         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                        April 11, 2001 Session
          STATE OF TENNESSEE v. DONAVAN EDWARD DANIEL
                  Direct Appeal from the Circuit Court for Weakley County
                         No. CR121-1999     William B. Acree, Judge
                                   ________________________

                  No. W2000-00981-CCA-R3-CD - Filed December 28, 2001
                                    _______________________

After a jury trial, the defendant, a juvenile at the time of the offenses, was convicted of six counts
arising out of the shooting deaths of two victims. The jury sentenced him to life in prison for Count
One, first degree premeditated murder of the first victim, and for Count Two, first degree felony
murder of the first victim based upon robbery of the first victim. The jury sentenced him to life in
prison without the possibility of parole for Count Three, first degree felony murder of the second
victim based upon premeditated murder of the first victim, and for Count Four, first degree felony
murder of the second victim based upon robbery of the first victim. The trial court merged the
conviction for Count Two into Count One, and the conviction for Count Four into Count Three. The
trial court sentenced the defendant to twenty (20) years for Count Five, especially aggravated
robbery, one (1) year for Count Six, possession of marijuana with intent to resell, and ordered the
sentences to be served concurrently. On appeal, the defendant challenges the trial court’s denial of
his motion to suppress and his request for a state-funded mitigation expert, as well as the sufficiency
of the evidence to support his convictions for first-degree murder. After careful review of the record,
we hold that the trial court did not err in failing to suppress the defendant’s statements. Further, we
hold that although the defendant’s status as a non-capital defendant did not preclude him from
receiving state-funded expert services, our de novo review of the record reveals that the defendant
failed to make the required showing of a particularized need for a mitigation expert. Therefore, the
trial court’s denial of the defendant’s request for such services was correct. Finally, we hold the
evidence is sufficient to sustain the defendant’s convictions for premeditated and felony murder in
the first degree. Accordingly, we affirm the judgments of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOE G. RILEY and ROBERT
W. WEDEMEYER , joined.
C. Michael Robbins (on appeal), Memphis, Tennessee; Joseph P. Atnip, District Public Defender;
and Colin Johnson, Assistant Public Defender (at trial and on appeal), for the appellant, Donavan
Edward Daniel.
Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant Attorney General;
Thomas A. Thomas, District Attorney General; James T. Cannon and Allen J. Strawbridge, Jr.,
Assistant District Attorneys General, for the appellee, State of Tennessee.
                                              OPINION

        The defendant, Donovan Daniel, a seventeen (17) year old, was transferred from juvenile
court to circuit court and indicted by a Weakley County Grand Jury on the following six counts:
Count One, first degree premeditated murder of Clarence Jones; Count Two, first degree felony
murder of Clarence Jones in perpetration of and while intending to commit robbery; Count Three,
first degree felony murder of Cassandra Tamakia Thomas in perpetration of and while intending to
commit first degree murder; Count Four, first degree felony murder of Cassandra Tamakia Thomas
in perpetration of and while intending to commit robbery; Count Five, especially aggravated robbery
of Clarence Jones; and Count Six, possession of a controlled substance with intent to sell or deliver.

         The defendant filed a pretrial motion to suppress his statements to police, which was denied
by the trial court. The state gave notice of its intent to seek a sentence of life without the possibility
of parole. The defendant filed an ex parte motion requesting the court to provide a mitigation expert
for the defense, which the trial court denied. The defendant was tried by a jury and found guilty of
all six counts.

        The jury sentenced the defendant to life in prison for Counts One and Two; and life in prison
without the possibility of parole for Counts Three and Four. The trial court merged the conviction
for Count Two, felony murder of Clarence Jones, into the conviction for Count One, premeditated
murder of Clarence Jones. The trial court also merged the conviction for Count Four, felony murder
of Tamakia Thomas based on the underlying felony of robbery, into the conviction for Count Three,
felony murder of Tamakia Thomas based on the underlying felony of premeditated murder. The trial
court sentenced the defendant to twenty (20) years for the especially aggravated robbery conviction,
Count Five, and to one (1) year for the possession of marijuana with intent to resell conviction,
Count Six. The trial court ordered the sentences to be served concurrently.

       The trial court denied the defendant’s timely filed motion for a new trial. A timely notice of
appeal was filed with this court. In this appeal, the defendant raises the following three issues: (1)
whether the trial court erred in denying the defendant’s motion to suppress three incriminating
statements made by the defendant; (2) whether the trial court erred in denying the defendant’s
request for a mitigation expert; and (3) whether the evidence is sufficient to sustain the convictions
for premeditated and felony murder in the first degree.

                                                FACTS

        The defendant gave several statements to the police, which established the following
sequence of events as told by the defendant. On the afternoon of June 2, 1999, the defendant and
two other young men visited the victim, Clarence Jones’ home in Martin, Tennessee. The defendant
and his friends smoked marijuana with Jones. After the defendant’s two friends left, Jones and the
defendant smoked more marijuana and the defendant drank a mixed drink. During this time, a man
came to the home and bought marijuana from Jones. After he left, the defendant drank another
mixed drink. Misty Schrems and a couple of her friends also came over to buy marijuana from
Jones. Ms. Schrems and the other guests remained at the victim’s home with the defendant and
Jones for a few hours. They all smoked more marijuana. Several more people came to the house
and bought marijuana from Jones. After everyone but the defendant and Jones had left, Shannon
Parham and Natasa James came to the house. By this time, the defendant was “starting to feel crazy”
and tried to “get with” one of the girls. The two girls left after twenty or thirty minutes.

        The defendant and Jones continued to smoke marijuana and drink alcoholic beverages until
Jones’ roommate, Tamakia Thomas, came home. Shortly after Thomas arrived home, Jones rolled

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another marijuana cigarette and went to his room to “play some music.” The defendant went to the
kitchen and picked up Jones’ rifle from the counter. The defendant walked into the hallway leading
to Jones’ bedroom. The defendant shot and killed Jones, who was standing in his bedroom. The
defendant did not think that Jones saw him with the gun prior to being shot. Neither the defendant
nor Jones said anything before the defendant shot Jones. The other victim, Tamakia Thomas, was
in the bathroom with the door shut when the defendant shot Jones. The defendant turned around after
shooting Jones and was startled to find that Thomas had opened the bathroom door and was standing
just inside the bathroom. The defendant shot and killed Thomas.

        After killing Jones and Thomas, the defendant walked around for a moment and tried to
gather his thoughts. He started looking for some money to “get out of town.” The defendant took
money from Jones’ pocket and Jones’ dresser. He also took a ring off of Jones’ finger and the watch
from his wrist. At this point, someone began knocking on the front door. The defendant put a sock
on his hand and tried to escape out of the window in Jones’ room. The knocking stopped before the
defendant was able to get out the window, so he went out the front door instead. Before leaving in
Jones’ car, the defendant grabbed the murder weapon and a large bag of marijuana. The defendant
drove to Union City, where he “stashed” the murder weapon in a dumpster. He also left Jones’ car
in the parking lot of the Wal-Mart in Union City. A friend of the defendant, Mitchell Avent, then
drove the defendant to a motel, also in Union City. Mr. Avent went inside and paid for the room
with money the defendant had taken from Jones. The defendant spent the night at the motel and
called Mr. Avent to pick him up around noon the next day. Mr. Avent drove the defendant to his
home in Martin, and the defendant “went on about [his] day like nothing had happened.”

         Mitchell Avent testified for the state at the defendant’s trial. Mr. Avent was charged as an
accessory to the murders. As part of a plea agreement, he pled guilty and received two years of
probation in exchange for his testimony. Mr. Avent testified that the defendant came to Mr. Avent’s
girlfriend’s house around eleven o’clock p.m. on the night of the murders. At that time, Mr. Avent
was living in his girlfriend’s house, which was located in Union City. The defendant told Mr. Avent
that he had killed Jones and Thomas and asked if Mr. Avent knew of anywhere that the defendant
could stay. Mr. Avent told the defendant that he could not stay there and that he did not know
anyone else that he could stay with. The defendant asked Mr. Avent to help him dispose of Jones’
car. Mr. Avent agreed to follow the defendant to a location where the defendant could leave the car.
They stopped at a dumpster on the way so that the defendant could throw away the murder weapon.
Mr. Avent testified that he told the defendant that he should get rid of the weapon. Mr. Avent said
that his girlfriend was afraid of the defendant and that he did this at her request. The defendant left
Jones’ car in the Wal-Mart parking lot in Union City.
        After leaving the Jones’ car at Wal-Mart, Mr. Avent took the defendant to a motel in Union
City. He got a room for the defendant with money that the defendant gave him. The next day, Mr.
Avent returned to the motel to pick up the defendant. At this time, the defendant gave Mr. Avent
a Rolex watch belonging to Jones, which Mr. Avent later gave to the police. Mr. Avent took the
defendant back to the defendant’s home in Martin. The defendant, however, returned to Mr. Avent’s
house later that evening and asked Mr. Avent to provide an alibi for him during the time that the
murders were committed. Mr. Avent refused and asked the defendant not to mention his name to
the police.

        From his conversations with the defendant, Mr. Avent got the impression that the defendant’s
motive for killing Jones and Thomas was Jones’ money. Mr. Avent clarified that the defendant
never specifically told Mr. Avent why he had murdered Jones and Thomas, but did tell Mr. Avent
that he knew that Jones had some money before he killed him. Mr. Avent also testified that the
defendant appeared to have been smoking marijuana on the night of the murders because his eyes
were red. Mr. Avent did not, however, indicate that the defendant was otherwise impaired. He

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stated that the defendant appeared to know what he was doing.
        Natasa James also testified for the State. Ms. James visited the home of Jones and Thomas
on the night of the murders to get money that Jones owed her for a washer and dryer that she had
recently sold to Jones. Her roommate, Shannon Parham, was with her, and they arrived at the home
between eight and eighty-thirty p.m. The defendant and Jones were alone in the home. When Ms.
James walked in the door, the defendant was standing and holding a rifle, which was pointed in her
direction. Jones told the defendant to put the gun down. The defendant lowered the gun but
continued to hold the gun while the two women were there. The group sat in the living room and
at some point the defendant asked Ms. James if he could touch her leg. Shortly thereafter, the two
women left.

        Ms. Parham also testified at the defendant’s trial. Ms. Parham corroborated that the
defendant had a rifle in his possession the entire time she and Ms. James were there. Ms. Parham
did not notice any unusual behavior by the defendant. Based on her observation, the defendant and
Jones were not in any type of disagreement.

        Misty Schrems testified that she also visited the victims’ home the night of the murders. Ms.
Schrems, along with two friends, arrived at about five or five-thirty p.m. and stayed until about eight
or eight-thirty p.m. The defendant and Jones were the only people there during that time. Ms.
Schrems said that everyone was drinking beer and smoking marijuana while she was there. Jones
had a large shopping bag in the kitchen, which was full of marijuana. She said that it was in plain
view for the defendant to see many times while she was there.
         Ms. Schrems returned to the victims’ home around eleven-thirty p.m. the same night. Jones’
car was not in the driveway, and no one answered the door. Ms. Schrems returned home but
continued to telephone the victims’ home throughout the next day. Unable to reach the victims by
telephone, Ms. Schrems returned to the victims’ home around six-thirty p.m. Finding the door
unlocked, she went inside to leave a note. The stereo was on and very loud. Ms. Schrems tried to
turn down the stereo in the living room but realized that it was not on. She went to the bedroom to
turn off the other stereo. That was when she saw that the room had been torn apart and found Jones’
body lying on the floor. Ms. Schrems became very upset and ran outside the home screaming that
Jones was dead. While inside the house, Ms. Schrems noticed that there was some marijuana on top
of the dryer. Afraid that Ms. Thomas would get in trouble if the police found it, she re-entered the
home and took the marijuana to the bathroom, intending to flush it down the toilet. When she walked
into the bathroom, however, she discovered Ms. Thomas’ body lying in the bathtub. Ms. Schrems
left the marijuana in the doorway of the bathroom and ran back out of the home screaming that both
Jones and Thomas were dead. She screamed for the neighbors to call the police but jumped in the
car and left before the police arrived. Ms. Schrems said that she panicked and drove to the home of
Thomas’ family to tell them that she was dead. Ms. Schrems then accompanied Thomas’ family
members back to the victims’ home and talked with the police.

         Chad Johnson, a forensic scientist for the Tennessee Bureau of Investigation, examined the
evidence at the scene of the murders and the evidence collected from the defendant’s residence. Mr.
Johnson testified that the body of Clarence Jones was found in the bedroom and that the body of
Tamakia Thomas was found in the bathtub. Photographs of the locations of the bodies were
introduced as evidence. Also introduced as evidence were Jones’ ring, a large bag of marijuana, and
a shirt with blood on it, all found in a dumpster near the defendant’s home. Mr. Johnson also
testified that he found money in the sole of one of the defendant’s tennis shoes.

      A forensic pathologist, Dr. Gunther, performed autopsy examinations of both victims. Dr.
Gunther testified that both victims died from a single gunshot wound to the head. Mr. Jones was

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shot in the back left side of his head above the ear. Ms. Thomas was shot in the forehead from an
estimated distance of anywhere between a half a foot and two feet. Dr. Gunther testified that the
gunshots to both victims likely caused immediate death.

        Law enforcement officers Rick Kelly, David Moore, and Joe Walker also testified about the
events that led to the defendant’s arrest. This testimony is addressed, infra, in our analysis of the
admissibility of the defendant’s confessions.

                                             ANALYSIS
        The defendant challenges (1) the admissibility of several statements made by the defendant
to police officers during custodial interrogations, (2) the trial court’s refusal to appoint a mitigation
expert for the defense, and (3) the sufficiency of the evidence to support his convictions for
premeditated and felony murder.

                                   I. Admissibility of Statements
        The defendant filed a pretrial motion to suppress his confessions to police on the grounds that
the statements were not voluntary. After an evidentiary hearing, the trial court found that the
defendant’s statements were voluntary and denied the defendant’s motion to suppress. The
defendant now challenges the trial court’s ruling and the admissibility of the statements. Precisely,
he argues (1) the initial detention of him by police officers was without probable cause and illegal,
and, therefore, all subsequent statements made by the defendant must be suppressed; (2) that the
statements were obtained without a knowing and voluntary Miranda waiver; and (3) the statements
were coerced through physical deprivation of sleep and food and illusory promises of leniency and,
therefore, were not voluntary. The illusory promises to which the defendant refers are alleged
statements by one of the investigating officers to the defendant urging him to cooperate with police
in order to avoid the death penalty. The defendant was seventeen (17) years old, a juvenile, at the
time the offenses were committed and thus, could not receive the death penalty for the crimes. Tenn.
Code Ann. § 37-1-134 (a)(1).

        We begin by addressing the state’s argument that the defendant waived the issues of whether
there was an inadequate Miranda waiver and an unlawful detention because he failed to allege either
of these grounds at the trial level. The defendant’s pretrial motion to suppress alleged that the
statements were not voluntary but did not raise the issue of whether the statements were inadmissible
as fruit of an unlawful detention. In this court, the defendant for the first time contends that his
detention was unlawful and that the statements made as a result of such unlawful detention should
have been excluded from evidence as fruit of the poisonous tree. The defendant does not address the
state’s assertion that he waived all arguments not raised at the trial level, nor does he give a reason
for his delay in raising the arguments.

         We agree that the issue of whether the defendant’s statements are inadmissible because he
was unlawfully detained was waived when he failed to raise that issue at the trial level. It has long
been established that an appellate court will not consider an issue raised for the first time in the
appellate court. Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn. 1983). Nor may a defendant
litigate an issue in the trial court on one ground, abandon the ground, and assert a new basis or
ground for his contention in this court. State v. Matthews, 805 S.W.2d 776, 781 (Tenn. Crim. App.
1990), perm. to appeal denied, (Tenn. 1990); State v. Aucoin, 756 S.W.2d 705, 715 (Tenn. Crim.
App. 1988); State v. Brock, 678 S.W.2d 486, 489-490 (Tenn. Crim. App. 1984). Although this
court may, in certain circumstances, address as plain error an issue that would otherwise be waived,
we conclude that the application of the plain error doctrine is not appropriate in the instant case.
Tenn. R. App. P. 13(b); State v. Adkisson, 899 S.W.2d 626, 638-39 (Tenn. Crim. App. 1994).

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Accordingly, we find the issue of whether the defendant’s statements should have been suppressed
because they were a product of the defendant’s unlawful detention by police officers to be
procedurally defaulted. However, the adequacy of the defendant’s Miranda waiver was addressed
at the pre-trial suppression hearing and, therefore, was not waived.
                        Evidence Presented at Pretrial Suppression Hearing

         In the present case, three police officers, the defendant, and the defendant’s mother testified
at the pre-trial suppression hearing. Based upon the testimony, the following facts were not disputed.
The defendant’s mother brought him to the police station for questioning between eight and ten
o’clock p.m. the day after the murders were committed. The defendant was not a suspect at this
time. However, the police had received information indicating that the defendant was the last person
to see the victims alive. The defendant did not make any incriminating statements during the first
interview with police and returned home with his mother. After verifying that the defendant had lied
about what time he arrived home the night of the murders, the police asked the defendant’s mother
to bring him back to the station. The defendant and his mother returned to the station. At around
midnight, the defendant gave another written statement, which was not incriminating. The
interviewing officer did not Mirandize the defendant prior to him making the statement. Around one
o’clock a.m., the defendant was Mirandized and questioned again by two other officers. This
questioning lasted until about two-thirty a.m., when the defendant’s mother asked if they could go
home and get some rest. The officers indicated that the defendant was free to go but requested that
they be allowed to search his residence. The defendant’s mother gave her permission for the search,
and the officers followed her and the defendant home.
        At the defendant’s residence, the officers did not permit the defendant to enter his home
because of the possibility that he might contaminate the scene. At least one officer remained outside
with the defendant at all times. He was not permitted to lie down in his mother’s car to rest because
the officers were afraid that he might try to leave. Therefore, the defendant alternately sat and laid
down on the sidewalk and the hood of his mother’s car. At some point before dawn, the officers
decided to call the crime scene van to conduct a more thorough search for evidence. While they
waited for the van to arrive, one of the officers searched a nearby dumpster and found a bag of
marijuana and some clothing inside. The officer immediately confronted the defendant with what
he had found. At first, the defendant denied any knowledge about the items that were found but
later admitted, after talking with his mother, that he had placed the marijuana in the dumpster. The
defendant said that the victim, Clarence Jones, had “fronted him” the marijuana but continued to
deny involvement in the murders.

        While they waited for the crime scene van to arrive, the defendant and an officer, Captain
Moore, discussed the seriousness of the crimes and the possible punishments. Captain Moore
advised the defendant that it would be in his best interest to cooperate with the investigating officers.
After the crime scene van arrived, the defendant’s arms were tested for gun residue and his shoes
were taken to test what appeared to be blood splatter on them. Once the officers were apprized of
the blood splatter evidence and identified a ring, found in the bag of marijuana, belonging to the
victim, the defendant was handcuffed and told that he was being placed under arrest for possession
of marijuana. At this point, the defendant confessed to the murders. The defendant’s mother was
notified that the defendant was being taken into custody, and a juvenile officer was called to the
scene. At around eight o’clock a.m., the defendant was transported to the police station. Once there,
the defendant was given Miranda warnings again and signed a written waiver before giving a written
confession.

       The defendant’s allegations concerning the promises of leniency were disputed at the
suppression hearing. Captain Moore was asked if he told the defendant that he would get the death

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penalty if he did not cooperate with police. Captain Moore responded that he did not recall ever
mentioning the death penalty to the defendant. He admitted, however, to advising the defendant that
“this was a crime that could land him in jail for a lot of years” and that it would be to his benefit to
cooperate with the police. Captain Moore further admitted that during the discussion with the
defendant concerning possible punishments, he was not aware that the death penalty was not
available as a punishment for juvenile defendants. Captain Moore said that the juvenile officer
advised him of such after his conversation with the defendant but continued to maintain that the
death penalty was never discussed with the defendant.

        The defendant and his mother both testified and related their version of how the events
transpired. The defendant said he had slept until noon the day he was questioned but alleged that
he was still very tired during the late-night/early-morning questioning. He also testified that Captain
Moore told him if he cooperated by confessing to the crimes, he might not get the death penalty. The
defendant said that this conversation occurred in his mother’s bedroom after Captain Moore
accompanied him to the bathroom, and that no one else was present at the time. The defendant
further alleged that after Captain Moore placed handcuffs on him and placed him in the back of a
police car, he told the defendant that it was his last chance to talk. He said that Captain Moore then
asked if he wanted to take “a little walk to talk.” The defendant testified that he believed the Captain
to be saying that it was his last chance to avoid the death penalty. The defendant claimed that he
confessed to the murders because of his physical exhaustion and fear of the death penalty.
        The defendant’s mother verified that the defendant was questioned off and on from sometime
around nine o’clock p.m. until the next morning when he was arrested and taken into police custody.
She testified that the defendant was very tired and that she requested several times that he be allowed
to sleep on the couch. She said that the officers would not let the defendant lie down in her car even
though she had the keys and there were two cars parked behind it. She did not hear Captain Moore
mention the death penalty.

                                 Analysis of Suppression Evidence

        When addressing the defendant’s arguments regarding the admissibility of his statements,
this court looks to the facts adduced at the suppression hearing, which are most favorable to the State
as the prevailing party. State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000) (quoting State v. Odom,
928 S.W.2d 18, 23 (Tenn. 1996)). In considering the evidence presented at the hearing, this court
extends great deference to the fact-finding of the suppression hearing judge with respect to weighing
credibility, determining facts, and resolving conflicts in the evidence. Daniel, 12 S.W.3d at 423.
Indeed, these findings will be upheld unless the evidence preponderates otherwise. Id. Furthermore,
this court may consider the entire record, including the evidence submitted both at the suppression
hearing and at trial, in evaluating the correctness of the trial court's ruling. State v. Henning, 975
S.W.2d 290, 297 (Tenn.1998).

       After hearing all of the evidence, the trial court in the instant case made the following
findings:
              There is no Miranda issue involved in this case.

               ....

                . . . [T]he defendant, although a high school dropout, is alert and
               intelligent. He has a high IQ of 133, and he is also street smart.
               There is nothing in the record to suggest that he was too immature to
               understand the statements he was making and the consequences of
               those statements.

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               . . . [T]here is nothing in the record to suggest that the late hour of the
               statements or the fact that he had not eaten for some period of time
               was of any consequence.
               Likewise, the fact that he was under interrogation for a considerable
               period of time is inconsequential. The statements were not
               continuous, but a series of conversations with lengthy breaks in
               between and the defendant’s mother was with him.

               The claims of a promise of leniency is factually disputed. The court
               accepts the testimony of Captain Moore, that he did not tell the
               defendant he could avoid the electric chair by cooperating with the
               police. . . .

               . . . It was only when evidence began to mount against the defendant
               that he confessed to these crimes. The motion is overruled.

        Based upon our review of the record, we conclude that the evidence does not preponderate
against the trial court’s finding that “there is no Miranda issue in this case.” There was sufficient
evidence to establish that the officers complied with the Miranda requirements and that the defendant
knowingly waived his Miranda rights. According to Captain Moore, the defendant was read his
rights before Captain Moore questioned him at the police station. The defendant confessed a few
hours later, after he was placed under arrest for possession of marijuana. The defendant was read
his rights again and signed a written waiver of his Miranda rights before giving a written confession
at the police station. The trial judge examined the written Miranda waiver and questioned Captain
Moore about it when it was introduced as an exhibit at the suppression hearing.

         The evidence was also sufficient to support the trial court’s determination that the
confessions were voluntary. It was undisputed that the defendant was tired and had been up all night
when he gave the incriminating statements. However, the trial court found that the presence of the
defendant’s mother, the lengthy breaks between questioning, the defendant’s high IQ, and the fact
that the defendant had slept until noon the day he was questioned were sufficient to establish that the
statements were voluntary. Additionally, the trial court specifically accredited the testimony of
Captain Moore regarding the alleged promises of leniency involving the death penalty and found that
no such comment was made.

        We conclude that the evidence in the record does not preponderate against the findings of the
trial court. We also note that a reading of the trial record reveals that it was the defendant who
introduced into evidence the two written confessions during the cross examination of Detective
Walker, despite his strenuous arguments against their admission at the pretrial suppression hearing.
We conclude that the trial court did not err in denying the defendant's motion to suppress his
statements to police. This issue is without merit.

                                     II. Denial of Mitigation Services
        The defendant filed an ex parte motion requesting the appointment, at state expense, of a
mitigation expert. At the ex parte hearing on the defendant’s motion, defense counsel stated that
because the state was seeking life without parole, the jury would impose the sentence and that the
jury would consider aggravating and mitigating factors. He then requested that the court grant the
funds for a mitigation specialist in this non-capital case. The only authority upon which the
defendant based his request was the general proposition that state funds are available in non-capital

                                                   -8-
cases “for such things as psychiatric evaluations.” Both in his motion to the trial court and at the ex
parte hearing, the defendant requested the state funds “in order to fully investigate and document and
present” the mitigation evidence. At the time of the ex parte hearing, defense counsel had not
received the affidavit from the mitigation expert, Dr. Frank Einstein. The trial court found that there
was no authority to grant the motion in a non-capital case and denied the defendant’s motion. An
order denying defendant’s request was entered on January 13, 2000.
        We conclude that the trial court’s finding that there was no authority to grant the defendant’s
motion for expert services in a non-capital case was incorrect. Based upon our review of the record,
however, we conclude that the trial court did not err in denying the defendant’s request for a state-
funded mitigation expert because the defendant did not demonstrate a particularized need for the
expert services.

        In Ake v. Oklahoma, the United States Supreme Court established an indigent defendant’s
right to certain expert services when it held that the denial of a state-funded psychiatrist to an
indigent defendant violates due process “when [a defendant’s] sanity at the time of the offense is
seriously in question.” 470 U.S. 68, 70 (1985). The Court reasoned that fundamental fairness would
not be met if “as a result of his poverty, a defendant is denied the opportunity to participate
meaningfully” in his trial. Ake, 470 U.S. at 76. Because Ake was a capital case, the question
remained whether due process would require the appointment of an expert in a non-capital case. The
Tennessee Supreme Court answered this question in the affirmative.

          In Tennessee, expert services are available to indigent defendants in both capital and non-
capital cases. Tenn. Sup. Ct. R. 13 §5 (a); State v. Barnett, 909 S.W.2d 423 (Tenn. 1995). In 1995,
the Tennessee Supreme Court held that the “due process principle of fundamental fairness applies
to all criminal prosecutions, and does not rest upon the severity of the sanction sought or imposed.”
Barnett, 909 S.W.2d at 428. The court concluded that the principles of Ake, at least with respect to
the assistance of psychiatric experts, are not limited to capital cases. Id. at 431. Additionally,
Tennessee Supreme Court Rule 13 provides that state-funded expert assistance is available “in the
trial and direct appeals of all criminal cases in which the defendant is entitled to appointed counsel
. . . , [when such services] are necessary to ensure that the constitutional rights of the defendant are
properly protected.” (emphasis added). The purpose of the rule is to ensure that no defendant is
denied the protection of his or her constitutional rights solely because of indigency. State v. Scott,
33 S.W.3d 746, 752 (Tenn. 2000). “As such, the language of Rule 13 serves to emphasize that the
need for expert assistance is not limited to capital cases and that the expert assistance sought by a
defendant need not be limited to a particular field of expertise, so long as the assistance is necessary
to protect the defendant's constitutional rights.” Id.

        Having concluded that expert services are available to indigent defendants in non-capital
cases, we must now determine whether the instant defendant was entitled to a state-funded mitigation
expert. The decision of whether to authorize expert services lies within the discretion of the trial
court and will not be reversed on appeal absent a showing of an abuse of discretion. Barnett, 909
S.W.2d at 431. The trial court in the instant case, however, applied the wrong legal standard for
evaluating such requests. Therefore, this court must review the record, applying the proper legal
standard, to determine whether the defendant’s motion was properly denied.

        The court in Barnett held that “the defendant must show that a substantial need exists
requiring the assistance of state paid supporting services and that his defense cannot be fully
developed without such professional assistance” before a trial court is required grant a defendant’s
request for expert services. Barnett, 909 S.W.2d at 430. A two prong test was created to determine
whether a defendant has made the required threshold showing of “particularized need.” Id. The
defendant must first show that he or she “will be deprived of a fair trial without the expert

                                                  -9-
assistance.” Id. Second, the defendant must show that “there is a reasonable likelihood that [the
assistance] will materially assist [him or her] in the preparation of [the] case.” Id. A trial court may
properly deny a motion requesting expert services, however, if the defendant merely offers
unsupported assertions that the services are needed to counter the State’s proof. Id.; State v. Cazes,
875 S.W.2d 253, 261 (Tenn. 1994). Furthermore, “whether or not a defendant has made the
threshold showing is to be determined on a case-by-case basis, and in determining whether a
particularized need has been established, a trial court should consider all facts and circumstances
known to it at the time the motion for expert assistance is made.” Barnett, 909 S.W.2d at 431.

         Applying the guidance from above to the facts of the instant case, we conclude that the
defendant failed to satisfy the “particularized need requirement.” In a recent Tennessee Supreme
Court decision, the court concluded that the defendant was improperly denied a DNA expert at the
trial level. Scott, 33 S.W.3d at 753. In Scott, the court held that the defendant was entitled to the
expert services because the defendant’s counsel “listed in meticulous detail the reasons needed for
the expert assistance;” such as, “to establish familiarity with proper DNA protocols and to point to
relevant issues and lines of cross-examination.” Id. Indeed, defendant’s counsel offered testimony
of other witnesses who stated that expert assistance was “crucial” to competent representation and
that the subject matter was “inordinately complex and beyond the common understanding of most
attorneys.” Further, another expert witness stated that it was doubtful that the defendant’s attorney
would even know the relevant issues involved with DNA evidence without some sort of expert
assistance. Id. at 754. Defendant also established that the DNA evidence was inconsistent and that
expert assistance was necessary to determine whether the samples were contaminated and why the
defendant was excluded as a donor in one of the tests. Id. We conclude there is no such factual
detail in the record before us.

        Based upon our review of the defendant’s motion and the ex parte hearing transcript, we
conclude that the defendant failed to specify by factual proof that the services of a mitigation expert
were necessary. The defendant only asserted that the state funds were needed “in order to fully
investigate and document and present” the mitigation evidence. Though the affidavit of Dr. Einstein,
filed September 6, 2000, listed in small detail some factors concerning defendant’s childhood, there
was no clear assertion made in the motion or at the hearing concerning how such information would
be used. Unlike Scott, there is little indication as to what an examination by a mitigation expert
might reveal. There is little indication as to how the sought after testimony would differ from other
testimony already provided at trial. The defendant did not demonstrate how the expert might
establish familiarity with proper psychiatric, psychological, or other mitigation protocols, nor did he
demonstrate how the expert might point to relevant issues and lines of cross-examination. Lastly,
we note that the defendant did not show how the subject matter was so “inordinately complex and
beyond the common understanding of most attorneys” as to warrant the need for expert assistance.

        While it may not be necessary to exhibit a need based on all of the aforementioned criteria,
a defendant must provide the court with more than a rough framework as to how the services would
be useful. Indeed, most experts would be helpful in investigating, documenting, and presenting
evidence. However, the standard by which we measure a defendant’s request is based on his or her
particularized need. In the instant case, defendant has failed to demonstrate such need. Accordingly,
we affirm the judgment of the lower court denying the defendant’s request for a state-funded
mitigation expert.


                                        III. Sufficiency of Evidence
       Before undertaking our review, we note that the jury found the defendant guilty of four
counts of first-degree murder, two of which were for the murder of Clarence Jones, and two were

                                                  -10-
for the murder of Tamakia Thomas. The defendant was found guilty of both premeditated murder
and felony murder of Clarence Jones. Additionally, the defendant was found guilty of two alternate
counts of felony murder of Tamakia Thomas. The trial court merged the conviction for Count Two,
felony murder of Clarence Jones, into the conviction for Count One, premeditated murder of
Clarence Jones. The trial court also merged the conviction for Count Four, felony murder of
Tamakia Thomas based on the underlying felony of robbery, into the conviction for Count Three,
felony murder of Tamakia Thomas based on the underlying felony of premeditated murder.
Accordingly, proof of either felony murder or premeditated murder is sufficient to sustain the
conviction for the murder of Clarence Jones, and proof of either theory of felony murder is sufficient
to sustain the conviction for the murder of Tamakia Thomas.
                                  Sufficiency of Evidence of Premeditation

         The defendant’s convictions for Count One, premeditated murder of Clarence Jones, and
Count Three, felony murder of Tamakia Thomas based on the underlying felony of premeditated
murder, both depend upon a finding of premeditation. Once a homicide is established, it is
presumed to be second-degree murder. State v. Brown, 836 S.W.2d 530, 543 (Tenn. 1992). The state
then has the burden of proving that the homicide was premeditated and intentional to elevate the
offense to first-degree murder. Id. “Premeditation” is described as “an act done after the exercise
of reflection and judgment.” Tenn. Code Ann. § 39-13-202(d). To find a defendant guilty of
premeditated murder, the jury must determine that “the intent to kill was formed prior to the act
itself” and that “the accused was sufficiently free from excitement and passion as to be capable of
premeditation.” Id. “‘Intentional’ refers to a person who acts intentionally with respect to the nature
of the conduct or to a result of the conduct when it is the person’s conscious objective or desire to
engage in the conduct or cause the result.” Id. § 39-11-302(a).

        The defendant alleges that the evidence is insufficient to support a finding of premeditation
in the murder of Clarence Jones. Particularly, he asserts that the state’s evidence “is entirely to the
effect” that the defendant “lost it” when he shot the victims. He further asserts that the defendant
was at all relevant times “quite seriously intoxicated.” Therefore, he concludes that the evidence
was sufficient only to sustain a conviction of second-degree murder. We disagree.

        When an accused challenges the sufficiency of the convicting evidence, the standard of
review by an appellate court is “whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560,
573 (1979);Tenn. R. App. P. 13(e); State v. Burns, 979 S.W.2d 276, 286-87 (Tenn. 1998). “A guilty
verdict by the jury, approved by the trial court, accredits the testimony of the witnesses for the State
and resolves all conflicts in favor of the prosecution's theory.” State v. Bland, 958 S.W.2d 651, 659
(Tenn. 1997). Questions about the credibility of witnesses, the weight and value to be given the
evidence, as well as all factual issues raised by the evidence are resolved by the trier of fact, and this
court does not reweigh or reevaluate the evidence. Id. A verdict of guilt removes the presumption
of innocence and replaces it with a presumption of guilt. Therefore, on appeal, the State is entitled
to the strongest legitimate view of the evidence and all reasonable and legitimate inferences
therefrom, and the defendant has the burden of illustrating why the evidence is insufficient to support
the verdict rendered by the jury. Id.; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

       Because premeditation entails proof of a state of mind about which there may be no direct
evidence, “cases have long recognized that the necessary elements of first-degree murder may be
shown by circumstantial evidence.” State v. Brown, 836 S.W.2d 530, 541 (Tenn. 1992).
Premeditation is a question of fact to be determined by the jury. State v. Suttles, 30 S.W.3d 252, 261
(Tenn. 2000). The jury may infer premeditation from the manner and circumstances of the killing.

                                                   -11-
State v. Pike, 978 S.W.2d 904, 914 (Tenn. 1998); Bland, 958 S.W.2d at 660; State v. Bordis, 905
S.W.2d 214, 222 (Tenn. Crim. App. 1995). Tennessee courts have delineated several circumstances
that may be indicative of premeditation, including the use of a deadly weapon upon an unarmed
victim, Bland, 958 S.W.2d at 660, destruction or secretion of evidence of the murder, State v.
Nichols, 24 S.W.3d 297, 302 (Tenn. 2000), calmness immediately after the killing, Bland, 958
S.W.2d at 660, and the lack of provocation on the part of the victim, State v. Lewis, 36 S.W.3d 88,
96 (Tenn. Crim. App. 2000).
        Considering the proof in this record in the light most favorable to the state, as we are required
to do, we conclude that the evidence is legally sufficient to support the jury’s finding of
premeditation in the murder of Clarence Jones. The record reflects that the defendant was at the
home shared by Clarence Jones and Tamakia Thomas, the victims, for several hours before the
murders were committed. Several people were in and out of the victims’ apartment during the time
that the defendant was there. Some of the visitors smoked marijuana with Jones and the defendant
during which time the defendant had many opportunities to observe Jones’ large shopping bag full
of marijuana. Two of the visitors also observed the defendant playing with and holding Clarence
Jones’ rifle a few hours before the murders.

        By the defendant’s own account, the murders were committed without provocation against
two unarmed victims. After all of the other guests left the apartment, Tamakia Thomas returned
home from work. She was in the bathroom, and Clarence Jones was standing unarmed in his
bedroom with his back to the defendant when the defendant walked to the kitchen, picked up the
rifle, walked to Clarence Jones’ bedroom, and shot him in the head. After shooting and killing
Clarence Jones, the defendant also shot Tamakia Thomas in the head as soon as she opened the
bathroom door.

         The defendant displayed calmness after the murders and disposed of the evidence connecting
him to the murders. Immediately after the murders, the defendant took the ring from Clarence Jones’
finger, the money from his pocket, and the bag of marijuana in the kitchen. He fled in the victim’s
car taking the murder weapon with him. He drove to a friend’s house and asked the friend to help
him get rid of the victim’s car. The friend complied and followed the defendant to a shopping center
parking lot where the defendant left the victim’s car. On the way to dump the car, the defendant
stopped and disposed of the murder weapon. The defendant’s friend took him to a motel where he
paid for a room with the money from Clarence Jones’ pocket and spent the night. The defendant
slept until noon the next day and then returned home where he “went on about [his] day like nothing
had happened.” He asked Mitchell Avent to provide an alibi for him to police. Sometime before
the police searched the defendant’s home, he also disposed of his bloody clothes, the bag of
marijuana, and Clarence Jones’ ring by throwing them in a dumpster near his home. He kept the
money that he stole from Clarence Jones but hid it in the sole of his shoe.

         Turning to the defendant’s argument that the defendant’s intoxication at the time of the
murders “strongly militates” against a finding of premeditation, we note that the defendant has failed
to cite any authority in support of his position. He failed to produce any evidence at trial to establish
that his intoxication affected his ability to form premeditation. “Whether a defendant is too far
intoxicated to premeditate . . . prior to a killing is a question for the jury to determine.” State v.
Durham, No. 03C01-9802-CR-000631999, 1999 Tenn. Crim. App. LEXIS 750, at *11 (Tenn. Crim.
App. at Knoxville, July 26, 1999) (quoting State v. Arnold, No. 81, 1988 Tenn. Crim. App. LEXIS
557, at *3 (Tenn. Crim. App. at Knoxville, August 25, 1988)), perm. to appeal denied, (Tenn. 2000).

        The jury could have reasonably found that the defendant was able to form premeditation
despite his use of drugs and alcohol prior to committing the murders. The evidence adduced at trial
concerning the defendant’s intoxication revealed that he was coherent enough to drive the victim’s

                                                  -12-
car to Mitchell Avent’s house immediately after the murders. Mr. Avent also testified that the
defendant appeared to know what he was doing. Finally, testimony by other guests at the victims’
home on the night of the murders indicated that the defendant appeared coherent prior to the
murders.
        As previously explained, whether a killing is premeditated is a question of fact for the jury
to decide. The jury was in a position to evaluate the testimony of the state’s witnesses and the
statements made by the defendant to police. The jury could infer from the circumstances of the
murder of Clarence Jones that it was premeditated. Accordingly, there is sufficient evidence to
support the felony murder conviction for the murder of Tamakia Thomas based on the underlying
felony of premeditated murder of Clarence Jones.

                              Felony Murder Based on Underlying Robbery

       Having found that sufficient evidence exists to support the defendant’s conviction for first
degree premeditated murder, we need not address whether there is sufficient evidence to support the
defendant’s convictions for first degree felony murder based on the underlying felony of robbery of
Clarence Jones. In a case involving a killing where the jury has found the defendant guilty under
both theories of first-degree premeditated murder and felony murder, the trial court should accept
both verdicts but enter only one judgment of conviction, thereby merging the two verdicts. See
Carter v. State, 958 S.W.2d 620, 624-25 (Tenn. 1997); State v. Addison, 973 S.W.2d 260, 267
(Tenn. Crim. App. 1997). In the present case, the trial court entered one judgment of conviction as
to each victim. The conviction for felony murder committed during the perpetration of a robbery
was merged into the conviction for premeditated murder as to victim Jones. The conviction for
felony murder committed during the perpetration of a robbery was merged into the conviction for
felony murder committed during the perpetration of premeditated murder as to victim Thomas.
Additionally, we acknowledge that a general verdict of guilty is sustainable if any one count in the
indictment is sustained by the proof. Tenn. Code Ann. § 40-18-111. Accordingly, proof of
premeditated murder of Clarence Jones is sufficient to sustain the convictions.

                                            Conclusion

        We hold that the trial court’s findings concerning the voluntariness of the defendant’s
statements to police were supported by the record and, therefore, those statements were correctly
admitted into evidence. Although we hold that non-capital defendants are not precluded from
receiving state-funded expert assistance at trial, our de novo review of the record reveals that this
defendant failed to show a particularized need for a mitigation expert. Accordingly, the defendant’s
motion was properly denied. Finally, we hold that there was sufficient evidence to support the jury’s
finding of premeditation in the murder of Clarence Jones. The convictions for premeditated first-
degree murder of Clarence Jones and first-degree felony murder of Tamakia Thomas based upon the
premeditated murder of Clarence Jones are affirmed.




                                                       ___________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE




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