State of Tennessee v. Hubert Glenn Sexton

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

February 15, 2012 Session at Nashville

STATE OF TENNESSEE v. HUBERT GLENN SEXTON

Automatic Appeal from the Court of Criminal Appeals

Criminal Court for Scott County

No. 7685 E. Shayne Sexton, Judge

No. E2008-00292-SC-DDT-DD - Filed May 29, 2012

The defendant, tried and convicted of two counts of first degree murder, was sentenced to

death for each offense. The Court of Criminal Appeals affirmed. In our review, we have

found that the trial court erred by admitting detailed evidence of a prior claim of child sex

abuse and by allowing references to the defendant’s refusal to submit to a polygraph

examination. Further, the record demonstrates several instances of prosecutorial misconduct

during the opening statement and during the final arguments of both the guilt and penalty

phases of the trial. Because, however, the defendant admitted to at least three witnesses that

he committed the murders and the evidence of guilt was otherwise overwhelming, the errors

had no effect on the verdicts rendered at the conclusion of the guilt phase of the trial. Each

of the convictions is, therefore, affirmed. Nevertheless, because certain of the inadmissible

evidence was particularly inflammatory and the prosecution made several inappropriate

comments, the sentences of death must be set aside. The Court of Criminal Appeals is, in

consequence, affirmed in part and reversed in part. The cause is remanded to the trial court

for new sentencing hearings.

Tenn. Code Ann. § 39-13-206(a)(1); Judgment of the Court of Criminal Appeals

Affirmed in Part and Reversed in Part

G ARY R. W ADE, J., delivered the opinion of the Court, in which C ORNELIA A. C LARK, C.J.,

J ANICE M. H OLDER, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.

Larry M. Warner, Crossville, Tennessee, and Leif E. Jeffers, Assistant Public Defender,

Huntsville, Tennessee (at trial); William P. Redick, Jr., Whites Creek, Tennessee, and Peter

D. Heil, Nashville, Tennessee (amended motion for new trial); James A. Simmons,

Hendersonville, Tennessee, and Richard L. Gaines, Knoxville, Tennessee (final amended

motion for new trial and on appeal), for the appellant, Hubert Glenn Sexton.

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

Gordon W. Smith, Associate Solicitor General; Mark E. Davidson and James E. Gaylord,

Assistant Attorneys General; William Paul Phillips, District Attorney General; and John W.

Galloway, Jr., Assistant District Attorney General, for the appellee, the State of Tennessee.

OPINION

On the night of May 20, 2000, a Saturday, Stanley Goodman and his wife, Terry Sue

Goodman, were shot to death as they slept in their bed at their residence in Scott County.

Their bodies were discovered the next morning by Mr. Goodman’s minor daughter, E.G.,

who resided in their home.1 The murders took place four days after another of Mr.

Goodman’s minor daughters, B.G., reported to authorities that she had been sexually abused

by her stepfather, Hubert Glenn Sexton (the “Defendant”). At the time, the Defendant and

his wife, Sherry Sexton, lived in Bradley County with the Defendant’s daughter, B.S., and

E.G.’s younger sister, B.G., and brother, Br.G., both of whom were Ms. Sexton’s children

by her marriage to Mr. Goodman.

Within days of the crimes, the Defendant was arrested and charged with two counts

of first degree murder. See Tenn. Code Ann. § 39-13-202 (1997). On July 18, 2000, the

district attorney general filed a notice seeking the death penalty for each of the murders. See

Tenn. R. Crim. P. 12.3(b). The aggravating circumstance relied upon by the State for each

of the two offenses was that “[t]he murder was committed for the purpose of avoiding,

interfering with, or preventing a lawful arrest or prosecution of the defendant or another.”

Tenn. Code Ann. § 39-13-204(i)(6) (1997 & Supp. 1999); see also Tenn. R. Crim P.

12.3(b)(2).

Guilt Phase of the Trial

Hope Tharp, who served as the Child Protective Services Team Leader for the

Department of Children’s Services (“DCS”) for Bradley County and several of its

surrounding counties, first interviewed B.G. and Ms. Sexton in Bradley County on March 17,

2000, at the request of the Scott County DCS, as part of an investigation of possible child

sexual abuse by the Defendant. The Defendant and Ms. Sexton had lived at the Goodman

residence before moving to Bradley County. No charges resulted from the complaint.

Two months later, on May 16, 2000, Ms. Tharp received a report from authorities at

Black Fox Elementary School in Cleveland that B.G., age 8, had made an allegation of sexual

abuse by the Defendant. Based upon B.G.’s statement that the sexual abuse had occurred on

the previous night, Ms. Tharp immediately notified Ms. Sexton and scheduled a meeting with

1

E.G., who testified for the State, was fourteen years old at the time of the trial on June 27, 2001;

consistent with Court policy, the minor children are identified only by their initials.

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the Sextons at 4:00 p.m. that afternoon. When the Defendant and the Sextons’ daughter B.S.

failed to arrive at her office at the time of the meeting, Ms. Tharp sought the assistance of

the Bradley County Sheriff’s Department. After being notified that officers had found the

Defendant at his residence, Ms. Tharp traveled there to meet with him and to explain the

basis for DCS taking custody of the three children in the Sexton household. Three officers

were present. The Defendant, after being warned that he could be arrested for custodial

interference, provided information as to B.S.’s whereabouts. Ms. Tharp, who by that time

had interviewed the three children living in the Sexton home, all of whose statements were

identical, then explained to the Defendant that he would have to come to her office for

questioning. Over objection by the Defendant, Ms. Tharp testified that she informed him that

B.G. had claimed that she had been required to “close her eyes and open her mouth,” to “put

her mouth on his penis and suck it,” and that “if she told she would never see her dad again.”

According to Ms. Tharp, the Defendant, upon hearing the accusation, stood from his chair,

denied the truth of the allegations, and responded, “Well, she is getting this information from

her sister, [E.G.], and her father.” He insisted that B.G. had made up the story and that Mr.

Goodman had “put her up to it.” He also claimed that Mr. Goodman had telephoned him

some three months earlier and played an audiotape recording of Mr. Goodman coaching B.G.

to say “things.” When Ms. Tharp advised the Defendant that his statement was inconsistent

with that of B.G. and the other two children and that if he “did these things,” he should

confess and get treatment, he remarked, “Well, I can go over and sign papers saying I did it

and serve two or three years in jail and we can be a family again.” Ms. Tharp then explained,

“That’s not the way it works . . . . [I]f you go over and say you did it, and you go to jail for

this . . . , you can’t just come out of jail and be a family again.”

Bradley County Sheriff’s Deputy Jerry Kyle Millsaps, who went to the Sexton

residence to assist DCS, overheard the Defendant complain to Ms. Sexton about “her family

causing them problems” and say, “they think I’m guilty here already.” He also overheard the

Defendant proclaiming his innocence of child sex abuse and stating that he “was not going

to jail for . . . a child abuse charge [and that i]f I go to jail for anything, it would be for

murder.” When questioned by the State at trial, Officer Millsaps also made reference to a

possible polygraph examination for the Defendant, who initially consented to the test. On

re-direct examination, and over objection by the Defendant, the State was permitted to ask,

“Are you aware that when Mr. Sexton . . . was later given the opportunity to take the

polygraph test, [he] wouldn’t?” The officer responded in the negative.

On the same date DCS received the sex abuse complaint, Detective Tony Alvarez of

the Bradley County Sheriff’s Department became involved in the investigation. After driving

to the school and speaking with B.G., Detective Alvarez provided the Defendant with

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Miranda2 warnings and then questioned him. The Defendant contended that Mr. Goodman

was responsible for the charge made by B.G. and had persuaded “the children to trump up

some false allegations.” He claimed that Mr. Goodman was motivated by his displeasure

with the Sextons’ decision to move out of the Goodman home in Scott County to a residence

in Bradley County, taking two of the three Goodman children with them.

Later in the week, Mr. Goodman, having been apprised of the investigation, contacted

Detective Alvarez, informing him that he intended to file a petition in Bradley County on the

following Monday seeking custody of the children. Afterward, the detective informed the

Defendant of Mr. Goodman’s plan. When, during this conversation, Detective Alvarez asked

the Defendant about taking a polygraph examination regarding the sex abuse allegation, the

Defendant declined, explaining that Special Agent Skip Elrod had informed him that

polygraphs could be “fixed.”

In the week before the murders, the Defendant informed Preston Adams, a co-worker,

of the child abuse charge, told him that Mr. Goodman was responsible, and asked where he

might acquire a .22 or .25 caliber handgun so that he could “try to take care of the matter

before it could escalate.” On Saturday, May 20, the Defendant worked in construction with

Adams from 8:00 a.m. to 12:30 p.m. During that time, he told Adams he had not “had any

sexual contact with the children.” As the two men left the job site, the Defendant informed

Adams that he “was not going to let [Mr. Goodman] come down [to Bradley County] before

he took care of that.”

At approximately 6:00 p.m., the Defendant drove to the Maxi Muffler shop where he

visited with Clinton Daniel Mason, whom he had known for three or four years and saw as

often as two or three times a week. While there, the Defendant asked Mason to return his .22

caliber rifle, which had been stored at Mason’s residence, explaining that he had to “take care

of some business in Scott County.” Mason traveled to his mother’s residence, where he

obtained the weapon for the Defendant.

Vella Strunk, the sister of Stanley Goodman, lived in Scott County near the Goodman

home. On Saturday nights, Ms. Strunk and her family regularly attended the races in Scott

County and were typically joined by E.G. Because races usually lasted into the early morning

hours, E.G. most often returned to her family residence at 2:00 or 2:30 a.m. According to

Ms. Strunk, the Defendant knew that E.G. routinely attended the races and that the

2

In Miranda v. Arizona, 384 U.S. 436, 444 (1966), the United States Supreme Court held that “the

prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial

interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the

privilege against self-incrimination.”

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Goodmans would leave their door unlocked for her. On the night of May 20, E.G. joined the

Strunk family for an evening at the racetrack. Because of rainy weather, however, they

returned to the Strunk residence. At 8:30 p.m., Ms. Strunk called Mr. Goodman to let him

know that E.G. planned to stay for a while. Although E.G. recalled being returned to the

Goodman residence as early as 9:30 or 10:00 p.m., Ms. Strunk estimated the time to be 11:00

p.m. She testified that no lights were on at that time. Because Ms. Strunk had asked to

borrow a bag of coffee, she did not leave until E.G. returned with the coffee. E.G. did not

see the Goodmans before going to bed. Shortly before noon on the following day, Ms.

Strunk called the Goodman residence but got no answer. About ten minutes later, E.G.

telephoned Ms. Strunk, tearfully informing her that her father and stepmother were still in

bed and had blood on them. Ms. Strunk drove to the residence, discovered the bodies of Mr.

and Ms. Goodman, and contacted the police.

At approximately 3:30 a.m. on Sunday, May 21, several hours before the bodies were

discovered, Mason drove to the Defendant’s residence. At trial, Mason recalled that Ms.

Sexton appeared to be upset and that the Defendant appeared to be “drunk or something.”

At 8:30 on the same morning, the Defendant drove to Mason’s residence and took Mason and

his girlfriend to a Denny’s Restaurant for breakfast. When the Defendant admitted to Mason

that he had killed Mr. Goodman, Mason stopped him from providing any of the details. The

Defendant later acquired two tires for his 1989 Oldsmobile at Mason’s place of employment.

Between 8:00 and 9:00 a.m. on Monday, May 22, the Defendant and Ms. Sexton

visited Adams and his girlfriend at their room at a Budget Inn. While Ms. Sexton talked with

Adams’s girlfriend, the Defendant admitted to Adams that he killed the Goodmans as they

slept in their bedroom, explaining that he had bought a hood, sweats, and gloves at a Dollar

Store and, after “dispos[ing] of all hair follicles off of his body,” had shot the Goodmans in

their bedroom, burned his own clothes and the stock of his rifle, and buried what remained

of the rifle. The Defendant informed Adams that he had purchased oversized shoes so that

it would appear that someone else had committed the crimes. He also informed him that he

had changed the tires on his vehicle.

On Sunday, May 21, shortly after the discovery of the bodies of the Goodmans,

Detective Alvarez received a telephone call informing him of the crimes and of the

involvement of the Tennessee Bureau of Investigation (“TBI”). Later in the day, he spoke

with the Sextons. Three days later, on May 24, Detective Alvarez learned that Sherry Sexton

had tried to reach him by telephone. He recorded his return call to Ms. Sexton, whom he

described as sounding desperate, and arranged a meeting with her at the south precinct. At

11:00 p.m. on the same night, Detective Alvarez and TBI Special Agent Barry Brakebill met

with Ms. Sexton, who was apparently prepared to make a statement. About thirty minutes

later, the Defendant arrived, insisting that he be allowed to talk with Ms. Sexton and

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attempting to force his way into the interview room. Detective Alvarez left the room to

confront the Defendant, who claimed that Ms. Sexton was upset and did not know what she

was talking about. In the meantime, Agent Brakebill moved Ms. Sexton to another location

in order to complete the interview and, afterward, transported her to a safehouse in McMinn

County. The Defendant was arrested for the murders on the following day.

TBI Agent Charles Scott, who searched the Defendant’s residence after obtaining

consent, found a .22 caliber rifle, which was inoperable because there was no trigger

assembly. Although not the weapon the Defendant acquired from Mason or submitted as the

weapon used in the murders, the trial court admitted the rifle as an exhibit. Agent Scott also

testified that it would take between two and two and one-half hours to travel the 125 miles

from Huntsville in Scott County to Bradley County by interstate. He stated that an alternate

route through Harriman could involve even less travel time.

During the course of the murder investigations, it was determined that Christy

Swallows, who resided in the same trailer park as the Sextons and had babysat for the

children living in their home, had been involved in an affair with the Defendant. At trial, she

stated that the Defendant had informed her about the child sex abuse allegations on or about

May 14, and that he blamed “[t]hat bastard in Scott County” for his predicament, declaring

that “he would kill him for this.” On the day after the murders, the Defendant came to her

residence and beat on her doors and windows to awaken her. She described the Defendant

as “frantic” and “in a panic.” He informed her that his wife had left him and her car was at

the police station. When Ms. Swallows asked the Defendant whether he had committed the

crimes, he initially said “no,” but ultimately admitted to committing both murders,

“blow[ing] them son of a bitches full of holes.” He explained that he had acquired the gun

from “Danny.” Ms. Swallows reported this information to Agents Brakebill and Scott on

May 25.3

During trial, the transcribed preliminary hearing testimony of Tinnie Chumley, an

employee at the Dollar Store in Cleveland, was presented as evidence. She reported that on

Saturday, May 20, she sold a black sweatshirt and black sweat pants to a white male. Ms.

Chumley was unable to identify the Defendant from a photographic lineup. TBI Agent

David Guy, who interviewed Ms. Chumley, presented a cash register journal that established

2:37 p.m. as the time of a purchase in the amount of $10.83 for a fleece shirt and pants.

Payment was with a twenty dollar bill. On May 21, the same day the bodies were discovered,

officers found a Dollar Store receipt for a fleece shirt and pants in the same amount in the

3

In a jury out hearing during Ms. Swallows’ testimony, she stated that the Defendant admitted that

he “made [B.G.] suck his dick.” After concluding that the prejudice outweighed the probative value, the trial

court excluded the statement.

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Defendant’s car. The receipt confirmed that the purchase was made in cash.

Shera Crowley, who had prepared the Defendant’s tax return early in 2000, testified

that when she pointed out that he had omitted his own daughter, B.S., as a dependant, but

added E.G., the daughter living with the Goodmans, the Defendant remarked, “If the son of

a bitch ever tried to claim her or take her, he would blow his . . . brains out.” Ms. Crowley

testified that she later warned Ms. Goodman of the threat, but that Ms. Goodman did not

appear to be concerned.

Detective Wade Chambers of the Scott County Sheriff’s Department investigated the

crime scene. He found no weapons, fingerprints, tire prints, or signs of forced entry at the

Goodman residence. Initially, he discovered six shell casings in the residence. Later, after

receiving the autopsy report, he returned to the scene and discovered three more shell

casings, explaining that the casings were difficult to find during his first visit because of

sawdust on the floor. Dinah Culag, a TBI Forensic Scientist, determined that all the shell

casings had been fired from the same firearm. Although she could not identify the type of

weapon, it was her opinion that a semi-automatic was used, rather than a revolver, because

cartridge casings from a revolver had to be manually ejected.

Dr. Sandra Elkins, the Knox County Medical Examiner, performed the autopsies at

the University of Tennessee Medical Center. She determined that Mr. Goodman had been

shot four times, “all in the right facial region.” One of the four shots “totally destroyed the

right eye” and another severed his spinal cord. A fifth shot wounded his right arm. Dr.

Elkins concluded that Ms. Goodman also died from multiple gunshot wounds, three to her

face and one in front of her right ear, causing “massive skull fractures and extensive damage

to the brain.” The seven fragments taken from the two bodies were consistent with a .22

bullet. Because one of the shots passed through Mr. Goodman’s body and another passed

through that of Ms. Goodman, Dr. Elkins was unable to examine those bullets.

Randall Boston, a law student working for defense counsel, was the only witness

appearing on behalf of the Defendant. He testified that he had traveled by interstate from the

muffler shop in Cleveland to Athens and by State Routes 58, 70, 29, and 27 to the Goodman

residence in Huntsville, a distance of 126.8 miles, and that the travel time was two and one-

half hours driving at or less than the speed limit. On cross-examination by the State, which

attempted to establish that the distance could be driven in less time, Boston answered “no”

when asked whether he was aware that the Defendant had been charged with driving ninety-

seven miles per hour along the same route two days after the murders.

After a short period of deliberation, the jury returned verdicts of guilt on each of the

two counts of first degree murder.

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Penalty Phase of the Trial

During the penalty phase of the trial, the State offered victim impact evidence from

Lamance Bryant—the brother of Ms. Goodman and a school teacher in Scott County—E.G.,

and Ms. Strunk, the sister of Mr. Goodman. Bryant, who described Ms. Goodman as “a very

friendly, outgoing person,” with “a sweet spirit,” testified that she was also survived by her

mother, Magdalene Lawson, and two sisters, Sharon Jeffers and Jaretta Claxton. He recalled

that Ms. Goodman had been seriously injured in a 1985 automobile accident, which had

resulted in a complete inability to work. He stated that she had endured several months of

physical therapy and years in a wheelchair and later had to use a walker. He stated that she

had to re-learn to talk as a result of the accident and had been able to walk on her own for a

period of only six to eight months prior to her murder. Bryant described her death as

particularly devastating to their mother.

E.G., who testified that she was particularly close to her father, stated that she had a

good relationship with her step-mother, Ms. Goodman. Since the murders, she had

experienced nightmares, feared being alone, and partially blamed herself because the door

at her residence had been left open for her return from the races. When asked where her

home was at the time of the trial, she answered, “I really don’t feel like I have one.”

Ms. Strunk confirmed that E.G. had experienced nightmares, did not sleep well, and

was afraid to be by herself. Because of Ms. Strunk’s close relationship with her brother, she

believed that her own life would “never be like it was before.”

In an effort to establish mitigating circumstances as to punishment, the Defendant

called three witnesses: Lynn Sexton, the wife of the Defendant’s first cousin; Karen Cooper,

who had known the Defendant since he was three or four years old; and Dr. William D.

Kenner, a physician with specialized training in psychiatry, child psychiatry, and

psychoanalysis.

Lynn Sexton, who is also a first cousin to Sherry Sexton, testified that the Defendant,

Ms. Sexton, and their three children lived with her for approximately six months before they

moved first to a trailer park in Scott County and later to a trailer park in Bradley County.

Lynn Sexton recalled that during the six months that the Defendant lived at her home, he did

not cause any difficulty with any member of her family, including her thirteen-year-old son

and sixteen-year-old daughter. She stated that the Defendant worked everyday, did not drink

to excess, and did not use illegal drugs. She testified that she often left her daughter and son

in the care of the Defendant at her residence.

Karen Cooper remembered that the Defendant’s parents were divorced when he was

six and, thereafter, that he did not live with either parent. Recalling that he had once stepped

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off of a school bus only to find that his residential family had moved, she estimated that the

Defendant had lived with between six and eight families before age eighteen and that no one

other than her sister-in-law kept him for more than just a few months. Ms. Cooper stated that

the Defendant’s mother rarely communicated with him and that his father, who was in poor

health and living in Dalton, Georgia, only saw him slightly more than his mother.

Dr. Kenner, formerly a member of the faculty in adult psychiatry at Vanderbilt

University and in private practice since the mid-1970s, examined the Defendant in

preparation for the trial. During the course of his examination, he learned that the Defendant

had lived in twenty-six different residences before he reached the age of eighteen and that

he was of average intelligence, but that he did not stay long enough in any place to develop

friendships or role models, such as older relatives, teachers, or ministers. Dr. Kenner

reported that the Defendant’s father had spent six months in an Army psychiatric hospital and

later developed heart disease and chronic lung disease, which prevented him from keeping

his family together after the Defendant’s mother left his father for another man and took the

Defendant’s younger brother with her. Dr. Kenner described the Defendant as traumatized

by the loss and as having suffered from significant emotional deprivation during his youth

because of the lack of a consistent caretaker. Dr. Kenner explained that the Defendant felt

particularly vulnerable after the sex abuse allegations because of his fear of losing the

children in his residence, particularly his daughter B.S. It was Dr. Kenner’s view that the

Defendant had the capacity to “actually do better in prison . . . because one of the things that

prison provides is, it’s like family . . . contained . . . consistent.” He further testified that if

the Defendant “lives and spends the rest of his life in prison, then at least his children will

not feel as though they are responsible for his execution.” On cross-examination by the

State, Dr. Kenner acknowledged that the Defendant was not insane, in that he knew of his

wrongful acts, but he described the Defendant as having a personality disorder, which

qualified as a mental disease or defect.

After the final argument by counsel and the instructions by the trial court, the jury

imposed the death penalty for each of the two first degree murder convictions. The jury

concluded that the State had established beyond a reasonable doubt that each of the murders

“was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest

or prosecution of the defendant or another,” the applicable statutory aggravating

circumstance. Tenn. Code Ann. § 39-13-204(i)(6).

Appeal

The Defendant filed a motion for new trial on July 30, 2001, and was permitted to file

amendments, first on November 23, 2004, and later on November 1, 2007. The trial court

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denied relief on January 24, 2008.4 The notice of appeal was filed on February 8, 2008.

Briefing was not completed for first-tier review until May 28, 2009. After argument, the

Court of Criminal Appeals affirmed the two convictions for first degree murder and the

sentences of death on each count.5 State v. Sexton, No. E2008-00292-CCA-R3-DD, 2010

WL 5054428, at *38 (Tenn. Crim. App. Dec. 7, 2010). The appeal to this Court is directed

by statute:

The affirmance of the conviction and the sentence of death shall be

automatically reviewed by the Tennessee [S]upreme [C]ourt. Upon the

affirmance by the [C]ourt of [C]riminal [A]ppeals, the clerk shall docket the

case in the [S]upreme [C]ourt and the case shall proceed in accordance with

the Tennessee Rules of Appellate Procedure.

Tenn. Code Ann. § 39-13-206(a)(1) (1997).

In this appeal, the Defendant first argues that the trial court erred by failing to change

the venue of the trial from Scott County. Secondly, he claims that the trial court committed

error during the process of jury selection (a) by failing to provide prospective jurors with

appropriate admonitions during the selection process; (b) by failing to permit the Defendant

the opportunity to rehabilitate prospective jurors who had indicated by their responses in jury

questionnaires that they could not vote for the death penalty; (c) by failing to adequately voir

dire jurors as to the extent of their knowledge about the crimes acquired from local

newspaper reports; and (d) by failing to excuse certain of the jurors for cause. Thirdly, in

addition to challenging the sufficiency of the evidence, the Defendant contends that the trial

court committed several errors on evidentiary issues (a) by permitting certain portions of the

4

Trial counsel for the Defendant, Larry Warner, filed the initial motion for new trial. The November

23, 2004 amended motion for new trial was filed by new counsel, William P. Redick, Jr., and Peter D. Heil.

Defendant’s current appellate counsel, James A. Simmons and Richard L. Gaines, filed the final amended

motion for new trial on November 1, 2007. The Defendant also made three pro se filings on April 15, 2002,

titled: “Amended Motion for New Trial to Incorporate the Element of Fraud Upon the Court by the

Prosecution in This Case”; “Amended Motion for New Trial to Incorporate Petitioner’s Rights to File Pro

Se Pleadings”; and “Amended Motion for New Trial to Incorporate a Claim of Ineffective Assistance of My

Trial Attorneys.”

5

The opinion of the Court of Criminal Appeals was filed on December 7, 2010. The Defendant

claims that in March of 2011, he discovered “new evidence” of interaction between jurors and outside

sources during the course of the trial. Thereafter, the Defendant filed a petition for writ of error coram nobis

in the trial court, seeking a new trial on the basis of the newly discovered evidence. The Defendant then

sought a stay in this Court, pending the outcome of the petition. On July 27, 2011, this Court denied the

motion. State v. Sexton, No. E2008-00292-SC-DDT-DD (Tenn. July 27, 2011 Order).

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testimony by DCS employee Hope Tharp, specifically her recollection of the details of the

child sex abuse allegations; (b) by allowing references to a polygraph examination by

Officers Millsaps and Alvarez; (c) by admitting into evidence a .22 caliber rifle found in the

Defendant’s residence, which was admittedly not the murder weapon; (d) by admitting into

evidence the Dollar Store receipt found in the Defendant’s automobile; (e) by allowing

references to the conduct of Sherry Sexton, who did not testify at trial; (f) by admitting

testimony of Shera Crowley, who implied wrongdoing on the part of the Defendant in regard

to his income tax return; and (g) by allowing testimony that the Defendant had been stopped

by police two days after the murders for driving ninety-seven miles per hour. Fourthly, the

Defendant argues that he is entitled to a new trial as to both the guilt and sentencing phases

because of multiple instances of prosecutorial misconduct. Next, the Defendant mounts a

series of challenges to the constitutionality of our capital sentencing scheme. As to the

penalty phase of the trial, the Defendant argues that the evidence of the aggravating

circumstance was insufficient to justify the imposition of the death penalty on either of the

two convictions. Finally, the Defendant argues that the cumulative effect of the errors

warrants a new trial.6

6

Pursuant to Tennessee Supreme Court Rule 12.2, after the briefs were filed, this Court expressed

particular interest in the following issues:

1. Whether, in light of the requirement of State v. Jordan, 325 S.W.3d 1, 72 (Tenn. 2010),

that there be “particular proof” that avoiding arrest or prosecution was one of the motives

for the murder, the evidence is sufficient to support aggravating circumstance (i)(6), that the

murder was committed for the purpose of avoiding, interfering with, or preventing a lawful

arrest or prosecution of the defendant or another.

2. Whether the trial court erred by admitting as relevant to the question of motive the

testimony of DCS employee Hope Tharp as to the details of the allegations of sex abuse

made against the defendant in a separate criminal charge.

3. Whether the trial court erred by failing to insure adequate voir dire of the jurors regarding

their access to extrajudicial information/pretrial publicity.

4. Whether the trial court erred by failing to allow the defendant to rehabilitate jurors who

were excused for cause based solely on their answers to the juror questionnaire. Regarding

this issue, the defendant and the State should be prepared to

(a) specifically discuss those jurisdictions that approve or disapprove of the practice

of excusing jurors based solely on their answers to jury questionnaires and absent

any opportunity for voir dire;

(b) recommend which of the policies the Court should adopt; and

(continued...)

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I. Venue

Prior to trial, the Defendant filed a motion requesting a change of venue on grounds

that Scott County newspaper reports, among other things, identified the Defendant as the

primary suspect, included information about the custody dispute, made reference to the child

sex abuse allegations, and speculated on the possibility of a polygraph examination. He also

claimed that many of the prospective jurors knew the victims, were related to the family of

the victims, or were employees of the Scott County Sheriff’s Department or District Attorney

General’s Office. The Defendant further contended that the trial court was predisposed to

maintain venue in Scott County as evidenced by the following comment made by the trial

court judge: “I will see to it that we will have a trial in this county.” In response, the State

pointed out that both newspaper articles cited by the Defendant had been published over a

year before the trial and that there was no indication that any jurors who sat on the panel had

been prejudiced by pretrial publicity.

As to the prospective jurors who knew the Goodmans or were employed by the

Sheriff’s Department or the District Attorney General’s Office, the State points out that one,

after indicating that he could not be fair, was excused for cause, while the others expressed

confidence that their relationships would not affect their decision as jurors. The State further

asserts that the Defendant did not challenge the two jurors who were acquainted with either

the Goodmans, the Sheriff’s Department, or the District Attorney General’s Office.

Whether to grant a motion for change of venue rests within the discretion of the trial

6

(...continued)

(c) suggest the appropriate remedy in the event the trial court committed error in

this case.

In reference to this issue, the Court observes that several of the juror questionnaires have

not been included in the record. The defendant is directed to supplement the appellate

record with all of the jury questionnaires at issue. See Tenn. R. App. P. 24(e).

5. Whether the trial court erred by allowing the admission of testimony regarding the

defendant’s initial agreement and later refusal to take a polygraph test in the child sex abuse

case.

6. Whether the trial court erred by allowing the admission of testimony and arguments

regarding out-of-court statements made by the defendant to his spouse, Sherry Sexton.

7. Whether admission of the specific facts of the sex abuse allegations against the defendant

during the guilt phase, if erroneous, qualified as harmless regarding the imposition of the

death penalty.

State v. Sexton, No. E2008-00292-SC-DDT-DD (Tenn. Nov. 16, 2011 Order).

-12-

court. State v. Rogers, 188 S.W.3d 593, 621 (Tenn. 2006) (appendix). A change of venue

should be granted, however, when “a fair trial is unlikely because of undue excitement

against the defendant in the county where the offense was committed or for any other cause.”

Tenn. R. Crim. P. 21(a). In Rogers, this Court identified the criteria governing whether a

change of venue is in order: the nature, extent, and timing of pretrial publicity; the nature of

the publicity as fair or inflammatory; the particular content of the publicity; the degree to

which the publicity complained of has permeated the area from which the venire is drawn;

the degree to which the publicity circulated outside the area from which the venire is drawn;

the time elapsed from the release of the publicity until the trial; the degree of care exercised

in the selection of the jury; the ease or difficulty in selecting the jury; the venire persons’

familiarity with the publicity and its effect, if any, upon them as shown through their answers

on voir dire; the defendant’s utilization of his peremptory challenges; the defendant’s

utilization of challenges for cause; the participation by police or by prosecution in the release

of the publicity; the severity of the offense charged; the absence or presence of threats,

demonstrations, or other hostility against the defendant; the size of the area from which the

venire is drawn; affidavits, hearsay, or opinion testimony of witnesses; and the nature of the

verdict returned by the trial jury. Rogers, 188 S.W.3d at 621-22 (appendix) (citing State v.

Hoover, 594 S.W.2d 743, 746 (Tenn. Crim. App. 1979)).

Further, in order to obtain relief on a claim that the trial court improperly denied a

motion for a change of venue, a “defendant must demonstrate that the jurors who actually sat

were biased or prejudiced against him.” Rogers, 188 S.W.3d at 622 (appendix) (citing State

v. Evans, 838 S.W.2d 185, 192 (Tenn. 1992)). “The mere fact that jurors have been exposed

to pretrial publicity will not warrant a change of venue.” Rogers, 188 S.W.3d at 621

(appendix) (citing State v. Mann, 959 S.W.2d 503, 531-32 (Tenn. 1997)). “[P]rejudice will

not be presumed on the mere showing of extensive pretrial publicity.” Rogers, 188 S.W.3d

at 621 (appendix) (citing State v. Stapleton, 638 S.W.2d 850, 856 (Tenn. Crim. App. 1982));

see also State v. Thacker, 164 S.W.3d 208, 238 (Tenn. 2005) (appendix) (“One who is

reasonably suspected of murder cannot expect to remain anonymous.”); State v. Kyger, 787

S.W.2d 13, 18-19 (Tenn. Crim. App. 1989).

Here, the Court of Criminal Appeals carefully examined the content of the June 1,

2000 edition of the Independent Herald, which reported that the Defendant had been

identified as the primary suspect as a result of interviews with family members; that the

victims had sustained multiple .22 caliber gunshot wounds to the face; that Mr. Goodman had

made allegations of child abuse in order to gain custody of the children from the Defendant;

that Mr. Goodman had planned to travel to Cleveland to seek custody of his two other

children on the Monday following the murders; and that the Defendant, who had stated that

he was going to Scott County to take care of the problem, had reportedly admitted to Ms.

Sexton that he had committed the murders and that she was cooperating in the investigation.

-13-

Following the preliminary hearing, the Scott County News reported that the Defendant

had been bound over to the Grand Jury for the two murders. The report included references

to certain testimony given in the proceeding: that Ms. Sexton and one of the Defendant’s

friends stated that the Defendant admitted that he had gone to Scott County and killed the

Goodmans; that Ms. Tharp had testified to the details of B.G.’s child sex abuse complaint

against the Defendant; that Officer Millsaps had overheard a conversation regarding a

possible polygraph examination; and that Mason had testified that both the Defendant and

Ms. Sexton had informed him that the Defendant had committed the murders.

Five of the prospective jurors, two of whom actually served on the jury, conceded that

they had some information about the crimes. As indicated, Gerald Lewis, who knew Ms.

Goodman through his relationship with her brother, Lamance Bryant, acknowledged that he

could not be fair and was excused for cause. Jeanna Jeffers described herself as being

acquainted with the Scott County Sheriff, Ms. Goodman, and Mr. Goodman’s sister, Sharon

Lawson. She also acknowledged that one of the Defendant’s attorneys had previously

represented her son in an unrelated matter. Ms. Jeffers, who served as a juror, offered

assurances that her acquaintanceship with these individuals would not affect her ability to

be fair and impartial. Linda Underwood, who also knew the sheriff, explained that their

relationship would not affect her fairness as a juror. As a result of a peremptory challenge,

however, she was excused from service. Thelma Kidd, who knew the sheriff and who

attended school with the district attorney, stated that her acquaintanceships would not prevent

her from being fair. She was permitted to serve on the jury. Craig Creech, who used to work

with Mr. Goodman’s step-brother, had a conversation with him in the hallway prior to the

selection of the jury. After learning of the conversation, the trial court excused Mr. Creech

for cause.

The record establishes that the Defendant chose not to challenge jurors Jeffers or

Kidd, either peremptorily or for cause. While the record does indicate that these jurors either

had knowledge of pretrial publicity or had some association with individuals involved in the

case, they professed the ability to perform their duties as directed by the trial court. “[T]he

mere exposure of jurors to newspaper publicity is not constitutional error.” Lackey v. State,

578 S.W.2d 101, 103 (Tenn. Crim. App. 1978) (citing Murphy v. Florida, 421 U.S. 794, 798

(1975)). The available jury questionnaires and the transcript of the voir dire contain no

indication that the pretrial publicity or the two jurors’ acquaintanceships with the sheriff, the

district attorney general, or members of the victims’ family adversely impacted the jury

panel. In consequence, the trial court did not abuse its discretionary authority by refusing to

change the venue of the trial.

II. Jury Issues

A. Jury Admonishment

-14-

After making a general reference to article I, section 9 of the Tennessee Constitution

and the Sixth Amendment to the United States Constitution, which guarantee the right to an

impartial jury, the Defendant asserts that the trial court failed to properly warn the

prospective jurors not to discuss this case with each other and with other citizens attending

the trial. The Defendant, however, neither cites to any point in the record nor identifies any

communications or extra-judicial material that tainted the jury’s process. See Tenn. R. App.

P. 27(a)(7)(A) (requiring the appellant’s brief to contain “appropriate references to the record

. . . relied on”).

Tennessee Rule of Criminal Procedure 24(g) does require courts to “give the

prospective jurors appropriate admonitions regarding their conduct during the selection

process . . . [and] during the case.”7 The record before us indicates that after the prospective

jurors were sworn, the trial court dispensed questionnaires seeking assurances that the jurors

would “avoid any outside influence on this case.” During voir dire, the trial court provided

defense counsel with the opportunity to ask the prospective jurors about any personal

knowledge of the crimes and any exposure to outside materials. No further inquiry was made

by the counsel for the Defendant.

7

The rule provides as follows:

The court shall give the prospective jurors appropriate admonitions regarding their conduct

during the selection process. After jurors are sworn, the court shall also give them

appropriate admonitions regarding their conduct during the case. In both situations these

shall include admonitions:

(1) not to communicate with other jurors or anyone else regarding any subject

connected with the trial;

(2) not to form or express any opinion about the case until it is finally submitted to

the jury;

(3) to report promptly to the court:

(A) any incident involving an attempt by any person improperly to

influence any jury member; or

(B) a juror’s violation of any of the court’s admonitions;

(4) not to read, hear, or view any news reports concerning the case; and

(5) to decide the case solely on the evidence introduced in the trial.

Tenn. R. Crim. P. 24(g).

-15-

Under these circumstances, we cannot find error. Absent any evidence in the record

that the trial court’s admonishment of the jury was lacking or that individual jurors were

prejudiced by exposure to extra-judicial influences, the Defendant is not entitled to relief.

B. Striking Jurors Based on Questionnaire Responses

Both the State and counsel for the Defendant were afforded the opportunity to submit

questions to include in the questionnaire that prospective jurors were required to complete

as part of the voir dire process. In the questionnaire, jurors were asked to “circle one of the

following that best reflects your feeling about the death penalty[:] 1. Automatically vote for

the death penalty[;] 2. Strongly favor the death penalty[;] 3. Neither favor nor oppose the

death penalty[;] 4. Strongly oppose the death penalty[;] 5. Never vote for the death penalty[;

or] 6. None of the above[.] If number 6, please explain[.]” After receiving the responses, the

trial court, without considering all of the answers on each prospective juror’s questionnaire,

excused the eighteen prospective jurors who selected either choice 1, indicating that they

would automatically vote for the death penalty, or choice 5, indicating that they would never

vote for the death penalty.

In this appeal, the Defendant contends that the “refusal to allow attorney questioning

of these . . . jurors violated the [Defendant’s] rights under Tenn. Const. Art. I §§ 8, 9, 16, 17;

Art. XI § 8; U.S. Const. Amends. V, VI, VII, and XIV.” In response, the State first contends

that the claim was waived based on the Defendant’s failure to explain either the basis of his

initial objection or the nature of the constitutional violation. The State nonetheless addresses

the merits of the Defendant’s claim, arguing that because the trial court’s questionnaire

identified those prospective jurors who could not consider all possible forms of punishment,

their exclusion was not erroneous. The Court of Criminal Appeals did not consider this

issue.

Initially, the State and counsel for the Defendant had some participation in the

preparation of the questions contained in the jury questionnaire. During a pretrial hearing

regarding a defense motion challenging the procedure for striking jurors because of their

opposition to the death penalty, the trial court made the following announcement regarding

the questionnaire that would be distributed to prospective jurors:

Just for the record, . . . I’m going to insert . . . question [33] on my own, and

my idea is anyone who essentially cannot follow the instruction, who will

always impose the death penalty in such a case or who will never impose the

death penalty in a specific case, they will be excluded for cause. Okay, that’s

the Court’s promise.

Responding to the trial court’s stated intention of striking jurors who responded that they

-16-

would either “always” or “never” impose the death penalty, defense counsel stated, “Well,

I’m objecting—for the record’s sake.” Later, upon receiving the prospective jurors’

questionnaires, the trial court made reference to the prospective jurors who had indicated that

they would either “automatically” vote for the death penalty or “never” vote for the death

penalty: “I’m going to excuse the ones that have been challenged because they are not death

qualified. I think we all know the criteria that the Court was using, and you may want to

place an objection on the record as to that.” Defense counsel responded, “We have an

objection we’ll not argue, your honor.”

The failure “to take whatever action was available to prevent or nullify the harmful

effect of an error” may result in a waiver of the issue on appeal. Tenn. R. App. P. 36(a); see

also State v. Gregory, 862 S.W.2d 574, 578 (Tenn. Crim. App. 1993). Under these

circumstances, however, the issue cannot be considered as waived. Moreover, because

another jury will be empaneled on the remand to the trial court for sentencing, this Court has

chosen to provide guidance on the issue.

Initially, both the United States Constitution and the Tennessee Constitution, as

indicated, guarantee defendants the right to an impartial jury. U.S. Const. amend. VI; Tenn.

Const. art. I, § 9; see also Morgan v. Illinois, 504 U.S. 719, 729-30 (1992) (explaining that

the trial judge must ensure that the jurors follow their instructions and fairly evaluate the

evidence). All defendants are entitled to a trial by a jury free of “bias or partiality toward one

side or the other of the litigation.” State v. Schmeiderer, 319 S.W.3d 607, 624 (Tenn. 2010)

(appendix). To achieve this goal of fair and impartial juries, voir dire permits questioning

by the court and counsel so that certain potential jurors can be properly challenged and

stricken. See State v. Akins, 867 S.W.2d 350, 354 (Tenn. Crim. App. 1993). Trial courts

are vested with considerable discretion in conducting the voir dire process. Schmeiderer, 319

S.W.3d at 625 (appendix); State v. Howell, 868 S.W.2d 238, 247 (Tenn. 1993). Rule of

Criminal Procedure 24(b) and (c), which governs voir dire, provides, in pertinent part, as

follows:

(b) Questioning Potential Jurors.

(1) Questioning Jurors by Court and Counsel. The court may ask potential

jurors appropriate questions regarding their qualifications to serve as jurors in

the case. It shall permit the parties to ask questions for the purpose of

discovering bases for challenge for cause and intelligently exercising

peremptory challenges.

(2) Questioning Outside Presence of Other Jurors. On motion of a party or its

own initiative, the court may direct that any portion of the questioning of a

-17-

prospective juror be conducted out of the presence of the tentatively selected

jurors and other prospective jurors.

(c) Challenges for Cause.

(1) Procedures. After examination of any juror, the judge shall excuse that

juror from the trial of the case if the court is of the opinion that there are

grounds for challenge for cause. After the court has tentatively determined

that the jury meets the prescribed qualifications, counsel may conduct further

examination and, alternately, may exercise challenges for cause.

Tenn. R. Crim. P. 24. This Court has interpreted the rule to give the “trial judge the right to

excuse a juror for cause without examination of counsel.” State v. Hutchison, 898 S.W.2d

161, 167 (Tenn. 1994). In reviewing the trial court’s disqualification of a potential juror, the

standard historically applied has been that the trial court’s decision must be upheld on appeal

absent a clear abuse of discretion. Schmeiderer, 319 S.W.3d at 625 (appendix); State v.

Raspberry, 875 S.W.2d 678, 681 (Tenn. Crim. App. 1993).

In capital cases, potential jurors may not be excluded simply because they express

“general objections to the death penalty” or express reservations in its application.

Witherspoon v. Illinois, 391 U.S. 510, 522 (1968). Exclusion is proper only when potential

jurors’ views will “prevent or substantially impair the performance of their duties in

accordance with their instructions or their oaths.” Wainwright v. Witt, 469 U.S. 412, 424 n.5

(1985). As such, “the extremes must be eliminated—i.e., those who, in spite of the evidence,

would automatically vote to convict or impose the death penalty or [those who would]

automatically vote to acquit or impose a life sentence.” Morgan, 504 U.S. at 734 n.7

(quoting Smith v. Balkcom, 660 F.2d 573, 578 (5th Cir. 1981)) (internal quotation marks

omitted).

While addressing juror responses to oral questions, rather than a written questionnaire,

this Court has considered the issue of whether a potential juror with a declared opposition

to the death penalty could be excused by the trial court absent any opportunity being afforded

the Defendant to rehabilitate the juror. See State v. Austin, 87 S.W.3d 447, 472-73 (Tenn.

2002). This Court employed the Wainwright standard in Austin—“whether the juror’s views

would prevent or substantially impair the performance of his duties as a juror in accordance

with his instructions and his oath,” Wainwright, 469 U.S. at 424—and upheld the trial court’s

dismissal of a juror because the juror’s answers left “‘no leeway for rehabilitation.’” Austin,

87 S.W.3d at 472-73 (quoting State v. Strouth, 620 S.W.2d 467, 471 (Tenn. 1981)). This

Court adopted the Court of Criminal Appeals’ view that a juror’s bias regarding the death

penalty need not be proved with “unmistakable clarity,” but that the trial judge must have the

“definite impression” that the potential juror is incapable of following the law. Austin, 87

-18-

S.W.3d at 473. The stated scope of review was that a trial court’s finding of juror bias based

on views of the death penalty is accorded a presumption of correctness that will not be

overturned absent “convincing evidence” that the ruling was erroneous. Id. While numerous

opinions from this Court have recited and relied on this standard, our research reveals no

cases where this Court has reviewed a trial court’s decision to strike prospective jurors based

solely on a single response to a questionnaire. See, e.g., State v. Reid, 213 S.W.3d 792, 835-

36 (Tenn. 2006) (appendix) (where, in addition to multiple questionnaire responses, the trial

court reviewed the prospective juror’s oral responses to voir dire questioning); Rogers, 188

S.W.3d at 624-25 (appendix) (where the trial court individually questioned prospective jurors

to follow up on their questionnaire responses); State v. Berry, 141 S.W.3d 549, 579-82

(Tenn. 2004) (appendix) (where the trial court sought clarification of the prospective jurors’

questionnaire responses).

The Defendant relies, in part, on two California cases, People v. Stewart, 93 P.3d 271,

286-87, 289-90 (Cal. 2004) and People v. Wilson, 187 P.3d 1041, 1054-55 (Cal. 2008), for

the proposition that “it is unconstitutional . . . to excuse for cause prospective jurors based

solely on written answers provided in [j]ury [q]uestionnaires.” In both cases, jurors were

excluded based solely upon answers to written questionnaires. The California Supreme

Court conducted de novo reviews. In Stewart, the court held that excluding a prospective

juror based solely on a written questionnaire is not per se unconstitutional, but did observe

that based on the wording of the questionnaire and the jurors’ answers to the questionnaire,

it was not clear that they would be unable to faithfully carry out their duty as jurors. Stewart,

93 P.3d at 289-90. In Wilson, the court applied the rule established in Stewart, but upheld

the trial court’s exclusion of prospective jurors based on their overall responses to the jury

questionnaire, commenting that the jurors’ responses to one specific question made it

“sufficiently clear” that they could not fulfill their duties as impartial jurors. Wilson, 187

P.3d at 1061.

The State cites People v. McKinnon, 259 P.3d 1186, 1219-20 (Cal. 2011), as support

for its argument that striking prospective jurors because of their responses to a written

questionnaire is proper. When potential jurors in McKinnon indicated by their responses to

several written questions that they would always vote in a certain manner and defense

counsel declined an offer for further examination, the court ruled that removal is proper if

there is “sufficient information . . . to permit a reliable determination that the juror’s death

penalty views would prevent or substantially impair the performance of his or her duties.”

Id. at 1219 (internal quotation marks omitted); see also People v. Avila, 133 P.3d 1076, 1105

(Cal. 2006) (upholding trial court’s disqualification of jurors based on answers to a written

questionnaire where several questions enabled the trial court to identify potential jurors’

views “so strong as to disqualify them for duty on a death penalty case”). When determining

the propriety of striking prospective jurors based on responses to a questionnaire, the focus

-19-

in California appears to be on the substance and sufficiency of the questions and the

unequivocal nature of the responses.

Our view is that the exclusion of prospective jurors based solely upon the response

options to Question 33, as phrased in the questionnaire, is not permissible. First, neither of

the options is tethered to the circumstances of the case. For example, a juror’s choice of the

first response option—“Automatically vote for the death penalty”—could mean that the juror

would automatically vote for the death penalty if the State proved that the defendant had

committed a capital offense and that the aggravating factors outweighed the mitigating

factors; but it could also mean that the juror would automatically vote to impose the death

penalty even if the State did not prove its case. Similarly, a juror’s choice of the fifth

response—“Never vote for the death penalty”—could mean that the juror would not impose

the death penalty even if the State proved beyond a reasonable doubt that the defendant had

committed a capital offense and that the aggravating factors outweighed the mitigating

factors. In order to have predictive value as to whether the prospective juror’s responses

represent more than a general objection to or general predisposition for the implementation

of the death penalty, see Witherspoon, 391 U.S. at 522, questions such as these should be

honed to a finer point. Prior to disqualification of a prospective juror, the trial court should

develop a process designed to definitively ascertain whether the juror is predisposed to a

certain result regardless of the law. Austin, 87 S.W.3d at 473; see Hutchison, 898 S.W.2d

at 167 (jurors insisting that they are unable to impose the death penalty regardless of the law

are disqualified).

A second concern is the manner in which the trial court used the answers to Question

33. From all appearances, the trial court excluded the prospective jurors based solely upon

their answer to Question 33 without considering the jurors’ answers to any of the other

questions. In our assessment, trial courts must consider in context all of the answers on a

prospective juror’s questionnaire rather than an isolated response. To illustrate, in State v.

Anderson, 4 P.3d 369, 373-74 (Ariz. 2000), the Arizona Supreme Court, addressing a

procedural rule in that state, held that the trial court erred when it excused prospective jurors

based on their answers to a written questionnaire over defense counsel’s objection and

request for oral voir dire. In that case, the court pointed out that the answers, taken together,

did not illustrate a “final and unequivocal” position regarding the death penalty. Id. at 374.8

8

Contrary to the view adopted in California, the Arizona Supreme Court ruled that the procedural

error affected the composition of the jury, requiring the guilty verdict to be set aside even when the evidence

was overwhelming. Anderson, 4 P.3d at 377-79. But see Gray v. Mississippi, 481 U.S. 648, 667-68 (1987)

(overturning death sentence but not disturbing guilty conviction); see also People v. Tate, 234 P.3d 428, 458

(Cal. 2010) (holding that “an error of [improperly striking a juror based on a questionnaire] does not require

reversal of the guilt phase verdict”); Stewart, 93 P.3d at 292 (stating that this type of error “does not require

(continued...)

-20-

In this instance, further questioning may have afforded either the State or the defense an

opportunity for rehabilitation. Only a definitive answer that the prospective juror would

either always vote for the death penalty or never vote for the death penalty regardless of the

instructions of the trial court is the kind of predisposition which might “prevent or

substantially impair the performance of [their] duties” as jurors and result in disqualification.

Wainwright, 469 U.S. at 424.

The jury questionnaire used in this case contains at least nine questions in addition to

Question 33 that touched upon the prospective jurors’ view of the death penalty. For

example, Question 5 asks whether the juror has any philosophical, religious, or moral feeling

that would make it difficult or impossible to sit in judgment of another. Question 5(A) asks

whether a juror is a member of a religious organization that has a stated position regarding

the death penalty (and what that position is). Question 7 asks whether the juror belongs to

any group or organization which is opposed to or in favor of the death penalty. Question

13(E) asks whether the juror has any feelings about the nature of the charges that would

make it difficult or impossible to be fair and impartial. Question 29 asks whether the juror’s

attitudes on the criminal justice system are such that they would be leaning toward the

prosecution or the defense before hearing both sides. Question 31 asks whether the juror can

think of any reason why he or she cannot be impartial. Question 36 asks whether the juror,

depending on all the facts and circumstances of the case and all the evidence presented, could

consider as a realistic and practical possibility imposing the death penalty, life without

parole, or a life sentence. Question 40 asks whether the juror believes the death penalty is

imposed too often, too seldom, randomly, or about right. Question 41 asks the juror whether

there is any other information not specifically requested in the questionnaire that the court

should know regarding the juror’s attitude about imposing the death penalty, life without

parole, or life with parole. Finally, catch-all Question 42 asks whether there is anything else

the juror believes should be brought to the trial court’s attention.

Our review of a sampling of the prospective jurors’ questionnaires reveals that some

of their answers regarding the death penalty were inconsistent with their other responses. For

example, Dorsey Mullins, in answer to Question 33, stated that he neither favored nor

opposed the death penalty; however, in the answer lines for the sixth response – “None of

the above” – he wrote that he did not believe in the death penalty. In response to Question

6, he wrote that he was a Baptist and that the church’s stated position opposed the death

penalty. In answer to Question 36(B), he stated that he could not consider the death penalty

as a realistic and practical possibility. Finally, in answer to Question 40, Mr. Mullins stated

8

(...continued)

reversal of the guilt judgment”); People v. Heard, 75 P.3d 53, 66 (Cal. 2003) (holding that “such an error

does not require reversal of the judgment of guilt”).

-21-

that there should not be a death penalty.

Deborah Morrow answered Question 33 by stating that she could never impose the

death penalty. Yet in answer to Question 36(B), she stated that she could consider imposing

the death penalty as a realistic and practical possibility, but she added that “only God has the

right to take a life.” She also answered Question 5 by writing that she was against the death

penalty but could certainly impose a sentence of life without parole.

Similarly, Michael Stephens answered Question 33 by stating that he would

automatically vote for the death penalty. In answer to Question 36(B), however, he stated

that he could not consider imposing the death penalty as a realistic and practical possibility.

He also answered Questions 36(A) and 36(C) by stating that he could not consider life

without parole or life imprisonment. In answer to Question 34 (a question that he should not

have answered in light of his answer to Question 33), Mr. Stephens stated that it would not

go against his nature to vote for life without parole or life imprisonment.

The answers provided by prospective jurors Mullins, Morrow, and Stephens, may

have been a basis for disqualification. Nevertheless, their inconsistent answers suggest a

level of uncertainty and highlight the risk that eliminating prospective jurors based solely on

an answer to one written question may result in the exclusion of those who are entirely

capable of rendering a proper verdict, and, if a defendant is found guilty in a capital case,

imposing a sentence based on the law and the facts. Thus, trial courts must consider all of

a juror’s answers on a questionnaire, rather than giving just one answer dispositive weight,

and should permit counsel to examine prospective jurors who provide inconsistent responses

to pertinent questions.

In summary, those accused of crimes have a constitutional right to a trial by an

impartial jury. State v. Odom, 336 S.W.3d 541, 556 (Tenn. 2011). By the same token, the

State has an interest in having jurors who are able to impose capital punishment within the

framework provided by law. Uttecht v. Brown, 551 U.S. 1, 9 (2007). Similarly, otherwise

qualified jurors whose ability to impose the death penalty is not substantially impaired must

not be arbitrarily prevented from serving on a jury in a capital case when called upon to do

so. See Wolf v. Sundquist, 955 S.W.2d 626, 630 (Tenn. Ct. App. 1997). On remand, the

composition and use of juror questionnaires must be consistent with these constitutional

principles.

C. Failing to Adequately Voir Dire Jurors

The Defendant next asserts that the trial court failed to adequately voir dire the jurors

as to their pretrial exposure to extrajudicial information. In support of his argument, he

names nine jurors who admitted to having been exposed to reports about the murders and

-22-

submits that the trial court erred by asking only one of these jurors about the substance of the

information. The record indicates that none of those who actually served as jurors were

challenged for cause.

As stated, the manner in which voir dire is conducted rests within the sound discretion

of the trial court. Howell, 868 S.W.2d at 247. The goal of voir dire is to empanel a jury that

is competent, unbiased, and impartial. State v. Hugueley, 185 S.W.3d 356, 390 (Tenn. 2006)

(appendix); State v. Cazes, 875 S.W.2d 253, 262 (Tenn. 1994); Howell, 868 S.W.2d at 247.

A juror’s prior knowledge about a case does not automatically result in constitutional error.

Murphy, 421 U.S. at 799-800; Hugueley, 185 S.W.3d at 390 (appendix). The fundamental

inquiry “in determining a juror’s acceptability is whether his exposure is to matters . . . ‘so

prejudicial as to create a substantial risk that his or her judgment will be affected.’”

Hugueley, 185 S.W.3d at 390 (appendix) (quoting Tenn. R. Crim. P. 24(c)(2)(B)). A trial

court’s determination as to the impartiality of a prospective juror can be overturned only if

there has been an abuse of discretion. State v. Kilburn, 782 S.W.2d 199, 203 (Tenn. Crim.

App. 1989). Appellate courts must uphold a trial court’s ruling with respect to the

impartiality of prospective jurors absent a finding of manifest error. Patton v. Yount, 467

U.S. 1025, 1031 (1984); Hugueley, 185 S.W.3d at 390 (appendix).

Rule 24(c)(1) of the Tennessee Rules of Criminal Procedure states that “[a]fter

examination of any juror, the judge shall excuse that juror from the trial of the case if the

court is of the opinion that there are grounds for challenge for cause.” A prospective juror

can also be challenged for cause if

[t]he prospective juror’s exposure to potentially prejudicial information makes

the person unacceptable as a juror. The court shall consider both the degree

of exposure and the prospective juror’s testimony as to his or her state of mind.

A prospective juror who states that he or she will be unable to overcome

preconceptions is subject to challenge for cause no matter how slight the

exposure. If the prospective juror has seen or heard and remembers

information that will be developed in the course of trial, or that may be

inadmissible but is not so prejudicial as to create a substantial risk that his or

her judgment will be affected, the prospective juror’s acceptability depends on

whether the court believes the testimony as to impartiality. A prospective juror

who admits to having formed an opinion about the case is subject to challenge

for cause unless the examination shows unequivocally that the prospective

juror can be impartial.

Tenn. R. Crim. P. 24(c)(2)(B).

-23-

Because mere exposure to extrajudicial information does not automatically disqualify

prospective jurors, trial courts must assess whether they can serve fairly and impartially given

their knowledge of outside information. See Hugueley, 185 S.W.3d at 390 (appendix). In

making this determination, the trial court must assess the level of potential prejudice arising

from the extrajudicial information, as well as the believability of the juror’s promise to

remain impartial. See State v. Shepherd, 862 S.W.2d 557, 569 (Tenn. Crim. App. 1992).

Given the wide-ranging availability of information in today’s world, it is “quite likely jurors

have some level of pre-trial exposure to the facts and issues involved in a case.” Hugueley,

185 S.W.3d at 390 (appendix). In Irvin v. Dowd, 366 U.S. 717, 723 (1961), the United

States Supreme Court observed that to

hold that the mere existence of any preconceived notion as to the guilt or

innocence of an accused, without more, is sufficient to rebut the presumption

of a prospective juror’s impartiality would be to establish an impossible

standard. It is sufficient if the juror can lay aside his impression or opinion

and render a verdict based on the evidence presented in court.

While the Defendant claims that the trial court should have further questioned the

jurors to learn the substance and extent of their pretrial exposure to information about the

murders, “such questions are not constitutionally required, and a trial court’s failure to ask

such questions is not reversible error unless the defendant’s trial is thereby rendered

fundamentally unfair.” Cazes, 875 S.W.2d at 262. In this instance, counsel for the

Defendant was permitted to individually voir dire the jurors about the source and nature of

any information they may have seen, heard, or read. While several of the jurors

acknowledged that they had some exposure to information appearing in the local newspaper,

all promised to serve in an impartial manner and to heed the instructions of the trial court.

The Defendant does not point to anything “so prejudicial as to create a substantial risk that

[the jurors’] judgment [would] be affected.” Hugueley, 185 S.W.3d at 390 (appendix).

Nothing in the record suggests that the trial court abused its discretionary authority by not

further questioning the jurors regarding their exposure to pretrial information. See Shepherd,

862 S.W.2d at 569 (explaining that it is up to the trial court to assess the believability of the

jurors’ assurances to serve impartially and follow the court’s instructions). The Defendant

is not entitled to relief on this issue.

D. Failing to Excuse Jurors for Cause

The Defendant argues that the trial court violated his constitutional right to an

impartial jury by failing to sua sponte excuse prospective jurors for cause. The Defendant

contends that jurors Divine Crabtree, Jr. and Pamela Webb should have been disqualified for

cause by the trial court and that prospective jurors Sharon Hughett, Loretta Terry, Judith

Autry, Jimmy Chambers, Tina Sexton, Peggy Frogge, Sara Angela Jeffers, and Daniel

-24-

Murley should also have been excused for cause.

Juror Crabtree, while conceding that it would “be hard,” testified that he could be fair

and impartial and render a verdict without regard to what he had heard about the case. Juror

Webb, after commenting that, if the Defendant was found guilty, she “would not consider

any punishment that allowed parole,” softened her stance after learning from the Defendant’s

counsel that fifty-one years of service on a life sentence was required before one was eligible.

The prospective jurors who did not sit on the jury all expressed the ability to be fair and

impartial despite any predispositions in regard to the imposition of the death penalty or their

knowledge of newspaper reports. Of those, the Defendant did not challenge prospective

jurors Hughett, Autry, Chambers, Sexton, or (Sara Angela) Jeffers. The Defendant did

challenge prospective jurors Terry, Frogge, and Murley, but the trial court refused to strike

any of the three for cause.

The trial court asked Ms. Frogge the following question: “Is it your position that when

you say the punishment should fit the crime, if the crime is killing somebody, in your mind

does that automatically mean the death penalty?” She replied, “Well, probably yes.” When

the trial court asked if she could follow the law regardless of her view, she answered, “I think

so.” Afterward, the defense counsel asked as follows: “If the proof in this case were that

there was a premeditated killing of two people in their sleep, in their home, would you feel

like that . . . would automatically engage the death penalty or would you still be able to

consider other punishments?” Ms. Frogge replied, “[T]hat would probably warrant the death

penalty . . . if it’s premeditated.” Sara Angela Jeffers, who indicated in her responses to the

questionnaire that she strongly favored the death penalty, was asked the following question:

“[D]o you feel like anytime somebody was convicted of taking another person[’]s life that

they should pay with their own life?” Ms. Jeffers answered, “Yes . . . [except for] some kind

of mental problem.” When the trial court intervened, asking Ms. Jeffers if she could consider

all three possible punishments, she answered in the affirmative. Juror Murley, when filling

out the questionnaire, indicated that he would tend to lean to the prosecution, but explained

that his answer was based on what he had read in the newspapers about the crimes. He also

stated that he strongly supported the death penalty in a response to the questionnaire

explaining, “[T]hat’s just my belief.” Murley also stated that he believed more people ought

to receive the death penalty. When challenged for cause, however, the trial court asked juror

Murley if he would consider all three possible punishments. When Murley answered in the

affirmative and assured the court that he would not automatically vote in any direction, the

trial court declined to disqualify him for cause.

The criminal justice system seeks to obtain jurors who are able to follow the law—“to

follow conscientiously the instructions of a trial judge and to consider fairly the imposition

of the death sentence in a particular case.” Boulden v. Holman, 394 U.S. 478, 483-84

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(1969). As stated, the general proposition established in Wainwright is that a juror may not

be challenged for cause unless his beliefs about capital punishment would substantially

impair the performance of his duties as a juror. Wainwright, 469 U.S. at 424 n.5; Adams v.

Texas, 448 U.S. 38, 39 (1980). The trial court’s accreditation of the juror’s testimony is

entitled to the weight of a jury verdict. State v. Swanson, 680 S.W.2d 487, 489-90 (Tenn.

Crim. App. 1984).

In order to prevail on a challenge of this nature, the Defendant must demonstrate not

only that a juror should have been removed for cause, but that he had exhausted all of his

peremptory challenges. Howell, 868 S.W.2d at 248. Here, the Defendant fails on both

counts. First, juror Crabtree, while expressing concern about his ability to disregard reports

about the murders, assured the trial court that he would render a verdict based on the proof

at trial. Juror Webb, while expressing concern about parole eligibility if the Defendant was

found guilty, responded in a manner suggesting that she changed her mind after learning

what a life sentence entailed. Neither juror appears to have been challenged by the

Defendant. The record does not establish that the trial court abused its discretion.

Secondly, there is no indication that the Defendant utilized all of his peremptory

challenges. Each side was entitled to fifteen challenges. Tenn. Code Ann. § 40-18-118

(1997); see also Tenn. R. Crim. P. 24(e)(1). While the record shows that there was a total

of twenty-two peremptory challenges, there is no indication as to how many of those were

allocated to the Defendant. None of the three individuals challenged for cause served on the

jury. Even if the trial court erred by failing to excuse these three prospective jurors, or the

others named, such an error is always harmless unless all peremptory challenges were used

and one or more of the actual jurors could not be fair and impartial. Howell, 868 S.W.2d at

248; State v. Thompson, 768 S.W.2d 239, 246 (Tenn. 1989).

III. Evidentiary Issues

A. Sufficiency of the Evidence

Without supporting argument, the Defendant preliminarily asserts that the convicting

evidence was insufficient and that the verdict was contrary to the weight of the evidence.

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

convicting evidence. Initially, 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). Further, “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 jury, as the trier of fact, is empowered to assess the credibility of the

witnesses, to address the weight to be given their testimony, and to reconcile any conflicts

in the proof. State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State,

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575 S.W.2d 292, 295 (Tenn. Crim. App. 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.” State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009) (citing

Evans, 838 S.W.2d at 191).

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

evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973); Marable v. State, 313 S.W.2d

451, 456-57, 461 (Tenn. 1958). Ultimately, however, 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) (quoting Marable, 313

S.W.2d at 457). In State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011), 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. The standard of review is, therefore, identical “‘whether the conviction is based

upon direct or circumstantial evidence.’” Id. at 379 (quoting Hanson, 279 S.W.3d at 275).

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).

There was no eyewitness to the murders of Mr. and Ms. Goodman; however, the

evidence of the Defendant’s guilt, while largely circumstantial, was overwhelming. The

proof established that the Defendant, who believed that Mr. Goodman had made the

complaint against him that had resulted in an investigation of possible child sex abuse and

the potential loss of physical custody of the three children in his home, clearly had a motive.

Ms. Tharp, Officer Millsaps, Detective Alvarez, and Preston Adams all testified that they had

heard the Defendant, in various conversations, blame Mr. Goodman for influencing B.G. to

fabricate the allegation of sex abuse. Officer Millsaps overheard the Defendant, when

confronted with the DCS investigation, remark that he might go to jail for murder, but not

for child abuse. Further, Shera Crowley, who prepared the Defendant’s tax return, confirmed

that the Defendant had made threats to take Mr. Goodman’s life some three months earlier

in connection with issues related to the support of the children.

In addition to motive, there was evidence that the Defendant had the means to commit

the murders. After learning from Detective Alvarez that Mr. Goodman planned to file a

change of custody suit in Bradley County on the following Monday, the Defendant first asked

Adams where he could find a weapon, so as “to take care of the matter before it could

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escalate,” implying that he meant to prevent Mr. Goodman from traveling to Bradley County.

On the Saturday afternoon before the murders, the State offered proof that the Defendant

obtained a .22 caliber rifle from Mason, explaining that he had to “take care of some business

in Scott County.”

There was also evidence that the Defendant had the opportunity to commit the

murders in Scott County. Ms. Strunk testified that the Defendant, who had actually lived in

the Goodmans’ residence for a time, was aware that the door was left unlocked on Saturday

nights when E.G. went to the races. On the afternoon of the day of the shootings, Ms.

Chumley, a Dollar Store employee in Bradley County, sold a black sweat shirt and pants to

an individual she described as a white male. The store’s day journal documented the sale.

A matching receipt from the same store was later found in a search of the Defendant’s car.

By 6:00 p.m., the Defendant had acquired the .22 rifle that had been in Mason’s possession.

The car travel time from Bradley County to Scott County was estimated at between two and

two and one-half hours one way. E.G. returned to the Goodman residence in Scott County

between 9:30 p.m. and 11:00 p.m. on Saturday. Mason next saw the Defendant in Bradley

County at 3:00 a.m. on Sunday morning—sufficient time for the Defendant to travel to Scott

County, commit the murders, and return to Bradley County.

Finally, there was proof that the Defendant acknowledged his involvement in the

crimes to at least three different individuals. By 8:30 a.m. on the Sunday following the

murders, the Defendant had admitted to his friend Mason that he had shot and killed Mr.

Goodman and then bought tires for his car, apparently in an effort to conceal his crimes. On

the following day, he informed his co-worker Adams that he had purchased oversized shoes,

gloves, a hood, and sweat pants at a Dollar Store and, after removing “all hair follicles off

of his body,” traveled to Scott County and shot the Goodmans in their bedroom. The

Defendant told Adams that he then burned his clothes and disposed of the murder weapon.

On the Sunday after the murders, the Defendant also contacted Christy Swallows, his

mistress and babysitter, blaming Mr. Goodman for the child sex abuse investigation and

confiding to her that he had obtained a gun and killed the Goodmans. In our view, therefore,

this evidence was clearly sufficient to support each of the two convictions for first degree

murder.

B. Child Sex Abuse Allegations

1. Rule 404(b)

The Defendant argues that the trial court failed to comply with Rule 404 of the

Tennessee Rules of Evidence on the question of whether to allow Hope Tharp to testify to

the details of B.G.’s allegations of child sex abuse. First, he asserts that the trial court failed

to conduct an adequate hearing. Second, he submits that the State did not clearly and

convincingly establish, as required by the rule, that the sexual abuse had actually taken place.

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Third, he maintains that the probative value was outweighed by the danger of unfair

prejudice. His final argument is that the trial court erred by allowing the admission of the

evidence, despite its hearsay nature, in violation of his right of confrontation under both the

state and federal constitutions.

After jury selection, the trial court, in response to a pretrial brief filed by the State

seeking permission to offer Rule 404(b) evidence, addressed whether to allow testimony by

Ms. Tharp that the Defendant had sexually abused B.G. The transcribed preliminary hearing,

which included the testimony of Ms. Tharp, was made a part of the State’s presentation and

is included as an exhibit to the record. Otherwise, no proof was entered. The Defendant’s

counsel argued for the exclusion of the evidence as especially prejudicial. While insisting

that the Defendant was “entitled to a hearing on the issue,” defense counsel suggested, as an

alternative to the admission of the details of the sexual abuse allegations, that the State

establish motive by reference to the child custody issue, explaining, “[t]hat gets the motive

in without the prejudicial effect of the allegations of the sexual abuse.” In response, the State

contended that the details of B.G.’s complaint to Ms. Tharp were especially probative

because of the degree of seriousness of the allegations. As compared to the custody issue,

the State asserted that the sex abuse testimony moved the evidence “from two on the motive

scale of likely to do it to nine or ten.” The State further argued that “even if these allegations

[were] totally false . . . you’d be up to about eight on the motive range,” implying that their

truthfulness or falsity was not particularly relevant.

The trial court, without actually hearing Ms. Tharp’s testimony, ruled that the

evidence would be admissible so long as “not cumulative and overly prejudicial.” In

response, the Defendant’s counsel remarked, “[W]e’re not even talking about a prior

conviction here . . . [,] there has been no finding . . . [a]nd that’s why we’re asking for a

hearing.” While acknowledging that the evidence was “very prejudicial,” the trial court ruled

that the probative value outweighed the prejudicial effect, but instructed the State to caution

its witnesses not to describe “in a graphic manner . . . as to what the accusations are” and

commented that the details were “not necessary and . . . border on undue prejudice.” After

further argument by the State, however, the trial judge relented, holding that the jury could

hear the details, but only once, and explaining that limiting instructions would be provided

at the time of its admission.9

9

Regarding Ms. Tharp’s testimony, the trial court provided jury instructions as follows:

Ladies and gentlemen . . . I am going to give you a legal definition or an instruction

concerning some evidence that you may or may not have heard. This is . . . a curative

instruction concerning some of the evidence that Ms. Tharp gave you today. Please listen

carefully. This will also be included at the final stage. . . . You have heard evidence that the

(continued...)

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At trial, Ms. Tharp, when asked by the State to describe her conversation with the

Defendant after her interview with the three children in the Sexton residence, testified as

follows:

I told Mr. Sexton that B.G. had told me that he had grabbed her by the

shoulders and sat her down. And I told him, I said, you know, as I talked to

her, she told me some things that didn’t make a lot of sense to me. So, I had

to have her show me what she was talking about . . . .

So, I told him, I said, I had B.G. show me exactly on the couch how she was

sitting. Because I told him, B.G. told me her feet were on the floor, but she

was laying on the couch. And I didn’t understand how that could occur, which

made me think, well, maybe something is not right. So, I told him, I said, I had

B.G. showed [sic] me, and B.G. showed me that she was sitting facing him,

which would have been in this direction, her feet on the floor, and she was

leaning down this way onto the couch. I told him I asked her . . . if he had said

anything to her. And I told him, B.G. told me you said, “Close your eyes and

open your mouth.” And B.G.– I told him, I said, B.G. said that she closed her

eyes and she opened her mouth. And when she opened her eyes she saw the

bad spot.

And I told him I didn’t know what she meant by that, so I asked her to describe

that for me. And I told him, she described that for me as the place that he pees

and it has a hole in it. And I told him I said, B.G., if you’re telling me that you

can see his place that he pees but he has on clothes, I don’t understand how

you can do that. And I told him, B.G. explained to me that you pulled your

penis out of your jogging pants and she saw it when she opened her eyes.

And I told him, I said, I asked B.G., well, what happened after that. And I

9

(...continued)

Defendant was accused of sexual abuse of a child. The Defendant is not on trial for any

offenses associated with child sexual abuse. You may not consider this evidence to prove

the Defendant’s disposition to commit the act of premeditated murder. This evidence can

be considered by you only for the limited purpose of determining whether it provides

motive. In other words, you may consider the accusation only as it tends to show a motive

of the Defendant to commit the crime charged in this case. Such evidence of the accusation,

if considered by you for any purpose, must not be considered for any purpose other than

motive.

(Emphasis added).

-30-

explained to him that B.G. told me that she was made to put her mouth onto

his penis and suck it. And I told him that B.G.– I told him, I said I asked her

if anything else happened. And B.G. told me that you made her put your hand

on your penis and move it up and down like this.

And I told him I asked B.G., can you tell me anything else about this that

would help me understand what happened. And I told him that B.G. told me

that it tasted yucky. And I told him, I asked B.G. if anything had come out and

I told him that B.G. told me no, nothing had come out, but that she could taste

it.

I also told him that B.G. told me that he had pushed her off the couch and that

B.G. told me he told her if she ever told, she would never see her dad again.10

Sexton, 2010 WL 5054428, at *20.

The Court of Criminal Appeals held that the trial court had conducted a hearing

outside the jury’s presence, had determined, as required, that a material issue existed as to

motive, and had properly found, in accordance with the rule, that the probative value

outweighed the prejudice. Id. at *17. However, the court also found that because the trial

court had erred by failing to actually require Ms. Tharp to testify at the pretrial hearing and

by failing to timely determine whether the State had proved the act of child sex abuse by

10

At the time of these acts, the applicable statute provided as follows:

(a) Rape of a child is the unlawful sexual penetration of a victim by the defendant

or the defendant by a victim, if such victim is less than thirteen (13) years of age.

(b) Rape of a child is a Class A felony.

(c) When imposing sentence under the provisions of title 40, chapter 35, for a

conviction under this section, the court shall consider as an enhancement factor that the

defendant caused the victim to be mentally incapacitated or physically helpless by use of a

controlled substance.

Tenn. Code Ann. § 39-13-522 (1997).

A person convicted of rape of a child is further “required to serve the entire sentence imposed by the

court undiminished by any sentence reduction credits such person may be eligible for or earn.” Tenn. Code

Ann. § 39-13-523(b) (1997 & Supp. 2000). In addition, such a defendant is required to serve a sentence of

community supervision for life. See Tenn. Code Ann. § 39-13-524 (1997 & Supp. 2000). Aggravated sexual

battery, when the victim is less than thirteen years of age, is a Class B felony. Tenn. Code Ann. § 39-13-

504(a)(4), (b) (1997).

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clear and convincing evidence,11 the ruling of the trial court was subject to de novo review

rather than the abuse of discretion standard. Id.; see also State v. Gilliland, 22 S.W.3d 266,

270, 273 (Tenn. 2000) (holding that even though there was substantial compliance with the

procedural requirements of Rule 404(b), the trial court abused its discretion by allowing

evidence of a prior crime); State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997). After

noting that the State had submitted a transcript of the preliminary hearing, which included

Ms. Tharp’s testimony, the Court of Criminal Appeals concluded that the evidence of the

sexual abuse of B.G. was indeed clear and convincing and that the probative value as to

motive, as indicative of identity and intent, outweighed the unfair prejudicial effect.12 See

Sexton, 2010 WL 5054428, at *18.

Initially, the current version of Rule 404(b) of the Tennessee Rules of Evidence

establishes the procedure for consideration of the admission of prior bad acts:

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

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) (emphasis added). The comments to the rule provide that the evidence

of other crimes, wrongs, or acts should generally be excluded unless relevant to an issue

11

At the hearing on the motion for new trial, the trial court acknowledged its oversight and found

that the State had provided clear and convincing evidence of the “crime, wrong, or act.”

12

Cf. State v. Wilson, 164 S.W.3d 355, 363 (Tenn. Crim. App. 2003) (upholding the admission of

an award of temporary custody of the defendant’s son to the victim as evidence of motive in a subsequent

murder trial).

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other than the character of a defendant, such as identity, motive, intent, or absence of

mistake. See Tenn. R. Evid. 404, Advisory Comm’n cmts.; Bunch v. State, 605 S.W.2d 227,

229 (Tenn. 1980). In State v. Parton, 694 S.W.2d 299, 303 (Tenn. 1985), the case upon

which the rule is based, this Court specifically held that if the evidence is otherwise

inadmissible, the trial court must first find that the other crime, wrong, or act has been clearly

and convincingly established in a pretrial hearing. See also Tenn. R. Evid. 404, Advisory

Comm’n cmts. In 2003, some two years after this 2001 trial, Rule 404(b) was amended to

confirm the “clear and convincing” requirement explicated in Parton. Tenn. R. Evid.

404(b)(3).13

As a general rule, trial courts have been encouraged to take a “restrictive approach of

404(b) . . . because ‘other act’ evidence carries a significant potential for unfairly influencing

a jury.” State v. Dotson, 254 S.W.3d 378, 387 (Tenn. 2008) (internal quotation marks

omitted). In Old Chief v. United States, 519 U.S. 172, 181 (1997), the United States

Supreme Court pointed out that “‘the risk that a jury will convict for crimes other than those

charged—or that, uncertain of guilt, it will convict anyway because a bad person deserves

punishment—creates a prejudicial effect that outweighs ordinary relevance.’” (quoting

United States v. Moccia, 681 F.2d 61, 63 (1st Cir. 1982)); see also Michelson v. United

States, 335 U.S. 469, 475-76 (1948). In Dotson, this Court reaffirmed the policy of

exclusion:

The rationale behind the general rule is that admission of other wrongs carries

with it the inherent risk of the jury convicting a defendant of a crime based

upon his or her bad character or propensity to commit a crime, rather than the

strength of the proof of guilt on the specific charge. . . . As this Court has

consistently cautioned, the jury should not “be tempted to convict based upon

a defendant’s propensity to commit crimes rather than . . . evidence relating to

the charged offense.” 14

254 S.W.3d at 387 (quoting Spicer v. State, 12 S.W.3d 438, 448 (Tenn. 2000)) (footnote

13

While the “clear and convincing” prong was not a part of Tennessee Rule of Evidence 404(b) at

the time of the trial, the Court’s opinion in Parton eighteen years earlier announced this “clear and

convincing” requirement in the 404(b) context.

14

While an individual to whom a child victim makes a “fresh complaint” of being raped may not

testify to the allegations by the child in a subsequent prosecution for that crime, State v. Livingston, 907

S.W.2d 392, 395 (Tenn. 1995), individuals who hear such a complaint from an adult victim may testify for

the limited purpose of corroborating the victim’s testimony. See generally State v. Kendricks, 891 S.W.2d

597 (Tenn. 1994).

-33-

added).

As directed by the terms of Rule 404(b), the trial court must first hold a hearing

outside the presence of the jury. Tenn. R. Evid. 404(b)(1). While the Defendant’s counsel

insisted on a “hearing,” the State offered only its brief and the preliminary hearing transcript.

The burden of persuasion regarding admissibility under 404(b) rested with the State. See

State v. Stinnett, 958 S.W.2d 329, 330 n.5 (Tenn. 1997) (stating that the “burden of

introducing evidence sufficient to support a finding that the requirements of an evidence rule

are satisfied remains on the proponent of the evidence”). By failing to produce witnesses

who might have testified to first-hand knowledge of the Defendant’s having sexually abused

B.G., the State risked being unable to satisfy the requisite standard. Nevertheless, absent any

indication that the Defendant suffered a disadvantage for lack of a more extended hearing,

the inadequacy of the proceeding, standing alone, would not serve as a basis for exclusion.

There are three other criteria. The State satisfied the first, that there was a material

issue other than that the conduct conformed to a character trait. Motive, as it related to the

identity of the Defendant and his intent to commit the murders, qualified as a relevant issue

at trial. The remaining two criteria relate to whether the proof of the “crime, wrong, or act”

was clear and convincing and whether its probative value was outweighed by the danger of

unfair prejudice.

As pointed out by the Court of Criminal Appeals, the trial court not only “failed to

receive the proposed testimony of Ms. Tharp” at the hearing, but also “had an obligation at

the time of the hearing to state on the record whether the prior act was proven by clear and

convincing evidence,” and, therefore, there was no substantial compliance with this segment

of the rule. Sexton, 2010 WL 5054428, at *17. In consequence, the trial court’s ruling is not

entitled to deference in this appeal. DuBose, 953 S.W.2d at 652.

As indicated, other than the preliminary hearing testimony of Ms. Tharp quoting B.G.,

the victim of the child sex abuse, and confronting the Defendant with the details of B.G.’s

allegations, the State offered no proof of the “crime, wrong, or act.” Clear and convincing

evidence is that which leaves “‘no serious or substantial doubt about the correctness of the

conclusions drawn from the evidence.’” Grindstaff v. State, 297 S.W.3d 208, 221 (Tenn.

2009) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).

Because B.G. did not testify at the hearing, Ms. Tharp’s recitation of her allegations qualified

as hearsay. The rule against the admission of hearsay evidence is based upon the premise of

unreliability. Neil P. Cohen et al., Tennessee Law of Evidence § 8.01[3][a], at 8-11 (5th ed.

2005) [hereinafter Cohen]. If an out-of-court statement is offered to prove the truth of the

matter asserted, the dual areas of concern are that the declarant was not subject to cross-

examination under oath and that the demeanor of the declarant is not subject to scrutiny. Id.

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Ms. Tharp’s recitation of B.G.’s allegations for Rule 404(b) purposes was offered by the

State to clearly and convincingly establish the prior “crime, wrong, or act.” The matter

asserted for purposes of the hearing was that the wrongful act of sexual abuse of B.G. had

actually taken place.

Other state courts have held that inadmissible hearsay is insufficient to establish a

prior bad act under Rule 404(b). For example, in State v. Charo, 754 P.2d 288, 290 (Ariz.

1988), the Arizona Supreme Court stated that prior acts “may be shown through hearsay

testimony if the testimony comes within one of the exceptions to the hearsay rules.” See also

State v. Pullens, 800 N.W.2d 202, 222 (Neb. 2011) (in holding that evidence showing a prior

bad act satisfied a hearsay exception, explaining other courts’ position that a prior act could

be established through hearsay testimony, but only so long as the testimony came within one

of the exceptions to the hearsay rule). Because of the inherent unreliability of Ms. Tharp’s

hearsay recollections of B.G.’s allegations, the proof does not meet the clear and convincing

standard and, as a result, should have been excluded under Rule 404(b). See Parton, 694

S.W.2d at 303.15

The rule, of course, further requires that the evidence be excluded unless the probative

value outweighs the danger of unfair prejudice. The question is not whether the evidence is

prejudicial, but whether it is unfairly prejudicial. DuBose, 953 S.W.2d at 654-55. The term

“unfair prejudice” has been defined as “‘[a]n undue tendency to suggest decision on an

improper basis, commonly, though not necessarily, an emotional one.’” Id. at 654 (quoting

State v. Banks, 564 S.W.2d 947, 951 (Tenn. 1978)). As indicated, the rule is generally one

of exclusion unless the evidence of the prior bad act is relevant to an issue other than the

character of the defendant, such as identity, intent, motive, opportunity, or rebuttal of a

mistake or accident. State v. Drinkard, 909 S.W.2d 13, 16 (Tenn. Crim. App. 1995).

The State cites State v. Moss, 13 S.W.3d 374 (Tenn. Crim. App. 1999), in support of

its argument that the trial court properly admitted evidence of the prior sex abuse. In Moss,

the State charged that the defendant had murdered his estranged wife in order to regain

custody of his daughter. Id. at 382-84. The trial court conducted a hearing, complied with

the requirements of Rule 404(b), and permitted the daughter to testify at trial that the

defendant’s expression of desire to have sexual relations with her served as his motive for

15

As Tennessee Rule of Evidence 104(a) explains, in ruling on “[p]reliminary questions concerning

the qualification of a person to be a witness . . . or the admissibility of evidence[,] . . . the court is not bound

by the rules of evidence.” Thus, the mere fact that the evidence was hearsay is not dispositive. Rather,

because the only evidence offered to prove the act alleged was hearsay that did not fall under any exception,

the evidence was, by definition, unreliable, and thus, was not sufficient to meet the “clear and convincing”

requirement.

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the murder. Id. The Court of Criminal Appeals, which found that the trial court in Moss had

complied with the dictates of the rule, concluded that the trial court had not abused its

discretion by admitting the prior bad act and affirmed. Id. at 383-84. Moss is, however,

distinguishable from the case before us. In Moss, the child victim testified at the Rule 404(b)

hearing, the diary of the defendant corroborated the child victim’s testimony, and the trial

court followed the dictates of the rule. Id. Not only was the prior misconduct established

by clear and convincing evidence, but when weighed against the danger of unfair prejudice,

the probative value of the evidence tipped the scales in favor of admission because motive

could not otherwise be satisfactorily demonstrated.

This Court has specifically addressed the dangers of prior, sex-related bad acts where

a child victim is involved:

The general rule excluding evidence of other crimes is based on the

recognition that such evidence easily results in a jury improperly convicting a

defendant for his or her bad character or apparent propensity or disposition to

commit a crime regardless of the strength of the evidence concerning the

offense on trial.

State v. Rickman, 876 S.W.2d 824, 828 (Tenn. 1994) (citation omitted). In Getz v. State, 538

A.2d 726 (Del. 1988), a case cited by this Court in the Rickman opinion, the Delaware

Supreme Court commented upon the rationale behind the rule:

We are no more inclined to endorse [the assumption that a defendant’s

propensity for satisfying sexual needs is so unique that it is relevant to his

guilt] than we are to consider previous crimes of theft as demonstrating a

larcenous disposition and thus admissible to show proof of intent to commit

theft on a given occasion.

Getz, 538 A.2d at 734; see also Rickman, 876 S.W.2d at 829.

Acts of sexual abuse against a child victim by an adult entrusted with custodial

responsibilities are especially inflammatory. Outrage is a typical response.16 Few “crimes,

16

“The American public has utterly lost its willingness to defend institutions and individuals accused

of covering child sex abuse, who fail to protect children, [and] who fail [to do] what’s right.” Julie Mack,

Reaction to Penn State scandal shows shift in thinking on sex-abuse coverups, mlive.com (Nov. 12, 2011),

http://www.mlive.com/opinion/kalamazoo/ index.ssf/2011/11/julie_mack_column_some_thought.html; see

also Michael McCann, Sandusky grand jury presentment doesn’t tell the whole story, SI.com (Nov. 11,

2011), http://sportsillustrated.cnn.com/2011/writers/michael_mccann/11/11/sandusky.indictment/index.html.

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wrongs, or acts” evoke a similar level of prejudice:

In addition to the dangers posed by the use of propensity evidence in general,

“[t]here is no subject which elicits a more passionate response than the sexual

exploitation of children. Society abhors, and rightfully so, the victimization

of the defenseless child.” United States v. Villard, 700 F. Supp. 803, 809

(D.N.J.1988); see also Werne v. State, 750 N.E.2d 420, 424 (Ind. Ct. App.

2001). The public has become acutely aware of and concerned about the

dangers posed by those who exploit children.

....

This danger is particularly acute where the character or credibility defect is one

that garners the understandable public revulsion that is directed by the public

towards sexually exploitative acts towards children . . . .

State v. Rodriguez, 254 S.W.3d 361, 376-77 (Tenn. 2008). Because the statements of the

Defendant to Ms. Tharp, and the testimony of Officer Millsaps, Detective Alvarez, Adams,

Mason, and Ms. Swallows during the course of the trial—as outlined in the factual

summary—established the Defendant’s motive to kill, the hearsay testimony offered by Ms.

Tharp, while compelling in its detail, was cumulative on the issue of motive. For that reason,

the probative value of Ms. Tharp’s hearsay testimony as to the Defendant’s guilt of the

murders of the Goodmans was not essential to the State’s case. Thus, contrary to the

requirements for admission under Rule 404(b), the unfair prejudicial effect of the alleged sex

abuse outweighed the probative value as to motive.

2. Right of Confrontation

The Defendant also asserts that the allegations made by B.G. to Ms. Tharp violated

his right of confrontation. After addressing the Rule 404(b) claim and finding that the prior

bad act had been clearly and convincingly established, the Court of Criminal Appeals ruled

that the testimony was not hearsay because it was not admitted to prove the truth of the

sexual abuse, and the purpose of the testimony was to simply establish that the Defendant had

a motive, regardless of the veracity of the allegation. Sexton, 2010 WL 5054428, at *22.

That is, the Defendant would have had a motive to harm whoever was responsible for the

allegation, whether the sexual abuse charge was truthful or not. The Court of Criminal

Appeals observed that there was no infringement of the right of confrontation because

Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004), does not apply to statements that are

not hearsay. Sexton, 2010 WL 5054428, at *21. If offered to prove the truthfulness of the

sexual abuse allegations in order to imply that the Defendant’s character was such that he

also had the propensity to commit the murders, the testimony was inadmissible under

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Crawford as testimonial. If not offered for the truthfulness of the allegations, but to establish

that the allegations had been made regardless of their truthfulness and only “to show a motive

of the Defendant to commit the crime charged,” the evidence should nevertheless have been

excluded under Rule 403.

“[W]hether the admission of hearsay statements violated a defendant’s rights under

the Confrontation Clause is purely a question of law.” State v. Maclin, 183 S.W.3d 335, 342

(Tenn. 2006) (citing Lilly v. Virginia, 527 U.S. 116, 125 (1999)). Questions of law or the

application of the law to the facts found by the trial court are subject to de novo review. Id.

at 343 (citing State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997)); Beare Co. v. Tenn.

Dep’t of Revenue, 858 S.W.2d 906, 907 (Tenn. 1993). The Confrontation Clause of the

Sixth Amendment to the United States Constitution, providing that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against

him,” affords “two types of protection for criminal defendants: the right to physically face

the witnesses who testify against the defendant, and the right to cross-examine witnesses.”

State v. Williams, 913 S.W.2d 462, 465 (Tenn. 1996) (citing State v. Middlebrooks, 840

S.W.2d 317, 332 (Tenn. 1992)); see also Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987).

The Confrontation Clause is designed “to ensure the reliability of the evidence against a

criminal defendant by subjecting it to rigorous testing in the context of an adversary

proceeding before the trier of fact.” Maryland v. Craig, 497 U.S. 836, 845 (1990). The

Tennessee Constitution contains different terminology, providing “[t]hat in all criminal

prosecutions, the accused hath the right . . . to meet the witnesses face to face.” Tenn. Const.

art. I, § 9. Nevertheless, “this Court has largely adopted the standards used by the United

States Supreme Court . . . in determining whether the Tennessee constitutional right has been

violated.” Maclin, 183 S.W.3d at 343 (citing State v. Bush, 942 S.W.2d 489, 511 n.2 (Tenn.

1997) (appendix)).

In Crawford, the Supreme Court ruled that “testimonial” hearsay is admissible only

where the declarant is unavailable and there was “a prior opportunity for cross-examination.”

541 U.S. at 68. Afterward, in Davis v. Washington, 547 U.S. 813 (2006), and its companion

case, Hammon v. Indiana, 547 U.S. 813 (2006), the Supreme Court ruled that statements are

“testimonial when the circumstances objectively indicate that there is no . . . ongoing

emergency, and that the primary purpose of the interrogation is to establish or prove past

events potentially relevant to later criminal prosecution.” Davis, 547 U.S. at 822.

Ms. Tharp’s recitation of B.G.’s testimony during the course of the trial, if offered for

the truth of the matter asserted, qualified as testimonial and should have been excluded under

Crawford and its progeny. See State v. Lewis, 235 S.W.3d 136, 142-45 (Tenn. 2007).

Although not presented as an issue at trial, the State now asserts, as an alternative ground for

the admission of her testimony, that Ms. Tharp’s recollection of B.G.’s statement should not

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have been addressed under Rule 404(b) and that a Crawford right of confrontation analysis

is unnecessary because the “fact of the sex abuse allegation” was relevant, was not

necessarily a prior “bad act,” and, most importantly, was not offered for truthfulness. In

support of this contention, the State cites United States v. Blackthorne, 37 F. App’x 88, 2002

WL 971621, at *10-11 (5th Cir. 2002), which held that Rule 404(b) is inapplicable when “the

evidence of allegations is probative . . . on the question of motive” and is not offered to show

that the misconduct actually took place. The State, therefore, submits that Ms. Tharp’s

testimony was relevant, as defined by Rule 401 of the Tennessee Rules of Evidence, was

admissible by the terms of Rule 402, and was subject to exclusion only by the terms of Rule

403, which provides as follows:

Although relevant, evidence 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 (emphasis added).

This rule adopts the common law principle that trial courts, despite the relevance of

certain evidence, possess the inherent authority to exclude any evidence that would “threaten

the fairness of the trial process.” Cohen, at 4-60. While relevant evidence under Rule 403

should generally be admitted, other considerations may result in exclusion. See generally

Banks, 564 S.W.2d at 949-53. The rule, as stated, permits the admission of relevant

evidence, unless its probative value is substantially outweighed by the danger of unfair

prejudice. Tenn. R. Evid. 403. It is our view that even though Rule 403 requires a higher

standard of prejudice than that which is set out in Rule 404(b), the testimony at issue here

meets the higher standard. Other evidence presented during the course of the trial

conclusively established the Defendant’s motive to murder Mr. Goodman, thereby limiting

the value of Ms. Tharp’s confirmation of B.G.’s allegations. While it is true that B.G.’s

allegations, regardless of their veracity, had probative value as to motive for the murder of

Mr. Goodman, Ms. Crowley, Officer Millsaps, Adams, and Ms. Swallows all testified to

threats made by the Defendant on various occasions toward Mr. Goodman. As indicated in

our Rodriguez opinion, few, if any, subjects arouse the level of revulsion as does the rape or

sexual exploitation of a child victim. 254 S.W.3d at 376-77. Even if the proof of the

allegation by B.G. was not designed to place before the jury details of the sexual abuse in an

effort to establish the Defendant’s criminal propensity, exclusion is appropriate when the

balancing test under Rule 403 does not favor admission. In summary, because the motive

for the murder of Mr. Goodman was clearly established through other of the State’s

witnesses, the probative value of B.G.’s allegations, as related by Ms. Tharp, insofar as it

established motive, was cumulative. In consequence, the inflammatory nature of the

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allegations of sexual misconduct was such that Ms. Tharp’s recitation of their details should

have also been excluded under a Rule 403 analysis.

C. Polygraph

The Defendant contends that the trial court erred by admitting references to a

polygraph examination through Officer Millsaps and Detective Alvarez. In response, the

State contends that the Defendant either waived the issue or opened the door for the

admission of the evidence in the following ways: by failing to lodge an objection to the

polygraph testimony by Officer Millsaps until an additional reference was made during a

redirect examination by the State; by failing to object at all to the polygraph reference during

the testimony of Detective Alvarez; and by cross-examining the witness on the topic prior

to further references to the polygraph evidence on redirect examination.

Simply stated, polygraph evidence is inadmissible. State v. Damron, 151 S.W.3d 510,

515-16 (Tenn. 2004). This Court has repeatedly held that the results of a polygraph

examination are inherently unreliable. State v. Torres, 82 S.W.3d 236, 252 n.20 (Tenn.

2002); State v. Hartman, 42 S.W.3d 44, 61-62 (Tenn. 2001). The “lack of any indicia of

reliability means it is not probative.” Hartman, 42 S.W.3d at 60. Furthermore, “testimony

regarding a [d]efendant’s willingness or refusal to submit to a polygraph examination is not

admissible.” State v. Stephenson, 195 S.W.3d 574, 599 (Tenn. 2006) (appendix) (quoting

State v. Pierce, 138 S.W.3d 820, 826 (Tenn. 2004)). One rationale for excluding the

evidence is that it lacks relevance. See Tenn. R. Evid. 402; United States v. Scheffer, 523

U.S. 303, 309 n.5 (1998) (holding that polygraph evidence is unreliable).

The trial court, while addressing the issue after the trial, pointed out that the

Defendant had failed to lodge a contemporaneous objection during the testimony by Officer

Millsaps, and first objected only after the direct examination of Officer Millsaps by the State,

cross-examination by the defense, and re-direct by the State. While acknowledging the

inadmissibility of the evidence, the trial court concluded that, in the context of all of the

proof of guilt, the error qualified as harmless. The Court of Criminal Appeals ruled

similarly, finding that the Defendant had waived the issue by failing to make a timely

objection and thereby providing the trial court with an opportunity to either rule out the

evidence or mitigate any harm caused by its admission. Sexton, 2010 WL 5054428, at *23;

see Tenn. R. App. P. 36(a). The Court of Criminal Appeals further found that the erroneous

admission of the polygraph evidence, if not waived, had no effect on the verdict. Sexton,

2010 WL 5054428, at *23.

The record demonstrates that the State, during the direct examination of Officer

Millsaps, asked about the Defendant’s refusal to take a polygraph examination. There was

no objection by the defense at that time. During re-direct by the State, however, the

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Defendant did object. Later in the trial, Detective Alvarez confirmed that the Defendant had

declined to take the test.

In our view, any reference to a possible polygraph examination or the refusal to

submit to such an examination had no place in this trial. The State should not have asked the

question. The defense should have lodged a more timely objection. Curative instructions

should have been provided. See Stephenson, 195 S.W.3d at 598-99 (appendix); State v.

Atkins, 681 S.W.2d 571, 578 (Tenn. Crim. App. 1984). Moreover, the Defendant did not

“open the door.” That principle applies only when the complaining party elicits “testimony

he [later] assigns as error.” State v. Robinson, 146 S.W.3d 469, 493 (Tenn. 2004). While

a litigant is not “permitted to take advantage of errors which he himself committed, or

invited, or induced the trial [c]ourt to commit,” Norris v. Richards, 246 S.W.2d 81, 85 (Tenn.

1952) (quoting Gentry v. Betty Lou Bakeries, 100 S.W.2d 230, 231 (Tenn. 1937)), that is not

the case here. Allowing the references to the polygraph test was error. To its credit, the trial

court acknowledged the error during the hearing on the motion for new trial, but ruled that

the admission of the evidence did not affect the results of the trial.17

D. Admission of .22 Rifle

During a consent search of the Defendant’s home, officers found an inoperable .22

caliber rifle, which was made an exhibit at the trial. The rifle was clearly not the murder

weapon. Although the jury was made aware that the rifle was not used in the murders, the

Defendant maintains that the evidence was irrelevant and should have been excluded by the

trial court.

The trial court found that the evidence was relevant, observing that because the .22

rifle was inoperable, it tended to explain why the Defendant found it necessary to acquire a

gun from Clinton Daniel Mason. “Relevant evidence,” of course, is that “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. The Court of Criminal Appeals ruled that the trial court acted within its discretion by

admitting the evidence and that there was little possibility of prejudice. Sexton, 2010 WL

5054428, at *24.

Trial courts have a wide latitude of discretion in determining whether evidence is

relevant. See State v. Dellinger, 79 S.W.3d 458, 485 (Tenn. 2002) (appendix); DuBose, 953

17

“[T]he Tennessee appellate courts frequently conclude that the error was harmless. They are

especially likely to uphold the lower court if there was no timely objection and if the side objecting to the

question also interrogated the witness about the polygraph.” Cohen, at 7-61 (footnote omitted).

-41-

S.W.2d at 652; State v. Porterfield, 746 S.W.2d 441, 450 (Tenn. 1988). There is an abuse

of discretion only when the trial court has “applied an incorrect legal standard, or reached a

decision which is against logic or reasoning,” resulting in an injustice to a defendant. State

v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997).

In our view, the evidence was marginally relevant for two reasons. First, it tended to

explain why the Defendant found it necessary to obtain a weapon from Mason. Secondly,

the evidence suggested that the Defendant had a familiarity with a .22 caliber rifle. Thus, the

trial court did not abuse its discretion by admitting the evidence.

E. Dollar Store Receipt

During the course of the investigation, officers searched the Defendant’s automobile

and found a Dollar Store receipt for a fleece top and pants. The contents of the receipt

matched the cash journal of the store as to time and amount, indicating that the Defendant

purchased a fleece top and pants hours before the murders. In this appeal, the Defendant

argues that the search by the police violated article I, section 7 of the Tennessee Constitution

and the Fourth Amendment to the United States Constitution. The Defendant also argues that

his due process rights under the Fourteenth Amendment were violated when Agent Brakebill

was permitted to testify that the Defendant had consented to the search. The Defendant did

not, however, file a motion to suppress and did not make a contemporaneous objection to the

admission of the evidence.

Agent Brakebill’s direct testimony on the subject provided as follows:

Q. [Y]ou did [the search of the car] with the consent of Ms. Sexton; is that

right?

A. With the consent of Mr. and Mrs. Sexton.

During cross-examination by defense counsel, the following questions and answers took

place:

Q. Did you have consent to search the vehicle?

A. Yes, sir, we did.

Q. Who gave that consent?

A. He [the Defendant] gave the consent to [Detective] Alvarez and I saw it had

been signed off and initialed . . . .

Q. Okay. Well consent is consent. We won’t get into that. Okay?

A. Yes, sir.

The Court of Criminal Appeals, holding that the issue had been waived, further noted that

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the Defendant failed to provide citations to the record as to this issue. Sexton, 2010 WL

5054428, at *25.

Rule 27(a)(7)(A) of the Tennessee Rules of Appellate Procedure requires “citations

to the authorities and appropriate references to the record.” Otherwise, the issue may be

considered waived. State v. Killebrew, 760 S.W.2d 228, 235 (Tenn. Crim. App. 1988); see

also State v. Schaller, 975 S.W.2d 313, 318 (Tenn. Crim. App. 1997). Moreover,

constitutional objections to the admission of evidence may be waived by the failure to cite

appropriate authority. State v. Boling, 840 S.W.2d 944, 949 (Tenn. Crim. App. 1992).

Because the Defendant has failed to specifically identify the product of the search, this Court

must infer that the Dollar Store receipt is the item at issue. Waiver notwithstanding, the only

testimony is that the Defendant consented to the search of his vehicle. “Whether an

individual voluntarily consents to a search is a question of fact to be determined from the

totality of the circumstances.” State v. Berrios, 235 S.W.3d 99, 109 (Tenn. 2007); see

generally Schneckloth v. Bustamonte, 412 U.S. 218 (1973). Absent any indication that the

Defendant did not consent to the search of the vehicle, the evidence was properly admitted

at trial.

F. References to Sherry Sexton

The Defendant’s wife, Sherry Sexton, did not testify at trial. As indicated, however,

Detective Alvarez testified that, three days after the discovery of the victims’ bodies, Ms.

Sexton had tried to reach him by telephone and that he had recorded his return call to her.

Detective Alvarez described her as sounding desperate. He testified that when he and Agent

Brakebill met with Ms. Sexton later that night for an interview, the Defendant arrived thirty

minutes later and insisted that he be permitted to talk with her, claiming that she was too

emotional to give a statement. The evidence established that Ms. Sexton was taken to

another location and transported to a safehouse in McMinn County only hours before the

Defendant’s arrest.

The Defendant, who did not make a contemporaneous objection, complains about the

admission of the testimony relating to Ms. Sexton’s interview, arguing that a reasonable

inference could be drawn that she had implicated him in the murders. The Defendant

contends, therefore, that this evidence should have been excluded, arguing a violation of his

right of confrontation under the Sixth Amendment to the United States Constitution and

article I, section 9 of the Tennessee Constitution. The Court of Criminal Appeals, while

pointing out that the Defendant had failed to make contemporaneous objections or make

specific citations to the record in his appellate brief, nevertheless addressed the merits, and

concluded that because Ms. Sexton did not actually testify and because the Defendant took

advantage of the opportunity to cross-examine both Detective Alvarez and Agent Brakebill,

the right of confrontation was not implicated. Sexton, 2010 WL 5054428, at *24.

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Nonverbal conduct can be hearsay. Rule 801(c) of the Tennessee Rules of Evidence

defines hearsay as “a statement other than one made by the declarant while testifying at the

trial or hearing offered in evidence to prove the truth of the matter asserted.” A statement

may be either “(1) an oral or written assertion or (2) nonverbal conduct of a person if it is

intended by the person as an assertion.” Tenn. R. Evid. 801(a). The Advisory Commission

comments to the rule provide, in part, as follows:

Rule 801 restates Tennessee common law. Part (a) makes hearsay only such

nonverbal conduct as the declarant actor intends as an assertion. The common

law, stemming from Wright v. Tatham, 112 Eng. Rep. 488 (Exch. Ch. 1837),

included in the hearsay definition assertions that might be inferred from the

conduct but that were unintended by the actor. Consequently, Tennessee has

defined flight from a crime scene as hearsay, although the courts admit the

evidence through the exception for party admissions. Under the . . . rule, the

evidence would be admissible as nonhearsay, the declarant obviously not

intending to assert guilt by flight.

Tenn. R. Evid. 801, Advisory Comm’n cmts.

Nonverbal conduct, therefore, qualifies as a “statement” only if the conduct is

“intended by the person as an assertion.” Tenn. R. Evid. 801(a). The comments indicate that

our rule represents a change in the common law which precluded “assertions that might be

inferred from the conduct but that were unintended by the actor.” Tenn. R. Evid. 801,

Advisory Comm’n cmts. The term “assertion,” while not defined by the rules, “has the

connotation of a forceful or positive declaration.” State v. Land, 34 S.W.3d 516, 525 (Tenn.

Crim. App. 2000) (quoting Webster’s Ninth New Collegiate Dictionary 109 (1985 ed.)). As

applied to these circumstances, it is not apparent that Ms. Sexton intended to declare the guilt

of the Defendant by arranging an interview with the officers. It is only when the declarant

intends an assertion by conduct that the evidence is excluded as hearsay. See Hulsey v. Bush,

839 S.W.2d 411, 413 (Tenn. Ct. App. 1992); see also Cohen, at 8-19. In our view, because

Ms. Sexton’s conduct did not qualify as hearsay, the testimony of Detective Alvarez and

Agent Brakebill relating to her conduct did not violate the Defendant’s right of confrontation.

G. Prior Threat

The Defendant also asserts that the trial court should have excluded testimony by

Shera Crowley—who prepared the Defendant’s tax return on January 31, 2000—that the

Defendant threatened to kill Mr. Goodman if he claimed E.G., Mr. Goodman’s oldest child,

as a dependant for income tax purposes. The Defendant did not object to the testimony and,

moreover, during cross-examination, elicited the following comment by Ms. Crowley:

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“[S]omeone . . . claiming their stepchild and they’re claiming they don’t live with the mother,

that is a red flag for me.”

In this appeal, the Defendant complains that the trial court erroneously allowed the

evidence because it suggested that the Defendant intended to defraud the Internal Revenue

Service by claiming a stepchild as a dependant. Also, the Defendant contends that the State

exacerbated the error by making reference to the evidence during closing argument, a related

issue that will be later addressed in the prosecutorial misconduct section of this opinion.

As indicated, trial courts should avoid propensity evidence or proof tending to

establish the bad character of a defendant; however, the crux of Ms. Crowley’s testimony was

that the Defendant, some three months prior to the murders, threatened to kill Mr. Goodman

in the event of a dispute regarding his entitlement to claim one or more of Mr. Goodman’s

children as a dependant for income tax purposes. A threat of this nature is, of course,

relevant under these circumstances to establish the level of the Defendant’s animosity

towards Mr. Goodman. Relevant evidence is defined as “evidence having any tendency to

make the existence of any fact that is of consequence . . . more probable or less probable.”

Tenn. R. Evid. 401. Absent other rules, laws, or constitutional provisions to the contrary,

“relevant evidence is admissible.” Tenn. R. Evid. 402. Evidence of animus towards a victim

is relevant to establish motive in a subsequent prosecution for murder. See, e.g., State v.

Powers, 101 S.W.3d 383, 395 (Tenn. 2003); State v. Elrod, 721 S.W.2d 820, 823 (Tenn.

Crim. App. 1986). Accordingly, the trial court did not err by admitting the evidence of the

alleged prior threat.

H. Speeding Arrest

Randall Boston, the Defendant’s only witness, testified for the sole purpose of

establishing the car travel time from Bradley County to the Goodmans’ residence in Scott

County if driven within the speed limits. During cross-examination, the State, while

attempting to elicit an acknowledgment that the Defendant may have been able to reduce the

amount of time taken for the trip by driving faster, asked Boston whether he was aware that

the Defendant had received a speeding ticket for driving ninety-seven miles per hour along

the same route only two days after the murders. Boston answered, “No.”

Although the Defendant failed to object to the admission of the evidence, the

Defendant argued on appeal that the trial court erred by permitting the reference to the

speeding charge and that the evidence qualified as inadmissible hearsay. The Court of

Criminal Appeals concluded that the Defendant had waived the issue by failing to object,

Tenn. R. App. P. 36(a), and, further, that the testimony had only marginal relevance,

indicating only that the Defendant could have driven over the speed limit. Sexton, 2010 WL

5054428, at *25. Although we tend to agree with that assessment, trial courts should always

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take precautions to ensure that juries do not convict based on a defendant’s propensity to

commit crimes, wrongs, or bad acts rather than the offense charged. See Rodriguez, 254

S.W.3d at 375-76.

IV. Prosecutorial Misconduct

Following the hearing on the motion for new trial, the trial court ruled as follows

regarding the Defendant’s allegations of prosecutorial misconduct:

Although the court had instructed counsel that the pretrial motion on [the

marital confidential communication privilege] would be dealt with at trial, the

defendant did not object when the state first referred to the wife’s failure to

testify and prior testimony in opening statement. Under these circumstances,

this court finds that the defendant is not entitled to a new trial on this issue.

Even assuming that any error occurred, it would be harmless.

....

The defendant alleges multiple [other] instances of prosecutorial misconduct

which he argues warrant a new trial. Several of these allegations relate to

issues of admissibility already ruled upon above and are also without merit

here. In addition, the defendant complains of statements by the prosecution

that vouched for witnesses and which speculated about things not in evidence.

This court finds no basis for relief on this issue.

The Court of Criminal Appeals addressed these and other allegations of prosecutorial

misconduct, considered some of the issues as having been waived by the Defendant, and,

while classifying a few of the arguments by the State as inappropriate, ultimately concluded

that the misconduct did not warrant either a new trial or new sentencing hearing. See Sexton,

2010 WL 5054428, at *26-30.

In this appeal, the Defendant argues that the trial court’s ruling was in error and insists

that there were instances of prosecutorial misconduct in the opening statement, in the course

of the guilt phase of the trial testimony, and in the closing argument of both the guilt and

penalty phases of the trial. First, he asserts that during opening statement, the prosecution

improperly informed the jury that B.G. had reported sex abuse to her teacher and to the

DCS—facts that should not have been permitted as evidence—and improperly revealed the

fact that Ms. Sexton had previously testified against the Defendant during the preliminary

hearing, but would not do so at trial because of marital privilege. Second, he complains that,

in the course of the trial testimony, the prosecution was guilty of misconduct in several ways:

by improperly inquiring about the Defendant’s willingness to take a polygraph examination,

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by asking questions suggesting that Ms. Sexton had implicated the Defendant in the murder

during her interview with Detective Alvarez and Agent Brakebill, by submitting a .22 rifle

as an exhibit, by referring to evidence seized from the Defendant’s automobile, and by

accusing the Defendant of speeding, issues which have been previously addressed in this

opinion in the context of admissibility.18 Third, the Defendant contends that the prosecution

committed numerous acts of misconduct in closing argument during both the guilt and the

sentencing phases of the trial. In response, the State points out that the arguments either were

not improper or that the Defendant, by failing to lodge objections during the arguments,

waived any claim for relief on appeal.

A. Opening Statement

Our statutes entitle the parties in a jury trial to make opening statements prior to the

presentation of the case “setting forth their respective contentions, views of the facts and

theories of the lawsuit.” Tenn. Code Ann. § 20-9-301 (2009); State v. Harris, 839 S.W.2d

54, 68 (Tenn. 1992). Opening statements “are intended merely to inform the trial judge and

jury, in a general way, of the nature of the case and to outline, generally, the facts each party

intends to prove.” State v. Stout, 46 S.W.3d 689, 713 (Tenn. 2001) (appendix) (quoting

Harris v. Baptist Mem’l Hosp., 574 S.W.2d 730, 732 (Tenn.1978)). Trial courts should allow

the presentation of a summary of the facts supportive of the respective theories of the case,

only so long as those “facts are deemed likely to be supported by admissible evidence.”

Stanfield v. Neblett, 339 S.W.3d 22, 41-42 (Tenn. Ct. App. 2010). Opening statements,

while not evidence, must “be predicated on evidence introduced during the trial of the case.”

See State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978); Robert E. Burch, Tennessee

Handbook Series: Trial Handbook for Tennessee Lawyers § 7.2 (2007) (“The attorney may,

of course, never refer to facts or conditions which are not admissible in evidence.”); see also

State v. Van Tran, 864 S.W.2d 465, 475 (Tenn. 1993). No reference should be made to facts

and circumstances which are not admissible in evidence. 75A Am. Jur. 2d Trial §§ 525, 526

(West 2012).

During opening remarks, the State asserted that the Defendant “was confronted by the

fact that his step-daughter had disclosed to her teacher and to the DCS worker that he was

sexually molesting her.” Because the hearsay testimony offered by Ms. Tharp should have

been excluded, as previously indicated in this opinion, and because the record does not

otherwise contain any other proof that B.G. had made such disclosures to her teacher and to

the DCS worker, the statement was not predicated on evidence that would have been properly

admitted at trial. Our view is retrospective, however. In fairness to the State, its statement

18

The Court of Criminal Appeals did not address issues related to trial testimony during its

assessment of the prosecutorial misconduct, having found in favor of the State as to each of the claimed

evidentiary errors. See Sexton, 2010 WL 5054428, at *26-30.

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was based on the fact that the trial court had ruled at the conclusion of the Rule 404(b)

pretrial hearing that Ms. Tharp could testify in detail about B.G.’s allegations. Nevertheless,

the evidence should not have been admitted, and the comments by the prosecution

exacerbated the harmful nature of the improperly admitted evidence.

The prosecution, in an effort to buttress its claim at trial that the Defendant had tried

to frustrate the police investigation of the murders, also made the following statement to the

jury during opening remarks:

You know, a wife can’t testify against her husband . . . , and he makes sure

he’s got Sherry [Sexton] under his thumb. But a few days after the murder, he

makes the mistake of not being at home and [she] runs down to the police

station. She contacts the authorities. And when he gets home and she’s not

there, he’s worried to death. . . . He goes and looks for her and finds her

talking to officers. He tries to interfere with that interview that’s taking place.

But it’s too late. She’s given an interview and she later even testifies against

him. But through his manipulation, she’s back on his side now. And of

course, you can’t testify – you can’t force a wife to testify against her husband.

And he believes he can manipulate and control through either charm or

intimidation everybody he needs to . . . .

(Emphasis added).

The Defendant had earlier filed pretrial motions seeking to suppress his

communications with Ms. Sexton, relying on the marital confidential communication

privilege. In a pretrial motion hearing, the trial court addressed the marital privilege but

reserved ruling until the time of trial. Although the trial court did not rule on the marital

privilege issue in advance of the trial, the State conceded during its opening statement that

“you can’t force a wife to testify against her husband,” suggesting a recognition that the

exercise of marital privilege precluded admission of Ms. Sexton’s testimony. The

preliminary question, of course, is whether the prosecution’s comment on the exercise of the

privilege qualified as misconduct.

Tennessee Code Annotated section 24-1-201 governs the privilege afforded spouses

as to marital communications. At the time of the crimes, section (b) provided that

“confidential communications between married persons are privileged and inadmissible if

either spouse objects.” Tenn. Code Ann. § 24-1-201(b) (Supp. 1999).19 While evidentiary

19

In 2000, the statute was amended to add section (c). Tennessee Code Annotated section 24-1-

(continued...)

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rules in some jurisdictions specifically preclude a prosecutor from commenting on any

witness’s invocation of a privilege not to testify, see, e.g., Ky. R. Evid. 511(a) (“The claim

of a privilege, whether in the present proceeding or upon a prior occasion, is not a proper

subject of comment by judge or counsel.”), no formal rule exists in this state. Because of the

dearth of reported cases in Tennessee on this issue, we have considered comparable cases

from other jurisdictions.

The Alabama Court of Criminal Appeals has observed that no reference to spousal

immunity should be permitted during the course of a trial:

If for any reason the privileged spouse declines to testify for or against

the other, that decision is final and the motives should not be questioned in a

manner that would inure to the detriment of the defendant-spouse.

If a failure of the witness-spouse to testify is to be construed as

testimony or as a circumstance against the defendant-spouse, the privilege and

the option to testify would be annulled. Under these circumstances the

defendant-spouse would in all cases run the hazard of being convicted on a

constrained, implied confession or admission, or to make explanations for her

failure to testify, which might involve aspects of domestic privacy.

When comment is made on an exercise of the marital privilege, the jury

19

(...continued)

201(c)(1) states:

In a criminal proceeding a marital confidential communication shall be privileged if:

(A) The communications originated in a confidence that they will not be disclosed;

(B) The element of confidentiality is essential to the full and satisfactory maintenance of the

relation between the parties;

(C) The relation must be one which, in the opinion of the community, ought to be sedulously

fostered; and

(D) The injury to the relation by disclosure of the communications outweighs the benefit

gained for the correct disposal of litigation.

Because the State did not attempt to call Ms. Sexton as a witness at trial, the trial court was not forced to rule

regarding the privilege. In turn, determining whether the pre- or post-amendment version of Tennessee Code

Annotated section 24-1-201 was applicable was not an issue at trial, and, therefore, we do not address it here.

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can infer that the defendant had something to hide, when in fact he can neither

compel nor prevent his spouse from exercising that privilege. Under these

circumstances, a jury could conclude that the defendant was preventing his

spouse from testifying for the purpose of suppressing evidence.

Holyfield v. State, 365 So. 2d 108, 112 (Ala. Crim. App. 1978). The Michigan Court of

Appeals similarly held in People v. Spencer, 343 N.W.2d 607, 610 (Mich. Ct. App. 1983),

that a prosecutor may not comment on the defendant’s exercise of the marital privilege.

Several other states have adopted the view of the Alabama and Michigan courts. See, e.g.,

State v. Holcombe, 2009-1309 (La. App. 1 Cir. 2/12/10); 35 So. 3d 1084, 1086 (stating that

the “claim of privilege . . . is not a proper subject of comment by the judge or counsel”). A

Pennsylvania court held that allowing a prosecutor to imply a negative inference based on

a spo u se’s failure to testify w ould “erode com pletely the spou sal

protection.” Commonwealth v. Whiting, 517 A.2d 1327, 1332 (Pa. Super. Ct. 1986); see also

People v. Harris, 762 P.2d 651, 661 (Colo. 1988) (stating that “[p]ermitting commentary on

the defendant’s invocation of [spousal privilege] is no less damaging to the privilege than

allowing remarks alluding to an accused’s invocation of the fifth amendment”).20 In Johnson

v. State, 662 S.W.2d 368, 369 (Tex. Crim. App. 1984), the Texas Court of Criminal Appeals

ruled that it is improper for a prosecutor to state or imply that a witness will not testify due

to his or her fear of the defendant. Cf. Bixler v. Commonwealth, 204 S.W.3d 616, 627 (Ky.

2006) (citing a state evidentiary rule in ruling that counsel may not comment on a claim of

privilege); Hylton v. State, 688 P.2d 304, 305 (Nev. 1984) (relying on a state procedural rule

which bars prosecutors from commenting on a claim of privilege to find prosecutor

misconduct).

Guided by the principles developed in these cases,21 we hold that no comment should

be made on the exercise of marital privilege. Thus, the statement that “[Ms. Sexton’s] given

20

In the context of a defendant invoking his constitutional right against self-incrimination, this Court

in Felts v. State, 354 S.W.3d 266, 282 n.10 (Tenn. 2011), stated that a “prosecutor’s direct reference to a

criminal defendant’s failure to testify in his own defense is a violation of the Fifth Amendment privilege

against compelled self-incrimination.” (citing Griffin v. California, 380 U.S. 609, 613-14 (1965)). Hence,

the Court in Felts warned that “[p]rosecutors who choose to comment in opening statements upon a

defendant’s potential trial testimony should be mindful of the boundaries imposed by the Fifth Amendment.”

Felts, 354 S.W.3d at 282 n.10.

21

While these cited cases deal with rules and statutes from numerous jurisdictions, including

variations of the marital privilege that are different than Tennessee’s martial communications privilege, see,

e.g., Holyfield, 365 So. 2d at 110-11 (witness spouse may decide whether or not to testify for or against the

defendant spouse); Spencer, 343 N.W.2d at 610 (spouses may not testify against each other unless the

defendant spouse gives consent), the principle is the same: commenting on the claim of privilege undermines

the privilege itself.

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an interview and she later even testifies against [the Defendant]” was improper. While

testimony during trial did establish that Ms. Sexton had talked to police several days after the

murders, the prosecution’s assertion that she had previously testified against the Defendant

at the preliminary hearing not only made reference to inadmissible evidence, but also served

to frustrate the very purpose of the privilege. The prosecution’s apparent aim was to imply

what the Alabama court cautioned against in Holyfield, “that the defendant was preventing

his spouse from testifying for the purpose of suppressing evidence.” Holyfield, 365 So. 2d

at 112. The benefit of the marital confidential communications privilege is negated if a

prosecutor is permitted to comment on the privilege during either opening statement or final

argument. By telling the jury that Ms. Sexton previously testified against the Defendant, but

that she could not be compelled to testify at trial, the State invited an inference that her

previous testimony was unfavorable to the Defendant and that the Defendant was claiming

the privilege to suppress incriminating testimony by Ms. Sexton. Thus, commenting on the

privilege was improper.

B. Trial Testimony

As previously indicated, the testimony pertaining to the Defendant’s refusal to take

a polygraph examination should have been excluded. Questions submitted on behalf of the

State elicited improper references to the polygraph issue. It is difficult to imagine the

prosecution’s lack of awareness of the rule prohibiting such references.

While argued in unrelated sections in his brief, the Defendant also contends that

references by the prosecution to the .22 rifle found in his residence and the testimony

regarding his speeding violation qualified as prosecutorial misconduct. Moreover, the

Defendant not only claims that the trial court erred by failing to suppress the evidence that

was taken from the Defendant’s automobile, but also asserts that the prosecution was guilty

of misconduct by introducing the evidence seized. We disagree for reasons that have been

previously expressed.

The Defendant further asserts that “the prosecution erred . . . when it failed to correct

Agent Brakebill’s testimony that he saw a typed statement for [the] Defendant, which . . .

purportedly contained the express consent to search [the] Defendant’s automobile.” For the

reasons previously set out in the sections of this opinion addressing those issues, we again

disagree.

Finally, we conclude that the prosecution’s questioning of Detective Alvarez and

Agent Brakebill that pertained to the conduct of Ms. Sexton during the course of the

investigation was not improper. As the Defendant submits in his brief, this included

testimony from Detective Alvarez and Agent Brakebill that the police locked the door of the

precinct for security purposes when interviewing Ms. Sexton; moved her to another location

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when the Defendant arrived at the precinct because they did not feel comfortable with her

being there; found her a place to stay at a safe harbor home in an adjacent county on the night

of her interview with police; and arrested the Defendant the day after Ms. Sexton’s interview

with police. We disagree with the Defendant’s contention that these questions regarding the

questioning of Ms. Sexton “served no purpose but to imply to the jury that Sherry Sexton had

implicated her husband in the murder allegations.” These facts were relevant as to the

Defendant’s reaction to the police investigation of the murders, from which the jury was

entitled to make reasonable inferences, including whether he was attempting to either thwart

the investigation or manipulate its results.

C. Closing Argument

The Defendant also insists that the State was guilty of prosecutorial misconduct during

closing argument in both the guilt and penalty phases of the trial. Few of his allegations of

misconduct during final arguments contain references to the record and one of the

allegations, like some of those relating to trial testimony, is listed in a different section of the

Defendant’s brief.

The basic purpose of closing argument is to clarify the issues that must be resolved

in a case. State v. Banks, 271 S.W.3d 90, 130 (Tenn. 2008). While “argument of counsel

is a valuable privilege that should not be unduly restricted,” Smith v. State, 527 S.W.2d 737,

739 (Tenn. 1975), “such[] arguments must be temperate, based upon the evidence introduced

at trial, relevant to the issues being tried, and not otherwise improper under the facts or law.”

State v. Goltz, 111 S.W.3d 1, 5 (Tenn. Crim. App. 2003); Coker v. State, 911 S.W.2d 357,

368 (Tenn. Crim. App. 1995); see also State v. Middlebrooks, 995 S.W.2d 550, 557 (Tenn.

1999). Because closing argument affords an opportunity to persuade the jury, 11 David L.

Raybin, Tennessee Practice: Criminal Practice and Procedure § 29.2, at 97 (2008), leeway

should be given regarding the style and substance of the argument. Banks, 271 S.W.3d at

131; State v. Cauthern, 967 S.W.2d 726, 737 (Tenn. 1998). Hence, counsel may employ

“forceful language in their closing arguments, as long as they do not stray from the evidence

and the reasonable inferences to be drawn from the evidence.” Banks, 271 S.W.3d at 131.

The United States Supreme Court has observed, however, that prosecutors, by virtue of the

high standards of public office, “may strike hard blows, [but are] not at liberty to strike foul

ones.” Berger v. United States, 295 U.S. 78, 88 (1935). “[I]mproper suggestions,

insinuations, and, especially, assertions of personal knowledge are apt to carry much weight

against the accused when they should properly carry none.” Id. For example, asking a jury

to “do its duty” by sending a message to the community is an impermissible plea for general

deterrence and serves as an example of prosecutorial misconduct. Cauthern, 967 S.W.2d at

737. As we observed in State v. Thomas, 158 S.W.3d 361 (Tenn. 2005), although

“[a]ttorneys have great leeway in arguing before a jury and the trial court’s broad discretion

in controlling their arguments will be reversed only upon an abuse of discretion, . . . [t]he

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State is more limited . . . due to the prosecutor’s role as a seeker of justice, rather than a mere

advocate.” Id. at 412-13 (appendix).

As properly recognized by the Court of Criminal Appeals, there are five general areas

of potential prosecutorial misconduct related to closing argument:

(1) It is unprofessional conduct for the prosecutor intentionally to misstate the

evidence or mislead the jury as to the inferences it may draw. (2) It is

unprofessional conduct for the prosecutor to express his personal belief or

opinion as to the truth or falsity of any testimony or evidence or guilt of the

defendant. (3) The prosecutor should not use arguments calculated to inflame

the passions or prejudices of the jury. (4) The prosecutor should refrain from

argument which would divert the jury from its duty to decide the case on the

evidence, by injecting issues broad

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