IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

March 5, 2013 Session

STATE OF TENNESSEE v. JACOB ANDREW BROWN

Appeal from the Circuit Court for Tipton County

No. 6861 Joseph H. Walker, Judge

No. W2012-01297-CCA-R3-CD - Filed August 7, 2013

On January 18, 2011, Ed and Bertha Walker were found beaten to death in their home. In

March 2011, Appellant, Jacob Andrew Brown, was indicted by the Tipton County Grand

Jury for two counts of premeditated first degree murder, two counts of felony murder, and

two counts of especially aggravated burglary. Appellant was sixteen at the time the crimes

were committed. The juvenile court held a transfer hearing and determined that Appellant

should be tried as an adult in the circuit court. At the conclusion of a jury trial, Appellant

was found guilty of each count. The trial court merged the two felony murder convictions

into the two premeditated first degree murder convictions and merged one especially

aggravated burglary charge into the other. Appellant was sentenced to life without parole

for the two murder convictions and eight years to be served at 100% for the especially

aggravated burglary conviction. The trial court ordered that all the sentences were to be

served consecutively. On appeal, Appellant argues that the juvenile court improperly

determined that his case should be transferred to the circuit court and that the evidence was

insufficient to support his convictions. After a thorough review of the record, we conclude

that Appellant cannot succeed on these issues. However, because the death of the victim is

the serious bodily injury upon which his especially aggravated burglary convictions are

based, we remand to the trial court for entry of a judgment reflecting a modified conviction

of aggravated burglary and for re-sentencing.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Trial Court are Affirmed in

Part, Modified in Part, and Remanded.

JERRY L. SMITH,J., delivered the opinion of the court, in which JOSEPH M. TIPTON, P.J., and

ROGER A. PAGE, J., joined.

Gary Antrican, District Public Defender and Davis S. Stockton, Assistant District Public

Defender, for the appellant, Jacob Andrew Brown.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney

General; Michael Dunavant, District Attorney General, and James Walter Freeland, Jr., for

the appellee, State of Tennessee.

OPINION

Factual Background

In March 2011, the Tipton County Grand Jury indicted Appellant for two counts of

premeditated first degree murder, two counts of felony murder, and two counts of especially

aggravated burglary. The State filed a petition on January 24, 2011, to transfer Appellant

from juvenile court to circuit court. The juvenile court held a hearing on March 3, 2011 and

concluded that Appellant should be tried in circuit court. On January 17, 2012, Appellant’s

jury trial began in circuit court.

On January 18, 2011, Jeremy Walker went to visit his grandparents, Ed and Bertha

Walker, who were 80 and 75 years old respectively. He arrived around 2:00 p.m. to get the

laundry that his grandmother had washed for him. However, when he arrived, he discovered

that the door was locked. This was very unusual. Jeremy told his aunt, Myra Millican, that

he had gone by his grandparents’ house and the door was locked. Ms. Millican had spoken

with Ms. Walker early that morning and again at 11:30 a.m. when the Walkers returned from

a doctor’s appointment. Ms. Millican called her parents, and they did not answer either their

landline or cellphone. At 5:00 p.m., Ms. Millican went to the Walker residence and opened

the door with her key. She found her mother on the floor and ran out of the house. A

neighbor, Randall Scott Locke, Sr., known as Randy, went into the house and reported that

“[s]omebody blew their heads off.” The police were called.

William Blake Archer left school early on the date in question. He saw Appellant in

the school parking lot when he left between 10:30 and 11:00. Mr. Archer agreed to take

Appellant to the Locke house. On the way, they stopped at a “smoke shop” that sold drug

paraphernalia as well as tobacco products and “synthetic stuff.” Appellant gave Mr. Archer

money to purchase two packets of Charge, a substance labeled as “bath salts.” Appellant

snorted the Charge at the skate park, and Mr. Archer took him to the Locke house.

Anita Hance is a mail carrier. On January 18, 2011, she delivered a certified letter to

Randall Scott Locke, Sr. The letter required a signature for delivery. When she got to the

Locke house, she found a sixteen- or seventeen-year-old boy in the backyard. He signed for

the letter. She said that her interaction with him was “normal.”

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Brandon James Wilburn is a cable contractor for Millington Cable. On January 18,

2011, he was at Mr. Smith’s house to install internet service. While he was outside, he saw

Mr. Walker walk to his mailbox. He saw Mr. Walker speak to someone across the street, but

he could not see who it was or hear what he said. Mr. Wilburn saw Appellant at the Locke

house and saw him pacing on the front porch and walking around the backyard for thirty

minutes. He saw Appellant sitting with his head between his legs and grabbing his head.

Mr. Wilburn attempted to speak to Appellant, but Appellant did not answer.

Earlier that day, Gary Smith, a neighbor of the victims, saw the victims when they

came home from the doctor’s office. He was home because the cable company was installing

some wiring for his computer. He saw Appellant in the Locke’s backyard. He did not know

Appellant’s name, but Mr. Smith recognized Appellant because he had seen him at the Locke

house on other occasions. Mr. Smith went over in the afternoon to see how the doctor’s

appointment went for the victims. No one answered the door. Mr. Smith also called their

landline and cellphone and no one answered. Around 5:30, he heard Ms. Millican screaming.

Mr. Smith ran into the victims’ house behind Mr. Locke and saw Mrs. Walker lying in the

dining room and Mr. Walker lying in the living room. Mr. Smith said they were very bloody

and thought that they had been shot.

At trial, Mr. Smith testified that there had been conflicts between him and the Lockes

about their parking in the street and how they needed to rake their leaves. He said that he

believed they considered him “nosy.”

Special Agent Mark Reynolds with the Tennessee Bureau of Investigation (“TBI”)

responded to a request by the district attorney’s office to help with the murder investigation

of the Walkers. When he arrived at the Walker house, he saw Mrs. Walker on the floor in

the breakfast area of the kitchen and Mr. Walker in the living room floor. He said Mr.

Walker was face down and that the back of his head was “busted open.” Agent Reynolds

saw a great deal of blood spatter around both of the bodies. He called the TBI’s violent

crime response team.

As part of his investigation, Agent Reynolds spoke with Mr. Wilburn and Ms. Hance.

They told him about the young man at the Locke house. Agent Reynolds checked the school

records and discovered that Appellant had left school early that day. Appellant’s teachers

told Agent Reynolds that Appellant was good friends with Randall Scott Locke, Jr., known

as Scott.

Scott Locke testified that he had been friends with Appellant for four years. A few

times he had complained about his “nosy neighbor” to Appellant, and Appellant said, “Let’s

go kill them.” Scott assumed that this was a joke. Appellant had spent the night with Scott

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the night before the day in question. Scott had taken Appellant to school. Appellant sent

Scott a text message informing Scott that he had found a ride from school. Appellant sent

Scott a text message later that said, “You wanted your nosy neighbors dead, right?” Scott

did not respond.

Scott came home from school at 2:45. He found Appellant walking around his

backyard. Scott testified that Appellant was acting normally. They ran errands with Scott’s

mother and returned to the house. At some point that afternoon, Appellant told Scott that he

had killed the Walkers. Scott did not believe him. Appellant showed Scott the baseball bat

which had several “very heavy dents” in it, but he still did not believe him.

After Scott’s father, Randy, came home, they heard a horrible scream outside. The

Walkers’ relatives were standing in the streetscreaming. Randy ran to the Walker house, and

when he returned, he said they were dead. Randy told Scott, Appellant and Appellant’s

brother, Lucas, that they needed to leave with their friend, Zach Douglass. They went to a

friend’s house and smoked marijuana and played video games. Appellant’s mother picked

them up and drove them to the Admiralty Inn in Millington. The following day, Randy

Locke informed Agent Reynolds that he had rented a motel room for Appellant, Lucas, and

Scott.

Agent Reynolds, along with other law enforcement officers went to the hotel. They

found the three teenagers and Zach Douglass in one room, and Appellant’s mother in an

adjoining room. While in the hotel rooms, the officers saw a pair of shoes that appeared to

have blood on them. Appellant told the officers that the shoes were his. The officers also

took a pair of blue jeans that had a prescription for Appellant in the pocket.

The occupants of the hotel rooms were taken to the Munford Police Department and

interviewed. Agent Reynolds and Munford Police Captain Randall Baskin interviewed

Appellant. Appellant waived his Miranda rights prior to the interview. Initially, Appellant

denied any involvement with the victims. Shortly after the Appellant’s initial statement,

Agent Reynolds received a phone call informing him that Appellant’s shoes, blue jeans and

jacket from the motel room tested positive for blood.

When Agent Reynolds told Appellant that the forensics team would be collecting

evidence connecting him to the murders, he noticed a shift in Appellant’s demeanor. He

gave the following statement to Agent Reynolds:

I left school between 12:30 p.m. and 1:00 p.m. I walked around the

neighborhood near the ball fields. I walked through the graveyard and to the

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skate board park. I walked to Scott Locke’s house on Wiley. I don’t really

recall what time I got there. I sat at Scott’s house and played with the dogs and

walked around his porch. The house was locked, and I wasn’t able to get in.

The mailman came up, and I signed for a package for Mr. Randy. I put

the package on the porch on the ledge. It wasn’t a package. It was just mail

you had to sign for.

A little bit after I signed for the mail I walked over to the Walkers. I

went over to ask to use the restroom. I knocked on the door, and Mr. Walker

came to the door. I asked him if I could use his restroom. He let me in and

asked me if I was locked out of the house. I told him I was, and he said to

come on in, and he pointed to the direction of the restroom. I went and used

the restroom. I came out of the restroom and went to the living room and

talked to Mr. Walker. I told him he had a nice house. He was sitting in a

chair. I was standing.

All of a sudden I became very angry. I don’t think he said anything that

would cause me to get angry. I said thanks and left. We did not argue or he

did not know I was angry. I walked across to Scott’s and got an aluminum

baseball bat. I walked back over to the Walkers with the bat. I put the bat

behind me under my coat. I was hiding it.

I walked back and knocked again, and Mr. Walker came to the door

again. I don’t recall saying anything. He opened the door. There is probably

more, but I don’t remember. Some of the things are blank to me. I went to the

front door on the porch, not the door at the driveway. We were both standing

in the living room. I did not say anything to him. I just pulled the bat from

behind my back, swung and hit him in the forehead in the front. He did not

fall, so I kept hitting him. He eventually fell face down.

His wife was screaming and came into the room. I pushed her, and she

fell into the dining room. She was on the ground and I started swinging and

hitting her. I really don’t know where I was hitting her. I don’t know how

many times I hit her or Mr. Walker. I didn’t stop until they were not moving

anymore.

I then left out the same door I came in. I think I locked the door behind

me, but I really can’t remember. I walked back over to Scott’s and threw the

bat beside the house in some trash. I just sat down on a basket thing in the

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back yard and didn’t move. I sat there until Scott came home. After I put the

bat down and before I sat down, I washed my hands in a puddle of water in the

back yard. I think I also washed my face with the water in the puddle. When

Scott came home, his mom and sister were in the truck with him.

The story picks up and is exactly like I told you in the first statement

from this point. As I sat in the back yard I was still angry and confused. I just

couldn’t stop. I didn’t say anything while I was hitting them.

Officers located the baseball bat in the location that Appellant described. The bat was

shown to Appellant, and he identified it as the murder weapon. A DNA sample was taken

from Appellant.

TBI Special Agent David Harmon was with the violent crime response team involved

with the investigation of the murder of the victims. He collected items from the hotel room

including several pairs of shoes and Appellant’s cellphone. TBI Special AgentJohn Sullivan

collected blood samples from the victims. Special Agent Joel Franklin Wade is a forensics

specialist in computers and mobile phones. He found a text message from Appellant to Scott

stating, “Yo, dude, I got a ride, oh yeah, and you said you wanted your nosy neighbors dead,

right?”

TBI Special Agent Laurence James with the violent crime response team processed

the victim’s house. He made note of the position of the victims’ bodies and the blood spatter

present at the scene. He concluded that Mrs. Walker had been moved after the beating.

Agent James based this conclusion on blood spatter on a piece of furniture, a pool of blood

a fair distance from the body, and a transfer bloodstain on her ankle. Agent James opined

that the blood spatter surrounding Mr. Walker indicated the brutality of the attack. He said

that he found blood spatter with hair attached in the hallway that was thirteen feet away from

the body. He also collected blood samples for DNA analysis from the victims.

Agent James testified that the blood on Mrs. Walker was tested, and it contained a

mixture of DNA from both her and Mr. Walker. The blue jeans, shoes, and jacket collected

at the hotel tested positive for the presence of blood. The blood from these items were

compared to the DNA samples from the victims and Appellant. The blue jeans contained a

mixture of DNA matching both victims and a third unidentified person. The shoes contained

a mixture of DNA matching both of the victims. On the jacket, the DNA found belonged

mostly to Mrs. Walker, but Mr. Walker’s DNA was also found as a minor contributor. Agent

James testified that the blood stains on the jacket were “consistent with a baseball bat

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swinging backwards and depositing blood on the rear shoulder area.” The baseball bat

contained DNA matching Mrs. Walker.

Dr. Karen Chancellor is the Chief Medical Examiner for Shelby County. She

performed the autopsies on the two victims. She testified that the cause of death for Mr.

Walker was blunt force injuries. She stated that he suffered at least fifteen blows to the head

and that any one of them could have been fatal. Dr. Chancellor also concluded that blunt

force injury was the cause of Mrs. Walker’s death. Dr. Chancellor stated that Mrs. Walker

sustained at least sixteen blows to her head, as well as additional blows to her body. She

stated that “one of the large lacerations on her head would result in enough bleeding that

could cause death.”

The jury returned a verdict convicting Appellant on allsix counts on January 19, 2012.

After additional proof, the jury determined that Appellantshould be sentenced to life without

parole for the murder convictions. On April 3, 2012, the trial court held a sentencing hearing

and sentenced Appellant to eight years at 100% for the especially aggravated burglary

conviction. In addition, the trial court merged the two felony murder counts into the

premeditated first degree counts and one especially aggravated burglary count into the other.

The trial court ordered that all the sentences were to be served consecutively.

Appellant filed a timely notice of appeal.

ANALYSIS

Transfer to Circuit Court

Appellant argues that the juvenile court erred in transferring his case to circuit court.

He argues that: the juvenile court erred in its “process of assessing committability”; the

juvenile court’s denial of funding for an independent psychological evaluation precluded a

fair and impartial determination regarding committability; the juvenile court erred in holding

Appellant without bond; and the decision to transfer Appellant failed to follow the minimum

requirements set out in Tennessee Code Annotated section 37-1-128 and the process was

inherently flawed.

A juvenile court may transfer a child, who is sixteen at the time the alleged crime was

committed, to the criminal court to be tried as an adult if the child is alleged delinquent and

charged with one of several listed crimes, including first degree murder. T.C.A. § 37-1-

134(a)(1). Before such transfer can occur, the juvenile must be provided with notice and a

hearing on the transfer. T.C.A. § 37-1-134(a)(2), (3). During the hearing, the juvenile court

must find “reasonable grounds to believe” that the juvenile committed the delinquent act as

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alleged, that the juvenile “is not committable to an institution for the developmentally

disabled or mentally ill,” and that the community’s interests require legal restraint or

discipline of the juvenile. T.C.A. § 37-1-134(a)(4)(A)-(C). In considering whether to

transfer the juvenile to criminal court, the juvenile court shall consider the following factors:

(1) [t]he extent and nature of the child’s prior delinquency records;

(2) [t]he nature of past treatment efforts and the nature of the child’s response

thereto;

(3) [w]hether the offense was against person or property, with greater weight

in favor of transfer given to offenses against the person;

(4) [w]hether the offense was committed in an aggressive and premeditated

manner;

(5) [t]he possible rehabilitation of the child by use of procedures, services and

facilities currently available to the court in this state; and

(6) [w]hether the child’s conduct would be a criminal gang offense, as defined

in § 40-35-121, if committed by an adult.

T.C.A. § 37-1-134(b)(1)-(6).

On appeal of an order of transfer from juvenile court, we do not decide where the

preponderance of the evidence lies, but whether there were reasonable grounds for the

juvenile court judge to believe that the three criteria of section 37-1-134(a)(4)(A)-(C)

mentioned above were present. See State v. Strickland, 532 S.W.2d 912, 920 (Tenn. 1975);

State v. Layne, 546 S.W.2d 220, 224 (Tenn. Ct. App. 1976). A juvenile court judge’s

discretionary decision to allow a juvenile to be treated as an adult should not be disturbed on

appeal, if there was probable cause to believe that the juvenile committed the crime and the

evidence at the hearing showed that the juvenile was not mentally impaired and should be

legally restrained. See State v. Mario A. Reed, No. M2009-00887-CCA-R3-CD, 2010 WL

3432663, at *6 (Tenn. Crim. App., at Nashville, Aug. 31, 2010), perm. app. denied, (Tenn.

Jan. 13, 2011); State v. Cecil L. Groomes, et al, No. M1998-00122-CCA-R3-CD, 2000 WL

1133542, at *7 (Tenn. Crim. App., at Nashville, Aug.10, 2000) (citing State v. Orange, 543

S.W.2d 344, 346-47 (Tenn. Ct. App. 1976)).

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On March 3, 2011, the juvenile court held a transfer hearing to determine if

Appellant’s case should be transferred to circuit court. Agent Reynolds and Scott Locke

were the first two witnesses. They testified about the facts and the investigation relating to

the murders of the victims. Their testimony essentially laid out the same facts as related

above.

The next witness was Dr. Wyatt Nichols with West Tennessee Forensic Services. Dr.

Nichols is a clinical psychologist specializing in forensic psychology. The juvenile court

requested that Dr. Nichols evaluate Appellant for purposes of the transfer hearing. Dr.

Nichols stated that the trial court’s request was for him to determine the following:

[W]hether the child has a mental illness or mental retardation; whether the

child is subject to voluntary admission or involuntary commitment; the type of

care, training, and treatment required to address any mental illness or mental

retardation found; any resources available to provide such services, included

but not limited to those provided by Tennessee Department of Children’s

Services; and the specific forensic issue, competency to proceed.

Dr. Nichols testified that he reviewed records from Lakeside Hospital where

Appellant had in-patient treatment in September 2010. He reviewed recordsfrom out-patient

treatment that happened after Appellant’s discharge from Lakeside. Dr. Nichols further

reviewed notes from Appellant’s therapist, by whom he was treated when he was ten years

old. Dr. Nichols discussed Appellant’s treatment at Lakeside with Appellant’s psychiatrist,

Dr. Hoehn. Dr. Nichols stated that Appellant was tested for the doctor’s evaluation and he

was interviewed for about three hours over a two day period. Dr. Nichols submitted his

report to the juvenile court.

Dr. Nichols concluded that Appellant was competent to proceed to trial and that he

was not mentally retarded. He stated that Appellant was of at least average intelligence. Dr.

Nichols stated that Appellant could benefit from hospitalization but that it was not absolutely

necessary. Dr. Nichols testified that Appellant did have a mental illness, and Dr. Nichols was

of the opinion that Appellant was developing schizophrenia. He said Appellant had the early

symptoms of paranoid schizophrenia.

The juvenile court held the following at the conclusion of the hearing:

The evidence today has shown that the child is 16 years or more of age and

that he is charged with an offense that allows the State to petition the Court for

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transfer, that being first-degree murder, and there are other offenses delineated

in the statute. Only the most serious crimes allow the State to make this

request of the Juvenile Court.

Once the request is made, of course, there are various elements that the

Court has to look at, but particularly that the child is 16 years or more of age

at the time of the alleged conduct, that he is charged with a transferable

offense.

And then at the hearing the Court is to follow certain rules as set out by

State law, which the Court has followed. Reasonable notice was given to the

parents as required by statute.

And then the Court is required to look at three grounds; that is, whether

or not there are reasonable grounds to believe that the child committed the

delinquent act that he is alleged to have committed, which the Court finds

certainly the State has shown reasonable grounds.

The second test is whether or not he is committable to an institution for

the mentally ill. And, [defense counsel], certainly [Appellant] has significant

mental issues. I’m not finding guilt or innocence. I just deal with a probable

cause, reasonable grounds issue today. But the Court will believe that anyone

that is charged with committing a double murder with a baseball bat certainly

has significant mental issues. No one that is normal would commit such an

act.

But that’s not the test that the Court is required to look at. The test is

whether or not he is committable into a mental institution. And some General

Sessions judges do a lot of commitments with adults. This Court in this

particular county doesn’t have that jurisdiction. But I do have the jurisdiction

to commit juveniles, and I’ve had some of these.

And the question would be if the State tried to involuntarily commit

[Appellant] and he fought it and his parents fought it, would -- it would take

the testimony of two doctors to testify that he is dangerous to himself or others

and ask for a Court Order forcing him against his will to be placed into a

mental health institution. And I think Dr. Nichols was clear in his testimony,

he did not rise to that level.

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Now, the Court had the evaluation done. It’s about three weeks, maybe

30 days old or whatever. And I don’t think that the law requires someone to

continue to be tested right up to the day that they come to court.

The Court has -- we have exercised considerable resources in having

this evaluation done, and Dr. Nichols indicated, yes, [Appellant] does have

significant problems. But the Court does not believe it rises to the level where

he could be involuntarily committed into a mental institution because he is

mentally ill, which is what the test is.

The juvenile court concluded that all requirements were met to transfer Appellant to

the custody of the circuit court.

Committability

Appellant first arguesthat the juvenile court erred because it used the wrong analytical

process to determine whether or not Appellant was “committable.” In his brief, Appellant

argues that the juvenile court “confuse[d] the legal obligations regarding burden of proof and

the Court appears to have placed no burden at all upon the State to affirmatively prove that

the appellant was noncommittable to a psychiatric hospital.” The State disagrees.

As set out above, three witnesses testified at the transfer hearing, Agent Reynolds,

Scott Locke, and Dr. Nichols. Dr. Nichols testified extensively about his review of

Appellant’s records, Appellant’s testing in his office, and his interview of Appellant. Dr.

Nichols stated that while Appellant was mentally ill he was not committable to a psychiatric

institution. At the conclusion of the hearing, the juvenile court went through all the statutory

factors. Although the juvenile judge mentioned the use of two doctors in an involuntary

committment hearing and various requirements in an adult commitment hearing, the juvenile

court clearly stated that the test to be applied in Appellant’s case was “whether or not he is

committable into a mental institution.”

We conclude that the juvenile court neither applied an incorrect analysis nor shifted

the burden of proof. Dr. Nichols testimony regarding his evaluation of Appellant. This

testimony was reasonable grounds upon which the juvenile court could rely to find that the

second criteria for transfer was met, namely, that Appellant was not committable. After a

review of the record, we conclude that there was probable cause to support the juvenile

court’s decision.

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Funding

Appellant also argues that the juvenile court’s denial of funding for the procurement

of his own psychological evaluation predetermined that he would be transferred and this

violated his right to due process and effective assistance of counsel.

Appellant filed an ex parte motion requesting funds to hire a forensic criminal

psychologist to conduct a mental health evaluation. The juvenile court denied the motion in

a written order that stated the following, in part, “The Court previously ordered it’s own

independent psychiatric evaluation of the Defendant which has been completed and filed

with the Court. The Court finds that at the stage of proceedings presently before the Court,

a Transfer Hearing, that the independent psychological evaluation already conducted by the

Court is sufficient for the issues to be decided.”

Appellant puts forth a confusing argument that Dr. Nichols stated that Appellant was

not committable because he was incarcerated. The following exchange occurred during the

cross-examination of Dr. Nichols which is pertinent to this issue on appeal:

Q. And your report says he’s not committable because he’s, I think you

used the word incarcerated?

A. Well, I didn’t mean to word it that way, if I did. As long as he is

incarcerated he is not committable at this time.

Basically there are two reasons a person would be committable in

[Appellant’s] situation. One would be they would be so psychotic that they

couldn’t control themselves and there was a management problem for the jail

or they may hurt themselves due to their psychosis or somebody else would

hurt them, or they’re suicidal or homicidal. He’s neither to that point.

Dr. Nichols clarified later in his testimony that Appellant was not committable whether he

was incarcerated or not. He specifically stated, “he would not be committable if he were out

of jail.” Therefore, Appellant’s argument regarding this line of testimony is meritless.

Appellant also argues that his right to due process was violated because the denial of

his request for funding for a psychological examination prevented him from confronting and

effectively cross-examining witnesses. Appellant citesto no authority thatspecifically states

that funding for a psychiatric evaluation for the defense is required under either the United

States or Tennessee Constitutions. Appellant relies upon the Advisory Commission

Comments to Rule 24 of the Tennessee Rules of Juvenile Procedure which states:

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Regarding § 37-1-134, and subsection (b)(4) of Rule 24, it has been held by

both the Tennessee Court of Appeals and Court of Criminal Appeals that,

although the burden of proof is on the prosecution on such issue, there is a

presumption of non-committability similar to that relating to sanity in criminal

trials. Such presumption can be rebutted by evidence introduced by the

defendant, and in such event the burden would shift back to the prosecution to

persuade the court the child is not committable. See Boyd v. State, Tenn. Crim.

App. (December 30, 1979); State v. Miller, Tenn. App., Middle Section (June

25, 1976). The committee suggests, however, that it is good practice in any

case for the court to arrange for testing and evaluation, evidence of which may

be introduced by either side of the parties or the court on the issue of

committability.

(emphasis added).

Although Appellant cites this comment to support his argument, it actually does the

opposite. The Advisory Commission suggests that the best practice is for the court to order

testing and evaluation. In the case at hand, the juvenile court followed this suggestion. On

January 24, 2011, the juvenile court ordered an outpatient evaluation of Appellant by West

Tennessee Forensic Services. Furthermore, the juvenile court did not restrict Appellant’s

cross-examination of Dr. Nichols. Because the juvenile court acted precisely as directed in

the Advisory Commission Comments to Rule 24 and was allowed to fully cross-examine Dr.

Nichols, we conclude Appellant’s due process rights were not violated.

Appellant also argues that he was afforded ineffective assistance of counsel based

upon this issue. Under the Sixth Amendment to the United States Constitution, when a claim

of ineffective assistance of counsel is made, the defendant bears the burden of showing that

(a) the services rendered by trial counsel were deficient and (b) that the deficient

performance was prejudicial. See Powers v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App.

1996). In order to demonstrate deficient performance, the petitioner must show that the

services rendered or the advice given was below “the range of competence demanded of

attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). In order

to demonstrate prejudice, the petitioner must show that there is a reasonable probability that,

but for counsel’s deficient performance, the result of the proceeding would have been

different. See Strickland v. Washington, 466 U.S. 668, 694 (1984). “Because a petitioner

must establish both prongs of the test to prevail on a claim of ineffective assistance of

counsel, failure to prove either deficient performance or resulting prejudice provides a

sufficient basis to deny relief on the claim.” Henley v. State, 960 S.W.2d 572, 580 (Tenn.

1997).

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Appellant relies upon Howell v. State, 185 S.W.3d 319 (Tenn. 2006) to support his

argument. In Howell, our supreme court held that trial counsel’s representation of the

defendant was deficient because trial counsel failed to offer evidence at the defendant’s

juvenile transfer hearing concerning his mental health. 185 S.W.3d at 327. The supreme

court based this decision on the fact that trial counsel’s statement that he was waiting until

the criminal trial to present mental health evidence was not supported by the record and trial

counsel did not adequately prepare and investigate even if the record had supported his

strategy. Appellant argues that this supports the conclusion that the failure of defense

counsel to secure a mental evaluation is de facto deficient representation.

However, the facts in the case at hand are very different. In this case, trial counsel

filed a motion requesting funding to pay for his own evaluation of Appellant’s mental health.

The trial court denied the motion. We cannot find any fault on the part of trial counsel. He

filed a motion which was denied by the trial court. There was no deficiency in counsel’s

representation of Appellant in this regard. Therefore, Appellant cannot meet both prongs of

the test set out in Strickland v. Washington, 466 U.S. 668, 694 (1984), and he cannot prevail.

Therefore, this issue is without merit.

Bond

Appellant also argues that the juvenile court erred when it failed to set bond when the

case was transferred from juvenile court. The State concedes that the juvenile court erred

when it did not set bond. However, the State also argues that the error was harmless.

At the conclusion of the transfer hearing, the juvenile court stated that it could not set

bond because Appellant’s case was a capital case and that the juvenile court lost jurisdiction

upon transfer. Under Rule 24(b)(7) of the Tennessee Rules of Juvenile Procedure, the

juvenile court must set bond in the order of transfer so long as the offense is bailable.

Tennessee Code Annotated section 40-11-102 states that “[b]efore trial, all defendants shall

be bailable by sufficient sureties, except for capital offenses where the proof is evident or the

presumption great.” Appellant was a juvenile when he committed the crime, therefore, the

death penalty was not applicable to his case. T.C.A. § 37-1-134(a)(1).

Pursuant to the rules and statutes in this State, the juvenile court should have set bond

at the conclusion of the transfer hearing. The proper remedy for a juvenile to pursue when

bail is denied upon transfer is to appeal to the circuit court. T.C.A. § 40-11-144(b). In this

case, Appellant did so when he filed a motion to set bond on April 1, 2011, and the circuit

court set bond at $750,000.

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We agree with Appellant that the juvenile court erred, but we also agree with the State

that, in view of the eventual setting of bond, the error was harmless. The circuit court set bail

upon receiving Appellant’s case. In addition we note that a court’s failure to grant a

defendant bond does not necessarily lead to dismissal of the indictment. State v. Johnson,

980 S.W.2d 414, 421 (Tenn. Crim. App. 1998).

Therefore, Appellant is not entitled to relief on this issue.

Tennessee Code Annotated section 37-1-128 Requirements

Appellant also argues that the juvenile court did not follow the requirements of

Tennessee Code Annotated section 37-1-128 because there was no report from the

Department of Children’s Service (“DCS”). The State argues that Appellant failed to object

to the fact that there was no DCS report and cannot now claim error.

Appellant does not cite any authority that states that a report from DCS is mandatory

before transfer. Tennessee Code Annotated section 37-1-128(c)(1) addresses the

adjudication of a child as delinquent, unruly, or dependent and neglected. That statute states,

in part, “the court may order that the department make an assessment of the child and report

the findings and recommendations to the court.” T.C.A. § 37-1-128(c)(1) (emphasis added).

Furthermore, there is no evidence in the record that Appellant lodged any objection

to the fact that there was no DCS report before or during the transfer hearing. Typically, a

defendant’s failure to make a contemporaneous objection during trial constitutes a waiver of

an issue. Tenn. R. Evid. 103(a)(1); Tenn. R. App. P. 36(a) (stating that “Nothing in this rule

shall be construed as requiring relief be granted to a party responsible for an error or who

failed to take whatever action was reasonably available to prevent or nullify the harmful

effect of an error.”); State v. Cravens, 764 S.W.2d 754, 757 (Tenn. 1989). After a review of

the record, we agree with the State. Appellant made no objection to fact that there was no

DCS report. Therefore, he cannot successfully raise this issue on appeal.

Sufficiency of the Evidence

Appellant arguesthat the evidence was notsufficient to support his convictions of first

degree premeditated murder, first degree murder or especially aggravated burglary because

Appellant had a “clearly psychotic and impaired mind.” The State argues that the evidence

was sufficient to support the convictions.

To begin our analysis, we note that when a defendant challenges the sufficiency of the

evidence, this Court is obliged to review that claim according to certain well-settled

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principles. A verdict of guilty, rendered by a jury and “approved by the trial judge, accredits

the testimony of the” State’s witnesses and resolves all conflicts in the testimony in favor of

the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); State v. Harris, 839 S.W.2d

54, 75 (Tenn. 1992). Thus, although the accused is originally deemed with a presumption

of innocence, the verdict of guilty removes this presumption and replaces it with one of guilt.

State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); State v. Tuggle, 639 S.W.2d 913, 914

(Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to demonstrate

the insufficiency of the convicting evidence. Id.

The relevant question the reviewing court must answer is whether any rational trier

of fact could have found the accused guilty of every element of the offense beyond a

reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 318-19 (1979).

In making this decision, we are to accord the State “the strongest legitimate view of the

evidence as well as all reasonable and legitimate inferences that may be drawn therefrom.”

See Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from re-weighing or

reconsidering the evidence when evaluating the convicting proof. State v. Morgan, 929

S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn.

Crim. App. 1990). Moreover, we may not substitute our own “inferences for those drawn

by the trier of fact from circumstantial evidence.” Matthews, 805 S.W.2d at 779. Further,

questions concerning the credibility of the witnesses and the weight and value to be given

to evidence, as well as all factual issues raised by such evidence, are resolved by the trier of

fact and not the appellate courts. State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).

The guilt of a defendant, including any fact required to be proved, may be predicated

upon direct evidence, circumstantial evidence, or a combination of both direct and

circumstantial evidence. See State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim.

App. 1999). Even though convictions may be established by different forms of evidence, the

standard of review for the sufficiency of that evidence is the same whether the conviction is

based upon direct or circumstantial evidence. See State v. Dorantes, 331 S.W.3d 370, 379

(Tenn. 2011). As such, all reasonable inferences from evidence are to be drawn in favor of

the State. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); see Tuggle, 639 S.W.2d at

914.

Appellant’s argument on appeal consists of an assertion that Appellant “was psychotic

months before this event took place” and a recitation of the facts presented at trial, with no

citations to the record. He also argues that there are no available studies as to the effects of

“bath salts” to explain Appellant’s actions as a reaction to the drug used the afternoon of the

murders.

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Appellant was allowed to present his own witnesses and present proof as to his mental

condition at trial. Dr. Fred Steinberg testified regarding his training as a forensic and clinical

psychologist and his practice. He completed an evaluation of Appellant and testified at trial

about his findings. The jury heard the evidence presented and found in favor of the State.

As stated above, it is not this Court’s role to resolve witness credibility and resolve questions

of fact. Pruett, 788 S.W.2d at 561.

Furthermore, in the case at hand, Appellant confessed to the crimes. Our supreme

court has stated that “the state needs ‘only slight evidence . . . to corroborate a confession and

sustain a conviction.’” State v. Housler, 193 S.W.3d 476, 490 (Tenn.2006) (quoting State

v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000)). In addition, circumstantial evidence is

sufficient to corroborate such a statement. State v. Jones, 15 S.W.3d 880, 891 (Tenn. Crim.

App. 1999).

There was ample evidence to corroborate Appellant’s statement. Mr. Archer stated

that he dropped Appellant off at the Locke house on the day in question. Appellant was seen

walking into the Walker house by Mr. Wilburn, the cableman. Ms. Hance, the postal carrier

also placed Appellant at the Locke house across the street from the Walker house. DNA

from the victims was discovered on Appellant’s shoes, blue jeans, and jacket. The position

of the bodies matched the description given by Appellant to the police. Appellant said he

used a baseball bat which was located by police. The bat had several large dents in it and the

medical examiner testified that the victims died from blunt force injury to the head.

We conclude that there was sufficient evidence to support the conviction of Appellant

for all charges.

Modification

The State states in its brief that Appellant’s convictions for first degree murder and

especially aggravated burglary cannot stand where the serious bodily injury suffered by the

victims is death.

Tennessee Code Annotated section 39-14-404 sets out the offense of especially

aggravated burglary, which is the burglary of a habitation where the victim suffers serious

bodily injury. The statute provides, “Acts which constitute an offense under this section may

be prosecuted under this section or any other applicable section, but not both.” T.C.A. §

39-14-404(d). This Court has held that a conviction for both especially aggravated burglary

and murder cannot stand because the killing of another is “serious bodily injury” under this

statute. See State v. Oller, 851 S.W.2d 841, 843 (Tenn. Crim. App. 1992). When such an

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event has occurred, the “proper remedy” is to modify the sentence for especially aggravated

burglary to aggravated burglary as a lesser included offense. See State v. Holland, 860

S.W.2d 53, 60 (Tenn. Crim. App. 1993); Oller, 851 S.W.2d at 843.

Therefore, we remand to the trial court for entry of a judgment reflecting a modified

conviction of aggravated burglary and for re-sentencing.

CONCLUSION

For the foregoing reasons, we affirm the transfer from the juvenile court to the circuit

court and Appellant’s convictions for murder. However, we remand to the trial court for

entry of a judgment reflecting a modified conviction of aggravated burglary and for resentencing.

___________________________________

JERRY L. SMITH, JUDGE

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