        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                  April 26, 2011 Session

               STATE OF TENNESSEE v. MAURICE JOHNSON

                  Appeal from the Criminal Court for Bradley County
                         No. M-08-456    Amy Reedy, Judge




                 No. E2010-01142-CCA-R3-CD - Filed August 16, 2011


A Bradley County jury convicted the Defendant, Maurice Johnson, of one count of especially
aggravated robbery and three counts of first degree murder in the perpetration of an
especially aggravated robbery. He was sentenced to life without the possibility of parole for
each of the felony murder convictions and to twenty-five years for the especially aggravated
robbery conviction. On appeal, the Defendant argues that the evidence was insufficient to
sustain his convictions, that the district attorney engaged in repeated instances of misconduct
substantially prejudicing the jury against him, and that the lead detective’s wrongdoing
warrants a new trial. Following our review, we affirm the Defendant’s convictions and
sentences for first degree murder during the perpetration of or attempt to perpetrate an
especially aggravated robbery. The Defendant’s conviction for especially aggravated robbery
is reversed and dismissed.


Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed in
                              Part; Reversed in Part

D AVID H. W ELLES, S P. J., delivered the opinion of the Court, in which T HOMAS T. W OODALL
and J OHN E VERETT W ILLIAMS, JJ., joined.


Steven B. Ward, Madisonville, Tennessee, for the appellant, Maurice Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; R. Steven Bebb, District Attorney General; and Richard Fisher, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                         OPINION
                                    Factual Background

       This case arises from the February 14, 1999 shooting deaths of Orienthal James
(“OJ”) Blair, Cayci Higgins, and Dawn Rogers (“the victims”) in a townhouse in Cleveland.
On October 8, 2008, a Bradley County grand jury indicted the Defendant and two
co-defendants, Michael Younger and Twanna “Tart” Blair, for conspiracy to commit
especially aggravated robbery, especially aggravated robbery, and three counts of first degree
murder in the perpetration of an especially aggravated robbery. The court severed their trials,
and the Defendant proceeded to trial in August 2009.

       On the morning of February 14, 1999, Twanna Blair placed a call to Bradley County
911, informing them that she had been shot and that three other people had been killed.
Officers responded to the scene, a townhouse in Cleveland, and discovered three victims
lying on the living room floor. Emergency personnel rendered aid to Twanna Blair, who was
found in the upstairs of the townhouse. The three victims were all deceased as a result of
gunshot wounds to the head and/or neck.

       Eric Hampton was a detective with the Cleveland Police Department and was the lead
investigator into the triple homicides for some time until he relocated to Alabama several
years later. Upon arriving at the scene, Det. Hampton observed that the kitchen door had
been forcibly opened and that there were items on the kitchen floor, including a knife, a
cordless phone, and black wire “flex” ties. He further described the condition of the
townhouse as follows: “There did not appear to be anything disarrayed or ransacked, . . . and
upstairs was pretty much, if I can remember correctly, several bedrooms and nothing gone
through or looked to be ransacked as well.”

        Raymond DePriest, formerly with the Tennessee Bureau of Investigation (“TBI”) and
employed with the Nashville Police Department as the Forensic Quality Assurance Manager
at the time of trial, testified that, at the end of processing a crime scene, the TBI “always”
conducted a search for contraband. Agents look “through every drawer, every cabinet in the
house, . . . go through the washer and dryer just looking for any evidence that may be
present[.]” After searching the Cleveland townhouse, agents did not find any evidence of
controlled substances being present in the residence.

        TBI Special Agent Luke Mahonen, a detective with the Cleveland Police Department
at the time of the murders, testified that, on February 14, 1999, he responded to the triple
homicide call and shot the initial crime scene video. Agent Mahonen described what he
would typically look for at a crime scene: “One would have looked for items of value
missing, items of value being present, ways that entry could have been made, whether the

                                              -2-
doors were locked or unlocked, signs of struggle, wallets, purses, things of that nature,
currency, jewelry, things of value.” When asked if he recalled finding any money at the
scene, Agent Mahonen replied, “I don’t recall, no.”

        The TBI sent a mobile crime scene unit to the townhouse to collect any possible
forensic evidence. Agents recovered numerous items from the residence: clothing found at
the top of the stairs belonging to Twanna Blair, wire ties, a cordless phone, a kitchen knife,
a beer bottle near the back door, a “latch plate” from the back door, a fired .22 caliber bullet,
fired and unfired .22 caliber cartridge cases, and a 9mm caliber bullet. DNA testing on blood
samples recovered from inside the house revealed that the three victims or Twanna Blair
were the sources of the samples. Only one unidentified sample was found inside the house,
DNA present on a stamp, and it was never matched to anyone.

       As result of the ensuing investigation, officers learned of an altercation between the
Defendant and OJ Blair just two days prior to the murder. Tamara Rhea testified that, on the
evening of February 12, 1999, she threw a party at her residence in Sweetwater and that
about 100 people were in attendance.

        Reginald Constant, OJ’s cousin, testified that he was in custody being held as a
material witness and that he had no criminal charges. Mr. Constant stated that he was at the
February 12 party in Sweetwater, where he saw OJ Blair and the Defendant involved in an
altercation. Mr. Constant and several others “broke up” the fight. While standing in the
yard, the group heard gunshots. According to Mr. Constant, the Defendant then pulled out
his gun and pointed it toward the porch. Mr. Constant said to the Defendant, “No, man it
ain’t even worth it,” to which the Defendant replied, “You are going to let them shoot at me
and I can’t shoot back.” Mr. Constant responded, “Man, that’s my cousin.” The Defendant
then got in his vehicle and left. Mr. Constant stated that he was never afraid of the
Defendant because he had known the Defendant for nineteen years and did not think he
would shoot him. After the Defendant left, Mr. Constant also left the party before the police
arrived.

        Charles Brewster, Jr., was also in custody, being detained for the purpose of testifying
at the Defendant’s trial. Mr. Brewster was likewise in attendance at the February 12 party,
where he witnessed two females get into a physical altercation. Mr. Brewster testified that
he saw the Defendant and OJ Blair get into a verbal argument, overhearing the two men
doing a “bunch of cussing[.]” When he again saw the Defendant on Saturday afternoon
following the party, the Defendant said to him “[t]hat he had handled the situation. He
retaliated and handled the situation.”




                                               -3-
        Desmond Deane Benton also testified about his recollection of the February 12 party.
He recalled that the Defendant and OJ Blair were “in each other’s face. They was [sic]
arguing and then all of the sudden they grabbed each other and they rolled out the front door
off the porch onto the concrete, the driveway . . . . They started fighting and then shots broke
out.” According to Mr. Benton, when the shots were fired, everybody ran. Mr. Benton
opined that OJ Blair was winning the fight.

        Mr. Benton left the party and went to his girlfriend’s house. Sometime later that
evening, he returned to Tamara Rhea’s apartment and saw Michael Younger at the trunk of
his car, loading bullets into the clip of a black handgun. Mr. Benton stated that he had never
seen the Defendant with a gun.

        After shots were fired at the party, officers were called to the scene, which, according
to Officer Kenny Wilkins with the Sweetwater Police Department, was known for its drug
activity. As Officer Wilkins was traveling to the scene, he encountered Kenny Rogers, who
had been shot at the party. Officer Wilkins stayed with Mr. Rogers until emergency
personnel arrived to assist him. Despite a lengthy investigation, no one was ever charged
with Mr. Rogers’ shooting.

       While Officer Wilkins waited with Mr. Rogers, other officers continued to the scene
“where the party had taken place.” Once at the party, the officers arrested the Defendant and
took him to the local jail for questioning.

        On February 14, 1999, around 2:00 a.m., Stacy Ann Clabough left The Party Zone,
a club in Chattanooga, after Twanna Blair, OJ Blair, and Dawn Rogers failed to meet her
there. When she returned to Cleveland, she went by the victims’ townhouse to see why they
had failed to attend. She knocked on the front door, and Twanna Blair answered. Twanna
Blair told her that everyone was asleep, so Ms. Clabough returned to her car and left. As she
was leaving the complex, she heard “a noise or something” that “caught [her] attention[.]”
She turned to see someone sitting inside a dark, maroon vehicle. While she did not know the
Defendant at that time, she was able to later identify him as the man inside the car; she
claimed she was able to remember the Defendant’s face due to the “shock.” At the time of
trial, Ms. Calbough was incarcerated for violating her probation on a prescription fraud
conviction. Ms. Clabough also admitted that she had given several inconsistent statements
to the authorities, that she had two forgery convictions, and that she had a tattoo
commemorating OJ Blair’s birth date.

      Amy Lonas and the Defendant were in “a friend with benefits relationship” in
February 1999. Ms. Lonas, then eighteen years old, stated that, on the evening of the 12th,
she was present at the party with the Defendant and Michael Younger. She testified that she

                                              -4-
saw the Defendant with a gun that evening and, according to Ms. Lonas, the Defendant
“always had a gun.” When OJ Blair and Twanna Blair arrived at the party, the Defendant
said to Ms. Lonas, “They could die right there.” Ms. Lonas and others told the Defendant,
“No, don’t do nothing like that.” Ms. Lonas, who was underage and drinking and doing “a
lot” of drugs, went back inside the house. After she heard gunshots, she left the party to
avoid the police and returned to her apartment that she shared with Tiffany Gray.

      At approximately 2:00 a.m. on February 13, the Defendant, Michael Younger, and
Jason McGaughey came to Ms. Lonas’ apartment. All of the men were intoxicated, and
Younger hit the front door so hard it fell off the hinges. Ms. Lonas stated that her apartment
complex was “run down” and that the door was not in good condition at the time. Ms. Lonas
became upset because she did not want to have to tell her roommate about the door. Mr.
McGaughey stayed to fix the door.

       According to Ms.Lonas, the Defendant was agitated while he was at her apartment,
and the men stayed approximately one and half to two hours. While there that morning, Ms.
Lonas and the Defendant engaged in conversation. When discussing where the Defendant
was headed once leaving her apartment, he said that “he was going to get his money back.”
Ms. Lonas then asked the Defendant “how much dope did you front him.” The Defendant
replied that “it was none of [her] business.” The men left the apartment on foot. The
following day, February 14, Ms. Lonas learned of the triple homicide from the television
news.

        Around 7:00 or 8:00 a.m on February 15, Ms. Lonas was taking out her trash, when
she saw the Defendant. Although the Defendant was hostile, they again engaged in
conversation. Ms. Lonas was upset with the Defendant because he had been having sex with
another woman. When talking about where he had been, the Defendant said that “he had
took care of it, . . . that he went to go get his money back, . . . he had done something real
bad, . . . he was going to have to go away for a little while.” The Defendant described his
arrival at the townhouse to Ms. Lonas: “Twanna knew he was coming, they knocked on the
door like the police to get in the door, . . . that it was only OJ in that house.” According to
the Defendant, OJ pulled a gun on him first so he had to shoot in “self-defense.” The
Defendant told Ms. Lonas that OJ was alive when he left the apartment and that, afterwards,
he threw his gun in the Loudon County rock quarry. The Defendant warned Ms. Lonas that
she should “never tell anybody anything” about what he had told her or he would kill her.
The two got into “an irate argument” and decided to no longer be friends. Ms. Lonas agreed
to never tell anyone about what the Defendant had told her.

      Ms. Lonas admitted that she had criminal convictions for criminal impersonation in
1998 and shoplifting in 1999. According to Ms. Lonas, she had since “changed [her] whole

                                              -5-
life” beginning in 2006. Ms. Lonas stated that she was now in college, studying medical
assistance and medical billing, and had been a Certified Nurse’s Assistant for the past three
years. The police “found” her in 2006, and she then told the truth about what she knew about
the murders. However, on cross-examination, Ms. Lonas acknowledged additional
convictions for passing a worthless check and leaving the scene of an accident in 2006 and
a simple possession charge in 2008.

       Ranessa Macon testified that the Defendant visited her on Sunday morning February
14. He woke her up, asked her to sit on the couch, and told her he had killed someone. After
hearing the news, the Defendant and Ms. Macon just stood in the middle of the room and
hugged each other. She did not ask any further questions of the Defendant about what he had
done. She admitted that, back in 1999, she was “using drugs pretty heavily[.]”

       Tamara Rhea spoke with the Defendant a few days after the shootings, and the
Defendant was apologetic about fighting at Ms. Rhea’s party. Ms. Rhea asked the Defendant
about the shootings, inquiring, “Did you have anything to do with that?” The Defendant
jokingly said, “You never know.”

        Approximately a week or two prior to the party in Sweetwater, the Defendant told
Analesha Harper that he had been beaten and robbed, but he did not know the perpetrator.
The Defendant again visited Ms. Harper sometime after the February 12 party. He told her
that an altercation happened at the party, that OJ Blair “was there,” and that he was drunk at
the time. According to Ms. Harper, the Defendant did not know who robbed him a few
weeks prior to the party in 1999.

       The Defendant again visited Ms. Harper in early 2006 and, according to Ms. Harper,
the Defendant was upset because the television news had linked him to the murders. When
Ms. Harper was asked if the Defendant ever told her at a later date “who he thought had
something to do with” the robbery that happened just a week or two prior to the party, she
replied, “When I asked him about the murders he was like the guy OJ remember, that was
the guy that I had the fight with[.]” Ms. Harper asked the Defendant if he had anything to
do with the murders, and he told her “no.” Ms. Harper stated on cross-examination that she
did not believe the Defendant ever knew who robbed him in 1999.

       Vanessa Latham testified that, in February 1999, she was having a relationship with
the Defendant, that they “messed around for a long time.” Ms. Latham was in attendance at
the party at Tamara Rhea’s house. Ms. Latham caught the end of the fight between OJ Blair
and the Defendant. To Ms. Latham, it looked like OJ Blair was “whipping” the Defendant.
When she heard gunshots, she went to a neighbor’s house.



                                             -6-
       After the murders, Ms. Latham talked with the Defendant in “Jake’s parking lot”;
they were “just chilling[.]” The Defendant asked Ms. Latham if she knew “that guy from
Cleveland,” to which she responded affirmatively, and the Defendant then said “we did that.”
Ms. Latham became upset because she had heard that one of the girls was pregnant. After
she got upset, the Defendant said that “the fucking bitch shouldn’t have had her ass there[.]”
He then threatened to kill Ms. Latham if she ever told anyone about what he had told her.
Ms. Latham stated that she did not believe the Defendant about the killings, that she did not
know him to be bad person, and that she did not know “if he was joking around or not.”

        Several years later, Ms. Latham was contacted by the police. She claimed that the
authorities were threatening to put her in jail and take her kids away if she did not cooperate,
so she agreed to make a recorded phone call to the Defendant. Detective Duff Brumley of
the Cleveland Police Department, who had taken over the investigation of the triple
homicides after Det. Hampton’s departure, was present when Ms. Latham placed the call to
the Defendant. According to Det. Brumley, in the first phone call, the Defendant was “very
reluctant to speak, was evasive, and asked Ms. Latham to go to a pay phone and call him or
to a secure phone because he was afraid that his phone had been wire tapped.” They then
went to a pay phone, and Ms. Latham again phoned the Defendant. A recording of this call
was played for the jury. During the phone call, the Defendant stated, “Now, Vanessa,
listening [sic] to what I’m saying. Regardless of what me and you talked about nobody is
going to know but me and you. Do you understand that?”

       Stacy Marvin King testified that he had known the Defendant since they were
teenagers. Mr. King was incarcerated at the time of trial and had been since March 2006.
Mr. King testified that, in February 2006, he was on his way home from work, when he
stopped at an Applebee’s restaurant in Athens to eat. There he saw the Defendant, and the
two men spoke about the triple homicides in Cleveland in February 1999. According to Mr.
King, the Defendant was “agitated with regard to the talk on the streets.” The Defendant said
to Mr. King that “he wanted to resolve a problem he had, which was an individual still being
alive and talking about events surrounding the murder.” That individual was Twanna Blair.

        While talking at Applebee’s, the Defendant described the murders to Mr. King. The
Defendant told him that, upon entry into the residence, he fired a shot at OJ Blair, killing
him. The Defendant continued, “[W]e heard a noise upstairs, we got the individuals
upstairs,” and “they were shot with the intent of not leaving anyone alive[.]” According to
Mr. King, the Defendant stated that his “negative situation . . . was only going to get worse”
if he “didn’t take out Ms. Blair[.]”

       Mr. King acknowledged that he had been incarcerated many times; his current
incarceration due to a federal firearms charge. He had multiple convictions for selling

                                              -7-
cocaine and firearm possession and had violated his probation several times. Mr. King
confirmed that the federal prosecutor had filed a “5K1” motion on his behalf, stating that Mr.
King had provided “substantial cooperation.” Upon this motion, a federal judge can reduce
a defendant’s sentence.

          Mark Blair testified that he was locked up in the Monroe County Jail in February
1999. He testified that he spoke with the Defendant by telephone during that time, and the
Defendant told him “that he had killed some people.” On another occasion, he and the
Defendant were walking around the track at the jail and talking, and the Defendant informed
him that, when he got out of jail, he was going “put down a demo[.]” Mark Blair replied,
“When you get out, . . . them youngsters ain’t going to let you come out there and regulate
or nothing.” The Defendant then said, “I ain’t worried about what them youngsters think,
. . . if they get in the way I will do them just like me and Money did down in Cleveland.”
According to Mark Blair, Michael Younger was also known as “Money.” The Defendant
extrapolated to Mark Blair that he “handled the matter in Cleveland” after getting into a fight
with OJ Blair at a party in Sweetwater. Mark Blair acknowledged that he had significant
criminal history, including convictions for firearm possession, selling cocaine, aggravated
assault, and evading arrest. He stated that he contacted the authorities with this information
and confirmed that he did hope to receive some favorable treatment based on his cooperation.

        In 2001, Agent Mahonen began working with the TBI. Agent Mahonen obtained a
wiretapping order for the Defendant’s cellular phone, and he had recorded over 300 of the
Defendant’s telephone calls. Agent Mahonen selected one phone call in particular to play
for the jury; it was an incoming call, placed from Jewelry Television, Incorporated, made on
February 14, 2006, at 10:47 a.m. Agent Mahonen believed that the Defendant was convicted
of federal drug charges based upon information obtained during the wiretap of the
Defendant’s phone. Agent Mahonen also agreed that, on more than one occasion, the
Defendant gave blood samples, hair samples, and fingerprints to the authorities.

        In the years after the murders, TBI Special Agent Terry Arney, an expert in firearms
identification, had been unable to match the cartridge cases or bullets from the scene to any
particular weapon. Testing continued as late as 2007.

       Following testimony from twenty-five witnesses, the State concluded its proof. The
Defendant then made a motion for judgment of acquittal on all counts. The court dismissed
the conspiracy charge, but the other counts were to be submitted to the jury. The Defendant
then submitted proof in his defense.

      Jason Juan McGaughey testified on behalf of the Defendant. He confirmed that he
had drug convictions and a criminal history spanning approximately eighteen years. Mr.

                                              -8-
McGaughey testified that he did not attend the party in Sweetwater. He did recall a visit to
Ms. Lonas’ apartment when he “messed her door up and she was tripping about her friend
was going to put her out because the door was messed up.” McGaughey testified that he was
accompanied by Michael Younger, but the Defendant was not with him on that occasion.
Mr. McGaughey fixed the door, and they left.

       The Defendant testified and gave his version of the events. He admitted that, at the
time of the murders, he sold drugs and had sexual relationships with a lot of women. The
Defendant denied any involvement in the murders.

       According to the Defendant, he supplied the alcohol for Tamara Rhea’s party on the
evening of February 12, 1999. He did not take his gun to the party, and he did not know OJ
Blair prior to the party. He had heard that some “people from Cleveland had arrived at this
party[.]” The Defendant claimed he was watching two women fight when someone punched
him in the back of the head. He turned to see three or four people hitting him and, as he was
attempting to ward of the blows, the fight moved into the yard. One person “just kept
coming” at him. Someone then fired a gun, and his attacker ran into the house. He did not
recognize any of the men who attacked him.

       The Defendant was arrested after officers arrived at the scene of the party, and he was
transported to the police station. Officers tested his hands for gunshot residue but did not
find any, and the Defendant was never charged with any offense connected to the party.
After being released from the police station, the Defendant walked to the hospital to see who
had been shot. A lot of people from the party had gathered at the hospital, and he learned
Kerry Rogers was the individual who had been shot. The Defendant and others waited until
Mr. Rogers was released from the hospital. The Defendant then returned to the party, which
had moved “two doors down from where the party” had originally begun. He drank and
talked with people for two to three hours following his return.

        The Defendant testified that, after the killings, he gave two statements to the police.
When the police questioned him a third time, he refused to cooperate. He confirmed that,
several years later, he was in federal prison with Mark Blair and that they talked “all the
time.” The Defendant denied ever making any incriminating statements to Mark Blair. After
his release from federal custody, he did give a third statement to police. He also gave his
fingerprints and DNA sample to authorities.

       Following the conclusion of the proof, the jury found the Defendant guilty of the
remaining four charges—especially aggravated robbery and three counts of first degree
murder during the perpetration of an especially aggravated robbery. The Defendant was
sentenced to life without the possibility of parole for each of the murder convictions. For the

                                              -9-
especially aggravated robbery conviction, the trial court imposed a sentence of twenty-five
years at 100% to run concurrently with the life sentences. The case is now properly before
this Court.

                                           Analysis
I. Sufficiency of the Evidence

       First, the Defendant claims that the evidence was insufficient to sustain his
convictions. Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt
in criminal actions whether by the trial court or jury shall be set aside if the evidence is
insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”
A convicted criminal defendant who challenges the sufficiency of the evidence on appeal
bears the burden of demonstrating why the evidence is insufficient to support the verdict,
because a verdict of guilt destroys the presumption of innocence and imposes a presumption
of guilt. See State v. Evans, 108 S.W.3d 231, 237 (Tenn. 2003); State v. Carruthers, 35
S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This
Court must reject a convicted criminal defendant’s challenge to the sufficiency of the
evidence if, after considering the evidence in a light most favorable to the prosecution, we
determine that any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Hall,
8 S.W.3d 593, 599 (Tenn. 1999).

        On appeal, the State is entitled to the strongest legitimate view of the evidence and all
reasonable and legitimate inferences which may be drawn therefrom. See Carruthers, 35
S.W.3d at 558; Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the
testimony of the State’s witnesses and resolves all conflicts in the evidence in favor of the
prosecution’s theory. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions
about the credibility of witnesses, the weight and value of the evidence, as well as all factual
issues raised by the evidence are resolved by the trier of fact, and this Court will not re-weigh
or re-evaluate the evidence. See Evans, 108 S.W.3d at 236; Bland, 958 S.W.2d at 659. Nor
will this Court substitute its own inferences drawn from circumstantial evidence for those
drawn by the trier of fact. See Evans, 108 S.W.3d at 236-37; Carruthers, 35 S.W.3d at 557.

        A defendant may be convicted on the basis of direct or circumstantial evidence or a
combination of both. State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003); see
also State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). In fact,
circumstantial evidence alone may be sufficient to support a conviction. State v. Dorantes,
331 S.W.3d 370, 379 (Tenn. 2011); State v. Tharpe, 726 S.W.2d 896, 899-900 (Tenn. 1987).
Recently, our supreme court adopted the position of the United States Supreme Court “that
direct and circumstantial evidence should be treated the same when weighing the sufficiency

                                              -10-
of such evidence.” Dorantes, 331 S.W.3d at 379-81. In Dorantes, the supreme court
specifically rejected the holding in State v. Crawford, 470 S.W.2d 610 (Tenn. 1971),
requiring that in a wholly circumstantial evidence case the State “prove facts and
circumstances ‘so strong and cogent as to exclude every other reasonable hypothesis save the
guilt of the defendant, and that beyond a reasonable doubt.’” Id. at 380 (quoting Crawford,
470 S.W.2d at 612). Accordingly, the State is no longer required to “exclude every other
reasonable hypothesis save the guilt of the defendant” to obtain a conviction based solely on
circumstantial evidence and need only establish the constitutionally required standard of
proof beyond a reasonable doubt. Id. at 381. Ultimately, how much weight to give
circumstantial evidence and the extent to which such evidence is consistent with guilt or
inconsistent with innocence are questions for the jury. Dorantes, 331 S.W.3d at 379; Smith
v. State, 327 S.W.2d 308, 318 (Tenn. 1959).

        Relevant to this case, felony murder is “a killing of another committed in the
perpetration of or attempt to perpetrate any . . . robbery.” Tenn. Code Ann. § 39-13-
202(a)(2). Tennessee Code Annotated section 39-13-202 also provides that “[n]o culpable
mental state is required for conviction under subdivision (a)(2) . . . except the intent to
commit the enumerated offenses or acts.” Tenn. Code Ann. § 39-13-202(b). Additionally,
the death must occur “in the perpetration of” the enumerated felony. State v. Hinton, 42
S.W.3d 113, 119 (Tenn. Crim. App. 2000) (citations omitted). The killing may precede,
coincide with, or follow the felony and still be in the perpetration of the felony, so long as
there is a connection in time, place, and continuity of action. State v. Buggs, 995 S.W.2d
102, 106 (Tenn. 1999). If the underlying felony and killing were part of a continuous
transaction with no break in the chain of events and the felon had not reached a place of
temporary safety between the events, felony murder is sufficiently established. State v.
Pierce, 23 S.W.3d 289, 294-97 (Tenn. 2000). Proof of the intention to commit the underlying
felony and at what point it existed is a question of fact to be decided by the jury after
consideration of all the facts and circumstances. Buggs, 995 S.W.2d at 107.

        In this case, the underlying felony charged in the indictment is especially aggravated
robbery. “Robbery is the intentional or knowing theft of property from the person of another
by violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401(a). Theft is defined
as the following: “A person commits theft of property if, with intent to deprive the owner of
property, the person knowingly obtains or exercises control over the property without the
owner’s effective consent.” Tenn. Code Ann. § 39-14-103. To sustain a conviction for
especially aggravated robbery, the evidence must establish that a defendant robbed the victim
with a deadly weapon and that the victim suffered serious bodily injury. Tenn. Code Ann.
§ 39-13-403(a).




                                             -11-
       Under Tennessee law, the proof must show that the killings were committed during
the perpetration of an especially aggravated robbery or the attempt to perpetrate an especially
aggravated robbery. Relying on the elements of robbery, the crux of the Defendant’s
argument is that there was no proof of any theft of property. Specifically, he submits as
follows:

       In this case, even taken in the light most favorable to the State, the only
       evidence of money being involved in these homicides is the single statement
       that [the Defendant] supposedly stated that he was going to get his money
       back. Therefore, under the State’s own theory the owner of the money was
       [the Defendant]. The State must show “that the property is owned by someone
       other than the defendant.” State v. Goins, 705 S.W.2d 648, 650 (Tenn. 1986).
       In this case, not only did the State not do that, the State even claimed that the
       property supposedly to be taken belonged to [the Defendant].

              Additionally, there is no evidence that [the Defendant] ever obtained or
       exercised control over anything at the time of the homicides. There was no
       evidence of anything being taken and none of the supposed confessions
       mentioned anything being recovered or removed from the residence.

        While the testimony at trial varied and was at times contradictory, the following proof
was before the jury for its consideration. The proof established that the Defendant had been
beaten and robbed a week or two prior to the party in Sweetwater on February 12, 1999. In
the early months of 2006, the Defendant visited Analesha Harper. When Ms. Harper was
asked if, during this 2006 meeting, the Defendant ever told “who he thought had something
to do with” that prior robbery, she replied, “When I asked him about the murders he was like
the guy OJ, remember, that was the guy that I had the fight with[.]”

       Several witnesses testified to a physical altercation between the Defendant and OJ
Blair at Tamara Rhea’s February 12, 1999 party. Reginald Constant testified that, after he
“broke up” the fight between the Defendant and OJ Blair, the group heard gunshots while
they were standing in the yard. The Defendant then pulled out his weapon and pointed it
toward the porch. Mr. Constant attempted to intervene, and the Defendant said, “You are
going to let them shoot at me and I can’t shoot back[,]” before getting his vehicle and
leaving. Desmond Deane Benton also testified that he saw the Defendant and OJ Blair
involved in a physical fight at the party. According to Mr. Benton and Vanessa Latham, OJ
Blair was winning the fight. Amy Lonas testified that the Defendant had a gun the night of
the party and, when OJ Blair and Twanna Blair arrived at the party, the Defendant said,
“They could die right there.”



                                             -12-
        Ms. Lonas testified that the Defendant, Michael Younger, and Jason McGaughey, who
were all intoxicated after the party, came to her apartment at 2:00 a.m. on February 13. Ms.
Lonas and the Defendant had a conversation about where the Defendant was headed, and the
Defendant told Ms. Lonas that “he was going to get his money back.” Ms. Lonas then asked
the Defendant “how much dope did you front him[,]” to which the Defendant replied that “it
was none of [her] business.” When Charles Brewster, Jr., saw the Defendant on Saturday
afternoon after the party, the Defendant said to him “[t]hat he had handled the situation. He
retaliated and handled the situation.”

        Around 2:00 a.m., on February 14, 1999, Stacy Ann Clabough left a club she was
patronizing and went to the victims’ townhouse to inquire why they had not come to the club.
After knocking on the door, Twanna Blair answered and told her that everyone was asleep.
As she was leaving the complex, she heard a noise that “caught [her] attention,” and she
turned and saw someone sitting inside a dark, maroon vehicle. She was able to later identity
this individual as the Defendant.

        After officers arrived on the scene in response to Twanna Blair’s 911 telephone call,
the three victims were found lying on the living floor of the townhouse, dead from gunshot
wounds to the head and/or neck. Detective Eric Hampton observed that the kitchen door of
the townhouse had been forcibly opened and that there were several items on the kitchen
floor, including a knife, a cordless phone, and black wire “flex” ties.

       Ranessa Macon stated that the Defendant came to her residence on Sunday morning
February 14 and woke her up. After having her sit on the couch, the Defendant told her he
had killed someone.

        On February 15, Ms. Lonas again encountered the Defendant as she was taking out
her trash about 7:00 or 8:00 a.m that morning. When talking about where he had been, the
Defendant said that “he had took care of it, . . . that he went to go get his money back, . . . he
had done something real bad, . . . he was going to have to go away for a little while.” The
Defendant described his arrival at the townhouse to Ms. Lonas: “Twanna knew he was
coming, they knocked on the door like the police to get in the door, . . . that it was only OJ
in that house.” The Defendant told Ms. Lonas that OJ pulled a gun on him first so he had to
shoot in “self-defense” and that OJ was still alive when he left the apartment. The Defendant
threatened to kill Ms. Lonas if she ever told anyone.

       Tamara Rhea spoke with the Defendant a few days after the shootings, and the
Defendant was apologetic about fighting at the party. She asked him if he was involved in
the murders, and the Defendant said, “You never know.” Vanessa Latham also spoke with
the Defendant after the murders. While they were “just chilling” in “Jake’s parking lot,” the

                                              -13-
Defendant asked Ms. Latham if she knew “that guy from Cleveland,” to which Ms. Latham
responded affirmatively. The Defendant then said “we did that.” Ms. Latham became upset
because she believed one of the victims to be pregnant, and the Defendant told her that “the
fucking bitch shouldn’t have had her ass there[.]” The Defendant threatened to kill Ms.
Latham if she ever spoke of this information to anyone.

        Mark Blair testified that, while he was incarcerated, he spoke with the Defendant in
February 1999 by telephone, and the Defendant told him “that he had killed some people.”
Mark Blair explained that, on another occasion, he and the Defendant were walking around
the track at the jail and talking, when the Defendant informed him that, when he got out of
jail, he was going “put down a demo[.]” Mark Blair replied, “When you get out, . . . them
youngsters ain’t going to let you come out there and regulate or nothing.” The Defendant
then said, “I ain’t worried about what them youngsters think, . . . if they get in the way I will
do them just like me and Money did down in Cleveland.” Mark Blair testified that Michael
Younger was also known as “Money.” The Defendant told Mark Blair that he “handled the
matter in Cleveland” after getting into a fight with OJ Blair at a party in Sweetwater.

      Several years later, under pressure from the police, Ms. Latham agreed to call the
Defendant while the police recorded the call. Detective Duff Brumley described the
Defendant as “very reluctant to speak” and “evasive” in the first phone call. Detective
Brumley then took Ms. Latham to a pay phone, where she placed another call to the
Defendant. During this call, which was played for the jury, the Defendant stated, “Now,
Vanessa, listening [sic] to what I’m saying. Regardless of what me and you talked about
nobody is going to know but me and you. Do you understand that?”

        In February 2006, Stacy Marvin King stopped to eat at an Applebee’s restaurant in
Athens, where he ran into the Defendant. Mr. King and the Defendant talked about the triple
homicides in Cleveland, and the Defendant was “agitated with regard to the talk on the
streets.” The Defendant told Mr. King that he needed to “resolve a problem” that he had
with Twanna Blair, who was still alive and “talking about” the murders. The Defendant also
described the killings to Mr. King.


       Citing to State v. Goins, 705 S.W.2d 648, 650 (Tenn. 1986), the Defendant argues that
the State’s trial theory encompassed the Defendant as the owner of the money he went to get
from OJ Blair and, therefore, the State had failed to prove a theft, an element of robbery, the
underlying felony. This Court has stated that “[i]t may be that the Goins court’s comments
about establishing the identity of a named owner were peculiarly related to the former offense
of receiving and concealing; the court noted, ‘The gravamen of the crime [is] the fact that the
receiver knew that he was receiving stolen property.’” State v. March, 293 S.W.3d 576, 591

                                              -14-
n.5 (Tenn. Crim. App. 2008) (quoting Goins, 705 S.W.2d at 650). Of great significance, for
purposes of the theft of property and robbery statutes, our criminal Code defines the term
“owner” as “a person, other than the defendant, who has possession of or any interest other
than a mortgage, deed of trust or security interest in property, even though that possession
or interest is unlawful and without whose consent the defendant has no authority to exert
control over the property.” Tenn. Code Ann. § 39-11-106(a)(26). Under this definition, OJ
Blair is not required to be in lawful possession of the Defendant’s money or drugs. Cf. State
v. William C. Bentley, No. M2001-01521-CCA-R3-CD, 2002 WL 1336656, at *3 (Tenn.
Crim. App., Nashville, June 19, 2002) (evidence was sufficient to support attempted
aggravated robbery conviction even though Defendant alleged that the victim owed him
money and that, therefore, he was the rightful owner of the money allegedly stolen, not
victim). OJ Blair was in possession of the money and drugs, and the Defendant had no
authority to exert control over the property. The Defendant is not entitled to relief on this
issue.

        Viewing the evidence in the light most favorable to the State, we conclude that there
was sufficient evidence for any rational trier of fact to conclude that the Defendant murdered
the three victims during the perpetration of an attempted especially aggravated robbery. The
evidence established that the Defendant had been robbed prior to the party in Sweetwater,
possibly by OJ Blair, and that the Defendant and OJ Blair got into a physical altercation at
the party. The Defendant arrived at Ms. Lonas’ apartment about 2:00 a.m. on the morning
after the party and, as the Defendant was leaving, he told Ms. Lonas that he was headed to
go “get his money from back” from OJ Blair, whom he had inferentially “fronted” some
“dope.” On February 14, 1999, the three victims were found deceased from gunshot wounds
to the head and/or neck. Stacy Ann Clabough testified that she saw the Defendant in the
parking lot of the townhouse complex around 2:00 a.m on February 14. On February 15, the
Defendant again spoke with Ms. Lonas and told her that “he had took care of it, . . . that he
went to go get his money back, . . . he had done something real bad, . . . he was going to have
to go away for a little while.” In addition to Ms. Lonas, the Defendant confessed to the
murders to several other individuals. That is all the proof necessary to support the
Defendant’s three convictions for first degree felony murder, i.e., a killing of another
committed in the perpetration of or attempt to perpetrate an especially aggravated robbery.
See Tenn. Code Ann. § 39-13-202(a)(2).

        However, we cannot conclude that the robbery progressed beyond an attempt. We
must agree with the Defendant that “there is no evidence that [he] ever obtained or exercised
control over anything at the time of the homicides.” Detective Hampton testified that nothing
inside the townhouse appeared to be “disarrayed or ransacked[.]” According to former TBI
agent Raymond DePriest, agents always performed a thorough search of a crime scene
looking for contraband, and agents did not find any evidence of controlled substances present

                                             -15-
in the townhouse. TBI Special Agent Luke Mahonen described what he would typically look
for at a crime scene: “One would have looked for items of value missing, items of value
being present, ways that entry could have been made, whether the doors were locked or
unlocked, signs of struggle, wallets, purses, things of that nature, currency, jewelry, things
of value.” However, Agent Mahonen did not recall whether any money was found at the
scene. While the Defendant went to get his drugs and money back from OJ Blair, there is
no proof that he ever did so.

       The evidence is sufficient to support a conviction for the lesser included offense of
attempted especially aggravated robbery, a Class B felony; however, prosecution of that
offense is barred by the eight-year statute of limitations. See Tenn. Code Ann. § 40-2-
101(b)(2). The Defendant objected to charging any lesser included offenses raising the
statute of limitations as a defense. The State acquiesced in that request and made no
argument for tolling of the the limitations period. Therefore, the Defendant’s conviction for
especially aggravated robbery is reversed and dismissed. The judgments and sentences on
the Defendant’s three murder convictions remain unaffected.1

II. Prosecutorial Misconduct

        Next, the Defendant submits that “the cumulative effect of the [d]istrict [a]ttorney’s
repeatedly improper conduct, requiring an abundance of objections by [d]efense counsel
unfairly prejudiced the jury to the point that they were unable to render a proper verdict.”
The Defendant cites to two civil cases, Pullman Co. v. Pennock, 102 S.W.73 (Tenn. 1907),
and Guess v. Maury, 726 S.W.2d 906 (Tenn. Ct. App. 1986), in support of his argument that
the district attorney’s inexcusable repeated violations of the rules in this case entitles him to
a new trial.

      The State argues that the Defendant has waived this issue by failing to raise it in his
motion for new trial. We agree. Rule 3(e) of the Tennessee Rules of Appellate Procedure
provides, in pertinent part, as follows:

        [I]n all cases tried by a jury, no issue presented for review shall be predicated
        upon error in the admission or exclusion of evidence, jury instructions granted
        or refused, misconduct of jurors, parties or counsel, or other action committed
        or occurring during the trial of the case, or other ground upon which a new


        1
          The fact that the underlying felony is barred by the statute of limitations is “entirely irrelevant.”
State v. Gribble, 655 S.W.2d 196, 198 (Tenn. Crim. App. 1993) (quoting People v. Harvin, 259 N.Y.S.2d
88, 884 (N.Y. App. Term 1965)). The charge for which the Defendant is being prosecuted is first degree
felony murder for which there is no statute of limitations. Id.; see also Tenn. Code Ann. § 40-2-101(a).

                                                     -16-
       trial is sought, unless the same was specifically stated in a motion for a new
       trial; otherwise such issues will be treated as waived.

This issue has been waived. Moreover, the Defendant makes no argument that this Court
should review this issue as plain error, and we see no reason to do so sua sponte.

III. Lead Detective Wrongdoing

       Finally, the Defendant contends that “the discovery of wrongdoing by the prosecuting
officer in the case taints the evidence in this case to the extent that the verdict should be set
aside and a new trial granted.” The Defendant refers to allegations set forth in the State’s
Motion to Enter Nolle Prosequi in Michael Younger’s case, which call into question the
credibility of Det. Brumley. The Defendant has already filed a motion with this Court asking
us to consider as post-judgment facts the “admissions” of the district attorney in the motion
in Younger’s case. The State argued in opposition to the motion that the assertions made by
the prosecutor in the Younger case do not constitute post-judgment “facts” capable of
consideration by this Court pursuant to Rule 14 of the Rules of Appellate Procedure. We
again find the State’s position to be well-taken. The Advisory Commission Comments of
Rule 14 provide that the rule permits consideration of only those post-judgment facts
“unrelated to the merits and not genuinely disputed” in order to “keep the record up to date,”
and “is not intended to permit a retrial in the appellate court. See also State v. Roberts, 755
S.W.2d 833, 836 (Tenn. Crim. App. 1988) (“Allegations contained in pleadings are not
evidence.”). The Defendant is not entitled to relief on this issue.

                                          Conclusion

       For the reasons articulated above, we reverse and dismiss the Defendant’s conviction
for especially aggravated robbery. In all other respects, the judgments of the Bradley County
Criminal Court are affirmed.




                                                     _________________________________
                                                     DAVID H. WELLES, SPECIAL JUDGE




                                              -17-
