Opposition Brief — Urshawn Eric Miller, Petitioner v. Tennessee

No. 21-7809

IN THE SUPREME COURT OF THE

UNITED STATES

URSHAWN ERIC MILLER,

Petitioner,

v.

STATE OF TENNESSEE,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

TENNESSEE SUPREME COURT

APPENDIX TO RESPONDENT?’S BRIEF IN OPPOSITION

HERBERT H. SLATERY III

Attorney General and Reporter

ANDREE SOPHIA BLUMSTEIN

Solicitor General

KATHERINE C. REDDING

Senior Assistant Attorney General

Counsel of Record

P.O. Box 20207

Nashville, Tennessee 37202

(615) 741-8120

Katherine.Redding@ag.tn.gov

Counsel for the Respondent

INDEX OF APPENDICES

APPENDIX 1: State v. Miller, No. W2019-00197-CCA-R3-DD

(Petitioner’s brief filed in Court of Criminal Appeals) ..........:.cccccsssesssceseeeeseteerseeeneeasseeenaes 1

APPENDIX 2: State v. Miller, No. W2019-00197-CCA-R3-DD

(Petitioner’s reply brief filed in Court of Criminal Appeals) .............::csescssssesessesteeeeeneeees 54

APPENDIX 3: State v. Miller, No. W2019-00197-CCA-R3-DD

(Petitioner’s brief filed in the Tennessee Supreme Court).........cccccccseseseseeseseneeesesenensenenes 64

- IN THE COURT OF GRIMINAL APPEALS OF TENNESSEE

WESTERN DIVISION FILED

AUG 26 2019

STATE OF TENNESSEE, Clerk of the Appellate Courts

Appellee, Rec By

VS. C.C.A. Docket No. W2019-00197-CCA-R3-DD

Madison County Circuit, Division Il, No. 16-435

URSHAWN ERIC MILLER,

Appellant.

ON APPEAL AS OF RIGHT FROM THE JUDGMENT OF THE MADISON

COUNTY CIRCUIT COURT, DIVISION I

BRIEF OF APPELLANT

At Trial and On Appeal:

George Morton Googe, BPR #006178

District Public Defender

Gregory D. Gookin, BPR #023649

Assistant Public Defender

245 W. Sycamore St.

Jackson, TN 38301

(731) 423-6657

ORAL ARGUMENT REQUESTED

Attachment 1

TABLE OF CONTENTS

TABLE OF AUTHORITIES. ......... ceeenraissshauseseqisiuenaa iasageareorgeaivessnammaauses Ji

INTRODUCTION. ...cccccsseccsccecsescvesecsssvscscsecsseaesaeseesenenetseaeeenensessconsssssss i

ISSUES PRESENTED FOR REVIEW....scccccseccscseseseseeseceeeceneaceereesesesseaseenacties 2

STATEMENT OF THE CASE.........ccsscscsseeeeeeeees eee ee ae 3

STATEMENT OF THE FACTS..0..2c:cccccescecseseeesseneeseeeees ecanevecausssecscescscaeeess 5

ARGUMENT .oscccccssececcsceccocsteceecevececscesesssececsenecectseeeaeseeecaeneueseasseccesseees 14

CONCLUSION. ..s.scescssccssesceseseseseeeseseeees eceeseecsenscaceasacsacsesesceeseseasseaeees 46

CERTIFICATE OF SERVICE. ...c.cccesssscsescecesscsescnsnsesesaeeneaceesssssscersesssseneeess 4]

ii

RS FS FH 2S fs ES

TABLE OF AUTHORITIES

UNITED STATES CONSTITUTIONAL AMENDMENTS:

Amendment V.........ccccceeccecceseececnneuasacetecnseeeeesenseenegeneeeeseeceeseneanseaes sans 32,44

Amendment VI.........0cccccrececccecececceseceeeescectcessbeneesegeeaeneeeseasaeseenseneneueges 21,32

Amendment VIII...........2cccccceeesecececcecercceecteeeneseseneneeneectsuessaasenrenetsnte 32,36,44

Amendment XIV........ccccccessvccevececceeecesceasacesecersesensereaenaeeesseatecrscesesenees 32,44

TENNESSEE CONSTITUTIONAL PROVISIONS:

Article J, Section 6............cecseeeccceseeecesseeeseuscesecesssesaesaeseueeseransnesrarersens 32,44

Article I, Section 8............-.cecessseneeeees OR snocBecocosos neocons A panococc teoooo Mecononoo 32,44

Article I, Section 9..........sccseccseseecenerenseeceeerecetenesenn ena nenssenssensesaseeserees cee anee 21

Article I, Section 16............--sceccsssssceeaeeeecseeerenreneaaearsesaneeeanersseraseseseetes sens 36

Article I, Section 17.........-..-ccsescsveeseeneneceraceeeeeesasseasssaeeascrnseseeacsceeeseae ren 32,44

UNITED STATES SUPREME COURT CASES:

Baze v. Rees, 553 U.S. 35, 47, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008). ......--2--+21ee0 36

Gregg v. Georgia, 428 U.S. 153 at 203, 96 S.Ct. 2909 at 2939 (1976)... 2c cececseeeeneneee 34

Jackson v. Virginia, 443 U.S, 307, 99 S, Ct. 2781, 61 L. Ed. 2d 560 (1979)..........0000 14

Morgan vy, Illinois, 504 U.S. 719, 112 8.Ct. 2222, 119 L.Ed.2d 492 (1992)........0066 22,32

Uttecht v. Brown, 551 U.S. 1, 127 S.Ct. 2218, 167 L.Ed.2d 1014 (2007).........-.0++++ 27

Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844 83 L.Ed.2d 841 (1985) siossvacsvsswerees- 21

TENNESSEE SUPREME COURT CASES:

Abdur'Rahman y. Bredesen, 181 S.W.3d 292 (Tenn. 2005)....-..-----+++++4 venaeveceusececss 36

State v. Banks, 271 S.W.3d 90 (Tenn. 2008)....-....--:2sseeeeeeeeeeeeeeeceeseeenesssceeeescnes 36

State v. Barber, 753 S.W.2d 659 (Tenn. 1988)......s0sccscceseeeceeeeeeeeeenees sssanetsnseses 33

iti

State v. Bland, 958 S.W.2d 651 (Tenn. 1997)......::ereeeeeeescereeseeteeeeseneeanes paisawee 14,15 .

State v. Brown, 836 S.W.2d 530 (Tenn. 1992)... ...cccccceccereeseeceeenerereeseeeernseeesnens 15

State v. Buggs, 995 S.W.2d 102 (Temn.1999)........-.sseeseee eee ceereenersterees tenses ersenees 16

State v. Carter, 714 S.W.2d 241 (Tenn. 1986).....-..--.csscseseeerecese er ee cere neecn nese cnees 33

State v. Dotson, 450 S.W.3d 1 (Tern, 2014)........cccceeeeeeesesa ee eeeneenerseeenarenenne czars 37

State v. Groseclose, 615 S.W.2d 142 (Tenn. 1981).......c0seceeeeeseereerteereeneereeueee sees 33

Hale v. State, 198 Tenn. 461, 281 S.W.2d 51 (1955)......-.-seeeeseeeeeeeeeeneeneneeserses ees 31

State v. Hall, 976 S.W.2d 121 (Tern.1998).........cesseecereeecee ees eeeceeeeeuuetsesseeeenenens 34

State v. Howell, 868 S.W.2d 238 (Tenn. 1993).......-...c0eeceeseeer reece eeeeeneaeessereesnees 2)

State v. Jordan, 325 S.W.3d 1 (Tenn. 2010).....-....:esseeeseeseeeeeeenceeneeseeeenee tes cnens 37

Keen v. State, 398 S.W.3d 594 (Tenn. 2012)......---ssereeceesceereessereneeanerseneessenae esos 36

State v. Keough, 18 S.W.3d 175 (Tenn, 2000)......-.-sccrccssesesssseteeesercreeeseessseeneens 14

Manning v. State, 155 Tenn. 266 S.W. 451 (1927)......000ceeeeeeeeeersereeereenerteneneseeees 21

State v. Rollins, 188 S.W.3d 553 (Tenn. 2006).........-:ececseeeeeeeneeeceesentnnrreseteeseeees 37

State v. Sims, 45 S.W.3d 1 (Tenn, 2001).......-.:---ececeetecnerseseeeeneee teen eesnseenenssseens 43

State v. Tuggle, 639 S.W.2d 913 (Tenn. 1982)......--..scsccesssceccrsceese nen erenernneeetecees 14

Wooten v. State, 99 Tenn. 189, 41 S.W. 813 (1897)...-.-..-seecceeee cee eeer en reecnceeenaneenes 22

TENNESSEE COURT OF CRIMINAL APPEALS CASES:

State v. Coury, 697 S.W.2d 373 (Tenn. Crim. App. 1985).....--..serserereeeenersreseesreees 31

State v. Gentry, 881 S.W.2d 1 (Tenn. Crim. App. 1993)......----e-cereseereeeseeessereeesennes 15

State v. Humphreys, 70 S.W.3d 752 (Tenn. Crim. App. 2001 )sdecescnasassessevaeriveeswon 21

State v. Kilburn, 782 §.W.2d 199 (Tenn. Crim. App. 1989)......---+2+--+eeeeeeceeereetseees 21

State v. Lee, 969 S.W.2d 414 (Tenn. Crim. App. 1997).....--.2:seseeeeeneesseneeterersrscees 16

iv

7

. . > rela tak

McCook v. State, 555 S.W.2d 411 (Tenn. Crim. App. 1977)...........e2ceeeeereeeeeeee weed

Tittsworth vy. State, 503 S.W.2d 523 (Tenn. Crim. App. 1973)..........seeereeeeeeneceeeees 22

TENNESSEE CODE PROVISIONS:

T.C.A. § 39-12-10 1 (a)... sec ceecccceececeeeeeeeeecceeneerseeeseccenaensesseeaneeneneanensnenanan sane 17

T.C.A. § 39-13-101(A)(2). 00. ececcenenceeeeeenecereceecseneseeeeeseceeeeaceneneneenaaeareeeeeeets 19

T.C.A. § 39-13-102(a)(1AYGii) seneceversesecacsesanseeuacenscccsenseacesaac senses seanese ener 18,19

T.C.A. § 39-13-202(a)(1)......ceeeceeereceeeneeteeeteneeesaeeneeeneeessseaeesaeneeaueeeeeeaennesaes 14

T.C.A. § 39-13-202(a)(2).....0.ceeeeeeeeeeeeneeeneeeeeees peeroenoner eeetsereser wove ese lan eee 16

T.C.A. § 39-13-202(b).........c2ccceseceeeteeneneeeeseneetesseaceneceaeeseeaenenersseaeseecoann eres 16

T.C.A. § 39-13-204(C). 2... ecceeecserereaeeeseeeeeeeeceeeeeneceneeeerneenenerseeaesanenesenensnes 43

T.C.A. § 39-13-204(i)(2), (7)... -.0.ececeeceeceeeeenenaecouneeeeesseneenenes Senseeeenseee eens DIAG

T.C.A. § 39-13-206(C)(1)(C)...-----ccceeeeeeccecceceerectceneaeescerseaneascnnaaesonseseunreres 37

T.C.A. § 39-13-206(C)(1)(D).......-.-ceeereeeeceureceeceeeees be ue ss eee acne Pocensco coe)

T.C.A. § 39-13-210(a)(1)......-.-- SSRRSS (SSS SSASTENR = Se fae lewis TESTS OTSTWNSTOINSTOD SIBEISETaraceniieeinend 18

T.C.AL § 39-13-40]... cece cece eeeeceeceeceeuenenrscrerecrereeeeseecesceaeaseaseneaucensusesererns 17

T.CA. § 39-13-4030... ceeccescceeseeneeencceeeeecaaneorscsuaeessereeesaseneaereecens pecenoorc 17

T.C.A. § 39-17-1324(b).... ce cecceecee eee eeeceetectsereeneeeeteasenmeeraaes a » RERRGGTREE SAO 19

T.C.A. § 39-17-1324 ()(1)(B) eee ecceceeececeecetenececseeeeesasaeeaeneeseneeacaaaeenserencenctes 19

OTHER AUTHORITY:

State v. Ramsey, 864 S.W.2d 320 (Mo. banc 1993)..........ccsseceeseeeeceeeenees eerste a enees 33

State v. Webb, 680 A.2d 147 (Conn. 1996)......-:2ccesecesecnssseesenceeesererer ences ce ees 33,34

v

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INTRODUCTION

MAY IT PLEASE THE COURT:

This is an appeal from Appellant’s convictions for First Degree Murder, First

Degree Murder in Perpetration of Attempted Especially Aggravated Robbery, Attempted

Second Degree Murder, Aggravated Assault, Employing Firearm With Intent to Commit

a Dangerous Felony, Attempted Especially Aggravated Robbery, and Evading Arrest.

Appellant received a sentence of Death for the F irst Degree Murder and Felony Murder

convictions; for the other offenses, he received a total effective sentence of thirty (30)

years, to be served concurrently with the Death sentences.

This case was tried by a jury before the Honorable Donald H. Alien, Judge of the

Circuit Court of Madison County, Tennessee, Division II. Appellant properly perfected

his appeal to this Court seeking a reversal and/or modification of his conviction and

sentence.

The parties will be referred to as “Appellant” and “State.”

The record on appeal consists of: the technical record, being three (3) volumes;

one (1) supplement to the technical record; the transcript of the jury trial, being thirteen

(13) volumes; the transcript of the motion for new trial hearing, being one (1) volume;

and thirty-eight (38) exhibits. References to the technical record will be by volume

number and page number, ¢.g.; (I, 5). References to the transcripts will be by volume

number and page number, e.g., (III, 7).

ISSUES PRESENTED FOR REVIEW

Whether the evidence was sufficient to find that Appellant was guilty of

First Degree Murder, First Degree (Felony) Murder, Attempted Second

Degree Murder, Attempted Especially Aggravated Robbery, Aggravated

Assault, and Employing a Firearm During the Attempt to Commit a

Dangerous Felony?

Whether the trial court erred in denying Appellant’s motions to strike

jurors Ronald Robinson, Melissa Ann Little, and Joan Graves for cause?

Whether the trial court erred in excusing potential jurors John Eads, Grace

Milhorn, and Melony Sesti for cause, when Appellant objected to the

State’s challenges?

Whether the trial court erred in not excusing potential juror Dru Crum for

cause, when Appellant had exhausted all of his peremptory challenges?

Whether the death penalty is a disproportionate punishment in the instant

case?

Whether the death penalty in general, and lethal injection specifically,

constitute cruel and unusual punishment?

Whether the aggravating factors found by the jury outweighed the

mitigating factors beyond a reasonable doubt?

Whether the trial court erred in denying the Appellant’s motion in limine

regardirig the introduction of the video of his prior Aggravated Robbery

during the penalty phase?

STATEMENT OF THE CASE

Appellant was indicted on October 3, 2016, and charged with several offenses: to

wit, First Degree Murder (victim: Ahmad Dhalai), First Degree Murder in Perpetration of

Attempted Especially Aggravated Robbery (victim: Ahmad Dhalai), Attempted

Especially Aggravated Robbery, Attempted First Degree Murder (victim: Lawrence

Austin), Aggravated Assault, Employing a Firearm in the Attempt to Commit a

Dangerous Felony, Convicted Felon in Possession of a Handgun!, Resisting Artest, and

Evading Arrest. (1, 41-51) Appellant was found to be indigent and the Office of the

District Public Defender was appointed to represent Appellant. (1, 62)

This case was tried by a jury before the Honorable Donald H. Allen, Circuit Court

Judge of Madison County, Tennessee, Division II, upon a plea of not guilty. The trial

was held February 26-March 4, 2018. Appellant was convicted as charged of each

offense, save for count 4, in which he was convicted of Attempted Second Degree

Murder, and count 7, which was dismissed by the State. (I, 315-316, Mi, 337-343) The

jury recommended tee a death sentence be imposed for the First Degree Murder

convictions, and the Court entered judgments to that effect on March 5, 2018. (II, 315-

316) Appellant timely filed a Motion for New Trial on March 29, 2018. (il, 330-332)

The trial court conducted a separate sentencing hearing for the other offenses on

May 7, 2018. The trial court imposed the following sentences:

Count 3 Attempted Especially Aggravated Robbery 12 years, Rg. I

Count 4 Attempted Second Degree Murder 12 years, Rg. I

Count 5 Aggravated Assault 6 years, Rg. I

The charge of Convicted Felon in Possession of a Handgun was severed before trial; the State

subsequently dismissed this charge. (III, 340)

Count 6 _Employing Firearm in the Commission of 6 years, Rg. I

A Dangerous Felony

Count 8 Resisting Arrest 6 months”

Count 9 Evading Arrest 11 months, 29 days?

(III, 337-343) The trial court aligned the sentences such that Appellant would receive a

total effective thirty year sentence for the non-capital offenses, and ordered that these

sentences be served concurrently to his death sentences in Counts 1 and 2. (IH, 337-343)

Appellant jater filed an Amended Motion for New Trial on October 15, 2018, and the

trial court conducted a hearing on the post-trial motions on November 21, 2018. The trial

court entered an order denying Appellant’s Motion and Amended Motion for New Trial

on January 2, 2019. (IH, 456-464)

Appellant timely filed a Notice of Appeal on February 1, 2019. (il, 466-469)

This case is properly before this Honorable Court.

2 The judgment for count 8 lists the indicted offense as Resisting Arrest but lists the conviction offense as

Attempted Especially Aggravated Robbery. (III, 341) Appellant respectfully requests that this Court order

the count be remanded for entry ofa corrected judgment.

3 Appellant does not challenge his convictions for Resisting Arrest and Evading Arrest ~

4

Ey Cea Ee eR oo) ra

STATEMENT OF FACTS

JURY VOIR DIRE

The jury voir dire lasted from February 26-28, 2019, and the entire jury pool was

examined before a jury of twelve and three alternates were selected. A more detailed

discussion of each of the facts surrounding each contested individual juror will be

presented during the argument portion of Issues 2, 3 and 4,

MOTION IN LIMINE

Pre-trial; the defense filed a motion in limine regarding the admissibility of a

video depicting Appellant’s prior Aggravated Robbery crime. (II, 292-294) The trial

court held a hearing on the motion and denied it, finding that the State should be able to

put on relevant proof of Appellant’s prior felony conviction, as it was a statutory

aggravating factor. The trial court later entered an order denying this motion in limine.

(II, 300-301)

STATE’S GUILT/INNOCENCE PHASE PROOF

Jackson Police Officer Kevin Livingston responded to the Bull Market in Jackson,

on November 25, 2015. (XIII, 68) Upon arrival, Officer Livingston encountered a man

behind the counter inside the business. The man appeared to have been shot in the head,

and Officer Livingston witnessed the man pass away inside the business. (XII, 71)

Officer Livingston called for EMS to assist and then began securing the scene. (XIII, 72)

Abdul Saleh worked at the Bull Market alongside some of his relatives, including

the victim, Ahmad Dhalai. (XIII, 75) Mr. Abdul Saleh was working at the store on

November 25, 2015; Lawrence Austin was working there as a custodian, and Foad Saleh,

Abdul’s son, and Ahmad Dhalai were also on duty. (XII, 78) Shortly before 11:00 p.m.,

10

Mr. Saleh heard a loud pop while he was in the restroom. Upon investigating, he went

toward the cash register and found Ahmad Dhalai lying on the ground. CXHI, 79-80) Mr.

Saleh also saw a man wearing dark clothing and a hoodie. After retreating for his own

safety, Mr. Saleh heard two more “pops.” (XIII, 80-81) The other man then fled the

store and Mr. Saleh called the police. (XIII, 82)

Mr. Saleh also confirmed that there was video of the shooting incident, and

testified regarding the events that were depicted on the video. (XIII, 92-99)

On cross-examination, Mr. Saleh said that he did not see the hooded man holding

a handgun, but did see a handgun when he later watched the store surveillance video.

(XIII, 103) Mr. Saleh could not ascertain the identity of the assailant due to him wearing

a hood and having a mask over his face. (XII, 105)

Timothy Sinclair, a customer at the Bull Market, was backing out of the parking

lot when he observed a person approaching the business from the side. This person was

wearing dark clothes, a hoodie, and a mask. (XHI, 115) Mr. Sinclair estimated that this

person was a black male. (XIE, 116) When the person entered the Bull Market, he was

holding a gun, and Mr. Sinclair observed the person fire a shot. CXIIL, 119) After driving

away a short distance to escape the danger, Mr. Sinclair gathered himself and called the

police. (XIII, 119) While calling the police, he saw the shooter leave the store and walk

away toward Arlington Avenue. (XIII, 120-121)

On cross-examination, Mr. Sinclair agreed that he had previously testified in a

preliminary hearing and stated that he could not see anything but the assailant’s eyes, and

could not tell the sex and race of the person. (XIII, 138)

11

Lawrence Austin worked at the Bull Market doing various tasks that the owners

needed completed. (XIII, 145) On November 25, 2015, Mr. Austin was helping to clean

up the store when the hooded person entered the store. (XIII, 146) As Mr. Austin was

mopping, he heard a voice say “drop it off.” (XII, 147) Initially, Mr. Austin thought it

may have been a customer joking around, but he then heard a gunshot. (XTII, 148) Mr.

Austin tried to hide behind a refrigerator but realized that someone was shooting at him

as well. (XI, 149) When Mr. Austin turned back around, he saw the hooded person

jumping back across the counter and fleeing the store. Mr. Austin briefly left the store to

try and see where the shooter ran, but then came back inside the business and saw Mr.

Dhalai on the ground with “all this blood.” Gd, 150-151)

On cross-examination, Mr. Austin was confronted with his preliminary hearing

testimony. During that hearing, Mr. Austin said that he did not hear anything said by the

hooded person. However, Mr. Austin did say that he was certain that he heard “two or

three shots.” (XIII, 164-165) Mr. Austin previously testified that he was unsure of the

race of the person, but said at trial that he believed it was a black person who committed

the offenses. Cuil, 167)

Foad Saleh was working at the Bull Market. While on a break, Mr. Saleh was

riding his bicycle outside the store and heard two o¢ three gunshots. (XIII, 176) He then

saw a black male leaving the store; this man was wearing dark clothing and a hoodie.

(XII, 177) The black male went down Arlington Avenue as Mr. Sinclair testified. CXIIE,

180) On cross-examination, Mr. Saleh agreed that he did not see the male come into the

store. CXIII, 190)

12

mS SS ee

Lieutenant Shane Beaver of the Jackson Police Department responded to the Bull

Market after dispatch reported a shooting call at the business. (XIII, 204) Upon arrival

Lieutenant Beaver preserved the crime scene and received a report of the suspect’s

description and direction of travel. (XIH, 205) A K-9 officer had deployed his dog, Pax,

towards the direction of travel, and Lieutenant Beaver followed Pax. (XIII, 207) Other

officers assisted in setting up a perimeter in the area of Lion’s Field, near the Bull

Market. (XII, 208) Just inside the wood line, Lieutenant Beaver and another officer

shined their flashlights on a subject. (XIE, 214) Officers began giving commands to the

subject to come out of the woods and surrender, but the subject replied “Fuck you.

You're going to have to come in here. and get me. Come on in here and get me.” (XII,

218) The subject appeared to be armed or concealing a weapon. CXII, 218) Lieutenant

Beaver felt at that point that he might have to use deadly force against this subject. (XIE,

220)

The suspect began to move away from Lieutenant Beaver and in the direction of

the K-9 officer. As the officers heard the suspect attempt to climb over a chain link fence

near the baseball field, Pax was once again deployed and made contact with the subject.

(XIII, 226-227) As Lieutenant Beaver approached the subject, he observed that the

person, who he identified as Appellant, was choking Pax. (XII, 228) Pax’s handler,

Officer Jeremy Stines, then struck Appellant in the head with his service weapon to allow

Pax to get free. (XIII, 230) Appellant continued to resist officers until Officer Hamilton

utilized his taser to effectuate an arrest of Appellant. (XIII, 231)

Sergeant Brandon Moss, the K-9 Unit Commander, responded to the Bull Market

with his dog, Kyra. (XIV, 247) Upon arrival, Sergeant Moss assisted the other officers

13

AF

Sat

in setting up a perimeter around the Lion’s Field area. (XIV, 247) Sergeant Moss

challenged the suspect to surrender, but the suspect refused to comply and made threats

to harm the officers. (XIV, 255) Sergeant Moss testified very similarly to Lieutenant

Beaver regarding the sequence of events leading to the arrest of Appellant. (XIV, 256-

262) After Appellant was in custody, Kyra located a cell phone and a .38 caliber

handgun in the woods. (XIV, 265)

Officer Jeremy Stines testified that Pax, in addition to tracking the suspect from

the Bull Market, also located a pair of pants and a shirt in the woods. CXTV, 290) Officer

Stines testified similarly to the other officers regarding the apprehension of Appellant.

CXIV, 290-298)

Officer Kyle Hamilton assisted in the arrest of Appellant. Officer Hamilton felt

that Appellant continued to resist arrest after choking Pax, so Officer Hamilton deployed

his taser to make Appellant compliant. (XIV, 325-327) Officer Hamilton explained that

the taser has video and audio capabilities and narrated the playing of the video for the

jury. (XIV, 328-335) After concluding the arrest, Officer Hamilton searched the

immediate area where Appellant was located and found a set of keys. (XIV, 336)

Officer Julie Mullikin participated in transporting Appellant to jail; she also

collected his clothing after he was taken to the hospital to have his dog bites treated.

CXIV, 353-363)

Dr. Thomas Deering performed the autopsy of Ahmad Dhalai. During his

autopsy, Dr. Deering found that Mr. Dhalai had suffered a gunshot wound to his head,

and noted an exit wound as well. (XIV, 384) The point of entry of the gunshot was to

the right side, behind his ear. (XIV, 385) Such a wound would fracture the skull and

14

injure the brain. (XIV, 385) Dr. Deering opined that the cause of Mr. Dhalai’s death was

a gunshot wound to the head, and his manner of death was homicide. (XIV, 425)

On cross-examination, Dr. Deering felt that Mr. Dhalai would have been rendered

unconscious immediately after suffering such a wound, and that his death would likely

have been very quick. (XIV, 430)

Officer James Stafford responded to the area of Lion’s Field and took several

photographs of several items of evidence found in the woods near where Appellant was

arrested. (XV, 23-25) Officer Stafford identified items of clothing, gloves, and a white

piece of “T-shirt-type material.” (XV, 45-52) Upon examining the handgun that was

found by K-9 Kyra, Officer Stafford saw that it appeared the weapon had been fired three

(3) times. (XV, 70)

Investigator Marvin Rodish, formerly of the Jackson Police Department,

processed the crime scene at the Bull Market. Behind the wall where Mr. Dhalai had

been working the cash register, a projectile was found. (XV, 84) Investigator Rodish

found another projectile that appeared to be from Mr. Dhalai. (XV, 96) Finally,

Investigator Rodish collected as evidence clothing, gloves, and a firearm that had been

recovered by other officers. (XV, 99-106)

Investigator Dan Long participated in a search of Appellant’s residence at 199

Campbell Street in Jackson. (XV, 166) During the search, Investigator Long used the

keys found near Appellant when he was arrested to see if they would fit the lock of the

residence and Appellant’s car. (XV, 167) Officers recorded this attempt and the video,

which was played for the jury, showed that the various keys did fit the house lock and

10

15

vehicle. (XV, 168-171) In Appellant’s bedroom, Investigator Long found a torn white tshirt and a billfold. (XV, 178-180)

The parties stipulated regarding an aerial map showing that the distance from

Appellant’s residence to the Bull Market was .97 miles. (XV, 222) The parties also

stipulated that the cell phone found in the woods was that of Appellant, per AT&T

subscriber information. (XVI, 440)

Lieutenant Chris Chestnut met with Appellant at the jail after his arrest and

obtained a DNA buccal swab from him. (XV, 235)

Tennessee Bureau of Investigation (TBI) Special Agent/Forensic Scientist Kristyn

Meyers testified as an expert in the field of forensic biology. Special Agent Meyers

swabbed, for skin cells, a 38 caliber handgun that was submitted to the TBI. (XVI, 276)

Dr. Eric Warren, formerly of TBI, testified as an expert in the field of ballistics

and firearms identification and analysis. Dr. Warren examined the 38 caliber handgun

that was received from the Jackson Police Department. (XVI, 309) As part of his

analysis, Dr. Warren studied the spent projectiles collected by J ackson Police Department

officers, and he opined that all three (3) projectiles were 38 caliber. However, he could

not say definitively that the projectiles were fired through the submitted 38 caliber

handgun. (XVI, 321)

The State next called, in succession, Earl Eley, Michael Turbeville, and Chad

Johnson of the TBI, who all testified that they were involved in the receiving or

transporting of various pieces of evidence in Appellant’s case. (XVI, 332-354)

TBI Special Agent Charly Castelbuono testified as an expert in forensic

biology/DNA identification and analysis. In this role, Special Agent Castelbuono first

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examined the piece of a white t-shirt found in the woods when Appellant was arrested.

Special Agent Castelbuono said that, in her opinion, the blood found on this fragment

was that of Appellant. (XVI, 366) In addition, Appellant was found to be the “major

contributor’ of DNA found in the gloves found in the woods, although Special Agent

Castelbuono found that the DNA profile obtained was consistent with a mixture of more

than one individual. (XVI, 368-370) Appellant was also found to be the “major

contributor” of DNA found in swabs of the interior of a sweatshirt found in the woods.

(XVI, 371-372) Similarly, Special Agent Castelbuono found Appellant to be the “major

contributor” of DNA found on the 38 special handgun, although the partial profile

obtained was consistent with a mixture of at least three individuals. (XVI, 374)

Special Agent Rielly Gray testified as an expert in microanalysis. Special. Agent

Gray examined the gloves submitted as evidence; in her analysis, she found that the

gloves contained the presence of particles identified as gunshot primer residue.” (XVI,

404)

Special Agent Miranda Gaddes was qualified as an expert in microanalysis. She

compared the white fabric found in the woods to the tom white T-shirt found in

Appellant’s residence. In Special Agent Gaddes’s opinion, these two items had been

joined at one time. Special Agent Gaddes based her opinion on a microscopic analysis of

the fracture lines of the two pieces of fabric. (XVI, 415-416)

Susan Clark and Samuel Frederick, employees of the TBI, both testified regarding

the chain of custody of certain items of evidence that were submitted to the TBI

laboratory. (XVI, 426-439)

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The State’s final witness was Ali Dhalai. Mr. Ali Dhalai is the cousin of the

decendent, Ahmad Dhalai. Mr. Ali Dhalai introduced the “life photograph” of Mr.

Ahmad Dhalai. (XVI, 453-454)

DEFENSE GUILT/INNOCENCE PHASE PROOF

The defense presented no proof at trial.

SENTENCING HEARING PROOF

The State called three witnesses in its case-in-chief: Ali Dhalai, Captain Jeff

Fitzgerald, and Alison Deaton. Each witness’ testimony will be discussed in more detail

during the presentation of Issue 7. Similarly, the testimony of defense witnesses Dr.

James Walker and Dr. Keith Caruso, and the testimony of State’s rebuttal witness Dr.

Kimberly Brown will be discussed in detail below.

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ia

ARGUMENT

I. The evidence was insufficient to support a verdict of premeditated First

Degree Murder, Felony Murder, Attempted Especially Aggravated

Robbery, Attempted Second Degree Murder, Aggravated Assault, or

Employing a Firearm During the Comniission of a Dangerous Felony.

When evaluating the sufficiency of the evidence, this Court must determine

whether “any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt." State v. Keough, 18 §.W.3d 175, 180-81 (Tenn. 2000)

(quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560

(1979)) This Court is required to afford the prosecution the strongest legitimate view of

the evidence in the record as well as all reasonable and legitimate inferences which may

be drawn from the evidence. Keough, 18 S.W.3d at 181 (citing State v. Bland, 958

S.W.2d 651, 659 (Tenn. 1997)) Questions regarding the credibility of the witnesses, the

weight to be given the evidence, and any factual issues raised by the evidence are

resolved by the trier of fact. Bland, 958 S.W.2d at 659. A verdict of guilt removes the

presumption of innocence and replaces it with a presumption of guilt, and the defendant

has the burden of illustrating why the evidence is insufficient to support the jury's verdict.

State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982)

FIRST DEGREE MURDER

First Degree Murder is defined in T.C.A. § 39-13-202(a)(1) as follows:

(a) First degree murder is:

(1) A premeditated and intentional killing of another.

T.C.A. § 39-13-202(a)(1).

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Whether a defendant has acted with premeditation is a question for the finder of

fact to determine, and it may be inferred from the manner and circumstances of the

killing. State v. Gentry, 881 S.W.2d 1, 3 (Tenn. Crim. App. 1993). The following factors

may be considered in deciding whether the murder was premeditated: the procurement

and use of a deadly weapon upon an unarmed victim, the defendant's declarations of his

intent to kill, the infliction of multiple wounds, defendant's calmness immediately after

the killing; and a particularly cruel killing. See State v. Bland, 958 S.W.2d 651, 660

(Tenn. 1997); State v. Brown, 836 S.W.2d 530, 541-42 (Tenn, 1992).

In the instant case, the evidence was insufficient to support a verdict of First

Degree Murder against Appellant. One of the State’s major arguments in favor of

premeditated murder was Appellant's statement to Mr. Dhalai “drop that off or I’m gonna

shoot you dead in the head.” However, this statement could merely have been offered as

a tactic to convince Mr. Dhalai to hand over the cash register money instead of as a threat

to violence. Although the evidence shows that Mr. Dhalai was shot in the head, the proof

shows that Appeliant reacted quickly to Mr. Dhalai walking away from the cash register,

lending an interpretation that this was a knowing killing, thus constituting Second Degree

Murder. In addition, the State did not prove beyond a reasonable doubt the identity of the

Defendant as the person who committed the crime. All of the evidence used to convict

Appellant was circumstantial rather than direct. No witness from the Bull Market could

definitively identify Appellant as the perpetrator, and no evidence was introduced to

show that Appellant confessed at any time to the charged offenses. For these reasons, the

conviction for First Degree Murder should be voided and judgment of, at most, Second

Degree Murder should be entered against Appellant.

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FIRST DEGREE MURDER IN PERPETRATION OF A FELONY

Pursuant to T.C.A. § 39-13-202(a)(2):

(a) First Degree Murder is:

(2) A killing of another committed in the perpetration of or attempt to

perpetrate any first degree murder, act of terrorism, arson, rape, robbery,

burglary, theft, kidnapping, physical abuse in violation of § 71-6-119,

aggravated neglect of an elderly or vulnerable adult in violation of § 39-15-

508, aggravated child abuse, aggravated child neglect, rape of a child,

agpravated rape of a child or aircraft piracy...

T.C.A. § 39-13-202(a)(2). Pursuant to subsection (b), “[nJo culpable mental state is

required for conviction under subdivision (a)(2) or (a)(3), except the intent to commit the

enumerated offenses or acts in those subdivisions.” T.C.A. § 39-13-202(). Our

Supreme Court has stated that “consideration of such factors as time, place, and causation

is helpful in determining whether a murder was committed ‘in the perpetration of a

particular felony.” State v. Buggs, 995 S.W.2d 102, 106 (Tenn. 1999) (citing State v. Lee,

969 S.W.2d 414, 416 (Tenn.Crim.App.1997)). “The killing may precede, coincide with,

or follow the felony and still be considered as occurring ‘in the perpetration of the felony

offense, so long as there is a connection in time, place, and continuity of action.” Buggs,

995 S.W.2d at 106.

The State’s proof was insufficient to prove Appellant guilty of this offense. The

killing of the victim, Mr. Dhalai, preceded Appellant’s completion of the Attempted

Especially Aggravated Kidnapping. In the video from Bull Market, the hooded suspect is

heard making a demand for money, firing an errant shot, then firing the fatal shot into

Mr. Dhalai’s head. Only then does the suspect jump the counter and attempt to gain entry

into the cash register before then fleeing the business. Appellant contends that the

connection between the demand for money and the killing is not close enough to support

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a conviction for First Degree Murder in Perpetration of Attempted Especially Aggravated

Kidnapping. For these reasons, Appellant’s conviction should be reversed and dismissed.

ATTEMPED ESPECIALLY AGGRAVATED ROBBERY

The offense of Especially Aggravated Robbery is defined in T.C.A. § 39-13-403.

Its two elements are that the perpetrator accomplished a robbery, as defined in § 39-13-

401, with a deadly weapon and that the victim suffered serious bodily injury. Robbery is

defined as “the intentional or knowing theft of property from the person of another by

violence or putting the person in fear.” T.C.A. § 39-13-401.

Criminal attempt is defined in T.C.A. § 39-12-101:

(a) A person commits criminal attempt who, acting with the kind of culpability

otherwise required for the offense:

(1) Intentionally engages in action or causes a result that would constitute

an offense, if the circumstances surrounding the conduct were as the

person believes them to be;

(2) Acts with intent to cause a result that is an element of the offense, and.

believes the conduct will cause the result without further conduct on the

person's part; or

(3) Acts with intent to complete a course of action or cause a result that

would constitute the offense, under the circumstances surrounding the

conduct as the person believes them to be, and the conduct constitutes a

substantial step toward the commission of the offense.

T.C.A. § 39-12-101(a). As described at trial by various witnesses, Appellant was

convicted of entering the Bull Market and demanding money, followed by firing two

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shots in the direction of Mr. Ahmad Dhalai. However, this proof was entirely

circumstantial, and the State did not introduce sufficient evidence to identify Appellant as

the person who committed the offenses. No witness within the store could give a

description of the suspect other than it appeared to be a black male. Appellant moves this

Court to reverse and dismiss his conviction for this offense.

ATTEMPED SECOND DEGREE MURDER

T.C.A. § 39-12-101, as listed above, describes what constitutes a Criminal

Attempt. Second Degree Murder is defined as “the knowing killing of another.” T.C.A.

§ 39-13-210(a)(1). To support this charge against Mr. Lawrence Austin, the State relied

on the surveillance video as well as the testimony of Mr. Austin himself. According to

Mr. Austin, the shooter never made any direct statements or threats to him; it appeared

that thé suspect was inside the store to perpetrate a robbery. Further, the suspest fired

just one time in Mr. Austin’s general direction; after firing, the suspect jumped the

counter to try and steal money, rather than following Mr. Austin or trying to shoot at him

again. For these reasons, coupled with the State’s failure to prove identity beyond a

reasonable doubt, Appellant moves this Court to reverse and dismiss this conviction.

AGGRAVATED ASSAULT

Appellant was also convicted of this offense as an alternative theory of the crime,

with the victim being Lawrence Austin. Aggravated Assault, as applied in the instant

case, is proscribed by T.C.A. § 39-13-102. In pertinent part:

(a)(1) A person commits aggravated assault who:

(A) Intentionally or knowingly commits an assault as defined in § 39-13-

101, and the assault:

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(iii) Involved the use or display of a deadly weapon.

T.C.A. § 39-13-101 governs the criminal offense of Assault:

(a) A person commits assault who:

(2) Intentionally or knowingly causes another to reasonably fear imminent

bodily injury.

T.C.A. § 39-13-102(a)(1)(A)Gii), 39-13-101(a)(2). Similar to his argument regarding

Attempted Second Degree Murder, Appellant would ask this Court to consider the State’s

insufficient proof regarding his identity as the person who shot at Mr. Lawrence Austin.

This conviction should be reversed and dismissed for the same reasons.

EMPLOYING A FIREARM DURING ATTEMPT TO COMMIT A DANGEROUS

FELONY

This offense is defined in T.C.A. § 39-17-1324(b):

(b) It is an offense to employ a firearm or antique fireann during the:

(1) Commission of a dangerous felony;

(2) Attempt to commit a dangerous felony...

T.C.A. § 39-17-1324. Attempted Second Degree Murder is defined as a “dangerous

felony” in § 39-17-1324(i(1)(B).

The State did not introduce sufficient proof, beyond a reasonable doubt, for the

jury to convict Appellant of this offense. As Appellant was not properly identified as the

perpetrator who entered the store and shot at Mr. Austin, he should not have been

convicted of this offense. In addition, as stated in the argument regarding the conviction

for Attempted Second Degree Murder, Mr. Austin was not the victim of the dangerous

felony. No specific overtures or discussions were had between the assailant and Mr.

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Austin, casting doubt on whether the assailant had designs on trying to kill Mr. Austin,

rather than merely firing wildly in Mr. Austin’s direction while he tried to complete the

robbery. For these reasons, this Court should reverse and dismiss Appellant’s conviction

for this offense.

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Ul. . The trial court erred in denying Appellant’s motion te challenge

prospective jurors Ronald Robinson, Melissa Little, and Joan Graves for

cause.

- Both Article 1, Section 9 of the Tennessee Constitution and the Sixth Amendment

to the United States Constitution guarantee an accused in a criminal prosecution the right

to atrial by an impartial jury. The process of voir dire allows not only the trial court but

also the parties an opportunity to ensure that “jurors are competent, unbiased, and

impartial.” State v. Howell, 868 S.W.2d 238, 247 (Tenn. 1993). In particular, “[t]he right

of challenge for cause was designed to exclude from the jury triers whose bias or

prejudice rendered them unfit, and peremptory challenge was intended to exclude those

suspected of bias or prejudice.” Manning v. State, 155 Tenn. 266, 292 S.W. 451, 455

(1927).

In assessing a juror's impartiality following a challenge for cause, the trial court

should inquire “whether the juror's views would ‘prevent or substantially impair the

performance of his duties as a juror in accordance with his instructions and his oath.”

Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985); see

also State v. Harold W. Humphreys, 70 S.W.3d 752, 765 (Tenn. Crim. App. 2001).

A determination of the qualifications of a juror rests within the discretion of the

trial court and will not be overtumed absent a showing of an abuse of that discretion.

State y. Kilburn, 782 S.W.2d 199, 203 (Tenn. Crim. App. 1989). Indeed, the Tennessee

Supreme Court has observed that a trial court's findings of impartiality may be overtumed

only for “manifest error.” Howell, 868 S.W.2d at 248.

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Ea Fo ES ES

a ye

Failure to challenge for cause or if said challenge is not sustained, failure to use

any available peremptory challenge to remove the objectionable juror, precludes reliance

upon the juror's disqualification upon appeal. See, Wooten v. State, 99 Tenn. 189, 41

S.W. 813 (1897), and earlier cases cited therein, and Tittsworth v. State, 503 S.W.2d 523

(Tenn. Crim. App. 1973)

In Morgan v. Ilinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), the

United States Supreme Court iterated the following regarding “automatic death penalty”

jurors:

“A juror who will automatically vote for the death penalty in every case will fail

in good faith to consider the evidence of aggravating and mitigating

circumstances as the instructions require him to do. Indeed, because such a juror

has already formed an opinion on the merits, the presence or absence of either

aggravating or mitigating circumstances is entirely irrelevant to such a juror.

Therefore, based on the requirement of impartiality embodied in the Due Process

Clause of the Fourteenth Amendment, a capital defendant may challenge for

cause any prospective juror who maintains such views. If even one such juror is

empaneled and the death sentence is imposed, the State is disentitled to

execute the sentence.”

Morgan v. Illinois, 504 U.S. 719, 729 112 S.Ct. 2222, 2229, 119 L.Ed.2d 492 (1992)

(emphasis added)

Ronald Robinson

Prospective Juror Ronald Robinson was questioned by the parties and by the

Court. During his voir dire, the State asked Mr. Robinson about a comment he wrote on

his jury questionnaire regarding having to spend tax dollars keeping a prisoner

incarcerated in the event of his being sentenced to life without parole. (VIII, 70) Mr.

Robinson said that, in such cases, his Biblical beliefs led him to feel that “we need to go

ahead with the death penalty in some cases like that.” (VIII, 70) He said that he could

fairly consider life without parole as a punishment. (VIII, 70) Mr. Robinson then said

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that he agreed that “[tJaking the life is appropriate for taking a life in a murder case.”

(VIL, 72) Mr. Robinson then agreed with this belief applied to only “some” murder

cases. (VIIE, 72)

Upon questioning by the defense, Mr. Robinson said that he believed the death

penalty was the appropriate punishment for a murder that was “premeditated.” Mr.

Robinson also agreed that “an eye for an eye” was an appropriate characterization of his

view on this issue. (VIII, 75-77) Finally, Mr. Robinson said that he would take into

account if a defendant had “mental problems” in deciding the appropriate sentence, but

that if a defendant was “of sound mind” then that person should “absolutely” receive the

death penalty. (VIE, 78)

On further examination by the State, Mr. Robinson said that he would fairly

consider all three forms of punishment in the event Appellant was convicted of First

Degree Murder. (VIH, 81) Upon being questioned by the trial court, Mr. Robinson said

that he would not consider a robbery of a store “and the person was shot and killed” to be

a premeditated act. (VII, 83) At the conclusion of this questioning, the defense moved

to challenge Mr. Robinson for cause; the trial court denied the challenge for cause, stating

that the court felt that Mr. Robinson could fairly consider all three forms of punishment

and would not automatically impose the death penalty in the event of a First Degree

Murder conviction. (VIL, 86-88) The defense then exercised a peremptory challenge to

excuse Mr, Robinson. (IX, 310)

Melissa Little

Ms. Little agreed that she was familiar with the lead prosecutor, as her brother

worked for the District Attorney’s office and her husband was a retired Jackson Police

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