State of Tennessee v. Corinio Pruitt

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
July 13, 2010 Session

STATE OF TENNESSEE v. CORINIO PRUITT

Direct Appeal from the Criminal Court for Shelby County
No. 06-00460 Chris B. Craft, Judge

No. W2009-01255-CCA-R3-DD - Filed June 13, 2011

Capital Appellant, Corinio Pruitt, appeals as of right from his conviction for first degree
felony murder and his sentence of death resulting from the August 2005 death of Lawrence
Guidroz. On February 29, 2008, a Shelby County jury found the Appellant guilty of one
count of second degree murder and one count of first degree felony murder, and the trial
court merged the conviction for second degree murder with the first degree murder
conviction. At the conclusion of the penalty phase, the jury unanimously found the presence
of three statutory aggravating circumstances; specifically, (1) the defendant had previously
been convicted of one or more felonies involving the use of violence, (2) the murder was
knowingly committed while the defendant had a substantial role in committing a robbery, and
(3) the victim was seventy (70) years of age or older. See T.C.A. § 39-13-204(i)(2), (7), (14).
The jury further determined that these three aggravating circumstances outweighed any
mitigating circumstances and imposed a sentence of death. The trial court approved the
sentencing verdict. On appeal, the Appellant presents the following issues for our review:
(1) whether the trial court erred in failing to find the Appellant intellectually disabled 1 and
ineligible for the death penalty, (2) whether the evidence is sufficient to support a conviction
for first degree felony murder, (3) whether the trial court erred in permitting the introduction
of the autopsy photographs of the victim, (4) whether application of the (i)(7) aggravating
circumstance is constitutional, (5) whether the evidence is sufficient to support application
of the (i)(7) aggravator, and (6) whether the sentence of death is proportionate in the present
case. After a thorough review of the record and the applicable law, we affirm the judgment
of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

1
Pursuant to the Tennessee Supreme Court’s opinion in Michael Angelo Coleman v. State, —
S.W.3d — (Tenn. 2011), No. W2007-02767-SC-R11-PD, 2011 WL 1346932, at *30 n.5 (Tenn. Apr. 11,
2011) and the recently amended Tennessee Code Annotated section 39-13-203 (Supp. 2010), we will use the
term “intellectual disability” rather than “mental retardation” except in quoted material where we will use
the term specifically stated in the quotation.
C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which T HOMAS T.
W OODALL, and JOHN E VERETT W ILLIAMS, JJ., joined.

Harry E. Sayle, III, and Tony N. Brayton, Memphis, Tennessee, for the Appellant, Corinio
Pruitt.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
James E. Gaylord, Assistant Attorney General; William L. Gibbons, District Attorney
General, Amy P. Weirich, Alanda H. Dwyer, and John W. Campbell, Assistant District
Attorneys General, for the Appellee, State of Tennessee.

OPINION

Evidence at Guilt Phase

On August 2, 2005, Taka Pruitt rode to the Apple Market on Winchester Road in
Memphis, Tennessee, with her neighbor to get a newspaper. When her neighbor went into
the store, Pruitt stayed in the vehicle. She immediately recognized a young man, standing
to the left of the door, because he lived in her apartment complex. About five minutes later,
Ms. Pruitt saw an elderly gentleman walking out of the store with groceries. The elderly man
walked toward his car parked to the side of the store. She then observed the young man, who
had been standing outside the store, run after the elderly man. As the elderly gentleman
opened his car door, the young man pushed him into the car. She saw the men “tussling” and
saw “the [elderly] man’s feet dangling . . . .” She then “saw the young gentleman throw the
old man to the ground.” The young man “slammed the door and took off in the car.” Ms.
Pruitt confirmed that the young man, who lived in her apartment complex, acted alone during
this incident. She also stated that she never saw a teenaged male in a white shirt, later
identified as Courtney Johnson, during the incident.

Ms. Pruitt ran into the Apple Market and yelled for someone to call 911. She then ran
toward the victim as she dialed 911 on her cell phone. She immediately asked the man if he
needed help. She saw that the elderly man was “shaking” and “looked like he was trying to
breathe, but he couldn’t.” She noticed that “[b]lood was coming out of his nose and out of
both his ears.” Ms. Pruitt later identified the Appellant from a police photospread as the
perpetrator of the August 2, 2005 beating of the victim, Lawrence Guidroz, at the Apple
Market parking lot. She also identified the Appellant as the perpetrator at trial.

Michael Williams, the owner of the Apple Market, was informed by his employees
of an altercation in the parking lot between 9:00 and 10:00 a.m. on August 2, 2005. When

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he arrived outside, he saw an older man lying on the pavement. When Williams reviewed
the store’s surveillance video, he realized that the victim was a frequent customer at the
Apple Market.

Thomas Leech, III, received a telephone call on August 2, 2005, from his wife,
notifying him that their long-time family friend, seventy-nine-year-old Lawrence Guidroz,
had been attacked and was being treated at St. Francis Hospital. By the time Mr. Leech
arrived at the hospital, the victim had been taken to surgery. Leech said that the victim never
regained consciousness after undergoing brain surgery. The victim subsequently died at
11:00 p.m. on August 3, 2005.

Memphis Police Officer Charmell Smith responded to the scene of the crime at the
Apple Market on Winchester and Tullahoma on August 2, 2005. Upon arrival, he observed
the victim, an older white male, approximately seventy-five to eighty years old, on the ground
in the parking lot. Officer Smith stated that the victim was bleeding from his ears and was
“semi-conscious.” He immediately called for an ambulance.

Following the report of the victim’s attack, Sergeant Robin Hulley began looking for
the victim’s missing vehicle, a gold or yellow Chevrolet Malibu. The vehicle was quickly
found in a parking spot at the Somerset Apartments but was moved before the police could
take further action. The vehicle was subsequently observed by an officer pulling into the
garage of a house located at 3180 Beauchamp Drive. Sergeant Hulley and five other officers
arrived at that location. Once there, Sergeant Hulley observed a man wearing a red shirt exit
the vehicle and enter the house. While the officers were waiting for backup officers to
arrive, another man, who was shorter than the driver of the vehicle and wearing a white shirt,
exited the house. The officers immediately detained the man in the white shirt, who yelled,
“The guy that you want is in the backyard.” Sergeant Hulley and Lieutenant Clark then
observed the man in the red shirt jump the fence, run through the backyard, and enter a
wooded area. Additional officers, police dogs, and a helicopter were called to the scene to
assist in the search of the man in the red shirt. One of the dogs later located a red shirt;
however, the man who had worn the red shirt was not apprehended at that time. The man
wearing the white shirt at the Beauchamp Drive address, later identified as Courtney
Johnson, was taken into custody by the officers.

Courtney Johnson acknowledged at the Appellant’s trial that he was currently
incarcerated on a burglary of a vehicle charge. He said he lived with his grandmother at
3180 Beauchamp Drive in Memphis at the time of the offense in this case. At approximately
9:00 a.m., on August 2, 2005, Johnson walked to the Apple Market. On his way to the
market, he encountered the Appellant. The Appellant told Johnson of his plans to steal a car
and asked Johnson if he would get in the car with him if he did take one. The Appellant said

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he intended to steal a car from a woman, and Johnson told him that he would not participate
after the fact. The two walked to the Apple Market and stood near the drink machine in front
of the store. The Appellant’s cousin, Michael Rockett, walked up and spoke to them for a
few minutes. The Appellant and Johnson stayed outside for approximately twenty minutes
but did not see any female customers leaving the store. Then Johnson’s friend “Sed”
approached the store, and Johnson and “Sed” walked to the Family Dollar store nearby. Prior
to leaving, Johnson saw an elderly man enter the Apple Market. Johnson claimed that he left
the market with “Sed” because he was trying to distance himself from the Appellant. When
Johnson returned to the Apple Market from the Family Dollar store, he saw “the old man
[lying] down with blood coming out of his head, and his car, a brown Chevrolet, was gone.”
Johnson also noticed that the Appellant was gone. Johnson left the scene without talking
to the police because he did not want to “snitch on [the Appellant].” He did not see the
Appellant again until three days after the incident when the Appellant parked the victim’s car
in Johnson’s grandmother’s garage on Beauchamp Drive, and the police arrived. Johnson
said that the Appellant told him at that time that he had “body-slammed” the victim in order
to steal the victim’s car.

Memphis Police Officer Francis Carpenter examined the victim’s gold Chevrolet
Malibu and obtained fingerprints from the windshield on the passenger side, the right rear
fender, the trunk of the vehicle on the passenger side, and the left rear fender of the vehicle.

Nathan Gathright, a latent print examiner with the Memphis Police Department,
examined the prints obtained from the victim’s Chevrolet Malibu. He determined that the
prints belonged to Mbenda McCracken, Kendricks Scott, and the Appellant, Corinio Pruitt.

Kendricks Scott saw the Appellant driving the Chevrolet Malibu in early August 2005.
The Appellant called Scott over to the car and asked if he wanted a ride. Scott opened the
back door of the car and got inside. The Appellant then told Scott that the car belonged to
his aunt. Scott said that on the day after he saw the Appellant with the car he learned the
Chevrolet Malibu was actually taken in a carjacking.

Mbenda McCracken stated that he saw the Appellant driving the Chevrolet Malibu
in August 2005. The Appellant told McCracken that the car belonged to his girlfriend.
McCracken got in the vehicle with the Appellant and “drove to the store, got a few beers,
copped [sic] some weed[,] and rode around and got high” for three or four hours.
McCracken learned that the vehicle had been taken during a carjacking either later that night
or the next night. McCracken also stated that he saw the Appellant in a holding cell just prior
to taking the witness stand, and the Appellant tried to persuade him to testify that someone
other than the Appellant, presumably Courtney Johnson, drove the victim’s car into the
neighborhood and tried to sell parts from the car. McCracken said that the Appellant told

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him that he and this other individual were trying to break into the victim’s car, and when the
victim came outside, they “grabbed him and threw him down.”

Alma Rockett, the Appellant’s aunt, said that the Appellant lived with her in the
Somerset Apartments in Memphis in early August 2005. She first learned of the offense
against the victim at the Apple Market when she was watching the local news on television.
Rockett was shocked to see the Appellant and “another little guy, dark-skinned guy. . . come
across the television screen.” She also saw her son, Michael Rockett, in the video clip on
television. Rockett and her son immediately went to the police department to inform officers
that her son was not involved in the incident. The Appellant called Rockett after the incident,
and she told him to turn himself into the police.

Dr. Karen Chancellor, the chief medical examiner for Memphis and Shelby County,
performed the autopsy of the victim on August 4, 2005. She reported that the victim was five
feet, seven inches tall and weighed one hundred and twenty-seven pounds at the time of his
death. As a result of her internal and external examination of the victim, Dr. Chancellor
concluded that the victim’s cause of death was multiple blunt force injuries sustained to the
head and to the chest. She explained that “blunt force injury is caused by a blunt object,
perhaps a fist, a rock, a baseball bat . . . .” She further concluded that the victim’s manner
of death was homicide.

Dr. Chancellor stated that the victim had an abrasion on the front of his face and a
laceration on the left side of his forehead. She also noted that “there [was] ecchymosis or
hemorrhag[ing] around both eyes, and that was caused by skull fractures . . . found inside the
body.” Dr. Chancellor described injuries to the victim’s body, including bruising on the ear,
the left side of the chest and the upper arm, the right side of the chest, the neck and shoulder,
the ankle, and the back of the left hand, the back of the right hand, and on the forearms. She
also observed abrasions and bruises on the victim’s lips. Dr. Chancellor opined that all the
victim’s bruises were caused at the same time. She also opined that the victim’s injuries
were sustained at the time of the incident at the Apple Market, which was just prior to his
death.

Regarding her findings as to her internal examination of the victim, Dr. Chancellor
noted that “there was quite a bit of hemorrhage overlying the ribs on the left side” and a
complete fracture of the collarbone. Eleven ribs on the victim’s left side were fractured, and
there were resulting bruises on the surrounding lung tissue. Dr. Chancellor remarked that the
victim had extensive blunt force injury to his head, which included skull fractures, bruises
to brain tissue, and hemorrhaging around the brain. In addition, the victim suffered a
subdural hematoma, which required surgery to avoid severe brain injury. Dr. Chancellor
opined that the victim would have died if he had not undergone brain surgery. She also

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opined that the skull fractures were caused by at least three separate blows or impacts to the
left side of the head. The victim also suffered fractures to the orbital plates directly above
the eyes, which resulted in blood around the eyes.

Although Dr. Chancellor said that she had no knowledge that the victim had a
coagulopathy, a condition making him prone to bleed, she was aware that the victim had
severe coronary atherosclerosis, a blockage of the blood vessels of the heart, and there was
no evidence that the victim had ever had surgical intervention for these blockages. Dr.
Chancellor stated that she did not collect any of the victim’s fractured bones during the
autopsy, since the practice of removing bones was not common. She stated that the victim’s
injuries were consistent with being beaten, but she was not able to determine the order of the
victim’s injuries. Dr. Chancellor also stated that she could not tell if the victim’s injuries
resulted from being struck by a hard object or being forcibly thrust against a hard object or
whether the injuries resulted from a combination of these two actions. However, she opined
that a fall alone would not have caused all of the victim’s documented injuries. Dr.
Chancellor stated that she did not do a bone density test on the victim because it was not a
routine part of an autopsy. She also stated that although injuries to a person’s skeleton were
more likely with osteoporosis, the skull usually “maintains its density.” She further opined
that the victim could not have received his injuries from being pushed to the ground.

The defense presented the testimony of Dr. O. C. Smith, who served as the chief
medical examiner for Shelby County until February 2004. In July 2007, Dr. Smith reviewed
Dr. Chancellor’s file on the victim. He noted that he was unable to examine the victim’s
brain specimen because it had deteriorated due to the absence of a preserving fluid. In
reviewing the medical examiner’s file for the victim, Dr. Smith noticed “a deviation from
what [h]e had considered to be the standard of practice when [he] was with the office.”
Specifically, he stated that the victim’s fractured bones were not properly preserved and that
there were insufficient photographs taken of the victim’s body. He further stated that the
victim’s case was not properly memorialized and, absent proper memorialization, any
mistakes made by the medical examiner were “irremediable, irreversible.”

Dr. Smith testified that the records from St. Francis Hospital indicated that the victim
had coagulopathy and had lost 1.5 liters of blood during surgery. Dr. Smith opined that, for
a person the size of the victim, this would have amounted to a thirty percent loss of the
victim’s blood. Dr. Smith also stated that the medical records showed that the victim had a
ninety percent blockage in one of his major coronary arteries. This condition, in addition to
the loss of 1.5 liters of blood, would have made the victim vulnerable to physiologic shock
and extra strain on his heart. Dr. Smith also related that the victim had been given a blood
transfusion consisting of “fresh frozen plasma and buttons of platelets[,]” which helped to
clot blood in patients, like the victim, who had coagulopathy.

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 Dr. Smith opined that many of the injuries depicted in the autopsy photographs may
have been caused by surgical intervention or hospital or EMT intervention. He added that,
because of the victim’s coagulopathy, “there may have been other seepages into his body .
. . from spontaneous hemorrhag[ing] due to the fact he was not clotting his blood normally.”
Dr. Smith stated that some of the victim’s bruises may have been the result of “senile
ecchymoses” where “a simple push on the skin” can cause “superficial bleeding.” However,
he could not state whether specific bruises on the victim’s body were from “senile
ecchymoses” or were from “more forceful trauma.”

Dr. Smith also found evidence of a “contre-coup” injury, or “decelerating” injury,
which occurs when a moving head strikes a fixed object. Dr. Smith explained that a contre-
coup injury would be consistent with a fall:

The diagnosis in this is a contre-coup injury. This looks like a slow moving
head hitting a flat object so that that can cause this type of fracture pattern as
well as this pattern of damage. So you get the fractures from the impact of the
head against the surface. It’s a broad surface. It’s not like it’s hitting a bunch
of projecting stones or something like that . . . .

Dr. Smith noted that the fractures to the victim’s head, collarbone, and ribs were all on the
left side. He added that, in his medical opinion, “these injuries are best explained by a fall
to a flat surface or some contact where the body is in motion, and then it’s been arrested by
a hard, unyielding surface.”

On cross-examination, Dr. Smith concurred with the medical examiner’s finding that
the victim’s manner of death was homicide caused by blunt force injury to the head and
chest. In addition, he conceded that the manner and cause of death contained in the autopsy
report were consistent with the victim being pushed into a vehicle, feet-dangling out of the
car, with the perpetrator on top of him, and then the perpetrator throwing the victim out of
the car onto the concrete. Dr. Smith agreed that the blood coming out of the victim’s ears
at the scene of the incident indicated trauma to his ear or a skull fracture. Moreover, Dr.
Smith conceded that if surgery not been performed at St. Francis Hospital, the victim would
have died from his injuries.

In rebuttal, the State called Dr. Bruce Levy, the chief medical examiner for the State
of Tennessee and the county medical examiner for Davidson County. Dr. Levy reviewed the
autopsy report prepared by Dr. Chancellor. He opined that Dr. Chancellor properly
memorialized the autopsy by photographing it, diagraming it, and providing a written
narrative. He stated that these memorialization procedures complied with the standards of

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the National Association of Medical Examiners. In addition, Dr. Levy stated that Dr. Smith’s
practice of removing and storing bones from the body was “pretty unique to Memphis even
when it was happening there.” Dr. Levy opined that the failure to store the bones in this case
did not affect the accuracy of the autopsy because Dr. Chancellor documented the victim’s
injuries in other ways.

Dr. Levy stated that the victim in this case suffered blunt trauma injuries. He noted
that there was no distinctive pattern to the injuries and that he was unable to tell the cause of
the injuries. However, he opined that it would be very unusual to sustain the type of injuries
to the skull by tripping and falling down, given the extensive and complex nature of the
injuries. Although he acknowledged that the type of injuries sustained by the victim could
have been caused by a car collision, a fall from a height, a high speed impact or some other
source, he stated that it was important to look at the circumstances of the particular case
because they could provide reasonable explanations as to the cause of the injuries. Dr. Levy
opined that the victim could have suffered his rib fractures if he had been body-slammed onto
the concrete parking lot but could not have suffered these injuries from a simple trip and fall.
In addition, he agreed with Dr. Chancellor’s findings that the victim’s injuries were
consistent with being beaten and then thrown to the ground. Finally, he opined that “the
complexity and number of the fractures” indicated “a significant amount of force, much
greater than you could possibly get from simply falling to the ground and striking your head
on a flat surface.” Dr. Levy acknowledged that if the victim had a particularly fragile skull,
it would affect the severity of the fractures.

The Appellant, Corinio Pruitt, testified in his own defense at trial. He acknowledged
that on March 7, 2003, he had been convicted of aggravated burglary, robbery, criminal
attempt to commit robbery, and theft over $500, all unrelated to the instant case. He stated
that on the date of the offense, he left for work around 6:00 a.m. Once he arrived at work,
he realized that he had left his identification badge at home. He called his aunt and told her
that he was on his way to the house to get his badge; however, he did not return to his aunt’s
home. Instead, the Appellant took the bus to Johnson’s home on Beauchamp Drive. He
arrived at Johnson’s home around 8:30 a.m., and he and Johnson agreed to walk to the Apple
Market. Upon arriving at the market, the Appellant and Johnson stood around the drink
machine outside while they looked for a car to steal. The Appellant said that his cousin,
Michael Rockett, arrived at the store a few minutes later. Rockett went into the Apple
Market, and when he was done shopping there, the Appellant, Johnson, and Rockett walked
over to the Family Dollar. After Rockett left, the Appellant and Johnson returned to the
drink machine outside the Apple Market where they again began looking for a car to steal.

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 The Appellant claimed that he and Johnson walked toward the other side of the Apple
Market because Johnson did not want to be seen on the Apple Market’s surveillance camera.
He also said that Johnson had been “scoping” out the car of an elderly man who had entered
Apple Market. Johnson climbed inside the man’s car, and the Appellant saw the elderly man
exiting the store and walking toward his car. When the elderly man arrived at his car, he
began “struggling with” Johnson. The Appellant said he ran up to the car, grabbed the
elderly man, and “slung him to the car, and I guess when he hit the car, he fell.” The
Appellant stated that he was “so scared” that he got in the man’s car and drove it back to
Johnson’s house. He confirmed that Johnson was not in the car when he drove it to
Johnson’s grandmother’s house. Once Johnson got back to his grandmother’s house, the
Appellant went home. The Appellant said that Johnson called him the next day on August
3, 2005. At that time, the Appellant admitted that the car had been moved to the Somerset
apartment complex where he lived, but he denied moving it there. He claimed that when
Johnson came over to his apartment on August 3, 2005, Johnson picked him up in the
victim’s car, drove to his grandmother’s home on Beauchamp Drive where he resided, and
parked the car in her garage. The Appellant said that he stayed at Johnson’s house until the
police arrived. The Appellant admitted that he was the individual who ran from the police
at the home on Beauchamp Drive. The following day, August 4, 2005, the Appellant said
that he turned himself into the police. The Appellant said that he had initially planned on
selling the parts from the victim’s car.

On cross-examination, the Appellant stated that at the time of the incident he was
twenty-five years old, but he was unsure about Johnson’s age. Although the Appellant
acknowledged telling the police that he approached the victim alone, he maintained at trial
that Johnson was with him when he stole the victim’s car. He further admitted telling the
police that he took the victim’s car back to his apartment because he knew he could not leave
it at Johnson’s grandmother’s house the day of the offense. The Appellant conceded that he
threw the victim to the ground before taking the victim’s car. He also acknowledged that he
never informed the police that the reason he threw the victim to the ground was because the
victim attacked Johnson when he realized Johnson was trying to steal his car. The Appellant
claimed that he omitted this information because he did not want to “snitch” on Johnson.

At the conclusion of the proof, the jury returned verdicts finding the Appellant guilty
of first degree felony murder and second degree murder. The trial court then merged the
second degree murder conviction with the first degree felony murder conviction.

Evidence at Penalty Phase

The State presented the testimony of Marie Leech, the wife of Thomas Leech and a
family friend of the victim. Mrs. Leech stated that she had known the victim for over twenty-

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five years and saw him several times a week, including at church. She said that the victim
was her daughter’s godfather and would often visit the Leech home and would attend
activities with the Leech family outside the home. She said the victim attended different
churches all over Memphis. The victim visited his mother daily at the nursing home, and
after her death, he continued to go to the nursing home to take care of other elderly people.
She said the victim had lived in the Oakhaven neighborhood for over forty years, and people
in the neighborhood called him “Mr. G.” The victim would give his neighbors fresh herbs
from his garden or something made in his kitchen, and he would give children change or
flowers to give to their mothers. He was often seen picking up trash on the road in his
neighborhood.

Alice Robinson, a deputy court clerk with the Shelby County Criminal Court Clerk’s
office, testified that on March 7, 2003, the Appellant was convicted of robbery and received
a sentence of three years. On the same date, he was also convicted of attempted robbery and
received a sentence of two years. In addition, on September 29, 1997, the Appellant was
convicted of two counts of aggravated robbery and received a sentence of eight years for
each conviction. On September 27, 1997, the Appellant was convicted of aggravated
robbery and received a sentence of eight years.

In mitigation, the Appellant presented the testimony of Dr. Rebecca Caperton
Rutledge, a clinical psychologist board-certified in forensic medicine and forensic evaluation.
On November 18, 1996, she performed a psychological screening of the Appellant while he
was incarcerated at the juvenile court. During this 1996 screening, Dr. Rutledge
administered a Slosson Intelligence Test, a Bender Visual Motor Gestalt Test, and a
Rorschach Psycho-diagnostic Technique test to the Appellant. She stated that “[t]he
[Slosson] intelligence testing results yielded an I.Q. of 66, which is in the mildly mentally
retarded range, the upper range, but mild mental retardation.” She stated that someone
“mildly mentally retarded” would tend to be impulsive and typically would not consider
consequences that could arise from their actions. She noted in her report that the Appellant’s
test results may have been slightly lower than his actual level of cognitive functioning. In
addition, her notes indicated that the Appellant was not “taking the process very seriously”
and that he could have received better test results if he had put forth more effort. However,
Dr. Rutledge opined that the Appellant “would have been in [the] range [of mild mental
retardation] even if he had tried a little bit harder.”

Dr. Rutledge noted that the Appellant had repeated the first grade, but she said that
she did not have much other information about his educational background at the time she
interviewed him. She opined that if a person suffered from “mild mental retardation[,]” their
level of intellect would not get better but their level of functioning might improve.

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 Dr. Rutledge was asked to identify a September 22, 2006 report on the Appellant from
the Middle Tennessee Mental Health Institute (MTMHI) Forensic Services Program. She
stated that on September 22, 2006, Dr. Rokeya Farooque and Dr. Samuel Craddock at the
MTMHI evaluated the Appellant and issued a report diagnosing the Appellant with “[m]ild
mental retardation.” Dr. Rutledge said that the MTMHI’s diagnosis coincided with her 1996
diagnosis of the Appellant.

On cross-examination, Dr. Rutledge conceded that she did not have any particular
memory of the Appellant during the 1996 screening. At that time, she did not find that he
suffered from any mental illness that would keep the Appellant from being transferred to
adult court. Dr. Rutledge conceded that she found no disorders when she administered the
Rorschach test and the Bender Gestalt tests. She explained that the Slosson test was designed
to provide an estimate of general verbal cognitive ability in a short time-frame. She admitted
that there were other tests, including the two-hour Wechsler test, that were better at
determining a person’s I.Q. but that the juvenile court determined the tests she was allowed
to give. She also acknowledged that her goal in giving the Slosson test was to determine
whether the Appellant should be kept at the juvenile facility. She further acknowledged that
the Slosson test, unlike other tests, did not have built-in standards for determining
malingering. Dr. Rutledge stated that her report from the Appellant’s 1996 screening made
it clear that the Appellant thought the testing was a joke. She also acknowledged Dr.
Farooque’s finding on September 22, 2006, that the Appellant was exaggerating his mental
illness symptoms. Other reports form the MTMHI indicated that the Appellant self-reported
paranoid schizophrenia, although there was no record of the Appellant ever receiving
treatment for the disorder. In addition, the MTMHI reports also indicated that the Appellant
pretended to be afraid of the interviewers, and that “the results of the personality testing
question[ed] the authenticity of [the Appellant’s] reported mental illness.” Dr. Rutledge
conceded that the Appellant could have been deliberately underestimating his mental ability
on the 1996 Slosson I.Q. test in order to avoid being sent to adult court. She acknowledged
that the Appellant had many reasons to underestimate his mental ability at the MTMHI
because he was facing capital murder charges at that time. She further acknowledged that
her diagnosis did not mean that the Appellant did not know right from wrong. She admitted
that the Appellant told her that he had never attended resource classes at school during the
1996 screening.

On re-direct examination, Dr. Rutledge said that the Appellant would have been given
the Wechsler I.Q. test if he had been referred to her office after his screening. She further
opined that, if the Appellant had been given that test, she believed his score on the Wechsler
test “would have fallen pretty close to [his score on the Slosson test].”

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 The Appellant also presented the testimony of his mother, Vivian Pruitt. Ms. Pruitt
testified that the Appellant’s father was Terry McGirk. She stated that, at the time the
Appellant was conceived, she was twenty-six years old and Terry McGirk was sixteen or
seventeen years old. Ms. Pruitt stated that the Appellant’s father had never spent any time
with the Appellant and had never supported him. Ms. Pruitt stated that she loved her son and
that if her son were given the death penalty, “[i]t would just kill me, too.”

Ms. Pruitt stated that she had been addicted to drugs for seven or eight years while the
Appellant was a child. She also admitted that she had been arrested several times, and she
had one conviction for receiving stolen property and several convictions for public
intoxication. She stated that her own mother, Frankie Timberlake, helped her care for
Appellant and would care for him whenever she was incarcerated.

Ms. Pruitt said that several family members had mental health problems. She said that
her mother had been “in and out of mental institutions” her entire life. She added that she
personally had been a patient at the Memphis Mental Health Institute three times. She also
stated that her grandmother’s children had mental problems, one of her uncles died in a
mental institution, and another uncle had mental problems. She said her sister and her
brother suffered from mental problems, and both committed suicide.

Ms. Pruitt stated that, in addition to the Appellant, she had a daughter Quiana, a
daughter Tapika, a son Rico, and a son, Antonio. She testified that Rico died of AIDS, and
her daughter Tapika had been a patient in a mental institution and had attempted suicide
several times.

Ms. Pruitt stated that she had married Walter Lee Pruitt, who was now deceased.
During their marriage, Walter Pruitt went to jail a number of times, and their marriage lasted
approximately six years. Although Walter Pruitt was close to the children, he left the
marriage to be with another woman.

Ms. Pruitt stated that the Appellant had never held a job for more than a month. She
admitted that she never had sought mental health treatment for the Appellant because she
thought that he was a “normal child” with normal problems. She stated that the Appellant
“didn’t seem slow” to her. At the time of the offense in this case, the Appellant was living
with Ms. Pruitt’s sister, Alma Rockett. Although the Appellant had previously lived with
Ms. Pruitt and her daughter Quiana in public housing, Ms. Pruitt said she was forced to have
the Appellant to move in with Rockett after she and the Appellant had a dispute over
disciplining his nephew.

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 On cross-examination, Ms. Pruitt stated that the Appellant was first arrested at age
thirteen or fourteen and had many arrests thereafter. She claimed that the Appellant was in
special education classes when he was in the fifth or sixth grade. However, she
acknowledged that the Appellant’s TCAP scores were high. She said that the Appellant
stopped attending school after the seventh or eighth grade because he kept getting arrested
and was placed in juvenile facilities.

Quiana Pruitt, the Appellant’s sister, testified that she would be really hurt if her
brother was given a sentence of death because they grew up together. She said that although
she and the Appellant had the same father, their father had never spent any time with either
of them. She described her childhood as “good off and on” but noted that there were times
that they did not have electricity. Quiana Pruitt related that her grandmother was their
primary caregiver when their mother was away and that their aunt, Alma Rockett, would
often tell them that their mother was on drugs and did not want them.

Quiana Pruitt stated that their grandmother went to a mental institution because of
Alzheimer’s in 2000. She said that her sister, Tapika, had mental problems and one of
Tapika’s children had mental problems. In addition, she stated that one of her uncles and two
of her aunts suffered from paranoid schizophrenia and were mental patients.

Ralph Nally, a criminal investigator, testified that he attempted to locate the
Appellant’s father, Terry McGirk. Although Nally never talked to McGirk directly, McGirk
sent a message to him that he did not want to participate in the Appellant’s proceedings.

In rebuttal, the State presented the testimony of Sandra Atkinson, the records
supervisor at the Memphis City Schools. Atkinson reported that the Appellant enrolled in
the first grade in the Memphis City Schools on September 9, 1987. The Appellant repeated
the first grade, although the school records did not indicate why the Appellant was retained.
Atkinson noted that the Appellant’s test scores during his first time in first grade were high
enough to be promoted to the second grade. While in the first grade, the Appellant took the
California Achievement Test and scored in the eighteenth percentile in reading, the forty-
fourth percentile in math, and the twenty-fourth percentile in word analysis. Atkinson opined
that the Appellant’s grades were normal for the first grade. During his second year in the
first grade, the Appellant scored in the eighty-third percentile for the overall test, and scored
in the sixty-first percentile in word analysis and the ninety-sixth percentile in math. Atkinson
opined that these scores were “exceptionally high,” especially in math. Atkinson additionally
reported that, during his second year in the first grade, the Appellant was essentially a
straight A student.

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 Atkinson testified that the Appellant missed twenty-seven days of school during his
first year in the first grade and missed eighteen days of school during his second year in the
first grade. Atkinson reported that, during April of his second year in the first grade, the
Appellant transferred to LaRose Elementary School. The Appellant remained at LaRose
Elementary through the sixth grade. Atkinson stated that the elementary school records did
not show that the Appellant was in any kind of special education or resource classes. In her
opinion, the Appellant “was an excellent student.” Atkinson stated that he continued taking
the TCAP while at LaRose Elementary. She reported the following grades and test scores
for the Appellant while at LaRose Elementary:

Year Final Year Grades TCAP Percentiles

2nd grade A’s and B’s, and All S’s (for Total Reading: 56 th percentile
satisfactory) and a couple of Total Math: 84 th percentile
E’s (for excellent) Total Word Analysis: 81st percentile

3 rd grade All A’s and E’s, with the Total Reading: 69 th percentile
exception of one S Total Language: 89 th percentile
Total Math: 94 th percentile
Total Spelling: 31 st percentile
Total Science: 51 st percentile
Total Social Studies: 60 th percentile
Total Battery: 88 th percentile

4th grade All A’s and B’s; All E’s and Total Reading: 50 th percentile
S’s Total Language: 51st percentile
Total Math: 93 rd percentile
Total Spelling: 71 st percentile
Total Study Skills: 55 th percentile
Total Science: 39 th percentile
Total Social Studies: 52 nd percentile
Total Battery: 69 th percentile

5th grade All A’s Total Reading: 95 th percentile
Total Language: 99 th percentile
Total Math: 90 th percentile
Total Battery: 98 th percentile

6th grade One A, mostly Bs, and two Total Reading: 91 st percentile
C’s (in reading and written Total Language: 88 th percentile
composition) Total Math: 98 th percentile
Total Spelling: 99 th percentile

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 Total Study Skills: 64 th percentile
Total Science: 10 th percentile
Total Social Studies: 97 th percentile
Total Battery: 95 th percentile

In the seventh grade, the Appellant attended Vance Middle School. The Appellant
remained at Vance Middle School until December 1, 1994, when he withdrew to attend
another school in Tennessee. The Appellant then attended Colonial Middle School until he
withdrew on January 13, 1995. The records indicated that the Appellant was only at Colonial
Middle School for one week. The Appellant then returned to Vance Middle School and
stayed there until May 5, 1995, when he withdrew to attend another school in Tennessee.
Atkinson said that the Appellant did not finish school that year at the Memphis City Schools
and was absent a significant number of days during his seventh grade year. However, before
withdrawing from Vance Middle School, the Appellant took the TCAP test in April of his
seventh grade year. His scores were as follows:

Total Reading: — (Appellant was absent the day the test was administered)
Total Language: 19 th percentile
Total Math: 21 st percentile
Total Spelling: no score/test
Total Study Skills: 42 nd percentile
Total Science: 8 th percentile
Total Social Studies: 22 nd percentile

Atkinson stated that, because the Appellant failed to complete the seventh grade year, she
did not have any grades for him. Nevertheless, the Appellant was promoted to the eighth
grade at Vance Middle School but did not enroll there until November 2, 1995. The
Appellant withdrew from Vance Middle School for non-attendance on January 30, 1996.
During his brief time in the eighth grade, his grades declined. On April 26, 1996, the
Appellant’s records were sent to an alternative school. Atkinson explained that students were
sent to an alternative school for either non-attendance or behavior problems. She also stated
that there was nothing in her records that indicated that the Appellant ever attended special
education or resource classes. The Appellant repeated the eighth grade in 1996 at Bellevue
Junior High School. Ultimately, the Appellant was withdrawn from that school by court
order after attending school there for less than two months. She did not have any TCAP
scores for his eighth grade year at Bellevue. Atkinson stated that when the Appellant
attended school, “he was an excellent student.”

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 In surrebuttal, the Appellant recalled his mother, Vivian Pruitt. Ms. Pruitt explained
that the Appellant fell on his head when he was in the fifth grade. The Appellant was taken
to the hospital and examined for a head and neck injury, but no tests were taken, and the
Appellant later complained of headaches. Ms. Pruitt testified that she “just didn’t push the
issue [regarding his head injury] because [she] didn’t think it was that serious.” Ms. Pruitt
also reported that four of the Appellant’s best friends were killed in an automobile accident
in the seventh grade, and the Appellant went to the particularly gruesome scene of the
accident. She said that the Appellant “didn’t act so good [sic]” after the accident. She added
that, in hindsight, she “should have paid more attention to him or something.”

On cross-examination, Ms. Pruitt stated that she did not believe that the Appellant
knew right from wrong. She explained that the Appellant did not act like himself after losing
his friends in the car accident. She added that her son, Rico, died from AIDS during this
period as well. She opined that “[a]ll of that might have affected him.”

Ms. Pruitt’s testimony concluded the proof at the penalty phase. The trial court then
instructed the jury as to the following statutory aggravating circumstances:

One, the Defendant was previously convicted of one or more felonies
other than the present charge the statutory elements of which involved the use
of violence to the person.

The State is relying upon the crimes of aggravated robbery, robbery and
criminal attempt robbery, the statutory elements of which involve the use of
violence to the person.

Two, 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, was fleeing after having a substantial role in committing
or attempting to commit, a robbery.

Knowingly means that a person acts knowingly with respect to the
conduct or the circumstances surrounding the conduct when the person is
aware of the nature of the conduct or that the circumstances exist.

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. The requirement of knowingly is also established if it’s shown that the
Defendant acted intentionally.

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 Intentionally means that a person acts intentionally with respect to the
nature of the conduct or to a result of the conduct when it is the person’s
conscious objective or desire to engage in the conduct or cause the result.

Three, the victim of the murder was seventy years of age or older.

See generally T.C.A. § 39-13-204(i)(2), (7), (14).

The court also instructed the jury as to the following mitigating circumstances:

One, the capacity of the Defendant to appreciate the wrongfulness of
his conduct or conform his []conduct to the requirements of the law was
substantially impaired as a result of mental disease or defect or intoxication
which was insufficient to establish a defense to the crime but which
substantially affected his judgment.

Two, the youth of the Defendant at the time of the crime.

Three, the Defendant has a family whose members have expressed love
and support.

Four, the Defendant’s formal education is limited to completing the
seventh grade of school.

Five, the Defendant’s father has never been a part of the Defendant’s
life.

Six, the Defendant’s family for three generations may have suffered
from mental illness and drug/alcohol addiction.

Seven, the Defendant’s mother was arrested for receiving stolen
property when the Defendant was two years old and ha[d] many arrests
thereafter.

Eight, the Defendant experienced significant deficits in his adaptive
behavior.

Nine, the Defendant’s I.Q. has been measured at 66, and he was
diagnosed as mildly mentally retarded when he was age sixteen.

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 Ten, the Defendant was diagnosed as being mildly mentally retarded by
the Middle Tennessee Mental Health Center.

Eleven, the Defendant suffers from schizophrenia, has made suicide
attempts and has a family history of schizophrenia.

Twelve, the Defendant has expressed pressure and stressors leading up
to the crime.

Thirteen, the Defendant did not intentionally kill [the victim].

Fourteen, the Defendant did not premeditatively kill [the victim].

Fifteen, the failure of our social system to protect and school the
Defendant.

[Sixteen], the failure of our mental health system to treat the Defendant.

Seventeen, the neglect and abandonment of the Defendant during his
childhood.

Eighteen, the trauma produced by loss during the Defendant’s
childhood.

Nineteen, the Defendant has expressed remorse for his action.

Twenty, any residual doubt that remains with you concerning the guilt
or intent of the Defendant.

Twenty-one, the Defendant possibly was prenatally exposed to drugs
and alcohol.

Twenty-two, the impact of an execution of the Defendant upon his
family members.

Twenty-three, 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.

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See generally T.C.A. § 39-13-204(j)(7), (8), (9).

After receiving the instructions, the jury retired to consider their verdict. Following
deliberations, the jury found that the State had proven all three of the aggravating
circumstances, (i)(2), (i)(7), and (i)(14), beyond a reasonable doubt. See id. § 39-13-
204(i)(2), (7), (14). The jury further found that the aggravating circumstances outweighed
any mitigating circumstances beyond a reasonable doubt. In accordance with their verdict,
the jury imposed a sentence of death.

I. Intellectual Disability

The Appellant contends that the trial court erred in determining that he had not proven
his intellectual disability by a preponderance of the evidence and, therefore, was eligible for
the death penalty. First, regarding the factor requiring subaverage general intellectual
functioning as evidenced by a functional intelligence quotient (I.Q.) of seventy (70) or below
pursuant to section 39-13-203(a)(1), the Appellant argues that the trial court erroneously
“incorporated a range of error measurement in the test scores” in violation of Howell v. State,
151 S.W.3d 450, 458-59 (Tenn. 2004), in finding that his I.Q. score of 66 by Dr. Rutledge
and his I.Q. score of 68 by Dr. Craddock were unreliable. Second, regarding the adaptive
deficits factor in section 39-13-203(a)(2), the Appellant contends that the proof established
that he was unable to live independently, could not keep a job, and was unable to abide by
society standards because of his frequent arrests. He asserts that the trial court’s contrary
finding “relied heavily upon a glimpse of his school records and the often combative, hostile
and evasive testimony of Dr. Craddock.” Finally, the Appellant argues that his intellectual
disability manifested itself prior to his attaining the age of eighteen.

In response, the State argues that “[t]he standard error of measurement reflects the
reliability of the testing instrument itself” while the trial court’s determination that the
Appellant’s scores were the result of malingering “relates to the reliability of a particular
administration of a test, and simply addresses the weight of the evidence.”

Moreover, the State contends that the evidence does not preponderate against the
finding of the trial court that the test scores were unreliable and that the Appellant provided
no substantial evidence of deficits in adaptive behavior. We agree with the State.

A. Motion Regarding Intellectual Disability

At the close of the proof at the penalty phase but prior to closing arguments and the
submission of the case to the jury, the Appellant made an oral motion that the trial court
remove the consideration of the sentence of death from the jury due to the intellectual

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disability of the Appellant pursuant to Tennessee Code Annotated section 39-13-203. The
trial court noted that neither the court nor the State had been provided notice that a motion
pursuant to section 39-13-203 would be made. The court also asserted that this motion
should have been filed pre-trial, with proper notice given. The State likewise objected that
it had not been given proper notice. Defense counsel asserted that they would rely upon the
mitigation proof tendered as the basis of the motion. Ultimately, the trial court declined to
rule on the motion because it was not properly before the court.

After the jury returned a sentence of death, the Appellant filed a timely motion for
new trial on March 27, 2008. In the motion for new trial, the Appellant contested the trial
court’s refusal to rule on the oral motion to disallow the consideration by the jury of the death
penalty in view of the notice given to the State and the showing by the Appellant that he
suffered from a mild intellectual disability. The trial court determined that it would grant the
Appellant time to consider whether or not he wished a hearing on the intellectual disability
issue. On July 17, 2008, the Appellant filed a motion for a hearing, arguing that the State had
been given proper written notice, pre-trial, of his intent to use his condition of intellectual
disability as a defense. He further asserted that both the MTMHI and Dr. Rebecca Rutledge
examined him and found him to suffer from “mild mental retardation.”

The trial court held a hearing on December 12, 2008, on the Appellant’s motion to
remove the death penalty pursuant to section 39-13-203 based on the Appellant’s intellectual
disability. At the hearing, the defense rested on the proof presented during the penalty phase
of the trial. The State presented the testimony of expert Dr. Larry Craddock, a clinical
psychologist with the MTMHI. Dr. Craddock testified that he was asked to perform an
evaluation of the Appellant, who was at the MTMHI from August 31, 2006, to September
27, 2006. During these twenty-eight days, Dr. Craddock and other staff members had the
opportunity to observe the Appellant “around the clock.”

As part of his evaluation, Dr. Craddock administered “some intelligence tests, some
aptitude tests, and a personality test.” He specified that “[t]he test of intelligence was a
Wechsler adult intelligence scale, third edition.” Dr. Craddock reviewed “the probable cause
statement, homicide witness statements, crime scene reports, . . . incident reports from the
police, police narratives and supplements, the . . . statement of Miss Johnson, homicide
defendant[’s] statement, report from the medical examiner, [and the] motor vehicle
sentencing score sheet” as well as the “Shelby County detention facility booking summary,
notice of impeachment, telephone interviews with the [Appellant’s] mother, [and the]
Midtown Mental Health Center’s forensic evaluation of [the Appellant].” Dr. Craddock
stated that he prepared a staff conference report on September 22, 2006, which contained his
findings regarding the Appellant:

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 It was our impression at the end of our evaluation that he was
competent to stand trial. That he was not considered committable to a
psychiatric facility because of being a danger to himself or others. And that
we were unable to show that we could support a defense of insanity for the
event that occurred on August 2nd or 4th , and it has here 2006. It would be
correct to say 2005 is when the incident happened.

He explained the diagnoses found in his staff conference report on the Appellant:

[Regarding] Axis I, . . . Dr. Farooque was impressed with what [the
Appellant] had said about showing signs of a psychosis or serious major
mental illness. She had proposed a diagnosis of schizophrenia and
differentiated-type because he said that he was responding well to medications.
The voices that he said that he was hearing had been improving. He didn’t feel
as though his thoughts were so disorganized.

[The Appellant] ha[d] a history of cannabis abuse and cocaine abuse so
that was added under axis I, and then on axis number II, it is typed there
mental retardation mild, and I have since really written a note to the effect that
that [diagnosis] was in error, as it was also in the psychological report, and [the
diagnosis] was corrected to borderline intellectual functioning.

Dr. Craddock explained that on August 8, 2008, he filed an addendum to the staff conference
report stating that the axis II diagnosis of “mild mental retardation” was in error and that his
intention was to state borderline intellectual functioning as the Appellant’s diagnosis.

Dr. Craddock testified that before a diagnosis of “mental retardation” is made, there
must be a finding of “subaverage intellectual functioning, as demonstrated by intelligence
testing where the I.Q. falls below 70.” He explained that “[t]here is a little bit of latitude in
there, and there [are] some impairments in the adaptive level of functioning where the person
shows an inability to function at their peer level in the community in a variety of different
ways, impaired communication, and then also it is to be diagnosed before the age of
eighteen.”

Dr. Craddock explained how the staff at MTMHI arrived at the diagnosis of
borderline intellectual functioning for the Appellant:

Well, one part of it was the testing that occurred while he was with me,
that I did not get the impression that he was coming across just trying to give
a completely deceptive impression of his functioning. That some people who

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 present for testing are obviously malingering or trying to give a deceptive
impression. [The Appellant] did not come across as some individuals do. So,
I had my testing, as well as we had material from the Department of
Correction[] which had [the Appellant’s] score [of] 81 and that falls within the
borderline level of intellectual functioning.

Dr. Craddock said that the Department of Correction score was from a Beta Test taken
by the Appellant when he was 18 years old and incarcerated. He stated that the Appellant
had been given the Beta Test because the Appellant had expressed interest in earning his
GED while incarcerated and learning about small engine repair. The Appellant’s Beta Test
score revealed that he was reading at an eighth grade level, spelling at a high school level,
and understanding math at a fifth grade level.

Dr. Craddock testified that he received records that the Appellant had completed the
sixth grade in the Memphis City Schools. He said that the Appellant had reported a ninth
grade education to the Department of Correction, but the school records did not corroborate
this assertion. Dr. Craddock stated that school records routinely show if a student had
undergone formal psychological testing indicating that the person had scored two standard
deviations below the means, which required these students to be placed in special education
classes. However, he stated that there was no evidence in the Appellant’s school records that
he had ever been placed in special education classes. Rather, Dr. Craddock stated that the
Appellant’s grades in school were good “right up to the sixth grade.” He further said that
after reviewing the applicable material, the Appellant “did not fall within the mild range of
mental retardation[,]” and in fact, “[a] case could be made for him having average intellectual
functioning.” Regarding the adaptive deficits factor, he noted that the Appellant’s mother
had stated that the Appellant was fired from his warehouse job because “he was abusing his
break privileges” rather than not “comprehend[ing] the instructions” or not knowing what
was expected of him on the job. Ultimately, Dr. Craddock stated, “[W]e did not see
somebody that was functioning in the mild range of mental retardation, particularly with the
school grades.” Moreover, he stated that “[t]here [were] TCAP scores, that I understand
[were] in the 90+ percentile]” He concluded that he and the other staff members were
unable to identify any deficits in the Appellant’s adaptive behavior. In addition, he stated
that he did not receive any information suggesting that the Appellant before the age of
eighteen had “mild mental retardation” or an “adaptive deficit.”

On cross-examination, Dr. Craddock acknowledged that he placed the Appellant’s
erroneous diagnosis of “mild mental retardation” on the staff conference report and on the
psychological report. He stated that he could not provide a reason for his mistake regarding
the Appellant’s diagnosis. Dr. Craddock explained that the difference between “borderline
intellectual functioning” and “mild mental retardation” were slight in terms of I.Q. scores:

-22-
“The I.Q. of 70 [or below for mental retardation] is given as a cutoff, but it is not absolute.
If you look in the diagnostic manual, you will find out [the diagnosis for an individual]
depending on the test that is given.” He also confirmed that the Appellant’s test results on
the Wechsler adult intelligence scale indicated a full scale I.Q. of 68. However, he noted the
Appellant “was giving quick responses where he didn’t give time to think through the
answers.” However, Dr. Craddock stated that his psychological report showed that “[the
Appellant’s] reproductions of the Wechsler memory scale figures were representative of an
individual’s visual memory and visual perception deficits” and that “[i]t was not apparent
[the Appellant] was making less than his best effort[.]” Moreover, regarding the Appellant’s
fifth grade score on the word recognition section and his mid-third grade score on the
sentence comprehension sections of the wide range achievement test, Dr. Craddock noted
that “[i]t was not apparent [that the Appellant] was making only a token effort and these
results may likely reflect his true reading abilities.” Nonetheless, Dr. Craddock stated that
“there were portions of the Wechsler adult intelligence test where he just seemed to be . . .
throwing out an answer[.]” He added that he believed a diagnosis of borderline intellectual
functioning was proper because he did not believe that the Appellant’s score on the Wechsler
adult intelligence scale was “representative of someone with mild mental retardation.”

Dr. Craddock was then asked to read from his August 8, 2008 addendum regarding
the correction of the Appellant’s diagnosis to borderline intellectual functioning:

On Friday, August 8, 2008, [a] Shelby County [assistant district
attorney] met with me at Forensic Services to discuss [the Appellant’s]
diagnosis. The Staff Conference Report and Psychological Report note an
Axis II diagnosis of mental retardation, mild. Dr. Farooque’s Discharge
Summary gives an Axis II diagnosis of borderline intellectual functioning.

I told Mr. Campbell, in the presence of Dr. Farooque, that what is given
in the Discharge Summary, and is found in other discharge notes, the yellow
sheet that goes to the FSP director of our findings, and in the red Ledger book,
is border intellectual functioning, and this is the correct Axis II diagnosis.

It is my error listing mild mental retardation as one of [the Appellant’s
diagnosis [sic].

Dr. Craddock said that he realized his error regarding his diagnosis of the Appellant when
one of the assistant district attorneys working on this case asked him to explain his diagnosis
of the Appellant as “mild[ly] mentally retarded.” He said that the diagnosis of “mild mental
retardation” for the Appellant was likely a clerical error.

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 Regarding the Appellant’s I.Q. score of 68 on the Wechsler test, Dr. Craddock stated
that, depending on the test given, a person’s actual I.Q. could fall within three to five points
in either direction of the score they received on a particular test. In other words, he stated
that by scoring 68, the Appellant’s actual I.Q. could potentially be between 63 and 73. Dr.
Craddock reiterated that the Appellant was giving “very quick responses[,]” and he thought
that the Appellant’s I.Q. was actually higher than his score indicated. On the Appellant’s
psychological report, Dr. Craddock noted that the Appellant was answering “too fast” and
“not thinking.” He also noted on another part of the test that the Appellant was answering
really fast, and his answers were “likely [an] underestimate.”

Dr. Craddock explained that adaptive behavior is “[h]ow well a person functions in
the community.” He said adaptive behavior included things like being able to be gainfully
employed, to shop for oneself, to make change accurately, and to make use of transportation.
Dr. Craddock stated that typically one would determine adaptive deficits based upon
interviews of the client and people that knew the client. He added that there was the
Vineland adaptive behavior scale and a few other tests for adaptive behavior, but he did not
employ these tests in the Appellant’s case.

When asked to look at Dr. Farooque’s discharge summary for an explanation of why
she diagnosed the Appellant with borderline intellectual functioning, Dr. Craddock stated
that Dr. Farooque did not provide a reason for her diagnosis. However, he stated that Dr.
Farooque noted in the report that the Appellant had a history of hospitalization since the age
of fourteen and had been doing well at age twelve and thirteen before he started
deteriorating. When asked if he knew the reason for the Appellant’s deterioration at the age
of twelve or thirteen, Dr. Craddock stated:

My impression from what material I have [is that] he started using drugs
around that time and found less interest in school[,] and I guess his values
changed. He didn’t show the interest in . . . committing himself to schoolwork
that he had earlier.

However, Dr. Craddock acknowledged that the Appellant could have also deteriorated at that
age because of some kind of injury.

On re-direct examination, Dr. Craddock stated he immediately told the assistant
district attorney that he had made a mistake with his diagnosis of the Appellant at the
beginning of their first meeting. He confirmed that the Appellant was never actually
diagnosed with “mild mental retardation,” but that this diagnosis was the result of a clerical
error. He also stated that a determination of whether someone suffers from “mild mental
retardation” is not based merely on that person’s score on an I.Q. test. In other words, Dr.

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Craddock stated that a person could have an I.Q. score of 68 and not be “mental[ly]
retard[ed].” He added that the MTMHI had previously had “a number of individuals who
tested in that area[,] and we did not give [them] the diagnosis of mild mental retardation.”

Dr. Craddock stated that “it would be unjustified to consider [the Appellant] mentally
retarded.” He stated that the Appellant self-reported playing chess, and he opined that an
ability to play the game of chess “is not consistent with somebody who is mentally retarded.”
In addition, he noted that the Appellant’s mother reported that the only reason the Appellant
was terminated at his employment was “because he was abusing his privileges, not because
he couldn’t comprehend” and noted that the Appellant’s “school records [did not] suggest
mental retardation.” He acknowledged that his testing was performed after the Appellant
reached the age of eighteen. However, he concluded that there was “no reason to consider
[the Appellant] mildly mentally retarded.”

On recross examination, Dr. Craddock stated that he questioned whether the
Appellant’s scores were representative of his intellect:

I would question the [Appellant’s] scores because mentally retarded
individuals, which I think you are suggesting that he might be, typically score
high on performance and low on verbal. He was just the opposite. When you
score low on performance, there is an implication there that you may not be
making your best effort. So, if you look in the textbooks, time after time,
mentally retarded people, they have poor[er] verbal, math skills, and so forth
than they do manipulation skills, visual skills, but that was not the case with
[the Appellant].

The hearing was continued to January 16, 2009. At that time, the defense recalled Dr.
Rebecca Rutledge. Dr. Rutledge was questioned regarding the I.Q. test she administered to
the Appellant when he was sixteen years old. Dr. Rutledge stated that she concluded that the
Appellant had a full scale I.Q. of 66 during the 1996 screening. She said that she had
reviewed the psychological report of Dr. Craddock, which concluded that the Appellant had
a full scale I.Q. of 68.

With regard to Dr. Craddock’s assertion that there was some flexibility in diagnosing
a person as either “mentally retarded” or borderline intellectual functioning, Dr. Rutledge
explained Dr. Craddock may have been referring to the two prongs of the diagnosis, i.e., the
factor regarding the I.Q. score of seventy or below and the factor regarding adaptive behavior
deficits, or may have been referring to the statistics regarding the accuracy of a particular I.Q.
score. She acknowledged that a person may still be diagnosed as borderline intellectual
functioning if their adaptive skills are good, even though their I.Q. score is slightly less than

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70 . Regarding the issue of adaptive skills, Dr. Rutledge recalled that the Appellant had fifth-
grade reading skills and third-grade math skills. She said she was aware that the Appellant
was unable to live independently, was unable to remain employed, and was unable to abide
by community standards. She noted that Dr. Craddock’s score of 68 on the I.Q. test and her
score of 66 were very close.

On cross-examination, Dr. Rutledge conceded that her documentation of the
Appellant’s I.Q. score of 66 at the age of sixteen may have been an underestimate of his
actual ability. She acknowledged that a diagnosis of “retardation” is not based only on a
person’s I.Q. score, since the diagnosis also included consideration of the person’s adaptive
functioning. She also acknowledged that she had not seen the Appellant since the 1996
screening that lasted no more than one hour and that Dr. Craddock, who was able to evaluate
the Appellant for approximately one month, was in a better position than she was to evaluate
the Appellant’s adaptive deficits. Although she had previously testified that the Appellant
was unable to maintain employment, she acknowledged that the Appellant was gainfully
employed at the time he committed the offense in this case. Finally, Dr. Rutledge admitted
that she had never reviewed the Appellant’s school records which included TCAP scores
showing that he had scored in the upper ninetieth percentile.

B. Trial Court’s Findings of Fact & Conclusions of Law

On May 22, 2009, the trial court entered an order denying the Appellant’s motions for
new trial and finding, following the post-trial hearings, that the Appellant had failed to
demonstrate his intellectual disability pursuant to Tennessee Code Annotated section 39-13-
203. As previously discussed, the defense first made an oral motion prior to the end of trial
requesting that the trial court remove consideration of the sentence of death from the jury due
to the intellectual disability of the Appellant. At the time, the trial court noted that neither
the court nor the State had been provided notice that a motion pursuant to section 39-13-203
would be made. The trial court also asserted that this motion should have been filed pre-trial,
with proper notice given. The trial court ultimately declined to rule on the motion during
trial because it was not properly before the court.

In the May 22, 2009 order, the trial court resolved two issues: (1) whether the defense
had a right to a hearing regarding the intellectually disability issue at the time of their oral
motion prior to the end of trial, and (2) whether the Appellant was shown to be intellectually
disabled pursuant to section 39-13-203, based on the evidence presented at trial and at the
post-trial hearing. The court acknowledged that it would have to set aside the Appellant’s
sentence of death if he established by a preponderance of the evidence that he was
intellectually disabled.

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 Regarding the Appellant’s right to a hearing on the “mental retardation” issue during
trial, the trial court found that this issue “should always be raised prior to trial, to avoid the
extra expense and judicial resources needed to try a capital case when compared with a case
in which the sentence of death has already been removed early on as a possible sentence.”
Noting State v. Strode, 232 S.W.3d 1, 10-11 (Tenn. 2007), the trial court stated that “[i]f a
trial court allowed the mental retardation hearing to be heard at the conclusion of all the
proof in a capital case, rather than prior to trial, the state would de facto lose its right to
appeal any decision adverse to the state’s position.” The trial court also equated the request
for a hearing on the “mental retardation issue” during the trial without notice to the State as
“trial by ambush.” The trial court noted that, in hindsight, it should have entered an order
pursuant to Tennessee Rule of Criminal Procedure 12(c) setting a deadline for parties to
make pretrial motions regarding the issue of intellectual disability. The trial court found that
it had not erred in refusing to hear the motion at the conclusion of the proof during the
penalty phase because the additional time allowed the State to properly prepare for the
hearing and gather its expert witnesses.

The trial court found that the Appellant failed to prove by a preponderance of the
evidence that he had significantly subaverage general intellectual functioning as evidenced
by a functional intelligence quotient (I.Q.) of seventy (70) or below:

The two tests given the [Appellant] in 1996 and in 2006, according to the
testimony of the two test-givers themselves, Dr. Rutledge in 1996 and Dr.
Craddock in 2006, were not products of the [Appellant’s] best effort, and
especially in light of the [Appellant’s] grades in school and social history are
found by this court to be unreliable test scores. A functional I.Q. of seventy
is not “evidenced” by either unreliable test result.

The trial court next found that the Appellant had not proved by a preponderance of
the evidence that he had deficits in adaptive behavior:

No deficits in adaptive behavior of the defendant were ever shown in
the proof, either at trial or during the hearings on this motion. In Dr.
Rutledge’s trial testimony, she testified that adaptive deficits were present in
mentally retarded persons, but never stated any were present in the defendant
himself. The defendant’s mother testified that the defendant “stayed working.
He was doing fine there.” He was an excellent student until he began using
drugs, had [sic] his friends killed, his brother died of AIDS[,] and began being
absent from school and committing crimes. His mother said he seemed a
normal child to her.

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In addition, the trial court noted that Dr. Craddock testified that he did not see any deficits
in the Appellant’s adaptive behavior. Finally, the court determined that “[a]s the defense has
not proved its burden of showing either of the first two prongs by a preponderance of the
evidence, it has also not shown they were manifested by the time the defendant was 18 years
of age.” The court added:

Although the defendant’s test scores in school dropped or remained the same,
there was no showing that this drop was due to deficits in adaptive behavior.
His social history shows these lower scores were due to traumatic events in his
life, drug use, incarceration[,] and absence from school.

In conclusion, the trial court determined that the Appellant had “not been shown to be
mentally retarded pursuant to [Tennessee Code Annotated section] 39-13-203” and
“decline[d] to set aside the jury’s verdict of death.”

C. Summary of Applicable Law

In 1990, the Tennessee General Assembly enacted section 39-13-203, which
prohibited the execution of defendants with “mental retardation.” See T.C.A. § 39-13-203(b)
(Supp. 1990). In 2010, the statute was amended to replace the term “mental retardation” with
“intellectual disability.” See Act of Apr. 9, 2010, ch. 734, §§ 1-7, 2010 Tenn. Pub. Acts.
The amended Tennessee Code Annotated section 39-13-203 provides, in part:

(a) As used in this section, “intellectual disability” means:

(1) Significantly subaverage general intellectual functioning as evidenced by
a functional intelligence quotient (I.Q.) of seventy (70) or below;

(2) Deficits in adaptive behavior; and

(3) The intellectual disability must have been manifested during the
developmental period, or by eighteen (18) years of age.

(b) Notwithstanding any provision of law to the contrary, no defendant with
intellectual disability at the time of committing first degree murder shall be
sentenced to death.

(c) The burden of production and persuasion to demonstrate intellectual
disability by a preponderance of the evidence is upon the defendant. The

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 determination of whether the defendant had intellectual disability at the time
of the offense of first degree murder shall be made by the court.

(d) If the court determines that the defendant was a person with intellectual
disability at the time of the offense, and if the trier of fact finds the defendant
guilty of first degree murder, and if the district attorney general has filed notice
of intention to ask for the sentence of imprisonment for life without possibility
of parole as provided in § 39-13-208(b), the jury shall fix the punishment in
a separate sentencing proceeding to determine whether the defendant shall be
sentenced to imprisonment for life without possibility of parole or
imprisonment for life. The provisions of § 39-13-207 shall govern the
sentencing proceeding.

(e) If the issue of intellectual disability is raised at trial and the court
determines that the defendant is not a person with intellectual disability, the
defendant shall be entitled to offer evidence to the trier of fact of diminished
intellectual capacity as a mitigating circumstance pursuant to § 39-13-
204(j)(8).

(f) The determination by the trier of fact that the defendant does not have
intellectual disability shall not be appealable by interlocutory appeal, but may
be a basis of appeal by either the state or defendant following the sentencing
stage of the trial.

T.C.A. § 39-13-203 (Supp. 2010).

All three criteria enumerated in subsection (a) must be satisfied before a finding of
intellectual disability may be made. See id. § 39-13-203(a). In addition, the defendant must
prove intellectual disability by a preponderance of the evidence. See id. § 39-13-203(c).
However, the trial court determines whether the defendant was intellectually disabled at the
time he committed the offense of first degree murder. See id.

In 2001, the Tennessee Supreme Court held in Van Tran v. State, 66 S.W.3d 790, 805
(Tenn. 2001), that “the execution of mentally retarded persons” violated the Tennessee
Constitution. In Van Tran, the court specifically concluded that the requirement of
“significantly subaverage general intellectual functioning” in section 39-13-203(a)(1) should
be proven through I.Q. scores on “standardized intelligence tests.” Id. at 795. The court
further concluded that the requirement of “deficits in adaptive behavior” in section 39-13-
203(a)(2) specifically referred to:

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 how effectively individuals cope with common life demands and how well
they meet the standards of personal independence expected of someone in their
particular age group, socio-cultural background, and community setting. As
discussed, a mentally retarded person will have significant limitations in at
least two of the following basic skills: communication, self-care, home living,
social/interpersonal skills, use of community resources, self-direction,
functional academic skills, work, leisure, health, and safety. Influences on
adaptive functioning may include the individual’s education, motivation,
personality characteristics, social and vocational opportunities, and the mental
disorders and general medical conditions that may coexist with Mental
Retardation.

Id. (internal quotations and citation omitted). One year after Van Tran, the United States
Supreme Court similarly held that the execution of “mentally retarded offenders” violated
the Eight Amendment of the United States Constitution. Atkins v. Virginia, 536 U.S. 304,
321 (2002) (citing Ford v. Wainwright, 477 U.S. 399, 405 (1986)).

In Howell, 151 S.W.3d at 457, the Tennessee Supreme Court considered the
petitioner’s claim that the statute’s incorporation of a “bright-line” requirement of an I.Q.
score of seventy or below conflicted with “prevailing views of mental retardation in the field
of psychology.” However, the court held that the Tennessee legislature’s decision to include
a “bright-line” cutoff score of seventy provided “a clear and objective guideline to be
followed by courts when applying the three-prong test as set out in Tennessee Code
Annotated [section] 39-13-203(a) (2003).” Id. at 458. In reaching this decision, the court
noted that section 39-13-203(a)(1) did not specify a specific test or testing method to be used
in obtaining this I.Q. score. Id. at 459. While the court stated that the WAIS-III I.Q. test, or
Wechsler Adult Intelligence Scale test, third edition, was the established standard for testing
intellectual functioning, it recognized that other tests could also provide an accurate I.Q.
score. Id. Finally, it concluded that while “[a] court may certainly give more weight to one
test, [it] should do so only after fully analyzing and considering all evidence presented[,]”
including evidence regarding all of the tests given to a defendant. Id.

In Strode, 232 S.W.3d at 16-18, the Tennessee Supreme Court held that: (1) an
interlocutory appeal can be filed by the State following the trial court’s determination that
a defendant is “mentally retarded” and therefore ineligible for the death penalty pursuant to
section 39-13-203; (2) the language in section 39-13-203(a) requiring that the “mental
retardation” must have occurred “during the developmental period, or by eighteen (18) years
of age” did not include a manifestation of “mental retardation” past the age of eighteen for
both the significantly subaverage general intellectual functioning and the adaptive deficits
prongs of the statute; and (3) the evidence preponderated against the trial court’s finding that

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the defendant had significantly subaverage general intellectual functioning before the age of
eighteen. Moreover, the court stated that when a defendant is given an evidentiary hearing
on the merits of a motion made in the trial court, the trial court’s findings of fact are binding
upon the appellate court unless the evidence contained in the record preponderates against
those findings. Id. at 8 (citing State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); State v.
Moore, 775 S.W.2d 372, 374 (Tenn. Crim. App. 1989)). The court noted that this standard
“developed because the trial court, as the trier of fact, must assess the credibility of the
witnesses, determine the weight and value to be afforded the evidence adduced during the
hearing, and resolve any conflicts in the evidence.” Id. (citing Odom, 928 S.W.2d at 23).
However, it stated that “the application of the law to those facts is a question of law which
this Court reviews de novo with no presumption of correctness.” Id. (citing State v. Garcia,
123 S.W.3d 335, 343 (Tenn. 2003)). The court specifically concluded that “the question of
whether an accused is mentally retarded for the purposes of application of the death penalty
is a mixed question of law and fact.” Id.

Recently, in Michael Angelo Coleman v. State, — S.W.3d — (Tenn. 2011), No.
W2007–02767–SC–R11–PD, 2011 WL 1346932 (Tenn. April 11, 2011), the Tennessee
Supreme Court held:

We find that [Tennessee Code Annotated section] 39-13-203(a)(1) does not
require that raw scores on I.Q. tests be accepted at their face value and that the
courts may consider competent expert testimony showing that a test score does
not accurately reflect a person’s functional I.Q. or that the raw I.Q. test score
is artificially inflated or deflated.

Id. at *1. In support of its holding, the court noted that there have been numerous cases
where the State has argued that “raw I.Q. test scores” do not determine a defendant’s
“functional intelligence quotient.” Id. at *19-20 (citing Cribbs v. State, No. W2006-01381-
CCA-R3-PD, 2009 WL 1905454, at *22 (Tenn. Crim. App., at Jackson, July 1, 2009) (State’s
expert testified that he believed the petitioner’s I.Q. was in the middle to high 80’s, even
though the petitioner had received a score of 73 on an I.Q. test), perm. to appeal denied
(Tenn. Dec. 21, 2009); Strode, 232 S.W.3d at 5 (State’s expert opined that “some of the test
results suggested that the Defendant was not putting forth a full effort”); Smith v. State, No.
E2007–00719–CCA–R3–PD, 2010 WL 3638033, at *30 (Tenn. Crim. App., at Knoxville,
Sept. 21, 2010) (State’s expert stated that an individual can “fake” a low I.Q. by malingering
or purposely answering the questions incorrectly but cannot “fake” a high I.Q.; therefore, if
an individual has high scores and low scores, the high scores are more reliable), perm. to
appeal granted (Tenn. March 10, 2011). Specifically, the Coleman court concluded:

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 These cases reflect the parties’ and the courts’ existing awareness that,
as a practical matter, a criminal defendant’s “functional intelligence quotient”
cannot be ascertained based only on raw I.Q. test scores. More importantly,
they also reflect the parties’ conclusion that [Tennessee Code Annotated
section] 39-13-203(a) does not prevent them from presenting relevant and
competent evidence, other than the defendant’s raw I.Q. test scores, either to
prove or to disprove that the defendant’s “functional intelligence quotient”
when the crime was committed was “seventy (70) or below.” Our decision
today confirms that this conclusion was entirely correct.

Id. at *20. The court also concluded that expert testimony should be considered when
determining whether a defendant has adaptive behavior deficits pursuant to section 39-13-
203(a)(2). Id. at *22. Finally, while acknowledging that it had not previously made a
holding regarding the issue of causation in assessing adaptive deficits, the court concluded
that it was error for courts to distinguish “causally between intellectual disability and mental
illness” when considering whether a defendant had adaptive behavior deficits. Id. at *24.

D. Review

1. Significantly Subaverage General Intellectual Functioning

The first prong of the statutory criteria for establishing intellectual disability requires
that the defendant demonstrate significantly subaverage general intellectual functioning as
evidenced by a functional intelligence quotient (I.Q.) of seventy (70) or below. See T.C.A.
§ 39-13-203(a)(1).

The record establishes that the Appellant was administered two intelligence tests, one
at age sixteen and the second at age twenty-six. The tests reflect I.Q. scores of 66 and 68,
respectively. Both scores fall below the bright-line score of seventy (70) as required by the
statute. The Appellant contends that the trial court improperly employed a “standard error
of measurement,” in violation of Howell, and, in effect, increased the Appellant’s scores
above the bright-line cut-off of seventy (70). We disagree.

Pursuant to the Tennessee Supreme Court’s recent decision in Michael Angelo
Coleman, “[section] 39-13-203(a)(1) does not require that raw scores on I.Q. tests be
accepted at their face value” and “courts may consider competent expert testimony showing
that a test score does not accurately reflect a person’s functional I.Q. or that the raw I.Q. test
score is artificially inflated or deflated.” Michael Angelo Coleman, — S.W.3d at —, 2011
WL 1346932, at *1. The lower court, in the instant case, appropriately considered all of the
testimony of the expert witnesses, including the expert’s opinions regarding whether the I.Q.

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scores accurately reflected the Appellant’s functional I.Q. The court also properly considered
the social and educational history of the Appellant.

Both Dr. Rutledge and Dr. Craddock testified that the Appellant’s attempts at the test
were below his best possible effort. Dr. Craddock noted that the Appellant’s responses were
“quick” and that the Appellant appeared to be malingering based on his low performance
scores and previous academic success. Moreover, Dr. Rutledge opined that the Appellant
did not take the testing process seriously. Both Dr. Rutledge and Dr. Craddock indicated that
the test results were an underestimate of the Appellant’s actual mental ability. The record
shows that the Appellant’s elementary school records show final grades of an “excellent
student,” who scored consistently in the upper percentiles on standardized tests. In addition,
the record shows that there were external explanations for the Appellant’s academic decline,
including the Appellant’s drug use, his criminal activity, and the loss of four friends and a
sibling. Finally, we cannot ignore the circumstances surrounding both the 1996 and 2006
tests. At the times that he took these tests, the Appellant was facing prosecution for very
serious offenses and had an incentive to underestimate his mental ability. In contrast, when
the Appellant wanted to learn small engine repair while incarcerated he was required to
obtain his GED and to take the Beta Test. Under circumstances where the Appellant had an
incentive to perform well, he received a score of 81, indicative of borderline intelligence
functioning.

Upon careful review, we conclude that the trial court did not err in rejecting the scores
from the Appellant’s I.Q. tests. Based on the evidence presented, the I.Q. test results were
at odds with the Appellant’s previous academic success and were likely an underestimate of
his intellectual ability as acknowledged by Dr. Rutledge and emphasized by Dr. Craddock.
Moreover, as the trial court noted, external circumstances, including the Appellant’s drug
use, criminal behavior, and events of personal tragedy and loss sufficiently explained the
Appellant’s academic decline. Accordingly, we cannot conclude that the Appellant has
established by a preponderance of the evidence a functional intelligence quotient of seventy
(70) or below.

2. Deficits in Adaptive Behavior

As recently noted by the Tennessee Supreme Court in Michael Angelo Coleman, the
Tennessee General Assembly has not defined what it means by “[d]eficits in adaptive
behavior” in Tenn. Code Ann. § 39–13–203(a)(2). Michael Angelo Coleman, No. W2007-
02767-SC-R11-PD, 2011 WL 1346932, at 20. The Tennessee Supreme Court and this court
have consistently interpreted adaptive functioning, the second prong of the statutory criteria
for establishing intellectual disability, as “‘how effectively individuals cope with common
life demands and how well they meet the standards of personal independence expected of

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someone in their particular age group, socio-cultural background, and community setting.’”
Van Tran, 66 S.W.2d at 795 (quoting American Psychiatric Association, Diagnostic and
Statistical Manual of Mental Disorders, 40 (4th ed. 1994)). An intellectually disabled
individual will have “‘significant limitations in adaptive functioning in at least two of the
following skill areas: communication, self-care, home living, social/interpersonal skills, use
of community resources, self-direction, functional academic skills, work, leisure, health, and
safety.’” Id. (quoting American Psychiatric Association, Diagnostic and Statistical Manual
of Mental Disorders, 39 (4th ed. 1994)). In addition, “[i]nfluences on adaptive functioning
may include the individual’s ‘education, motivation, personality characteristics, social and
vocational opportunities, and the mental disorders and general medical conditions that may
coexist with Mental Retardation.’” Id. ((quoting American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders, 40 (4th ed. 1994)). The Tennessee
Supreme Court has now held that a trial court’s failure to consider expert testimony when
determining whether a defendant has deficiencies in adaptive behavior pursuant to section
39-13-203(a)(2) is a fatal error. Michael Angelo Coleman, — S.W.3d at —, 2011 WL
1346932, at *22.

Although Michael Angelo Coleman requires courts to consider the testimony of
experts regarding adaptive deficits, we note that a trial court need not limit itself to
information provided by experts. The trial court may consider any information regarding the
Appellant presented during prior proceedings in making a proper determination regarding
intellectual disability. See Heck Van Tran v. State, No. W2005-01334-CCA-R3-PD, 2006
WL 3327828, at * 23 (Tenn. Crim. App., at Jackson, Nov. 9, 2006), perm. to appeal denied,
(Tenn. Apr. 16, 2007) (citing In re: Anderson Hawthorne, Jr., 105 P.3d 552, 559 (Cal. 2005);
Morrison v. State, 583 S.E.2d 873, 875 (Ga. 2003)). In other words, “the court may weigh
and consider all evidence bearing on the issue of [intellectual disability].” Id. (citing In re:
Anderson Hawthorne, Jr., 105 P.3d at 559).

In this case, the trial court determined that the Appellant failed to prove by a
preponderance of the evidence that he had deficits in adaptive behavior. Specifically, the
trial court noted that “[n]o deficits in adaptive behavior of the defendant were ever shown
in the proof, either at trial or during the hearings on the motion.” The Appellant disputes this
finding of the trial court and cites to Dr. Rutledge’s testimony that she was aware that the
Appellant was unable to live independently, to retain employment, and to abide by
community standards as evidenced by numerous arrests. The State responds that, as
recognized by the trial court, Dr. Rutledge was unable to make such assertions regarding any
deficits in adaptive behavior because she was only able to observe the Appellant during her
one-hour screening of him in 1996. The State further asserts that Dr. Rutledge conceded that
she could not state that the Appellant actually suffered from these deficits. Finally, the State

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emphasizes that Dr. Craddock, at the post-trial hearing, testified that he was unable to
identify any deficits in the Appellant’s adaptive behavior.

Our review of this issue is challenged by the dearth of evidence offered to show that
the Appellant suffered from any deficits in adaptive behavior. Neither of Drs. Rutledge or
Craddock actually evaluated the Appellant for the purpose of discerning any deficits in
adaptive behavior. Thus, the Appellant relies primarily on the testimony of his family
members to establish that he was unable to live independently, unable to maintain
employment, and unable to abide by community standards. The proof at trial and at the post-
trial hearing fails to support the Appellant’s claims.

First, while the record demonstrates that the Appellant lived with his sister and, after
his sister refused to let him remain at her home, with his aunt, the record is absent any proof
that the Appellant was not able to live independently. Next, the Appellant’s mother testified
inconsistently regarding the Appellant’s employment history. She testified that he had “never
held a job for more than a month” and that he “stayed working. He was doing fine.” In a
report to Dr. Craddock she explained that the Appellant was terminated because he was
abusing his break privileges and not an inability to comprehend instructions. Moreover, Dr.
Rutledge admitted on cross-examination that the Appellant was gainfully employed at the
time he committed the offense in this case.

Finally, the Appellant asserts that he is unable to abide by community standards. The
Appellant relies upon exclusively on his extensive history of arrests in support of this
assertion. While the record does amply illustrate the Appellant’s extensive criminal history,
we reject the implication that an extensive history of criminal convictions is demonstrative
of adaptive deficits. Furthermore, the record establishes, based on his school records, that
the Appellant was able to abide by community standards. Thus, we conclude that the trial
court’s findings of fact are amply supported by the record. Accordingly, the Appellant has
failed to establish by a preponderance of the evidence that he suffered from deficits in
adaptive behavior.

3. Manifestation During Developmental Period

Finally, the Appellant must prove that his intellectual disability manifested by age
eighteen. In other words, he must show that he had an I.Q. below seventy and had deficits
in adaptive behavior by the age of eighteen. Intellectual disability has been defined as a “a
developmental disability that becomes apparent before adulthood.” Heller v. Doe, 509 U.S.
312, 321-22 (1993) (citing American Psychiatric Assn., Diagnostic and Statistical Manual
of Mental Disorders 29 (3d rev. ed. 1987)). It has also been described as a disorder which
“‘has to have occurred during the developmental years, which means you are born with it or

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in early childhood develop it.’” Strode, 232 S.W.3d at 13 (quoting Tenn. Senate Jud.
Comm., Debate on Senate Bill 1851, March 13, 1990). Moreover, “‘by the time a person
[has] reached the age of eighteen, there should be a paper trail or a diagnosis or some
evaluation [of intellectual disability] already there.’” Id. (quoting Tenn. Senate Jud. Comm.,
Debate on Senate Bill 1851, March 13, 1990).

The trial court found that “[a]s the defense has not proved its burden of showing either
of the first two prongs by a preponderance of the evidence, it has also not shown that they
were manifested by the time the defendant was 18 years of age.” We agree. Because the
proof does not establish by a preponderance of the evidence that the Appellant’s I.Q. was
below seventy (70) and that he demonstrated deficits in adaptive behavior, we conclude that
no manifestation of intellectual disability was present by the age of eighteen. Accordingly,
the Appellant is not entitled to relief regarding his claim that he is ineligible for the death
penalty due to his intellectual disability. Upon our de novo review, we conclude that the trial
court did not err in finding that the Appellant was not intellectually disabled pursuant to
section 39-13-203(a).

II. Sufficiency of the Evidence

The Appellant argues that the evidence presented at trial was insufficient to support
his conviction for first degree felony murder. Specifically, the Appellant contends that the
testimony of Taka Pruitt, the only witness to the incident other than the Appellant, “is largely
in accord” with the Appellant’s testimony, and to the extent that Taka Pruitt said the
Appellant acted alone, her testimony is compromised because of her location and distance
from the actual incident. Although the Appellant acknowledges that his initial intent was to
steal a car, he claims that when he ran to the victim’s car, he was going to the aid of Courtney
Johnson, who was struggling with the victim. Moreover, he claims that he only drove away
in the victim’s vehicle because he was scared. Finally, although the Appellant admits that
there is some evidence of his guilt, including circumstantial medical evidence and
inconsistencies between his statement to police and his trial testimony, he claims this
evidence should be viewed from the perspective that he “has, at best, borderline intellectual
function[ing].”

In response, the State contends that the evidence was more than sufficient to support
the conviction because the Appellant admitted at trial that he pushed the victim forcefully
before stealing his car, and the evidence was undisputed that the victim subsequently died
from his injuries. Regarding the Appellant’s claim that he did not intend to take the victim’s
car, the State contends that this argument is not persuasive since Johnson testified that he was
not involved in taking the victim’s car and Taka Pruitt testified that the Appellant acted alone

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during the incident. Finally, the State contends that any challenges to Taka Pruitt’s vantage
point during the incident are merely attempts to challenge her credibility, which was properly
determined by the jury at trial. The State argues that medical evidence showed that the
victim suffered repeated blows, which were not consistent with the Appellant’s claim that
he pushed the victim, causing the victim to fall. Moreover, it contends that the Appellant’s
actions following the crime, including driving the victim’s car around while drinking and
smoking marijuana and giving different explanations as to the ownership of the car, showed
that the Appellant’s intent in taking the victim’s car was “more than transitory.” We agree
with the State.

The State, on appeal, is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which may be drawn from the evidence. State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the evidence,
the standard of review applied by this court is “whether, after reviewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979). Similarly, Rule 13(e) of the Tennessee Rules of
Appellate Procedure states, “Findings of guilt in criminal actions whether by the trial court
or jury shall be set aside if the evidence is insufficient to support a finding by the trier of fact
of guilt beyond a reasonable doubt.”

A verdict of guilt removes the presumption of innocence and replaces it with a
presumption of guilt; therefore, a defendant on appeal has the burden of showing that the
evidence is insufficient to support the jury’s verdict. State v. Thacker, 164 S.W.3d 208, 221
(Tenn. 2005) (citing State v. Evans, 108 S.W.3d 231, 237 (Tenn. 2003); State v. Carruthers,
35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982)).
A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the State’s
witnesses and resolves all conflicts in the evidence in the State’s favor. Bland, 958 S.W.2d
at 659 (citing State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973)). Issues regarding the
credibility of witnesses, the weight and value of the evidence, and all factual issues raised
by the evidence are resolved by the jury as the trier of fact, and this court does not reweigh
or reevaluate the evidence. Id. (citing State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978),
superseded by statute on other grounds as stated in State v. Barone, 852 S.W.2d 216, 218
(Tenn. 1993)). Guilt may be found beyond a reasonable doubt in a case where there is direct
evidence, circumstantial evidence, or a combination of the two. State v. Matthews, 805
S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331
(Tenn. 1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)).

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 Despite the Appellant’s arguments to the contrary, Taka Pruitt identified the Appellant
as the sole perpetrator of the offense, and her testimony was corroborated by Courtney
Johnson’s testimony. “The identity of the perpetrator is an essential element of any crime.”
State v. Robert Wayne Pryor, No. M2003-02981-CCA-R3-CD, 2005 WL 901140, at *3
(Tenn. Crim. App., at Nashville, Apr. 19, 2005) (citing State v. Thompson, 519 S.W.2d 789,
793 (Tenn. 1975)). The State has the burden of proving “the identity of the defendant as the
perpetrator beyond a reasonable doubt.” Id. (citing State v. Sneed, 908 S.W.2d 408, 410
(Tenn. Crim. App. 1995)). The identity of the defendant as the perpetrator may be
established by direct evidence, circumstantial evidence, or a combination of the two.
Thompson, 519 S.W.2d at 793. “The credible testimony of one identification witness is
sufficient to support a conviction if the witness viewed the accused under such circumstances
as would permit a positive identification to be made.” State v. Radley, 29 S.W.3d 532, 537
(Tenn. Crim. App. 1999) (citing State v. Strickland, 885 S.W.2d 85, 87-88 (Tenn. Crim. App.
1993)). This court has stated that the identification of the defendant as the perpetrator is a
question of fact for the jury after considering all the relevant proof. Strickland, 885 S.W.2d
at 87 (citing State v. Crawford, 635 S.W.2d 704, 705 (Tenn. Crim. App. 1982)). The
Appellant contends that Taka Pruitt’s testimony was unreliable because of her distance from
the incident, the short time span in which the incident occurred, and the fact that she
immediately ran inside the Apple Market after the incident. We decline the invitation to
reweigh Taka Pruitt’s testimony. It is the jury’s responsibility, as the trier of fact, to evaluate
the witnesses’ credibility and to decide the defendant’s guilt. We will not “reweigh or
reevaluate the evidence.” Bland, 958 S.W.2d at 659.

The Appellant also contends that the evidence is insufficient to support a conviction
for first degree felony murder, arguing that there is no proof that he intended to rob the
victim since he only took the victim’s vehicle because he was “scared.” First degree felony
murder is “[a] killing of another committed in the perpetration of or attempt to perpetrate any
first degree murder, act of terrorism, arson, rape, robbery, burglary, theft, kidnapping,
aggravated child abuse, aggravated child neglect or aircraft piracy.” T.C.A. § 39-13-
202(a)(2). In order to sustain the Appellant’s conviction for felony murder, the State was
required to prove that the Appellant killed the victim in the perpetration of a robbery. Id. §
39-13-202(a)(2). Robbery is defined as “the intentional or knowing theft of property from
the person of another by violence or putting the person in fear.” Id. § 39-13-401(a).
“Although intent to kill is not required under the felony murder statute, the perpetrator must
possess the requisite intent to commit the underlying felony for a felony murder conviction
to be sustained.” State v. John Dennis Rushing, No. 01C01-9501-CR-00020, 1996 WL
63920, at *6 (Tenn. Crim. App., at Nashville, Feb. 13, 1996), perm. to appeal denied (Tenn.
July 22, 1996). In other words, a conviction for felony murder does not require a showing
of premeditation or intent to kill; instead, it requires only a showing of a killing during the

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perpetration of an underlying felony. See T.C.A. § 39-13-202(a)(2). Additionally, the death
must occur “in the perpetration of” the enumerated felony. State v. Hinton, 42 S.W.3d 113,
119 (Tenn. Crim. App. 2000). “The killing may precede, coincide with, or follow the felony
and still be considered as occurring ‘in the perpetration of’ the felony offense, so long as
there is a connection in time, place, and continuity of action.” State v. Buggs, 995 S.W.2d
102, 106 (Tenn. 1999). There is no requirement that “[t]he felony necessarily precede the
murder in order to support a felony-murder conviction.” Id. However, the Tennessee
Supreme Court has held that the defendant must intend to commit the underlying felony at
the time of the killing:

Given the fact that the felony-murder rule is a legal fiction in which the intent
and the malice to commit the underlying felony is “transferred” to elevate an
unintentional killing to first-degree murder, we are reluctant to extend the
doctrine to include cases in which there was no intent to commit the felony at
the time of the killing. Thus, in a felony-murder case, intent to commit the
underlying felony must exist prior to or concurrent with the commission of the
act causing the death of the victim.

Id. at 107. If the underlying felony and killing were part of a continuous transaction with no
break in the chain of events and the felon had not reached a place of temporary safety
between the events, felony murder is sufficiently established. State v. Pierce, 23 S.W.3d 289,
294-97 (Tenn. 2000). Proof of the intention to commit the underlying felony, and at what
point it existed, is a question of fact to be decided by the jury after consideration of all the
facts and circumstances. Buggs, 995 S.W.2d at 107. “[A] jury may reasonably infer from
a defendant’s actions immediately after a killing that the defendant had the intent to commit
the felony prior to, or concurrent with, the killing.” Id. at 108 (citing State v. Addison, 973
S.W.2d 260, 266 (Tenn. Crim. App. 1997); State v. Johnson, 661 S.W.2d 854, 861 (Tenn.
1983); State v. Holland, 860 S.W.2d 53, 59 (Tenn. Crim. App. 1993)).

In arguing that he lacked intent to commit the robbery, the Appellant essentially asks
this Court to adopt his version of the incident, namely that he and Courtney Johnson went to
the Apple Market in order to steal a car, that the Appellant threw the victim to the pavement
in order to help Johnson, who was scuffling with the victim, and that the Appellant drove
away alone in the victim’s vehicle because he was scared. The Appellant attributes any
inconsistencies between his statement to the police and his testimony at trial to his low level
of intellectual functioning.

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 We note that the jury was presented with the Appellant’s version of the events
regarding the incident and ultimately rejected it. This proof presented at trial is sufficient to
support the Appellant’s conviction for felony murder committed during the perpetration of
a robbery. The Appellant is not entitled to relief on this issue.

III. Introduction of Photographs of Victim

The Appellant argues that the trial court abused its discretion in admitting the
photographs from the victim’s autopsy. First, he contends that the photographs are
cumulative and of little probative value, given the admission of the medical examiner’s
diagrams and the expert medical testimony regarding the victim’s injuries that “explain the
nature and extent of [the] victim’s injuries without the prejudicial emotional impact of the
photographs.” Second, the Appellant contends that the photographs, specifically Exhibits
33 and 39, were unfairly prejudicial pursuant to Rule 403 because they depicted injuries from
medical intervention and injuries that were worsened by the victim’s fragility, due to his prior
medical conditions including senile ecchymosis and coagulopathy.

In response, the State initially notes that many of the photographs it offered were not
admitted or were cropped in order to make them admissible. Moreover, it asserts that the
photographs that were admitted were relevant to the issues in this case. The State argues that
the diagrams alone were insufficient to explain the cause of the victim’s injuries and omitted
some injuries. Moreover, the State asserts that the medical examiner’s testimony would have
been difficult for the jury to understand without the admission of the photographs, since the
testimony was tied so closely with the photographs. The State also argues that the
photographs admitted were necessary to show the extensiveness of the victim’s injuries and
to establish that the victim was beaten. Furthermore, despite their number, the State argues
that the subject matter of the “photographs only scarcely overlap[ped].” Regarding the
argument that certain photographs were unfairly prejudicial, the State responds that the
admitted photographs were not gruesome, and the medical examiner specifically identified
the stitches and bruises that were the result of medical intervention. As to the argument that
the photographs were unfairly prejudicial because they showed injuries worsened by the
victim’s fragility, the State responds that criminal defendants must take their victims as they
find them. Cf. Odeneal v. State, 157 S.W. 419, 421 (Tenn. 1913) (“One who unlawfully
inflicts a dangerous wound upon another is held for the consequences flowing from such
injury, whether the sequence be direct or through the operation of intermediate agencies
dependent upon and arising out of the original cause.”).

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 During a hearing outside the presence of the jury during the guilt phase of the
Appellant’s trial, the trial court evaluated the admissibility of specific photographs taken
during the victim’s autopsy. The Appellant objected on the grounds that the photographs
were cumulative to other proof and that their probative value was outweighed by unfair
prejudice. The trial court overruled the Appellant’s objections to the cumulative nature of
the photographs, finding that the court had already “rejected two pictures . . . that were close-
ups that we’re not going to put in, but each one of these [photographs] has a different part
of the body that was not shown in the others, so I’m going to overrule your objection.” The
trial court further found that “the probative value is not outweighed by unfair prejudice.”

The defense objected to the following photographs at trial, and their admission is
contested on appeal:

Exhibit # Description

32 Close-up of victim’s face depicting injuries, i.e., hemorrhaging, to eyes,
and scrape to forehead. Injuries result of skull fractures.

33 View of right side of victim’s head, depicting staples and incision after
brain surgery. Photo also depicts ecchymosis around eye.

34 View of left side of victim’s head, depicting injury and bruising to left ear
and bruising to left shoulder

35 Close-up view of injury and bruising to left shoulder

36 Close-up view of inside of lower lip depicting injury to lip

37 Close-up view of inside of upper lip depicting injury to lip

38 View of right side of victim’s torso depicting injury and bruising to rib
cage/abdomen area

39 View of anterior part of neck and upper left shoulder

40 View of bruising and injury to left armpit area - near location of rib
fractures and clavicular fracture

41 View of injury to lower right side of chest

42 Close-up view of injury and bruising to inside of victim’s left wrist

43 Close-up view of injury and bruising to top of victim’s right hand

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 44 View of bruising and injury to inside of victim’s left arm

45 View of bruising, tears and injury to top portion of victim’s left arm
including elbow

46 View of injury to victim’s left arm including top of hand

47 View of injury and bruising to inside and top of victim’s right arm and
wrist

48 View of top of victim’s right hand showing bruise over knuckle

49 View of injury and bruising to inside of victim’s right arm and elbow

50 View of injury and bruising to victim’s right arm

51 View of injury and bruising to victim’s right upper arm

52 View of injury to victim’s right hand and wrist

53 View of injury to victim’s left knee

54 View of injury to inside of victim’s right ankle

55 Cropped picture of victim’s left knee

The aforementioned twenty-four color photographs were admitted into evidence, and
Dr. Chancellor described the injuries depicted in each photograph. She stated that she was
unable to provide the order in which the injuries were inflicted. However, she opined that
the injuries were the result of blunt force and were sustained very close in time.

The trial court has discretion regarding the admissibility of photographs, and a ruling
on this issue “will not be overturned on appeal except upon a clear showing of abuse of
discretion.” State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). First, a photograph must
be “verified and authenticated by a witness with knowledge of the facts” before it can be
admitted into evidence. Id. Second, a photograph must be relevant to an issue that the jury
must determine before it may be admitted. State v. Vann, 976 S.W.2d 93, 102 (Tenn. 1998)
(citing State v. Stephenson, 878 S.W.2d 530, 542 (Tenn. 1994); Banks, 564 S.W.2d at 951
(Tenn. 1978)). However, if the photograph’s “prejudicial effect outweighs its probative
value,” it should not be admitted. Tenn. R. Evid. 401 and 403; Banks, 564 S.W.2d at 951.
A relevant photograph “may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative

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evidence.” Banks, 564 S.W.2d at 951. Unfair prejudice has been defined by the Tennessee
Supreme Court as “an undue tendency to suggest decision on an improper basis, commonly,
though not necessarily an emotional one.” Id. Photographs must never be used “solely to
inflame the jury and prejudice them against the defendant.” Id.

There is nothing gruesome, graphic, or horrifying about these pictures. Compare
Banks, 564 S.W.2d at 950-51 (citing People v. Jenko, 102 N.E.2d 783, 785 (Ill. 1951))
(“[P]hotographs of [a] corpse are admissible in murder prosecutions if they are relevant to
the issues on trial, notwithstanding their gruesome and horrifying character.”). Furthermore,
nothing in the photographs would confuse or mislead the jury, waste the court’s time, or be
redundant. See Tenn. R. Evid. 403; Banks, 564 S.W.2d at 951.

Exhibits 32 through 55 depict the numerous injuries sustained by the victim. Dr.
Chancellor appropriately described the injuries and specified the injuries resulting from
surgical or medical intervention. The photographs admitted by the trial court were relevant
to supplement the testimony of the medical examiner. See generally State v. Cole, 155
S.W.3d 885, 913 (Tenn. 2005) (Appendix) (“The photographs were relevant to supplement
the testimony of the medical examiner that this wound was inflicted from contact range, from
which a jury could infer premeditation, and not from a few feet away as claimed by the
defendant during his statement to the police.”). We conclude that the probative value of the
photographs was not outweighed by their prejudicial effect, and the trial court did not abuse
its discretion in allowing their admission. Further, we conclude that it does not affirmatively
appear that the admission of the photographs affected the result of the Appellant’s trial. See
Banks, 564 S.W.2d at 953 (“Following an examination of the entire record in this case, we
are of the opinion that it does not affirmatively appear that the error in admission of the
photographs has affected the results of the trial.”). The Appellant is not entitled to relief on
this issue.

IV. Constitutionality of (i)(7) Aggravating Circumstance

The Appellant contends that the (i)(7) aggravating circumstance is unconstitutional
pursuant to State v. Middlebrooks, 840 S.W.2d 346 (Tenn. 1992), superseded by statute as
recognized in State v. Stout, 46 S.W.3d 689 (Tenn. 2001). He argues that “while the
sentencing statute as amended does narrow the class of death eligible defendants within the
class of those convicted of felony murder by requiring that the murder be knowingly
committed[] and that the defendant have a substantial role in the underlying felony[, the
(i)(7) aggravating circumstance] maintains a disproportionate risk of death to felony murder
defendants when compared with that risk to defendants convicted of premeditated murder.”

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He adds that “it was just that disproportionate risk that concerned the Middlebrooks court and
which lies at the heart of the statute’s constitutional infirmity.”

In response, the State argues that the Appellant’s argument regarding the
constitutionality of the (i)(7) aggravating circumstance was recognized by the Tennessee
Supreme Court’s ruling in State v. Stout, 46 S.W.3d 689 (Tenn. 2001), superseded by statute
on other grounds as recognized in State v. Odom, 137 S.W.3d 572 (Tenn. 2004). We agree
that the Appellant is not entitled to relief on this issue.

In 1992, the Tennessee Supreme Court in Middlebrooks held that the (i)(7) felony
murder aggravating circumstance, as it existed at the time, essentially duplicated the elements
of the felony murder statute and did not sufficiently narrow the class of convicted defendants
eligible for the death penalty in compliance with the Eighth Amendment of the United States
Constitution. Middlebrooks, 840 S.W.2d at 346. In 1995, the Tennessee General Assembly,
in response to the Middlebrooks decision, amended the aggravating circumstance in section
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, or was fleeing after having a substantial role in committing or
attempting to commit” one of the specified felonies. T.C.A. § 39-13-204 (Supp. 1995).
Effectively, “[t]his 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 [Tennessee Code Annotated section] 39–13–204(i)(7) was the only aggravating
circumstance established and the conviction was for felony murder.” State v. Banks, 271
S.W.3d 90, 152 (Tenn. 2008) (citing State v. Reid, 91 S.W.3d 247, 306 n.13 (Tenn. 2002)
(appendix)). The law is settled that the current versions of the felony murder statute and the
(i)(7) felony murder aggravating circumstance are constitutionally sound:

Unlike the statutes analyzed in Middlebrooks, the present versions of felony
murder and the felony murder aggravating circumstance do not duplicate the
elements of one another. The aggravating circumstance applies only where the
jury finds that a defendant acted knowingly and had a substantial role in the
offense. The additional elements were not in the prior version of the felony
murder aggravating circumstance. In short, the present statutory scheme
eliminates the duplication that was at issue in Middlebrooks and thus achieves
the constitutionally required narrowing of death-eligible offenders convicted
of felony murder.

Stout, 46 S.W.3d at 706.

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 We conclude, pursuant to established precedent on this issue, that the (i)(7)
aggravating circumstance sufficiently narrows the pool of death-eligible defendants. Cf.
State v. Leach, 148 S.W.3d 42, 68 (Tenn. 2004) (Although the Appellant acknowledged that
the (i)(7) aggravating circumstance was amended to add the “knowing” element, he requested
that the Tennessee Supreme Court “adopt a position contrary to that currently held by the
courts of this state[,]” which the court refused to do.). Accordingly, the Appellant is not
entitled to relief on this issue.

V. Sufficiency of (i)(7) Aggravating Factor

The Appellant next contends that the evidence is insufficient to support the application
of the (i)(7) aggravating circumstance. He argues that “[n]othing in the proof supports the
conclusion that Appellant knowingly committed a murder.” He further argues that although
“the medical evidence does not conclusively indicate [the] Appellant’s intent, the victim’s
injuries were not inconsistent with his having been thrown to the ground.”

In response, the State contends that whether a defendant “knowingly” killed the victim
is a question of fact for the jury. Citing State v. Brown, 311 S.W.3d 422, 432 (Tenn. 2010),
the State asserts that a jury can infer a defendant’s intent, including whether he acted
“knowingly,” from the facts and circumstances surrounding the offense. In addition, the
State argues that the severity of the victim’s injuries “can support a rational inference that
[the] defendant was aware that his conduct was reasonably certain to cause the victim’s death
and, therefore, that he knowingly killed him.” Finally, the State contends that the Appellant’s
argument focuses on accrediting Dr. Smith’s testimony that the majority of the victim’s
injuries could have been caused by a fall to his left side, even though the record contains
substantial evidence to the contrary. We agree with the State.

In order for a defendant to receive the death penalty, the jury must unanimously
determine that the State has proven beyond reasonable doubt one or more of the aggravating
circumstances in section 39-13-204(i). See T.C.A. § 39-13-204(g)(1). Here, the jury
determined that the State had proved the presence of three aggravating circumstances. See
id. §§ 39-13-204(i)(2), (7), and (14).

“In addressing whether the evidence is sufficient to support a jury’s finding of the
existence of an aggravating circumstance, our standard of review is framed by taking the
facts in a light most favorable to the State and by considering whether a rational trier of fact
could have found the existence of an aggravating circumstance beyond a reasonable doubt.”
Banks, 271 S.W.3d at 148-49 (citing Reid, 164 S.W.3d at 314; Terry v. State, 46 S.W.3d 147,
160–61 (Tenn. 2001)). This court has an obligation to consider the sufficiency of the
evidence supporting the aggravated circumstances found by the jury regardless of whether

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the defendant explicitly raises this issue. Id. at 149 (citing T.C.A. § 39–13–206(c)(1)(B);
Reid, 164 S.W.3d at 314).

Here, the Appellant argues that the evidence is insufficient to support the application
of the (i)(7) aggravating circumstance. The (i)(7) felony murder aggravating circumstance
is established where:

[t]he 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 first degree murder, arson, rape,
robbery, burglary, theft, kidnapping, aircraft piracy, or unlawful throwing,
placing or discharging of a destructive device or bomb[.]

T.C.A. § 39-13-204(i)(7). The proof in this case, in the light most favorable to the State,
establishes that the Appellant ambushed the victim, pushed him into his car, and fell on top
of the victim. An eyewitness observed the victim’s legs dangling from the vehicle while the
Appellant was on top of him and then observed the Appellant throw the victim to the ground.
The severe nature of the victim’s injuries and the findings of the medical examiner support
the conclusion that the Appellant inflicted numerous blows to the elderly victim. Because
the Appellant was aware that his conduct was reasonably certain to cause the victim’s death,
it was reasonable for the trier of fact to determine that the Appellant knowingly killed the
victim. Following the assault, the Appellant drove away in the victim’s car, attempted to
conceal the car, and admitted that that he intended to sell the parts from the victim’s car.
Viewing the facts in the light most favorable to the State, we conclude that a rational trier of
fact would have found the existence of this aggravating circumstance. The Appellant is not
entitled to relief as to this claim.

VI. Mandatory Review

The Appellant argues that his death sentence is arbitrary and disproportionate. He
claims that his impaired intellectual ability and remorse are “compelling mitigation.” He also
maintains that the victim’s “murder was an unintended consequence” of the underlying
felony of robbery. The State responds that abundant case law reflects that the Appellant’s
sentence was not arbitrary, excessive, or disproportionate. We agree with the State.

Pursuant to Tennessee Code Annotated section 39-13-206(c)(1), this court must
review the application of the death penalty to determine whether:

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 (A) The sentence of death was imposed in any arbitrary fashion;

(B) The evidence supports the jury’s finding of statutory aggravating
circumstance or circumstances;

(C) The evidence supports the jury’s finding that the aggravating
circumstance or circumstances outweigh any mitigating circumstances;
and

(D) The sentence of death 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).

1. Arbitrariness

The death penalty is not imposed in an arbitrary fashion so long as the defendant’s
trial “was conducted pursuant to the procedure established in the applicable statutory
provisions and rules of criminal procedure.” State v. Young, 196 S.W.3d 85, 115 (Tenn.
2006). After carefully reviewing the record, we conclude that the sentence of death was not
imposed in an arbitrary fashion.

2. Sufficiency of Statutory Aggravating Circumstances Found by the Jury

The jury found that the proof established three statutory aggravating circumstances,
i.e., that the defendant was previously convicted of one or more felonies involving the use
of violence; that the murder was knowingly committed while the defendant had a substantial
role in committing a robbery; and the victim of the murder was seventy (70) years or older,
beyond a reasonable doubt. T.C.A. § 39-13-204(i)(2), (7), (14). We must review the
evidence supporting these aggravating circumstances in the light most favorable to the State
and must determine whether a rational trier of fact could have found the existence of these
aggravating circumstances beyond a reasonable doubt. State v. Kiser, 284 S.W.3d 227, 272
(Tenn. 2009) (citing State v. Bane, 57 S.W.3d 411, 426 (Tenn. 2001)). Upon careful review,
we conclude that there was sufficient evidence to support the jury’s finding regarding each
of the three aggravating circumstances. We have previously determined that the evidence
is sufficient to support the application of the (i)(7) statutory aggravating circumstance in this
case.

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 The jury also found the proof supported the (i)(2), prior violent felony aggravating
circumstance relied upon by the State. See T.C.A. § 39-13-204(i)(2). During the penalty
phase, the State presented proof that the Appellant was convicted on March 7, 2003, of
robbery and attempted robbery and received sentences of three years and two years
respectively. The proof also revealed that on September 27, 1997, and September 29, 1997,
the Appellant was convicted of three counts of aggravated robbery. For each of these
convictions, he received a sentence of eight years. The jury’s verdict reflects that it found
that the State had proven the presence of the prior violent felony conviction aggravating
circumstance beyond a reasonable doubt, and the record supports this finding. We conclude
that the State’s evidence was sufficient to establish the (i)(2) aggravating circumstance. See
id. § 39-13-204(i)(2).

In addition, the jury found the proof supported the (i)(14) aggravating circumstance
that “[t]he murder victim was seventy (70) years of age or older.” Id. § 39-13-204(i)(14).
Witnesses for the State testified that the victim was seventy-nine years old at the time of his
murder. This uncontested proof is more than sufficient to support the jury’s finding of the
(i)(14) aggravating circumstance. Accordingly, after reviewing the record in the light most
favorable to the State, we conclude that a rational trier of fact could have found the existence
of all three of the aforementioned aggravating circumstances.

3. Totality of Aggravating Circumstances Applied

The Appellant offered the following mitigating circumstances: (1) his capacity to
appreciate the wrongfulness of his conduct or conform his misconduct to the requirements
of the law was substantially impaired as a result of mental disease or defect or intoxication,
which was insufficient to establish a defense to the crime but which substantially affected
his judgment; (2) his youth at the time of the crime; (3) his family’s expression of love and
support for him; (4) his formal education was limited to completing the seventh grade of
school; (5) his father had never been a part of his life; (6) his family for three generations
may have suffered from mental illness and drug/alcohol addiction; (7) his mother was
arrested for receiving stolen property when he was two years old and was arrested many
times thereafter; (8) he has significant deficits in his adaptive behavior; (9) his I.Q. has been
measured at 66, and he was diagnosed as “mildly mentally retarded” when he was sixteen
years old; (10) he was diagnosed as “mildly mentally retarded” by the MTMHI; (11) he
suffers from schizophrenia, has made suicide attempts, and has a family history of
schizophrenia; (12) he has expressed pressure and stressors leading up to the crime; (13) he
did not intentionally kill the victim; (14) he did not premeditatively kill the victim; (15) our
social system failed to protect and school him; (16) our mental health system failed to treat
him; (17) he was neglected and abandoned during his childhood; (18) he was traumatized by

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loss during his childhood; (19) he has expressed remorse for his actions; (20) any residual
doubt concerning his guilt or intent; (21) he was possibly prenatally exposed to drugs and
alcohol; (22) the impact of his execution upon his family members; (23) any other mitigating
circumstance which is raised by the evidence, produced by either the State or the Defense at
either the guilt or sentencing hearing, including any aspect of his character or record or any
aspect of the circumstances of the offense favorable to him which were supported by the
evidence. See generally id. § 39-13-204(j)(7), (8), (9). Upon review, we conclude that the
evidence supports the finding of the jury that the three aggravating circumstances outweighed
any mitigating circumstances beyond a reasonable doubt.

4. Proportionality

Pursuant to Tennessee Code Annotated section 39-13-206(c)(1)(D) and Bland, 958
S.W.2d at 661-74, this court is required to consider whether the Appellant’s sentence of
death is disproportionate to the penalty imposed in similar cases. State v. Godsey, 60 S.W.3d
759, 781-82 (Tenn. 2001). This review is designed to “‘identify and invalidate the aberrant
death sentence.’” Thacker, 164 S.W.3d at 233 (quoting Bland, 958 S.W.2d at 665). A
sentence of death is aberrant in a particular case if 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)). “[T]he sentence of death is not disproportionate, unless,
the case taken as a whole is plainly lacking in circumstances consistent with those in cases
where the death penalty has been imposed.” Bland, 958 S.W.2d at 668.

This court must use a “‘precedent-seeking method of comparative proportionality
review, in which we compare a case with cases involving similar defendants and similar
crimes.’” State v. Copeland, 226 S.W.3d 287, 305 (Tenn. 2007) (quoting State v. Davis, 141
S.W.3d 600, 619-20 (Tenn. 2004)). The pool of cases considered must be cases in which a
capital sentencing hearing was conducted and the jury determined whether the sentence
should be life imprisonment, life imprisonment without the possibility of parole, or death.
State v. Rice, 184 S.W.3d 646, 679 (Tenn. 2006). “[W]e begin with the presumption that the
sentence of death is proportionate to the crime of first degree murder.” State v. Hall, 958
S.W.2d 679, 699 (Tenn. 1997)). In conducting this comparative proportionality review, this
court must consider “the facts and circumstances of the crime, the characteristics of the
defendant, and the aggravating and mitigating factors involved.” Terry, 46 S.W.3d at 164.
Regarding the nature of the crime, numerous factors are considered, including:

“(1) the means of death; (2) the manner of death; (3) the motivation for the
killing; (4) the place of death; (5) the victim’s age, physical condition, and
psychological condition; (6) the absence or presence of premeditation; (7) the

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 absence or presence of provocation; (8) the absence or presence of
justification; and (9) the injury to and effect on non-decedent victims.”

State v. Reid, 213 S.W.3d 792, 820 (Tenn. 2006) (quoting Davis, 141 S.W.3d at 620). This
court must also consider the defendant’s: “(1) prior criminal record; (2) age, race, and
gender; (3) mental, emotional, or physical condition; (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. (quoting Davis, 141 S.W.3d at 620). In conducting our
review, we remain cognizant of the fact that “no two cases involve identical circumstances.”
Terry, 46 S.W.3d at 164. Thus, “our objective cannot be to limit our comparison to those
cases where a defendant’s death sentence ‘is perfectly symmetrical,’ but only ‘to identify and
to invalidate the aberrant death sentence.’” Id. (quoting Bland, 958 S.W.2d at 665).

In this case, the evidence presented at trial established that the twenty-five-year old
Appellant planned on stealing a car from a woman before arriving at the Apple Market. The
Appellant unsuccessfully attempted to persuade sixteen-year-old Courtney Johnson to
participate in the robbery. At the market, the Appellant waited outside the store, watching
for vulnerable women, but none appeared. The Appellant then saw his opportunity as the
seventy-nine-year-old male victim exited the store. The Appellant chased the victim and
pushed him into the vehicle, where the Appellant began beating him. The Appellant then
threw the victim to the pavement and drove away in the victim’s car. The evidence showed
that the victim later died as a result of the injuries sustained during the beating. For several
days after the incident, the Appellant drove around in the victim’s car, provided rides to
acquaintances, and concocted various stories as to the ownership of the vehicle. During this
time, the Appellant was careful to park the car in a manner that prevented easy detection of
the license plate. The Appellant admitted that he had planned on selling parts from the stolen
vehicle. He ultimately turned himself into the police, at which time he expressed remorse
over his actions. The Appellant also presented evidence of borderline intellectual
functioning, but this evidence directly contradicted the Appellant’s school records, which
indicated a student who was able to perform in the ninetieth percentiles on standardized tests.
Evidence was presented showing the Appellant’s extensive criminal history. Moreover, the
jury was able to consider the facts of the incident, including the Appellant’s actions
following the robbery.

The death sentence has been upheld under similar facts and under application of
similar statutory aggravating circumstances to those found in the instant case. See, e.g.,
State v. Rollins, 188 S.W.3d 553, 571-77 (Tenn. 2006) (defendant stabbed to death eighty-
one-year-old shop owner in the course of a robbery, inflicting more than twenty non-fatal,
painful stab wounds while the victim was alive, conscious, and retreating before cutting the
victim’s carotid artery and jugular vein; death sentence upheld based on (i)(5)-(7), and

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(i)(14)); Leach, 148 S.W.3d at 59-60 (defendant raped one of the victims and beat, stabbed,
and strangled both elderly women; murders were committed during the robbery of the home;
death sentence upheld based upon (i)(2), (i)(5), (i)(7), and (i)(14) (only as to one victim));
State v. Mann, 959 S.W.2d 503 (Tenn. 1997) (young defendant broke into home of elderly
victim and beat, raped, and killed victim; death penalty upheld based upon (i)(5) and (i)(7));
State v. Bush, 942 S.W.2d 489, 507 (Tenn. 1997) (young defendant broke into home of
elderly victim and beat and stabbed her to death; death penalty upheld based upon (i)(5) and
(i)(7)); State v. Barber, 753 S.W.2d 659, 668-69 (Tenn. 1988) (young defendant beat elderly
woman to death during burglary; death sentence upheld based upon (i)(5) and (i)(7)); State
v. McNish, 727 S.W.2d 490, 491-94 (Tenn. 1987) (defendant bludgeoned elderly widow to
death during robbery; aggravating circumstance (i)(5)); State v. Barnes, 703 S.W.2d 611,
612-14 (Tenn. 1985) (defendant beat elderly woman during burglary of her house, victim
died of complications from pneumonia resulting from beating; aggravating circumstances
(i)(2), (i)(5), and (i)(7)); State v. Campbell, 664 S.W.2d 281, 282-84 (Tenn. 1984) (defendant
beat elderly man to death during a robbery and was sentenced to death upon finding of (i)(2),
(i)(5), and (i)(7) aggravating circumstances).

The death sentence has also been upheld in cases based only upon the (i)(2)
aggravating circumstance of prior violent felony convictions. See, e.g., State v. Faulkner,
154 S.W.3d 48, 63 (Tenn. 2005) (prior convictions for second degree murder, assault with
intent to commit first degree murder, assault with intent to commit robbery, assault with
intent to commit voluntary manslaughter, and robbery); State v. McKinney, 74 S.W.3d 291,
300 (Tenn. 2002) (prior guilty plea to aggravated robbery); State v. Chalmers, 28 S.W.3d
913, 916 (Tenn. 2000) (prior convictions for attempted especially aggravated robbery and
attempted first degree murder); State v. Keough, 18 S.W.3d 175, 184 (Tenn. 2000) (prior
convictions for assault to commit voluntary manslaughter and manslaughter); State v. Smith,
993 S.W.2d 6, 18-21 (Tenn. 1999) (prior conviction for first degree murder and two prior
convictions for robbery). The prior violent felony factor is an aggravating circumstance that
the Tennessee Supreme Court has described as “‘more qualitatively persuasive and
objectively reliable than others.’” McKinney, 74 S.W.3d at 313 (quoting State v. Howell,
868 S.W.2d 238, 261 (Tenn. 1993)).

Having compared the circumstances of the present case with the circumstances of the
cases cited above and others not herein detailed, we conclude that this case, taken as a whole,
is not “plainly lacking in circumstances consistent with other similar cases in which the death
penalty has been imposed.” Bland, 958 S.W.2d at 668. We further conclude that the
mitigating circumstances presented by the Appellant are insufficient to distinguish his case
from the aforementioned cases. Thus, considering the circumstances of the crime, the
Appellant, and the aggravating and mitigating circumstances, the Appellant’s sentence of
death is not disproportionate, excessive, or arbitrary.

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 CONCLUSION

In accordance with the mandate of Tennessee Code Annotated section 39-13-
206(c)(1) and the principles adopted in prior decisions of the Tennessee Supreme Court, we
have considered the entire record in this case and conclude that the sentence of death was not
imposed arbitrarily. The evidence supports the jury’s finding of the (i)(2), (i)(7), and (i)(14)
statutory aggravating circumstances as to the murder of the victim. Moreover, the evidence
supports the jury’s finding that the application of these enumerated aggravating
circumstances outweighed any mitigating circumstances beyond a reasonable doubt. See
T.C.A. § 39-13-206(c)(1). A comparative proportionality review, considering the nature of
the crime, the defendant, and the aggravating and mitigating circumstances, convinces us that
the sentence of death was neither excessive nor disproportionate to the penalty imposed in
similar cases. See Terry, 46 S.W.3d at 164. Accordingly, we affirm the Appellant’s
conviction for first degree felony murder and the resulting sentence of death by lethal
injection. It appearing that the Appellant, Corinio Pruitt, is indigent, the costs of this appeal
are taxed to the State.

_______________________________
CAMILLE R. MCMULLEN, JUDGE

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