                     IN THE SUPREME COURT OF TENNESSEE
                                 AT JACKSON
                                         April 9, 2014 Session

                     STATE OF TENNESSEE v. JESSIE DOTSON

                    Automatic appeal from the Court of Criminal Appeals
                             Criminal Court for Shelby County
                        No. 0807688     James C. Beasley, Jr., Judge


                 No. W2011-00815-SC-DDT-DD - Filed September 30, 2014


A jury convicted the defendant, Jessie Dotson, of six counts of premeditated first degree
murder for killing his brother, three other adults, and two of his brother’s minor sons at their
Memphis, Tennessee home. The jury also convicted the defendant of three counts of
attempted first degree murder for attacking with kitchen knives and wooden boards three
more of his brother’s minor children who were also present in the home. At the conclusion
of the penalty phase of the trial, the jury imposed death sentences for the six first degree
murder convictions, finding that the multiple aggravating circumstances applicable to each
conviction outweighed the mitigating circumstances beyond a reasonable doubt. At a
separate sentencing hearing on the attempted first degree murder convictions, the trial court
classified the defendant as a Range II multiple offender, imposed a forty-year sentence for
each conviction, and ordered these sentences served consecutively to each other and to the
death sentences. The defendant appealed, and the Court of Criminal Appeals affirmed his
convictions and sentences. After the case was docketed in this Court, we entered an order
identifying five issues for oral argument,1 in addition to the mandatory review Tennessee
Code Annotated section 39-13-206(c)(1) (2014) requires this Court to perform. We now
hold that: (1) admission of the defendant’s custodial statements does not constitute plain
error; (2) admission of testimony regarding the defendant’s invocation of his right to counsel
did not deprive the defendant of a fair trial or violate his right to due process; (3) admission
of testimony about a surviving victim’s statements to third parties did not violate the
defendant’s state and federal constitutional right to confront the witnesses against him; (4)
admission of testimony regarding the defendant’s history of imprisonment did not violate his
right to a fair trial; and (5) admission of the pathologist’s testimony about autopsies another
pathologist performed did not violate the defendant’s federal and state constitutional right


        1
          “Prior to the setting of oral argument, the Court shall review the record and briefs and consider all
errors assigned. The Court may enter an order designating those issues it wishes addressed at oral argument.”
Tenn. Sup. Ct. R. 12.2.
to confront the witnesses against him. We also hold, in accordance with section 39-13-
206(c)(1), that: (1) the sentences of death were not imposed in any arbitrary fashion; (2) the
evidence supports the jury’s findings that the aggravating circumstances were proven beyond
a reasonable doubt; (3) the evidence supports the jury’s findings that as to each first degree
murder conviction the aggravating circumstances outweighed mitigating circumstances
beyond a reasonable doubt; and (4) the sentences of death are neither excessive nor
disproportionate to the penalty imposed in similar cases, considering both the nature of the
crimes and the defendant. Accordingly, the judgments of the trial court and the Court of
Criminal Appeals upholding the defendant’s convictions of first degree murder and
attempted first degree murder and sentences of death and forty years are affirmed. With
respect to issues not specifically addressed herein, we affirm the decision of the Court of
Criminal Appeals and include relevant portions thereof in an appendix to this opinion.

                  Tenn. Code Ann. § 39-13-206(a)(1); Judgment of the
                         Court of Criminal Appeals Affirmed

C ORNELIA A. C LARK, J., delivered the opinion of the Court, in which G ARY R. W ADE, C.J.,
and JANICE M. H OLDER, J., joined. W ILLIAM C. K OCH, J R., J., and S HARON G. L EE, J., filed
a separate concurring opinion.

Kathleen Morris, Nashville, Tennessee, and Marty Brett McAfee, Memphis, Tennessee, for
the appellant, Jessie Dotson.

Robert E. Cooper, Jr., Attorney General and Reporter; Joseph F. Whalen, Acting Solicitor
General; Jeffrey Dean Zentner, Assistant Attorney General; Amy P. Weirich, District
Attorney General; Damon Griffin, Reginald Henderson, and Raymond Lepone, Assistant
District Attorneys General, for the appellee, State of Tennessee.




                                             -2-
                                               OPINION

                                       I. Factual Background

                                            A. Guilt Phase

                     1. Discovery of the Crime Scene and Initial Investigation

       The proof offered at the guilt phase of the defendant’s trial established that in March
2008, thirty-year-old Cecil Dotson, Sr. (“Cecil”),2 Cecil’s five children, ranging in age from
nine years to two months, and Marissa Williams, Cecil’s twenty-seven-year-old fiancée and
the mother of four of his children, were living at a home located at 722 Lester Street in
Memphis, Tennessee. They had been living in the home for five or six months. Cecil
worked as a maintenance man at an apartment complex in Memphis.

        The defendant—Cecil’s brother—lived with their sister, Nicole Dotson (“Nicole”),
in her apartment at Goodwill Village in Memphis and worked with their father, Jessie Dotson
Sr. (“Jessie Sr.”), as a painter. The defendant had moved in with Nicole in August 2007,
upon his release from prison. The defendant’s family referred to him as “Junior.”

        On Saturday, March 1, 2008, Jessie Sr., the defendant, and William Waddell, Cecil’s
and the defendant’s half brother, also known as “Fat,” went to Cecil’s Lester Street home to
watch a televised University of Memphis basketball game with him.3 Ms. Williams and the
five children were also present at the home during this time.4 The group was unable to watch
the game because Cecil’s television could not receive the broadcast. Jessie Sr. left Cecil’s
house around 6:00 or 6:30 p.m., and as he was leaving, he saw Cecil on the porch cleaning
his grill and preparing to barbecue. He did not see Cecil or the defendant again that night
and never again saw Cecil alive. Mr. Waddell left Cecil’s home at 10:30 or 11:00 p.m., and
when he left, Cecil was still alive.




        2
          For clarity, we use given names, or abbreviated forms of given names, when referring to victims
and witnesses who share the same surname with other victims and witnesses and/or the defendant. Use of
the child victims’ given names does not compromise their privacy because the record reflects that the
surviving children’s surnames were changed after these crimes were committed.
        3
            Mr. Waddell had the same mother as the defendant and Cecil.
        4
        The five children included Ms. Williams’s four children with Cecil—C.J., Cedrick, Cemario and
Ceniyah—as well as Cecil II, Erica Smith’s child with Cecil.

                                                   -3-
       When Jessie Sr. arrived at Nicole’s apartment the next morning, Sunday, March 2,
2008, to pick up the defendant for work, the defendant was not there, and Nicole did not
know where he was. Jessie Sr. asked Nicole to tell the defendant to contact him if he wanted
to keep his job. Later that evening, the defendant called Jessie Sr. and explained that he had
not called because his girlfriend, Sheila Jones, had hidden his cell phone after they argued.
The defendant did not explain why he had missed work. When the defendant and Mr.
Waddell went to dinner that evening, the defendant asked if Mr. Waddell wanted to pick up
Cecil. Mr. Waddell had called Cecil numerous times on March 2nd but had not reached him,
so they did not go by the Lester Street home.

        The next day, Monday, March 3, 2008, the defendant rode to work with Jessie Sr.
around 8:00 a.m., but they stopped working at 11:00 a.m. due to rain. Later that same day,
the defendant called Jessie Sr., telling him that Nicole wanted him to drive by Cecil’s house
because Ms. Smith, the mother of Cecil’s two-year-old son Cecil II, feared something was
wrong. Ms. Smith had been unable to reach Cecil by telephone since the very early morning
hours of Sunday, March 2, 2008, and no one had answered the door at the Lester Street home
when she knocked around 3:00 p.m. that day. Ms. Smith said the door was partially open,
and the radio was playing, but she did not see anyone or hear the children, although she could
see the television just inside the door and the photographs on the wall across from the door.
On the morning of March 3rd, Ms. Smith discovered that Cecil had not shown up for work
and that his relatives had not heard from him. She still could not reach him by telephone.
When she called Mr. Waddell at work numerous times expressing her concerns, he told her
to call the police. She took his advice and called the police in the early evening and waited
outside the Lester Street home for them to arrive.

       Officer Randall Davis arrived first. As he walked in the front door, he could “smell
the dead bodies.” The storm door was closed, but the interior door was partially open, and
he could see a person’s foot lying on the floor inside. Entering the front door, Officer Davis
discovered four adult bodies, later identified as Cecil, Ms. Williams, Hollis Seals, and
twenty-two-year-old Shindri Roberson. All appeared to have sustained multiple gunshot
wounds. Officer Davis did not check for vital signs because it was obvious to him that they
were deceased.

       Officer Davis, along with two other officers, continued through the house, searching
for survivors and perpetrators, while another officer secured the front door. Officer Davis
noticed blood throughout the house, but none of it appeared to be fresh. Officer Davis saw
someone in the hallway bathroom and discovered nine-year-old C.J. in the bathtub with a
knife stuck in his head. Officer Davis first believed that C.J. was deceased but then noticed
the child’s eyes twitch. After alerting others he had found a survivor, Officer Davis
continued clearing the home.

                                             -4-
       In a bedroom on the left side of the hallway (“bedroom two”), Officer Davis
discovered four-year-old Cemario, who was deceased. In another bedroom (“bedroom one”),
Officer Davis discovered two-year-old Cecil II and five-year-old Cedrick, both of whom
appeared deceased to Officer Davis. Meanwhile, another officer located two-month-old
Ceniyah, who was still alive, and carried her out of the house.5 The officers exited just as
Memphis Fire Department personnel arrived, and Officer Davis let them know a survivor had
been found in the bathroom.

       Firefighter Jason Vosburgh testified that he “could smell the blood in the air” when
he approached the house, describing it as “[a] thick, spoiled smell like it had been there a
while.” Firefighter and emergency medical technician Daniel Moore testified that, although
he was instructed to check the adult victims for signs of life, he did not actually touch them
because it was obvious to him that they were deceased. Mr. Moore explained that “[j]ust by
looking at them and just the horrific scene that was there with all the blood and everything,
it was obvious that they had been down for a while.” He described the blood as “definitely
old.”

       When Mr. Vosburgh and a paramedic entered bedroom one, they discovered that,
although Cecil II was deceased, Cedrick was still alive, so they carried him outside to an
ambulance. During this time, Mr. Vosburgh was informed that another deceased victim was
in the other bedroom. When he returned inside, Mr. Vosburgh and Mr. Moore were
summoned to the bathroom, where firefighter Herbert Henley was attending to C.J.. They
removed C.J. from the bathtub and transported him to an ambulance outside. Mr. Henley
recalled seeing cuts on C.J.’s face and a “sawzall blade” sticking out of the top of his head.
He described the bathroom as “a mess” with “blood everywhere.” Mr. Moore testified that
when he and Mr. Vosburgh entered the bloody bathroom, C.J. “turned his head and the next
thing we saw was one of the most horrible things I’ve ever seen, it was a knife stuck
embedded in his skull and it was just stuck there. And it absolutely is the worst thing I’ve
ever seen in my life.” In addition to the embedded knife, Mr. Moore observed puncture
wounds on C.J.’s abdomen and multiple superficial cuts to his neck.

       By the time firefighter and paramedic Patrick McDevitt reached the scene, the
surviving victims had already been removed and were on their way to the hospital. Mr.
McDevitt and his partner were tasked with confirming that the remaining victims were
deceased. To do so, they touched each victim to check for a pulse or other vital signs and ran
an ECG, which required them to move clothing and affix ECG strips. They returned the
clothing to its original position when they finished. Mr. McDevitt noticed that the blood on
each victim appeared to be dry.

       5
           The record does not indicate in which part of the house Ceniyah was found.

                                                   -5-
       Meanwhile, Memphis Police Department Deputy Director Toney Armstrong, a
lieutenant with the Homicide Bureau at the time these murders occurred, learned of the
homicides. He called Lieutenant Walter Davidson6 at home, assigned him to serve as case
coordinator on the investigation, and instructed him to go to the scene. He told Lieutenant
Davidson that six persons had been murdered and that three severely injured children were
on their way to the hospital and not expected to survive. Not knowing the identity of the
perpetrator and wanting to prevent any further attacks on the family, Deputy Director
Armstrong and Lieutenant Davidson decided to quarantine the surviving children at the
hospital and not release their identities. Officers of the Tactical Unit were assigned to guard
the children, and the quarantine prevented relatives, the media, and everyone other than
medical personnel and police personnel approved by Deputy Director Armstrong from having
contact with them. No family members were allowed contact with the children from March
3rd through March 8th.

         Sergeant Anthony Mullins of the Homicide Bureau was at the scene when Deputy
Director Armstrong and Lieutenant Davidson arrived.7 After he had walked Deputy Director
Armstrong through the house and provided an overview of the crime scene, Sergeant Mullins
left and obtained a search warrant. When he returned with the warrant later that evening,
officers entered the home and began collecting any evidence located in the immediate
vicinity of the deceased victims’ bodies. By the time this work had been completed, the
medical examiner and seven others from the Shelby County Medical Examiner’s Office had
arrived at the scene. By 2:30 a.m. on March 4, 2008, the deceased victims’ bodies had been
removed and were en route to the morgue. Sergeant Mullins and the officers assisting him
left a short time later, but a uniformed officer remained behind to secure the scene. Sergeant
Mullins and the crime scene processing team returned between 10:30 and 11:30 a.m. on
March 4th and continued their work.

       Testifying at trial as an expert in general crime scene investigation and bloodstain
pattern analysis, Sergeant Mullins described the Lester Street crime scene as horrific and the
worst he had ever worked. The living room, into which the front door opened, was very
small, with only between five and ten feet of available space around the furniture and the


        6
        At the time of the investigation, Lieutenant Davidson was a sergeant in the Homicide Bureau of
the Memphis Police Department.
        7
           When Deputy Director Armstrong and Lieutenant Davidson arrived at the scene between 6:30 and
7:30 p.m., a film crew from the television show, The First 48, was already on site. Both of these officers
testified that they would have preferred not to allow the film crew access to the scene; however, they had no
authority to do so, nor did they have authority to tell the film crew when to film or how to dispose of the film
footage. Deputy Director Armstrong explained that “[t]he City [had] approved for the The First 48 to have
all of the access and privileges to go out on all homicides with us.”

                                                      -6-
bodies of the four adult victims. The home, he said, was dirty and cluttered. He found
evidence indicating that the crime scene had been staged, which further complicated the
investigation.

       All of the adult victims had sustained multiple gunshot wounds, and all except Mr.
Seals had been shot at least once in the leg. Two guns were used in the shooting—a nine-
millimeter and a .380 caliber—although neither gun was found at the scene or thereafter.
Although the guns were not found, officers located spent bullets in the living room on the
sofa cushion, on top of a piece of plastic from a window unit air conditioner, on the floor
under Cecil, under the sofa, inside the arm of the sofa, between two sofa seat cushions, in the
wall behind the sofa, and in the east wall of the living room.

       Shell casings were also found in the living room. Officers recovered two nine-
millimeter and three .380 caliber shell casings on the floor. When officers moved a jacket
on the love seat, they found a sealed Ziploc bag that contained eleven more nine-millimeter
and five more .380 spent shell casings. Sergeant Mullins concluded that the person or
persons responsible for the crimes had collected the spent shell casings after the shootings,
intending to remove them from the scene.

        Sergeant Mullins believed that all of the adult victims’ bodies were moved or staged
after the shooting. Cecil’s body was located in a kneeling position in front of the sofa, with
his torso on a sofa cushion near a seam where two cushions met, and a bag of marijuana in
his left hand. Cecil had sustained several gunshot wounds including several to the front of
his body, one to his neck, one to the bottom of his foot, and several to his lower legs. Fibers
collected from Cecil’s chin and mouth were consistent with a pillow having been placed over
his face when he was shot, and police found a pillow in the living room through which a
bullet had passed. The gun used to shoot Cecil’s legs differed from the gun used to shoot his
neck. Sergeant Mullins could not determine the sequence of the gunshot wounds to Cecil’s
legs, but he believed that several of them may have been inflicted close to or after Cecil’s
death.

        Sergeant Mullins opined that Cecil’s body had been positioned and staged after the
shooting. Sergeant Mullins believed that Cecil was likely facing his attacker when the first
shot was fired, explaining that Cecil had several gunshot wounds to the front of his body,
which he would not have sustained had he been kneeling with his torso resting on the sofa
at the time of the shooting. Sergeant Mullins also believed that the bag of marijuana had
been placed in Cecil’s hand, explaining that the bag was so large that Cecil would have been
unable to close his fingers around it and would have dropped it had he been holding it during
the shooting or while attempting to flee or defend himself.



                                              -7-
        A loaded twelve-gauge sawed-off shotgun was found on a stack of clothing in the
corner of the living room, a little more than an arm’s length from Cecil’s body. Five more
live rounds of shotgun ammunition were found under the sofa. DNA testing of blood found
on the end of the shotgun barrel revealed that two-month-old Ceniyah was a minor
contributor of the blood. According to Sergeant Mullins, the blood on the shotgun barrel
indicated that the gun was positioned atop the clothing after the shooting, because no blood
spatter was found on any of the clothing beneath the gun and the blood on the gun belonged
to a victim whose body was found in another part of the home.

       Ms. Roberson’s body was located in a seated position on the floor, with her back to
the sofa, her legs extended, and her head to the side, between the sofa and the loveseat. Her
shirt was pulled up, exposing her breasts, and her pants were pulled down, exposing her
lower body from her waist to her knees. A clear plastic bag containing what appeared to be
between three and five rocks of crack cocaine was found on the outer portion of her vagina.
Sergeant Mullins concluded that Ms. Roberson’s body also had been staged after the
shooting and that she had been pulled from the sofa to the floor near the time of or after her
death and her clothing then altered. Little blood was found on the floor beneath her body,
but a nearby sofa cushion was stained with very thick coagulated blood, which Sergeant
Mullins described as consistent with the type of blood loss that would occur from a gunshot
wound like that Ms. Roberson sustained to her leg. Ms. Roberson’s pants were also saturated
with blood, and bullet holes in her pants corresponded to the location of the gunshot wounds
to her legs, indicating that her pants were covering her legs when she was shot and were
pulled down afterwards. The bag of crack cocaine also appeared to be part of the staging,
as it was only slightly touching her and appeared to have been placed on her body.

       On the floor beneath and around Ms. Roberson’s body were items that appeared to
Sergeant Mullins to have been emptied from a purse, although he did not locate an empty
purse in the room. These items were not collected as evidence, and Sergeant Mullins could
not recall seeing any type of identification, although he did recall seeing Ms. Roberson’s cell
phone and photos among these items. Three hairs were collected from Ms. Roberson’s right
leg, thigh, and buttocks and sent to the Federal Bureau of Investigation for testing.
Considering the dirty condition of the home and the considerable traffic through it during the
previous months, Sergeant Mullins did not view the hairs as significant and opined that they
could have easily adhered to her body when it was moved.

       Sergeant Mullins believed that Ms. Williams’s body, too, had been positioned after
the shooting. Ms. Williams’s body was located on the floor, slumped over onto Ms.
Roberson, with her legs positioned across Ms. Roberson’s legs. He pointed out, however,
that the carpet was bloodstained on the side opposite of the way she was leaning.
Additionally, Ms. Williams’s legs were lying across Ms. Roberson’s legs, indicating that Ms.

                                              -8-
Williams’s body had been staged after Ms. Roberson’s body had been positioned on the
floor.

        Sergeant Mullins testified that Mr. Seals’s body was located across from the front
door and near the door connecting the kitchen and the living room. However, Mr. Seals’s
body was not visible upon entering the home because a large television blocked the view
across the living room. Mr. Seals was wearing a black shirt and black pants. His pants were
pulled down to below his knees. A cup and a wallet were found near his body, as was a
purse with the contents inside, which was later identified as belonging to Ms. Williams.
Inside the kitchen, just beyond Mr. Seals’s body, officers discovered a spent projectile under
a table and a defect in the kitchen wall, which appeared to have been made by gunfire from
the living room.

        Although Sergeant Mullins believed that Mr. Seals was shot in the area where he was
found, he opined that Mr. Seals’s clothing and body were altered after the shooting. He
pointed out that a pool of blood on the carpet near Mr. Seals’s body had a “void” in it—an
area where the carpet was not bloodstained—indicating that something had been covering
the unstained area of carpet when the blood pool formed. The carpet was bloodstained on
the opposite side of Mr. Seals’s body as well. Based on the bloodstains, the distance between
them, and the location of Mr. Seals’s legs one atop the other, Sergeant Mullins believed that
Mr. Seals’s body may have originally been lying in the area of the “void” and may have been
rolled from that area when his pants were pulled down and his wallet removed.

        Sergeant Mullins testified that all of the sharp force and blunt force injuries sustained
by the deceased and surviving children were inflicted with kitchen knives and wooden boards
the perpetrator found in the home. Sergeant Mullins pointed out that officers discovered a
gray plastic silverware tray overturned on the floor of the kitchen but did not recover an
intact set of kitchen knives. In total, officers found five knife blades throughout the home,
including the blade that was lodged in C.J.’s head. The word “Farberware,” a brand of
kitchen knives, was printed on one of the two blades recovered from inside the bathtub.
Officers also recovered one intact knife handle and what appeared to be broken pieces of
another knife handle. Sergeant Mullins believed the perpetrator removed the knife handles
from the blades after the assaults. Officers found bloodstained and broken pieces of wood
in various places, including the hallway, the bathroom, and bedrooms. According to
Sergeant Mullins, the perpetrator’s use of guns, knives, and boards already present in the
home demonstrated the perpetrator’s familiarity with the home.

       Officers found blood spatter throughout the home, and according to Sergeant Mullins,
the large amount of blood spatter found in the bathroom and bedrooms one and two was
consistent with a prolonged “one-on-one struggle” rather than a more rapid execution of the

                                               -9-
children. He noted that the bathroom floor, the bath mat, the area around the bathtub, and
the outside and inside of the toilet were stained with blood. A substantial amount of blood
had pooled inside the bathtub, where C.J. was found. A bloody partial palm print, later
matched to Cemario, was found on the tile wall of the bathroom. Sergeant Mullins described
the palm print as a transfer stain, which results from a bloody object or body part coming into
contact with and transferring blood onto another surface or object.

        Sergeant Mullins identified “cast-off” blood stain patterns on the bathroom wall over
the toilet tank. This pattern is produced, he explained, when blood that has adhered to an
object or weapon used to strike a person multiple times is cast off the object or weapon
during the attack and onto a nearby surface or object. Sergeant Mullins stated that the cast-
off spatter on the wall above the toilet consisted of three distinct trails, indicative of three
different blows. The top trail, which he described as almost horizontal on the wall, indicated
that the victim was close to the wall when the blow was administered. Sergeant Mullins
stated that because the cast-off was “a fairly wide pattern,” he believed it came “from one
of the boards” rather than a knife, although he could not definitively identify the weapon that
produced the pattern.

        On the wall over the bathtub and near where C.J. was found, Sergeant Mullins noted
still more cast-off spatter, which could have come from either a knife or a wooden board.
On the wall near the soap dish he noted cast-off spatter from a different blow, and he
identified still more cast-off spatter on the wall above the bathtub faucet controls, which was
indicative of additional blows. He observed a “smeared type” transfer stain farther down
inside the bathtub, as well as a thick amount of blood in the corner of the bathtub, all of
which had resulted from cast-off. On the wall next to Cemario’s bloody palm print,
Sergeant Mullins identified even more cast-off spatter, but he could not determine if it was
associated with the bloody palm print or if it resulted from a different blow to the same
victim or to another victim.

        On the top of the toilet tank, Sergeant Mullins identified impact blood spatter, which
occurs when an object strikes a bloody surface. Toward the bottom of the toilet, he observed
a blood transfer stain. Sergeant Mullins also noticed that blood had dripped down from
above, hitting the toilet tank and running down inside the toilet bowl. He testified that this
particular pattern was likely produced by an actively bleeding victim positioned above the
toilet tank. He testified that the pattern had been dissipated by water or someone wiping
through the dripped blood. He also testified that the blood spatter indicated that someone had
raised and lowered the toilet seat.

        Based on the cast-off patterns, Sergeant Mullins opined that at least one, and up to
three, blows were struck in the bathtub. Based on the dripped blood and Cemario’s bloody

                                              -10-
hand print on the wall, he concluded that more than one victim was assaulted in the
bathroom. Sergeant Mullins also noted that three green beads similar to those found in Cecil
II’s hair were recovered in the bathroom next to a large drop of blood. While he
acknowledged that the beads could have been on the floor prior to the attack, Sergeant
Mullins testified that the beads also could have fallen out during an attack on Cecil II in the
bathroom. Sergeant Mullins explained that “[t]here is a lot of movement in the bathroom.
There’s more than one blow being delivered in the bathroom. You’ve got several pieces of
broken wood that would be indicating at least one good blow, but from the blood evidence
there’s more than one and there’s movement within that scene.”

        Sergeant Mullins also testified about the blood evidence in bedroom one, where
Cemario’s body was discovered face down on the floor in a pool of blood. Inside this
bedroom, officers found two wooden boards and broken pieces of braided hair scattered
across the floor. Sergeant Mullins testified that a forceful blow to Cemario’s head would
have broken off the weaker braids. The broken braids scattered across the floor and the pool
of blood beneath Cemario’s head suggested that the perpetrator struck the fatal blow while
Cemario was lying on the floor in bedroom one. Large spots of dripped blood on the carpet
suggested to Sergeant Mullins that Cemario may have aspirated blood. However, Sergeant
Mullins believed that some portion of the assault on Cemario occurred in the bathroom. He
explained that “[t]he level of violence delivered to [Cemario] couldn’t have happened in
[bedroom one] without some additional blood evidence. So there has to be some movement
after the fact.”

       In bedroom two, where Cecil II and Cedrick were found, investigators found blood
stains on the bed, the window blinds, the wall by the bed, the ceiling fan, and the ceiling.
Sergeant Mullins testified that the blood spatter was multi-directional, indicating that
multiple blows had been delivered in bedroom two. Sergeant Mullins believed that the cast-
off blood spatter on the ceiling and ceiling fan resulted from a knife being raised overhead
between downward stabbing motions. On the floor beneath the bed, investigators found
seventeen more green hair beads like those in Cecil II’s hair.

       In bedroom two investigators also located a bloodstained wooden board, an intact
knife handle lacking a blade, and two knife blades lacking handles. The first knife blade,
found inside a pillowcase between the pillow and the pillowcase, had been bent into an “S”
shape and had blood on it. Sergeant Mullins believed the blade was bent when the knife
handle was removed, and he found no evidence to suggest that the blade had been twisted
and damaged during the stabbing of a victim. The second knife blade, found between the
mattress and the wall, and almost on top of the box springs, was discovered only after
investigators moved the bed.



                                             -11-
       In the dresser of the master bedroom, investigators located a box with eleven or twelve
rounds of nine-millimeter ammunition. Items were stored in the area beneath the bed.
Officers collected two cordless telephones from this area, including one from the floor
between the dresser and the laundry room and another from farther back in the bedroom.

       Sergeant Mullins opined that a perpetrator in the living room could have trapped the
children by standing in the doorway of the living room. Although doors leading to the
outside of the home were located in the laundry room and the master bedroom, to reach those
doors from the hall bathroom or from bedrooms one and two, the children would have been
required to walk through the living room. In addition, the door in the laundry room was
secured by a tied cord and appeared as if it had not been used in awhile. Most of the
windows in the home had bars.

        According to Sergeant Mullins, the perpetrator spent considerable time in the house
staging the crime scene after the murder. Sergeant Mullins reiterated his opinion that all four
adult victims were moved either close to the time of death or after death, and he noted that
Ms. Roberson was not petite and that pulling down her pants, as well as those of Mr. Seals,
would have taken time. More time would have been required to position Ms. Williams’s legs
across Ms. Roberson’s legs, to place the marijuana in Cecil’s hand, and to place the crack
cocaine on Ms. Roberson’s body. Sergeant Mullins stated that additional time was perhaps
spent moving Cemario, if he were indeed assaulted in the bathroom and later moved to
bedroom one. Removing the knife handles and hiding the knife blades in the pillowcase and
under the mattress would have taken more time, as would collecting and removing from the
scene all but one of the knife handles. Sergeant Mullins also pointed out that the guns used
in the shooting were removed from the scene, and he believed the loaded shotgun had been
positioned atop the clothing after the crimes occurred. Sergeant Mullins also explained that
some additional time would have been required to locate, collect, and place sixteen shell
casings in the sealed Ziploc bag. According to Sergeant Mullins, “ [I]t took enough time to
alter things in this scene as opposed to boom, boom, stab, stab, out the door. There’s a
difference. If you consider all the movement in the scene after this is done, it’s going to take
a few minutes but not necessarily hours, I would not think.” He opined that the staging of
the crime scene indicated that the perpetrator felt familiar with and comfortable enough to
remain in the home for the time needed to finish altering the crime scene.

       Sergeant Mullins observed that having knowledge of gangs and drug activity would
have been useful in staging the crime scene. However, based on his experience investigating
more than 100 gang-related homicides, Sergeant Mullins opined that gang members would
not have remained inside the home following the murders and would not have gone to the
crime scene unarmed and used weapons they found in the home to commit the offenses.
Sergeant Mullins was unaware of any gang-related homicides in which women were

                                              -12-
murdered and children were assaulted and killed with knives and boards. Sergeant Mullins
acknowledged that the defendant’s DNA was not discovered on any item of physical
evidence associated with the investigation; however, Sergeant Mullins testified that the lack
of DNA evidence linking the defendant to the crime did not exonerate him.

            2. The Defendant’s Initial Statements to Police, the Identification of the
                   Defendant as the Assailant, and Defendant’s Confessions

        While Sergeant Mullins and his team processed the crime scene, sergeants and
detectives from the Safe Streets Task Force and the Organized Crime Unit canvassed the area
and interviewed neighbors, while other officers questioned family members of the victims.
When the police asked Ms. Williams’s mother, Ida,8 if she knew of anyone who would want
to harm her daughter or Cecil, Ida named Ms. Smith, Cecil II’s mother and the person who
called the police, as the couple’s worst enemy. She explained that the tension stemmed from
Cecil’s simultaneous relationships with both Ms. Williams and Ms. Smith.

       Two other officers, Sergeant James Terry Max and Sergeant Joe Stark, interviewed
the defendant at Lieutenant Armstrong’s request. During this initial interview at the police
station on March 4, 2008, the defendant was not under arrest and was considered only a
possible witness. The defendant described his activities on March 1st, explaining that he and
others, including Jessie Sr. and Mr. Waddell, had intended to watch a televised University
of Memphis basketball game at Cecil’s Lester Street home, but the plan went awry because
Cecil’s television did not receive the broadcast.

        The defendant said he remained at Cecil’s house, where Cecil’s five children and Ms.
Williams were also present, and “E,” whom officers subsequently identified as Mr. Seals,
arrived later in the evening. Around 10:00 to 10:30 p.m., the defendant, Mr. Seals, and Cecil
left the Lester Street home and drove to “Frank’s” apartment in the area of Highland Avenue
and Spottswood Avenue. Officers later identified “Frank” as Willie Boyd Hill. According
to the defendant, Mr. Seals went into Mr. Hill’s apartment alone, while the defendant and
Cecil waited outside in the car. A short time later, a light complexioned man wearing glasses
exited the apartment, and Cecil got out of the car and talked to the man for some time. When
Mr. Seals emerged from Mr. Hill’s apartment twenty to thirty minutes later, the trio left and
picked up Mr. Seals’s girlfriend at another nearby apartment complex. From there, the
defendant said the group went to the Kimball Cabana Apartments to purchase marijuana,
arriving at approximately 11:30 p.m. or midnight. The defendant said that Cecil initially
went into a downstairs apartment alone but soon returned to get the defendant. Together they
went back inside the same apartment, and Cecil introduced the defendant to four African-

       8
           We omit Ida’s surname to protect the privacy of the surviving children, whom she has adopted.

                                                   -13-
American men, telling them that the defendant had just been released from prison. After
Cecil had purchased a quarter-ounce bag of marijuana and the defendant had purchased $20
worth of marijuana, they left the apartment, ran into Ms. Smith in the parking lot, and talked
with her for a while before leaving. Their next stop, according to the defendant, was at a
house located off Lamar Avenue, where they talked to a woman for approximately thirty
minutes. Next, the defendant said, the group proceeded to the Kansas Court housing project
to pick up his son. Learning that the defendant’s son was not there, they spoke to the child’s
maternal grandmother for approximately ten minutes, gave her money, and left. The
defendant stated that he parted company with Cecil, Mr. Seals, and Mr. Seals’s girlfriend at
approximately 2:15 or 2:30 a.m on March 2, 2008, when they dropped him off at his
girlfriend’s apartment. The defendant stated that his girlfriend, Ms. Sheila Jones, was not
home when he arrived, but her daughter, Keaira, and Keaira’s boyfriend were there.
According to the defendant, he and Keaira argued about Keaira being alone with her
boyfriend. The defendant said that he went to bed after the argument and that Sheila returned
home at approximately 5:05 a.m. on March 2nd.

        When Sergeant Max and Sergeant Stark asked the defendant whether Cecil had any
enemies, the defendant told them that Cecil and Mr. Hill had argued about two weeks earlier.
The argument began, according to the defendant, when Cecil, Ms. Smith, Mr. Hill, and Mr.
Hill’s girlfriend returned to Mr. Hill’s girlfriend’s apartment after drinking at a club.
According to the defendant, Mr. Hill’s girlfriend called the police after seeing Cecil slap Ms.
Smith. When the officers arrived, Cecil told them that there were drugs inside Mr. Hill’s
girlfriend’s apartment. Mr. Hill also lived in the apartment, according to the defendant, and
Mr. Hill and Cecil were both members of the Gangster Disciples. The defendant explained
that gang members were not permitted to call the police on other gang members. According
to the defendant, Mr. Hill wrote Cecil up for a violation of this rule through “Doc Holiday,”
and the Gangster Disciples were supposed to have held a meeting or a jury trial to determine
Cecil’s guilt, but Cecil failed to attend.

       The defendant told the officers that Cecil always carried a .45 caliber handgun,
although the defendant had not seen the gun when he was with Cecil on March 1st and 2nd.
According to the defendant, Cecil also kept an AK-47 assault rifle with two magazines under
a dresser at home, owned a sawed-off shotgun, and had access to a nine-millimeter handgun
that belonged to Ms. Williams. The defendant told the officers that when the murders were
discovered, Mr. Waddell asked Mr. Hill to call someone and find out what had happened and
that Mr. Hill called “Doc Holiday” and asked him what had happened or who had committed
the offenses.

       Sergeant Max testified that prior to the defendant’s March 4th interview the police had
not been investigating the Gangster Disciples for involvement in the homicides. As a result

                                             -14-
of the interview, however, Sergeant Max was assigned to investigate possible gang
involvement. Officers began following leads about the Gangster Disciples, and gang
members were interviewed, as were others who were interested in providing information.9

       As part of this investigation, Sergeant Max spoke with Cedric Atkins, who had earlier
reported hearing that Cecil had stolen $300,000 from a drug dealer. In addition, on March 7,
2008, Sergeant Max interviewed a confidential informant, who reported hearing that Cecil
had stolen $50,000 in drug money from “Doc Holiday.” The confidential informant was
shown color copies of photographs taken from Cecil’s home to verify his familiarity with the
Gangster Disciples. The confidential informant identified Cecil and “Doc Holiday.” Based
on this identification, the officers discovered a telephone number for “Doc Holiday” and
learned that he had been mentioned as the governor of the Gangster Disciples.

       Members of the Gangster Disciples reportedly became angry upon learning that the
gang had been implicated in the murders of women and children. On either Tuesday, March
4th or Wednesday, March 5th, after Priscilla Shaw—the mother of Cecil, the defendant, and
Nicole—discovered that her front door had been kicked in by Gangster Disciples, Ms. Shaw,
the defendant, Nicole, and Nicole’s children moved in with their cousin, Sharhonda Lane,
at her Gayle Street, Memphis home. While there, Nicole received calls on her cell phone,
which appeared to have originated from the telephone inside her apartment. The defendant
answered one of these calls and told Nicole that the caller sounded like a man disguising his
voice. Becoming “terrified,” Nicole went to the police department. A short time later a
marked police car, assigned to protect the house, arrived at the scene.

       When the defendant learned that the police had arrived outside, he became agitated
and “frantic.” He said that the officers were there to get him, that the police were trying to
“pin” the offenses on him, and that he was not going back to jail for something he did not do.
They should “just bury [him] with [his] brother,” he declared. The defendant grabbed a gun
belonging to Mr. Waddell and pointed it at his own head.10

      Ms. Lane went outside and told the two officers that the defendant was threatening
to commit suicide if they entered the house. One of the officers—Officer Laneeze
Stepney—asked Ms. Lane to call the defendant on her cell phone. She did, and Officer

        9
         Lieutenant Davidson said that officers received numerous leads from Crime Stoppers tips, including
some from “crackpots” and “psychics” telling them “ridiculous things.” Deputy Director Armstrong testified
that some of the Crime Stoppers tips indicated that the murders were gang-related, and both officers testified
that many of these tips implicated the defendant in the crimes.
        10
          Ballistics testing of this nine-millimeter gun showed that it was not used in the Lester Street
homicides.

                                                    -15-
Stepney spoke with the defendant for between five and seven minutes and convinced him to
allow the officers to enter the house. During this time, the defendant told Officer Stepney,
“[E]verybody think[s] I did it. I’ve been all on the news and the police saying I did it . . . .” 11
Shortly after he entered the residence, Officer Stepney was able to retrieve the gun and
attempted to calm the defendant, who was acting “real nervous like he had a lot on his mind.”
The officers told the defendant that they were not there to arrest him but were there to place
him and his family in protective custody. The defendant and his family were moved from
the Gayle Street home into a safe house under police protective custody, and the investigation
proceeded.

        During this time, the surviving children remained hospitalized at LeBonheur
Children’s Hospital. Dr. Michael Muhlbauer, an expert in the field of adult and pediatric
neurosurgery, testified that he performed surgery on C.J., Cedrick, and Ceniyah on March 3,
2008. Dr. Muhlbauer testified that when C.J. arrived at the hospital, he was moaning but was
awake, lucid, and able to follow commands. C.J. had trauma and swelling to his forehead,
part of a steak knife sticking out of his head, and a six-to-seven-inch laceration in his scalp
that extended down his forehead. C.J.’s skull was severely fractured, and large pieces of his
skull had been driven inward with a blunt force object. C.J. also had either a “glancing” stab
wound or two separate stab wounds on the back of his arm and chest, a superficial laceration
across his neck, a laceration on his right hand, and a laceration on his left thumb. Dr.
Muhlbauer said that without medical intervention C.J. would not have survived the injuries
he sustained.12

       Dr. Muhlbauer testified that Cedrick exhibited significant facial trauma and was
“essentially semicomatose” when he arrived at the hospital. Cedrick had sustained injuries
that were, in Dr. Muhlbauer’s opinion, consistent with having been beaten with boards,
including multiple fractures to his face, mid-face, and the lower portion of his skull, a
fractured nose which had been pushed inward, and a small skull fracture with bruising on the
back of his brain. In addition, Cedrick sustained stab wounds to one eye, his forehead, and
his neck. Dr. Muhlbauer testified that Cedrick would not have survived without medical
intervention.

      Dr. Muhlbauer testified that Ceniyah arrived at the hospital with significant head
trauma, which included a large cut in her scalp that exposed her bone. The right side of


        11
          Ms. Lane testified that the media had been discussing the defendant’s background on television
for “hours” and that at the time he threatened suicide the television news was showing a story profiling him.
        12
           Dr. Muhlbauer noted that he did not treat the external lacerations C.J. and Ceniyah sustained and
that a general surgeon would have treated these injuries.

                                                    -16-
Ceniyah’s skull had been pushed or crushed in with a blunt object, resulting in an “open-
depressed skull fracture.” A CT scan revealed that the covering of Ceniyah’s brain was
“probably cut” and that her brain was mildly bruised. Dr. Muhlbauer testified that Ceniyah’s
injuries were consistent with being struck with boards. She also had stab wounds to her left
lower extremity. Dr. Muhlbauer said that absent medical intervention, Ceniyah would not
have survived these injuries.

        Deputy Director Armstrong decided to have an officer attempt to speak with C.J. early
in the investigation because of the possibility that C.J. might die. The police considered C.J.
very important to the investigation because he was familiar with all of his father’s associates.
On March 5th, two days after they had undergone surgery, then Sergeant (now Lieutenant)
Caroline Mason of the Homicide Bureau was assigned to LeBonheur Children’s Hospital and
instructed to assess the surviving children and determine what information they could
provide. She attempted to interview C.J. that same day, but she found him “in and out” of
consciousness, cursing, “talking crazy,” and screaming out names, including “Cassandra” and
“Roderick.” Officers investigated C.J.’s statements and learned that Ms. Williams had a
sister named Cassandra, but after further investigation they concluded that she was
“obvious[ly]” not involved in the crimes. Lieutenant Davidson said that officers continued
to investigate any of C.J.’s statements that made sense. At some point, officers decided to
send Pat Lewis of the Child Advocacy Center to the hospital with Lieutenant Mason to talk
to C.J.

       On March 7, 2008, officers received a telephone call from a nurse at the hospital
informing them that C.J. was awake and rational and that the police needed to come talk to
him. During the ensuing interview, C.J. reported that “Uncle Junior”—the defendant—was
the person responsible for killing C.J.’s parents and their friends and for stabbing and
attacking him and his siblings.

        Lieutenant Mason called Deputy Director Armstrong and reported that C.J. had
implicated the defendant as the perpetrator of the crimes. He instructed her not to tell anyone
what she had learned until he had a chance to listen to the tape recording of C.J.’s
identification. After listening to the tape, Deputy Director Armstrong ordered the defendant
transported from the safe house to the Homicide Bureau, and he assigned Lieutenant Mason
and Sergeant Max to interview him.

        The defendant, who was under arrest at that time, was advised of his rights, signed a
written waiver, and agreed to speak with the officers. Lieutenant Mason told the defendant
that they wanted to clear up some things and determine whether he had any information to
add to what he had provided in his March 4th interview. She asked the defendant whether
he had any gang affiliation, and he replied that he was a Crip in prison. When she asked

                                              -17-
about his relationship with Cecil, the defendant stated that, on one occasion, Cecil had called
the police and falsely reported that the defendant had committed a robbery.

       Lieutenant Mason then asked the defendant to tell them again about what he did on
March 1st and about the last time that he had seen Cecil alive. According to Lieutenant
Mason, the defendant essentially repeated the account he had given during his March 4th
interview, varying in only one or two respects. Specifically, he told them that he, Cecil, and
Mr. Seals had gone to Mr. Hill’s apartment so that Mr. Seals could retrieve a gun. He also
told them that when Cecil introduced him to the men in the apartment where they had
purchased marijuana, Cecil had referred to the defendant as his “bitch ass brother who just
got out of prison.” According to Lieutenant Mason, the defendant “frowned” when he
recalled this introduction. After purchasing the marijuana, the defendant said that Cecil
drove him to an apartment complex to pick up his son, who was not home, and then dropped
the defendant off at Ms. Jones’s apartment. The defendant maintained that he did not return
with Cecil to the Lester Street home.

        At some point, the defendant stopped talking to Lieutenant Mason and Sergeant Max.
Deputy Director Armstrong, who had been observing the interview, decided to enter the
room and continue the interview himself. Deputy Director Armstrong testified that he
watched the defendant’s body language as he talked to the defendant about how horrific the
crimes were. He said the defendant seemed “really, really tight, like he was doing everything
he could not to talk to me.” According to Deputy Director Armstrong, the defendant gave
one-or-two-word answers to questions and would not engage in open conversation. Deputy
Director Armstrong said that “[m]ost of the time if I asked him a question, he would nod his
head or shake his head. But you could tell he was doing everything he could not to engage
me in an open conversation as to where we had open dialogue back and forth with each
other.”

        Deputy Director Armstrong said that, when he entered the interview room, he knew
that the defendant was very familiar with the criminal justice system and that the defendant
had only recently been released from prison. When Deputy Director Armstrong asked the
defendant whether he believed in God and in heaven and hell, the defendant said that he did.
Deputy Director Armstrong stated that the defendant was “struggling to try to maintain his
composure” and at times during the interview leaned forward as if he wanted to make a
statement but would then lean back. Deputy Director Armstrong said that he could tell the
defendant was hiding something.

      At one point, Deputy Director Armstrong allowed the defendant to grab his hands,
attempting to convey to the defendant that he knew something was weighing heavily on the
defendant’s mind. Although it appeared to Deputy Director Armstrong as if the defendant

                                             -18-
were about to speak to him, the defendant refused to engage in conversation and asked to go
to the restroom. Deputy Director Armstrong allowed him to go. When the interview
resumed, Deputy Director Armstrong asked the defendant what his family called him, and
the defendant replied, “Junior.” He asked the defendant if anyone else in his family was
referred to as “Junior,” and the defendant said, “[N]o.” In response to questions, the
defendant also told Deputy Director Armstrong that no one else in his family looked like him
and no one in the family had ever confused him with someone else in the family. When the
defendant was asked whether a member of his family would be referring to him if the person
used the name “Junior,” the defendant said yes.

       Deputy Director Armstrong then played the tape recording of C.J. stating that he had
been stabbed by his “Uncle Junior.” According to Deputy Director Armstrong, the defendant
became visibly upset and appeared as if he were about to cry. The defendant then told
Deputy Director Armstrong that he and Cecil went somewhere to get a gun, began arguing,
and continued to argue during the drive back to Cecil’s house. The defendant said that when
they returned to Cecil’s home, the argument escalated. When Cecil reached for a shotgun,
the defendant began shooting, using both his gun and Ms. Williams’s gun. The defendant
said that he then attempted to “get rid” of the children because they had seen him. The
defendant stated that he “stuck them,” using the knives from the kitchen drawer.

       According to Deputy Director Armstrong, the defendant began to cry and appeared
as if “he had gotten the weight of the world off his shoulders. But it was almost like I’m
defeated.” Deputy Director Armstrong testified that when he began to question the defendant
in greater detail about what had occurred in the house, using his knowledge of the crime
scene to frame the questions, the defendant asked for an attorney, and the interview ceased.
The defendant also asked to speak with his mother, Priscilla Shaw.

       During the early morning hours of March 8th, officers went to the safe house where
Ms. Shaw was in protective custody with other family members, informed her that the
defendant wanted to see her, and drove her to the police department. When she arrived, she
went into a room and spoke to the defendant. No one else was in the room with them. She
took the defendant’s hands and asked him what was happening. She asked if the police were
“trying to put it on him.” The defendant did not respond at first, but when he looked up, he
told Ms. Shaw that he “did it.” When she asked him, “why the babies,” the defendant said
they had seen him. He explained that he and Cecil had been arguing all day and that Cecil
had a gun. Ms. Shaw asked the defendant if Cecil had pointed the gun. The defendant said
that Cecil did not but was “just talking and swinging it.” When Cecil put the gun down, the
defendant said that he began shooting. The defendant said that he later rode a bicycle away
from the scene to the home of his girlfriend, Ms. Jones. Ms. Shaw testified that she “asked
him [why] the kids and he said they saw me. And I said but the baby, the baby. He didn’t

                                            -19-
say nothing, just shook his head. And I got up and told him I love him and I left.” The
defendant told both Deputy Director Armstrong and his mother that he committed the
offenses. He did not indicate that anyone else either assisted him or perpetrated the crimes.

       3. Investigation and Testimony Corroborating the Defendant’s Confessions

        After C.J. identified the defendant as the lone perpetrator and the defendant admitted
his guilt to Deputy Director Armstrong, the police investigation into gang involvement
ended. The investigation turned to determining whether the crime scene evidence was
consistent with and corroborative of the details of the defendant’s admissions and his
description of how the offenses were committed. Witness testimony at trial reflected the
results of this investigation.

       Officers located and seized C.J.’s yellow Magna bicycle, which the defendant
admitted to riding away from the scene, in a shed behind Ms. Jones’s Memphis residence.
 Although officers hoped to find blood from the victims on the bicycle, only genetic material
from an unknown male was found on the bicycle. Neither the victims’ blood nor the
defendant’s DNA was found on it.

        Keaira Jones testified at trial that at 10:00 or 10:30 p.m. on March 1, 2008, the
defendant and Cecil came to her home and that both appeared to be intoxicated. When she
told them her mother was not home, Cecil wanted to leave, but the defendant left only after
she allowed him to enter and search the apartment for her mother.

        Keaira testified that the defendant returned between 3:00 and 4:30 a.m. She allowed
him to enter the apartment, but she returned to her bedroom, closing the door.
Approximately five minutes later, he knocked on her bedroom door and asked to talk to her.
She was putting her son to sleep and told the defendant that she would speak to him shortly,
but she fell asleep and never opened the door. Before falling asleep, she heard water running
in the bathroom. Keaira was asleep when her mother came home, and the defendant and her
mother left together the next morning. After they left, Keaira noticed bleach spots on the
brown rug in the bathroom. She also noticed that a bottle of Clorox bleach was in the
hallway and not stored in its usual place. Keaira denied arguing with the defendant about
being home alone with her boyfriend.

       Ms. Jones testified that she met the defendant through Nicole, with whom she had
worked, and that she was aware that the defendant had moved in with Nicole after being
released from jail. Ms. Jones testified that when she returned home at approximately 5:00
a.m on March 2nd, the defendant was lying in her bed, which surprised her because he knew
she would be out with girlfriends. He told her that “ladies don’t come in at five o’clock in

                                             -20-
the morning,” and they went to sleep. They got up at 10:30 or 11:00 a.m. on March 2nd, and
she testified that she dropped him off at Nicole’s apartment.

         On Monday, March 3rd, the defendant asked Ms. Jones to pick him up at Cecil’s
Lester Street home, but when she arrived, the street was blocked by ambulances, fire trucks,
and police cars. The defendant was “kind of upset and shaking” and told her that something
had happened to his brother. Ms. Jones testified that the defendant never told her that he
knew what had occurred at Cecil’s home. After learning that the defendant had been
arrested, Ms. Jones called him and visited him in jail. A week or two after his arrest, she
asked the defendant why he would not assist the police in their investigation, and he replied
that “they got to figure it out.” Ms. Jones testified that she had seen the defendant with a gun
on one or two occasions, and she described the gun as having a “wheel” and being “blue with
a little blue on it.”

       Willie Boyd Hill, Jr., Cecil’s best friend, testified that he had visited Cecil’s home on
Lester Street on several occasions. Mr. Hill said that he knew “Doc Holiday,” “Cato,”
“Dread,” and Mr. Seals because he, Cecil, Mr. Seals and the other men were all members of
the Gangster Disciples. He stated that the defendant was a member of the Crips gang.

        Mr. Hill testified that on the evening of March 1, 2008, Mr. Seals, Cecil, and the
defendant came to his Memphis apartment between 10:30 and 11:30 p.m. Mr. Seals, who
had just been released from jail, came to retrieve a pistol he had left with Mr. Hill. The gun,
Mr. Hill said, fired .380 caliber bullets, which were loaded by inserting a clip, and he added
that the gun ejected shell casings. The parties stipulated at trial that the gun Mr. Hill returned
to Mr. Seals on March 1, 2008, was a P-232 Sig Sauer handgun, a .380 caliber pistol, which
could hold up to eight rounds, consisting of a seven-round magazine and a single round in
the chamber.

      Mr. Hill testified that “Trell,” another gang member, went outside to talk to Cecil
while Mr. Seals was in Mr. Hill’s apartment. Mr. Seals took the loaded gun and left with the
defendant and Cecil. Mr. Hill did not see any of them again until the day the homicides were
discovered.

       Mr. Hill said that he learned of the homicides from Mr. Waddell, who called him on
March 3rd and said that something had happened to Cecil’s family. Mr. Hill went to the
crime scene, and he recalled the defendant being there as well. Upon seeing Mr. Hill, the
defendant asked Mr. Waddell why he had called the men who had committed the crimes. Mr.




                                               -21-
Hill testified that he told the police he had called “Cato” 13 from the crime scene, stated,
“[Y]a’ll went too far,” and asked him directly if he and “Doc Holiday” had something to do
with the murders. “Cato” denied any involvement in the murders.

        Mr. Hill acknowledged that he and Cecil had a “falling out” on the evening of
Valentine’s Day, less than a month before the murders. According to Mr. Hill, Cecil, Ms.
Williams, Ms. Smith and he had gone out drinking at a club. Afterwards, they went to Mr.
Hill’s girlfriend’s apartment, where Cecil and Ms. Smith began arguing. Mr. Hill testified
that, when Ms. Smith ran upstairs into his girlfriend’s apartment, Cecil followed her and
began beating on the doors and windows and cursing both Ms. Smith and Mr. Hill’s
girlfriend. Mr. Hill’s girlfriend called the police, and when they arrived, Cecil told them of
marijuana inside the apartment. Cecil’s report to the police angered Mr. Hill because Cecil
knew that Mr. Hill also stayed at the apartment and that Gangster Disciples were not
supposed to call the police on each other.

       Mr. Hill testified that he told “Cato” what had happened and that “Cato,” in turn,
informed “Doc Holiday.” “Doc Holiday,” whom Mr. Hill described as the Gangster
Disciples’ “coordinator” over the Orange Mound area, asked Mr. Hill to explain to
“Dread”— the chief of security over the area—what he had reported to “Cato.” Later, Mr.
Hill was summoned to an apartment on Dwight Street in Memphis, where he, “Doc,” and
“Dread” discussed the matter, and “Dread” told him to “write [Cecil] up.”

       Mr. Hill explained that a “write-up” is a disciplinary notice within the gang that results
in punishment. Possible punishments for a write-up, he stated, include “[p]unches to the
chest, punches to the lip, pumpkin head, three minutes to a DV” or “death violation.”
Generally, Mr. Hill explained that when a death violation is ordered, it applies only to the
individual gang member and not to everyone associated with him. Mr. Hill denied writing
Cecil up for a violation of gang rules. He also explained that if the Gangster Disciples had
wanted to kill Cecil, they easily would have been able to get him alone and would not have
waited until 2:00 a.m. Mr. Hill said that he had never heard of any gang murders involving
innocent women and children, and he stated that if the Gangster Disciples had entered a
home to kill someone, they would have been armed and would not have run out of bullets.
Also, Mr. Hill said that “Dread” and “Doc” would not have harmed Cecil, with whom they
were close friends.




        13
          The person known by this nickname, Markel Lester, testified for the defense at trial and spelled
the nickname as “K-A-D-O-E.” The nickname is spelled “Cato” in the record on appeal and in the Court of
Criminal Appeals’s opinion, and we utilize this spelling as well.

                                                  -22-
       Mr. Hill acknowledged that he had heard that “Cato” and “Doc” approached Cecil
about his gang violation and that Cecil told them to “shove it” and would not accept the
discipline. Mr. Hill also had heard that Cecil had hung up on “Doc” and that “Doc” had slept
with Ms. Williams. Mr. Hill also agreed that he and Cecil, whom he described as
“outspoken,” had argued on occasions other than Valentine’s Day 2008, and he said that
Cecil and “Doc” had disagreed over drywall work that Cecil performed at “Doc’s” apartment.

       Mr. Hill testified that until mid-February 2008, the overseer or head of the Gangster
Disciples in Memphis was Eric Brown, known as “Big Easy,” and that Mr. Brown had been
murdered. Mr. Hill was unaware until his trial testimony that Vernon Motley, whom the
police suspected of murdering Mr. Brown, was a member of the Traveling Vice Lords and
that Mr. Motley’s girlfriend, Tammy Randolph, was Cecil’s first cousin.

       Nevertheless, Mr. Hill denied being an active gang member at the time of the
killings.14 He said, “None of us was participating in any gang meetings or nothing like that
but we still had love for it.” He testified that he had contacted the police and cooperated with
them and had submitted both a hair and a DNA sample. He said that he did so because Cecil
was his friend and Cecil’s family was like his own family.

        Stacey Young, a friend of Cecil’s, testified that at approximately midnight on
March 2, 2008, Cecil, the defendant, and Mr. Seals came to her home in Cecil’s blue Lincoln.
Cecil introduced the defendant to Ms. Young, and they talked “for a minute.” Before the
three men left, Cecil told Ms. Young that he would return after dropping off Mr. Seals and
the defendant. When Ms. Young called Cecil about an hour later, at approximately 1:00
a.m., he told her that he had not “made it off Pendleton” and indicated he still planned to
return, but he never did return.

       Ms. Smith testified that she had never been a gang member, although Cecil and his
friends were Gangster Disciples. She, too, described the Valentine’s Day falling out between
Cecil and Mr. Hill, and she confirmed that it originated when Cecil informed the police of
the marijuana in Mr. Hill’s girlfriend’s apartment. Ms. Smith also described the dispute
between Cecil and “Doc Holiday” over “Doc’s” failure to pay Cecil for repair work he had
done at “Doc’s” apartment.




        14
           Mr. Hill acknowledged having prior convictions for manufacturing, delivering, and selling a
controlled substance; possession of cocaine with the intent to manufacture, sell, or deliver; possession of
marijuana; and felon in possession of a handgun. Mr. Hill was on probation at the time of the defendant’s
trial.

                                                   -23-
        Ms. Smith also testified that she had seen Cecil, the defendant, and Mr. Seals at
approximately 12:30 a.m. on March 2, 2008, at her Kimball Avenue apartment. When she
went outside to talk with them, Cecil told her that he would return, but she told him not to
come back. After Cecil left, she called him three times. The first time she called, at
approximately 1:15 a.m., she spoke to him. The second time she called him, at
approximately 1:30 a.m., he did not answer. But when she called him a third time at 2:00
a.m., they spoke. During this last telephone call, Ms. Smith testified that she heard Cecil and
the defendant arguing and using profanity. Ms. Smith recounted her attempts to locate Cecil
on March 2nd and 3rd and related that she called the police on the afternoon of March 3rd
and waited outside the Lester Street home for them to arrive. Ms. Smith confirmed that her
son, Cecil II, was one of the children killed in the house.

        Charity Wright, an employee of Crickett Wireless, testified about Cecil’s cell phone
records and the calls he received on March 2, 2008. Ms. Wright testified that Ms. Smith
called Cecil’s number at 12:59 a.m. and that the call lasted seven minutes and ten seconds.
Ms. Young called Cecil’s number, through a possible three-way call, at 1:06 a.m., and the
call lasted two minutes and ten seconds. Ms. Smith called again at 1:11 a.m.,1:25 a.m., and
1:30 a.m., but the calls were not answered. Ms. Smith called Cecil again at 1:37 a.m., and
the call was answered, but it lasted only twenty-eight seconds. Ms. Wright said the next call
came at 3:11 a.m. and went to voice mail.

       Nicole testified that she was aware that Cecil and Mr. Hill had referred to themselves
as Gangster Disciples, but she stated that they did not “mingle” on the streets with gangs or
gang members. She was also aware that the defendant was a member of the Kitchen Crips.
Nicole testified that the defendant moved in with her after his release from jail and that she
had been too frightened of him to ask him to leave. Nicole explained that the defendant had
held a “grudge” against his family for not visiting him more often while he was in jail, and
she said that the defendant expressed his feelings about this grudge to her daily.

        Nicole testified that Cecil and two of his children picked up the defendant from her
apartment for a barbecue at Cecil’s home in the early evening of March 1st. Nicole did not
see the defendant again until approximately 10:00 or 11:00 a.m. the next morning, Sunday,
March 2nd, when she saw him outside her apartment in Ms. Jones’s car and saw the
defendant and Ms. Jones having a “physical altercation” in the front seat of Ms. Jones’s car.
According to Nicole, and contrary to Ms. Jones’s testimony, the defendant left again with
Ms. Jones without coming inside Nicole’s apartment and did not return to Nicole’s apartment
until that evening.

       Nicole said that she went to Cecil’s house at approximately 6:30 p.m. on March 3rd
with the defendant and her cousin Tammy Randolph. Ambulances, fire trucks, and police

                                             -24-
cars were already at the scene when they arrived, and the police would not allow her to enter
the house. Nicole said she did not learn who had died and who had survived at that time.
According to Nicole, the defendant instructed her not to talk to the media, explaining that
they would likely blame him for the murders because of his criminal background. She also
recalled the defendant becoming very angry when Mr. Hill and “Trell” were called to the
scene, and she recalled the defendant telling her, while they were still at the scene, that he
believed Mr. Hill and “Trell” had committed the homicides. Nicole described Cecil and the
defendant as “gun fanatics.” She said the defendant never told her that he was at Cecil’s
home at the time of the homicides or that he rode C.J.’s bicycle away from the scene.

        Jessie Sr. testified that when he learned of the killings, he believed they were gang-
related because Cecil had told him that he was attempting to leave the Gangster Disciples and
was worried that they might harm him. Cecil had asked Jessie Sr. to move in with him,
explaining that gang members respect the family of other gang members and would be
unlikely to harm Cecil if Jessie Sr. were living with him. Although Jessie Sr. moved in with
Cecil, he lived there only about a month because several of his own brothers warned him that
he would likely be killed if he interfered in Cecil’s situation with other gang members.

        Jessie Sr. testified that Cecil and the defendant had a normal relationship, although
it bothered the defendant when Cecil told others that the defendant had recently been released
from jail. Jessie Sr. said that Cecil’s children liked the defendant and that the defendant
spoiled them with junk food. Jessie Sr. recalled seeing a gun on the counter at Cecil’s home
the evening the group gathered to watch the basketball game, which he later learned belonged
to the defendant. Jessie Sr. described the gun as “kind of like a powder blue,” stated that it
was “a revolver, the kind with the thing that turn[s,]” and said that it was the type of gun that
does not eject shell casings. Jessie Sr. recalled seeing Cecil move the gun out of reach,
commenting that the children might mistake it for a toy. Jessie Sr. said Cecil told the
defendant that he had moved his gun.

       Jessie Sr. agreed that the defendant never told him what had happened to Cecil prior
to the discovery of the bodies. However, he said that the defendant had called him a few
days before trial and told him what he knew about what had occurred inside Cecil’s house.
Jessie Sr. provided no further details about what the defendant told him during this phone
call.

       Mr. Waddell testified that, on March 1, 2008, he and Cecil visited “Doc Holiday”
during the day because “Doc Holiday” wanted Cecil to perform some maintenance work for
him. According to Mr. Waddell, the defendant and Cecil were not arguing during the time
he spent with them on March 1st. Mr. Waddell recalled seeing the defendant with a black
and silver gun that evening, instead of the blue revolver the defendant ordinarily carried.

                                              -25-
        Two of the child victims also testified. C.J., the oldest surviving victim, was in fifth
grade by the time of the trial. He had undergone many surgeries, according to his maternal
grandmother, and additional surgeries would be required. C.J. testified that in the Lester
Street house he shared a single bedroom with his brothers. He had slept on the top bunk bed
and his brothers, Cedrick and Cemario, had slept on the bottom bunk. His older sister used
the other bedroom,15 and his parents’ bedroom was in the back of the house. C.J. recalled
that, on the night of the attacks, he was watching television in his sister’s room because the
television in his room was not working. Hearing a gunshot, C.J. walked out of his sister’s
room and into the hallway. C.J. recalled peeking into the living room and seeing “my Uncle
Junior point a gun toward my daddy,” who was not saying anything. C.J. testified that he
saw “some smoke and sparks come out [of] the gun” and then looked “down on the ground”
and “saw [a] dude on the floor[],” who was wearing a black shirt and black pants.

      C.J. testified that when he heard another gunshot, he “peeked” through the door,
walked into the hallway, and saw the defendant shooting at a woman who was on the arm of
the couch. C.J. did not recognize the woman, but he recalled that she was telling the
defendant that she loved him, but the defendant “just kept on shooting.”

       C.J. said that he then returned to his sister’s room and sat down on the bed. Hearing
footsteps coming toward the door, he turned and saw the defendant holding a “handheld
knife,” which C.J. described as the type that opens and closes. C.J. said that when the
defendant cut him on his neck, he told the defendant that he loved him, but the defendant
replied, “[N]o, you don’t.” C.J. then lay down on the bed, and Cecil II began crying. C.J.
heard the defendant then say to Cecil II, “[D]on’t worry about it, you ain’t going to get hurt.”

        C.J. testified that he tried to retrieve the telephone from the hallway to call the police,
but before he could do so, he saw the defendant’s feet in the doorway and heard the
defendant ask him what he was doing. When C.J. told the defendant that he was going to call
the police, the defendant said he would kill C.J.’s parents and Cecil’s friends if C.J. did so.
C.J. recalled asking the defendant if he could use the bathroom and noticing that the
defendant had a “kitchen knife” in his hand. C.J. recalled the defendant allowing him to go
to the bathroom, but stated that the defendant “ma[d]e [him] put [his] head in the tub.” When
he had done so, the defendant tried to stab C.J. in the chest, but C.J. put his hand up to block
the blow, and the knife went into his head instead.

        C.J. recalled seeing his mother, Ms. Williams, in the doorway of the bathroom saying
that she did not want to die. The defendant asked her for Cecil’s cell phone and car keys, and



       15
            C.J.’s older sister, Cierra, was not at home at the time these crimes were committed.

                                                    -26-
Ms. Williams replied that the keys likely were in Cecil’s car. C.J. recalled the defendant then
saying to Ms. Williams, “sorry because I ain’t let your husband or your husband’s friends get
away with it and the kids.” Then C.J. heard what he described as a “huge fall on the ground.”

       C.J. testified that he next saw the defendant walking in the hallway with a garbage bag
and another kitchen knife, going into C.J.’s sister’s bedroom. C.J. heard someone yelling and
heard the defendant saying “shut up.” C.J. then heard Cemario ask to use the bathroom and
saw blood dripping from Cemario’s head onto the rim of the toilet seat. He said that Cemario
asked the defendant if he could return to his room and the defendant said that he could. Next,
C.J. said, the defendant went into the kitchen, grabbed another knife, and entered the
bedroom of C.J. and his brothers. C.J. said he saw Cemario lying on the bed and the
defendant stab Cemario, who then fell on the floor. C.J. said he heard “rambling” in the
hallway near the laundry room, as if the defendant were attempting to move something out
of the way. C.J. then fell asleep in the bathtub and heard nothing more that night.

        C.J. testified that when he awoke, he saw firemen in his bedroom looking at Cemario.
One of the firemen came into the bathroom and got C.J. out of the bathtub. C.J. was
transported to the hospital by ambulance. C.J. said that no one was with the defendant during
the attacks and that the defendant acted alone. By the time of trial, more than two years had
passed since C.J. identified the defendant as the lone perpetrator of the crimes. During that
time, C.J. had not wavered in his identification of the perpetrator.

        However, C.J. also testified at trial that he had told “Ms. Pat” in a previous interview
that on the same night that the “bad thing” happened, a woman named “Cassandra” knocked
on the door and said that she needed to use the bathroom. She and some other people,
including a man wearing a mask with “[a] little bit of blood” on it, entered the house. C.J.
had never seen the man before, but he recalled Cecil referring to the man as “Roderick.” C.J.
did not recall who allowed “Roderick” to enter the house, although he acknowledged that he
had previously told “Ms. Pat” that Cecil allowed “Roderick” to enter the house and that he
was mad at Cecil for doing so. C.J. testified that “Roderick” said something to Cecil about
the gang and also told Cecil, “[Y]ou got too big, boy.” According to C.J., “Roderick” fired
a gun at Cecil and said, “[N]ever stop playing with the gang boy, . . . you never know what
would happen, boy.”

       On redirect examination, C.J. again identified the defendant as the person who stabbed
him in the head, shot his parents and their friends, and hurt his brothers and baby sister.

       On recross-examination, C.J. testified that he saw a fight in the living room between
Cecil and the man in the mask and again maintained that the man was shooting at Cecil. He
also agreed that he had met with “Ms. Caroline” and “Ms. Pat” at “Ms. Pat’s” office, and had

                                              -27-
said, when they asked him how he knew some of the things he told them, that his “granny”
had told him.

       Cedrick, who had been five years old at the time of the assaults and murders, testified
as well and also identified the defendant as his assailant. By the time of trial, Cedrick was
eight years old and in the third grade. Cedrick recalled living on Lester Street with his
family. Cedrick said that the defendant had stabbed him on the nose, forehead, and wrist and
that no one else was with the defendant.

        Cedrick testified that the attacks occurred at night but before he had eaten dinner. He
did not recall hearing gunshots that night and also did not recall seeing the defendant shoot
anyone. He said that no one had told him that the defendant shot anyone. Cedrick testified
that the defendant got the knife he used to stab them from his car, but he could not remember
the color of the defendant’s car. Cedrick said that, although he had not seen the defendant
stabbing his parents, he recalled that his parents and their friends were stabbed. Cedrick said
that when his parents were killed, all of the children, other than one of his brothers and the
baby, were locked in his sister’s bedroom. Cedrick stated that his brother had told him that
Ms. Williams was injured while she was in the living room changing the baby’s diaper.

       Cedrick testified that he heard Ms. Smith on the telephone calling the police, and he
recalled that Nicole, whom he referred to as “Auntie Foxy,” was also present when they were
attacked. Cedrick acknowledged previously telling “Ms. Pat” and C.J. that his father never
should have opened the door. Cedrick explained that a fight began after his father opened
the door, and he remembered many people fighting that night, and specifically recalled a
man, whom he did not know, fighting with his father and his father’s friends. Cedrick also
remembered C.J. sneaking out of the house after the defendant had stabbed him and riding
on his bicycle to his grandmother’s home. Cedrick testified that he had sneaked up on his
“Uncle Jessie,” got on his own bike, and also rode away to his grandmother’s home. Cedrick
recalled that when he and C.J. left, everyone was still alive in the house and were talking,
singing, and having fun.

       On redirect examination, Cedrick said that he had been in his sister’s room when the
defendant stabbed him, and he also recalled telling “Ms. Pat” that the defendant stabbed him.
On recross-examination, Cedrick testified that he had talked to “Ms. Pat” after he had been
living with his family for a period of time and after he had listened to others discussing the
homicides and attacks.




                                             -28-
                               4. The State’s Expert Testimony

        The prosecution’s proof also included the testimony of a medical examiner and
forensic experts in hair and DNA analysis, as well as that of an expert in firearms
identification. Dr. Lisa Funte, a Shelby County medical examiner and expert in forensic
pathology, testified regarding the victims’ autopsies, three of which she had performed
herself and three of which were performed by Dr. Miguel Laboy, another medical examiner
in the Shelby County Medical Examiner’s Office, who did not testify.

       Dr. Funte testified that Mr. Seals, whose autopsy had been performed by Dr. Laboy,
died as a result of multiple gunshot wounds, including: one to his mouth, which fractured
some of his teeth and his jaw and then continued into his neck, fracturing the first and second
cervical vertebrae; one to his midline upper chest area, in which the bullet injured his left
lung and exited from his back; and one to the side of his chest near his right armpit, in which
the bullet traveled through his right chest cavity, injured his right lung, and penetrated into
the muscles of his back.

      The toxicology report showed that Mr. Seals had marijuana and ethanol in his system.
 However, Dr. Funte explained that ethanol is produced as the human body decomposes, so
she was unable to determine whether the ethanol resulted from alcohol consumption or
decomposition, or both.

        Dr. Funte testified that Ms. Williams, whose autopsy she had performed, sustained
five gunshot wounds: one to the left side of her head that resulted in injuries to the skull and
brain; one to the right side of her chest, which entered near her breast and exited on the left
side of her back, causing injuries to her lungs and vertebral column; one to her left leg, which
injured her muscles, tibia, and fibula; one to her right thigh, which injured the soft tissue and
muscle; and one to the left side of her abdomen, which injured soft tissue and muscle. Ms.
Williams died of the multiple gunshot wounds she sustained. Ms. Williams’s toxicology
report indicated the presence of ethanol, but Dr. Fuente again could not determine if the
ethanol stemmed from alcohol consumption or decomposition, or both.

        Dr. Funte testified that Ms. Roberson, whose autopsy she performed, also died of
multiple gunshot wounds. Ms. Roberson had four gunshot wounds: one to her right thigh,
which injured the soft tissue and muscle of her thigh, traveled through the femoral vein, and
continued through the soft tissue and muscle on her right side toward her back; one to her left
knee, which injured soft tissue and muscle; one to her left calf, which injured soft tissue and
muscle; and one to her left thigh, which again injured soft tissue and muscle. Dr. Funte
testified that, judging from the wound pattern on Ms. Roberson’s legs and the wound pattern
on her jeans, she had been wearing the jeans when she was shot and her clothes had been

                                              -29-
rearranged later. Dr. Funte testified that the gunshot injury to the femoral vein in Ms.
Roberson’s right thigh would have resulted in a great deal of blood loss but would not have
caused immediate death. Dr. Funte testified that Ms. Roberson could have died as quickly
as five or ten minutes after receiving the wound or survived up to twenty or thirty minutes,
depending on the circumstances. According to the toxicology report, no drugs or alcohol
were present in Ms. Roberson’s system.

        Dr. Funte testified that Cecil, whose autopsy was performed by Dr. Laboy, also died
of multiple gunshot wounds. Cecil sustained eight gunshot wounds: one to his head, which
fractured his jaw; one to his neck, in which the bullet traveled through the soft tissues and
muscles of his neck before fracturing and penetrating his trachea and larynx; one to his chest,
in which the bullet traveled through muscle and soft tissue and into his back; one to his right
thigh, in which the bullet perforated through the thigh, injuring soft tissue and muscle; two
to his left thigh, in which the bullets injured soft tissue and muscle; one to his left leg, in
which the bullet injured soft tissue; and one to his left foot. The toxicology report indicated
Cecil also had ethanol in his system, although the source, again, could not be determined. Dr.
Funte testified that fiber found in the area around the entry of the gunshot wound to Cecil’s
head was consistent with the shooter placing a fiber-filled pillow over Cecil’s face and firing
the gun through the pillow.

       Dr. Funte also testified that a black hair and a white hair were collected from Ms.
Williams’s hand and that hairs were collected from Ms. Roberson’s back, buttocks, and right
thigh. She further stated that a green substance that appeared to be marijuana was collected
from Cecil’s hand, the color of Cecil’s skin beneath the green substance was tan or brown,
and his hand below the substance was stained with blood.

        Dr. Funte also performed the autopsy on one of the child victims, two-year-old Cecil
II. She testified that Cecil II died of multiple sharp force injuries, including multiple incised
and stab wounds to his head, torso, and extremities. He sustained seven stab wounds that
penetrated and fractured his skull and injured the right middle meningeal artery, causing
epidural hemorrhage and edema of the brain with herniation. Among other injuries, Cecil
II had a puncture-style stab wound to the right side of his head, two puncture-style stab
wounds to his left cheek, two incised wounds on the left side of his face near his eye, an
incised wound on his right ear, beginning at the top of his ear and continuing along the inside
of the ear, a group of incised wounds of varying lengths and an incised wound leading to a
stab wound on his torso, multiple incised and stab wounds on his back, and a mixture of
sharp force and blunt force injuries on the left side of his torso. Dr. Funte said that incised
wounds on Cecil II’s back and left wrist were parallel and equally spaced, which indicated
that the wounds were inflicted with a serrated knife blade. Cecil II also had an incised
wound and a puncture stab wound on the base of his right thumb.

                                              -30-
       Dr. Funte also identified abrasions and contusions on Cecil II’s body, which she
described as blunt force injuries. Cecil II had abrasions on the right side of his head, cheek,
upper and lower lips, and mouth. Dr. Funte testified that an abrasion on his head almost
formed the outline of a rectangle and was consistent with the perpetrator striking Cecil II on
the side of the head with a board. Cecil II also had a combination of an abrasion and a bruise
on the right side of his neck behind his ear and bruises on the left side of his neck and on his
elbow.

       Dr. Funte also noted discoloration on Cecil II’s right eyelid and cheek, which could
have been caused by impact force to his eye or could have been related to the skull fractures
and impact to the right side of his head. She stated that the nature of Cecil II’s injuries
suggested that he attempted to fend off his attacker. She also stated that the wound to his
skull would have been fatal without medical intervention. Had Cecil II sustained only that
wound, he could have survived from as little as several minutes to as long as one day. Had
he received medical treatment within an hour of receiving his injuries, he could possibly have
survived, although it was not “necessarily probable.”

        Dr. Funte testified that four-year-old Cemario, whose autopsy Dr. Laboy performed,
also died of blunt force and sharp force injuries. She said Cemario had blunt force trauma
to his head, with lacerations and bruises, multiple linear depressed fractures of the calvarium
and the base of his skull, deep scalp and subarachnoid hemorrhage, and multiple contusions
to his brain. Dr. Funte also noted areas of abrasions and lacerations on Cemario’s head, as
well as an incised wound above his left ear that tore part of his scalp away from his skull.

        In addition, Cemario had incised wounds to his head, neck, and right hand. A stab
wound to his chest went all the way through his body, injuring his left lung and
hemidiaphragm, as well as his stomach, spleen, and liver. Cemario also sustained linear
abrasions and bruises on his left arm, abrasions on his forehead, an abrasion and bruising on
his right ear, a gaping incised wound to his neck, abrasions on his right arm, and an incised
wound on his ring finger, which was consistent with Cemario having attempted to defend
himself by holding up his hand or grabbing the knife.

       Dr. Funte testified that the blunt force trauma to Cemario’s head alone would have
resulted in his death without medical intervention. Had Cemario sustained only this injury,
he could have survived from as little as several minutes to as much as many hours, although
the blow likely would have rendered him unconscious. The stab wound which passed all the
way through Cemario’s body also would have resulted in death, Dr. Funte explained.

       Dr. Funte testified that Cecil II had incised wounds and that Cemario had lacerations.
She said the majority of the incised wounds were superficial and not very deep. She also said

                                              -31-
the wounds could have resulted from a slashing cut from a knife. Dr. Funte was not able to
determine whether a serrated or smooth-edged knife was used in each injury. She identified
two injuries that had a unique pattern of equally spaced incised wounds, which was indicative
of a serrated blade. Dr. Funte said that while a serrated blade may not always leave such a
pattern, it will do so if dragged across the skin.

        Linda Otterstatter, a physical scientist forensic examiner in the Trace Evidence Unit
of the FBI laboratory in Quantico, Virginia, testified regarding the analysis of hair samples
removed from the crime scene. She had compared debris recovered from the crime scene
with hair samples from Cecil, Ms. Roberson, Ms. Williams, Cemario, Cecil II, the defendant,
and Mr. Hill. No head hair samples were submitted for Mr. Seals, C.J., Cedrick, or Ceniyah.
Head hairs recovered from Ms. Roberson’s back were consistent with the samples from Ms.
Roberson and Cecil II. Three other hairs recovered from Ms. Roberson’s back were
identified as head hairs, and two of them had Caucasian characteristics, while the third had
Mongoloid characteristics. These three head hairs were dissimilar microscopically to the
known head hair samples and were submitted for mitochondrial DNA analysis.

       Ms. Otterstatter testified that a hair recovered from Ms. Williams’s right hand was a
head hair similar to that of Ms. Williams, and as a result, was not submitted for further
analysis. Although a body hair fragment discovered on the left side of Cemario’s left hand
was not suitable for microscopic comparison, it was submitted for mitochondrial DNA
analysis. Hairs recovered from the northwest area of the bedroom were determined to be
head hairs similar to those of Cemario and thus were not submitted for further analysis.

       Deborah Polanskey, a forensic examiner in the mitochondrial DNA unit of the FBI
laboratory, testified that mitochondrial DNA is inherited from the mother alone and is not
individually unique, as siblings with the same mother share the same mitochondrial DNA
profile. Hair has thousands of copies of mitochondrial DNA, Ms. Polanskey stated;
therefore, mitochondrial DNA analysis of hair is highly effective.

       With regard to the Lester Street homicides, Ms. Polanskey conducted mitochondrial
DNA testing on four hairs: the three head hairs recovered from Ms. Roberson’s body—two
with Caucasian characteristics and one with Mongoloid characteristics—and the fragment
of a body hair recovered from Cemario’s left hand. She received known hair samples from
Cecil, Ms. Roberson, Mr. Seals, the defendant, and Mr. Hill, as well as Ms. Smith, the
mother of Cecil II, and Ms. Williams, the mother of C.J., Cedrick, Cemario, and Ceniyah.

      The two hairs with Caucasian characteristics had the same mitochondrial DNA
sequence, but this sequence differed from all the known samples Ms. Polanskey received.
The hair with Mongoloid characteristics lacked sufficient mitochondrial DNA to obtain a

                                            -32-
sequence. The mitochondrial DNA sequence of the hair found on Cemario’s hand was
concordant with Ms. Williams’s mitochondrial DNA sequence, meaning that the hair could
have come from Ms. Williams, C.J., Cedrick, Cemario, or Ceniyah. Ms. Polanskey
determined conclusively that the defendant could not have been the source of the hair.

       Special Agent Lawrence James, a forensic scientist for the Tennessee Bureau of
Investigation (“TBI”), testified as an expert in forensic serology and DNA analysis. He
analyzed numerous blood samples taken from the house and determined that each of them
matched to one of the victims and none matched the defendant. A partial DNA profile he
obtained from a bullet fragment recovered from the sofa in the living room was consistent
with a male, and Cecil could not be excluded as a contributor. He swabbed all of the green
beads recovered at the scene, but the sample produced only a partial profile, consistent with
male DNA that did not match that of any of the victims or the defendant.

       Special Agent James testified on cross-examination that his analysis of the defendant’s
pants, which were seized following his arrest, revealed only blood matching the defendant.
He found no blood of any of the victims on the defendant’s clothing. He also did not find
the defendant’s DNA on the knife blades, the knife handles, the victims’ bodies, the wood
boards, the glass, the pillows, the shotgun, the shell casings, or the shoes. He testified that
analysis of the scrapings from Ms. Roberson’s nails yielded a DNA profile of an unknown
female.

        TBI Special Agent Forensic Scientist Cervinia Braswell, an expert in firearms and
firearms identification, testified regarding evidence found at the crime scene and the nature
of the firearms used in the crime. She identified the bullets recovered from the victims and
the scene. With respect to Cecil, she explained that a nine-millimeter bullet was recovered
from his left thigh, a .380 caliber bullet was recovered from Cecil’s right scapula, and a .380
caliber auto bullet jacket fragment was recovered from his oral cavity, which had originally
been part of the .380 caliber bullet recovered from his neck. A nine-millimeter bullet jacket
fragment was also recovered from Cecil’s clothing. A nine-millimeter bullet jacket and
fragments were recovered from Ms. Roberson’s left thigh. Another nine-millimeter bullet
jacket and fragments were recovered from Ms. Williams’s left calf muscle. A nine-
millimeter bullet jacket and fragments were also recovered from Mr. Seals’s C-1 vertebrae,
in addition to the .380 caliber bullet recovered from the left side of his back.

       According to Special Agent Braswell, a .380 caliber firearm typically holds eight
cartridges, with seven cartridges in the magazine and one cartridge in the gun. A nine-
millimeter firearm typically holds thirteen rounds, with twelve rounds in the magazine and
one round in the gun. Special Agent Braswell testified that she analyzed the eight .380
caliber cartridge casings and the thirteen nine-millimeter cartridge casings recovered from

                                             -33-
the Lester Street crime scene. From her analysis, she concluded that all of the .380 caliber
bullets were fired from the same gun and that the nine-millimeter casings also were all fired
from the same nine-millimeter firearm. Special Agent Braswell testified that a single person
could have fired all eight bullets from the .380 caliber firearm and all thirteen bullets from
the nine-millimeter firearm in a short period of time. However, on cross-examination,
Special Agent Braswell acknowledged that she had no means of determining whether one
shooter or multiple shooters had perpetrated the Lester Street homicides.

        Special Agent Braswell acknowledged that a nine-millimeter firearm is capable of
firing .380 caliber rounds, but she opined that the .380 caliber casings recovered from the
crime scene were not fired from a nine-millimeter firearm. She explained that a .380 caliber
cartridge casing is shorter and has a slightly smaller diameter, causing the casing to bulge
when it is fired from a nine-millimeter firearm. Special Agent Braswell found no bulging
on the .380 caliber casings recovered at the Lester Street crime scene. She also
acknowledged that some nine-millimeter firearms hold only ten cartridges in a magazine and
one cartridge in the chamber. She reiterated, however, that the standard nine-millimeter
weapon holds twelve rounds in the magazine and one round in the chamber.

       Special Agent Braswell found no gunshot residue on the clothing of Cecil, Ms.
Roberson, or Ms. Williams. The lack of gunshot residue, she explained, meant either that
the shooter was far enough away from the victims when the gun was fired that it left no
residue, or that an object, such as a pillow, had been placed between the gun and the victim.
Although Special Agent Braswell discovered gunpowder particles on the bullet holes in Mr.
Seals’s shirt, without testing the gun used, she could only estimate the distance between the
shooter and Mr. Seals, stating that the gun was at least two feet and no more than four feet
away from Mr. Seals when fired. She was unable to determine which of the bullets
recovered from Mr. Seals’s body produced the residue.

                                   5. The Defense Proof

       After the prosecution rested its case, the defense presented the following proof.
Cedric Atkins, whom Sergeant Max had interviewed when the police suspected gang
involvement, testified that approximately a week and a half before the murders, he met Cecil
and briefly talked with him in a hotel room. According to Mr. Atkins, Cecil said that he
owed about $300,000 to the “mob” and advised Mr. Atkins to avoid owing people money.
Mr. Atkins understood the “mob” as a reference to a group of people who have money and
respect and sell narcotics or “whatever.” Mr. Atkins said that after Cecil’s murder, he
relayed his conversation with Cecil to an officer of the Memphis Police Department to whom
he had previously provided information. Mr. Atkins said that he answered the officer’s
questions truthfully, never demanded money from the officer or anyone else, and was not

                                             -34-
promised anything in exchange for the information. On cross-examination, Mr. Atkins
stated that he did not recall asking the police officer what was “in it for [him].” About a
week later, the officer contacted Mr. Atkins and informed him that the information was not
useful. Mr. Atkins acknowledged that he had been convicted of theft during the year prior
to the defendant’s trial, that he had not wanted to testify at trial, and had appeared at trial
pursuant to a subpoena.

      Sergeant Joseph Stark testified that he interviewed Mr. Waddell on March 4, 2008,
at approximately 8:00 p.m. According to Sergeant Stark, Mr. Waddell stated that
“Frank”—Mr. Hill—had told him that the victims were tortured and that Cecil’s fingers were
severed. Sergeant Stark recalled Mr. Waddell telling him about a “falling out” between Cecil
and “Doc” and about Cecil and “Frank” being members of the Gangster Disciples.

       Thirty-four-year-old Markel Vester, known as “Cato,” testified that he had joined the
Gangster Disciples in 1997 or 1998 when he was twenty-five or twenty-six years old. Mr.
Vester knew “Doc Holiday” and “Frank” but did not know whether “Doc Holiday” held any
rank in the Gangster Disciples in March of 2008. He confirmed that Cecil had been a
member of the Gangster Disciples and that Cecil performed maintenance duties at the
apartment complex where Mr. Vester lived. Mr. Vester testified that “Frank”—Mr.
Hill—had called him and told him about what had happened to Cecil and the other victims.
Mr. Vester recalled seeing Cecil approximately two or three weeks before his murder, but
Mr. Vester could not recall whether he had spoken to Cecil by phone on March 1st or March
2nd, although he also said that Cecil had not called him on the Saturday or Sunday prior to
his death. Mr. Vester confirmed that he had cell phone service through Cricket Wireless in
March 2008, and he provided his cell phone number.

        Ms. Wright, the Cricket Wireless employee who had previously testified for the
prosecution, returned to the stand to clarify her prior testimony about Cecil’s phone records.
Cecil’s phone records showed that Ms. Smith called him at 1:30 a.m. on March 2, 2008, and
that the call lasted fifty-nine seconds but was not answered. The records also showed Cecil
receiving another call from Ms. Smith at 1:37 a.m. on March 2, 2008, and that this second
call lasted approximately fifty-six seconds but either was not answered or went to voicemail.
Ms. Wright stated that she had been mistaken if she had previously testified that those calls
were answered.

       Ms. Wright further testified that Cecil had called Mr. Vester’s (“Cato’s) cell phone
number at 12:38 a.m. on March 2nd, with the call lasting seventeen seconds. Ms. Wright
said that this call could have been answered, but she had no means of determining whether
a conversation actually occurred. Records showed that Cecil called Mr. Vester’s number



                                             -35-
again at 12:39 a.m. and that this second call lasted forty-four seconds. Ms. Wright stated that
she could not determine whether the call was answered.

       William Carroll, an employee of AT&T, testified that an eight-second call had been
made at 11:35 p.m. on March 1, 2008, from the land line telephone inside the Lester Street
residence to Mr. Waddell’s number. Mr. Carroll was unable to determine whether the call
was answered.

       Dr. Nancy Aldridge, a psychotherapist and expert in the forensic evaluation of
children, explained the protocol for conducting a forensic interview of a child and expressed
her concerns about the manner in which C.J. and Cedrick’s interviews were conducted. Her
concerns included the fact that C.J. was interviewed shortly after being discovered, was
interviewed on four or five occasions, and gave different statements as to what had occurred.
She also expressed concern that the formal forensic interviews of the children did not occur
until August 13, 2008, more than five months after the incident, explaining that, given the
time that had passed, the children possibly had been exposed to information other family
members had about the crimes.

       Dr. Aldridge testified that C.J.’s initial account of the incident, in which he named
“Cassandra,” was “possibly” reliable, because persons observing the interview described C.J.
as appearing to relive the trauma as he gave the statement. Additionally, Dr. Aldridge noted
that the initial interviewers had appropriately used open-ended questions. She further
explained that, generally, initial interviews of children produce more accurate information
about a traumatic event because a child’s memory becomes less clear with the passage of
time and repetitive interviews, and may become contaminated by information learned from
others. Dr. Aldridge also explained that if a child is questioned after having already provided
an answer, the child may conclude that the initial answer was unacceptable and provide a
different answer.

       Dr. Aldridge also emphasized the particular importance of recording, from the
beginning, all statements of a child who has been severely traumatized. Recording, she
explained, preserves a record of the sequence of the child’s memory and how each memory
resurfaced. Dr. Aldridge testified that, although some of the records she reviewed in this
case referenced interviews of C.J., no transcripts or recordings of those interviews were
available, so she was not able to determine who had spoken to C.J., what questions had been
asked, or what information C.J. had given prior to the interviews that were actually recorded.

        Dr. Aldridge also expressed concerns about C.J.’s and Cedrick’s trial testimony,
stating, “The concern that I had for these children is they seemed to be very, very clear as
to what questions were going to be asked each one of them and what their answers were. So

                                             -36-
they were very prepared for the testimony.” Dr. Aldridge said that, although the reliability
of C.J.’s testimony was an issue for the jury, she questioned its reliability because C.J.
seemed to agree with whatever question was asked of him. She also noted that, given the
two-and-one-half-year period that had elapsed between the crimes and the trial, there was
potential for contamination of the children’s memories.

        On cross-examination, Dr. Aldridge acknowledged that she did not know whether
C.J.’s identification of the defendant as the perpetrator was wrong, but she reiterated that she
had “concerns.”

        The defendant testified as the final witness at trial. He provided a detailed account
of his activities on March 1, 2008, which was largely consistent with his initial statement to
the police. At trial, however, the defendant placed the blame for the murders on unknown
assailants and said he had been hiding under the bed in the master bedroom while the crimes
were committed. In particular, the defendant recounted going to Cecil’s home to watch a
basketball game on Saturday, March 1, 2008, along with Ms. Williams, the children, Jessie
Sr., Mr. Waddell, and Mr. Seals, who arrived a little later than everyone else. The defendant
said that Jessie Sr. had left early in the evening, but the defendant had remained at Cecil’s
home all evening, grilling, drinking, and smoking with Cecil and Mr. Seals.

       The defendant testified that sometime after dark, he, Mr. Seals, and Cecil left in
Cecil’s vehicle, first visiting “Frank”—Mr. Hill—at the Barclay Apartments so that Mr. Seals
could retrieve his gun. The defendant testified that Cecil, Mr. Seals, and “Frank” were
members of the Gangster Disciples and that he had joined the Kitchen Crips in the 1990s.
When they arrived at Mr. Hill’s apartment complex, the defendant stayed in the car, but Mr.
Seals and Cecil exited the vehicle. As they walked toward Mr. Hill’s apartment, a man
walked down the steps and talked to Mr. Seals and Cecil about the incident that had occurred
on February 14th, when Cecil told the police about the marijuana in Mr. Hill’s girlfriend’s
apartment. Mr. Seals eventually proceeded to Mr. Hill’s apartment alone, but Cecil remained
in the parking lot, arguing with the man who had walked down the steps to talk. The
defendant said Cecil often argued with others. The defendant said that the man was
attempting to calm Cecil, because Cecil and Mr. Hill were “into it,” and Cecil believed that
the man should be on his side. Mr. Seals was aware of Cecil’s argument with Mr. Hill, the
defendant said, and that was why Mr. Seals had gone alone into the apartment to retrieve the
gun.

       The defendant testified that, when the man attempted to hug Cecil, Cecil asked why,
pulled up his shirt, and told the man that he did not have anything on him. Cecil told the man
that he wanted to fight Mr. Hill and instructed the man to go get Mr. Hill. When the man
instead got into his black Impala, Cecil yelled, “y’all know where I stay at,” before returning

                                              -37-
to his own car. The defendant said that he and Cecil laughed and that he told Cecil that Mr.
Hill had tried to call him. When Mr. Hill called again, Cecil answered; however, the caller
was actually Mr. Seals, who was asking where they were. Cecil told Mr. Seals they were
waiting on him. Cecil also told the defendant that he had “punk’d” the man who had tried
to hug him. The defendant told Cecil to go inside and get Mr. Seals, but Cecil refused, so the
defendant went to Mr. Hill’s apartment. Inside, the defendant saw Mr. Hill, “Trell,”
“Tammy,” and a man whom the defendant did not know. The defendant told Mr. Seals that
he and Cecil were ready to leave, and Mr. Seals and the defendant left Mr. Hill’s apartment.

       The defendant said that he, Cecil, and Mr. Seals then went to Sheila Jones’s home.
The defendant and Cecil went inside, looking for Sheila, but she was not home. The
defendant stated that he caught Keaira’s boyfriend in one of the bedrooms with his pants
halfway down. When Keaira began cursing him, they left, going next to the home of
“Marilyn,” the maternal grandmother of the defendant’s son, where they stayed for less than
five minutes, because the defendant’s son was not there.

        The defendant testified that they next went to an apartment complex near GE
Patterson Church to pick up Ms. Roberson, Mr. Seals’s girlfriend. Ms. Roberson asked
whether they had any marijuana, and Cecil said that he knew where to purchase some, so they
went to an apartment at Kimball Cabanas, where they purchased $45 worth of marijuana.
Cecil got out of the car and then returned, telling the defendant that he wanted to introduce
him to “his folks.” According to the defendant, this term referred to members of the
Gangster Disciples. The defendant testified that four people were inside the apartment, and
the defendant and Cecil remained for approximately five minutes. As they were leaving, they
ran into Ms. Smith in the parking lot, and Cecil talked to her while the defendant proceeded
to the car. The defendant later yelled her name, and Ms. Smith came over to the vehicle and
spoke to everyone inside. Afterwards, she and Cecil talked in person for five minutes more,
before Cecil returned to his car and called Ms. Smith on his cell phone, and drove away.

        After leaving the apartment complex, they drove to another woman’s home and stayed
for thirty or forty minutes, before returning to Cecil’s house. According to the defendant, he,
Cecil, Mr. Seals, Ms. Williams, and Ms. Roberson were together in the living room, with Ms.
Williams drinking a wine cooler, and Ms. Roberson preparing a marijuana cigarette. Cecil
asked Ms. Williams to put clean sheets on the bed in the master bedroom, explaining that he
planned to allow Mr. Seals and Ms. Roberson to use the master bedroom, because Mr. Seals
had just been released from jail.

      The defendant said that he volunteered to change the sheets and that he was in the
master bedroom, with a quilt in his hand, when he heard two or three gunshots. The
defendant acknowledged that he was carrying a blue .44 caliber handgun at the time, but

                                             -38-
when he heard screaming, he hid beneath the bed. The defendant claimed to have heard only
a few shots at first, followed by more shots just seconds later. The defendant said he did not
know whether the shots were fired from the same gun or from different guns.

        The defendant said that he remained hidden beneath the bed for several minutes,
because he heard other noises, which he later realized were the family dog, but which he
initially believed were someone walking around in the bedroom where he was hiding. The
defendant said that he was unable to hear what was going on in other areas of the home, so
he eventually left his hiding place and went into the living room. The defendant said that he
discovered the victims’ bodies and believed all in the house, including the children, were
dead. He said that the front door was open and that he left the house on a bicycle he found
behind a door in the living room.

       The defendant recalled riding the bicycle to Ms. Jones’s home, where Keaira allowed
him to enter. The defendant said that he went immediately into Ms. Jones’s bathroom and
vomited. Using bleach, the defendant cleaned the vomit from the sink, but he dropped some
of the bleach on the floor. After brushing his teeth, the defendant knocked on Keaira’s
bedroom door, telling her that he needed to talk, but they never talked.

        The defendant admitted that he did not report what he had seen to the police,
explaining, “Y’all done heard testimony about the gangs. I’m in a gang. We don’t call the
police. It’s just that simple. We don’t call the police. It’s not part of what we do. If I call
the police, I’ll be just like my brother.” He also admitted that he had not been truthful when
he told Lieutenant Mason and Sergeant Stark on March 7th that Cecil had driven him back
home after they listened to the basketball game. The defendant reiterated that he did not tell
the police the truth about what had occurred when initially questioned because he “[doesn’t]
talk to police.”

       The defendant stated that Mr. Waddell had spoken to a woman who said that the
defendant was being reported by the media as the killer. The defendant also stated that he
and his family saw the news report. The defendant acknowledged that, after seeing his face
on a news report, he put a gun to his head and threatened suicide, saying that he was not
going back to prison for something he did not do and declaring that he should have died with
his brother. The defendant emphasized that the police officers who entered the house after
his suicide threat did not offer to take him to a hospital or a mental health facility.

       The defendant testified that before Deputy Director Armstrong interviewed him, he
had been in the Homicide Bureau for hours and was handcuffed to a table. The defendant
said that Deputy Director Armstrong played a tape recording of C.J. identifying him as the
perpetrator but did not play earlier taped interviews of C.J. identifying other individuals. The

                                              -39-
defendant stated that after playing the recording, Deputy Director Armstrong began
screaming about the defendant’s family and said that he was tired of “playing games.”
According to the defendant, Deputy Director Armstrong said that he knew the defendant was
“bullshitting” and that he was “sick of it.” The defendant said that Deputy Director
Armstrong began “pounding” on the table and demanding to have answers “now.”

        The defendant acknowledged telling Deputy Director Armstrong that Cecil had
reached for a shotgun and that he had then just started shooting. The defendant also recalled
then asking to see his mother. The defendant agreed that he told his mother that Cecil had
a gun and that when Cecil put down his gun, the defendant began shooting. He also admitted
telling his mother that he “stuck” the children.

        The defendant denied these statements at trial, explaining that, when he was
interviewed on March 7th, he had not slept since the homicides were discovered on March
3rd and that he had cried and had been depressed about what had happened. The defendant
stated that he asked to see his mother approximately three times during the interview, but
Deputy Director Armstrong told him that he would not be allowed to see anyone until the
defendant told him what he wanted to know. The defendant said that, earlier on March 7th,
he had told other officers that he did not kill the victims. The defendant insisted that his
statement to Deputy Director Armstrong admitting his guilt was not true, and he proclaimed
his innocence of the crimes, stating that he did not kill Cecil or any of the other victims.

        The defendant confirmed that, at the time of the homicides, his cousin, Tammy
Randolph, was dating Vernon Motley. At some point prior to the homicides, Ms. Randolph
told the defendant that the police were looking for Mr. Motley in connection with a murder
charge and gave him a .44 caliber firearm to keep for her. At Ms. Randolph’s request, the
defendant later gave this gun to another person—Ms. Randolph’s cousin “Antonio.”

       On cross-examination, the defendant admitted that when he left Cecil’s house on the
bicycle, he believed all nine people inside the Lester Street home were dead. He
acknowledged that he did not call 9-1-1 and that instead he went to Sheila’s home and went
to bed. He admitted that he did not go to work the next day or report the crimes to anyone,
although he went to dinner with Mr. Waddell on Sunday, March 2nd. The defendant
acknowledged that he also went to work Monday morning with his father but failed to tell
either of his parents about what had occurred while he was hidden beneath the master bed
at Cecil’s home. The defendant admitted also that he had lied to his family about the last
time he had seen Cecil.

      The defendant further stated on cross-examination that he did not attempt to escape
when he heard the first shots fired. Although the master bedroom had a door exiting to the

                                            -40-
outside of the home, the defendant said that he did not have the key that was needed to open
the door. The defendant also admitted that he did not attempt to use the cordless phone in
the master bedroom to call for emergency assistance. The defendant said that he remained
under the bed for approximately thirty minutes. He denied ever hearing the children scream
and claimed that he never heard anyone hitting the children with boards. The defendant said
that he remained under the bed while the killers altered the crime scene by gathering the shell
casings and pulling down Ms. Roberson’s pants. The defendant said that when he entered
the living room, Ms. Roberson was positioned in the manner emergency personnel
discovered her and as she appeared in the crime scene photographs. The defendant claimed
that he saw C.J. lying in the bathtub but said that he did not “pay attention” to the knife in
C.J.’s head. The defendant did not check on C.J. to determine whether he was alive and
believed that everyone in the house was dead.

       The defendant testified that he was in the interview room with Deputy Director
Armstrong for four or five hours, and the defendant maintained that he had confessed only
after Deputy Director Armstrong screamed at him and threatened him. The defendant
explained:

               He didn’t pound on the table. It was he asked me when he played the
       tape and after he played the tape, he played the tape what, [twelve, thirteen]
       times. And after he played it [twelve] to [thirteen] times, after I still told him
       I didn’t do it, that’s when he said I’ll kill your mother f***ing ass myself, you
       cold-hearted murdering killing mother f***er.

According to the defendant, Deputy Director Armstrong then said: “I got something for you.
I’m going to throw your ass on that 4th floor and I’m going to let them kill your mother
f***ing ass.”

        The defendant acknowledged that his testimony at trial regarding the events was not
consistent with what he had told his mother. The defendant said that he had leaned across
the table and told his mother, “[T]hey trying to put this on [me].” His mother asked for the
names of those who were trying to do this so that she could get him help. The defendant said
that he told her he did not know their names and that they were watching him. The defendant
said that he and his mother then grabbed each other’s hands, that he told his mother not to
worry, and then admitted to committing the offenses. The defendant acknowledged that he
told his mother that he and Cecil began arguing and that, after Cecil put down his gun, he had
begun shooting. The defendant also recalled both his mother asking him how he got away
from the house and his response that he rode away on a bicycle. The defendant agreed that
he had told his mother that he killed the children because they saw him. However, the
defendant insisted that he had lied to his mother and that his trial testimony was truthful.

                                              -41-
       The defense rested after the defendant’s testimony, and the prosecution called no
rebuttal witnesses.

       At the conclusion of the guilt phase, the jury convicted the defendant of six counts of
premeditated first degree murder for killing Cecil, Ms. Williams, Mr. Seals, Ms. Roberson,
Cemario, and Cecil II. The jury also convicted the defendant of three counts of attempted
premeditated first degree murder for the attacks upon C.J., Cedrick, and Ceniyah. The trial
then proceeded to the penalty phase on the six first degree murder convictions.

                                            B. Penalty Phase

       The prosecution relied upon the proof submitted at the guilt phase of the trial. In
addition, the parties stipulated that the defendant had been previously convicted of second
degree murder, which qualified as a felony involving the use of violence to the person. The
prosecution introduced three additional photographs of Cemario and Cecil II’s bodies as
proof of the (i)(5) aggravating circumstance.

       The State also presented victim impact evidence through the testimony of Ms.
Williams’s mother, Ida, and Mr. Seals’s aunt, Annette Mallory. Ida testified that she had
adopted her surviving grandchildren and was raising them. As a result, she had lost her job
and was struggling financially. She and her family were in counseling as a result of the
homicides. Ms. Mallory testified that at the time of his death, Mr. Seals had three children,
whom he loved and supported. She said Mr. Seals’s death had “hit [her] hard” because he
had been like a younger brother before his mother died and that she had been a mother figure
to him after his mother’s death.

         The defense offered the testimony of Glori Shettles, a mitigation specialist, who
described the defendant’s family history and background. She said that some of the
defendant’s family members were willing to provide information about him but others were
not willing to testify on his behalf. From her investigation, Ms. Shettles had learned that the
defendant’s parents were married in 1972, when his mother, Ms. Shaw, was fifteen years old
and his father, Jessie Sr., was nineteen years old. They soon had a daughter, Nicole. Jessie
Sr. joined the Army and was stationed in Florida, where the defendant was born. At some
point, Ms. Shaw and Nicole left Florida and returned to Memphis, where Nicole became so
ill that Jessie Sr. left his base and returned to Memphis also.16 After three years, Jessie Sr.
was honorably discharged from the Army. He wanted the family to remain in Florida, but
he was unable to obtain employment, so the family returned to Memphis. Cecil, who was
three years younger than the defendant, was born in Memphis.

       16
            Jessie Sr. apparently left his base without permission, for which he was disciplined at the time.

                                                     -42-
        Ms. Shettles testified that Jessie Sr. had been jealous of Ms. Shaw, who went on a
church trip to New Orleans, returned with a boyfriend, and told Jessie Sr. that she no longer
wanted to be married to him. They remained married for some time after that incident,
however. Ms. Shettles learned through her investigation that the defendant’s parents argued
often. Jessie Sr. was physically abusive to Ms. Shaw on more than one occasion, and the
children witnessed the abuse. Ms. Shaw decided to leave Jessie Sr. and saved money to do
so. When Jessie Sr. returned home one day, Ms. Shaw and the children were gone. Ms.
Shaw did not contact Jessie Sr. until four to five months later. The defendant was six years
old at this time, and the children did not know what had happened to their father.

       Ms. Shettles testified that the family moved often during the defendant’s childhood.
Ms. Shettles noted that one of the risk factors for poor performance in school and in life is
moving often during childhood. The defendant was diagnosed with a learning disability in
reading and math and was enrolled in resource classes. He also had disciplinary problems
at school and at home. School mental health records indicated that he was provided with
individual counseling. Counselors attempted to meet with Ms. Shaw, but she either cancelled
the appointments or did not attend them.

        Ms. Shettles testified that the defendant failed fourth grade twice due to excessive
absences from school. The defendant missed school, according to Ms. Shettles, because
others teased him for not having proper clothing. After repeating fourth grade, the defendant
was socially promoted in school. Ms. Shettles believed that the defendant was capable of
performing better in school but that his performance was hindered by the excessive absences
and tardies. When the defendant left school at age sixteen, he was still in the eighth grade
and had attended ten different schools.

        Ms. Shettles testified that by age fifteen, the defendant had become involved in the
juvenile court system and had several arrests and juvenile adjudications. Ms. Shaw was
unable to control him and did not know what to do. She attended juvenile court with the
defendant on many occasions, and Nicole attended on Ms. Shaw’s behalf when she could not
attend.

       Ms. Shettles testified that the family did not have much money and that Ms. Shaw was
often not home. Although Nicole did her best to care for her brothers, food was locked up,
and the children were not able to get to it. When the children visited their maternal
grandmother for Sunday dinner, the defendant and Cecil stole money from their
grandmother’s purse to purchase food. They were severely punished for doing so, and their
grandmother eventually told Ms. Shaw that the defendant and Cecil were no longer welcome
in her home.



                                            -43-
        The defendant worked only very little after leaving school. The only legitimate job
that the defendant had ever held was as a security guard at the age of eighteen. At age
nineteen, the defendant pleaded guilty to second degree murder and was sentenced to
eighteen years in prison. When he first entered prison, the defendant received many write-
ups for refusing to participate, cursing at an officer, and other offenses that did not involve
weapons. He also received write-ups for violent activities. Ms. Shaw and her husband
visited the defendant only once while he was incarcerated. No other family members visited
him, and the defendant spoke to his father by telephone on only a few occasions. Ms.
Shettles said that the defendant participated and “thrived” in a behavioral modification
program while in prison. The defendant was twice considered for parole before being
released on parole after serving fourteen years of his eighteen-year sentence.

        Ms. Shettles testified that some of the defendant’s family members value his life but
attending his trial and showing support for him had been difficult for them. Ms. Shettles
explained that another friend of the defendant had been afraid to appear at trial. Ms. Shettles
said that the defendant has an ongoing relationship with his son and that an eighty-one-year-
old friend of the defendant’s grandmother also cares for the defendant.

        On cross-examination, Ms. Shettles testified that the defendant had been suspended
from school so many times that the Memphis City Schools refused to allow him to continue
to attend. Ms. Shettles further acknowledged that the defendant had more than one juvenile
adjudication involving his use of weapons. Ms. Shettles agreed that the school and juvenile
records indicated that the defendant fought often and had problems with his brother Cecil.
Ms. Shettles was aware that the defendant had joined the Crips gang while in prison and that
he had received a write-up for violence while incarcerated because he and four other inmates
cut an inmate who was trying to leave the Crips.

       At the conclusion of the penalty phase, the trial judge instructed the jury regarding the
aggravating circumstances the State was alleging as to each first degree murder conviction
and also instructed the jury as to mitigating circumstances. The jury unanimously found
multiple statutory aggravating circumstances applicable to each first degree murder
conviction. With regard to Cecil’s murder, the jury found the following three aggravating
circumstances: (1) the defendant was previously convicted of one or more felonies involving
the use of violence; (2) the defendant “knowingly created a great risk of death to two (2) or
more persons, other than the victim murdered, during the act of murder”; and (3) the
defendant committed mass murder. See Tenn. Code Ann. § 39-13-204(i)(2), (3), (12)




                                              -44-
(2014).17 Regarding the murders of Ms. Williams, Mr. Seals, and Ms. Roberson, the jury
unanimously found five aggravating circumstances, including the same three found to be
applicable to Cecil’s murder, as well as the following two additional aggravating
circumstances: (1) the murder was committed for the purpose of avoiding, interfering with,
or preventing the lawful arrest or prosecution of the defendant or another; and (2) the murder
was knowingly committed while the defendant had a substantial role in committing, or
attempting to commit, or was fleeing after having a substantial role in committing or
attempting to commit any first degree murder. See Id. § 39-13-204(i)(6), (7). Regarding the
murders of Cemario and Cecil II, the jury unanimously found seven aggravating
circumstances, including the same five that it had found applicable to the first degree
murders of Ms. Williams, Mr. Seals, and Ms. Roberson, as well as the following two
additional statutory aggravating circumstances: (1) the victim was less than twelve years old
and the defendant was eighteen years old or older; and (2) the murder was especially heinous,
atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary
to produce death. See Id. § 39-13-204(i)(1), (5). The jury determined that the aggravating
circumstances applicable to each first degree murder conviction outweighed any mitigating
circumstances beyond a reasonable doubt and imposed a sentence of death for each of the
defendant’s six first degree murder convictions. The trial court entered a judgment in
accordance with the jury’s verdict.

      At a separate sentencing hearing on the defendant’s three attempted first degree
murder convictions, the trial court classified the defendant as a Range II multiple offender,
imposed a forty-year sentence for each conviction, and ordered these sentences served
consecutively to each other and to the death sentences. The defendant appealed, and the
Court of Criminal Appeals affirmed the defendant’s convictions and sentences. The
defendant’s appeal was then automatically docketed in this Court. See Tenn. Code Ann. §
39-13-206(a)(1).

                                                II. Analysis

                           A. Admission of the Defendant’s Confessions

        The defendant contends that the admission of his custodial statements violated his
rights under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution
and article I, sections 7 and 9 of the Tennessee Constitution. In particular, the defendant
claims that: (a) his warrantless arrest was not supported by probable cause; (b) his confession
to police officers was the fruit of his illegal arrest; (c) his confession to police officers was


        17
           The text of the relevant statutes has not changed since the time of trial; thus, citations are to the
current statute.

                                                     -45-
coerced after he had invoked his right to remain silent; and (d) his confession to his mother
should have been suppressed because she was acting as an agent of the police. The
defendant concedes both that he did not file a pretrial motion to suppress and that he did not
raise any of these issues in his motion for new trial.

        The State argues that the defendant forfeited his right to appellate review of these
issues by failing to raise them in a pretrial motion to suppress, as required by Tennessee Rule
of Criminal Procedure 12(b)(2)(C), which states that “a motion to suppress evidence” is
among those motions that “must be raised before trial.” The State says that not even plain
error review applies when a defendant fails to file a pretrial suppression motion. As support
for this argument the State relies on federal decisions construing the identical language of
Federal Rule of Criminal Procedure 12(b)(3)(C) as precluding even plain error review on
appeal when a defendant fails to make a pretrial motion to suppress. See, e.g., United States
v. Burke, 633 F.3d 984, 987-88 (10th Cir. 2011); United States v. Yousef, 327 F.3d 56, 125
(2d Cir. 2003); United States v. Chavez-Valencia, 116 F.3d 127, 129-134 (5th Cir. 1997).
Among other things, the State argues that unless a defendant files a pretrial motion to
suppress, the State may not have an opportunity to establish that the challenged evidence was
seized lawfully because the evidence relevant to the suppression issue may not be admissible
and relevant to an issue at trial.

             1. Failure to File Pretrial Motions to Suppress in Capital Cases

        This Court has previously faced the issue of whether appellate review in a capital case
extends to suppression issues raised for the first time on appeal. In State v. Duncan, 698
S.W.2d 63 (Tenn. 1985), Mr. Duncan “never moved to suppress” his “statements,
fingerprints, blood and saliva tests obtained as the result of [his] detention.” Id. at 68. When
he challenged the admission of this evidence for the first time on appeal, the State argued that
review was foreclosed because the issue had been waived. Id. at 67-68. This Court
disagreed, stating that where a “defendant is under sentence of death, this [C]ourt is under
the duty to ‘automatically’ review the sentence.” Id. (quoting Tenn. Code Ann. § 39-2-
205(a) (currently codified at Tenn. Code Ann. § 39-13-206(a)(1) (2010)). As a result, the
Duncan Court explained that “there is no waiver of error directed to the admissibility of
evidence when the defendant is under sentence of death.” Duncan, 698 S.W.2d at 68; see
also State v. Nesbit, 978 S.W.2d 872, 880-81 (Tenn. 1998) (holding that, given the statutory
mandate directing this Court to review capital convictions and sentences, a defendant’s
failure to file a motion for new trial does not deprive this Court of jurisdiction to review
issues that should have been raised in a motion for new trial). The Duncan Court cautioned,
however, that “review of an alleged error is handicapped at times by the failure of trial
counsel to object to the introduction of evidence, as his failure too often deprives the
opposing party of the opportunity to remove any question as to the competency and relevancy

                                              -46-
of questioned evidence.” Duncan, 698 S.W.2d at 68. Because Mr. Duncan had failed to
make a pretrial motion or trial objection either challenging the admissibility of the evidence
as fruit of an illegal arrest or arguing that Mr. Duncan’s statements were obtained in violation
of his constitutional rights, the Duncan Court determined that proof had not been “directed
by either party so as to delineate fully the circumstances surrounding [Mr. Duncan’s]
detention, arrest, and interrogation.” Id. Consequently, the Court concluded that “nothing
in the record” supported Mr. Duncan’s contentions. Id.

        Nine years later, this Court applied Duncan in another capital case in which a
defendant challenged for the first time on appeal the admission of his statements on the basis
that the statements were obtained in violation of his constitutional rights. State v. Bigbee,
885 S.W.2d 797 (Tenn. 1994), superseded by statute on other grounds as stated in State v.
Odom,137 S.W.3d 572, 580-81 (Tenn. 2004). Mr. Bigbee had failed to make a motion to
suppress, failed to object to the admission of the statements at trial, and failed to raise the
issue in his motion for new trial. However, relying on Duncan, Mr. Bigbee argued that “the
appellate review mandated by [statute] require[d] this Court to consider any alleged error,
whether called to the trial court’s attention or not.” Bigbee, 855 S.W.2d at 805. This Court
addressed Mr. Bigbee’s argument as follows:

        [W]e have reviewed the record in this case in light of the defendant’s
        complaint and conclude that here, as in [Duncan], there is nothing in the record
        to support the contentions of [Mr. Bigbee]. In the absence of an objection or
        motion challenging the evidence on the grounds now asserted, the proof was
        not focused by either party so as to delineate fully the critical issue . . . .

Id.

        The statute obligating this Court to review automatically a defendant’s conviction of
first degree murder and sentence of death has not changed since our decisions in Duncan and
Bigbee. See Tenn. Code Ann. § 39-13-206 (2010). Not only is this Court still obligated to
conduct such a review, the statute now also obligates the Court of Criminal Appeals to
review capital cases. Id. Thus, with respect to capital cases, the State has presented no basis
for reconsidering our prior decisions, which held that a defendant in a capital case does not
entirely forfeit appellate review by failing to make a pretrial motion to suppress.18 When


        18
            Our holding in this regard is limited to capital cases. We note that in non-capital cases, to which
the statutory duty of automatic review does not apply, the Court of Criminal Appeals has held that trial courts
should not entertain motions to suppress that are not filed prior to trial. See, e.g., State v. Randolph, 692
S.W.2d 37, 40 (Tenn. Crim. App. 1985); State v. Wilson, 611 S.W.2d 843, 846-47 (Tenn. Crim. App. 1980);
                                                                                              (continued...)

                                                     -47-
suppression issues are raised for the first time on appeal in capital cases, we will continue to
apply plain error review, as the Court of Criminal Appeals did in this case.19 As Duncan and
Bigbee illustrate, however, a defendant who fails to file a pretrial motion to suppress and
make a record in the trial court will have difficulty prevailing on appeal when plain error
review is applied.

                                         2. Plain Error Review

       When conducting plain error review, this Court will grant relief only when the
following five prerequisites are satisfied:

        (1) the record clearly establishes what occurred in the trial court; (2) a clear
        and unequivocal rule of law was breached; (3) a substantial right of the
        accused was adversely affected; (4) the accused did not waive the issue for
        tactical reasons; and (5) consideration of the error is necessary to do
        substantial justice.

State v. Gomez, 239 S.W.3d 733, 737 (Tenn. 2007) (internal citations and quotation marks
omitted). The defendant bears the burden of persuading an appellate court that plain error
exists. State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007). We evaluate each of the
defendant’s claims of error using these principles.

                                        3. Legality of the Arrest

        The defendant first argues that his warrantless arrest was illegal because it was not
supported by probable cause. The defendant says all of his custodial statements were fruit
of his illegal arrest, and as such, should have been excluded from evidence at trial. The State
counters that the defendant’s warrantless arrest was legal as it was based on probable cause.




        18
             (...continued)
Feagins v. State, 596 S.W.2d 108, 109-110 (Tenn. Crim. App. 1979). We express no opinion on this separate
issue.
        19
           Indeed, the State asked the Court of Criminal Appeals to review the suppression issues for plain
error. The State changed its position in this Court and argued for the first time that the defendant forfeited
all appellate review of suppression issues by failing to make a pretrial suppression motion.

                                                    -48-
       The defendant’s warrantless arrest implicates the protections of the Fourth
Amendment to the United States Constitution20 and article I, section 7 of the Tennessee
Constitution.21 These constitutional provisions prohibit unreasonable searches and seizures,
State v. Day, 263 S.W.3d 891, 900-01 (Tenn. 2008), and require generally that searches and
seizures be conducted pursuant to a warrant that is issued after a judicial determination of
probable cause. State v. Bishop, 431S.W.3d 22, 36 (Tenn. 2014).

         A warrantless search or seizure is presumed unreasonable and evidence seized
thereby is subject to suppression, unless the State establishes one of the recognized
exceptions to the warrant requirement. Id. An arrest supported by probable cause is one of
the exceptions to the warrant requirement. State v. Echols, 382 S.W.3d 266, 277-78 (Tenn.
2012). This exception is codified at Tennessee Code Annotated section 40-7-103(a)(3)
(2012), which states that a warrantless arrest is permissible when “a felony has in fact been
committed, and the officer has reasonable cause22 for believing the person arrested has
committed the felony.” Id.

        As the United States Supreme Court has recognized, “[a]rticulating precisely what . . .
‘probable cause’ mean[s] is not possible.” Ornelas v. United States, 517 U.S. 690, 695
(1996). Probable cause is “more than a mere suspicion,” State v. Lawrence, 154 S.W.3d 71,
76 (Tenn. 2005), but it is not absolute certainty, State v. Melson, 638 S.W.2d 342, 350 (Tenn.
1982). Moreover, “the strength of the evidence necessary to establish probable cause to
arrest is significantly less than the strength of evidence necessary to find a defendant guilty
beyond a reasonable doubt.” Bishop, 431 S.W.3d at 41.



       20
            The Fourth Amendment states:

       The right of the people to be secure in their persons, houses, papers, and effects, against
       unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
       upon probable cause, supported by Oath or affirmation, and particularly describing the place
       to be searched, and the persons or things to be seized.
       21
            Article I, section 7 states:

       That the people shall be secure in their persons, houses, papers and possessions, from
       unreasonable searches and seizures; and that general warrants, whereby an officer may be
       commanded to search suspected places, without evidence of the fact committed, or to seize
       any person or persons not named, whose offences are not particularly described and
       supported by evidence, are dangerous to liberty and ought not to be granted.
       22
         We have previously held that “reasonable cause” and “probable cause” are synonymous. Echols,
382 S.W.3d at 278. We use “probable cause” in this opinion.

                                                  -49-
        As the very name implies, “the probable-cause standard is . . . a practical,
nontechnical” concept, State v. Jacumin, 778 S.W.2d 430, 432 (Tenn. 1989) (citations and
internal quotation marks omitted), which focuses upon “the factual and practical
considerations of everyday life on which reasonable and prudent men, not legal technicians,
act,” Draper v. United States, 358 U.S. 307, 313 (1959) (quoting Brinegar v. United States,
338 U.S. 160, 175 (1949)); see also Echols, 382 S.W.3d at 278; Melson, 638 S.W.2d at 351.
Thus, probable cause exists when “at the time of the arrest, the facts and circumstances
within the knowledge of the officers, and of which they had reasonably trustworthy
information, are sufficient to warrant a prudent person in believing that the defendant had
committed or was committing an offense.” Echols, 382 S.W.3d at 277-78 (citations,
alterations, and internal quotation marks omitted).

       When determining whether probable cause existed to support a warrantless arrest, a
reviewing court considers the entire record, including the proof adduced at any suppression
hearing and the evidence presented at trial. State v. Henning, 975 S.W.2d 290, 299 (Tenn.
1998). Additionally, a reviewing court considers

       the collective knowledge that law enforcement possessed at the time of the
       arrest, provided that a sufficient nexus of communication existed between the
       arresting officer and any other officer or officers who possessed relevant
       information. Such a nexus exists when the officers are relaying information
       or when one officer directs another officer to act.

Bishop, 431 S.W.3d at 36.

       [I]f the source of the information is a person (1) who is known to the police,
       (2) who is not part of the “criminal milieu,” and (3) whose motivation is to aid
       the police without any expectation of remuneration, then the information is
       deemed reliable and is sufficient to provide probable cause for arrest. On the
       other hand, when the information is provided (1) by a professional informant
       who gives tips for money or favors, (2) by a person from the “criminal milieu”
       who may have an ax to grind, or (3) by an anonymous informant, the
       information is presumptively suspect, and the State must establish its
       credibility.

Id. at 37.

       The record on appeal in this case establishes that at the time of the defendant’s arrest,
the police knew that: (1) C.J., a citizen informant, and an eyewitness to and victim of the
crime, as well as a nephew of the defendant, had identified the defendant as the perpetrator

                                              -50-
of the homicides and assaults; (2) the crime scene had been altered; (3) the murders and
assaults were accomplished with weapons found inside the home; (4) the defendant, a close
relative of three of the six murder victims and three of the assault victims, had spent time in
the home on Lester Street and was familiar with it; (5) the defendant was one of the last
persons to see Cecil and Mr. Seals alive; and (6) the defendant had been previously convicted
of murder and only recently released from incarceration. Based on the foregoing facts, we
conclude that “at the time of the arrest, the facts and circumstances within the knowledge of
the officers, and of which they had reasonably trustworthy information, [were] sufficient to
warrant a prudent person in believing” that the defendant had committed the Lester Street
homicides and assaults. Echols, 382 S.W.3d at 277-78 (citations omitted) (alterations and
internal quotation marks omitted).

        In arguing that the police lacked probable cause, the defendant asserts that C.J.’s
identification of the defendant is not entitled to the presumption of reliability ordinarily
accorded information from citizen informants because the prosecution failed to show that
C.J. was “motivated solely by a sense of civic duty.” This argument is without merit.
“Information provided by a citizen/bystander witness known to the [police] is presumed to
be reliable, and the prosecution is not required to establish either the credibility of the
informant or the reliability of his information.” State v. Cauley, 863 S.W.2d 411, 417 (Tenn.
1993) (citing Melson, 638 S.W.2d at 354-55); see also State v. Day, 263 S.W.3d 891, 904
(Tenn. 2008) (“We acknowledge that information from a known citizen informant is
presumed reliable and not subject to the same level of scrutiny applied to a compensated
informant.”).23 The rationale for applying the presumption of reliability in these
circumstances is two-fold. First, “[c]itizen informants, whether they be victims or witnesses,
have necessarily gained their information through first-hand experience.” State v. Luke, 995
S.W.2d 630, 636-37 (Tenn. Crim. App. 1998) (citing Melson, 638 S.W.2d at 354-56).
Second,“[t]he criminal informant provides information in exchange for some
consideration—whether it be monetary or the granting of some exemption or
privilege—while the citizen informant acts in the interest of society or personal safety.” Id.
(citing State v. Smith, 867 S.W.2d 343, 347 (Tenn. Crim. App. 1993) (emphasis added); see
also Day, 263 S.W.3d at 904 (citing Luke with approval). Thus, although Tennessee
decisions have recognized the interests that typically motivate citizen informants and justify
the presumption of reliability, no Tennessee decision has conditioned application of the
presumption of reliability upon a showing that the citizen informant was in fact motivated



        23
          “When the source of the information is an unnamed citizen informant, ‘the reliability of the source
and the information must be judged from all the circumstances and from the entirety of the affidavit.’”
Cauley, 863 S.W.2d at 417 (quoting Melson 638 S.W.2d at 356);


                                                    -51-
by one or both of these interests. The presumption of reliability applies if the prosecution
establishes simply that the information was provided by a known citizen informant.24

       Equally without merit for the same reason is the defendant’s argument that the
presumption of reliability does not apply to the information C.J. provided because
“investigators did not consider whether this young boy’s implication of his uncle could have
been instead motivated by some fact or circumstance entirely unrelated to the crime.” A rule
requiring the police to delay arresting a person the crime victim has identified as the
perpetrator until the police confirm that the crime victim had no ulterior motivation for
making the identification would be untenable. Such a rule would require the police to
expend resources delving into a crime victim’s motives rather than investigating the crime
and apprehending the perpetrator. Moreover, even if we were inclined to adopt such a rule,
it would have no bearing on this appeal. C.J. testified at trial, and the defendant had an
opportunity to question him on cross-examination about his motivations for identifying the
defendant as the perpetrator. The record contains no evidence that C.J. had any ulterior
motive for identifying his uncle, the defendant, as the perpetrator of these crimes.

       The defendant’s warrantless arrest was supported by probable cause. Thus, the
defendant has failed to establish either a breach of a clear and unequivocal rule of law or any
error adversely affecting a substantial right. Thus, the defendant is not entitled to relief under
the plain error doctrine.

                                       4. Right to Remain Silent

        The defendant next argues that his confession to Deputy Director Armstrong should
not have been admitted into evidence because Deputy Director Armstrong obtained the
confession by continuing to question him after he had invoked his constitutional right to
remain silent. The defendant does not deny that he received Miranda25 warnings, nor does
he deny that he executed a written waiver of his constitutional rights after receiving these
warnings. Instead, the defendant asserts that he subsequently invoked his right to remain
silent when he told Lieutenant Mason and Sergeant Stark that he did not want to talk to them
any longer. The record on appeal does not support the defendant’s claim that he invoked his
constitutional right to remain silent.



        24
            Although no such showing is required, we note that the record on appeal establishes that C.J.’s
identification of the defendant was motivated only by his interest in personal safety and in identifying the
person who assaulted him and assaulted and murdered his siblings and parents.
        25
             Miranda v. Arizona, 384 U.S. 436, 444-45 (1966).

                                                   -52-
        It is certainly true that the privilege against self-incrimination guaranteed by both the
Fifth Amendment to the United States Constitution26 and article I, section 9 of the Tennessee
Constitution,27 affords criminal defendants the right to remain silent. State v. Climer, 400
S.W.3d 537, 556-57 (Tenn. 2013); State v. Blackstock, 19 S.W.3d 200, 207 (Tenn. 2000);
State v. Crump, 834 S.W.2d 265, 268 (Tenn. 1992). However, an accused who wishes to rely
on the constitutional right to remain silent must unambiguously invoke it. Berghuis v.
Thompkins, 560 U.S. 370, 381-82 (2010) (holding that the defendant’s prolonged silence in
the face of police questioning did not amount to an unambiguous invocation of the right to
remain silent); accord Climer, 400 S.W.3d at 562 (holding that “‘the standard for a valid
invocation of the right to counsel is the same under both article I, section 9 and the Fifth
Amendment.’” (quoting State v. Saylor, 117 S.W.3d 239, 246 (Tenn. 2003)).

       The record on appeal does not establish that the defendant invoked his constitutional
right to remain silent. Instead, the defendant said that he did not wish to speak with
Lieutenant Mason and Sergeant Stark any longer and asked to speak with other officers. The
defendant’s request to speak to officers other than those conducting the interview did not
amount to an invocation, ambiguous or unambiguous, of his right to remain silent. Because
the defendant has again failed to establish any violation of a clear and unequivocal rule of
law, the defendant is not entitled to relief on this claim under the plain error doctrine.

                                                5. State Agent

       The defendant’s next argument is that his confession to his mother, Ms. Shaw, should
not have been admitted into evidence at trial. The defendant points out correctly that he had
invoked his right to counsel prior to speaking with his mother. The defendant contends that
Ms. Shaw was acting as a state agent when she talked with him; thus, his confession to her
was obtained in violation of his previously invoked right to counsel, guaranteed by the Fifth
and Fourteenth Amendments to the United States Constitution and by article I, section 9 of




        26
           This portion of the United States Constitution guarantees that “[n]o person . . . shall be compelled
in any criminal case to be a witness against himself.” U.S. Const. amend. V.
        27
           Article I, section 9 states that “in all criminal prosecutions, the accused . . . shall not be compelled
to give evidence against himself.” Tenn. Const. art. I, § 9.

                                                       -53-
the Tennessee Constitution.28 Again, the record on appeal does not support the defendant’s
claim.

        During the trial, Deputy Director Armstrong testified that after invoking his right to
counsel, the defendant asked to speak with his mother. As a result, Deputy Director
Armstrong arranged to have Ms. Shaw transported from protective custody to the police
department. Just before Ms. Shaw testified at trial, the defendant moved to suppress the
confession he gave her, arguing that she had been acting as an agent of the State when she
solicited his confession. Although the defendant’s motion to suppress had not been timely
filed before trial as Tennessee Rule of Criminal Procedure 12(b)(2)(C) requires, the trial
court nonetheless held a hearing on the motion outside the jury’s presence.

       At this hearing, Ms. Shaw testified that, while she, the defendant, and other family
members were at a safe house in protective custody, officers came and took the defendant
away. She recalled that officers returned either later that same evening or during the early
morning hours of the following day and informed her that the defendant had requested to see
her. Ms. Shaw stated that neither Deputy Director Armstrong nor any other officer asked her
to obtain information from the defendant for them, told her what to say to the defendant, or
instructed her to question him. Ms. Shaw said that no one else was in the room when she
spoke with her son. At the conclusion of Ms. Shaw’s testimony, the trial court denied the
defendant’s motion to suppress.

         Because the defendant failed to file his suppression motion prior to trial, as Rule
12(b)(2)(C) requires, and also failed to raise the issue in his motion for new trial, plain error
review applies to this issue. Our review is less hampered than when no motion to suppress
at all is filed because, in this case, the trial court conducted a hearing on the defendant’s late-
filed motion to suppress and allowed both parties to make a record. Still, the existing record
is simply devoid of any evidence to show, or even to suggest, that the defendant’s mother
was acting as a state agent when she spoke with him. The defendant initiated the contact
with his mother by asking to see her after Deputy Director Armstrong had properly ceased
the interrogation in response to the defendant’s invocation of his right to counsel. In Arizona
v. Mauro, 481 U.S. 520, 526 (1987), the United States Supreme Court indicated that a private
third party’s questioning of a person in police custody may perhaps constitute the functional
equivalent of police interrogation if certain circumstances are present. But none of those
circumstances are present in this case.

        28
           The defendant had not been charged with a criminal offense at the time he invoked his right to
counsel; thus, the defendant’s right to counsel under the Sixth Amendment to the United States Constitution
had not attached. Climer, 400 S.W.3d at 566 n.15.


                                                   -54-
        In Mauro, the defendant told the police that he had killed his son and then directed
them to the child’s body. Id. at 522-23. After being advised of his Miranda rights, the
defendant invoked his right to counsel. Id. at 523. The police then allowed the defendant
to meet with his wife but only in the presence of an officer, who tape-recorded the
conversation. Id. Despite the officer’s presence and the fact that the conversation had been
recorded, the Mauro Court held that the wife’s questioning of the defendant did not constitute
police “interrogation.” Id. at 527-28. The Court reasoned that no evidence showed that the
police sent the defendant’s wife in to meet with him for the purpose of eliciting incriminating
statements. Id. at 528. The Court considered the situation from the defendant’s perspective
and concluded that it was unlikely the defendant would have felt “that he was being coerced
to incriminate himself” by his wife’s presence. Id. As a result, the Court concluded that the
decision to allow the defendant’s wife to see him was not “the kind of psychological ploy that
properly could be treated as the functional equivalent of interrogation.” Id. at 527 (footnote
omitted). Thus, in the absence of “compelling influences, psychological ploys, or direct
questioning,” the Mauro Court concluded that the “possibility” that an accused will
incriminate himself or an officer’s subjective “hope” that he will do so is not the functional
equivalent of interrogation. Id. at 528-29.

       In the present case, there was no evidence at all suggesting that the police brought Ms.
Shaw to see the defendant “for the purpose of eliciting incriminating statements,” see id. at
528, or that the officers asked, directed, induced, or threatened her to obtain information from
the defendant. According to Ms. Shaw’s own testimony, the officers escorted her to the
interview room, where she and the defendant were allowed to speak to each other
unsupervised. Ms. Shaw said that the officers did not instruct her on what to say to or ask
of the defendant. As the United States Supreme Court emphasized in Mauro:

       In deciding whether particular police conduct is interrogation, we must
       remember the purpose behind our decisions . . . [was] preventing government
       officials from using the coercive nature of confinement to extract confessions
       that would not be given in an unrestrained environment. . . . Police
       departments need not adopt inflexible rules barring suspects from speaking
       with their spouses, nor must they ignore legitimate security concerns by
       allowing spouses to meet in private.

Id. at 529-30 (emphasis added).

       The record in this case demonstrates only that the police granted the defendant’s
request to talk with his mother, Ms. Shaw. Nothing in the record supports the defendant’s
claim that Ms. Shaw was acting as a state agent or that Ms. Shaw’s conversation with the

                                              -55-
defendant amounted to interrogation. See State v. Smith, 933 S.W.2d 450, 453 (Tenn. 1996);
State v. Johnson, No. M2011-00792-CCA-R3-CD, 2012 WL 3731699, at *12-15 (Tenn.
Crim. App. Aug. 29, 2012). Again, the defendant has failed to establish any breach of a clear
rule of law and is not entitled to relief on this issue under the plain error doctrine.

                B. Testimony Regarding Invocation of Constitutional Rights

        The defendant next argues that the State’s introduction of evidence in its case-in-chief
about his invocation of his federal and state constitutional rights to remain silent and to an
attorney amounted to constitutional error. He asserts that the error was not harmless and
entitles him to a new trial. The State responds that the testimony about which the defendant
complains was properly introduced in response to defense cross-examination of prosecution
witnesses about why the police failed to obtain a formal statement from the defendant or to
ask him more specific questions about the crime scene. The State says the prosecution did
not rely upon or ask the jury to consider the defendant’s invocation of his right to counsel as
evidence of guilt.

                1. Evidence of Defendant’s Invocation of Constitutional Rights

        In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court announced
procedural safeguards to protect a defendant’s Fifth Amendment rights during custodial
interrogation. Dickerson v. United States, 530 U.S. 428, 444 (2000) (holding that Miranda
announced a binding “constitutional rule” under the Fifth Amendment). Ten years later, the
Supreme Court held that the Due Process Clause of the Fourteenth Amendment forbids
impeachment of a defendant at trial for choosing to exercise his Fifth Amendment right to
remain silent after receiving Miranda warnings. Doyle v. Ohio, 426 U.S. 610, 619-20
(1976); State v. Frasier, 914 S.W.2d 467, 471 (Tenn. 1996).29

        In Doyle, the defendants remained silent upon arrest, and the Supreme Court held that
using a defendant’s post-Miranda silence to impeach the defendant at trial violates the Due
Process Clause of the Fourteenth Amendment. Doyle, 426 U.S. at 619; see also State v.
Flanagan, 443 S.W.2d 25, 26 (Tenn. 1969) (holding that proof of a defendant’s silence or
assertion of a right to remain silent during questioning about participation in criminal acts
is not admissible as evidence from which an inference of guilt may be drawn). The Doyle
Court reasoned that “it would be fundamentally unfair and a deprivation of [D]ue [P]rocess


        29
            The Supreme Court has since held, however, that introducing evidence of a defendant’s pre-
custodial, pre-Miranda silence does not violate the Fifth Amendment where the defendant did not expressly
invoke the right to remain silent as the reason for his silence. Salinas v. Texas, __ U.S. __, 133 S.Ct. 2174,
2181-82 (2013).

                                                    -56-
to allow [an] arrested person’s silence to be used to impeach an explanation subsequently
offered at trial.” Doyle, 426 U.S. at 618.

        Subsequently, in Wainwright v. Greenfield, 474 U.S. 284 (1986), the Supreme Court
revisited Doyle and again condemned a “breach[ ][of] the implied assurance of the Miranda
warnings [as] an affront to the fundamental fairness that the Due Process [C]lause requires.”
Id. at 291. In Greenfield, after the defendant entered a plea of “not guilty by reason of
insanity,” the prosecution was permitted to introduce evidence that he had “exercised his
right to remain silent and . . . expressed a desire to consult counsel before answering any
questions.” Id. at 287. Later in closing argument and over the objection of defense counsel,
the prosecutor reminded the jury of the defendant’s silence and “suggested that [his] repeated
refusals to answer questions without first consulting an attorney demonstrated a degree of
comprehension . . . inconsistent with . . . insanity.” Id. at 287.

        In reversing the conviction, the Supreme Court in Greenfield emphasized that “[t]he
point of . . . Doyle . . . is that it is fundamentally unfair to promise an arrested person that
his silence will not be used against him and thereafter . . . us[e] the silence to impeach [him]”
or otherwise “make use of the . . . exercise of those rights in obtaining his conviction.” Id.
at 292. Thus, the Court declared that “[w]hat is impermissible is the evidentiary use of an
individual’s exercise of his constitutional rights after the . . . assurance” of Miranda. Id. at
295 (emphasis added). The Court also noted that, “[w]ith respect to post-Miranda
warnings . . . [the term] silence does not mean only muteness; it includes the statement . . .
of a desire to remain silent until an attorney has been consulted.” Id. at 295 n.13; see also
State v. Hines, 919 S.W.2d 573, 580-81 (Tenn. 1995) (recognizing that a prosecutor may not
use a defendant’s exercise of his constitutional right to counsel to penalize the defendant at
trial).

       Within a year of Greenfield, the Supreme Court was, once more, confronted with a
Doyle issue. In Greer v. Miller, 483 U.S. 756 (1987), the appeal resulted from a
prosecutorial question to a witness which “touched upon [the defendant’s] postarrest
silence.” Id. at 764. Unlike in Doyle and Greenfield, however, the trial court sustained
Miller’s prompt objection to the question, instructed the jury to “ignore” it, and allowed no
“further questioning or argument with respect to [the defendant’s] silence[.]” Id. at 759, 764.
In applying Doyle, the Supreme Court deemed it “significant that in each of the cases in
which [the] Court ha[d previously] applied Doyle, the trial court . . . permitted specific
inquiry or argument respecting the defendant’s post-Miranda silence.” Id. at 764. Because
“Miller’s post-arrest silence was not submitted to the jury as evidence from which it was
allowed to draw any permissible inference,” the Court determined that “no Doyle violation
occurred.” Id. at 764-65. Greer thus teaches that “Doyle does not impose a prima facie bar
against any mention whatsoever of a defendant’s right to request counsel, but instead guards

                                              -57-
against the exploitation of that constitutional right by the prosecutor.” Lindgren v. Lane, 925
F.2d 198, 202 (7th Cir. 1991).

        The Seventh Circuit in Lindgren was confronted with a record that very much
resembles the record in this appeal. There, a police officer made mention of Mr. Lindgren’s
request for counsel during direct examination by the prosecutor, and the trial court denied
defendant’s ensuing motion for a mistrial. Id. at 202. In affirming the trial court, the
Seventh Circuit reiterated that a Doyle inquiry “center[s] . . . around the particular use to
which the post-arrest silence is being put[ ]” and, therefore, requires consideration of the
particular circumstances of each case. Id. The Seventh Circuit concluded that because the
officer’s testimony regarding Mr. Lindgren’s request for counsel was inadvertent and
because the prosecutor did not use the testimony to impeach the defendant or argue his guilt
to the jury, there was no violation of Greenfield and Doyle. Id. at 202; see also Noland v.
French, 134 F.3d 208, 216 (4th Cir. 1998) (holding that there was no Greenfield or Doyle
error where the prosecution twice elicited testimony from police officers that the defendant
understood his Miranda rights and exercised them, pointing out that the defense did not
object to the testimony at trial and that the prosecutor’s questions did not draw attention to
the defendant’s silence or invocation of his right to counsel); Jones v. Stotts, 59 F.3d 143,
146 (10th Cir. 1995) (holding that “it is the prosecutor’s exploitation of a defendant’s
exercise of his right to silence which is prohibited”); United States v. Stubbs, 944 F.2d 828,
834-35 (11th Cir. 1991) (finding no Greenfield or Doyle violation “when the government
does not specifically and expressly attempt to use . . . the improper comment to impeach the
defendant”); Cook v. State, 544 N.E.2d 1359, 1363 (Ind. 1989) (holding that testimony by
a federal agent that there was no further contact with the defendant at a certain point because
he “had made a request to speak to an attorney” did not constitute a Doyle violation); State
v. Baccam, 476 N.W.2d 884, 886-87 (Iowa Ct. App. 1991) (finding no abuse of discretion
in the trial court’s refusal to grant a mistrial on the basis of a single comment related to the
defendant’s post-Miranda silence where the trial court gave a curative instruction and the
silence was not used against the defendant); Pulley v. Commonwealth, 525 S.E.2d 51, 54
(Va. Ct. App. 2000) (holding that there was no Doyle violation from a police officer’s
nonresponsive comment that the defendant invoked his right to counsel because the
prosecution did not exploit the issue). As explained below, we likewise conclude that there
was no violation of Greenfield or Doyle in this case.

                                  2. Right to Remain Silent

       Defendant first claims that Deputy Director Armstrong improperly commented upon
his invocation of his right to remain silent. We have already concluded that the defendant




                                             -58-
did not invoke his right to remain silent, so this claim necessarily fails. Deputy Director
Armstrong’s challenged testimony30


       30
            Deputy Director Armstrong testified on direct examination:

       Q.        If you would, explain to the jury how you ended up coming into contact personally
                 with [the defendant]?

       A.        I watched the interview of Sergeant Mason and Sergeant Max’s interview with [the
                 defendant], during which he shut down on them and didn’t want to talk to the two
                 of them anymore. I then made a decision that I would go in and conduct the
                 investigation—conduct the interview myself.

                 ....

       Q.        Tell the jury what you did when you walked into the room with [the defendant] and
                 take them through kind of how you talked to him and what he was telling you.

       A.        I walked in and I introduced myself. I told him I was Lieutenant Armstrong. I
                 actually pulled up another chair and put my feet up in it and kind of leaned back and
                 we just talked. We talked about how horrific this crime was. I watched his body
                 language. At that point he seemed as if he was really, really tight, like he was doing
                 everything he could not to talk to me. If I asked him a question, his answers were
                 one-word answers, maybe one-or-two-word answers. He wouldn’t engage me in
                 open conversation. Most of the time if I asked him a question, he would nod his
                 head or shake his head. But you could tell he was doing everything he could not to
                 engage me in an open conversation as to where we had open dialogue back and
                 forth with each other.

The State later questioned Deputy Director Armstrong as follows:

       Q.        So you had this background information and then you went to talk to [the
                 defendant]. Explain to the jury how the interview went, some of the things that you
                 continued to say and what you talked about with [the defendant].

       A.        Like I said, I walked into the interview room. I introduced myself. I pulled up a
                 chair. I propped up my feet and we basically started talking and I asked Jessie to
                 tell me some of the things that are important to you. He said my family. We talked
                 about religion. I asked him whether or not he believed in God. He told me that he
                 did. I asked him whether or not he believed in heaven and hell. He told me that he
                 did. I could tell that he was almost like he was struggling to try to maintain his
                 composure. There [were] several times that we talked it was almost —he leaned
                 forward as if I want to tell you something but he’d get his self [sic] together and
                 he’d lean back. So I could tell he was hiding something. I could tell he was doing
                 everything he could, like I said, not to engage me in open conversation because he
                                                                                               (continued...)

                                                     -59-
merely informed the jury of the circumstances that caused him to conduct the defendant’s
interview. He also described the defendant’s demeanor during the interview. The defendant
did not object to this testimony at trial and did not raise this issue in his motion for new trial.
The defendant is again limited to seeking relief via plain error review and is not entitled to
relief because he has failed to establish that a clear and unequivocal rule of law was
breached. Johnson, 743 S.W.2d at 158 (“[W]here the answers to questions are admissible,
the demeanor and behavior of the person giving the statement may be commented upon by
witnesses who were present.”).

                                          3. Right to Counsel

                                  a. Sergeant Mullins’s Testimony

      We also reject the defendant’s argument that Sergeant Mullins’s testimony and that
of Deputy Director Armstrong about the defendant’s invocation of his right to counsel was
improper and deprived him of a fair trial.

       The defendant challenges a very minor portion of Sergeant Mullins’s lengthy, multi-
day testimony, and the portion he challenges was provided on cross-examination in response
to defense counsel’s questions regarding issues about the importance of the defendant’s
statement to the police; the importance of documenting the defendant’s responses; the
Memphis Police Department’s practice of not recording statements; the lack of a typewritten
formal statement; the questions that should have been asked the defendant regarding the
crime scene; and the questions that Sergeant Mullins would have asked the defendant about
the crime scene had Sergeant Mullins interviewed the defendant. The relevant portion of the
testimony is reproduced below:

       Q.        If you were interviewing [the defendant] in this case and he told you
                 where the knives and the guns went, would that have been important
                 enough for you to write down?

       A.        Yes, sir. Again, if he told us where anything was, any evidence from
                 this crime scene, just like the bicycle, we would have followed up. I
                 don’t see why anybody would not have. We followed up on everything
                 that I know of that he said as far as his actions afterwards.

                 ....

       30
            (...continued)
                 was trying to keep—limit his words to the least as he could.

                                                   -60-
       Q.     If you were interviewing [the defendant] and you asked him about
              grabbing hair or ripping beads out, would you have asked him that
              question and recorded his answer on paper? Would you have
              documented what was asked and what was said?

       A.     If I was able to interview [the defendant], I would have asked a lot of
              questions before he asked for his attorney. Now how many questions
              he was asked before he asked for an attorney, I couldn’t tell you. I
              would have asked a lot of questions before such time.

              ....

       Q.     So you would have specifically after looking at the crime scene, you
              would have asked some questions about like holes in the cushion and
              you would have documented your question and your answer?

       A.     Yes, sir. See, again, realize how this investigation went. The crime
              scene was kind of my job. And I did not at any point between the
              original call-out and the interview, arrest and interview of [the
              defendant], have a chance to sit down with anybody and say okay,
              here’s what I found in this room, in this room and in this room. I didn’t
              hardly stop in those four or five days. If I had been able to interview
              [the defendant], I would have had very different questions than
              anybody else on this case because I had more knowledge about that [the
              crime scene] than any of them did and did they know about certain
              things, yes, but specific small details, I know more about that than
              anybody else on the team.

         As he did in the Court of Criminal Appeals, the defendant argues that Sergeant
Mullins’s testimony was not responsive to defense counsel’s questions and that Sergeant
Mullins improperly interjected references about the defendant’s invocation of his right to
counsel. We disagree. Again, the defendant did not object to Sergeant Mullins’s testimony
at trial on any basis and did not raise this issue in his motion for new trial. Therefore, we
again apply plain error review to the defendant’s claim and again conclude that the defendant
has failed to show that a clear rule of law was breached.

       Sergeant Mullins’s isolated references to the defendant’s invocation of his right to
counsel were responsive to the broad questions defense counsel posed to Sergeant Mullins
on cross-examination. Moreover, even if Sergeant Mullins’s testimony was not responsive,
the two isolated references to the defendant’s invocation of his right to counsel do not violate

                                              -61-
Doyle and Greenfield because the prosecution did not make any evidentiary use of the
testimony or attempt to penalize the defendant for exercising his constitutional right. See
Pulley, 525 S.E.2d at 54 (holding that there was no Doyle violation from a police officer’s
nonresponsive comment that the defendant invoked his right to counsel where the
prosecution did not exploit the issue).

                        b. Deputy Director Armstrong’s Testimony

      During the State’s direct examination of Deputy Director Armstrong, the following
exchange occurred:

       Q.     Did you make any attempts to go into greater detail with [the
              defendant] about what occurred in that house based on what you knew
              from the crime scene?

       A.     I did. From the crime scene I could tell some of the women’s clothing
              had been altered and I asked him about that. And as I tried to ask him
              additional questions about that, he asked for an attorney.

       Q.     He asked for a lawyer?

       A.     Yes, he did.

The defendant objected to this testimony and requested a mistrial. The trial court denied the
request for a mistrial, finding that the testimony was relevant “in light of the line of
questioning that’s been going on” and “in light of all the issues with regard to recorded
statements, formal statements.” The trial court then instructed the jury as follows:

               Ladies and gentlemen, before we go any further, let me just say this to
       you. Under our laws and under the Constitution of the United States, every
       person is entitled to have representation. People are advised and in this case
       a person is advised of their rights. They are advised that they have the right to
       talk to an attorney at any time. Once they request the permission to talk to an
       attorney, all questions cease, okay. There’s no more questioning after that
       point. Everybody has a right to that. That is a right that is entitled to all of us
       as citizens of the United States. You are to draw no conclusions from that,
       other than all questions cease at the point somebody says they want to talk to
       an attorney. Does everybody understand that? That’s the only conclusion you
       may draw from that, all questions cease at that point.



                                              -62-
       The State then questioned Deputy Director Armstrong as follows:

       Q.     And on that note, . . . you weren’t []able to get a formal written
              statement from [the defendant] because he stopped the interview?

       A.     He did stop.

       Deputy Director Armstrong also mentioned the defendant’s request for counsel during
cross-examination in the following exchange with defense counsel:

       Q.     When I asked you about the comment [the defendant] made to you that
              you lied to me, would that be something important enough to put into
              your supplement, Deputy Director Armstrong?

       A.     I don’t see where it’s relevant, no, sir.

       Q.     So it’s not important?

       A.     I don’t see where it’s relevant as far as what if you decide—no, sir. At
              that point when he decided that he wanted an attorney, we ceased the
              interview.

When defense counsel later questioned Deputy Director Armstrong about the lack of details
in the defendant’s confession, the following exchange occurred:

       Q.     Okay. What did [the defendant] tell you he did with the boards that
              were in the house?

       A.     The only weapons that we ever discussed were pistols and the knives.
              Again, we did not get a chance to get into specifics where I was able to
              sit down and ask him specific questions to get specific answers from
              him because by the time we got to that point, he requested an attorney
              and I ceased the interview.

       The defendant submits that the trial court erred in denying his motion for a mistrial
because Deputy Director Armstrong’s testimony violated Doyle and Greenfield. We
disagree.

       As the trial court stated when overruling the defense motion for a mistrial, the defense
had attacked the police investigation as incompetent and incomplete throughout the trial.

                                             -63-
The defense had repeatedly questioned police witnesses about the lack of a detailed, formal,
and recorded statement from the defendant. These questions were phrased in a manner that
implied the lack of detail in the defendant’s confession stemmed from police incompetence
or police negligence in failing to record the defendant’s responses accurately. Deputy
Director Armstrong was one of the last police witnesses to testify in the prosecution’s case-
in-chief. The prosecutor, having heard the defense’s cross-examination of each prior police
witness, did not err by asking Deputy Director Armstrong on direct examination whether he
made any attempts to obtain a more detailed statement from the defendant. The prosecutor
did not directly ask Deputy Director Armstrong about the defendant’s invocation of his right
to counsel. The question that was asked was a fair response to the defense theory and
questioning throughout the trial to that point. The trial court provided an appropriate
instruction limiting the jury’s consideration of Deputy Director Armstrong’s mention of the
defendant’s invocation of his right to counsel, which we must presume the jury followed.
State v. Young, 196 S.W.3d 85, 111 (Tenn. 2006). The prosecution’s use of the testimony
regarding the defendant’s request for counsel was appropriately limited to rebutting the
defense theory at trial. See United States v. Robinson, 485 U.S. 25, 32 (1988) (holding that
prosecutors are not prohibited from commenting upon a defendant’s decision not to testify
at trial so long as the prosecutorial comment is simply a “fair response” to defense claims and
the prosecutorial comment does not treat the defendant’s silence as “substantive evidence of
guilt”); State v. Cazes, 875 S.W.2d 253, 267 (Tenn. 1994) (applying Robinson to reject a
Griffin claim). The prosecution attempted neither to create an inference of guilt from the
defendant’s request for counsel nor to use the defendant’s request for counsel to impeach his
trial testimony. Considering all the relevant circumstances, we conclude that Deputy
Director Armstrong’s testimony did not violate the Doyle and Greenfield constitutional rules.
See Parks v. State, 543 S.W.2d 855, 857 (Tenn. Crim. App. 1976) (declining to find a Doyle
violation where the officer’s statement about the defendant’s refusal to respond to police
questioning was merely a comment on the scope of the defendant’s statements and not a
reference to the refusal of the defendant to make any statement at all”).

        The defendant also challenges the State’s comment during rebuttal closing argument
that “[w]hen [the defendant] was brought down to the police department, he could have
cleared it all up[,] [b]ut he didn’t” as a comment on the defendant’s exercise of his right to
remain silent. Again, we disagree. Rather than a comment on the defendant’s exercise of
his right to remain silent, the prosecutor’s statement reminded the jury of the contents of the
defendant’s post-arrest confession to Deputy Director Armstrong and the defendant’s
admissions to his mother. The purpose of the prosecutor’s statement was to highlight the
discrepancies between the defendant’s post-arrest confession and admissions and his
testimony at trial. The prosecutor was not commenting upon the defendant’s exercise of his
constitutional rights. The prosecutor’s statement did not violate Doyle or its progeny.
Morgan v. State, 755 N.E.2d 1070, 1075 (Ind. 2001) (“Although evidence of a defendant’s

                                             -64-
post-Miranda silence is generally not admissible, the defendant may open the door to its
admission”).

        Finally, we agree with the Court of Criminal Appeals that, even if Deputy Director
Armstrong’s testimony regarding the defendant’s request for counsel was constitutionally
improper, the error was harmless beyond a reasonable doubt. The defense had already
elicited testimony about the defendant’s request for an attorney during Sergeant Mullins’s
cross-examination. The defense did not object to or move to strike Sergeant Mullins’s
testimony. Deputy Director Armstrong’s testimony was merely cumulative to the proof
already elicited by the defense. See Johnson, 743 S.W.2d at 158-59 (finding that any error
in the police officer’s brief references to the defendant asking to consult with counsel while
making a statement was harmless beyond a reasonable doubt).

                               C. Confrontation Clause Claims

        The defendant argues that the admission of testimony from several police officer
witnesses and the admission of autopsy reports prepared by a medical examiner who did not
testify, as well as the admission of expert testimony about those autopsies, violated his state
and federal constitutional right to confront the witnesses against him. Alternatively, the
defendant argues that the testimony from the police officers amounted to hearsay and
violated the Tennessee Rules of Evidence. The State argues that the defendant’s failure to
object on constitutional grounds limits this Court to conducting plain error review and that
the defendant is not entitled to relief because the testimony and autopsy reports were properly
admitted. We will first summarize the governing legal principles and then apply those
principles to each of the defendant’s claims.

                                    1. Right of Confrontation

       The Confrontation Clause of the Sixth Amendment to the United States Constitution,
made applicable to the States by the Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400,
403 (1965), directs that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to
be confronted with the witnesses against him.” U.S. Const. amend. VI. Article I, section 9
of the Tennessee Constitution similarly provides “[t]hat in all criminal prosecutions, the
accused hath the right . . . to meet the witnesses face to face.” Tenn. Const. art. I, § 9. The
phrasing of the state constitutional provision differs from the text of the Sixth Amendment
and has been described as imposing “a higher right than that found in the federal
constitution.” State v. Deuter, 839 S.W.2d 391, 395 (Tenn. 1992). However, when deciding
claims based on the right of confrontation provided in article I, section 9, we have expressly
adopted and applied the same analysis used to evaluate claims based on the Confrontation
Clause of the Sixth Amendment. State v. Parker, 350 S.W.3d 883, 898 (Tenn. 2011); State

                                               -65-
v. Franklin, 308 S.W.3d 799, 809-10 (Tenn. 2010); State v. Cannon, 254 S.W.3d 287, 301
(Tenn. 2008); State v. Lewis, 235 S.W.3d 136, 145 (Tenn. 2007).31 Thus, we will unitarily
analyze the defendant’s federal and state constitutional claims, as the same standards govern
both.

       Any discussion of current Confrontation Clause jurisprudence necessarily begins with
Crawford v. Washington, 541 U.S. 36 (2004), in which the Supreme Court abrogated the test
that had been used for twenty-five years32 and announced a new mode of analysis. After
examining the historical underpinnings of the Confrontation Clause, id. at 43-50, the
Crawford Court described “the principal evil at which the Confrontation Clause was
directed” as “the civil-law mode of criminal procedure, and particularly its use of ex parte
examinations as evidence against the accused.” Id. at 50. The text of the Confrontation
Clause reflects this concern, the Crawford Court said, by focusing on “‘witnesses’” against
the accused—in other words, those who “‘bear testimony’” against an accused. Id. at
51 (quoting 2 Noah Webster, An American Dictionary of the English Language (1828)).
“‘Testimony,’” the Supreme Court explained, “‘is typically “[a] solemn declaration or
affirmation made for the purpose of establishing or proving some fact.’” Id. (quoting 2 Noah
Webster, An American Dictionary of the English Language (1828)). Thus, the Supreme
Court concluded that the Confrontation Clause precludes the admission of “[t]estimonial
statements of witnesses absent from trial,” unless the witness is unavailable to testify and the
defendant had a prior opportunity for cross-examination. Id. at 59. The Court held:

        Where nontestimonial hearsay is at issue, it is wholly consistent with the
        Framers’ design to afford the States flexibility in their development of hearsay
        law . . . . Where testimonial evidence is at issue, however, the Sixth
        Amendment demands what the common law required: unavailability and a
        prior opportunity for cross-examination.

Id. at 68. Crawford thus instructs that testimonial statements are “inadmissible unless the
witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity
for cross-examination.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 300 (2009) (citing
Crawford, 541 U.S. at 54).




        31
           The defendant has not argued that the Tennessee Constitution affords greater protection or that
a different standard governs our analysis of his state constitutional claim.
        32
          Before Crawford, Confrontation Clause challenges to the admissibility of out-of-court statements
of an unavailable witness were governed by Ohio v. Roberts, 448 U.S. 56 (1980).

                                                  -66-
       Two years after Crawford, the Supreme Court held that the Confrontation Clause
applies only to testimonial hearsay and does not apply to nontestimonial hearsay. Davis v.
Washington, 547 U.S. 813, 823-24 (2006); see also Whorton v. Bockting, 549 U.S. 406, 420
(2007) (stating that the Confrontation Clause has “no application” to nontestimonial hearsay).
Thus, the threshold question in every case where the Confrontation Clause is relied upon as
a bar to the admission of an out-of-court statement is whether the challenged statement is
testimonial. Cannon, 254 S.W.3d at 301.

       The Crawford Court declined to “spell out a comprehensive definition of
‘testimonial[,]’” Crawford, 541 U.S. at 51, providing instead the following illustrative list
of the “core class of ‘testimonial’ statements” to which the Confrontation Clause applies:

       [(1)] [E]x parte in-court testimony or its functional equivalent—that is,
       material such as affidavits, custodial examinations, prior testimony that the
       defendant was unable to cross-examine, or similar pretrial statements that
       declarants would reasonably expect to be used prosecutorially. . .; [(2)]
       extrajudicial statements . . . contained in formalized testimonial materials, such
       as affidavits, depositions, prior testimony, or confessions. . .; [and (3)]
       statements that were made under circumstances which would lead an objective
       witness reasonably to believe that the statement would be available for use at
       a later trial.

Id. at 51-52 (citations and quotation marks omitted).

        The Crawford Court also identified certain types of statements that “by their nature
[are] not testimonial—for example, business records or statements in furtherance of a
conspiracy,” which therefore do not implicate the Confrontation Clause. Id. at 56. The
Crawford Court emphasized also that the Confrontation Clause places “no constraints at all”
on the use of prior testimonial statements of a declarant who is present and available on
cross-examination to defend or explain prior testimonial statements. Id. at 59 n.9 (citations
omitted); accord State v. Banks, 271 S.W.3d 90, 118-19 (Tenn. 2008) (interpreting article
I, section 9 as not applying to testimonial statements when a declarant appears for cross-
examination at trial). Furthermore, the Crawford Court explained that the Confrontation
Clause is not violated when testimonial statements are admitted for purposes other than
establishing the truth of the matter asserted. Crawford, 541 U.S. at 59 n.9; accord State v.
Franklin, 308 S.W.3d at 808-811 (citing state and federal decisions which found no
Confrontation Clause violation where the out-of-court statement—whether testimonial or
not—was admitted for some purpose other than the truth of the matter asserted).




                                             -67-
       Since Crawford, the Supreme Court has still not “attempt[ed] to produce an
exhaustive classification of all conceivable statements—or even all conceivable statements
in response to police interrogation—as either testimonial or nontestimonial . . . .” Davis, 547
U.S. at 822. However, in Davis the Supreme Court instructed that the “primary purpose” of
a statement marks the relevant dividing line between the two categories, explaining:

       Statements are nontestimonial when made in the course of police interrogation
       under circumstances objectively indicating that the primary purpose of the
       interrogation is to enable police assistance to meet an ongoing emergency.
       They are testimonial when the circumstances objectively indicate that there is
       no such ongoing emergency, and that the primary purpose of the interrogation
       is to establish or prove past events potentially relevant to later criminal
       prosecution.

Id. (emphasis added). When determining a statement’s primary purpose, “the relevant
inquiry is not the subjective or actual purpose of the individuals involved in a particular
encounter, but rather the purpose that reasonable participants would have had, as ascertained
from the individuals’ statements and actions and the circumstances in which the encounter
occurred.” Michigan v. Bryant, 562 U.S. ––––, 131 S. Ct. 1143, 1156 (2011) (holding that,
under the circumstances, the police interrogation of a shooting victim had the primary
purpose of responding to the emergency of a roaming gunman and, thus, the elicited
statements were not testimonial).

       Neither Crawford nor Davis nor Bryant involved expert proof, but three more recent
Supreme Court decisions address such proof and are pertinent to our analysis of the issues
the defendant has raised in this appeal. Williams, 567 U.S. ___, 132 S. Ct. 2221 (2012);
Bullcoming v. New Mexico, ___ U.S.___, 131 S. Ct. 2705 (2011); Melendez–Diaz v.
Massachusetts, 557 U.S. 305 (2009). We begin with the first decision in the series.

        In Melendez–Diaz, the Supreme Court applied the primary purpose test to the
notarized “certificates of analysis” that described the results of forensic testing performed
by analysts of the Massachusetts State Laboratory Institute. 557 U.S. at 308-09. The fact at
issue in the criminal trial was whether the substance the defendant possessed was cocaine,
and the certificates stated that the substance was in fact cocaine. Thus, the Court held that
the “certificates of analysis” were “quite plainly affidavits[,]” which fell within the “core
class of testimonial statements” described in Crawford. Melendez–Diaz, 557 U.S. at 310-11
(citations and internal quotation marks omitted). The notarized certificates, the Court said,
amounted to a “solemn declaration or affirmation made for the purpose of establishing or
proving some fact.” Id. at 310 (citing Crawford, 541 U.S. at 51). The Court also reasoned
that the affidavits were made for “the sole purpose” of providing “prima facie evidence of

                                             -68-
the composition, quality, and the net weight of the analyzed substance.” Id. at 311 (citations
omitted). The Supreme Court concluded that the certificates were “functionally identical to
live, in-court testimony, doing ‘precisely what a witness does on direct examination.’” Id.
(quoting Davis, 547 U.S. at 830 (emphasis omitted)). As a result, the certificates “were
testimonial statements, and the analysts were ‘witnesses’ for the purposes of the Sixth
Amendment.” Id. at 311. Thus, the Supreme Court held that,“[a]bsent a showing that the
analysts were unavailable to testify at trial and that [the defendant] had a prior opportunity
to cross-examine them, [the defendant] was entitled to ‘be confronted with’ the analysts at
trial.” Id.

       Observing that “[c]onfrontation is one means of assuring accurate forensic analysis,”
and, indeed, the only means constitutionally guaranteed, the Supreme Court held that
“[f]orensic evidence is not uniquely immune from the risk of manipulation.” Id. at 318.
Because many labs are administered by law enforcement agencies, “[a] forensic analyst
responding to a request from a law enforcement official may feel pressure—or have an
incentive—to alter the evidence in a manner favorable to the prosecution.” Id.

       The Supreme Court noted that the analysts’ affidavits merely identified the substance
as cocaine and provided no information about “what tests the analysts performed, whether
those tests were routine, and whether interpreting their results required the exercise of
judgment or the use of skills that the analysts may not have possessed.” Id. at 320. The
Supreme Court explained that “[a]t least some of that methodology [the analysts used]
require[d] the exercise of judgment and present[ed] a risk of error that might be explored on
cross-examination.” Id. Thus, the Court found “little reason to believe that confrontation
[would] be useless in testing [the] analysts’ honesty, proficiency, and methodology—the
features that are commonly the focus in the cross-examination of experts.” Id. at 321.

        The Supreme Court returned to the subject of the Confrontation Clause and forensic
reports in Bullcoming v. New Mexico. There, the police arrested the defendant on charges
of driving while intoxicated. 131 S. Ct. at 2709. The prosecution submitted a forensic
laboratory report certifying Bullcoming’s blood-alcohol concentration as a business record.
Id. at 2712. Instead of calling the analyst who signed the certification, who was on unpaid
leave for undisclosed reasons, the prosecution “called another analyst who was familiar with
the laboratory’s testing procedures, but had neither participated in nor observed the test on
Bullcoming’s blood sample.” Id. at 2709. The testifying analyst and the certifying analyst
both worked for the New Mexico Department of Health’s Scientific Laboratory Division.
Id. at 2710, 2712. The Supreme Court rejected the argument that substitute testimony
satisfied the constitutional requirement because the tests themselves were reliable, explaining
that “the analysts who write reports that the prosecution introduces must be made available
for confrontation even if they possess ‘the scientific acumen of Mme. Curie and the veracity

                                             -69-
of Mother Teresa.’” Id. at 2715 (quoting Melendez-Diaz, 557 U.S. at 319 n.6). The
Supreme Court declared that the Confrontation Clause “does not tolerate dispensing with
confrontation simply because the court believes that questioning one witness about another’s
testimonial statements provides a fair enough opportunity for cross-examination.” Id. at
2716. The Court noted that “the formalities attending the ‘report of blood alcohol analysis’
[were] more than adequate to qualify [the certifying analyst’s] assertions as testimonial.” Id.
at 2717.

        As part of its analysis in Bullcoming, the Supreme Court pointed out that operating
the machine used to conduct the test required “specialized knowledge and training” and that
human error can occur at several points during the testing process. Id. at 2711. Furthermore,
the testifying analyst “could not convey what the [certifying analyst] knew or observed about
the events his certification concerned, i.e., the particular test and testing process he
employed. Nor could such surrogate testimony expose any lapses or lies on the certifying
analyst’s part.” Id. at 2715 (footnotes omitted). On the other hand, the certifying analyst’s
“testimony under oath would have enabled Bullcoming’s counsel to raise before [the] jury
questions concerning [the certifying analyst’s] proficiency, the care he took in performing
his work, and his veracity.” Id. at 2715 n.7.

        Justice Sotomayor, who provided the fifth vote for the majority opinion in
Bullcoming, wrote a separate opinion to clarify her view that the report was testimonial
because its primary purpose was evidentiary and “to emphasize the limited reach of the
Court’s opinion.” Id. at 2719 (Sotomayor, J., concurring). She noted that the surrogate
analyst was not “a supervisor, reviewer, or someone else with a personal, albeit limited,
connection to the scientific test at issue.” Id. at 2722. She opined that “[i]t would [have
been] a different case if, for example, a supervisor who observed an analyst conducting a test
testified about the results or a report about such results.” Id. She noted that the lead opinion
in Bullcoming had not addressed the “degree of involvement” that would be sufficient to
allow a supervisor to testify because the surrogate analyst who testified “had no involvement
whatsoever in the relevant test and report.” Id. Justice Sotomayor also noted that
Bullcoming was “not a case in which an expert witness was asked for his independent
opinion about underlying testimonial reports that were not themselves admitted into
evidence,” id., which she viewed also as a “different question.” Id.

       Most recently, in Williams v. Illinois, 567 U.S. ––––, 132 S. Ct. 2221 (2012), the
Supreme Court considered whether Crawford bars an expert from expressing an opinion
based on facts gleaned from a laboratory report, when the expert lacks firsthand knowledge
regarding the preparation of the report. The hearsay evidence at issue in Williams was a
DNA profile prepared by an outside laboratory, Cellmark, using vaginal swabs collected
from the crime victim’s rape kit. Id. at 2227. A state police DNA analyst searched the

                                              -70-
state’s DNA database and matched the profile Cellmark prepared to a profile of the
defendant’s DNA taken upon his earlier arrest on an unrelated matter. Id. at 2229. At trial,
over a defense Confrontation Clause objection, the police DNA analyst was permitted to
testify that the defendant’s DNA profile in the state database matched the male DNA profile
Cellmark had developed from semen on the victim’s vaginal swabs. Id. at 2230. Cellmark’s
written report, on which the state police DNA analyst based her testimony, was not itself
introduced in evidence. Id. at 2231. No witness having personal knowledge of Cellmark’s
development of the DNA profile from the vaginal swab testified at trial. Id. at 2229–31.

       Justice Alito authored a plurality opinion in Williams, which Chief Justice Roberts
and Justices Kennedy and Breyer joined. The plurality reasoned that the Cellmark report was
not testimonial because it did not have “the primary purpose of accusing a targeted
individual.” Id. at 2243. The plurality explained that, because no one had been identified
as a suspect when the report was prepared, the primary purpose of Cellmark’s DNA testing
was not “to accuse petitioner or to create evidence for use at trial” but, rather, “to catch a
dangerous rapist who was still at large.” Id. The plurality thus viewed Cellmark’s report as
analogous to statements made “to enable police assistance to meet an ongoing emergency”
or “to bring an end to an ongoing threat,” which the Court previously had held not to be
testimonial. Id. Given their non-accusatory role, the plurality reasoned that the Cellmark
scientists had “no incentive to produce anything other than a scientifically sound and reliable
profile.” Id. at 2244.

        Justice Thomas provided the fifth vote in support of the Williams judgment. Justice
Thomas actually rejected what he called the plurality’s “new primary purpose test,” under
which, he said, even a statement with a primarily evidentiary purpose is testimonial only if
it is meant to incriminate a particular known individual, as “lack[ing] any grounding in
constitutional text, in history, or in logic.” Id. at 2262 (Thomas, J., concurring in the
judgment). Among other things, Justice Thomas argued that the targeted-accusation
requirement made “little sense” because “[a] statement that is not facially inculpatory may
turn out to be highly probative of a defendant’s guilt when considered with other evidence.”
Id. at 2263. Nonetheless, Justice Thomas concurred with the plurality’s conclusion that the
Cellmark report was not testimonial. While he “agree[d] that, for a statement to be
testimonial within the meaning of the Confrontation Clause, the declarant must primarily
intend to establish some fact with the understanding that his statement may be used in a
criminal prosecution,” Justice Thomas deemed that to be only one “necessary criterion,” not
the “sufficient” one. Id. at 2261. Justice Thomas explained that to be testimonial, a
statement must satisfy the additional requirement of possessing sufficient “‘indicia of
solemnity,’” id. at 2259 (quoting Davis, 547 U.S. at 836-37), which the Cellmark report
failed to do. According to Justice Thomas, only “‘formalized testimonial materials,’ such
as depositions, affidavits, and prior testimony, or statements resulting from ‘formalized

                                             -71-
dialogue,’ such as custodial interrogation,” satisfy that additional necessary criterion. Id. at
2260 (internal quotation marks omitted). The Cellmark report, Justice Thomas concluded,
was “neither a sworn nor a certified declaration of fact,” and “although the report was
produced at the request of law enforcement, it was not the product of any sort of formalized
dialogue resembling custodial interrogation.” Id.

       Justice Kagan, in an opinion joined by Justices Scalia, Ginsburg, and Sotomayor,
dissented. Williams, 132 S.Ct. at 2264 (Kagan, J., dissenting). The dissenters joined Justice
Thomas in rejecting the plurality’s targeted “‘accusation’” test on multiple grounds, which
means that a majority of the Court, consisting of Justice Thomas and the Williams dissenters,
rejected that test. Id. at 2274. Among other things, the dissenters observed that for purposes
of the Confrontation Clause “it makes not a whit of difference whether, at the time of the
laboratory test, the police already have a suspect” because “the typical problem with
laboratory analyses—and the typical focus of cross-examination—has to do with careless or
incompetent work, rather than with personal vendettas” or a particular analyst’s dishonesty.
Id. Unlike the plurality, the dissenters did not view the analysis Cellmark performed as
necessary “to catch a dangerous rapist who was still at large” and analogous to the statements
Davis and Bryant held to be nontestimonial. Id. The dissenters argued that comparing the
Cellmark analysis to those statements stretched the ongoing emergency test and the facts of
Williams “beyond all recognition.” Id.

        The dissenters also rejected Justice Thomas’s formality criterion, describing it as
granting “constitutional significance to minutia, in a way that can only undermine the
Confrontation Clause’s protections” by enabling prosecutors to evade the constitutional
imperative “by using the right kind of forms with the right kind of language,” so that no
forensic report would be formal enough to constitute a testimonial statement. Id. at 2276 (“It
would not take long to devise the magic words and rules—principally, never call anything
a ‘certificate.’”).

        The dissenters viewed Williams as an “an open-and-shut case,” id. at 2265, if the
Court “adher[ed] to the simple rule” established in earlier Confrontation Clause precedents.
Id. at 2265. The dissenters concluded that the Cellmark report was testimonial because it was
made to establish “‘some fact’ in a criminal proceeding,” specifically the identity of the
rapist. Id. at 2266 (quoting Bullcoming, 131 S. Ct. at 2716). The dissenters concluded that
allowing an expert who had no knowledge of the report to testify at Williams’s trial violated
his Sixth Amendment right to confront the witnesses against him. Id. at 2268.

       The Supreme Court’s fractured decision in Williams provides little guidance and is
of uncertain precedential value because no rationale for the decision—not one of the three
proffered tests for determining whether an extrajudicial statement is testimonial—garnered

                                              -72-
the support of a majority of the Court. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 66
(1996) (stating that a decision is “of questionable precedential value” when “a majority of
the Court expressly disagree[s] with the rationale of the plurality”); United States v. Pink,
315 U.S. 203, 216 (1942) (stating that while a decision which merely affirms a judgment “by
an equally divided court” is “conclusive and binding upon the parties as respects that
controversy” the lack of majority agreement “on the principles of law involved prevents it
from being an authoritative determination for other cases”).

        It is true that typically “[w]hen a fragmented Court decides a case and no single
rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court
may be viewed as that position taken by those Members who concurred in the judgments on
the narrowest grounds . . . .’” Marks v. United States, 430 U.S. 188, 193 (1977) (quoting
Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976)). The Marks rule presupposes, however,
that the narrowest concurrence will represent a “common denominator” rationale. King v.
Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991). If one opinion “does not fit entirely within a
broader circle drawn by the others,” the Marks approach ceases to function as it was
intended, and adhering to it in such circumstances would “turn a single opinion” to which
“eight of nine Justices do not subscribe” into law. King, 950 F.2d at 782.

       The Marks rule ceases to function as it was intended where Williams is concerned
because the two opinions that resulted in the judgment share no common denominator
rationale. Neither the plurality’s rationale nor Justice Thomas’s rationale is subsumed within
the other, nor is one rationale narrower than the other in any relevant way that we can
discern. For example, a statement could be made for the purpose of accusing a targeted
individual, and therefore be testimonial under the plurality’s test, but not be sufficiently
formal to qualify as a testimonial statement under Justice Thomas’s test. Conversely, a
statement could be sufficiently formal to satisfy Justice Thomas’s test but not be sufficiently
targeted to satisfy the plurality’s test.

       Regardless of our inability to apply Marks, we agree with the District of Columbia
Court of Appeals’s reading of Williams:

       By analogy to Marks, it can be argued that while [the plurality’s] rationale and
       Justice Thomas’s rationale may not be includible within each other, the
       different tests they utilize to determine whether a statement is testimonial are
       subsumed within and narrower than the dissenters’ test. That is so because
       [the plurality] and Justice Thomas each added an additional requirement to the
       basic “evidentiary purpose” test espoused by [the dissenters]. If the
       four-Justice plurality would deem a statement testimonial under the targeted
       accusation test, the four dissenting Justices surely would deem it testimonial

                                             -73-
       under the broader evidentiary purpose test. Similarly, if Justice Thomas would
       deem a statement testimonial employing his formality criterion along with the
       evidentiary purpose test, the four dissenting Justices necessarily would deem
       it testimonial using the evidentiary purpose test alone. It therefore is logically
       coherent and faithful to the Justices’ expressed views to understand Williams
       as establishing—at a minimum—a sufficient, if not a necessary, criterion: a
       statement is testimonial at least when it passes the basic evidentiary purpose
       test plus either the plurality’s targeted accusation requirement or Justice
       Thomas’s formality criterion. Otherwise put, if Williams does have
       precedential value . . . an out-of-court statement is testimonial under that
       precedent if its primary purpose is evidentiary and it is either a targeted
       accusation or sufficiently formal in character.

Young v. United States, 63 A.3d 1033, 1043-44 (D.C. 2013); see also State v. Michaels,
___A.3d __, 2014 WL 3843299, at *17 (N.J. Aug. 6, 2014) (“In short, each of those three
opinions in Williams embraces a different approach to determining whether the use of
forensic evidence violates the Confrontation Clause, and there is no narrow rule that would
have the support of a majority of the Supreme Court that we can discern from the opinions
in Williams. Further, Williams advances a wholly new approach to when a forensic
document will be deemed testimonial, and that approach diverges from the primary purpose
test that had been applied previously. We find Williams’s force, as precedent, at best
unclear.”). Having summarized the law related to Confrontation Clause claims, we turn to
the facts of this case.

              2. Autopsy Reports and Testimony about the Autopsy Reports

       Relying primarily upon Melendez-Diaz, the defendant contends that the admission of
three autopsy reports prepared by a medical examiner who did not testify and Dr. Funte’s
testimony about those reports violated his state and federal right to confront the witnesses
against him.

       The State first points outs that the defendant failed to object to the admission of the
autopsy reports and also failed to raise the issue in his motion for new trial. The State is
correct, and we are again constrained to utilize plain error review when considering this
issue. The State contends that the defendant is not entitled to relief via the plain error
doctrine because no clear rule of law was breached. The State points out that the law was
unsettled at the time of the defendant’s trial and remains unsettled as to the question of
whether autopsy reports are or are not testimonial. We agree.




                                              -74-
        This case was tried in September 2010, after Melendez-Diaz, but prior to Bullcoming,
and Williams.33 As already noted, neither Crawford nor its progeny provided a
comprehensive listing of statements that qualify as “testimonial.”               Furthermore,
Melendez–Diaz did not decide the specific question of whether autopsy reports should be
considered testimonial. The majority opinion’s only reference to autopsy reports appeared
in a footnote and was in response to the dissent’s suggestion that the Confrontation Clause
is not designed to detect errors in scientific tests, and that other methods such as a new test
might better serve that purpose. The majority simply cited autopsies as an example of a
forensic test that cannot be repeated. See Melendez-Diaz, 557 U.S. at 318 & n.5; see also
id. at 337 (Kennedy, J., dissenting). The Supreme Court neither explicitly nor implicitly
indicated whether autopsy reports are (or are not) testimonial in nature.34 Thus, the issue
remained unsettled. See, e.g., Nardi v. Pepe, 662 F.3d 107, 111 (1st Cir. 2011) (“[A]n
autopsy report can be distinguished from, or assimilated to, the sworn documents in
Melendez-Diaz.”); id. at 112 (“[N]o one can be certain just what the Supreme Court would
say about that issue today.”); United States v. McGhee, 627 F.3d 454, 459 (1st Cir. 2010)
(noting that the Melendez-Diaz Supreme Court was “sharply divided” and that the Court’s
“new slant on the Confrontation Clause is likely to be contested territory for some years”),
vacated on reh’g on other grounds, 651 F.3d 153 (1st Cir. 2011); Martin v. State, 60 A.3d
1100, 1102 (Del. Supr. 2013) (“We recognize that substantial uncertainty exists about
whether a particular statement is ‘testimonial’ or otherwise triggers the Confrontation
Clause.”).

       Courts continue to be divided on the question of whether autopsy reports are
testimonial statements or not. On the one hand, some courts have concluded that autopsy
reports are not testimonial. See, e.g., United States v. James, 712 F.3d 79, 99 (2nd Cir. 2013)


        33
           The defendant’s trial also occurred before the Court of Criminal Appeals rendered its decision in
State v. Freeman, No. M2011-00184-CCA-R3-CD, 2012 WL 1656975, at *10-13 (Tenn. Crim. App. May
9, 2012), which concluded that the autopsy report introduced into evidence at Mr. Freeman’s trial was
testimonial. Freeman was decided after Melendez-Diaz and Bullcoming but before Williams. Nonetheless,
the autopsy report in Freeman qualified as testimonial under the test adopted by the plurality in Williams
because, “[b]y the time the victim’s autopsy was conducted, authorities had already concluded that she had
been murdered and had begun to build their case against [Freeman] as the perpetrator.” Id. at *13 (emphasis
added). It also qualified as “testimonial” under the primary purpose test preferred by the dissenters in
Williams because the intermediate appellate court in Freeman could not “say that the autopsy . . . had as its
primary purpose anything other than use in a criminal trial.” Id.
        34
           After Crawford, and before Melendez–Diaz, courts had held that autopsy reports were not
testimonial. See, e.g., United States v. De La Cruz, 514 F.3d 121, 133 (1st Cir. 2008) (holding that an
autopsy report is a non-testimonial business record); United States v. Feliz, 467 F.3d 227, 236 (2nd Cir.
2006) (same).


                                                    -75-
(deciding that the autopsy report at issue “was not testimonial because it was not prepared
primarily to create a record for use at a criminal trial”); People v. Dungo, 286 P.3d 442, 450
(Cal. 2012) (finding that even though California’s statutory scheme requires the reporting of
suspicious autopsy findings to law enforcement, an autopsy serves several purposes and the
“autopsy report itself was simply an official explanation of an unusual death, and such
official records are ordinarily not testimonial”); People v. Leach, 980 N.E.2d 570, 592 (Ill.
2012) (holding that autopsy reports are not testimonial and explaining that an autopsy report
is prepared in the normal course of operation of the medical examiner’s office, to determine
the cause and manner of death, and is not prepared for the primary purpose of accusing “a
targeted individual of engaging in criminal conduct” or providing “evidence in a criminal
trial” (citations and internal quotation marks omitted)); State v. Maxwell, 9 N.E.3d 930, 950
(Ohio 2014) (“Autopsy reports are not intended to serve as an out-of-court substitute for trial
testimony. Instead, they are created for the primary purpose of documenting cause of death
for public records and public health.” (citations and internal quotation marks omitted)).

       Other courts have found that autopsy reports are testimonial statements which
implicate Confrontation Clause protections. See, e.g., United States v. Ignasiak, 667 F.3d
1217, 1231 (11th Cir. 2012) (holding that, applying the logic of Crawford, Melendez–Diaz,
and Bullcoming, the autopsy reports at issue were testimonial); Cuesta–Rodriguez v. State,
241 P.3d 214, 228 (Okla. Crim. App. 2010) (holding that, in light of Oklahoma’s statutory
scheme relative to the medical examiner’s duty in the case of a suspicious death, an autopsy
report in such cases would be testimonial); State v. Kennedy, 735 S.E.2d 905, 917-18
(W. Va. 2012) (holding, based partially on West Virginia’s statutory scheme, that autopsy
reports are under all circumstances testimonial).

        Moreover, some courts have ruled since Melendez-Diaz and Bullcoming that the
Confrontation Clause does not preclude experts from offering their own opinions, regardless
of the independent admissibility of the material they relied upon in forming those opinions.
See Nardi, 662 F.3d at 112 (citing cases). The Court of Criminal Appeals has so held.
Freeman, 2012 WL 1656975, at *14 (recognizing that the testifying doctor placed some of
his nontestifying colleague’s findings before the jury while relating his own opinion about
the cause of the victim’s death but holding that such testimony “was well within” the doctor’s
field of expertise and that the autopsy report prepared by his colleague was “of a type
reasonably relied upon by experts” in his field (internal quotation marks omitted)).

      We need not decide in this case whether autopsy reports are testimonial or whether
a medical examiner may testify about an autopsy report produced by another pathologist who
does not testify at trial. Instead we hold only that no clear rule of law was breached in this




                                             -76-
case by the admission of the autopsy reports or Dr. Funte’s testimony about them.35 Given
the uncertainty that has existed in Confrontation Clause jurisprudence since Crawford, and
in particular the lack of clarity regarding expert reports and testimony, which was actually
exacerbated by the splintered decision in Williams, we conclude that the defendant has failed
to establish that a clear and unequivocal rule of law was breached.

        Furthermore, we also conclude, as did the Court of Criminal Appeals, that granting
relief by way of the plain error doctrine is not “‘necessary to do substantial justice.’” Smith,
24 S.W.3d at 283 (quoting Adkisson, 899 S.W.2d at 641-42). Dr. Funte testified as an expert
without any objection from the defendant. The defendant did not contest the causes of the
victims’ deaths or any other conclusions or information contained in the autopsy reports or
in Dr. Funte’s testimony. Nor did the autopsy reports or Dr. Funte’s testimony implicate the
defendant or tie him to these homicides. Under these circumstances, granting relief is not
necessary to do substantial justice. See Freeman, 2012 WL 1656975, at *13 (concluding that
granting relief was not necessary to do substantial justice even though the autopsy report was
testimonial and should not have been admitted because the defendant “did not contend that
the victim’s death was anything other than a homicide,” and challenged only his identity as
the perpetrator of the victim’s murder, an issue upon which neither the autopsy report nor the
pathologist’s testimony “shed much light”); State v. Flack, 753 S.E.2d 761, 769 (W. Va.
2013) (concluding that the admission of the state medical examiner’s testimony about an
autopsy report prepared by another pathologist was not plain error because the state medical
examiner’s testimony merely confirmed that the victim’s death was a homicide caused by a
gunshot wound and did not implicate the defendant or link the defendant to the homicide);
State v. Blevins, 744 S.E.2d 245, 268 (W. Va. 2013) (per curiam) (concluding that the
erroneous admission of the medical examiner’s testimony regarding an autopsy report
prepared by another pathologist was harmless beyond a reasonable doubt).

       Thus, both because no clear rule of law was breached and because granting relief is
not necessary to do substantial justice, the defendant is not entitled to relief under the plain
error doctrine.




        35
            We note, however, that unlike the autopsy report at issue in Freeman, the autopsy reports in this
case were prepared on March 4, 2008, before the defendant was identified as a suspect. Thus, the autopsy
reports here do not satisfy the Williams’s plurality’s test for determining whether a statement is testimonial.
Furthermore, the primary purpose of these autopsy reports was to identify the victims, locate and document
their injuries, and determine the causes of their deaths. Thus, it is not at all clear that these autopsy reports
would be classified as testimonial under the test espoused by the dissenters in Williams. Nor is it clear that
these autopsy reports would satisfy Justice Thomas’s formality criterion.

                                                      -77-
               3. Admission of Police Testimony Regarding C.J.’s Statements

        The defendant also argues that the trial court violated his constitutional right to
confront the witnesses against him by allowing Sergeant Mullins, Lieutenant Davidson, and
Sergeant Max to testify regarding C.J.’s statement identifying the defendant as the
perpetrator. The State responds that the defendant failed to preserve the constitutional issue
he now raises, pointing out that the defendant did not object at all to Sergeant Mullins and
Lieutenant Davidson testifying about C.J.’s statement and objected to Sergeant Max’s
testimony only on the basis of hearsay. The defendant also failed to raise this constitutional
issue in his motion for new trial, but he relied upon it in the Court of Criminal Appeals.

       In this Court, the defendant also argues that the challenged testimony was
inadmissible hearsay admitted in violation of the Tennessee Rules of Evidence. The
defendant concedes that he did not raise this issue in his motion for new trial or in the Court
of Criminal Appeals, but he argues that admission of this evidence amounted to plain error.
We conclude that the defendant is not entitled to relief because he has failed to establish that
admission of the challenged testimony breached a clear and unequivocal rule of law.

        First, even assuming the statements were hearsay,36 the Tennessee Rules of Evidence
recognize an exception for hearsay “statement[s] of identification of a person made after
perceiving the person if the declarant testifies at the trial or hearing and is subject to
cross-examination concerning the statement.” Tenn. R. Evid. 803(1.1). In this case, C.J.’s
out-of-court identification satisfied the Rule 803(1.1) criteria for admission. C.J. testified
at trial and was subject to cross-examination concerning the statement. Indeed, defense
counsel thoroughly cross-examined C.J. at trial.

       Second, as for any Confrontation Clause violation, there is no constraint on the use
of prior testimonial statements when a declarant appears at trial and is subject to
cross-examination. Crawford, 541 U.S. at 59 n.9 (“[W]e reiterate that, when the declarant
appears for cross-examination at trial, the Confrontation Clause places no constraints at all
on the use of [the declarant’s] prior testimonial statements.” (citing California v. Green, 399
U.S. 149, 162 (1970)). The same is true of the right to confrontation protected by article I,
section 9 of the Tennessee Constitution. Banks, 271 S.W.3d at 118-19.

        The defendant’s reliance upon California v. Green, 399 U.S. 149 (1970) for a contrary
rule is misplaced. In Green, the Supreme Court overruled California decisions and held that
“where the declarant is not absent, but is present to testify and to submit to

        36
            “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid. 801(c).

                                                   -78-
cross-examination, our cases, if anything, support the conclusion that the admission of [the]
out-of-court statements does not create a confrontation problem.” Id. at 162. Thus, under
both Green and Crawford, when a declarant appears for cross-examination at trial, “the
Confrontation Clause places no constraints at all on the use of [the declarant’s] prior
testimonial statements.”         Crawford, 541 U.S. at 59 n.9; see also People v.
Argomaniz–Ramirez, 102 P.3d 1015, 1018 . ( “Because the hearsay declarants will testify
at trial and will be subject to cross-examination, admission of their out-of-court statements
does not violate the Confrontation Clause”); Clark v. State, 808 N.E.2d 1183, 1189 n.2 (Ind.
2004) (stating that the Supreme Court expressly noted in Green that, “where the declarant is
not absent, but is present to testify and to submit to cross-examination, our cases, if anything,
support the conclusion that the admission of his out-of-court statements does not create a
confrontation problem”); State v. Gorman, 854 A.2d 1164, 1178 (Me. 2004) (stating that,
according to Crawford, the Confrontation Clause was satisfied when the defendant “was
given the opportunity to examine and cross-examine his mother before the jury regarding
what she did and did not recall and the reasons for her failure of recollection”); Cooley v.
State, 849 A.2d 1026, 1031 (Md. Ct. Spec. App. 2004) (holding that “Crawford did not
overrule the unbroken line of cases holding that the Confrontation Clause does not operate
to exclude pretrial statements made by a witness who actually testifies at trial”); State v. Tate,
682 N.W.2d 169, 176 n. 1 (Minn. Ct. App. 2004) (stating that because the declarant testified
at trial and was subject to cross-examination, the Confrontation Clause did not apply to
invalidate the hearsay exception); State v. Carothers, 692 N.W.2d 544, 547-49 (S.D. 2005);
Crawford v. State, 139 S.W.3d 462, 464 (Tex. App. 2004) (stating that “[a] careful reading
of the Crawford opinion reveals that its holding applies only when the extrajudicial
testimonial statements of a witness who does not testify at trial are sought to be admitted”
(italics in original)).

       In this case, C.J. testified at trial and was cross-examined thoroughly about his prior
statements of identification and his identification of the defendant at trial. Defense counsel
ably questioned him about his statements identifying or implicating others as the perpetrators
and about his ability to perceive what was happening at the time of the events. We agree
with the Court of Criminal Appeals that there is simply no merit to the defendant’s arguments
that admission of these statements was error, much less plain error. Dotson, 2013 WL
4728679, at *49.

         D. Admission of Evidence Regarding the Defendant’s Imprisonment

       Prior to trial, the defendant filed a motion in limine seeking to prevent the prosecution
from introducing evidence of his prior incarceration for second degree murder. Applying the
guidelines provided in Tennessee Rule of Evidence 404(a) and (b), the trial court denied the
motion. The trial court found that the defendant’s prior incarceration had been proven by

                                              -79-
clear and convincing evidence. The trial court emphasized that the prosecution had no
intention of informing the jury of the crime for which the defendant was incarcerated. The
trial court further found that statements about the defendant’s and Cecil’s relationship, which
mentioned the defendant’s prior incarceration, as well as statements the defendant made to
the police and family members after the murders regarding his unwillingness to return to
prison, were “highly probative as to the defendant’s intent, motive and state of mind at the
time of the commission of the offense[s] and outweighed any prejudicial effect to the
defendant.” Dotson, 2013 WL 4728679, at *59. However, the trial court refused to allow
the prosecution unlimited use of evidence regarding the defendant’s prior incarceration,
stating that “the mere fact that a witness’[s] knowledge of the defendant was in part or fully
conditioned upon defendant’s incarceration” was “simply insufficient to warrant the witness
divulging this fact to the jury.” Id.

        The defendant contends that the prosecution violated the trial court’s ruling on the
motion in limine by eliciting testimony from Deputy Director Armstrong that he knew of the
defendant’s prior incarceration when he went into the room to question the defendant. In the
pertinent exchange, Deputy Director Armstrong stated, “Before going in that interview room,
I knew that [the defendant] was very familiar with the criminal justice system because he had
recently been released from prison.” Defense counsel objected, relying on the trial court’s
ruling on the motion in limine. The trial court overruled the objection, stated that the
testimony was not inappropriate, and pointed out that numerous witnesses had already
testified to the defendant’s prior incarceration.

       The State then asked Deputy Director Armstrong why having background information
before conducting an interview was important. Deputy Director Armstrong responded:

              You try to get as much information about a person as you can. Before
       you interview them, you want to know how many times they’ve been arrested.
       You want to know if they’re familiar with the criminal justice system. You
       want to know if it’s the first time they’ve ever been arrested and you want to
       know have they ever been arrested of anything, a violent crime . . . . So it
       helps in an interview to know as much as you can about a person before you
       proceed with it.

The trial court then instructed the jury as follows:

              Before we go any further, ladies and gentlemen, there has been
       testimony in this case about whether or not [the defendant] had been in jail.
       There’s been some testimony with regard to the fact that he’s been in jail. I
       want you to understand the fact that he has been in jail has no bearing

                                             -80-
       whatsoever on your decision in this case. You’re to decide this case based
       upon the facts that are presented in this case. The only reason that issue has
       even come before you is it plays into certain parts of the proof. That’s the only
       thing you’re to consider that for. Does everybody understand that? Thank
       you.

        On appeal to the Court of Criminal Appeals, the defendant challenged Deputy
Director Armstrong’s testimony and argued that the trial court erred by overruling the
defense objection and finding it admissible. The Court of Criminal Appeals concluded that
Deputy Director Armstrong’s testimony regarding the defendant’s past incarceration was not
related to one of the categories of information the trial court described as permissible in the
order denying the defense motion in limine. Dotson, 2013 WL 4728679, at *61. The
intermediate appellate court also concluded that, because Deputy Director Armstrong had
failed to explain why knowing about an interview subject’s prior criminal history was
important, it could not conclude that his testimony was relevant to “the integrity of the
defendant’s confession—that the defendant knew his rights, had experience with police, and
would not be easily coerced into confessing to a heinous crime he did not commit,” as the
State argued. Id. (internal quotation marks omitted). Nonetheless, the intermediate appellate
court concluded that any error was harmless because: (1) by the time “Deputy Director
Armstrong testified, multiple other witnesses had testified to the defendant’s prior
incarceration within the bounds set forth by the trial court in its pretrial order”; (2)“Deputy
Director Armstrong did not state the length or reason for the defendant’s incarceration”; and
(3) “[t]he trial court also gave a limiting instruction, which the jury is presumed to have
followed.” Id.

       In this Court, the defendant argues that the Court of Criminal Appeals erred in
concluding that admission of the testimony was harmless error. He says that Deputy Director
Armstrong’s testimony implied that the defendant had been recently released from prison for
committing a violent crime and placed “virtual shackles” on the defendant. The defendant
says that the trial court compounded, rather than cured, the error by first instructing the jury
to disregard the defendant’s history of incarceration and by then stating that the prior
incarceration was relevant to certain parts of the proof.

       The State responds that the trial court did not abuse its discretion in overruling the
defense objection to Deputy Director Armstrong’s testimony because the testimony was not
offered to show the defendant’s propensity for criminal activity but to show his familiarity
with the criminal justice system, and thus aid the jury in assessing the integrity of the
defendant’s confession. Even if the Court agrees with the Court of Criminal Appeals’
conclusion that the objection should have been sustained, the State argues that the error was
harmless.

                                              -81-
       Tennessee Rule of Evidence 404(b) provides, in relevant part, as follows:

               Evidence of other crimes, wrongs, or acts is not admissible to prove the
       character of a person in order to show action in conformity with the character
       trait. It may, however, be admissible for other purposes. The conditions
       which must be satisfied before allowing such evidence are:

              (1) The court upon request must hold a hearing outside the
              jury’s presence;
              (2) The court must determine that a material issue exists other
              than conduct conforming with a character trait and must upon
              request state on the record the material issue, the ruling, and the
              reasons for admitting the evidence;
              (3) The court must find proof of the other crime, wrong, or act
              to be clear and convincing; and
              (4) The court must exclude the evidence if its probative value is
              outweighed by the danger of unfair prejudice.

       We have cautioned that trial courts should take a “restrictive approach” when
admitting Rule 404(b) evidence because it “‘carries a significant potential for unfairly
influencing a jury.’” State v. Dotson, 254 S.W.3d 378, 387 (Tenn. 2008) (quoting State v.
Bordis, 905 S.W.2d 214, 227 (Tenn. Crim. App. 1995) (internal quotation marks omitted)).
“[S]uch evidence easily results in a jury improperly convicting a defendant for his or her bad
character or apparent propensity or disposition to commit a crime regardless of the strength
of the evidence concerning the offense on trial.” Id. at 387 n.7 (quoting State v. Rickman,
876 S.W.2d 824, 828 (Tenn. 1994)); State v. Mallard, 40 S.W.3d 473, 488 (Tenn. 2001).
“‘[T]he risk that a jury will convict for crimes other than those charged—or that, uncertain
of guilt, it will convict anyway because a bad person deserves punishment—creates a
prejudicial effect that outweighs ordinary relevance.’” State v. Sexton, 368 S.W.3d 371, 403
(Tenn. 2012) (quoting Old Chief v. United States, 519 U.S. 172, 181 (1997)).

       However, as we have previously observed in another context:

       the Rule 404(b) criteria—in particular, the existence of a material issue at trial
       and the balancing of the probative value and unfair prejudice—require
       consideration of the evidence presented at trial. Thus, trial courts must be
       cognizant that if pretrial evidentiary rulings are made, they may need to be
       reconsidered or revised based on the evidence presented at trial.




                                              -82-
State v. Gilley, 173 S.W.3d 1, 6 (Tenn. 2005). Finally, we have explained that if a trial court
substantially complies with the procedures set out in Rule 404(b) for evaluating the
admissibility of evidence, the court’s decision will be given great deference on appeal and
will be reversed only if the trial court abused its discretion. State v. DuBose, 953 S.W.2d
649, 652 (Tenn. 1997).

        Here the trial court substantially complied with the procedure set out in Rule 404(b),
both at the pretrial hearing on the motion in limine and when considering the defense
objection to Deputy Director Armstrong’s testimony. Unlike the Court of Criminal Appeals,
we are unable to conclude that the trial court abused its discretion by overruling the defense
objection to Deputy Director Armstrong’s testimony. The testimony was offered for a
purpose other than showing action in conformity with character. Specifically, the testimony
was intended to inform the jury, as the State asserts, of the defendant’s familiarity with the
criminal justice system so that the jury could better evaluate the integrity of the defendant’s
confession. Deputy Director Armstrong did not mention the crime, or discuss how long the
defendant had been incarcerated, or disclose when the defendant was released from
incarceration. As we pointed out in Gilley, a trial court must reconsider pretrial rulings in
light of the proof offered at trial, and that is precisely what the trial court in this case did. In
overruling the objection, the trial court pointed out that numerous witnesses—seven
according to a statement by defense counsel—had already testified about the defendant’s
prior incarceration. The record simply does not indicate that the trial court abused its
discretion in overruling the motion.

       We do agree with the Court of Criminal Appeals, however, that, even assuming the
testimony was admitted in error, the error was harmless. See State v. Caughron, 855 S.W.2d
526, 538 (Tenn. 1993). Deputy Director Armstrong neither informed the jury of the crime
for which the defendant had been incarcerated nor implied that the jury should consider the
defendant’s prior incarceration as evidence of guilt. The trial court gave a limiting
instruction, which cautioned the jury not to consider the defendant’s prior incarceration as
evidence of guilt, and the testimony was at most cumulative to evidence already properly
admitted from multiple prior witnesses. The defendant is not entitled to relief on this issue.

                                    E. Mandatory Review

       As to each of the defendant’s six death sentences, this Court is required to determine:
(1) whether the sentence “was imposed in any arbitrary fashion”; (2) whether the evidence
supports the jury’s findings that the prosecution proved aggravating circumstances beyond
a reasonable doubt; (3) whether the evidence supports the jury’s determination that the
aggravating circumstances outweighed the mitigating circumstances beyond a reasonable
doubt; and (4) whether the sentence of death “is excessive or disproportionate to the penalty

                                               -83-
imposed in similar cases, considering both the nature of the crime and the defendant.” Tenn.
Code Ann. § 39-13-206(c)(1).

                      1. Arbitrary Imposition of the Death Sentence

       The defendant submits that Tennessee’s death penalty scheme includes a “fatally
flawed proportionality review” which “inherently results in an arbitrary imposition of the
death penalty,” because only those cases in which a capital sentencing hearing was held are
included in the universe for comparison. He also says that Tennessee’s proportionality
system is flawed because it fails to compare death sentences imposed in this State to those
imposed in other jurisdictions. He asks this Court to adopt the position espoused by the
separate opinion in State v. Chalmers, 28 S.W.3d 913, 921-925 (Tenn. 2000) (Birch, J.,
concurring and dissenting).

        This Court has repeatedly rejected these arguments. Recently, a majority of this Court
exhaustively re-examined the propriety of including in the pool for comparison only those
similar cases in which a capital sentencing hearing has been conducted, and we held that this
limitation is appropriate and does not render Tennessee’s capital sentencing scheme arbitrary.
State v. Pruitt, 415 S.W.3d 180, 217 (Tenn. 2013); see also State v. Godsey, 60 S.W.3d 759,
783-86 (Tenn. 2001); State v. Bland, 958 S.W.2d 651, 666-67 (Tenn. 1997). We expressly
re-affirmed the analysis adopted in Bland. Pruitt, 415 S.W.3d at 215-17. As for the
defendant’s argument that capital cases from other jurisdictions should be included in the
pool for comparison, it is sufficient to quote from a prior decision of this Court explaining
why this argument lacks merit:

       In Tennessee, comparative proportionality review is a duty imposed upon this
       Court and the Court of Criminal Appeals by a statute that is part of the
       Tennessee capital sentencing scheme. Nothing in the statute indicates that the
       General Assembly intended the term “similar cases” to include out-of-state
       cases. In addition, given that capital sentencing statutes differ from state to
       state, cases from other jurisdictions are likely not “similar” for purposes of
       comparative proportionality review.

Godsey, 60 S.W.3d at 786. For these reasons, we reject the defendant’s assertion that his
sentence, and Tennessee’s system of proportionality review, is arbitrary.

       Our review of the record also otherwise confirms that the defendant received a full
and fair trial, which was conducted in accordance with the applicable statutes and procedural
rules. Thus, we conclude that the defendant’s sentence was not imposed in an arbitrary
fashion.

                                             -84-
                        2. Evidence of Aggravating Circumstances

       In determining whether the evidence supports the jury’s findings of statutory
aggravating circumstances, the relevant inquiry is whether a rational trier of fact, taking the
evidence in the light most favorable to the prosecution, could have found the existence of the
aggravating circumstances beyond a reasonable doubt. State v. Jordan, 325 S.W.3d 1, 66-67
(Tenn. 2010); State v. Rollins, 188 S.W.3d 553, 571 (Tenn. 2006).

                                    a. Cecil Dotson, Sr.

        The jury applied three aggravating circumstances when imposing the death sentence
for the defendant’s conviction of first degree murder of Cecil, and the evidence is abundantly
sufficient to support the jury’s findings. First, during the penalty phase of the trial, the
parties stipulated that the defendant had previously been convicted of second degree murder
and that this felony conviction was a crime of violence. This stipulation thus established that
the defendant had been “previously convicted of one (1) or more felonies, other than the
present charge, whose statutory elements involve the use of violence to the person.” Tenn.
Code Ann. § 39-13-204(i)(2).

       Second, the jury found that the defendant knowingly created a great risk of death to
two or more persons in the course of murdering Cecil. See Tenn. Code Ann. § 39-13-
204(i)(3). This aggravating circumstance “‘contemplates either multiple murders or threats
to several persons at or shortly prior to or shortly after an act of murder upon which the
prosecution is based.’” Johnson v. State, 38 S.W.3d 52, 60 (Tenn. 2001) (quoting State v.
Cone, 665 S.W.2d 87, 95 (Tenn. 1984)). “Most commonly, this aggravating circumstance
‘has been applied where a defendant fires multiple gunshots in the course of a robbery or
other incident at which persons other than the victim are present.’” Id. (quoting State v.
Henderson, 24 S.W.3d 307, 314 (Tenn. 2000)). The (i)(3) aggravating circumstance has been
applied where the proof showed a defendant “fired random shots with others present or
nearby,” or the defendant engaged in a shootout with others, “or the defendant actually shot
people in addition to the murder victim.” Id. at 60-61 (footnotes omitted). The proof in this
case showed that three others were present in the living room where Cecil was shot multiple
times. The evidence is sufficient to support the jury’s finding of the (i)(3) aggravating
circumstance.

       The third aggravating circumstance the jury relied upon is “‘mass murder,’ which is
defined as the murder of three (3) or more persons, whether committed during a single
criminal episode or at different times within a forty-eight-month period.” Tenn. Code Ann.
§ 39-13-204(i)(12). This Court has interpreted the mass murder aggravating circumstance
as requiring proof that the defendant has been convicted of three or more murders in

                                             -85-
Tennessee within a period of forty-eight (48) months prior to the sentencing hearing at which
the murders are used to establish the aggravating circumstance. State v. Reid, 213 S.W.3d
792, 819 (Tenn. 2006); State v. Black, 815 S.W.2d 166, 183-184 (Tenn. 1991); State v.
Bobo, 727 S.W.2d 945, 955 (Tenn. 1987). In the instant case, the defendant had been
convicted prior to his capital sentencing hearing of murdering six persons in the same
criminal episode. This proof is overwhelmingly sufficient to support application of the mass
murder aggravating circumstance.

                      b. Ms. Williams, Mr. Seals, and Ms. Roberson

        In sentencing the defendant to death for his convictions of first degree murders for
killing Ms. Williams, Mr. Seals, and Ms. Roberson, the jury applied the three aggravating
circumstances already discussed, as well as the following two additional aggravating
circumstances: (1) the murder was committed for the purpose of avoiding, interfering with,
or preventing the lawful arrest or prosecution of the defendant or another; and (2) the murder
was knowingly committed while the defendant had a substantial role in committing, or
attempting to commit, or was fleeing after having a substantial role in committing or
attempting to commit any first degree murder. See Tenn. Code Ann. § 39-13-204(i)(6), (7).

        We have already determined that the evidence is sufficient to support the jury’s
findings: (1) that the defendant had been “previously convicted of one (1) or more felonies,
other than the present charge, whose statutory elements involve the use of violence to the
person[];” Tenn. Code Ann. § 39-13-204(i)(2); (2) that the defendant “knowingly created
a great risk of death to two (2) or more persons, other than the victim murdered[];” see Tenn.
Code Ann. § 39-13-204(i)(3); and (3) that the defendant committed mass murder, see Tenn.
Code Ann. § 39-13-204(i)(12). We next consider whether the proof is sufficient to support
the jury’s findings of the two additional aggravating circumstances.

        The (i)(6) aggravating circumstance requires proof that “[t]he murder was committed
for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of
the defendant or another.” Tenn. Code Ann. § 39-13-201(i)(6). This aggravating
circumstance “may be applied when the proof shows that avoiding arrest was one motivation
for the killing.” State v. Hartman, 42 S.W.3d 44, 58 (Tenn. 2001). Its application is “not
limited to only those killings which are solely or predominantly motivated by a desire to
avoid arrest or prosecution.” Id.; see also State v. Bush, 942 S.W.2d 489, 504–05 (Tenn.
1997). The evidence in this case showed that the defendant desperately wanted to avoid
returning to jail. He admitted shooting Cecil during an argument. Ms. Williams, Mr. Seals,
and Ms. Roberson, who were present at the home and in the vicinity of the living
room—although Mr. Seals may have been in the kitchen—would have been able to identify
the defendant as the perpetrator of Cecil’s murder. By his own admission, the defendant left

                                             -86-
the home believing that all inside were dead, although he denied perpetrating the murders at
trial. The defendant told his mother that he killed the children because they could identify
him. All of this proof is sufficient to support the jury’s finding that the murders of Ms.
Williams, Mr. Seals, and Ms. Roberson were motivated by and committed, at least in part,
to avoid arrest and prosecution. Tenn. Code Ann. § 39-13-204(i)(6).

       The proof also supports the jury’s finding that the defendant knowingly committed
the murders of Ms. Williams, Mr. Seals, and Ms. Roberson while he had a substantial role
in committing or attempting to commit first degree murder. See Tenn. Code Ann. § 39-13-
204(i)(7). Indeed, the defendant murdered Ms. Williams, Mr. Seals, and Ms. Roberson,
during the course of murdering Cecil.

                                   c. Cemario and Cecil II

       In sentencing the defendant to death for the premeditated first degree murders of
Cemario and Cecil II, the jury applied the same five aggravating circumstances that it had
applied with regard to the first degree murders of Ms. Williams, Mr. Seals, and
Ms. Roberson, as well as two additional aggravating circumstances: (1) the victim was less
than twelve years old and the defendant was eighteen years old or older; and (2) the murder
was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse
beyond that necessary to produce death. See Tenn. Code Ann. § 39-13-204(i)(1), (5).

       We have already concluded that the evidence is sufficient to support five of the seven
aggravating circumstances that the jury applied to impose the death sentences for the
defendant’s first degree murder convictions of Cemario and Cecil II. We also conclude that
the proof is sufficient to support the jury’s findings of the two additional aggravating
circumstances that were applied only to the murders of Cemario and Cecil II.

       First, the record overwhelmingly supports the jury’s findings that Cemario and Cecil
II were less than twelve years old and the defendant was eighteen years old or older. See
Tenn. Code Ann. § 39-13-204(i)(1). The evidence established that Cemario and Cecil II
were four years old and two years old, respectively, when they were killed and that the
defendant was over the age of eighteen.

       The proof also supports the jury’s findings that Cemario’s and Cecil II’s murders were
“especially heinous, atrocious, or cruel, in that [they] involved torture or serious physical
abuse beyond that necessary to produce death.” Tenn. Code Ann. § 39-13-204(i)(5). The
medical examiner testified to the multiple extensive injuries that were inflicted upon each of
these victims and explained that the children sustained more than one injury that was capable
of causing their deaths. The proof established that each victim was stabbed repeatedly and

                                              -87-
severely beaten and that the physical abuse was beyond that necessary to cause death. The
proof is more than sufficient to support the jury’s finding of this aggravating circumstance.

                 3. Weighing Aggravating and Mitigating Circumstances

       The evidence also supports the jury’s finding that the aggravating circumstances
applicable to each first degree murder conviction outweighed any mitigating circumstances
beyond a reasonable doubt. Tenn. Code Ann. § 39-13-206 (c)(1)(C). The trial court
instructed the jury as to the following mitigating circumstances: (1) any lingering or residual
doubt regarding the defendant’s guilt; (2) the defendant was raised in a dysfunctional family
since birth; (3) the defendant suffered childhood neglect; (4) the defendant’s parents
separated when he was six years old, and his father was not part of his life; (5) the defendant
changed residences and schools on multiple occasions throughout early childhood; (6) the
defendant was retained in the fourth grade twice due to truancy and was absent from school
many times as a child; (7) the defendant was diagnosed with a learning disability; (8) the
defendant’s mother did not attend scheduled meetings and did not appear at juvenile court
hearings on multiple occasions; (9) at the age of eighteen, the defendant witnessed what he
believed to be intentional physical abuse of his younger brother by his mother; and (10) any
other mitigating factor raised by the evidence produced by either the prosecution or defense
in the guilt or sentencing hearing. The State presented evidence aimed at countering the
mitigating circumstances on which the defendant relied.

       Having thoroughly reviewed the record, we conclude that a rational juror could have
concluded that the aggravating circumstances established by the State beyond a reasonable
doubt as to each of the murders outweighed any mitigating circumstances and justified
imposition of the death penalty for the first degree murders of Cecil, Ms. Williams, Mr.
Seals, Ms. Roberson, Cemario, and Cecil II.

                                 4. Proportionality Review

       We next consider whether the sentences imposed in this case are excessive or
disproportionate to the penalty imposed in similar cases, considering both the nature of the
crime and the defendant. Tenn. Code Ann. § 39-13-206(c)(1)(D). A death sentence is
disproportionate only if “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. A death sentence is not disproportionate merely because the
circumstances of the offense are similar to those of another offense for which the defendant
received a life sentence. Id. An appellate court does not function as a “super jury,” Godsey,
60 S.W.3d at 782, nor does an appellate court assure “that a sentence less than death was
never imposed in a case with similar characteristics,” Bland, 958 S.W.2d at 665. Instead, our

                                             -88-
role in comparative proportionality review is to “assure that no aberrant death sentence is
affirmed.” Id.

       We have no mathematical or scientific formula for fulfilling this role. Id. at 668.
Rather, this Court uses “the precedent-seeking method of comparative proportionality review
in which we compare the case before us with other cases involving similar defendants and
similar crimes.” State v. Davis, 141 S.W.3d 600, 619-20 (Tenn. 2004). This method requires
an examination and comparison of “the facts and circumstances of the crime, the
characteristics of the defendant, and the aggravating and mitigating circumstances involved”
in the case under review, with other similar cases. State v. Stevens, 78 S.W.3d 817, 842
(Tenn. 2002).

        In conducting this comparison, we consider the following factors, which focus on the
nature of the crime: (1) the means of death; (2) the manner of death; (3) the motivation for
the killing; (4) the place of death; (5) the similarity of the victim’s circumstances, including
age, physical and mental conditions, and the victim’s treatment during the killing; (6) the
absence or presence of provocation; (7) the absence or presence of justification; and (8) the
injury to and effects on non-decedent victims. Bland, 958 S.W.2d at 667.

        When reviewing the characteristics of the defendant, we consider: (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 the helplessness of the victim(s); and (8) the
defendant’s capacity for rehabilitation. Id. Moreover in conducting this review, “‘we select
from the pool of cases in which a capital sentencing hearing was actually conducted to
determine whether the sentence should be life imprisonment, life imprisonment without the
possibility of parole, or death.’” State v. Holton, 126 S.W.3d 845, 866 (Tenn. 2004) (quoting
State v. Carruthers, 35 S.W.3d 516, 570 (Tenn. 2000)).

       The sentences of death in the present case are neither excessive nor disproportionate
to the penalty imposed in similar cases. The proof shows that on March 2, 2008, the
defendant shot and killed his brother, Cecil, Ms. Williams, Mr. Seals, and Ms. Roberson.
The defendant then stabbed and beat with wooden boards his four nephews and his niece,
who ranged in age from nine years to two months old. Four-year-old Cemario and two-year-
old Cecil II did not survive the brutal attacks, and the other children’s survival was
extraordinary, considering that the defendant left them in the home unattended and seriously
injured for nearly forty hours. Cecil, Ms. Williams, Mr. Seals, and Ms. Roberson sustained
multiple gunshot wounds. The children, Cemario and Cecil II, suffered multiple, indeed,
innumerable blunt force and sharp force injuries. The unprovoked attacks on the children

                                              -89-
were both cruel and brutal. The defendant never attempted to render aid or summon help,
but instead he left the scene, spent the remainder of the night and the next day with his
girlfriend, and went to a restaurant for dinner later that day with his brother and a friend. He
also reported for work on the Monday following the weekend killings and crime spree. The
defendant admitted to the crimes only after he was confronted with a tape recording of one
of his surviving nephews identifying him as the perpetrator. Although he then confessed to
committing the crimes to the police and told his mother that he had murdered the children
because they saw him shoot the adults, at trial he denied any involvement in the crimes and
claimed that he had hidden beneath a bed while other unknown persons murdered and
assaulted the victims.

        In mitigation, the defendant offered proof that his family life was less than ideal. His
parents married at a very young age, argued often, and engaged in physical altercations. As
a child and youth, the defendant witnessed his father physically abuse his mother and his
mother tear out windows in an apartment complex and place her baby in a bathtub of what
the defendant perceived to be scalding water. When the defendant was six years old, his
mother left his father, taking the defendant and his siblings with her and not contacting the
defendant’s father for four or five months. The defendant’s family lived in poverty, and his
mother was often away from home, leaving the defendant’s sister, Nicole, to care for the
defendant and Cecil. The children often had little food to eat, and the defendant and Cecil
sometimes went hungry and other times stole money from their grandmother to buy food.
Eventually, when the stealing persisted, their grandmother would no longer allow them to
visit her home.

       As for educational ability, the defendant was diagnosed with a learning disability in
reading and math, was enrolled in resource classes, failed the fourth grade twice due to
excessive absences, was socially promoted, was teased by other children for not having
proper school clothing, and left school at age sixteen, while still only in the eighth grade,
having attended ten different schools and having been suspended so often that the school
system refused to allow him to continue to attend.

        The defendant had disciplinary problems both at school and at home and was provided
with individual counseling. His mother either failed to show up for or cancelled
appointments with counselors. By age fifteen, the defendant had become involved in the
juvenile court system and had several arrests and juvenile adjudications, and one of these
incidents involved the use of weapons. The defendant was often involved in fights, and
school and juvenile records referenced the defendant’s fights, his hostility toward his brother,
Cecil, and his mother’s fear of him. The defendant’s mother attended juvenile court with him
on many occasions, and when she was unable to attend, his sister Nicole attended on her
behalf.

                                              -90-
       The only legitimate job that the defendant ever held was as a security guard at the age
of eighteen. At the age of nineteen, he pled guilty to second degree murder and was
sentenced to eighteen years in prison. He joined the Crips gang while in prison and was
written up for refusing to participate, for cursing an officer, and for cutting an inmate who
was trying to leave the Crips. The defendant served fourteen years of his eighteen-year
sentence before being released on parole. The defendant’s mother and her husband visited
him only once during his fourteen years in prison. No other family members visited him,
although the defendant spoke with his father by telephone a few times.

        Considering the record in this case in light of the relevant factors, we conclude that
the defendant’s death sentences are not excessive or disproportionate to the penalty imposed
in similar cases. While no two capital cases and no two defendants are alike, the following
cases and defendants share several similarities with this case and this defendant. State v.
Jordan, 325 S.W.3d 1 (Tenn. 2010) (upholding the death sentence where the defendant shot
and killed his estranged wife and two men at his wife’s work place and the jury found five
aggravating circumstances); State v. Holton, 126 S.W.3d 845 (Tenn. 2004) (upholding the
death sentence where the defendant shot and killed his four children and the jury found the
mass murder aggravating circumstance and, as to three victims, the under-age-twelve
aggravating circumstance); State v. Carruthers, 35 S.W.3d 516 (Tenn. 2000) (upholding the
death penalty where the defendant shot two men, strangled the mother of one of the men, and
buried all three victims alive and the jury found four aggravating circumstances, including
prior violent felony, heinous, atrocious, or cruel, felony murder, and mass murder); State v.
Smith, 868 S.W.2d 561 (Tenn. 1993) (upholding the death penalty where the defendant shot
and stabbed his wife and two stepsons and the jury found four aggravating circumstances,
including heinous, atrocious, or cruel, murder to avoid apprehension, felony murder, and
mass murder); State v. Payne, 791 S.W.2d 10 (Tenn. 1990) (upholding the death sentence
where the defendant stabbed his girlfriend’s neighbor and the neighbor’s two-year-old
daughter and the jury found three of the same aggravating circumstances as those applied in
this case).

       This case is not identical to these earlier capital cases primarily because the murders
and assaults the defendant perpetrated are some of the most horrendous ever committed in
Tennessee. However, taken as a whole, this case is by no means “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. Thus, we conclude that the sentences of death are not
excessive or disproportionate to the penalties imposed in similar cases.




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                                      III. Conclusion

        We have considered the entire record in this case and find that the sentences of death
were not imposed in any arbitrary fashion, that the sentences of death are not excessive or
disproportionate, that as to each death sentence the evidence supports the jury’s findings of
the statutory aggravating circumstances and the jury’s finding that these aggravating
circumstances outweigh mitigating circumstances beyond a reasonable doubt. We have also
considered all of the defendant’s assignments of error and conclude that none has merit. As
to the issues raised in this Court but not addressed in this opinion, we affirm the decision of
the Court of Criminal Appeals. Relevant portions of that opinion are published hereafter as
an appendix. The defendant’s convictions and sentences are affirmed. The sentences of
death shall be carried out as provided by law on the 17th day of November, 2015, 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.




                                           _______________________________________
                                           CORNELIA A. CLARK, JUSTICE




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