IN THE SUPREME COURT OF TENNESSEE

June 3, 2021 Session1

STATE OF TENNESSEE v. URSHAWN ERIC MILLER

Automatic Appeal from the Court of Criminal Appeals

Circuit Court for Madison County

No. 16-435 Donald H. Allen, Judge

___________________________________

No. W2019-00197-SC-DDT-DD

___________________________________

A Madison County jury convicted the defendant, Urshawn Eric Miller, of first-degree 

premeditated murder and first-degree felony murder for fatally shooting a convenience 

store employee during an attempted robbery of the store. The jury also convicted the 

defendant of the attempted second-degree murder of another store employee and of 

attempted especially aggravated robbery, aggravated assault, employing a firearm during 

the commission of a dangerous felony, evading arrest, and resisting arrest. The jury 

imposed the death penalty for the first-degree murder convictions. The trial court merged 

the felony murder conviction into the premeditated murder conviction and the aggravated 

assault conviction into the attempted second-degree murder conviction, and it imposed an 

effective thirty-year sentence for the remaining convictions to run concurrently with the

death sentence. The Court of Criminal Appeals affirmed the convictions and sentences but 

vacated the application of the felony murder aggravating circumstance as to the felony 

murder conviction. Upon our automatic review, we conclude: (1) the trial court properly 

ruled on challenges to certain jurors for cause during individual voir dire; (2) the evidence 

was sufficient to establish the defendant’s identity as the perpetrator and his guilt of the 

convicted offenses; (3) the trial court did not abuse its discretion by allowing the State to 

introduce a video recording of the defendant’s prior aggravated robbery during the penalty 

phase; (4) the death penalty generally, and lethal injection specifically, do not constitute 

cruel and unusual punishment; and (5) the death sentence satisfies our mandatory review 

pursuant to Tennessee Code Annotated section 39-13-206. Accordingly, we affirm the 

defendant’s convictions and sentence of death; however, we reverse the portion of the 

intermediate court’s judgment vacating the application of the felony murder aggravating 

circumstance. 

Tenn. Code Ann. § 39-13-206(a)(1) (2018) Appeal; Judgment of the

Court of Criminal Appeals Affirmed in Part, Reversed in Part

 

1 We heard oral argument through videoconference under this Court’s emergency orders restricting court 

proceedings because of the COVID-19 pandemic.

12/07/2021
2

ROGER A. PAGE, C.J., delivered the opinion of the Court, in which JEFFREY S. BIVINS, and 

HOLLY KIRBY, JJ., joined. SHARON G. LEE, J., filed a separate opinion concurring in part 

and dissenting in part. CORNELIA A. CLARK, J., not participating.

2

Jeremy B. Epperson, District Public Defender (on appeal); George Morton Googe,3 District 

Public Defender, and Gregory D. Gookin, Assistant District Public Defender (at trial and 

on appeal), Jackson, Tennessee, for the appellant, Urshawn Eric Miller. 

Herbert H. Slatery III, Attorney General and Reporter; Andrée Sophia Blumstein, Solicitor 

General; Nicholas W. Spangler, Senior Assistant Attorney General; Jody Pickens, District 

Attorney General; and Shaun A. Brown and Al Earls, Assistant District Attorneys General, 

for the appellee, State of Tennessee.

OPINION

I. FACTUAL & PROCEDURAL BACKGROUND

On November 25, 2015, a man wearing black clothing, gray gloves, and a white 

face covering entered the Bull Market in Jackson, Tennessee. The man pointed a gun at 

the twenty-four-year-old clerk, Ahmad Dhalai, and instructed him to “Drop that sh*t off or 

I’ma shoot you dead in the head.” The man looked briefly in the direction of another 

employee, Lawrence Austin, before turning back to Mr. Dhalai stating, “Drop that sh*t 

off.” The man fired an initial shot that barely missed Mr. Dhalai’s head. As Mr. Dhalai 

slowly turned to walk away, the man again demanded, “Drop that sh*t off. Quit playing.”

The man then shot Mr. Dhalai in the back of the head. Next, he fired a shot in the direction 

of Mr. Austin and jumped over the counter. He banged on the cash register with his elbow 

to no avail before jumping back over the counter and fleeing the store. Mr. Dhalai died 

moments later. The entire encounter was captured on the store’s surveillance cameras.

The defendant, Urshawn Eric Miller, was charged with first-degree murder, firstdegree murder in perpetration of attempted especially aggravated robbery, attempted 

especially aggravated robbery, attempted first-degree murder, aggravated assault, 

employing a firearm in the attempt to commit a dangerous felony, being a convicted felon 

in possession of a handgun, resisting arrest, and evading arrest. The trial began on February 

26, 2018. 

 

2 Sadly, our honored colleague and friend Justice Clark passed away on September 24, 2021. 

3 George M. Googe retired as the District Public Defender while this appeal was pending. He was replaced 

by Jeremy Epperson, who represented the defendant at oral argument before this Court. 
3

At trial, Mr. Austin testified that he worked at the Bull Market cleaning up, 

restocking, and doing other tasks as needed. He was mopping on the night of November 

25, 2015, when he remembered a man entering the store. He explained that the man was 

wearing dark clothing, had “something on his face,” and that he “believe[d] the person was 

black.” He heard the man say, “Drop it off.” Still, Mr. Austin was not concerned until he 

heard a gunshot. He moved toward one of the store’s refrigerators to attempt to hide 

himself. The masked man pointed the gun at Mr. Austin and fired. Mr. Austin then 

witnessed the man jump over the counter before fleeing the store. He briefly chased after 

the man but did not see which direction the man ran.

In addition to Mr. Austin, the brief encounter was witnessed by Abdul Saleh, the 

victim’s cousin, who was also working that evening and whose brother owned the market. 

Mr. Saleh was in the rear of the store in the restroom when he heard what he described as 

a “loud pop” followed by two more “pops.” As he proceeded to the front of the store, Mr. 

Saleh saw Mr. Dhalai on the floor with blood around his head and observed the man 

standing in front of the cash register. Fearing he could also be shot, Mr. Saleh retreated to 

the office until the man left the market. Mr. Saleh attempted to render aid to Mr. Dhalai 

and called 911. 

Mr. Saleh’s fourteen-year-old son, Foad, was riding his bicycle in the parking lot 

when he heard two or three gunshots. He witnessed “a black man who was coming outside 

and out the store.” He testified that the man he saw leaving the market was dressed in a 

black hoodie and black pants and was wearing a white mask. Foad Saleh gave the police a 

description of the man and the direction the man fled. 

Timothy Sinclair, Sr., a regular customer, testified that he had just left the market 

with his purchases. While loading his purchases in his truck, he saw a black male wearing 

dark-colored clothing, a hoodie, and something white across his face coming around the 

side of the market. Just as the man entered the store, Mr. Sinclair saw a gun in the man’s

hand. Mr. Sinclair explained that he stood frozen and, a few seconds later, heard shots fired 

inside the store. He quickly got in his truck and started to back out of the parking lot when 

he saw the man run out of the store and around the side of the building. Mr. Sinclair then

called 911. 

Officer Kevin Livingston arrived on the scene within two minutes. At the “chaotic” 

scene, Officer Livingston observed Mr. Saleh behind the counter applying pressure to Mr. 

Dhalai’s head which had a “pretty massive exit wound” with “blood, brain matter on the 

floor.” Mr. Dhalai made shallow “gurgling” sounds but did not have a pulse. Lieutenant

Shane Beaver also arrived quickly and secured the scene. After learning of the suspect’s 

description and direction of travel, Lieutenant Beaver directed the approximately twenty 

officers in the area to set up a perimeter and deployed K-9 Officer Jeremy Stines.
4

Officer Stines and his dog, Pax, tracked the suspect to a wooded area near Lions’

Field at Lambuth University where he was hemmed in by the officers. According to 

Lieutenant Beaver, despite repeated instructions to come out of the woods, the suspect 

resisted and shouted “F*ck you. You’re going to have to come in here and get me” and 

“You might get me, but I’m going to take one of your mother f*ckers with me.” Because 

the suspect refused to surrender, Officer Stines released Pax in an attempt to force the 

suspect out of the woods. Pax bit the suspect on the shoulder and they both tumbled to the 

ground. Officer Stines hit the suspect in the head with his gun when he refused to release 

his hands from around the dog’s throat. Officer Kyle Hamilton ultimately used his taser to 

subdue the suspect. The suspect, later identified as the defendant, was handcuffed and 

placed in a patrol car where he was transported initially to the hospital for treatment of the 

dog bite and then to the jail.

The officers who remained on the scene searched the immediate area and recovered 

various items including a black jacket with a hood, black pants, a belt, gray gloves, a 

portion of a white t-shirt, a cell phone, a .38 caliber revolver, and keys. Investigator Marvin 

Rodish, Jr. viewed the revolver and recovered three spent shell casings and three live 

rounds from inside the cylinder of the firearm. He later collected three “projectiles,” or 

bullet fragments, from inside the market. 

Investigator Dan Long executed a search warrant at the defendant’s residence. The 

keys previously found near Lions’ Field unlocked the door to the house and the trunk of a

car registered to the defendant that was parked near that house. A portion of a torn white tshirt was collected from the defendant’s bedroom.

Dr. Eric Warren, who was employed by the Tennessee Bureau of Investigation 

(“TBI”) as a Special Agent Forensic Scientist, examined and test fired the .38 special 

revolver found at the scene. He concluded the three spent casings recovered from the 

revolver had been fired from the gun. As for the three “projectiles” collected from the crime 

scene, Dr. Warren explained that they had “class characteristics to indicate that the revolver 

. . . could have fired them.” However, due to the damage, he could not state with certainty 

that the bullet fragments were fired from the revolver. 

TBI Special Agent Charly Castelbuono testified that she found the defendant’s DNA

to be the “major contributor” on the white t-shirt fragment, the inside of the left gray glove, 

the hooded sweatshirt, the black pants, and the revolver.

4

In addition, TBI Special Agent 

Reilly Gray determined that the gray gloves tested positive for gunshot residue, and TBI 

 

4 Special Agent Castelbuono also testified that the t-shirt fragment had a blood stain that matched the 

defendant. This was in addition to the DNA swab of the item. 
5

Special Agent Miranda Gaddes concluded that the t-shirt portion recovered from the woods 

was cut or torn from the t-shirt found in the defendant’s bedroom. 

At the close of the State’s proof, the defendant moved for a judgment of acquittal. 

The trial court denied the motion with the exception of the count of attempted first-degree

murder of Mr. Austin, which the court reduced to attempted second-degree murder upon 

finding that the State had not established premeditation on that count. The defendant chose 

not to testify and presented no evidence. The jury found the defendant guilty of the firstdegree premeditated murder, first-degree felony murder, and attempted especially 

aggravated robbery of Mr. Dhalai, the attempted second-degree murder and aggravated 

assault of Mr. Austin, employment of a firearm during the commission of a dangerous 

felony, evading arrest, and resisting arrest. The State moved to dismiss the felon in 

possession of a firearm offense, and the trial court granted the motion.

As the penalty phase began, the trial court instructed the jury regarding its duty to 

impose punishment for the first-degree murder convictions. The court explained that 

Tennessee law provides three possible punishments for first-degree murder: death, 

imprisonment for life without the possibility of parole, or imprisonment for life.

In its opening remarks, the State advised the jury that it was seeking the death 

penalty based on the (i)(2) (prior violent felony) and (i)(7) (felony murder) statutory 

aggravating circumstances. See Tenn. Code Ann. § 39-13-204(i) (2018 & Supp. 2020)

(listing the statutory aggravating circumstances for imposition of the death penalty or the 

sentence of imprisonment for life without possibility of parole). The State averred that the 

jury had essentially already found the (i)(7) aggravating circumstance by its guilty verdict 

on the felony murder count. Consequently, the State narrowed its proof to the (i)(2) 

aggravating circumstance. To that end, the State presented a certified copy of a May 27, 

2009 judgment of conviction for an aggravated robbery that occurred in Madison County, 

Tennessee, on September 26, 2008, for which the defendant received an eight-year 

sentence. Captain Jeff Fitzgerald of the Madison County Sheriff’s Department testified that 

he investigated the 2008 robbery of the Riverside Express convenience store. He recalled 

that the defendant surrendered and gave a statement admitting his participation in the 

robbery. The State introduced a written statement signed by the defendant admitting to his 

participation in 2008 robbery. 

Alison Deaton testified that she was employed at Riverside Express on September 

26, 2008, when three armed men with face coverings entered the store. The defendant was 

identified as one of the men. According to Ms. Deaton, one of the men demanded, “B*tch, 

give me all your money or I’m going to shoot you in the mother f*cking face.” Ms. Deaton 

complied with the robber’s demand and opened the cash register. A video recording of the 

robbery from the store’s surveillance cameras was admitted into evidence. The video 
6

showed the three men entering the store with guns pointed at Ms. Deaton, jumping over 

the counter, and taking cash from the cash register. 

The State also presented victim impact testimony from Ali Dhalai, the victim’s 

cousin, who served as the family representative.5 Mr. Dhalai said that the victim was from 

a close family with seven brothers and sisters. He explained that the victim worked at the 

Bull Market and studied radiology at the community college. Mr. Dhalai described the 

victim as a hard worker and a “kind, caring, giving person” who loved his family. After 

the victim’s death, Mr. Dhalai learned that the victim had been contributing to various 

charities, including the Red Cross. He said the family remains heartbroken by the loss. 

The defendant opened the mitigation proof with the testimony of Dr. James Walker, 

a psychologist board certified in both neuropsychology and forensic psychology. Dr. 

Walker met with the defendant in jail where he administered a “comprehensive battery of 

psychological tests.” In addition, he reviewed the defendant’s educational, employment, 

and social histories, including interviews of the defendant’s family members. The records 

revealed that the defendant’s mother smoked marijuana heavily when she was pregnant 

with the defendant. The defendant was initially abandoned by his father, and his mother 

had a succession of abusive boyfriends and husbands. One of the father figures tortured the 

defendant by instructing him to pour alcohol on his penis. His mother often referred to the 

defendant as “dumb” or “stupid.” As a result, he was often in the care of his alcoholic 

grandmother who also mistreated him. 

Dr. Walker testified that the defendant had an intelligence quotient (“IQ”) of 78 at 

age eight and 85 at age twelve according to the records he reviewed. When tested by Dr. 

Walker in January 2017, the defendant had an IQ of 86, which meant that he functioned 

“somewhere around the 18th percentile . . . as compared to the average person.” The 

defendant also scored very poorly on several other tests performed by Dr. Walker, notably 

those scoring his memory and ability to focus. The defendant dropped out of school in the 

tenth grade and had a limited employment history, working briefly in a warehouse and as 

a fast food cook. The defendant smoked excessive amounts of marijuana for many years. 

A number of the defendant’s family members also have problems with chronic substance 

abuse, and some of his close family members are incarcerated for committing violent 

crimes. The defendant was shot in the back when he was a teen. He also spent several years 

 

5 The trial court conducted a jury-out preview of Mr. Dhalai’s testimony and ruled that the State could 

present the same testimony in the presence of the jury. See State v. Nesbit, 978 S.W.2d 872, 891 (Tenn.

1998) (“To enable the trial court to adequately supervise the admission of victim impact proof, we conclude 

that the State must notify the trial court of its intent to produce victim impact evidence. Upon receiving 

notification, the trial court must hold a hearing outside the presence of the jury to determine the admissibility 

of the evidence.”). 
7

in prison. Based on this genetic background, Dr. Walker said the defendant was 

predisposed to getting involved in these kinds of problems. He diagnosed the defendant 

with several psychiatric conditions including cognitive disorders, cannabis use disorder, 

post-traumatic stress disorder (“PTSD”), and antisocial personality disorder.

The defense also called Dr. Keith Caruso, who is board certified in general and 

forensic psychiatry. Dr. Caruso interviewed the defendant, conducted a joint interview with 

the defendant’s mother, and interviewed two of the defendant’s aunts. Dr. Caruso also 

reviewed police records, mental health records, legal records, photos, videos, and medical 

records, along with psychological reports and mitigation memoranda. Like Dr. Walker, Dr. 

Caruso placed significance on the defendant’s unstable childhood, abuse, and neglect. He 

also noted that the defendant had Attention Deficit Hyperactivity Disorder (“ADHD”) as a 

child, and he agreed that the defendant had a genetic predisposition to antisocial personality 

disorder, substance abuse disorder, and fit the diagnosis for PTSD. Dr. Caruso admitted, 

however, that the defendant appreciated the wrongfulness of his conduct, and he agreed the 

defendant developed a plan to rob the market and made the choice to kill someone. 

In rebuttal, the State called Dr. Kimberly Brown, a forensic psychologist who serves 

as an associate professor of clinical psychiatry and director of the forensic evaluation team 

at Vanderbilt University Medical Center. Dr. Brown interviewed the defendant at the jail 

and conducted a telephone interview with the defendant’s mother. She reviewed extensive 

documents, videos, photos, and the expert reports of Drs. Walker and Caruso. Dr. Brown 

noted the defendant’s disadvantaged childhood, including abuse and neglect at the hands 

of his mother and father figures as well as the significant family history of substance abuse. 

She acknowledged a connection between marijuana exposure in the womb and ADHD and 

low IQ in the child. As to the defendant’s IQ of 86, Dr. Brown disagreed that the defendant 

had borderline intellectual functioning. In her view, the defendant was considered “lowaverage,” which she described as “pretty typical for a criminal defendant.” Dr. Brown 

agreed that the defendant had antisocial personality disorder, cannabis use disorder, and a 

history of ADHD. Despite the defendant’s exposure to several significant traumas, Dr. 

Brown disagreed that the defendant met the criteria to be diagnosed with PTSD. 

The trial court gave the jury additional penalty phase instructions including how the 

jury should consider the statutory aggravating and mitigating circumstances in its 

determination of punishment. The jury imposed a sentence of death for both the first-degree

premeditated murder and first-degree felony murder convictions. It found that the State had 

proven the two aggravating circumstances beyond a reasonable doubt, and the aggravating 

circumstances outweighed the mitigating circumstances beyond a reasonable doubt. The 

trial court merged Count 2 (felony murder) into Count 1 (premeditated murder). At a 

subsequent sentencing hearing, the trial court imposed an effective sentence of thirty years 

for the remaining convictions to run concurrently with the sentence of death. 
8

The Court of Criminal Appeals affirmed the convictions and sentences. State v. 

Miller, No. W2019-00197-CCA-R3-DD, 2020 WL 5626227, at *24 (Tenn. Crim. App. 

Sept. 18, 2020). However, as discussed below, the intermediate court vacated the 

application of the (i)(7) aggravating circumstance to the felony murder conviction. Id. at 

*21. The Court of Criminal Appeals also remanded the case to the trial court to correct a 

clerical error in the judgment for Count 8, resisting arrest. Id. at *24. This appeal followed. 

II. ANALYSIS

A. Jury Selection

In three related issues, the defendant complains that the trial court erred by either 

removing or failing to remove prospective jurors for cause during individual voir dire based 

on their views on the death penalty. The underlying contention is that these rulings by the 

trial court denied the defendant his right under the United States and Tennessee 

Constitutions to an impartial jury.6 U.S. Const. amend VI (“In all criminal prosecutions, 

the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . .); 

Tenn. Const. art. I, § 9 (“That in all criminal prosecutions, the accused hath the right to . . 

. a speedy public trial, by an impartial jury . . . .). In our legal system, impartiality of the 

jury venire is assessed during the voir dire process. See State v. Sexton, 368 S.W.3d 371, 

395 (Tenn. 2012). Voir dire in a capital case is unique in that the jury ultimately seated will 

initially be tasked with determining the defendant’s guilt or innocence during a guilt phase. 

See State v. Thomas, 158 S.W.3d 361, 390 (Tenn. 2005). If the jury finds the defendant 

guilty of first-degree murder, the same jury will determine in a separate penalty phase 

whether his punishment should be imprisonment for life, imprisonment for life without the 

possibility of parole, or death. Tenn. Code Ann. § 39-13-204(a) (“Upon a trial for first

degree murder, should the jury find the defendant guilty . . . it shall not fix punishment as 

part of the verdict, but the jury shall fix the punishment in a separate sentencing hearing . . 

. . The separate sentencing hearing shall be conducted as soon as practicable before the 

same jury that determined guilt . . . .”). Due to this potential penalty phase, the impartiality 

of potential jurors with respect to punishment must be assessed during the singular voir 

dire process. 

This questioning of the venire regarding punishment, commonly known as “death 

qualification,” see, e.g., Lockhart v. McCree, 476 U.S. 162, 167 (1986), is routinely 

conducted during individual voir dire.

7 To be “death qualified” under our current law, a 

 

6 Generally speaking, an “impartial jury” consists of jurors who will “conscientiously apply the law and 

find the facts.” See Wainwright v. Witt, 469 U.S. 412, 423 (1985). 

7 We note that there is no requirement that death qualification be conducted by individual voir dire. State v. 
9

potential juror must possess the ability to consider all three forms of punishment. See, e.g.,

Sexton, 368 S.W.3d at 390. Often guided by responses provided in jury questionnaires, the 

parties attempt to ascertain the potential jurors’ views on punishment with the focus on the 

death penalty. Based on a juror’s collective responses, a party may move to challenge the 

potential juror for cause. See Tenn. R. Crim. P. 24(c)(1). A party may use peremptory 

challenges8to strike a juror who was not excused for cause. See Tenn. R. Crim. P. 24(e). 

A capital defendant “has the right to an impartial jury drawn from a venire that has not 

been tilted in favor of capital punishment by selective prosecutorial challenges for cause.”

Uttecht v. Brown, 551 U.S. 1, 9 (2007) (citing Witherspoon v. Illinois, 391 U.S. 510, 521 

(1968)). On the other hand, “the State has a strong interest in having jurors who are able to 

apply capital punishment within the framework state law prescribes.” Id. (citing 

Wainwright v. Witt, 469 U.S. 412, 416 (1985)). 

In Wainwright v. Witt, the United States Supreme Court adopted a standard to be 

utilized when a potential juror is challenged for cause based on his or her views on the 

death penalty: The trial court must determine whether the potential juror’s views would 

“prevent or substantially impair the performance of his duties as juror in accordance with 

his instructions and his oath.” Wainwright, 469 U.S. at 424 (quoting Adams v. Texas, 448 

U.S. 38, 45 (1980)). This standard, which we refer to as the “Wainwright standard,”9 does 

not require that a juror’s bias be proven with “unmistakable clarity.” See id. at 424-25

(recognizing that some in the venire simply cannot be asked enough questions to establish 

their bias on the “printed record”). In certain instances, a potential juror may be excused 

for cause when the trial judge is left with the “definite impression” based on the juror’s 

demeanor that he or she would be unable to follow the law. Id. at 426. 

We will also take this opportunity to clarify the standard of review that our appellate 

courts should employ when reviewing a trial court’s decision concerning a juror under the 

Wainwright standard. The Wainwright court determined that a reviewing federal court must 

 

Austin, 87 S.W.3d 447, 471 (Tenn. 2002) (adding that it is within the trial court’s discretion to allow 

individual voir dire of prospective jurors).

8

In a capital case, each defendant is allowed fifteen peremptory challenges, and the State is entitled to

fifteen peremptory challenges per defendant. If the trial court elects to seat alternate jurors, “[f]or each 

additional juror selected pursuant to Rule 24(f), each side is entitled to one peremptory challenge for each 

defendant. Such additional peremptory challenges may be used against any regular or additional juror.” 

Tenn. R. Crim. P. 24(e)(4). 

9 This standard is also referred to as the Witherspoon-Witt Rule. The Wainwright court clarified the earlier 

standard announced in Witherspoon v. Illinois, 391 U.S. 510 (1968), in which the Court held that “the State 

infringes a capital defendant’s right under the Sixth and Fourteenth Amendments to trial by an impartial 

jury when it excuses for cause all of those members of the venire who express conscientious objections to 

capital punishment.” Wainwright, 469 U.S. at 416. 
10

accord the factual findings of the state trial court a presumption of correctness under the 

federal habeas corpus statute because these findings are “based upon determinations of 

demeanor and credibility that are peculiarly within a trial judge’s province.” Id. at 428 

(citing Patton v. Yount, 467 U.S. 1025, 1038 (1984)).10 Following that decision, this Court, 

in State v. Alley, “th[ought] it appropriate to adopt the same standard of review prescribed 

in Wainwright,” and stated that “the trial court’s finding of bias of a juror because of his 

views of capital punishment shall be accorded a presumption of correctness and the burden 

shall rest upon the appellant to establish by convincing evidence that that determination 

was erroneous.” State v. Alley, 776 S.W.2d 506, 518 (Tenn. 1989); see also State v. 

Schmeiderer, 319 S.W.3d 607, 633 (Tenn. 2010); State v. Reid, 213 S.W.3d 792, 835-36

(Tenn. 2006); State v. Thomas, 158 S.W.3d 361, 378 (Tenn. 2005); State v. Austin, 87 

S.W.3d 447, 473 (Tenn. 2002). However, upon review of relevant case law, it appears that 

some courts of this state have applied an abuse of discretion standard without referencing 

the Alley standard.11 See, e.g., State v. Howell, 868 S.W.2d 238, 249 (Tenn. 1993). And 

still others have applied the abuse of discretion standard in conjunction with the Alley 

standard. See, e.g., Sexton, 368 S.W.3d at 392-95 (citing State v. Hugueley, 185 S.W.3d 

356, 390 (Tenn. 2006) (appexdix); State v. Kilburn, 782 S.W.2d 199, 203 (Tenn. Crim. 

App. 1989)). We believe that abuse of discretion is the appropriate standard of review of a 

trial court’s decision concerning a juror’s “death qualification.” 12 To the extent the 

standard from Alley can be interpreted inconsistently with our decision today, we want to 

be clear that the abuse of discretion standard shall be used in this context moving forward. 

Trial judges base their decisions on a full view of the potential jurors’ responses to 

questions during voir dire, including the jurors’ facial expressions, degree of candor, and 

overall demeanor. A trial judge’s decision as to a challenge for cause should be reversed 

 

10 The United States Supreme Court reaffirmed this federal standard of review in Uttecht. 551 U.S. at 9-10 

(adding that “[d]eference to the trial court is appropriate because it is in a position to assess the demeanor 

of the venire, and of the individuals who compose it, a factor of critical importance in assessing the attitude 

and qualifications of potential jurors”). Further, the “presumption” language contained in the federal habeas 

corpus statute has been moved to section 2254(e)(1), which provides in pertinent part that “a determination 

of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden 

of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. §2254(e)(1). 

11 While the defendant did not directly raise this issue on appeal, we note that the defendant’s brief cited 

“abuse of discretion” as the standard of review without reference to the Alley standard. In contrast, the State 

referenced both the Alley standard and “abuse of discretion” in its brief on appeal. 

12 We note that many non-capital cases mention the abuse of discretion standard when reviewing juror 

challenges for cause. See, e.g., State v. Leonard, No. M2016-00269-CCA-R3-CD, 2017 WL 1455093, at 

*9 (Tenn. Crim. App. Apr. 24, 2017) (citing Hugueley, 185 S.W.3d at 378), perm. app. denied, (Tenn. Aug. 

16, 2017); State v. Hill, No. W2012-00733-CCA-R3-CD, 2013 WL 501753, at *13 (Tenn. Crim. App. Feb. 

11, 2013) (citing Schmeiderer, 319 S.W.3d at 625). 
11

only when the judge abuses his or her discretion—a standard that appellate courts are very 

familiar with in criminal cases. “A court abuses its discretion when it causes an injustice 

to the party challenging the decision by (1) applying an incorrect legal standard, (2) 

reaching an illogical or unreasonable decision, or (3) basing its decision on a clearly 

erroneous assessment of the evidence.” Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 

(Tenn. 2010). In State v. McCaleb, this Court

emphasize[d] that the abuse of discretion standard of review does not permit 

an appellate court to substitute its judgment for that of the trial court. State v. 

Harbison, 539 S.W.3d 149, 159 (Tenn. 2018). Rather, “[b]ecause, by their 

very nature, discretionary decisions involve a choice among acceptable 

alternatives, reviewing courts will not second-guess a trial court’s exercise 

of its discretion simply because the trial court chose an alternative that the 

appellate courts would not have chosen.” White v. Vanderbilt Univ., 21 

S.W.3d 215, 223 (Tenn. Ct. App. 1999). Accordingly, if the reviewing court 

determines that “reasonable minds can disagree with the propriety of the 

decision,” the decision should be affirmed. Harbison, 539 S.W.3d at 159. 

State v. McCaleb, 582 S.W.3d 179, 186 (Tenn. 2019) (second alteration in original).

Before we examine each of the defendant’s contentions under the Wainwright

standard (through the lens of our abuse of discretion standard of review), it is instructive 

to consider the voir dire process employed by the trial court in this case. Prior to the trial, 

prospective jurors completed an approved jury questionnaire13 that included questions 

regarding the juror’s feelings about the death penalty. One open-ended question, for 

example, simply asked the potential juror to express his or her opinion about the death 

penalty. Another question asked the juror to circle one of seven statements that best 

described the juror’s view on the death penalty, including the extremes of automatically 

voting for the death penalty or never voting for the death penalty. The completed 

questionnaires were provided to counsel for the State and the defendant to allow them to 

prepare for jury selection. As jury selection began, the trial court allowed general 

questioning of the venire. The court then conducted individual voir dire on the issues of 

pretrial publicity and the death penalty. During the death qualification, counsel took turns 

asking each potential juror about his or her questionnaire responses and each juror was 

given an opportunity to elaborate further on his or her feelings about the death penalty. 

When the questioning and any rehabilitation attempts by counsel concluded, the court 

inquired into whether either party desired to challenge the potential juror for cause. The 

 

13 The questionnaires of the jurors who were selected were not included in the record on appeal. The 

defendant filed a motion to supplement the record with the questionnaires of the jurors in question, which 

we denied. The relevant questions and answers were read into the record during individual voir dire, 

allowing this Court to conduct a sufficiently thorough review. 
12

trial court made its ruling on the record for each challenge. 

Defendant’s Challenges for Cause

We first review the defendant’s argument that the trial court erred in failing to 

excuse for cause prospective jurors Robinson, Little, and Graves. The defendant complains 

that as a result of the court’s error, he was forced to use peremptory challenges to strike 

them. We will consider each challenge for cause in turn to determine whether the trial court 

abused its discretion in making its decision under the Wainwright standard. 

Prospective juror Robinson indicated on his jury questionnaire that “we need the 

death penalty in some cases.” He also circled the response, “I believe that the death penalty 

is the appropriate form of punishment in some murder cases. I could return a verdict of 

death if I believed it was warranted in a particular case, depending on the evidence, the 

law, and what I learned about the defendant.” During individual voir dire, Mr. Robinson 

initially stated that, due to the costs associated with keeping a person imprisoned for life, a 

sentence of life without the possibility of parole was not an appropriate punishment. Upon 

further questioning, however, Mr. Robinson indicated he could fairly consider all three 

forms of punishment for first-degree murder. When questioned by defense counsel, Mr. 

Robinson explained that he believed the death penalty was an appropriate punishment for 

a premeditated killing. However, he told the court he did not consider a killing during a 

robbery to be premeditated. In challenging Mr. Robinson for cause, the defendant focused 

on Mr. Robinson’s response that he would impose the death penalty for a premeditated

killing. The trial court denied the defendant’s challenge for cause, having determined Mr. 

Robinson could follow the law and consider all sentencing options. 

The defendant argues that based on Mr. Robinson’s answer, he was inclined to 

impose the death penalty and should have been excused for cause. Indeed, Mr. Robinson 

expressed his belief that the death penalty was the appropriate punishment for a 

premeditated killing. However, he indicated he would not automatically impose the death 

penalty and could fairly consider all three forms of punishment. Viewing Mr. Robinson’s 

responses in their entirety, rather than any single response in isolation, the defendant has 

failed to prove that the trial court abused its discretion in denying his challenge of Mr. 

Robinson for cause. 

Prospective juror Little noted on her questionnaire that she has “no problem with 

[the death penalty]” if a defendant is guilty. She also circled the response, “I believe that 

the death penalty is the appropriate form of punishment in some murder cases. I could 

return a verdict of death if I believed it was warranted in a particular case, depending on 

the evidence, the law, and what I learned about the defendant.” Ms. Little indicated she 

could consider life without parole; however, she did not believe a sentence of life with the 
13

possibility of parole14 was appropriate for “taking a life” unless the person acted in selfdefense. Ms. Little ultimately agreed she could follow the law and consider all three forms 

of punishment. During questioning, Ms. Little indicated she was familiar with the 

prosecutor through her brother who worked as a child support investigator and that her 

husband was a retired police officer. She further informed the court she may have a 

hardship because she cared for her elderly mother, was on pain medication, and had 

difficulty sitting on a wooden bench for long periods of time. Defense counsel challenged 

Ms. Little for cause based on her “heavy ties” to law enforcement and her hardship issues. 

In denying the challenge, the trial court found no evidence that the medication affected Ms. 

Little’s ability to make decisions or that Ms. Little had a significant connection to law 

enforcement. The trial court concluded that Ms. Little could fairly consider all possible 

sentencing options. 

The defendant argues that Ms. Little should have been excused for cause because of 

her familiarity with the prosecutor and her equivocal views on the death penalty. Ms. Little 

disclosed that she knew the prosecutor through her brother who worked as a child support 

investigator. However, neither party elicited responses that revealed any significant 

connection between Ms. Little and the prosecutor or that suggested Ms. Little held a bias 

in favor of the State as a result of this connection. As to punishment, Ms. Little indicated 

the death penalty was an appropriate punishment in some murder cases depending on the 

evidence and what she learned about the defendant. Ms. Little’s only hesitation related to 

the imposition of a life sentence that carried the possibility the defendant could be released 

on parole. Ms. Little’s reluctance was satisfactorily addressed by the trial court, and Ms. 

Little ultimately indicated she could fairly consider all three forms of punishment. The 

defendant has failed to prove the trial court abused its discretion in refusing to excuse Ms. 

Little for cause. 

Prospective juror Graves circled the response on her questionnaire that “[a]lthough 

I do not believe that the death penalty ever ought to be imposed, as long as the law provides 

for it, I could impose it if I believed it was warranted in a particular case, depending on the 

evidence, the law, and what I learned about the defendant.” During individual voir dire she 

retracted her questionnaire response, stating she believed in the death penalty under certain 

circumstances. Ms. Graves said she was “probably” inclined to impose the death penalty 

for premeditated murder but that she would have to “weigh everything that’s presented.” 

 

14 Throughout the trial court proceedings, the court and the parties referred to the statutory punishment of 

“imprisonment for life,” Tennessee Code Annotated section 39-13-202(c)(3), as “life with parole.” The 

Court of Criminal Appeals offered a thorough explanation of the difference between “imprisonment for 

life” and “life imprisonment without possibility of parole,” Tennessee Code Annotated section 39-13-

202(c)(2), and of why “[a]rguably, there is no ‘parole’ from a sentence of imprisonment for life.” Miller, 

2020 WL 5626227, at *12. 
14

Although Ms. Graves did not believe life with the possibility of parole was an appropriate 

punishment, she said she would follow the law and consider all three forms of punishment. 

Ms. Graves indicated she had served on a capital jury in the 1980s but that the jury did not 

return a sentence of death. Aside from the issue of punishment, Ms. Graves said she had 

known the lead prosecutor for years because he attended school with her daughters. 

However, she did not believe the relationship would affect her ability to hear the case. Ms. 

Graves also informed the court that her husband was on insulin and was adjusting to a new 

insulin pump. She expressed concern about her husband’s ability to regulate the pump; 

however, she said her husband promised to adjust the pump in her absence. Finally, Ms. 

Graves informed the court that she occasionally faints at the sight of blood. The defendant 

challenged Ms. Graves for cause based on her responses regarding the death penalty; her 

tendency to faint; and her husband’s health. The trial court denied the motion, finding Ms. 

Graves was qualified to serve and would fairly consider all sentencing options. 

The defendant argues that the trial court erred in refusing to excuse Ms. Graves for 

cause. He complains that the relationship between Ms. Graves and the lead prosecutor was 

“too close” and that Ms. Graves was predisposed to trust him. The defendant argues further 

that, based on her responses, Ms. Graves would be inclined to favor the death penalty. The 

issue of Mr. Graves’ health was not pursued on appeal. Although isolated responses suggest 

Ms. Graves might be inclined to impose the death penalty, Ms. Graves said her decision 

about punishment would depend on the evidence presented. Ultimately, Ms. Graves 

indicated that she would follow the law and consider all three forms of punishment. 

Viewing Ms. Graves’ responses as a whole, the defendant has failed to prove that the trial 

court abused its discretion in denying the defendant’s challenge for cause. 

State’s Challenges for Cause

Next, we consider the defendant’s contention that the trial court erred in granting, 

over his objection, the State’s challenges for cause of prospective jurors Eads, Milhorn, 

and Sesti. He suggests in each instance that when viewing the prospective jurors’ collective 

responses their excusal was not warranted under the Wainwright standard. 

Prospective juror Eads indicated on his questionnaire that he believed the death 

penalty was “fair for the crime” and that he could consider all three forms of punishment 

for first-degree murder. He accidentally circled more than one response to the multiplechoice question about the death penalty because he was confused by the questionnaire. 

During individual voir dire, Mr. Eads clarified that he believed the death penalty should 

never be imposed. He subsequently explained that he did not believe anyone should be put 

to death unless that person killed several people. In his next response, Mr. Eads said he 

would not fairly consider the death penalty as punishment. When defense counsel 

attempted to rehabilitate Mr. Eads, he asked counsel if he was being forced to impose the 
15

death penalty. Mr. Eads said he probably could not impose the death penalty in this case 

because the defendant “did not kill multiple people.” Mr. Eads grew frustrated and said he 

was confused “over the whole thing.” The State challenged Mr. Eads for cause because of 

his inconsistent responses and his inability to fairly consider the death penalty and 

otherwise follow the law. The trial court agreed and excused Mr. Eads for cause over the 

defendant’s objection. 

Prospective juror Milhorn indicated on her questionnaire that she was “[n]ot sure 

about the death penalty or that [she] would want that decision.” She also circled the

response, “I believe that the death penalty is the appropriate form of punishment in some 

murder cases, but I could never return a verdict of death.” When questioned by the State 

during individual voir dire, Ms. Milhorn reluctantly agreed that the death penalty could be 

appropriate in certain circumstances, suggesting she could possibly impose the death 

penalty as part of a jury. However, Ms. Milhorn made it clear that given the choices of life 

and life without parole she would disregard the death penalty. When the trial court 

questioned Ms. Milhorn, she said she could consider the death penalty if the person acted 

“intentionally and was vicious” or “would be a threat to someone else.” The State 

challenged Ms. Milhorn for cause based on her responses. The trial court granted the 

motion based on Ms. Milhorn’s equivocal answers including her response that she would 

not impose the death penalty if there were other options. 

Prospective juror Sesti indicated that she had a hardship with being sequestered 

because her fifteen-year-old son would be home alone without transportation to school or 

tennis practice. When Ms. Sesti spoke to her husband about the questionnaire and 

upcoming trial, her husband responded “don’t get sequestered.” Ms. Sesti said she and her 

husband had not talked about alternative transportation for their son “because we were 

hoping I wouldn’t get picked.” In questionnaire responses about the death penalty, Ms. 

Sesti wrote “I guess it depends on the circumstances. I am not for it or against it.” She also 

circled a response indicating “[a]lthough I do not believe that the death penalty ever ought 

to be imposed, as long as the law provides for it, I could impose it if I believed it was 

warranted in a particular case, depending on the evidence, the law, and what I learned about 

the defendant.” During individual voir dire, Ms. Sesti expressed doubt that she could 

impose the death penalty or put her name on a verdict form imposing death. She added that 

she could “probably not” impose the death penalty because of her religious beliefs. When 

questioned by the trial court, Ms. Sesti repeatedly responded that she did not know if she 

could impose a sentence of death. The State challenged Ms. Sesti for cause because she 

was either “incapable or unwilling” to answer the questions so as to allow the parties to 

assess her ability to serve as a juror. The trial court excused Ms. Sesti for cause because 

the court was not certain Mr. Sesti would be able to vote for the death penalty even if it 

were warranted. 
16

These three prospective jurors share a common opposition to the death penalty. 

Most importantly, however, these prospective jurors expressed sincere doubt as to whether 

they could impose the death penalty as punishment, particularly given other sentencing 

options. The Wainwright standard applies equally to this category of prospective jurors.15

See Uttecht, 551 U.S. at 22. In our review of the collective responses of each of these three 

prospective jurors as summarized above, it is abundantly clear that none of them would 

fairly consider the death penalty. Thus, the record supports the trial court’s determination 

that these jurors could not follow the law. The defendant has failed to prove that the trial 

court abused its discretion in excusing these jurors for cause. 

Exhaustion of Peremptory Challenges

Finally, we consider the defendant’s argument that the trial court erred when it failed 

to excuse juror Crum for cause after the defendant had exhausted all of his peremptory 

challenges. The defendant argues that seating juror Crum resulted in a jury that was not 

fair and impartial. In this posture, the error is grounds for reversal only if an incompetent 

juror is forced upon the defendant. See Ross v. Oklahoma, 487 U.S. 81, 89 (1988); State v. 

Howell, 868 S.W.2d 238, 248 (Tenn. 1993). Accordingly, our inquiry is whether Ms. Crum 

was “incompetent” such that her “forced” presence on the jury deprived the defendant of a 

fair and impartial jury. 

Juror Crum was questioned as a “replacement juror” after the parties exercised

peremptory challenges as to the jurors initially seated. Ms. Crum was present during the 

questioning in open court but, as with the other jurors, the trial court allowed the parties to 

conduct individual voir dire in a separate room. Ms. Crum was reminded of her 

questionnaire response, “I am in favor of the death penalty if no doubt of crime committed.” 

The State explained that Tennessee utilizes a “reasonable doubt . . . not 100 percent” 

standard and asked Ms. Crum if she would require the State to meet this higher burden. 

Ms. Crum simply replied that she would not want to put an innocent person to death. Ms. 

Crum also circled the response, “I believe that the death penalty is the appropriate form of 

punishment in some murder cases and I could return a verdict of death if I believed it was 

warranted in a particular case depending on the evidence, the law and what I learned about 

the defendant.” Ms. Crum said her opinion had not changed since completing the 

questionnaire, adding that she had not heard the evidence. When advised of the three 

possible punishments for first-degree murder, Ms. Crum expressed her reluctance to 

consider a life sentence for a premeditated murder conviction if the defendant could be 

released on parole. Even when informed that life with parole meant the defendant would 

 

15 In clarifying the earlier rule announced in Witherspoon v. Illinois, the Wainwright court noted that even 

the Witherspoon court recognized the State’s legitimate interest in excluding jurors whose opposition to the 

death penalty would not allow them to view the proceedings impartially and whose views would prevent 

them from imposing the death penalty within the framework of the law. Wainwright, 469 U.S. at 416.
17

serve at least 51 years before being eligible for parole, Ms. Crum said she was still “leaning 

more toward” her position that such a person should not be eligible for parole. She again 

indicated that she would have to hear the evidence. When defense counsel asked Ms. Crum 

if she would have trouble seriously considering a life sentence with the possibility of 

parole, Ms. Crum said she would “consider it with the evidence.” When the trial court 

pressed her further, Ms. Crum said she would consider the three options “evenly” 

depending on the evidence. 

As stated above, by this time, the defendant had exhausted his peremptory 

challenges. Defense counsel challenged Ms. Crum for cause based on her inability to fairly 

consider a life sentence. The defense argued Ms. Crum placed the burden on the defendant 

to convince her a life sentence would be appropriate. The State responded that Ms. Crum

indicated on more than one occasion that she would consider all three forms of punishment. 

The trial court agreed and denied the defendant’s motion to excuse her for cause. Ms. Crum 

was seated on the jury. 

We note that the Wainwright standard focuses primarily on challenges for cause 

based on a potential juror’s views on the death penalty. Ms. Crum’s responses clearly 

indicate she could fairly consider the death penalty as a possible punishment for firstdegree murder. Of course, during “death qualification,” a trial court must also be concerned 

with whether a juror’s views on the other two forms of punishment would substantially 

impair her ability to follow her instructions and her oath. Indeed, to be “competent,” a juror 

in this setting must also be able to fairly consider a sentence of imprisonment for life or 

imprisonment for life without the possibility of parole as provided by statute. Ms. Crum 

explicitly indicated she could consider a sentence of life without the possibility of parole. 

The narrow focus here is whether the record establishes that Ms. Crum could consider a 

life sentence, and therefore, competently serve as an impartial juror. 

Without question, many of Ms. Crum’s responses suggest she would have difficulty 

considering a life sentence for a premeditated killing. However, in each instance, Ms. Crum 

repeated that she would have to hear the evidence before making a punishment decision. 

Her “leaning” toward the other two possible punishments is not fatal, however, because 

Ms. Crum told the court that she could consider all three forms of punishment. In denying 

the challenge for cause, the trial court explained that it attempted to question Ms. Crum

about her ability to consider all three sentences in a “non-leading fashion.” Because the 

trial court viewed Ms. Crum’s demeanor during the questioning, we must defer to its 

findings. Although Ms. Crum presents a closer question, the defendant has not proven the 

trial court abused its discretion in denying the challenge for cause. Accordingly, the 

defendant has not established that he was forced to accept an incompetent juror or 

otherwise denied a fair and impartial jury. 
18

B. Sufficiency of the Evidence

The defendant argues that the evidence was insufficient to support his convictions 

for first-degree premeditated murder, first-degree felony murder, attempted especially 

aggravated robbery, attempted second-degree murder, aggravated assault, and employing 

a firearm during the attempt to commit a dangerous felony. 

The standard for appellate review of a claim challenging the sufficiency of the 

State’s evidence is “whether, after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn. R. 

App. P. 13(e); State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a 

claim of insufficient evidence, the defendant must demonstrate that no reasonable trier of 

fact could have found the essential elements of the offense beyond a reasonable doubt. See 

Jackson, 443 U.S. at 319. This standard of review is identical whether the conviction is 

predicated on direct evidence, circumstantial evidence, or a combination of both. State v. 

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

(Tenn. 2009)); State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977).

On appellate review, “we afford the prosecution the strongest legitimate view of the 

evidence as well as all reasonable and legitimate inferences which may be drawn 

therefrom.” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857 

(Tenn. 2010)); see also State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). In a jury 

trial, questions involving the credibility of witnesses and the weight and value to be given 

the evidence, as well as all factual issues raised by the evidence, are resolved by the jury 

as trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); State v. Pruett, 788 

S.W.2d 559, 561 (Tenn. 1990). This Court presumes that the jury has afforded the State all 

reasonable inferences from the evidence and resolved all conflicts in the testimony in favor 

of the State; as such, we will not substitute our own inferences drawn from the evidence 

for those drawn by the jury, nor will we re-weigh or re-evaluate the evidence. See Dorantes, 

331 S.W.3d at 379; State v. Lewter, 313 S.W.3d 745, 747 (Tenn. 2010); Liakas v. State, 

286 S.W.2d 856, 859 (Tenn. 1956). Because a jury conviction removes the presumption of 

innocence that the defendant enjoyed at trial and replaces it with one of guilt at the appellate 

level, the burden of proof shifts from the State to the convicted defendant, who must 

demonstrate to this Court that the evidence is insufficient to support the jury’s findings. 

Davis, 354 S.W.3d at 729. 

In conducting our sufficiency review, we must evaluate the proof in light of the 

elements of the crime. See State v. Gentry, 538 S.W.3d 413, 420 (Tenn. 2017) (recognizing 

that the first step of a sufficiency review is to “‘examine the relevant statute(s) in order to 

determine the elements’ of the offense that must be proven by the prosecution beyond a 
19

reasonable doubt”) (quoting State v. Stephens, 521 S.W.3d 718, 723-24 (Tenn. 2017)). 

However, before we examine the statutory elements of each of these offenses, we consider 

the defendant’s overriding argument that the State failed to prove his identity as the 

perpetrator of any of the offenses. 

Identity

It is well established that the identity of the perpetrator is an essential element of 

any crime. State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (citing State v. Thompson, 

519 S.W.2d 789, 793 (Tenn. 1975)). Identity may be established by circumstantial evidence

alone. See State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002). In prior identity cases, 

including Rice, the Court applied the standard of review for circumstantial evidence in 

effect at the time. As noted, however, our standard of review is now the same for direct and 

circumstantial evidence, including the evidence presented at the trial to establish the 

element of identity. See Dorantes, 331 S.W.3d at 381.

16

In this case, none of the witnesses could identify the perpetrator. However, all of the 

witnesses consistently testified that the man was wearing dark colored clothing with a white 

mask covering much of his face. Mr. Austin testified that he “believe[d] the person was 

black.” At least two of the witnesses saw the perpetrator’s direction of travel upon fleeing 

the market. Several police officers were in the vicinity and arrived on the scene in minutes. 

A K-9 officer tracked the suspect to a wooded area near Lions’ Field. The officers 

recovered dark clothing, a white cloth portion of a t-shirt, gray gloves, a weapon, a cell 

phone, and keys. Testing conducted by the TBI revealed that the defendant’s DNA was 

found on the dark hooded sweatshirt, the black pants, the gray gloves, the white t-shirt 

fabric, and on the revolver; that the cell phone was registered to the defendant; that the 

keys fit the defendant’s home and a car parked near his home; that the gray gloves tested 

positive for gunshot residue; and that the white t-shirt portion found in the woods was cut

or ripped from a t-shirt recovered from the defendant’s home. Presuming the jury afforded 

the State all reasonable inferences from this evidence, we conclude the evidence was more 

than sufficient to establish the identity of the defendant as the perpetrator of these 

offenses.17 

 

16 Dorantes replaced the standard previously applied in circumstantial evidence cases that required the facts 

to be “so clearly interwoven and connected that the finger of guilt is pointed unerringly at the Defendant 

and the Defendant alone.” Rice, 184 S.W.3d at 662 (quoting Reid, 91 S.W.3d at 277). Our Court of Criminal 

Appeals properly rejected a defendant’s invitation to carve out an exception to Dorantes to retain the former

circumstantial evidence standard of review in identity cases. See State v. Harris, No. W2017-01706-CCAR3-CD, 2018 WL 6012620 at *8 (Tenn. Crim. App. Nov. 15, 2018), perm. app. denied, (Tenn. Mar. 28, 

2019). 

17 We note that the defendant’s only challenge to the sufficiency of the evidence to support his conviction 

of attempted especially aggravated robbery is that the State failed to prove identity. Because we have 
20

Turning to the statutory elements, we next consider whether the evidence was 

sufficient to support each of the challenged offenses.

First-degree Premeditated Murder

The jury convicted the defendant of the first-degree premeditated murder of Mr. 

Dhalai. First-degree murder is a “premeditated and intentional killing of another.” Tenn. 

Code Ann. § 39-13-202(a)(1) (2018). The statute also provides that 

“premeditation” is an act done after the exercise of reflection and judgment. 

“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 preexist 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. § 39-13-202(e). The defendant argues the State failed to establish the element of 

premeditation. 

As with each element of an offense, the State must prove premeditation beyond a 

reasonable doubt. Premeditation may be supported by either direct or circumstantial 

evidence. State v. Brown, 836 S.W.2d 530, 541 (Tenn. 1992). Whether a defendant acted 

with premeditation is a question of fact for a jury to decide. State v. Clayton, 535 S.W.3d 

829, 845 (Tenn. 2017) (citing State v. Dotson, 450 S.W.3d 1, 86 (Tenn. 2014); State v. 

Davidson, 121 S.W.3d 600, 614 (Tenn. 2003)). The jury may infer premeditation from 

several factors including: “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.” Id. (citing Davidson, 121 S.W. 3d at 614-15). 

The jury may also consider “a lack of provocation on the victim’s part and a defendant’s 

failure to render aid to a victim.” Id. (citing Finch v. State, 226 S.W.3d 307, 318-19 (Tenn. 

2007)). 

The defendant entered the market armed with a deadly weapon wearing clothing 

that would conceal his identity. In slang terms, the defendant instructed the unarmed clerk 

to give him the money from the cash register or he was “gonna shoot [the victim] dead in 

the head.” When the victim hesitated, the defendant fired a warning shot near the victim’s 

 

concluded the evidence was sufficient to establish the defendant as the perpetrator of all of the offenses, 

this issue requires no further analysis. 
21

head. After repeating his demand to open the cash drawer, the defendant shot the victim in 

the head without provocation as the victim slowly turned to walk away. The defendant 

then fired a shot in the direction of another employee. As the victim lay dying, the 

defendant unsuccessfully attempted to open the cash register before fleeing the market. He 

abandoned his weapon and clothing in a nearby baseball field in an apparent attempt to 

conceal his identity as the perpetrator. 

The defendant suggests that his demands could have been viewed as a tactic to 

convince the victim to hand over the money rather than as a threat of violence. He further 

asserts the defendant’s quick reaction in shooting the victim as he turned to walk away 

supports an inference that this was, at most, a knowing killing. Viewing the context of all 

of the circumstances surrounding the killing, the jury had more than sufficient evidence 

from which to conclude that the defendant acted with premeditation. This issue is without 

merit. 

First-degree Felony Murder

The jury also convicted the defendant of first-degree felony murder of Mr. Dhalai.

In relevant part, the statute provides that felony murder is “[a] killing of another committed 

in the perpetration of or attempt to perpetrate any . . . robbery.” Tenn. Code Ann. § 39-13-

202(a)(2). No culpable mental state is required for the killing except the intent to commit 

the underlying offense. Id. § 39-13-202(b). The defendant argues that the killing of the 

victim and the attempted robbery were not sufficiently connected to support his conviction 

for felony murder. 

To fall within the definition of felony murder, the killing must be “done in pursuance 

of the unlawful act, and not collateral to it.” State v. Banks, 271 S.W.3d 90, 140 (Tenn. 

2008) (quoting Rice, 184 S.W.3d at 663). The killing “may precede, coincide with, or 

follow the felony” and still be considered “in the perpetration of” the felony “so long as 

there is a connection in time, place, and continuity of action.” State v. Thacker, 164 S.W.3d 

208, 223 (Tenn. 2005) (quoting State v. Buggs, 995 S.W.2d 102, 106 (Tenn. 1999)). The 

proof must establish that the defendant had the intent to commit the underlying felony 

either prior to or concurrent with the act causing the victim’s death. 

Without question, the proof established that the defendant entered the market with 

the intent to commit a robbery. The defendant threatened to kill the victim if he refused to 

give him the money from the cash register. The defendant fired a warning shot followed 

shortly by the fatal shot. There was ample evidence for the jury to infer that the defendant 

saw the victim as the only thing standing between him and the cash drawer. Thus, the proof 

established that the defendant had the intent to commit the robbery prior to the shooting 

that caused the victim’s death. This close connection was sufficient to support his 
22

conviction for felony murder. This issue has no merit. 

Attempted Second-degree Murder/Aggravated Assault

The defendant was convicted of the attempted second-degree murder of Mr. Austin. 

Second-degree murder is “[a] knowing killing of another.” Tenn. Code Ann. § 39-13-210

(2018). To prove attempted second-degree murder, the State was required to prove that the 

defendant took a substantial step toward committing a knowing killing of Mr. Austin. See

Tenn. Code Ann. §39-12-101(a)(3) (2018). “A person acts knowingly with respect to a 

result of the person’s conduct when the person is aware that the conduct is reasonably 

certain to cause the result.” Tenn. Code Ann. § 39-11-302(b) (2018). Thus, as for the 

defendant’s intent, the State was only required to prove that the defendant knew his actions 

were reasonably certain to cause Mr. Austin’s death. See State v. Brown, 311 S.W.3d 422, 

432 (Tenn. 2010). Whether the defendant acted “knowingly” is a question of fact for the 

jury and may be inferred from the surrounding facts and circumstances. Id.

The evidence established that the defendant noticed Mr. Austin when he entered the 

market. After fatally shooting Mr. Dhalai but before jumping over the counter to gain 

access to the cash register, the defendant fired a shot in the direction of Mr. Austin, who 

was attempting to move to safety. The defendant places significance on Mr. Austin’s 

testimony that the man (later identified as the defendant) never made any direct statements 

or threats to him. He also emphasizes that a single shot was fired in Mr. Austin’s direction. 

Indeed, the jury heard the evidence and later received instructions about lesser-included 

offenses. Nonetheless, the jury concluded the defendant’s gunshot in Mr. Austin’s direction 

was a “substantial step” toward a knowing killing and that the defendant knew his conduct 

was reasonably certain to cause Mr. Austin’s death, having fatally wounded Mr. Dhalai 

just seconds before. The evidence was sufficient to support his conviction for attempted 

second-degree murder. 

In passing, the defendant makes the same argument as to his conviction for the 

aggravated assault of Mr. Austin. Under this alternative theory, the State was required to 

show that the defendant committed an assault by “[i]ntentionally or knowingly caus[ing] 

another to reasonably fear imminent bodily injury” involving the use or display of a deadly 

weapon. Tenn. Code Ann. §§ 39-13-101(a)(2), -102(a)(1) (2018 & Supp. 2020). Again, the 

proof clearly established that the defendant caused Mr. Austin to reasonably fear imminent 

bodily injury by firing the shot in his direction. These issues are likewise without merit. 

Employing a Firearm

Finally, the defendant was convicted of employing a firearm during his attempt to 

commit a dangerous felony. Under the statute, it is an offense to employ a firearm during 
23

the attempt to commit a dangerous felony. Tenn. Code Ann. § 39-17-1324 (2018 & Supp.

2020). Attempted second-degree murder is one of the enumerated dangerous felonies. See 

id. § 39-17-1324(i)(1)(B). The defendant’s argument relates back to his argument that the 

evidence was insufficient to support his conviction for attempted second-degree murder. 

He submits that if his conviction for attempted second-degree murder is reversed, his 

conviction for employing a firearm during the commission of a dangerous felony must also 

be reversed. For the reasons explained above, the Court concluded the evidence was 

sufficient to support the attempted second-degree murder conviction. Accordingly, this 

argument also fails. 

C. Video Recording of Prior Robbery

The defendant argues the trial court erred in allowing the State to introduce during 

the penalty phase a video recording of his prior aggravated robbery. The defendant 

previously pleaded guilty to aggravated robbery of a convenience market in Madison 

County, Tennessee. Prior to trial, the State gave notice of its intent to use this prior 

aggravated robbery conviction to establish the (i)(2) statutory aggravating circumstance. 

In addition, the State provided the defendant with a copy of a surveillance video that 

captured the defendant’s actual participation in the prior aggravated robbery. 

The defendant filed a pre-trial motion in limine to exclude the video pursuant to 

Tennessee Rule of Evidence 403 because its probative value was substantially outweighed 

by the danger of unfair prejudice. The defendant argued the certified judgment of 

conviction would have sufficed. The State maintained the evidence was admissible under 

Tennessee Code Annotated section 39-13-204(c). After considering the arguments and 

viewing the video, the trial court denied the motion, concluding the evidence was reliable 

and relevant to establish the (i)(2) aggravating circumstance based on section 39-13-204(c) 

and State v. Reid. The surveillance video was played to the jury during the penalty phase. 

The defendant raised this issue on direct review, and the Court of Criminal Appeals 

concluded the trial court did not abuse its discretion. Miller, 2020 WL 5626227 at *19. The 

defendant continues to argue in this Court that admission of the video was error. The 

introduction of evidence at the penalty phase is governed by Tennessee Code Annotated 

section 39-13-204(c) which provides as follows:

(c) In the sentencing proceeding, evidence may be presented as to any matter 

that the court deems relevant to the punishment, and may include, but not be 

limited to, the nature and circumstances of the crime; the defendant’s 

character, background history, and physical condition; any evidence tending 

to establish or rebut the aggravating circumstances enumerated in subsection 

(i); and any evidence tending to establish or rebut any mitigating factors. Any 
24

such evidence that the court deems to have probative value on the issue of 

punishment may be received, regardless of its admissibility under the rules 

of evidence; provided, that the defendant is accorded a fair opportunity to 

rebut any hearsay statements so admitted. However, this subsection (c) shall 

not be construed to authorize the introduction of any evidence secured in 

violation of the constitution of the United States or the constitution of 

Tennessee. In all cases where the state relies upon the aggravating factor 

that the defendant was previously convicted of one (1) or more felonies, 

other than the present charge, whose statutory elements involve the use 

of violence to the person, either party shall be permitted to introduce 

evidence concerning the facts and circumstances of the prior conviction. 

Such evidence shall not be construed to pose a danger of creating unfair 

prejudice, confusing the issues, or misleading the jury and shall not be

subject to exclusion on the ground that the probative value of the 

evidence is outweighed by prejudice to either party. Such evidence shall 

be used by the jury in determining the weight to be accorded the 

aggravating factor. The court shall permit a member or members, or a 

representative or representatives of the victim’s family to testify at the 

sentencing hearing about the victim and about the impact of the murder on 

the family of the victim and other relevant persons. The evidence may be 

considered by the jury in determining which sentence to impose. The court 

shall permit members or representatives of the victim’s family to attend the 

trial, and those persons shall not be excluded because the person or persons 

shall testify during the sentencing proceeding as to the impact of the offense.

Tenn. Code Ann. § 39-13-204(c) (emphasis added). The bold/italic language resulted from 

the 1998 amendment to the statute. See generally State v. Odom, 137 S.W.3d 572 (Tenn. 

2004) (discussing the 1998 amendment to section 39-13-204(c)). Unlike the prior version, 

the current statute specifically authorizes the introduction of evidence concerning the facts 

and circumstances of the prior violent felony.

The statute reflects the reality that, although a capital case, the rules of evidence are 

somewhat relaxed during a capital sentencing hearing. Cf. Reid, 91 S.W.3d at 305 (Birch, 

J., concurring in part and dissenting in part) (explaining that the Rules of Evidence should 

not be applied to preclude the introduction of otherwise reliable evidence that is relevant 

to the issue of punishment in the capital sentencing arena). In fact, the 1998 amendment 

seems to suggest that Tennessee Rule of Evidence 403 does not routinely impede the 

admission of such evidence.

Although such a video recording is somewhat prejudicial by its very nature, we 

cannot conclude that its probative value was outweighed by the danger of unfair prejudice 
25

when properly introduced at the penalty phase pursuant to section 39-13-204(c) after the 

defendant’s guilt had been determined. Accordingly, the trial court did not abuse its 

discretion in admitting the surveillance video of the prior aggravated robbery. 

D. Constitutionality of the Death Penalty/Lethal Injection

The defendant maintains that the death penalty in general, and lethal injection in 

particular, violate the United States and Tennessee Constitutions’ prohibitions on cruel and 

unusual punishment. U.S. Const. amend. VIII; Tenn. Const. art. I, § 16. He acknowledges, 

however, that these arguments have been rejected by both the United States Supreme Court 

and this Court. See Baze v. Rees, 553 U.S. 35, 47 (2008); Keen v. State, 398 S.W.3d 594, 

600 n.7 (Tenn. 2012); Abdur’Rahman v. Bredesen, 181 S.W.3d 292, 309 (Tenn. 2005). 

The defendant urges this Court to reconsider its earlier precedent and conclude that capital 

punishment, and the use of lethal injection to carry out the death penalty, constitutes cruel 

and unusual punishment and should therefore be invalidated in Tennessee as a possible 

punishment for first-degree murder. We respectfully decline the defendant’s invitation, 

and we reaffirm our prior holdings. 

E. Mandatory Review of Death Sentence

This Court is statutorily required to review the defendant’s death sentence. Tenn. 

Code Ann. § 39-13-206(a)(1) (2018). Our review includes analyzing whether (1) the death 

sentence was imposed in any arbitrary fashion; (2) the evidence supports the jury’s findings 

of statutory aggravating circumstances; (3) the evidence supports the jury’s finding that the 

aggravating circumstances outweighed any mitigating circumstances; and (4) the death

sentence is excessive or disproportionate to the penalty imposed in similar cases, 

considering both the nature of the crime and the defendant. Id. § 39-13-206(c)(1)(A)-(D).

Imposition of the Death Penalty

Our first consideration is whether the death penalty was imposed arbitrarily in this 

case. The record indicates the trial court properly instructed the jury at the penalty phase 

of the trial. The jury unanimously determined that the State had proven the aggravating 

circumstances beyond a reasonable doubt and that the aggravating circumstances 

outweighed the mitigating circumstances beyond a reasonable doubt. Our review indicates 

the trial court conducted the penalty phase in strict compliance with the applicable statutory 

provisions and the Tennessee Rules of Criminal Procedure. Accordingly, as to the first 

consideration, we can conclude the sentences of death were not imposed in an arbitrary 

fashion. 
26

Sufficiency of the Evidence Establishing Aggravating Circumstances

Our second consideration is whether the evidence supports the jury’s findings of 

statutory aggravating circumstances. The relevant inquiry is whether a rational jury, taking 

the evidence in the light most favorable to the State, could have found the existence of the 

aggravating circumstances beyond a reasonable doubt. Clayton, 535 S.W.3d at 850; State 

v. Kiser, 284 S.W.3d 227, 272 (Tenn. 2009). In the instant case, the jury found two 

aggravating circumstances. Therefore, we conduct an independent review to determine 

whether the evidence presented at the penalty phase was sufficient to support the jury’s 

findings. 

The penalty phase jury verdict forms indicate the jury unanimously found the State 

had proven beyond a reasonable doubt the following two statutory aggravating 

circumstances as to both first-degree murder convictions: 

(2) The defendant was previously convicted of one (1) or more felonies, other 

than the present charge, the statutory elements of which involve the use of 

violence to the person;

. . . .

(7) The murder was knowingly committed, solicited, directed, or aided by 

the defendant, while the defendant had a substantial role in committing or 

attempting to commit, or was fleeing after having a substantial role in 

committing or attempting to commit, any aggravated robbery. 

Tenn. Code Ann. § 39-13-204(i)(2), (7). In support of the (i)(2) aggravating circumstance, 

the State introduced a certified judgment indicating the defendant had been previously 

convicted of aggravated robbery in Madison County, a written statement signed by the 

defendant admitting his role in the prior robbery, the testimony of a victim in the robbery,

and a video recording of the prior robbery that showed the defendant and two other men

committing the robbery. As to the (i)(7) aggravating circumstance, the proof clearly 

established that the defendant “knowingly” murdered the victim at the market and 

obviously had a substantial role in the attempted aggravated robbery as the sole perpetrator. 

Indeed, the evidence is more than sufficient to support the jury’s finding of these statutory 

aggravating circumstances. 

In considering this prong, the Court of Criminal Appeals concluded that the (i)(7) 

aggravating circumstance cannot be applied to a conviction for felony murder, and 

therefore, vacated the application of this aggravating circumstance for the felony murder 

conviction. Miller, 2020 WL 5626227, at *21 (citing State v. Middlebrooks, 840 S.W.2d 

317, 346 (Tenn. 1992), superseded by statute as stated in State v. Pruitt, 415 S.W.3d 180 
27

(Tenn. 2013)). Indeed, this Court determined in Middlebrooks that the (i)(7) aggravating 

circumstance could not support the death penalty for a defendant convicted solely of felony 

murder because the then-existing aggravating circumstance and felony murder statute 

contained duplicative language. Middlebrooks, 840 S.W.2d at 346. However, as the Court 

explained in State v. Banks, 

The Tennessee General Assembly responded to [Middlebrooks] in 1995 by 

amending the aggravating circumstance in Tenn. Code Ann. § 39–13–

204(i)(7) to require that the murder “was knowingly committed, solicited, 

directed, or aided by the defendant, while the defendant had a substantial role 

in committing or attempting to commit” one of the enumerated felonies. This 

amendment narrowed the class of offenders to whom the death penalty could 

be applied sufficiently so as to leave no State v. Middlebrooks problem even 

in cases where Tenn. Code Ann. § 39–13–204(i)(7) was the only aggravating 

circumstance established and the conviction was for felony murder. 

Banks, 271 S.W.3d at 152 (emphasis added) (footnote omitted). As noted, the jury in this 

case specifically found the State had proven the (i)(7) aggravating circumstance with the 

“knowing” requirement beyond a reasonable doubt. Accordingly, the portion of the 

judgment of the Court of Criminal Appeals vacating the application of the (i)(7) 

aggravating circumstance to the felony murder conviction is reversed. 

Aggravating Circumstances Outweigh Mitigating Circumstances

In our third consideration, we are required to determine whether the evidence 

supports the jury’s finding that the statutory aggravating circumstances outweigh the 

mitigating circumstances beyond a reasonable doubt. After the State presented its penalty 

phase evidence, the defendant called Dr. James Walker, who diagnosed the defendant with 

cognitive disorder, cannabis use disorder, PTSD, and antisocial personality disorder. 

According to Dr. Walker, the defendant had an IQ of 78 at the age of eight. The defendant 

also called Dr. Keith Caruso, who agreed with Dr. Walker’s diagnosis but further 

emphasized the defendant’s childhood instability. In rebuttal, the State presented the 

testimony of Dr. Kimberly Brown, who generally agreed with Dr. Walker’s diagnosis with 

the exception of the PTSD diagnosis. 

At the close of the penalty phase evidence, the trial court instructed the jury 

regarding the State’s burden to establish any aggravating circumstances beyond a 

reasonable doubt and further establish that the aggravating circumstances outweighed the 

mitigating circumstances beyond a reasonable doubt. The trial court instructed the 

following as to mitigation:
28

Tennessee law provides that in arriving at the punishment, the jury shall 

consider as previously indicated any mitigating circumstances raised by the 

evidence which shall -- which shall include, but are not limited to, the 

following: 

1. There are choices other than sentence of death.

2. Life without parole means that Urshawn Miller will never be released 

from prison.

3. If Mr. Miller is sentenced to life without possibility of parole, he will die 

in prison.

4. Mr. Miller has a mother, two aunts, an uncle, a brother, a sister, and other 

close family members. Mr. Miller’s execution would have a devastating 

lifetime impact on all of these family members.

5. If Mr. Miller is executed, his execution will not undo the harm suffered 

by Mr. Dhalai’s family, but life without parole will provide Mr. Miller the 

time to reflect on Mr. Dhalai’s death for the rest of his life.

6. Mr. Miller suffers from mental disorders due to circumstances beyond his 

control, including genetics, abuse, neglect, trauma, and other upbringing and 

environmental factors.

 

7. Any other mitigating factor which is raised by the evidence produced by 

either the prosecution or defense at either the guilt or sentencing hearing. 

That is, you shall consider any aspect of the Defendant’s character or record 

or any aspect of the circumstances of the offense favorable to the Defendant, 

which is supported by the evidence.

The Defendant does not have the burden of proving a mitigating 

circumstance. There is no requirement of jury unanimity to any particular 

mitigating circumstance or that you agree on the same mitigating 

circumstance.

Thus, after hearing the State’s evidence supporting the statutory aggravating 

circumstances and the defendant’s mitigating evidence, it was within the jury’s purview to 

conclude that the aggravating circumstances outweighed the mitigating circumstances 

beyond a reasonable doubt. The record supports this conclusion. 
29

Proportionality Review

Finally, we are statutorily required to review the defendant’s sentence of death in 

order to determine whether it is excessive or disproportionate to the penalty imposed in 

similar cases. Our review is intended to determine whether the defendant’s death sentence 

is aberrant, arbitrary, or capricious insofar as it is “disproportionate to the punishment 

imposed on others convicted of the same crime.” Bland, 958 S.W.2d at 662 (quoting Pulley 

v. Harris, 465 U.S. 37, 43 (1984)). Our review employs the precedent-seeking method of 

comparative proportionality review, in which we compare this case with other cases 

involving similar crimes and similar defendants in order to “identify and invalidate the 

aberrant death sentence.” Thacker, 164 S.W.3d at 233 (quoting Bland, 958 S.W.2d at 664). 

The relevant pool of cases consists of “those first degree murder cases in which the State 

sought the death penalty, a capital sentencing hearing was held, and the jury determined 

whether the sentence should be life imprisonment, life imprisonment without possibility of 

parole, or death.” Rice, 184 S.W.3d at 679 (citing State v. Godsey, 60 S.W.3d 759, 783 

(Tenn. 2001); Bland, 958 S.W.2d at 666).

While no crimes or defendants are identical, a death sentence is disproportionate if 

the case is “plainly lacking in circumstances consistent with those in cases where the death 

penalty has been imposed.” Bland, 958 S.W.2d at 668. Thus, in our proportionality review, 

we examine “the facts and circumstances of the crime, the characteristics of the defendant, 

and the aggravating and mitigating circumstances involved.”18 State v. Stevens, 78 S.W.3d 

817, 842 (Tenn. 2002). More specifically, we consider

(1) the means of death; (2) the manner of death; (3) the motivation for the 

killing; (4) the place of death; (5) the similarity of the victims’ circumstances 

 

18 The dissent employs the phrases “worst of the worst” and “worst of the bad” in its proportionality 

assessment, referencing Justice Souter’s dissent in Kansas v. Marsh, 548 U.S. 163 (2006), which cites 

Roper v. Simmons, 543 U.S. 551 (2005), and Atkins v. Virginia, 536 U.S. 304 (2002). The dissent also 

references the author’s prior dissent in Pruitt, 415 S.W.3d 180. Indeed, as the dissent explains, Roper and 

Atkins established that the death penalty “must be limited to those offenders who commit ‘a narrow category 

of the most serious crimes.’” Roper, 543 U.S. at 568 (quoting Atkins, 536 U.S. at 319). This narrowing 

principle is implemented through a state’s capital sentencing scheme that includes certain enumerated 

aggravating circumstances. See Roper, 543 U.S. at 568 (citing Godfrey v. Georgia, 446 U.S. 420, 428-29 

(1980) (plurality opinion)). Like most states, our General Assembly, via the adoption of certain aggravating 

circumstances, defined the types of first-degree murders that may warrant the death penalty in Tennessee. 

See Tenn. Code Ann. 39-13-204(g)(1). Defendants routinely challenge the constitutionality of various 

aggravating circumstances and frequently argue that a particular aggravating circumstance fails to 

adequately narrow death eligibility. However, once a jury has imposed a sentence of death in accordance 

with our statutory scheme and absent a categorical proportionality challenge, our review of the sentence 

includes mandatory proportionality review as set out in our statute. Thus, although the phrases “worst of 

the worst” and “worst of the bad” have made their way into capital case vernacular, neither phrase reflects 

a constitutional or statutory standard by which we are bound in this review.
30

including age, physical and mental conditions, and the victims’ treatment 

during the killing; (6) the absence or presence of premeditation; (7) the 

absence or presence of provocation; (8) the absence or presence of 

justification; and (9) the injury to and effect upon non-decedent victims.

Pruitt, 415 S.W.3d at 213 (citing Bland, 958 S.W.2d at 667). We also consider several 

factors about the defendant, including his (1) record of prior criminal activity; (2) age, race, 

and gender; (3) mental, emotional, and physical conditions; (4) role in the murder; (5) 

cooperation with authorities; (6) level of remorse; (7) knowledge of the victim’s 

helplessness; and (8) potential for rehabilitation. Id. at 213-14.

The defendant is a twenty-six-year-old African-American male who shot the victim 

in the head. He acted with premeditation, telling the victim he would shoot him dead if he 

failed to obey instructions and firing a shot that barely missed the victim before firing a 

second shot that hit the victim in the back of the head. The defendant then fired the gun a 

third time, directing deadly force toward another store employee. There was no provocation 

or justification for the shooting. This senseless killing was committed in the course of the 

defendant’s attempt to commit a robbery. The proof of what occurred was very clear, as 

store surveillance cameras recorded the entire encounter. The defendant fled the scene 

afterwards, and he again threatened violence, this time against police officers in a standoff, 

before they apprehended him. The defendant presented proof of a troubled childhood and 

diagnoses of various mental health conditions; however, none of the witnesses opined the 

defendant was incompetent to stand trial or lacked the ability to express remorse or take 

responsibility for his actions. The defendant had a prior conviction for a similar aggravated 

robbery, and the jury found that this conviction supported the (i)(2) aggravating 

circumstance. 

Upon our review of the record and the Tennessee Supreme Court Rule 12 reports,19

we conclude that the death sentence imposed in this case is not excessive or 

disproportionate when compared to the penalty imposed in similar cases, including the 

following:

Larry McKay, an African-American male, was twenty-five years old when he and 

Michael Eugene Sample shot the unarmed store clerks, Benjamin Cooke and Steve Jones,

during the course of a robbery of the L & G Sundry Store despite the clerks having 

complied with Mr. McKay’s demands. State v. McKay, 680 S.W.2d 447, 448-49 (Tenn. 

1984). At the penalty phase, Mr. McKay introduced evidence of his broken home. The jury 

 

19 Tennessee Supreme Court Rule 12 requires trial courts to file extensive reports in all cases in which the 

defendant is convicted of first-degree murder. These reports include data about the crime, the defendant, 

and the punishment imposed. See Tenn. Sup. Ct. R. 12(1) & app. 
31

imposed the death penalty based on the (i)(2), (i)(3),20 (i)(6),21 and (i)(7) aggravating 

circumstances. Sample v. State, No. 02C01-9505-CR-00131, 1996 WL 551754, at *9 n.12

(Tenn. Crim. App. Sept. 30, 1996).

The (i)(7) aggravating circumstance was later invalidated pursuant to Middlebrooks but the 

error deemed harmless. Sample v. State, 82 S.W.3d 267, 276-79 (Tenn. 2002), perm. app. 

denied, (Tenn. Jan. 27, 1997).

Michael Wayne Howell, a Caucasian male, was twenty-seven-years old when he 

fatally shot the unarmed clerk, Alvin Kennedy, in the head during the robbery of a 7-Eleven 

Market. Howell, 868 S.W.2d at 245. At the penalty phase, Mr. Howell presented evidence 

that he suffered from brain damage and had a troubled childhood. Id. at 246. The jury 

imposed the death penalty based on the (i)(2) and (i)(7) aggravating circumstances. Id. at 

247. The (i)(7) aggravating circumstance was later invalidated pursuant to Middlebrooks

but the error was deemed harmless. Id. at 262. 

Tyrone Chalmers, an African-American male, was twenty-one years old when he 

killed twenty-eight-year-old Randy Allen during a robbery. State v. Chalmers, 28 S.W.3d 

913, 915 (Tenn. 2000). In August 1994, Mr. Chalmers and his accomplices happened upon 

the victim and the victim’s cousin while looking for someone to rob. Id. at 915-16. Mr. 

Chalmers admitted to police that he forced the victim and the cousin to strip before robbing 

them of $3.00. Id. at 916. Mr. Chalmers fired his shotgun at the victim six times. Id. at 916. 

He admitted to killing the victim and expressed remorse for doing so. He was convicted of 

felony murder and especially aggravated robbery. Id. at 914. The jury imposed the death 

penalty based on the (i)(2) aggravating circumstance – Mr. Chalmers had been previously 

convicted of attempted especially aggravated robbery and attempted first degree murder 

for events occurring on the same date as the murder of Randy Allen. Id. at 916. 

Paul Dennis Reid, Jr., a Caucasian male, was thirty-nine years old when he killed 

two unarmed Captain D’s employees, sixteen-year-old Sarah Jackson and twenty-five year

old Steve Hampton, during a robbery. Reid, 91 S.W.3d at 261. Mr. Reid presented several 

witnesses at the penalty phase who testified about various mental health issues as well as 

Mr. Reid’s difficult childhood. Id. at 267-70. The jury imposed the death penalty based on 

the (i)(2), (i)(6), and (i)(7) aggravating circumstances. Id. at 265-66, 271. 

In this sampling of cases, the respective juries in two of Tennessee’s grand divisions 

 

20 “(3) The defendant knowingly created a great risk of death to two (2) or more persons, other than the 

victim murdered, during the act of murder[.]” Tenn. Code Ann. § 39-13-204(i)(3). 

21 “(6) The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful 

arrest or prosecution of the defendant or another[.]” Tenn. Code Ann. § 39-13-204(i)(6).
32

considered whether the death penalty was an appropriate punishment for males of similar 

ages who murdered one or more victims while attempting a robbery. In three of these cases, 

the victims were employees of retail establishments who were murdered during the 

defendant’s attempt to rob the business. Like the defendant, these men had troubled 

childhoods, had committed prior violent felonies, and often had some type of chemical 

dependency. Yet, it is revealing that jurors from across our state believed each of these 

defendants deserved a sentence of death under our statutory scheme for these types of 

offenses.

Under our proportionality review, the instant case need not be identical to the other 

cases in every respect, and, as we have previously recognized, a death sentence is not 

disproportionate simply because another defendant received a life sentence under similar 

circumstances. Having compared the defendant’s case with other cases in which the death 

penalty was imposed while acknowledging the differences, we can conclude the 

defendant’s sentence of death is not an “aberrant death sentence” and is not “plainly lacking 

in circumstances” consistent with those cases in which the death penalty was imposed. The 

defendant is not entitled to relief on this basis.

III. CONCLUSION

For the reasons set forth above, we reverse the portion of the judgment of the Court 

of Criminal Appeals that vacated the application of the (i)(7) felony murder aggravating 

circumstance to the felony murder conviction. We affirm the defendant’s convictions and 

sentence of death.

The sentence of death shall be carried out as provided on the 17th day of October, 

2022, unless otherwise ordered by this Court or other proper authority. It appearing that 

the defendant, Urshawn Eric Miller, is indigent, the costs of this appeal are taxed to the 

State of Tennessee.

 

_________________________________

ROGER A. PAGE, CHIEF JUSTICE