arrest, Sheriff Avery instructed Mr. Chisholm to look through his house and

“see if there’s anything there that didn’t belong[.]” Mr. Chisholm found a pistol “right

outside the back door” that did not belong to him and gave it to Sheriff Avery. Several

days later, Mr. Chisholm contacted Investigator Vernon and turned over a laptop that he

had found in his son’s bedroom. Mr. Chisholm stated that he knew the Defendant well

and that the Defendant came to his house “[a]bout every day.” He stated that the

Defendant was “[m]ild mannered. Nice. Courteous.” He never saw the Defendant angry

or acting in a violent manner.

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Lake County Sheriff Bryan Avery testified that he responded to the crime scene on

March 4 with Investigator Vernon and Deputy Allison, where he was advised that several

items of property were missing from the residence, including a camera, laptop, and guns.

Sheriff Avery also responded to the Chisholm residence that evening. The Defendant

was standing in the driveway with several deputies “standing around.” After Deputy

Allison obtained permission from the Defendant to search the Defendant’s vehicle,

Sheriff Avery opened the driver’s side door of the car and noticed a knife in the front

console. He took the knife out of its sheath and noticed that the knife had what appeared

to be a dry, red substance where the handle met the blade. Sheriff Avery recalled that he

collected a .22 caliber pistol with white paint on it from Mr. Chisholm, which was later

identified as belonging to the victims.

On cross-examination, Sheriff Avery stated that between September and March of

2011, he was not aware of any Mexican gangs, cartels, or the Mexican Mafia operating in

rural West Tennessee. Sheriff Avery testified that, on March 5 or 6, he received a phone

call from Judy Capps, who informed him that the Defendant “had rented a room from

her” at Boyette’s. Sheriff Avery went to the resort and spoke to Ms. Capps and two

housekeepers. The housekeepers said that a “Hispanic person, maybe Puerto Rican” had

stayed in Cabin 9—the cabin rented by the Defendant. Sheriff Avery went inside Cabin 9

and saw that it had been cleaned. Although he did not preserve the cabin, take

photographs, or take a formal statement from the housekeepers, Sheriff Avery informed

the TBI about Cabin 9. Sheriff Avery acknowledged that he did not file a written report

about having been to Boyette’s until October 2013, after the defense asked about Cabin 9.

He stated that, when he wrote the report, he was aware that there had been the “largest

single marijuana farm in the history of Tennessee” located on a bluff above Reelfoot

Lake in Obion County. Sheriff Avery testified that the marijuana had been found on a

farm leased for hunting purposes by a trooper with the Tennessee Highway Patrol, Brian

Wright. Sheriff Avery stated that Trooper Wright was being investigated but had not

been charged with anything related to the marijuana grow.

Special Agent Julian Conyers testified that he was a forensic scientist with the TBI

and was a member of the Violent Crime Response Team (“the Response Team”). He

testified that the Response Team arrived at the victims’ residence at 2:54 p.m. on March

4. Agent Conyers videotaped the crime scene and collected evidence. He collected a

bloody shoeprint on the linoleum floor in the kitchen by cutting out the piece of linoleum.

He also collected evidence from the Defendant’s vehicle, including a knife in a sheath

from the gear shift area of the vehicle. The Response Team released the crime scene to

the TBI agents in charge of the investigation at 8:40 p.m.

Special Agent Lawrence James testified that he was a forensic scientist, who

supervised about twenty other forensic scientists at the TBI crime lab in Memphis. Agent

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James responded to the crime scene with the Response Team on March 4. He testified

that his job at the scene was to perform screening tests for potential blood stains. He

recalled that the victims appeared to have “had their throats cut” and that there were large

amounts of blood at the scene. He collected a bloody washcloth found in the master

bathroom. Agent James also took swabs of what appeared to be blood stains from the

inside of the front door and door knob, the exterior screen door, the handle to a gun

cabinet in the master bedroom, and off of the surface of Mr. Shell’s body. He explained

that Mr. Shell was lying face down, and there were what appeared to be “essentially

vertical blood drops . . . on his skin[.]” Agent James cut out a stained area from a sheet

on the bed in the master bedroom and took a cutting from the love seat in the living room

because it contained a blood stain that “was a little bit suspicious” because it was

“removed . . . by ten feet or so from . . . the rest of the activity[.]”

Dr. Marco Ross, the Deputy Chief Medical Examiner for Shelby County, testified

that he conducted the victims’ autopsies. Mrs. Shell had multiple “sharp force[] injuries”

that were the result of stabbing or cutting motions with a sharp instrument. He identified

seven sharp force injuries to her head and neck area, a stab wound just above her breast

bone, and another stab wound in her right upper arm. Additionally, Mrs. Shell suffered

stab wounds to her left temple and left upper cheek and a “v-shaped wound” “right

behind the angle of the jaw.” He noted that there was an “incised wound” to the lower

front part of Mrs. Shell’s neck which was a “zigzag wound” that penetrated three inches

and completely transected the larynx. Dr. Ross explained that this wound “completely

cut across the right carotid artery on the right side of the neck,” and it cut across the left

jugular vein, esophagus, and into the “spine itself.” He testified that the cutting of the

jugular vein and carotid artery would result in a “tremendous amount of blood loss.” He

stated that this wound would have caused death quickly. Dr. Ross identified an area of

hemorrhage in the scalp on the back of Mrs. Shell’s head which was likely the result of

“blunt force[] impact” and was consistent with Mrs. Shell hitting her head on the

linoleum floor. He noted scratches on the underside of her left wrist that could have been

defensive wounds.

Regarding Mr. Shell, Dr. Ross testified that he had “multiple sharp force[]

injuries.” Mr. Shell suffered multiple stab wounds in the head, neck, left chest, and back,

and he had an incise wound to his right hand. Dr. Ross described the injuries to Mr.

Shell’s neck as four sharp force injuries on the right side that combined features of stab

and incise wounds and another stab wound towards the front of the neck that penetrated

three inches and cut across the carotid artery. Dr. Ross stated that this injury alone was

sufficient to cause Mr. Shell’s death. However, Dr. Ross found additional stab wounds

behind Mr. Shell’s left ear and on the back of his neck which penetrated four inches; two

stab wounds at the base of the neck; a stab wound to the left upper chest area that went

into the upper part of the left lung and was sufficient to cause death; a stab wound to the

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left upper back; and another stab wound to the right upper back. Dr. Ross also found an

incise wound on Mr. Shell’s right hand, which was “potentially a defensive wound.” He

stated that, in both victims, he found that the hyoid bone had been cut.

Special Agent Donna Nelson, a forensic scientist with the TBI, testified that she

responded to the crime scene on March 4, 2011, as the leader of the Response Team. In

that role, she directed other team members in their collection of items of evidence. Agent

Nelson stated that sixteen pieces of evidence were collected at the crime scene and that

twenty-seven items of evidence were collected in total. Agent Nelson explained that

subsequent testing showed that the blood stains from inside the front door, on the gun

cabinet handle, the washcloth in the bathroom, and on the sheet in the master bedroom

were a mixture of DNA from both victims. The swab of the front door knob failed to

indicate the presence of human DNA, and no DNA profile was obtained from the stain on

the exterior screen door due to insufficient or degraded DNA. Agent Nelson explained

that the testing of the items collected did not reveal the presence of DNA from someone

other than the victims.

Agent Nelson also tested the Defendant’s boots and bib overalls, but a

presumptive test failed to indicate the presence of blood. However, a presumptive test

did indicate blood on the Defendant’s sweatshirt. Further DNA testing on two areas of

the sweatshirt revealed a mixture of genetic material, in which Mr. Shell was the major

contributor. She stated that she tested the sleeve and the chest area of the sweatshirt and

found Mr. Shell’s DNA profile. Additionally, the knife from the console of the

Defendant’s vehicle was tested, and Agent Nelson found a DNA profile consistent with a

mixture of both victims’ DNA. Agent Nelson testified on cross-examination that the

knife from the Defendant’s vehicle was not checked for fingerprints, and the Response

Team did not have a blood spatter expert. Agent Nelson agreed that what appeared to be

a fingerprint in blood on Mrs. Shell’s walker was not collected or swabbed. However,

she stated that the crime scene documentation and analysis, photographs, and narrative

descriptions complied “with the standards that we have.” On redirect, the following

exchange took place:

Q. In your experience as a crime scene technician was there any

evidence with any apparent evidentiary value that was not collected at the

Shell residence?

A. Not to my knowledge.

Special Agent Suzann Lafferty, a forensic scientist with the TBI and expert in

fingerprint analysis, testified that she received a glass light cover from the front porch of

the victims’ residence, two wallets, a jewelry box, and jewelry from the Defendant’s

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trunk; she tried to lift latent prints from the items but found none. She also attempted to

lift and identify latent prints from the .22 pistol but was unable to identify any latent

prints. Agent Lafferty stated that the following items were not tested for latent prints: the

victims’ gun cabinet, front door and doorknob, exterior storm door, the knife from the

Defendant’s car, and the victims’ laptop.

TBI Special Agent Linda Littlejohn testified that she compared the tread designs

of the boots the Defendant was wearing at the time of his arrest to the linoleum cuttings

of the bloody shoeprints taken from the crime scene. The tread design appeared to be

similar, so she made a test impression. She found that three of the four partial

impressions from the crime scene were “consistent with the right boot . . . with size,

shape and tread design; and, therefore, that right boot or another right boot with those

same class characteristics could have made that impression.”

Alaina Kring testified that, in March 2011, she worked as a special agent with the

TBI in the Medicaid Fraud Control Unit. On March 4, she responded to the crime scene

with the lead investigator, Special Agent Nathan Bishop. She later assisted Agent Bishop

during his interview with the Defendant. The Defendant said that he had been drinking

beer and had taken Xanax earlier that day, but Agent Kring saw no signs that the

Defendant was intoxicated at that time. The Defendant indicated that he understood his

Miranda rights and was willing to answer questions. Agent Kring took four pages of

notes of the interview. She reviewed the notes with the Defendant, and he initialed each

page, and signed and dated the notes. She recalled that the Defendant was “very calm”

during the interview and that Agent Bishop only asked him a few questions. She stated

that the Defendant never indicated that anyone else was involved in the murders.

TBI Special Agent Cathy Ferguson testified that she also responded to the crime

scene to assist Agent Bishop and participated in the Defendant’s interview. The

Defendant told the agents that he “knew what happened out on Owl Hoot Road, but [the

agents] didn’t know if he was involved unless he told us.” The Defendant said that “he

thought it happened during a black-out, and then went on to say that maybe it was during

a dream.” The Defendant “gave specific details about the crime scene[.]” Agent

Ferguson stated that no one told the Defendant about the positioning of the victims’

bodies inside the residence, and no one told him that the victims had been killed with a

knife. However, the Defendant said that “it must have been a knife,” and he mentioned

that Mr. Shell was “lying in the living room or near the kitchen.” The Defendant

correctly described the linoleum kitchen floor, which he said “look[ed] like tile.” When

Agent Bishop specifically asked the Defendant if anyone else was involved, the

Defendant stated that “he was alone.” On cross-examination, Agent Ferguson stated that

Agent Bishop never specifically asked the Defendant if he had killed the victims.

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Special Agent Nathan Bishop of the TBI testified that, after learning of the tip that

the Defendant was attempting to sell weapons, he instructed officers to find the

Defendant and ask him about the information. Agent Bishop responded to the Chisholm

residence after the Defendant was located there. Agent Bishop informed the Defendant,

who was in the back of a patrol car, that he was being arrested on drug-related charges

and that deputies had found a knife while searching his vehicle. Agent Bishop asked the

Defendant if he would be willing to talk to him, and the Defendant agreed. The

Defendant did not appear to be intoxicated.

While at the sheriff’s office, the Defendant executed a written waiver of his

Miranda rights. At the beginning of the interview, the Defendant said to Agent Bishop,

“Look, I know you know what happened, but you don’t know I was involved unless I tell

you.” According to Agent Bishop, the Defendant then acknowledged involvement in the

murders. He did not seem to be afraid, and he never mentioned that other people were

involved in the murders.

A few days after the murders, Agent Bishop learned that the Defendant had rented

a cabin at Boyette’s and that “a Puerto Rican[] had been there with him.” Although he

considered that it was potentially a secondary crime scene, Agent Bishop stated that he

did not have the scene processed because it was “two or three days after the homicide[s],

and . . . it was already cleaned.” On cross-examination, Agent Bishop explained that no

one from the Response Team dusted for fingerprints at the victims’ residence. He stated

that the crime scene was “released” to the victims’ family at 8:45 p.m. on March 4. He

said that, in looking at the kitchen and living room of the victims’ residence, he did not

see any indication of a violent struggle between multiple people. He explained, “[T]he

furniture was not overturned or anything like that.” Agent Bishop opined that the crime

scene appeared to be a drug-related robbery and murder. He acknowledged, however,

that there was still a one hundred dollar bill in Mr. Shell’s wallet at the crime scene.

Defendant’s Proof

David Eddlemon testified that in the late afternoon of March 2 or March 3, 2011,

he was at a store near Boyette’s when he was approached by a Hispanic man, who asked

Mr. Eddlemon if he knew the Defendant, if he could “get in touch” with the Defendant,

and where the Defendant lived. Mr. Eddlemon stated that the Hispanic man got out of a

gold or tan Jeep Grand Cherokee, and there were two other people in the vehicle.

Judy Capps testified that she was the owner and operator of Boyette’s, located on

Reelfoot Lake. Ms. Capps recalled that on March 1, 2011, the Defendant came to the

resort to ask about the cost of renting a cabin for three nights. Ms. Capps provided the

Defendant a total, and the Defendant said, “[L]et me go talk to my buddy to see if that

- 12 -

was okay with him.” The Defendant went outside, but Ms. Capps did not see the

individual mentioned by the Defendant. The Defendant came back in and rented Cabin 9

for three nights, paying in cash. Ms. Capps explained that Friday, March 4 would have

been the day that the Defendant was expected to check out of the cabin. She stated that

she did not see the Defendant the rest of the week, and she did not know who stayed in

Cabin 9 between March 1 and March 4. Ms. Capps stated that, when a cabin was

cleaned, housekeepers collected the trash, towels, and sheets from the cabins. The trash

was placed in a dumpster at the end of the row of cabins, and the dumpster would not

have been emptied until it was full. When housekeeping collected the towels and sheets,

the items would be “[a]ll lumped together” in a large bag and stored at a laundry shed

until the laundry service collected them every Thursday. She stated that there was not a

separate laundry bag for each cabin but that all of the resort’s sheets and towels went into

the same large bag. Ms. Capps explained that it was not unusual for housekeeping to

remove bloody towels from the cabins because guests would use the cabins to clean fish.

She recalled that, at the time the Defendant rented Cabin 9, a fishing tournament was

being held at Reelfoot Lake. Ms. Capps recalled that she spoke to Sheriff Avery several

days after she learned of the Defendant’s arrest. Ms. Capps stated that Cabin 9 was next

rented on Monday, March 7, 2011.

Dorothy Patterson testified that in March 2011, she and her daughter, Connie

Nugent, worked as housekeepers at Boyette’s. She recalled that from March 1 to March

4, Cabin 9 was rented. During that week, she knocked on the door to the cabin to ask if

the occupants needed any towels. A man opened the door just far enough that she could

see his face. Ms. Patterson described the man as “maybe Mexican or part Mexican” with

a “real full face and black hair.” She stated, however, that this man did not have “much

of an accent.” Ms. Patterson also recalled seeing a “tannish-gray” car parked between

Cabin 9 and Cabin 8, but Cabin 8 was not rented at the time. Ms. Patterson testified that

on Friday, March 4, two men exited Cabin 9 and got into the tannish-gray car. She only

saw the men from the back but described the driver as heavy-set man wearing tan pants

and a striped shirt and the passenger as a taller, white man, wearing a light blue shirt and

tan pants.

When Ms. Patterson and Ms. Nugent entered Cabin 9 to clean it later that day, it

appeared that two of the three beds had been used. They also found about “a cup-full” of

“marijuana seed” all over the floor of the cabin and three half-gallon containers of fruit

punch, one of which had not been opened. Inside the bathroom, Ms. Patterson saw a

towel laying in the floor that had “a little blood on it.” She rolled all the towels up and

put them into a large laundry bag along with the sheets. Ms. Patterson recalled that

Sheriff Avery came out to Boyette’s to interview her the day after she learned of the

Defendant’s arrest. She told Sheriff Avery that she had not seen the Defendant at Cabin

9 the whole week. On cross-examination, Ms. Patterson agreed that she had not been

- 13 -

suspicious of anything she found while cleaning Cabin 9. She stated that finding a towel

with a small amount of blood on it was not unusual.

Connie Nugent testified that she worked as a housekeeper at Boyette’s. Ms.

Nugent recalled that Cabin 9 was rented for the week of March 1, 2011. She recalled

that, during that week, she knocked on the door to Cabin 9 to ask the occupants if they

needed any towels. A “black-Mexican” man with a “round face” answered the door and

said that they did not need anything. During the week, a “golden-champagne color” Ford

car with a Texas license plate was parked between Cabin 8 and Cabin 9. Ms. Nugent

testified that after the occupants checked out of Cabin 9 on Friday, March 4, she cleaned

the cabin. Inside the cabin, Ms. Nugent found marijuana seeds all over the floor, along

with two “big jugs” of fruit punch. On Saturday, Sheriff Avery came to Boyette’s and

asked Ms. Nugent if she had seen any blood in Cabin 9. Sheriff Avery then went into the

cabin and looked around.

Cousins, Brandon and Brian Jines, testified that in March 2011, they participated

in the Crappie Masters Tournament on Reelfoot Lake and stayed at Boyette’s during the

fishing tournament. On Saturday morning, March 5, they saw a Jeep Cherokee enter a

grassy area next to Brandon’s truck and boat with its headlights turned off at about 4:45

a.m. The jeep went through the grass and back onto the road and then moved behind a

boat shed. The jeep stayed behind the boat shed for five or ten minutes. It then pulled

out in reverse and with its headlights on and drove down the road, in reverse, at a high

rate of speed. Brandon saw two people in the jeep but could not tell what they looked

like. He thought that the driver was “shorter” and that passenger was “a little bit taller.”

He also noticed that the passenger wore a beanie or sock cap on his head. Brian testified

that he saw two occupants in the vehicle but that he could not identify them.

Callie Hinson testified that she was the Defendant’s friend and had known him for

fifteen years. She testified that she would occasionally go with the Defendant to Mr.

Hill’s residence to buy marijuana. Ms. Hinson stated that Mr. Hill had the reputation as a

drug dealer in the community. Ms. Hinson recalled that on March 3, 2011, the Defendant

picked her up in Tiptonville at Decker’s gas station around 6:00 p.m., and the Defendant

eventually picked up two other friends, Matt Corum and Chelsey Windsor. Ms. Hinson

explained that they rode around, smoking marijuana and drinking beer, for about four and

a half hours. She recalled that they went to the fire department so that the Defendant

could look at a four-wheeler. They then went to Ridgely to get gas for the Defendant’s

vehicle sometime before 9:00 p.m. and then went to Tobacco Dock, a tobacco store.

They also went to Denver Harris’ house to pick up a CD. They rode “out by the river, in

the country[.]” Ms. Hinson stated that the Defendant did not seem angry or disturbed

when he dropped her off at Decker’s gas station around 10:15 p.m. to 10:30 p.m. She

stated that she had never seen the Defendant become violent or lose his temper, even

- 14 -

when he was drinking and using marijuana and Xanax. She recalled that the Defendant

was wearing a pair of camouflage bib overalls, blue jeans with torn ends that dragged on

the ground, a black shirt, a white hat, and boots.

On cross-examination, Ms. Hinson agreed that she had previously signed two

affidavits in which she stated that the Defendant dropped her off at Decker’s gas station

sometime between 9:00 p.m. and 10:00 p.m. She agreed that the Defendant was using his

phone while in his vehicle and recalled that he was “texting.” Ms. Hinson acknowledged

that they also went to Mr. Hill’s residence that night, where the Defendant purchased

marijuana.

Matthew Corum, the Defendant’s friend, testified that he had known the

Defendant his entire life and that he had never seen the Defendant lose his temper or act

in anger. On the evening of March 3, 2011, the Defendant picked up Mr. Corum at his

residence sometime between 6:00 p.m. and 7:30 p.m. Mr. Corum recalled that the

Defendant was wearing “[h]unting bibs,” which the Defendant wore often. After picking

up Ms. Windsor, they rode around smoking marijuana, drinking beer, and taking pills.

They went to the river, Pat’s service station, Tobacco Dock, to Andy Lee’s residence, to

Denver Harris’ house, and stopped by the fire station. Mr. Corum recalled that they also

stopped at a bank. Mr. Corum testified that the Defendant dropped him off at his

residence about 10:00 p.m. or 10:30 p.m. He stated that the Defendant did not act

unusual that night and did not appear angry about anything.

Joseph Jones and Sherry Price testified that they were working at the Tobacco

Dock on the night of March 3 when they received a phone call from the Defendant about

9:00 p.m. The Defendant said that he would be at the store in two minutes and asked that

Mr. Jones not close the store. When the Defendant arrived, Mr. Jones and Ms. Price

unlocked the front door and let him in. Mr. Jones noted that Mr. Corum, Ms. Hinson, and

Ms. Windsor were with the Defendant. The Defendant wore “some bibs and a long

sleeve dark shirt.” The following day, March 4, the Defendant came into the store

between 6:00 p.m. and 7:00 p.m. when Mr. Jones and Ms. Price were working. The store

was full of people, and Mr. Jones and Ms. Price were talking about the victims’ murders

at the time the Defendant entered the store. Mr. Jones said that “a lot of rumors [were]

going around” and that he had heard that the victims had been shot. Ms. Price said that

she had heard that the victims had been “murdered, and stabbed, and Mr. Shell was by

the recliner and Ms. Shell was in the kitchen . . . .” Mr. Jones testified that the Defendant

had on what appeared to be the same clothing from the previous night.

Denver Harris testified that he lived in Ridgely on Poplar Street with his parents.

On the evening of March 3, the Defendant’s brother, Caylan Bargery, was spending the

night with Mr. Harris when Caylan received a phone call from the Defendant. Caylan

- 15 -

then went outside and placed the keys to his truck in the mailbox between 9:30 p.m. and

10:00 p.m.

Michael Reynolds and Katherine Jones testified that on the evening of March 3,

2011, they saw the Defendant and his “gold-ish . . . tannish” colored Nissan Altima at the

Regions Bank ATM in Tiptonville at about 10:00 p.m. They recalled that the Defendant

obtained money from the ATM machine and then got back into his vehicle, which

contained two or three other people.

Caylan Bargery, the Defendant’s youngest brother, testified that on the morning of

March 3, 2011, the Defendant drove him to school. That morning, the Defendant was

wearing his bib overalls and boots. Caylan recalled that the Defendant owned only one

pair of bib overalls and one pair of boots. Later that night, the Defendant retrieved a CD

from Caylan’s truck after he called Caylan from Ms. Hinson’s cell phone around 9:30

p.m. or 10:00 p.m. The following morning, Caylan went into the Defendant’s bedroom

and asked for the keys to his truck back. The Defendant appeared to have been sleeping

but told Caylan that the keys were either in his bib overalls or pants. The Defendant did

not get up, and Caylan pulled the keys out of the pants. Caylan acknowledged that he

had previously smoked marijuana with the Defendant and that he had gone with the

Defendant to Mr. Hill’s residence to purchase marijuana. Caylan explained that Mr. Hill

was a known drug dealer in Lake County. He testified that he had never seen the

Defendant lose his temper or get angry at anyone and stated that the Defendant was

always “laid back.”

Rhonda Strube testified that she worked as an adjunct instructor at Dyersburg

State Community College and that the Defendant had been one of her students. She

recalled that, on the morning of March 4, the Defendant took a make-up test, which he

finished in about fifteen or twenty minutes. After taking the test, the Defendant asked to

leave class early.

Matthew Knox, the Defendant’s cousin, testified that he met the Defendant around

lunchtime on March 4 at the levee. Mr. Knox explained that he and the Defendant had

previously decided to take a boat ride on the river. He recalled that, when he pulled up at

the levee, the Defendant and his car were on top of the levee. There was a small fire that

looked like the Defendant may have been “burning some trash out of his car, like bottles

and paper, stuff like that.” Mr. Knox said that, while he put the boat into the water, the

Defendant met with someone at the bottom of the levee, but he did not see the individual.

Mr. Knox testified that he and the Defendant were in the boat on the river for about an

hour or hour and a half. While on the water, the Defendant drank beer and smoked

marijuana. Mr. Knox thought that the Defendant “seemed a little stressed about money”

because the Defendant “kept counting his money[.]” Mr. Knox stated that, later that day,

- 16 -

the Defendant stopped by his home. Mr. Knox got into the Defendant’s vehicle, and they

went to a carwash in Tiptonville, where they met Tony Hayes, and the Defendant sold

Mr. Hayes a gun. After this meeting, the Defendant and Mr. Knox went to their

grandfather’s2 shop where the Defendant “put a couple of other guns out there in an old

trailer.” He recalled that he had previously seen the Defendant put a push mower and a

couple of chain saws in the trailer. He testified that he thought the Defendant had

obtained the items from “crack heads.” Mr. Knox said that, by this time, he had heard

about the murders but did not know that there were guns missing from the crime scene.

He stated that, when he went back out to the trailer three weeks later, the guns were gone.

Mr. Knox testified that he had never seen the Defendant angry or lose his temper.

Regina Bargery, the Defendant’s mother, testified that the Owl Hoot area where

the murders occurred was a “little community” close to the Dyer County line. She

explained that the Defendant’s great-grandmother, Mrs. Smith, lived in a house in the

Owl Hoot community until the “first part of 2010.” Mrs. Bargery explained that Mrs.

Smith’s home was located across a field from the victims’ residence. Mrs. Bargery

explained that the Defendant was twenty years old in March 2011. She described the

Defendant’s personality as “[f]un-loving, outgoing, laid back” and “[v]ery

compassionate.” The Defendant showed no tendency toward violence. She recalled that

the Defendant was living at home in March 2011. She saw the Defendant on the

mornings of March 3 and 4, and on both mornings, the Defendant was wearing a pair of

camouflage bib overalls, jeans, a pair of boots, and a black long-sleeve, insulated shirt.

On the morning of March 4, the Defendant spoke to Mrs. Bargery in her hair salon,

located at the back of their residence before he went to school at Dyersburg State

Community College.

Around 11:00 a.m. on March 4, Mrs. Bargery called the Defendant and told him

that she had heard that the victims had been shot and killed. Sometime before midnight

on March 4, she received a phone call from someone saying that the Defendant had been

arrested. When she arrived at the jail, she learned that the Defendant had been arrested

for marijuana possession. She went back home without seeing the Defendant. Minutes

later, several deputies arrived at her home. Deputy Allison told her that the Defendant

had been arrested for the victims’ murders. She gave them permission to search the

home, and deputies seized various items belonging to the Defendant. Mrs. Bargery

testified that the Defendant did not need money. He worked and had access to additional

money from his grandparents if he needed it. Mrs. Bargery recalled that the Defendant

called her from jail the day after his arrest and told her that he was sorry. The Defendant

was crying and upset. During the call, the Defendant spoke to his brother and said,

“Caylan, I’m sorry, I F’d up[.]”

2

Mr. Knox testified that he and the Defendant had the same grandfather.

- 17 -

Rachelle Chisholm testified that she lived on Headden Drive in Tiptonville in

2011 with her husband and son, Curt. Mrs. Chisholm explained that Curt and the

Defendant were best friends and that the Defendant spent time at their residence most

days. Mrs. Chisholm described the Defendant as a “tender-hearted, kind, [and]

considerate[.]” She recalled that she saw the Defendant twice on March 3, 2011, and that

the Defendant was wearing bib overalls, a long sleeved black shirt, blue jeans, and boots.

The Defendant was also at her residence on March 4, the evening of his arrest. She

testified that the Defendant “didn’t seem himself” that evening. She stated, “I didn’t

smell any alcohol on him, but he seemed like he had taken something.” Mrs. Chisholm

recalled that the Defendant bumped into a cart in their kitchen twice, knocking items to

the floor. She further recalled that the Defendant was wearing the same clothing as the

previous day.

Ryan Bargery, the Defendant’s younger brother, testified that in March 2011, the

Defendant owned one pair of camouflage bib overalls and one pair of boots. Ryan

admitted that he used to smoke marijuana with the Defendant. He further stated that he

knew Mr. Hill and that Mr. Hill was a drug dealer in the community. Ryan explained that

he had never seen the Defendant in a fight, get angry, or lose his temper.

The Defendant testified that he graduated from high school in 2008. He explained

that he began using marijuana and “experimenting with pills” while in high school. After

graduation, the Defendant worked at a boat dock, Cypress Point Resort, until the time of

his arrest in March 2011 when he was twenty years old. The Defendant testified that, at

that time, he was enrolled in Dyersburg State Community College and needed two

additional classes for his degree. The Defendant testified that by the time of his arrest he

was using marijuana “several times a day, every day[,]” and he took Xanax. He

explained that the marijuana and Xanax made him “real mellow” and calm. The

Defendant said that he smoked marijuana with several friends, including Andy Lee. He

stated that he met Shondell Hill, “[t]he drug dealer there in Ridgely,” through Mr. Lee in

2007 or 2008 when the Defendant was seventeen or eighteen years old. The Defendant

recalled that he would buy marijuana from Mr. Hill “almost every day.” The Defendant

often went to Mr. Hill’s residence in Ridgely, where he would “hang out” and play video

games with Mr. Hill. The Defendant stated that he believed that he and Mr. Hill were

“good friends.” They would “ride around and smoke” in the Defendant’s vehicle because

Mr. Hill did not have a driver’s license and did not want to drive. The Defendant

explained that he eventually began taking Mr. Hill to various locations in Lake County

for Mr. Hill to sell drugs and deliver marijuana. The Defendant stated that he knew that

Mr. Hill was affiliated with a gang, but he never asked Mr. Hill which gang. He stated

that he benefitted from driving Mr. Hill around to sell marijuana because the Defendant

“was basically getting free marijuana from [Mr. Hill]” for driving. Regarding Mr. Hill’s

- 18 -

client base, the Defendant stated that it was “[a]nywhere from Dyersburg to Union City

and Lake County.”

The Defendant recalled that, by 2010, he was at Mr. Hill’s residence playing video

games and using marijuana “close to every other day[.]” The Defendant recalled a time

in 2010 when he and Mr. Hill were out riding on Owl Hoot Road when he pointed out his

great-grandmother’s house. The Defendant stated, “When we passed by my great-

granny’s house I just off-hand said that’s where my great-grandmother lived. That’s

where she lives, just pointing it out.” The Defendant explained that the Owl Hoot

community consisted of five or six houses and that only two houses were close to one

another—the victims’ residence and the house where his great-grandmother had lived

before she moved closer to town. However, the Defendant testified that he had not

known the victims and had been unaware that they lived in the residence. He believed

that Doris Spence, his great-grandmother’s sister-in-law, lived in the home.

The Defendant explained that he occasionally sold items for Mr. Hill, such as

electronics, phones, and guns, and that Mr. Hill would split the proceeds from such sales

with him or pay him in marijuana. The Defendant explained that he would smoke some

of the marijuana and also bag some of it to sell to friends. The Defendant stated that Mr.

Hill would sometimes place items in his vehicle for the Defendant to sell.

The Defendant testified that the first time he saw Joel Hernandez was at the

Greyhound bus station in Memphis in 2010. He explained that Mr. Hill had asked him to

drive to Memphis and pick up Mr. Hernandez and Mr. Hernandez’s girlfriend and bring

them to Lake County. When he and Mr. Hill picked up Mr. Hernandez, Mr. Hernandez

had two suitcases with him. Mr. Hill did not introduce the Defendant to Mr. Hernandez

at that time.

The Defendant recalled that he picked up Mr. Hernandez from the Greyhound bus

station in Memphis a second time on March 1, 2011. He explained that he had rented

Cabin 9 at Boyette’s the day before. He explained that he rented the cabin in his name

because Mr. Hill “didn’t want the cabin to be in his name.” Mr. Hill told the Defendant

that he would give the Defendant marijuana and cash for picking up Mr. Hernandez and

renting the cabin. According to the Defendant, Mr. Hernandez was supposed to be at

Cabin 9 from Tuesday, March 1 through Friday, March 4. Mr. Hill rode to Memphis

with the Defendant to pick up Mr. Hernandez. When they arrived, the Defendant went

into the bus station to get Mr. Hernandez. Mr. Hernandez had two suitcases and a duffle

bag. He helped Mr. Hernandez with the luggage and stated that they each weighed about

forty to fifty pounds. The Defendant drove to Cabin 9 to drop off Mr. Hernandez, but he

did not go inside with Mr. Hernandez and Mr. Hill. The Defendant recalled that, when

Mr. Hill exited the cabin, he had a tote bag full of marijuana.

- 19 -

The Defendant and Mr. Hill then drove to the Kentucky state line where Mr. Hill

met with some men in a car around midnight to sell marijuana. The Defendant recalled

that Mr. Hill initially approached the other car and spoke to the occupants. He then took

out one of the bricks of marijuana from the tote bag and showed it to the occupants. A

few minutes later, Mr. Hill called Mr. Hernandez. During the call, Mr. Hill was

“vehemently explaining to [Mr. Hernandez] what he was trying to tell him in the phone

call.” After speaking to Mr. Hernandez, Mr. Hill grabbed the tote bag and handed it to

the people from Kentucky. When Mr. Hill returned to the Defendant’s vehicle with the

tote bag, the bag was empty. The Defendant then drove Mr. Hill to Cabin 9.

The Defendant testified that on the morning of March 2, he put on a black shirt,

camouflage bib overalls, a pair of blue jeans, white hat, and boots before going to school.

He stated that he owned only one pair of bib overalls and that the cuffs of his blue jeans

dragged the ground when he walked. He testified that he wore the same clothing the rest

of the week. After class, the Defendant picked up Mr. Hill, and they drove back to Cabin

9. Mr. Hill went inside the cabin and came out with Mr. Hernandez’s duffle bag, which

was full of marijuana. The Defendant then drove Mr. Hill to several locations where Mr.

Hill sold the marijuana to various individuals. At one location, Mr. Hill delivered

anywhere from five to nine bricks of marijuana. When Mr. Hill returned to the car, he

pulled out “an amount of money folded over.” The Defendant stated that it was “a lot of .

. . bills.” He then drove Mr. Hill to Peach Tree Apartments where Mr. Hill again

delivered a quantity of marijuana in exchange for cash. They drove from Dyersburg to

Union City, and Mr. Hill delivered more marijuana. After leaving Union City, the

Defendant heard a phone call between Mr. Hill and Mr. Hernandez. He then drove Mr.

Hill back to Cabin 9, and they both went inside. The Defendant testified that there was

“an intense discussion” between Mr. Hill and Mr. Hernandez at that time and that it

looked like the men were going to fight. Mr. Hernandez was angry and scared and

“wasn’t happy with the way things were going.” The Defendant explained that, although

the agreed-upon sale price for the marijuana had been between $1100 and $1300 per

pound, Mr. Hernandez was “getting considerably less” from Mr. Hill—around $700 to

$800 per pound. The Defendant testified that Mr. Hernandez got his marijuana from

Texas “[f]rom the people that sent him down.” The Defendant stated that he was only in

Cabin 9 on March 2.

The Defendant recalled that he went to school early the next day to take an exam.

About thirty minutes before the exam, Mr. Hill called the Defendant and told him that

Mr. Hernandez was going to be leaving that day. Mr. Hill wanted the Defendant to drive

Mr. Hernandez to a different Greyhound bus station in Jackson. Mr. Hernandez left his

duffle bag with Mr. Hill for Mr. Hill to finish selling the marijuana. Mr. Hill was

- 20 -

“supposed to get the money and send it on to [Mr. Hernandez] after he got through

selling it.”

The Defendant drove Mr. Hernandez alone to Jackson, and they smoked marijuana

on the way there. The Defendant recalled that, during the drive, Mr. Hernandez began

shaking, rubbing his face, and mumbling to himself. Mr. Hernandez seemed “real

stressed out.” Mr. Hernandez told the Defendant that, “from now on,” the Defendant

would be picking up him and the marijuana in Texas instead of Mr. Hernandez’s taking a

bus. Mr. Hernandez also stated that the Defendant was “gonna be selling more

marijuana, a lot of . . . large amounts of marijuana.” The Defendant testified that this was

when he “realized [he] was in way over [his] head,” and he explained to Mr. Hernandez

that he could not do that. However, Mr. Hernandez did not accept the Defendant’s

refusal. Mr. Hernandez asked the Defendant for his phone number because he wanted to

be able to contact the Defendant. Mr. Hernandez then stored his phone number in the

Defendant’s cell phone under the name “Lobo.” The Defendant stated that, rather than

arguing with Mr. Hernandez, he decided to talk to Mr. Hill about the plan. He believed

that Mr. Hill would “be reasonable” about the situation because Mr. Hill knew that the

Defendant lived at home with his mother. The Defendant recalled that Mr. Hernandez

made several phone calls during the drive and that he spoke in Spanish during the calls.

At one point, he heard Mr. Hernandez say, “Mi cholos,” but he did not know what that

meant.

The Defendant stated that he called Mr. Hill as soon as he dropped off Mr.

Hernandez in Jackson. The Defendant explained that, when he called Mr. Hill about his

conversation with Mr. Hernandez, Mr. Hill initially told him to “calm down” and that

“[i]t’s not gonna be that often[.]” During a second phone call with Mr. Hill, Mr. Hill was

angry and would not listen to the Defendant. Mr. Hill was mad at Mr. Hernandez “for

approaching [the Defendant] to sell marijuana.” The Defendant drove to Mr. Hill’s

residence to further discuss the situation. When he arrived, Mr. Hill was “very mad” at

the Defendant and began “grilling” him about what the Defendant had said to Mr.

Hernandez. The Defendant assured Mr. Hill that he had “take[n] up” for Mr. Hill and

told Mr. Hernandez that he could not sell marijuana or drive for Mr. Hernandez.

However, Mr. Hill did not believe the Defendant. The Defendant stated, “I thought at

any moment [Mr. Hill] was just gonna rear back and . . . smack me.” He said that he was

scared of what Mr. Hill was accusing him of and felt threatened by Mr. Hill. The

Defendant testified:

Because what we were talking involved way, way, way more than what I

was prepared to do and it was on so many levels on top of what I was, what

I could ever be. And I knew that there was [sic] some serious people

involved and I couldn’t -- I didn’t want to be involved in this. And they

- 21 -

were -- they were telling me that I was involved, that I was gonna be

involved, that I didn’t have any choice about it.

The Defendant attempted to talk to Mr. Hill about driving back and forth to Texas. He

explained why he could not do it, but Mr. Hill did not accept his explanation. Mr. Hill

said that the Defendant did not have any choice about whether to drive Mr. Hernandez.

The Defendant testified that, when he left Mr. Hill’s residence around 5:30 p.m., he

intended to “cut[] ties as best as [he] could[.]”

The Defendant recalled that he picked up Ms. Hinson at Decker’s gas station

around 6:00 p.m. and then picked up Ms. Windsor. They “rode around for a little while”

until Mr. Coram got off work, and then the Defendant picked up Mr. Coram. The

Defendant recalled that he drove to the fire station and several other places, like the

Tobacco Dock and the bank. The Defendant testified that he was smoking marijuana,

taking Xanax, and drinking beer that night. He dropped Ms. Hinson off around 10:30

p.m. and then took Ms. Windsor and Mr. Coram to Mr. Coram’s house. The Defendant

then went home and got in bed. He was watching television and was about to go to sleep

when Mr. Hill called him at 11:42 p.m. After the call, the Defendant put the same clothes

back on and went to Mr. Hill’s residence because he did not want Mr. Hill to continue to

be angry with him.

When he arrived at Mr. Hill’s residence, there was a gold-colored car already

parked in the driveway. Mr. Hill was standing by the vehicle talking to two other people

and one man was sitting in the driver’s seat of the car. Mr. Hill walked over to the

Defendant’s vehicle and got in the passenger seat. As a result of what Mr. Hill told him,

the Defendant drove up to Highway 78 headed towards Dyersburg and turned onto

Highway 79. When the Defendant asked Mr. Hill “why [they] were going up there,” Mr.

Hill did not have a friendly response. When he got to Owl Hoot Road, the Defendant

drove towards his great-grandmother’s old house. When he pulled into the driveway, no

one was there. The Defendant told Mr. Hill that his great-grandmother no longer lived at

the residence and “had been gone for a[]while.” However, Mr. Hill did not believe the

Defendant. Mr. Hill cursed at the Defendant and was angry.3 The Defendant testified

that he was scared and that he did not know what Mr. Hill intended to do. Mr. Hill then

told the Defendant to do something else, and as a result, the Defendant pulled back out

onto the road and stopped in front of the driveway to the victims’ residence. The gold-

3

During a defense proffer, the Defendant testified that when he questioned Mr. Hill about where

they were going, Mr. Hill responded, “Just drive man! Just go!” The Defendant said that Mr. Hill was

not “talking in a normal voice.” The Defendant further testified that Mr. Hill instructed him to pull into

the victims’ driveway, saying, “Just pull in the f***ing driveway. Just get in the driveway.” When Mr.

Hill told the Defendant to turn off his headlights, Mr. Hill said, “You dumb a**, turn the g** d**n lights

off.”

- 22 -

colored car pulled into the driveway, and the Defendant followed the vehicle. The

Defendant recalled that, as he was pulling in behind the gold-colored car, he saw that the

car was a Ford with Texas plates. Three “Mexican men” stepped out of the car wearing

gloves on their hands. The “short one” that had been sitting in the back of the gold-

colored car signaled for the Defendant to turn off his headlights, and Mr. Hill cussed at

the Defendant for pulling into the driveway with the headlights on. Mr. Hill then said

something to the Defendant, and as a result, the Defendant got out of the car. The

Defendant testified that, based on Mr. Hill’s tone of voice, he did not believe that he had

a choice but to get out of the vehicle. He stated that he was afraid of Mr. Hill. When Mr.

Hill exited his vehicle, Mr. Hill pulled a pair of gloves out of the pocket of his hoodie.

The Defendant continued to ask Mr. Hill why they were there, but Mr. Hill did not

respond.

The Defendant recalled that the front porchlight of the victims’ residence was on.

He noticed that, when “the three Mexicans” stepped onto the porch, they “all three had

knives in their hands.” The “tall Mexican” then opened the front door and walked inside

the residence. The Defendant explained that he was “rooted to the spot” as soon as he

saw the knives, and he started crying. Mr. Hill walked up onto the porch and opened the

storm door. He motioned for the Defendant to follow, but the Defendant shook his head

at him. The Defendant stated that, as Mr. Hill was motioning for him, he heard “a really

loud sound” coming from inside and then the sound of “gurgling.” When Mr. Hill

entered the residence, the Defendant heard a woman screaming. The Defendant testified

that he “couldn’t move.” He recalled that the “tall Mexican” came back outside and said,

“Come on, white boy.” However, he turned away from the “tall Mexican” and continued

to stand in the driveway. The “tall Mexican” then walked over to the Defendant, grabbed

his shoulder, turned him around, and slapped the Defendant on the side of the head. The

“tall Mexican” told him, “Quit crying like a little bitch.” He told the Defendant they

were “going into the house,” and he grabbed the back of the Defendant’s neck and right

arm and directed him into the residence. When he entered the residence, the Defendant

saw a body lying across the room, and he turned and ran back out the front door and into

the yard. The “tall Mexican” and Mr. Hill followed the Defendant out of the house. The

“tall Mexican” asked him, “What’s wrong, white boy, you can’t handle a little blood?”

The “tall Mexican” then said, “This is what happens to people who think that they can

f*** with us.” He told the Defendant, “You are going to do every[thing] and anything

that you’re told to do or this s*** [will] happen again.” The “tall Mexican” told the

Defendant to come inside the house.

When he entered the residence, the Defendant went into the master bedroom

where Mr. Hill was going through a drawer. The “fat Mexican” had two guns in his

hands, and he pointed a gun at the Defendant and said, “Bang, bang.” The “short

Mexican” then walked out of the bathroom, wiping his hands off on a towel. The

- 23 -

Defendant testified that they were no longer wearing gloves. Mr. Hill grabbed a laptop

off the floor and handed it to the Defendant and told him to take it to his car and then

come back in and “grab some more stuff.” When the Defendant returned, the “tall

Mexican” was coming out of the kitchen. He had blood on his shirt, on both of his hands,

and on a knife that he held in his hand. The “tall Mexican” approached the Defendant,

pointed the knife at his chest, and said, “Take it. Take it. Take it. Take it.” The

Defendant took the knife, and the “tall Mexican” wiped both of his hands on the

Defendant’s. The “tall Mexican” said, “Now their blood is really on your hands.” The

“tall Mexican” then took the knife back from the Defendant, and the Defendant “broke

down” again.

Mr. Hill told the Defendant to wash his hands in the bathroom. He then instructed

the Defendant to grab the guns and put them in his car. Once outside, the “tall Mexican”

put the gloves inside a McDonald’s bag and tossed the bag to Mr. Hill. Mr. Hill then got

into the passenger seat of the Defendant’s car with a knife in his hand. Mr. Hill took a

camera and pistol out of his pocket and put them in the glove box. The Defendant

testified that he never saw the knife that Mr. Hill had again. The Defendant stated that he

did not know if he ever handled the knife found in his car and that he did not know if it

was the same knife the “tall Mexican” handed him. The “tall Mexican” approached the

Defendant, put his hands on the Defendant’s shoulders, and said, “You gonna be okay,

white boy? This is good fun, huh? Just remember, you do everything you’re . . . told or

this - this will happen again.” The Defendant testified, “They thought that they had just

killed my great-granny and [Mr. Hill] knew where my mama lived, where my brothers

lived.” He stated that he “wasn’t gonna let that happen to [his] family.”

After leaving the crime scene, Mr. Hill turned on the victims’ laptop but could not

get into it. As they pulled into the driveway of Mr. Hill’s home, the Defendant asked

what to do with the victims’ property. Mr. Hill stated that the victims’ property was to be

left in the Defendant’s car for the night. Mr. Hill told the Defendant that he needed to

return the following morning and that he needed to “find a way to get into the laptop.”

The Defendant returned home and went to bed, but he did not sleep. He stated that he felt

that he “couldn’t tell what happened because [he] didn’t want what happened to the

[victims] to happen to [his] family.” The Defendant explained that he did not call the

police because he “wasn’t gonna do anything to get [his] family killed.” He stated that he

first told his attorneys what happened the night the victims were murdered about a month

and a half before trial.

The Defendant stated that he went to school to take a make-up mid-term exam at

10:00 a.m. and that he was dressed in the same clothing that he had worn the previous

night. After class, the Defendant called several people about accessing the laptop and

then drove to Mr. Hill’s residence where Mr. Hill gave the Defendant “the rest of the

- 24 -

marijuana that he [] owed [the Defendant] from the week and some cash[.]” The

Defendant asked Mr. Hill about the previous night, but Mr. Hill did not answer his

questions. The Defendant asked Mr. Hill what he wanted to do with the victims’

property, which was still in the Defendant’s car. Mr. Hill gave the Defendant directions

in a “forceful” demeanor. The Defendant explained that, as a result of Mr. Hill’s

response, he understood that he had to “sell all the stuff off quick[.]”4

The Defendant recalled that he went on a boat ride with his cousin, Mr. Knox,

later that day. When he got to the boat dock, the Defendant took the McDonalds bag

containing the gloves out of his car. He stated that he burned the bag and its contents

because of his conversation with Mr. Hill. While on the boat with Mr. Knox, the

Defendant smoked marijuana, took Xanax, and drank beer. The Defendant testified that

he pulled out his money and “started trying to calculate for the [victims’] guns and the

cameras and stuff how much [he] could just give to [Mr. Hill] and just tell [Mr. Hill] that

he sold all the stuff and not sell it.” While on the boat, the Defendant received several

text messages from Mr. Hill about the Defendant “selling the stuff.” The Defendant

denied that he deleted any text messages from his phone that day. The Defendant

testified that he later sold the victims’ camera, and then he called Mr. Lee. He asked Mr.

Lee what he had heard about the murders and told Mr. Lee that he had “come across

some guns” and wanted to sell them. According to the Defendant, Mr. Lee told him that

Mr. Shell had been found in the living room but that Mrs. Shell was in the kitchen. Mr.

Lee said that “they were both cut real bad” and that “[t]heir throats had been cut.” Mr.

Lee told the Defendant that there was “blood everywhere” and that it “looked like a lot of

people had [gone] in and just ransacked the place.” The Defendant went to Mr. Lee’s

residence around 3:00 p.m. and showed Mr. Lee the guns; however, Mr. Lee “didn’t want

any.” The Defendant stated that, after leaving Mr. Lee’s residence, he and Mr. Knox

drove out to a trailer on the Defendant’s grandfather’s property where the Defendant

stored the victims’ stolen guns. Later, the Defendant and Mr. Knox met a man at a car

wash in Tiptonville, and the man bought one of the victims’ guns. The Defendant

testified that he had been unaware of the jewelry in his trunk.

The Defendant explained that, later that night, he went to the Tobacco Dock.

When he approached the counter, there were customers and employees talking about the

murders. The Defendant stated that one man was “talking about all the details” of the

murders. The man said that Mrs. Shell “had the phone in her hand and she’d been trying

to run out the back door and that she was on her back.” He also stated that the victims’

throats had been cut and that there was “[a] lot of blood.” The Defendant testified that he

4

During another defense proffer, the Defendant testified that Mr. Hill threatened him by saying,

“Because we know where your family’s at. We know where you’re all at out on the highway. We know

where your granddaddy lives over in the Ville. We know where your grandparents live. You know

what’ll happen.”

- 25 -

left the Tobacco Dock and went to the Chisholm residence. He stated that he took the

laptop and a pistol belonging to the victims into the home because he wanted everything

out of his car. While in Curt’s bedroom, the Defendant began “bag[ging] some more

marijuana up.” The Defendant explained that he made plans with a friend, Amber, to

meet her in Dyersburg and sell her the laptop. Regarding his interaction with police

while at the Chisholm residence, the Defendant explained that after he got off the phone

with Amber, Curt ran into the bedroom and said, “[T]he cops are here.” The Defendant

had a “big stack of marijuana in [his] lap and then a bigger stack sitting [] on the bed with

scales and everything.” The Defendant gathered up the marijuana and went out the back

door of the house. He put the bigger bag of marijuana into a cooler and then “bent down

like [he] was petting the puppies” in the backyard. At that time, Deputy Leake came to

the back door and yelled at the Defendant, saying he wanted to talk to the Defendant.

The Defendant asked, “What’s this about, Owl Hoot?” The Defendant stated that he

asked the question because everyone in the community was talking about the murders,

and the Defendant wanted to see what the police would say about the crime. The

Defendant testified that he did not delete text messages from his cell phone before

Deputy Leake removed the phone from his pocket.

The Defendant stated that, between noon and the time of his arrest that night, he

smoked ten blunts of marijuana, took fifteen Xanax pills, and drank beer. Regarding his

interview with Agent Bishop, the Defendant stated that Agent Bishop “wanted to know

what [he’d] heard” about the murders. The Defendant told Agent Bishop what

“everybody in town had been talking about[.]” They then discussed the Defendant’s drug

use, and the Defendant agreed with Agent Bishop that someone in a “constant state of

inebriation” was “not really in reality” and everything has a “dreamlike quality.” The

Defendant admitted that he lied to Agent Bishop when he said he did not go to the

victims’ residence. He stated that he could not tell Agent Bishop the truth, explaining:

If I told somebody [-] I wasn’t gonna let that happen to my - I was keeping

my family out of it. I - I was ready to go to jail. I was ready to die to keep

my family out of this. I didn’t want anything to happen to my mama like

what happened . . . [t]o the [victims].

The Defendant testified that he was not at the victims’ residence that night of his

own free will and that he did not want to enter the house. He went in because the “tall

Mexican” made him. The Defendant denied that he killed the victims and denied telling

Agent Bishop that he had done so. The Defendant also testified that he was not acting of

his own free will when he sold the items taken from the victims’ residence and stated that

he had not wanted to sell the items. He testified that he did not tell Agent Bishop the

truth because he did not want anything to happen to his family.

- 26 -

On cross-examination, the Defendant stated that he had “plenty of marijuana” and

Xanax on March 4, 2011, explaining that Mr. Hill had given him $500 and a quarter of a

pound of marijuana. The Defendant admitted that he received $35 for the victims’

camera, and he sold the victims’ guns for a total of about $100.

Shondell Hill testified that he graduated from high school in 1998, and from that

time until June 2011, he made money by selling marijuana and crack cocaine. He

explained that he joined the Black Gangster Disciples when he was fourteen or fifteen

years old and that he had two previous felony convictions for selling crack cocaine. He

agreed that he beat up a man that had testified before a grand jury regarding one of the

crack cocaine charges. Mr. Hill stated that, before March 2011, he had known the

Defendant for about five or six months and that he met the Defendant through a mutual

friend. He stated that the Defendant would call him almost every morning on the way to

school, wanting to purchase “either a blunt or a dime sack.” He recalled that the

Defendant also sometimes called in the afternoons and sent him text messages about

coming to purchase marijuana. Mr. Hill recalled that the Defendant would occasionally

come over to his house where they would play video games.

Mr. Hill testified that he knew Joel Hernandez, whose nickname was “Lobo.” He

explained that Mr. Hernandez would bring him marijuana from Texas on a Greyhound

bus. Mr. Hill stated that, in February 2011, he asked the Defendant to drive him to

Memphis to the Greyhound bus station to pick up Mr. Hernandez. He stated that this was

the only time that the Defendant drove for him. Once at the bus station, Mr. Hill sent the

Defendant inside to find Mr. Hernandez. Mr. Hill explained that they were in the

Defendant’s car and that he remained in the car while the Defendant went inside the bus

station. The Defendant then drove the men back to Lake County. Mr. Hill stated that

Mr. Hernandez brought about ten pounds of marijuana with him from Texas and

explained that a pound of marijuana could sell for $800 to $1,000 or more, depending on

the quality. Mr. Hill recalled that, when Mr. Hernandez’s business was completed in

Lake County, the Defendant drove Mr. Hernandez back to the bus station, but Mr. Hill

did not go with them. Mr. Hill explained that he paid the Defendant in marijuana; he

gave the Defendant four ounces to pick up Mr. Hernandez and another four ounces to

take Mr. Hernandez back to the bus station. Mr. Hill explained that, during this time, he

did not have a driver’s license. He stated that this was the only occasion in which the

Defendant was around Mr. Hernandez.

Mr. Hill recalled that, before Mr. Hernandez’s arrival, he asked the Defendant to

rent a room for Mr. Hernandez at Boyette’s. He explained that he paid for the cabin but

that it was rented in the Defendant’s name. He stated that he did not know anything

about a pot farm in Obion County. Mr. Hill testified that Mr. Hernandez stayed alone at

Cabin 9 during the week of March 1. Mr. Hill never saw a gold-colored car or anyone

- 27 -

else with Mr. Hernandez at the cabin. Mr. Hill recalled that Mr. Hernandez came to

Memphis about every three weeks and that, between trips, he communicated with Mr.

Hernandez “[p]robably once a week.” He stated that he did not know whether Mr.

Hernandez belonged to a prison gang. Mr. Hill recalled that, on the morning of March 2,

the Defendant drove him to Cabin 9 to pick up the marijuana. The Defendant drove Mr.

Hill around Tiptonville while he tried to sell the marijuana. Mr. Hill noticed that the

marijuana was “real seedy and sticky” and smelled like dryer sheets. Around 9:00 or

10:00 a.m., Mr. Hill attempted to sell the marijuana to two African-American men at the

Kentucky state line, but the men did not want the marijuana. Mr. Hill recalled that Mr.

Hernandez left Cabin 9 on March 3, 2011, rather than stay until March 4 because “the

weed he brought was garbage and it wasn’t selling[.]” Mr. Hill told Mr. Hernandez that

the marijuana was “terrible,” but Mr. Hernandez responded, “Come on . . . you’ve got to

be able to do something for me. I know you can make it happen.” Mr. Hill told Mr.

Hernandez that people would pay for the marijuana but not at the price Mr. Hernandez

wanted. He told Mr. Hernandez to take the marijuana back to Texas with him, but Mr.

Hernandez did not want to risk it so the marijuana remained with Mr. Hill. Mr. Hill

admitted that he eventually sold the marijuana. He stated that he paid Mr. Hernandez

$1,500 for about two pounds’ worth of marijuana. He stated that, had he paid Mr.

Hernandez what he was asking for it, he would have paid between $4,000 and $5,000.

Mr. Hill was unaware of the Defendant’s discussions with Mr. Hernandez on the

way back to Jackson. The Defendant never told Mr. Hill that Mr. Hernandez had offered

him the opportunity to deal directly with him. Mr. Hill stated that he had no reason to

call the Defendant at 11:42 p.m. on March 3, 2011. He stated that he was at home on the

night of March 3 and the early morning hours of March 4 and that he never left his

residence. He further stated that no one visited his house during that time. Mr. Hill

testified that it was only after the victims were murdered that he learned that the

Defendant’s grandmother had lived on Owl Hoot Road. He said that it was his

understanding that the victims were the Defendant’s grandparents.

Mr. Hill said that, after the Defendant dropped off Mr. Hernandez at the bus

station in Jackson, the Defendant called him to let him know that Mr. Hernandez made it

to the bus station. Mr. Hill denied that the Defendant came by his residence that night.

Mr. Hill testified that the following morning, March 4, he woke up to find that the

Defendant had called him five or six times around 4:00 a.m. and sent a text message at

6:30 a.m., asking him to call the Defendant. The Defendant then came over to his

residence. Mr. Hill explained:

I opened up my back door, [the Defendant] walked in, he said,

“What’s up, my guy?” That’s how he talked to me -- every time he

enter[ed] my house and we talk[ed] on the phone, he’d say, “My guy.” He

- 28 -

came on in. He had a laptop and he had like a jewelry bag or some type of

Crown Royal bag or something. He began to pour the jewelry out in his

hand. And I told him he could -- he was wasting his time with that. I told

him it looked oldish. I said it looked old-timey, my exact words to him.

He put that up. I told him I was interested in the laptop. He opened -- he

flipped the laptop open, he proceeded to try to power it on. He powered it

on, it had a lock code in it. Then, after he couldn’t get through the code he

made a phone call to somebody. And I don’t know they [sic] name. He

asked them, he said, “I got a laptop.” He said, “You think you can get it

open for me?” I don’t know what the reply was over the phone. But he got

off the phone, he said, “Hey, I think I know somebody that can open it.”

He put that -- he put it up. And he let -- When he first came in he also said

he had a -- he said he had a trunk full. I asked him where he got that from.

He said, “We hit a lick last night.” He never said who we were or none of

that. I didn’t ever ask who “we” were. But he said, “We hit a lick last

night.”

Later that afternoon, when he learned about the victims’ murders, he called the

Defendant. Mr. Hill explained:

Because he had just left my house with a computer and some

jewelry, and I -- because when he said, “We hit a lick,” like I said, when

my friend came over and was telling me about, “Did you hear about the

double murder,” it instantly made me call [the Defendant]. I said, “That

stuff you got, did that belong to them people that got killed?” His exact

words, he said, “No. Them [sic] was my kin people.” And I said, “Why

you didn’t tell me this while you was here?” He didn’t reply or nothing . . .

I told him, I said, “Make sure you get my fingerprints off that laptop,”

because I had just been looking at it.

Mr. Hill could not explain why his phone records did not show that the Defendant called

him five or six times on the morning of March 4.

Mr. Hill recalled meeting a man named Luis Mendez while incarcerated at the

Lake County Jail. Mr. Mendez was in jail for trafficking marijuana. About six or seven

months after Mr. Hill got out of jail, Mr. Mendez called him. Mr. Mendez stayed at Mr.

Hill’s residence, and Mr. Hill provided him with money to return home to Texas. When

Mr. Mendez later returned to Lake County on a Greyhound bus, he brought Mr.

Hernandez with him.

- 29 -

Joel Hernandez, Jr., testified that he was born in Laredo, Texas, that he was thirty-

three years old, and that he was serving a sentence in the United States Penitentiary in

Allenwood, Pennsylvania for “smuggling illegal aliens.” Mr. Hernandez stated that Mr.

Mendez was a friend from high school in Texas. He stated that he had “no idea” if Mr.

Mendez was a gang member. Mr. Hernandez denied that he was a member of the Texas

Mexican Mafia or “Mexikanemi”; rather, he stated that he was a gang “associate” while

in prison, which meant that he was under the gang’s protection and “[j]ust hangs around”

gang members. Mr. Hernandez denied that he ever worked for the Mexikanemi. He

acknowledged, however, that he signed a document from the Allenwood, Pennsylvania

prison, which stated that he had been a member of the gang since 2009. Mr. Hernandez

identified several photographs of his tattoos but denied that the tattoos were gang

insignia. He stated that they had “nothing to do with . . . the Mexican Mafia” but that

they were simply art denoting “Aztec culture.” Mr. Hernandez testified that the

Mexikanemi was a criminal gang consisting of “[b]ig bad boys from prison.” He stated

that to become a member of the Mexikanemi an individual must “kill somebody.” He

said that he had never been asked to join the gang. He identified several photographs of

himself and other prison inmates that his aunt had posted on his Facebook page and

admitted that two individuals in the photographs were Mexikanemi members.

Mr. Hernandez stated that he met Mr. Hill through Mr. Mendez when he

accompanied Mr. Mendez to Tennessee while Mr. Mendez was transporting marijuana on

a bus. Mr. Hernandez admitted that he later came to Tennessee by bus to bring Mr. Hill

marijuana three or four times. Mr. Hernandez recalled that he stayed in a cabin for two

days in March 2011, while in Lake County. He stated that he never left the cabin except

to go out to eat with the Defendant and Mr. Hill. He recalled that the Defendant was

“driving [Mr. Hill] around.” He denied that anyone in a gold or champagne-colored car

with Texas tags came to see him or that he went anywhere in this car. He recalled that,

when Mr. Hill and the Defendant picked him up from the bus station, he had a duffle bag

and a backpack. He stated that he had about five pounds of marijuana inside the

backpack, which he sold to Mr. Hill for between $800 and $900. Mr. Hernandez testified

that he had “a couple” of marijuana suppliers and that he believed his marijuana came

from Mexico. During the last trip to Lake County, Mr. Hill informed Mr. Hernandez that

the marijuana was not selling for the price Mr. Hernandez requested. Mr. Hernandez

testified that he did not have a problem with Mr. Hill not paying him the money he

requested for the marijuana. He explained, “I knew it was, you know, no good like it had

too much seeds. I knew it was a struggle because I got it very cheap, so I knew he was

gonna have a hard time. But I just thought I could take the risk and bring it.” He recalled

that he told Mr. Hill to keep the marijuana because Mr. Hill “had a wedding coming.”

Mr. Hernandez stated that the Defendant gave him a ride to the bus station in

Jackson on March 3. Mr. Hernandez agreed that, when the Defendant drove him to

- 30 -

Jackson, he and the Defendant smoked marijuana together. He denied that he and the

Defendant discussed the amount of money Mr. Hill gave him for the marijuana. Mr.

Hernandez stated that he never called the Defendant, and he did not know the

Defendant’s phone number. Mr. Hernandez stated that, if the Defendant had his cell

phone number, Mr. Hill must have provided it to the Defendant.

Mr. Hernandez testified that on March 1, 2011, the Defendant and Mr. Hill picked

him up at the bus station. Once at Cabin 9, he and Mr. Hill discussed the marijuana and

how much Mr. Hill would sell it for. The following day, Mr. Hill informed him that he

was having trouble selling the marijuana and that it was “no good.” Mr. Hernandez

responded, “[C]ome on man[,] just do what you can do.” At the end of the day, he told

Mr. Hill, “[Y]ou know what, keep it.” He stated that Mr. Hill was supposed to pay

$1,300 for the drugs but that Mr. Hill gave him only $800 because Mr. Hill could not sell

it. Mr. Hernandez recalled that the Defendant came inside Cabin 9 twice—when he and

Mr. Hill took Mr. Hernandez to buy food and when the Defendant picked up Mr.

Hernandez to take him to the bus station. On those occasions, the Defendant watched

television and smoked marijuana. Mr. Hernandez said that he probably called Mr. Hill

on the afternoon of March 3 to let Mr. Hill know he was on the bus. He denied that he

and Mr. Hill talked about the Defendant during this call. He stated that there was no one

other than Mr. Hill that he would have been calling in West Tennessee.

Regarding phone calls from Mr. Hill on March 5, Mr. Hernandez testified that the

calls were likely about Mr. Hill having trouble selling the marijuana. Although he

initially testified that he knew the marijuana was of poor quality, Mr. Hernandez later

stated that Mr. Hill was “making up stories about [how] the weed [wa]s no good.” He

stated that he received a phone call from Mr. Hill after returning to Texas, during which

Mr. Hill told him about the Defendant “murdering people.” Mr. Hernandez denied that

he and Mr. Hill ever discussed having the Defendant transport marijuana from Texas to

West Tennessee. He stated that he continued communicating with Mr. Hill after leaving

for Texas because Mr. Hill still owed him money. Mr. Hernandez testified that the

prosecutor told him that, if he did not testify, he would “be a suspect” in the murders. He

stated that he knew nothing about a bloody towel being found in Cabin 9.

Mitchell Davis testified that he was a licensed private investigator who provided

forensic examination services of electronic devices, including cell phones. Mr. Davis

examined the Defendant’s cell phone in order to download and obtain information, such

as text messages sent and received, deleted text messages, and phone calls made and

received. When he received the cell phone, he placed it in a Faraday bag5 and connected

5

Mr. Davis explained that a Faraday bag was a bag made out of copper or other specialized metal

that keeps an electronic device from being able to transmit out or receive a signal.

- 31 -

the cell phone to a computer. Mr. Davis then utilized special software, which generated

an extraction report of the data on the Defendant’s cell phone. Based on the data he

retrieved from the Defendant’s cell phone, Mr. Davis testified that the cell phone

contained only ten text messages with the first message being received on March 4, 2011,

at 9:11 p.m. Mr. Davis explained, however, that there had been a forty-minute delay

between when the text message was sent and when the Defendant’s cell phone received

the message. Mr. Davis stated that the device was “either busy or shut off” and then

turned back on, which would explain the delay in receiving the message. Mr. Davis

opined that, based on the extraction data and the Defendant’s cell phone records, text

messages sent and received were missing from the cell phone. He said that “[a] missing

message can come up by somebody using the delete function on the phone, and the

message can be deleted if it’s part of a time cycle.” Mr. Davis testified that during the

gap of time between when the first text message was sent and when it was received—

from 9:31 p.m. to 10:11 p.m.—“there [was] a possibility that some messages were

deleted from that device.” He testified that text messages could not be accidently deleted

from the Defendant’s cell phone based on the steps required for deletion of a message.

Mr. Davis reviewed the phone calls between the Defendant and Mr. Hill and found

that between February 27, 2011, and March 4, 2011, there were forty-one texts messages

sent between the Defendant and Mr. Hill and sixty-two phone calls. Mr. Davis explained

that he could not retrieve the substance of the text messages shown on the Defendant’s

cell phone records, except for the ten messages left on the phone. Mr. Davis also

reviewed the cell phone records of Mr. Hernandez and located numerous text messages

and phone calls between Mr. Hill and Mr. Hernandez between February 27, 2011, and

March 5, 2011. Additionally, Mr. Hernandez’s cell phone records showed that he called

“West Tennessee numbers” fifty-one times during this time period.

On cross-examination, Mr. Davis stated that there were several possible

explanations for the forty-minute time gap. He said that someone could have turned off

the cell phone, or it was in an area with no reception. Mr. Davis testified that the text

messages could be deleted off the phone either individually or by group. Regarding how

text messages could be deleted from the cell phone, Mr. Davis stated:

You could physically delete it by having the device in your hand;

there’s one. If there’s a calendar built into the device that allows for

messages to be deleted after a certain period of time; there’s two. That’s a

manufacturer option. The third way would be because some type of

spyware or something remote could delete those messages. And if you

want to go on to number four, it could be because there’s a glitch in the

- 32 -

system, something could have happened to the phone that caused

catastrophic damage to something that was holding that text information.

He agreed that, if officers arrived at Mr. Chisholm’s residence at 9:17 p.m. and the

Defendant received a text message at 9:20 p.m., that the Defendant could have deleted all

of his prior text messages in less than a minute. Mr. Davis agreed that some drug dealers

will delete their text messages shortly after the messages are received so that no record of

the text messages existed. He stated that it was “[j]ust as possible” that the Defendant

deleted his messages shortly after they were received as it was that someone else deleted

the messages off of the cell phone after his arrest.

Dennis Waller, an expert in police investigation policies and procedures, testified

that he owned a licensed private detective agency and that he consulted and provided

expert testimony on police-related litigation. He explained that he had been asked to

review evidence in the Defendant’s case, including the TBI lab reports and narratives,

photographs of the crime scene, transcripts of testimony from prior hearings, and the

tangible evidence collected by the TBI. Additionally, Mr. Waller reviewed the TBI’s

policy and procedures manual. He stated that there were minimum standards for

investigative policies and procedures, which were accepted across the country, and that

the investigation of the victims’ murders had been deficient in multiple ways. Mr. Waller

testified that there should have been a crime scene log created to document who went in

and out of the victims’ residence, but no such log existed. Additionally, he said that an

attempt should have been made to collect samples from all of the different pools of blood

around the residence. He stated that the large pools of blood should have been “sectioned

or quartered [] off” and samples taken from different areas of the blood in order to

determine if it came from the victims or a perpetrator. Mr. Waller stated that the tangible

evidence collected at the crime scene did not comply with the accepted standards for

investigating a double homicide. He said that the investigation was “minimal” and that it

would “[a]bsolutely not” meet the minimum standards of a police investigation as

expected in a double homicide case. He identified blood stains in crime scene

photographs that should have been collected and explained that standard procedures

would require officers to collect this evidence. He testified that a blood spatter expert

should have been at the crime scene and that a technician should have dusted for

fingerprints on a variety of surfaces inside the residence. Mr. Waller further testified

that, upon the discovery of the “secondary crime scene” at Cabin 9, it should have been

treated “the same way . . . you would [treat] the primary crime scene.” He stated that

investigators should have attempted to collect the bloody towel from Cabin 9 after it had

been taken to the laundry shed and to collect the fruit punch cans from the dumpster.

Additionally, Mr. Waller criticized the Defendant’s interview by the TBI,

explaining that the recording of the notes by Agent Kring did not comply with the

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accepted standards required of such an interview. He stated that the interview should

have been recorded, and if a video camera was not available, Agent Kring’s notes should

have recorded the questions asked by Agent Bishop, as well as any “qualifiers,” in order

to “have the total context” of the Defendant’s statements. He noted that Agent Bishop

failed to ask the Defendant if he had killed the victims or whether the Defendant had been

present at the crime scene. Mr. Waller described such questions as “basic questions that

you would want answered.”

Janice Johnson testified as an expert in the areas of crime scene investigation and

analysis and blood spatter analysis. Ms. Johnson explained that she was a “[f]orensic

specialist” and owner of the Florida-based business, Forensic Pieces, where she taught

courses in forensics for law enforcement officers and crime scene investigators. Ms.

Johnson testified that she reviewed the forensic evidence collected by the TBI in the

Defendant’s case. In reviewing the crime scene photographs taken by the TBI, Ms.

Johnson noted that many of the photographs did not comply with accepted standards for

crime scene documentation. She stated that it was important to measure blood spatter at a

scene and that the “height of the stains and the size of the stains could be crucial.”

However, with the exception of a few photographs of the front door, the TBI failed to

photograph blood stain patterns at the scene with a proper scale. Regarding DNA

collection and analysis of blood spatter patterns, Ms. Johnson stated:

You would want to do proper collection of these spatter patterns to

determine whose blood is where. Obviously, in this case we have two

people that have received injuries. So you’d want to know whose blood is

where. And perspective in the violent attack[,] perhaps the perpetrator

injured themselves and in doing so sometimes they will leave blood stains

behind.

....

Oftentimes again, the violent attack will result in the perpetrator

injuring themselves and some of these stains may be displayed as passive

stains. When you look at blood stain pattern analysis you look at the stains

that are passive versus dynamic and a passive stain could be a drop of blood

or a couple of drops of blood from an injury. But without proper sampling

sometimes those blood stains from the perpetrator could be missed.

Ms. Johnson testified that insufficient blood samples were collected from the

crime scene for a reconstruction. She said that she had been asked to determine who may

have been injured first during the attack but stated that “[i]f sufficient samples had been

collected and sufficient photographs taken [she] may have been able to sort that out. But

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based upon four samples from that scene there’s no way [she could] sort that out.” She

stated that all blood patterns should have been sampled and that there were multiple areas

of blood that were not sampled. She stated that the failure to collect these samples

violated the minimum standards for crime scene analysis and processing. Ms. Johnson

further testified that areas of the crime scene should have been examined for latent

fingerprints, latent blood, and “touch DNA.” Ms. Johnson stated that “[t]he end result is

that we perhaps had forensic evidence that was not detected, collected or preserved that

could help us with the reconstruction of the case.” She identified multiple pieces of

evidence and areas of the crime scene that were not properly documented, collected, and

tested. She further stated that the TBI did not conduct any analysis of the blood spatter at

the crime scene. Regarding Cabin 9, Ms. Johnson testified that the fruit punch cans and

the towel with blood on it should have been collected and tested. She also noted that tire

impressions in the victims’ driveway were not preserved by the TBI.

Ms. Johnson testified that she analyzed the Defendant’s shirt for blood and found

one blood stain on the upper right shoulder and a second blood stain on the cuff of the

shirt. She sprayed the shirt with BlueStar Forensics, “a reagent that detects blood that’s

invisible to the naked eye.” She stated that the blood stains were “very small stains like

the size of . . . the head of a pin.” She further stated that the Defendant’s shirt was not

properly wrapped and packaged in butcher paper; rather, it was “just wrapped together in

a ball.” She also examined the Defendant’s camouflage overalls, blue jeans, and boots,

as well as the Defendant’s vehicle. She used BlueStar on the Defendant’s boots and

found that there were no areas of the boots that tested positive for possible blood.

Additionally, she stated that she found nothing on the Defendant’s boots that indicated

they made the tracks in blood on the victims’ kitchen floor. She stated that the

Defendant’s boots appeared not to have been washed as they still had dirt embedded in

the tread. Ms. Johnson stated that she would have expected to find blood residue on the

boots even if they had been washed because “when people scrub it’s impossible to

remove all the blood.” Ms. Johnson testified that no blood was found in the Defendant’s

vehicle, on his cap, camouflage overalls, or blue jeans. Regarding the blue jeans, Ms.

Johnson stated that, based on the crime scene, she would have expected blood on the

cuffs because they dragged the ground when the Defendant walked.

Dr. Alfonzo Valdez testified that he was a professor at the University of California

where he taught “gang classes.” He explained that he was also a retired police officer

with twenty-eight years’ experience, and he had a doctorate in psychology. Dr. Valdez

explained that he had previously worked as a narcotics investigator. He explained that, as

an investigator, he had “hundreds of hours of courses involving the histories, modus

operandi and characteristics of all the major street gangs.” Dr. Valdez testified that he

was familiar with Hispanic gangs, including the Mexikanemi out of Texas. He explained

that the Mexikanemi was an inmate-run prison gang. He stated, “All prison gangs

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operate in and outside the prison and many prison gangs have a relationship with the

local street gangs that they kind of adopted.” Dr. Valdez explained that “street gangs

have become the primary distributors and retailers of drugs that come from our prison

gangs. And the prison gangs get their drugs from the cartels.” He testified that gang

members can work with non-gang members to carry out the gang’s business.

Dr. Valdez reviewed Mr. Hernandez’s tattoos, criminal record, and prison records

and determined that Mr. Hernandez was a member of the Mexikanemi. He testified that

Mr. Hernandez would be killed in prison because of his tattoos if he were not a member

of the Mexikanemi. He testified that Mr. Hernandez likely had a “lower ranking

position” in the Mexikanemi and stated that a prison gang member “will not tell you in

court that he’s a prison gang member.” He explained that the Mexikanemi primarily

funded itself through drug sales, contract killings, extortion, and “home invasion

robberies[.]” Dr. Valdez explained that the term “mi cholos” meant “[m]y home boys,

my fellow gang members.” Dr. Valdez testified that the Mexikanemi operated in West

Tennessee at the time of the murders. He explained that the gang used the I-35 corridor

from Laredo to deliver drugs to the “eastern or mid part of the United States.” He stated

that the Mexikanemi used “extreme forms of violence to intimidate you and to control

you.” Dr. Valdez testified that, based on his review of the case, he believed that the

violence inflicted upon the victims was consistent with the violence of the Mexikanemi.

Dr. Valdez explained that he had also studied the Gangster Disciples, of which Mr.

Hill was a member. He stated that the Gangster Disciples were “one of the country’s

more violent gang[s].” Dr. Valdez explained that the victims’ murders were “very

consistent” with the operations of both the Mexikanemi and the Gangster Disciples. He

testified that the gangs use “hyper violence” for intimidation purposes. He stated, “They

come in numbers. They overpower you. They will . . . do brutal things to you to send a

message of fear and intimidation.” Dr. Valdez opined that the victims’ murders were

consistent with the Mexikanemi’s modus operandi. He explained that there was a lack of

a major struggle in the residence; he stated, “This was a very quick overpowering attack.

The [victims] had very little time to defend themselves.” He testified, based on his

experience, that a single person could not have committed the murders.

Dr. Richard Ofshe, an expert on police interrogations tactics and on the reliability

of suspects’ statements, testified that he had reviewed Agent Kring’s notes of the

Defendant’s interview with Agent Bishop. The notes, signed by the Defendant, read:6

6

Some words in Agent Kring’s handwritten notes are indiscernible to the court. As such, we

have attempted to reproduce the notes for the purposes of this opinion to the best of our ability.

- 36 -

Last night I was riding around drinking[.] I took drugs. Don’t

remember much between 10 pm-midnight. Cannot remember where I was.

I was alone. I was with my buddies earlier. Made it to Owl Hoot. What

happened happened. Woke up during the night seeing that thinking it was

too real to be a nightmare. Literally scared me. Waking up this morning

and Owl Hoot and being shot in the head. First I heard [two people] shot at

Owl Hoot[.] [D]id not think about it until I got to my car and worked

through it. Put two [and] two together. The nightmares were more than

real. Feel that my conscience was telling me what I had done. The only

thing I have been in court for is a traffic stop. I don’t do things like that.

Here lately I have been taking pills. This is not me. I don’t rob you

know. I am well off family. I smoke weed since 13. Pills off and on hydro

freshman [year of] high school. I have never been on drugs. Never done

cocaine. I do drugs and I don’t think I have a [] problem. The dream is

realer than real. The only thing it wakes me up-jerk up in a cold sweat. I

see him laying on the floor-cannot tell where on his stomach in a pool of

blood. No stab wounds. When I see her it might be in the kitchen-tile floor

next to a table laying on her back. It had to be a knife that I used. I could

have used a gun. I didn’t know I was taking one pistol when I took it. I

was by myself. I don’t know which knife I used. There[’]s 2-a hunting

knife-you might check in the middle consol[e]. There are 2 sections. I

don’t know maybe one in . . . the bottom. There are 2 hatchets in the back

area used for chopping wood. Curt-the guy where I was. I have not told

anyone about my dream. 10 pm-12 am no recollection of what happened.

Started drinking at 6 pm and riding around. Got home about 12 am.

Watched an episode of South Park . . . . At the house in his bed. Went to

sleep about 1 am. Woke up this morning like usual and went to school at

DCC. Have 1 class from 10-11 am. Taking 13 hours. The guns I might

have taken [and] thrown the guns in the river. There ain’t no telling where

it is. If I did take pills from the house I probably did not take any. If I did

take any pain medication it would be in my car. I took a shower this

morning. I cannot remember if I had any blood on them. I was going to

wear my Jordans this morning and I did not see anything on them. Did not

remember having blood on them. I did not even know that they moved out

there. Still thought [] my great grandmother’s husband who passed away.

Dr. Ofshe testified stated that Agent Kring’s notes of the Defendant’s statement

were “clearly not complete.” He explained:

- 37 -

It doesn’t tell us everything that was said. It doesn’t tell us anything

about what tactics may have been used in order to facilitate getting

whatever it is that was written down from the suspect. These notes don’t

add up to anything. And even by the admission of the interrogators, they’re

not – they don’t add up to an admission to participation in the crime.

Dr. Ofshe noted that the Defendant’s statement was “couched as a dream” and was not “a

statement about something that happened.” He stated that, when looking at Agent

Kring’s notes, the context of the Defendant’s statements was unknown. Dr. Ofshe

testified that, if the details of the crime scene were known in the community at the time of

the Defendant’s statement, his statement could have been contaminated by that

information. Based on his analysis of the Defendant’s statement, Dr. Ofshe testified that

the statement was “worthless.”

State’s Rebuttal Proof

Matt Sipes of the Tennessee Highway Patrol testified that, in January 2011, he

began working with the DEA investigating large scale drug trafficking cases in northwest

Tennessee. Trooper Sipes stated that drug dealers who used buses to transport marijuana

would not transport more than about fifteen pounds because of the smell. He testified

that, in October 2011, he investigated “a sizeable outdoor grow” of marijuana in Obion

County. He explained that approximately eight Hispanic individuals were suspected for

their involvement in the grow and that two Hispanic individuals were identified and

arrested. Investigators found no connection between the two arrested men and Texas.

Additionally, he found no connection between the marijuana grow in Obion County to

anyone in Lake County.

Defendant’s Rebuttal Proof

Dr. Valdez testified that, based on his research and experience, a member of the

Mexikanemi would not travel by bus from Texas to Tennessee to sell only three to five

pounds of marijuana.

At the conclusion of proof, the Defendant moved for a judgement of acquittal,

arguing that no reasonable jury could find the Defendant guilty beyond a reasonable

doubt. The trial court determined that the issue of the Defendant’s guilt was a “question

of fact for the jury” and denied the motion. Following deliberations, the jury convicted

the Defendant of two counts of second degree murder, as a lesser-included offense of first

degree premediated murder; two counts of first degree felony murder; and two counts of

especially aggravated robbery.

- 38 -

Sentencing

At sentencing, Paul Shell delivered a victim-impact statement on behalf of his

family, requesting that the Defendant receive consecutive life sentences.

Captain Dennis Dean, the jail administrator for the Obion County Jail, testified

that the Defendant was under his supervision from March 2011 through 2015. Captain

Dean explained that the Defendant had been kept in “solitary” for the entire time he was

in the “maximum security unit.” He described the Defendant as “respectful” and stated

that the Defendant followed the procedures and policies of the jail. He explained that the

Defendant read two or three books a week. Captain Dean recalled that the Defendant had

warned officers on more than one occasion of another inmate’s plans to “do harm” to a

staff member at the jail. Captain Dean testified that the Defendant gave no indication that

he would be an especially dangerous prisoner and that he never saw the Defendant lose

his temper when confronted by other inmates.

David Gray, the pastor at Abundant Life Fellowship, and his wife, Tammy Gray,

testified that they had known the Defendant since the Defendant was about a year old.

Pastor Gray described the Defendant as “very nice. Kind.” He testified that he had never

seen the Defendant lose his temper or act violently. Pastor Gray stated that the Defendant

was not a dangerous person and that he believed that the Defendant could be

rehabilitated. Mrs. Gray described the Defendant as “[s]weet” and stated that she did not

believe that the Defendant was especially dangerous.

Regina Bargery, the Defendant’s mother, testified that the Defendant was loving,

very respectful, and had a “[b]ig heart.” She stated that she had not known the extent of

the Defendant’s drug use until the trial. She said that there had never been any indication

that the Defendant might be violent towards another.

The Defendant then made an allocution statement to the court, during which he

reiterated that he did not kill the victims but expressed remorse that he involved himself

with drugs and Mr. Hill and Mr. Hernandez.

The trial court merged the Defendant’s second degree murder convictions into his

convictions for first degree felony murder and sentenced the Defendant to consecutive

life sentences. For his convictions for especially aggravated robbery, the trial court

sentenced the Defendant to fifteen years on both counts and ordered the sentences to run

concurrently with the life sentences. In ordering consecutive sentences, the trial court

found that the Defendant was a dangerous offender whose behavior indicated little or no

regard for human life and that the Defendant had no hesitation about committing a crime

in which the risk to human life was high. See Tenn. Code Ann. § 40-35-115(b)(4). The

- 39 -

trial court stated that the victims’ murders were “the bloodiest, most gruesome murders”

that the court had seen and recalled that the victims were “stabbed repeatedly and cut

repeatedly. Mrs. Shell’s throat was so violently sliced almost to the point of

decapitation.” The trial court found that the Defendant was “a danger to the public,”

citing State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995). The court further noted that,

although the Defendant had no prior convictions, he had a history of criminal behavior

that included selling and delivering drugs. Regarding the Defendant’s allocution

statement, the trial court stated:

You do state that you’re sorry that the Shells were killed but, you

accept no responsibility at all for what has happened other than the fact that

you were present and that you - that this might not have happened had you

not been using drugs. You don’t, however, accept direct responsibility for

the crime. This bothers me. Your statement today bothers me.

The trial court found that the Defendant’s “lack of candor and . . . lack of remorse”

suggested that consecutive sentencing was appropriate.

Motion for New Trial Hearing

The Defendant filed a timely motion for new trial. At a hearing on the motion,

Officer Mason McDowell of the Dyersburg Police Department testified that he worked

mainly narcotics investigations, and in those cases, he occasionally needed to recover text

messages from suspects’ phones. He explained that many cell phone providers, including

Verizon Wireless, had preprinted preservation letters which law enforcement could use to

request that the company preserve the content of text messages. Officer McDowell

explained that Verizon “loosely guarantee[d] three to five days” worth of text messages

prior to the date the request for preservation was made. He stated that no subpoena was

needed for a preservation letter but that officers would typically obtain a subpoena after

filing the letter with the cell phone company. He said that the procedure was available in

March 2011.

On cross-examination, Officer McDowell stated that it was possible to delete

information from a cell phone remotely and that “it would not be difficult for one of [the

Defendant’s] associates, a family member, anyone else that would have the same interest

as him in getting rid of the messages” to delete them in this manner. Officer McDowell

agreed that law enforcement could have filed a preservation letter with the Defendant’s

cell phone company to preserve his text messages. However, he noted that, as the

account holder, the Defendant could have requested them at any time.

- 40 -

Sergeant Dennis McCaig, with the Dyer County Sheriff’s Office, testified that he

had been responsible for developing the security protocol for the sequestered jury. He

stated that the officers working the security detail followed two rules—jurors were not

left alone unless they were in their particular hotel room and jurors were to have no

contact with anyone outside the jury. Regarding the jurors’ phone calls, Sergeant

McCaig stated that he instructed court officers to listen to jurors’ conversations and to

stay within two feet of the jurors during the calls. Sergeant McCaig explained that the

guidelines for the family member visitations were “very strict,” and the visits were “for a

very short period of time and with immediate family members only.” He stated that he

could hear the conversations between jurors and their visitors, and he did not hear anyone

discussing the trial. Sergeant McCaig instructed court officers to listen for “key words”

like “evidence” and “trial” while listening to the conversations between jurors and

visitors.

Eight deputies and two lieutenants of the Dyer County Sheriff’s Office testified

that they were part of the security detail for the sequestered jury during the Defendant’s

trial. Their testimony was consistent and generally repetitious. Court officers were on

duty twenty-four hours a day at the hotel where the jury stayed. Jurors were also

monitored by video surveillance, and cameras were set up on both ends of the hall of the

hotel in which the jury stayed. Jurors were supervised while on smoke breaks, and jurors

had no outside contact during those breaks. Jurors would occasionally use the exercise

room at the hotel in groups, and court officers supervised the jurors’ use of the exercise

room. Two or more court officers supervised the jury during family member visits, and

jurors were instructed not to discuss the case. Jurors were allowed to make one phone

call a day from a specific hotel phone. The jurors’ hotel rooms were not equipped with

phones. A log with the juror’s name, the date and time, the number called, whom the

juror called, the juror’s relationship to that person, and the topic of the conversation was

maintained. A member of the court security detail would remain close to the juror during

their phone call to insure the juror did not speak about the trial. None of the court

security detail heard or saw anything to indicate that the jurors at any time discussed the

case.

Several members of the jury also testified. Juror Johnson explained that the jury

had been sequestered during the three week trial and that, during that time, deputies went

with the jurors “everywhere [they] went.” Juror Johnson stated that she never discussed

the facts of the case with anyone outside of the jury. She further testified that, to her

knowledge, no other jurors spoke to anyone outside the jury about the case. Juror

Johnson recalled that on several occasions the jury was allowed visitation with family

members. She stated that she and other jurors were made aware that, if they were caught

discussing the case with family, the trial would end. Juror Johnson testified that she did

not discuss the case during family member visitation and that she never heard other jurors

- 41 -

talking about the case at that time. Juror Johnson testified that two to three deputies

supervised the family member visitation and stood “on the outside watching everybody.”

Juror Johnson testified that there were occasional “smoke breaks” for jurors but that a

deputy was always supervising them. Juror Johnson recalled that, during deliberations,

another juror discussed a letter written by the Defendant with a “very dark” poem at the

bottom of it, which had been introduced at trial. The juror said that the Defendant was

“highly intelligent” and had a “dark side.”

On cross-examination, Juror Johnson stated that jurors were allowed to make

phone calls to family members, and the calls were recorded on a call log. She recalled

that a deputy was always in the room with a juror when she made a phone call, and the

deputy could hear her side of the conversation. Juror Johnson recalled that during

deliberations another juror said that the Defendant’s “granddaddy was a big farmer who

had money, and that he had been known for buying his family members out of trouble

with his money.” This juror also said that the Defendant’s grandfather was paying his

legal fees.

Juror Vestal testified that she would occasionally go on a smoke break at the hotel

with other jurors and that there was always a deputy outside with them. She stated that

they were not approached by anyone during the smoke breaks and that the jurors did not

discuss the case while on smoke breaks. Juror Vestal stated that she went to the exercise

room at the hotel a couple of times and that a deputy was in the room supervising jurors

while they exercised. She recalled that, a few times, jurors gathered in their hotel rooms

to watch movies, talk, and play cards. She stated that she was able to make phone calls

only while supervised by a deputy, and she explained that all of her phone calls were

logged by deputies. Juror Vestal said that she never had a conversation about the trial

during her phone calls. Juror Vestal participated in the two family member visitations;

she stated that she never discussed the trial with visitors. Juror Vestal testified that she

did not recall a juror saying anything about the Defendant’s grandfather. On cross-

examination, Juror Vestal explained that one juror read the letter written by the

Defendant to other jurors during deliberations. The juror also read the poem at the end of

the letter, which Juror Vestal believed the Defendant had written. Juror Vestal did not

recall any jurors “saying anything negative or positive” regarding the poem.

Juror Holland testified that he served as a juror at the Defendant’s trial. He

recalled that he would occasionally join other jurors during smoke breaks and that a

deputy always accompanied jurors for those breaks. Juror Holland testified that the only

time he was left alone was “[w]hen [he] went to sleep at night.” He explained that there

was not a phone in his hotel room, and jurors were not allowed to have cell phones.

When he wanted to make a phone call, he had to go into a hotel room with a deputy, who

monitored his conversations. Juror Holland stated that he never discussed the case during

- 42 -

these phone calls. He stated that, when he would go to the exercise room, a deputy would

stand at the door and watch. He recalled that there were several deputies in the room

during family member visitations and that he never heard other jurors discussing the case

with family members during those meetings. On cross-examination, Juror Holland stated

that one juror requested a magnifying glass during deliberations so that she could read the

poem at the end of the Defendant’s letter. Juror Holland said that he believed that the

Defendant had written the poem but that the jurors did not talk about it “a whole lot,” and

no one attempted to interpret the poem. He stated that he did not hear any juror comment

about the Defendant’s grandfather.

Juror Bennett, a juror at the Defendant’s trial, testified that when she went on

smoke breaks or to the exercise room a deputy always accompanied her and the other

jurors, and they were never left unattended. She stated that deputies maintained a call log

of all of the jurors’ phone calls, and a deputy was in the room while she was on the

phone. Juror Bennett said that she never had a conversation about the trial during her

phone calls. She stated that no one attempted to tell her anything about the case during

these conversations. Juror Bennett recalled that there were several deputies watching the

jurors during family member visits, and the deputies were in a position to overhear their

conversations. Juror Bennett never heard anyone talking about the trial during the visits.

Juror Bennett explained that she had “heard of the Bargerys most all of [her] life”

because she lived nearby but that she did not know the family personally. During

deliberations, she mentioned that a member of the Bargery family was “a well[-]known

farmer in Lake County.” She explained:

I had said that I had known his grandmother, Miss Billie, for several

years, and I hated that she was having to go through what she was having to

go through. And that’s the only thing I remember ever saying about that.

On cross-examination, Juror Bennett said that she did not recall discussing the

Defendant’s father’s death during deliberations nor did she recall saying that the

Defendant’s grandfather “always bought those boys out of trouble[.]” Regarding the

poem on the Defendant’s letter, Juror Bennett stated that she believed he had written it.

Juror Edwards testified that she served as a juror at the trial. She recalled that

deputies escorted jurors when they wanted to use the exercise room and take smoke

breaks. Juror Edwards said that deputies never left jurors unattended and that no one

outside the jury attempted to talk to her about the Defendant’s case. She recalled that the

deputies made a call log of each juror’s phone calls and that deputies were in the same

room while jurors were on the phone. She said that, during the phone calls, she never had

a conversation about the trial. During family member visitations, the deputies were in the

same area monitoring the interaction. She stated that she never spoke to visitors about

- 43 -

the case and that she did not overhear any other jurors speaking about it. Juror Edwards

recalled that she played cards two times with other jurors in a hotel room, but they were

“very careful” not to discuss the trial. She testified that, at no point during the trial, was

she provided information by anyone outside the jury. On cross-examination, Juror

Edwards stated that she did not recall Juror Bennett talking about the Defendant’s family.

Regarding the poem on the Defendant’s letter, Juror Edwards stated that she was not sure

if the Defendant had written the poem.

Following a hearing, the trial court entered a written order denying the motion for

new trial. This timely appeal follows.

Analysis

I. Motion to Suppress

Before trial, the Defendant filed a motion to suppress, requesting that the trial

court suppress all evidence obtained as a result of the illegal seizure, search, and arrest of

the Defendant. At an evidentiary hearing, Chief Kenny Lee of the Ridgely Police

Department testified that he received a phone call on March 4, 2011, from an anonymous

caller who stated that the Defendant was “trying to sell guns.” Chief Lee then “passed

the tip along” to the Lake County Sheriff’s Department, the agency investigating the

victims’ murders.

Deputy Patrick Leake of the Lake County Sheriff’s Department testified that,

during the investigation at the crime scene, investigators determined that guns and

jewelry were missing from the Shell residence. After the sheriff’s department received

an anonymous tip that the Defendant was “selling guns around town,” Deputy Leake was

tasked with locating the Defendant in order to ask him about the guns. Deputy Leake,

along with Deputy Mario Montgomery, patrolled the county for several hours before

seeing the Defendant’s vehicle at the residence of Dennis Chisholm. Deputy Leake

intended to conduct a knock and talk at the Chisholm residence. He parked his patrol car

in the driveway, exited the vehicle, and knocked on the front door of the residence.

When Mr. Chisholm answered the door, Deputy Leake asked Mr. Chisholm if the

Defendant was at the residence, and Mr. Chisholm replied that he was there. Deputy

Leake then asked for permission to enter the residence, saying that he “needed to talk to

[the Defendant].” Mr. Chisholm told Deputy Leake to “come on in.” Once inside,

Deputy Leake saw Mr. Chisholm’s son, Curt, standing in the kitchen and asked,

“[W]here did [the Defendant] go?” Curt told the deputy that the Defendant “just ran out

the back door.” Deputy Leake went to the open back door, looked outside, and saw the

Defendant standing by a shed. While standing in the doorway, Deputy Leake said to the

Defendant, “Hunter, come here,” and the Defendant “walked right to [him].” Deputy

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Leake said, “Let’s go out front. We need to talk to you.” The Defendant responded,

“Okay.” Deputy Leake did not have his weapon drawn and did not make any threats to

the Defendant. The Defendant and Deputy Leake walked back through the residence and

out the front door. By the time they got to the driveway, additional officers had arrived at

the residence. There were four or five police cars, but the cars did not have their blue

lights activated. Deputy Leake did not place handcuffs on the Defendant or touch the

Defendant, and he did not ask the Defendant any questions. Deputy Leake testified that

he noticed no signs that the Defendant was under the influence of drugs or alcohol.

Deputy Jason Tubbs asked the Defendant for consent to search his car, and the

Defendant gave consent. The Defendant said, “[Y]eah, search it, there’s nothing in

there.” Moments later, Deputy Allison arrived and read the Defendant his Miranda

rights. Deputy Allison asked the Defendant if he had sold any guns, and the Defendant

said that he had not. Deputy Allison then asked for consent to search the Defendant’s

vehicle, and the Defendant again consented. Deputy Leake testified that deputies made

no threats and did not attempt to coerce the Defendant.

Deputy Leake recalled that when they began searching the Defendant’s car, he

conducted a pat down of the Defendant for weapons for “officer safety.” Deputy Leake

first asked the Defendant, “Can I pat you down? Do you have anything on you?” The

Defendant responded, “Go ahead, there’s nothing on me or in my car.” Upon conducting

the pat down, Deputy Leake noticed a square object in the right cargo pocket of the

Defendant’s pants. Deputy Leake was unsure of what the object was; he thought that it

could have been a small gun in a case. Deputy Leake removed the object from the

Defendant’s pocket and found that it was a digital scale in a leather case and that the

scale had marijuana residue on it.

Deputy Leake asked Mr. Chisholm for consent to search the yard to make sure

there were no “weapons or drugs or anything back there.” Mr. Chisholm consented to the

search. Deputy Leake found several baggies containing marijuana in the backyard “in a

pretty straight line,” leading to where he had seen the Defendant.

Chief Deputy Jason Allison testified that, on March 4, 2011, he responded to the

crime scene at the Shell residence after the victims’ bodies were discovered by family

members. Deputy Allison cleared the house, “making a quick sweep of the house.” He

saw that the house appeared to have been ransacked; he saw a wallet laying in the floor

and jewelry spread out on a bed. Investigators learned from the victims’ family members

that several guns and some pieces of jewelry were missing from the residence.

Deputy Allison testified that he received a call from Chief Lee, who told him that

he had received a tip that the Defendant had been “selling guns in town.” He also learned

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that the Defendant was “kin” to the Shell family by marriage. He told Deputy Leake to

talk to the Defendant and ask if he had sold any guns that day. That evening, Deputy

Allison heard a radio transmission from Deputy Leake that he had located the

Defendant’s vehicle at Dennis Chisholm’s residence. Deputy Allison then heard a

second radio transmission from Deputy Leake that the Defendant “just ran out the back

door.” He responded to the Chisholm residence, arriving approximately two minutes

after the transmission. There were four or five deputies standing outside with the

Defendant and a couple of Tiptonville City officers sitting in their patrol cars on the

street. The Defendant, who was standing in the driveway, was not handcuffed, officers

did not have their weapons drawn, and no one was searching the Defendant’s car.

However, Deputy Tubbs told Deputy Allison that the Defendant had given consent to

search his vehicle.

Deputy Allison read the Defendant his Miranda rights, and the Defendant

indicated that he understood his rights. Deputy Allison testified that he was familiar with

the signs of intoxication, and the Defendant did not appear to be under the influence of

any intoxicant. He asked the Defendant if he had any guns or if he had sold any guns that

day. When the Defendant denied having or selling guns, Deputy Allison asked for

permission to search his car. The Defendant responded, “Yes, sir, go ahead, there’s

nothing in there.” It was a “very casual conversation,” and the Defendant was not

threatened or coerced into giving consent. Deputy Allison searched the front passenger

side door. He saw a pill bottle on the floor board, which contained pills that appeared to

be Xanax, but the bottle did not contain a label. He removed the pill bottle and a cell

phone. He and Sheriff Avery then saw a knife between the seats, and Sheriff Avery said,

“I think there’s blood on this.” Deputy Tubbs was searching the trunk, and he reported,

“Chief, we got costume jewelry in the back.” At that time, Deputy Allison told everyone

to stop searching and “back out of the vehicle.” He knew that the vehicle would need to

be processed because they had possibly found items from the Shell residence. Deputy

Leake informed Deputy Allison of the digital scale and marijuana residue in the

Defendant’s pocket, and Deputy Allison arrested the Defendant for possession of drug

paraphernalia.

Sheriff Bryan Avery testified that he went to the Chisholm residence after hearing

Deputy Leake’s radio transmission that he had found the Defendant’s vehicle. When he

arrived, the Defendant was standing in the driveway; he did not appear to be under

duress, he was not in handcuffs, and officers did not have their weapons drawn. After the

Defendant consented to a search of his vehicle, Sheriff Avery and Deputy Allison found a

knife near the center console. The knife had a “red substance” on it where the blade and

the handle met.

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Deputy Jason Tubbs testified that Deputy Allison instructed deputies that, if they

saw the Defendant, they should stop and ask if he was selling guns. Deputy Tubbs

testified that he went to the Chisholm residence after hearing Deputy Leake’s radio

transmission that he had located the Defendant but that the Defendant was “running out

the back door.” When Deputy Tubbs arrived at the residence, the Defendant and Deputy

Leake were coming out the front door of the house. Deputy Leake did not have his

weapon drawn and was not touching the Defendant, and the Defendant never said that he

wanted to leave. Deputy Tubbs asked the Defendant for consent to search his vehicle.

The Defendant consented to the search and asked Deputy Tubbs, “What’s this about, Owl

Hoot?” Deputy Tubbs recalled that the Defendant then took a step towards the vehicle as

if he was going to open the door for Deputy Tubbs when Deputy Allison pulled into the

driveway. Deputy Tubbs informed Deputy Allison that the Defendant had given consent

to search his car. Deputy Allison also asked for permission to search the vehicle, and the

Defendant stated, “Yes, sir, go ahead.” Deputy Tubbs searched the trunk of the vehicle.

The trunk was “pretty packed,” but underneath everything, Deputy Tubbs found a Crown

Royal bag containing jewelry. When Deputy Allison instructed everyone to “[g]et away

from the vehicle,” Deputy Tubbs closed the trunk.

Deputy Corey Glidewell testified that Deputy Allison told deputies to “be on the

lookout” for the Defendant because the Defendant was supposed to have been selling

guns that may have come from the Shell residence. Deputy Glidewell arrived at the

Chisholm residence after Deputy Leake and Deputy Montgomery. Deputy Glidewell saw

Deputy Leake perform a pat down search of the Defendant while they were under the

carport in the driveway. Deputy Leake told the Defendant that he was going to pat down

the Defendant “for safety.”

Dennis Chisholm testified that, on March 4, 2011, he was at his residence on

Headden Drive in Tiptonville with his wife and son, Curt, when Deputy Leake knocked

on his door. Deputy Leake asked if the Defendant was there and if he could speak to the

Defendant. Mr. Chisholm told Deputy Leake that the Defendant “just went out the back

door.” At that time, Deputy Leake “came through the house to the door that [the

Defendant] had left out of.” Two other officers stood inside the door but did not come

through the house with Deputy Leake. Mr. Chisholm later counted twenty-four officers

outside the front of the house and saw that there were patrol cars blocking the

Defendant’s car in the driveway. Both Mr. Chisholm and his wife, Rachelle Chisholm,

testified that, in their interactions with the Defendant earlier that afternoon, the Defendant

appeared to be intoxicated.

Deputy Mario Montgomery testified that, after the sheriff’s department received

information from “someone” that the Defendant “had been trying to sell a stolen pistol or

a computer,” he and Deputy Leake found the Defendant’s vehicle at the Chisholm

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residence on Headden Drive. Deputy Montgomery said that he had known the Defendant

for several years and was familiar with the Defendant’s car. Deputy Montgomery said

that they pulled in the driveway and “parked behind [the Defendant’s] vehicle.” Deputy

Montgomery explained that he was standing in the carport area when he heard Deputy

Leake say, “He’s running out the back door.” Deputy Montgomery entered the fenced

backyard where he saw the Defendant beside a shed, petting some puppies. Deputy

Montgomery recalled that Deputy Leake asked the Defendant if he could conduct a pat

down for his safety while they were still in the backyard. The Defendant said, “I don’t

have anything on me . . . you can search me if you like.” When Deputy Leake patted

down the Defendant, he felt “bulges” in the Defendant’s jacket. When Deputy Leake

asked what it was, several bags of marijuana fell onto the ground. Deputy Montgomery

testified that, after the discovery of the bags of marijuana, Deputy Leake placed the

Defendant in handcuffs and walked “through the [fence] gate back onto the concreted

driveway.” When they got to the front yard, the Defendant asked him, “This doesn’t

have anything to do with the . . . Shells’ murder, does it?” Deputy Montgomery told him

that he was “not at liberty to discuss anything with [the Defendant] at th[at] time.” He

told the Defendant that he was just there to “pick him up” and that an investigator

“wanted to speak with [the Defendant].”

Following the hearing, the trial court entered a memorandum opinion, which read

in pertinent part:

[W]hile officers were investigating a gruesome murder scene, they

discovered that there [were] jewelry and guns missing. During the

investigation at the crime scene, they received a call from Chief Kenny Lee

stating that an unidentified informant had advised them that [the Defendant]

was attempting to sell guns. Knowing that guns had been taken from the

Shell home and with this tip, the Lake County Sheriff’s Department

deputies were notified to locate [the Defendant], and question him about

whether or not he had been selling guns. Sheriff Avery, [] Deputy Allison,

[] Agent Bishop and [] Agent Ferguson continued their investigation at the

scene. Deputy Leake located the [D]efendant’s car at the Dennis Chisholm

home in Tiptonville. Deputy Leake went to the home and knocked on the

front door and asked Mr. Chisholm if [the Defendant] was there. He was

told that he was there. Deputy Leake was invited in to talk to [the

Defendant]. At this point, Kirk Chisholm standing in the kitchen[,] stated

that [the Defendant] had just run out the back door. The Sheriff’s

Department was notified that the [D]efendant had run out the back door.

Deputy Leake called for the [D]efendant[,] who was in the backyard. The

[D]efendant came to the house. They went out the front of the house at

which point the [D]efendant was asked by Deputy Tubbs if they could

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search his car. At this time, [] Deputy Allison arrived. The [D]efendant

had already been [M]irandized, and Chief [Deputy] Allison [M]irandized

him again and also got permission to search the vehicle. At this point,

Deputy Leake performed a pat down and found drug paraphernalia. During

the search of the vehicle, the Lake County Sheriff’s Department found

evidence of jewelry and a knife which appeared to have blood on it. Up to

this point, the [D]efendant had not been in custody. The defense argues

that he was unable to leave because he was blocked in and because there

appeared to be an overwhelming number of law enforcement officers

present. The [D]efendant, however, was not in custody and no custodial

interrogation had taken place at that time. He was then placed under arrest

for being in possession of drug paraphernalia. He was taken to the Sheriff’s

Department where he was again [M]irandized and he was interviewed. He

had asked a question at the Chisholm home as to whether or not this

involved Owl Hoot Road. The Shell home was on Owl Hoot Road.

Although the [D]efendant was never formally advised the reason for the pat

down or a search of his vehicle, it appears that the [D]efendant knew why

the requests were made. At no time at the Chisholm home were any

weapons drawn or any threats or attempts to coerce the [D]efendant [made].

The [D]efendant was not handcuffed when his consent to search his vehicle

was given or when his consent to a pat down was given. The search of the

vehicle started after the [D]efendant had been [M]irandized and after he had

given permission to search the vehicle.

The Court does not find that there was a formal seizure of the

[D]efendant until after the pat down. The Court also finds that the Terry

pat down was constitutionally valid as it was supported by reasonable

suspicion of criminal activity. In addition to the anonymous tip, all of the

officers involved were aware that there had been a gruesome murder. They

were aware that there was a relationship between the [D]efendant and the

parties murdered. They also were aware that jewelry and guns had been

taken from the crime scene. When Deputy Leake went to the Chisholm

home, it appeared that the [D]efendant was running out the back door.

With all this information, the Court finds that a Terry stop was proper under

the circumstances of this case.

The Court finds also that[,] although the Defendant may not have

appeared to have been himself, there is no evidence to conclude that he was

under the influence of alcohol or drugs so that he was unable to understand

the request being made of him or the Miranda Rights which he was given

on multiple occasions. The Court, therefore, finds that he gave consent to

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search the vehicle and consent to make the pat down although it does not

appear necessarily that consent for the pat down was necessary. Although

there were many officers present and the driveway was blocked, the Court

does not feel that the consent to search the vehicle should be suppressed

because of a coercive environment. The defendant was not threatened or

coerced in any way. He was not placed under arrest or handcuffed until

after the pat down when drug paraphernalia was discovered. The conduct

of all the officers present does not negatively affect the validity of the

consent.

Accordingly, the trial court denied the Defendant’s motion to suppress.7

On appeal, the Defendant contends that his rights under the Fourth Amendment of

the United States Constitution and Article I, section 7 of the Tennessee Constitution were

violated by the trial court’s denial of his motion to suppress evidence obtained by the

search of his person and automobile. The Defendant contends that the trial court: (1)

erroneously relied upon the anonymous tip as a basis for the detention; (2) erroneously

found that the Defendant was not in custody when he was searched by Deputy Leake; (3)

erroneously found that, although the Defendant was never formally advised of the reason

for the pat down search or a search of his vehicle, it appeared that the Defendant knew

why the requests were made; (4) erred in finding there was no formal seizure of the

Defendant until after the pat down; and (5) erred in finding the Terry pat down was

constitutionally valid and supported by reasonable suspicion. The State responds that the

trial court properly denied the motion to suppress because the Defendant’s encounter with

law enforcement was consensual “up to and including the time digital scales containing

marijuana residue were discovered on his person.” Alternatively, the State asserts that

any Terry stop was supported by reasonable suspicion.

A. Standard of Review

When reviewing a motion to suppress, this court is bound by the trial court’s

findings of fact unless the evidence preponderates otherwise. State v. Odom, 928 S.W.2d

18, 23 (Tenn. 1996). Questions of credibility, the weight and value of the evidence, and

resolutions of conflicts in the evidence are resolved by the trial court. Id. The prevailing

party is entitled to the strongest legitimate view of the evidence and all reasonable

7

The Defendant subsequently filed a motion to alter or amend the trial court order denying the

motion to suppress. Following a second evidentiary hearing, however, the trial court found that “there

was no material change in the testimony of various witnesses” and concluded, after reviewing the

transcript of the Defendant’s preliminary hearing, the transcript of a defense expert, and the transcript of

evidence from the initial motion to suppress hearing, that there was no basis for altering or amending the

trial court’s original memorandum opinion.

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inferences that may be drawn therefrom. Id. We review the trial court’s conclusions of

law de novo. State v. Carter, 160 S.W.3d 526, 531 (Tenn. 2005). When reviewing a trial

court’s ruling on a motion to suppress, this court may consider the entire record,

including the proof presented at the suppression hearing as well as at trial. State v.

Thacker, 164 S.W.3d 208, 248 (Tenn. 2005); State v. Walton, 41 S.W.3d 75, 81 (Tenn.

2001); State v. Henning, 975 S.W.2d 290, 297-99 (Tenn. 1998).

B. Police-Citizen Encounters

It is well-settled that courts have divided police-citizen encounters into three

different categories: (1) a full scale arrest which must be supported by probable cause; (2)

a brief investigatory detention which must be supported by reasonable suspicion; and (3)

brief police-citizen encounters which require no objective justification. State v. Daniel,

12 S.W.3d 420, 424 (Tenn. 2000) (citing Brown v. Illinois, 422 U.S. 590 (1975); Terry v.

Ohio, 392 U.S. 1, 20-22 (1968); Florida v. Bostick, 501 U.S. 429, 434 (1991)). “Of the

three categories, only the first two rise to the level of a ‘seizure’ for constitutional

analysis purposes.” State v. Day, 263 S.W.3d 891, 901 (Tenn. 2008).

The United States and Tennessee Constitutions protect citizens from unreasonable

searches and seizures. U.S. Const. amend. IV; Tenn. Const. art. I, § 7; State v. Binette, 33

S.W.3d 215, 218 (Tenn. 2000). “[A] warrantless search or seizure is presumed

unreasonable, and evidence discovered as a result thereof is subject to suppression unless

the State demonstrates that the search or seizure was conducted pursuant to one of the

narrowly defined exceptions to the warrant requirement.” State v. Yeargan, 958 S.W.2d

626, 629 (Tenn. 1997) (citing Coolidge v. New Hampshire, 403 U.S. 443, 454-55

(1971)). A seizure occurs when “in view of all the circumstances surrounding the

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

Daniel, 12 S.W.3d at 425 (internal citations omitted). “In order to determine whether a

particular encounter constitutes a seizure, a court must consider all the circumstances

surrounding the encounter to determine whether police conduct would have

communicated to a reasonable person that the person was not free to decline the officer’s

request or otherwise terminate the encounter.” Id. (quoting Bostick, 501 U.S. at 440)

(internal quotation marks omitted). The factors that a court should consider when

determining whether a seizure has occurred include, but are not limited to, “the time,

place and purpose of the encounter; the words used by the officer; the officer’s tone of

voice and general demeanor; the officer’s statements to others who were present during

the encounter; the threatening presence of several officers; the display of a weapon by an

officer; and the physical touching of the person of the citizen.” Id. at 425-26 (internal

citations omitted). The Fourth Amendment is implicated when a police officer:

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(1) pursues an individual who has attempted to terminate the contact by

departing; (2) continues to interrogate a person who has clearly expressed a

desire not to cooperate; (3) renews interrogation of a person who has earlier

responded fully to police inquiries; (4) verbally orders a citizen to stop and

answer questions; (5) retains a citizen’s identification or other property; (6)

physically restrains a citizen or blocks the citizen’s path; [or] (7) displays a

weapon during the encounter.

Id. at 426 (citing 4 Wayne R. LaFave, Search & Seizure, § 9.3 (a), at 104 (3d ed. 1996 &

Supp. 1999) (collecting cases)).

C. Consent Exception to the Warrant Requirement

Consent is one of the recognized exceptions to the warrant requirement.

Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). In order to be valid, consent must

be “‘unequivocal, specific, intelligently given, and uncontaminated by duress or

coercion.’” State v. Ingram, 331 S.W.3d 746, 760 (Tenn. 2011) (quoting State v. Berrios,

235 S.W.3d 99, 109 (Tenn. 2007)) (internal quotation marks omitted). “Whether an

individual voluntarily consents to a search is a question of fact to be determined from the

totality of the circumstances.” Berrios, 235 S.W.3d at 109. “The pertinent question is . .

. whether the [individual’s] act of consenting is the product of an essentially free and

unconstrained choice. If the [individual’s] will was overborne and his or her capacity for

self-determination critically impaired, due process is offended.” State v. Cox, 171

S.W.3d 174, 185 (Tenn. 2005) (citing Schneckloth, 412 U.S. at 225-26). Factors to be

considered when evaluating the voluntariness of consent include the time and place of the

encounter; whether the encounter was in a public or secluded place; the number of

officers present; the degree of hostility; whether weapons were displayed; whether

consent was requested; and whether the consenter initiated contact with the police. Id.

The State bears the burden of proving that the consent was freely and voluntarily given.

State v. Blackwood, 713 S.W.2d 677, 680 (Tenn. Crim. App. 1986).

Here, the evidence shows that, after Deputy Leake saw the Defendant’s car at the

Chisholm residence, he parked his patrol car in the driveway, exited the vehicle, and

knocked on the front door of the residence. Mr. Chisholm answered the door, and

Deputy Leake asked if the Defendant was there. Mr. Chisholm replied in the affirmative

and invited Deputy Leake into the residence to speak to the Defendant. Curt Chisholm,

who was standing in the kitchen, stated that the Defendant had “just run out the back

door.” Deputy Leake went to the open back door, looked outside, and saw the Defendant

standing by a shed in the backyard. Deputy Leake did not approach the Defendant. He

stood rather in the doorway and called to the Defendant, “Hunter, come here,” and the

Defendant “walked right to [him].” Deputy Leake explained that he needed to talk to the

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Defendant and suggested that they “go out fr

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