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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON April 11, 2001 Session
STATE OF TENNESSEE v. DONAVAN EDWARD DANIEL
Direct Appeal from the Circuit Court for Weakley County No. CR121-1999 William B. Acree, Judge ________________________ No. W2000-00981-CCA-R3-CD - Filed December 28, 2001 _______________________ After a jury trial, the defendant, a juvenile at the time of the offenses, was convicted of six counts arising out of the shooting deaths of two victims. The jury sentenced him to life in prison for Count One, first degree premeditated murder of the first victim, and for Count Two, first degree felony murder of the first victim based upon robbery of the first victim. The jury sentenced him to life in prison without the possibility of parole for Count Three, first degree felony murder of the second victim based upon premeditated murder of the first victim, and for Count Four, first degree felony murder of the second victim based upon robbery of the first victim. The trial court merged the conviction for Count Two into Count One, and the conviction for Count Four into Count Three. The trial court sentenced the defendant to twenty (20) years for Count Five, especially aggravated robbery, one (1) year for Count Six, possession of marijuana with intent to resell, and ordered the sentences to be served concurrently. On appeal, the defendant challenges the trial court's denial of his motion to suppress and his request for a state-funded mitigation expert, as well as the sufficiency of the evidence to support his convictions for first-degree murder. After careful review of the record, we hold that the trial court did not err in failing to suppress the defendant's statements. Further, we hold that although the defendant's status as a non-capital defendant did not preclude him from receiving state-funded expert services, our de novo review of the record reveals that the defendant failed to make the required showing of a particularized need for a mitigation expert. Therefore, the trial court's denial of the defendant's request for such services was correct. Finally, we hold the evidence is sufficient to sustain the defendant's convictions for premeditated and felony murder in the first degree. Accordingly, we affirm the judgments of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOE G. RILEY and ROBERT W. WEDEMEYER , joined. C. Michael Robbins (on appeal), Memphis, Tennessee; Joseph P. Atnip, District Public Defender; and Colin Johnson, Assistant Public Defender (at trial and on appeal), for the appellant, Donavan Edward Daniel. Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant Attorney General; Thomas A. Thomas, District Attorney General; James T. Cannon and Allen J. Strawbridge, Jr., Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION The defendant, Donovan Daniel, a seventeen (17) year old, was transferred from juvenile court to circuit court and indicted by a Weakley County Grand Jury on the following six counts: Count One, first degree premeditated murder of Clarence Jones; Count Two, first degree felony murder of Clarence Jones in perpetration of and while intending to commit robbery; Count Three, first degree felony murder of Cassandra Tamakia Thomas in perpetration of and while intending to commit first degree murder; Count Four, first degree felony murder of Cassandra Tamakia Thomas in perpetration of and while intending to commit robbery; Count Five, especially aggravated robbery of Clarence Jones; and Count Six, possession of a controlled substance with intent to sell or deliver. The defendant filed a pretrial motion to suppress his statements to police, which was denied by the trial court. The state gave notice of its intent to seek a sentence of life without the possibility of parole. The defendant filed an ex parte motion requesting the court to provide a mitigation expert for the defense, which the trial court denied. The defendant was tried by a jury and found guilty of all six counts. The jury sentenced the defendant to life in prison for Counts One and Two; and life in prison without the possibility of parole for Counts Three and Four. The trial court merged the conviction for Count Two, felony murder of Clarence Jones, into the conviction for Count One, premeditated murder of Clarence Jones. The trial court also merged the conviction for Count Four, felony murder of Tamakia Thomas based on the underlying felony of robbery, into the conviction for Count Three, felony murder of Tamakia Thomas based on the underlying felony of premeditated murder. The trial court sentenced the defendant to twenty (20) years for the especially aggravated robbery conviction, Count Five, and to one (1) year for the possession of marijuana with intent to resell conviction, Count Six. The trial court ordered the sentences to be served concurrently. The trial court denied the defendant's timely filed motion for a new trial. A timely notice of appeal was filed with this court. In this appeal, the defendant raises the following three issues: (1) whether the trial court erred in denying the defendant's motion to suppress three incriminating statements made by the defendant; (2) whether the trial court erred in denying the defendant's request for a mitigation expert; and (3) whether the evidence is sufficient to sustain the convictions for premeditated and felony murder in the first degree. FACTS The defendant gave several statements to the police, which established the following sequence of events as told by the defendant. On the afternoon of June 2, 1999, the defendant and two other young men visited the victim, Clarence Jones' home in Martin, Tennessee. The defendant and his friends smoked marijuana with Jones. After the defendant's two friends left, Jones and the defendant smoked more marijuana and the defendant drank a mixed drink. During this time, a man came to the home and bought marijuana from Jones. After he left, the defendant drank another mixed drink. Misty Schrems and a couple of her friends also came over to buy marijuana from Jones. Ms. Schrems and the other guests remained at the victim's home with the defendant and Jones for a few hours. They all smoked more marijuana. Several more people came to the house and bought marijuana from Jones. After everyone but the defendant and Jones had left, Shannon Parham and Natasa James came to the house. By this time, the defendant was "starting to feel crazy" and tried to "get with" one of the girls. The two girls left after twenty or thirty minutes. The defendant and Jones continued to smoke marijuana and drink alcoholic beverages until Jones' roommate, Tamakia Thomas, came home. Shortly after Thomas arrived home, Jones rolled
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another marijuana cigarette and went to his room to "play some music." The defendant went to the kitchen and picked up Jones' rifle from the counter. The defendant walked into the hallway leading to Jones' bedroom. The defendant shot and killed Jones, who was standing in his bedroom. The defendant did not think that Jones saw him with the gun prior to being shot. Neither the defendant nor Jones said anything before the defendant shot Jones. The other victim, Tamakia Thomas, was in the bathroom with the door shut when the defendant shot Jones. The defendant turned around after shooting Jones and was startled to find that Thomas had opened the bathroom door and was standing just inside the bathroom. The defendant shot and killed Thomas. After killing Jones and Thomas, the defendant walked around for a moment and tried to gather his thoughts. He started looking for some money to "get out of town." The defendant took money from Jones' pocket and Jones' dresser. He also took a ring off of Jones' finger and the watch from his wrist. At this point, someone began knocking on the front door. The defendant put a sock on his hand and tried to escape out of the window in Jones' room. The knocking stopped before the defendant was able to get out the window, so he went out the front door instead. Before leaving in Jones' car, the defendant grabbed the murder weapon and a large bag of marijuana. The defendant drove to Union City, where he "stashed" the murder weapon in a dumpster. He also left Jones' car in the parking lot of the Wal-Mart in Union City. A friend of the defendant, Mitchell Avent, then drove the defendant to a motel, also in Union City. Mr. Avent went inside and paid for the room with money the defendant had taken from Jones. The defendant spent the night at the motel and called Mr. Avent to pick him up around noon the next day. Mr. Avent drove the defendant to his home in Martin, and the defendant "went on about [his] day like nothing had happened." Mitchell Avent testified for the state at the defendant's trial. Mr. Avent was charged as an accessory to the murders. As part of a plea agreement, he pled guilty and received two years of probation in exchange for his testimony. Mr. Avent testified that the defendant came to Mr. Avent's girlfriend's house around eleven o'clock p.m. on the night of the murders. At that time, Mr. Avent was living in his girlfriend's house, which was located in Union City. The defendant told Mr. Avent that he had killed Jones and Thomas and asked if Mr. Avent knew of anywhere that the defendant could stay. Mr. Avent told the defendant that he could not stay there and that he did not know anyone else that he could stay with. The defendant asked Mr. Avent to help him dispose of Jones' car. Mr. Avent agreed to follow the defendant to a location where the defendant could leave the car. They stopped at a dumpster on the way so that the defendant could throw away the murder weapon. Mr. Avent testified that he told the defendant that he should get rid of the weapon. Mr. Avent said that his girlfriend was afraid of the defendant and that he did this at her request. The defendant left Jones' car in the Wal-Mart parking lot in Union City. After leaving the Jones' car at Wal-Mart, Mr. Avent took the defendant to a motel in Union City. He got a room for the defendant with money that the defendant gave him. The next day, Mr. Avent returned to the motel to pick up the defendant. At this time, the defendant gave Mr. Avent a Rolex watch belonging to Jones, which Mr. Avent later gave to the police. Mr. Avent took the defendant back to the defendant's home in Martin. The defendant, however, returned to Mr. Avent's house later that evening and asked Mr. Avent to provide an alibi for him during the time that the murders were committed. Mr. Avent refused and asked the defendant not to mention his name to the police. From his conversations with the defendant, Mr. Avent got the impression that the defendant's motive for killing Jones and Thomas was Jones' money. Mr. Avent clarified that the defendant never specifically told Mr. Avent why he had murdered Jones and Thomas, but did tell Mr. Avent that he knew that Jones had some money before he killed him. Mr. Avent also testified that the defendant appeared to have been smoking marijuana on the night of the murders because his eyes were red. Mr. Avent did not, however, indicate that the defendant was otherwise impaired. He
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stated that the defendant appeared to know what he was doing. Natasa James also testified for the State. Ms. James visited the home of Jones and Thomas on the night of the murders to get money that Jones owed her for a washer and dryer that she had recently sold to Jones. Her roommate, Shannon Parham, was with her, and they arrived at the home between eight and eighty-thirty p.m. The defendant and Jones were alone in the home. When Ms. James walked in the door, the defendant was standing and holding a rifle, which was pointed in her direction. Jones told the defendant to put the gun down. The defendant lowered the gun but continued to hold the gun while the two women were there. The group sat in the living room and at some point the defendant asked Ms. James if he could touch her leg. Shortly thereafter, the two women left. Ms. Parham also testified at the defendant's trial. Ms. Parham corroborated that the defendant had a rifle in his possession the entire time she and Ms. James were there. Ms. Parham did not notice any unusual behavior by the defendant. Based on her observation, the defendant and Jones were not in any type of disagreement. Misty Schrems testified that she also visited the victims' home the night of the murders. Ms. Schrems, along with two friends, arrived at about five or five-thirty p.m. and stayed until about eight or eight-thirty p.m. The defendant and Jones were the only people there during that time. Ms. Schrems said that everyone was drinking beer and smoking marijuana while she was there. Jones had a large shopping bag in the kitchen, which was full of marijuana. She said that it was in plain view for the defendant to see many times while she was there. Ms. Schrems returned to the victims' home around eleven-thirty p.m. the same night. Jones' car was not in the driveway, and no one answered the door. Ms. Schrems returned home but continued to telephone the victims' home throughout the next day. Unable to reach the victims by telephone, Ms. Schrems returned to the victims' home around six-thirty p.m. Finding the door unlocked, she went inside to leave a note. The stereo was on and very loud. Ms. Schrems tried to turn down the stereo in the living room but realized that it was not on. She went to the bedroom to turn off the other stereo. That was when she saw that the room had been torn apart and found Jones' body lying on the floor. Ms. Schrems became very upset and ran outside the home screaming that Jones was dead. While inside the house, Ms. Schrems noticed that there was some marijuana on top of the dryer. Afraid that Ms. Thomas would get in trouble if the police found it, she re-entered the home and took the marijuana to the bathroom, intending to flush it down the toilet. When she walked into the bathroom, however, she discovered Ms. Thomas' body lying in the bathtub. Ms. Schrems left the marijuana in the doorway of the bathroom and ran back out of the home screaming that both Jones and Thomas were dead. She screamed for the neighbors to call the police but jumped in the car and left before the police arrived. Ms. Schrems said that she panicked and drove to the home of Thomas' family to tell them that she was dead. Ms. Schrems then accompanied Thomas' family members back to the victims' home and talked with the police. Chad Johnson, a forensic scientist for the Tennessee Bureau of Investigation, examined the evidence at the scene of the murders and the evidence collected from the defendant's residence. Mr. Johnson testified that the body of Clarence Jones was found in the bedroom and that the body of Tamakia Thomas was found in the bathtub. Photographs of the locations of the bodies were introduced as evidence. Also introduced as evidence were Jones' ring, a large bag of marijuana, and a shirt with blood on it, all found in a dumpster near the defendant's home. Mr. Johnson also testified that he found money in the sole of one of the defendant's tennis shoes. A forensic pathologist, Dr. Gunther, performed autopsy examinations of both victims. Dr. Gunther testified that both victims died from a single gunshot wound to the head. Mr. Jones was
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shot in the back left side of his head above the ear. Ms. Thomas was shot in the forehead from an estimated distance of anywhere between a half a foot and two feet. Dr. Gunther testified that the gunshots to both victims likely caused immediate death. Law enforcement officers Rick Kelly, David Moore, and Joe Walker also testified about the events that led to the defendant's arrest. This testimony is addressed, infra, in our analysis of the admissibility of the defendant's confessions. ANALYSIS The defendant challenges (1) the admissibility of several statements made by the defendant to police officers during custodial interrogations, (2) the trial court's refusal to appoint a mitigation expert for the defense, and (3) the sufficiency of the evidence to support his convictions for premeditated and felony murder. I. Admissibility of Statements The defendant filed a pretrial motion to suppress his confessions to police on the grounds that the statements were not voluntary. After an evidentiary hearing, the trial court found that the defendant's statements were voluntary and denied the defendant's motion to suppress. The defendant now challenges the trial court's ruling and the admissibility of the statements. Precisely, he argues (1) the initial detention of him by police officers was without probable cause and illegal, and, therefore, all subsequent statements made by the defendant must be suppressed; (2) that the statements were obtained without a knowing and voluntary Miranda waiver; and (3) the statements were coerced through physical deprivation of sleep and food and illusory promises of leniency and, therefore, were not voluntary. The illusory promises to which the defendant refers are alleged statements by one of the investigating officers to the defendant urging him to cooperate with police in order to avoid the death penalty. The defendant was seventeen (17) years old, a juvenile, at the time the offenses were committed and thus, could not receive the death penalty for the crimes. Tenn. Code Ann.

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