State of Tennessee v. Robert J. Whittenburg

                                                                                                     12/27/2023
           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                   October 24, 2023 Session

            STATE OF TENNESSEE v. ROBERT J. WHITTENBURG

                    Appeal from the Circuit Court for Bledsoe County
                     No. 18-CR-31       Thomas W. Graham, Judge
                       ___________________________________

                              No. E2022-01342-CCA-R3-CD
                          ___________________________________

A Franklin County jury1 convicted Robert J. Whittenburg, Defendant, of two counts of first
degree premeditated murder. After a sentencing hearing, the trial court imposed two
consecutive life sentences. On appeal, Defendant argues: (1) the State did not present
sufficient evidence of premeditation; (2) the trial court improperly denied Defendant’s
request for a special jury instruction on premeditation; (3) the trial court improperly
addressed concerns about irregularities during jury deliberations; and (4) the trial court
impaired the jury when it briefly prohibited smoke breaks and then changed its mind. After
review, we affirm the judgments of the trial court but remand the case for resolution of
procedural issues related to the change of venue and entry of revised judgments.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed;
                                  Case Remanded

MATTHEW J. WILSON, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and TOM GREENHOLTZ, JJ., joined.

Samuel F. Hudson, Dunlap, Tennessee, for the appellant, Robert J. Whittenburg.

Jonathan Skrmetti, Attorney General and Reporter; Richard D. Douglas (at oral argument)
and Jonathan H. Wardle (on brief), Senior Assistant Attorneys General; J. Michael Taylor,
District Attorney General; and David Shinn and Steven Strain, Assistant District Attorneys
General, for the appellee, State of Tennessee.




       1
         Defendant’s case originated out of Bledsoe County, but Defendant was granted a change of venue
and a Franklin County jury heard the case.
                                               OPINION

                               I. Background and Procedural History

       On November 30, 2017, the victims, Dedra Lawrence and her mother, Deanna
Lawrence,2 were discovered by Deanna’s boyfriend, Jeffrey Seals, at Defendant’s house in
Bledsoe County. Mr. Seals also found Defendant lying in his bed, covered in blood, and
appearing to be dead. After Mr. Seals called 911, responding police officers discovered a
gruesome scene. Both women were dead, and their bludgeoned bodies were covered with
multiple wounds, including “chop wounds.”3 On top of Dedra’s body, officers found a
two-page note that read, “I loved her [so] much,” and was signed “Joe.” When officers
checked on Defendant, they discovered he was alive and taking shallow breaths. Officers
had Defendant transported to the hospital before taking him into custody. The Bledsoe
County Grand Jury indicted Defendant on two charges of first degree premeditated murder.

        Before trial, Defendant moved for a change of venue, which the trial court granted.
In its order granting the change of venue, the trial court wrote, “The venue in this matter
shall be moved to Franklin County, [Tennessee] for the trial to be conducted in Franklin
County with a jury comprised of people from Franklin County.” The trial was held in
Franklin County with a jury comprised of Franklin County citizens, but the Bledsoe County
Circuit Court Clerk did not copy and transmit the case file to Franklin County, as required
by Tennessee Rule of Criminal Procedure 21(e)(1). All trial court orders following the
trial court’s grant of change of venue were filed by the Bledsoe County Circuit Court, and
the judgments were filed with the Bledsoe County Circuit Court Clerk. For the reasons
below, we address this issue even though neither party addresses this oversight on appeal.

       We observe that the Tennessee Supreme Court has long held that when a defendant
seeks and is granted a change of venue, the defendant waives his rights as to venue and
“vicinage,” or the place from which jurors are summoned. See State v. Nichols, 

 (Tenn. 1994) (citing Tenn. Const. art. I, § 9). Similarly, we conclude that the
grant of a change of venue waives a defendant’s potential procedural or jurisdictional
challenges based on a trial court’s failure to follow the procedures set forth in Rule 21(e).
Accordingly, this court will consider Defendant’s appeal on its merits. However, we
remand this case to the trial court for compliance with Tennessee Rule of Criminal

        2
          Because the victims share the same surname, they will be referred to by their first names. We
intend no disrespect.

        3
         Dr. Emily Dennison, a forensic pathologist who testified at trial, defined a chop wound as a wound
in between sharp force injuries and blunt force injuries. A sharp force injury is a wound caused by “a sharp
instrument like a knife[,]” whereas a blunt force injury may be caused by an item such as a “baseball bat.”
A chop wound may be inflicted by an “item that is heav[y]” with a “sharp blade.”
                                                   -2-
Procedure 21(e). The Bledsoe County Circuit Court shall transfer the trial court case file
to the Franklin County Circuit Court, and the Franklin County Circuit Court shall issue
revised judgments reflecting it as the trial court of record. However, the Franklin County
Circuit Court need not file a duplicate copy of the record with the Appellate Court Clerk.

                                           II. Trial

        Jeffrey Seals testified for the State and explained that at the time of the victims’
deaths, he lived with Defendant and both victims. Mr. Seals explained that Defendant had
lived in the home for a few months, and Defendant appeared to be “very much in love with
Dedra.” Mr. Seals also explained that Dedra and Defendant argued a lot, and on more than
one occasion, Defendant said “Jeff, I’m going to kill her.”

       On November 30, 2017, Mr. Seals arrived home around 7:00 p.m. after being out of
town for work. The last time he spoke with Deanna was the night of November 29, and
despite his efforts, he was unable to reach Deanna, Dedra, or Defendant on November 30,
which he found unusual. Mr. Seals tried to open the door to his home, but it was locked
and he did not have his key. He knocked on the door for an hour before walking to the
back of the house to knock on Dedra and Defendant’s bedroom window. Mr. Seals broke
a window, and after entering the house, he saw Defendant lying on a mattress. Mr. Seals
recounted his encounter with Defendant:

       His face was blue and I shook his legs trying to—and called his name trying
       to wake him up. When I shook his legs, his face was blue and I realized
       something was terribly wrong when I shook him, because he’s [sic] head was
       bobbling and the color of his skin and then I saw . . . the bloody rags all along
       the edge of the bed.

Mr. Seals went to his and Deanna’s bedroom and found nothing amiss, so he walked to the
kitchen. There he stumbled upon Dedra’s body. Mr. Seals stated, “I knew she was gone.
I knew she was [lying] on the floor and she was gone.” Mr. Seals tried to leave the house
from the kitchen door:

       I had to move [Dedra’s] leg to get out, because it was blocking the door where
       I couldn’t open it, and ran out the door and when I got down to the bottom of
       the steps of the porch I realized that Deanna was probably in there[] too, and
       I turned around and ran back and I ran in the living room and turned the light
       on and she was lying there in the floor also, in the living room floor.

Mr. Seals “panicked” and immediately ran out of the house to call 911.

                                             -3-
      Mr. Seals was shown a picture of Defendant’s fire axe, which was later found in
Defendant’s bedroom. Mr. Seals identified the axe as Defendant’s, and said Defendant
normally kept the axe in a corner of the kitchen.

        Officer Ricky Hodge with the Pikeville Police Department was the first police
officer to arrive at the house on November 30, 2017. Officer Hodge described Mr. Seals
as frantic as he ran across the yard screaming, “they’re all dead[!]” Officer Hodge and
another officer entered the house, and because there was so much blood on the floor, the
officers had to hold on to each other to keep from sliding. Officer Hodge found a woman’s
body in the kitchen and another woman’s body in the living room. As they continued to
clear the house, they found Defendant on a bed, appearing to be dead. Officer Hodge then
discovered that “[Defendant] was taking very shallow breaths.” After Emergency Medical
Services took Defendant, Officer Hodge began “setting up a perimeter and crime scene
tape . . . so nobody else could come in, and got in contact with [his] chief.” After agents
with the Tennessee Bureau of Investigation (TBI) arrived, Officer Hodge turned the
investigation over to them.

        Special Agent Leo Andy was one of the TBI criminal investigators who collected
evidence at the crime scene. He testified that while he was in Defendant’s kitchen, he
collected samples of blood from the wall, the sink, the counter, and a blue glove. He also
identified blood on the wall of the living room and collected samples from the coffee table
and the carpet. Agent Andy identified a photo of a bag filled with “medical supplies”
including a rubber glove “consistent with the rubber gloves” found in the kitchen. He
stated that when he turned Deanna’s body over, he found “loose hair on her body.” He
then identified a knife and box cutter that were found on a shelf in Defendant’s bedroom
where the axe was also found.4 The agent testified that what appeared to be hairs were also
found on the axe. He also identified a photograph of a pair of jeans with blood on them
that was found in Defendant’s bedroom. Agent Andy testified that he found no other
weapons near the victims’ bodies, nor did he find an ashtray near Dedra.

      Special Agent Jennifer Spivy, a TBI forensic scientist in the latent print unit,
examined the two-page note from the residence for the presence of fingerprints. Agent
Spivy did not find any fingerprints on the note, but she explained that was not unusual:

        [O]ne, the person could be wearing gloves. There are environmental factors
        that come into play. The item itself might not lend itself well to laying down
        a latent print. There could be too much handling, too little handling.
        4
           Although Agent Andy testified that the axe was collected from the crime scene, he did not testify
specifically whether he or one of the other TBI investigators collected the axe. If such information was
noted on an evidence tag attached to the axe or the box in which it was presented at trial, such information
is not in the appellate record, as the trial court clerk retained the axe.
                                                   -4-
       Conditions of skin. [There are] just many different reasons why fingerprints
       might not be left behind.

Agent Spivy also examined the fire axe taken from the scene and found only “a few ridges
with no details, so [she] could not do any type of comparison with those.” Agent Spivy
explained she needed “a certain . . . quality of those latents . . . to have enough information
. . . in order to do a comparison,” but here “[t]here were only a few ridges. There was no
detail in any of those ridges . . . to do anything with.” She noted it was normal not to find
fingerprints on the surface of an axe. She also found hair on the axe but did not test it
because the TBI did not test hair at that time.

          Special Agent Keith Herron, the TBI’s lead agent on this case, conducted a recorded
interview with Defendant at the Bledsoe County Sheriff’s Department on December 4,
2017. After advising Defendant of his Miranda warnings, Defendant agreed to speak with
Agent Herron. During the interview, Defendant’s arm was bandaged. Defendant admitted
he went by the nickname “Joe.” Defendant said he worked in construction installing
“guardrails,” and he had previously worked for the fire department in Van Buren County.
Defendant said he had completed training as an advanced emergency medical technician
(EMT) at Chattanooga State Community College, but he no longer worked as an EMT.
Agent Herron asked Defendant to explain the events leading to the incident, and Defendant
responded, “It’s hard to say, I don’t remember a lot of it.” Agent Herron then asked if there
was an argument on November 30 to which Defendant acknowledged there was “[a] little
argument” and a “small disagreement” with Dedra, but Defendant asserted that it was
“nothing spectacular.” When asked specifically what Defendant and Dedra were arguing
about, Defendant said it was “[s]tupid stuff.” Dedra found a few pieces of mail in the trash
with the phone number and names of “Sally Kirby” and “Katrina.” Defendant said that
“Sally” was a man he had known “all [his] life,” and “Katrina” was his aunt. Dedra wanted
to know why Defendant had thrown them away, and Defendant explained he did not need
them. Defendant said that Dedra also was angry about “some numbers calling from [the]
615 area code . . . and we’d been working around Nashville, so [Dedra] trie[d] to put two
and two together” and thought Defendant was seeing another woman. But Defendant
stated, “[I]t wasn’t a big argument, it was just a disagreement . . . and [Dedra] threw an
ashtray at me,” but the ashtray did not hit him. Defendant said “I think she hit me with her
fist. . . . And some way or another . . . I got these bruises.” He later said Dedra “busted
[his] lip.” At that point, Defendant “shoved [Dedra] back,” and “Deanna started in.” He
stated that Deanna said, “I’m calling the law. Y’all get your sh** and get out of here.”

       Defendant admitted to consuming “about two swall[ows] of liquor” before the
argument, but not enough “where [he] wouldn’t remember what [he] was doing.”
Defendant denied taking any drugs before the argument. Defendant believed Deanna
called Dedra’s dad, Mario, and told him about the fight, saying she “couldn’t put up with
                                             -5-
it” while Mr. Seals was out of town. When Defendant was asked whether he and Deanna
were arguing, he said “[n]o, not really.”

        Defendant said “that’s about all I remember. Then I remember I was standing
between the living room and the kitchen and they’re [lying] dead. . . . [With] Dedra dead
over here and Deanna dead over here.” During the argument, Defendant said he was still
wearing his work clothes, which were a T-shirt, blue jeans and work boots. After he saw
the victims’ bodies, Defendant said he noticed he was in the shorts he wore “to bed,” but
he saw his jeans on the floor which were “pretty bloody.” He said “it had to be me that
d[id] it.” He also did not recall writing the note or placing it on Dedra’s body, but admitted
he saw the note resting on her body. Defendant acknowledged the note was written in his
handwriting and signed with his signature.

       Defendant said he normally kept his fire axe “on the inside by the back door” of the
house. After he realized what he had done, Defendant noticed the axe on the ground beside
Dedra so he picked it up and “tried to cut [his] arm off with it” in his bedroom, but he
“[m]entally couldn’t do it.” Eventually, Defendant took a “whack” at his arm and he
described it as going numb and said it was still numb during the interview. Defendant said
he then tried to “drain” himself by inserting “IVs,” but the IVs kept clotting. Defendant
said he “didn’t want to live” after he saw what he did. Afterward, he took Benadryl, over-
the-counter sleeping pills, Gabapentin, three-quarters of a Valium, and about five yellow
pills with “4250 Mylon” printed on them, which he believed were “some kind of sedative.”
Defendant said he hoped he would “die” before anyone found him. Defendant, again,
stated that he would have never hurt Dedra because he “loved her so much.” He
acknowledged, however, he had killed the women because there was “nobody else there.”
When asked why he killed them, Defendant said he could not “think of anything,” and he
did not know “why in the hell [he] would have done this.” When Agent Herron asked
Defendant if he had done things in the past he could not remember, Defendant replied
“[n]ever.”

        Special Agent Charly Castelbuono, a forensic scientist in the TBI forensic biology
unit, testified that she received buccal swabs taken from Defendant and blood samples from
the victims. Agent Castelbuono tested the note found on Dedra’s body for a DNA profile
and matched it to Defendant. She then matched blood swabs from the kitchen wall to
Dedra; blood swabs from the kitchen table to two individuals, with the major contributor
being Defendant; blood swabs from the coffee table to Dedra; and blood swabs from the
living room floor to Deanna. Agent Castelbuono also tested multiple items, including the
axe, boxcutter, and knife collected from the crime scene, for DNA profiles. Specifically,
she found a mixture of Defendant’s and Dedra’s blood on the handle of the fire axe,
Deanna’s blood on the axe’s blade, and a mixture of Dedra’s and Deanna’s blood on the
axe’s claw. Agent Castelbuono’s testing indicated Defendant’s blood was found on the
                                            -6-
handles and blades of the box cutter and knife, and DNA samples taken from elsewhere on
the handles of these two instruments (i.e., outside the blood stains) contained a mixture of
Defendant’s DNA and a profile which could not be identified due to the small size of the
samples. Agent Castelbuono did not match any of the blood swabs to anyone else.

        Dr. Emily Dennison, a forensic pathologist, performed autopsies on the bodies of
Deanna and Dedra. At the time of her death, Deanna was 5’2” tall and weighed 111
pounds.5 Dr. Dennison explained that Deanna’s body arrived wearing only a bra and a pair
of pants. The pathologist’s testimony explained Deanna’s wounds to the jury. Dr.
Dennison identified three chop wounds to Deanna’s head. One wound was “a chop wound
to the left side of the scalp,” on the front of the victim’s head. This wound penetrated the
temporalis muscle, located atop the scalp, and it also penetrated Deanna’s skull and the left
cerebral hemisphere of her brain. Dr. Dennison acknowledged this wound would have
been fatal. Dr. Dennison stated Deanna also suffered two chop wounds to the back of the
scalp. These wounds penetrated Deanna’s skull but did not penetrate her brain, so these
wounds, by themselves, would not necessarily have been fatal. Dr. Dennison testified that
Deanna also suffered a wound to the back of her neck; this wound was over two inches
deep and severed both the brain stem and the ligament attaching the skull to the cervical
spine. The pathologist testified this wound was nearly immediately fatal. She also testified
that Deanna suffered several other non-fatal injuries, including a stab wound to her left
knee, facial lacerations, bruises on the torso and extremities, and abrasions to the torso. Dr.
Dennison opined that all of Deanna’s injuries occurred while she was still alive. Deanna
also tested positive for amphetamine, methamphetamine, and tetrahydrocannabinol (THC).

        Dr. Dennison then testified about Dedra’s autopsy. At the time of her death, Dedra
was 5’2” tall and weighed 119 pounds. Dedra suffered seven chop wounds, nine stab
wounds, and three incised wounds. She had stab wounds on her face, the top of her head,
her left arm, and a line of six punctures up the side of her back and neck. Six of the chop
wounds were to her head, with four of the wounds penetrating the scalp and one of these
four wounds penetrating her brain. Dr. Dennison testified that Dedra also suffered a chop
wound to the right wrist; the pathologist explained the wound “went through the majority
of the soft tissue, the bones, the tendons, [and] the vessels of the right wrist. There was a
small amount of skin still intact on the wrist, but the majority of the . . . wrist was almost
chopped off[.]” Dr. Dennison testified that both the chop wound that penetrated Dedra’s
brain and the wound to the wrist could have been fatal; specifically, Dedra could have bled
out from the wrist wound absent prompt medical attention.


           5
               The record does not contain information about Defendant’s height and weight at the time of the
offense.

                                                      -7-
      The toxicology results showed that Dedra had a blood alcohol concentration of
0.116 percent, and she had methamphetamine, morphine, oxycodone, and THC in her
system at the time she died.

        Defendant called his mother, Mary Ellen Whittenburg, as a witness. She testified
that Dedra and Defendant lived with her for a few months in 2017, and during that time
she had an opportunity to observe their interactions. She explained that Defendant “loved
[Dedra] very much.” She described Defendant’s and Dedra’s relationship as sometimes
good and sometimes not good. On one occasion, Ms. Whittenburg recalled “[hearing] a
lot of screaming and things being throw[n] and being throw[n] down [her] stairs, dishes,
clothes, shoes, anything that was up there.” When Defendant walked downstairs, Ms.
Whittenburg observed “a mark on his face” that looked like a “red knot;” she claimed
Defendant did not have this mark before he went upstairs. On November 27, 2017, Ms.
Whittenburg met with Defendant, who appeared “okay” to her. She recalled Defendant
saying “he was tired, he was coming in from work, and he was going home.”

       Defendant testified on his own behalf. Much of his in-court testimony mirrored
what he had told Agent Herron in the December 4, 2017 interview. When Defendant was
asked to describe his relationship with Dedra, he replied:

      She was my whole world. She means everything to me. I don’t know how I
      can live without her. I don’t know how I’ve been living without her. We
      were inseparable when we were together as long as I wasn’t at work. We
      were right in the same room constantly all the time. We couldn’t even go out
      in the yard to walk the dog, both of us had to go.

He stated that Dedra was occasionally aggressive to him, but more often she was as “sweet
as could be.” Other times, “she was pure heck on wheels. . . . She’s punched me in the
face. She’s threw [sic] me and kicked me off the bed.” Defendant denied ever striking
Dedra with his fist, and when she would strike him, he would “either try to restrain her or
if she was too wiry” he would “walk away.” He stated that usually she was difficult to
restrain. Regarding Dedra and Deanna’s relationship, Defendant stated:

      They got along most of the time, but when they’d fight it was pretty bad. . . .
      [O]ne time Deanna was having Dedra highlight her hair and she said,
      “You’re pulling my hair.” And then Dedra got mad and wouldn’t do
      [any]more. She pulled her hair purposely and then walked off.

Defendant said the two women’s arguments sometimes became physical; once, Dedra
“grabbed Deanna and punched her, started punching her and was punching her in the back
as everybody was running out the door and ran her halfway down the street in Pikeville.”
                                           -8-
Defendant stated that he had never done drugs, but he was trying to help Dedra with her
narcotics and opioid addiction and would regularly take her to a Suboxone clinic for
treatment.

       Defendant described his disagreement with Dedra that occurred on November 28,
2017. He stated that Dedra hit him in the eye, and then Defendant walked away and “gave
her a little bit to calm down.” Eventually they made up and slept in the same bed.
Defendant described the household “mood” the next day as “peaceful” before he went to
work:

       I got up, got dressed, kissed Dedra. Always had to wake her up, because she
       didn’t like it if I left without waking her up. Kissed her several times,
       because I couldn’t get away without kissing her several times. She wouldn’t
       let me and I didn’t want to. I’d almost be late to work because I couldn’t get
       away from her and didn’t want to get away from her, and I walked to work.

He said that he spoke with Dedra several times that day. When he arrived home around
4:00 p.m., Defendant said everything was “fine,” and he met Dedra in the kitchen and
“kissed . . . and hugged her.” According to Defendant, the mood quickly changed:

       [Dedra] wanted to know where the phone numbers went and I told her I[]
       already threw them away. She punched me in the face. She punched me in
       the mouth. . . . Deanna came [out] of her room and said that we’d have to
       get our stuff and get out. She couldn’t put up with the fighting and she said
       she was on the phone with Mario [Dedra’s father].

        Defendant stated that after Deanna came out of her bedroom and yelled at them, he
could not recall anything else. When asked if he planned to harm Dedra that night,
Defendant replied, “Never. Never planned to do any harm to her. I never planned to do
any harm to her. All I wanted to do was love her and spend the rest of my life with her.”
He then stated that he did not plan to hurt Deanna either. He stated if he had been
“clearheaded” that night he could have successfully taken his life because he “had the
training and the tools to do it with. [He] had the meds in [his] bag. . . . [He] could have
took [his] life, but [he] wasn’t clearheaded enough to even do that.”

       Defendant admitted to locking the door before Dedra and Deanna were killed, but
he said locking the door was something he “normally did.” When Defendant was asked if
he took responsibility for the women’s deaths, he said “I was the only one there. I guess I
have to.”



                                           -9-
        On cross-examination, Defendant agreed he and Dedra had more serious fights in
the past. Defendant said he did not consume any drugs that would have affected his mind
that night, and agreed he “certainly [wasn’t] intoxicated,” even though there was “a gap”
in his memory regarding the night’s events. He said before that night, he had never had
any issues with his memory. Defendant admitted the fire axe was his, but he said he did
not know how Dedra’s blood got on the axe. When asked why, as a trained EMT and
firefighter, Defendant did not render first aid to the women when he “came to,” Defendant
answered “[t]here was nothing that could be done.”

       After deliberating, the jury convicted Defendant of two counts of first degree
premeditated murder. Before trial, the State had filed a notice to seek a sentence of life in
prison without parole, but the State withdrew the notice during a bench conference held
immediately after the verdict was returned. The trial court later held a hearing to consider
whether Defendant’s two life sentences would be served concurrently or consecutively.
After reviewing the presentence report, victim impact statements, and the sentencing
hearing testimony of Defendant and his mother, the trial court concluded that consecutive
sentences were warranted based on Tennessee Code Annotated section 40-35-115(b)(4):
“The defendant is a dangerous offender whose behavior indicates little or no regard for
human life and no hesitation about committing a crime in which the risk to human life is
high.” Consistent with the requirements of State v. Wilkerson, 

 (Tenn.
1995), the trial court also found that an extended sentence was necessary to protect the
public against Defendant’s further criminal conduct and that consecutive sentences
reasonably related to the severity of Defendant’s offenses.

       Defendant subsequently moved for a new trial which the court denied after a
hearing. This timely appeal follows.

                                        III. Analysis

       On appeal, Defendant argues: (1) the State did not present sufficient evidence of
premeditation; (2) the trial court improperly denied Defendant’s request for a special jury
instruction on premeditation; (3) the trial court improperly addressed concerns about
irregularities during jury deliberations; and (4) the trial court impaired the jury when it
briefly prohibited smoke breaks and then changed its mind.

                              A. Sufficiency of the Evidence

       Defendant argues the evidence introduced at trial was insufficient to support a
conviction of premeditated first degree murder. The State contends that the conviction was
proper because the evidence suggesting premeditation was overwhelming.

                                           - 10 -
        The standard of review to a challenge of the sufficiency of evidence is whether, after
considering the evidence in the light most favorable to the State, “any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” Jackson
v. Virginia, 

 (1979) (emphasis in original); see Tenn. R. App. P. 13(e);
State v. Goodwin, 

 (Tenn. 2004) (citing State v. Reid, 

 (Tenn. 2002)). This standard applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of both. State v. Pendergrass, 

 (Tenn. Crim. App. 1999) (citing State v. Dykes, 

 (Tenn. Crim.
App. 1990)). In the absence of direct evidence, a criminal offense may be established
exclusively by circumstantial evidence. Duchac v. State, 

 (Tenn.
1973). A conviction “removes the presumption of innocence with which a defendant is
initially cloaked and replaces it with one of guilt,” and the defendant bears the “burden of
demonstrating that the evidence is insufficient.” State v. Blanton, 

(Tenn. Crim. App. 1996).

        Appellate courts “should not reweigh or reevaluate the evidence.” State v. Winters,

 (Tenn. Crim. App. 2003). The appellate court “may not substitute
its inferences for those drawn by the trier of fact.” State v. Dorantes, 

(Tenn. 2011). “Questions concerning the credibility of the witnesses, the weight and value
to be given the evidence as well as all factual issues raised by the evidence, are resolved
by the trier of fact[.]” State v. Holder, 

 (Tenn. Crim. App. 1999). The
jury “is empowered to assess the credibility of the witnesses, to address the weight to be
given their testimony, and to reconcile any conflicts in the proof.” State v. Sisk, 

 (Tenn. 2011).

       First degree murder is defined as a “premeditated and intentional killing of another.”

(a)(1) (2018). Premeditation refers to “an act done after the
exercise of reflection and judgment.” 

 § 39-13-202(d) (2018). Whether the defendant
premeditated the killing is for the jury to decide, and the jury may look at the circumstances
of the killing to decide that issue. State v. Bland, 

 (Tenn. 1997).
Tennessee courts “‘have long recognized that premeditation may be proved by
circumstantial evidence’ because ‘premeditation involves the defendant’s state of mind,
concerning which there is often no direct evidence.’” State v. Morgan, No. E2018-02245-
CCA-R3-CD, 

 at *6 (Tenn. Crim. App. June 5, 2020) (quoting State v.
Davidson, 

 (Tenn. 2003)). Our supreme court has identified
several specific circumstances that may demonstrate the existence of premeditation:

       (1) The use of a deadly weapon on an unarmed victim;
       (2) The particular cruelty of the killing;
       (3) Threats or declarations of intent to kill;
       (4) The procurement of a weapon;
                                            - 11 -
       (5) Any preparations to conceal the crime undertaken before the crime was
       committed;
       (6) The destruction or secretion of evidence of the killing;
       (7) Calmness after the killing;
       (8) Evidence of motive;
       (9) The use of multiple weapons in succession;
       (10) The infliction of multiple wounds or repeated blows;
       (11) Evidence that the victim was retreating or attempting to escape when
       killed;
       (12) The lack of provocation on the part of the victim; and
       (13) The failure to render aid to the victim.

State v. Reynolds, 

, 916-17 (Tenn. 2021). This list “is not exhaustive,” and
“the trier of fact is not limited to any specific evidence when determining whether a
defendant intentionally killed the victim after the exercise of reflection and judgment.” 

 (quotation marks omitted).

       Defendant argues the evidence presented at trial was insufficient to establish
premeditation because the “only evidence that the State presented during the trial of this
matter was that [Defendant] had apparently told [Mr.] Seals at some undetermined point in
the past that he was going to kill Dedra.”

        Here, the evidence, when viewed in the light most favorable to the State, showed
that Defendant locked the only usable door in the house after he arrived home. Defendant
inflicted multiple chop wounds and stab wounds on two unarmed victims during these
brutal events. Deanna’s body was covered with bruises and scrapes, and she had four chop
wounds that she endured while she was still alive, including one which fractured her skull
and pierced her brain. Defendant also inflicted a chop wound to the back of Deanna’s
neck; this wound was over two inches deep and severed her brain stem. Defendant inflicted
nineteen wounds—six of which were chop wounds—on Dedra which led to her death.
These wounds included a chop wound that penetrated her brain and another that nearly
severed her right wrist. Tennessee’s appellate courts have affirmed convictions for
premeditated first degree murder when faced with evidence that a victim suffered multiple
severe wounds. See, e.g., State v. Reid, 

 (Tenn. 2005) (That “the
victims had suffered deep, penetrating stab wounds to their throats; the stab wounds had
been inflicted with enough force to penetrate the victims’ spines; the stab wounds had been
inflicted with a knife blade several inches long; and the victims bled to death in a secluded
area” showed that the defendant “acted with intent and with premeditation.”); see also State
v. Davidson, 

 (Tenn. 2016) (“‘[T]he succession of blows, the patently
vicious manner of their infliction, the enormity of the cruelty and the horrendous injuries
suffered provide further evidence of a wil[l]ful execution of an intent to kill.’” (quoting
                                           - 12 -
State v. Banks, 

 (Tenn. 1978))). Further, “[m]ethods of killing that
require more time, effort, and intimate contact than the pulling of a trigger on a gun are
more consistent with premeditation.” State v. Oeser, No. M2019-01052-CCA-R3-CD,

, at *7 (Tenn. Crim. App. Dec. 11, 2020) (defendant hit victim in head
with mini sledgehammer; victim still “gurgling” after attack, so defendant stabbed victim
in stomach) (citing State v. Adams, 

 (Tenn. 2013)). In this case, most
of the victims’ wounds, including the fatal wounds, were inflicted with Defendant’s fire
axe. From our review of photographs of the axe which were part of the record, the jury
could reasonably presume it would take significant mental reflection and physical effort to
swing the axe, chop into a human body, extract the axe from the victim’s body, and repeat
these actions several times.

       To the extent that Defendant threatened the victims, Mr. Seals heard Defendant say
that he was going to kill Dedra. Defendant used multiple weapons in succession to cause
Dedra’s death, because while most of her wounds were caused by Defendant’s fire axe, a
box cutter and knife were also found and Dedra had three incised wounds in addition to the
chop and stab wounds. See State v. Leach, 

 (Tenn. 2004) (citing State
v. Bush, 

 (Tenn. 1997)). Regarding whether there was evidence
that one of the victims was retreating when killed, testimony from Agent Castelbuono
showed that Dedra was bleeding in the living room because her blood was found on the
coffee table, and then she was found lying dead in the kitchen. The attack continued in the
kitchen because blood spatter covered the walls and door. Defendant admitted Deanna did
not provoke him the day of the attack or on any other day. Although Defendant was a
trained EMT and firefighter, he rendered no aid to either victim after his actions.

       The totality of the evidence was sufficient for a jury to conclude, beyond a
reasonable doubt, that Defendant committed the first degree premeditated murders of both
victims. Defendant is not entitled to relief on this issue.

                                 B. Special Jury Instruction

       Defendant next argues that the trial court erred when it refused to instruct the jury
that “[e]vidence of ‘repeated blows’ is not sufficient, by itself, to establish premeditated
murder.” The State argues that Defendant has waived any relief on this issue because the
record does not include a written request for this jury instruction.

       “It is well-settled that a defendant has a constitutional right to a complete and correct
charge of the law, so that each issue of fact raised by the evidence will be submitted to the
jury on proper instructions.” Dorantes, 

. “Challenges to jury
instructions present mixed questions of law and fact; therefore, we review challenged
instructions de novo without a presumption of correctness.” State v. Smith, 492 S.W.3d
                                             - 13 -
224, 245 (Tenn. 2016). However, “[o]ral requests for instructions are not sufficient for an
appellate court to place a trial court in error for rejecting a requested jury instruction.” State
v. Leath, 

 (Tenn. Crim. App. 2013) (citing State v. Mackey, 

 (Tenn. Crim. App. 1982)). If a party wants the trial court to provide a special jury
instruction, that party must first provide the court with a written request for the instruction
and provide counsel with a copy of the same. See Tenn. R. Crim. P. 30(a). Failure to do
so will result in waiver of the issue on appeal. See Leath, 

; State v.
Winton, No. M2018-01447-CCA-R3-CD, 

, at *6 (Tenn. Crim. App.
Apr. 23, 2020).

       We agree with the State that Defendant has waived full appellate review of this issue
because the record does not contain a written request for a special jury instruction on
premeditation. For that reason, we examine the issue solely to determine whether plain
error review is appropriate. The doctrine of plain error only applies when all five of the
following factors have been established:

       (a) the record must clearly establish what occurred in the trial court;
       (b) a clear and unequivocal rule of law must have been breached;
       (c) a substantial right of the accused must have been adversely affected;
       (d) the accused must not have waived the issue for tactical reasons; and
       (e) consideration of the error must be “necessary to do substantial justice.”

State v. Page, 

 (Tenn. 2006) (quoting State v. Terry, 

 (Tenn. 2003)) (internal brackets omitted). “An error would have to [be] especially
egregious in nature, striking at the very heart of the fairness of the judicial proceeding, to
rise to the level of plain error.” Id. at 231.

        The trial court instructed the jury using the Tennessee Pattern Jury Instruction on
first degree murder, which includes a definition of “premeditation.” See T.P.I.-Crim. 7.01.
That instruction accurately reflected the law. See 

(d), (e);
Reynolds, 635 S.W.3d at 916. Were the trial court to have instructed the jury as Defendant
insists, such an instruction would have been an incomplete statement of the law and an
impermissible comment on the evidence. See, e.g., State v. Hollis, 

(Tenn. Crim. App. 2011) (trial court’s instructing the jury on factors that this court may
consider in determining existence of premeditation is an incomplete statement of the law
and an impermissible comment on the evidence). We observe that defense counsel argued
to the jury, without objection, that the number of the victims’ wounds was not evidence of
premeditation.

      Because the trial court properly instructed the jury on premeditation and Defendant
was able to argue his point to the jury, we conclude Defendant has failed to establish that
                                              - 14 -
consideration of the error is necessary to do substantial justice. Nor has he established that
the trial court’s jury instructions violated a clear and unequivocal rule of law.
Consequently, Defendant is not entitled to plain error relief on this issue.

                                   C. Jury Deliberations

       Next, Defendant argues the trial court “abused its discretion when it refused to grant
[Defendant’s] Motion for Mistrial after it was discovered that jurors had communicated
with a court deputy (deputy) regarding the definition of ‘premeditated’ while three . . .
other jurors were outside of the jury room on a break.”

                                       1. Background

       The record reflects that approximately three hours and fifteen minutes into the jury’s
deliberations, the trial court brought the parties into the courtroom to advise them:

       [A]t some point, a deputy was reported to have got in a discussion with one
       member of the jury about the definition of reasonable doubt. Of course, that
       puts up a lot of alarms. And they had already sent a question out to me, it’s
       supposed to be in writing but it was through the deputies. You know, what
       is the definition of reasonable doubt? And I just asked the deputy, said, well,
       you know they have that that’s in the charge, so I circled the reasonable doubt
       part of the charge, and sent it back to [them]. . . . I don’t know how you can
       even further explain that. But anyways somebody’s troubled about
       reasonable doubt, and maybe they’ll always be troubled but that’s a judgment
       call basically for the jurors after they understand the definition.

       The trial court then questioned the deputy, who stated that jurors had asked him
about the definition of premeditation:

       I just walked into the break room to assist them with some break stuff, and
       when I walked in, they just simply said, can you help us with something?
       And I said, I don’t know, what do you need? I thought maybe they needed
       snacks or something. Can you tell us what premeditated means? And I just
       kind of [threw] my hands up and I just told [them], I said, that means
       basically you have to have a little forethought about what you’re going to do,
       and then you do it. And she said, is that what it means? And I said, you need
       to talk to them about that. And that’s basically all that was said.

The deputy stated that some of the jurors had gone on a smoke break with another deputy,
and about “eight, or nine, or ten” jurors were present when the above conversation
                                            - 15 -
occurred. Upon questioning by defense counsel, the deputy stated that the jurors “didn’t
understand what I was talking about,” and the deputy denied that the jurors responded to
him after his statement. The deputy stated that if the jurors said anything among themselves
after his comment, the deputy did not hear what they were saying.

       The trial court admonished the deputy for answering the jurors’ question and
announced its intent to “bring the whole jury in and just find[] out if there’s been any harm
here.” Defense counsel expressed concern over the jurors’ “deliberating without all the
jurors[.]” When the jury returned to court, the trial court questioned the jurors as a group,
asking them such questions as, “[D]oes anybody have a question right now they want the
[c]ourt to answer?”; “Are y’all okay as far as your deliberations?”; and “You don’t have
any major questions on anything about what the law is, right?”—the record does not
indicate any of the jurors responded to the trial court’s questions. The trial court then
instructed the jurors not to deliberate unless all twelve jurors were present, to communicate
with court deputies only if the jury needed to take a break, and to present any questions
about the law to the trial court in writing. The trial court then asked the jury if there was
“anybody deciding the case based on what the deputy told you[.]” The trial court again
received no response.

       Based on the jury’s lack of a response to the trial court’s questions, the court
determined that the deputy’s interactions with the jury did not go far enough to violate
Defendant’s rights. The trial court told the jury that it was inappropriate for the deputy to
talk to them about the definition of premeditation and explained that the jury charge
“speaks in great detail to these definitions.” The trial court then ordered the jurors to not
“follow [the deputy’s] answer” but to “[f]ollow the jury instruction.”

       Defense counsel asked to voir dire the jurors individually about this incident and
whether some jurors had engaged in deliberations without all jurors present, during the
smoke break. The trial court stated that counsel could ask for individual voir dire after the
jurors had rendered a verdict, to which counsel responded, “Okay.” Defense counsel
moved for a mistrial based on this issue, but the trial court denied the motion. After
resuming deliberations, the jury found Defendant guilty as charged. Defense counsel did
not renew his motion for a mistrial and did not move the trial court to individually voir dire
the jurors about the deputy’s interaction with the jury or any deliberations without all jurors
present.

                                     2. Applicable Law

     Defendant’s contention raises three issues: the jury’s exposure to extrajudicial
communications, the potential separation of the sequestered jury in this case, and the jury’s

                                            - 16 -
potential deliberations without all members present. Our supreme court has addressed the
issue of extrajudicial communications during deliberations as follows:

               When a trial court learns that an extra-judicial communication
      between a juror and a third-party has occurred, the court must take steps to
      assure that the juror has not been exposed to extraneous information or has
      not been improperly influenced. In most circumstances, the appropriate first
      step is to conduct a hearing in open court in the presence of the defendant to
      place the facts in the record and to determine on the record whether cause
      exists to find that the juror should be disqualified. As the Court of Appeals
      has noted, when misconduct involving a juror is brought to a trial court’s
      attention, “it [is] well within [the judge’s] power and authority to launch a
      full scale investigation by summoning . . . all the affiants and other members
      of the jury, if need be, with a view of getting to the bottom of the matter, and
      this, if necessary, upon [the judge’s] own motion.”

             Because of the potentially prejudicial effect of a juror’s receipt of
      extraneous information, the State bears the burden in criminal cases either to
      explain the conduct of the juror or the third party or to demonstrate how the
      conduct was harmless. Error is harmless when “it appears beyond a
      reasonable doubt that the error complained of did not contribute to the verdict
      obtained.”

              When a jury is not sequestered, something more than a showing of an
      extra-judicial communication between a juror and a third party is required to
      shift the burden to the State. There must also be evidence that, as a result of
      the extra-judicial communication, some extraneous prejudicial fact or
      opinion “was imported to one or more jurors or some outside improper
      influence was brought to bear on one or more jurors.” Thus, when it is shown
      that a juror has been exposed to extraneous prejudicial information or an
      improper influence, a rebuttable presumption arises and the burden shifts to
      the State to explain the conduct or demonstrate that it was harmless.

State v. Smith, 

 (Tenn. 2013) (citations and footnote omitted).

       “A party challenging the validity of a verdict must produce admissible evidence to
make an initial showing that the jury was exposed to extraneous prejudicial information or
subjected to an improper outside influence.” Adams, 

. Tennessee Rule
of Evidence 606(b) allows a juror to be called to testify “on the question of whether
extraneous prejudicial information was improperly brought to the jury’s attention, [or]
whether any outside influence was improperly brought to bear upon any juror[.]” Tenn. R.
                                           - 17 -
Evid. 606(b). However, although Rule 606(b) “permits juror testimony to establish the fact
of extraneous information or improper influence on the juror[,] . . . juror testimony
concerning the effect of such information or influence on the juror’s deliberative processes
is inadmissible.” Walsh v. State, 

 (Tenn. 2005).

        Here, the record shows the deputy’s comments on premeditation exposed at least
some (and possibly most) of the jurors to extra-judicial information. The record shows that
the nature of the extra-judicial information was prejudicial because the information was
communicated by a non-juror and sought to define an essential element of the offense in a
way not provided by the jury instructions. See State v. Adams, 

 (Tenn.
2013) (identifying an improper outside influence as being an unauthorized communication
“about the matter pending before the jury”); see also Smith, 

 n.6 (Tenn.
2013) (“Potentially prejudicial external influences include a juror's communications with
non-jurors about the case.”). Consequently, the burden, shifted from defense counsel to
the State, “to explain the conduct or demonstrate that it was harmless.” See Smith, 

.

      The totality of the evidence produced at trial was sufficient for the State to rebut any
presumption of prejudice. In determining whether the presumption of prejudice created by
improper external influence has been rebutted, the reviewing court considers the following:

       (1) the nature and content of the information or influence, including whether
       the content was cumulative of other evidence adduced at trial; (2) the number
       of jurors exposed to the information or influence; (3) the manner and timing
       of the exposure to the juror(s); and (4) the weight of the evidence adduced at
       trial. No single factor is dispositive. Instead, trial courts should consider all
       of the factors in light of the ultimate inquiry—whether there exists a
       reasonable possibility that the extraneous prejudicial information or
       improper outside influence altered the verdict.

Adams, 

 (footnote omitted).

        The record reflects that not all jurors heard the deputy’s comment. When the trial
court became aware of the communication, it promptly alerted both parties and then
questioned the deputy and the jury (as a group) about the extraneous communications. As
the State notes in its brief, this was the proper procedure. See Smith, 

.
The trial court then instructed the entire jury to disregard anything the deputy may have
told it and base its verdicts solely on the law as instructed by the trial court. No juror told
the trial court they did otherwise. The jury is presumed to follow the trial court’s
instructions unless there is “clear and convincing evidence that the jury failed to follow the
trial court’s instructions.” State v. Harbison, 

 (Tenn. 2018). And as
                                            - 18 -
examined above, extensive evidence of premeditation was presented during trial. Under
these circumstances, there is not a reasonable probability that the deputy’s comments
altered the jury’s verdict. Thus, any error was harmless beyond a reasonable doubt.

       Defendant’s contention that the sequestered jury was improperly separated is
without merit, as those jurors who were not present in the jury room during the deputy’s
improper communication were taking a “smoke break” accompanied by a deputy. As the
State observes in its brief, the modern test for determining whether a jury has been
“separated” is “whether a juror passes from the attendance and control of the court officer.”
State v. Bondurant, 

 (Tenn. 1999), no perm. app. filed. The jurors in
this case may have been physically separated at the time of the extrajudicial
communication, but they were under the control of deputies, so there was no “separation”
within the meaning of relevant statutes and court rules. See State v. Bargery, No. W2016-
00893-CCA-R3-CD, 

, at *80 (Tenn. Crim. App. Oct. 6, 2017) (“[T]he
sequestration rule does not literally require each juror to remain in the presence of the other
jurors at all times; rather, the ‘real test is whether a juror passes from the attendance and
control of the court officer.’” (quoting Bondurant, 

)).

       Finally, regarding Defendant’s contention that some jurors deliberated when not all
jurors were present, Defendant points the court to no authority stating that such actions
constitute reversible error. However, as stated above, defense counsel did not question the
jurors after returning their verdict, so Defendant has failed to establish that any improper
deliberations occurred. Even if the jury’s inquiry about the definition of “premeditation”
could be considered deliberation, the evidence cited above was more than sufficient to
rebut any presumption of prejudice that may have resulted from such actions.

       Accordingly, Defendant is not entitled to relief on this issue.

                                       D. Juror Breaks

        Finally, Defendant argues that the trial court erred when it ordered that jurors could
not have further smoke breaks during their deliberations. The State contends this issue has
no merit because Defendant presented no proof that the jury reached an impasse during
deliberations or that any juror felt undue pressure or was impacted by the trial court’s
limitations on smoke breaks. We agree with the State.

       While addressing the deliberation irregularities discussed above, the court told the
jury “we’re not going to do [smoke breaks] any more” because “breaking the jury apart is
dangerous anyway.” But after defense counsel repeatedly objected, the court said that it
would “amend” its ruling and “authorize a smoke break” when the court thought it “time
for them to take a smoke break.”
                                            - 19 -
       In his brief, Defendant argues, “it is common knowledge as to the adverse effects
on smokers when they are deprived of the opportunity to take smoke breaks, especially
during particularly stressful endeavors,” yet he also acknowledges “there is . . . no
Tennessee jurisprudence addressing the question as to whether jurors are entitled to smoke
breaks during their deliberations.”6

        “Unless the trial judge’s actions cause a jury to reach a verdict in such a manner that
it is patently not their free and untrammeled verdict, a new trial will not be granted.”
Rushing v. State, 

 (Tenn. Crim. App. 1977); see also Kersey v. State,

 (Tenn. 1975); Weston v. State, 

 (Tenn. Crim. App. 1973).
We do not see how a trial court’s denial of smoke breaks would cause undue pressure on
jurors to reach a verdict that was not “free or untrammeled.” We also note that Defendant
has presented no evidence, such as the testimony of jurors or court personnel, suggesting
that jurors demanded a break from their deliberations and were denied such a request.

       In the overall context of the issue, we see nothing to show any judicial misconduct
that impaired the jury. Defendant, therefore, is not entitled to relief.

                                            IV. Conclusion

        For the foregoing reasons, the judgments of the trial court are affirmed. We remand
the case to the trial court for resolution of issues related to the change of venue, as set forth
in this opinion.



                                                     ____________________________________
                                                     MATTHEW J. WILSON, JUDGE




        6
          As the State notes in its brief, other states addressing this issue have found no error in a trial
court’s restricting smoke breaks. See People v. Cetwinski, 

 (Ill. Ct. App. 2018);
State v. Sanders, 

 (Ohio 2001). At least one jurisdiction has rejected a defendant’s
claims regarding the adverse effects of denying smokers the opportunity to smoke. See State v. Elmore,

 (Ohio 2006).
                                                  - 20 -