Category: Uncategorized

State v. Miller

State of Tennessee v. Urshawn Eric Miller, No. W2019-00197-SC-DDT-DD (June 3, 2021).

Attorney Contributor: Anna Swift

Journal Member: Elizabeth Ciabattone


For only its 47th time since the 1980s, Tennessee has upheld the death penalty for one of its prisoners.[1] The defendant? Urshawn Eric Miller, a twenty-six-year-old African-American male diagnosed with various mental disorders and the youngest inmate to be on death row.[2] The victim? A market store clerk attendant.[3] The crime? A burglary resulting in the first-degree murder of the clerk and a subsequent hostile encounter with the police.[4]

Minds may differ as to whether this particular defendant’s crimes would be deserving of the highest form of punishment available in our country, and this issue was directly debated by the dissent.[5] Less debated, however, was the impact of Mr. Miller’s mental illness as a mitigating factor for the death penalty, likely due to the standard of review applied in capital cases and deference given to jury findings.[6] As noted below, the death penalty is a serious matter that should, and does, receive serious treatment. Because the death penalty should be analyzed to the best and fullest extent possible, this case comment argues that Social Security Administration (“SSA”) rules and regulations on mental disorders – while not binding – do offer persuasive value to those seeking the death penalty, those defending death row inmates, and those reviewing death penalty sentences.

To this end, this comment first summarizes the case of State v. Miller, 638 S.W.3d 136 (Tenn. 2021), giving special attention to Mr. Miller’s mental health history. Next, the gravity of the death penalty is briefly established before highlighting the role of mental illness in Tennessee’s death penalty jurisprudence. Finally, this article sets forth relevant SSA rules and regulations that can be utilized for comparative purposes and considered in determining potentially unsettled questions of Tennessee death penalty jurisprudence.

Case Overview

Facts and Procedural History

On November 25, 2015, Mr. Miller went into the Bull Market store in Jackson, Tennessee, dressed in black clothing, gray gloves, and a white face covering.[7] Inside the store, he proceeded to point a gun at the clerk, Ahmad Dhalai, and instructed him to “[d]rop that sh*t off or I’m a shoot you dead in the head.”[8] Mr. Miller then looked briefly in the direction of another employee, Lawrence Austin, before turning back to the clerk and again stating, “Drop that sh*t off.”[9] Mr. Miller proceeded to fire his first shot, barely missing the clerk’s head.[10] The clerk responded by slowly turning to walk away, and Mr. Miller again said, “Drop that sh*t off. Quit playing.”[11]

At that point, Mr. Miller used his weapon to shoot the clerk in the back of the head and to fire a shot in the direction of the other employee before jumping over the counter.[12] Mr. Miller banged on the cash register with his elbow and, having no success, jumped back over the counter to flee the store.[13] Moments later, the clerk passed away.[14] This entire encounter was captured by the store’s surveillance camera system.[15]

Once Mr. Miller left the premises, another employee, who was also the victim’s cousin, Abdul Saleh, attempted to render aid to the victim before calling 9-1-1.[16] Also calling 9-1-1 was Timothy Sinclair, Sr., a regular customer who was loading his car with purchases when he saw Mr. Miller enter, and then leave the store, with a gun in his hand, and he additionally heard the gunshots.[17] The victim’s cousin’s son, Foad, additionally saw Mr. Miller leave the store while riding a bicycle in the parking lot; Foad gave a description of Mr. Miller to the police as well as the direction of his escape.[18]

K-9 Officer Jeremy Stines and his dog, Pax, were deployed to apprehend Mr. Miller and followed him to a wooded area near Lions’ Field at Lambuth University, where he had taken refuge.[19] The police repeatedly instructed Mr. Miller to come out of the woods, but he resisted; Mr. Miller instead yelled back expletives and threats, including that he was going to take one of them down with him.[20] Pax was released in an attempt to force Mr. Miller out of the woods, and Pax bit him on the shoulder, at which point they both tumbled to the ground.[21] Because Mr. Miller refused to release his hands from Pax’s throat, Officer Stines hit Mr. Miller in the head with a gun.[22] Ultimately, he was subdued by a taser from another officer.[23]

Mr. Miller was thereafter handcuffed and taken to the hospital for treatment of his dog bite before being transported to jail.[24] The officers who remained behind at the scene searched the wooded area and recovered various items.[25] These items included the following: a black jacket with a hood, black pants, and a belt, all of which were found to have Mr. Miller’s DNA as a major contributor on them; a portion of a white t-shirt that had a blood stain matching that of Mr. Miller on it; gray gloves that were found to have gunshot residue on them; a cell phone; a .38 caliber revolver that was determined to have fired three spent casings; and keys that were later found to unlock Mr. Miller’s house and the trunk of a car registered to him.[26] Also collected were three projectiles and bullet fragments from inside of the market and a portion of a torn white t-shirt from Mr. Miller’s bedroom that matched the t-shirt found in the woods.[27]

The defendant, Urshawn Eric Miller, was charged with numerous counts, including first-degree murder, first-degree murder in perpetration of attempted especially aggravated robbery, attempted especially aggravated robbery, attempted first-degree murder, aggravated assault, employing a firearm in the attempt to commit a dangerous felony, being a convicted felon in possession of a handgun, resisting arrest, and evading arrest.[28] Mr. Miller’s trial commenced on February 26, 2018.[29]

At trial, multiple witnesses testified regarding the events of November 25, 2015, including employee Austin, the victim’s cousin and his son, customer Sinclair, police, investigators, and Tennesese Bureau of Investigation (“TBI”) special agents.[30] Mr. Miller moved for a judgment of acquittal at the close of the State’s proof, but the trial court denied this motion, although the court did reduce the attempted first-degree murder of employee Austin count to attempted second-degree murder on the grounds of the State not sufficiently establishing premeditation.[31] Mr. Miller elected not to testify and did not present any evidence at trial.[32]

The jury convicted Mr. Miller of first-degree premeditated murder, first-degree felony murder, and attempted especially aggravated robbery of the clerk; attempted second-degree murder and aggravated assault of employee Austin; employment of a firearm during the commission of a dangerous felony; evading arrest; and resisting arrest.[33] The State moved to dismiss the felon in possession of a firearm offense, which the trial court granted.[34]

Following conviction, the penalty phase ensued and the State advised the jury of its intent to seek the death penalty based on the (i)(2) (prior violent felony) and (i)(7) (felony murder) statutory aggravating circumstances from T.C.A. §39-13-204(i).[35] Averring that the jury had already found the (i)(7) aggravating circumstance by virtue of the felony murder conviction, the State presented proof of a certified copy of a judgment of conviction for aggravated robbery occurring in Madison County, Tennessee, on September 26, 2008, and a written statement from Mr. Miller admitting to his participation in that robbery.[36] An employee of the convenience store, Alison Deaton, testified to witnessing Mr. Miller enter the store with two other armed men who had face coverings.[37] One of the men demanded that she give him all of the money or she would be shot in the face, and she complied.[38] A video recording showed the three men enter the store with guns pointed at her, jump over the counter, and collect cash from the register.[39] For this crime, Mr. Miller received an eight-year sentence.[40] In addition to all of this evidence, victim impact testimony was also presented to the capital sentencing hearing jury.[41]

For his mitigation proof, Mr. Miller presented the testimony of two psychologists, that of Dr. James Walker, a psychologist board certified in both neuropsychology and forensic psychology, and that of Dr. Keith Caruso, who is board certified in general and forensic psychiatry.[42] Dr. Walker met with Mr. Miller in jail and administered a comprehensive battery of psychological tests as well as reviewed his educational, employment, and social histories, to include family member interviews.[43] According to these records, his mother smoked marijuana heavily while she was pregnant with him.[44] He was initially abandoned by his father, and his mother underwent a succession of abusive boyfriends and husbands thereafter.[45] One of these father figures tortured him by instructing him to pour alcohol on his penis.[46] In addition, his mother often referred to him as “dumb” or “stupid,” and he was often in the care of his grandmother, who was an alcoholic and also mistreated him.[47]

Mr. Miller’s intelligence quotient (“IQ”) was scored at 78 at age eight, and 85 at age twelve.[48] In January 2017, when tested by Dr. Walker, Mr. Miller’s IQ was scored at 86 – indicating that he functioned somewhere around the 18th percentile as compared to the average person.[49] He scored very poorly on several other of Dr. Walker’s tests, including those involving memory and ability to focus.[50] Mr. Miller dropped out of school in the 10th grade and had a limited employment history that consisted of a brief stint in a warehouse and as a fast-food cook.[51]

Additionally, Mr. Miller was shot in the back as a teenager and spent several years in prison.[52] He smoked excessive amounts of marijuana for many years, and a number of his family members also had problems with chronic substance abuse, while some are also incarcerated for committing violent crimes.[53] Based on this genetic background, Dr. Walker opined that Mr. Miller was predisposed to becoming involved in these kinds of problems.[54] Dr. Walker diagnosed Mr. Miller with cognitive disorders, cannabis use disorder, post-traumatic stress disorder (“PTSD”), and antisocial personality disorder.[55]

Additionally, Dr. Caruso also interviewed Mr. Miller, conducted a joint interview with his mother, and interviewed two of his aunts, in addition to reviewing various materials, to include police records, mental health records, legal records, photographs and videos, medical records, psychological reports, and mitigation memoranda.[56] Dr. Caruso placed significance on Mr. Miller’s unstable childhood, abuse, and neglect, also noting that he had attention-deficit hyperactivity disorder (“ADHD”) as a child.[57] Dr. Caruso agreed that Mr. Miller had a genetic predisposition to antisocial personality disorder and substance abuse disorder and “fit” the diagnosis for PTSD.[58] However, Dr. Caruso also admitted that Mr. Miller appreciated the wrongfulness of his conduct and agreed that he developed a plan to rob the market as well as made the choice to kill someone.[59]

For its rebuttal, the State called Dr. Kimberly Brown, a forensic psychologist who serves as an associate professor of clinical psychiatry and director of Vanderbilt University Medical Center’s forensic evaluation team.[60] Dr. Brown interviewed Mr. Miller at the jail and conducted a telephone interview of his mother; she also reviewed extensive documents, videos and photographs, and the expert reports of Drs. Walker and Caruso.[61] Dr. Brown noted Mr. Miller’s disadvantaged childhood, including his abuse and neglect at the hands of his mother and father figures, in addition to his significant family history of substance abuse; she also acknowledged a connection between marijuana exposure in the womb and ADHD and low IQ in a child.[62] She agreed that Mr. Miller had antisocial personality disorder, cannabis use disorder, and history of ADHD; she disagreed, however, that he had borderline intellectual functioning on account of his IQ of 86 and instead considered him to be “low average.”[63] She also disagreed that he met the medical criteria for PTSD, even in spite of his exposure to several significant traumas.[64]

Finding that the State had proven its two aggravating circumstances beyond a reasonable doubt, and that the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt, the jury imposed a sentence of death on Mr. Miller for his first-degree premeditated murder and first-degree felony murder convictions.[65]The trial court merged Count 2 (felony murder) into Count 1 (premeditated murder), and subsequently imposed an effective sentence of 30 years for the remaining convictions, concurrent with the death sentence.[66] Upon appeal, the Tennessee Court of Criminal Appeals affirmed these convictions and sentences but vacated the application of the (i)(7) aggravating circumstance to the felony murder conviction, remanding the case to the trial court to correct a clerical error in the judgment for Count 8, Resisting Arrest.[67]

Appellate Issues and Relevant Holdings

At the Tennessee Supreme Court level, the State and Mr. Miller argued multiple issues on appeal, including issues related to jury selection, sufficiency of the evidence, admissibility of the prior robbery video recording, and the constitutionality of the death penalty and lethal injection.[68] The state supreme court reaffirmed its prior upholding of the constitutionality of the death penalty, and conducted its statutorily required death penalty review per T.C.A. §39-13-206.[69] This review involved the following considerations: (1) whether the death sentence was imposed in an arbitrary fashion; (2) whether the evidence supports the jury’s findings of statutory aggravating circumstances; (3) whether the evidence supports the jury’s finding that the aggravating circumstances outweighed any mitigating circumstances; and (4) whether the death sentence was excessive or disproportionate to the penalty imposed in similar cases, considering both the nature of the crime and the defendant – all per T.C.A. §39-13-206(c)(1)(A)-(D).[70]

The state supreme court answered each of the above four inquiries in the affirmative.[71] In describing inquiry (3), the high court noted that the trial court instructed the jury regarding the State’s burden to establish any aggravating circumstances beyond a reasonable doubt and to further establish that the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt.[72] Specifically, the trial court instructed as follows:

Tennessee law provides that in arriving at the punishment, the jury shall consider as previously indicated any mitigating circumstances raised by the evidence which shall — which shall include, but are not limited to, the following: 1. There are choices other than sentence of death. . . . 6. Mr. Miller suffers from mental disorders due to circumstances beyond his control, including genetics, abuse, neglect, trauma, and other upbringing and environmental factors. 7. Any other mitigating factor which is raised by the evidence produced by either the prosecution or defense at either the guilt or sentencing hearing. That is, you shall consider any aspect of the Defendant’s character or record or any aspect of the circumstances of the offense favorable to the Defendant, which is supported by the evidence. The Defendant does not have the burden of proving a mitigating circumstance. There is no requirement of jury unanimity to any particular mitigating circumstance or that you agree on the same mitigating circumstance.[73]

In analyzing this issue, the Tennessee Supreme Court stated that “it was within the jury’s purview to conclude that the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt” and then simply held that the record supports the jury’s conclusion.[74]

For inquiry (4), the Tennessee Supreme Court cited State v. Bland, 958 S.W.2d 651, 668 (Tenn. 1997), and explained that a death sentence is disproportionate when the case is “plainly lacking in circumstances consistent with those cases where the death penalty has been imposed.”[75] To address this inquiry, the Court examines the facts and circumstances of the crime, the characteristics of the defendant, and the aggravating and mitigating circumstances involved.[76] Several factors are considered surrounding the defendant, to include the individual’s (1) record of prior criminal activity; (2) age, race, and gender; (3) mental, emotional, and physical conditions; (4) role in the murder; (5) cooperation with authorities; (6) level of remorse; (7) knowledge of the victim’s helplessness; and (8) potential for rehabilitation.[77]

In the case at bar, Mr. Miller was described as a twenty-six-year-old African-American male who shot the victim in the head and acted with premeditation.[78] The state supreme court noted that there was no provocation or justification for the shooting, and the killing was committed in the course of Mr. Miller’s attempt to commit a robbery.[79] Mr. Miller presented proof of a troubled childhood and diagnoses of various mental health conditions, but none of the witnesses opined that he was incompetent to stand trial or lacked ability to express remorse or take responsibility for his actions.[80]He had a prior conviction for a similar aggravated robbery, and the jury found this conviction to support the (i)(2) finding of an aggravating circumstance.[81]

The state supreme court held, under its proportionality review, that Mr. Miller’s sentence of death was not an “aberrant death sentence” and was not “plainly lacking in circumstances” consistent with those cases in which the death penalty was imposed.[82] The high court ultimately upheld the death sentence, affirmed the convictions, and reversed the portion of the judgment of the Court of Criminal Appeals that vacated the application of the (i)(7) felony murder aggravating circumstance to the felony murder conviction.[83]

In a dissent authored by Justice Sharon Lee, the dissent disagreed with the imposition of the death penalty and argued that the penalty is intended for “the worst of the bad”, and a comparative proportionality review does not favor the death penalty in Mr. Miller’s case – whether compared only to similar capital cases or all similar first-degree murder cases.[84] Mr. Miller’s background is further described in this dissenting opinion as follows:

Growing up in an unstable family, Mr. Miller experienced a difficult childhood with a family history of substance abuse and criminal conduct.[85] He moved eight times before age 10; and at 17, he was shot in the back during an attempted robbery.[86] At age 18, he was the victim of an armed robbery.[87] Mr. Miller was twenty-six years old when he committed the crimes at issue.[88] He was noted to be worse off in his childhood and mental illness than one of the defendants in a comparable case.[89]

The above constitutes the entirety of the legal analysis on Mr. Miller’s mental health history and background from the decision of State v. Miller.

Death Penalty: A Serious Matter Deserving of All Considerations

One may debate the merits of a death penalty system, but this form of punishment is no joking matter. Reserved as the most severe and irreversible form of punishment available to the State,[90] the death penalty is authorized in only twenty-seven states.[91] Tennessee, through its General Assembly, adopted a “guided discretion capital sentencing scheme” in 1977 in response in part to the United States Supreme Court decision of Gregg v. Georgia, 428 U.S. 153 (1976).[92] As stated in Gregg, “[W]here discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.”[93]

The seriousness of the death penalty is also reflected in various other factors, not the least of which is that the State of Tennessee has seemingly been experiencing a sharp decline in the frequency of capital cases over the past twenty years (despite the number of homicides in the state remaining relatively consistent), which may reflect an “evolving standard of decency away from capital punishment.”[94] Tennessee, in fact, not only mandates a statutorily required review of death penalty sentences by its Supreme Court,[95] but also requires three standard tiers of review before an execution date can be set for a death row inmate.[96] According to Tennessee Supreme Court Rule 12.4, a death row inmate must pursue at least one unsuccessful challenge to the prisoner’s conviction and sentence through direct appeal, state post-conviction, and federal habeas corpus proceedings before the state attorney general can file a motion for an execution date.

In treating death penalty cases as a unique form of punishment warranting additional procedural safeguards, Tennessee has further recognized the significance of mental disease by outright exempting the intellectually disabled from the death penalty, adopting this statute even before the United States Supreme Court afforded the same concession in Atkins v. Virginia, 536 U.S. 304 (2002).[97] Indeed, Tennessee scholars have long recognized that “adverse childhood experiences and severe mental illness can profoundly affect cognition, judgment, impulse control, mood and decision-making”.[98] Given the gravity with which death penalty cases are treated, it stands to reason that full consideration for the mentally ill – even through consideration of non-binding comparative areas of law, such as that of the SSA – is not without merit.

Role of Mental Illness in Tennessee Death Penalty Jurisprudence

As discussed in State v. Miller above, a defendant’s mental illness serves – at a minimum – as a mitigating factor for the death penalty.[99] Specifically, T.C.A. section 39-13-204(j)(8) (West through 2022 Legis. Sess.) recognizes mental illness as a mitigating factor through the following statutory language:

The capacity of the defendant to appreciate the wrongfulness of the defendant’s conduct or to conform the defendant’s 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 the defendant’s judgment.[100]

Under the capital sentencing scheme devised by the Tennessee General Assembly, if a mentally ill defendant’s aggravating factor(s) does not outweigh the mitigating factor of mental illness beyond a reasonable doubt, then a death sentence is not an appropriate form of punishment.[101] Therefore, for those cases in which a defendant’s mental illness is not outweighed by the aggravating factor(s) involved, mental illness can serve as a bar to the death penalty.[102]

On the other hand, intellectual disability serves as an outright bar to imposition of a death sentence.[103] T.C.A. section 39-13-203 (West through 2022 Legis. Sess.) directly exempts the intellectually disabled from the death penalty, defining “intellectual disability” to mean: (1) significantly subaverage general intellectual functioning; (2) deficits in adaptive behavior; and (3) intellectual disability that manifested during the developmental period, or by eighteen years of age.

According to Tennessee case law, a defendant must prove significantly subaverage general intellectual functioning along with deficits in adaptive behavior, which refers to the inability to adapt to surrounding circumstances and/or 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.[104] The third element requires that the subaverage general intellectual functioning and the adaptive behavior deficits be manifested by age 18.[105]

Additionally and just as importantly, Tennessee case law recognizes a test for competency of execution.[106]Under this test, a defendant must have a rational understanding of the individual’s conviction, the impending execution, and the relationship between the two in order to be competent for execution.[107] Where the evidence shows that the defendant does not question the reality of the crime or the reality of the punishment by the State for the crime committed, execution of the defendant is permissible.[108]

Without question, mental illness plays an important role in Tennessee’s death penalty jurisprudence and may serve as an affirmative defense to conviction, a bar to execution entirely, or a mitigating factor in favor of exemption from the death penalty. Given the critical importance of the death penalty, the differing legal standards involved, and the lingering/unresolved questions around the role of severe mental illness,[109] it would behoove Tennessee death penalty lawmakers to consider and apply, as appropriate, other related standards – including those of the SSA.

Relevant SSA Rules and Regs as Persuasive Guidance

In order to provide greater perspective and insight on which legal exemptions to afford individuals with mental disorders, SSA rules and regulations regarding mental illness can offer a persuasive source of consideration, including in the death penalty arena. Certainly determining whether a claimant, or a person seeking disability benefits from the SSA, is unable to work versus whether that individual should be exempt from the death penalty involves somewhat different inquiries with different aims in end’s sight, but the legal analysis can be comparable, as shown below, when framed appropriately and relevantly.[110] Indeed, various mental disorders cited and involved in successful post-conviction death penalty cases, including anxiety disorder, bipolar disorder, depressive disorder, PTSD, and schizophrenia, are routinely encountered and analyzed by the SSA in disability cases.[111]

To begin, an overview of SSA law on mental disorders is appropriate for providing context and a framework that can be applied, with appropriate adaptation, to the role of mental illness in death penalty cases. Per regulatory code at 20 C.F.R. §§ 404.1505a and 416.905a (Soc. Sec. Admin. 2022) (West), the SSA generally grants disability benefits to claimants with mental and/or physical impairments when those individual or collective impairments have lasted or can be expected to last for at least twelve months (or result in death) and prevent the individual from performing any substantial gainful activity. Mental impairments receive special consideration under social security regulations by way of a special technique that assesses the level of limitation in the four mental functional areas of: (1) understanding, remembering, or applying information; (2) interacting with others; (3) concentrating, persisting, or maintaining pace; and (4) adapting or managing oneself.[112] A mental impairment is severe, and therefore potentially disabling, when the claimant has more than mild limitation in any of these mental areas.[113] Ultimately, a limited ability to carry out certain mental activities may reduce a claimant’s ability to perform past work and other work to the point of being disabling.[114]

Presumptively, the SSA may assume a claimant is disabled due to mental impairment under certain enumerated situations, referred to as the Listing of Impairments (“Listings”) in Appendix 1 to Subpart P of the regulatory code.[115]Under section 12.00 (Mental Disorders) of the Listings, a claimant may be found disabled based upon various mental health conditions, to include neurocognitive disorders; schizophrenia spectrum and other psychotic disorders; depressive, bipolar, and related disorders; intellectual disorder; anxiety and obsessive-compulsive disorders; somatic symptom and related disorders; personality and impulse-control disorders; autism spectrum disorder; neurodevelopmental disorders; eating disorders; and trauma- and stressor-related disorders.[116] Each such listing requires certain elements to be met, but a common theme running throughout these individual listings is that the claimant have two marked, or one extreme, limitation in understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself.[117]

The Listings define the enumerated mental functional areas as follows:

Understanding, remembering, or applying information refers to the abilities to learn, recall, and use information to perform work activities (e.g., using reasoning and judgment to make work-related decisions).[118]

Interacting with others refers to the abilities to relate to and work with supervisors, coworkers, and the public (e.g., keeping social interactions free of excessive irritability, sensitivity, argumentativeness, or suspiciousness).[119]

Concentrating, persisting, or maintaining pace refers to the abilities to focus attention on work activities and stay on a task at a sustained rate (e.g., ignoring or avoiding distractions while working).[120]

Adapting or managing oneself refers to the abilities to regulate emotions, control behavior, and maintain well-being in a work environment (e.g., managing one’s psychologically based symptoms).[121]

Per the Listings, no limitation means the claimant is able to function independently, appropriately, effectively, and on a sustained basis in the mental functional area.[122] Mild limitation means functioning in the area is slightly limited.[123]Moderate limitation means the functioning is only fair.[124] Marked limitation means the functioning is seriously limited.[125] For an extreme limitation, the claimant is unable to function in the area independently, appropriately, effectively, and on a sustained basis.[126] The SSA uses all relevant medical and non-medical evidence in the case file to evaluate the claimant’s mental impairment(s), to include symptoms and signs of each disorder, reported limitations in activity, and any help or support the individual receives that is necessary for functioning.[127]

In particular, the specific listing for intellectual disorder (Listing 12.05) is met when either paragraph A or B of the listing elements is satisfied.[128] Paragraph A requires: (1) significantly subaverage general intellectual functioning evident in the claimant’s cognitive inability to function at a level required to participate in standardized testing of intellectual functioning; (2) significant deficits in adaptive functioning currently manifested by the claimant’s dependence upon others for personal needs (for example, toileting, eating, dressing, or bathing); and (3) the evidence about the claimant’s current intellectual and adaptive functioning and about the history of the disorder demonstrates or supports the conclusion that the disorder began prior to attainment of age 22.[129]

Furthermore, Paragraph B requires: (1) significantly subaverage general intellectual functioning evidenced by (a) a full scale (or comparable) IQ score of 70 or below on an individually administered standardized test of general intelligence or (b) a full scale (or comparable) IQ score of 71-75 accompanied by a verbal or performance IQ score (or comparable part score) of 70 or below on an individually administered standardized test of general intelligence; (2) significant deficits in adaptive functioning currently manifested by extreme limitation of one, or marked limitation of two, of the following areas of mental functioning: (a) Understand, remember, or apply information; (b) Interact with others; (c) Concentrate, persist, or maintain pace; or (d) Adapt or manage oneself; and (3) the evidence about the claimant’s current intellectual and adaptive functioning and about the history of the disorder demonstrates or supports the conclusion that the disorder began prior to attainment of age 22.[130]

In general, these disability rules and regulations show that a claimant’s mental functional abilities are closely considered by the SSA when determining the individual’s ability to function in a work setting in a manner that is adequately productive. Death penalty jurisprudence could consider similar concepts in assessing whether a defendant has the mental capacity to function as a law-abiding member of society. In other words, one might ask how well can the defendant understand, remember, or carry out rules of society? How well can the defendant interact with others in general and respond to them in light of the individual’s mental disorder (e.g., schizophrenia or bipolar disorder)? How well can the defendant concentrate, persist, or maintain pace to stay on task in acting in an orderly manner? And lastly, how well can the defendant adapt to change and manage any emotions during life’s inevitable ups and downs given the disorder at play? If the defendant has all marked and/or extreme limitations in these mental functional areas at the time of the crime, then surely the defendant’s mental illness should be given great weight as a mitigating factor in a death penalty case.

Notwithstanding the proper standard to be applied (e.g., two marked limitations, one extreme limitation in disability cases versus all marked, extreme limitations in death penalty cases, to account for the seriousness of the death penalty), this author would argue that Mr. Miller had a moderate limitation in understanding, remembering, or applying information; at least moderate limitation in social interaction; moderate limitation in concentration, persistence, or pace; and moderate limitation in self-management or adaptation at the time of his crimes, with relation to how well he could function as a law-abiding citizen. Whether or not these limitations arise directly from his mental disorders is debatable, but given his exposure to significant trauma and genetic predispositions,[131] it can be safely assumed that his mental illness played a significant role in his mental functional abilities.

As an initial matter, Mr. Miller has been diagnosed with various mental disorders, to include cognitive disorders, cannabis use disorder, PTSD, antisocial personality disorder, and a history of ADHD, by medical professional(s).[132]Mr. Miller did not testify at trial nor offered defense proof, which narrows the available information about him, but he did offer mitigation proof.[133] Per this proof, he has at least a 9th grade education and past work in labor jobs.[134] IQ testing yielded a score of 86, indicating low average results; and he scored very poorly on several of Dr. Walker’s additional tests involving memory.[135]

Nevertheless, Mr. Miller appeared to understand how to disguise himself during the attempted robbery as a means of avoiding being caught, how to escape to the woods where he could be difficult to capture by police, and how to equip himself with the supplies required for a robbery.[136] He had participated in a store robbery before, albeit with two other individuals.[137] Dr. Caruso determined that Mr. Miller developed the market store robbery plan, made the decision to kill someone, and could appreciate the wrongfulness of his conduct; and none of the witnesses opined that he was incompetent to stand trial or lacked ability to express remorse or take responsibility for his actions.[138] There is no indication of any psychotic symptoms or psychosis on the part of Mr. Miller in the evidence presented.[139] Based on this available information, his limitation in the areas of understanding, remembering, or applying information would appear moderate at most.

As for social interaction, Mr. Miller has displayed violent behavior, on more than one occasion; and he did verbally threaten the police, evading and resisting their arrest to the point of requiring submission by taser, in the case at bar.[140] In fact, he shouted that he would make one of the police officers go down with him and grappled with Pax, the dog of K-9 Officer Stines.[141] Mr. Miller also used aggressive, expletive language when addressing not only the police officers but also the victim.[142] Mr. Miller’s limitation in social interaction could very well be deemed marked, at a minimum.

Certainly, however, any death row inmate convicted of first-degree murder could warrant a marked-extreme limitation in social interaction. And even T.C.A. section 39-11-501(b) (West through 2022 Legis. Sess.) (“Insanity”) recognizes that “‘mental disease or defect’ does not include any abnormality manifested only by repeated criminal or otherwise antisocial conduct.” Notwithstanding this recognition, Mr. Miller would appear to have at least a moderate limitation in social interaction given his uncooperative, violent behavior. This author takes note that Mr. Miller did cooperate with two others to rob a convenience store prior to the present robbery attempt.[143]

As for concentration, Mr. Miller’s IQ is 86, low average; and he scored very poorly on several of Dr. Walker’s tests involving the ability to focus.[144] Mr. Miller received some education before dropping out of school, and his employment at a warehouse and as a fast-food cook was described as brief.[145] However, he seemed to concentrate sufficiently in order to plan and attempt his robbery and escape, as well as to rob a store previously.[146] Based on this available information, his limitation in concentration, persistence, or pace would appear moderate at most.

In terms of adapting or managing himself, Mr. Miller appeared to act impulsively in outright shooting the clerk after making a couple of unmet demands and taking what could have been a warning shot and in yelling at the police, shouting that he would take one of them down with him.[147] In fact, the state supreme court noted that there was no provocation or justification for the shooting.[148] However, although not to be celebrated, Mr. Miller did appear to show adaptation ability when he seemed to adapt his robbery plan by fleeing when he realized he could not open the cash register; and he was able to act alone in this instance, in comparison to his last robbery.[149] In the past, Mr. Miller has been able to secure himself a residence and a vehicle, as well as employment.[150] For all intents and purposes, he has appeared to be functioning independently.[151] Based on this available information, his limitation in self-adaptation or management would appear moderate at most.

In specifically considering Listing 12.05 for intellectual disability, cited supra, Mr. Miller does not appear to meet the designated IQ thresholds; to possess at least two marked or one extreme limitation in the four mental functional areas identified; or to exhibit significant adaptive deficits manifested by dependence upon others for personal needs. As stated above, his most recent IQ score was 86,[152] and he does not appear to rely upon others for his personal needs.[153]Therefore, he has not met the threshold requirements for even that listing.


Theoretically, a nondisabled individual, or someone found capable of working by SSA standards, would not warrant exemption from the death penalty, while a disabled individual could still warrant the death penalty, particularly if the threshold for death penalty situations were to be higher than that required for disability purposes. Be that as it may, the heart of the central inquiry posed in this case comment revolves around the claimant’s/defendant’s mental ability to function in this society given the individual’s mental illness, whether that be in a work environment or in society at large. As recognized by the United States Supreme Court in Atkins v. Virginia, 536 U.S. 304, 306 (2002), individuals with disabilities in the areas of reasoning, judgment, and control of impulses do not act with the same degree of moral culpability that characterizes the most serious adult criminal conduct and therefore are protected from “cruel and unusual punishment” under the Eighth Amendment to the United States Constitution.[154]

When linked to Mr. Miller’s mental disorders, the above mental functional analysis provides greater insight into the role of mental illness in Mr. Miller’s mental functional abilities. For example, the proposed limitations – ranging from moderate-marked – would suggest that his mental abilities were not so abnormal that he should be exempt from the death penalty on account of his disorders. In this case, the defendant’s aggravating factors would outweigh his mental illness as a mitigating factor; and that particular prong of the jury’s findings, as statutorily reviewed by the Tennessee Supreme Court,[155] was both reasonable and supportable.



[1] See Tenn. Dep’t Corr., Death Row Offenders,, (last visited Apr. 4, 2022). See generally Tenn. State Courts, Tennessee Supreme Court Upholds Death Sentence for 2015 Murder of Convenience Store Employee, (Dec. 7, 2021),

[2] State v. Miller, 638 S.W.3d 136, 167, 178 (Tenn. 2021); see Tenn. Dep’t Corr., supra note i.

[3] Miller, 638 S.W.3d at 144.

[4] Id. at 144-45.

[5] Id. at 169-78 (Lee, J., dissenting and concurring in part).

[6] See Miller, 638 S.W.3d. 136.

[7] Id. at 144.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id. at 144-45.

[18] Id. at 144.

[19] Id. at 145.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Id. at 145-46.

[27] Id.

[28] Id. at 144.

[29] Id.

[30] Id. at 144-46.

[31] Id. at 146.

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] Id.

[39] Id.

[40] Id.

[41] Id. at 147.

[42] Id. at 147-48.

[43] Id. at 147.

[44] Id.

[45] Id.

[46] Id.

[47] Id.

[48] Id.

[49] Id.

[50] Id.

[51] Id.

[52] Id.

[53] Id.

[54] Id.

[55] Id.

[56] Id. at 147-48.

[57] Id. at 148.

[58] Id.

[59] Id.

[60] Id.

[61] Id.

[62] Id.

[63] Id.

[64] Id.

[65] Id.

[66] Id.

[67] Id.

[68] Id. at 148-63.

[69] Id. at 163-68 (citing see Keen v. State, 398 S.W.3d 594, 600 n.7 (Tenn. 2012), and Abdur’Rahman v. Bredesen, 181 S.W.3d 292, 309 (Tenn. 2005)).

[70] Id. at 163.

[71] Id. at 163-68.

[72] Id. at 165.

[73] Id. (emphasis added).

[74] Id. at 166.

[75] Id.

[76] Id. at 166 (citing State v. Stevens, 78 S.W.3d 817, 842 (Tenn. 2002)).

[77] Id. at 167 (citing State v. Pruitt, 415 S.W.3d 180, 213-14 (Tenn. 2013)).

[78] Id.

[79] Id.

[80] Id.

[81] Id.

[82] Id. at 168.

[83] Id. at 169.

[84] Id. at 169, 172, 178 (Lee, J., dissenting and concurring in part).

[85] Id. at 171.

[86] Id.

[87] Id.

[88] Id.

[89] Id. at 175 (citing State v. Chalmers, 28 S.W.3d 913 (Tenn. 2000)).

[90] Id. at 177 (Lee, J., dissenting and concurring in part).

[91] See Death Penalty Info. Ctr., State by State,, (last visited Apr. 4, 2022).

[92] Bradley MacLean & H. E. Miller Jr., Tennessee’s Death Penalty Lottery, 13 Tenn. J. L. & Pol’y, July 2018, at 85, 99,available at

[93] 428 U.S. at 189 (citing Furman v. Georgia, 408 U.S. 238 (1972)).

[94] MacLean, supra note xcii, at 131-38.

[95] T.C.A. § 39-13-206 (West through 2022 Legis. Sess.).

[96] T.R.A.P. 12.

[97] See T.C.A. § 39-13-203 (West through 2022 Legis. Sess.).

[98] MacLean, supra note xcii, at 157.

[99] T.C.A. § 39-13-204(j)(8) (West through 2022 Legis. Sess.).

[100] See T.R.A.P. 12 (listing “extreme mental or emotional disturbance” and “mental disease or defect or intoxication” as mitigating factors); see also MacLean, supra note xcii, at 156-57 (listing various ineffective assistance of counsel death penalty cases due to improper investigation, development, and/or presentation of the defendants’ mental conditions).

[101] § 39-13-204(g)(1) (West).

[102] Id.

[103] See § 39-13-203 (West); see also Van Tran v. State, 66. S.W.3d. 790 (Tenn. 2001).

[104] State v. Pruitt, 415 S.W.3d 180, 203-04 (Tenn. 2013) (citing State v. Smith, 893 S.W.2d 908, 918 (Tenn. 1994), andVan Tran, 66 S.W.3d at 795).

[105] State v. Strode, 232 S.W.3d 1, 16 (Tenn. 2007).

[106] State v. Irick, 320 S.W.3d 284, 295 (Tenn. 2010) (citing and interpreting Panetti v. Quarterman, 551 U.S. 930 (2007)).

[107] Id.

[108] Id.; see T.C.A. § 39-11-501 (West through 2022 Legis. Sess.) (establishing “legal insanity” as an affirmative defense for conviction of a crime where the defendant, as a result of severe mental disease or defect, was unable to appreciate the nature or wrongfulness of the individual’s acts).

[109] For example, Defendant Irick argued for “a rule barring the execution of death-sentenced inmates who suffer from severe mental illnesses” when those individuals cannot establish incompetency for execution. Irick, 320 S.W.3d at 297.Compare Id., with ABA Death Penalty Due Process Review Project, Potential Cost-Savings of a Severe Mental Illness Exclusion from the Death Penalty: An Analysis of Tennessee Data (2018), available at, among other things, proponents of a severe mental illness (SMI) exclusion from the death penalty). Although the Tennessee Supreme Court declined to adopt such a rule in Irick, 320 S.W.3d at 298, should a rule of this sort, or a variation of it, ever be adopted in Tennessee, the question remains as to what constitutes a “severe mental illness.” As shown, infra, in the section “Relevant SSA Rules and Regs as Persuasive Guidance,” SSA rules and regulations provide an analytical framework for such inquiry.

[110] For example, Defendant Irick relied upon his diminished capacity to understand and process information, to communicate, to abstract and learn from mistakes, to engage in logical reasoning, to control his impulses, and to understand the reaction of others in arguing for a severe mental illness exclusion to the death penalty. Irick, 320 S.W.3d at 297; see Atkins v. Virginia, 536 U.S. 304, 306 (2002) (excluding “mentally retarded offenders” from the death penalty and recognizing that due to “their disabilities in areas of reasoning, judgment, and control of their impulses, . . . they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct”). These types of factors are considered by the SSA when assessing a mental illness for severity as seen, infra, in the section “Relevant SSA Rules and Regs as Persuasive Guidance.” Interestingly, although a severe mental impairment is required for a finding of disability by the SSA, a severe mental disorder does not automatically equate to a finding of disability. See 20 C.F.R. §§ 404.1520, 416.920 (Soc. Sec. Admin. 2022) (West).

[111] Compare MacLean, supra note xcii, at 156-57, with 20 C.F.R. § Pt. 404, Subpt. P, App. 1 (Soc. Sec. Admin. 2022) (West).

[112] §§ 404.1520a, 416.920a (West); see SSR 85-16, 1985 WL 56855 (Jan. 1, 1985); see also POMS DI section 24583.005 (Evaluating Mental Impairments Using the Psychiatric Review Technique (PRT)).

[113] §§ 404.1520a(d), 416.920a(d) (West).

[114] 20 C.F.R. §§ 404.1545(c­) and 416.945(c) (Soc. Sec. Admin. 2022) (West).

[115] 20 C.F.R. § Pt. 404, Subpt. P, App. 1 (West); accord 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1525, 416.920(a)(4)(iii), 416.925 (Soc. Sec. Admin. 2022) (West). The Listings are by no means the only method to being found disabled on account of a mental impairment, but they are the method that appears most useful and best adaptable to death penalty analysis. See, e.g., §§ 404.1520a(d)(3), 404.1545(c), 416.920a(d)(3), 416.945(c) (West); see also SSR 91-5p, 1991 WL 208067 (July 1, 1991) (establishing the factors to be considered by an adjudicator when determining whether a claimant lacked the mental capacity to understand the procedures for requesting a review).

[116] 20 C.F.R. § Pt. 404, Subpt. P, App. 1 (West).

[117] See Id.

[118] Id.

[119] Id.

[120] Id.

[121] Id.

[122] Id.

[123] Id.

[124] Id.

[125] Id.

[126] Id.

[127] Id.; see 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (Soc. Sec. Admin. 2022) (West) (listing relevant factors to be considered along with a claimant’s symptoms as including (i) daily activities; (ii) the location, duration, frequency, and intensity of the pain or other symptoms; (iii) precipitating and aggravating factors; (iv) the type, dosage, effectiveness, and side effects of any medications; (v) other treatments; (vi) any measures taken to relieve pain or other symptoms; and (vii) other factors concerning the claimant’s functional limitations and restrictions due to pain or other symptoms).

[128] 20 C.F.R. § Pt. 404, Subpt. P, App. 1 (West).

[129] Id.

[130] Id.

[131] State v. Miller, 638 S.W.3d 136, 147-48 (Tenn. 2021).

[132] Id.

[133] Id. at 146-48.

[134] Id. at 147.

[135] Id. at 147-48.

[136] See Id. at 144.

[137] Id. at 146.

[138] Id. at 148, 167; cf. State v. Laney, 654 S.W.2d 383, 389 (Tenn. 1983) (finding that, despite the defendant’s low intelligence, the evidence showed that he possessed the mental capability to plan, commit, and attempt to cover up his involvement in the crime and therefore was not subject to cruel and unusual punishment in receiving a death sentence).

[139] See Miller, 638 S.W.3d 136.

[140] See Id. at 144-46.

[141] Id. at 145.

[142] Id. at 144-45.

[143] Id. at 146.

[144] Id. at 147-48.

[145] Id. at 147.

[146] See id. at 144-46; cf. State v. Laney, 654 S.W.2d 383, 389 (finding that, despite the defendant’s low intelligence, the evidence showed that he possessed the mental capability to plan, commit, and attempt to cover up his involvement in the crime and therefore was not subject to cruel and unusual punishment in receiving a death sentence).

[147] See Miller, 638 S.W.3d at 144-45.

[148] Id. at 167.

[149] See Id. at 144, 146.

[150] See Id. at 145, 147; cf. State v. Smith, 893 S.W.2d 908, 917-18 (Tenn. 1994) (holding that, despite the defendant’s low IQ score, he received his GED and worked various jobs while in prison and therefore did not demonstrate/prove deficits in adaptive behavior under T.C.A. § 39-13-203 at the time of his offense); cf. also State v. Pruitt, 415 S.W.3d 180, 198, 204 (Tenn. 2013) (holding that the defendant did not demonstrate/prove deficits in adaptative behavior under T.C.A. § 39-13-203 where he was employed on the day of the offense; was living with family, but not on account of deficits in adaptive behavior; and was not observed to have any significant adaptive deficits by a clinical psychologist who evaluated him over the course of approximately twenty-eight days).

[151] See Miller, 638 S.W.3d. 136.

[152] Id. at 147.

[153] See Miller, 638 S.W.3d 136; see also supra text accompanying notes cxlvi-cl.

[154] The category of offenders being described by the United States Supreme Court in Atkins v. Virginia is “the mentally retarded.” 536 U.S. 304, 306, 321 (2002). Atkins categorically excluded these individuals from the death penalty pursuant to the Eighth Amendment’s prohibition against “cruel and unusual punishment.” Id. at 321.

[155] Miller, 638 S.W.3d at 165-66.

Tommie Phillips v. State of Tennessee

Tommie Phillips v. State of Tennessee, No. W2019-01927-SC-R11-PC (November 3, 2022).

Written By: Alex Redmond, Associate Editor

The Petitioner was found guilty of several charges, including felony murder, attempted first-degree murder, and especially aggravated burglary. Prior to his arrest the Petitioner admitted to police that he had stabbed two people during a fight that broke out over a drug dispute. After his arrest, the Petitioner admitted to police that he had also killed a person during the dispute. At trial, the Petitioner’s statements were used against him, along with eyewitness identification, victim testimony, and the testimony of a police officer who overheard the Petitioner telling his mother his version of what had occurred. A jury convicted the petitioner. He received a life sentence plus 60 years.

The Petitioner filed a petition for post-conviction relief. The Petitioner argued that his trial counsel failed to provide him with effective assistance of counsel because they did not challenge the admissibility of his statements to the police on Fourth Amendment grounds. The post-conviction court denied relief, stating that the Petitioner failed to establish his ineffective assistance of counsel claim. The Petitioner appealed that decision, but the Court of Criminal Appeals affirmed the judgment of the post-conviction court. The Petitioner appealed that decision, arguing that the lower courts used the incorrect standard in determining whether he had established an ineffective assistance of counsel claim. The Tennessee Supreme Court granted review.

The legal issue, in this case, can be stated as the following: What legal standard should be applied when a Petitioner is attempting to prove prejudice, to establish an ineffective assistance of counsel claim, due to a failure to file a motion to suppress on Fourth Amendment grounds?

To establish a successful claim of ineffective assistance of counsel based on counsel’s failure to file a motion to suppress evidence on Fourth Amendment grounds, the petitioner must prove prejudice by showing: (1) a suppression motion would have been meritorious; (2) counsel’s failure to file such motion was objectively unreasonable; and (3) but for counsel’s objectively unreasonable omission, there is a reasonable probability that the verdict would have been different absent the excludable evidence.

Tennessee’s Post-Conviction Procedures Act provides criminal defendants a vehicle to bring ineffective assistance of counsel claims against the State. Tennessee law places the burden of proof on the petitioner seeking relief. The petitioner must prove the allegations of fact in his or her petition by clear and convincing evidence. A post-conviction court must then employ the test laid out by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984). Under Strickland, the post-conviction court must analyze those allegations of fact and determine whether the counsel’s performance was deficient and whether that deficiency prejudiced the petitioner. In Kimmelman v. Morris, 477 U.S. 365, 375 (1986) the Supreme Court set forth the legal standard and burden of proof to assess prejudice under the Strickland analysis. Thus, to establish prejudice, the petitioner must be able to show that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence. The three-prong test set out by the Tennessee Supreme Court is intended to reflect the connection between Kimmelman and Strickland, in the context of ineffective assistance of counsel claims for failure to file a motion to suppress on Fourth Amendment grounds.

Here, the Petitioner failed to show prejudice under the three-prong test articulated by the Court. Generally, a warrant is required for a defendant’s Fourth Amendment protection from unreasonable searches and seizures to be satisfied. However, an arrest supported by probable cause is an exception to this requirement. Here, the petitioner was arrested without a warrant, but he was given a probable cause determination within seven hours of his arrest. In other words, there was no unreasonable delay between the arrest and the probable cause determination. Therefore, a suppression motion filed on Fourth Amendment grounds would have been meritless. The Petitioner also failed the second prong of this test because trial counsel choosing not to file a meritless motion is not objectively unreasonable. Lastly, the Petitioner could not demonstrate that the verdict would have been different absent his inculpatory statements made to the police. The State had reliable identification evidence, testimony from the surviving victims, and the testimony from the police officer who overheard the Petitioner telling his version of events to his mother. So, the judgment of the Court of Criminal Appeals is affirmed.

Prior to this case, the Tennessee Supreme Court had recognized the legal standard set out in Kimmelman but had not had the opportunity to apply it in this context. This case consequently resolved confusion between the test laid out in Kimmelman and the test laid out in Cecil v. State, No. M2009-00671-CCA-R3-PC, 2011 WL 4012436 (Tenn. Crim. App. Sept. 12, 2011). The Petitioner argued that any reliance on Cecil in determining the outcome of his claim was inappropriate because Kimmelman is the governing standard. However, as the Tennessee Supreme Court pointed out, the Cecil and Kimmelman standards for showing prejudice in support of an ineffective assistance of counsel claim are nearly identical. Although it was clear from the Cecil court’s analysis that the correct burden of proof and the legal standard was utilized, the Tennessee Supreme Court acknowledged that the court could have been more precise in defining the legal standard for post-conviction matters as it related to state statutory requirements and the Strickland/Kimmelman requirements. Thus, for clarity and consistency, moving forward lower courts should rely on Kimmelman and utilize the test set out by the Tennessee Supreme Court in this case when deciding this type of ineffective assistance of counsel claim.

State of Tennessee v. Tyler Ward Enix

State of Tennessee v. Tyler Ward Enix, No. E2020-00231-SC-R11-CD (January 26, 2022).

Written By: Riley Jones, Associate Editor

In 2015, Mr. Enix was convicted of premeditated first-degree murder and especially aggravated robbery. He was charged and convicted of stabbing his ex-wife to death in her apartment. At trial, the prosecution argued that Enix was violent and the victim had warned her friends and family of his violent tendencies. The prosecution also put on evidence that the victim was found dead in her apartment after she did not show up for work and the police conducted a wellness check. The police found two phones at the crime scene. On one of those phones, there were records of Mr. Enix and the victim arguing around the time of the crime. The victim had forty-seven stab wounds. Mr. Enix was arrested in Ohio while driving the victim’s car and using her cards to withdraw cash. Their daughter was found in the car with him.

During the trial, Mr. Enix’s defense was that he was acting in a state of passion when he stabbed his ex-wife and that the murder was not premeditated. He also argued that taking her items was not part of a connected plan to the killing, so it was not a robbery. Mr. Enix was convicted and afterward filed a motion for a new trial. In his motion, he argued that there were four instances of prosecutorial misconduct during the closing arguments on which Mr. Enix was entitled to relief, despite not having objected to them during the trial.

First, the record showed that the prosecution counted to 47, the number of stab wounds inflicted on the victim, and stated that he was out of breath and he hadn’t even been wrestling anyone. In the motion, Mr. Enix argued that the prosecution was pounding on the table and testifying to the mechanics of the homicide, which was highly prejudicial. Second, the record also showed that the prosecution posed the possibility that there were communications on the victim’s phone, like with a man she was dating, that was not found because the defendant destroyed evidence. The motion argued that this was speculation and violated the defendant’s right to a fair trial. During rebuttal, the record showed that the prosecution said that Mr. Enix was a coward because he ran from the police. The motion said that this was improper name-calling. Lastly, the record also showed that the prosecution said the defendant was fleeing to Canada, which the motion argued was also speculation.

Mr. Enix argued in his motion for a new trial that he was entitled to relief for these, even though he had not objected to the statements in the trial. Mr. Enix said that including the objections in the motion was enough. The Criminal Court of Appeals review the motion under the Plain Error Doctrine and affirmed the judgment against Mr. Enix. Mr. Enix appealed to the Supreme Court of Tennessee. The question before the Supreme Court was what the appropriate standard of review for prosecutorial misconduct during the closing when the defendant does not object.

The Court held that the appropriate standard of review is the Plain Error Standard and affirmed the decision of the Criminal Court of Appeals. The Court said that in general, appellate review is limited to issues that a party properly preserves for review by objecting at trial and on appeal. Mr. Enix’s motion relied on State v. Hawkins, a case that applied plenary review to two claims raised in a motion for a new trial. However, the Court clarified that that case did not explicitly overrule previous holdings that say not objecting to prosecutorial misconduct in a closing argument waives the right to appeal. The Court read the case as not overruling any of these prior cases and instead overruled Hawkins to the extent it is inconsistent with this case’s decision.

In addition, since the Plain Error Standard applies in these cases, the court held that Mr. Enix is not entitled to relief. The standard’s requirements are: (1) a clear record; (2) a clear breach of a rule of law; (3) the breach adversely affected a substantial right; and (4) the error should be considered to do justice. The issue here is that it did not affect a substantial right. It did not affect the outcome of the proceedings because there was an overwhelming amount of evidence that Mr. Enix premeditated murder. This evidence included previous texts that the defendant was going to harm the victim, recovered DNA and the fact that the defendant fled.

There is nothing on the record to show that these comments made by the prosecutor affected the proceedings. Because the prosecutorial misconduct did not affect the proceedings, the Court upheld Mr. Enix’s convictions.

This case defines what the standard will be when deciding on prosecutorial misconduct in closing arguments. Because the Court determined that the Plain Error Standard applies, objecting contemporaneously will be crucial to preserving a claim for appeal on these grounds. The consequence of this decision is that without a contemporaneous objection, prosecutorial misconduct in closing arguments will likely not be grounds for a new trial. The instances will have to satisfy the high burden of the Plain Error Standard. Specifically, the instance will have to have affected a substantial right of the defendant. The Court set this bar at having an effect on the result of the proceedings. After this case, it will be important to object to any possible prosecutorial misconduct in the closing arguments as it happens.

State of Tennessee v. Terrell Lamont Reid

State of Tennessee v. Terrell Lamont Reid, No. W2019-00636-SC-R11-CD (November 5, 2020).

Written By: Emily Seaborn, Associate Editor

This case concerns claims of relief under Tennessee Rule of Criminal Procedure 36.1, and whether claims are void, or voidable when a person is sentenced under a statute that is presumptively constitutional at the time but is later declared unconstitutional.

The crux of this case lies in its procedural history, not its factual background. On June 24, 2015, Terrell Lamont Reid pleaded guilty to possession of cocaine with intent to sell and possession of a firearm by a firearm by a convicted felon. The latter of the charges was enhanced from a Class C felony to a Class B felony pursuant to the criminal gang enhancement statutes. The trial court sentenced Reid to concurrent seventeen-year sentences for both convictions.

On April 7, 2016 – after Reid was sentenced – the Court of Criminal Appeals declared the criminal gang enhancement statute unconstitutional as a violation of substantive due process. However, the enhancement was presumptively constitutional throughout Reid’s sentencing. Despite the finding that the enhancement was unconstitutional, Reid failed to file a petition for post-conviction relief within the one-year period.

Then, on January 14, 2019, Reid filed a pro se “Motion to Correct [an] Illegal Sentence Pursuant to Tennessee Rule[] of Criminal Procedure 36.1.” In short, Reid’s argument was that his sentence was illegal because the criminal gang enhancement was deemed unconstitutional, and that the appellate court’s decision declaring the enhancement unconstitutional should be applied retroactively to his case. On the other hand, the State argued that Reid was not entitled to relief because his case was “final and not pending or under review” when the appellate court’s decision was decreed.

The trial court denied Reid’s motion, but after he appealed, the Court of Criminal Appeals reversed the judgment of the trial court. The court held that the “application of an unconstitutional law renders a sentence void, and therefore, illegal.” Finding Reid’s sentence void and illegal, the Court of Criminal Appeals remanded the case to the trial court “to determine whether the illegal aspect was a material component of the plea agreement.” The Tennessee Supreme Court then granted the State’s application for permission to appeal.

The Tennessee Supreme Court was reviewing whether Reid made a colorable claim for relief under Tennessee Rule of Criminal Procedure 36.1, which governs sentences that are void, or illegal. Much of this case turns on the Court’s interpretation of its prior decision in Taylor v. State, 995 S.W.2d 78 (Tenn. 1999). In Taylor, the State argued, and the Court concurred, that this Court held that a sentence is not rendered void merely because the statute under which the sentence was imposed is later declared unconstitutional. This holding distinguishes a void sentence from a voidable sentence. A voidable sentence may only be corrected if challenged in a timely post-conviction petition, whereas if a sentence is void and illegal, the sentence may be entitled to relief under Rule 36.1. Rule 36.1 motions can be filed at any time.

The dispositive issue, in this case, was whether Reid’s sentence was void or voidable. If Reid’s sentence was voidable, then it could only be corrected by a one-year post-conviction motion, but if it was void – like he asserts – then it could be entitled to relief under Rule 36.1. Ultimately, the Tennessee Supreme Court concludes that Reid’s sentence is voidable, and not void and illegal. The Court reaffirms its holding in Taylor – “that a statute is presumed constitutional and that a sentence imposed in accordance with a statute in effect at the time of its imposition is voidable and not void.” The Court also differentiates its interpretation of Taylor from that of the intermediate appellate court. While the intermediate appellate court cites to Taylor, and suggested that its holding “is limited to cases preceding the adoption of Rule 36.1 and to cases where declaring a statute unconstitutional had the effect of reviving an earlier statute,” the Tennessee Supreme Court found that it did not limit its holding in that way.

This case clarifies its past ruling in Taylor and reaffirms that a sentence is not per se void and illegal if the statute is presumptively constitutional, but was later declared unconstitutional. Notably, this ruling and interpretation narrows a petitioner’s ability to appeal. If the Petitioner was sentenced under a statute that was later declared unconstitutional, they must challenge the sentence with a timely petition. In contrast, if this Court held that the sentence was void, the sentence could be corrected at any time. Petitioners are now restrained to a time period to appeal their sentence if the statute is declared unconstitutional, which can create greater barriers for Petitioners to correctly, and timely, file their appeals.

State of Tennessee v. William Eugene Moon

State of Tennessee v. William Eugene Moon, No. M2019-01865-SC-R11-CD (October 6, 2021).

Written By: Emily Wheeler, Associate Editor

William Eugene Moon was convicted of both the unlawful employment of a firearm while attempting to commit or during the commission of a dangerous felony and attempted murder. Upon appeal, the Court of Criminal Appeals held the Defendant was not denied a speedy trial and that, though the trial court had committed an error in allowing the improper impeachment of one of the defense’s witnesses, it was a harmless error. Tennessee’s Supreme Court granted the Defendant’s application for appeal regarding whether the appellate court applied the proper standard of review for the right to a speedy trial if that review was completed correctly and if there was a harmless error regarding the improper impeachment of that witness.

On December 17, 2017, Corporal Wilder was patrolling when he noticed four individuals moving between a parked vehicle and a trailer park. Upon questioning an employee of the trailer park, Corporate Wilder asked for the Defendant to exit the trailer; upon his exit, Corporal Wilder noticed a plastic bag inside the Defendant’s mouth and instructed him to spit it out. The two engaged in a brief scuffle.  The details of this scuffle formulated the basis of this case.  Per Corporal Wilder, the Defendant pulled a gun during the scuffle and aimed it towards Wilder’s abdomen.  As such, Corporal Wilder believed the Defendant intended to use deadly force, pushed the Defendant away, and shot him five times. On the other hand, the Defendant alleges that he did not fight against Corporal Wilder and that while he did have a gun on his person, he never drew his weapon. Instead, the Defendant contends the gun fell out when he was shot.

Originally, the Defendant was indicted on five counts: two counts of unlawful employment of a firearm during an attempt to commit or during the commission of a dangerous felony, attempted first-degree murder, resisting arrest, and aggravated assault. Nonetheless, the trial proceeded with only Counts 1, attempted first-degree murder, and 5, unlawful employment of a firearm during an attempt to commit or during the commission of a dangerous felony. At trial, Detective Pyrdom testified that he arrived on the scene as backup and witnessed the scuffle. Though he was unable to see either party’s hands or a weapon in the Defendant’s hands, Detective Pyrdom did hear Corporal Wilder giving directions to the Defendant. After the shots were fired, Detective Pyrdom retrieved the Defendant’s weapon which was found at the bottom of the trailer’s steps. For the defense, two eyewitnesses, Larry and Donald Woods, testified that they never saw the Defendant holding a weapon during the encounter. Further, another witness claimed to have seen the Defendant put the gun in his pants before the encounter but never saw the gun in his hands during the encounter.

Regarding whether a defendant had access to a speedy trial, the parties differ on what would be the proper standard of review. Here, the State argued for an abuse of discretion standard while the Defendant argued for a de novo review. Ultimately, the Court agreed with the Defendant and found that the “standard of review for whether a criminal defendant was denied the constitutional right to a speedy trial is de novo with deference to the trial court’s finding of facts unless the evidence preponderates otherwise”. Further, for this review, the Court examines four factors: the length of the delay; the reason for the delay; whether there was a demand for a speedy trial; and the presence/extent of prejudice to the defendant. Here, the Court found the trial had occurred less than fourteen months from when the events transpired; within that time, two continuances were granted to accommodate an older trial and to ensure a three-day window for this trial to occur. Accordingly, these delays were reasonable, weighing the first two factors against the defendant. For the third, it was undisputed that the Defendant requested a speedy trial which weighed in his favor. Finally, the Court found that the Defendant was unable to show “any discernible prejudice” suffered from his delay in the trial.

Finally, the Court agreed with the Defendant that the improper impeachment of Mr. Larry Woods “more probably than not” had an effect on the judgment to create a reversible error. Here, on cross-examination, the Prosecution almost immediately asked Mr. Woods if he had ever sold methamphetamine from his trailer. The trial court overruled the defense counsel’s objection to the questioning while the appellate court was thorough in explaining why this decision was in error. Here, however, the Defendant contends the appellate court erred as it should not have been deemed a harmless error. Ultimately, the Court found that because the evidence against the Defendant “was not overwhelming”, the effect that the improper impeachment had on the jury’s verdict was extremely difficult to quantify. Therein, the case was remanded to the trial court.

Overall, this decision was extremely important in its clarification of the proper standard of review regarding appeals for one’s right to a speedy trial. Interestingly, the Supreme Court of Tennessee did not follow the State’s preference of the standard that the Court of Criminal Appeals had utilized. Even though their ultimate holdings were the same for that point, the differentiation in the standards provides clarity for lower courts to lean upon in future cases. Additionally, this standard will become increasingly crucial as courts continue to get back on track from the effects of COVID-19. While this case’s events occurred almost five years ago, the issue of providing a defendant with his right to a speedy trial will likely be one that appellate courts will face more often going forward. In addition, because the remnants of the pandemic are being felt nationwide, the Court’s ruling on its governing standard of review could be influential as other states face similar questions.

State of Tennessee v. Shalonda Weems

State of Tennessee v. Shalonda Weems, No. M2018-02288-SC-R11-CD (Sept. 30, 2020).

Written By: Hannah Jones, Associate Editor

Shalonda Weems was a single mother with three small children. Her youngest child, Kar’mn, was six months old in March of 2005. On March 2, 2005, Weems observed Kar’mn acting and eating normally. Kar’mn was sick with a fever on March 1, but Weems noted that Kar’mn was feeling better. On the morning of March 3, Weems found Kar’mn barely breathing and turning blue. Kar’mn passed away later that morning.

Dr. Hawes performed Kar’mn’s autopsy investigation and concluded that Kar’mn’s cause of death was “dehydration and malnutrition with interstitial pneumonitis as a contributory cause of death.” When Dr. Hawes performed the autopsy, Kar’mn had no food or waste products in her body, which was an indicator of malnutrition. Some other signs of malnutrition and dehydration were loss of fat around internal organs, sunken eyes, a sunken fontanel, and dry and doughy skin. Dr. Hawes also noted that Kar’mn’s low level of fat around her organs indicated that she was not receiving proper nutrition for a period of time prior to her death.

Years later, Weems was indicted for aggravated child neglect and felony murder. After the State presented its proof, the defense moved for a judgment of acquittal for aggravated child neglect, arguing that the State failed to prove that Weems “knowingly” neglected Kar’mn – which was an essential element of the crime. The trial court denied this motion so that the jury could decide the issue of neglect. The jury then found Weems guilty of aggravated child neglect and reckless homicide. Weems then renewed her motion for acquittal on both counts, and the trial court granted the motion for the aggravated child neglect charge, finding that the evidence of Weems’s knowledge was insufficient. The Court of Criminal Appeals affirmed the trial court’s grant of the motion for judgment of acquittal and agreed that the evidence was insufficient.

On appeal, the issue presented to the Tennessee Supreme Court was whether the Court of Criminal Appeals erred by substituting its own judgments for those of the jury, determining the weight of witness testimony, failing to view evidence most favorably to the prosecution, and failing to disregard countervailing evidence.
The proper inquiry in reviewing the lower courts’ decisions centered around whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, with all inferences in favor of the prosecution. While Weems was adamant that she fed Kar’mn regularly up until her death, the autopsy contradicted that claim. The conditions present at Kar’mn’s death appeared chronic, indicating that something had been happening over a period of time.

Ultimately, the Tennessee Supreme Court held that the jury could have made a reasonable inference that Weems’s statements were not credible based on the presented medical and scientific evidence. Therefore, a reasonable jury could have concluded that Weems knowingly neglected Kar’mn by not properly feeding her and therefore causing Kar’mn’s death. The Supreme Court reversed the lower courts’ decisions. As a result, the Court reinstated Weems’s conviction for aggravated child neglect.

One implication from this decision is the importance placed on inferences drawn from scientific evidence. The lower courts both did not believe that knowledge could not be reasonably proven through the scientific evidence, but the result on appeal indicates that a jury may reasonably draw inferences from the scientific evidence to establish elements of the crime. The defendant need not state that neglect occurred for the jury to make such an inference.

State of Tennessee v. Lynn Frank Bristol

State of Tennessee v. Lynn Frank Bristol, No. M2019-00531-SC-R11-CD (Apr. 6, 2022).

Written By: Max Pafford, Associate Editor

The Supreme Court of the State of Tennessee considered the case of Lynn Frank Bristol, a man convicted of two counts of aggravated sexual battery. After the trial court denied a motion for a new trial, Bristol appealed the matter to the Court of Criminal Appeals. The Court of Criminal Appeals ultimately granted an order for a new trial, but not on any issue preserved in the trial court or presented before the Court of Criminal Appeals by either party. The case was remanded for a new trial due to an apparent discrepancy between the oral jury instructions and the written ones, with notable definitions seemingly missing from the written instructions.

After hearing of the discrepancy, the State petitioned for rehearing, stating that the original appellate record had no less than 16 missing pages from the actual, written jury instructions. Those pages contained the “missing” definitions. After the State requested remand to the trial court to clarify which set of instructions had been given to the jury, Bristol responded that “certification of the original appellate record conclusively settled any discrepancy. . .” With these competing claims, the Court of Criminal Appeals directed the trial court to prepare a supplemental record, with the entire written and submitted jury charge. When the trial court clerk certified and submitted a record, the Court of Criminal Appeals denied the State’s rehearing petition because certification and submission by the clerk did not show that the trial court, itself, had settled the discrepancies.

At this juncture, the State sought to appeal to the Supreme Court, which first confirmed with the trial court that the second, longer set of instructions had actually been submitted to the jury. The State claimed error by granting relief on an issue unpreserved and unpresented without first giving the parties fair notice and an opportunity to make their case. Examining the issue of abuse of discretion, the Supreme Court agreed with the State, reversing the Court of Criminal Appeals, and reinstating the convictions. The Supreme Court held that the Court of Criminal Appeals abused its discretion in considering an unpreserved, unpresented issue “without giving fair notice and an opportunity to be heard on that issue.”

The Court’s reasoning was split into three major parts: first, discussion of the limitations on appellate review and the extent of the discretionary authority, second, examination for abuse of that discretionary authority, and third, settlement of the matter of discrepancies between the written and oral jury instructions. Identifying two general principles of appellate review, the Court noted: appellate courts are generally limited to those issues presented to it, and jurisdiction is limited to the matters decided in lower courts. The Court determined that both principles serve the adversarial system and promote efficiency, fairness, accuracy, and the appearance of impartiality.

Nevertheless, courts are given some discretion, but, when exercising it, courts must give the parties notice and an opportunity to present their case on the discretionary issue. “At a minimum, an appellate court must give the parties notice of the specific issue it intends to address and sufficient time to review the record, conduct research, and prepare an argument before the court rules on the issue.” Additionally, the Court noted, that “[r]equiring a party to address an issue for the first time in a petition for rehearing after the court has already ruled is inadequate.”

This case puts down a strong marker for how appellate courts in Tennessee can examine unpresented and unpreserved issues going forward. The general manner in which the Court discussed appellate authority heavily implies that the standard issued here extends beyond the context of the criminal courts as well. In future cases, appellate courts and parties have a clear guidepost as to what is required from an appellate court seeking to raise a discretionary, unpresented, unpreserved issue. “Supplemental briefing ordinarily will be” best, but the important thing is that a party has opportunity to “meaningfully address an issue” prior to a court’s ruling.