Davidson-DM-92 IN THE CRIMINAL COURT FOR KNOX COUNTY, TENNESSEE DIVISION I STATE OF TENNESSEE I v. NO. 86216 JUDGE BLACKWOOD By Designation LEMARICUS DEVALL DAVIDSON DEFENDANT SECOND AMENDED MOTION FOR NEW TRIAL: THE TRIAL JUDGE FAILED T0 EXCERISE HIS DUTY TO ACT AS THIRTEENTH JUROR AND UNDER THE CIRCUMSTANCES OF THIS CASE A SUBSTITUTE JUDGE CANNOT ACT AS THIRTEENTH JUROR AND A NEW TRIAL IS REQUIRED Comes the defendant. Lemaricus Davidson, by and through undersigned counsel, pursuant to Tennessee Rules of Criminal Procedure 29 and 33, 34 and the Fourth, Fifth Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States, and Article I. 7.8.9.16. and 17 of the Tennessee Constitution, the other authorities cited herein and their progeny. and respectfully submits this amendment to his previously filed Motion for New Trial [Davidson- and First Amended Motion for New Trial [Davidson-DM-91]. In addition to the grounds previously stated in his motion for new trial. and first amended motion for new trial, Mr. Davidson respectfully submits that Davidson-DM-92 presiding Judge Richard Baumgartner was impaired by the use of narcotics and thus failed to perform his role as 13"' juror pursuant to Rule 33 of the Tennessee Rules of Criminal Procedure, thus depriving Mr. Davidson of a fair trial and sentencing. 1. Heightened Standard of Due Process in this case, and in the cases of each of the co--defendants, the State sought the death penalty, the ultimate penalty that the laws of the State of Tennessee permit to be inflicted upon a person properly convicted and properly sentenced for first degree murder. Only Mr. Davidson has been sentenced to death. Death penalty cases are afforded protections exceeding those applicable to other types of cases. All death penalty cases require a heightened standard of due process and careful scrutiny of error. See Sawyer v. Smith, 497 U.S. 227, 244 (1990); 2am' v. Stephens, 462 US. 862, 885 (1983); Duggard v. Adams, 489 US. 401, 414 (1989); Satterwhite v. Texas, 486 U.S. 249, 250 (1988). Although not all errors justify reversal "the severity of the sentence mandates a careful scrutiny of any curable claim of error." Zant v. Stephens, 482 US. 862, 885 (1983). in the case at bar, presently in the motion for new trial stage, final judgment has not been entered. Accordingly, the errors addressed below, and those addressed in other motions for new trial flied on behalf of Mr. Davidson, are most curable now. As the authorities discussed below mandate, no valid Davidson-DM-92 judgment may be entered in this case, and Mr. Davidson's conviction and sentence must be vacated and a new trial granted. ll. The Duty of the Trial Judge to Act as Thirteenth Juror Rule 33 of the Tennessee Rules of Criminal Procedure provides that the "court may grant a new trial as required by law" either on its own initiative or upon motion of the defendant. Tenn. R. Crim. Pro 33(a). Further, after a finding of guilty by a jury, the trial court is to review the weight of the evidence and may grant a new trial if It disagrees with the juries determination with regard to the weight of the evidence. Tenn. R. Crim. Pro. 33(d). Rule 33 is a codification of the common law thirteenth juror rule. State v. Carter, 896 119, 122 (Tenn. 1995) (finding that the common law thirteenth juror rule had be restored by the enactment of Tennessee Rule of Criminal Procedure 33(f). The language of Rule 33(f) is now found in Rule 4 The purpose of the thirteenth juror rule is to prevent a miscarriage of justice. State v. Moats, 906 431, 434-435 (Tenn. 1995) (citing State v. Johnson, 692 412, 415 (Tenn. 1885) (Drowota, J. dissenting.)) circuit judge hears the testimony, just as the jury does, sees the witnesses, and observes their demeanor upon the witness stand; that, by his training and experience in the weighing of testimony, and the application of legal rules thereto, he is especially qualified for the correction of any errors into which the jury by inexperience may have fallen, whereby they have failed, in their verdict, to reach the justice and right of the case, under the testimony and the charge of the Davidson-DM-92 court; that, in our system, this is one of the functions the circuit judge possesses and should exercise - as it were, that of a thirteenth Moats, 906 431, 433 (quoting Cumberland Telephone and Telegraph Co. v. Smithwick, 79 S.W. 803, 804 (Tenn. 1904.) A judge's duty to act as thirteenth juror is mandatory. Carter, 896 119, 122. Judicial review as thirteenth juror is a prerequisite to the entry of a valid judgment. Id. In the event that the trial judge is unable to continue after a verdict of guilt due to absence, death, sickness, or other disability a successor judge may complete the duties of the court. Tenn. R. Crim. Pro. 25. Where however, the successor judge concludes that they cannot perform the remaining duties as a result of the successor judge not having presided over the trial or for any other reason, the successorjudge may grant a new trial. Id. It is the trial judge, immediately after trial, that is in the same position as the jury to evaluate the credibility of witnesses and weight of the evidence. Moats, sos s.w.2o 431, 434. Accordingly, the trial judge is in the best position to evaluate the credibility of witnesses and when a successor judge is called upon to exercise the role of thirteenth juror, they must first determine whether the duties of the original judge, including assessing witness credibility, can be Davidson-DM-92 exercised by the successor judge. State v. Nail, 963 761, 765 (Tenn. Crim. App. 1997.) Where the trial court has failed to perform as thirteenth juror or performed improperly a new trial is required. State v. Duckworth, 919 52 (Tenn. Crim. App. (1995)). if the record is inadequate, or the successor judge determines they cannot fulfill the thirteenth juror role on the basis of the record, a new trial is required. See Nail, 963 at 765-66; State v. Biibrey,858 911, 915 (Tenn. Crim. App. 1993). Where the credibility of witnesses is essential to the exercise of the thirteenth juror role of the successor judge, a new trial should be granted. State v. Brown, 53 264, 275-76 (Tenn. Crim. App. 2000); see also State v. Biggs, 218 643, 655 (2006). In a first degree murder case, the court has a duty to exercise its thirteenth juror role in reviewing the sentence fixed by the jury as well. See Tenn. Code Ann. THE STATES THEORY AT TRIAL in sum, the State's theory of the offense at trial was that Channon Christian and Christopher Newsom were kidnapped in Ms. Christian's Toyota 4- runner from the parking lot outside of Kara Sowards Washington Ridge apartment by Mr. Davidson, his brother Letalvis Cobbins, and Letalvis' friend George Thomas. They were then brought back to the Chipman street residence rented by Mr. Davidson where all three were staying along with Mr. Cobbins' Davidson-DM-92 girlfriend Vanessa Coleman. Mr. Newsom was taken to railroad tracks and murdered shortly thereafter, dying after being bound, raped, and shot three times. His body was later burned. Simultaneously, the State alleged that Ms. Christian was held in the Chipman Street house by some combination of the four co-defendants -- whomever was not at the railroad tracks. The State contended that Ms. Christian was held captive, bound, and repeatedly sexually assaulted by Mr. Davidson and Letalvis Cobbins, for a long period of time before she was put in a trash can where she died of Fundamental to the State's theory was the premise that the perpetrators and victims were strangers to one another. At trial, the State relied heavily upon items of personal property belonging to the victims found inside Mr. Davidson's home, Mr. Davidson's fingerprints on two of the five garbage bags around Ms. Christlan's body, and Mr. Davidson's DNA on the lower leg and inside the crotch of the jeans Ms. Christian had last been seen wearing and on vaginal and anal specimens from Ms. Christian. IV. MR. THEORY AT TRIAL Mr. Davidson presented evidence directly contradicting the State's theory. Mr. Davidson contended that he had a previous relationship with the female victim, Channon Christian. At trial, Mr. Davidson presented alternative explanations for this evidence, and that it was his co--defendants, not Mr. Davidson-DM-92 Davidson who were responsible for the crimes inflicted upon Ms. Christian and Mr. Newsom. Evidence was presented through both prosecution and defense witnesses of drug use and possession by Ms. Christian and Mr. Newsom and that Mr. Davidson was a drug dealer. Evidence was also presented that Ms. Christian and Mr. Newsom had been seen in the area of Mr. Davidson's residence Ms. Christian had previously been seen with Mr. Davidson. Testimony at trial also established that Mr. Davidson's DNA on Ms. Christian's pants could have been placed there by transfer as a result of a consensual sexual relationship. in sum, it was Mr. Davidson's theory at trial that he knew Channon Christian, had a sexual relationship with her, and that he was not was not present at the time she and Mr. Newsom were murdered in his residence by his brother Letalvis Cobbins, his brother's friend George Thomas, and Letalvis Cobbins' girlfriend, Vanessa Coleman, who were visiting Mr. Davidson from Kentucky. Much of this testimony is outlined below. Mr. Davidson presented evidence to dispute not the existence of, but the interpretation of the forensic evidence presented by the State. Accordingly, the determination of the credibility of the testimony of the witnesses presenting these competing theories was the central issue at trial and is the crucial determination that must be made in evaluating Mr. Davidson's motions for new trial. Davidson-DM-92 V. CREDIBILITY OF WITNESSES AT TRIAL At trial, a number of witnesses provided testimony that supported Mr. Davidson's theory. State witness Josh Anderson testified that after he and a friend found Mr. Newsom's truck at Washington Ridge apartments, they removed a bag of marijuana and a "bowl" from the truck. Tr. 68'. State witness Kara Sowards testified that she had never been in the area of Knoxville around Cherry street where Mr. Davidson's residence was located. Tr. 97. She also testified that neither Ms. Christian nor Mr. Newsom would have gone to that neighborhood, Tr. 97-98, and insisted that would not have gone into that neighborhood "on their own." Tr. 112. Me. Sowards also identified a marijuana pipe found In her apartment during a search following Ms. Christian's disappearance. Tr. 113. She also testified that it would surprise her if Ms. Christian and Mr. Newsom were at the Exxon station at the corner of Magnolia and Cherry Street. Tr. 112. Xavier Jenkins, an employee of Waste Connections which is located near the Chipman Street residence rented by Mr. Davidson and Daphne Sutton, also testified at trial. Mr. Jenkins testified that while he was waiting for co--workers in the Waste Connections parking lot four people in a Toyota 4-runner drove by. Tr. The trial transcript is consecutively paginated. Thus, citations to the trial transcript wilt be to and page number. Citations to the Capital Sentencing hearing transcript will be to "Sentencing Tr." and page number. Davidson-DM-92 123-24. Mr. Jenkins testified that he "perceived" the four people in the 4-runner to be black men and that the driver was the tallest of the four. Tr. 125. Mr. Jenkins could not identify anyone who had been inside the 4-runner. Tr. 134. A Mr. Jenkins testified that he and a co-worker later saw the 4-runner parked down the street and pulled their vehicle close to it shining their lights on it, thinking that there might be kids in the vehicle making out. Tr. 130. He testified that upon pulling up to the vehicle, they could not see through the 4-runner tint to determine if anyone was inside. Tr. 130. He further testified that he could see through the tint at a distance. Tr. 130. Jerome Arnold testified on behalf of the State that he lived on Chipman Street and it was a quiet neighborhood most of the time. Tr. 142. However, while watching television on the night of Saturday, January 6, 2007, Mr. Arnold heard three pops he thought might have been fireworks. Tr. 137-38. Mr. Arnold testified that he did not recall ever seeing Ms. Christian or Mr. Newsom or Ms. Christian's 4-runner at Mr. Davidson's residence down the street. Tr. 140. Mr. Arnold admitted that he did not take note of the vehicles that may have been parked in front of residences on Chipman Street. Tr. 141. Roy Thurman, an employee of Coatings near the railroad tracks, testified on behalf of the State that he had observed smoke coming from the Davidson-DM--92 railroad tracks on the morning of Sunday, January 7, 2007. Tr. 143-144. Mr. Thurman testified that it was not unusual to see smoke near the railroad tracks because people frequently went up and down the railroad tracks in that area. Tr. ,145,149. Sandra Killen Bible, a Street resident during the relevant time period, testified that she had not seen Ms. Christian, Mr. Newsome, or Ms. Christian's 4--runner in that neighborhood before. Tr. 187, 190. Dan Crenshaw, a civilian employee of the Knoxville Police Department, testified that he Identified a fingerprint on a bank envelope in Ms. Christian's 4- runner as matching Lemarious Davidson, Tr. 208-209, and on a pay stub and photographs belonging to Channon Christian. Tr. 216--217. He also testified that he identified a partial palm print on the outermost garbage bag around Ms. Christian's body as matching Mr. Davidson. Tr. 215. Mr. Crenshaw also collected an Alprazolam prescription bottle from the 4-runner. Tr. 23. The prescription bottle also contained one tablet of Adderall. Tr. 23. Mary Newsom, Christopher Newsom's mother, testified that she had never known that Mr. Newsom had taken Adderall or smoked marijuana until trial. Tr. 344. She also testified that she had not heard Mr. Newsom talk about Cherry Street or Mr. Davidson. Tr. 344. Mrs. Newsom did not know where her some purchased his marijuana or amphetamines. Tr. 354. 10 Davidson-DM--9_2 Deena Christian, Channon Christian's mother, testified that she did know that Mr. Newsom smoked marijuana, but had not known that he took Adderall. Tr. 357-358. Mrs. Christian was not surprised, however, that he had used Adderall. Tr. 358. Mrs. Christian did know that her daughter used Adderrall, which was not prescribed to her. Tr. 358. Mrs. Christian testified that she had not heard her daughter talk about Lemaricus Davidson. Tr. 369. With regard to an insulin bottle and a bottle for Hydrocodone prescribed to Ronnie Smith, both of which were found inside Ms. Christian's 4-runner, Mrs. Christian testified that the insulin bottle belonged to a friend who was diabetic and that Channon Christian could not take Hydrocodone. Tr. 372. Mrs. Christian testified that Channon Christian took Alprazoiam for anxiety and obtained Adderall from Ronnie Smith. Tr. 376-77. Mrs. Christian did not know where Mr. Newsom purchased his marijuana. Tr. 391-92. Stacy Lawson, George Thomas' girlfriend, who had visited Mr. Davidson with her boyfriend prior to the weekend of Mr. Newsom and Ms. Christian's deaths testified that she had never seen Ms. Chrisitan's 4-runner at Mr. Davidson house nor had she ever seen the victims there. Tr. 426. A pack of Newport cigarettes had been recovered from Ms. Christian's 4-runner following her disappearance. Ms. Lawson testified that she, Vanessa Coleman, George 11 Davidson--DM-92 Thomas, and Letalvis Cobbins smoked cigarettes and preferred Newport brand. Tr. 444. She did not testify that Mr. Davidson smoked cigarettes. Darrin Williams, a.k.a. "Pimpin" testified that he purchased drugs from Lemaricus Davidson during the relevant time frame. Taylor Shaddix testified that she and Daphne Sutton, Mr. Davidson's girlfriend, were Oxycontin users and that they obtained their pills from Mr. Davidson. Tr. 461. On cross examination of Ms. Shaddix, a question was asked regarding Daphne Sutton being an exotic dancer. An objection to this question was sustained by the trial judge. Tr. 462. A later objection to a question to Daphne Sutton regarding her employment as an exotic dancer was also sustained. Tr. 531. Daphne Sutton testified that she had lived with Lemaricus Davidson until the last week of December 2006 and had been with him during the New Year's holiday week of 2007. Tr. 492-93. Ms. Sutton testified that when Lemaricus Davidson was staying with her at Brandi and Kassie's apartment late Sunday or perhaps early Monday, they had to call a man named Vince and ask him to leave money for her and Lemaricus behind a Buddy's BBQ so that they could get drugs. Tr. 506-508. Ms. Sutton also testified that Mr. Davidson would sometimes accept use of a vehicle in payment for drugs. Tr. 534. 12 Davidson--DM-92 Jennifer Millsaps of the Tennessee Bureau of investigations crime lab testified that Mr. Davidson's DNA had been found on vaginal and anal swabs taken from Ms. Christian, on the lower left leg and inside crotch area of her jeans, as well as on a number of pieces of cloth about which there was no dispute that they were materials regularly kept inside Mr. Davidson's residence. See Tr. At 818, 821, 835, 849, and 852. Ms. Millsaps also testified on cross examination that the DNA on Ms. Christian's jeans was consistent with transfer DNA. Ms. Millsaps acknowledged that it is possible that DNA from semen could transfer to the anal/perianal region. Tr. at 870. She also acknowledged that the location of the semen, and Mr. Davidson's DNA on the inside crotch of Ms. Cbristlan's jeans was consistent with vaginal drainage. Tr. at 871. The medical examiner, Dr. Darinka Mileusnlo--Polchan also testified that the location of the semen and Mr. Davidson's DNA on the jeans was consistent with semen being deposited during intercourse and the pants being put back on afterward. Tr. 985. The only sperm found in Ms. Christian's vagina, according to Dr. Mileusnlo--Polchan, belonged to Mr. Davidson, Tr. 1002, and could have survived there for2-3 days. Tr. 951-52. She further testified that the DNA found in the crotch of Ms. Christian's jeans could have been placed there by transfer. Tr. 1008. 13 Davidson-DM-92 Dr. also testified that Christopher Newsom's toxicology report showed levels of amphetamines, alcohol, and marijuana. Tr. 945-946. Ms. Christian's toxicology report was positive for alcohol. Tr. 988. During the defense's case, additional proof was presented regarding a prior relationship between Ms. Christian and Mr. Davidson as well as with regard to the DNA evidence. Ethel Freeman, a resident of Washington Ridge Apartments, and acquaintance of Mr. Davidson testified that she had seen Ms. Christian and Mr. Newsom at the Exxon station at the corner of Magnolia and Cherry Streets on the Saturday night when they were alleged to have been carjacked. Tr. 1048. Ms. Freeman also testified she had given curtains to Mr. Davidson that matched the color and pattern of the cloth bindings from Ms. Christian's body. Tr. 1056- 57. Jeff Bradley, who also lived on Chipman Street in January of 2007, also testified that he had seen Ms. Christian on Chipman Street and with Mr. Davidson prior to the night on which she and Mr. Newsom were allegedly carjacked and later murdered. Mr. Bradley testified that one or two nights before seeing police near a silver 4-runner, he had observed Mr. Davidson get out of a car accompanied by Ms. Christian. Tr. 1086-87. Mr. Bradley was adamant that the girl he had seen with Mr. Davidson and another female had been, Ms. 14 Davidson-DM-92 Christian. Id. Mr. Bradley in fact identified Ms. Christian as someone he had seen go into the Chipman Street house in a photo lineup presented him by the police. Tr. 1087. Melanie Carlisle of the Tennessee Bureau of investigations, Knoxville Crime Lab, also testified during the defense case. Ms. Carlisle testified that the level of amphetamines measured on Mr. Newsom's toxicology report was above a therapeutic level. Tr. 1124-25. Ms. Carlisle also indicated that Mr. Newsom's toxicology results indicated that he had smoked marijuana within the last day or so and had been an occasional user. Tr. 1125-26. Kelli Lewis of Bode Technology testified that her laboratory was asked to conduct YSTR DNA testing on a pair of panties that had been identified as belonging to Ms. Christian and on which the TBI lab had identified semen and a sperm but had not matched any male DNA. Tr. 1137-1138. Ms. Lewis testified that YSTR is specially designed to isolate male DNA thus preventing it from being masked by female DNA. Tr. 1134. Ms. Lewis testified that a male DNA profile had been isolated from the area of the panties where the TBI had identified a sperm. Tr.1138. The male profile did not match any of the DNA profiles of any of the males for whom she had been provided reference DNA samples which included Mr. Davidson. Tr. 1137-39. 15 Davidson-DM-92 The witnesses testimony presentedat trial makes it just as plausible that Mr. Davidson sold drugs, and knew Ms. Christian as a result of drug dealing, had a prior relationship with her that included consensual sexual activity, and that it was his brother Letalvis and his friends that were responsible for the rape and murder of Ms. Christian and Mr. Newsom. Mr. Davidson's fingerprints and DNA were found on items found inside his house. Mr. Davidson's DNA was found on Ms. Christian's body and clothing in areas in which it would be equally plausible to find after a consensual sexual encounter as opposed to a criminal assault. It was Letalvis' DNA that was so abundant as to be found in numerous locations on Ms. Christian's clothing and bindings. The testimony established that it was blunt force trauma that caused the majority of the brutal injuries to Ms. Christian's buttocks and vaginal area, not penetration even by rape. There was no evidence placing Mr. Davidson near the railroad tracks when Christopher Newsom was murdered. Thus the jury and this court acting as thirteenth juror. must make determinations about which of the witnesses are more credible and which explanation of events is to be believed. Thus, witnesses credibility determinations are the essential issue that must be determined by the Court in functioning as thirteenth juror. "it is difficult to see how a trial judge who has not heard the evidence and who has not seen 16 Davidson--DM--92 the witnesses can act as the thirteenth juror when weight and credibility are issues." State v. Brown, 53 26 (2000). It is immediately after trial when the judge who witnessesthe proceedings is in the same position as the jurors to weigh the evidence and credibility of witnesses. State v. Moats, 906 431, 434 (1995). It is for this reason that a new trial is required where the thirteenth juror function was not properly exercised. See Id. The testimony discussed above and the credibility of the witnesses providing it was a crucial issue for the jury and is now central to the Court's thirteenth juror function. Thus, under the circumstances of this case the successor. judge of this Court, cannot act as thirteenth juror in resolving which witnesses and which testimony noted above were to be credited. Vl. CREDIBILITY OF WITNESSES AT SENTENCING PHASE At the sentencing phase of the trial, the State presented evidence of Mr. Davidson's prior aggravated robbery conviction and relied upon the trial testimony in support of the aggravating factors they argued supported the imposition of the death penalty. Sentencing Tr. 20. The defense argued that mitigating factors outweighed any aggravators and presented the testimony of several mitigating witnesses. Rosalind Andrews, a mitigation specialist, testified that she had conducted an investigation of Mr. Davidson's social history. Mrs. Andrews testified that Mr. 17 Davidson-DM-92 Davidson's mother Daniella ("Nell") was raised by an alcoholic mother in a home filled with violence, incest, and alcoholism. Sentencing Tr. 78. As a child, Nell was sexually abused by different family members and witnessed a murder in her home at age 8. Sentencing Tr. 78. Nell gave birth to her first child, a daughter, at the age of 15 and her second child, Mr. Davidson, at the age of 16. Sentencing Tr. 80-81. Ultimately, Nell had 6 children by 5 different men, none of whom were actively involved in their children's lives. Sentencing Tr. 82-83. Nell also developed an addiction to crack cocaine, Sentencing Tr. 85-86, and turned to prostitution. Sentencing Tr. 89. As a child, Mr. Davidson attended a different school almost every year depending on whether he was living with his mother or if the family was staying with his Aunt Rose Chew. Sentencing Tr. 85-88. When in school, Mr. Davidson struggled with reading and was diagnosed with a developmental reading disorder. Sentencing Tr. 118. Mr. Davidson was sexually assaulted by a male teenage neighbor. Sentencing Tr. 86. Nell also regularly subjected her children to physical abuse including beating them with extension cords. Sentencing Tr. 88. Even when the family was living with Aunt Rose, whose home was arguably more stable, they were still subjected to abuse. Aunt Rose also had a drug addicted son living in the home and her husband sexually abused Mr. Davidson's older sister for four years from the age of eight to twelve. Sentencing Tr. 113. 18 Davidson-DM--92 When Aunt Rose was dying, from cancer, and with Nell not there, the children began living wherever they could find a place to stay. Sentencing Tr. 90-91. Mr. Davidson turned to stealing food from a local grocery store to feed himself and his siblings. Sentencing Tr. 91. Ultimately, Mr. Davidson was placed in State custody as a teenager. Sentencing Tr. 91. After what was supposed to be a brief detention in State custody, Nell never came to the courthouse to pick Mr. Davidson up upon his release. Sentencing Tr. 91. Mr. Davidson lived at the court house for two weeks before being placed in a group home run by Ted and Alice Rhea. Sentencing Tr. 91. Though most children stayed in the group home only 60-90' days, once again Mr. Davidson was forgotten, this time by DCS. Sentencing Tr. 93. After several months, Alice Rhea made arrangements for Mr. Davidson to live in a foster home with Flo and Carl Rudd. Sentencing Tr. 93-94. Mr. Davidson's uncle, Hugh Wilburn, confirmed the testimony of Mrs. Andrews about Mr. Davidson's social history including Ne|l's witnessing a murder as a child. Sentencing Tr. 136. Mr. Wilburn also testified that his sister Neil A suffered from bi--polar disorder. Sentencing Tr. 136, 139. Mr. Davidson's sister Laquitta Boddie confirmed that the children including Mr. Davidson were physically abused. Sentencing Tr. 149. Jason_Bramblett, who worked at the Rhea's group home on weekends, testified that he had always trusted Mr. Davidson. Sentencing Tr. 167. He and 19 Davidson-DM-92 his wife thought so much of Mr. Davidson that at his now wife's suggestion, Mr. Davidson was a member of their wedding party. Sentencing Tr. 167. Alice Rhea testified that after Nell forgot about Mr. Davidson, Shelby County did the same, forgetting he was at her group home. Sentencing Tr. 279. She testified that Mr. Davidson did well at the group home often picking up extra chores. Sentencing Tr. 280. However, Ms. Rhea said that Mr. Davidson needed structure, Sentencing Tr. 283. According to Mrs. Rhea, Mr. Davidson was a thrown away child." Sentencing Tr. 282. Flo Rudd testified that when she met Mr. Davidson at a football game at the suggestion of Alice Rhea, her first impression of him was that he was cute, nice, clean cut, happy, well behaved, and polite. Sentencing Tr. 181. Flo and her husband Carl, at the insistence of their youngest son Seth, agreed to be Mr. Davidson's foster parents. Sentencing Tr. 182. They enrolled Mr. Davidson in Jackson Christian school where he excelled in athletics and arranged for him to be tutored by lsinell Newbill. Sentencing Tr. 183. During the time Mr. Davidson lived with the Rudd's, his mother, Nell, never called to check onhim. Sentencing Tr. 185. Ultimately, despite their efforts to help Mr. Davidson overcome his youth, the Rudds asked him to leave their home after Mr. Davidson was caught for the second time bringing marijuana into the house. Sentencing Tr. 190. Mr. 20 Davidson-DM-92 Davidson's foster brother Seth testified that Mr. Davidson was not violent and he never felt threatened by him. Sentencing Tr. 206. Carl Rudd testified that he had never been afraid of Mr. Davidson. Sentencing Tr. 219. He described him as kind, respectful, and polite. Sentencing 223. However, Mr. Rudd recalled that Mr. Davidson's brother Letalvis Cobbins, visited their home a few times and he was frightened of Mr. Cobbins. Sentencing Tr. 220. Mr. Rudd described Mr. Cobbins as having "something about h_im that was evil." Sentencing Tr at 220. Mr. Rudd called that he saw Nell on two occasions while Mr. Davidson was living with them and on both occasions she was chemically altered. Sentencing Tr. 221-22. Mrs. lsinell Newbill, who tutored Mr. Davidson in math, testified by video recording, that Mr. Davidson was friendly and open. Sentencing Tr. 232. She testified that she never had concerns when he was in her home and that on the occasions she asked Mr. Davidson for help with a household task he always helped her. Sentencing Tr. 232. Dr. Peter Brown, a testified about how Mr. Davidson's social history as a child was a predictor of delinquency and violence. Sentencing Tr. 240. Dr. Brown testified that information from more than 160 studies conducted in the U.S. and abroad had identified a number of risk factors that if present during childhood were predictors that the child would commit acts of delinquent 21 A Davidson-DM-92 and violent acts. Sentencing Tr. 240. Dr. Brown testified that these risk factors include neglect and rejection including a lack of boundaries and discipline, a fragmented family, large family size, poverty, role reversal where the child often becomes the one looking after the parent or siblings, lack of control and monitoring, lack of a male role model, violence, drugs, and crime in the home, physical, verbal, and emotional abuse in the home, witnessing parents committing criminal acts, and academic and social school failures. Sentencing Tr. 241-250. Dr. Brown testified that older children in the family are at greater risk. Sentencing Tr. 242-243. The earlier the age of onset of delinquent behavior by the child, the greater the risk that the child will commit future violent acts. Sentencing Tr. 248. Under these circumstances, by the age of 16 there is a 94% chance that the child will commit a violent crime by the age of 18. Sentencing Tr. 249. Dr. Brown also testified that generations exposed to these risk factors also plays a role in whether a child will commit violent acts. Sentencing Tr. 252. Dr. Brown testified that where five or more of the risk factors identified by the studies are present, the child is at much higher risk of committing violent crime. Sentencing Tr. 250-251. Dr. Brown testified that he had determined that all of the risk factors were present in Mr. Davidson's life before the age of 10. Sentencing Tr. 251. Additionally, Mr. Davidson was using drugs around age 10 22 Davidson-DM-92 or 11. Sentencing Tr. 257. According to Dr. Brown, although the risk factors are only predictors, the likelihood that under circumstances of Mr. Davidson's childhood, he would grow up to commit a violent crime "verges on statistical certainty," Sentencing Tr. 262, at 94% probability. Sentencing Tr. 263. Dr. Brown testified that the research shows no consistent results that intervention will be successful In preventing the child from becoming violent when the risk factors are removed at the age of sixteen. Sentencing Tr. 256. Dr. Brown testified that when sober, Mr. Davidson knows the difference between right and wrong. Sentencing Tr. 275. Dr. Brown also testified that when in a structured environment and sober, Mr. Davidson displayed no violence. Sentencing Tr. 259-60. Dr. Brown testified that this was a predictor of Mr. Davidson's behavior if he were incarcerated. Sentencing Tr. 260. Tennessee Code Annotated ?39-1 3--204 contemplates that the trial court must evaluate capital sentencing proceedings under the standards governing motions for new trial. Tenn. Code Ann. This should require that the trial judge act as thirteenth juror with regard to the sentencing proceedings and the weighing of aggravating and mitigating sentencing factors in the context of a capital case. In this case, the jury elected to impose a sentence of death on each of the 4 death eligible counts of conviction for the murders of Channon Christian and Christopher Newsom. See Sentencing Tr. 355. The trial judge 23 Davidson-DM-92 stated that the jury had listened to the aggravating and mitigating factors and determined that the appropriate sentence was death and that it was therefore his duty to impose the sentence of death by lethal injection. Id. The judge made no further comment about the jury's sentencing determination and made no finding that he had also weighed the aggravating and mitigating circumstances. id. The trial judge, due to his impairment by narcotics and criminal activities, did not continue to the present motion for new trial proceedings, and thus never effectuated the courts mandatory duty to act as thirteenth juror in the sentencing context. The credibility of the witnesses presented at the sentencing phase on behalf of the defendant, and the weight of their testimony in mitigation, must certainly be of utmost importance when the consequence of that preceding is that Mr. Davidson should be killed. A capital sentencing hearing, as the Court no doubt recognizes, is an emotional and deeply personal affair. Those emotions cannot translate onto the pages of a transcript. Accordingly a successorjucige, armed only with the written record, and having been deprived of the opportunity to hear and observe the witnesses at sentencing, can hardly be said to be in the same position as the jury to evaluate the credibility of the witnesses and the weight of mitigating evidence. in fact, it is just that which the thirteenth juror rule requires -- that the judge function as one of the jurors. Without the opportunity to 24 Davidson-DM-92 personally observe the witness with only the record to guide the successor judge, the Court is in too tenuous and weakened position to act as thirteenth juror and execute Mr. Davidson. "In the trial forum alone is there a human atmosphere" that cannot be reproduced with a written record. State v. Dankworth, 919 52, 55 (Tenn. Crim. App. 1995.) it is for this reason that appellate courts cannot and will not determine the weight and credibility of witnesses testimony and why that is reserved solely for the trial judge. See Id. Certainly, this human atmosphere could not be more important than in a capital sentencing. VII. UNRELIABILTY OF THE RECORD As outlined above, the credibility of witnesses at trial and sentencing was of primary importance in this case. Accordingly, the successor judge is in no position to carry out the Court's mandatory duty to act as thirteenth juror on the basis of the record alone. See State v. Moats, 906 431, 434-435 (Tenn. 1995) (See also, Drowata, J. dissenting, Moats, 906 at 436 stating that the Court must have an independent recollection of the trial proceedings and a simple reading of the record on remand if the remedy for a failure under the thirteenth juror rule would not suffice.) Furthermore, as a result of the trial judge's criminal conduct and dependence on drugs during the course of the trial and pre- trial proceedings, the record itself, as it now stands before the Court, is suspect. 25 Davidson-DM-92 Following the trial of this matter, ample evidence has come to the attention of counsel and the Court that the trial judge was addicted to prescription pain pills and committing criminal acts. The trial judge has in fact entered a plea of guilty pursuant to a plea agreement to a small portion of his criminal conduct. in fact, as early as 2008, the trial judge admitted to his physician that he was an addict and was advised at that time to retire from the bench. Before and during the course of Mr. Davidson's trial, the, judge was visiting a former defendant in his court, with whom he was having an illicit relationship, while she was in the hospital, and illegally obtaining drugs through her and delivering illegal drugs to her. Other specific instances of the trial judge's illegal conduct, drug seeking, and addiction are more fully outlined in Mr. Davidson's First Amended Motion for New Trial and are specifically incorporated herein by reference. Davidson-DM-91 It is under the specter of his own addiction and impairment, and his own illegal conduct, that the trial judge presided over Mr. Davidson's pre-trial hearings and trial from which the record now before this court was created. it is in this context of addiction and impairment in which the trial judge ruled on evidentiary issues, determined pre-trial motions, ruled on Mr. Davidson's motions for mistrial and motion for judgment of acquittal during the course of trial, observed the witnesses, and controlled the conduct and course of the proceedings that 26 Daviclson--DM-92 resulted in the record before the court. it is not only improbable, but impossible that the trial judge's function in determining these issues was not affected by his impairment. With a sober judge, the record at this stage of the proceedings may have different, or more worthy of this Court's reliance. Unfortunately, the record as it exists is tainted by the trial judge's conduct and should not be relied upon by this Court in exercising its role as thirteenth juror. 27 Davidson--DM--92 CONCLUSION For thesereasons, and those outlined" in Mr. Davids.on's Motion for New Trial [Davidson-DM~90] and First Amended Motion for New Trial [Diavidson-DM- 91], Mr. Davidson has been denied the Constitutiorial protections to which all defendants are entitled, and which must be strictly guarded, especially in the context of a capital case. Accordingly, Mr. Davidson moves this Honorable Court for the entry of an Order vacating his conviction: and sentence and granting him a new trial. Respectfully submitted this 30*" day of September 2011, e? ,0 DAVID 012408) Po. Box 398 ?gamf Knoxville, Tennessee 37901-0398 (ass) 54420010 DOUGLAS A. TRANT (BPR #006871) 900 8. Gay Street Suite 15020 Knoxville, TN 37902 (865) 525-7980 Counsel for Lell/larieus Davidson 28 Davidson--DM-92 CERTIFICATE SERVICE I hereby certify that a true and exact oopy of the foregoing pleading was forwarded, via e-mail transmission, by hand delivery and/or by placing the same in the United States mail, with proper postage affixed thereon, to: Randall E. Nichols, District Attorney General Leland Price. Assistant District Attorney General Ta Kisha Fitzgerald, Assistant District Attorney General City County Building 400 Main Street, Suite 168 Knoxville, Tennessee 37902 W. Thomas Dillard, Esq. Stephen Ross Johnson, Esq. Ritchie, Dillard, Davies Johnson, P.C. 606 W. Main Street, Suite 300 Knoxville, Tennessee 37902 This 30*" day of September, 2011. gene 29 Kimberly A. Parton, Esq. PO. Box 116 Knoxville, Tennessee 37901 Russell T. Greene, Esq. 80.0 8. Gay Street, Suite 1920 Knoxville, Tennessee 37902 Theodore H. Lavit, Esq. One Court Square P.O. Box 676 Lebanon, Kentucky 40033 om/lo Davidson-DM-'l 03 IN THE CRIMINAL COURT FOR KNOX COUNTY, TENNESSEE STATE OF TEN I 557-' A. we v. No. 862168 I JUDGEKURTZ 7 By Designation 0* LEMARICUS DEVALL DAVIDSON I E?ais tel'? i 53': no C3 :2 as re re. DEFENDANT THIRD AMENDED MOTION FOR NEW Comes the defendant, Lemaricus Davidson, by and through undersigned counsel, pursuant to Tennessee Rules of Criminal Procedure 29 and 33, 34 and the Fourth, Fifth Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States, and Article I, 7,8,9,16, and 17 of the Tennessee Constitution, the other authorities cited herein and their progeny, and respectfully submits this amendment to his previously filed Motion for New Trial [Davidson- First Amended Motion for New Trial [DavidsOn--DM-91], and Second Amended Motion for New Trial [Davidson-DM--92]. In addition to the grounds previously raised, Mr. Davidson respectfully submits that the following issues are additional error warranting the grant of a Davidson-DM-103 i new trial, arrest ofjudgment, orjudgment of acquittal pursuant to Tenn. R. CrimThe trial Court erred in overruling Mr. Davidson's objection to speculative testimony of Dan Crenshaw as to how a partial palm print allegedly belonging to Mr. Davidson could have been placed onto a plastic garbage bag and thereby permitted Mr. Crenshaw to speculate and testify about matters outside the scope of his expertise. Tr. at 225. 2. The trial Court erred in not ruling on, thereby overruling, Mr. Davidson's objection to the admission of a photo of one of the alleged victims in this case found at the crime scene that depicted the victim alive and well where the Court had ruled pretrial that photos depicting the alleged victims while living were to be excluded from evidence during the guilt/innocence phase of trial. Tr. at 323. Following the objection by defense counsel, the Court ruled only that they "would talk about it some other time." 3. The trial Court erred by permitting the testimony of Mr. Mitchell, as elicited by the state for the purposes of attempting to establish a record for appeal on a pretrial suppression issue, about what efforts he would have undertaken with regard to Mr. Davidson's rented residence if it had it in fact been abandoned. Tr. 403. Davidson-DM-103 4. The trial Court erred by permitting the jury, during deliberations for the guilt/innocence phase of trial, to review the video recording of a statement Mr. Davidson had given to law enforcement in the courtroom and in the presence of the public, the press, and relatives and friends of the victims. Tr. 1333-'-1337. CONCLUSION For these reasons, and those outlined in Mr. Davidson's Motion for New Trial [Davidson--DM--90], First Amended Motion for New Trial [Davidson--DM-91], and Second Amended Motion for New Trial [Davidson--DM-92], Mr. Davidson moves this Honorable Court for the entry of an Order vacating his conviction and sentence and granting him a new trial. Respectfully submitted this 6 day of December, 2012, DAVID (B 012408) P.O. Box 398 Knoxville, Tennessee 37 -0398 (865) 544-2010 24- 7049 04.5 DOUGLAS A. TRANT (BPR #0087871) P.O. Box 398 2 Knoxville, Tennessee 37901-0398 (885) 544-2010 Counsel for LeMaricus Davidson Davidson-DlVl-103 CERTIFICATE OF SERVICE I hereby certify that a true and exact copy of the foregoing pleading was forwarded, via e--mail transmission, by hand delivery and/or by placing the same in the United States mail, with proper postage affixed thereon, to: Randall E. Nichols, District Attorney General Leland Price, Assistant District Attorney General Ta Kisha Fitzgerald, Assistant District Attorney General City County Building 400 Main Street, Suite 168 Knoxville, Tennessee 37902 Kimberly A. Parton, Esq. P.O. Box 116 Knoxville, Tennessee 37901 Russell T. Greene, Esq. 800 8. Gay Street, Suite 1920 Knoxville, Tennessee 37902 W. Thomas Dillard, Esq. Theodore H. Lavit, Esq. Stephen Ross Johnson, Esq. One Court Square Ritchie, Dillard, Davies Johnson, P.C. P.O. Box 676 606 W. Main Street, Suite 300 Lebanon, Kentucky 40033 Knoxville, Tennessee 37902 This 5 it' day of December, 2012. DAVID MTELDRIDGV