        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                               November 13, 2013 Session

         STATE OF TENNESSEE v. CORDELL REMONT VAUGHN

                    Appeal from the Circuit Court for Perry County
                    No. 2006CR932      James G. Martin, III, Judge




                 No. M2012-01153-CCA-R3-CD - Filed April 17, 2014




A Perry County Grand Jury returned an indictment against Defendant, Cordell Remont
Vaughn, charging him with first degree murder. After Defendant’s first trial, this court
reversed a jury’s verdict that found Defendant guilty of first degree murder. State v. Vaughn,
279 S.W.3d 584, 586-87 (Tenn. Crim. App. 2008). Pursuant to a second jury trial, Defendant
was again found guilty of first degree murder. He was sentenced to life in prison without the
possibility of parole. The trial court granted Defendant’s motion for new trial. The State
filed a Rule 10 application for an extraordinary appeal with this court, which was granted.
On appeal, this court reversed the trial court’s granting of a new trial. State v. Vaughn, No.
M2011-00067-CCA-R10-CD, 2012 WL 1484191 (Tenn. Crim. App. April 25, 2012) perm.
app. denied (Tenn. Aug. 16, 2012). On May 31, 2013, the trial court entered judgment and
sentenced Defendant again to life in prison without the possibility of parole. On appeal,
Defendant argues: (1) the evidence was not sufficient to support his first degree murder
conviction; (2) that the trial court erred in denying his motion to suppress the toxicology
report; and (3) whether his right to be free from double jeopardy was violated. After a
review of the record, we affirm Defendant’s conviction of first degree murder; we reverse
the sentence of life without possibility of parole and remand this case to the trial court for
entry of a judgment of conviction of first degree murder with a sentence of life
imprisonment.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
           Affirmed in Part; Reversed in Part; and Remanded for Entry
    of a Judgment of First Degree Murder with a Sentence of Life Imprisonment

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS and C AMILLE R. M CM ULLEN, JJ., joined.
Douglas Thompson Bates, IV, Centerville, Tennessee, for the appellant, Cordell Remont
Vaughn.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Kim R. Helper, District Attorney General; and Stacey B. Edmonton, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

Background

       On the evening of February 17, 2005, Anthony Head was at his home located at 229
Pine Street in Linden watching television. At some point, Chandra Vaughn knocked on his
door. When he answered the door, Mr. Head noticed that Ms. Vaughn was hysterical, and
she had a little girl with her. Ms. Vaughn said that someone was shooting in her house next
door. She left the little girl with Mr. Head, borrowed his cordless phone, and went back to
the house. Mr. Head’s wife, Denise, arrived home with Paula Fisher, who was driving the
vehicle. Mr. Head motioned for his wife to come into the house because something was
going on. After she got inside, there was another knock at the door, and when Mr. Head
opened the door, Defendant fell into the kitchen. Defendant’s shirt was bloody, and Mr.
Head told his wife to call paramedics. Mr. Head testified that he had previously seen
Defendant at the back of his house “talking to or motioning with” a middle-aged black male.
While Defendant was laying on the kitchen floor, Mr. Head heard him say, “She stabbed
me.” Mr. Head also testified that Defendant “wasn’t in his right mind.” He thought that
Defendant seemed “high.” Paramedics arrived at Mr. Head’s residence and began working
on Defendant. Defendant did not mention that anyone else was injured.

       On cross-examination, Mr. Head testified that Defendant was on parole when he first
met Defendant. Mr. Head noted that he performed a lot of work at Defendant’s house, and
they became “pretty good friends.” However, several days before February 17, 2005, Mr.
Head noticed that Defendant appeared to be under the influence of something and was not
himself. He said that Defendant was “real ornery,” and he knocked Mr. Head’s hat off his
head for no reason. After that, Mr. Head did not return to Defendant’s house.

        Denise Head testified that when she arrived home from shopping with Paula Fisher
in the late afternoon of February 17, 2005, the day of the shooting, she saw Defendant
standing outside with another gentleman. Her husband then motioned for her to come inside
the house. Mrs. Head testified that her husband seemed upset, and he told her that something
had been happening next door. There was also a little girl in the house. She appeared to be
six or seven years old, and Mrs. Head did not recognize the child. Mrs. Head walked back

                                            -2-
outside and told Ms. Fisher, who was still in the driveway, to leave. She then went back
inside and called Ms. Fisher to let her know what was happening. Mrs. Head testified that
Mr. Head told her that there had been a shooting and that the little girl was Chandra
Vaughn’s niece.

        When Mrs. Head walked into the kitchen with her groceries, there was a knock at the
door. She said that the doorknob turned, and Defendant walked in and fell. Mrs. Head
noticed that Defendant “was bleeding on his chest,” and he said that he had been stabbed.
Defendant also had the cordless phone that Ms. Vaughn had borrowed, and Mrs. Head used
it to call 911. Mrs. Head noted that Defendant’s eyes were rolling back in his head, and she
thought that he was going to become unconscious.

       Mrs. Head testified that a couple of days before the shooting, Defendant was walking
his dog, and it began fighting with Mrs. Head’s dog in her yard. She said that she began
“screaming and yelling” at Defendant to get off her property, but Defendant did not respond
to her. She said that Defendant appeared to be in “another world,” and “[i]t was like he
didn’t even hear what was going on around him.” Mrs. Head testified that she then called
Defendant’s wife, who was still his girlfriend at the time, and told her that she needed to do
something with Defendant. Mrs. Head felt that something was wrong with Defendant. She
said that she had never known Defendant to use drugs.

       Paula Fisher was deceased at the time of trial. Her testimony from a prior hearing was
read into evidence. Ms. Fisher, at the prior hearing, testified that on February 17, 2005, she
and Ms. Head were driving down Pine Street to Ms. Head’s residence when Ms. Fisher saw
Defendant and another person in the road. She said: “They were struggling and wrestling,
sort of in the waist area over something. It was small, so I couldn’t see what they were
wrestling for, but they were tugging back and forth for something.”

       Ms. Fisher testified that when she and Ms. Head pulled into the driveway, Mr. Head
walked out the side door of the house yelling for Ms. Head to get inside the house. Ms. Head
went inside and then walked back out and told Ms. Fisher to “get out of here now.
Something has happened. Something bad has happened.” Ms. Fisher was watching the
struggle going on behind her, and she finally saw Defendant and the other person “break
apart.” Ms. Fisher then drove away and began looking for a police officer. She saw Officer
Dillingham and told him that something bad had happened behind the Head’s residence. As
Ms. Fisher was speaking to the officer, he received a dispatch. On cross-examination, Ms.
Fisher testified that Defendant walked north toward his house after he parted ways with the
other man.




                                             -3-
        Johnny Hester, Defendant’s friend and employee, testified that he lived with
Defendant for a short period of time and added a bathroom to the house. Mr. Hester testified
that he lived in a one room house on Defendant’s property. The building was located
approximately one-hundred feet from Defendant’s house. Mr. Hester testified that he was
living there on February 17, 2005. On that date he and another gentleman were painting the
drywall in the newly added bathroom. He thought that the other gentleman was related to
Defendant. Mr. Hester testified that at approximately 12:30 p.m., Catricia Candace
McPheters (the victim) fixed him and the other gentleman some lunch, and they sat down to
eat after the victim said a prayer. Mr. Hester testified that the victim had a paring knife and
indicated that she was mad at Defendant and was going to stab him. Defendant was not at the
residence at the time, but arrived back at approximately 3:00 to 3:30 p.m.

       Mr. Hester testified that Defendant’s wife and “the daughter” were with him when he
returned. Defendant inspected the bathroom and indicated that he was pleased with the work
that Mr. Hester and the other gentleman were doing. The victim was still in the house at the
time. Mr. Hester testified that he walked out to his building at approximately 4:30 to 5:00
p.m. to take a break and wait for a coat of paint to dry. While Mr. Hester was in the building,
he heard a man and a woman arguing. After a period time, Mr. Hester then heard gunshots.
He thought that he heard approximately five shots. Mr. Hester then looked out the door and
saw Mrs. Vaughn, a little girl, and the man who had been helping him walk through the back
gate and down the driveway.

        Mr. Hester testified that he shut the door and sat there for approximately ten minutes.
He then left the building, walked through the gate and around the house. Mr. Hester walked
in the front door of the house and saw “stuff, clothes flung everywhere.” It also appeared
that flour had been spilled. Mr. Hester walked out the back door of the house and saw the
victim laying at the bottom of the steps, and Defendant was beside her trying to get her to
wake up. Defendant then asked Mr. Hester to perform CPR on the victim. Mr. Hester
testified that he checked for a pulse and told Defendant that he thought the victim was dead.
After that, Mr. Hester walked back to his building and shut the door. Defendant then
knocked on the door, and when Mr. Hester walked out, Defendant attempted to hand him a
pistol and asked Mr. Hester to dispose of it. When Defendant turned around and walked
away, Mr. Hester “slung [the gun] off in the weeds.” Mr. Hester walked back inside his
building, and a short time later someone from the sheriff’s office knocked on the door and
then placed him into custody. He was ultimately not charged with any offense related to the
present case.

      Ronnie Tucker, Defendant’s brother-in-law, testified that the victim was Mr. Tucker’s
daughter-in-law and the mother of his granddaughter. At the time of the shooting, Mr.
Tucker had been in Perry County for two or three days helping Defendant remodel a

                                              -4-
bathroom. The victim had come to Perry County with him. At some point while Mr. Tucker
was under the house “trying to get it jacked up,” he heard gunshots. He had previously heard
Defendant and the victim arguing, but he did not how long they had argued because he was
in and out of the room. Mr. Tucker crawled out from under the house and saw the victim
lying on the sidewalk. He touched the victim, but she was not moving or talking. Mr. Tucker
walked inside the house and saw Defendant standing in the kitchen, and Mrs. Vaughn and
a little girl were leaving the house. He asked Defendant what happened, and Defendant said,
‘[W]hat have I done, Bro[?]” Mr. Tucker informed Defendant that he had “screwed up,” and
Mr. Tucker left and went to the store to call his wife.

        Chandra Vaughn testified that she and Defendant lived together in February of 2005,
and they married in May of 2005. The two were separated at the time of trial. On February
17, 2005, Ms. Vaughn overheard Defendant and the victim argue on two occasions. During
the first argument, which occurred around noon, Defendant accused the victim of “messing
around” with Ms. Vaughn’s sister’s ex-boyfriend DeAngelo. The argument “wasn’t that
bad” and only lasted two or three minutes.

        Ms. Vaughn and Defendant later went “somewhere” together after Defendant’s first
argument with the victim. Ms. Vaughn said that Defendant was acting “strange” and “cold”
that afternoon. It appeared to Ms. Vaughn that Defendant had been taking PCP
(phencyclidine) because she had seen him high on the drug in the past. She knew that
individuals would dip cigarettes in PCP and smoke them, and Defendant had smoked
cigarettes after she and Defendant returned home. Ms. Vaughn did not specifically observe
Defendant take any drugs that day, and she had never observed Defendant using drugs at
their residence.

        After Ms. Vaughn and Defendant returned home, he and the victim got into a second
argument. Ms. Vaughn was in a bedroom and did not hear the content of the second
argument. However, she heard a gunshot in the kitchen and “took off running.” As she ran
out of the house, she grabbed a four-year-old child out of the bathroom who was visiting at
the residence. Ms. Vaughn ran through the kitchen as she went to get the child and saw
Defendant with a gun in his hand. He was standing approximately five feet from the victim,
who had her hands down by her side. Ms. Vaughn then heard additional gunshots as she ran
to get the child and ran back out the door. When Ms. Vaughn left the house, she testified that
there was no white, powdery substance on the kitchen floor or on the coffee table in the
living room.

        Deputy Robert Dillingham of the Perry County Sheriff’s Department was dispatched
to the Head’s residence on February 17, 2005. Defendant was lying face down on the kitchen
floor with his arms out like he was about to dive into a pool. Ms. Head told Deputy

                                             -5-
Dillingham that Defendant told them that he had been stabbed. Ambulance personnel arrived
on the scene, and they did not observe any blood on Defendant. When they rolled him over,
they discovered two puncture wounds.

       After the emergency personnel began treating Defendant, someone told Deputy
Dillingham that there had been a shooting next door. He and Deputy Nick Weems, who had
arrived on the scene, walked to the house next door. The gate was closed, but the two officers
opened it and walked inside the yard. They went to the front door of the house and
announced their presence. There was no response so the officers entered the house. They
“cleared” the residence to make sure that no one else was inside and then walked out the back
door to “clear” the back yard. The officers found the victim lying on the walkway behind the
house with a “steak” knife lying on her chest. Deputy Dillingham, a certified EMT, checked
the victim for a pulse but did not find one.

       Deputies Dillingham and Weems walked over to a little house on the property and
knocked on the door. They knocked on the door two times, and no one answered. Deputy
Dillingham then opened the door, and they saw Mr. Hester inside the house. Deputy Weems
then ordered Mr. Hester out of the house at gunpoint. Since they did not know who the
shooter was at the time, they placed handcuffs on Mr. Hester and put him in the back of
Deputy Dillingham’s patrol car for their safety.

        Special Agent Tenry of the Tennessee Bureau of Investigation (TBI) arrived at the
house, and he and Deputies Dillingham and Weems went back inside. They noticed a white
powder “all over the floor” in the living room, the kitchen, and the bedroom. There was a
a can of Comet cleaner on the edge of the couch and three blood spots on the living room
floor. A spent .40 caliber shell casing was found in the doorway between the living room and
the kitchen. There was a second shell casing between the doorway of the kitchen and the
front bedroom. Concerning items found in the front bedroom, Deputy Dillingham testified:

       Well, the - - when we got to looking and got to finding - - like I said, we found
       this heater here that had blood on it. We found a knife laying just under one
       edge of a sheet that was on the floor. We found two more shell casings in this
       bedroom. Back over here was some shoes and a hat. Then eventually when
       we got to moving the sheet, I threw back part of the sheet that was folded over,
       we found a weapon laying on the sheet.

The weapon was a .40 caliber handgun. Deputy Dillingham testified that one shell casing
was found under a cap that was on the bedroom floor and another was “in between the toes
of [ ] two tennis shoes.”



                                              -6-
       Deputy Dillingham testified that he found blood on a white truck parked on the road
in front of the house. He also found a T-shirt with blood on it lying next to the Head’s
residence.

       Paramedic Beth Jackson testified that she was working for ASI Ambulance Service
on February 17, 2005. She was dispatched to a shooting reportedly in the street. However,
when she arrived on the scene, she did not see anyone, and a police officer directed her to a
stabbing victim in a neighbor’s house. Ms. Jackson walked inside the house and saw
Defendant lying face down on the kitchen floor. She testified:

       Actually, just as I stepped through the door and walked towards him, I think
       it was probably before I even knelt down beside him to speak to him, he like
       lunged up out of the floor and there was a lady standing against the sink facing
       him. And she had on - - best I can remember - - she had on jogging britches,
       and she had a coat on.

       And he grabbed her pant’s leg first and when he did, it pulled her pants down,
       and she bent over trying to pull her pants back up. And he grabbed her coat
       and pulled her down closer to him and whispered something in her ear, but I
       couldn’t hear what he said.

         Immediately after Defendant whispered in the lady’s ear, Defendant fell backwards
to the floor. Ms. Jackson began asking Defendant what happened, but he had his eyes closed.
He would open his eyes if she asked him to open them and look at her. However, Defendant
did not respond to any questions. Ms. Jackson testified that Defendant repeatedly said, “she
stabbed me.” Ms. Jackson took Defendant’s vital signs, checked his lungs, and inspected his
wounds. She also started an IV and placed him on oxygen. Defendant’s “stats” were good,
and he was breathing satisfactorily. Defendant’s blood pressure was normal, but his heart
rate was elevated. Ms. Jackson testified that Defendant had “two little minor puncture
wounds . . . probably about the size of the end of your little finger nail . . . One of them was
a little bit larger than the other one.” The wounds were on the right side of his body.

       Ms. Jackson asked Defendant if anyone else was injured, and Defendant said no.
After she and Defendant had gone to the ambulance, Ms. Jackson overheard on the radio that
another unit was responding to a second victim at the residence next door. Ms. Jackson again
asked Defendant if anyone else was hurt, and Defendant said that his sister-in-law had been
shot. Ms. Jackson asked Defendant about the gun, and he said that a white male with long
blond hair had it.




                                              -7-
       After Ms. Jackson and Defendant arrived at the Perry County Community Hospital,
Ms. Jackson remained with Defendant for a period of time. Defendant told her that the
“bitch” went crazy while she was peeling potatoes and “that she just automatically flew into
him.” He said that they were arguing, and the victim began stabbing him. In Ms. Jackson’s
opinion, Defendant’s wounds appeared to be superficial.

       On cross-examination, Ms. Jackson testified that Defendant told her that he had been
using PCP that day. In her report, Ms. Jackson made the following notation concerning
Defendant: “pupils were dilated, wild-eyed look to his eyes, suspect possible drug activity.”

       Paramedic Pat Gant with ASI Ambulance Service was dispatched to a residence on
February 17, 2005, to assist another ASI unit. When the ambulance in which Ms. Gant was
riding arrived at the scene, a police officer directed them to the back of a residence. Officer
Dillingham was there with the victim who was lying on the pavement. Ms. Gant detected a
faint pulse in the victim, and she noticed a knife laying on the victim’s chest. Ms. Gant and
other personnel began CPR on the victim and loaded her into the ambulance. She was placed
on a monitor, and an attempt was made to resuscitate her. The victim had wounds to her
pelvic area, chest, and right arm. Ms. Gant testified that the victim’s pulse was lost on the
way to the hospital. When they arrived at the hospital, the victim was turned over to hospital
staff. Dr. Andrew Averett was the treating physician.

       Dr. Averett testified that he examined the victim, who was deceased. She had
multiple gunshot wounds; one to her upper arm that had penetrated into her chest, as well as
multiple wounds to her pelvic and buttocks area.

       Next, Dr. Averett examined Defendant, who was very sleepy, and Dr. Averett had to
wake him up. Defendant had two superficial stab wounds to his chest that had already
stopped bleeding. Dr. Averett testified that Defendant’s mental status was “abnormal”
because his speech was slurred, and he was going in and out of consciousness. Defendant
also smelled strongly of alcohol, and he had told the intake nurse that he had taken PCP
within the previous twenty-four hours. Dr. Averett noted that Defendant acted “intoxicated
in some form or fashion,” but the intoxication “did not make sense.” At times Defendant
would be sleepy and difficult to wake, but other times Defendant had “one eye open looking
around.” Defendant answered Dr. Averett’s questions but then became tearful for no reason.
He also restated that he had taken PCP. It was Dr. Averett’s opinion that Defendant was
“under the influence of something pretty heavy.” He concluded that Defendant should be
transferred to Vanderbilt Hospital because he thought that Defendant had overdosed on some
type of drug. Dr. Averett noted that the Perry County Hospital was small and did not have
the ability to provide the “higher level of care” that Dr. Averett thought Defendant needed.



                                              -8-
Dr. Averett testified that he “asked [his] nurse to get a drug screen from a blood sample” of
Defendant.

       Dr. Averett testified that Special Agent Tenry of the TBI arrived when he first began
performing his physical examination of Defendant. Agent Tenry asked Defendant what
happened, and Defendant replied that he shot the victim because she had “been lying” to him
and “running around on” him.

        Special Agent Jerry Tenry testified that he was instructed to go to the Perry County
Hospital as soon as possible on February 17, 2005. When he arrived, the emergency room
nurse opened the locked door to the emergency room and pointed to Defendant as the person
that he needed to see. Agent Tenry saw Defendant sitting propped up in the bed with an IV
in each arm and a bandage on his chest. When he asked Defendant what happened,
Defendant replied, “I shot her.” Agent Tenry asked Defendant why he shot the victim, and
Defendant replied, “the bitch lied to me and I shot her.” Agent Tenry recovered a .40 caliber
spent cartridge case that had been in Defendant’s shoe. As he was leaving the hospital,
Agent Tenry asked for a copy of Defendant’s emergency admittance sheet. At the same time,
someone also handed him a “box of blood vials.”

        Dr. John Brentley Davis, Assistant Medical Examiner for Davidson County and
employee of Forensic Medical, testified that an autopsy was performed on the victim. The
cause of death was multiple gunshot wounds, and the manner of death was homicide. Dr.
Davis testified that the victim had a total of seven gunshot wounds. Concerning gunshot
wound Number One, Dr. Davis testified that it entered the outside of the victim’s right arm
and traveled into the right side of her chest and went across her chest and was recovered from
her left chest cavity. He noted that gunshot wound Number One was the fatal shot and did
the most damage to the victim. Dr. Davis testified that the shot penetrated “through her
inferior vena cava, put two holes in her heart. And the damage is her right lung and her left
lung.” When asked if the shot was immediately fatal, Dr. Davis testified:

       Not immediately, no, minutes. She had almost two liters of blood in her chest.
       And based on her size, that’s about two thirds of her blood volume. So she
       bled out internally, and that could take - - since it hit the largest [vein] in her
       body, two minutes, ten minutes.

       So not a long period of time and not a short amount of time either. The
       amount of time she was able to move after she was shot here.

       Dr. Davis testified that gunshot Number Two entered the left side of the victim’s
buttock. It went from back to front, “slightly right to left and upward.” Gunshot wound

                                               -9-
Number Three entered the upper portion of the victim’s right buttock. It traveled from back
to front and slightly upward. Dr. Davis testified that gunshot wound Number Four was on
the left side of the victim’s buttock, “more midline where the center of her body is, and that
projectile actually went from back to front, slightly to the right and slightly upward also.”
Concerning gunshot wound Number Five, Dr. Davis testified: “Gunshot wound Number 5
was on her left buttock, slightly lower than the gunshot wound Number 4, went lower down
on her buttock and more toward the midline, went toward, what we call the gluteal cleft, my
kid calls the butt crack, . . .”

        Dr. Davis testified that gunshot wound Number Six was on the victim’s “right butt
cheek lower down than gunshot wound[s] 4 and 5, kind of a progression down of the gunshot
wound from higher up on her butt to further down.” The bullet also traveled from back to
front and slightly upward a little bit to the right. Gunshot wound Number Seven was to the
left side of the victim’s vagina, “the labia majora, and that went back to front and a little bit
to the right.”

       Concerning the victim’s position when the shots were fired, Dr. Davis testified:

       The fact that all these gunshot wounds, with the exception of the first one, are
       from back to front and they’re higher up, they go from lower down and
       initially exit higher up on her body indicating that there’s some elevation to her
       hips. One of the entrance wounds is just to the right of the external anal
       sphincter of her body indicating that she was not sitting up or lying down flat.

       For some elevation[] to her hips, her knees had to have been flexed whether
       she was on her side with her knees flexed up to her chest on the left side or her
       right side, or she was actually with her head down and her knees on the
       ground, one of those two positions.

       Concerning gunshot wound Number Five, Dr. Davis testified:

       Particularly on gunshot wound Number - - I believe, it’s Number 5, which is
       just to the right of the external anal sphincter, it would be difficult to actually
       hit that and not actually lacerate her butt cheek as the bullet’s going in. She
       had to actually have her hips flexed, her legs flexed to actually hit that part of
       the body and not cause injuries to the surrounding skin of the body.

       Dr. Davis testified that the victim’s blood sample was sent to the toxicology
laboratory. It tested positive for PCP, a veterinary tranquilizer that causes disorientation,
lethargy, hallucinations, and fatigue.

                                              -10-
      TBI Special Agent Teri Arney testified as an expert in firearms identification. She
examined the .40 caliber cartridge casings recovered from Defendant’s residence and
determined that they were fired from a pistol that was also recovered in the house.

       Special Agent Arney testified that she examined the victim’s clothing and was asked
to perform a “muzzle-garment distance determination.” She found three bullet holes in the
victim’s hooded jacket. Special Agent Arney testified: “There’s one on the outside of the
sleeve and just opposite of that, the inside of the sleeve. And then also on the torso area of
the jacket.” Concerning her examination of the jacket, Special Agent Arney testified:

       I examined it microscopically. I could find no gunpowder particles. I tested
       it chemically for gunpowder residue. That was also negative. I tested it for
       lead residue, which would be from vapor from the primer, the cartridge.

       It could also be from the bullet itself. If the bullet picks up lead from the
       interior barrel of the firearm or if the bullet breaks apart and exposes the
       interior lead core of the bullet, that can leave a smear around the margin of the
       hole. We call that bullet white, and that’s what I found on all three of these
       holes.

       In other words, if the periphery of the hole has an area that tested positive for
       lead, that tells me that’s consistent with the passage of a projectile. Because
       I didn’t have any gunpowder residue, I didn’t have lead vapor. I couldn’t tell
       you anymore other than it’s consistent with the passage of a projectile.

       In other words, I can’t tell you a distance that the muzzle of the gun was from
       that garment.

       Special Agent Arney also performed a gunshot residue analysis of the victim’s pants.
She testified that there were six gunshot holes in the back seam area of the pants and also six
holes in the front lower abdomen area of the pants. Special Agent Arney testified:

       I tested both the front and the back areas for the gunshot residues. The holes
       in the front of the pants, again, had lead white, which is just consistent with the
       passage of the bullet. The holes in the back seam area of the pants, I was able
       to get a distance determination on those holes because I found lead vapor.

       I found gunshot powder particles, and I found gunpowder residue in the form
       of nitrates, which is the chemical test that I was talking about doing. It’s a
       color pattern.

                                              -11-
       And based on the test patterns that I shot with the pistol submitted, I was able
       to determine that distance was greater in contact; in other words, the muzzle
       of the gun was not touching the garment, but it was no farther away than 18
       inches.

      Special Agent Arney testified that she also examined bullets fragments obtained from
the medical examiner’s office. She determined that they were fired from the .40 caliber
weapon recovered from Defendant’s residence.

Analysis

       Sufficiency of the Evidence

        In a relatively brief argument Defendant asserts that the evidence was overwhelming
that his intoxication prevented him from being able to form the mens rea of premeditation,
a necessary element of premeditated first degree murder. Defendant also asserts that the
evidence was insufficient to establish the aggravating circumstance found by the jury to
sentence him to life in prison without parole.

         Defendant’s argument regarding the sufficiency of the evidence to support his
conviction asserts that the weight of the evidence was contrary to a finding that premeditation
existed. On appeal the State is entitled to the strongest legitimate view of the evidence and
to all legitimate inferences that may be drawn therefrom. State v. Smith, 24 S.W.3d 274, 279
(Tenn. 2000). As particularly pertinent to Defendant’s assertion that the evidence was
insufficient to support his conviction, the credibility of witnesses and the weight to be given
their testimony are matters entrusted to the jury, Id. at 278, and the appellate court is not
permitted to re-weigh the evidence or substitute its inferences for those of the jury. Id. at
279. Under these standards, Defendant is not entitled to relief on his challenge to the
sufficiency of the evidence to sustain his conviction.

       Regarding Defendant’s challenge to the sufficiency of the evidence to support
application of the aggravating circumstance set forth in Tennessee Code Annotated section
39-13-204(i), we review the evidence under the same standard as we use to review
sufficiency of the evidence to support a conviction. Tennessee Code Annotated section 39-
13-204(i)(3) states,

                (i) No death penalty or sentence of imprisonment for life without
        possibility of parole shall be imposed, except upon a unanimous finding that
        the state has proven beyond a reasonable doubt the existence of one (1) or



                                             -12-
        more of the statutory aggravating circumstances, which are limited to the
        following:

                                             ***
                       (3) 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;

                                            ***

        On appeal the State relies almost exclusively upon the testimony of Chandra Ewing
Vaughn to support its argument that the State proved the specified statutory aggravating
circumstance beyond a reasonable doubt. At the sentencing hearing, Ms. Vaughn testified
during direct examination that she was in the master bedroom, also referred to as the front
bedroom, folding clothes when she heard Defendant and the victim arguing. She then heard
“gunshots” and ran toward the bathroom in the house to get the four-year old child Deanna.
She testified that the route she took to get the child was “from the master bedroom, through
the kitchen, through the hallway to the bathroom.” While traveling through the kitchen and
hallway Ms.Vaughn was “shielding” herself by placing her hands over her head. When
asked by the prosecutor why she was shielding herself, Ms. Vaughn answered, “I didn’t
know where the bullets were going.”

        When Ms. Vaughn got to the bathroom, she picked up Deanna “and ran out the back
door.” Ms. Vaughn explained that she did not go from the bathroom to the front door
because “the backdoor was the closest exit.” Ms. Vaughn heard more gunshots as she was
going out the back door, but she could not say how many she heard. She ran to the
neighbor’s house while holding the child. Ms. Vaughn testified that the house where the
shooting occurred is “small,” but she could not estimate the square footage of the house. As
she and the child were going out the back door, she was not able to see where Defendant and
the victim were located. However, as she went out the back door, she knew that the gunshots
were located in the kitchen.

       During cross-examination Ms. Vaughn testified that there was no way that Deanna
could have seen Defendant while he was shooting in the house. Ms. Vaughn acknowledged
that a wall existed between the kitchen where Defendant was shooting the gun and the
bathroom where the child was located. During re-direct examination, Ms. Vaughn testified
that she saw Defendant and the victim in the kitchen when she (Ms. Vaughn) was traveling
from the master bedroom on her way to the child in the bathroom. However, she did not
specifically indicate the relative locations of Defendant and the victim inside of the kitchen.

                                             -13-
        Because evidence advanced during the guilt phase of the trial can be considered
during the sentencing deliberations by the jury, State v. Teague, 897 S.W.2d 248 (Tenn.
1995), we will also summarize relevant testimony presented during the guilt phase. In those
proceedings Ms. Vaughn testified as follows. During direct examination Ms. Vaughn stated
that she heard arguing, and then heard one gunshot prior to running toward the bathroom to
get Deanna. Ms. Vaughn also elaborated that on her way to the bathroom she was running
close to the wall “[b]ecause when I was coming down the kitchen the hall to where the
kitchen wall was, I was close to the wall because I didn’t know where – which way the
bullets were going.” Ms. Vaughn stated that Defendant and the victim were five or six feet
apart when Ms. Vaughn went through the kitchen. All that Ms. Vaughn saw when she ran
through the kitchen was the victim standing with her hands down by her side and Defendant
standing with the gun in his hand.

        Also, testimony at trial from the medical examiner showed that seven bullets entered
the victim’s body. One entered the upper portion of her body, initially into the outside of her
right arm, and then through that arm and into her chest cavity where it perforated a major
vein and led to the victim bleeding to death. A forensic firearms agent of the T.B.I.
examined the hooded sweatshirt worn by the victim at the time of her shooting. This agent
testified that she was unable to determine the distance that the muzzle of the pistol was from
the victim when the bullet was fired. The medical examiner identified six additional
gunshots that struck the victim from behind and below her waist. Based upon the paths of
these wounds, the victim was either on her knees with the top of her body bent forward or
was on her side with her knees pulled up to her chest when she was shot. The forensics
firearms expert witness testified that all six of the gunshot wounds to the victim’s lower body
were indicated by holes in the back seam area of the victim’s pants, and based upon gunshot
residue she concluded that in each of these six gunshot wounds the muzzle of the pistol was
no farther away than 18 inches from the victim when it was fired. The T.B.I. forensics
firearm expert witness provided no testimony regarding the power and force of the .40 caliber
pistol and ammunition identified as the cause of the victim’s injuries. No witness testified
as to the structure of the walls and doors of the house or the ability or inability of the .40
caliber ammunition fired from the pistol to penetrate and pass through the walls or doors of
the house.

        In a diagram of the house where the victim was shot, Ms. Vaughn labeled the location
where Defendant and the victim were standing in the kitchen when she was running to get
the child out of the bathroom, the location of the child inside the bathroom, and the route she
took to get the child and then take the child out of the house. There is no proof as to whether
Defendant or the victim changed their positions in the short period of time it took for Ms.
Vaughn to get the child and get her out of the house. Based on the diagram, if Defendant
was shooting at the victim, neither the child nor Ms. Vaughn were close to being in the line

                                             -14-
of fire. Ms. Vaughn explicitly testified that she had no idea where any bullets were going,
and there was no testimony as to the location of any bullet holes in the house.

        The State is entitled to all legitimate inferences that may be drawn from the strongest
legitimate view of the evidence. Smith, 24 S.W.3d at 279. However, from the evidence
presented at the trial and sentencing hearing in this case, it would be rank speculation to say
that Defendant knowingly created a great risk of death to the child when there is absolutely
no proof that she was in the line of fire from the only known spot that Defendant was located
when any shooting occurred when the child was inside the house or was leaving the house.
Furthermore, there was no proof presented that the bullets fired from the gun used by
Defendant did, or even could, penetrate the walls or doors of the house. This court is not
permitted to take judicial notice of the firepower of a .40 caliber pistol. The State’s theory
on sentencing seems to be that in a relatively small house, any person inside the house when
a gun is discharged is at a great risk of death, without regard to any evidence of the firepower
of the weapon, or the nature of any structures between the shooter and the alleged victim, or
even whether there is any physical evidence that any bullets were fired in close proximity of
the victim. Since the statutory aggravating circumstance requires that the State prove beyond
a reasonable doubt that at least two persons other than the victim murdered must be placed
at a great risk of death, Tenn. Code Ann. § 39-13-204(i)(3), the sentence of life without
possibility of parole must be reversed. Consequently, upon remand Defendant’s sentence
shall be modified to life imprisonment.

       Suppression of Evidence

        Defendant filed a pre-trial motion to suppress the toxicology report of his blood drawn
at the Perry County emergency room on the night of his arrest. The toxicology report showed
that Defendant’s blood was negative for the presence of any drugs. This contradicted
Defendant’s planned theory of defense at trial, that he was unable to form premeditation
because he was under the influence of PCP at the time of the offense, and thus could be
guilty at most of second degree murder rather than first degree murder. The hearing on the
motion to suppress was held on July 12, 2010, the day before the trial was scheduled to
begin. Defendant’s theory for granting the suppression motion was that the blood draw was
a warrantless search by the State in violation of the Fourth, Fifth, and Sixth Amendments to
the United States Constitution. Defendant asserted that no exception to the requirement of
a search warrant existed. He also claimed that the process by which the toxicology report
was produced violated his Fifth Amendment right to be protected against compelled self-
incrimination and that use of the toxicology report would violate his Sixth Amendment right
of confrontation. The State, for the first time, announced to the trial court at the suppression
hearing that its theory was that Defendant’s blood was drawn by medical care providers for
the purpose of diagnosis and treatment, and therefore did not implicate the Fourth

                                              -15-
Amendment. The State failed to address Defendant’s claims under the Fifth and Sixth
Amendments in its opening statement at the suppression hearing.

       The proof in this case showed that Defendant shot and killed the victim. He shot her
seven times after they had quarreled, and six of the shots were fired into the victim’s buttocks
as she lay in a fetal position on her side or while she was on her hands and knees.
Defendant’s assertion was that he had taken the drug PCP on the day of the shooting and that
he was not in his right mind to form premeditation. As to the issues raised in the suppression
motion the evidence at the pre-trial hearing is as follows:

        Dr. Andrew Averett, a family physician and employee of the Perry County
Community Hospital, testified that he was working at the hospital in February of 2005.
Although he could not recall the specific night, Dr. Averett testified that he saw Defendant
in the emergency room after he had “worked a code on a female.” He said that Defendant
was brought in because he “he wasn’t acting right, and also, because they thought that he had
- - was involved in this incident.”

        Dr. Averett testified that Defendant had a “couple of superficial stab wounds up to his
anterior chest” and a “couple of small things down his finger or his hand, arm.” Dr, Averett
testified that he requested that Defendant’s blood be drawn because Defendant’s “mental
status wasn’t normal.” Based on his consultation with Defendant, Dr. Averett determined
that Defendant should be sent to Vanderbilt Hospital. He did not know what happened to the
blood sample once Defendant was transferred to Vanderbilt.

        On cross-examination, Dr. Averett testified that he did not recall seeing Defendant’s
blood being drawn. However, he testified that Defendant was “blasted.” He further
clarified:

       I don’t know how to - - [Defendant] was mentally obtunded, as well as hyper-
       somnolent, he was tearful at times, and at other times, inappropriately - -
       (pause) - - I wouldn’t say cheerful, but just inappropriately disconnected, in
       other words, he had an abnormal mental status.

       Dr. Averett testified that he was using the blood sample “as a part of trying to
determine why [Defendant’s] mental status was the way it was.” Dr. Averett had also been
informed by his nurse that Defendant told her that he was under the influence of PCP. Dr.
Averett testified that the blood would not have been tested at the hospital. He said that the
normal course of business was for his nurse to give the blood sample to a police officer and
“that would be who would then take it to the state lab, and that would be whoever the lead
investigator or lead officer at the scene was.” He thought that his nurse gave the blood

                                              -16-
sample to Agent Tenry. Dr. Averett testified that the fact that Defendant admitted to killing
someone was not a factor in his request for the blood sample.

       Concerning the blood sample request, Dr. Averett further testified:

       Well, what I wanted was so that when he got to Vanderbilt, they would be
       getting a - - a picture image of what was in his blood at the time that he was
       in Linden, because with toxicology, time matters. Something that’s in your
       blood now may not be in your blood two or three hours from now.

Dr. Averett noted that the average half-life for PCP was six to fourteen hours. He clarified
that he intended for the blood sample to be tested by the “state toxicology lab because they
have the best toxicology lab in that state.” However, he noted that Vanderbilt would also
have access to the sample.

       Dr. Averett testified that after Defendant was transferred to Vanderbilt Hospital he
was sent back to the county jail. He then cared for Defendant on several more occasions at
the Perry County Jail. Dr. Averett made it clear that he did not “do the drug screen to in any
way establish or not whether [Defendant] had performed shooting this person, it was purely
to aid me and help get a clear picture for the people at Vanderbilt as to his behavior.”

        Dr. Averett testified that he did not obtain Defendant’s consent to draw blood, and that
Defendant did not object to having his blood drawn. Dr. Averett acknowledged that the
report indicated that the requesting individual was “Sergeant [sic] Jerry R. Tenry.” However,
it was still his testimony that he requested the blood sample for medical purposes. He said,
“I’m sorry if this had been contradictory or seems confusing; I think what happened is my
nurse just handed the vial of blood to Mr. Tenry and he took it and had it processed.” Dr.
Averett further testified: “Now, my purpose in getting a screen on him was because of his
mental status and just for medical purposes, because I don’t see that it’s relevant - - or I
didn’t see that it’s relevant to whether he shot her or whether he didn’t.” Dr. Averett
acknowledged that the emergency room form indicated that Defendant admitted to “PCP use
yesterday a.m.,” and it noted “positive Etoh.” The right side of the form read, “tox[icology]
screen per TBI.” Dr. Averette testified that Agent Tenry did not ask for Defendant’s blood
to be drawn.

       Special Agent Jerry Tenry testified that he was dispatched to Perry County to
investigate the murder of the victim. He initially drove to the Perry County Sheriff’s Office
but was “rerouted” to the hospital. Special Agent Tenry walked inside the hospital and spoke
to a nurse. Agent Carroll arrived shortly thereafter. Special Agent Tenry testified:



                                              -17-
       I just asked who I needed to talk to. I was given [Defendant’s] name, I turned
       and [Defendant] was to my right. I went to the foot of the bed. At that time,
       Dr. Averett was there, he went up on one side of the bed, I can’t remember .
       . . and I spoke to [Defendant].

Special Agent Tenry testified that he did not ask Dr. Averett to draw Defendant’s blood.
Later, as he was leaving the hospital, Special Agent Tenry received a copy of the in-take
sheet, and he was “handed the [vial of] blood.” He said that he received the vial from the
nurse in charge of the emergency room. Special Agent Tenry transported the blood sample
to the “crime lab and turned it in.” He also completed an “Alcohol and Toxicology Request.”

        On cross-examination, Special Agent Tenry testified that he was surprised to receive
the vial of blood. He said that he did not have any intentions of getting a blood sample from
Defendant when he went to the hospital. Special Agent Tenry also retrieved a bullet
cartridge from Defendant’s shoe while he was at the hospital. He admitted that he did not
have to request the blood sample because it was given to him.

      After all proof had been presented the trial court denied Defendant’s motion to
suppress. The trial court’s extensive findings, conclusions, and reasoning for denying the
motion to suppress, including a colloquoy with one of Defendant’s counsel, are as follows:

        THE COURT:            If the medical evidence in this case were drawn as part
                              of the treatment and diagnosis of [Defendant], then
                              the court believes under our law that it’s admissible
                              even though it’s now being used in criminal
                              proceedings. If it was drawn at the request of the
                              State of Tennessee, or if the hospital acted as an agent
                              of the State of Tennessee, then the Fourth Amendment
                              is implicated and the question of whether a warrant
                              would’ve been required under this circumstance
                              would be before the court.

                              The entire case is presented on the theory that the
                              blood sample was drawn for the purpose of treatment
                              and diagnosis. The proof that’s been offered the court
                              through the testimony of Dr. Andy Averett and
                              through the testimony of retired TBI Agent Mr. Jerry
                              Tenry was to the effect that, one, Dr. Averett
                              requested that the sample be drawn, he requested it
                              because of the rapidly changing mental condition that

                                            -18-
he observed in Mr. Vaughn and he wanted that blood
sample for the purpose of diagnosis and treatment.
Agent Tenry maintains that he did not ask to have the
blood sample drawn, that it was handed to him on the
way out.

Obviously, there are some real inconsistencies here,
because, number one, the document that’s been
marked Exhibit 3 and that was identified to be in the
handwriting of a nurse, Ms. Briley, Judy Briley, or
Judith Briley, I think it is, reflects toxicology screen
“per TBI,” those are the words, “tox screen per TBI.”

And then the form that’s been marked as Exhibit 1 by
Agent Tenry is all in his handwriting, with the
exception of the part that says that the sample was
collected on February 17th , 2005 at 19:35 p.m. by Tara
C. Harris MCT.

Notwithstanding the inconsistencies, the court finds
that the sample in question was, in fact, drawn for the
purpose of diagnosis and treatment, primarily based
upon the testimony of Dr. Averett, because he wanted
to essentially establish a baseline, he wanted some
evidence to show the content of Mr. Vaughn’s blood
at the time he was at the Perry County Hospital for
later comparisons with whatever was found at
Vanderbilt. That makes logical sense.

Now, what doesn’t make any logical sense is why you
would send it to the TBI knowing it could take a very
long time to get back. But I can’t necessarily question
that decision. At least I know the decision, or I
believe the decision was honestly made in order to
obtain a baseline for determining what the
circumstances were at the time Dr. Averett treated Mr.
Vaughn at the Perry County Hospital.

So for that reason, the court will deny the motion to
suppress.

              -19-
MR. BATES, III:   Your Honor, could I - - I might have to do some
                  research on it tonight, Your Honor, the private action
                  can become simply state action.

THE COURT:        If the private actor becomes the agent of the state,
                  then, according to the reading that I did, it could
                  become state action. So if the proof had been that the
                  blood sample was drawn at the request of the State of
                  Tennessee by Dr. Averett or the nurse who actually,
                  physically, drew it, then the Fourth Amendment would
                  be implicated.

MR. BATES, III:   But then the analysis of it by the state, it becomes
                  government action, the Fourth Amendment - - if the
                  Fourth Amendment did not prevent the blood from
                  being drawn, it prevents it from being analyzed.

THE COURT:        You may be right; I don’t read the law that way, Mr.
                  Bates. I think that if the sample was legitimately
                  taken for medical reasons for purposes of treatment
                  and/or diagnosis, then the fact that the State of
                  Tennessee later analyzes it for their own purposes
                  doesn’t make it impermissible. Now, you’re welcome
                  to look at that question, if I have phrased it correctly,
                  and if I’m wrong about it, advise me in the morning.

MR. BATES, III    All right. One second, Your Honor.

                  (Counsel conferred, after which the following
                  proceedings were had):

MR. BATES, III    And the other issue is, if the - - of course, every blood
                  sample is drawn by medical personnel, and so we’d
                  like, also, to research if it was done in concert with the
                  State of Tennessee. We’d also like to revisit that
                  issue, as well, Your Honor.

THE COURT:        Any authority you can give me that help me on this
                  question, I’m delighted to look at. But at least for the
                  purposes of where we are tonight, it’s this court’s

                                 -20-
                               judgment that your motion should be denied, with all
                               due respect, because I believe that the sample was
                               drawn based upon a decision that Dr. Andy Averett
                               made for medical purposes or diagnosis and treatment.
                               And, after that, if there’s something that causes the
                               Fourth Amendment to be implicated, I’ll be happy to
                               listen to you.

        During the trial, Defendant’s counsel renewed the motion to suppress during TBI
Agent Tenry’s testimony. After a jury-out hearing, the trial court again denied the motion
on the basis that its finding, based upon testimony to that point, was that the blood was drawn
at the direction of a medical provider for the purpose of diagnosis and treatment. However,
during its ruling, the trial court made it clear to the State that the toxicology report generated
after analysis by the TBI forensic lab would not be admitted into evidence absent testimony
of the chain of custody, to-wit, evidence of who drew Defendant’s blood and who had
uninterrupted possession of the blood until it was handed to Agent Tenry. The State rested
its case at the conclusion of Agent Tenry’s testimony and the trial was recessed until the next
morning.

       The next morning in court, prior to resumption of the trial, one of the State’s
prosecutors announced that she had spoken via telephone to Ms. Harris, the nurse who had
drawn Defendant’s blood. The conversation took place the previous evening after the trial
had recessed. The prosecutor stated that she had informed Defendant’s counsel the previous
night about the substance of Ms. Harris’ information, and that the State felt the information
should be “on the record.” The prosecutor said that Ms. Harris remembered the night that
Defendant and the victim’s body were brought to the ER where Ms. Harris was working.
While concise summaries of argument or testimony are generally preferable to lengthy quotes
from a trial transcript, we deem it appropriate in this case, with its unique procedural history,
to quote at length what transpired during and immediately after the State prosecutor’s
disclosure. For clarification purposes, Defendant was represented by two attorneys, Mr.
Douglas Bates, III, and his son, Mr. Douglas Bates, IV.

         [PROSECUTOR]: I had called Mr. Bates last night about 7:40. I was
                       finally able to reach him and told him all of this, but I
                       feel this needs to be on the record.

                               When I first spoke to Ms. Harris, she told me that she
                               was working in the ER that night. She recalls it
                               because she had dealt with her first dead body, which



                                              -21-
                 would be [the victim], and that she had worked the
                 code on her.

                 She stated that she was upset because of that code.
                 And when she came out of the trauma room, she went
                 to [Defendant’s] bed to work on him when he came in.
                 While she was there with Dr. Averett treating
                 [Defendant], a TBI agent came in and came up to his
                 bed. She didn’t know the TBI agent’s name.

                 She said she recalled the TBI agent talking to
                 [Defendant], but she doesn’t recall specific questions
                 and answers. She stated she doesn’t recall because
                 she was very upset over the code of the victim and she
                 just really wasn’t paying close attention.

                 She then stated that she heard the doctor and the TBI
                 agent talking. She again doesn’t know the specifics of
                 that. She states that Dr. Averett told her to draw the
                 blood, and she stated that she thinks she heard the
                 TBI agent say, we’re going to need blood.

                 Now, she doesn’t have a reference point for when that
                 occurred. And she said she drew the blood. She drew
                 as much as she could, and she handed it to the agent.
                 I talked to her last night around 6:15. She agreed to
                 accept service of subpoena by phone; however, she
                 lives in Adamsville, which is about 70 miles from
                 here, so she will not be here until about 10 o’clock.

THE COURT:       Mr. Bates?

MR. BATES, IV:   I want to first make a personal observation and my
                 appreciation for the General. When she called last
                 night, it was, I think in view, in the utmost of our
                 profession and I want to thank her for that.

                 Your Honor, my father and I have spent the last week
                 with the knowledge after Monday’s hearing that the
                 blood reports were admissible. After your ruling on

                               -22-
                   Monday, our trial strategy had changed. It had not
                   occurred that it would have been a private study based
                   on a private request based on the record.

                   And we litigated the suppression hearing like it was
                   not and it was a surprise. We have spent hours on this
                   case preparing this week with that blood report
                   coming in. And the fact that the Court now has new
                   evidence doesn’t change how we’ve litigated this
                   case, how we’ve picked the jury, how we’ve
                   questioned witnesses, how we’ve done all of these
                   things.

                   We do not renew our motion to suppress this
                   evidence. In fact, we have no more proof going
                   forward. We will be resting. We will be asking
                   [Defendant] questions for him not to take the stand.
                   We will be putting [sic] our motion for acquittal. This
                   does not mean we feel that the evidence is properly
                   admissible. We do not waive that argument.

                   At this point, Your Honor, it’s irrelevant. It didn’t
                   come in for procedural reasons. Substantively, we
                   have been affected by this ruling on Monday that’s
                   now based on facts that were just not true. So
                   because we’re not going forward, we’re ready to move
                   forward.

[PROSECUTOR]: Your Honor, if I could respond to that. I think at this
              point the State is not submitting that the facts from
              Monday are untrue. I think Ms. Harris, obviously,
              stated at least a couple of times in my conversation
              with her that she was upset and she was not paying
              attention.

                   So I think the issue would be to flush out with her as
                   to whether or not those facts were untrue. I’m just
                   reporting what I found out from her last night. If
                   they’re not putting on any proof, then, therefore, we
                   will not be putting on any rebuttal.

                                 -23-
             And that would mean that we don’t need Ms. Harris or
             Ms. Hopkins that we have on the way. And we would
             ask for a brief moment to call those ladies off.

THE COURT:   Let me thank both counsel for your remarks. When
             the Court left here Monday, [the day of the
             suppression hearing] it was obviously a big question
             in the Court’s mind as to why the nurse wasn’t called
             by one side or the other. And the only thing I could
             conclude was, it was trial strategy that the State or the
             Defendant had developed based upon interviews with
             this particular witness.

             Now, yesterday when the motion to suppress was
             renewed, I made it as clear as I could that I felt
             comfortable with the ruling based upon the evidence
             I had.

             But I also knew that there was no way for that
             evidence to come into this trial based upon the proof
             that we had because, as I indicated yesterday, the only
             evidence that we had was that, one, Dr. Averett had
             requested a draw. And two, Agent Tenry had been
             given a vial of blood. That’s it.

             What happened after the request for the draw was
             made there was no proof at this point in time and then
             whether Agent Tenry what he did with the vial, there
             was no proof at this point in time. I will say
             depending on what Ms. Harris has to say, this would
             obviously explain what transpired.

             And by that I mean, if what she says is that she
             overheard a conversation where the TBI agent said, I
             think we need blood, and the blood was drawn as a
             result of the comment, then it would completely
             change the Court’s ruling on the motion to suppress.

             And I’m prepared to do whatever is proper to make
             sure that both the State and [Defendant] receive a trial

                            -24-
                 that’s as clean as I can possibly make it. So if we
                 need to release the jurors for today and bring them
                 back tomorrow and afford the State and Defense an
                 opportunity to talk with this lady, that’s what I’ll do.

                 I’ve struggled with this since Monday because I
                 [k]new this hole in the Court’s mind. I didn’t know
                 that it existed in either the mind of the Defense or the
                 counsel for the State. But there’s, of course, some
                 things that couldn’t be explained Monday. The
                 evidence, though, that came before me is what I had to
                 use to rule on the motion to suppress. And I’ve been
                 through that.

                 You-all know what I thought about it and what I said
                 about it and I still stand on it. Whatever Ms. Harris
                 [h]as to say may have very well changed that ruling.
                 So let’s try to figure out now what makes sense. What
                 the Defense is saying is that their trial strategy was
                 based on the motion to suppress.

                 And what I’m saying, I’m prepared to send the jury
                 back, take it up tomorrow, take it up Monday, do
                 whatever I need to do to allow this issue to be pursued
                 to make sure that neither side is prejudiced, but I’m
                 not sure that’s what either side wants. So in terms of
                 the discovery that was requested in this case, would
                 the discovery have asked for Ms. Harris’ name?

MR. BATES, IV:   Your Honor, the witness - - the original discovery
                 requested it for every witness. And General Long
                 stated that the witnesses were endorsed upon the
                 indictment. Ms. Harris’ name was not on that. Now,
                 her name was in the discovery packet because she was
                 the nurse that drew blood. But her name on that
                 request was irrelevant because it was requested by
                 Special Agent Tenry.

                 And pursuant to the statute in which that request
                 comes in, all the State would need was State action is

                               -25-
                  that the officer who requested it and the lab technician
                  who analyzed it.

THE COURT:        When you say the statute under which the report - - do
                  you mean the report comes in? You’re saying the
                  reports coming in under The Business Record Act?

MR. BATES, IV:    That’s correct.

THE COURT:        Well, the problem is that the information contained in
                  the report is quote, “testimonial,” in nature, then the
                  Fourth [sic] Amendment is implicated. That’s the
                  problem.

MR. BATES, IV:    That’s correct. And that was the reason the thrust of
                  our suppression was it was State action. It was never
                  contemplated by us that it was not State action based
                  upon the record of the toxicology request was
                  requested by Special Agent Tenry.

MR. BATES, III:   May I confer with my son?

MR. BATES, IV:    And, Your Honor, the point is we are not asking
                  for a mistrial. We have tried this case. You gave us
                  a right turn; we took it. And we have litigated this
                  case with that report coming in.

THE COURT:        The question I have to you is, do you believe that your
                  client has been prejudiced, potentially, based upon the
                  information that’s been brought to light between the
                  adjournment of court yesterday and the reconvening of
                  court today?

MR. BATES, IV:    May I have a minute.

THE COURT:        Sure.

MR. BATES, IV:    Your Honor, here is our position that the case changed
                  based on Monday’s ruling that the blood report was
                  inadmissible [sic]. We’ve tried our case. We have

                                -26-
                  tried as hard as we can. We are not asking for a
                  mistrial.

                  We are not asking for a delay to examine Ms.
                  Harris in light of what she said. We’ve tried this
                  case with the assumption that that report was coming
                  in and we are not asking for a mistrial. We are
                  moving forward.

THE COURT:        I understand what you’re saying, but you understand
                  that if Ms. Harris’ testimony had been offered Monday
                  and if she said that the only explanation she’s got for
                  the words on that report that she wrote in her
                  handwriting, TOX requested by TBI or something to
                  that effect, I don’t remember the precise words, but
                  it’s something to that effect.

                  The only explanation she can give for those words is
                  the fact that she was there and it’s her best
                  recollection that she heard a TBI agent say, I think we
                  need blood. That would very well change the Court’s
                  ruling.

MR. BATES, IV:    We understand that. Let me elaborate. If the motion
                  was suppressed on Monday, I believe, if Ms. Harris
                  would say the things the General says, I believe, the
                  Court based on its reasons, suppressed the evidence.

THE COURT:        Correct.

MR. BATES, IV:    Procedurally, we would be in - - just at a glance - -
                  we would be in the same position we’re in right
                  now, which is the report would not be in evidence.
                  It would not be for the juror’s consideration.

THE COURT:        Let me interrupt. It’s my recollection it’s been
                  marked as Exhibit Number 47.

[PROSECUTOR]: Your Honor, Exhibit 47 is the - -



                                -27-
THE COURT:        The sheet?

[PROSECUTOR]: The Perry County Hospital records.

THE COURT:        The ER sheet?

[PROSECUTOR]: Yes.

THE COURT:        Okay.

[PROSECUTOR]: The toxicology report is not.

THE COURT:        So the toxicology report - - exhibit - - that sheet
                  doesn’t have any results on it.

[PROSECUTOR]: No, Your Honor.

THE COURT:        All right. Then my question to you is, does it change
                  your - - I understand the trial would be the same and
                  in the same posture that we’re in right now, but would
                  it change your recommendation to your client on
                  whether he should or should not testify? Or would it
                  change your decision on whether to call or not call
                  witnesses? I understand we would be in no different
                  place concerning the trial.

MR. BATES, IV:    It is hard for me to separate the past three days. It’s
                  hard for me to say, let’s now go back and start in voir
                  dire with the assumption that the test is not coming in.
                  I cannot answer [the] Court’s question. I don’t
                  know how I would feel had the report never been
                  admissible.

THE COURT:        All right. Here’s what I’m going to do - -

MR. BATES, IV:    But we’re not asking for a mistrial.

THE COURT:        I’m going to take a short recess. I want the State to
                  confer - - the two lawyers that represent the State - - to
                  confer with one another to just sort of sum up in their

                                 -28-
                   minds where we are. I want the Defense counsel to do
                   the same.

                   And the issue I want each of you to think about is,
                   one, I am suggesting that we would let Ms. Harris
                   come here and hear what she’s got to say with a jury-
                   out hearing. It may or may not change my ruling on
                   the motion to suppress.

                   Would that then change the decision either the State
                   has made in terms of resting? And would it change
                   the decision that the Defense has made in terms of
                   putting on evidence? It may be when you come back
                   in short order.

                   I don’t want you to spend a whole lot of time doing
                   this, but it may be when you come back you’re saying,
                   the State still rests, Defense puts on no evidence.

[PROSECUTOR]: Your Honor, just so I can give Mr. Bates - - I can
              answer that question for you now.

THE COURT:         All right.

[PROSECUTOR]: It would not change how we perceive it. We decided
              on Monday night regardless of the decision that was
              made on Monday, we made the decision that we were
              going to use Ms. Hopkins in rebuttal. And we found
              case law that said, even if you had suppressed that
              evidence for our case in chief, we could have still used
              that evidence in rebuttal.

THE COURT:         And you said, “Ms. Hopkins.” I had written Ms.
                   Harris. Is her name, Hopkins?

[PROSECUTOR]: Ms. Hopkins is the one who performed the actual
              result. Ms. Harris, really, Your Honor, until you made
              that statement yesterday, it did not click with me that
              we had not subpoenaed her to say that she took the
              defendant’s blood.

                                 -29-
THE COURT:          Okay.

[PROSECUTOR]: Even though on Monday, I heard that testimony that
              neither Dr. Averett nor Agent Tenry saw the blood
              drawn. It wasn’t until you said it yesterday that I
              thought we need to get Ms. Harris here. So even in
              that regard, she would have been for rebuttal.

THE COURT:          You’re talking about Ms. Hopkins would be for
                    rebuttal?

[PROSECUTOR]: Ms. Hopkins and Ms. Harris would have both been in
              rebuttal. They would have never been in our case in
              chief.

MR. BATES, IV:      Your Honor, if that’s the case, then we’re in no
                    different position right now than had the
                    suppression - - regardless the suppression,
                    regardless of whether Ms. Harris was going to
                    have to come or not, we’d be in the exact same
                    position, which is as soon as the General said
                    yesterday, I rest, I immediately said, I’ve got to go
                    research rebuttal law.

                    And so we’d be in the exact same position whether or
                    not that was suppressed or not. I admittedly did not
                    know about the case that she referred to. She said if
                    it was suppressed it could still be used as rebuttal
                    evidence. So in light of what the - -

[PROSECUTOR]: I would like to say just for the record, that’s State
              versus Electro Cleaning, Inc. and Frosting, Inc.
              (phonetic).

THE COURT:          What’s the citation?

[PROSECUTOR]: It’s a Court of Criminal Appeals case number, or case,
              Your Honor, 1998 Tennessee criminal appeals. Here
              it is in front, [State v. Electroplating, Inc., 990 S.W.2d
              211, 226 (Tenn. Crim. App. 1998)].

                                  -30-
        THE COURT:            And that case stands for the proposition that the proof
                              could be introduced even if the motion to suppress had
                              been granted?

        [PROSECUTOR]: Correct, Your Honor, in rebuttal, even if the Court had
                      found that the evidence was illegally obtained.

        THE COURT:            Do you want to read that case, Mr. Bates?

        MR. BATES, IV:        No, Your Honor. Now that I see the State’s strategy
                              was to put me in this box all along, I’m in the same
                              box I’d be in regardless of what Ms. Harris would say.

        THE COURT:            All right. Then the State has rested and the State
                              remains in that posture; is that correct?

        [PROSECUTOR]: That’s correct, Your Honor.

        THE COURT:            And the Defense elects to call no witnesses and put on
                              any proof?

        MR. BATES, IV:        Your Honor, I do believe I need to - -

        THE COURT:            I mean, we’re going to talk with your client on the
                              [Moman] issue, but am I correct that’s where the
                              Defense is?

        MR. BATES, IV:        That’s correct, Your Honor.


(emphasis added).

       At the hearing on Defendant’s motion for new trial, the trial court, sua sponte, brought
up the precise issue of Defendant’s motion to suppress the toxicology report. The trial court
referred to an affidavit of the nurse, Ms. Harris, which had been filed by Defendant for
consideration at the motion for new trial. The affidavit clearly indicated that Agent Tenry
responded affirmatively in the ER when the physician on duty, Dr. Averett, asked Agent
Tenry if he wanted a blood sample from Defendant. After hearing argument from
Defendant’s counsel the trial court framed the issue before it as follows:



                                             -31-
         but the thrust of the argument, as I get it is this: because of perjured
         testimony, the court ruled erroneously at the suppression hearing. The
         defense then planned its entire case around that ruling. It’s now become
         evident that had the suppression motion been granted, the case would have
         been tried differently. And the defense contends that their client has been
         prejudiced by virtue - - now, I don’t want to paraphrase for the defendant
         what it is they’re trying to say, but that’s what I get from it.

        During argument by the State prosecutor (who was not one of the prosecutors pre-trial
or during the trial) the trial court stated, “I’ve found that Agent Tenry testified falsely . . . .
If [Agent Tenry] did request the [blood] draw and he did it and he got it without a warrant,
I should have suppressed it.” In his final argument to the trial court at the motion for new
trial, the prosecutor made an assertion, though couched in terms of sufficiency of the
evidence to support the conviction, which appears to argue that Defendant should not be
awarded a new trial because even if the trial court erred by denying the suppression motion,
no prejudice occurred because of the overwhelming evidence of guilt. The prosecutor never
objected to the trial court considering the precise issue of whether it erred by denying the
motion to suppress.

        In its ruling at the motion for new trial hearing the trial court acknowledged that,
based upon evidence which came to light concerning what the trial court found to be false
testimony by the TBI agent, it should have granted the motion to suppress evidence. The trial
court did not conclude that Agent Tenry’s false testimony was the legal basis for suppression
of the evidence. Rather, the trial court concluded that had Agent Tenry testified truthfully,
then the facts thus revealed would have been a legal basis to grant the motion to suppress.
In granting a new trial the trial court stated in part:

         But at the suppression hearing, and if you listen to the tapes, you’ll hear the
         questions I asked, not just of Agent Tenry, but, also of [Dr.] Averett, I
         mean, I asked probing questions because it made no sense to me why
         you’ve got a medical doctor saying that this blood is being drawn simply for
         the purpose of treatment and diagnosis when you’ve got a document coming
         straight out of the hospital saying it’s being sent to the toxicology lab per
         the request of the TBI. It just made no sense.

         But notwithstanding the fact that it made no sense, I had no countervailing
         evidence that I could rely on and overruled the motion to suppress. But
         when I did that, then I created a foundation for this trial to proceed on, and
         what we now know is, that foundation was on sand, it wasn’t on rock. So
         the entire predicate for this trial is based upon false testimony, an important

                                               -32-
         ruling in this case on whether to suppress or not suppress the evidence was
         based upon false testimony.

         And the concern I have now is, that for me to overrule this motion for a new
         trial, I have to engage in rank speculation. And the speculation is that, well,
         if I had done what I should have done, and that’s to suppress the evidence,
         and the defense then put on its testimony and the state came back with
         rebuttal and I gave an appropriate limiting instruction, would this jury have
         still found the way it did? There’s certainly evidence there that would have
         warranted them doing that, I don’t disagree with that.

         But I’ve just - - I’ve practiced law too long and I’ve worked in the legal
         system too long to believe that a court should countenance perjured
         testimony in an important issue on whether or not to admit or deny the
         admission of a toxicology report and to turn my back on that and say,
         “Yeah, well, I think the jury would have found what they did even if they’d
         of known the truth.” I can’t do that, just cannot do that. The court will
         grant the motion and award Mr. Vaughn a new trial.

       In a written order granting a new trial, the trial court substantially stated the same facts
and grounds for granting the new trial as it set forth from the bench in open court. Also
included in the order granting a new trial is the following:

         Had Agent Tenry admitted at the suppression hearing that he requested the
         blood draw, which he did as evidenced by the clear recollection of Ms.
         Harris set forth in her Affidavit in support of Mr. Vaughn’s Motion for New
         Trial and as evidenced by the records of the Perry County Community
         Hospital, the Court would have granted the Motion to Suppress. Mr.
         Vaughn would have been free to plan his defense accordingly. It may be,
         as the State contended at the hearing on the Motion for New Trial, that the
         State could have been able to present the suppressed evidence in rebuttal.
         Whether the State would have offered to do so and how the Court would
         have ruled upon objections by the defense is pure speculation. The fact is
         that the Motion to Suppress was overruled because of perjured testimony.
         Mr. Vaughn was convicted of 1 st Degree Murder and sentenced to life
         without the possibility of parole. A critical stage in the process was the
         hearing on Mr. Vaughn’s Motion to Suppress. For the Court to now
         disregard the perjured testimony and hold, as the State urges, that the
         “[f]acts stated by the defendant failed to prove perjury by any witness . . .
         [a]t most the defendant has shown conflicting recollections between three

                                               -33-
        witnesses of an incident that occurred over five year ago,” would be a gross
        abdication of the Court’s responsibility.

        The circumstantial evidence offered at the hearing on the Motion to
        Suppress indicated that the blood draw was requested by Agent Tenry.
        Such evidence includes the inconsistencies in the testimony of Dr. Andy
        Averett; the unexplained notation on the record of Perry County Community
        Hospital, “Tox Per T.B.I.;” Agent Tenry’s being unexpectedly handed a vial
        of Mr. Vaughn’s blood as he was leaving the hospital; and the failure to see
        to it that Mr. Vaughn’s blood was transported with Mr. Vaughn to
        Vanderbilt if the true reason of the draw was to establish the content of Mr.
        Vaughn’s blood at the Perry County Community Hospital for comparison
        with his blood content upon his arrival at Vanderbilt. However, in the face
        of the direct evidence offered by Dr. Andy Averett and Agent Jerry Tenry,
        the Court had no choice but to deny the Motion to Suppress. Now that the
        true facts and circumstances surrounding the blood draw have been brought
        to light through the Affidavit of Ms. Tara C. Harris Horan, it is clear that
        the inconsistencies at the hearing on the Motion to Suppress cannot be
        reconciled.

(emphasis added)

       Aggrieved by the trial court’s order granting a new trial, the State sought and was
granted an appeal pursuant to Tennessee Rule of Appellate Procedure 10. This court
reversed, holding that the trial court erred by granting the new trial based upon prosecutorial
misconduct. State v. Cornell Remont Vaughn, No. M2011-00067-CCA-R10-CD, 2012 WL
1484191 at *12 (Tenn. Crim. App. Apr. 26, 2012) perm. app. denied (Tenn. Aug. 16, 2012).

        In the present appeal the State asserts that Defendant has waived his right to have this
court review the trial court’s order denying Defendant’s motion to suppress because the issue
was not specifically presented in the motion for new trial. See Tenn. R. App. P. 3(e) (“no
issue presented for review shall be predicated upon error in the admission or exclusion of
evidence . . . , unless the same was specifically stated in a motion for new trial; otherwise
such issues will be treated as waived.”) For purposes of addressing this issue, we agree with
the State that the issue was not specifically stated in the motion for new trial. However, Rule
2 of the Tennessee Rules of Appellate Procedure permits the suspension of the requirements
of Rule 3(e) of the Tennessee Rules of Appellate Procedure in this case. At the hearing on
the motion for new trial, the trial court sua sponte addressed the issue of its denial of the
suppression motion. In fact, the trial court determined that it had committed error by denying
the suppression motion in light of evidence presented at the hearing on the motion for new

                                              -34-
trial. At that hearing, the State did not object to the trial court addressing the issue on the
basis that it was not specifically stated in the motion for new trial. After implicitly
consenting to the issue being addressed at the trial court level, the State can not now raise the
waiver issue on appeal. Furthermore, Tennessee Rules of Criminal Procedure 33, which
governs procedures for hearing motions for new trial provides in its first sentence that , “[o]n
its own initiative or on motion of a defendant, the court may grant a new trial as required
by law.” (emphasis added). Certainly, if the trial court is specifically authorized to grant a
new trial completely on its own initiative, it can address any issue on its own initiative even
if that issue is not included in a defendant’s motion for new trial.

       Apparently assuming that this court would agree that Defendant had waived the issue,
the State did not directly address the merits of the suppression issue but instead argued
extensively that Defendant was not entitled to relief under the “plain error” doctrine. See
State v. Lowe-Kelley, 380 S.W.3d 30, 33 (Tenn. 2012); Tenn. R. App. P. 36(b). Since we
conclude that the issue is not waived, we need not address the plain error analysis set forth
by the State. The trial court concluded that Defendant’s blood was drawn without a warrant,
implicitly finding that no exception to the warrant requirement existed. In fact, the State’s
only argument was that the blood draw was not a search since government action was not the
basis for withdrawal of the blood. In this court’s opinion in the Tennessee Rules of
Appellate Procedure 10 appeal, the issue addressed by this court was whether the trial court
erred by granting a new trial based upon prosecutorial misconduct. Any other issues
addressed are dicta.

        Nevertheless, even though the trial court clearly concluded at the motion for new trial
hearing that it had erred by denying Defendant’s suppression motion, the error was harmless
beyond a reasonable doubt. Even though the jury was made aware by direct and
circumstantial evidence that blood was drawn from Defendant and that the blood was given
to an agent of the TBI, and by inference had been, or could have been, sent with other
physical evidence to the TBI laboratory for forensic evaluation for the presence of drugs, the
actual blood toxicology test results showing no presence of PCP or other drugs was never
shown to the jury. Also, the result of that test was never mentioned by any witness during
the trial. Thus, there was only a minimal amount of evidence covered by the suppression
motion which was actually presented to the jury. Also, evidence of Defendant’s history of
PCP usage was presented to the jury as well as testimony that showed Defendant was under
the influence of or was intoxicated by a substance at the time of the offense.

      Finally, the position taken by Defendant at the conclusion of the trial, when the State’s
prosecutor stated on the record that Nurse Harris indicated that the blood was drawn at the
TBI agent’s request, also prevents this court from granting a new trial. We have extensively
quoted above from the trial transcript as to what occurred. Though obviously caught in the

                                              -35-
type of perfect storm which sometimes occurs in the midst of a hotly contested trial, and
without the benefit of Ms. Harris’ affidavit, which was later obtained, counsel for defense
had to make a strategic decision. Trial counsel had a little more than twelve hours notice of
the new development prior to court reconvening. Trial counsel clearly made a decision to
not request a mistrial and to not accept the trial court’s offer to suspend the trial until Ms.
Harris could be examined in court after sufficient preparation time for counsel over the
weekend. We are compelled to conclude that Defendant’s counsel made a well reasoned
choice between concluding the trial in the manner done, or reopening the suppression issue
with additional evidence during the trial. Accordingly, Defendant is not entitled to relief on
this issue.

       Double Jeopardy

       Defendant asserts that his constitutional right to be protected from double jeopardy
was violated when he was sentenced to serve life without possibility of parole after the first
jury which heard his case rejected that sentence and imposed one of just life imprisonment.
This issue, and Defendant’s “suggestion” that Tennessee Code Annotated section 39-13-
204(k) is unconstitutional, are moot in light of our conclusion that there was insufficient
evidence to prove beyond a reasonable doubt the sole statutory aggravating circumstance
found by the jury.

       After a thorough review, we affirm Defendant’s conviction of first degree murder.
We reverse the sentence of life without possibility of parole and remand this case to the trial
court for entry of a judgment of conviction of first degree murder with a sentence of life
imprisonment.

                                                    _________________________________
                                                    THOMAS T. WOODALL, JUDGE




                                             -36-
