IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
FEBRUARY 1997 SESSION
FILED
July 25, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 02C01-9605-CR-00170
Appellee, )
) SHELBY COUNTY
VS. )
) HON. JOSEPH B. BROWN, JR.,
KEVIN B. BURNS, ) JUDGE
)
Appellant. ) (First-degree murder death penalty;
) attempted felony murder)
FOR THE APPELLANT: FOR THE APPELLEE:
GLENN I. WRIGHT JOHN KNOX WALKUP
200 Jefferson Ave. Attorney General & Reporter
Suite 800
Memphis, TN 38103 DARIAN B. TAYLOR
Asst. Attorney General
WILLIAM L. JOHNSON 450 James Robertson Pkwy.
50 N. Front St. Nashville, TN 37243-0493
Suite 1150
Memphis, TN 38103 JOHN W. PIEROTTI
District Attorney General
THOMAS D. HENDERSON
-and-
JOHN WHEELER CAMPBELL
Asst. District Attorneys General
201 Poplar Ave.
Memphis, TN 38103
OPINION FILED:____________________
CONVICTIONS FOR FIRST-DEGREE MURDER AND DEATH PENALTY
AFFIRMED; CONVICTIONS FOR ATTEMPTED FELONY MURDER REVERSED
AND REMANDED
JOHN H. PEAY,
Judge
OPINION
The defendant was indicted on two counts of murder in the perpetration of
a robbery (felony murder), two counts of premeditated murder, two counts of attempted
first-degree murder during the perpetration of a robbery (attempted felony murder) and
two counts of attempted premeditated first-degree murder. A jury convicted him of two
counts of felony murder and two counts of attempted felony murder. After a hearing, the
jury sentenced the defendant to death for one of the murders and to life imprisonment
for the other murder. He was sentenced to twenty-five years for each of the attempted
felony murders. In this appeal as of right, he raises the following issues:
I. The sufficiency of the convicting evidence;
II. The trial court’s refusal to suppress his statement;
III. The trial court’s instruction to the jury on flight;
IV. The validity of his convictions for attempted felony murder;
V. The trial court’s failure to grant a mistrial upon sobbing in the
courtroom;
VI. The admissibility of a crime scene photograph;
VII. The trial court’s responses to questions from the jury during
its deliberations;
VIII. The sufficiency of the evidence in support of the death
penalty;
IX. Whether the death penalty was properly imposed in light of
the defendant’s role in the crime;
X. Whether the victims’ mothers were properly permitted to testify
during the sentencing hearing as to the impact of the murders;
and
XI. The constitutionality of Tennessee’s death penalty statutes.
Following our review of the record in this matter, we affirm the defendant’s first-degree
murder convictions and sentences, reverse and dismiss his convictions for attempted
felony murder, and remand this matter for retrial of two counts of attempted premeditated
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first-degree murder.
FACTS
The proof at trial established that on April 20, 1992, at approximately 3:15
in the afternoon, Eric Thomas, Damond Dawson, Tommie Blackman and Tracey Johnson
gathered at Dawson’s house in a residential neighborhood in East Memphis. The four
men ranged in age from sixteen to twenty-one years old. They sat in Dawson’s sedan
while it was parked in his driveway, the front of the car facing and perpendicular to the
street. Dawson sat in the driver’s seat, Johnson in the front passenger seat, Thomas
behind Dawson in the back seat and Blackman in the back seat behind Johnson. While
they sat there, they smoked some marijuana and drank some gin. Johnson’s mother
testified that she had seen her son wearing a jewelry chain that morning.
Thomas testified that, five or ten minutes after they had been in the car,
Carlito Adams and another male walked up to its passenger side. The other male pulled
out a pistol. Carlito Adams exchanged some words with Blackman and told him to get
out of the car. Blackman initially refused, then got out of the car and began running.
Thomas testified that Carlito Adams had then said, “Get him.” At that point, according
to Thomas, three or four more men “came from around the bushes and shot at
[Blackman] about six or seven times.” On cross-examination, however, Thomas stated
that he had seen only one person actually fire at Blackman as he ran away.
Thomas testified that he, Dawson and Johnson had remained in the car
while the men then surrounded it, pointed pistols at them and robbed them, taking money
from him and jewelry from Johnson and Dawson. After taking these items, according to
Thomas, the men had begun shooting at them, hitting him in the chest and stomach.
Thomas testified that they had also been shooting Dawson and Johnson and he had
decided to “lay down and try to play dead.” At some point, he testified, “they ran off, and
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I thought that was it. And then I heard some footsteps coming back, so I laid back there
again, and somebody came back and started shooting back again.” On this return visit,
Thomas testified, two people had shot on his side of the car, hitting him in the upper leg
and shooting Dawson again. Someone said, “We got