IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs January 13, 2015

STATE OF TENNESSEE v. JOHN HENRY PRUITT

Appeal from the Circuit Court for Hickman County

No. 11-5005-CR Timothy L. Easter, Judge

No. M2013-02393-CCA-R3-CD - Filed August 26, 2015

A Hickman County jury found the Defendant, John Henry Pruitt, guilty of two counts of first

degree murder, one count of attempted first degree murder, and three counts of aggravated

assault. Thereafter, the jury sentenced the Defendant to life imprisonment without the

possibility of parole for both the first degree murder convictions. The trial court imposed a

consecutive sentence of twenty-five years for his attempted first degree murder conviction

and concurrent six-year sentences for each of the three aggravated assault convictions. On

appeal, the Defendant contends that the trial court erred when it denied his motion to

suppress the evidence obtained during the execution of a search warrant. The Defendant also

contends that the evidence is insufficient to sustain his convictions for first degree murder

and attempted first degree murder, and that the evidence is insufficient to sustain hissentence

of life without the possibility of parole. After a thorough review of the record and relevant

law, we affirm the judgments of the trial court.

Tenn. R. App. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which THOMAS T.

WOODALL, P.J., and ROBERT L. HOLLOWAY, JR., J., joined.

Vanessa Pettigrew Bryan, District Public Defender; J. Gregory Burlison and Robert Jones,

Assistant Public Defenders, Franklin, Tennessee, for the appellant, John Henry Pruitt.

Herbert H. Slatery III, Attorney General and Reporter; Michael M. Stahl, Assistant Attorney

General; Kim Helper, District Attorney General; Michael J. Fahey and Kate Yeager,

Assistant District Attorneys General for the appellee, State of Tennessee.

OPINION
I. Background and Facts

This case arises from the shooting of three victims, Amber Hopkins, John Luster, and

James Kennedy, outside the Defendant’s residence in Hickman County, Tennessee. Ms.

Hopkins and Mr. Luster died from their injuries. A Hickman County grand jury indicted the

Defendant with two counts of first degree premeditated murder, one count of attempted first

degree murder, and three counts of aggravated assault. The Defendant filed a motion to

suppress the evidence obtained during the execution of a search warrant on his residence.

A. Motion to Suppress

The trial court held a hearing on the motion to suppress the evidence obtained during

the search of the Defendant’s residence, and the parties presented the following evidence:

Scott Smith testified that he had been employed by the Hickman County Sheriff’s

Department for five years. He recalled an investigation of a homicide that took place on

October 18, 2010. He testified that he filled out an affidavit in support of a search warrant

for the Defendant’s residence and that he signed it on October 18, 2010.

Officer Smith testified about the sequence of events surrounding his procurement of

the search warrant, which he later executed on the Defendant’s residence. On October 18,

2010, Officer Smith left the Defendant’s residence on Nine Mile Ridge Road and drove the

six or seven miles back to the Hickman County Justice Center. Once there, he prepared the

Affidavit in his office and then e-mailed it to District Attorney Kim Helper, who reviewed

it and approved it. Officer Smith then met with the Magistrate, and they reviewed the

Affidavit together. After finding probable cause, the Magistrate “signed the search warrant

itself” at 11:53 p.m. on October 18, 2010. Officer Smith acknowledged that “another date

was listed on the warrant,” October 19, 2010, for which he gave the following explanation:

[T]here might have been a short discussion in between the time that [the

Magistrate] issued it and then she signed it, and what order she signed it I

don’t remember, so she may have issued it on the 18 . There might have been

th

a short conversation. It might have become [midnight on] the 19 and then she

th

signed it.

Officer Smith stated that “it was so close to midnight . . . when we signed the [warrant] that

it could have been the 19 and [the Magistrate’s] time piece could have been off by several

th

minutes.” He reiterated that his swearing of the affidavit and the Magistrate’s signing of the

search warrant “all took place” within a few minutes before or after midnight of October 19,

2010.

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Officer Smith testified that, “immediately following the signing of the search

warrant,” he called the officers at the Defendant’s residence and told them to immediately

execute the search warrant. As a result of the search of the Defendant’s residence, a box of

“Fiocchi” pistol bullets was recovered. During the execution of the search warrant,

investigators observed a shotgun inside the Defendant’s residence. Officer Smith explained

that, because a pistol had been recovered from the Defendant, investigators “didn’t believe

that the shotgun was part of the case so [they] left it in the residence.” Tennessee Bureau of

Investigation (“TBI”) agents obtained a search warrant waiver from the Defendant and later

retrieved the shotgun from the Defendant’s sister. Officer Smith explained:

Later when we were interviewing witnesses that were passing by the

[Defendant’s] residence they stated – one of the witnesses, I believe, stated

that they saw a shotgun on [the Defendant’s] shoulder so that’s when we

realized that the shotgun might be a part of this case and that’s when the . . .

waiver was prepared and we collected it from [the Defendant’s] sister . . . .

Officer Smith testified that investigators did not go back inside the Defendant’s home after

the initial search on October 19, 2010.

On cross-examination, Officer Smith testified that the “confusion” over the date on

the search warrant could be explained by the fact that the Magistrate signed it close to

midnight. He also stated that the Magistrate might have written down the wrong date.

Officer Smith testified that the box of bullets seized from the Defendant’s residence

was not a “complete box” and had bullets missing from the box. Officer Smith stated that

no “suicide notes or threatening notes” were found during the search of the residence but

that, the following day, the Defendant’s sister was on the news and “held up a suicide note”

that “had been taken out of the [Defendant’s] house prior to the officers’ arrival . . . .”

Officer Smith asked the Defendant’s sister for the shotgun and gave her a receipt to indicate

that police had possession of the weapon. He reiterated that he did not retrieve the shotgun

from the Defendant’s house.

On redirect-examination, Officer Smith clarified that the search warrant was not

executed on the Defendant’s house until after the Magistrate signed it. Officer Smith made

the telephone call to the officers at the scene sometime after 11:53 p.m. on October 18, 2010.

He stated that the discrepancy in the date on the affidavit and the search warrant could have

been caused by his wrist watch reading earlier than the Magistrate’s. Officer Smith stated

that there was no doubt that the reading and signing of the warrant occurred before the

telephone call to the officers at the scene.

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After recounting the evidence presented at the suppression hearing, the trial court

made the following findings as to the erroneously listed dates on the search warrant and in

support of denial of the Defendant’s motion:

I do find that in the four corners of the search warrant that there is

probable cause to engage the search, but the real issue is the issuance question

under the [Tennessee Rules of Criminal Procedure], and [defense counsel] is

absolutely right in that the courts hold strictly that [] those rules must be

applied very strictly.

. . . .

. . . I do find that this is a procedural issue in that [T.C.A. §] 40-6-108

makes it very clear that the evidence will not be suppressed because of a

technical violation of [Tenn. R. Crim. P. 41] as long as its not a violation of

the Constitution of the United States or the Constitution of Tennessee.

So I do find that this is a procedural issue under the issuance question

. . . whether [the warrant was issued on] the 19 or the 18 . I do find that it’s

th th

a procedural issue in that [§] 40-6-108 under the Exclusionary Rule Reform

Act allows for the admittance of the evidence.

So I do find that the motion to suppress the evidence from the search

warrant should be denied, and it’s mainly because of [§] 40-6-108 . . . .

B. Trial

At the Defendant’s trial, the following evidence was presented: Belinda Conley

testified that she was the mother of one of the victims, Ms. Hopkins, and she had known the

Defendant for about a year leading up to the crimes. She testified that she was initially not

aware of a relationship between Ms. Hopkins and the Defendant but later learned that they

had been dating and living together for a little over a year. She said they lived on Nine Mile

Ridge Road on a portion of the unpaved road. Ms. Conley stated that they did not have

neighbors living close to them.

Ms. Conley testified that Ms. Hopkins had three children. Ms. Conley recalled that,

the day before the shooting, Ms. Hopkins’s daughter was injured in a four-wheeling accident

and taken to the emergency room by Ms. Hopkins’s friend, Mr. Kennedy. Ms. Conley waited

for Ms. Hopkins, Mr. Kennedy, and her daughter to return from the hospital, and while she

waited, the Defendant arrived at her house. He took a shower at her house because the

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Defendant and Ms. Hopkins did not have running water at their house. After the Defendant’s

shower, Ms. Hopkins and her daughter arrived home from the hospital and the Defendant

appeared to be “upset” with Ms. Hopkins. He left, and several hours later Ms. Hopkins left

with Mr. Kennedy.

Ms. Conley testified that, on the following day, October 18, 2010, the Defendant

called her several times looking for Ms. Hopkins and asking when she was going to pick up

her things from the Defendant’s house. Ms. Conley stated that she told the Defendant that

Ms. Hopkins would be coming to his house around 6:30 p.m., when Mr. Kennedy finished

work for the day. At approximately 7:10 p.m. the same evening, the Defendant called Ms.

Conley and said, “They’re all dead,” and “I’m sorry.”

Demetria Wilson testified that she was a dispatcher for Hickman County on October

18, 2010, and that she received a call about a shooting that day. A man called and said that,

“three people had come into his house and that he shot them. He said that one was dead and

he wasn’t sure about the other two.” The man identified himself as the Defendant and told

her that he lived on Nine Mile Ridge Road. Ms. Wilson recalled giving instructions to the

Defendant during the telephone call, but the Defendant did not have a reaction to her

instructions, like “he was [] in his own little world.”

The Defendant’s 911 call was played for the jury. On cross-examination, Ms. Wilson

agreed that another telephone call came in reporting the shooting while she was on the call

with the Defendant. She stated that she dispatched emergency assistance to the location the

Defendant provided.

Jody Simmons testified that he worked for the Hickman County Sheriff’s Department

and responded to a call at a house on Nine Mile Ridge Road on October 18, 2010. The house

was in a rural area, so Officer Simmons was escorted to the scene by the Defendant’s sister.

When he arrived at the house, Officer Simmons observed a black Dodge truck on the side

of the road with its doors open. He also observed “some bodies lying on the ground in the

yard.” Officer Simmons identified photographs of the scene, including one of the

Defendant’s trailer. Officer Simmons testified that the Defendant was standing on the porch

of his trailer with a handgun. Officer Simmons notified dispatch that the Defendant had a

gun and then exited his police vehicle but remained behind his driver’s side door for

protection. He then ordered the Defendant to drop his weapon. The Defendant began

walking toward him saying, “I’m not going to prison.” Officer Simmons responded, “Let’s

talk about it, just drop the gun.” Officer Simmons stated that, as the Defendant walked

toward him, he felt fearful but was trying to take control of the situation without firing his

weapon.

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Officer Simmons testified that Deputy Ricky Harness arrived at the scene and both

officers continued to give verbal commands for the Defendant to drop his weapon. Officer

Simmons unsuccessfully attempted to shoot the Defendant with a taser. A third officer,

Johnny Davis, arrived at the scene and joined the other officers in trying to disarm the

Defendant. Officer Simmons testified that it was a matter of minutes from the time he

arrived at the scene to when Officer Davis arrived. As all three officers were commanding

the Defendant to put down his weapon, the Defendant knelt down on his knees and made a

comment about “going back in the house[.]” As the Defendant stood up, “his handgun went

like in a forward motion” toward the officers. Officer Davis then shot the Defendant in the

right arm. Officer Simmons also shot the Defendant three times in the chest or stomach area.

After being shot, the Defendant fell onto his back, and, at that point, “his sister [got] the

handgun.” Deputy Harness and Officer Davis took the gun from her.

Emergency medical personnel transported the victim who was alive to the hospital,

and the other two deceased victims were left at the scene. Other detectives and TBI agents

arrived after the scene had been secured.

Deputy Ricky Harness testified that he worked for the Hickman County Sheriff’s

Department and that he responded to a call at around 7:30 p.m. on October 18, 2010, on Nine

Mile Ridge Road. When he arrived at the scene, he saw Officer Simmons giving verbal

commands to the Defendant. He stated that the Defendant had a handgun in his right hand

and that Officer Simmons tried to taser the Defendant. The Defendant was “pacing back and

forth” as the officers were giving him commands, and he walked within twelve to fifteen feet

from them with his weapon. Deputy Harness was “afraid [the Defendant] was going to shoot

[them] . . . .”

Deputy Harness remembered the Defendant saying, “I killed them,” and, when

commanded to put his handgun down, he responded, “I’m not putting it down.” He recalled

seeing the Defendant raise his weapon, and Deputy Harness told Officer Davis to “take a

shot.” He stated that Officer Davis shot the Defendant in the arm, and Officer Simmons shot

the Defendant three times. All of Officer Simmons’s shots hit the Defendant and then his

sister ran over and grabbed the Defendant’s gun. Deputy Harness helped to secure the scene

until other officers arrived.

On cross-examination, Deputy Harness testified that the Defendant was standing on

his front porch with a gun in his hand when Deputy Harness arrived. He agreed that the

Defendant never fired a shot.

Johnny Davis testified that he worked for the Hickman County Sheriff’s Department

and responded to an incident on Nine Mile Ridge Road on October 18, 2010, at

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approximately 7:30 p.m. He testified that he was familiar with the Defendant because he had

once returned a pistol to the Defendant that had been stolen from the Defendant’s home.

Officer Davis stated that when he arrived at the scene he first encountered a woman

who was yelling at him. He stated that Officer Simmons and Deputy Harness were standing

facing the Defendant and that the Defendant was kneeling down in the driveway. Officer

Davis described the scene as follows:

When I walked up I was hollering at [the Defendant], telling him to

drop the weapon. I hollered all the way from the car up to where he was at,

telling him, “John, drop the weapon, drop the weapon.” I [] couldn’t tell you

how many times I told him, several. And when I walked up I kept directing

him to drop the weapon and he wouldn’t drop it. And I finally asked him, I

said, “John, don’t you remember me?” And he said, “Yes, sir.” And he said,

“You’re the man who brought me this weapon and you’re the man that’s going

to have to kill me with it.” And at that time, he stood up and took about two

steps back and he started up with the weapon and I shot him right in the hand

– right in the arm there.

Officer Davis stated that the Defendant dropped his weapon and then attempted to pick it up

again, and then Officer Simmons shot him three times. Officer Davis identified a photograph

of the Defendant’s weapon, a Colt .380 pistol. He turned the weapon over to TBI agents

when they arrived at the scene.

Tony Essary testified that he worked as a paramedic for the Hickman County

Ambulance Service and that he was working the night of October 18, 2010. He was called

to the scene of this incident and arrived at about 7:45 p.m. Mr. Essary stated that he attended

to the victims, two males and one female, all lying in the yard or the road outside the

Defendant’s house. He checked for signs of life on the first male victim and found none, so

he confirmed the victim’s death. The female victim did not show any signs of life. He then

helped his co-workers treat the other male victim who had a gunshot wound under his right

arm into the side of his chest. He stated that this victim was conscious and told the

paramedics that he could not move his legs.

Dr. Bridget Eutenier testified that she worked for Medical Management Services, the

county medical examiner’s office for Davidson County. Dr. Eutenier testified as an expert

in the fields of forensic pathology and autopsy. She testified that her office performed an

autopsy on Johnny Luster in October 2010 but that she herself did not perform the autopsy.

Dr. Eutenier testified that she had reviewed the autopsy reports and that Mr. Luster’s cause

of death was a gunshot wound to the torso. She identified the bullet removed from Mr.

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Luster’s body.

Dr. Eutenier testified that her office also conducted an autopsy on Ms. Hopkins’s

body. She stated that Ms. Hopkins’s cause of death was two gunshot wounds to the torso.

One of the bullets went into Ms. Hopkins’s spine. Dr. Eutenier identified two bullets that

were recovered from Ms. Hopkins’s body. She stated that the manner of death was homicide.

On cross-examination, Dr. Eutenier testified that Mr. Luster had a blood alcohol level

of 1.84 grams per deciliter.

Scott Smith testified that he was the chief deputy of the Hickman County Sheriff’s

Department and was called to an incident on Nine Mile Ridge Road on October 18, 2010.

Deputy Smith stated that, when he arrived at the crime scene on October 18, the ambulance

was leaving with the victim who was alive and the two deceased victims’ bodies remained

at the scene. Deputy Smith searched the Defendant’s property for evidence and collected a

pistol from Officer Davis. Pursuant to a search warrant, bullets were seized from the

Defendant’s residence. Deputy Smith testified that the bullets were .380 caliber. Deputy

Smith identified shell casings found in the Defendant’s yard, as well as a photograph of a

bullet hole in Mr. Kennedy’s Dodge truck and additional items belonging to the victims

found at the scene.

Deputy Smith confirmed that a double barrel shotgun was found inside the

Defendant’s residence when the search warrant was executed. He stated that, because the

Defendant had been seen by the police holding a pistol, and no one had mentioned anything

about a shotgun, investigators did not think the shotgun was involved in the crime. Deputy

Smith stated that the shell casings found in the yard matched the pistol used during the crime.

Later, through witness statements, investigators learned that the Defendant had been seen

with a shotgun leading up to the crime, so the shotgun was recovered from the Defendant’s

sister. Deputy Smith reiterated that four .380 caliber shell casings were recovered from the

Defendant’s yard. He confirmed that this was the same caliber of the pistol Office Davis and

Officer Simmons recovered from the Defendant.

Mike Cox testified that he was a special agent assigned to the TBI Criminal

Intelligence Unit in Nashville. He stated that he was assigned to Hickman County in October

of 2010 and that he was called out to Nine Mile Ridge Road at 9:15 p.m. on October 18, in

response to the shooting. He testified that two simultaneous investigations of the scene were

being conducted: one of the homicide and one of the officers involved in shooting the

Defendant. Special Agent Vance Jack was assigned to investigate the officers’ shooting the

Defendant, and Special Agent Cox was assigned to investigate the homicide. Agent Cox’s

investigation included the entirety of the Defendant’s front yard.

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Special Agent Cox testified that he interviewed the Defendant and that Special Agent

Jack was also present. The interview took place at Vanderbilt University Medical Center on

October 21, 2010. The agents read Miranda warnings to the Defendant inside his hospital

room. An audio recording of the Defendant’s interview was played for the jury. In the

recording, the Defendant acknowledged that he waived his rights. The Defendant stated that

the morning of October 18, he was working on his truck with his brother-in-law. He stated

that he had Ms. Hopkins’s daughter there, and she left to ride a four-wheeler. When Ms.

Hopkins’s daughter did not return, the Defendant called Ms. Hopkins, who told him that she

was with her daughter at the hospital because the daughter had been in an accident on the

four-wheeler in “Honda Hills.” The Defendant said that he knew this was a lie. Ms. Hopkins

told the Defendant to “set all of her stuff” outside of his house because she was going to

“move back in” with Mr. Kennedy. The Defendant told Ms. Hopkins to come pick up her

stuff, but she “wanted to wait til dark” to come get it. When Ms. Hopkins came with Mr.

Kennedy to pick up her things, the Defendant was in his front yard with a gun. Mr. Kennedy

“got cussin,” and, when he reached for the Defendant, the Defendant shot him. The

Defendant stated that the gun he was carrying was a .380 pistol. He said that the shotgun was

inside the house. Ms. Hopkins and Mr. Luster were behind Mr. Kennedy, and the Defendant

“panicked” and shot them too. He stated that he “didn’t shoot to kill” either of them and that

he felt bad they had died. He stated that he shot Mr. Kennedy “point blank.” The Defendant

said he thought he was shooting Ms. Hopkins and Mr. Luster in the leg but that he could not

tell where he was shooting them because it was dark. After the Defendant shot the victims,

he ran back to his house.

The Defendant stated that he had taken three Loritab pills that day and had drunk

several beers throughout the day. He agreed that he was not drunk or intoxicated. He also

stated that he takes three Xanax per day because he is “nervous.” The Defendant stated that

he had been diagnosed with mental health conditions in the 1980’s but could not remember

his doctor’s name.

The Defendant stated that after the shooting he called his sister and told her that the

victims had “jumped on [him]” and that he did not know what to do. He told his sister that

the victims were dead. The Defendant also called Ms. Conley and told her what had

happened. He also called 911 and told them he had “some people in the yard.” The

Defendant stated that when the police arrived, he wanted to die. He agreed that he refused

to drop the gun but stated that he did not point his gun at police. He was holding the gun and

facing the police when they shot him. The Defendant stated that everything went blank after

he was shot. He agreed that he was holding the gun in his right hand when the police shot

his right arm. The Defendant also agreed that the police commanded him to drop his gun.

He agreed that he recognized Officer Davis in his yard commanding him to drop his gun.

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The Defendant stated that he had never seen Mr. Kennedy before the shooting, and

he had seen Mr. Luster once. The Defendant stated that he would sign a waiver allowing the

police to get the shotgun from his sister. He stated that he had “no problem” with the police

getting the shotgun.

The Defendant stated that the victims did not have a weapon but that their physical

presence threatened him. The Defendant stated that one of the victims said he would “cut”

the Defendant, and the Defendant said he would shoot the victim. He stated that a

pocketknife found near his house belonged to him.

Dan Royse testified that he worked for the TBI and was admitted as an expert in the

field of ballistics and firearm identification. Agent Royse identified a .380 automatic bullet

magazine, a .380 “auto semi-automatic pistol,” and “three fired .380 auto bullets” that were

submitted to him by Deputy Smith for analysis in connection with this case. Agent Royse

testified that through TBI ballistics testing procedures he was able to determine that the

bullets had been fired from the .380 caliber pistol.

Agent Royse identified the clothing worn by Mr. Luster on which he performed a

“muzzle-to-garment distance determination.” He testified that he examined Mr. Luster’s

clothing for gunpowder and lead residues, which, if present on the clothing, would indicate

the distance of the firearm from the article of clothing. He testified that the bullet hole in Mr.

Luster’s shirt did not have “nitrates, . . . a product of burned . . . gunpowder.” Agent Royse

stated that he did not find the presence of lead vapor on Mr. Luster’s shirt either. He stated

that typically those chemicals would be present on the clothing if a firearm had been

discharged within a five-foot range.

Agent Royse testified that he performed the same test on Ms. Hopkins’s pants. A

bullet hole in the waistband of the pants did not reveal any nitrates present or other chemicals

consistent with a weapon being fired at close range. Agent Rouse also tested Mr. Kennedy’s

shirt which had two bullet holes in it. Agent Royse did not find any evidence of gunpowder

on Mr. Kennedy’s shirt that would be “expected” if the gun had been fired within five feet

of Mr. Kennedy.

James Kennedy, the surviving victim in this case, testified that he lived in Maury

County, Tennessee, on the Hickman County line. He stated that in October 2010, he had

been working at Moody’s Tire and Auto Service in Franklin, Tennessee, for three months.

Mr. Kennedy testified that he knew Ms. Hopkins and that they had dated when they

were teenagers. He stated that they were “friends with benefits” in the time leading up to

October 18, 2010. He agreed that this meant he was in a sexual relationship with Ms.

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Hopkins. Mr. Kennedy testified that Ms. Hopkins was living “on Nine Mile Ridge Road,”

but stated that she stayed with Mr. Kennedy for about a week in the month leading up to

October 18, 2010. After she stayed with Mr. Kennedy, Ms. Hopkins “moved back in” with

the Defendant.

Mr. Kennedy testified that, in an area near his home called “Honda Hills,” people

would often ride their four-wheelers and trucks around through the mud. He stated that he,

Ms. Hopkins, and Ms. Hopkins’s daughter went to Honda Hills on October 17, 2010, and

1

Ms. Hopkins’s daughter fell off a four-wheeler and broke her wrist. Mr. Kennedy took her

to the hospital and then dropped her off at Ms. Conley’s house. Mr. Kennedy stated that the

Defendant was at Ms. Conley’s house when he dropped off Ms. Hopkins’s daughter there.

They did not “have bad words,” and the Defendant thanked Mr. Kennedy for bringing Ms.

Hopkins’s daughter home. Mr. Kennedy testified that the Defendant and Ms. Hopkins

started talking, and the Defendant “got mad” and left. Mr. Kennedy and Ms. Hopkins then

left Ms. Conley’s house and stayed overnight at Mr. Kennedy’s house.

Mr. Kennedy testified that he went to work at about 5:30 a.m. on October 18, 2010,

and Ms. Hopkins stayed at his house. He stated that he saw his co-worker, Mr. Luster, at

work that day. Mr. Kennedy stated he worked until noon on October 18 and that Mr. Luster

was still working when he left. Mr. Kennedy drove home and picked up Ms. Hopkins, and

they went to Columbia, Tennessee. When Mr. Kennedy and Ms. Hopkins returned to Mr.

Kennedy’s house that evening around 6:00 p.m., Mr. Luster was waiting for them. After

about twenty minutes, Mr. Kennedy, Mr. Luster, and Ms. Hopkins left to get Ms. Hopkins’s

belongings from the Defendant’s house. Mr. Kennedy stated that he had not had any alcohol

to drink that day and that Mr. Luster was drinking a beer when he got into Mr. Kennedy’s

truck.

Mr. Kennedy drove to the Defendant’s house on Nine Mile Ridge Road, parked his

truck in the driveway, and he got out of the driver’s side door. Mr. Luster got out of the

passenger’s side door, and Ms. Hopkins stayed in the truck. Both men walked to the rear of

the truck next to the tailgate. Mr. Kennedy retrieved a bucket of Ms. Hopkins’s belongings

from “the bank” of the driveway and placed it in the bed of his truck. At some point while

loading Ms. Hopkins’s belongings into his truck, Mr. Kennedy noticed the Defendant and

that he had a “rifle on his shoulder and a pistol in his hand.” Mr. Kennedy shouted, “He got

a gun,” and then “I heard a bunch of shots and that was it; I was on the ground.” Mr.

Kennedy was standing on the back of his truck and was shot under his right arm. He fell

Mr. Kennedy testified that the injured child was Ms. Hopkins’s niece, however, Ms. Conley testified that it

1

was Ms. Hopkins’s daughter. For the purposes of consistency, we will refer to the child as Ms. Hopkins’s daughter

throughout the opinion.

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onto the ground by the driver’s side of his truck. Mr. Kennedy pulled himself up off the

ground and screamed Mr. Luster’s name. He saw Ms. Hopkins lying in the seat of his truck

before he fell back to the ground. Mr. Kennedy said he could not feel his legs.

Mr. Kennedy testified that, while he was on the ground, the Defendant walked over

to him and put the shotgun up to Mr. Kennedy’s head and told him to “get up.” Mr. Kennedy

replied that he couldn’t get up, and the Defendant told him to move to the front of the truck,

Mr. Kennedy complied and then laid down again on his back. Mr. Kennedy heard Ms.

Hopkins repeatedly tell the Defendant not to touch her. Mr. Kennedy stated:

And I guess [the Defendant] drug her out of the truck, because I heard

a thump hit the ground, and I raised up and looked. . . . At the time she was

rolled over the other way; she was on her back. Rolled over, she looked at me,

and she said, “I’m sorry.” And that was it, that’s all I heard from her.

. . . .

And then [the Defendant] went back around the side of the truck, went

to his house and he got on the phone, and I heard him calling the police,

calling the ambulance, whatever,saying that he justshot three people, that they

need to send somebody quick.

Mr. Kennedy “begged for [his] life” saying, “Look, please don’t kill me . . . . I got two kids.”

At that point Mr. Kennedy passed out.

Mr. Kennedy testified that he was paralyzed from the waist down as a result of his

injuries. He stated that the bullet could not be removed from his body because of the risk of

further paralysis, so the bullet remained in his spine. He stated that he did not threaten the

Defendant on the night of October 18, 2010, and he did not have any weapons with him. He

stated that neither Mr. Luster nor Ms. Hopkins were carrying a weapon that night.

On cross-examination, Mr. Kennedy testified the Defendant was not wearing glasses

at the time of the shooting. He stated that he heard the Defendant say to Ms. Hopkins,

“Please don’t die on me.”

Billy Hannah testified that he was the Defendant’s brother-in-law and that he got a

telephone call at 7:00 p.m. on October 18, 2010, about an incident at the Defendant’s home.

Mr. Hannah testified that the police did not know how to get to the residence, so he and his

wife, the Defendant’s sister, escorted them to the residence. When they arrived at the

Defendant’s home, Mr. Hannah and his wife got out of their vehicle to talk to the Defendant.

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The Defendant was standing on his porch, and, as police officers arrived at the scene, Ms.

Hannah tried to convince the Defendant to put down his gun. At some point, the police

officers shot the Defendant several times, and Ms. Hannah picked up his gun. Mr. Hannah

stated that the Defendant was “very upset” when they arrived at his house. After the

Defendant stepped off of his porch, he made a statement about his gun having one bullet in

it and that he “planned on using it on himself[.]”

On cross-examination, Mr. Hannah agreed that the police officers repeatedly told the

Defendant to drop his gun, and he would not comply but kept walking closer to the officers.

Mary Hannah, the Defendant’s sister, testified that she partially raised the Defendant

and that he was a “good child.” She stated that the Defendant had always been healthy but

that he was having problems “with his head,” which she described as “nervous problems.”

She stated that he lost his job and could not pay his bills. He became depressed and was put

on medication for depression. Ms. Hannah stated that the Defendant’s doctor told her that

the antidepressant medication had “done something to his brain.” Ms. Hannah testified that

the Defendant could not see well and that he could not afford glasses.

Ms. Hannah testified that the Defendant called her on October 18, 2010. By the tone

in his voice, Ms. Hannah could tell the Defendant was scared, so she and her husband went

over to his house on Nine Mile Ridge Road. They first met with the police at the end of the

road and showed them how to get to the Defendant’s home. When Ms. Hannah pulled into

the Defendant’s driveway, he came out of his house with a gun to his head. Ms. Hannah tried

to grab the gun away from the Defendant by pulling on his arm. The Defendant pushed her

away and stepped off the porch toward the officers in the yard. Ms. Hannah put herself

between the Defendant and the officers and remained there. She stated that she saw the

officers shoot the Defendant. Ms. Hannah then picked up the gun, and an officer took it from

her.

On cross-examination, Ms. Hannah agreed thatshe went to the Defendant’s house and

got the shotgun.

Casey Clemmons testified by video deposition. She stated that on October 18, 2010,

she was driving down Nine Mile Ridge Road on her way to work at around 6:00 or 7:00 p.m.

She recalled passing the Defendant’s house and seeing some “stuff” piled up next to the road

and “a guy” in the Defendant’s yard. She agreed that she later gave a statement to Officer

Smith about what she had seen and that her statement was more accurate than her testimony

because of the amount of time that had passed since that day. She agreed that, in her

statement, she said that two white males were standing in the Defendant’s yard and that one

of the men was “yelling at the older white male[.]”

13
Based on this evidence, the jury convicted the Defendant of two counts of first degree

premeditated murder, one count of attempted first degree premeditated murder, and three

counts of aggravated assault.

A sentencing hearing was held, during which the following evidence was presented:

Evelyn Phelps testified that she was Mr. Luster’s mother and that he was thirty-two years old

when he died. She stated that Mr. Luster had a nine-year-old son, who since his death, asked

about his dad everyday and cried everyday about his father’s death. Mr. Luster’s son had

been attending grief counseling. Ms. Phelps said that her son’s death had taken a toll on her

family.

Rebecca Barnett testified that she was a mitigation specialist working on the defense

team representing the Defendant. Ms. Barnett testified to the Defendant’s childhood and

family background. She stated that the Defendant was married and tried to commit suicide

when he and his wife divorced in 1985. She stated that the Defendant was “a nervous

person” with issues of depression. Ms. Barnett testified that the Defendant’s son had died

in a four-wheeling accident. He was married a second time for seventeen years, and his next

long-term relationship was with Ms. Hopkins. Ms. Barnett testified that, while in prison

awaiting trial, the Defendant was given a psychiatric evaluation and was diagnosed with

major depressive disorder with psychotic features.

Ms. Barnett testified that the Defendant had several physical health problems,

including heart murmurs and abnormal EKG’s. She also stated that he had neurological

issues that had not been diagnosed.

Based upon this evidence, the jury sentenced the Defendant to life imprisonment

without the possibility of parole for both the first degree murder convictions. The trial court

imposed a consecutive sentence of twenty-five years for his attempted first degree murder

conviction and concurrent six-year sentences for each of the three aggravated assault

convictions. It is from these judgments that the Defendant now appeals.

II. Analysis

On appeal, the Defendant asserts that the trial court erred when it denied his motion

to suppress the evidence seized as the result of the invalid search warrant. He further

contends that the evidence is insufficient to support his convictions for first degree

premeditated murder and attempted first degree premeditated murder. Lastly, he contends

that the evidence was insufficient for the jury to impose sentences of life without the

possibility of parole.

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A. Motion to Suppress

The Defendant contends that the trial court erred when it denied his motion to

suppress the box of bullets recovered from his residence and the shotgun recovered from his

sister. He contends that search warrant executed on his residence failed to “strictly comply”

with Rule 41(c) of the Tennessee Rules of Criminal Procedure because the search warrant

listed two dates, October 18 and October 19, 2010. The Defendant argues that this error

“renders the warrant itself invalid.” The State responds that the requirements of Rule 41(c)

were met and the “extraneously listed dates” contained in the warrant “do not cause the

warrant to be fatally deficient or outside the technical requirements of 41(c).” The State

further contends that “any error in the introduction of the box of [bullets] and shotgun

constitutes harmless error as the overwhelming amount of evidence against the [D]efendant

in this matter made the introduction of the Fiocchi [box of bullets] and shotgun minor

evidentiary pieces.”

Our standard of review for a trial court’s findings of fact and conclusions of law on

a motion to suppress evidence is set forth in State v. Odom, 928 S.W.2d 18 (Tenn. 1996).

Under this standard, “a trial court’s findings of fact in a suppression hearing will be upheld

unless the evidence preponderates otherwise.” Id. at 23. As is customary, “the prevailing

party in the trial court is afforded the ‘strongest legitimate view of the evidence and all

reasonable and legitimate inferences that may be drawn from that evidence.’” State v.

Carter, 16 S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith, 978 S.W.2d 861, 864

(Tenn. 1998)). Nevertheless, this Court reviews de novo the trial court’s application of the

law to the facts, without according any presumption of correctness to those conclusions. See

State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v. Crutcher, 989 S.W.2d 295, 299

(Tenn. 1999).

Tennessee Rule of Criminal Procedure 41(c) imposes “procedural safeguards [which]

are intended ‘to secure the citizens against carelessness and abuse in the issuance and

execution of search warrants.’” State v. Coffee, 54 S.W.3d 231, 233 (Tenn. 2001) (quoting

Talley v. State, 345 S.W.2d 867, 869 (1961)). Rule 41(c)(3) of the Tennessee Rules of

Criminal Procedure states as follows:

(3) Content. If the magistrate is satisfied that there is probable cause to believe

that grounds for the application exist, the magistrate shall issue a warrant as

follows:

(A) The warrant shall, as the case may be, identify the property

or place to be searched, or name or describe the person to be

searched; the warrant also shall name or describe the property or

15
person to be seized.

(B) The search warrant shall command the law enforcement

officer to search promptly the person or place named and to

seize the specified property or person.

(C) The search warrant shall be directed to and served by:

(i) the sheriff or any deputy sheriff of the county

where the warrant is issued; or

(ii) any constable or any other law enforcement

officer with authority in the county.

(D) The magistrate shall endorse on the search warrant the hour,

date, and name of the officer to whom the warrant was delivered

for execution.

This Court has held that the requirement in Rule 41 “that the date and time of issuance

shall be endorsed implicitly means that the correct date and time shall be endorsed.” State

v. Hayes, 337 S.W.3d 235, 256 (Tenn. Crim. App. 2010) (emphasis in original). In Hayes,

the search warrant given to the defendant indicated that it had been issued at 10:35 p.m.,

however, the copy kept by the judge who signed it indicated 10:35 a.m. Id. at 252-53. This

Court concluded that the discrepancy on the face of the warrant and its copy violated the

“integral purpose of Rule 41,” “to ensure that a search warrant is first issued, then executed.”

Id. at 256. Because the search warrant failed to indicate the “correct date and time of

issuance,” it “failed to comply with the requirements of Rule 41” and thus, the trial court’s

denial of the defendant’s motion to suppress was reversed on appeal. Id.

In the present case, the affidavit lists one date, October 18, 2010, and the search

warrant lists two dates, October 18, 2010, 11:53 p.m., and October 19, 2010. In accordance

with this Court’s holding in Hayes that Tennessee Rule of Criminal Procedure 41 requires that

“the correct date and time shall be endorsed,” we conclude that the correct date and time were

in fact endorsed on the warrant as October 18, 2010, at 11:53 p.m. We agree with the State

that the date October 19, 2010, also appears on the warrant but was rendered “extraneous and

inapplicable” when the magistrate stated on the warrant that the document was “Issued on

Oct. 18, 2010.”

We also recognize that Tennessee Code Annotated section 40-6-108 (2014), the

Exclusionary Rule Reform Act enacted on July 1, 2011, explicitly statesthat an “unintentional

clerical error” of this nature, made by a police officer or issuing magistrate, does not require

16
the suppression of evidence seized as a result of executing the search warrant containing the

error. See T.C.A. § 40-6-108 (a), (c)(1). However, this Court has held that the Act and its

procedural changes to Rule 41 “should not be applied retroactively to validate [a] warrant.”

State v. Joshua Hayes, No. M2012-01768-CCA-R3-CD, 2013 WL 3378320, at *5 (Tenn.

Crim. App., July 1, 2013). The search warrant in this case was executed in 2010, making the

Act inapplicable to the evidence seized during the search.

Further, we agree with the State’s contention that the evidence in this case is

overwhelmingly sufficient to support the Defendant’s convictions irrespective of the bullets

seized from the Defendant’s home pursuant to the search warrant. We address the sufficiency

of the evidence presented in the next section of this opinion. As such, we conclude that even

if the trial court had erred in denying the Defendant’s motion to suppress the evidence seized

pursuant to the search warrant, the error would have been harmless beyond a reasonable

doubt. See Tenn. R. App. P. 36(b).

As to the Defendant’s argument that the shotgun procured by the police from the

Defendant’s sister should have been suppressed, we agree with the State that the Defendant

“voluntarily agreed to have the shotgun taken into evidence” when he signed a “TBI

Constitutional Rights to a Search Waiver,” and, thus, its seizure was not a violation of the

Defendant’s constitutional rights. See State v. Ingram, 331 S.W.3d 746, 760 (Tenn. 2011)

(stating that an “exception to the warrant requirement is that a law enforcement officer may

search a person’s residence without a warrant if the officer obtains the person’s consent)

(citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)). The Defendant is not entitled

to relief on this issue.

B. Sufficiency of the Evidence

The Defendant contends that the evidence was insufficient for a rational jury to find

beyond a reasonable doubt that he was guilty of two counts of first degree premeditated

murder and one count of attempted first degree premeditated murder. He argues that his

actions were justified and that the State failed to prove that he did not act in self-defense. The

State responds that the evidence is sufficient to sustain his convictions. We agree with the

State.

When an accused challenges the sufficiency of the evidence, this Court’s standard of

review is whether, after considering the evidence in the light most favorable to the State, “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 (1979); see Tenn. R. App. P. 13(e); State v.

Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d 247, 276 (Tenn.

2002)). This standard applies to findings of guilt based upon direct evidence, circumstantial

17
evidence, or a combination of both direct and circumstantial evidence. State v. Pendergrass,

13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999) (citing State v. Dykes, 803 S.W.2d 250, 253

(Tenn. Crim. App. 1990)). In the absence of direct evidence, a criminal offense may be

established exclusively by circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241

(Tenn. 1973). “The jury decides the weight to be given to circumstantial evidence, and ‘[t]he

inferences to be drawn from such evidence, and the extent to which the circumstances are

consistent with guilt and inconsistent with innocence, are questions primarily for the jury.’”

State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting Marable v. State, 313 S.W.2d 451,

457 (Tenn. 1958)). “The standard of review [for sufficiency of the evidence] ‘is the same

whether the conviction is based upon direct or circumstantial evidence.’” State v. Dorantes,

331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.

2009)).

In determining the sufficiency of the evidence, this Court should not re-weigh or

reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).

Nor may this Court substitute its inferences for those drawn by the trier of fact from the

evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) (citing Liakas v. State, 286

S.W.2d 856, 859 (Tenn. 1956)). “Questions concerning 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.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). “A

guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses

for the State and resolves all conflicts in favor of the theory of the State.” State v. Cabbage,

571 S.W.2d 832, 835 (Tenn. 1978), superseded by statute on other grounds as stated in State

v. Barone, 852 S.W.2d 216, 218 (Tenn.1993)) (quotations omitted). The Tennessee Supreme

Court stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and

the jury see the witnesses face to face, hear their testimony and observe their

demeanor on the stand. Thus the trial judge and jury are the primary

instrumentality of justice to determine the weight and credibility to be given to

the testimony of witnesses. In the trial forum alone is there human atmosphere

and the totality of the evidence cannot be reproduced with a written record in

this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523,

527 (Tenn. 1963)). This Court must afford the State of Tennessee the “‘strongest legitimate

view of the evidence’” contained in the record, as well as “‘all reasonable and legitimate

inferences’” that may be drawn from the evidence. Goodwin, 143 S.W.3d at 775 (quoting

State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of guilt against a

defendant removes the presumption of innocence and raises a presumption of guilt, the

18
convicted criminal defendant bears the burden of showing that the evidence was legally

insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn.

2000) (citations omitted).

First degree premeditated murder is defined as a “premeditated and intentional killing

of another.” T.C.A. § 39-13-202(a)(1) (2014). Premeditation refers to “an act done after the

exercise of reflection and judgment.” T.C.A. § 39-13-202(d) (2014). Whether the defendant

premeditated the killing is for the jury to decide, and the jury may look at the circumstances

of the killing to decide that issue. Bland, 958 S.W.2d at 660. The Tennessee Code states that,

while “the intent to kill must have been formed prior to the act itself,” that purpose need not

“preexist in the mind of the accused for any definite period of time” for a defendant to have

premeditated the killing. T.C.A. § 39-13-202(d) (2014). Criminal attempt is defined at

Tennessee Code Annotated section 39-12-101, which provides in pertinent part that: (a) A

person commits criminal attempt who, acting with the kind of culpability otherwise required

for the offense: (1) Intentionally engages in action or causes a result that would constitute an

offense, if the circumstances surrounding the conduct were as the person believes them to be;

(2) Acts 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; or (3) Acts 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. T.C.A. § 39-12-101

(2014).

The following factors have been accepted as actions that demonstrate the existence of

premeditation: the use of a deadly weapon upon an unarmed victim, the particular cruelty of

the killing, declarations by the defendant of an intent to kill, evidence of procurement of a

weapon, preparations before the killing for concealment of the crime, and calmness

immediately after the killing. State v. Pike, 978 S.W.2d 904, 915 (Tenn.1998); Bland, 958

S.W.2d at 660. In addition, a jury may consider destruction or secretion of evidence of the

murder and “the planning activities by the [defendant] prior to the killing, the [defendant’s]

prior relationship with the victim, and the nature of the killing.” State v. Nichols, 24 S.W.3d

297, 302 (Tenn. 2000); State v. Halake, 102 S.W.3d 661, 668 (Tenn. Crim. App. 2001) (citing

State v. Gentry, 881 S.W.2d 1, 4-5 (Tenn. Crim. App. 1993)). Also, “[e]stablishment of a

motive for the killing is a factor from which the jury may infer premeditation.” State v.

Leach, 148 S.W.3d 42, 54 (Tenn. 2004).

The evidence, considered in the light most favorable to the State, shows that Mr.

Kennedy, Mr. Luster, and Ms. Hopkins drove to the Defendant’s home on October 18, 2010,

and when they arrived, the Defendant came outside into his yard with a gun. Mr. Kennedy

stated that neither he nor Mr. Luster were carrying a weapon. Ms. Hopkins remained inside

19
the vehicle while Mr. Luster and Mr. Kennedy got out of the vehicle to load her things.

Moments later, the Defendant fired shots at all three victims. Ms. Hopkins and Mr. Luster

died from their injuries, and Mr. Kennedy was paralyzed from the waist down as a result of

a gunshot wound to his spine. After the shooting, the Defendant called Ms. Hopkins’s mother

and 911 and told them that he had shot three people. Police officers arrived at the

Defendant’s home and found him standing in his front yard with a .380 caliber pistol in his

hand. TBI testing confirmed that the .380 caliber bullets removed from Ms. Hopkins’s and

Mr. Luster’s bodies were fired from the Defendant’s pistol. Of the factors that this Court has

acknowledged as tending to prove premeditation, at least two are present here: none of the

victims were armed when the Defendant shot them; and, following the shootings, the

Defendant exhibited a state of calmness when he called his sister and the police and reported

the killings. This evidence is sufficient for a jury to conclude beyond a reasonable doubt that

the Defendant was guilty of the first degree premeditated murders of Ms. Hopkins and Mr.

Luster and the attempted first degree premeditated murder of Mr. Kennedy.

The Defendant argues that the evidence showed he acted in self-defense, and thus his

actions in shooting the three victims were justified. Tennessee’s self-defense statute,

Tennessee Code Annotated section 39-11-611, provides as follows:

[A] person who is not engaged in unlawful activity and is in a place where the

person has a right to be has no duty to retreat before threatening or using force

intended or likely to cause death or serious bodily injury, if:

(A) The person has a reasonable belief that there is an imminent danger of

death or serious bodily injury;

(B) The danger creating the belief of imminent death or serious bodily injury

is real, or honestly believed to be real at the time; and

(C) The belief of danger is founded upon reasonable grounds.

T.C.A. § 39-11-611(b)(2) (2014). The trial court instructed the jury on the issue of selfdefense. It is well-settled that whether an individual acted in self-defense is a factual

determination to be made by the jury as the sole trier of fact.” State v. Ivy, 868 S.W.2d 724,

727 (Tenn. Crim .App.1993). It is within a jury’s prerogative to reject a claim of self-defense.

State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997).

By its verdict, the jury rejected the Defendant’s claim that he acted in self-defense.

The jury could have based this rejection on the fact that none of the victims were in

possession of a weapon, and, by all accounts, the Defendant was in possession of at least one,

20
if not two. The lack of gunpowder on the victims’ clothes indicated that they were shot from

a distance of greater than five feet and from that fact, the jury could have concluded that the

Defendant and the victims were not in a close-range altercation that required the Defendant

to protect himself. We will not disturb the jury’s factual finding that the Defendant did not

have a reasonable belief that his force was immediately necessary to protect himself. The

Defendant is not entitled to relief on this issue.

C. Sentencing

The Defendant lastly contends that the evidence was “insufficient as a matter of law

for the jury to impose a life sentence without the possibility of parole.” He states that the

mitigating circumstances, that he was “gainfully employed and [had] avoid[ed] legal trouble

for nearly . . . his entire adult life,” as well as his anxiety and depression, “overwhelmingly

outweighed” the aggravating factor submitted by the State, 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.” T.C.A. § 39-13-204(i)(3) (2014). The State responds that the

evidence supports the jury’s imposition of the sentence and that the mitigating factors

presented by the Defendant did not outweigh the aggravating circumstance. We agree with

the State.

Tennessee Code Annotated section 39-13-207 states:

(a) In any first degree murder case in which the state does not seek the death

penalty, but is seeking imprisonment for life without possibility of parole as the

maximum punishment, should the jury find the defendant guilty of first degree

murder, the jury shall fix the punishment in a separate sentencing proceeding,

to determine whether the defendant shall be sentenced to imprisonment for life

without possibility of parole or imprisonment for life. The sentencing

proceeding shall be conducted in accordance with § 39-13-204, excluding

references to the death penalty.

(b) If the jury unanimously determines that no statutory aggravating

circumstance or circumstances have been proven by the state beyond a

reasonable doubt, as set forth in § 39-13-204(i), the jury shall return its verdict

to the judge on the form described in § 39-13-204(f)(1), and the court shall

sentence the defendant to imprisonment for life.

(c) If the jury unanimously determines that the state has proven beyond a

reasonable doubt one (1) or more of the statutory aggravating circumstances set

forth in § 39-13-204(i), the jury shall, in its considered discretion, sentence the

21
defendant either to imprisonment for life without possibility of parole or to

imprisonment for life.

T.C.A. § 39-13-207(a)-(c) (2014).

In support of mitigation, the Defendant offered evidence that he had suffered anxiety

and depression from the death of his son, the loss of his job, as well has two divorces. A

mitigation specialist testified that the Defendant had undergone a psychiatric evaluation and

had been diagnosed with major depressive disorder with psychotic features during his pretrial

incarceration.

At the conclusion of the sentencing hearing, the jury found aggravating factor (3), 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[,]” applicable to the Defendant and sentenced

him to life without the possibility of parole. T.C.A. § 39-13-204(i)(3) (2014). Tennessee

Code Annotated section 39-13-207(g) directs that on appeal “[t]he court of criminal appeals

shall first consider any errors assigned and then the court shall review the appropriateness of

the [Defendant’s] sentence. A sentence of imprisonment for life without possibility of parole

shall be considered appropriate if the state proved beyond a reasonable doubt at least one (1)

statutory aggravating circumstance contained in § 39-13-204(i), and the sentence was not

otherwise imposed arbitrarily, so as to constitute a gross abuse of the jury’s discretion.”

T.C.A. § 39-13-207(g) (2014). “When considering whether an aggravating circumstance was

proved, the relevant question for an appellate court is whether, after reviewing the evidence

in the light most favorable to the State, any rational trier of fact could have found the

existence of the aggravating circumstance beyond a reasonable doubt. State v. Gaston, No.

W2001-02046-CCA-R3-CD, 2003 WL 261941, at *16 (Tenn. Crim. App., at Jackson, Feb.

7, 2003) (citing State v. Nesbit, 978 S.W.2d 872, 887 (Tenn. 1998)), perm. app. denied (Tenn.

Sept. 2, 2003); State v. Cazes, 875 S.W.2d 253 (Tenn. 1994)).

We have reviewed the evidence and conclude that there was sufficient evidence to

support the jury finding beyond a reasonable doubt that proof of the aggravating circumstance

existed. The jury found beyond a reasonable doubt that the aggravating factor at section 39-

13-204(i)(3), that “[t]he defendant knowingly created a great risk of death to two (2) or more

persons, other than the victim murdered, during the act of murder[,]” was applicable in this

case, and sentenced the Defendant to life without the possibility of parole. See T.C.A. § 39-

13-204(i)(3). During the act of murdering Mr. Luster, the Defendant knowingly created a risk

of death to Ms. Hopkins and Mr. Kennedy. During the act of murdering Ms. Hopkins, the

Defendant knowingly created a risk of death to Mr. Luster and Mr. Kennedy. Although Mr.

Luster may have been shot first, and ultimately died from his wounds, the jury could have

concluded from Dr. Eutenier’s testimony that Mr. Luster was still alive when the Defendant

22
was shooting Ms. Hopkins, thus exposing Mr. Luster to a great risk of death by the

Defendant’s actions in shooting Ms. Hopkins. Further, the Defendant’s actions in shooting

Ms. Hopkins and Mr. Kennedy certainly prevented either of them from rendering aid to Mr.

Luster, who was bleeding to death from a gunshot wound to his abdomen. All three victims

were generally in the “line of fire” of the shots fired by the Defendant during these crimes,

and all three victims were at great risk of death during the entire incident, in which both Mr.

Luster and Ms. Hopkins were murdered. The Defendant is not entitled to relief.

III. Conclusion

In accordance with the aforementioned reasoning and authorities, we affirm the

judgments of the trial court.

____________________________________

ROBERT W. WEDEMEYER, JUDGE

23