State of Tennessee v. Prince Adams

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

November 8, 2012 Session Heard at Memphis

STATE OF TENNESSEE v. PRINCE ADAMS

Appeal by Permission from the Court of Criminal Appeals

Criminal Court for Shelby County

No. 0606987 James M. Lammey, Jr., Judge

No. W2009-01492-SC-R11-CD - Filed May 16, 2013

The defendant was convicted of first degree premeditated murder and received a life

sentence. In his appeal to the Court of Criminal Appeals, he alleged that the evidence was

insufficient to support his conviction; that a discharged alternate juror improperly

communicated with the jury foreman; and that the trial court erred by failing to exclude from

the evidence certain photographs and recordings and by failing to provide a special jury

instruction on diminished capacity. The Court of Criminal Appeals affirmed the conviction

and sentence. This Court granted permission to appeal to address whether the

communication by the alternate juror to the foreman entitled the defendant to a new trial.

Because the State successfully rebutted the presumption of prejudice that accompanies an

improper communication with a juror, we find no error and, therefore, affirm the judgment

of the Court of Criminal Appeals.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal

Appeals Affirmed

G ARY R. W ADE , C.J., delivered the opinion of the Court, in which J ANICE M. H OLDER,

C ORNELIA A. C LARK, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.

Brett B. Stein (at trial and on appeal) and Larry Diamond (at trial), Memphis, Tennessee, for

the appellant, Prince Adams.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;

Cameron L. Hyder, Assistant Attorney General; Rachel E. Willis, Senior Counsel; William

L. Gibbons, District Attorney General; and Patience Branham and David Zak, Assistant

District Attorneys General, for the appellee, State of Tennessee.

OPINION

I. Facts and Procedural History

On the night of April 16, 2006, Prince Adams (the “Defendant”) took two Ambien 1

pills while at his mother’s residence in Shelby County. In the early morning hours of the

following day, April 17, 2006, the Defendant left his mother’s residence in an automobile

driven by his girlfriend, Ohrdra Flowers (the “victim”).2 At some time later in the day, the

Defendant was involved in a minor car accident while driving the victim’s car. When Officer

Courtney Cunningham of the Memphis Police Department arrived at the accident scene at

approximately 8:50 p.m., he asked the Defendant whether he had consumed any alcohol. The

Defendant, who appeared incoherent and unsteady on his feet, admitted that he had taken the

Ambien to help him sleep. When Officer Cunningham noticed blood on the front seat of the

car, the Defendant claimed that he had been involved in a fight with his “girlfriend’s

boyfriend” and had “cut him.” Officer Cunningham did not inquire further about the blood

but turned his attention to determining whether the Defendant had been driving under the

influence of an intoxicant. Because of the Defendant’s large size and incoherent state,

Officer Cunningham decided not to conduct any field sobriety tests and, instead, issued a

misdemeanor citation and called for an ambulance to transport him to the hospital.

Later that evening, the Defendant checked into the Amerisuites Motel, which was

located across the street from the hospital, and paid in cash for two nights. The next day,

April 18, 2006, he telephoned his cousin, Andra Smith, to discuss a fight he had with the

victim. He asked Smith to meet him so he could give him some audiotapes. Because Smith

was unable to go to the motel, the Defendant left the tapes in Smith’s car. In one of the

tapes, the Defendant recounted his actions over the prior two days and made the statement

that he would kill the victim if he discovered that she was cheating on him. After hearing

this, Smith tried to make contact with the victim but was unsuccessful. Later, the Defendant

telephoned to ask Smith to pick him up at the motel because police officers were present.

When Smith arrived, the police officers were still at the motel, but the Defendant was

allowed to leave with Smith. Smith then drove to the residence of the Defendant’s father.

When no one answered the door, the Defendant became upset and walked down the street

at a hurried pace, crying and insisting upon seeing the victim. The Defendant then informed

Smith that on the night of April 16, 2006, he had taken two Ambien pills at his mother’s

residence before leaving with the victim in her vehicle. While they were driving, the victim

admitted to the Defendant that she had cheated on him, and he killed her with his

1

Ambien is a prescription sleep-aid medication.

2

Consistent with the policy of this Court, although much of the record refers to the victim as

“Ohdra” or “Nicki,” we have stated her name as “Ohrdra Flowers” as provided in the indictment and

charging documents.

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pocketknife. After describing these events, the Defendant refused to return to Smith’s car

or to turn himself in to the police until he saw the victim’s body. Smith agreed to take the

Defendant to view the body on the condition that the Defendant surrender to the police

afterward.

According to Smith, the Defendant led him to a park near an elementary school where

they found the body lying among the rocks on the slope of a drainage ditch. Upon seeing the

body, the Defendant became hysterical, climbed down the slope, and shouted repeatedly,

“[S]he didn’t deserve this.” When he reached the victim, the Defendant took his pocketknife

from her body, removed his shirt, placed a photograph of the victim over his chest, and

started gesturing as if to stab himself. Smith pled for the Defendant to stop and called 911.

The police responded to the call and took the Defendant, who had not seriously injured

himself, into custody.

During the police interview, the Defendant admitted responsibility for the victim’s

death and provided a sworn statement to that effect. He stated that the last time he saw the

victim alive was in her car on April 17, 2006, between 12:00 a.m. and 1:30 a.m. According

to the police, the Defendant explained that when the victim bluntly informed him that she had

failed to answer his phone calls because she was having sex with another man, “[he] lost it,

and [he] attacked her.” He then acknowledged that he had disposed of her body in a park

next to Cromwell Elementary School. The Defendant claimed that he blacked out after

learning of the victim’s infidelity and asserted that he only knew the details of her death and

the location of her body because of a dream.

The police detected several inconsistencies in the Defendant’s statement. For

example, although the Defendant asserted that he had stabbed the victim from the passenger

side of her car, he also claimed that he had been driving her car. Moreover, the autopsy

report included several color photographs indicating that the vast majority of the victim’s

twenty-seven stab wounds were inflicted to the left side of her body around her neck and

breast, which indicated that she was stabbed by the Defendant while he was either sitting in

the driver’s seat or standing outside of the driver’s side door. Forensic testing confirmed that

the blood of the victim was in her car and on the Defendant’s pocketknife.

The Defendant’s trial was heard by a jury in the Criminal Court for Shelby County

over the course of five days in March of 2009. At the conclusion of the trial but before jury

deliberations, the trial court randomly selected two of the fourteen jurors as alternates,

excused them from the courtroom, and discharged them from further service. The trial court

then delivered a few final instructions to the remaining twelve members of the jury, who

deliberated for three hours before adjourning for the night. After further deliberations on the

next day, the jury returned a verdict of guilt as to the charge of first degree premeditated

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murder. Following the announcement of the verdict, Bently Goodwin, the jury foreman,

informed the trial court that one of the discharged alternate jurors had left him a note in his

hotel room the day before, stating something to the effect of “Jackie and I think guilty, first-

degree murder – or guilty, first degree.” 3

At the hearing on the Defendant’s motion for a new trial, the jury foreman testified

that he had found the note in his room on the evening after the alternate jurors were

discharged but before the jury began its deliberations.4 He stated that he threw the note

away, chose not to share the contents or existence of the note with any of the other jurors, and

made no mention of the note during the jury’s deliberations. Although the Defendant

objected to any testimony by the foreman as to whether the note actually affected his opinion

of the case, the trial court ruled that the State would be permitted “to ask whatever questions

they need to ask to get . . . all the information needed,” cautioning that only proper

information would be considered. In response to the State’s questioning, the foreman

testified that the note did not impact his or any other juror’s assessment of the evidence in

any way. The trial court denied the Defendant’s motion for a new trial, holding that there

was no likelihood that the note or its contents had “actually affected deliberations.”

On direct appeal to the Court of Criminal Appeals, the Defendant argued that he

should receive a new trial because the note left by the discharged alternate juror was an

improper communication that affected the verdict. He also asserted that the evidence was

insufficient to support his conviction for first degree murder, that the trial court erred by

admitting certain photographs of the victim and the audiotape recordings made by the

Defendant, and that the trial court should have granted his request for a special jury

instruction on diminished capacity. The Court of Criminal Appeals affirmed the Defendant’s

conviction and sentence. State v. Adams, No. W2009-01492-CCA-R3-CD, 2011 WL

4375332, at *15 (Tenn. Crim. App. Sept. 21, 2011). Although the Defendant presented these

same issues for review in this Court, we granted his application for permission to appeal

primarily to address whether the note received by the foreman qualifies as extraneous

prejudicial information or an outside improper influence that gave rise to a presumption of

prejudice, and, if so, whether the State successfully rebutted the presumption of prejudice

3

According to the jury foreman, “Jackie or something like that” was the female alternate juror who

was named in the note, which was left by the male alternate juror who had shared a hotel room with the

foreman. The record indicates that the names of the alternate jurors are Yolanda Bynum and Sanford Ipock.

4

This testimony conflicts with the timeline as documented in the record, which indicates that the jury

began its deliberations shortly after the alternates were excused. The statements of the trial court during the

hearing also confirm that the alternates were excused immediately prior to the jury beginning its

deliberations, such that the foreman could not have discovered the note until some time after the jury had

deliberated for three hours and before deliberations resumed the following morning.

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that accompanies such communications.

II. Analysis

A. Juror Misconduct

The Defendant first asserts that the trial court erred by failing to grant a new trial

because of the improper note left for the jury foreman by the discharged alternate juror.

Specifically, the Defendant argues that because the note included “a direct comment on the

issue of guilt,” it was an improper communication that tainted the jury deliberation process.

The Defendant further claims that the State failed to rebut the presumption of prejudice that

accompanies any kind of juror misconduct.

Our analysis begins with the proposition that every criminal defendant has a

constitutional right to a trial “by an impartial jury.” U.S. Const. amend. VI; Tenn. Const. art.

I, § 9; see also State v. Sexton, 368 S.W.3d 371, 390 (Tenn. 2012). Jurors must render their

verdict based only upon the evidence introduced at trial, weighing the evidence in light of

their own experience and knowledge. Caldararo ex rel. Caldararo v. Vanderbilt Univ., 794

S.W.2d 738, 743 (Tenn. Ct. App. 1990). When a jury has been subjected to either extraneous

prejudicial information or an improper outside influence, the validity of the verdict is

questionable. See State v. Blackwell, 664 S.W.2d 686, 688 (Tenn. 1984). Extraneous

prejudicial information has been broadly defined as information “coming from without.”

State v. Coker, 746 S.W.2d 167, 171 (Tenn. 1987) (internal quotation marks omitted). More

specifically, extraneous prejudicial information is information in the form of either fact or

opinion that was not admitted into evidence but nevertheless bears on a fact at issue in the

case. Robinson v. Polk, 438 F.3d 350, 363 (4th Cir. 2006); Blackwell, 664 S.W.2d at 688-

89; see also 27 Charles Alan Wright et al., Federal Practice and Procedure § 6075 (2d ed.

2012) [hereinafter Wright]. An improper outside influence is any unauthorized “private

communication, contact, or tampering directly or indirectly, with a juror during a trial about

the matter pending before the jury.” Remmer v. United States, 347 U.S. 227, 229 (1954); see

also Blackwell, 664 S.W.2d at 689; Wright § 6075.

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. Caldararo, 794 S.W.2d at 740-41. In

determining whether evidence is admissible to challenge a verdict, trial courts are guided by

Tennessee Rule of Evidence 606(b), which provides as follows:

Upon an inquiry into the validity of a verdict or indictment, a juror may not

testify as to any matter or statement occurring during the course of the jury’s

deliberations or to the effect of anything upon any juror’s mind or emotions as

influencing that juror to assent to or dissent from the verdict or indictment or

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concerning the juror’s mental processes, except that a juror may testify on the

question of whether extraneous prejudicial information was improperly

brought to the jury’s attention, whether any outside influence was improperly

brought to bear upon any juror, or whether the jurors agreed in advance to be

bound by a quotient or gambling verdict without further discussion; nor may

a juror’s affidavit or evidence of any statement by the juror concerning a

matter about which the juror would be precluded from testifying be received

for these purposes.

Tenn. R. Evid. 606(b) (emphasis added). As indicated, once the challenging party has made

the initial showing that the jury was exposed to extraneous prejudicial information or an

improper outside influence, a rebuttable presumption of prejudice arises and the burden shifts

to the State to introduce admissible evidence to explain the conduct or demonstrate that it

was harmless. Walsh v. State, 166 S.W.3d 641, 647 (Tenn. 2005) (citing Blackwell, 664

S.W.2d at 689; State v. Parchman, 973 S.W.2d 607, 612 (Tenn. Crim. App. 1997)).

At a hearing after the conclusion of the trial, the jury foreman testified that one of the

discharged alternate jurors left a note in his hotel room to the effect that both of the alternates

believed that the Defendant was guilty of first degree premeditated murder. The State has

properly conceded that the note qualified as an improper outside influence because it was a

direct, unauthorized “private communication . . . with a juror during a trial about the matter

pending before the jury.” Remmer, 347 U.S. at 229. “[A] discharged alternate [juror] is no

longer a member of the jury since the function of an alternate juror ceases when the case has

been finally submitted.” State v. Bobo, 814 S.W.2d 353, 355 (Tenn. 1991). Because the

Defendant has made the requisite initial showing that a member of the jury was subjected to

an improper outside influence by a discharged alternate juror, our primary concern is whether

the State successfully rebutted the presumption of prejudice that accompanies such

misconduct.

In Walsh, this Court settled any question as to the scope of inquiry permitted under

Tennessee Rule of Evidence 606(b), explicitly holding that the rule “prohibits introduction

of juror testimony concerning the effect on the juror of an improper

communication . . . during jury deliberations.” 166 S.W.3d at 643. The terms of the rule

therefore prohibit the State from introducing what might otherwise be perceived as the most

relevant evidence to rebut the presumption of prejudice—juror testimony as to whether the

extraneous prejudicial information or improper outside influence actually had any effect on

the verdict. While we acknowledge the limitations this presented to the State in its efforts

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to overcome the presumption, there are sound policy reasons for the exclusion of such proof.5

The proper procedure under Rule 606(b) is

for the judge to limit the questions asked the jurors to whether the

communication was made and what it contained, and then, having determined

that the communication took place and what exactly was said, to

determine—without asking the jurors anything further and emphatically

without asking them what role the communication played in their thoughts or

discussion—whether there is a reasonable possibility that the communication

altered their verdict.

Walsh, 166 S.W.3d at 648-49 (emphasis added) (quoting Haugh v. Jones & Laughlin Steel

Corp., 949 F.2d 914, 917 (7th Cir. 1991)).

In this instance, the trial court permitted the jury foreman, over the objection of the

Defendant, to testify that in his opinion the note did not impact his or any other juror’s view

of the proof in any way and had no impact on the jury’s verdict. Based upon the principles

confirmed in Walsh, the trial court clearly erred by allowing the State “to ask whatever

questions they need[ed] to ask to get . . . all the information needed” and by allowing the

foreman to testify as to what role the note may have played in the jury’s thoughts or

5

In Caldararo, our Court of Appeals commented upon the policy reasons for our rule:

[Rule] 606(b) represents a compromise between important public policies. It

enables the courts to protect the litigants from verdicts tainted by extraneous prejudicial

information or outside influence. At the same time, it recognizes the importance of the

inviolate nature of a jury’s deliberations.

The rule precludes inquiries into the jury’s deliberative process while allowing juror

testimony concerning objective incidents or events that constitute external or extraneous

influences on the jury. Thus, it insures that jurors will not be guarded in their deliberations

for fear of later scrutiny by others. It also prevents jurors whose views are in the minority

from manipulating the system by repudiating the verdict and thereby requiring a new trial.

794 S.W.2d at 741-42 (emphasis added) (citations omitted).

In Walsh, this Court observed that our Rule 606(b) had its origin in Federal Rule of Evidence 606(b)

and the common law rule precluding the “admission of jury testimony to impeach a verdict and the exception

for juror testimony relating to extraneous influences.” 166 S.W.3d at 646 (quoting Tanner v. United States,

483 U.S. 107, 121 (1987)); see also Blackwell, 664 S.W.2d at 688; Carruthers v. State, 145 S.W.3d 85, 92-93

(Tenn. Crim. App. 2003) (noting that the public policy considerations behind Rule 606(b) “include the

prevention of jury harassment, encouragement of free and open jury deliberation, promotion of finality of

verdicts, and the reduction of the incentive for jury tampering”).

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discussions. Nevertheless, for the reasons discussed below, we affirm the ruling of the Court

of Criminal Appeals that the error was harmless under all of the circumstances.

Although we have confirmed that “juror testimony concerning the effect of

[extraneous prejudicial] information or [an improper outside] influence on the juror’s

deliberative processes is inadmissible,” id. at 649, there are other ways for the State to rebut

the presumption of prejudice. For example, in Walsh, wherein a court officer was accused

of making an improper comment to a juror, the State could have attempted to rebut the

presumption by calling the court officer to testify as to whether he actually made the

statement, or by questioning other members of the jury as to whether they heard the

statement. Id. Likewise, in the case before us, the State could have questioned other

members of the jury as to whether they read the note or were told about the note, or could

have subpoenaed the discharged alternate jurors to determine whether the note was actually

written and whether it included their opinion as to the Defendant’s guilt. Unlike the facts in

Walsh, however, these additional steps were unnecessary because the inadmissible testimony

of the jury foreman was not the only testimony offered by the State to rebut the presumption

of prejudice in this instance.

First, the jury foreman’s testimony as to the circumstances surrounding his receipt of

the note, including the location of the note and the time of day at which he found the note in

relation to the trial court proceedings, was admissible under Tennessee Rule of Evidence

606(b).6 Second, Rule 606(b) permitted the foreman to state his recollection of the contents

of the note. Finally, it was proper under Rule 606(b) for the foreman to testify as to what he

did with the note after he read it and whether he told anyone else about the note or its

contents. In our assessment, therefore, the State presented sufficient admissible evidence to

carry its burden of rebutting the presumption of prejudice. In reaching this conclusion, we

have found it helpful to examine the various tests utilized by the federal circuit courts of

appeals when applying Federal Rule of Evidence 606(b), upon which our Rule 606(b) is

based. See Blackwell, 664 S.W.2d at 688 (adopting Federal Rule of Evidence 606(b) “as the

rule governing the exclusion and admissibility of evidence to impeach a jury verdict in

[Tennessee]”).

The Second Circuit Court of Appeals utilizes an objective test that considers the entire

record and the circumstances surrounding the juror’s exposure to the external influence,

focusing on the nature of the information or contact at issue and the probable effect the

external influence had upon a hypothetical average juror. United States v. Farhane, 634 F.3d

6

As indicated, the foreman’s testimony in this regard was somewhat inconsistent with the record;

however, any factual discrepancies were for the trial court to consider in weighing the credibility of the

foreman’s testimony and did not affect the admissibility of such testimony under Rule 606(b).

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127, 169 (2d Cir. 2011). The Third Circuit conducts a similar objective analysis, considering

the probable effect of the external influence on a hypothetical average juror by inquiring into

the nature of the external influence, the timing of the juror’s exposure, and the identities of

the involved parties. United States v. Console, 13 F.3d 641, 666-68 (3d Cir. 1993). The

Eighth Circuit employs a slightly more detailed objective test for determining if an external

influence has likely affected a typical juror, considering

(1) whether the extrinsic evidence was received by the jury and the manner in

which it was received; (2) whether it was available to the jury for a lengthy

period of time; (3) whether it was discussed and considered extensively by the

jury; (4) whether it was introduced before a verdict was reached and, if so, at

what point during the deliberations was it introduced; and (5) whether it was

reasonably likely to affect the verdict, considering the strength of the

government’s case and whether it outweighed any possible prejudice caused

by the extrinsic evidence.

United States v. Blumeyer, 62 F.3d 1013, 1017 (8th Cir. 1995).

We believe that the analysis in Walsh, as supplemented by a combination of the factor

tests employed by the federal circuit courts of appeals, provides the proper framework for

determining the probable, objective effect upon a verdict of a juror’s exposure to either

extraneous prejudicial information or an improper outside influence. In determining whether

the State has rebutted the presumption of prejudice in circumstances such as these, trial

courts should consider the following factors: (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.7

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. See Walsh, 166

S.W.3d at 649. Applying these factors to the case before us, we find no reasonable

possibility that the note received by the jury foreman altered the verdict.

As to the first factor, the nature and content of the information or influence is best

determined by an inquiry into the identities of the parties involved, the substance of the

7

While we recognize that the federal circuit courts of appeals have applied their factor tests to a

hypothetical average juror, we find it more consistent with Tennessee Rule of Evidence 606(b) and the

Court’s statements in Walsh to conclude that our trial courts should consider these factors in light of the

specific jurors, facts, evidence, and circumstances of each case.

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communication, and how the exchange of information occurred. The jury foreman testified

that after the conclusion of the trial he discovered a written note left by the discharged male

alternate juror indicating that each of the alternates believed the Defendant to be guilty as

charged. While the improper communication in this case was not a face-to-face conversation

between a juror and a third party, it nevertheless was an unauthorized communication from

a third party because, as indicated, a discharged alternate juror is no longer a member of the

jury. See Bobo, 814 S.W.2d at 355. In this instance, however, while the alternate juror’s

communication to the foreman was improper, it did not impart upon the foreman any

extrajudicial evidence. Throughout the trial process an alternate is in all other respects a

juror, hearing all of the evidence and listening to the instructions provided by the trial judge.

The note merely reflected the opinion of the two alternate jurors based upon the proof

presented during the course of the trial—the very same evidence known to the foreman—and

made no reference to any part of the testimony or the others serving on the jury.

This case differs significantly from other cases where convictions have been set aside

or civil verdicts have been reversed because jurors have conducted independent research on

issues presented at trial, shared their own personal knowledge of a case, or initiated a

conversation with a member of the prosecutor’s office or a trial witness. See, e.g.,

Blackwell, 664 S.W.2d at 688 (reversing defendant’s conviction for sale of alcoholic

beverages to a minor because, during trial, a juror discussed the defendant’s guilt with the

mother of the minor who had purchased the alcohol); Briggs v. State, 338 S.W.2d 625, 626,

628 (Tenn. 1960) (reversing defendant’s conviction for voluntary manslaughter because one

juror, who was a neighbor of the defendant, told the other members of the jury that the

defendant had killed his brother, had a bad temper, and would “kill you if he got mad”);

Martin v. Opryland USA, Inc., No. 01-A-01-9412-CV-00567, 1995 WL 322632, at *2, *4

(Tenn. Ct. App. May 26, 1995) (granting defendant a new trial because one juror, who was

a nurse, conducted independent medical research on the plaintiff’s injuries and shared her

findings with the other jurors during deliberations). Here, the foreman neither instigated the

communication nor sought out the discharged alternate jurors’ opinions. Moreover, the

foreman’s lack of interest in the contents of the note is evidenced by the fact that he did not

reveal to the other jurors either the existence of the note or its contents. This factor favors

the State.

The second factor, the number of jurors exposed to the information or influence, also

favors the State. The foreman testified that he did not inform the other jurors about either

the existence or the contents of the note, and there was no evidence presented to contradict

his testimony in that regard. Cf. Walsh, 166 S.W.3d at 644-45 (observing that the trial court

accredited testimony of one juror who “was convinced that the other members of the jury also

heard the officer’s remark”). Although in this case the exposure of the note was limited to

the foreman, we caution that when extraneous prejudicial information or an improper outside

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influence is brought to bear upon even one juror it may be sufficient to set aside a verdict if

there is a reasonable possibility that the verdict was tainted. Fullwood v. Lee, 290 F.3d 663,

668 (4th Cir. 2002) (“[I]f even a single juror’s impartiality is overcome by an improper

extraneous influence, the accused has been deprived of the right to an impartial jury.”); see

also Parker v. Gladden, 385 U.S. 363, 366 (1966) (“[P]etitioner was entitled to be tried by

12, not 9 or even 10, impartial and unprejudiced jurors.”); Blackwell, 664 S.W.2d at 689

(holding that a presumption of prejudice arises if “some extraneous prejudicial information,

fact or opinion, was imported to one or more jurors or some outside improper influence was

brought to bear on one or more jurors”).

The third factor, the manner and timing of the exposure to the juror(s), is neutral under

these circumstances. The manner of the exposure tips the scales favorably for the State

because the foreman was alone when he discovered the note upon returning to his hotel

room. The timing of the exposure, however, is more favorable to the Defendant because the

foreman discovered the note during an overnight break in the process of deliberation. Of

course, these circumstances are in contrast to other cases resulting in new trials where jurors

have been exposed to extraneous prejudicial information or an improper outside influence

while in the jury room during active deliberations, when a juror could feel pressured to vote

in a particular way. See, e.g., Walsh, 166 S.W.3d at 644-45 (granting new trial because a

court officer entered the jury room during deliberations and told the jury that it was required

to reach a decision); Blackwell, 664 S.W.2d at 688 (granting new trial because, prior to

deliberations, a juror discussed the merits of the case with an interested third party and then

entered the jury room immediately proclaiming the defendant’s guilt). Nevertheless,

allowing an alternate juror to assert his or her opinion and potentially influence jurors

desecrates the sanctity of the jury of twelve. The presence of alternate jurors in the jury room

during deliberations “is contrary to the common law[ and] the principles embedded in the

concept of the jury trial.” Patten v. State, 426 S.W.2d 503, 506-07 (Tenn. 1968) (reversing

conviction because an alternate juror was permitted to retire with the empaneled jurors); see

also Tenn. R. Crim. P. 24(f)(2)(A) (“A juror who is not selected to be a member of the

deliberating jury shall be discharged when that jury retires to consider its verdict.”). Even

though, in this instance, the alternate jurors did not enter the jury room during active

deliberations, the timing favors the Defendant because the deliberation process had already

begun.

Because Rule 606(b) prohibits inquiry into the subjective impact upon a jury verdict,

a consideration of the weight of the State’s evidence introduced at trial is, as the fourth and

final factor in our analysis of these circumstances, helpful in determining the possible impact

any extraneous prejudicial information or improper outside influence had upon the verdict.

In our view, the State presented overwhelming evidence of the Defendant’s guilt, including

a recorded statement to the police in which he admitted to killing the victim. The State also

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presented specific evidence as to premeditation, which included the Defendant’s recorded

statement that he would kill the victim if he discovered that she had cheated on him and the

numerosity of stab wounds inflicted upon the victim.

In summary, even without any consideration of the testimony of the jury foreman that

should have been excluded, the State presented sufficient, admissible evidence to rebut the

presumption of prejudice that accompanies an improper outside influence upon the jury.

Because we have found no reasonable possibility that the note from the discharged alternate

juror to the jury foreman affected the verdict, the Defendant is not entitled to relief on this

issue.

As a final matter, because the right to a trial by an impartial jury is grounded in the

federal and state constitutions, a trial court’s analysis under Tennessee Rule of Evidence

606(b) should be reviewed by the appellate courts as a mixed question of law and fact. See

Abdur’Rahman v. Bredesen, 181 S.W.3d 292, 305 (Tenn. 2005) (“A constitutional claim that

is resolved after an evidentiary hearing generally presents a mixed question of law and

fact.”). In consequence, this issue is subject to the de novo standard of review. Fields v.

State, 40 S.W.3d 450, 458 (Tenn. 2001). The trial court’s factual findings—such as the

credibility and weight to be given a juror’s testimony or the weight of the evidence presented

at trial—should be reviewed de novo, accompanied by a presumption of correctness unless

the evidence preponderates otherwise. Tenn. R. App. P. 13(d); Fields, 40 S.W.3d at 458.

However, the trial court’s conclusions of law—such as whether a jury’s verdict was affected

by extraneous prejudicial information or an improper outside influence—should be reviewed

under a purely de novo standard, with no accompanying presumption of correctness. Fields,

40 S.W.3d at 458.

B. Admission of Photographs

At trial, the Defendant objected to the introduction of several different photographs

of the victim, including one portrait-style photograph of the victim that was taken when she

was alive, seven photographs that were taken where the body was found, and eight

photographs that were taken during the autopsy. The trial court, after conducting hearings

outside of the presence of the jury and allowing argument as to the admissibility of each of

the photographs at issue, permitted the introduction of the portrait-style photograph, the

seven crime scene photographs, and six of the eight autopsy photographs.8 Although the

Defendant did not challenge the admissibility of the autopsy photographs in his appeal to the

Court of Criminal Appeals or to this Court, he does contend that the portrait-style photograph

and the crime scene photographs should have been excluded as irrelevant and unduly

8

One of the autopsy photographs was introduced after being cropped to omit certain portions. Two

of the autopsy photographs were excluded altogether.

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prejudicial.

In order to be admitted as evidence, a photograph must be relevant to an issue decided

by the trier of fact and its probative value must not be outweighed by any unfair prejudicial

effect that it may have upon the trier of fact. State v. Vann, 976 S.W.2d 93, 102 (Tenn.

1998); see Tenn. R. Evid. 401–403. In making this assessment, trial courts should consider

the questions of fact to be presented to the jury and any evidence presented during the course

of the trial. State v. Williamson, 919 S.W.2d 69, 78 (Tenn. Crim. App. 1995). The

admission of photographs is generally within the discretion of the trial court and, absent an

abuse of that discretion, will not result in the grant of a new trial. State v. Young, 196

S.W.3d 85, 105 (Tenn. 2006) (citing State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978)).

In this instance, the trial court permitted the State to display the portrait-style

photograph of the victim for the purpose of showing the existence of a life-in-being. The

Court of Criminal Appeals found this to be error because the photograph did not qualify as

relevant evidence:

[T]he photographs taken of the victim at the crime scene amply sufficed to

prove her existence. The issue of [her] life or existence was not a matter of

dispute at trial. Consequently, . . . the decision to admit the photograph

constituted error.

Indeed, the State . . . does not mount a serious effort to defend the trial

judge’s determination that the photograph of the victim taken while alive was

relevant . . . . Rather, the State asserts that . . . any error that may have

occurred [was] harmless in light of the overwhelming evidence against the

[D]efendant.

Adams, 2011 WL 4375332, at *6; see also Tenn. R. Evid. 401–403. Over the years, this

Court has consistently cautioned the State against the introduction of such photographs as

evidence because they typically lack relevance to the issues on trial and because of their

potential to unnecessarily arouse the sympathy of the jury. See, e.g., Young, 196 S.W.3d at

106 (finding error in the trial court’s admission of childhood photographs of the victim and

calling for trial courts to “understand the proof and theory of the case, and whether there is

a real dispute about the issue the evidence is to prove” (quoting Neil P. Cohen et al.,

Tennessee Law of Evidence § 403.[5] (5th ed. 2005))); State v. Cole, 155 S.W.3d 885, 911-

12 (Tenn. 2005) (recognizing that although “[a] family photograph may be relevant to

establish the victim’s identity as the person killed,” “a photograph must be found relevant to

an issue that the jury must decide before it may be admitted into evidence”); State v. Nesbit,

978 S.W.2d 872, 902 & n.3 (Tenn. 1998) (finding no error in admission of photograph taken

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while victim was alive but recognizing that “where the victim’s identity has already been

proven, further proof may be cumulative and, therefore, inadmissible”); State v. Dicks, 615

S.W.2d 126, 128 (Tenn. 1981) (“[I]t would have been better had the ‘before’ picture of [the

victim] been excluded since it added little or nothing to the sum total of knowledge of the

jury.”).

While we agree with the Court of Criminal Appeals that it was error to admit the

portrait-style photograph into evidence, the Defendant is not entitled to relief on appeal if the

error had no effect on the results of the trial. See Tenn. R. App. P. 36(b) (“A final judgment

from which relief is available and otherwise appropriate shall not be set aside unless,

considering the whole record, error involving a substantial right more probably than not

affected the judgment or would result in prejudice to the judicial process.”). Generally,

photographs taken during the life of a victim are not so prejudicial as to warrant a new trial.

See Cole, 155 S.W.3d at 912 (finding a portrait-style picture of the victim taken prior to his

murder to have no prejudicial effect on the defendant’s trial). If a photograph should have

been excluded because it adds “little or nothing to the sum total of knowledge of the jury,”

the admission of the photograph, unless somehow prejudicial because of its content, typically

qualifies as harmless. See Dicks, 615 S.W.2d at 128 (finding harmless error in admission

of victim’s “before” photograph); see also Young, 196 S.W.3d at 106 (finding harmless error

in admission of victim’s childhood photograph despite its potential to stir the jury’s

sympathy); State v. Richardson, 697 S.W.2d 594, 597 (Tenn. Crim. App. 1985) (“As to the

photographs of [the victim taken before and after her murder], we find no prejudicial error

in their admission.”).

In this instance, the error was clearly harmless. Nevertheless, the Court of Criminal

Appeals properly cautioned the State against the admission of photographs lacking in

relevance, “which have the potential to undermine and place in jeopardy the outcome of the

entire judicial proceedings.” Adams, 2011 WL 4375332, at *6; see also State v. Richardson,

995 S.W.2d 119, 128 (Tenn. Crim. App. 1998) (“[W]e hasten to add that the fact that we hold

the error to be harmless in the present case should not be taken as precedent for similar

improper argument in the future.”). Prior to admitting photographs of victims taken while

they were alive, trial courts must determine whether the photographs are relevant by

considering whether the purported use of the photograph—such as depicting a life-in-

being—is a disputed issue at trial.

The Defendant also challenged the admission of the photographs taken where the

body was found. Crime scene photographs of a victim tend to be prejudicial by nature, but

this fact does not make them excludable per se. State v. Jordan, 325 S.W.3d 1, 86 (Tenn.

2010). This Court has permitted “photographs of [a victim’s body] . . . in murder

prosecutions if they are relevant to the issues on trial, notwithstanding their gruesome and

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horrifying character.” Banks, 564 S.W.2d at 950-51.

Here, the trial court carefully considered the relevance and the possible prejudicial

effect of each photograph at issue prior to overruling the Defendant’s objections to their

admission, finding that they were relevant to show the extent of the victim’s injuries and the

length of time the body remained undiscovered. The trial court also ruled that the

photographs served to illustrate the testimony of the investigating officer and to establish the

intent and state of mind of the Defendant. In our view, the number and nature of the wounds,

along with the manner and timing of disposal of the body, were relevant to the issue of

premeditation. Although some of the photographs were especially graphic, the trial court did

not find that they were “gruesome” or “horrifying,” and we agree with that assessment. In

summary, the trial court did not abuse its discretion by concluding that the probative value

of the crime scene photographs was not substantially outweighed by the danger of unfair

prejudice.

C. Admission of Audiotape Recording

Next, the Defendant challenges the trial court’s denial of his motion to exclude as

evidence the audiotape recording he gave to Smith. While conceding that the audiotape

included the facts and circumstances related to the murder, the Defendant contends that the

tape should have been excluded because it referenced a prior domestic violence charge to

which he pled guilty and was granted probation. He argues that the prejudicial effect of the

prior offense, which would otherwise be inadmissible as evidence, outweighs the probative

value of the remaining contents of the audiotape.

The admissibility of any evidence is governed in part by the general provisions as to

relevance. “‘Relevant evidence’ means evidence having any tendency to make the existence

of any fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” Tenn. R. Evid. 401. In general, relevant

evidence is admissible and irrelevant evidence is not. Tenn. R. Evid. 402. Even relevant

evidence, however, “may be excluded if its probative value is substantially outweighed by

the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless presentation of cumulative

evidence.” Tenn. R. Evid. 403.

Tennessee Rule of Evidence 404(b) governs the admissibility of evidence of a

defendant’s prior misconduct:

Evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity with the character

trait. It may, however, be admissible for other purposes. The conditions

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which must be satisfied before allowing such evidence are:

(1) The court upon request must hold a hearing outside the jury’s presence;

(2) The court must determine that a material issue exists other than conduct

conforming with a character trait and must upon request state on the record the

material issue, the ruling, and the reasons for admitting the evidence;

(3) The court must find proof of the other crime, wrong, or act to be clear and

convincing; and

(4) The court must exclude the evidence if its probative value is outweighed

by the danger of unfair prejudice.

Tenn. R. Evid. 404(b). The terms of this rule establish that evidence of prior bad acts cannot

be used to prove that a person has a propensity to commit a crime. Id.; State v. Adkisson,

899 S.W.2d 626, 645-46 (Tenn. Crim. App. 1994). Furthermore, in those instances where

the prior conduct or acts are similar to the crimes on trial, the danger of unfair prejudice

increases. State v. James, 81 S.W.3d 751, 762 (Tenn. 2002). Evidence of other crimes,

wrongs, or acts may be admissible, however, when the prior conduct is relevant to an issue

other than the accused’s character, such as identity, motive, common scheme or plan, intent,

or absence of mistake. State v. Gilliland, 22 S.W.3d 266, 271 & n.6 (Tenn. 2000); Bunch

v. State, 605 S.W.2d 227, 229 (Tenn. 1980); State v. McCary, 119 S.W.3d 226, 243 (Tenn.

Crim. App. 2003).

When addressing the Defendant’s motion to exclude the audiotape recording, the trial

court followed the procedural requirements of Tennessee Rule of Evidence 404(b). During

a hearing held outside the presence of the jury, the trial court found that while parts of the

audiotape were difficult to understand, the statements made by the Defendant were relevant

and probative of his state of mind and his motive for committing the crime of first degree

murder. Further, the trial court found that the evidence of the prior act of domestic violence

was clear and convincing, as described by the Defendant in his own words and, in

consequence, there was “so much probative value [on the tape] and so little danger of unfair

prejudice” that the tape, including the domestic violence reference, should be allowed into

evidence.

Because the trial court adhered to the procedural requirements of Rule 404(b), our

review is limited to whether the admission of the evidence qualified as an abuse of discretion.

State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997); see also Gilliland, 22 S.W.3d at 270

(“[W]hen the proffered evidence is subject to the procedural requirements of Tennessee Rule

of Evidence 404(b) and when the trial court has substantially complied with those

requirements, then any decision as to whether to admit evidence under Rule 404(b) will only

be reversed for an abuse of discretion.”). “A court abuses its discretion when it applies an

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incorrect legal standard or its decision is illogical or unreasonable, is based on a clearly

erroneous assessment of the evidence, or utilizes reasoning that results in an injustice to the

complaining party.” Wilson v. State, 367 S.W.3d 229, 235 (Tenn. 2012).

In our view, the trial court did not abuse its discretion by admitting the contents of the

audiotape as evidence. Because the defense theory was that the Defendant’s state of mind

mitigated intent and precluded the element of premeditation, his recorded statements were

highly probative and, in context, any prejudice resulting from the reference to his prior

offense paled in comparison.

D. Special Jury Instruction on Diminished Capacity

At the conclusion of the proof, the Defendant made a special request for an instruction

on diminished capacity, presumably as it related to the issues of intent and premeditation.

After finding that the proof related to the Defendant’s use of Ambien did not establish that

he suffered from a mental disease or defect, the trial court denied the request and instead

charged the jury as follows:

The [S]tate must prove beyond a reasonable doubt the culpable mental

state of the [Defendant]. Culpable mental state means the state of mind of the

[Defendant] at the time of the offense. This means that you must consider all

of the evidence to determine the state of mind of the [Defendant] at the time

of the commission of the offense. The state of mind which the [S]tate must

prove is contained in the elements of the offense as outlined in these

instructions.

In this case, you have heard evidence that the [D]efendant might have

suffered from a condition which could have affected his capacity to form the

culpable mental state required to commit a particular offense.

If you find from the evidence that the [D]efendant’s capacity to form

a culpable mental state may have been affected, then you must determine

beyond a reasonable doubt what the mental state of the [D]efendant was at the

time of the commission of the offense to determine of which, if any, offense

he is guilty.

Although not entirely clear from the record, in his appeal to the Court of Criminal

Appeals, the Defendant appears to have argued that the trial court erred by refusing to

specifically use the term “diminished capacity” in its charge to the jury and instead giving

instructions on “a condition which could have affected his capacity to form the culpable

mental state.”

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Of course, diminished capacity is not a defense to a criminal charge, but evidence of

diminished capacity is admissible to negate mens rea. See State v. Ferrell, 277 S.W.3d 372,

379 (Tenn. 2009) (citing State v. Hall, 958 S.W.2d 679, 690-91 (Tenn. 1997)). Such

evidence is usually introduced through expert testimony showing that a defendant was

incapable of forming a criminal intent by virtue of an impaired mental condition, such as

voluntary intoxication. Tenn. Code Ann. § 39-11-503(a) (2010) (“[I]ntoxication, whether

voluntary or involuntary, is admissible in evidence, if it is relevant to negate a culpable

mental state.”); Wiley v. State, 183 S.W.3d 317, 333 (Tenn. 2006) (“Evidence of a

defendant’s intoxication is relevant to negate a culpable mental state of a charged offense.”);

see also State v. Vaughn, 279 S.W.3d 584, 601-02 (Tenn. Crim. App. 2008) (concluding that

expert testimony as to intoxication was relevant and admissible evidence in murder trial);

State v. Shelton, 854 S.W.2d 116, 122 (Tenn. Crim. App. 1992) (“Unquestionably, the

defense of voluntary intoxication relies upon such a diminished capacity.”).

To justify an instruction on diminished capacity, however, the proof must establish

that any “inability to form the requisite culpable mental state was the product of a mental

disease or defect, not just a particular emotional state or mental condition.” Hall, 958 S.W.2d

at 690 (emphasis added) (“It is the showing of a lack of capacity to form the requisite

culpable mental intent that is central to evaluating the admissibility of expert psychiatric

testimony on the issue.”). The jury is tasked with evaluating the weight to be given the

evidence and determining whether the voluntary intoxication negated the culpable mental

elements. State v. Morris, 24 S.W.3d 788, 796 (Tenn. 2000); Vaughn, 279 S.W.3d at 602

(“The questions of whether the [d]efendant in this case was under the influence of PCP at the

time of the offense, and if so, whether his intoxication had any bearing on his ability to

premeditate and form the intent to kill, were questions appropriate for the jury’s

consideration.”). Although the Defendant presented three expert witnesses to address the

effects of the Ambien and the Defendant’s vulnerability to the drug, the trial court concluded

that the testimony did not demonstrate that he suffered from a mental disease or defect and

declined to instruct the jury on diminished capacity. The Court of Criminal Appeals

affirmed, holding that the trial court’s charge to the jury was adequate under the proof.

Adams, 2011 WL 4375332, at *15.

In general, the refusal to grant a special request for an instruction is error only when

the standard charge, read in its entirety, fails to fully and fairly provide the applicable law.

State v. Hanson, 279 S.W.3d 265, 280 (Tenn. 2009). The purpose of a special instruction is

“to supply an omission or correct a mistake made in the general charge, to present a material

question not treated in the general charge, or to limit, extend, eliminate, or more accurately

define a proposition already submitted to the jury.” State v. Cozart, 54 S.W.3d 242, 245

(Tenn. 2001), overruled on other grounds by State v. White, 362 S.W.3d 559 (Tenn. 2012).

Only when there is a deficiency is relief warranted. In our assessment, the trial court

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properly instructed the jury to consider all of the evidence regarding the ability of the

Defendant to form the requisite intent. Because the instructions provided the jury with the

opportunity to consider whether the Defendant’s mental capacity may have been affected by

his use of Ambien, the trial court did not err by refusing the special request to utilize the term

“diminished capacity.”

E. Sufficiency of the Evidence

As his final issue, the Defendant argues that the evidence was insufficient for any jury

to conclude beyond a reasonable doubt that the Defendant murdered the victim with

premeditation and, therefore, that the evidence was insufficient to sustain a conviction of first

degree murder.

Traditional principles apply to the appellate review of challenges to the sufficiency

of the convicting evidence. A guilty verdict “shall be set aside if the evidence is insufficient

to support the findings by the trier of fact of guilt beyond a reasonable doubt.” Tenn. R. App.

P. 13(e). “When considering a sufficiency of the evidence question on appeal, the State must

be afforded the strongest legitimate view of the evidence and all reasonable inferences that

may be drawn therefrom.” State v. Vasques, 221 S.W.3d 514, 521 (Tenn. 2007) (citing State

v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). The relevant question is whether, after

reviewing 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, 443 U.S. 307, 319 (1979); see also Tenn. R. App. P. 13(e). “Because a verdict of

guilt removes the presumption of innocence and raises a presumption of guilt, the criminal

defendant bears the burden on appeal of showing that the evidence was legally insufficient

to sustain a guilty verdict.” Hanson, 279 S.W.3d at 275 (citing State v. Evans, 838 S.W.2d

185, 191 (Tenn. 1992)).

A criminal offense may, of course, be established exclusively by circumstantial

evidence. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (citing Duchac v. State, 505

S.W.2d 237, 241 (Tenn. 1973); Marable v. State, 313 S.W.2d 451, 456-58 (Tenn. 1958)).

The jury must decide the significance of the circumstantial evidence as well as “‘[t]he

inferences to be drawn from such evidence, and the extent to which the circumstances are

consistent with guilt and inconsistent with innocence.’” State v. Rice, 184 S.W.3d 646, 662

(Tenn. 2006) (alteration in original) (quoting Marable, 313 S.W.2d at 457). Appellate courts

may not substitute their own inferences for those drawn by factfinders in circumstantial

evidence cases. State v. Lewter, 313 S.W.3d 745, 748 (Tenn. 2010). In Dorantes, this Court

abolished any distinction between the standard of proof required at trial in cases based solely

upon circumstantial evidence and that in cases where direct evidence of guilt is presented by

the State. 331 S.W.3d at 381. Our standard of review is, therefore, identical “whether the

conviction is based upon direct or circumstantial evidence.” Id. at 379 (quoting Hanson, 279

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S.W.3d at 275) (internal quotation marks omitted).

First degree murder is the premeditated and intentional killing of another. Tenn. Code

Ann. § 39-13-202(a)(1) (2010). A premeditated killing is one done “after the exercise of

reflection and judgment.” Id. § 39-13-202(d). Further,

“[p]remeditation” means that the intent to kill must have been formed prior to

the act itself. It is not necessary that the purpose to kill pre-exist in the mind

of the accused for any definite period of time. The mental state of the accused

at the time the accused allegedly decided to kill must be carefully considered

in order to determine whether the accused was sufficiently free from

excitement and passion as to be capable of premeditation.

Id. “[P]remeditation may be established by any evidence from which a rational trier of fact

may infer that the killing was done ‘after the exercise of reflection and judgment’ as required

by Tennessee Code Annotated section 39-13-202(d).” State v. Davidson, 121 S.W.3d 600,

615 (Tenn. 2003).

The following circumstances are relevant to a finding of premeditation:

the use of a deadly weapon upon an unarmed victim; the particular cruelty of

a killing; the defendant’s threats or declarations of intent to kill; the

defendant’s procurement of a weapon; any preparations to conceal the crime

undertaken before the crime is committed; destruction or secretion of evidence

of the killing; and [the] defendant’s calmness immediately after [the] killing.

Id.; see also State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997). “These factors, however, are

not exhaustive.” Davidson, 121 S.W.3d at 615. Evidence establishing a motive for the

killing and the nature of the killing are also factors from which the jury may infer

premeditation. State v. Nesbit, 978 S.W.2d 872, 898 (Tenn. 1998). Specifically, evidence

of repeated blows is a relevant factor in determining premeditation, although this evidence

alone would not be sufficient to establish premeditation. State v. Sims, 45 S.W.3d 1, 8

(Tenn. 2001) (citing State v. Brown, 836 S.W.2d 530, 541-43 (Tenn. 1992); Banks, 564

S.W.2d at 950). Moreover, although the particular circumstances of each case will differ,

stab wounds have been found to be more consistent with a premeditated killing than other

types of wounds because the act of stabbing, by its very nature, requires more effort, time,

and intimate contact than does simply pulling the trigger of a gun. See State v. Underwood,

No. M2006-01826-CCA-R3-CD, 2008 WL 5169573, at *14 (Tenn. Crim. App. Dec. 10,

2008); see also State v. Reid, 164 S.W.3d 286, 311 (Tenn. 2005) (finding sufficient evidence

to support premeditation where the victims suffered multiple, deep stab wounds inflicted

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with a knife blade that was several inches long); State v. Keough, 18 S.W.3d 175, 181 (Tenn.

2000) (finding sufficient evidence to support premeditation where the victim was forcefully

stabbed to death).

After considering the evidence in a light most favorable to the State, we must

conclude that a rational jury could have found that the Defendant acted with premeditation

in killing the victim. The Defendant had stated on an audiotape recording that if he

discovered the victim was cheating on him, he would kill her. In fact, when the victim

bluntly informed the Defendant of her infidelity, the Defendant brutally attacked the unarmed

victim with repeated blows from his pocketknife. Although the details of the attack are not

entirely clear, the circumstantial evidence suggests that the Defendant had armed himself

with a folding knife, opened the blade, and forcefully stabbed the victim twenty-seven times,

predominantly in the neck and chest—vital areas of her body. The Defendant then disposed

of the body on a steep downward slope near a drainage ditch. The prior threat, the use of a

knife, the number, severity, and location of the wounds, and the disposal of the body all tend

to support the element of premeditation. In our view, the evidence was sufficient to support

a verdict of first degree murder.

III. Conclusion

Although the trial court erred by permitting the jury foreman to testify as to the effect

of an improper outside influence upon the verdict, the error was harmless in context.

Moreover, the State presented sufficient admissible evidence to rebut the presumption of

prejudice that accompanies an improper communication with a juror. The trial court did not

err with respect to the admission of evidence or its jury instructions, and the evidence was

sufficient to convict the Defendant of first degree premeditated murder. The judgment of the

Court of Criminal Appeals is, therefore, affirmed. It appearing that the Defendant is

indigent, costs are taxed against the State.

______________________________

GARY R. WADE, CHIEF JUSTICE

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