                                          Appendix


         (Excerpts from the Decision of the Court of Criminal Appeals)


        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                   April 9, 2013 Session

                  STATE OF TENNESSEE v. JESSIE DOTSON

                   Appeal from the Criminal Court for Shelby County
                     No. 0807688     James C. Beasley, Jr., Judge


                              No. W2011-00815-CCA-R3-DD




A LAN E. G LENN, J., delivered the opinion of the Court, in which J OHN E VERETT W ILLIAMS
and J EFFREY S. B IVINS, JJ., joined.

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

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

                                          OPINION

[Analysis]

                               I. Sufficiency of the Evidence

        The defendant contends that the evidence is insufficient to support his convictions,
saying that it is insufficient to establish premeditation and his identity as the perpetrator and
that the physical facts rule requires the reversal of his convictions.
       Once a jury finds a defendant guilty, his presumption of innocence is removed and
replaced with a presumption of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992).
On appeal, the convicted defendant has the burden of demonstrating to this court why the
evidence does not support the jury’s verdict. State v. Carruthers, 35 S.W.3d 516, 557-58
(Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). To meet this burden, the
defendant must establish that no “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
(1979); State v. Evans, 108 S.W.3d 231, 236 (Tenn. 2003); Tenn. R. App. P. 13(e). In
contrast, the jury’s verdict approved by the trial judge accredits the State’s witnesses and
resolves all conflicts in favor of the State. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992).
The State is entitled to the strongest legitimate view of the evidence and all reasonable
inferences which may be drawn from that evidence. Carruthers, 35 S.W.3d at 558; Tuggle,
639 S.W.2d at 914. Questions concerning the credibility of the witnesses, conflicts in trial
testimony, the weight and value to be given the evidence, and all factual issues raised by the
evidence are resolved by the trier of fact and not this court. State v. Bland, 958 S.W.2d 651,
659 (Tenn. 1997). We do not attempt to reweigh or reevaluate the evidence. State v. Reid,
91 S.W.3d 247, 277 (Tenn. 2002); Bland, 958 S.W.2d at 659. Likewise, we do not replace
the jury inferences drawn from the circumstantial evidence with our own inferences. See
State v. Elkins, 102 S.w.3d 578, 582 (Tenn. 2003); Reid, 91 S.W.3d at 277.

        First degree murder is defined as the “premeditated and intentional killing of another.”
Tenn. Code Ann. § 39-13-202(a)(1). An intentional act requires that the person have the
desire to engage in conduct or cause the result. Id. § 39-11-106(a)(18). A premeditated
killing is one “done after the exercise of reflection and judgment.” Id. § 39-13-202(d).
Premeditation means that

       the intent to kill must have been formed prior to the act itself. It is not
       necessary that the purpose to kill pre-exist in the mind of the accused for any
       definite period of time. The mental state of the accused at the time the accused
       allegedly decided to kill must be carefully considered in order to determine
       whether the accused was sufficiently free from excitement and passion as to
       be capable of premeditation.

Id.

       Whether premeditation is present is a question of fact for the jury, and it may be
determined from the circumstances surrounding the killing. Bland, 958 S.W.2d at 660; State
v. Anderson, 835 S.W.2d 600, 605 (Tenn. Crim. App. 1992). Circumstances that may be
indicative of premeditation include declarations of the intent to kill, procurement of a
weapon, the use of a deadly weapon upon an unarmed victim, the fact that the killing was

                                              -2-
particularly cruel, infliction of multiple wounds, the making of preparations before the killing
for the purpose of concealing the crime, destruction or secretion of evidence, and calmness
immediately after the killing. State v. Jackson, 173 S.W.3d 401, 409 (Tenn. 2005); State v.
Nichols, 24 S.W.3d 297, 302 (Tenn. 2000). A defendant’s failure to render aid to a victim
can also indicate the existence of premeditation. State v. Lewis, 36 s.W.3d 88, 96 (Tenn.
Crim. App. 2000).

       In cases where a defendant has been charged with the attempted commission of a
crime, there must be evidence that the defendant acted “with the kind of culpability otherwise
required for the offense” and acted “with intent to cause a result that is an element of the
offense, and believes the conduct will cause the result without further conduct on the
person’s part.” Tenn. Code Ann. § 39-12-101(a)(2). Criminal attempt also occurs when the
defendant “[a]cts with intent to complete a course of action or cause a result that would
constitute the offense, under the circumstances surrounding the conduct as the person
believes them to be, and the conduct constitutes a substantial step toward the commission of
the offense.” Id. § 39-12-101(a)(3).

                                      A. Premeditation

        The defendant argues that the evidence at trial established that he committed the
crimes while in a state of excitement and passion. In support, he points to his statement to
police in which he related how he and Cecil were arguing and that Cecil was waving a gun
around when the defendant grabbed his own gun and started shooting. The defendant argues
that there is no evidence that he was “sufficiently free of that ‘excitement and passion’ before
the children were assaulted, some of them fatally.” We respectfully disagree.

        Viewed in the light most favorable to the State, the evidence established that the
defendant shot the adult victims multiple times and then repeatedly stabbed and beat the
young children, moving from room to room to do so. Although the defendant told police that
he first began shooting after Cecil reached for a shotgun, he told his mother that he began
shooting after Cecil laid down his gun and that he attacked the children because they had
seen him. We note that Sergeant Mullins testified that the shotgun appeared to have been
placed in the corner near Cecil, the position in which police discovered it, as part of the
staging of the scene.

        Moreover, the killings and attempted killings were particularly cruel. Seals was shot
in the face and chest, and the gun was close enough to Seals’s face that it left stippling on his
face when fired. Williams was shot in the head, chest, leg, thigh, and abdomen. Roberson
was shot in both thighs and the left knee twice. Cecil had eight gunshot wounds, including
to the head, neck, chest, thigh, and foot, and there was material on his face consistent with

                                               -3-
a pillow having been placed over his face and a gun fired through the pillow. The children
were repeatedly and violently stabbed with knives and beaten with wooden boards, and
C.D.1. was left in the bathtub with a knife sticking out of his head. In addition, the defendant
talked to some of the victims, rejecting their claims that they loved him and continuing with
his violent attacks.

        The defendant altered the scene to make it appear as if the murders were drug or gang-
related, moved bodies, disposed of or hid kitchen knives and handles, and collected the
cartridge casings. He escaped on a bicycle and hid it in his girlfriend’s shed. Instead of
attempting to render aid or summon help, he went to a restaurant for dinner the next night
and reported to work on the Monday following the attacks, without telling anyone about the
crimes. He also lied to his family about the last time he had seen Cecil. This evidence was
more than sufficient to establish the element of premeditation in the defendant’s convictions
for first degree murder and attempted first degree murder.

                                   B. Physical Facts Rule

       The defendant also contends that the evidence against him was largely based on the
testimony of C.D.1, portions of which were negated by the “physical facts rule,” requiring
reversal of his convictions. We, again, respectfully disagree.

        The physical facts rule is “‘the accepted proposition that in cases where the testimony
of a witness is entirely irreconcilable with the physical evidence, the testimony can be
disregarded.’” State v. Allen, 259 S.W.3d 671, 679 (Tenn. 2008) (quoting State v. Hornsby,
858 S.W.2d 892, 894 (Tenn. 1993)). When a witness’s testimony “cannot possibly be true,
is inherently unbelievable, or is opposed to natural laws, courts can declare the testimony
incredible as a matter of law and decline to consider it.” Id. (quotation omitted). For the
physical facts rule to apply, the testimony “must be unbelievable on its face, i.e., testimony
as to facts or events that the witness physically could not have possibly observed or events
that could not have occurred under the laws of nature.” Id. at 680. For example, testimony
that a witness “saw the sun set in the east” could be disregarded. Id.

       The physical facts rule, however, is a power “that should be used sparingly.”
Hornsby, 858 S.W.2d at 895. When the testimony “is capable of different interpretations,
the matter should be left for the jury to decide as the sole arbiter of credibility.” Id. The
determination of whether there are inconsistencies in testimony, the reconciliation of
conflicts in testimony, and the determination of how this might affect a witness’s credibility,
are within the province of the jury. Id. “[T]he improbability of the truth of the testimony,
which justifies rejection under the physical facts rule, cannot rest upon any theory involving
the consideration of the comparative credibility of the witnesses.” Id. at 896 (quotations

                                              -4-
omitted). The physical facts rule may not be invoked “where its application depends upon
assumptions or calculations based upon estimates as to speed, distance, time, and other such
uncertain matters in the movement of objects.” Allen, 259 S.W.3d at 680 (quotations
omitted).

        The defendant asserts that although C.D.1 testified that he saw the defendant attacking
his siblings and speaking to Williams while C.D.1 was in the bathtub, “it would have been
impossible to see inside the bedroom from his vantage point in the tub.” The defendant also
asserts that C.D.1’s testimony that he was stabbed in the neck while lying on the bed in his
sister’s room was contradicted by the lack of his blood on that bed.

        C.D.1 did not, however, testify that the defendant “stabbed” him in the neck, but
instead that the defendant “cut” his neck. We note that Dr. Muhlbauer confirmed that C.D.1
had a superficial laceration across his neck and that no evidence was presented regarding
what amount of blood, if any, such a superficial laceration would have produced.
Regardless, we cannot conclude that C.D.1’s testimony regarding the attack violated the
physical facts rule. As this court has previously noted, “the fact that a witness testifies and
that testimony ends up being inconsistent with other testimony raised at trial, . . . even if [it
is] scientific testimony, does not make it inadmissible testimony.” Lemar Brooks v. State,
No. M2010-02451-CCA-R3-PC, 2012 WL 112554, at *16 (Tenn. Crim. App. Jan. 11, 2012),
perm. app. denied (Tenn. May 16, 2012) (quotations omitted). Throughout his testimony,
C.D.1 identified the defendant as the perpetrator. The jury could have resolved any conflicts
and discrepancies in his testimony by attributing them to his youth, his head injury, or the
extreme trauma he must have experienced by witnessing and experiencing the horrific attacks
against him and his family members. We conclude, therefore, that this issue is without merit.

                                          C. Identity

       Lastly, the defendant contends that the evidence is insufficient to establish his identity
as the perpetrator. Specifically, he argues that his statement was inconsistent with the
physical evidence and that the forensic evidence excluded him as the perpetrator. However,
he confessed that he was the perpetrator, both in a statement to police and during his
conversation with his mother. In addition, two of the child victims identified him as their
attacker. By convicting the defendant of the indicted crimes, the jury obviously rejected the
defendant’s trial testimony in which he claimed to have been hiding under the bed while the
murders and attempted murders were perpetrated by others. We conclude, therefore, that the
evidence is more than sufficient to sustain the defendant’s convictions.

                                             ***



                                               -5-
                    VI. Trial Court’s Treatment of Defense Counsel

       The defendant next contends that the trial court’s reprimand of defense counsel in
open court prejudiced his right to a fair trial. The exchange about which the defendant
complains occurred after defense counsel first questioned Sergeant Mullins about the
presence at the crime scene and during the defendant’s police interview of a camera crew
from the television show, The First 48, and then asked Sergeant Mullins the following
question about a cameraman who was recording the trial:

       Q.     . . . That guy is from A and E, isn’t he, The First 48? We’re still
              continuing the story, aren’t we?

       A.     As far as I know, yes, sir.

       Q.     We’re filming the rest of the show; right?

Before Sergeant Mullins answered the question, the trial court interrupted, stating:

       THE COURT: [F]or the record, the Supreme Court of the State of Tennessee
       has authorized cameras in the courtroom. This Court allows one camera in the
       courtroom and all media outlets feed off of the one camera. That camera and
       the TV station associated with that is the lead camera that’s in the courtroom.
       Every media outlet and every channel is peeling off of one camera. That is one
       that has been authorized by the Supreme Court to be here.

       [DEFENSE COUNSEL]: I understand.

       THE COURT: This Court is not authorizing a television show or to be part of
       a television show. They are following the rules that the Supreme Court says.
       So let’s make sure the record is clear that this is not a TV show and this is not
       being produced as a TV show and it’s not being edited as a TV show. This is
       a trial.

       [DEFENSE COUNSEL]: Can I ask him who the producer that’s running the
       camera works for?

       THE COURT: No, sir.

       [PROSECUTOR]: I’m going to object to relevance.



                                              -6-
       THE COURT: That camera is in this courtroom and you know that camera is
       in this courtroom under the rules of the Supreme Court of Tennessee. They are
       one of a party of media outlets that are using that feed. So let’s don’t talk
       about this being part of a TV show. You want to ask questions, let’s ask
       relevant questions.

       [DEFENSE COUNSEL]: I am asking questions about this.

       THE COURT: This is not apart [sic] of a television show . . . . Let’s move on
       to something that’s relevant.

        Defense counsel continued by questioning Sergeant Mullins about the presence of a
camera and the crew from The First 48 during the time the defendant was interviewed by
police. The trial court again interrupted, informing defense counsel that it believed Sergeant
Mullins had previously answered that question. The State requested a bench conference, and
the trial court denied the request:

       That he was not present when that interview was conducted so let’s move into
       areas that he’s aware of, okay. I’ve allowed this to go for a long way, and I
       know where you’re going and I understand why you’re going there. He’s
       already testified he wasn’t present when that interview was conducted. He
       doesn’t know who was in there.

        During a subsequent jury-out hearing, co-counsel objected to the trial court’s “calling
down” defense counsel when he was questioning a witness. The trial court explained that
defense counsel had accused the court of being part of a television show. The court stated,
“And that’s when I said enough. This is not part of a TV show. This is a court of law.” The
trial court agreed that in the future, it would not “call [defense counsel] down” in the jury’s
presence but would call them to the bench instead. The court thereafter apologized to
defense counsel “for losing [its] temper.” When the jury returned, the trial court then offered
the following apology to the jury:

              All right. Ladies and gentlemen, first, let me apologize to you for
       losing my temper. I’ve already apologized to the lawyers. You need to
       understand that – and I know you do, this is an adversarial proceeding. But
       within that adversarial proceeding there [are] certain rules of decorum that we
       all must operate under, me included. I’ve worked with these lawyers for many
       years.




                                              -7-
               Sometimes I lose my temper and it’s inappropriate. I should not do that.
        I should not do it in the manner in which I sometimes lose my temper. So I’ve
        apologized to them. I apologize to you. I will say to you, you cannot, should
        not, nor would it be proper for you to in any way hold [the defendant] or
        anybody else responsible for my lack of being able to maintain my own cool.
        So I say that to you with all d[ue] respect. I hope you accept my apology.

        “[A]ll litigants are entitled to the ‘cold neutrality of an impartial court’ and have a
right to have their cases heard by fair and impartial judges.” Wright v. Pate, 117 S.W.3d 774,
778 (Tenn. Ct. App. 2002) (quoting Kinard v. Kinard, 986 S.W.2d 220, 227 (Tenn. Ct. App.
1998)). Cannon 3(A) of the Code of Judicial Conduct provides that a trial judge should be
“patient, dignified, and courteous to the litigants, jurors, witnesses and lawyers” during the
course of a trial, and instructs the trial judge to perform his or her judicial duties without bias
or prejudice. Tenn. Sup. Ct. R. 10.1 While the trial judge is extended broad discretion in
controlling the course and conduct of the trial, the trial judge must refrain from expressing
“any thought that might lead the jury to infer that the judge is in favor of or against the
defendant in a criminal trial.” State v. Cazes, 875 S.W.2d 253, 260 (Tenn. 1994); State v.
Harris, 839 S.W.2d 54, 66 (Tenn. 1992).

       It is apparent that defense counsel’s cross-examination of Sergeant Mullins about the
presence of the camera crew and the fact that the trial was being filmed for possible use in
a future television show came across to the trial court as an attack on the integrity and
formality of the trial process, which led to the court’s reprimand to counsel. While we can
understand and sympathize with the trial court’s frustration, we agree that the court should
have avoided reprimanding defense counsel in the presence of the jury.

        We do not, however, believe that the trial court’s remarks, when viewed in the context
of the entire trial, deprived the defendant of his constitutional right to a fair trial. The
remarks constituted a brief portion of a multi-week trial; the trial court apologized to both
defense counsel and the jury for the remarks; and the trial court appropriately instructed the
jury that it was not to consider its comments against the defendant. We, therefore, conclude
that, considering the record in its entirety, the error was harmless beyond a reasonable doubt.
See State v. John D. Joslin, No. 03C01-9510-CR-00299, 1997 WL 583071, at *42-43 (Tenn.
Crim. App. Sept. 22, 1997), perm. app. denied (Tenn. Nov. 9, 1998) (holding that while the
trial court’s remark was improper, the error was “harmless beyond a reasonable doubt”).




        1
          The Code of Judicial Conduct was revised, effective July 1, 2012. Because the trial occurred prior
to the effective date of the revisions, we refer to the Code that was in effect at the time of the trial.

                                                    -8-
        The defendant also complains that his right to a fair trial was violated by the fact that
the trial court continued to interject during defense counsel’s cross-examination of Sergeant
Mullins, instructing defense counsel to repeat or rephrase questions and refusing to allow
defense counsel to ask certain questions. The record, however, demonstrates that the trial
court merely asked defense counsel to repeat or rephrase questions that were unclear and
refused to allow counsel to repeatedly ask the same questions. By doing so, the trial court
was fulfilling its duty to ensure that the proceedings “move[d] along in an orderly and
systematical manner.” State v. Evans, 838 S.W.2d 185, 195 (Tenn. 1992). We conclude,
therefore, that the defendant is not entitled to relief regarding this issue.

                                             ***

                             VIII. Admission of Photographs

        The defendant contends that the trial court erred in denying his motion to prohibit the
display of photographs of the victims after death. The admissibility of relevant photographs
of victims and the crime scene is within the sound discretion of the trial court, and the court’s
ruling on admissibility will not be disturbed on appeal absent a showing of an abuse of that
discretion. State v. Carruthers, 35 S.W.3d 516, 576-77 (Tenn. 2000); State v. Van Tran, 864
S.W.2d 465, 477 (Tenn. 1993); State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). As our
supreme court stated in Carruthers, the modern trend is to vest more discretion in the trial
court’s rulings on admissibility. 35 S.W.3d at 577 (citing Banks, 564 S.W.2d at 949).

         Evidence is relevant if it has “any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less probable than it
would be without the evidence.” Tenn. R. Evid. 401. Relevant evidence “may be excluded
if its probative value is substantially outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury.” Tenn. R. Evid. 403. The court must determine the
relevance of the visual evidence and weigh its probative value against any undue prejudice.
Id. The term “unfair prejudice” has been defined as “an undue tendency to suggest decision
on an improper basis, commonly, though not necessarily, an emotional one.” Banks, 564
S.W.2d at 950-51.


      In Banks, our supreme court provided trial courts with guidance for determining the
admissibility of relevant photographic evidence. The trial court should consider: the
accuracy and clarity of the picture and its value as evidence; whether the picture depicts the
body as it was found; the adequacy of testimonial evidence in relating the facts to the jury;
and the need for the evidence to establish a prima facie case of guilt or to rebut the
defendant's contentions. Id. at 951.

                                               -9-
        The defendant argues that the trial court erred in admitting photographs of the victims’
facial injuries and crime scene photographs of the three child victims. We note, however,
that the defendant raised no objections to the admission of the photographs at trial and at a
pretrial hearing objected only to six photographs that depicted the children’s injuries, which
were taken at the hospital. At the conclusion of the hearing, the trial court ruled that five of
the six photographs were relevant and admissible to show the extent and nature of the
injuries in order for the State to prove premeditation. The court reserved its ruling on the
sixth photograph in order for the State to determine whether it depicted a bloody bandage on
a victim’s head, or a portion of the child’s scalp, stating that if it were a bandage, it would
admit the photograph. The defendant has, thus, waived review of this issue.

        Even if not waived, we would conclude that the trial court did not err in admitting the
photographs. Photographs of a corpse are admissible in murder prosecutions if they are
relevant to the issues at trial, notwithstanding their gruesome and horrifying character. See
Banks, 564 S.W.2d at 950-51. The photographs admitted by the trial court were relevant to
supplement the testimony of the medical examiner and the treating physician regarding the
victims’ injuries and to support the aggravating circumstances alleged by the State. See,
generally, State v. Cole, 155 S.W.3d 885, 913 (Tenn. 2005) (Appendix). We conclude,
therefore, that the probative value of the photographs was not outweighed by their prejudicial
effect, and the trial court did not abuse its discretion in admitting them.

                     IX. Denial of Motion to Provide DNA Analysis

        The defendant next contends that the trial court erred in denying his second amended
motion to provide DNA analysis for all those who were in contact with the crime scene. The
defendant filed his initial motion on May 13, 2010, stating that the purpose of the request was
to eliminate law enforcement, medical, and other personnel who were present at the crime
scene from physical evidence at the scene that did not match the defendant or the victims.
During a hearing, defense counsel informed the trial court that the motion was filed in
response to a report from the FBI crime laboratory which stated that two Caucasian or Asian
Mongoloid hairs that were discovered mixed in the blood on the buttocks and thigh region
of Roberson’s body could not be identified as belonging to the defendant or the victims. The
trial court ordered the State to determine those of Caucasian or Asian Mongoloid descent
who had contact with the victim’s body in investigating the crime scene.

       During a subsequent hearing, the State informed the trial court that five individuals
had direct contact with the victim’s body: the medical examiner, the medical examiner’s
assistant, an emergency response officer, and two people from the private corpse removal
service that the medical examiner’s office used to transport the victims’ bodies. The trial
court denied the defendant’s motion to require those five people to provide DNA samples for

                                              -10-
comparison with the unidentified hairs, observing that it was unaware of any authority that
would permit it to compel private citizens who were not suspected of a crime to provide
DNA samples to the court for testing by a criminal defendant. The court also noted that even
if DNA testing were to exclude those five individuals as contributors, such evidence would
not, alone, exculpate the defendant.

        The trial court further noted that the defendant could request that those five people
voluntarily provide a DNA sample and that defense counsel could, during trial: (1) question
the State’s experts regarding the availability of DNA testing and their decision not to perform
such tests in order to eliminate investigators and medical personnel as contributors of the
hairs; (2) question law enforcement and medical witnesses regarding the protocols they
followed in preserving the evidence and avoiding scene contamination; and (3) argue that the
hairs possibly belonged to an unknown perpetrator or an additional perpetrator. The
defendant also could employ his own expert to review and potentially refute the State’s
findings upon a showing of particularized need for funding. Finally, the trial court prohibited
the State from unfairly benefitting from its ruling by either claiming or inferring that the
unidentified hairs conclusively belonged to one of those five individuals, or other individuals,
who had entered the crime scene. The only inference that the trial court allowed the State
to draw was that the hairs remained unidentified and could have been left by someone other
than an unknown perpetrator.

        Shortly thereafter, the defendant filed amended motions in which he argued that the
testing was necessary in order to protect his rights to confront witnesses, compulsory process
of the law, and present a third party defense. The defendant asserted that the trial court could
enter a protective order prohibiting disclosure of the testing absent court order. The trial
court, however, once again denied the request.

        The defendant acknowledges there is no Tennessee precedent for court-ordered DNA
testing of law enforcement and medical personnel. See, e.g., Bartlett v. Hamwi, 626 So. 2d
1040, 1042-43 (Fla. Dist. Ct. App. 1993) (upholding the trial court’s denial of the
defendant’s motion to obtain a hair sample from a prosecution witness based upon the
absence of a rule or statute authorizing such discovery, as well as a consideration of the
witness’s constitutional rights); State v. McKinney, 730 N.W.2d 74, 89-90 (Neb. 2007)
(applying the analysis in Bartlett in upholding the denial of the defendant’s motion to obtain
DNA samples from witnesses). The defendant argues, however, that such DNA testing is
similar to law enforcement officers requesting “elimination fingerprints” when investigating
a crime. We note, however, that in State v. Dailey, 273 S.W.3d 94, 97 (Tenn. 2009), the case
upon which the defendant relies, the trial court did not order the fingerprinting, but
individuals were instead asked to voluntarily provide elimination fingerprints. Id.



                                              -11-
        Moreover, the withdrawal of blood for testing “infringes an expectation of privacy”
and is subject to the constraints of the Fourth Amendment. Skinner v. Ry. Labor Executives’
Ass’n, 489 U.S. 602, 616 (1989); State v. Scarborough, 201 S.W.3d 607, 616 (Tenn. 2006).
Although we recognize that it is possible to “extract DNA by applying a sticky patch to the
skin on an individual’s forearm for a moment to acquire epidermal cells without puncturing
the skin surface,” Scarborough, 201 S.W.3d at 619 (quotations omitted), DNA analysis
performed after the collection of a biological specimen “is a separate and distinct search
which ‘is potentially a far greater intrusion than the initial extraction of DNA, since the state
analyzes DNA for information and maintains DNA records indefinitely.’” Id. (quoting
Nicholas v. Goord, 430 F.3d 652, 670 (2d Cir. 2005)).

        “[A] witness, who is not a suspect, defendant or victim, should have no less protection
against bodily intrusion than defendants or suspects in criminal cases.” Bartlett, 626 So. 2d
at 1042 (footnote omitted). While the present case involves the defendant’s request for
evidence, a witness continues to be protected under the Fourth Amendment and the
constitutional rights to privacy guaranteed by the United States Constitution. See id. at 1042-
43. Thus, we must balance the constitutional rights of those third parties from whom the
defendant sought to compel DNA samples against any rights that the defendant might have
in presenting his defense. See McKinney, 730 N.W.2d at 90. In so doing, we agree with the
trial court’s observation that the exclusion of the personnel who came into contact with
Roberson’s body as the contributors of the hairs would not have exculpated the defendant,
especially given the testimony at trial about the amount of traffic at the home during the five
months in which Cecil lived there. After balancing these competing rights, we conclude that
“[t]he circumstances presented here do not constitute a ‘rare instance’ where justice may
require an invasion of a witness’ privacy rights or an invasion of [a third party’s] Fourth
Amendment rights.” Bartlett, 626 So. 2d at 1043.

                   X. Denial of Motion for Production of Statements
                           of Those Not Called as Witnesses

       The defendant next contends that the trial court erred in denying his motion for
production of statements of those not called as witnesses by the State and that the State was
required to disclose those statements pursuant to Brady v. Maryland, 373 U.S. 83 (1963).

       “[T]he suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Id. at 87. In order to establish
a Brady violation, a defendant must show that he or she requested the information, the State
suppressed the information, the information was favorable to his or her defense, and the
information was material. State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). Evidence is

                                              -12-
“material” only if there is a reasonable probability that the result of the proceeding would
have been different had the evidence been disclosed to the defense. United States v. Bagley,
473 U.S. 667, 682 (1985). “Materiality” has been further explained as follows:

       The question is not whether the defendant would more likely than not have
       received a different verdict with the evidence, but whether in its absence he
       received a fair trial, understood as a trial resulting in a verdict worth of
       confidence. A “reasonable probability” of a different result is accordingly
       shown when the government’s evidentiary suppression “undermines
       confidence in the outcome of the trial.”

Kyles v. Whitley, 514 U.S. 419, 434 (1995) (quoting Bagley, 473 U.S. at 678). The burden
of proving a Brady violation rests with the defendant, and the violation must be proven by
a preponderance of the evidence. Edgin, 902 S.W.2d at 389.

        First, the defendant has failed to establish that the State suppressed the information
or that the information was favorable to the defense. During the pretrial hearing on the
motion, defense counsel acknowledged that the State provided open-file discovery. The
prosecutor also commented that “anything that’s in the possession of the Memphis Police
Department has to be turned over to the Defense.” The defendant identifies testimony from
various officers at trial that they received numerous tips regarding problems that Cecil was
having with a gang and money that he allegedly took. The defendant, however, was able to
present evidence through cross-examination of the State’s witnesses, as well as through
witnesses that he called to testify, that Cecil was in trouble with the Gangster Disciples for
committing a gang violation and that Cecil owed $300,000 to “the mob.” The defendant does
not state what additional information he alleges that the State failed to disclose.

        Moreover, the defendant has failed to show that the information was material.
Evidence of the defendant’s guilt was overwhelming. The jury heard and rejected evidence
suggesting that Cecil might have been killed due to his debt with “the mob,” in retaliation
for the shooting death of a member of a rival gang, or as the result of committing a violation
against one of his fellow gang members. The defendant fails to establish a reasonable
probability that the result of the proceedings would have been different had such additional
evidence been disclosed to the defense. We conclude, therefore, that the defendant is not
entitled to relief on the basis of this issue.




                                             -13-
                               XI. Improper Jury Instructions

         The defendant challenges as prejudicially improper multiple jury instructions given
during the guilt phase of his trial. Because the defendant did not object to the instructions
at trial or raise the issues in his motion for new trial, the issues are waived, and our review
is limited to plain error. Faulkner, 154 S.W.3d at 58; see also Tenn. R. App. P. 3(e); Tenn.
R. App. P. 36(a); Tenn. R. Crim. P. 52(b).

        We must review jury instructions in their entirety, and we may not examine phrases
in isolation. State v. Rimmer, 250 S.W.3d 12, 31 (Tenn. 2008). In determining whether a
defendant is harmed by an ambiguous, erroneous instruction, we must consider “‘whether
the ailing instruction by itself so infected the entire trial that the resulting conviction violates
due process.’” Id. (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). The significant
question is “whether there is a reasonable likelihood that the jury has applied the challenged
instruction in a way that violates the Constitution.” Id. (quotations omitted). An ambiguous
term does not necessarily constitute error. Id.

       [J]urors do not sit in solitary isolation booths parsing instructions for subtle
       shades of meaning in the same way that lawyers might. Differences among
       them in interpretation of instructions may be thrashed out in the deliberative
       process, with commonsense understanding of the instructions in the light of all
       that has taken place at the trial likely to prevail over technical hairsplitting.

Id. (quotations omitted).

        The defendant first asserts that the trial court’s instruction defining “reasonable doubt”
at the close of proof in the guilt phase improperly reduced the State’s burden of proof. The
trial court instructed the jury as follows:

               The law presumes that the defendant is innocent of the charges against
       him, therefore, you as the jury, must enter upon this investigation with the
       presumption that the defendant is not guilty of any crime and this presumption
       stands as a witness for him unless it is rebutted and overturned by competent
       and credible proof. It is, therefore, incumbent upon the State, before you can
       convict the defendant, to establish to your satisfaction, beyond a reasonable
       doubt, that the crime charged in the indictment has been committed; that the
       same was committed in Shelby County, Tennessee, before the indictment was
       returned and that the defendant on trial committed the crime in such a manner
       that would make him guilty under the law as it has been defined and explained
       to you.

                                               -14-
              The State has the burden of proving the guilt of the defendant beyond
       a reasonable doubt, and this burden never shifts but it remains on the State
       throughout the trial of the case. The defendant is not required to prove his
       innocence. The State must have proven beyond a reasonable doubt all of the
       elements of the crime charged and that it was committed before the finding and
       returning of the indictment in this case.

               A reasonable doubt is that doubt created by an investigation of all the
       proof in the case and an inability, after such investigation, to let the mind rest
       easily as to the certainty of guilt. Reasonable doubt does not mean a doubt that
       may arise from possibility. Absolute certainty of guilt is not demanded by the
       law to convict of any criminal charge, but moral certainty is required and this
       certainty is required as to every element of proof requisite to constitute the
       offense.

        The defendant takes issue with the statement, “Reasonable doubt does not mean a
doubt that may arise from possibility.” This issue was addressed by the Tennessee Supreme
Court in Rimmer, 250 S.W.3d at 30-31. The court stated that a fair interpretation of the
phrase is that “reasonable doubt does not mean a doubt that may arise from mere possibility
no matter how improbable.” Id. at 31. The court concluded that the jury instruction did not
result in the denial of due process and that there was not a reasonable likelihood that the jury
applied the burden of proof in an unconstitutional way. Id.

       The defendant attempts to distinguish Rimmer from the present case because the
instruction in Rimmer was given in the penalty phase, rather than the guilt phase as in the
present case. The defendant does not cite any authority holding that the meaning of
“reasonable doubt” differs between the guilt and penalty phases. Under the circumstances
of this case, we cannot conclude that the jury was reasonably likely to have applied the
burden of proof in an unconstitutional way. While further use of this instruction is
discouraged, see id., the instruction is not unconstitutional.

        The defendant also takes issue with the trial court’s instruction during the guilt phase
that “[t]here are nine counts in this indictment. You will have a packet of sentencing forms
for each count as to each victim.” (emphasis added). According to the defendant, the
instruction indicated that “guilt was a foregone conclusion and the jury was charged with
sentencing.” Given that the trial court repeatedly instructed the jury that the defendant was
innocent until proven guilty, we cannot conclude that the instruction affected a substantial
right as to rise to the level of plain error.




                                              -15-
       The defendant next argues that the trial court improperly combined each of the six
counts of first degree murder and each of the three counts of attempted first degree murder
into one instruction. According to the defendant, the instruction suggested that all of the
murder counts should have one verdict and all of the attempted murder counts should have
one verdict. The trial court instructed the jury that it was to return a verdict on each of the
nine counts, and the jury did as instructed. The defendant is not entitled to relief on this
issue.

       The defendant also complains about the following statement the trial court made after
instructing the jury regarding the definitions of “intentionally,” “knowingly,” “recklessly,”
and “criminal negligence”:

             These definitions apply to the offenses of Murder in the First Degree,
       Murder in the Second Degree, Voluntary Manslaughter, Reckless Homicide
       and Criminally Negligent Homicide. They also apply to the offenses of
       Attempted Murder in the First Degree, Attempted Murder in the Second
       Degree and Attempted Voluntary Manslaughter.

The defendant argues that through this instruction, the jury was told to apply the mental states
of “recklessly” and “negligently” to the first degree murder charge. The trial court, however,
then defined each of the offenses, which included the mental state applicable for each
offense. The trial court specifically instructed the jury that in order to convict the defendant
of premeditated first degree murder, it must find that the defendant acted “intentionally.”
Because the trial court’s instruction for first degree and attempted first degree murder
specifically limited their applications to an intentional mental state, we cannot conclude that
the jury was told to apply and that the jury did apply the mental states of “recklessly” or
“negligently” to the first degree and attempted first degree murder charges.

        The defendant next asserts that the trial court’s instruction to “[t]ake the case, consider
all of the facts and circumstances fairly and impartially and return to the court with the
verdict that TRUTH dictates and JUSTICE demands” informed the jury that if it believed
that the defendant committed the offenses as alleged, it could render a verdict of guilt
regardless of whether the State proved its allegations beyond a reasonable doubt. The trial
court, however, repeatedly instructed the jury that the defendant was innocent until proven
guilty. Thus, we cannot conclude that the instruction affected a substantial right of the
defendant such as to rise to the level of plain error.




                                               -16-
           XII. Failure to Instruct Facilitation as a Lesser-Included Offense

        The defendant next contends that the trial court erred in failing to instruct the jury on
facilitation as a lesser-included offense of premeditated first degree murder and attempted
first degree murder. Whether a particular instruction regarding a lesser-included offense
should have been given is a mixed question of law and fact. State v. Hatfield, 130 S.W.3d
40, 41 (Tenn. 2004). We review mixed questions of law and fact de novo with no
presumption of correctness. Carpenter v. State, 126 S.W.3d 879, 892 (Tenn. 2004).

       Facilitation of the charged offense is a lesser-included offense under the test
established in State v. Burns, 6 S.W.3d 453, 466-67 (Tenn. 1999). The issue is whether the
evidence presented at trial was sufficient to support an instruction for facilitation. A two-step
analysis is necessary to determine if an instruction on a lesser-included offense is supported
by the evidence. First, we must determine if any evidence exists that “reasonable minds
could accept as to the lesser-included offense.” State v. Richmond, 90 S.W.3d 648, 660
(Tenn. 2002). Second, we must determine “if the evidence, when viewed liberally in the
light most favorable to the existence of a lesser-included offense, is legally sufficient to
support a conviction for the lesser-included offense.” Id.

       The theory presented by the State at trial was that the defendant acted alone in
shooting the adults and stabbing and beating the children. The theory presented by the
defense was that someone else attacked the victims while the defendant hid in a bedroom
under the bed. Neither of these theories support a facilitation instruction. We conclude,
therefore, that the trial court properly declined to instruct the jury on facilitation as a lesser-
included offense of premeditated first degree murder and attempted first degree murder.

             XIII. Denial of Motion to Strike Aggravating Circumstances

        The defendant next contends that the trial court erred in denying his motion to strike
the (i)(3) and (i)(12) aggravating circumstances as duplicitous. The (i)(3) aggravating
circumstance provides that 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.” Tenn. Code
Ann. § 39-13-204(i)(3). The (i)(12) aggravating circumstance provides that the defendant
“committed ‘mass murder,’ which is defined as the murder of three (3) or more persons,
whether committed during a single criminal episode or at different times within a forty-eight-
month period.” Id. at (i)(12). The defendant argues that these aggravating circumstances are
duplicitous “[i]nasmuch as the risk of death factor in this case is inclusive in the mass murder
factor.”




                                               -17-
       Our supreme court has, however, already rejected the claim that the (i)(3) and (i)(12)
aggravating circumstances are duplicitous, finding that each of these aggravating
circumstances relies upon different policy justifications for rendering a defendant eligible for
the death penalty. State v. Jordan, 325 S.W.3d 1, 74 (Tenn. 2010). The court recognized that
the fact that “the same conduct may satisfy certain elements of different aggravating
circumstances does not contaminate the jury’s sentencing process, or invalidate its weighing
process.” Id. The court, thus, declined to hold as unconstitutional the use of the same
evidence to satisfy elements of different but valid aggravating circumstances. Id. The
defendant, therefore, is not entitled to relief on this issue.

                  XIV. Denial of Motion for Probable Cause Finding
                       that Aggravating Circumstances Existed

       The defendant next contends that the decision to charge a capital offense must be
made by the grand jury and not the prosecutor. He further argues that the failure to allege
any aggravating circumstances in the indictment violated his Fifth Amendment right to an
indictment by grand jury. The Tennessee Supreme Court has, however, rejected this
argument. See State v. Thomas, 158 S.W.3d 361, 406 (Tenn. 2005). The defendant is not,
therefore, entitled to relief on the basis of this issue.

                  XV. Denial of Motion for Disclosure of Information
                         Regarding Proportionality Review

        The defendant next contends that the trial court erred in denying his motion for
disclosure of information regarding proportionality review so that he may challenge the
constitutionality of comparative proportionality review. Our supreme court has, however,
rejected other similar challenges to the meaningfulness of comparative proportionality
review. See, e.g., State v. Bland, 958 S.W.2d 651, 663 (Tenn. 1997); State v. Brimmer, 876
S.W.2d 75, 87 (Tenn. 1994). Moreover, as fully discussed below, we conclude that the
defendant’s death sentences are proportionate to the penalty imposed in similar cases. This
issue is, therefore, without merit.

                       XVI. Admission of Victim Impact Evidence

        The defendant next contends that the trial court erred in admitting victim impact
evidence in the penalty phase of the trial. The defendant does not identify specific testimony
that he claims was erroneously admitted, but instead urges this court to adopt Justice Stevens’
dissent in Payne v. Tennessee, 501 U.S. 808, 859-60 (1991), in which he opines that victim
impact evidence is improper in any capital case. Our supreme court has, however,
recognized the admissibility of victim impact evidence during the penalty phase of a capital

                                              -18-
case even after Justice Stevens’ dissent in Payne. See State v. Nesbitt, 978 S.W.2d 872, 899-
90 (Tenn. 1998) (finding no federal or state constitutional barriers to victim impact evidence
at capital sentencing). This issue is, therefore, without merit.

                          XVII. Denial of Motion to Argue Last

        The defendant next contends that the trial court erred in denying his motion to argue
last during the penalty phase. Tennessee Code Annotated section 39-13-204(d) provides that
during the penalty phase, “the state shall be allowed to make a closing argument to the jury;
and then the attorney for the defendant shall also be allowed such argument, with the state
having the right of closing.” The practice of allowing the State to argue last at sentencing
has been held to be constitutional. See State v. Melson, 638 S.W.2d 342, 368 (Tenn. 1982).
This issue is without merit.

                             XVIII. Prosecutorial Misconduct

        The defendant contends that the State committed prosecutorial misconduct during the
rebuttal closing arguments in both the guilt and penalty phases of the trial. The defendant
did not object to all the portions of the State’s argument at trial that he claims are improper
or raise the issue of prosecutorial misconduct in his motion for new trial. Therefore, the issue
is waived, and our review is limited to plain error. Faulkner, 154 S.W.3d at 58; see also
Tenn. R. App. P. 3(e); Tenn. R. App. P. 36(a); Tenn. R. Crim. P. 52(b).

       Closing arguments are a “valuable privilege” and should not be unduly restricted.
Terry v. State, 46 S.W.3d 147, 156 (Tenn. 2001). “Consequently, attorneys are given greater
leeway in arguing their positions before the jury, and the trial court has significant discretion
in controlling these arguments, to be reversed only upon a showing of an abuse of that
discretion.” Id. We have explained that “arguments must be temperate, based upon the
evidence introduced at trial, relevant to the issues being tried, and not otherwise improper
under the facts or law.” State v. Goltz, 111 S.W.3d 1, 5 (Tenn. Crim. App. 2003).

        The generally recognized areas of prosecutorial misconduct in closing arguments
occur when the prosecutor intentionally misstates the evidence or misleads the jury on the
inferences it may draw from the evidence; expresses his or her personal opinion on the
evidence of the defendant’s guilt; uses arguments calculated to inflame the passions or
prejudices of the jury; diverts the jury from its duty to decide the case on the evidence by
injecting issues broader than the guilt or innocence of the accused under the controlling law
or by making predictions on the consequences of the jury’s verdict; and intentionally refers
to or argues facts outside the record, other than those that are matters of common public
knowledge. Id. at 6.

                                              -19-
        The defendant first argues that the State denigrated the defense by referring to
alternate theories as “smoke and mirrors,” “ridiculous,” and “insane” and by referring to
defense counsel as a “tricky lawyer.” A review of the record reveals that the prosecutor used
the phrase “smoke and mirrors” to refer to the defense’s attempts to divert attention from the
issues and not as a suggestion that evidence was fabricated by the defense. The prosecutor
used the phrase “ridiculous” to rebut the defense’s argument that the murders were
committed by gang members who then remained at the crime scene to rearrange the scene,
and to rebut defense counsel’s argument that the defendant’s behavior following the murders
could not be explained. The prosecutor described defense counsel’s attempts to use evidence
that the State believed to be irrelevant to argue reasonable doubt as “ridiculous” and
“insane.” When viewed in their context, we cannot conclude that the prosecutor’s comments
violated a clear rule of law. Moreover, even if the arguments were improper, the error was
harmless in light of the strong evidence of guilt. Thus, the defendant also has failed to
establish that the issue involves a substantial right. Accordingly, the issue does not rise to
the level of plain error.

       The defendant also complains about the prosecutor’s rebuttal argument in the guilt
phase of the trial that the jury should not discredit the testimony of two of the surviving
children “because of some tricky lawyer or expert.” When viewed in its context, we cannot
conclude that the prosecutor’s comment was an attack on defense counsel’s credibility.
Rather, the comment was an attempt by the prosecutor to persuade the jurors to focus on their
own views of the credibility of these witnesses and the evidence.

       The defendant also complains of the following statement by the prosecutor:

               And you want to talk about this tape and the five hours? Sure. The
       defense has a golden nugget because The First 48 when they were editing their
       television show only played certain parts on TV and the rest they destroyed the
       raw footage. That wasn’t in the Memphis Police Department’s control.
       Remember that please because they’re getting blamed for it.

              So now [the defendant] can say whatever he wants. Oh, that five hours
       that you don’t get to see, this is what I was doing.

       At the conclusion of the prosecutor’s argument, defense counsel objected, asserting
that evidence was never presented that employees from The First 48 destroyed the tape
recording of the officers’ interrogation of the defendant. The defendant, however, does not
make this argument on appeal. Rather, the defendant argues that the prosecutor interjected
his own opinion by arguing that the defendant can “say whatever he wants.” Based upon our
review of the record, we conclude that the prosecutor was not interjecting his own opinion

                                             -20-
but was attacking the credibility of the defendant’s testimony based upon the evidence
presented at trial and the inferences drawn from the evidence.

       The defendant also argues that the prosecutor testified when he stated the following:

              Prosecution witnesses are coached. That’s another thing they’re going
       to throw out at you. What proof do they have? Did they put me on the stand?
       Did they ask me hey, did you coach him last night? Because I would have
       given you an answer. These children wanted to come in here and tell you what
       happened to them the best they could.

       We agree that the prosecutor’s comment suggesting that defense counsel could have
and should have called him to testify was improper. While the prosecutor’s argument that
the children who testified were not coached was not artfully made, we cannot conclude that
the prosecutor’s statement that “[t]hese children wanted to come in here and tell you want
happened to them the best they could” constituted testimony from the prosecutor. After
making the statement, the prosecutor discussed the trauma that the children suffered and the
difficulties that the children experienced recalling details. Thus, the statement was consistent
with the evidence presented at trial. The prosecutor’s argument does not rise to the level of
plain error.

       The defendant also contends that the prosecutor injected his own opinion during
closing arguments in the guilt phase by telling the jury that the defendant’s testimony was
“not believable” and that the defendant was “lying.” The prosecutor did not offer his
opinion. Rather, he argued that based on the evidence, the defendant’s testimony was not
believable and that he was lying. This argument was proper.

       According to the defendant, the prosecutor encouraged the jury to experience the
victims’ fear during rebuttal argument in the penalty phase. The prosecutor’s references to
the fear that the victims must have felt related to the “nature and circumstances” of the
offenses and, therefore, were proper. See State v. Odom, 336 S.W.3d 541, 562 (Tenn. 2011).

       The defendant contends that the prosecutor misrepresented the weighing procedure
for aggravating and mitigating circumstances. While true, the prosecutor later corrected
himself and stated the appropriate burden of proof. The trial court also instructed the jury
on the correct burden of proof. This issue is, therefore, without merit.

      Finally, the defendant complains of the prosecutor’s comment that the defendant
“stamped them out like they were insects in a two-hour period,” as well as the following
argument:

                                              -21-
              What’s going to stop him? You. You. And how are you going to do
       it? With the law, with the law. We’re not asking anything of you but to follow
       the law. And the law does give you your verdict in this case, shall be death.

The defendant argues that by such language, the prosecutor urged the jurors to exact their
personal retribution. When viewed in the context of the prosecutor’s argument, these
comments were not an effort to urge the jurors to exact their personal retribution but were
an attempt to persuade the jury to impose the punishment afforded by the law. The
prosecutor did not violate a clear rule of law in making such an argument. Thus, the issue
does not rise to the level of plain error, and the defendant is not entitled to relief.

                          XIX. Allowing Death Verdicts to Stand

       The defendant next challenges the constitutionality of Tennessee’s murder and death
penalty statutes, arguing that the death penalty statute is unconstitutional because it limits the
jury’s discretion to exercise mercy by requiring the jury to impose a sentence of death if
aggravating factors outweigh mitigating factors. The defendant also asserts that the statute
does not require the jury to make the ultimate determination that the appropriate punishment
is death, in violations of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United
States Constitution. The Tennessee Supreme Court has, however, rejected this argument.
See State v. Smith, 857 S.W.2d 1, 22 (Tenn. 1993); State v. Boyd, 797 S.W.2d 589, 596
(Tenn. 1990).

       The defendant next argues that Tennessee’s murder and death penalty statutes violate
the equal protection clauses of the state and federal constitutions because they do not provide
uniform standards for qualifying jurors for service on capital cases. This challenge, however,
was rejected in State v. Reid, 91 S.W.3d 247, 313 (Tenn. 2002).

       The defendant also argues that the statutes are unconstitutional because they invest
prosecutors with unlimited discretion to seek the death penalty. This argument has also been
rejected. See State v. Hines, 919 S.W.2d 573, 582 (Tenn. 1995).

      The defendant next argues that the “heinous, atrocious, or cruel” aggravating factor
is vague and overbroad. This argument likewise has been rejected. See State v.
Middlebrooks, 995 S.W.2d 550, 556-57 (Tenn. 1999).

       According to the defendant, the language in the “mass murder” aggravating
circumstance is too reminiscent of terrorism. The defendant does not cite to any authority
in support of his claim. “Mass murder” is defined as “the murder of three (3) or more
persons, whether committed during a single criminal episode or at different times within a

                                              -22-
forty-eight-month period.” Tenn. Code Ann. § 39-13-204(i)(12). We conclude that the plain
language of this statute does not imply terrorism. Moreover, the Tennessee Supreme Court
has upheld the application of this aggravating circumstance in other capital cases. See, e.g.,
Jordan, 325 S.W.3d at 70. The defendant is not entitled to relief regarding this issue.

       The defendant next contends that Tennessee’s death penalty statute is unconstitutional
because it permitted evidence of his prior conviction for second degree murder. Tennessee
Code Annotated section 39-13-204, which permits the admission of the conviction and the
facts and circumstances underlying the conviction, has been upheld as constitutional. See
Reid, 91 S.W.3d at 312.

       The defendant contends that Tennessee’s death penalty statute violates state and
federal constitutions because it does not give the jury unlimited discretion not to impose the
death penalty. This argument is similar to the argument that the defendant made above and
has been rejected. See Smith, 857 S.W.2d at 22; Boyd, 797 S.W.2d at 596. The defendant
also contends that the death penalty is capriciously and arbitrarily imposed. This argument
likewise has been rejected. See Reid, 91 S.W.3d at 312-13.

                                            ***

                       XXI. Sentencing for Non-Capital Offenses

       The defendant challenges the trial court’s order imposing forty-year consecutive
sentences for each of the three attempted first degree murder convictions and also challenges
the reasonableness of the sentencing hearing.

        In determining an appropriate sentence, a trial court must consider the following
factors: (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the
presentence report; (3) the principles of sentencing and arguments as to sentencing
alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) evidence
and information offered by the parties on mitigating and enhancement factors; (6) any
statistical information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; (7) any statement the defendant makes on his
own behalf as to sentencing; and (8) the potential for rehabilitation. Tenn. Code Ann. §§
40-35-103(5), -113, -114, -210(b). “The sentence imposed should be the least severe
measure necessary to achieve the purposes for which the sentence is imposed.” Tenn. Code
Ann. § 40-35-103(4).




                                             -23-
       Pursuant to the 2005 amendments, the Sentencing Act abandoned the statutory
minimum sentence and rendered enhancement factors advisory only. See Tenn. Code Ann.
§§ 40-35-114, 40-35-210(c). The 2005 amendments set forth certain “advisory sentencing
guidelines” that are not binding on the trial court; however, the trial court must consider
them. Tenn. Code Ann. § 40-35-210(c). Although the application of the factors is advisory,
the court shall consider “[e]vidence and information offered by the parties on the mitigating
and enhancement factors in §§ 40-35-113 and 40-35-114.” Tenn. Code Ann. § 40-35-
210(b)(5). The trial court also must place on the record “what enhancement or mitigating
factors were considered, if any, as well as the reasons for the sentence, in order to ensure fair
and consistent sentencing.” Tenn. Code Ann. § 40-35-210(e). The weighing of mitigating
and enhancing factors is left to the sound discretion of the trial court. State v. Carter, 254
S.W.3d 335, 345 (Tenn. 2008). The trial court’s weighing of the various enhancement and
mitigating factors is not grounds for reversal under the revised Sentencing Act. Id. (citations
omitted).

        When a defendant challenges the length and manner of service of a sentence, this
court reviews the trial court’s sentencing determination under an abuse of discretion standard
accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn.
2012). If a trial court misapplies an enhancing or mitigating factor, the error will not remove
the presumption of reasonableness from its sentencing determination. Id. at 709. This court
will uphold the trial court’s sentencing decision “so long as it is within the appropriate range
and the record demonstrates that the sentence is otherwise in compliance with the purposes
and principles listed by statute.” Id. at 709-10. Moreover, under such circumstances, we
may not disturb the sentence even if we had preferred a different result. See Carter, 254
S.W.3d at 346. The party challenging the sentence imposed by the trial court has the burden
of establishing that the sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing
Comm’n Cmts.; State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

        In sentencing the defendant, the trial court considered the purposes of sentencing set
forth in Tennessee Code Annotated sections 40-35-102 and 40-35-103. The court found that
based upon the defendant’s prior conviction for second degree murder, he was a Range II,
multiple offender.

      The trial court applied seven enhancement factors to each of the three convictions for
attempted first degree murder. The court found the following enhancement factors applied:

       (1) The defendant has a previous history of criminal convictions or criminal
       behavior in addition to those necessary to establish the appropriate range;




                                              -24-
       (2) A victim of the offense was particularly vulnerable because of age or
       physical or mental disability;

       (3) The defendant treated or allowed a victim to be treated with exceptional
       cruelty during the commission of the offense;

       (4) The personal injuries inflicted upon, or the amount of damage to property,
       sustained by or taken from the victim was particularly great;

       (5) The defendant possessed or employed a firearm, explosive device, or other
       deadly weapon during the commission of the offense;

       (6) The felony resulted in death or serious bodily injury or involved the threat
       of death of serious bodily injury to another person and the defendant has
       previously been convicted of a felony that resulted in death or serious bodily
       injury; and

       (7) During the commission of the felony, the defendant intentionally inflicted
       serious bodily injury upon another person, or the actions of the defendant
       resulted in the death of or serious bodily injury to a victim or a person other
       than the intended victim.

Tenn. Code Ann. § 40-35-114(1), (4), (5), (6), (9), (11), (12). The trial court placed little
weight on the prior criminal history enhancement factor and no weight on the serious bodily
injury during the commission of a felony enhancement factor. See id. (1), (12). With regard
to the defendant’s conviction for the attempted first degree murder of C.D.1, the trial court
placed little weight on the particularly vulnerable victim enhancement factor. See id. (4).
The trial court found that no mitigating factors applied. The court sentenced the defendant
to forty years for each conviction of attempted first degree murder. The court also found that
the defendant was a dangerous offender whose behavior indicated little or no regard for
human life and no hesitation about committing a crime in which the risk to human life was
high. See Tenn. Code Ann. § 40-35-114(b)(5). The court ordered the defendant to serve his
three convictions for attempted first degree murder consecutively to each other and to his
death sentences.

                       A. Reasonableness of Sentencing Hearing

        The defendant challenges the reasonableness of the sentencing hearing and argues that
the trial court did not allow defense counsel to respond to the State’s argument before
imposing the sentences. The trial court asked defense counsel whether they wished to

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present any evidence and whether the defendant wished to make a statement. Defense
counsel declined both offers. Defense counsel did not object or request that they be allowed
to respond to the State’s argument. This issue is without merit.

                              B. Reasonableness of Sentences

       The defendant contends that the forty-year sentences were unreasonable. The
defendant does not challenge the trial court’s application of the seven enhancement factors.
Rather, the defendant contends that the trial court erred in not considering evidence of non-
statutory mitigating factors presented during the penalty phase.

       As a Range II, multiple offender convicted of a Class A felony, the defendant was
subject to a sentence of twenty-five to forty years. See Tenn. Code Ann. §§ 39-11-117, 40-
35-112(b)(1). The trial court imposed the maximum sentence within the range. Upon a
challenge to the sentence imposed, it is the duty of this court to analyze the issues under “an
abuse of discretion standard of review, granting a presumption of reasonableness to
within-range sentencing decisions that reflect a proper application of the purposes and
principles of our Sentencing Act.” Bise, 380 S.W.3d 707. Because the application of
enhancement and mitigating factors to adjust a sentence was rendered advisory by the 2005
amendments, the trial court may set a sentence anywhere within the applicable range so long
as the sentence is consistent with the principles and purposes of the Act, regardless of the
presence or absence of mitigating and enhancement factors. The trial court in this case
thoroughly considered the purposes and principles of the Sentencing Act in rendering its
decision. The trial court did not abuse its discretion in imposing the maximum sentence
within the applicable range.

                                 C. Consecutive Sentences

        The defendant asserts that the trial court erred in ordering that he serve his sentences
for attempted first degree murder consecutively to each other and to his death sentences. In
ordering consecutive sentences, the trial court found that the defendant is a “dangerous
offender whose behavior indicates little or no regard to human life and no hesitation about
committing a crime in which the risk to human life is high.” Tenn. Code Ann. § 40-35-
115(b)(4). “[W]hen a trial court uses the ‘dangerous offender’ factor, it must also decide
whether consecutive sentences (1) reasonably relate to the severity of the offenses
committed; (2) serve to protect the public from further criminal conduct by the offender; and
(3) are congruent with general principles of sentencing.” State v. Alder, 71 S.W.3d 299, 307
(Tenn. Crim. App. 2001).




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        The trial court found that the circumstances of the offenses were “aggravated,”
stating, “I don’t know of anything that I can think of is more aggravated than this.” The
court further found that consecutive sentences were reasonably related to the severity of the
offenses and were necessary to protect the public from the defendant and his “reserve to
criminal activity.” The record fully supports these findings. We conclude, therefore, that the
trial court properly imposed consecutive sentences based on its classification of the defendant
as a dangerous offender.

                                  XXII. Cumulative Error

        The defendant asserts that the cumulative effect of the errors at trial rendered both the
guilt, penalty, and sentencing phases of his trial fundamentally unfair. As explained above,
any errors, when considered both individually and cumulatively, did not result in prejudice.
The defendant is not, therefore, entitled to relief on the basis of this issue.

                                       CONCLUSION

      After review of the record and the applicable law, we affirm the defendant’s
convictions and sentences.




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