Gregory Robinson was convicted of ordering a
Memphis gang to kill Vernon Green, an innocent bystander in an
argument between two rival gangs, in 1997.
According to court documents, Robinson told gang
members, "y'all know what to do" with Green and "take him fishing."
Green was taken to a park where he was beaten and shot repeatedly,
police records show.
Supreme Court of Tennessee
State v. Robinson
STATE of Tennessee v. Gregory ROBINSON
September 28, 2004
FRANK F. DROWOTA, III, C.J., delivered the opinion
of the court, in which E. RILEY ANDERSON, JANICE M. HOLDER, and
WILLIAM M. BARKER, JJ., joined.
Paul G. Summers, Attorney General and Reporter;
Michael E. Moore, Solicitor General; Joseph F. Whalen, Associate
Solicitor General; William L. Gibbons, District Attorney General; and
Patience R. Branham and Paula Wulff, Assistant District Attorneys
General, for the appellant/appellee, State of Tennessee.Joseph S.
Ozment and Steffen G. Schreiner, Memphis, Tennessee (at trial); and
Edmund L. Carey, Jr., Nashville, Tennessee, and Robert C. Brooks,
Memphis, Tennessee (on appeal), for the appellee/appellant, Gregory
We granted the State's application for permission
to appeal to determine whether the Court of Criminal Appeals erred by
reversing the defendant's conviction for premeditated first degree
murder and his sentence of death. Upon review, we hold that the
Court of Criminal Appeals erred in reversing the defendant's
conviction and sentence. In particular, we conclude that the trial
court did not err by failing to instruct the jury on facilitation and
solicitation or by permitting the medical examiner to display the
victim's cleaned and reconstructed skull as a demonstrative aid during
his testimony; that the prosecution did not present inconsistent
theories and evidence in the separate trials of the defendant and co-defendant
Prentiss Phillips; and that the sentence of death is not
disproportionate considering the circumstances of the crime and the
defendant. Having reinstated the defendant's conviction and sentence,
we have also reviewed and considered all other errors alleged by the
defendant and conclude that none warrants relief. With respect to
issues not herein specifically addressed, we affirm the decision of
the Court of Criminal Appeals. Relevant portions of that opinion are
published hereafter as an appendix. Accordingly, the judgment of the
Court of Criminal Appeals is reversed in part, affirmed in part, and
the judgment of the trial court is reinstated.
I. Factual Background
The defendant, Gregory Robinson, was convicted by a
Shelby County jury of the premeditated first degree murder and
especially aggravated kidnapping of Vernon Green.
Proof presented at trial established that on the
afternoon of April 30, 1997, a squabble between two small children in
the Hurt Village Apartments in North Memphis led to an argument
between the mothers of these children, which escalated into a fight,
including gunfire, between the women's boyfriends, members of rival
Memphis gangs-the Gangster Disciples and the Vice Lords.1
As a result of this fight, the Hurt Village
Gangster Disciples called an “aid and assist” meeting, and Memphis-area
Gangster Disciples congregated at an apartment in the Hurt Village
complex for this meeting. Although the victim was not a gang member
and had not been involved in the earlier fight, he was seen near the
apartment where the aid and assist meeting was being held. When a
gang member accused Green of acting as a lookout for the Vice Lords,
the defendant instructed other gang members to “snatch him up” and
bring him to the apartment.
For one and one-half to two and one-half hours, the
defendant, along with other gang members, beat and interrogated Green.
Eventually Green was taken from the apartment by six gang members
and shot to death in Jessie Turner Park.2
Green's body was discovered in the park between 5 and 5:30 a.m., on
May 1, 1997, by members of a local walking club, who called the police.
When Officer Alvin Peppers arrived at the scene, he found the
victim's body lying face down in a prone position. Officer Peppers
explained that he could not identify the victim's features, such as
eye color, because the “face of the body was so mutilated that there
was nothing that we could identify.” Officer Peppers found no
identifying objects on the body, such as a wallet or jewelry, but he
recovered a numbered dry cleaner's tag from inside the victim's
clothing that apparently was helpful in identifying the victim. Two
live .45 caliber bullets, two .45 caliber bullet casings, and one .20
gauge shotgun shell casing were found within a five foot radius of the
victim's body. The following complicated and detailed recitation of
the testimony at trial is necessary to a full and proper consideration
of the issues presented in this appeal.
Several former gang members testified about the
events surrounding Green's kidnapping and murder. Two of these
testified for the prosecution. The first, Christopher James, known
as “Big Chris,” testified for the prosecution. James had been a
Gangster Disciple for three or four months on April 30, 1997. Around
5 or 6 p.m. on April 30, 1997, James and fellow Gangster Disciples,
Jarvis Shipp, known as “J-Roc,” and two other gang members called “Popcorn,”
and “Steve,” witnessed a fight between Shipp's girlfriend and the
girlfriend of “Snoop,” a Vice Lords gang member. Later, as James,
Shipp, and Popcorn were walking toward the apartment of Shipp's
girlfriend, Snoop approached them and begin swinging at Shipp. After
Shipp and Snoop began fighting, another Vice Lord drew a gun. At
this point, James and Popcorn fled, but a bullet grazed Popcorn's hand
as they were running from the scene. They arrived from the fight at
the Hurt Village apartment of sisters Natalie, Nichole, and April
Black around 8 p.m. Shortly thereafter, Shipp, along with fellow
Gangster Disciples Prentiss Phillips, James Lee White Carradine, known
as “Thug Life,” and “Steve,” and “Chuck” arrived at the apartment.
Shipp was angry and decided to “call some more Gangsters over there to
Hurt Village.” An aid and assist meeting was called, and according to
James, twenty or thirty additional Gangster Disciples from all over
Memphis arrived at the apartment for the meeting.
After their arrival, Phillips came inside the
apartment and said that Vernon Green was outside “watching out at the
apartment.” One of the later arriving Gangster Disciples, whom James
identified as the defendant, instructed Shipp and three other Gangster
Disciples to “go snatch up” Vernon Green. James said Shipp and the
others followed the defendant's instruction without hesitation.
Green arrived at the apartment around 10 p.m., escorted by “[t]wo
disciples in front [and] two disciples in the back.” Green stood in
the middle of the floor as the defendant asked Green if he had been
outside watching for the Vice Lords. The defendant then hit Green in
the face, struck Green numerous times, both with his fists and with a
broom stick, and then pushed Green onto the couch. James, who had
lived in the Hurt Village apartments and known Green for seven years,
described Green as the neighborhood comedian and stated that Green had
not been a gang member and had not been involved in the fight earlier
in the day.
After Green was beaten, he was taken upstairs by
“two other guys.” Green remained upstairs for thirty to forty-five
minutes. During this time, James was “jumped on” and “beat up”
downstairs by six Gangster Disciples because he had not helped “Jarvis
and them fight.” James testified that Phillips came out of the
kitchen, where he had been meeting with Shipp and Kevin Wilkins, known
as “Big Folk,” “cut on the radio and started picking out six people,”
who then beat James for fleeing rather than aiding Shipp during the
fight with Snoop. James testified that Phillips, not the defendant,
selected the gang members who beat James and that the defendant had
been upstairs at this time.
Green was escorted downstairs after James was
beaten, but a short time later, Green was taken from the apartment.
Before Green left the apartment, James saw the defendant, Shipp, and
Phillips talking together in the kitchen and overheard the defendant
say, “Y'all know what to do.” James believed this statement meant
“[t]hey [were] going to kill [Green].” James recalled that the
victim had been held at the apartment two or two and one-half hours.
When asked if the victim said anything during this time, James said
the victim “told Prentiss [Phillips], ‘tell them folks to stop.’ ”
When Green was escorted from the apartment by Shipp, Wilkins, Charles
Golden, known as “Fufu,” and Antonio Jackson, Green had been wearing a
black shirt, black pants, and black shoes. Green's black shirt had
been pulled over his head so that Green was unable to see or use his
arms to resist. As this group left the apartment, James overheard
the defendant again say, “Y'all know what to do.” James also
testified that the defendant at one point aimed a nine millimeter gun
at his face, while threatening that the “same thing” would happen to
James if James ever said “something about it.” James believed the
defendant's comment meant “[t]hey going to kill me too.” After Green
and the other gang members left the apartment, Phillips and “Steve”
walked James home in the early morning hours of May 1, 1997.
James admitted that he had never seen the defendant
before April 30, 1997, and that the defendant had not been a member of
the Hurt Village Gangster Disciples. James maintained, however, that
the defendant had been a member of the Memphis Gangster Disciples and
had been present at the Hurt Village apartment on April 30, 1997.
Defense counsel on cross-examination questioned
James regarding a statement he made to the police on May 8, 1997, one
week after these events occurred. In that statement, James informed
the police that “[he] saw Anthony, Jarvis Shipp, Shaun, and a big
heavy-set guy that I don't know his name, Antonio Jackson, and Big
Folk” kill Green. (Emphasis added.) In his May 8 statement James
also said that “Shaun” instructed Shipp and three other gang members
to “go snatch Vernon Green up” and that “Shaun” questioned and hit
Green at the apartment. In his May 8 statement James provided the
following account of the events:
J-Roc, MacKaos, Shaun, and Low-Down went into the
kitchen for a private meeting. And I heard them talking softly to
each other for about five minutes. And then J-Roc and Shaun came out
of the kitchen. And then MacKaos and Low-Down came out of the
kitchen. And MacKaos said, you all need to take care of this and
told Jarvis, what you-all do now is personal. Then MacKaos and Low-Down
Also in his May 8 statement, James indicated that
“Shaun came up to me and said I better not say nothing to nobody, and
if you think this was something let us find out that you said
something about this.” Although on May 8, 1997, James told the
police that many gang members beat the victim, James testified at
trial that only the defendant beat Green. Finally, in this May 8,
1997, statement James claimed he
heard three cars start and heard at least six doors
close. And after they left-and Prentiss had a gun in his right hand
and said, if anyone say anything about this they will be dealt with.
And then he said, all the gangsters in here keep this on the 1919.
And after that Prentiss and Steve escorted me to my house.
When asked by police on May 8 if he had anything
else to add to his statement to aid the investigation, James had
replied: “All I can say is that Vernon was a good person and didn't
need to be killed by anyone.” When defense counsel pressed James to
explain why he had mentioned the name “Shaun” and had not once
mentioned the defendant's name in his May 8, 1997, statement, James
Man, hold up man. When Vernon was getting beat,
man, Vernon the one who called that man Shaun. So I went by what
Vernon called him.
James admitted he had not previously provided this
information to police and also conceded he had not previously
indicated the defendant threatened him while holding a nine millimeter
gun to his head. Although James had consistently “given the same
name for everybody else that did everything that night,” the actions
he attributed to the defendant at trial had been attributed to “Shaun”
in his May 8 statement. In response to questions from defense
counsel, James indicated that Phillips was “coordinator” and Shipp
“chief of security” of the Hurt Village Gangster Disciples. James
did not attribute a rank to the defendant, however.
On re-direct examination, James clarified his prior
testimony and May 8 statement, explaining that many gang members beat
the victim, but the defendant hit Green first and no other gang member
beat Green at the same time as the defendant. James also explained
he had not known the gang members present on April 30, 1997, by their
legal names and had referred to them by their street names. James
said he had never seen the defendant before that night, had not known
the defendant's name, and had referred to the defendant as “Shaun” in
his May 8 statement because he heard Green refer to the defendant as “Shaun.”
James explained that, when the police showed him a photographic
array shortly after Green's kidnapping and murder, he selected the
defendant's photograph but referred to the person in the photograph as
James maintained the accuracy and truthfulness of
his May 8 statement and claimed its only error was his use of the name
“Shaun” when describing the defendant's actions. James claimed he
had not learned the defendant's correct name until the first day of
trial. James reaffirmed his direct testimony and reiterated that the
defendant gave the order to “snatch up” Green; that the defendant
beat Green; that the defendant met with Phillips, Shipp, and Wilkins
in the kitchen; and, that the defendant twice commented,”Ya'll know
what to do.” On re-cross-examination, defense counsel pointed out
that, despite his proclamation to the contrary, James knew the
defendant's correct name prior to trial and had used the defendant's
correct name when previously testifying. Sergeant William Ashton of
the Memphis Police Department corroborated James's testimony regarding
the photographic array. Sergeant Ashton recalled that James
identified the defendant's photograph from the array, but referred to
the person in the photograph as “Shaun.”
Testifying next for the prosecution, Jarvis Shipp,
known also as “J-Roc,” admitted he had been a Gangster Disciple and
that he had held the “chief of security” rank in the Hurt Village
section of the gang. Shipp corroborated James's testimony concerning
the squabble between the children that led to the argument between the
children's mothers that eventually escalated to the altercation
between Shipp and Snoop. Shipp also corroborated James's testimony
concerning James and Popcorn fleeing the fight and the gunshot injury
When he arrived at the Hurt Village apartment of
Natalie, Nichole, and April Black at about 9 p.m., Shipp saw James,
Popcorn, Phillips, Isiah Triplett, Sepacus Triplett, Steve Hardin, and
James Lee White Carradine, all members of the Gangster Disciples.
The Black sisters also were present, but Phillips, the “coordinator”
of the Hurt Village Gangster Disciples, ordered the Black sisters
upstairs. After they complied, Phillips called an aid and assist
meeting, stating that the Gangster Disciples were going to “step to
another level” and retaliate against the Vice Lords. Shipp believed
Phillips meant the Gangster Disciples were going back to hurt all or
some of the Vice Lords as revenge for injuring Popcorn.
Shipp explained how the Gangster Disciples were
organized into sections throughout Memphis. In addition to the Hurt
Village section, where Phillips was the “coordinator” and Shipp the
“chief of security,” the Gangster Disciples had sections in Mitchell
Heights, South Memphis, Scutterfield, Frayser, Watkins Manor,
Binghampton, Hyde Park, Douglass, Riverside, Castalia, Whitehaven,
Tulane, and Westwood. According to Shipp, “T-Money,” who lived in
Chicago, was the “head guy over the whole entire city” of Memphis.
Kevin Foley, also known as “Kaos,” was the number two person over the
entire city. However, because “T-Money” was out of town, “Kaos was
like the governor” over Memphis. According to Shipp, the defendant
was from the Mitchell Heights section of the gang and “at that
particular time he was a active chief of security over the entire city
of Memphis.” As such, the defendant ranked just below Kaos, and
because T-Money was out of town, the defendant effectively ranked
second in the Memphis Gangster Disciples. As chief of security for
Memphis, the defendant ensured that all section security chiefs were
organized and gave orders when Kaos was not around to do so.
Shipp and Phillips followed the chain of command
when calling the aid and assist meeting on April 30, 1997, calling
first Kaos then the defendant. After these calls were made, forty to
eighty Gangster Disciples from all over Memphis arrived at the
apartment, and many of them were armed with handguns. After their
arrival, Phillips ordered James Lee White Carradine and another person
upstairs to prevent the Black sisters from coming downstairs or
leaving the apartment.
Kaos arrived at the apartment about 9:30 or 9:45
p.m. The defendant arrived shortly thereafter and immediately asked
Shipp, “Why aren't your guys on point?” Shipp said the defendant
meant, “Why aren't your guys on security, watching out, looking?”
The defendant directed Shipp, as “the security of Hurt Village” to
determine the identity of the “guy peeping around the corner.” After
escorting the defendant inside the apartment, Shipp left to determine
the identity of the person. When Shipp returned a short time later
and advised the defendant that the person was Vernon Green, the
defendant inquired, “Who is Vernon Green?” Phillips and others
“started screaming” that Green was a Vice Lord. The defendant then
ordered Shipp and five other gang members to place Green under “GD
arrest.” According to Shipp, the defendant meant gang members were
to detain and hold Green against his will.
After locating Green, Shipp told Green “my brothers,
the Gangster Disciples, wanted to speak with him,” and escorted Green
inside the apartment. After directing Green into the dining room,
the defendant asked Green if he was a Vice Lord. When Green replied,”no,”
the defendant asked Green if he knew where the Vice Lords were located.
When Green again replied “no,” the defendant, Phillips, and Wilkins
began punching, hitting, and physically abusing Green. After Green
fell to the ground, Shipp asked the others gang members to “hold up”
on beating Green. Shipp then assured Green “we weren't going to do
nothing to him, we just wanted to know” the location of the Vice Lords.
Green then said the Vice Lords were at a particular location, so the
defendant ordered Shipp, and five other gang members to verify Green's
information. About halfway to this location, Shipp and the others
met a woman “who considered herself a sister of the Gangster Disciples.”
She told them the Vice Lords were “running down Danny Thomas.”
Shipp and the others returned to the apartment, and
when they arrived, the victim was sitting in a corner, away from the
couch. According to Shipp, Green had been forced to sit in the
corner because Green “had defecated on himself.” Shipp and other
gang members ridiculed Green for doing so. After learning the Vice
Lords had not been at the location Green provided, the defendant
ordered Sepacus Triplett and another gang member to take Green
upstairs. Shipp went upstairs as well and saw Green lying on the
floor of a bedroom with gang members standing around him pointing guns
at his head and threatening to kill him. Shipp said the Black
sisters were in another upstairs bedroom with a box springs mattress
across the door to prevent their departure. When Shipp heard loud
music and returned downstairs, Phillips and the defendant were
selecting gang members and instructing them to form a circle.
Phillips “told James to get in the center of the circle.” Shipp said
Phillips was in charge of the situation, but the defendant was
advising on the proper procedure because Phillips had never before
“put a brother in violation.” When asked which of the two had the
higher rank, Shipp replied: “Basically, you'll say Gregory Robinson.”
However, Shipp qualified his reply by pointing out that these events
occurred in Hurt Village, Phillips's “turf.” Shipp agreed that the
Gangster Disciples are structured somewhat like the United States,
with a national leader and local leaders.
After James moved to the center of the circle, the
defendant and Phillips announced James had “six minutes six seconds,
no cover up,” meaning James would be beaten for six minutes and six
seconds by six people.3
Gangster Disciples referred to this punishment as “a pumpkin head.”
According to Shipp, James was placed in “retirement” or “on hold” for
six months and told not to consider himself a Gangster Disciple.
Phillips and another individual, whom Shipp did not know, then
escorted James out of the apartment.
After James left, Shipp told “the guys to bring [Green]
downstairs.” Green arrived downstairs with a t-shirt over his head
to obstruct his sight and to restrict his hands so that he could not
break away or defend himself. Shipp testified that the defendant,
Phillips, and Wilkins each individually spoke to Kaos on a cellular
telephone, during “one long continuous conversation.” Shipp reported
that after hanging up, “[t]hey said Kaos said, ‘take him fishing.’ ”
Shipp, who was not a part of the conversation with Kaos, understood
this meant they were to “take [Green] way out somewhere out of the
district, rough him up a little bit by physical abuse, and let him get
back the best way he could.” Shipp then heard the defendant direct
Phillips and Wilkins to select six men to take Green to a destination.
Wilkins picked Antonio Jackson, a man known as “Paris,” and another
individual Shipp did not know. Phillips selected Shipp, Charles
Poole, and a man known as “MacEndo.” Shipp testified that Wilkins,
Jackson, Paris, and MacEndo were from Mitchell Heights. Shipp was
from Hurt Village, and Charles Poole was from Scutterfield.
Wilkins left with the six men selected, and
Phillips remained at the apartment. The men drove in two separate
cars to Bellevue Park. When Green pulled the shirt from his eyes and
realized he was in a dark area, he began pleading with them, saying
numerous times, “just let me go, man, I'm not going to say nothing,
please, just let me go.” Shipp, Paris, Poole, and MacEndo physically
carried Green to the top of a hill and dropped him onto the ground.
Wilkins “suggested” the other men stand a few feet away from Green.
Shipp testified that although Wilkins was not superior in rank to the
defendant, Wilkins was the “big head” who was giving directions at the
park. Wilkins kicked Green in the side and asked Green if he had any
last words. Shipp then heard a gun being cocked and saw Jackson fire
the gun. Green was lying face down, and bullets struck his lower
back and buttocks. Green began gasping for breath and saying that he
had been hit, that he was dead, and that he was not going to say
anything. When Jackson remarked to Wilkins that the buckshot were
not affecting Green, Wilkins asked Paris for his chrome plated
automatic pistol. Wilkins handed the pistol to Jackson, who shot
Green in the head. The gun jammed, but Jackson adjusted it and fired
again. The gang members then fled the scene and later met at a gas
station on South Parkway, where Wilkins advised them to “take the
streets, act normal.” Wilkins gave them marijuana to “calm us down.”
They met again at an apartment in the Mitchell Heights area. Shipp
later learned this apartment belonged to “Fufu”-Charles Golden.
Two days after the murder, Phillips told Shipp to
take a “six day vacation.” Phillips called the defendant, and the
defendant arrived and drove Shipp, his “baby's mother” and his
children to a local motel. The defendant told Shipp not to answer
his pager or use the telephone. However, Shipp answered a page from
Phillips and learned that the police were looking for him. Shipp
then paged the defendant, who immediately returned Shipp's call but
reprimanded Shipp for being “a knucklehead” who disobeyed orders not
to use the telephone or answer his pager. After again telling Shipp
not to answer the telephone or respond to his pager, the defendant
assured Shipp that he, or “other brothers,” would be dropping by to
check on Shipp. Three days later, the defendant sent “a guy by the
name of Crenshaw and two more younger guys” to pick up Shipp and his
family at the motel.
At the conclusion of his direct examination
testimony, Shipp claimed that he had been threatened by Gangster
Disciples for being a “snitch” and explained that he had sought
protective custody because he feared he would be unable to survive in
the general jail population, which included many Gangster Disciples.
Shipp declared he had given truthful testimony and denied the State
had offered any deals, promises, or representations in exchange for
On cross-examination, Shipp admitted that he had
given a lengthy statement to the police on May 27, 1997, and had not
once mentioned the defendant's name, even though he had mentioned
numerous Gangster Disciples, including Kaos, Phillips, Jackson, and
Wilkins. Shipp admitted he had identified numerous Gangster
Disciples when shown photographic arrays, including Kaos, Phillips,
Wilkins, Jackson, Carradine, Golden, “Smash,” Anthony, Johnny, and
Sepacus Triplett, but had failed to identify the defendant when given
Although Shipp indicated in his May 27, 1997,
statement that Kaos was the governor of Memphis, contrary to his trial
testimony, in this same statement Shipp claimed that Wilkins, from the
Mitchell Heights area, was the chief of security for North Memphis,
that Phillips outranked Wilkins, and that Jackson was chief of
security of Scutterfield. Furthermore, in his May 27, 1997,
statement Shipp indicated that Phillips, not the defendant, instructed
him to arrest Vernon Green; that Phillips, not the defendant, beat
the victim; that Phillips, not the defendant, instructed gang members
to take Green upstairs after he had been beaten; and that Phillips,
not the defendant, decided Green's fate because Phillips and others
assumed Green would “put the law in [Phillips's] business or [Green]
would get the Vice Lords to retaliate against us.”
On cross-examination, Shipp admitted that Shaun
Washington, a Gangster Disciple from Mitchell Heights, had been
present at the apartment on April 30, 1997, although he had failed to
mention Shaun Washington in his May 27, 1997, statement to the police
or in his direct testimony. Shipp testified that some Gangster
Disciples have gold teeth, that the Gangster Disciple symbols include
the six-point star, the pitchfork, the heart with wings, a crown, a
“devil tail,” and the world with a sword piercing it. Shipp claimed
that he had never heard the phrase “take him fishing” before April 30,
1997, but he maintained he had believed the phrase meant they were to
drive away and leave Green to make his own way home. Shipp admitted
there had been no discussion at the park about whether or not they
were to kill Green. Shipp also admitted that he had been acquainted
with Green because he had dated Green's sister. Shipp conceded that
he had been charged with first degree murder after giving the May 27,
1997, statement, and that the prosecution had filed a notice of intent
to seek the death penalty. When asked if he expected any
consideration from the prosecution in exchange for his testimony,
Shipp responded, “Yes, because the simple fact I'm facing the death
penalty.” When asked to clarify, Shipp stated, “If it's in the
progress. If it's in the will.” When defense counsel commented,
“You're not up here testifying for your health, are you, sir?” Shipp
responded, “I'm up here testifying to tell the truth on my behalf and
on behalf of the victim's family.”
On re-direct examination, Shipp confirmed that he
had identified only one Gangster Disciple, Kaos, who outranked the
defendant, and Shipp said he did so because “Kaos had told on” him.
Shipp pointed out that the defendant, not Kaos, had taken him to a
hotel and advised him how to protect himself. Shipp also claimed he
had been afraid to identify the defendant because the defendant was
“not playing with a full deck.” Shipp maintained he had told the
truth at all times, including his May 27, 1997, statement, except for
his failure to identify the defendant.
On re-cross examination Shipp emphasized that he
had implicated Kaos because “[e]veryone knew that Kaos was a snitch.”
Shipp conceded he had initially implicated and identified Phillips,
even though he had testified that Phillips and the defendant were
“kind of on the same level” in terms of authority. Shipp admitted he
had never implicated the defendant prior to testifying at trial and
acknowledged that he hoped to avoid the death penalty by testifying
against the defendant.
Also testifying for the prosecution, Dr. Thomas
Deering, the forensic pathologist and assistant Shelby County medical
examiner who performed Green's autopsy, explained that Green had a
shotgun wound and two gunshot wounds to the right side of his head, a
shotgun wound across his upper back, and a shotgun wound to his left
buttock. The shotgun wound to the right side of Green's head
lacerated his brain and fractured the base of his skull and would have
itself been fatal. Gunshot wound B, near Green's right temple, also
fractured Green's skull and struck his brain and was alone “a severe
if not fatal wound.” Gunshot wound C began at Green's right temple,
fractured his skull, broke his jawbone on the right, traveled through
the back part of his tongue, and injured muscles in the right side of
his neck. The shotgun wound to Green's upper back caused superficial
scraping and would not have produced death in and of itself, although
it would have been painful. The shotgun wound to Green's left
buttock fractured the lower part of his back bone and his coccyx and
also lacerated his rectum and bladder. Dr. Deering opined that the
victim was alive when the various wounds were inflicted.
Dr. Deering cleaned and reconstructed the victim's
skull to determine the order of the gunshot wounds. After examining
the reconstructed skull and considering the level of bleeding at each
wound, Dr. Deering determined that the shotgun wound to the right side
of Green's head was inflicted first, that gunshot wound B was
inflicted second, and gunshot wound C was next inflicted, in almost
the same location as gunshot wound B. Although he could not determine
if the shotgun wounds to Green's back and buttocks preceded the wounds
to his head, Dr. Deering testified that the shotgun wound to Green's
buttocks had a great deal of associated bleeding and would have been
quite painful. Given the minimal associated bleeding, Dr. Deering
opined that Green had very little blood pressure and was “in trouble”
at the time Green was shot in the back.
On cross-examination, Dr. Deering agreed that he
had reported no physical evidence of a severe beating. On redirect,
Dr. Deering acknowledged that Green's head was so severely damaged by
the gunshot wounds that physical evidence of any beating about Green's
head may not have been visible. Nonetheless, on re-cross-examination,
Dr. Deering admitted that “an average-sized guy” striking “hard blows
with a closed fist” to a person's head would result in visible
injuries. The prosecution then rested its case.
Testifying first for the defense, James Lee White
Carradine, known as “Thug Life,” admitted he had been present at the
Hurt Village apartment on the evening Green was kidnapped and murdered.
Carradine maintained, however, that he and Isiah Triplett had
remained upstairs with the Black sisters for most of the evening.
Although Carradine identified several Gangster Disciples who were at
Hurt Village apartment, he maintained the defendant had not been
present at the apartment. Carradine said he first met the defendant
at the Shelby County jail and did not know whether the defendant was a
Carradine explained that, although a man known
variously as “Greg,” “MacGreg,” or “Red Greg,” 4
had been present at the apartment in Hurt Village on the evening of
Green's murder, the defendant was not that man. As to MacGreg's rank,
Carradine stated, “I'm just not familiar. You know, he had top rank.”
Nonetheless, Carradine maintained that Phillips outranked “that
MacGreg” and that “Kaos was the dude that was over all of it.”
Carradine said the person he knew as MacGreg had been present at the
apartment and armed with a gun. He described MacGreg as bald, with a
light mustache, very light complected, about 5′6″ or 5′7″ in height,
with “a bunch of tattoos,” and “twelve gold in his mouth,” a
“six-point star in the web of his hand,” tattoos on his neck, body,
and arms, including a “GD” tattoo, a “MacGreg” tattoo on his right
forearm, and a “to the world blow” tattoo on his left arm. Carradine
confirmed that he had told the police in a May 9, 1997, statement that
MacGreg was chief of security and was know as the “Executioner.”
On cross-examination, the prosecution pointed out
that Carradine had testified similarly at Kevin Wilkins's trial,
stating that he knew a person known as “Big Folk” but that Kevin
Wilkins was not that person. Carradine reluctantly admitted he had
been a Gangster Disciple but maintained that he had no leadership role
or rank within the gang. While Carradine denied participating in the
physical assault on Green, he recalled seeing the victim kneeling
beside the staircase, with Shipp and six others standing around him.
Carradine explained that Phillips, along with the men he knew as
MacGreg and Big Folk, were “standing behind the six dudes that were
around Vernon,” talking on the telephone. Carradine recalled Shipp
had been walking between the two groups. After Green was moved to an
upstairs bedroom, Carradine heard someone telling Green “to shut up
before he got killed then.” Carradine confirmed that Phillips was
the Hurt Village coordinator and Shipp the Hurt Village chief of
security and said that MacGreg ranked “somewhere around” two or three
in the Memphis Gangster Disciples.
After Carradine testified, the defendant displayed
his person to the jury. The record reflects he had no tattoos on his
chest, neck, or back, no “MacGreg” or “Greg” tattoo on his right arm,
no star tattoos on his hands, and no tattoo of “to the world blow” on
his left arm. The record also reflects that the defendant had on his
left arm a tattoo of “two heart's intertwined with each other, one
with the name Sardie, one with the name Samantha.” Also tattooed on
his left arm was the word “Red.” A tattoo on the defendant's right arm
was described as following in the record; “a number one with what
appears to be a brick of a wall with Mom and Annie on it.” Finally,
the record reflects that the defendant had six gold teeth on the
bottom and four gold teeth on the top, for a total of ten. The
letters “G” “R” “E” “G” appeared on his four top gold teeth. The
record reflects there were no stars or “pitch forks or anything else
on the teeth.”
Annie Robinson, the defendant's mother, along with
Nichole Robinson and Patricia Anne Robinson, two of the defendant's
sisters, testified that the defendant never had tattoos or gold teeth
as described by Carradine. The defendant's mother, along with the
defendant's friends, Danny Williams and Ronald Dowell, testified that
the defendant had never been a gang member.
While admitting he had been at the Hurt Village
apartment on April 30, 1997, Sepacus Triplett nonetheless denied being
a member of the Gangster Disciples. However, Phillips directed
Triplett to “control the door,” so Triplett had answered the door for
“everybody” and knew “who came in and who didn't come in.” Triplett
said he had not seen the defendant at the apartment and believed
Phillips was “in charge.” On cross-examination, Sepacus Triplett
admitted he had lied to the police in a statement given on May 8,
1997, and that he had pleaded guilty to facilitation in connection
with Green's murder.
Frederico Mason testified that, although he was not
a member of the Gangster Disciples, he had been present at the
apartment on April 30, 1997. Mason had seen a man known as “MacGreg”
a “couple of times at Hurt Village,” but Mason did not know if MacGreg
was a Gangster Disciple. Mason maintained the defendant and MacGreg
were not the same man. Mason did not see the defendant at the
apartment on April 30, 1997, had never seen the defendant at the Hurt
Village complex, and had first seen the defendant when shown a picture
by a police detective. Mason did not know if MacGreg had been at
Nichole Black's apartment on April 30, 1997, because he was “going
upstairs and downstairs.” Mason knew Kaos but said he did not know
if Kaos had been at the apartment on April 30, 1997, but Mason had
seen Phillips and Shipp discussing Green's fate. When asked if he
saw anyone else, Mason replied, “Like I said, them the only peoples
that I just knew, you know.” On cross-examination, Mason admitted he
left the apartment at approximately 10 p.m. and did not return until
approximately 3 a.m.
Steven Hardin testified also and admitted he had
pleaded guilty to facilitation to especially aggravated kidnapping in
connection with Green's kidnapping and murder. Hardin arrived at the
apartment between 5:30 and 6 p.m. on April 30, 1997. Hardin said
Shipp called the aid and assist meeting and many people arrived whom
Hardin had never before seen. Hardin “vaguely” remembered some of
the people who arrived for the meeting, and in particular, he
remembered a man known as MacGreg being there that night. Hardin
said MacGreg had tattoos on his hand, arms, neck, and shoulder and had
a nicely trimmed “blondish beard.” Hardin maintained the defendant
was not “MacGreg,” and said at no time during the evening did Hardin
observe the defendant at the apartment. Hardin admitted that he had
been “told to go upstairs by Prentiss Phillips and lookout the window
and inform them” if anyone, the police, the Vice Lords, “whoever tried
to come up to the apartment.” Hardin stayed at his upstairs lookout
post from 6:30 p.m. until 12 or 1 a.m. On cross-examination, Hardin
admitted that, after pleading guilty, he had feared revenge from other
Gangster Disciples incarcerated with him and acknowledged that his
incarceration with other gang members was a frightening situation.
April Black testified that, on the evening of April
30, 1997, she was held in an upstairs bedroom at gunpoint by members
of the Gangster Disciples. Black acknowledged her acquaintance and
association with members of the Gangster Disciples, including Kaos,
MacGreg, and Phillips. She admitted MacGreg had been at the aid and
assist meeting at her apartment, but maintained the defendant is not
MacGreg. Black admitted she was serving a ten-year sentence in the
Mississippi Department of Correction for armed robbery, but claimed
she was not incarcerated with Gangster Disciples from Memphis. On
cross-examination Black admitted her brother had been shot by Gangster
Disciples in the Shelby County jail, but she denied being afraid of
the gang, although admitting she was “concerned.”
Horace Black, April Black's brother, admitted he
had been a member of the Gangster Disciples for ten years. He also
admitted knowing the defendant from jail, but said, to his knowledge,
the defendant had never been a member of the Gangster Disciples.
Horace Black said he did not know Kaos, despite being a gang member
for ten years. On cross-examination, Horace Black admitted that he
previously had been convicted of possession of a controlled substance
with the intent to sell, manufacture, or deliver, and aggravated
Sergeant Richard Parker, a Memphis police officer
who had been assigned to the Gang Task Force for five years, testified
for the defense about gang tattoos. Sergeant Parker described the
readily identifiable tattoos often used by Gangster Disciples. He
stated the defendant's tattoos could “possibly” be gang tattoos, but
he could not readily identify them as such. He indicated the letter
“E” of the defendant's “RED” tattoo resembled a Gangster Disciple
trademark, “although it was missing the post under it.” He further
noted that gang members often “camouflage” their tattoos, and he
pointed out that tattoos can be easily changed. Sergeant Parker
indicated that gang members had begun to eschew tattoos to avoid
detection and explained that gold teeth, common among Gangster
Disciples, can be removed and changed. Defense counsel pointed out
that when he initially showed Sergeant Parker photographs of the
defendant's tattoos, Sergeant Parker opined that the defendant's
tattoos were not gang-related. After speaking with the prosecuting
attorneys in the hall outside the courtroom, Sergeant Parker “came to
the conclusion that the tattoos could possibly be gang-related.”
Based upon this proof, the jury convicted the
defendant of premeditated first degree murder and especially
aggravated kidnapping, finding the defendant criminally responsible
for the conduct of another.
The trial proceeded to the penalty phase. To
establish the two aggravating circumstances-the murder was especially
heinous, atrocious or cruel in that it involved torture or serious
physical abuse beyond that necessary to produce death and the murder
was committed during a kidnapping 5
-the prosecution relied upon the proof presented during the guilt
phase of the trial and re-called Sergeant Peppers to the stand.
Sergeant Peppers identified a photograph of the victim's body as it
appeared when discovered in Jessie Turner Park on the morning of May
A friend of the defendant, his mother, and two of
his sisters testified in mitigation. They described him as a “loving
father” of seven children, ranging in age from one to six years old, a
member of a large, close-knit family, a concerned and caring brother
to his five sisters, and the youngest of his mother's six children and
her only son. He attended church. Although he had no steady job,
the defendant had been trained as a welder. Both the defendant's
mother, and Debra McNeese, a mitigation specialist with Probation
Management Group, testified that the defendant had a learning
disability and had dropped out of school in the ninth grade. After
leaving school, the defendant worked with his father at Eagle Iron
Work. Testifying in his own behalf, the defendant asked the jury to
spare his life so that he could see his children.
Upon finding that the prosecution had proven both
aggravating circumstances beyond a reasonable doubt and that the
aggravating circumstances outweighed any mitigating circumstances
beyond a reasonable doubt, the jury imposed a sentence of death. The
defendant appealed, and the Court of Criminal Appeals reversed the
defendant's convictions and sentence of death. The State thereafter
filed an application for permission to appeal. For the following
reasons, we disagree with the Court of Criminal Appeals and reinstate
and affirm the defendant's convictions and sentence of death.6
II. Failure to Instruct on Lesser-Included
The Court of Criminal Appeals held that the trial
court erred by failing to instruct the jury on facilitation and
solicitation of first degree premeditated murder and especially
aggravated kidnapping. The Court of Criminal Appeals therefore
reversed the defendant's convictions and remanded to the trial court
for a new trial. In this Court, the State concedes that, under the
circumstances of this case and the test enunciated in State v. Burns,
6 S.W.3d 453, 466-67 (Tenn.1999), facilitation and solicitation are
lesser-included offenses of first degree premeditated murder.
Nonetheless, the State maintains that the evidence in this case did
not justify a jury instruction on either of these lesser-included
In State v. Burns, 6 S.W.3d at 466-67, this Court
explained that an offense is lesser-included if:
(a) all of its statutory elements are included
within the statutory elements of the offense charged; or
(b) it fails to meet the definition in part (a)
only in the respect that it contains a statutory element or elements
(1) a different mental state indicating a lesser
kind of culpability; and/or
(2) a less serious harm or risk of harm to the same
person, property or public interest; or
(c) it consists of
(1) facilitation of the offense charged or of an
offense that otherwise meets the definition of lesser-included offense
in part (a) or (b); or
(2) solicitation to commit the offense charged or
an offense that otherwise meets the definition of lesser-included
offense in part (a) or (b).
“Whether or not a particular lesser-included
offense should be charged to the jury depends on whether proof in the
record would support the lesser charge.” Id. at 468. This Court
has adopted a two-step inquiry for determining if the evidence
justifies a jury instruction on a lesser-included offense. The trial
court must first determine:
whether any evidence exists that reasonable minds
could accept as to the lesser-included offense. In making this
determination, the trial court must view the evidence liberally in the
light most favorable to the existence of the lesser-included offense
without making any judgments on the credibility of such evidence.
Second, the trial court must determine if the evidence, viewed in this
light, is legally sufficient to support a conviction for the lesser-included
Id., at 469. Whether an instruction is required
depends upon the evidence, not the theory of the defense or the State.
State v. Allen, 69 S.W.3d 181, 188 (Tenn.2002); State v. Richmond,
90 S.W.3d 648, 660 (Tenn.2002). Applying these principles, we
conclude that the trial court did not err in failing to instruct on
solicitation and facilitation.
A person may be convicted of solicitation if that
person “by means of oral, written or electronic communication,
directly or through another, intentionally commands, requests or hires
another to commit a criminal offense ․ with the intent that the
criminal offense be committed․” Tenn.Code Ann. § 39-12-102(a) (1997).
Part (c) of the Burns test, which makes solicitation a lesser-included
offense, applies “to situations in which a defendant attempts to
commit, or solicits another to commit, either the crime charged or a
lesser-included offense, but no proof exists of the completion of the
crime.” State v. Ely, 48 S.W.3d 710, 719 (Tenn.2001); See also State
v. Marcum, 109 S.W.3d 300, 303-04 (Tenn.2003) (quoting this principle
and holding that the trial court did not err in failing to instruct on
attempted rape where the evidence did not support an attempt but
instead supported only the completed offense of rape or the
defendant's claim of innocence). As in Marcum, in this case, the
evidence unmistakably established either the completed offenses of
murder and especially aggravated kidnapping or the defendant's claim
of innocence. Consequently, the trial court did not err by failing
to instruct the jury on solicitation.7
Part (c)(1) of the Burns test clearly designates
facilitation a lesser-included offense of the charged offense. Burns,
6 S.W.3d at 467. Thus, facilitation is a lesser-included offense of
premeditated murder and especially aggravated kidnapping. Having
determined that facilitation is a lesser-included offense, we must
next determine whether the evidence in this case warranted an
instruction on facilitation.
Tennessee Code Annotated section 39-11-403(a)
(1997), defines “facilitation” as follows: A person is criminally
responsible for the facilitation of a felony if, knowing that another
intends to commit a specific felony, but without the intent required
for criminal responsibility under § 39-11-402(2), the person knowingly
furnishes substantial assistance in the commission of the felony.
(Emphasis added.) Criminal responsibility
requires “the intent to promote or assist the commission of the
offense.” Tenn.Code Ann. § 39-11-402 (1997). Significantly,
facilitation requires the lack of criminal responsibility intent.
Thus, for a reasonable jury to find the defendant guilty of
facilitation of first degree premeditated murder or especially
aggravated kidnapping, the jury would have to conclude that the
defendant, while lacking the intent to promote or assist the
commission of either offense, knowingly furnished substantial
assistance in the commission of premeditated murder and especially
aggravated kidnapping. See id. § 39-11-403(a) (1997). This record
contains no evidence that reasonable minds could accept to support
these conclusions. As recounted in great detail above, with respect
to premeditated murder, the evidence reasonably supports only one of
the following conclusions: (1) Robinson was not present at the
apartment, was not involved in Green's murder or the Gangster
Disciples, and therefore is completely innocent; (2) Robinson is
innocent because, while he gave orders, he did not order anyone to
kill or kidnap Green; or (3) Robinson is guilty by criminal
responsibility because he ordered other gang members to kidnap and
kill Green. Considering the evidence in the light most favorable to
the existence of the lesser-included offense, the evidence does not
support the notion that the defendant merely furnished substantial
assistance in the commission of premeditated first degree murder and
especially aggravated kidnapping, without intending to promote or
assist the commission of these offenses.
The Court of Criminal Appeals opined that the
“knowingly furnishes substantial assistance” element of facilitation
of first degree murder was supported by proof that the defendant
ordered others to take Green to a secluded location. However, as the
State points out, the evidence indicates that the defendant told other
gang members to take the victim “fishing.” Shipp testified that he
had never before heard that instruction but believed it meant gang
members were to take the victim “way out somewhere out of the district,
rough him up a little bit by physical abuse, and let him get back the
best way he could.” Accepting this view of the proof, no reasonable
juror could have found that the defendant knowingly furnished
substantial assistance in the commission of the murder. Indeed,
under this view of the proof, Green's murder directly violated the
defendant's instruction. It simply defies logic to conclude that the
defendant, while not intending to aid or promote Green's murder,
nevertheless ordered other gang members to take Green “out of the
district, rough him up a little bit by physical abuse, and let him get
back the best way he could,” knowing all along that these gang members
intended to kill Green. Simply put, no reasonable jury could have
concluded from the evidence presented that the defendant had the
knowledge required for facilitation but lacked the intent required for
criminal responsibility. We therefore conclude that the trial court
did not err by failing to instruct the jury on facilitation to commit
premeditated murder. See Ely, 48 S.W.3d at 724 (holding that the
trial court did not err by failing to instruct facilitation as no
reasonable jury could believe that, although the defendant was present
at the scene of the robbery, knew that the accomplice intended to
commit robbery, and substantially assisted in the commission of the
robbery, he “nevertheless did not intend ‘to promote or assist the
commission of the offense ․’ ”); Burns, 6 S.W.3d at 471 (holding that
the trial court did not err in refusing to instruct on facilitation
because no reasonable jury could conclude that the defendant had the
knowledge required for facilitation but lacked the intent required for
As to facilitation to commit especially aggravated
kidnapping, the Court of Criminal Appeals explained that, although the
proof established the defendant's direct participation in initially
kidnapping and beating Green at the apartment, a jury could have
concluded that the defendant did not intend the kidnapping be
especially aggravated when he ordered gang members to take Green “fishing.”
Again, as explained above, from the evidence presented, no
reasonable jury could have concluded that the defendant had the
knowledge required for facilitation but lacked the intent required for
criminal responsibility to commit especially aggravated kidnapping.
Given the proof presented, the defendant was either guilty by virtue
of criminal responsibility or he was innocent. Therefore, the trial
court did not err in failing to instruct the jury on facilitation of
especially aggravated kidnapping. The Court of Criminal Appeals's
decision setting aside the defendant's convictions and remanding for a
new trial therefore is reversed.
III. Jarvis Shipp Accomplice Instruction
The defendant asserts that the trial court erred by
instructing the jury they were to determine as a question of fact
whether or not Jarvis Shipp was an accomplice to the crime. The
State asserts the defendant waived this issue by failing to object to
the charge given the jury. Alternatively, the State argues that any
error was harmless because Shipp's testimony was corroborated
abundantly by James's testimony and other evidence, as the Court of
Criminal Appeals found.
When the facts concerning a witness's participation
are clear and undisputed, the trial court determines as a matter of
law whether the witness is an accomplice. Ripley v. State, 189 Tenn.
681, 687, 227 S.W.2d 26, 29 (1950); State v. Perkinson, 867 S.W.2d 1,
7 (Tenn.Crim.App.1992). If the facts are disputed or susceptible to
different inferences, the jury must decide as a question of fact
whether the witness is an accomplice. Perkinson, 867 S.W.2d at 7. The
test generally applied is whether the witness could be indicted for
the same offense charged against the defendant. Monts v. State, 214
Tenn. 171, 191, 379 S.W.2d 34, 43 (1964).
In this case, the facts were not disputed, and the
trial court should have instructed the jury to consider Shipp an
accomplice as a matter of law. However, the defendant failed to
object to the trial court's instruction and thus waived the issue.
Furthermore, even considering the merits of the issue, the error is
harmless because James's testimony and Dr. Deering's testimony
sufficiently corroborated Shipp's description of the events so that
the evidence is sufficient to support the jury's verdict of first
degree murder. This issue is without merit.
IV. Display of Skull and Admission of
The State next challenges the Court of Criminal
Appeals's conclusion that the trial court erred both in allowing the
forensic pathologist to use the victim's cleaned and reconstructed
skull when testifying about the victim's injuries and in admitting
into evidence certain photographs depicting the victim's body. While
the State concedes that the Court of Criminal Appeals recited the
correct standard of appellate review, the State nonetheless maintains
that the Court of Criminal Appeals failed to apply the correct
standard. According to the State, rather than determining whether
the trial court abused its discretion, the intermediate appellate
court independently assessed the propriety of using the skull at trial
before concluding there was “no need for its introduction.” 8
The State also relies upon several cases in which this Court rejected
defense challenges to the admission of a victim's skull during a
murder trial. See, e.g., State v. Pike, 978 S.W.2d 904, 925 (Tenn.1998);
State v. Cazes, 875 S.W.2d 253, 263 (Tenn.1994); State v. King, 718
S.W.2d 241, 250-51 (Tenn.1986); State v. Morris, 641 S.W.2d 883, 888
In response, Robinson argues that this Court's
prior decisions are not controlling because, unlike the defendants in
those cases, he was charged with premeditated first degree murder by
criminal responsibility and was not accused of actually inflicting the
fatal injuries upon the victim. Furthermore, the defendant argues
that Dr. Deering's thorough and clear testimony regarding the victim's
injuries rendered the skull's use unnecessary. Although Robinson
admits that Dr. Deering's testimony and use of the skull to explain
the order of the gunshots corroborated Shipp's testimony, the
defendant nonetheless maintains that the skull was not relevant to
“any disputed issue in the guilt phase” of his trial. The defendant
argues that, in light of the great danger of unfair prejudice, the
trial court erred by allowing Dr. Deering to testify and display the
skull during his testimony.9
Admission of evidence is entrusted to the sound
discretion of the trial court, and a trial court's ruling on evidence
will be disturbed only upon a clear showing of abuse of discretion.
See State v. DuBose, 953 S.W.2d 649, 652 (Tenn.1997). A trial
court's exercise of discretion will not be reversed on appeal unless
the court “applied an incorrect legal standard, or reached a decision
which is against logic or reasoning that caused an injustice to the
party complaining.” State v. Shuck, 953 S.W.2d 662, 669 (Tenn.1997).
When determining admissibility, a trial court must first decide if
the evidence is relevant. Tenn. R. Evid. 402 (“All relevant evidence
is admissible except as provided by the Constitution of the United
States, the Constitution of Tennessee, these rules or other rules or
laws of general application in the courts of Tennessee. Evidence
which is not relevant is not admissible.”); State v. James, 81 S.W.3d
751, 757 (Tenn.2002). Evidence “having any tendency to make the
existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the
evidence” is relevant evidence. Tenn. R. Evid. 401. After a court
concludes evidence is relevant, the court must then weigh the
probative value of the evidence against the danger the evidence will
unfairly prejudice the defendant at trial. Relevant evidence should
be excluded if the court determines that the probative value of the
evidence “is substantially outweighed by its danger of unfair
prejudice.” Tenn. R. Evid. 403 (emphasis added). This Court
previously has emphasized:
Rule 403 is a rule of admissibility, and it places
a heavy burden on the party seeking to exclude the evidence.
Excluding relevant evidence under this rule is an extraordinary remedy
that should be used sparingly and persons seeking to exclude otherwise
admissible and relevant evidence have a significant burden of
James, 81 S.W.3d at 757-58 (internal quotations and
Applying these principles, we conclude that the
trial court did not abuse its discretion by allowing Dr. Deering to
testify and display the skull to explain his testimony. Indeed,
nothing in this record indicates that the trial court “applied an
incorrect legal standard, or reached a decision which is against logic
or reasoning that caused an injustice to the party complaining.”
In a jury-out hearing the trial court carefully
considered the defense objections, correctly summarized governing law
regarding the prosecution's right to prove its case, and accurately
concluded that this right may not be foreclosed by a defendant's
characterization of the proof as undisputed or by a defendant's offer
to stipulate or concede certain factual issues. See James, 81 S.W.3d
at 761; State v. West, 767 S.W.2d 387, 394 (Tenn.1989) (holding that
the trial judge did not err by refusing to accept defendant's offer to
stipulate the identity of all property when the defendant made the
offer in an effort to eliminate highly emotional and prejudicial
testimony); King, 718 S.W.2d at 250-51 (holding that the victim's
skull and skull fragments were properly admitted even though the
defendant stipulated prior to trial that the victim's death resulted
from a shot in the back of the head from a high-powered rifle).
After acknowledging that relevant evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice, the trial court specifically concluded that the probative
value of Dr. Deering's testimony and his use of the skull to explain
his testimony outweighed the danger of unfair prejudice. The trial
court stated: “I can't think of a better way to display and show the
injuries than by use of the actual skull. I'm not sure that you
could recreate that sufficient to do what I anticipate the doctor's
going to do based on what I heard him do last time.” Later in the
proceeding while ruling upon the admissibility of certain photographs,
the trial court noted that the skull was less graphic and a better aid
“to demonstrate the injuries” than some of the photographs. Defense
counsel apparently agreed with this assessment, stating, “[a]nd with
that skull you don't have the blood and the gore that you see in those
photographs. [Dr. Deering] more than adequately demonstrated to this
entire courtroom in a very academic, professional fashion.”
Furthermore, as the defendant correctly admits, Dr.
Deering's testimony about the order of the gunshots corroborated
Shipp's testimony. Indeed, it was Shipp's testimony about the order
of the gunshots that Dr. Deering used the skull to clarify and explain.
Such corroborating evidence clearly was relevant because it was
necessary to the prosecution's case. This Court repeatedly has held
that a conviction may not be based solely upon the uncorroborated
testimony of an accomplice to the offense. See State v. Bane, 57 S.W.3d
411, 419 (Tenn.2001); State v. Stout, 46 S.W.3d 689, 696-97 (Tenn.2001);
State v. Bigbee, 885 S.W.2d 797, 803 (Tenn.1994). Evidence
corroborating an accomplice's testimony, such as Dr. Deering's
testimony, therefore certainly qualifies as “evidence having any
tendency to make the existence of any fact that is of consequence to
the determination of the action more probable.” Tenn. R. Evid. 401.
The defendant bore the heavy burden of establishing that the danger
of unfair prejudice from Dr. Deering's testimony and use of the skull
substantially outweighed its probative value. The trial court did
not abuse its discretion by concluding that the defendant failed to
meet this burden. The Court of Criminal Appeals's decision to the
contrary is reversed.
The State also challenges the Court of Criminal
Appeals's conclusion that the trial court erred by admitting Exhibit
10, a post-mortem photograph of the victim's right forehead. Again,
admission of evidence is entrusted to the sound discretion of the
trial court, and appellate courts should not reverse a trial court's
admissibility decision absent a showing of abuse of discretion. Here
again, no abuse of discretion has been shown. The trial court found,
and the Court of Criminal Appeals agreed, that the photograph in
question, Exhibit 10, along with two other photographs, Exhibits 8 and
relevant to show premeditation, the cause of death, and the victim's
location and body position, and also were necessary to illustrate the
testimony of many of the state's witnesses. Immediately upon
admission of the photographs, the trial court gave the jury a limiting
instruction and cautioned the jury against improperly using the
photographs. The trial court did not act as a rubber stamp and admit
every photograph the prosecution proffered. As previously stated,
the trial court excluded certain autopsy photographs, noting their
admission was not necessary because Dr. Deering had been allowed to
use the victim's skull as a demonstrative aid. The trial court did
not apply an incorrect legal standard. Tennessee courts follow a
policy of liberality in the admission of photographs in both civil and
criminal cases. See State v. Banks, 564 S.W.2d 947, 949 (Tenn.1978).
Photographs of a corpse are generally admissible in murder
prosecutions if they are relevant to the issues at trial. Id. at
950-51. The trial court's determination that the photographs were
relevant to issues at trial is not illogical nor irrational and did
not cause an injustice to the defendant. As the trial court found,
the photographs were relevant to several issues, illustrated and
supplemented the testimony of Dr. Deering, and revealed the brutality
of the attack and the extent of force used against the victim. See
State v. Smith, 868 S.W.2d 561, 576 (Tenn.1993). For all these
reasons, we conclude that the trial court did not err by admitting
Exhibits 8, 9, and 10 into evidence. The Court of Criminal Appeals's
decision to the contrary is reversed.
V. Sergeant Ashton's Testimony
Relying upon Crawford v. Washington, 541 U.S. 36,
124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), defense counsel complains that
Sergeant Ashton's testimony regarding Shaun Washington's
identification of the defendant constituted inadmissible hearsay that
violated his constitutional right to confront the witnesses against
him. We agree with the Court of Criminal Appeals and the trial court
that the defendant elicited this hearsay evidence and cannot complain
now about its introduction. When defense counsel cross-examined
Sergeant Ashton about his preparation of photo spread “GG,” the
following exchange occurred.
Q: And as case coordinator during your
investigation are you aware of any other individuals that were
interviewed that identified “GG,” number six, as being there?
A: Yes, sir.
Q: And who would that be, sir?
A: Right offhand I wouldn't know. I'd have to
look at my case.
Q: Okay. Would you please-do you have that
A: I believe I've got a copy of it in my office.
Q: Okay. Could you go obtain that?
A: It'd take me a few moments.
Q: Okay. Could you do that, sir?
THE COURT: What are you asking Mr. Ozment?
MR. OZMENT: You honor, I'm asking him to obtain
whatever other identifications were made of “GG” six.
The court then recessed for the evening, and when
cross-examination resumed the next day, the following exchange
occurred between defense counsel and Sergeant Ashton.
Q: Sergeant Ashton, yesterday when we left off we
were talking about the photo spread and the people that had identified
people in the photo spread, correct?
A: Yes, sir.
Q: Particularly photo spread “GG,” correct?
A: Yes, sir.
Q: And the last question I left on was who else
identified someone out of photo spread “GG.” Have you had an
opportunity to check your records on that?
A: The best I could determine it was Christopher
Lewis and Shaun Washington.
Q: Okay. So out of all the people that-when they
were shown this photo spread by officers in your department that
identified Gregory Robinson during the course of your investigation
the only two were Christopher James and Shaun Lewis, correct-Shaun
A: That's what we've got in their statements,
On re-direct, Sergeant Ashton testified that, while
giving a statement on June 13, 1997, Shaun Washington looked at
photographic array “GG” and identified the defendant as MacGreg.
When asked about Washington's demeanor at the time, Sergeant Ashton
responded, “He was very sure of himself.” The defendant did not
interpose an objection to Sergeant Ashton's testimony.
While the defendant may very well be correct that
both Crawford and Tennessee Rule of Evidence Rule 803(1.1) bar hearsay
statements of identification if the declarant does not testify at
trial, neither Crawford nor Rule 803(1.1) is dispositive in this case
because the defendant himself both elicited and opened the door to the
testimony he now assigns as error. Under these circumstances, the
defendant is not entitled to relief. Indeed, it is well-settled that
a litigant “will not be permitted to take advantage of errors which he
himself committed, or invited, or induced the trial court to commit,
or which were the natural consequence of his own neglect or misconduct.”
Norris v. Richards, 193 Tenn. 450, 246 S.W.2d 81, 85 (1952); see
also State v. Smith, 24 S.W.3d 274, 279-80 (Tenn.2000); Tenn. R.App.
P. 36(a). Thus, the defendant is not entitled to relief on this
VI. Failure to Declare a Mistrial
The defendant further maintains that the trial
court erred in denying his motion for a mistrial given the
prosecutorial misconduct in presenting Nichole Black's testimony.
During its rebuttal, the prosecution called Nichole Black, one of the
sisters held in the apartment on the night of Vernon Green's murder.
Black testified that the defendant had been in the apartment on the
night in question. On redirect examination, the prosecutor handed
Black a photograph and asked if she could identify the person in the
photograph. Defense counsel objected to the identification, and the
trial court held a jury-out hearing. Ultimately, the trial court
excluded Black's testimony and ordered it entirely stricken from the
record because the prosecution had failed to inform defense counsel
that Black had made a prior identification of the defendant.
Although the trial court denied the defendant's request for a mistrial,
the trial court instructed the jury to disregard Black's testimony.
The decision of whether to grant or deny a motion
for a mistrial rests within the sound discretion of the trial court.
A mistrial should be declared only upon a showing of manifest
necessity. State v. Saylor, 117 S.W.3d 239, 250-51 (Tenn.2003). “In
other words, a mistrial is an appropriate remedy when a trial cannot
continue, or a miscarriage of justice would result if it did.” State
v. Land, 34 S.W.3d 516, 527 (Tenn.Crim.App.2000). Appellate courts
should not reverse a trial court's decision denying a request for a
mistrial absent a clear showing that the trial court abused its
discretion. State v. Reid, 91 S.W.3d 247, 279 (Tenn.2002).
The record in this case supports the trial court's
decision and demonstrates no abuse of discretion. Nichole Black
testified that even though the power was out in her apartment on April
30, 1997, she had observed a man for approximately thirty seconds by
the light of a small pocket pager held near her face and that the man
in the photograph “looked like” the man she observed. Nichole Black
had just previously testified that no one in the courtroom, including
the defendant, was at her apartment the night of Green's abduction and
murder. Viewing it as a whole, Nichole Black's testimony was
uncertain and vague. The trial judge twice instructed the jury to
disregard her testimony in its entirety. Jurors are presumed to
follow the instructions of the court. Reid, 91 S.W.3d at 279; Stout,
46 S.W.3d at 715; State v. Williams, 977 S.W.2d 101, 106 (Tenn.1998).
Under these circumstances, the trial court did not abuse its
discretion by denying the defendant's request for a mistrial. This
issue is without merit.
VII. Due Process Violation: Inconsistent
Theories & Evidence
In his October 2000 motion for a new trial, the
defendant alleged his Due Process rights had been violated because the
theory of guilt presented by the prosecution at the October 1999 trial
of co-defendant Phillips was fundamentally inconsistent with and
inherently contradictory to evidence and argument presented by the
prosecution at his November 1998 trial.11
The trial judge who presided at the various trials and plea
colloquies related to this murder rejected the defendant's claim.
The trial court noted that although “the evidence did not absolutely
establish the identity of the leader at this meeting, there was ample
evidence that the Defendant was a leader at that meeting. The fact
that Prentiss Phillips, a co-defendant was also identified as a leader
at this meeting does not render the finding that this Defendant was a
The defendant renewed his Due Process claim in the
Court of Criminal Appeals. After announcing that the claim was a
question of first impression in Tennessee, the Court of Criminal
Appeals adopted the analysis of the United States Court of Appeals in
Smith v. Groose, 205 F.3d 1045, 1052 (8th Cir.2000). Consistent with
the Eighth Circuit's approach, the Court of Criminal Appeals explained
that, in separate trials against co-defendants for the same crime, the
prosecution violates Due Process by pursuing factually contradictory
theories that are at the core of the prosecution's case. The
intermediate appellate court explained that to obtain relief under
this approach, a defendant must establish not only a “core”
inconsistency, but also a reasonable likelihood that the outcome of
the trial would have been different absent the inconsistency.
Applying this test, the intermediate appellate court found that,
during the separate trials of the defendant and co-defendant Phillips,
the prosecution “presented some proof and arguments which were
inconsistent, contradictory, and factually irreconcilable regarding
the relative rank of the defendant and Phillips.” The Court of
Criminal Appeals nonetheless concluded that the defendant had failed
to establish a reasonable likelihood that absent these prosecutorial
inconsistencies the jury's verdict in the guilt phase would have been
different. However, finding a reasonable likelihood that the jury
would not have imposed a sentence of death absent the inconsistencies,
the Court of Criminal Appeals concluded that the defendant's sentence
of death should be reversed on this ground alone.
In this Court, the State initially argues that the
Court of Criminal Appeals erred in recognizing an independent Due
Process bar to the prosecution's reliance and pursuit of inconsistent
theories at separate trials involving the same crime. The State
concedes that a prosecutor clearly deprives a defendant of Due Process
by knowingly using false evidence or argument to obtain a conviction
However, citing cases from other jurisdictions, the State points out
that the law is less clear as to whether Due Process precludes a
prosecutor's use of factually inconsistent or contradictory theories
where there is no known falsity. See, e.g., People v. Sakarias, 22
Cal.4th 596, 94 Cal.Rptr.2d 17, 995 P.2d 152, 174 (2000) (“Less clear
is whether, knowing falsity aside, a prosecutor oversteps
constitutional limits by asserting, in separate trials of different
defendants, factually inconsistent or contradictory theories of
criminal events.”) The State also maintains that this Court need not
definitively clarify the law in this case because the prosecution
neither pursued inconsistent theories nor presented contradictory
evidence at these separate trials.
In contrast, the defendant argues that the Court of
Criminal Appeals correctly recognized the Due Process claim,
appropriately adopted the Eighth Circuit's analysis of such claims,
and accurately found a Due Process violation in this case.
Nonetheless, the defendant challenges the Court of Criminal Appeals's
conclusion that the Due Process violation did not affect the jury's
verdict at the guilt phase of his trial.
Having thoroughly reviewed the defendant's
extensive trial record, the supplemental record consisting of
transcripts from the separate trials or plea colloquies of co-defendants
Antonio Jackson, Prentiss Phillips, Jarvis Shipp, and Kevin Wilkins,
and the very lengthy appellate briefs, we are not persuaded the
prosecution pursued inconsistent theories or offered contradictory
proof at the separate trials of these co-defendants.13
As previously detailed, the prosecution offered
proof at the defendant's trial to establish that the defendant, as
chief of security, ranked third in the city-wide hierarchy of the
Memphis Gangster Disciples. Witnesses testified the defendant
ordered other gang members to “snatch up” the victim, and that the
defendant himself beat the victim at the apartment. Proof also
showed that the defendant ordered others to take the victim upstairs
and detain him. Witnesses testified that the defendant ordered
Wilkins and Phillips to select gang members to take the victim “fishing.”
But, the jury also heard proof to show that Phillips was coordinator
for the Hurt Village Gangster Disciples. When asked who had the
higher rank, Phillips or the defendant, Shipp indicated the defendant
ranked higher, but Shipp emphasized that the murder occurred on
Phillips's “turf” in Hurt Village and that Phillips and the defendant
were “kind of on the same level” in terms of authority. James was
not asked about the defendant's rank, did not attribute a rank to the
defendant, and stated he had never seen the defendant before April 30,
1997. However, James testified that Phillips held the rank of
coordinator within the Hurt Village Gangster Disciples and it was
Phillips whom the victim asked to stop the assault. Moreover defense
counsel emphasized through cross-examination that Shipp and other
prosecution witnesses had initially given statements to the police
implicating Phillips as the ranking Gangster Disciple responsible for
the orders that resulted in the victim's murder. Indeed, both James
and Shipp were closely questioned about their failure to initially
implicate the defendant, and in particular, defense counsel emphasized
that Shipp did not implicate or mention the defendant in his initial
statement to the police but had instead named and implicated Phillips.
Both Shipp's and James's testimony conveyed
Phillips's leadership role in Green's kidnapping and murder.
Testimony indicated that Phillips announced the Hurt Village Gangster
Disciples were going to retaliate against the Vice Lords and step up
the violence to another level and that Phillips and Shipp called the
aid and assist meeting. Testimony also showed that Phillips posted
gang members as lookouts at the door of the apartment and in an
upstairs bedroom, that Phillips accused the victim of being a lookout
for the Vice Lords, and that the victim asked Phillips, rather than
the defendant, to “tell them folks to stop.” Furthermore, the
testimony indicated that Phillips announced James would be punished
for failing to aid Shipp in the fight with the Vice Lords and selected
gang members to inflict the punishment. In addition there was proof
that Phillips met with the defendant and Kaos. A defense witness said
he heard Phillips and Shipp discussing Green's fate; and testimony
indicated that Phillips, at the defendant's direction, selected three
of the gang members who removed Green from the apartment. Finally,
there was testimony that Phillips escorted James home and told Shipp
to take “a six day vacation.”
At Phillips's subsequent trial the State argued and
presented evidence to show that Phillips, as coordinator, was the
ranking member of the Hurt Village Gangster Disciples, called the aid
and assist meeting, and gave orders to others during the meeting.
There was testimony that Phillips reported the victim was outside and
that Phillips stated the victim would have to be killed. The proof
showed that Phillips picked other gang members, including his number
two man Shipp, to be part of the group that removed Green from the
apartment and killed him. However, the proof at Phillips's trial
also showed that the defendant, answering Phillips's call, attended
the aid and assist meeting, ordered others to “snatch up” the victim,
met with Phillips in the kitchen, ordered the victim taken upstairs
after the victim had been beaten. The jury at Phillips's trial also
heard evidence that the defendant was Kaos's chief of security with
authority to carry out orders from Kaos, that the defendant ordered
the victim taken from the apartment, and that the defendant and
Phillips each picked three gang members to take the victim from the
As should be apparent from these brief summaries,
the prosecution did not pursue inconsistent theories or present
inconsistent proof at these separate trials. As the State points
out, the focus in each trial was upon each defendant's culpability,
but the theory remained the same. At Phillips's trial, the
prosecution focused on Phillips's culpability for the kidnapping and
murder, and much of this proof related to Phillips's position as
coordinator of the Hurt Village Gangster Disciples. Witnesses at
Phillips's trial were familiar with Phillips's coordinator rank, but
had never seen the defendant before the evening of April 30, 1997.
The defendant makes much of the fact that the prosecution at
Phillips's trial argued that Phillips, as coordinator of the Hurt
Village Gangster Disciples, had an additional reason for participating
in the victim's kidnapping and murder, stating:
[P]art of this ․ was a personal situation. This
wasn't entirely a Gangster Disciple matter. It was personal. It
was a personal affront to this man's ego, this man, the coordinator of
Hurt Village. An altercation had happened on his turf between the
Vice Lords and the Gangster Disciples and it diminished his power.
And he wasn't going to stand for it.
The prosecution did not make this argument at the
defendant's trial. And, given that this argument was completely
unrelated to the defendant, the prosecution's failure to press this
argument is logical. However, this argument is entirely consistent
with testimony at the defendant's trial indicating that Phillips was
very upset after the skirmish with the Vice Lords and called the aid
and assist meeting because he wanted to step up the violence and
retaliate against the Vice Lords. Thus, from our thorough review of
the record and the briefs, we conclude that the prosecution did not
pursue inconsistent theories at these separate trials.
By so stating, we do not intend to imply the
evidence at these separate trials was identical. It was not-discrepancies
exist. But these discrepancies were isolated and immaterial when
taken in context and certainly do not give rise to a Due Process
As a practical matter, discrepancies are commonly
unavoidable when several individuals are prosecuted in separate trials
for the same offense. Indeed, such trials present challenges because
“the truth is clouded by secret and elaborate gang rituals; the use
of two and three code names for gang members; and the commission of
crimes by groups.” State v. Phillips, 76 S.W.3d 1, 10 (Tenn.Crim.App.2001).
Furthermore, as the Alabama Court of Criminal Appeals noted,
“evidence of criminal conspiracies hardly ever comes from ministers
and civic leaders.” Anderson v. State, 354 So.2d 1156, 1159 (Ala.Cr.App.1977).
This case well-illustrates that point. James and Shipp were
themselves gang members, and Shipp was an accomplice to these crimes.
The Court of Criminal Appeals has described James as “a rather
inarticulate witness who was prone to cryptic responses.” State v.
Jackson, 52 S.W.3d 661, 667 (Tenn.Crim.App.2001). This description
is entirely accurate. James appeared to contradict himself while
testifying at both the defendant's trial and Phillips's trial, but the
prosecution did not encourage him to do so. Rather, the record
suggests the prosecutors were sometimes themselves surprised or
confused by his answers. At the defendant's trial, James was not
asked and did not ascribe a rank to the defendant but indicated that
Phillips and Shipp followed the defendant's directions without
hesitation. At Phillips's trial, James first said Phillips outranked
the defendant but later testified the defendant, not Phillips, had
been “calling the shots” in the apartment. The prosecutors did not
adopt this testimony to argue that Phillips outranked the defendant.
Instead, the prosecution's evidence, argument, and theory focused upon
Phillips's own statements and actions and upon Phillips's rank and
authority as coordinator of the Hurt Village Gangster Disciples.
We also are not troubled, as was the Court of
Criminal Appeals, by the prosecution's decision to call Shipp as a
witness at the guilt phase of the defendant's trial while offering his
testimony at only the sentencing phase of Phillips's trial. As
previously explained, Shipp initially gave a statement to the police
implicating Phillips and attributing to Phillips many of the actions
he attributed to the defendant at the defendant's trial. Had Shipp
been called by the prosecution as a witness at Phillips's trial and
then provided testimony consistent with his initial statement to the
police, the prosecution's proof at the separate trials would have been
inconsistent. By choosing not to call Shipp during the guilt phase
of Phillips's trial, and offering his testimony on a narrow point at
the sentencing phase, the prosecution avoided even the potential for
inconsistencies. Furthermore, unlike the Court of Criminal Appeals,
we do not find the prosecution's failure to question James about the
defendant's rank at the defendant's trial unusual. James testified
he had never seen the defendant prior to April 30, 1997, and had been
a member of the East Village Gangster Disciples only three or four
months at that time. Given this testimony, the prosecution had no
reason to believe James knew anything about the defendant's rank.
Moreover, James illustrated his lack of knowledge or uncertainty on
this issue at Phillips's trial where James testified inconsistently
when questioned about the relative ranks of Phillips and the defendant.
In short, the prosecution presented a consistent
theory at these separate trials. The prosecution at each trial
sought to establish each defendant's criminal responsibility for first
degree murder and especially aggravated kidnapping by showing that
each defendant held a leadership position in the gang, either citywide
chief of security or Hurt Village coordinator, and that, acting in his
leadership role, each defendant ordered and otherwise directed gang
members to kidnap and murder Vernon Green. Accordingly, we do not
agree with the Court of Criminal Appeals's conclusion that the
prosecution presented factually inconsistent theories and evidence at
the defendant's and Phillips's separate trials. Reversal of the
defendant's death sentence on this basis, therefore, is not warranted.
The defendant's sentence of death is reinstated.
VIII. Apprendi & Ring Challenge
Having concluded that the defendant's conviction of
first degree murder and sentence of death should be reinstated, we
next consider the defendant's contention that his sentence should be
vacated as unconstitutional because the aggravating circumstances were
not charged in the indictment. As support for this claim the
defendant relies upon Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.
2348, 147 L.Ed.2d 435 (2000) and Ring v. Arizona, 536 U.S. 584, 122
S.Ct. 2428, 153 L.Ed.2d 556 (2002). This issue is without merit.
See State v. Berry, 141 S.W.3d 549 (Tenn.2004).14
IX. Mandatory Review
Tennessee Code Annotated section 39-13-206(c)(1)
(1997), mandates that this Court determine: (1) whether the sentence
of death was imposed in any arbitrary fashion; (2) whether the
evidence supports the jury's finding of statutory aggravating
circumstances; (3) whether the evidence supports the jury's finding
that aggravating circumstances outweigh any mitigating circumstances;
and (4) whether the sentence of death is excessive or
disproportionate to the penalty imposed in similar cases, considering
both the nature of the crime and the defendant.
A thorough review of the record reveals that the
evidence is sufficient to support the jury's finding of the
aggravating circumstances beyond a reasonable doubt. The jury based
imposition of the death penalty upon two aggravating circumstances:
“the murder was especially heinous, atrocious, or cruel in that in
involved torture or serious physical abuse beyond that necessary to
produce death” and “the murder was knowingly committed, solicited,
directed, or aided by the defendant, while the defendant had a
substantial role in committing or attempting to commit ․ kidnapping.”
See Tenn.Code Ann. § 39-13-204(i)(5), (7) (1997).
The defendant contends that the evidence is not
sufficient to support the jury's finding of the (i)(5) aggravating
circumstance because the aggravating circumstance may not be
vicariously applied where, as here, the first degree murder conviction
is based upon criminal responsibility. In determining whether the
evidence supports a jury's finding of a statutory aggravating
circumstance, the proper inquiry for an appellate court is whether,
after reviewing the evidence in the light most favorable to the state,
a rational trier of fact could have found the existence of the
aggravating circumstance beyond a reasonable doubt. State v. Suttles,
30 S.W.3d 252, 262 (Tenn.2000).
In Owens v. State, 13 S.W.3d 742, 760 (Tenn.Crim.App.1999),
perm. app. denied (Tenn.2000), the intermediate appellate court
approved vicarious application of the (i)(5) aggravating circumstance.
The defendant in Owens hired Sidney Porterfield, her co-defendant,
to kill her husband. Porterfield bludgeoned Owens's husband to death
with a tire iron. Owens did not participate in the bludgeoning, and,
as here, was not present when the assault occurred; yet the jury
applied the (i)(5) aggravating circumstance to support imposition of
the death penalty. Owens argued the jury had erred in applying the
aggravating circumstance because she actually had not participated in
the murderous assault. In rejecting this assertion, the Court of
Criminal Appeals emphasized that the statutory language of the (i)(5)
aggravating circumstance focuses on the nature and circumstances of
the murder rather than the conduct or intent of the defendant. The
intermediate appellate court opined that this Court had implicitly
approved vicarious application of the aggravating circumstance in
another case. Owens, 13 S.W.3d at 761 (citing State v. Blanton, 975
S.W.2d 269, 279-80 (Tenn.1998) (upholding the jury's finding of the
(i)(5) aggravating circumstance to support death sentence on the
premeditated murder convictions despite the lack of evidence
indicating that the defendant inflicted the fatal blows)). Thus, the
Owens court held that the (i)(5) aggravating circumstance can be
applied to support the death penalty for a defendant, who, like Owens,
did not inflict the fatal blows.
Applying the analysis the Court of Criminal Appeals
applied in Owens, this Court has held that the (i)(3) aggravating
circumstance may not be vicariously applied. Johnson v. State 38 S.W.3d
52, 63 (Tenn.2001). In so holding, we emphasized that, “unlike other
aggravating circumstances, such as the (i)(5) aggravator, the
statutory language of the (i)(3) 15
aggravating circumstance” focuses upon the defendant's actions and
intent rather than upon the actual circumstances surrounding the
killing. Id. Although we formally adopted the analysis of Owens, we
expressly declined in Johnson to adopt the holding of Owens with
respect to the (i)(5) aggravating circumstance.16
Vicarious application of the (i)(5) aggravating circumstance now is
squarely presented. Therefore, we take this opportunity to agree
with the Court of Criminal Appeals and adopt the holding of Owens.
We hold that the (i)(5) aggravating circumstance may be vicariously
applied because the statutory language focuses upon the nature and
circumstances of the crime, rather than the actions, intent, and
conduct of the defendant. This holding breaks no new ground. See
State v. Carter, 988 S.W.2d 145, 150 (Tenn.1999) (noting that the
(i)(5) aggravating circumstance focuses upon the “circumstances of the
killing” and stating that “whether the defendant intended the victim's
suffering is irrelevant under (i)(5)”). Thus, the defendant's
assertion is without merit.
Furthermore, the evidence is sufficient to support
the jury's finding of the (i)(5) aggravating circumstance. Green was
“arrested” and held at an apartment where numerous armed gang members,
led by the defendant, beat and threatened him. Testimony indicated
that Green asked his captors for release and relief, that he appeared
very frightened, that he defecated during the ordeal and was ridiculed
for doing so, and that he begged his captors to let him go, promising
that he would not report their crimes. Witnesses indicated that
Green became even more frightened upon arriving at the park where he
was murdered. There, Green's captors physically carried and dropped
him on the hilltop where he was murdered. Before Green was
repeatedly shot in the head, Green begged for his life. Green
continued to beg for his life and cry out after being shot in the
buttocks and the back. Dr. Deering opined that the gunshot wounds to
Green's buttocks would have been very painful. Dr. Deering also
opined that the first gunshot wound to Green's head would have been
fatal. In short, the evidence clearly is sufficient to support the
jury's finding that “the murder was especially heinous, atrocious, or
cruel in that in involved torture or serious physical abuse beyond
that necessary to produce death.” This issue is without merit.
Also without merit is the defendant's claim that
the (i)(7) felony murder aggravating circumstance may not be applied
to impose the death penalty upon a defendant who did not personally
kill the victim. See Tenn.Code Ann. § 39-13-204(i)(7). This
aggravating circumstance may be applied upon proof that “the murder
was knowingly committed, solicited, directed, or aided by the
defendant, while the defendant had a substantial role in committing or
attempting to commit ․ kidnapping.” See id. at (5), (7). The proof
in this record clearly is sufficient to support the jury's finding
that Green's murder was knowingly directed by the defendant while the
defendant had a substantial role in committing Green's kidnapping.
This issue is without merit.
Furthermore, the evidence supports the jury's
determination that the aggravating circumstances outweighed the
mitigating factors beyond a reasonable doubt. Additionally, there is
no indication that the sentence of death was imposed in an arbitrary
We must next conduct a comparative proportionality
review. Addressing this issue, the Court of Criminal Appeals held
the death sentence disproportionate.17
We disagree. Statutory comparative proportionality review is an
additional safeguard against arbitrary and capricious death sentences.
State v. Bland, 958 S.W.2d 651, 663 (Tenn.1997); Tenn.Code Ann.
§ 39-13-206(c)(1)(D). Our function in performing this review is not
to search for proof that a defendant's death sentence is perfectly
symmetrical with the penalty imposed in all other first degree murder
cases, but to identify and invalidate the aberrant death sentence. State
v. Godsey, 60 S.W.3d 759, 782 (Tenn.2001); Bland, 958 S.W.2d at 665.
In conducting comparative review, we do not act as a “super jury,”
nor do we second-guess the jury's decision. Bland, 958 S.W.2d at 668.
A death sentence is aberrant, and thus disproportionate, “[i]f the
case, taken as a whole, is plainly lacking in circumstances consistent
with those in similar cases in which the death penalty has been
imposed.” Bland, 958 S.W.2d at 665.
“Selecting similar cases ․ for comparison is not an
exact science.” Id. at 667. “Not included in the pool of similar
cases are first degree murder cases in which the State did not seek
the death penalty or first degree murder cases in which a sentence
other than death was agreed upon as part of a plea bargaining
agreement.” Godsey, 60 S.W.3d at 784. Comparative proportionality
review is not a search for disproportionate or aberrant life cases. Id.
As the United States Supreme Court explained:
Since the proportionality requirement on review is
intended to prevent caprice in the decision to inflict the [death]
penalty, the isolated decision of a jury to afford mercy does not
render unconstitutional death sentences imposed on defendants who were
sentenced under a system that does not create a substantial risk of
arbitrariness or caprice.
Gregg v. Georgia, 428 U.S. 153, 203, 96 S.Ct. 2909,
49 L.Ed.2d 859 (1976); Godsey, 60 S.W.3d at 784-85.
After identifying similar cases, this Court
carefully examines the facts of the crimes, the characteristics of the
defendants, and the aggravating and mitigating factors in the case on
appeal and the similar cases. Godsey, 60 S.W.3d at 782; Bland, 958
S.W.2d at 664. While the aggravating and mitigating circumstances
are important for comparison purposes, this Court considers many
variables including: (1) the means of death; (2) the manner of death
(e.g., violent, torturous, etc.); (3) the motivation for the killing;
(4) the place of death; (5) the similarity of the victims'
circumstances including age, physical and mental conditions, and the
victims' treatment during the killing; (6) the absence or presence of
premeditation; (7) the absence or presence of provocation; (8) the
absence or presence of justification; and (9) the injury to and
effects on non-decedent victims. Bland, 958 S.W.2d at 667 (citing
cases). In addition, several criteria are relevant to a comparison
of the characteristics of defendants, including: (1) the defendant's
prior criminal record or prior criminal activity; (2) the defendant's
age, race, and gender; (3) the defendant's mental, emotional or
physical condition; (4) the defendant's involvement or role in the
murder; (5) the defendant's cooperation with authorities; (6) the
defendant's remorse; (7) the defendant's knowledge of helplessness of
victim(s); and (8) the defendant's capacity for rehabilitation. Id.
Mindful of these factors, we have compared the
defendant's sentence to the sentence imposed in similar cases in the
relevant pool and have determined that the death sentence imposed upon
the defendant is not disproportionate. As the State points out, the
death penalty has been imposed and upheld in at least five other
execution-style first degree murder cases. See State v. Reid, 91 S.W.3d
247, 287 (Tenn.2002); State v. Austin, 87 S.W.3d 447, 465 (Tenn.2002);
State v. Howell, 868 S.W.2d 238, 262 (Tenn.1993); State v. Van Tran,
864 S.W.2d 465, 482 (Tenn.1993); State v. Harris, 839 S.W.2d 54, 77 (Tenn.1992).
Furthermore, the death penalty has been imposed in several cases in
which the jury found the same two aggravating circumstances as those
relied upon by the jury to support imposition of the death penalty in
the defendant's case. See State v. Morris, 24 S.W.3d 788, 791 (Tenn.2000);
State v. Mann, 959 S.W.2d 503, 504 (Tenn.1997); State v. Hall, 958
S.W.2d 679, 683 (Tenn.1997); State v. Barber, 753 S.W.2d 659 (Tenn.1988);
State v. Zagorski, 701 S.W.2d 808, 811 (Tenn.1985). Perhaps most
significantly, however, the death penalty has been imposed and upheld
in several other cases in which the defendant, like the defendant in
this case, was not present at the scene of the murder. Austin, 87 S.W.3d
at 465-66; State v. Stevens, 78 S.W.3d 817, 823 (Tenn.2002); State
v. Hutchison, 898 S.W.2d 161, 164 (Tenn.1994); State v. Porterfield
and Owens, 746 S.W.2d 441, 444 (Tenn.1988).
The Court of Criminal Appeals distinguished these
cases, noting that this case does not involve a “murder for hire.”
While this clearly is a distinction, it is not a difference that
renders these cases wholly irrelevant for comparative proportionality
review. Motive is merely one factor to be considered. Proof that
the defendant had the authority to direct this murder without
providing remuneration to the perpetrators does not mitigate his
The intermediate appellate court also distinguished
this case on the basis that there was no evidence the murder was
carefully planned. We disagree. The record establishes that the
victim was held at the apartment several hours, and during this time,
the defendant and other gang leaders met several times in the kitchen
and also spoke several times on the telephone to discuss the victim's
fate. At the defendant's direction, Phillips and Wilkins hand-selected
gang members to take the victim from the apartment. This
circumstantial evidence indicates that the victim's murder was planned
by several gang members, including the defendant.
Another factor influencing the Court of Criminal
Appeals's decision to find the sentence disproportionate was the lack
of evidence indicating the defendant instructed other gang members how
to commit the murder. Again, we disagree that this lack of evidence
is unique. For example, there was no evidence in Owens to suggest
that the defendant instructed Porterfield to bludgeon her husband to
death with a tire iron. The lack of definitive evidence 18
suggesting the defendant told other gang members how to commit the
murder does not render the death sentence comparatively
disproportionate, although this is a fair point to argue as mitigation
in a capital sentencing proceeding.
Although differences exist between this case and
the similar cases listed above, we have previously indicated that
comparative proportionality review “is not a search for proof that a
defendant's death sentence is perfectly symmetrical.” Bland, 958 S.W.2d
at 665. Indeed, “no two defendants and no two crimes are precisely
alike.” State v. Bane, 57 S.W.3d 411, 429 (Tenn.2001). We are
unable to conclude that this case is “plainly lacking in circumstances
consistent with those in similar cases in which the death penalty has
The Court of Criminal Appeals also based its
finding of disproportionality on its conclusion that no rational basis
justified imposing a death sentence upon the defendant and a sentence
of life imprisonment without the possibility of parole upon Phillips.
In so holding, the lower court relied upon this Court's decision in
State v. Cauthern, 967 S.W.2d 726, 741 (Tenn.1998), for the
proposition that disparate sentences between co-defendants render the
capital sentence disproportionate unless there is a rational basis for
the disparate sentences. As the State points out, the disparate
sentences at issue in Cauthern were initially imposed by the same jury.
The intermediate appellate court also failed to note that this Court
has emphasized and reiterated that a death sentence is not
disproportionate “merely because the circumstances of the offense are
similar to those of another offense for which a defendant has received
a life sentence.” Austin, 87 S.W.3d at 465; State v. Hall, 976 S.W.2d
121, 135 (Tenn.1998). Furthermore, this Court has often stressed
that a jury's isolated decision to afford mercy does not render a
death sentence disproportionate, unless the death sentence is aberrant,
i.e., the case, taken as a whole, is plainly lacking in circumstances
consistent with other cases in which the death penalty has been
imposed. As previously explained, the death sentence in this case is
The defendant's and Phillips's cases are extremely
similar, as the State concedes. Nonetheless, differences significant
to comparative proportionality review exist. Most importantly,
Phillips's jury found only one aggravating circumstance-that the
murder was committed in the course of a kidnapping. Tenn.Code Ann.
§ 39-13-206(i)(7) (1997). Furthermore, although Phillips was the
Hurt Village Gangster Disciples coordinator, the defendant ranked
third in the citywide hierarchy of the Gangster Disciples and bears
more of the responsibility for Green's murder. For all these reasons,
we conclude that the defendant's sentence of death is not
disproportionate to the sentence imposed in similar cases, considering
both the circumstances of the crime and the defendant.
We have considered the entire record in this case
and find that the sentence of death was not imposed in any arbitrary
fashion, that the sentence of death is not excessive or
disproportionate, and that the evidence supports the jury's finding of
the statutory aggravating circumstance and the jury's finding that
these aggravating circumstances outweighed mitigating factors beyond a
reasonable doubt. We have also considered the defendant's remaining
assignments of error and conclude that none warrant relief. With
respect to issues not specifically addressed herein, we affirm the
decision of the Court of Criminal Appeals, authored by Judge Joe G.
Riley, and joined by Judge David Hayes and Judge John Everett Williams.
The defendant's convictions and sentences are affirmed. The
sentence of death shall be carried out as provided by law on the 11th
day of May 2005 unless otherwise ordered by this Court or other proper
authority. It appearing that the defendant is indigent, costs of
this appeal are taxed to the State of Tennessee.
(Excerpts of the Decision of the Court of Criminal
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
May 6, 2003 Session
STATE OF TENNESSEE v. GREGORY ROBINSON
Direct Appeal from the Criminal Court for Shelby
County, No. 97-13179-80; James C. Beasley, Jr., Judge.No.
W2001-01299-CCA-R3-DD-Filed August 13, 2003
Joe G. Riley, J., delivered the opinion of the
court, in which David G. Hayes and John Everett Williams, JJ., joined.
[Deleted: STATE'S PROOF-GUILT PHASE]
[Deleted: DEFENSE PROOF-GUILT PHASE]
[Deleted: JURY'S VERDICT-GUILT PHASE]
[Deleted: STATE'S PROOF-PENALTY PHASE]
[Deleted: DEFENSE PROOF-PENALTY PHASE]
[Deleted: JURY'S VERDICT-PENALTY PHASE]
ANALYSIS OF ISSUES PRESENTED-GUILT PHASE
I. DENIAL OF INDIVIDUAL AND SEQUESTERED VOIR
DIRE OF THE VENIRE
The defendant claims that the trial court erred in
denying his motion for individual, sequestered voir dire of the jury
panel. The prevailing voir dire practice is to examine jurors
collectively. State v. Austin, 87 S.W.3d 447, app. at 471 (Tenn.2002),
cert. denied, --- U.S. ---- (2003). There is no requirement in
capital cases that death qualification of a capital jury be conducted
by individual, sequestered voir dire. Id. (citing State v. Stephenson,
878 S.W.2d 530, 540 (Tenn.1994)). Moreover, as a general rule, the
decision to allow individual voir dire of prospective jurors is within
the discretion of the trial court. Stephenson, 878 S.W.2d at 540.
The defendant has failed to show the trial court abused its discretion
in denying his motion for individual, sequestered voir dire.
II. REJECTION OF BATSON CHALLENGE
The defendant contends that the trial court's
conclusory rejection of a timely Batson challenge to the state's
striking of five African-American members of the venire, without any
contemporaneous findings and without requiring the state to proffer an
explanation, warrants a remand for a hearing to determine whether a
new trial should be granted.
During voir dire, seven jurors were excused by the
state as a result of peremptory challenges. After their dismissal,
the defense raised an objection and noted that five of these jurors
were African-American. The trial court found there was no basis to
declare that any of the challenges were based upon race.
A state's use of peremptory challenges to
intentionally exclude jurors of the defendant's race violates the
defendant's right to equal protection. Batson v. Kentucky, 476 U.S.
79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The Court upheld this
principle in Powers v. Ohio, but eliminated the requirement that the
defendant and the potential juror share the same race. 499 U.S. 400,
415, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). A defendant seeking to
raise a Batson claim must first make a prima facie showing of
purposeful discrimination against a prospective juror. Batson, 476
U.S. at 93-94, 106 S.Ct. 1712. The defendant must establish “that a
consideration of all the relevant circumstances raises an inference of
purposeful discrimination.” Woodson v. Porter Brown Limestone Co.,
916 S.W.2d 896, 903 (Tenn.1996). If a prima facie showing of
purposeful discrimination is established, the burden then shifts to
the state to establish a neutral basis for the challenge. Batson,
476 U.S. at 97, 106 S.Ct. 1712.
The trial court must give specific reasons for each
of its factual findings in ruling on peremptory challenges. Woodson,
916 S.W.2d at 906. This should include the reason the objecting
party has or has not established a prima facie showing of purposeful
discrimination. The trial court's findings are to be accorded great
weight and will not be set aside unless they are clearly erroneous. Id.;
see also Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154
L.Ed.2d 931 (2003) (noting deference to the trial court is necessary
relating to credibility).
The trial court found that the defendant had not
made a prima facie showing of discrimination. In determining whether
the defendant has established a prima facie case, the trial court may
consider whether similarly situated members of another race were
seated on the jury. State v. Stout, 46 S.W.3d 689, 711 (Tenn.) (citations
omitted), cert. denied, 534 U.S. 998, 122 S.Ct. 471, 151 L.Ed.2d 386
(2001). The trial court may also consider the demeanor of the
attorney who exercised the challenge, which is often the best evidence
of the credibility of proffered explanations. Id. at 711-12 (citations
In the instant case, the record reveals that the
final jury consisted of six African-Americans and six Caucasians. At
the motion for new trial, the court commented that the only reason
advanced by the defense to establish a prima facie case was the number
of strikes used against African-Americans. While the court conceded
that a prima facie case may be established by numbers alone, the trial
court further explained that was not done in the instant case.
Indeed, the trial court stated:
․ if all you're standing up and saying is ․ numbers
alone, that's my prima facie case, I still-and I know what the case
law says-but I'm still of the opinion that at the time of my
observations, my being present, listening to the jurors testify,
observing the demeanor of the jurors, watching and taking notes of
what was going on, I was not convinced at that time that there was a
systematic exclusion of African-Americans from this jury, and that was
the basis for it; not strictly on numbers, but it was based on the
overall circumstances of what was occurring in the courtroom.
We cannot conclude that the trial court's findings
were clearly erroneous. See State v. Keen, 31 S.W.3d 196, app. at
227-29 (Tenn.2000) (holding there was no showing of purposeful
discrimination where four African-American jurors were peremptorily
challenged by the state), cert. denied, 532 U.S. 907, 121 S.Ct. 1233,
149 L.Ed.2d 142 (2001). In light of the trial court's findings, we
conclude this issue is without merit.
III. SUFFICIENCY OF THE EVIDENCE
The defendant contends the evidence was
insufficient to support his convictions. We conclude the evidence
was sufficient to support both convictions.
A. Legal Standard
In Tennessee, great weight is given to the result
reached by the jury in a criminal trial. A jury verdict accredits
the state's witnesses and resolves all conflicts in favor of the state.
State v. Bigbee, 885 S.W.2d 797, 803 (Tenn.1994). On appeal, the
state is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which may be drawn therefrom. Id.; State
v. Cabbage, 571 S.W.2d 832, 835 (Tenn.1978). Moreover, a guilty
verdict removes the presumption of innocence which the appellant
enjoyed at trial and raises a presumption of guilt on appeal. State
v. Grace, 493 S.W.2d 474, 476 (Tenn.1973). The appellant has the
burden of overcoming this presumption of guilt. Id.
Where sufficiency of the evidence is challenged,
the relevant question for an appellate court is whether, after viewing
the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the
crime or crimes beyond a reasonable doubt. Tenn. R.App. P. 13(e); Jackson
v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979);
State v. Abrams, 935 S.W.2d 399, 401 (Tenn.1996). The weight and
credibility of the witnesses' testimony are matters entrusted
exclusively to the jury as the triers of fact. State v. Sheffield,
676 S.W.2d 542, 547 (Tenn.1984); State v. Brewer, 932 S.W.2d 1, 19 (Tenn.Crim.App.1996).
The state's theory at trial was that the defendant
was responsible for the actions of his fellow Gangster Disciples based
upon the theory of criminal responsibility. It is undisputed that
the defendant was not present at the murder scene. As applicable to
the case at bar, a person is criminally responsible for the conduct of
another if, “[a]cting with intent to promote or assist the commission
of the offense, or to benefit in the proceeds or results of the
offense, the person solicits, directs, aids, or attempts to aid
another person to commit the offense.” Tenn.Code Ann. § 39-11-402(2)
B. Analysis of Overall Sufficiency of the
In this case, it is without dispute that the victim
was unlawfully removed or confined so as to substantially interfere
with his liberty; it was accomplished with a deadly weapon; and the
victim suffered serious bodily injury. Thus, an especially
aggravated kidnapping was committed. See id. §§ 39-13-302(a),
-305(a)(1), (4). It is further without dispute that the victim was
intentionally killed with premeditation. Thus, a premeditated first
degree murder was committed. See id. § 39-13-202(a)(1). The only
issue relating to sufficiency of the evidence is whether the defendant
was criminally responsible for the conduct of those who actually
committed or consummated these offenses. See id. § 39-11-402(2).
We begin our detailed analysis of the evidence in
this case by reiterating that our standard of examining the evidence
in a light most favorable to the state includes “all reasonable and
legitimate inferences that may be drawn therefrom.” State v. Smith,
24 S.W.3d 274, 279 (Tenn.2000) (citing Cabbage, 571 S.W.2d at 835).
Thus, we recognize that jurors may evaluate the evidence in light of
their common experiences in life and their common sense. See Liakas
v. State, 199 Tenn. 298, 286 S.W.2d 856, 858-59 (1956).
Viewing the evidence in a light most favorable to
the state, the evidence established the defendant was a high ranking
Gangster Disciple. He was portrayed as chief of security for the
entire city of Memphis. Upon his arrival at Black's apartment, he
ordered fellow Gangster Disciples to “snag” the victim for “GD arrest.”
Several Gangster Disciples, in parade-like fashion, brought the
victim before the defendant. The defendant initiated a beating of
the victim by hitting him numerous times; others subsequently joined
in the beating. The defendant demanded that the victim tell him the
location of the Vice Lords. Reluctantly, the victim revealed a
location. The defendant then ordered some Gangster Disciples to
scout the location and return with their findings, which they did.
The evidence further indicated that the defendant was angry upon
learning that the Vice Lords were not at the location described by the
victim. The defendant, Prentiss Phillips, and Kevin Wilkins were
each part of a telephone conversation with Kaos, who was superior in
rank to the defendant. Immediately after this conversation, the
defendant directed Phillips and Wilkins to each pick three men and
take the victim “fishing.” He further stated, “Y'all know what to
do.” Thus, it was reasonable for the jury to assume the defendant,
Phillips, and Wilkins were all aware of Kaos's directive, and the
defendant ordered that Phillips and Wilkins be responsible for
carrying out that directive. Although Shipp thought the order to
take the victim “fishing” only meant physical abuse, Shipp was not a
part of the conversation with Kaos.
The jury could further infer that Wilkins, who had
been a part of the phone conversation and knew the victim was to be
killed, was ordered by the defendant to carry out the directive. One
of the first things said to the victim at the park was from Wilkins,
who was the ranking Gangster Disciple at the park and who asked the
victim if he had any last words. The murder was then accomplished
under Wilkins' direction.
As it relates to the charge of premeditated first
degree murder, the state was required to establish beyond a reasonable
doubt that the defendant in giving these orders had the specific
intent that the victim be murdered. See Tenn.Code Ann.
§ 39-11-402(2). Viewing the evidence in a light most favorable to
the state, we conclude a rational trier of fact could find the
defendant and Wilkins got the directive from Kaos that the victim was
to be killed; the defendant ordered Wilkins (and Phillips) to carry
out the directive; and Wilkins, a subordinate of the defendant,
personally supervised the murder. The jury could further rationally
conclude from the evidence that the Gangster Disciples was an
organization structured according to rank and that orders given by
those of superior rank should be obeyed in order to avoid severe
sanctions. Thus, the jury could rationally conclude Wilkins carried
out the order of the defendant.
What started out as a rift between a Vice Lord and
a Gangster Disciple culminated in the gathering of a throng of
Gangster Disciples, heavily armed and bent on retaliation. The
retaliation effort had as one of its leaders the defendant. The
lower-ranking Gangster Disciples followed not only the defendant's
orders, but his example of violence.
Accordingly, the evidence is sufficient to support
the conviction for criminal responsibility for premeditated first
As to the defendant's conviction for especially
aggravated kidnapping, we conclude the evidence is sufficient.
Viewing the evidence in a light most favorable to the state, the
defendant ordered the victim to be brought to the apartment where
numerous Gangster Disciples had weapons. The defendant severely beat
the victim with his fist and a broom stick; others beat him as well.
The defendant ordered that Green be taken upstairs where numerous
gang members threatened him with weapons pointed at his head. The
defendant ordered Green be taken “fishing” and told his fellow
Gangster Disciples, “Y'all know what to do.” Wilkins followed those
orders, took the victim to Bellevue Park, and supervised the murder.
This evidence is more than sufficient to support the defendant's
conviction for especially aggravated kidnapping.
C. Accomplice Corroboration
The defendant argues that the evidence is
insufficient because it consisted of uncorroborated accomplice
testimony. Additionally, he asserts that the trial court failed to
instruct the jury that (a) accomplice testimony cannot be corroborated
by evidence from another accomplice; (b) only a non-accomplice can
corroborate the testimony of an accomplice; (c) Jarvis Shipp was an
accomplice as a matter of law; and (d) the jury must decide whether
Christopher James and Shaun Washington were accomplices.
The state contends that the defendant has waived
these issues for failing to submit proposed instructions on accomplice
testimony. See State v. Anderson, 985 S.W.2d 9, 17 (Tenn.Crim.App.1997)
(holding the failure to request accomplice instruction waives issue);
State v. Foster, 755 S.W.2d 846, 848-49 (Tenn.Crim.App.1988) (noting
the defendant's responsibility to request instruction; failure
In instructing the jury regarding accomplice
testimony, the trial court utilized the pattern jury instruction.
See T.P.I.-CRIM. 42.09 (4th ed.1995). The trial court further
instructed the jury that they were to determine whether the witness,
Jarvis Shipp, was an accomplice to the alleged crime. The pattern
charge does not contain a specific provision that accomplice testimony
cannot be corroborated by other accomplice testimony.
The record reflects the trial court advised the
parties that it would be instructing on accomplice testimony. There
were no special requests. After instructing the jury and prior to
jury deliberations, there were no objections and no special requests.
Tennessee Rule of Criminal Procedure 30(b) provides that the parties
are to be given an opportunity to object to the content of jury
instructions or the failure to give requested instructions; however,
the failure to make objections in these instances does not prohibit
them from being used as grounds in the motion for new trial. See
Tenn. R.Crim. P. 30(b); State v. Lynn, 924 S.W.2d 892, 898-99 (Tenn.1996).
However, alleged omissions in the jury charge must be called to the
trial judge's attention or be regarded as waived. State v. Haynes,
720 S.W.2d 76, 84-85 (Tenn.Crim.App.1986). In contrast to an
erroneous instruction or the failure to give a requested instruction,
defense counsel cannot sit on an objection to an omitted charge and
allege it as a ground in the motion for new trial. Id.; State v.
Stigall, No. 02C01-9610-CR-00371, 1998 WL 3340, at *1, 1998
Tenn.Crim.App. LEXIS 27, at *4 (Tenn.Crim.App. Jan. 7, 1998, at
The jury instruction given by the trial court was
accurate. The defendant has waived any alleged error for the failure
to specifically charge the jury that accomplice testimony cannot be
corroborated by the testimony of other accomplices. Further, we
discern no plain error. See Tenn. R.Crim. P. 52(b).
2. Standard of Review
An accomplice is a person who “knowingly,
voluntarily and with a common intent unites with the principal
offender in the commission of a crime.” State v. Allen, 976 S.W.2d
661, 666 (Tenn.Crim.App.1997). Uncorroborated testimony of an
accomplice-witness will not support a conviction. State v. Bane, 57
S.W.3d 411, 419 (Tenn.2001), cert. denied, 534 U.S. 1115, 122 S.Ct.
925, 151 L.Ed.2d 888 (2002). Corroborating evidence is evidence
“entirely independent of the accomplice's testimony, which, taken by
itself, leads to the inference not only that a crime has been
committed but also that the defendant was implicated in it.” Bigbee,
885 S.W.2d at 803 (citations omitted). The independent corroborative
testimony must include some fact or circumstance which affects the
defendant's identity. State v. Boxley, 76 S.W.3d 381, 387 (Tenn.Crim.App.2001).
In Bethany v. State, this court stated:
The question of who determines whether a person is
an accomplice depends upon the facts of each case. When the facts of
a witness's participation in a crime are clear and undisputed, it is a
question of law for the court to decide. When such facts are in
dispute or susceptible of an inference that a witness may or may not
be an accomplice, it then becomes a question of fact for the jury to
565 S.W.2d 900, 903 (Tenn.Crim.App.1978); see
State v. Lawson, 794 S.W.2d 363, 369 (Tenn.Crim.App.1990).
3. Christopher James
The evidence established that Christopher James was
a relatively new member of the Gangster Disciples and had no “rank”
within the group. The evidence further established that, at the “aid
and assist” meeting held at the apartment, James was punished for
failing to take part in the earlier fight that initiated the chain of
events culminating in the murder. Although he was present when
Vernon Green was brought into the apartment, there is no evidence that
James did anything other than sustain a beating for his failure to
assist fellow gang members earlier that day. The proof fails to
establish that James was an accomplice to the murder and kidnapping of
Thus, the defendant's argument that the trial court should have
submitted an instruction to the jury as to whether Christopher James
was an accomplice is without merit.
4. Shaun Washington
The defendant contends Shaun Washington's
identification should be considered accomplice testimony. Washington
did not testify as a witness in this matter. Sergeant William Ashton
testified that Christopher James identified the defendant in a photo
line-up as the person whom James referred to as “Shaun.” Defense
counsel asked Sergeant Ashton on cross-examination if anyone else
identified the defendant in the photo line-up. Sergeant Ashton, in
response to this question, stated that Washington had identified the
defendant as being present at the apartment on the night of the murder.
There was no request that Washington be included in the accomplice
instruction. This issue is waived.
[Deleted: 5. Jarvis Shipp]
D. Identification Evidence
Within his challenge to the sufficiency of the
evidence, the defendant challenges the following identifications: (1)
the identification made by Christopher James using a photograph array;
(2) the identification made by Shaun Washington; (3) the testimony
of Jarvis Shipp; and (4) the testimony of Nichole Black. With the
exception of the challenge to Shipp's testimony, these issues are
discussed in issue six, infra. Regarding Shipp, the defendant
contends that his testimony is uncorroborated. However, we have
concluded that the evidence sufficiently corroborated Shipp's
testimony. Moreover, any conflicts between Shipp's testimony and his
prior statement to police were thoroughly addressed on cross-examination.
E. Testimony of Christopher James
The defendant alleges the testimony of Christopher
James as to what he thought was going to happen to the victim when he
left the apartment was “pure, baseless speculation” and should be
excluded from consideration in this appeal. During direct
examination of James, the following colloquy occurred:
Q: What did you hear him say?
A: “Y'all know what to do.”
Q: Now, was this after they had beaten you up?
A: Yes, ma'am.
Q: What did you think-what did you feel at this
time was going on?
A: I really couldn't say.
Q: What did you think was going to happen to Vernon?
A: They was going to kill him.
No objection was made by the defendant. By
failing to make a contemporaneous objection to testimony, a defendant
waives appellate consideration of the issue. State v. Alder, 71 S.W.3d
299, 302 (Tenn.Crim.App.2001); State v. Thompson, 36 S.W.3d 102, 108
(Tenn.Crim.App.2000). Accordingly, absent an objection, the
statement was properly admitted as proof. State v. Stevens, 78 S.W.3d
817, app. at 849 (Tenn.2002), cert. denied,537 U.S. 1115, 123 S.Ct.
873, 154 L.Ed.2d 790 (2003). We further discern no plain error.
See Tenn. R.Crim. P. 52(b).
[Deleted: F. Improperly Admitted Evidence]
G. Anthony Issue
The defendant contends his convictions for both
premeditated first degree murder and especially aggravated kidnapping
violate due process because the kidnapping was incidental to the
murder. We disagree.
A separate conviction for kidnapping may violate
due process when the kidnapping is “essentially incidental” to the
accompanying felony conviction and is not “significant enough, in and
of itself, to warrant independent prosecution.” State v. Anthony, 817
S.W.2d 299, 306 (Tenn.1991). In examining this issue, we must first
determine whether the movement or confinement employed was beyond that
which was necessary to commit the accompanying felony. State v. Dixon,
957 S.W.2d 532, 535 (Tenn.1997). If so, we must next determine
whether the additional movement or confinement: “(1) prevented the
victim from summoning help; (2) lessened the defendant's risk of
detection; or (3) created a significant danger or increased the
victim's risk of harm.” Id.
We conclude the defendant's dual convictions for
especially aggravated kidnapping and premeditated first degree murder
do not violate due process. The movement and confinement of Green
was beyond that necessary to commit the murder. Furthermore, the
additional confinement and movement prevented Green from summoning
help and lessened the risk of detection. Therefore, the especially
aggravated kidnapping was not “essentially incidental” to the
[Deleted: IV. PROSECUTORIAL INCONSISTENCY]
V. PROSECUTORIAL MISCONDUCT AND WITNESS JARVIS
The defendant complains that prior to trial, Shipp
attributed various acts to Prentiss Phillips, not to the defendant,
and failed to identify the defendant as a co-perpetrator in these
crimes. The defendant specifically alleges violations of Brady, 373
U.S. at 87,83 S.Ct. 1194 and Giglio v. United States, 405 U.S. 150, 92
S.Ct. 763, 31 L.Ed.2d 104 (1972). The defendant asserts that the
prosecution withheld information of:
(1) an informal “wink and a nod” ․ in exchange for
Shipp's testimony, by which the state would not seek the death penalty
against him if he went to trial; and
(2) the transcript of a hearing held on Shipp's
motion to suppress his own statement given to police (which had been
denied), in which Shipp testified to a motive why he had confessed to
the crime [which] was dramatically at odds with the claimed motives he
(and the State's prosecutors) told the jury were his “courageous”
reasons to do so (remorse for the victim and a desire to make amends
to the victim's family).
The defendant claims he requested exculpatory
information during pretrial discovery; the state failed to produce
the information; and the information would have impeached Shipp's
The duty to disclose exculpatory evidence extends
to all “favorable information” irrespective of whether the evidence is
admissible at trial. Johnson v. State, 38 S.W.3d 52, 56 (Tenn.2001).
The prosecution's duty to disclose Brady material also applies to
evidence affecting the credibility of a government witness, including
evidence of any agreement or promise of leniency given to the witness
in exchange for favorable testimony against an accused. Giglio, 405
U.S. at 154, 92 S.Ct. 763; Johnson, 38 S.W.3d at 56. While Brady
does not require the state to investigate for the defendant, it does
burden the prosecution with the responsibility of disclosing
statements of witnesses favorable to the defense. State v. Reynolds,
671 S.W.2d 854, 856 (Tenn.Crim.App.1984). However, this duty does
not extend to information that the defense already possesses, or is
able to obtain, or to information not in the possession or control of
the prosecution or another governmental agency. State v. Marshall,
845 S.W.2d 228, 233 (Tenn.Crim.App.1992).
In order to prove a due process violation under
Brady, the defendant must show the state suppressed “material”
information. Brady, 373 U.S. at 87, 83 S.Ct. 1194; State v. Edgin,
902 S.W.2d 387, 389 (Tenn.1995). Undisclosed information is material
“only if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been
different.” Bagley, 473 U.S. at 682, 105 S.Ct. 3375 (citations
omitted); Johnson, 38 S.W.3d at 58. Furthermore, a reasonable
probability is a “probability sufficient to undermine confidence in
the outcome.” Id. To establish materiality, an accused is not required
to demonstrate “by a preponderance that disclosure of the suppressed
evidence would have resulted ultimately in the defendant's acquittal.”
Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490
(1995). Therefore, “[t]he question is not whether the defendant
would more likely than not have received a different verdict with the
evidence, but whether in its absence he received a fair trial,
understood as a trial resulting in a verdict worthy of confidence.” Id.
A. “Wink and a Nod” Agreement
During the defendant's trial, Jarvis Shipp
testified on direct examination that the state had not made him any
promises in exchange for his testimony and that he was testifying
freely and voluntarily. On cross-examination, the following colloquy
occurred between defense counsel and Shipp:
Q: ․ Let me ask you this. Do you expect some
type-although there's not a formal deal, do you expect some type of
consideration for your testimony here today?
A: Yes, because the simple fact I'm facing the
Q: Okay. So you do expect to gain something in your
case by testifying here today, correct?
A: If it's in the progress[sic].
Q: Okay. So let me ask you this. You feel like by
telling the story that you've told today that that could help you,
Q: And you feel that if you help them convict Mr.
Robinson that they might not seek that death penalty against you,
A: No, because they still-I still could go to trial
and they still get the death penalty.
Q: But you're hoping that they consider that,
Q: And you're hoping that that consideration will
result in you [sic] not looking at a death-penalty situation, correct?
The defendant asserts that, in two subsequent
trials, i.e., State v. Antonio Jackson and State v. Prentiss Phillips,
Jarvis Shipp acknowledged he had an agreement with the state. During
co-defendant Antonio Jackson's trial, Shipp initially denied that he
had an agreement with the state. Later, however, he stated that his
attorney had informed him that if he pled guilty, he would receive a
sentence of life with the possibility of parole or less. Shipp
further stated that, by testifying at Jackson's trial, he was hoping
for a better deal from the state. Later in co-defendant Prentiss
Phillips' trial, Shipp admitted that he intended to enter a guilty
plea as to his involvement in the events. He further stated, “I
expect my life to be saved.”
At the defendant's hearing on his motion for new
trial, Shipp's attorney, Gerald Skahan, was called to testify
regarding any agreement between his client and the state. The
following colloquy occurred:
Q: Do you recall telling me when I asked what sort
of agreement, if you had an agreement with the prosecutors, do you
recall telling me basically it was a wink and a nod? ․
A: I did use ․ those words but in a context that-like
I testified to earlier, ․ I was fortunate enough to have somebody that
was able to give testimony․
What my personal opinion is about the way it's
done, I think everybody knows what's happening. I think the defense
lawyers know. I think the prosecutors know. And I think the
defendants know from being in jail. But that's the way it's done
here․ And as for Giglio and stuff like that, I think-that's where I
use it in the context of a wink and a nod; ․ I think everybody knows
what's going to happen, but there is never an offer conveyed. There
is never something saying that we will specifically do this. It's
just at the end of every one of these trials, it works out. And
that's what I mean by a wink and a nod.
In its order denying the defendant's motion for new
trial, the trial court found that at the time of the defendant's trial,
Shipp did not have a “deal” with the state, although Shipp may have
hoped his testimony would lead to a “deal.” It further found the
state did not withhold evidence of a “deal” from the defendant, and
the defendant thoroughly questioned Shipp at trial regarding a
possible “deal.” The trial court concluded the state did not violate
Brady or Giglio. We agree with the trial court.
While Shipp may have hoped that his testimony would
result in favorable treatment, the record does not establish that an
agreement existed between the state and Shipp at the time of the
defendant's trial. See Hartman v. State, 896 S.W.2d 94, 101-02 (Tenn.1995).
Furthermore, the fact that Shipp later pled guilty to a lesser
charge of facilitation of the offenses does not establish the
existence of a prior agreement. See State v. Williams, 690 S.W.2d
517, 525 (Tenn.1985). Moreover, Shipp testified in this case that he
indeed expected to receive favorable treatment in exchange for his
testimony. In the absence of any proof that an agreement indeed
existed at the time of the Shipp's testimony at the defendant's trial,
this issue is without merit.
B. Transcript of Motion to Suppress
Next, the defendant asserts that the state, in
violation of Brady, failed to provide a copy of the transcript from
Shipp's hearing on the motion to suppress his statement to police.
In that transcript, Shipp averred that his original statement to
police was given out of fear that he would be placed in a pod with
members of the Traveling Vice Lords. The defendant claims that
Shipp's motive of fear in giving the statement was at odds with his
alleged noble motive of testifying at trial, which was “to tell the
truth on my behalf and on behalf of the victim's family.”
In its order denying the motion for new trial, the
trial court found this information would not have affected the verdict.
We likewise see little benefit that would have been derived from
pointing out to the jury that Shipp's motive for giving the pretrial
statement was fear, whereas his alleged motive for testifying at trial
was more noble. In fact, it was the defendant's position at trial
that the contents of Shipp's pretrial statement, which did not mention
any involvement by the defendant, was accurate.
Regardless, we conclude this transcript does not
meet the Bagley test for materiality. The trial court noted Shipp
testified he hoped to gain some favor with the state through his
testimony. The trial court found that defense counsel had questioned
Shipp extensively regarding inconsistencies between his statement to
police and his testimony at trial. Accordingly, we conclude there
was no reasonable probability that, had this evidence been disclosed,
the result of the proceeding would have been different. See Bagley,
473 U.S. at 682, 105 S.Ct. 3375. The failure to reveal this
transcript did not undermine the confidence in the outcome of the
The defendant also contends that by failing to
provide the transcript to Shipp's suppression hearing at the
conclusion of Shipp's testimony, the state violated Tennessee Rule of
Criminal Procedure 26.2 by failing to provide what is commonly
referred to as Jencks material.3
Rule 26.2(a) provides that:
After a witness other than the defendant has
testified on direct examination, the trial court, on motion of a party
who did not call the witness, shall order the attorney for the state
or the defendant and the defendant's attorney, as the case may be, to
produce, for the examination and use of the moving party, any
statement of the witness that is in their possession and that relates
to the subject matter concerning which the witness has testified.
A “statement” of a witness includes “[a] written
statement made by the witness that is signed or otherwise adopted or
approved by the witness.” Tenn. R.Crim. P. 26.2(g).
Numerous federal courts have held that prior
testimony does not qualify as Jencks material because the witness's
statements are a matter of public record. See, e.g., United States
v. Chanthadara, 230 F.3d 1237, 1254-55 (10th Cir.2000) (holding that
the prior trial testimony of an expert witness was not Jencks
material), cert. denied, 534 U.S. 992, 122 S.Ct. 457, 151 L.Ed.2d 376
(2001); United States v. Jones, 160 F.3d 473, 479 n. 5 (8th Cir.1998)
(noting that matters of public record do not fall within the scope of
the Jencks Act); United States v. Isgro, 974 F.2d 1091, 1095 (9th
Cir.1992) (stating that “trial testimony is not within the scope of
the Jencks Act”), cert. denied, 507 U.S. 985, 113 S.Ct. 1581, 123 L.Ed.2d
148 (1993); United States v. Harris, 542 F.2d 1283, 1293 (7th
Cir.1976) (same), cert. denied, 430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d
779 (1977). The Tennessee rule is similar to the federal rule. See
Fed.R.Crim.P. 26.2. Here the defendant contends he did not have
ready access to this transcript. We need not determine this issue.
For the same reasons we found the transcript did not meet the
materiality test under Bagley, we conclude the defendant was not
prejudiced by any alleged violation of Rule 26.2.
VI. IDENTIFICATION ISSUES
The defendant asserts that numerous errors
regarding a photograph array and identifications warrant a new trial.
A. Suggestive Photograph Array
The defendant first asserts that the trial court
erred in allowing a suggestive photograph array into evidence over
objection. We disagree.
1. Suppression Hearing
During the suppression hearing, the defendant
presented the testimony of Charles Poole, who stated he was also
arrested and charged with the murder of Green. Poole testified that
after he was arrested, Sergeant Ashton questioned him and showed him a
photograph array. Poole testified that when he did not identify
anyone, Sergeant Ashton pointed toward the photograph of the defendant.
Poole stated that although he did not identify anyone in the array,
he believed the officer wanted him to identify the defendant's
photograph. Upon viewing the photograph array, Poole stated the
array depicted five “dark-skinned” African-Americans and one “light
skinned” African-American. He stated the defendant, who was depicted
in photograph six, was the person with the light skin tone.
Sergeant William Ashton, the case coordinator,
testified he prepared a photograph array and showed it to witnesses.
He stated he arranged the array by using the defendant's photograph
and other photographs of those who resembled the defendant. The
officer then presented the array to various witnesses and asked them
if they could identify anyone in the array. Sergeant Ashton
testified he never suggested to witnesses whom they were to identify.
Sergeant Ashton described the defendant's skin tone
as “light” and opined that all of the men depicted in the photograph
array had light skin tones. He stated he showed the array to Shaun
Washington and Christopher James, both of whom identified the
2. Trial Court's Findings
In denying the defendant's motion to suppress the
identifications and photograph array, the trial court found that
Poole's credibility was “about as narrow as it can get.” The trial
court then stated it examined the photograph array and described the
array as six photographs of African-American males with either a
“shaved head or very, very short cropped hair” and “lighter” skin
tones. It found that the photograph array was not overly suggestive
and that photograph six, which depicted the defendant, was not unique
as compared to the other five photographs in the array. The trial
court then concluded the photograph array was not suggestive, that the
officer's actions were not suggestive, and the witnesses did not rely
upon anything suggestive in making their identifications.
3. Standard of Review
The findings of fact made by the trial court at the
hearing on a motion to suppress are binding upon this court unless the
evidence contained in the record preponderates against them. State v.
Ross, 49 S.W.3d 833, 839 (Tenn.2001). Absent a showing by the
defendant that the evidence preponderates against the judgment of the
trial court, this court must defer to the ruling of the trial court. State
v. Cribbs, 967 S.W.2d 773, 795 (Tenn.), cert. denied, 525 U.S. 932,
119 S.Ct. 343, 142 L.Ed.2d 283 (1998).
Convictions based on eyewitness identification at
trial following a pre-trial photographic identification will be set
aside only if the photographic identification was “so impermissibly
suggestive as to give rise to a very substantial likelihood of
irreparable misidentification.” Simmons v. United States, 390 U.S.
377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). However, a pre-trial
confrontation procedure may be unlawful if, under the totality of the
circumstances, the procedure is unnecessarily suggestive. Stovall v.
Denno, 388 U.S. 293, 301-02, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).
Although it may be suggestive, an identification
may satisfy due process as reliable and admissible when considering
the totality of the circumstances. See State v. Brown, 795 S.W.2d
689, 694 (Tenn.Crim.App.1990). This court must consider five factors
in determining whether the in-court identification is reliable enough
to withstand a due process attack despite the suggestiveness of the
pre-trial identification. Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct.
375, 34 L.Ed.2d 401 (1972); State v. Strickland, 885 S.W.2d 85, 88 (Tenn.Crim.App.1993).
These factors are: (1) the opportunity of the witness to view the
criminal at the time of the crime; (2) the witness's degree of
attention; (3) the accuracy of the witness's prior description of the
criminal; (4) the level of certainty demonstrated by the witness at
the confrontation; and (5) the time between the crime and the
confrontation. Strickland, 885 S.W.2d at 88 (citing Biggers, 409 U.S.
at 199, 93 S.Ct. 375).
Based upon our review of the photograph array, we
conclude that the evidence does not preponderate against the findings
of the trial court. Although the complexion of the defendant is
somewhat lighter than the complexions of other persons in the array,
it was not impermissibly suggestive. This issue is without merit.
[Deleted: B. Out-of-Court Identification by Shaun
[Deleted: C. Nichole Black's Testimony]
D. Failure to Grant a Continuance
The defendant challenges the trial court's refusal
to grant an overnight continuance to permit him to obtain a “tattoo
expert.” At the motion for new trial hearing, this claim was
expanded to include a witness regarding dental work. The defendant
asserts that the denial prevented him from obtaining testimony which
would have cast serious doubt upon the defendant's identity as the
person who gave the orders on the night of the murder.
The defendant asserts he was surprised by the
testimony of his witness, Officer Parker, who testified on cross-examination
by the state that a tattoo could possibly be altered. The defendant
sought permission to find a tattoo expert who could examine his
tattoos. The trial court denied the request, noting the testimony
was from a defense witness, the cross-examination should have been
anticipated by the defendant, and the testimony, at most, indicated a
mere possibility of an alteration. At the time the request was made,
the defendant had not identified any particular expert nor had his
tattoos been examined by someone to determine whether they exhibited
signs of alteration.
At the motion for new trial hearing, defense
counsel stated Jason Owens, a tattoo artist, “would have examined the
defendant's tattoos, and he would have testified to the effect that [defense
counsel had] represented and, also, as to his opinion as to whether
there had been any cover-up or erasure of the defendant's tattoos.”
Defense counsel stated Owens would further testify that coverups or
erasures are detectable. The defendant also presented a proffer from
the records clerk of a dentist. The proffer indicated that the
defendant had paid for gold crowns two months prior to the murder and
gave no indication that the crowns contained letters or designs of the
type attributed to “MacGreg.” As the trial court noted, there had
been testimony to the fact that gold caps are removable, and the
proffer did not address that possibility.
The decision whether to grant a motion for a
continuance is a matter of discretion for the trial court, the denial
of which will not be overturned on appeal absent a clear showing the
trial court abused its discretion to the prejudice of the defendant. State
v. Melson, 638 S.W.2d 342, 359 (Tenn.1982), cert. denied, 459 U.S.
1137, 103 S.Ct. 770, 74 L.Ed.2d 983 (1983); Baxter v. State, 503 S.W.2d
226, 230 (Tenn.Crim.App.1973). In order to establish an abuse of
discretion, the complaining party must make a clear showing of
prejudice as a result of the continuance being denied. State v. Teel,
793 S.W.2d 236, 245 (Tenn.), cert. denied, 498 U.S. 1007, 111 S.Ct.
571, 112 L.Ed.2d 577 (1990).
The offer to secure dental testimony was not a
basis for the motion for a continuance. Since an appellant cannot
change theories from the trial court to the appellate court, this
aspect of the issue is waived. Alder, 71 S.W.3d at 303; State v.
Dooley, 29 S.W.3d 542, 549 (Tenn.Crim.App.2000). As to the request
for a tattoo expert, we note, as did the trial court, that the
controverted testimony was elicited from Officer Parker, who was a
defense witness. The witness only stated that it was possible that
the defendant's tattoos could have been altered. No particular
witness was identified at the time of the request for a continuance,
nor had the defendant's tattoos been examined by a potential witness.
The trial court had no assurance that a witness could be secured by
the next day of trial. We also note that the basis of identification
by the state's witnesses did not relate to tattoos or gold teeth.
The issue of tattoos and gold teeth arose during the testimony of
defense witnesses. Under these circumstances, we are unable to
conclude the trial court abused its discretion in denying the request
for a continuance.4
[Deleted: VII. USE OF THE VICTIM'S SKULL AND
PHOTOGRAPHS DURING THE GUILT PHASE]
VIII. PROSECUTORIAL MISCONDUCT
The defendant alleges numerous instances of
misconduct by the state. The state contends that in most instances
the issue is waived due to the absence of a contemporaneous objection.
The state further contends these allegations are otherwise without
A. Witness Voucher
The defendant asserts that various prosecutorial
comments made in relation to the testimony of Christopher James and
Jarvis Shipp constituted improper vouching for their credibility and
rendered his trial unfair. During the state's closing arguments, the
prosecutor made comments regarding the honesty of both James and Shipp.
The prosecutor also made comments during the direct-examination of
Shipp and closing arguments regarding Shipp's bravery in testifying.
The state responds, in part, that the defendant has waived this issue
for failing to enter a contemporaneous objection. We agree with the
state that the defendant has waived this issue due to his failure to
proffer contemporaneous objections to the challenged remarks. See
State v. Green, 947 S.W.2d 186, 188 (Tenn.Crim.App.1997); State v.
Farmer, 927 S.W.2d 582, 591 (Tenn.Crim.App.1996); Tenn. R.App. P.
36(a). We further discern no plain error. See Tenn. R.Crim. P.
B. The State Argued Facts not in Evidence
The defendant next complains of the following
statement made by the prosecutor during closing argument: “[T]here
was a murder, because there was an execution of a person, and the
State has a duty to investigate that and do the best they can to
determine who is responsible for that.” The defendant argues this
statement transforms the prosecutor's statements regarding the
credibility of James and Shipp into “facts not in evidence.” The
defendant further complains about the following argument made
regarding Shipp: “[T]hat was a death sentence right then and there ․
[h]e's got to watch his back everyday for the rest of his life.” In
addition, he challenges the following statement made in reference to
both witnesses: “[Chris James and Jarvis Shipp] haven't conferred․
They haven't talked. They haven't met․ These men have not conferred
in their testimony in any way.” Finally, the defendant states that
the prosecutor improperly argued that, “[Sepacus Triplett], now that
he is in the realm of confinement with other people who are involved
in the Gangster Disciples organization, all of a sudden now he has a
clear memory about his involvement.” The defendant contends no
evidence exists in the record to support these statements.
Although we conclude all of these statements are
reasonable inferences from the evidence, the defendant has waived any
challenge to these issues by failing to raise a contemporaneous
objection. See Tenn. R.App. P. 36(a). We further discern no plain
error. See Tenn. R.Crim. P. 52(b).
C. The State Commented on the Defendant's
Decision not to Testify
During closing arguments in the guilt phase, the
[Jarvis Shipp] said, I'm doing this, I'm telling
you the truth to help me, but also doing this to help the victim's
family. Did you hear that from anybody else?-anybody else who sat in
this chair and said, I pled to this, you know, I was there?
Did anyone else exhibit any remorse? Did anyone
say, I want to do the right thing. I want to do-I want to assist
this family in the grief that they're exhibiting, that they're feeling
in this matter. No one else did.
The defendant now argues this was an improper
remark on his election not to testify. See Griffin v. California,
380 U.S. 609, 613, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) (holding
prosecutor may not comment on the defendant's failure to testify).
Although these statements appear to properly relate to an attack on
gang members who testified for the defense, the failure to
contemporaneously object waives the issue. See Tenn. R.App. P.
36(a). Further, we discern no plain error. See Tenn. R.Crim. P.
D. The State Presented Irrelevant Evidence
Regarding the Victim
During its case-in-chief, the state presented the
testimony of Christina Green, the victim's sister. Ms. Green stated
she and the victim had a “real close” relationship. She further
stated she attended the victim's funeral and that it was a “closed
casket.” Defense counsel then objected, and the trial court
sustained the objection, finding the information regarding the casket
was not probative to the state's case-in-chief. The prosecutor then
asked Ms. Green if she missed her brother, and she responded
The defendant asserts that Christina Green's
testimony was irrelevant to the issue of guilt or innocence and was
not introduced for any other purpose but to inflame the passions of
the jury. However, other than the testimony regarding the victim's
coffin which the trial court sustained, the defendant did not
contemporaneously object to this testimony. Therefore, any issue
regarding Ms. Green's testimony in its entirety is waived. See Tenn.
R.App. P. 36(a).
Next, the defendant alleges Dr. Deering's remark
that the shotgun wound to the buttocks would have been painful was not
relevant to a determination of guilt or innocence and only inflamed
the jury. However, the defendant was charged with especially
aggravated kidnapping, one element of which is serious bodily injury.
See Tenn.Code Ann. § 39-13-305(a)(4). “Serious bodily injury”
includes “extreme physical pain.” Id. § 39-11-106(a)(34)(C). Accordingly,
such testimony regarding the gunshot wound to the buttocks was
E. The State Made Improper Statements During
The defendant contends the state made improper
statements to the jury during voir dire, which denied him a fair trial.
During voir dire, the prosecutor, in discussing the different roles
of the courtroom participants, stated:
On one matter that we all agree, we want a fair
trial and impartial judicial proceeding. The defense wants that for
their client, Mr. Robinson. But there's another person in this
courtroom, ladies and gentlemen. Someone that you can't see. And
that is the victim.
The defense objected and the trial court instructed
the prosecutor to ask the jurors a question. The prosecutor then
stated to the jury, “My question to you, ․ is that you keep that in
mind throughout all your deliberations-there's one other person
involved in this process.” The defendant made no objection. The
prosecutor then engaged in a lengthy discussion of the law and defined
various legal terms.
The prosecutor's comments during voir dire had no
effect on the result of the trial. These statements were minuscule
compared to the lengthy voir dire. Furthermore, there is no
indication that the prosecutor was acting with the intent to provoke
unfair bias among the potential jurors. This issue lacks merit.
F. Victim's Identity
The defendant contends the state engaged in
prosecutorial misconduct in seeking to suggest that he intended to
obliterate the victim's identity despite the lack of supporting
evidence and the trial court's instructions not to do so.
During the guilt phase of the trial, the state
sought to introduce numerous photographs into evidence based upon its
theory that the defendant intended that the victim's identity be
obliterated. The trial court refused to admit the photographs based
upon this theory. However, Sergeant Alvin Peppers testified that
upon arriving at the scene, he was unable to identify any of the
victim's features because “the face of the body was so mutilated.”
Upon objection by defense counsel, the trial court disallowed the
introduction of a photograph depicting the victim's face due to its
prejudicial effect but permitted Sergeant Peppers to testify regarding
his observations while at the scene.
Prior to Dr. Deering's testimony, the trial court
held a jury-out hearing to discuss photographs which would be
introduced during the doctor's testimony. The trial court again
prohibited the state from introducing photographs based upon this
theory because no one had testified that the defendant had instructed
the gang members to erase the victim's identity. However, the trial
court further stated that the prosecutor could argue an inference
based upon the evidence admitted.
We are unable to conclude the state engaged in
prosecutorial misconduct. The trial court refused to admit numerous
photographs based upon this theory. Furthermore, the prosecutor
could properly argue an inference based upon Sergeant Peppers'
testimony regarding the appearance of the victim at the scene and Dr.
Deering's testimony regarding the location and effect of the various
gunshot wounds. This issue is without merit.
IX. JURY INSTRUCTIONS-GUILT PHASE
The defendant claims that the trial court
improperly charged the jury. Specifically, he alleges the jury
instructions defining “intentional” and “knowing” conduct, direct and
circumstantial evidence, and reasonable doubt were erroneous. We
Under the United States and Tennessee Constitutions,
a defendant has a right to trial by jury. State v. Garrison, 40 S.W.3d
426, 432 (Tenn.2000). A defendant also has a right to a correct and
complete charge of the law, so that each issue of fact raised by the
evidence will be submitted to the jury on proper instructions. Id. In
evaluating claims of error in jury instructions, courts must remember
that “ ‘jurors do not sit in solitary isolation booths parsing
instructions for subtle shades of meaning.’ ” Vann, 976 S.W.2d at
101 (quoting Boyde v. California, 494 U.S. 370, 380-381, 110 S.Ct.
1190, 108 L.Ed.2d 316 (1990)), cert. denied, 526 U.S. 1071 (1999).
Therefore, we review each jury charge to determine if it fairly
defined the legal issues involved and did not mislead the jury. See
State v. Hall, 958 S.W.2d 679, 696 (Tenn.1997), cert. denied, 524 U.S.
941, 118 S.Ct. 2348, 141 L.Ed.2d 718 (1998).
A. Instruction on Intentionally and Knowingly
In instructing the jury on the elements of
premeditated first degree murder, the trial court defined
“intentionally” as, “A person acts intentionally with respect to the
nature of the conduct or to a result of the conduct when it is the
person's conscious objective or desire to engage in the conduct or
cause the result․” In regard to second-degree murder, the trial court
similarly defined “intentionally” and further instructed the jury as
“Knowingly” means that a person acts knowingly with
respect to the conduct or to circumstances surrounding the conduct
when the person is aware of the nature of the conduct or that the
circumstances exist. A person acts knowingly with respect to a
result of the person's conduct when the person is aware that the
conduct is reasonably certain to cause the result.
The requirement of “knowingly” is also established
if it is shown that the defendant acted intentionally.
The defendant cites as error the trial court's
instruction on “intentionally” for premeditated first degree
premeditated murder and “knowingly” for second degree murder because
they are result-of-conduct offenses. In support of his argument, the
defendant relies upon this court's decision in State v. Page, 81 S.W.3d
781 (Tenn.Crim.App.2002), a decision filed long after the trial of
this case. The defendant argues that this court's decision in Page
requires reversal in the present case as the trial court committed the
same error by instructing the jury in the disjunctive on the
definition of “intentionally” and “knowingly.” Id. at 788.[W]e
conclude the instructions constituted harmless error. See State v.
Dotson, No. M2001-01970-CCA-R3-CD, 2002 WL 31370471, at *4, 2002
Tenn.Crim.App. LEXIS 884, at *12 (Tenn.Crim.App. Oct. 21, 2002, at
Nashville), perm. to app. denied (Tenn.2003).
B. Instruction on Direct and Circumstantial
The defendant challenges the trial court's use of
the alternative pattern jury instruction on direct and circumstantial
evidence. See T.P.I.-CRIM. 42.03(a) (4th ed.1995). It provides in
pertinent part as follows:
Direct evidence is those parts of the testimony
admitted in court which referred to what happened and was testified to
by witnesses who saw or heard [or otherwise sensed] what happened
first hand. If witnesses testified about what they themselves saw or
heard [or otherwise sensed], they presented direct evidence.
Circumstantial evidence is all the testimony and
exhibits which give you clues about what happened in an indirect way.
It consists of all the evidence which is not direct evidence․
The defendant claims the instruction erroneously
implies that “all evidence is direct evidence, except hearsay.” Here,
a “commonsense understanding of the instructions in the light of all
that has taken place at the trial likely ․ prevail[ed] over technical
hairsplitting.” Boyde, 494 U.S. at 381, 110 S.Ct. 1190. We conclude
that there is no reasonable likelihood that the jurors interpreted the
trial court's instructions so as to prevent proper consideration of
direct and circumstantial evidence.
C. Reasonable Doubt Instruction
The defendant argues that the instruction provided
by the trial court erroneously defined reasonable doubt. The trial
court provided the following instruction on reasonable doubt:
Reasonable doubt is that doubt engendered by an
investigation of all the proof in the case and an inability, after
such investigation, to let the mind rest easily as to the certainty of
guilt. Reasonable doubt does not mean a captious, possible or an
imaginary doubt. Absolute certainty of guilt is not demanded by the
law to convict of any criminal charge, but moral certainty is required
and this certainty is required as to every proposition of proof
requisite to constitute the offense.
See T.P.I.-CRIM. 2.03 (4th ed.1995).
Our courts have upheld the constitutionality of the
language contained in this reasonable doubt instruction. See, e.g.,
State v. Bush, 942 S.W.2d 489, app. at 521 (Tenn.), cert. denied, 522
U.S. 953, 118 S.Ct. 376, 139 L.Ed.2d 293 (1997); Pettyjohn v. State,
885 S.W.2d 364, 365 (Tenn.Crim.App.1994). Accordingly, this issue is
[Deleted: X. LESSER-INCLUDED OFFENSES]
XI. JURY MISCONDUCT
The defendant complains that his right to an
impartial jury was violated when juror Gina Boyd was untruthful during
voir dire, and, despite the sequestration order, Boyd had contact with
a person outside the jury.
During voir dire, Boyd stated she worked “intake”
as a deputy jailer in Shelby County. She denied knowing the
defendant or anything about the case. Boyd stated she would be able
to be fair and impartial in hearing all the evidence. During the
motion for new trial, Boyd testified that although there were times
when she was in different areas of the jail, she did not recall seeing
the defendant in the jail.
Boyd stated that during the trial, she noticed an
arm band on the defendant's wrist and realized he was an inmate,
although she still did not know where he was housed. She did not
return to the jail until after the conclusion of the trial. Boyd
maintained she never had supervisory authority over the defendant at
the Shelby County Jail.
Defense counsel subsequently presented jail records
which established that on October 8, 1998, Boyd was temporarily
assigned to work in the pod where the defendant was housed for a
period of three hours. Although the duty log sheet reflects that a
head count may have been taken while Boyd was working in the pod,
there is no indication as to who took the head count.
The burden is on the defendant to establish a prima
facie case of juror bias. State v. Akins, 867 S.W.2d 350, 355 (Tenn.Crim.App.1993).
If a juror intentionally fails to disclose information on voir dire
which might indicate partiality, a presumption of prejudice arises. Id.
The trial court found there was no “nexus” shown to
exist between the defendant and the juror. The trial court further
found there was no indication Boyd recognized the defendant. We
conclude that the trial court's ruling is supported by the evidence.
This issue is without merit.
B. Separation of Sequestered Jury
At the hearing on the motion for new trial, juror
Boyd testified that after being selected for the jury, she advised her
mother she was selected for a “profile” murder case and was upset.
Defense counsel stated they had interviewed the juror's mother, who
stated her daughter came home in order to secure clothing for her
sequestration and said she was “extremely upset” in having to serve on
“a high profile gangster case.”
The trial court found that juror Boyd had already
testified she was upset and told her mother she was sitting on a
“profile” murder case. Thus, the court saw no relevance in the
mother's proposed testimony. The defendant made no formal proffer of
the mother's testimony.
Although we question whether this issue has been
properly preserved due to the failure to make a formal proffer of the
mother's proposed testimony, we find it without merit. Once
separation of a sequestered jury has been shown by the defendant, the
state has the burden of showing that such separation did not result in
prejudice to the defendant. State v. Bondurant, 4 S.W.3d 662, 672 (Tenn.1999).
Here, the record supports the finding by the trial court that there
was no showing of prejudice even if the mother testified in accordance
with defense counsel's declarations. This issue lacks merit.
XII. THIRTEENTH JUROR/JUDGMENT OF ACQUITTAL
The defendant asserts that the trial court, acting
in its capacity as the thirteenth juror, should have granted a new
trial because the guilty verdicts were contrary to the weight of the
evidence. Alternatively, he asserts that the trial court should have
granted his motion for judgment of acquittal.
Tennessee Rule of Criminal Procedure 33(f) provides
that “[t]he trial court may grant a new trial following a verdict of
guilty if it disagrees with the jury about the weight of the evidence.”
When a trial court makes a determination following Rule 33(f), the
court is acting as thirteenth juror. See State v. Gillon, 15 S.W.3d
492, 500 (Tenn.Crim.App.1997). In the instant case, the trial court
expressly approved the verdict as thirteenth juror in the order
overruling the motion for new trial. Contrary to the defendant's
argument, the trial court is not required to delete from its
consideration evidence that might later be found to be inadmissible.
The defendant also argues that the trial court
erred by failing to grant his motion for judgment of acquittal. See
Tenn. R.Crim. P. 29. This court has noted that “[i]n dealing with a
motion for a judgment of acquittal ․ the trial judge is concerned only
with the legal sufficiency of the evidence and not with the weight of
the evidence.” State v. Hall, 656 S.W.2d 60, 61 (Tenn.Crim.App.1983).
The standard for reviewing the denial or grant of a motion for
judgment of acquittal is analogous to the standard employed when
reviewing the sufficiency of the convicting evidence after a
conviction has been imposed. See State v. Ball, 973 S.W.2d 288, 292
(Tenn.Crim.App.1998). Thus, our review of this issue is encompassed
within our previous review of the sufficiency of the evidence.
[Deleted: XIII. CUMULATIVE ERROR]
XIV. SENTENCE FOR ESPECIALLY AGGRAVATED
The defendant does not challenge the length of his
twenty-five-year sentence for especially aggravated kidnapping.
However, he argues the trial court's order that it run consecutively
to the sentence of death is flawed in that the trial court failed to
make the requisite findings for consecutive sentencing. See State v.
Imfeld, 70 S.W.3d 698, 708-09 (Tenn.2002); State v. Lane, 3 S.W.3d
456, 460 (Tenn.1999); State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn.1995).
A trial court may impose consecutive sentencing
upon a determination that one or more of the criteria set forth in
Tennessee Code Annotated section 40-35-115(b) exist. This section
permits the trial court to impose consecutive sentences if the court
finds, among other criteria, that “the defendant is a dangerous
offender whose behavior indicates little or no regard for human life,
and no hesitation about committing a crime in which the risk to human
life is high.” Tenn.Code Ann. § 40-35-115(b)(4). However, before
ordering the defendant to serve consecutive sentences on the basis
that he is a dangerous offender, the trial court must find that the
resulting sentence is reasonably related to the severity of the crimes
and necessary to protect the public against further criminal conduct.
See Imfeld, 70 S.W.3d at 708-09; Wilkerson, 905 S.W.2d at 939.
Based on our review of the record, we conclude the
trial court's findings parallel the requirements of the statute
addressing consecutive sentencing and Wilkerson. See Tenn.Code Ann.
§ 40-35-115(b)(4); Wilkerson, 905 S.W.2d at 938-39. The trial court
imposed consecutive sentencing based on its finding that the defendant
was a dangerous offender. It further found the resulting sentence
was reasonably related to the severity of the crimes due to the manner
in which the victim was beaten and humiliated prior to his death.
The trial court also specifically found society needed to be protected
from the defendant. The trial court's findings are supported by the
record based on the defendant's conduct.
[Deleted: ANALYSIS OF ISSUES PRESENTED-PENALTY
XV. CHALLENGES TO THE (i)(5) AND (i)(7)
The defendant challenges the constitutionality of
both the (i)(5) and (i)(7) aggravating factors. See Tenn.Code Ann.
§ 39-13-204(i)(5), (7). We disagree with the defendant's contentions.
A. (i)(5) Aggravator-Unconstitutionally Vague
The defendant argues that the “heinous, atrocious,
or cruel” aggravator is vague and overbroad. However, our supreme
court has rejected this argument. State v. Keen, 31 S.W.3d 196, 211
(Tenn.2000), cert. denied, 532 U.S. 907, 121 S.Ct. 1233, 149 L.Ed.2d
He further asserts that the jury instruction, as
given, is not a unitary instruction. Our supreme court has
previously stated that the phrase “especially heinous, atrocious, or
cruel” is a unitary concept, State v. Van Tran, 864 S.W.2d 465, 479 (Tenn.1993),
cert. denied, 511 U.S. 1046, 114 S.Ct. 1577, 128 L.Ed.2d 220 (1994),
which “may be proved under either of two prongs: torture or serious
physical abuse,” Keen, 31 S.W.3d at 209 (citations omitted). Further,
our state supreme court has previously found the defendant's argument
that the jury charge deprived him of a unanimous jury verdict to be
without merit. State v. Sims, 45 S.W.3d 1, 18 (Tenn.), cert. denied,
534 U.S. 956, 122 S.Ct. 357, 151 L.Ed.2d 270 (2001).
B. (i)(5) Aggravator-Failing to Meaningfully
The defendant argues that the (i)(5) aggravator,
either alone or combined with the (i)(7) aggravator, fails to
meaningfully narrow the class of death eligible defendants. The
Tennessee Supreme Court has rejected this argument. See Terry v.
State, 46 S.W.3d 147, 159 (Tenn.), cert. denied, 534 U.S. 1023, 122
S.Ct. 553, 151 L.Ed.2d 428 (2001).
[Deleted: C. (i)(5) and (i)(7) Aggravators-Vicarious
XVI. DEFENDANT'S PRIOR ARREST
The defendant next asserts the trial court erred in
failing to grant a mistrial when, during the sentencing phase, the
state improperly asked a defense witness about the defendant's “prior
arrest.” The defendant presented his sister's testimony concerning
his relationship with his family. On cross-examination, the state
asked the defendant's sister whether she was aware of the defendant's
prior arrest. The trial court sustained the defendant's objection
and instructed the jury to disregard the question and answer.
Although we have difficulty understanding why a
prosecutor would ask such a question in the penalty phase of a capital
trial without prior court approval, we fail to find any resulting
prejudice in light of the trial court's prompt curative instruction.
XVII. PREJUDICIAL INFORMATION REACHING THE JURY
A. List of Aggravating Circumstances
The defendant argues that the trial court
improperly read to the jury all the possible aggravating circumstances
during jury selection and not just the two relied upon by the state.
The record reflects that the trial court did recite to the venire
during the jury selection process the entire list of available
statutory aggravating circumstances.
It is error for the trial court to instruct the
jury on inapplicable aggravating circumstances. State v. Blanton, 975
S.W.2d 269, 281(Tenn.1998), cert. denied, 525 U.S. 1180, 119 S.Ct.
1118, 143 L.Ed.2d 113 (1999). However, the entire list of
aggravating circumstances was not submitted to the jury as part of the
instructions prior to deliberations. It was simply part of the
explanatory portion of the trial court's discussion with the venire.
At the close of the proof at the sentencing phase, the jury was
properly instructed only as to the two aggravating factors relied upon
by the state. This issue is without merit.
B. Use of Especially Aggravated Kidnapping to
The defendant complains that the trial court
permitted the prosecution to improperly suggest that the felony murder
aggravator, which was based upon the underlying especially aggravated
kidnapping, should be given extra weight against any mitigators.
Specifically, the defendant cites to the state's argument, “You've
already come to this determination that there was, indeed, an
especially aggravated kidnapping and that there was, indeed, a murder.
The other one is the heinous, atrocious, and cruel.” This argument
is misplaced. The prosecution was merely reiterating to the jury
that they had found during the guilt phase the elements of especially
aggravated kidnapping, the underlying felony in the (i)(7) aggravator.
The defendant also argues that the use of the same
“serious bodily injury” to the victim to enhance kidnapping to
especially aggravated kidnapping and to apply the (i)(7) aggravator
was “double counting,” which violated double jeopardy. Initially, we
note that the felony murder aggravator is triggered by a murder in
perpetration of a “kidnapping”; it is not required to be an
“especially aggravated kidnapping.” See Tenn.Code Ann.
§ 39-13-204(i)(7). Regardless, there is no double jeopardy violation.
See State v. Stout, 46 S.W.3d 689, 706 (Tenn.), cert. denied, 534
U.S. 998, 122 S.Ct. 471, 151 L.Ed.2d 386 (2001).
C. Failure to Limit the State's Aggravators to
The defendant asserts that the trial court
improperly permitted the state to rely upon two aggravating
circumstances after defense counsel had detrimentally relied upon the
state's opening argument of the penalty phase indicating it was
relying upon only the (i)(5) aggravator. The state indeed only
mentioned the “heinous, atrocious, or cruel” aggravator in its opening
statement. However, prior to the defendant's proof, the trial court
heard argument on this issue and ruled the state was not limited to
only one aggravating factor. It further noted the state had given
proper notice of both aggravators. We agree with this ruling and
discern no undue prejudice to the defendant.
XVIII. PROHIBITION FROM CONSIDERING MITIGATING
The defendant contends the trial court
unconstitutionally prevented the sentencing jury from considering
relevant mitigating evidence by excluding consideration of evidence of
the defendant's character and record.
A. Instruction to Jury Regarding Mitigating
The defendant complains of the following
instruction regarding consideration of mitigating evidence:
Any other mitigating factor which is raised by the
evidence produced by either the prosecution or defense at either the
guilt or sentencing hearing; that is, you shall consider any aspect
of the circumstances of the offense favorable to the defendant which
is supported by the evidence.
The defendant asserts that by failing to instruct
the jury that it may also consider “any aspect of the defendant's
character or record,” this instruction erroneously limited the jury to
mitigating evidence related to the circumstances of the offense, and,
in effect, the jury was instructed not to consider any evidence
related to the defendant's character or record. The language
suggested by the defendant is in the pattern jury instruction but was
inadvertently omitted by the trial court. See T.P.I.-CRIM. 7.04(c)
(4th ed.1995); see also id. (7th ed.2002).
A jury instruction on mitigating circumstances may
be found “prejudicially erroneous” only if “ ‘it fails to fairly
submit the legal issues or if it misleads the jury as to the
applicable law.’ ” State v. Reid, 91 S.W.3d 247, app. at 308 (Tenn.2002)
(quoting State v. Hodges, 944 S.W.2d 346, 352 (Tenn.), cert. denied,
522 U.S. 999, 118 S.Ct. 567, 139 L.Ed.2d 407 (1997)). In the instant
case, we conclude that the instructions provided by the trial court
when viewed in their entirety fairly submitted to the jury the legal
issues. Accordingly, the omission in the trial court's instruction
did not prejudice the defendant.
B. Burden of Proving Mitigators
The defendant asserts the failure to instruct the
jury that he did not have the burden of proof as to any mitigating
factors was prejudicial. The jurors were instructed that the state
had the burden of proving beyond a reasonable doubt any aggravating
factor. They were further instructed there was no requirement for
unanimity with respect to any particular mitigating factor. Upon
reading the instructions as a whole, we fail to conclude the alleged
omission misled the jury.
C. Closing Argument by the State
The defendant next objects to a portion of the
state's closing argument during which the prosecutor asserted it was
“patently offensive” to argue that the defendant's life should be
spared because of his children and that such a plea was equally
offensive in view of the defendant's lack of remorse. These
statements were made during the state's rebuttal closing following the
defendant's plea for mercy based upon his family support and potential
for rehabilitation. The trial court cautioned the prosecutor after
the defense objected to these statements. The trial court further
instructed the jury:
Ladies and Gentlemen, let me say to you that the
appearance, or lack of appearance, on behalf of Mr. Robinson of any
remorse is not a factor for you to consider in determining what the
punishment in the case should be․
Lack of remorse is not a statutory aggravating
circumstance, and it is not proper rebuttal because the defendant did
not argue his remorse as a mitigating factor. However, the jury is
presumed to follow the curative instruction of the trial court. State
v. Butler, 880 S.W.2d 395, 399 (Tenn.Crim.App.1994). Accordingly,
although the prosecutor erred, such error is harmless in light of the
D. Trial Court's Limitation on the Defendant's
The defendant complains he was prevented from
presenting evidence of his innocence at the penalty phase by virtue of
an in limine order. Specifically, the defendant refers to the trial
court's ruling regarding his statement given outside the presence of
the jury at the beginning of the sentencing phase. During this jury-out
hearing, the defendant asserted he was wrongfully convicted. He also
stated he did not receive a fair trial due to the admission of
improper testimony, which the jury did not disregard. He further
alluded to various instances of misconduct by a particular juror and
improper removal of evidence from the courtroom by the prosecutor.
In response to these statements, the trial court made the following
I'm not going to allow him to testify about the
entire case in front of the jury, whether he, if he wants to testify
he got a fair trial, or didn't get a fair trial and on all these other
statements he wants to make. That may be proper, but I'm not going
to allow him to get up there to attack a particular juror, so that's
the basis for my decision.
The defendant subsequently testified but made no
reference to the alleged unfairness of his trial. The defendant has
cited no authority indicating a defendant has the right to testify
that he did not receive a fair trial and verbally attack jurors. Nor
do we find such attacks to be proper residual doubt testimony.
“Residual doubt evidence” generally consists of proof at the
sentencing phase indicating the defendant did not commit the offense,
notwithstanding the guilty verdict. State v. McKinney, 74 S.W.3d 291,
307 (Tenn.), cert. denied, 537 U.S. 926, 123 S.Ct. 321, 154 L.Ed.2d
219 (2002); State v. Hartman, 42 S.W.3d 44, 55-56 (Tenn.2001).
Although the defendant had the right to proclaim his innocence, we are
unable to conclude that he was prevented from doing so by virtue of
the trial court's ruling.
E. Other Errors
The defendant asserts numerous errors during the
penalty phase regarding closing arguments and the jury instructions
which related to mitigating circumstances. We have reviewed the
defendant's assertions and find the defendant is not entitled to
relief on any of these issues.
XIX. ADMISSION OF PHOTOGRAPH DURING PENALTY
The defendant contends that the trial court erred
in admitting a photograph depicting a detailed and close-up view of
the gruesome wounds to the victim's face during the penalty phase.
Although the trial court refused to admit the photograph at the guilt
phase, the court permitted its introduction at the penalty phase,
advising the jury to consider it only for the purpose of determining
whether the crime was heinous, atrocious, cruel, or constituted
Photographs depicting a victim's injuries have been
held admissible to establish torture or serious physical abuse under
aggravating circumstance (i)(5). See, e.g., State v. Smith, 893 S.W.2d
908, 924 (Tenn.1994) (photographs depicting the victim's body,
including one of the slash wounds to the neck, which was “undeniably
gruesome,” were relevant to prove that the killing was “especially
heinous, atrocious, or cruel” and were admissible for that purpose),
cert. denied, 516 U.S. 829, 116 S.Ct. 99, 133 L.Ed.2d 53 (1995). The
photograph in question accurately depicts the nature and severity of
the injuries inflicted upon the victim. This evidence was relevant
to the state's proof of the “heinous, atrocious, or cruel” aggravating
circumstance. The decision to admit this photograph was not an abuse
XX. PROSECUTOR'S ARGUMENTS
The defendant complains the state attempted to
suggest the defendant intended to obliterate the victim's identity
despite the fact there was no evidence to that effect, and the trial
court repeatedly instructed the state not to do so. The defendant
references the following argument of the state: “This was an
extortion of his whole identity. His whole face, his identity. The
aggravator we've proven is that there was a felony involved and that
this was heinous, atrocious, and cruel.” We discern no error
regarding this statement.
XXI. JURY INSTRUCTIONS DURING SENTENCING
The defendant asserts the written verdict form
misstated the law and allowed the jury to impose the death penalty
without requiring the state to prove the aggravating circumstances
outweighed the mitigating circumstances beyond a reasonable doubt.
At issue is that portion of the charge setting forth the requirements
authorizing a sentence of death. The trial court quoted the pattern
jury charge verbatim. See T.P.I.-CRIM. 7.04(c) (4th ed.1995); see
also id. (7th ed.2002) (containing identical language). We are
unable to conclude this charge misled the jury.
The defendant further contends the trial court
erred by failing to define the “knowing” mens rea required for the
felony murder aggravator. See Tenn.Code Ann. § 39-13-204(i)(7). If
the court erred, the error was harmless.
[Deleted: XXII. EXISTENCE OF AGGRAVATING FACTORS]
[Deleted: XXIII. PROSECUTORIAL INCONSISTENCIES
AND THE DEATH PENALTY]
[Deleted: XXIV. APPRENDI V. NEW JERSEY]
XXV. THIRTEENTH JUROR-PENALTY PHASE
The defendant argues that the trial court, acting
in its capacity as “thirteenth juror” pursuant to Tennessee Rule of
Criminal Procedure 33(f), should have granted a new sentencing hearing
since the jury's death verdict was contrary to the weight of the
evidence. As previously indicated in this opinion, the trial court
expressly approved the verdict as thirteenth juror in its order
overruling the motion for new trial. The order specifically referred
to the convictions as well as the penalty of death. This issue lacks
XXVI. CONSTITUTIONALITY OF THE TENNESSEE DEATH
The defendant contends our death penalty statute is
unconstitutional. The Tennessee death penalty statute has been
upheld repeatedly. See, e.g., State v. Reid, 91 S.W.3d 247, app. at
312-14 (Tenn.2002); State v. Hines, 919 S.W.2d 573, 582 (Tenn.1995),
cert. denied, 519 U.S. 847, 117 S.Ct. 133, 136 L.Ed.2d 82 (1996).
The defendant also argues death by lethal injection
is unconstitutional. While the Tennessee Supreme Court has not
expressly addressed this issue, see State v. Suttles, 30 S.W.3d 252,
264 (Tenn.), cert. denied, 531 U.S. 967, 121 S.Ct. 401, 148 L.Ed.2d
310 (2000), such challenges have been rejected by other courts. See
Poland v. Stewart, 117 F.3d 1094, 1104-05 (9th Cir.1997), cert. denied,
523 U.S. 1082, 118 S.Ct. 1533, 140 L.Ed.2d 683 (1998); State v. Webb,
252 Conn. 128, 750 A.2d 448, 458, cert. denied, 531 U.S. 835, 121 S.Ct.
93, 148 L.Ed.2d 53 (2000); and State v. Hinchey, 181 Ariz. 307, 890
P.2d 602, 610, cert. denied, 516 U.S. 993, 116 S.Ct. 528, 133 L.Ed.2d
434 (1995). We likewise conclude that lethal injection is not
[Deleted: XXVII. COMPARATIVE PROPORTIONALITY
I concur in the conclusion of the majority that
Robinson's convictions should be affirmed. As to the sentence of
death, however, I continue to adhere to my views, previously expressed
in a long line of dissents, that the comparative proportionality
review protocol currently embraced by the majority is inadequate to
shield defendants from the arbitrary and disproportionate imposition
of the death penalty. See Tenn.Code Ann. § 39-13-206(c)(1)(D) (1995
Supp.). I have repeatedly expressed my displeasure with the current
protocol since the time of its adoption in State v. Bland, 958 S.W.2d
651 (Tenn.1997). See State v. Davis, 141 S.W.3d 600, 632 (Tenn.2004)
(Birch, J., concurring and dissenting); State v. Berry, 141 S.W.3d
549, 590 (Tenn.2004) (Birch, J., concurring and dissenting); State v.
Holton, 126 S.W.3d 845, 872 (Tenn.2004) (Birch, J., concurring and
dissenting); State v. Davidson, 121 S.W.3d 600, 629-36 (Tenn.2003) (Birch,
J., dissenting); State v. Carter, 114 S.W.3d 895, 910-11 (Tenn.2003)
(Birch, J., dissenting); State v. Reid, 91 S.W.3d 247, 288-89 (Tenn.2002)
(Birch, J., concurring and dissenting); State v. Austin, 87 S.W.3d
447, 467-68 (Tenn.2002) (Birch, J., dissenting); State v. Stevens, 78
S.W.3d 817, 852 (Tenn.2002) (Birch, J., concurring and dissenting); State
v. McKinney, 74 S.W.3d 291, 320-22 (Tenn.2002) (Birch, J., concurring
and dissenting); State v. Bane, 57 S.W.3d 411, 431-32 (Tenn.2001) (Birch,
J., concurring and dissenting); State v. Stout, 46 S.W.3d 689, 720 (Tenn.2001)
(Birch, J., concurring and dissenting); Terry v. State, 46 S.W.3d
147, 167 (Tenn.2001) (Birch, J., dissenting); State v. Sims, 45 S.W.3d
1, 23-24 (Tenn.2001) (Birch, J., concurring and dissenting); State v.
Keen, 31 S.W.3d 196, 233-34 (Tenn.2000) (Birch, J., dissenting). As
previously discussed, I believe that the three basic problems with the
current proportionality analysis are that: (1) the proportionality
test is overbroad,1
(2) the pool of cases used for comparison is inadequate,2
and (3) review is too subjective.3
I have previously discussed, in depth, my perception that these flaws
undermine the reliability of the current proportionality protocol.
See State v. Godsey, 60 S.W.3d at 793-800 (Birch, J., concurring and
dissenting). I continue to adhere to my view that the current
comparative proportionality protocol is woefully inadequate to protect
defendants from the arbitrary or disproportionate imposition of the
But beyond the foregoing, which addresses
proportionality review in general, the number of participants in this
offense and the wide disparity in the sentences imposed in this case
invite a yet more specific scrutiny. Of the four others prosecuted
for this offense, only Robinson received the death penalty. Prentiss
Phillips was convicted of first-degree murder and especially
aggravated kidnapping and received sentences of life without parole
for the murder, plus twenty-five years, respectively.5
See State v. Phillips, 76 S.W.3d 1 (Tenn.Crim.App.2001), perm. app.
denied (Tenn.2001). Antonio Jackson was convicted of facilitation of
first-degree murder and especially aggravated kidnapping and received
sentences of twenty-five years on each of those offenses, to be served
consecutively. See State v. Jackson, 52 S.W.3d 661 (Tenn.Crim.App.2001),
perm. app. denied (Tenn.2001). Kevin Wilkins' conviction for first-degree
murder (and life without parole sentence) was reversed on appeal for
insufficient evidence, leaving him with a single conviction for
especially aggravated kidnapping, although it is evident from the
testimony in this record that he was the person who actually fired the
fatal shots into Vernon Green's body. See State v. Kevin Wilkins,
No. W1999-01462-CCA-MR3-CD, 2000 WL 1229156 (Tenn.Crim.App. at Jackson,
Aug. 18, 2000), perm. app. denied (Tenn.2001).6
Of course, a death sentence for one defendant is
not rendered arbitrary, excessive or disproportionate merely because
another defendant in the same case has received a sentence less than
here, the arbitrary nature of the sentencing process becomes
strikingly manifest. Thus, I am constrained to wholeheartedly agree
with the conclusion reached by the Court of Criminal Appeals-that no
rational basis exists to distinguish Robinson's sentence of death from
the lesser sentences imposed upon the other defendants. Accordingly,
I deem Robinson's sentence to be arbitrary, excessive, and
In light of the foregoing, I respectfully dissent
from that portion of the majority opinion that affirms the imposition
of the death penalty upon Gregory Robinson and concur in the
affirmance of his convictions.
at trial also referred to this gang as the Traveling Vice Lords.
park previously had been known as Bellevue Park.
to Shipp, James actually was beaten by twelve individuals during the
six minutes, six seconds time period. Because he was a “big guy” the
first six individuals “got tired” and “stopped hitting on him.” At
the three minute, three second mark, Phillips selected six other
individuals, to continue the beating, one of whom was Shipp.
purposes of clarity, we will consistently use the reference MacGreg.
Ann. § 39-13-204(i)(5), (7) (1997).
reversing the defendant's conviction and death sentence, the Court of
Criminal Appeals considered all the issues raised by the defendant on
appeal as well as the issues appellate courts are mandated by statute
to consider in capital cases. Thus, this case need not be remanded
to the Court of Criminal Appeals for further consideration, and we
have considered all the issues raised by the defendant as well as the
mandatory statutory review issues and have concluded the convictions
and sentences should be affirmed.
Burns this Court indicated the trial court should provide a jury
instruction on solicitation at the new trial, even though the offense
had been completed. However, this portion of Burns has been
clarified in the later cases of Ely and Marcum. These cases plainly
explain that instructions are not required on either solicitation or
attempt where the evidence clearly establishes completion of the
8. We note
in this regard that the skull was not introduced into evidence and
therefore was never given to the jury for inspection.
establish unfair prejudice, the defendant points out that a juror
experienced a migraine headache during Dr. Deering testimony and was
excused from the jury after medical personnel examined her. The
defendant's assertion is without merit. We agree with and set out
below the trial court's decision on this issue.In regard to the juror
referred to by the Defendant, she experienced a migraine headache and
requested Darvocet (an extremely powerful painkiller available only by
prescription) for her pain. The requested medicine was unavailable
to the Court, and after being examined by a doctor who confirmed that
the juror did indeed have a migraine, the juror was dismissed due to
the fact that the doctor stated it would take approximately two to
three hours for the migraine to subside. The juror in no way, shape
or form indicated or in any way implied that the skull contributed to
the onslaught of her condition. The juror had obviously experienced
migraine headaches before, given that she normally took Darvocet to
control these headaches. The Defendant has offered no proof
whatsoever that the demonstration of the skull had any connection to
the juror's migraine. The Defendant does however, make much of the
fact that this juror wrote the word “pain” on her notepad, and asserts
that she held it up for other jurors to see, and that this action
prejudiced the jury. The actions of this juror were made known to
this Court during trial. This Court questioned two jurors in regard
to this incident. One juror stated that she had not seen any such
note. Another juror testified that she had seen it, stating, “It
said, pain. P-A-I-N. Her head was hurting real bad. And she just
wrote pain on it and held it up.” It is obvious to this Court that
the word pain was in reference to the migraine, and that the members
of the jury who saw this note also understood the reference.
Accordingly, this Court finds that the probative value of the skull
was not outweighed by the danger of unfair prejudice. This issue is
8 depicts the injury to the victim's buttocks. Exhibit 9 depicts the
injury to the victim's back.
appeal in this case has been delayed because the record was lost and
had to be reconstructed and because unopposed motions requesting
extensions have been granted.
e.g., Giglio v. United States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 31
L.Ed.2d 104 (1972).
so concluded, we need not and do not consider the State's assertion
that, even if such Due Process claims exist, such claims should be
raised in a post-conviction petition not on appeal and the State's
assertion that the Court of Criminal Appeals erred in adopting and
applying the analytical framework articulated by the Eighth Circuit
Court of Appeals. However, based upon our finding, we reject the
defendant's assertion that the prosecution failed to disclose
affirmative exculpatory evidence that Phillips was the highest ranking
gang member and that Phillips was ultimately responsible for the
defendant also challenged the consecutive sentences imposed for his
especially aggravated kidnapping conviction. In this Court, the
defendant filed a letter of supplemental authority relying upon
Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403
(2004), to support his challenge. The defendant argues that pursuant
to Blakely and Apprendi, he was entitled to a jury trial on the
factors supporting consecutive sentencing. The State did not respond.
The record reflects that the defendant did not rely upon Apprendi in
the trial court or in the Court of Criminal Appeals in support of this
claim, nor did he argue in the lower courts that a jury had to make
the consecutive sentencing findings. We note that several courts
have rejected the defendant's contention and held that Blakely and
Apprendi do not apply to the decision to impose consecutive sentences.
See People v. Sykes, 120 Cal.App.4th 1331, 16 Cal.Rptr.3d 317, 327
(2 Dist.2004) (citing cases).
statutory language provides: “[t]he defendant knowingly created a
great risk of death to two (2) or more persons, other than the victim
murdered, during his act of murder.” Tenn.Code Ann. § 39-2-203(i)(3)
(1982 & Supp.1986).
38 S.W.3d at 63 n. 17 (“While we formally adopt the method used by the
Owens Court in analyzing this issue, we do not necessarily adopt the
conclusions of that court in applying this analysis to any aggravating
circumstance other than the (i)(3) aggravator.”)
the Court of Criminal Appeals addressed this issue in the interest of
judicial economy. Under most circumstances, appellate courts should
refrain from conducting a comparative proportionality review if the
capital case is being reversed and remanded for a new trial or a new
sentencing hearing. See, e.g., State v. Bondurant, 4 S.W.3d 662, 675
(Tenn.1999); Carter, 988 S.W.2d at 153.
indicates the defendant told other gang members to take the victim “fishing.”
The record reflects the gang had a language all its own. James
testified he heard the defendant twice tell other gang members “Ya'll
know what to do.”
1. We note
that in the case of co-defendant Antonio Jackson, a panel of this
court concluded that evidence of James's presence at the apartment did
not implicate him as an accomplice to the kidnapping or murder of
Green. State v. Jackson, 52 S.W.3d 661, 666 (Tenn.Crim.App.2001).
state also contends this transcript was a public record equally
available to the defense, thus exempting it from the Brady
requirements. See Marshall, 845 S.W.2d at 233. Several courts have
concluded the failure to reveal public records does not violate Brady.
See, e.g., Kidwell v. State, 264 Ga. 427, 444 S.E.2d 789, 792 (1994)
(concluding transcripts of trials of other defendants were public
records and, therefore, the state was not required to disclose them);
People v. Salgado, 263 Ill.App.3d 238, 200 Ill.Dec. 784, 635 N.E.2d
1367, 1376 (1994) (holding that prior inconsistent statements
contained in transcripts were a matter of public record and no less
available to the defendant than to the state). The defendant
contends the suppression hearing transcript was not readily available
to defense counsel. We need not determine this issue in light of our
holding that the transcript did not meet the Bagley materiality test.
holding in Jencks v. United States, 353 U.S. 657, 672, 77 S.Ct. 1007,
1 L.Ed.2d 1103 (1957), and subsequent congressional action was
incorporated into Rule 26.2 of both the Federal and Tennessee Rules of
Criminal Procedure, requiring the production of statements of
witnesses at trial.
4. We see
no indication in the record that the tattoo artist, Jason Owens, had
examined the tattoos of the defendant. The defendant correctly
states in his brief that an ex parte request for funds to retain Owens
was filed shortly prior to the motion for new trial hearing and denied
by the trial court.
1. I have
urged adopting a protocol in which each case would be compared to
factually similar cases in which either a life sentence or capital
punishment was imposed to determine whether the case is more
consistent with “life” cases or “death” cases. See State v. McKinney,
74 S.W.3d at 321 (Birch, J., concurring and dissenting). The current
protocol allows a finding proportionality if the case is similar to
existing death penalty cases. In other words, a case is
disproportionate only if the case under review “is plainly lacking in
circumstances consistent with those in similar cases in which the
death penalty has been imposed.” Bland, 958 S.W.2d at 665 (emphasis
2. In my
view, excluding from comparison that group of cases in which the State
did not seek the death penalty, or in which no capital sentencing
hearing was held, frustrates any meaningful comparison for
proportionality purposes. See Bland, 958 S.W.2d at 679 (Birch, J.,
dissenting). This case, in particular, is a prime example of the
arbitrariness of this protocol.
3. As I
stated in my concurring/dissenting opinion in State v. Godsey, “[t]he
scope of the analysis employed by the majority appears to be rather
amorphous and undefined-expanding, contracting, and shifting as the
analysis moves from case to case.” 60 S.W.3d 759, 797 (Tenn.2001)(Birch,
J., concurring and dissenting).
4. I also
note that in a recent study on the costs and the consequences of the
death penalty conducted by the State Comptroller, one of the
conclusions was that prosecutors across the state are inconsistent in
their pursuit of the death penalty, a fact that also contributes to
arbitrariness in the imposition of the death penalty. See John G.
Morgan, Comptroller of the Treasury, Tennessee's Death Penalty: Costs
and Consequences 13 (July 2004), available at
noted by the Court of Criminal Appeals in its unredacted opinion, the
State also sought the death penalty against Phillips, making it a
prime case for comparison, even under the standards of Bland. State
v. Gregory Robinson, No. W2001-01299-CCA-R3-DD at pp. 52-53, 2003 WL
21946735 (Tenn.Crim.App. at Jackson, Aug. 13, 2003).
disposition of Jarvis Shipp's case is unknown, although there is
evidence in the record that he was testifying against this defendant
in the hope of receiving a favorable plea bargain, presumably for
something more favorable than the death penalty. See Majority
Opinion, at 518-520.
e.g., State v. Burns, 979 S.W.2d 276, 285 (Tenn.1998); State v.
Cauthern, 967 S.W.2d 726, 741 (Tenn.1998).
FRANK F. DROWOTA, III, C.J.
ADOLPHO A. BIRCH, JR., filed a concurring-dissenting