State of Tennessee v. George Andrew Stanhope

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

July 17, 2012 Session

STATE OF TENNESSEE v. GEORGE ANDREW STANHOPE

Appeal from the Circuit Court for Hickman County

No. 06-5132 CR Timothy L. Easter, Judge

No. M2011-00272-CCA-R3-CD - Filed September 12, 2013

The Defendant, George Andrew Stanhope, was indicted for first degree premeditated murder,

three counts of first degree felony murder, theft of property valued at $1,000 or more but less

than $10,000, aggravated burglary, and aggravated rape. See Tenn. Code Ann. §§ 39-13-

202, -13-502, -14-103, -14-105(a)(3), -14-403. Following a jury trial, the Defendant was

convicted of first degree premeditated murder, two counts of first degree felony murder, theft

of property valued at $1,000 or more but less than $10,000, and aggravated burglary. The

jury acquitted the Defendant of the charge of aggravated rape and one count of first degree

felony murder. The trial court merged the two first degree felony murder convictions with

the first degree premeditated murder conviction. The jury imposed a sentence of life without

the possibility of parole for the first degree premeditated murder conviction. The trial court

held a sentencing hearing on the remaining convictions and imposed a sentence of six years

for the aggravated burglary conviction and a sentence of four years for the theft conviction.

The trial court ordered the sentences to be served consecutive to each other and to the

sentence for the first degree premeditated murder conviction, for an effective sentence of life

without the possibility of parole plus ten years. In this appeal as of right, the Defendant

contends (1) that the trial court erred in denying the Defendant’s motion to suppress

statements he made to the police; (2) that the trial court erred by not allowing defense counsel

to review the personnel file of a former police detective; (3) that the in-court security around

the Defendant was excessive and gave the jury the impression that he was in custody; (4) that

the evidence was insufficient to sustain the Defendant’s convictions; (5) that the trial court

erred by not merging the Defendant’s convictions for theft and aggravated burglary; (6) that

the statutory aggravating circumstance of the victim’s age was unconstitutional; (7) that a

new trial was warranted because one of the jurors failed to disclose her relationship with the

court clerk during voir dire; and (8) that the Defendant was entitled to a new trial due to

cumulative error.1 Discerning no error, we affirm the judgments of the trial court.

1

For the purposes of clarity and brevity, we have renumbered and reordered the issues as stated by the

Defendant in his brief.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J OSEPH M. T IPTON,

P.J., and N ORMA M CG EE O GLE, J., joined.

Gary W. Wicks, Sr., and Robert L. Booker, Franklin, Tennessee, for the appellant, George

Andrew Stanhope.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney

General; Kim R. Helper, District Attorney General; Michael Joseph Fahey, II, and Kate

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

OPINION

FACTUAL BACKGROUND

I. Guilt Phase

The victim, Lillie Moran, was last seen alive on the afternoon of April 5, 2006.

Sammy Ferguson testified at trial that he leased a cow pasture adjacent to the ninety-year-old

victim’s house in a “secluded area” of Hickman County. On April 5, 2006, Mr. Ferguson

spoke to the victim in her driveway around 3:00 p.m. when she returned home from a

physical therapy appointment. The victim’s neighbor, David Oxman,2 had driven the victim

to the appointment in her car, a tan 1998 Ford Escort station wagon. The victim had a

follow-up appointment scheduled with the physical therapist for the next day, but the victim

never showed up for the appointment and did not answer her phone when the physical

therapist’s office called to remind her of the appointment.

At approximately 3:00 p.m. on April 6, 2006, Deputy Levi Mobley of the Hickman

County Sheriff’s Department (HCSD) responded to “a possible death” call at the victim’s

home. Deputy Mobley testified that he met Mr. Oxman on a side deck of the house near the

carport. According to Deputy Mobley, the victim’s car was not in the carport and Mr.

Oxman was “somewhat” upset. The victim used a side entrance as the main entrance to her

home instead of the front door. Deputy Mobley testified that there were pry marks on the

screen door and that it “had been apparently forced open.” The inside handle of the screen

door was broken off and found lying on a washing machine inside the home. A crow bar

from the victim’s tool shed was found on a bench in the carport. The victim’s phone line had

2

Mr. Oxman died prior to the Defendant’s trial.

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been cut and two small plug-in lights the victim kept on her porch were found in the yard “a

fairly good distance from the house.”

Deputy Mobley testified that he entered the house with another deputy and found the

victim in a first floor bedroom. The victim was lying on the bed and “had trauma to the right

side of her head.” The victim was clothed and “covered up” to her chest with a sheet. The

victim’s hands were crossed and resting on her torso. A bloody pillow was propped up on

the headboard next to the victim’s head. A purse and a nightgown were found lying on the

bed next to the victim’s body. The victim’s bed appeared to have been pushed over “about

a foot” and several coins were scattered across the bedroom floor. An empty “coin sorter”

was found on the victim’s nightstand. Deputy Mobley checked the victim for a pulse and

determined that she was dead. Deputy Mobley testified that he did not touch anything else

in the bedroom besides the victim’s neck and arm.

The evidence at trial established that the Defendant’s grandmother lived on a hill 200

yards from the victim’s house. Sometime between 2:00 and 3:00 a.m. on the morning of

April 6, 2006, the Defendant pulled into a local gas station driving the victim’s car. Tristan

Louis Malston testified that he was working at the gas station that morning when the

Defendant came in alone. Mr. Malston testified that the Defendant was very quiet that

morning. Christopher M. Campbell testified that he was working at the Waffle House in

Dickson that morning when the Defendant came into the restaurant by himself around 3:00

a.m.3 The Defendant left and came back to the restaurant around 7:00 a.m. driving the

victim’s car. Mr. Campbell testified that he did not have a ride home, so he accepted a ride

with the Defendant. Mr. Campbell further testified that he spent the entire day with the

Defendant in Nashville and Dickson and that the Defendant had a revolver with him.

The Defendant’s ex-girlfriend, Leandra Smith-Winters, testified that she saw the

Defendant at 6:15 a.m. on April 6, 2006, as she was dropping her son off at daycare.

According to Ms. Smith-Winters, the Defendant was alone and was driving the victim’s

station wagon. The Defendant gave Ms. Smith-Winters a ring that morning. According to

Ms. Smith-Winters, the Defendant had not had a job since January 2006. The victim’s niece,

Dorothy L. King, identified the ring the Defendant gave to Ms. Smith-Winters as having

belonged to the victim. Ms. King also testified that the victim’s station wagon was valued

at $3,500 in April 2006. Ms. Smith-Winters testified that she saw the Defendant two more

times that day. The Defendant was still driving the victim’s car, but Mr. Campbell was with

him when she saw him later on in the day.

3

Two witnesses testified that Mr. Campbell “clocked in” around 9:00 p.m. on April 5, 2006, and worked

until 6:15 a.m. on April 6, 2006.

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At approximately 10:30 p.m. on April 6, 2006, Sergeant Jeff Lovell of the Dickson

County Sheriff’s Department (DCSD) spotted the victim’s car pull up to a pay phone at

Tuffy’s Market. As the Defendant got out of the car to use the pay phone, Sgt. Lovell drew

his weapon and ordered the Defendant to lie down on the ground. Sgt. Lovell ordered Mr.

Campbell to exit the car and lie down on the ground as well. Deputy Paul Montgomery of

the DCSD handcuffed the Defendant and checked his driver’s license to confirm his identity.

Deputy Montgomery then placed the Defendant in the backseat of his cruiser and activated

the cruiser’s audio recording device. At trial, the audio recording was played for the jury.

The Defendant told Deputy Montgomery, without any prompting, to “look under the front

seat” when he searched the car because there was “a .32 revolver under there.” While the

Defendant was alone in the cruiser, he stated that he wanted the police to take him to jail so

he could call Ms. Smith-Winters and tell her he had been “arrested for murder.”

The Defendant was eventually moved from Deputy Montgomery’s cruiser to a HCSD

cruiser that did not have an audio recording device. Once in the HCSD cruiser, the

Defendant started “causing a little bit of a commotion” and motioning for officers to come

to the cruiser. Sgt. Carl Hutchinson of the HCSD testified that when he approached the

cruiser, the Defendant said that he knew “what this [was] all about . . . [h]omicide.” Sgt.

Hutchinson went and got Jimmy Barnett, then a detective with the HCSD, to come speak

with the Defendant. Mr. Barnett testified that the Defendant repeatedly told him that he

knew “what this [was] about.” Mr. Barnett eventually asked the Defendant, “what” it was

all about, and the Defendant responded “homicide.” The Defendant then pointed at Mr.

Campbell and said that Mr. Campbell “didn’t have anything to do with it.”

Mr. Barnett testified that the Defendant stated that he had left his grandmother’s house

the night before and had gone to the victim’s house. The Defendant told Mr. Barnett that he

cut the victim’s phone line with a knife and then knocked on her door to ask if he could use

the phone. The victim answered the door and invited the Defendant inside. The Defendant

told Mr. Barnett that the victim was holding a gun when she answered the door. The

Defendant asked for a glass of water and sat down in the living room. Eventually, the victim

put her gun down on a table. The Defendant told Mr. Barnett that he picked up the gun, and

made the victim go into her bedroom and lie down on the bed. The Defendant stated that he

put a pillow over the victim’s head and shot her twice in the head.

Sgt. Hutchinson testified that he heard most of what the Defendant said to Mr. Barnett

and corroborated Mr. Barnett’s recollection of the Defendant’s statements. Sgt. Hutchinson

also testified that the Defendant said, “I probably f--ked up, didn’t I” after he told Mr.

Barnett that he shot the victim. All of the officers involved in the Defendant’s arrest who

testified at trial stated that they did not tell the Defendant why he was being arrested and did

not hear anyone else tell the Defendant he had been arrested for a homicide. Mr. Campbell

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testified that he repeatedly asked the officers why he was being detained, but none of the

officers responded to his questions. However, Mr. Campbell testified that he could not hear

what the officers said to the Defendant. Later that night, samples were taken from the

Defendant’s hands to test for gun shot residue, and the Defendant gave the police his clothes

for forensic testing. The next day, the Defendant told Mr. Barnett that he did not know why

he killed the victim because she was the only person that was ever nice to him.

A Smith & Wesson .32 long caliber revolver was recovered under the driver’s seat of

the victim’s car after the Defendant’s arrest. Constable Jerry Deal testified that the gun

recovered from the victim’s car belonged to the victim and that she kept it in her nightstand

for protection. Shelly Betts, a forensic scientist with the Tennessee Bureau of Investigation

(TBI) and an expert in tool mark and firearms identification, testified that .32 caliber guns

were relatively uncommon and “not a very popular revolver.” When the revolver was

recovered, it had four unfired Winchester .32 caliber cartridges in the cylinder and two empty

chambers. Ms. Betts testified that the recovered cartridges contained “copper coated brown

nose lead bullets.” Police recovered a fired bullet underneath the victim’s body when it was

moved from the bed. A second fired bullet was found during the victim’s autopsy in the

sheet her body had been wrapped in.

Ms. Betts testified that the pillow found above the victim’s head had two bullet holes

in it. Ms. Betts opined that both shots were “contact or near contact gunshots.” Ms. Betts

also testified that the fired bullets were .32 caliber, “copper coated lead with a round nose.”

Ms. Betts opined that the fired bullets were “the same type and design” as the bullets found

in the unfired cartridges found in the revolver. Ms. Betts also opined that the fired bullets

were “consistent with being manufactured by Winchester,” like the unfired cartridges. The

fired bullets were too badly damaged for Ms. Betts to make a conclusive determination as

to whether they had been fired from the victim’s gun. However, there were no dissimilarities

between the bullets recovered at the crime scene and bullets test-fired from the gun. Ms.

Betts testified that both of the fired bullets had the same “class characteristics” and one bullet

had “similar individual characteristics” with the test-fired bullets.

Ms. Betts also testified about the cut to the victim’s phone line and the pry marks on

the victim’s screen door. Ms. Betts opined that the cut to the phone line had been made with

a single-blade cutting tool like a knife or a box cutter. Ms. Betts testified that there were pry

marks both below and above the handle to the screen door. Ms. Betts opined that the pry

marks on the door were made by “a prying type tool” like the crowbar found in the victim’s

carport. Ms. Betts also opined that the marks were the same size as the crowbar, but she

testified that “there were not individual characteristics to link the crowbar to the tool marks

on the door.” TBI agents searched the victim’s house for fingerprints but were unable to find

any identifiable prints in this case.

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Laura Hodge, a TBI forensic scientist and expert in gunshot residue, testified that the

samples taken from the Defendant’s hands were inconclusive for gunshot residue. Ms.

Hodge explained that to determine if gunshot residue was present she looked for three

specific chemical elements in specific quantities. Ms. Hodge testified that all three of the

elements were present in the samples from the Defendant’s hands, especially his left palm,

but not in sufficient quantities to say the Defendant tested positive for gunshot residue. Ms.

Hodge further testified that gunshot residue was “very fragile” and could easily be destroyed

by wiping or washing the affected area. No gunshot residue was found on the Defendant’s

clothing. However, three bloodstains were found on the Defendant’s jeans. Two of the

stains were a “complete” match with the victim’s DNA and the third stain was a partial

match.

Doctor Adele Lewis, an expert in forensic pathology, testified that she performed an

autopsy on the victim’s body. Dr. Lewis determined that the cause of the victim’s death was

two gunshot wounds to the right side of the victim’s face. One bullet exited the victim’s

skull on the left side of her head and the other through her left ear. The victim had a skin tear

and bruising on her left arm as well as bruising on her right arm. There was also some

bruising on the victim’s legs. Dr. Lewis opined that these injuries could have occurred near

the time of the victim’s death. Dr. Lewis also opined that the injures were consistent with

someone forcefully grabbing the victim. Dr. Lewis noted that the victim had no underwear

on when her body was found. There was a tear on the victim’s vagina and bruising nearby,

which Dr. Lewis opined indicated direct trauma to the area. A rape kit was prepared and sent

to the TBI for examination. However, there was no sperm found on the swabs submitted

with the rape kit.

David Brundage testified on behalf of the Defendant as an expert in tool mark and

firearms identification. Mr. Brundage opined that the pry marks on the screen door were

made by a rounded tool and were inconsistent with the crowbar found in the victim’s carport.

Mr. Brundage also opined that he “could not positively identify nor eliminate” the fired

bullets recovered from the victim’s bed as having been fired from the gun found under the

driver’s seat of the victim’s car.

Based upon the foregoing evidence, the jury convicted the Defendant of first degree

premeditated murder, two counts of first degree felony murder, theft of property valued at

$1,000 or more but less than $10,000, and aggravated burglary. The jury acquitted the

Defendant of the charge of aggravated rape and the related count of first degree felony

murder.

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II. Penalty Phase

The State introduced into evidence the victim’s death certificate to establish that she

was born in 1915 and ninty-years-old at the time of her death. The victim’s niece read a

prepared victim’s impact statement to the jury. The Defendant presented testimony from a

clinical neuropsychologist and a psychiatrist. These witnesses testified that the Defendant

had a below average IQ; had been abused by his mother, grandmother, and uncles as a child;

had been repeatedly placed into foster care; and had suffered a catastrophic head injury when

he was seventeen. They also testified that the Defendant had abused alcohol since he was

nine and claimed to have been intoxicated on alcohol and cocaine when he killed the victim.

These witnesses opined that the Defendant had suffered a personality change due to his head

injury and had become more aggressive and disinhibited since the injury. The State

presented a psychiatrist and a clinical psychologist as rebuttal witnesses. The State’s

witnesses opined that the Defendant had impulse control problems before his accident and

that his behavior was the same before and after the accident. The jury ultimately sentenced

the Defendant to life without the possibility of parole.

ANALYSIS

I. Suppression Motion

The Defendant contends that the trial court erred by denying his motion to suppress

his statements to the police. The Defendant argues that on the night of his arrest he was

interrogated by former detective Jimmy Barnett without having been properly informed of

his Miranda rights. The Defendant also argues that he was interrogated by Mr. Barnett the

day after his arrest without having waived his Sixth Amendment right to counsel. The

Defendant further argues that the police illegally seized his clothing and took samples for a

gunshot residue test because they asked for his consent after he invoked his right against self-

incrimination. The State responds that the Defendant’s statements on the night of his arrest

were voluntary, were not the product of interrogation, and, furthermore, that Mr. Barnett

informed the Defendant of his Miranda rights prior to his confession. The State also

responds that the Defendant knowingly and intelligently waived his Sixth Amendment right

to counsel when the Defendant spoke to Mr. Barnett the day after his arrest. The State

further responds that the Defendant’s arguments regarding the seizure of his clothing and

gunshot residue samples are without merit.

At a pre-trial suppression hearing, Mr. Barnett testified that on the night of the

Defendant’s arrest, he could hear the Defendant “hollering, wanting to talk” from an HCSD

cruiser. Mr. Barnett testified that Sgt. Hutchinson called him over to the cruiser and said that

the Defendant was “wanting to talk to” Mr. Barnett. According to Mr. Barnett, he opened

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the door to the cruiser and the Defendant repeatedly said, “You know what this is all about.”

Mr. Barnett told the Defendant that he wanted to wait until they got back to the police station

to talk to the Defendant about his arrest. Mr. Barnett testified that the Defendant continued

to say, “You know what this is all about.” Mr. Barnett finally asked the Defendant what it

was all about, and the Defendant responded, “Homicide.”

Mr. Barnett testified that once the Defendant said “homicide,” he advised the

Defendant of his Miranda rights. According to Mr. Barnett, he recited the Miranda warnings

to the Defendant from memory. Mr. Barnett also testified that he had previously advised the

Defendant of his Miranda rights on “at least ten or fifteen” different occasions prior to the

Defendant’s arrest on April 6, 2006. Mr. Barnett asked the Defendant if he understood his

rights, and the Defendant responded that he understood his “f--king rights.” Mr. Barnett

testified that the Defendant then confessed to killing the victim. Mr. Barnett also testified

that he did not ask the Defendant any questions and that the Defendant “just continued to

talk.” Sgt. Hutchinson testified that he overheard Mr. Barnett advise the Defendant of his

Miranda rights and portions of the Defendant’s confession.

Once the Defendant finished his confession, Mr. Barnett asked the Defendant if he

would give a recorded statement at the police station. Mr. Barnett testified that the

Defendant agreed to give another statement at the police station. According to Mr. Barnett,

once the Defendant had been transported to the police station he consented to give TBI Agent

Mike Cox his clothes and to have a gunshot residue test performed on his hands. Mr. Barnett

testified that after those items had been collected, the Defendant “commenced to cussing”

and became “very upset.” The Defendant then refused to speak with Mr. Barnett and stated

that he would not tell the police officers anything else. Mr. Barnett testified that he made no

further attempt to question the Defendant.

The next day the Defendant was arraigned and appointed an attorney to represent him.

After the arraignment, Mr. Barnett was told that the Defendant “was worrying the jailers to

death wanting to talk to [him].” Mr. Barnett testified that he went to the jail and told the

Defendant that he could not talk to him because he had been appointed an attorney.

According to Mr. Barnett, the Defendant told him he “just want[ed] to talk” and that the

police already had the victim’s car and that his fingerprints would be on the gun. Mr. Barnett

testified that he again advised the Defendant of his Miranda rights and that he did not have

to speak with Mr. Barnett without his attorney present. The Defendant “cussed again” and

said that he did not need an attorney. The Defendant then told Mr. Barnett that he did not

know why he killed the victim. Mr. Barnett testified that he did not ask the Defendant any

questions while he was at the jail.

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Based upon the foregoing evidence, the trial court denied the Defendant’s suppression

motion. The trial court concluded that the Defendant’s confession on the night of his arrest

was voluntary and not the product of police interrogation. The trial court further concluded

that even if Mr. Barnett’s actions amount to an interrogation, the Defendant had been

properly advised of his Miranda rights and waived those rights prior to his confession. With

respect to the Defendant’s saying he did not know why he killed the victim, the trial court

concluded that the Defendant initiated the contact with Mr. Barnett and that Mr. Barnett’s

actions did not violate the Defendant’s Sixth Amendment right to counsel. The Defendant’s

statements to Mr. Barnett on the night of his arrest and his statement that he did not know

why he killed the victim were admitted at trial. The test results from the gunshot residue test

on the Defendant’s hands and the forensic examination of the Defendant’s clothing were also

admitted at trial.

A. Standard of Review

On appellate review of suppression issues, the prevailing party “is entitled to the

strongest legitimate view of the evidence adduced at the suppression hearing as well as all

reasonable and legitimate inferences that may be drawn from that evidence.” State v. Talley,

307 S.W.3d 723, 729 (Tenn. 2010) (quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn.

1996)). Questions about “the assessment of witness credibility, the weight and value of

evidence, and the resolution of evidentiary conflicts are entrusted to the trial court” as the

trier of fact. State v. Meeks, 262 S.W.3d 710, 722 (Tenn. 2008). When the trial court

“makes findings of fact in the course of ruling upon a motion to suppress, those findings are

binding on appeal unless the evidence in the record preponderates against them.” Id.

Additionally, a trial court’s conclusions of law along with its application of the law to the

facts are reviewed de novo without any presumption of correctness. Id.

B. Statements on the Night of the Defendant’s Arrest

A defendant’s statements “made during the course of custodial police interrogation

are inadmissible as evidence in a criminal case unless the State establishes that the defendant

was advised of certain constitutional rights and waived those rights.” State v. Anderson, 937

S.W.2d 851, 853 (Tenn. 1996) (citing Miranda v. Arizona, 384 U.S. 436, 444 (1966)). The

Miranda decision mandates that police inform a person being questioned of the following

rights prior to a custodial interrogation:

[T]hat (a) he has the right to remain silent; (b) any statement made may be

used against him; (c) he has the right to the presence of an attorney; and (d) if

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he cannot afford an attorney, one will be appointed for him prior to

questioning, if he so desires.

Id.

“An officer is not required to give a verbatim recitation of the Miranda warnings to

avoid the pollution of voluntary statements made by an accused during questioning.” State

v. Chambless, 682 S.W.2d 227, 232 (Tenn. Crim. App. 1984) (citing California v. Prysock,

435 U.S. 355 (1981)). Miranda warnings must be provided “to an accused when the accused

is in custody and is subjected to interrogation or its functional equivalent.” State v. Sawyer,

156 S.W.3d 531, 534 (Tenn. 2005) (citing Rhode Island v. Innis, 446 U.S. 291, 298 (1980)).

However, “where a defendant makes a statement without being questioned or pressured by

a government agent, the statement is admissible, if the statement was freely and voluntarily

made by the defendant.” State v. Land, 34 S.W.3d 516, 525 (Tenn. Crim. App. 2000); see

also Miranda, 384 U.S. at 478 (holding that “[v]olunteered statements of any kind are not

barred by the Fifth Amendment and their admissibility is not affected by our holding today”).

Here, the Defendant made a “commotion” until Sgt. Hutchinson approached him. The

Defendant told Sgt. Hutchinson that he knew “what this [was] all about . . . [h]omicide.” At

that point, Sgt. Hutchinson got Mr. Barnett. Mr. Barnett testified that he told the Defendant

that he wanted to wait and take his statement at the police station. However, the Defendant

repeatedly stated, “You know what this is all about,” until Mr. Barnett finally responded by

asking him what it was about. The Defendant repeated his statement that “this [was] all

about . . . homicide.” The Defendant’s statements to Mr. Barnett and Sgt. Hutchinson that

he knew “what this [was] all about . . . [h]omicide” were voluntary and not the product of

interrogation or its functional equivalent.

Mr. Barnett then stopped the Defendant and informed him of his Miranda rights. Sgt.

Hutchinson testified that he overheard Mr. Barnett provide the Miranda warnings to the

Defendant. Additionally, Mr. Barnett testified that he had previously advised the Defendant

of his Miranda rights ten or fifteen times. The Defendant told Mr. Barnett that he understood

his “f--king rights” and proceeded to confess to the victim’s murder. There is no evidence

that the Miranda warnings Mr. Barnett provided to the Defendant that night were deficient.

Having been properly advised of his Miranda rights, the Defendant then waived those rights

and confessed to killing the victim. Accordingly, we conclude that the trial court did not err

in denying the Defendant’s motion to suppress with respect to his statements made on the

night of his arrest.

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C. Statements Made After Arraignment

The Sixth Amendment provides that the accused in a criminal prosecution “shall

enjoy” the right to the assistance of counsel. This right attaches at the time the State initiates

adversarial judicial proceedings against a defendant. State v. Rollins, 188 S.W.3d 553, 565-

66 (Tenn. 2006). Once the right has attached, a defendant “has [the] right to legal

representation when the government interrogates him.” Brewer v. Williams, 430 U.S. 387,

401 (1977). However, the Defendant may waive this right so long as the waiver is made

knowingly and intelligently. Patterson v. Illinois, 487 U.S. 285, 291 (1988). “So long as the

accused is made aware of the ‘dangers and disadvantages of self-representation’ during post-

indictment questioning, by use of the Miranda warnings, his wavier of his Sixth Amendment

right to counsel at such questioning is ‘knowing and intelligent.’” Id. at 300. Furthermore,

as previously stated, “where a defendant makes a statement without being questioned or

pressured by a government agent, the statement is admissible, if the statement was freely and

voluntarily made by the defendant.” Land, 34 S.W.3d at 525.

After counsel was appointed for the Defendant, he repeatedly requested to speak with

Mr. Barnett to the point that he “was worrying the jailers to death wanting to talk to [Mr.

Barnett].” Once at the jail, Mr. Barnett warned the Defendant that he should not speak to

him without his attorney present and advised the Defendant of his Miranda rights again. The

Defendant stated that he did not need an attorney because he “just want[ed] to talk.” The

evidence clearly demonstrates that the Defendant initiated the contact with Mr. Barnett, that

he was aware of the “dangers and disadvantages” of speaking to Mr. Barnett alone, and that

he knowingly and intelligently waived his right to speak with Mr. Barnett with counsel

present. Accordingly, we conclude that the trial court did not err in denying the Defendant’s

suppression motion with respect to his statements made after his arraignment.

D. Consent to Provide Clothes and Gunshot Residue Samples

The Defendant contends that the police officers could not ask for his consent to

provide samples from his hands for a gunshot residue test and to provide his clothing because

he had invoked his right against self-incrimination and refused to speak with the police.

However, the Defendant failed to include this issue in his suppression motion or object at

trial to the admission of the test results from the gunshot residue test on his hands and the

forensic examination of his clothing. Instead, the Defendant first raised this issue in his

motion for a new trial. A motion to suppress evidence must be filed prior to trial. Tenn. R.

Crim. P. 12(b)(2)(C). Failure to do so results in a waiver of the issue. Tenn. R. Crim. P.

12(f)(1); State v. Burtis, 664 S.W.2d 305, 310 (Tenn. Crim. App. 1983). As such, the

Defendant has waived this issue.

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II. Police Personnel Records

The Defendant contends that the trial court erred by not allowing his counsel to review

the personnel file of a former police detective. Prior to trial, Mr. Barnett was terminated

from his position as a detective with the HCSD. The Defendant subsequently filed a motion

requesting that the State produce Mr. Barnett’s personnel file as possible impeachment

evidence. The file was submitted to the trial court for in camera review, and the trial court

determined that the file contained no exculpatory or impeachment evidence relevant to this

case. On appeal, the Defendant argues that his defense counsel should have been allowed

to inspect the file rather than relying on the judgment of the trial court. The State responds

that the trial court followed the proper procedure and did not err by refusing the Defendant’s

request to have the file inspected by his counsel.

In order to ensure a defendant’s constitutional right to a fair trial, the State must

provide the defendant with exculpatory evidence that is either material to guilt or relevant

to punishment. State v. Ferguson, 2 S.W.3d 912, 915 (Tenn. 1999). This also includes

evidence which could be used to impeach the State’s witnesses. Johnson v. State, 38 S.W.3d

52, 56 (Tenn. 2001). However, “a defendant’s right to discover exculpatory evidence does

not include the unsupervised authority to search through the [State’s] files.” Pennsylvania

v. Ritchie, 480 U.S. 39, 59 (1987). Contrary to the Defendant’s argument in this appeal,

“[d]efense counsel has no constitutional right to conduct his own search of the State’s files

to argue relevance.” Id.

This court, after reviewing the applicable sections of the Tennessee Rules of Criminal

Procedure, prior Tennessee case law, and case law from other jurisdictions, has adopted the

following rule:

Criminal defendants may not routinely have access to police personnel records,

but upon a strong showing that the personnel records might contain

information material to a defendant’s case, the trial court should conduct an in

camera inspection of the records and release to [the] defendant those items the

court deems material to the defense.

State v. Butts, 640 S.W.2d 37, 39 (Tenn. Crim. App. 1982) (emphasis added). The trial court

properly followed this procedure as laid out in the Butts opinion. We are not inclined to alter

this long standing rule to now provide defendants with unfettered access to police personnel

records.

Furthermore, the Defendant failed to request that Mr. Barnett’s file be placed under

seal and preserved for our review. As such, the Defendant has waived review by this court

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as to whether the file contained any relevant information. See State v. Bryan Herman

Dowdy, No. W2000-01011-CCA-R3-CD, 2001 WL 91732, at *8 (Tenn. Crim. App. Jan. 26,

2001). Accordingly, we conclude that the trial court did not err by denying the Defendant’s

request to have his counsel inspect Mr. Barnett’s personnel file.

III. In-Court Security

The Defendant contends that the in-court security around him was excessive and gave

the jury the impression that he was in custody. The Defendant argues that the trial court

erred in denying his motion for a mistrial after several jurors allegedly saw the Defendant

being transported from the courtroom to the local jail. The Defendant further argues that the

number of bailiffs in the courtroom was excessive and that they “congregated” around the

Defendant during the trial. The State responds that the Defendant failed to establish a

manifest necessity warranting a mistrial. The State further responds that the security around

the Defendant was not excessive and that the trial court took curative measures each time the

Defendant complained about the security in the courtroom.

During a break in the trial, the Defendant requested a mistrial because three jurors saw

the Defendant as he was being transported back to the jail for lunch. Defense counsel stated

that the Defendant had not been handcuffed but that “it was obvious that he was being taken

back to the jail.” Defense counsel stated that the bailiff had stopped to smoke a cigarette

which allowed the jurors to see the Defendant. The trial court denied the Defendant’s

motion, and defense counsel declined to argue the matter further or have any evidence about

the incident placed on the record.

In addition to this, during voir dire, defense counsel complained to the trial court that

it had become “a bit of a procession in and out of the courtroom following” the Defendant.

The trial court responded by ordering that only one bailiff stay in the courtroom during the

proceedings. Later in the trial, defense counsel complained that the bailiff was sitting behind

the Defendant. The trial court stated that there was no need for the bailiff to sit directly

behind the Defendant and requested that he sit in the back of the courtroom for the remainder

of the trial. At no point did the Defendant request a mistrial based upon his complaints

concerning the in-court security.

The determination of whether to grant a mistrial lies within the sound discretion of the

trial court and should be granted “only in the event of a ‘manifest necessity’ that requires

such action.” State v. Hall, 976 S.W.2d 121, 147 (Tenn. 1998) (appendix). The burden of

establishing a “manifest necessity” lies with the party seeking the mistrial. State v. Williams,

929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). “The purpose for declaring a mistrial is to

correct damage done to the judicial process when some event has occurred which precludes

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an impartial verdict.” Id. A trial court’s decision regarding whether to grant a mistrial will

only be overturned upon a showing of an abuse of discretion. Id. Failure to request a

mistrial waives any further action by the trial court. Hall, 976 S.W.2d at 157.

This court has previously held that incidental sightings of defendants being

transported from the courthouse in handcuffs and prison clothes are not prejudicial. State v.

Baker, 751 S.W.2d 154, 164 (Tenn. Crim. App. 1987). In doing so, this court stated as

follows:

Common sense must prevail in such instances where a jury or jurors

inadvertently see a defendant dressed in prison clothing. Reason dictates that

they must know a person on trial is either on bail or in confinement during the

course of trial. The evidence of the guilt of all the defendants in this case was

strong. There is no indication that any of them were prejudiced by the

occurrence complained of.

Id. Here, the Defendant offered no proof to support his allegations and admitted that he was

not handcuffed at the time the jurors allegedly saw him. As such, the Defendant failed to

establish that a manifest necessity required a mistrial. Furthermore, as we will discuss more

fully below, the evidence of the Defendant’s guilty was overwhelming. Therefore, the

Defendant has failed to establish that he was prejudiced by the alleged sighting.

Accordingly, we conclude that the trial court did not abuse its discretion in denying the

Defendant’s motion for a mistrial.

With respect to the Defendant’s claims that the in-court security was excessive, we

note that the Defendant did not request a mistrial or that a curative instruction be given to the

jury in response to his complaints. As such, the Defendant waived any further action by the

trial court on this issue. Furthermore, we do not believe that the trial court erred by failing

to sua sponte declare a mistrial as a result of the Defendant’s complaints. The trial court

responded to each of the Defendant’s complaints and limited the security in the courtroom

to one bailiff who was eventually instructed to sit in the back of the courtroom. We will not

overturn a trial court’s decision regarding how to implement courtroom security unless there

has been “some abuse of the trial court’s discretion in marshaling the trial.” State v.

Franklin, 714 S.W.2d 252, 258 (Tenn. 1986). We cannot conclude that the trial court’s

actions constituted such an abuse of discretion nor that the use of one uniformed bailiff who

was eventually moved to the back of the courtroom branded the Defendant in the eyes of the

jury “with an unmistakable mark of guilt.” Holbrook v. Flynn, 475 U.S. 560, 571 (1986).

Accordingly, we conclude that this issue is without merit.

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IV. Sufficiency of the Evidence

The Defendant contends that the evidence was insufficient to sustain his convictions.

However, the Defendant has made no argument as to why the evidence was insufficient to

sustain his convictions. “Issues which are not supported by argument . . . will be treated as

waived in this court.” Tenn. Ct. Cr. App. R. 10(b). Waiver not withstanding, we will briefly

address the sufficiency of the convicting evidence.

An appellate court’s standard of review when the defendant questions the sufficiency

of the evidence on appeal is “whether, after viewing the evidence in the light most favorable

to the prosecution, 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). This

court does not reweigh the evidence; rather, it presumes that the jury has resolved all

conflicts in the testimony and drawn all reasonable inferences from the evidence in favor of

the state. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in

testimony, and the weight and value to be given to evidence were resolved by the jury. See

State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

A guilty verdict “removes the presumption of innocence and replaces it with a

presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the

evidence is insufficient to support the jury’s verdict.” Bland, 958 S.W.2d at 659; State v.

Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). A guilty verdict “may not be based solely upon

conjecture, guess, speculation, or a mere possibility.” State v. Cooper, 736 S.W.2d 125, 129

(Tenn. Crim. App. 1987). However, “[t]here is no requirement that the State’s proof be

uncontroverted or perfect.” State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). Put

another way, the State is not burdened with “an affirmative duty to rule out every hypothesis

except that of guilt beyond a reasonable doubt.” Jackson, 443 U.S. at 326.

The following standard “applies to findings of guilt based upon direct evidence,

circumstantial evidence, or a combination of [both] direct and circumstantial evidence.”

State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). Our supreme court

has held that circumstantial evidence is as probative as direct evidence. Dorantes, 331

S.W.3d at 379-81. In doing so, the supreme court rejected the previous standard which

“required the State to prove facts and circumstances so strong and cogent as to exclude every

other reasonable hypothesis save the guilt of the defendant, and that beyond a reasonable

doubt.” Id. at 380 (quoting Crawford, 470 S.W.2d at 612) (quotation marks omitted).

Instead, “direct and circumstantial evidence should be treated the same when

weighing the sufficiency of such evidence.” Dorantes, 331 S.W.3d at 381. The reason for

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this is because with both direct and circumstantial evidence, “a jury is asked to weigh the

chances that the evidence correctly points to guilt against the possibility of inaccuracy or

ambiguous inference . . . [and] [i]f the jury is convinced beyond a reasonable doubt, we can

require no more.” Id. at 380 (quoting Holland v. United States, 348 U.S. 121, 140 (1954)).

To that end, the duty of this court “on appeal of a conviction is not to contemplate all

plausible inferences in the [d]efendant’s favor, but to draw all reasonable inferences from the

evidence in favor of the State.” State v. Sisk, 343 S.W.3d 60, 67 (Tenn. 2011).

Here, the evidence of the Defendant’s guilt was overwhelming for all of his

convictions. The victim was found lying on her bed, dead from two gunshots to the right side

of her head. A bloodied pillow with two bullet holes was found above the victim’s head.

The phone line to the victim’s house had been cut, there were pry marks on her screen door,

and her car was missing when police found her body. Prior to the discovery of the victim’s

body, the Defendant was repeatedly seen driving the victim’s car, and he gave his ex-

girlfriend a ring that belonged to the victim. Later the Defendant was arrested while driving

the victim’s car, and a .32 caliber revolver that had belonged to the victim was found under

the driver’s seat. After his arrest, the Defendant confessed to entering the victim’s home

under the false pretext of using her phone, taking her gun away from her, and killing her.

The victim’s gun had four unfired cartridges and two empty chambers when it was

recovered. Forensic testing revealed that the bullets recovered from the crime scene were

consistent with being the same type as the unfired cartridges found in the gun. The recovered

bullets also had the same class characteristics as bullets test-fired from the victim’s gun. The

Defendant’s pants had three blood stains, two of which were a complete match for the

victim’s DNA. Testimony from the victim’s niece established that the items taken from the

victim were valued at more than $1,000. Accordingly, we conclude that the evidence was

more than sufficient to sustain the Defendant’s convictions for first degree premeditated

murder, two counts of first degree felony murder, aggravated burglary, and theft of property

valued at $1,000 or more but less than $10,000.

V. Merger of Aggravated Burglary and Theft Convictions

The Defendant contends that the trial court erred by not merging his conviction for

aggravated burglary and theft of property valued at $1,000 or more but less than $10,000.

The Defendant argues that the facts giving rise to his theft conviction arose from the same

facts leading to his aggravated burglary conviction and that theft was a lesser-included

offense of aggravated burglary. The State responds that theft is not a lesser-included offense

of aggravated burglary and that the General Assembly intended for theft and aggravated

burglary to be punished separately.

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Both the United States and Tennessee Constitutions prohibit multiple punishments for

the same offense. State v. Thompson, 285 S.W3d 840, 846-47 (Tenn. 2009). A trial court’s

determination whether “multiple convictions violate double jeopardy is a mixed question of

law and fact, which we review de novo without any presumption of correctness.” State v.

Watkins, 362 S.W.3d 530, 539 (Tenn. 2012) (citing Thompson, 285 S.W.3d at 846)). Our

supreme court recently adopted the test found in Blockburger v. United States, 284 U.S. 299

(1932), for use in determining whether convictions for offenses under two different statutes

constitute the same offense for double jeopardy purposes. Id. at 556.

The Blockburger test provides that “where the same act or transaction constitutes a

violation of two distinct statutory provisions, the test to be applied to determine whether there

are two offenses or only one, is whether each provision requires proof of a fact which the

other does not.” 284 U.S. at 304. The central analysis of the Blockburger test “requires an

examination of the statutory elements [of the offenses] in the abstract, without regard to the

proof offered at trial in support of the offenses.” Watkins 362 S.W.3d at 544. “If each

offense includes an element that the other offense does not, the Blockburger test is satisfied,

notwithstanding a substantial overlap in the proof offered to establish the crimes.” Id.

(quoting Iannelli v. United States, 420 U.S. 770, 785 n.17 (1975)) (internal quotation marks

omitted).

The first step in the Blockburger test is to determine the threshold question of

“whether the convictions arise from the same act or transaction.” Watkins, 362 S.W.3d at

556. “If the convictions do not arise from the same act or transaction, there cannot be a

violation of the double jeopardy protection against multiple punishment.” Id. In answering

this question, we refer “to the charging instrument and the relevant statutory provisions” and

“consider whether the charges arise from discrete acts or involve multiple victims.” Id.

Here, the offenses occurred against the same victim, at the same location, in close temporal

proximity, and as part of one continuing criminal transaction. Therefore, we move to the

next step of the Blockburger test.

The second step of the Blockburger test requires us “to examine the statutory elements

of the offenses.” Watkins, 362 S.W.3d at 557. The following presumptions apply to our

examination of the statutory elements of the offenses:

If the elements of the offenses are the same, or one offense is a lesser included

of the other, then we will presume that multiple convictions are not intended

by the General Assembly and that multiple convictions violate double

jeopardy. However, if each offense includes an element that the other does

not, the statutes do not define the “same offense” for double jeopardy

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purposes, and we will presume that the Legislature intended to permit multiple

punishments.

Id. (internal footnote omitted).

Aggravated burglary occurs when a defendant enters into a habitation without the

effective consent of the owner with the intent to commit a felony, theft, or assault. Tenn.

Code Ann. §§ 39-14-401, -402, -403. Theft of property occurs when a defendant, “with

intent to deprive the owner of property, . . . knowingly obtains or exercises control over the

property without the owner’s effective consent.” Tenn. Code Ann. § 39-14-103(a). Contrary

to the Defendant’s argument, our supreme court has previously held that theft is not a lesser

included offense of aggravated burglary and that the two offenses are “codified in distinct

statutory provisions and are intended to protect different interests.” See State v. Davis, 613

S.W.2d 218, 221 (Tenn. 1981).

Aggravated burglary is “an offense against the security interest in possession of

property rather than an offense against the legal title or ownership of the property” and is

completed when entry has been made into the habitation. State v. Ralph, 6 S.W.3d 251, 255

(Tenn. 1999). Theft, on the other hand, is “an offense against the legal title or ownership of

the property” and is not completed “until the defendant obtains or exercises control over the

property with the intent to deprive the owner of the property.” Id. “Consummation of the

intended felony, theft, or assault is not necessary to complete the crime of burglary.” Id. As

such, “after proving either of these offenses, different and additional facts and elements must

be shown to prove the other.” Davis, 613 S.W.2d at 221. Accordingly, we conclude that the

Defendant’s convictions for aggravated burglary and theft do not violate his constitutional

protections against double jeopardy.

VI. Victim’s Age as an Aggravating Circumstance

The Defendant contends that the State’s use of the statutory aggravating circumstance

of the victim’s age was unconstitutional. The Defendant argues that he was arbitrarily

sentenced because use of the victim’s age as an aggravating circumstance required the jury

to ignore the mitigating evidence he presented and sentence him to life without the possibility

of parole. The State responds that the jury properly followed its instructions regarding the

imposition of the sentence and that use of a victim’s age as an aggravating factor in

sentencing is not constitutionally suspect.

On appeal, we review a sentence of life without the possibility of parole for “any

errors assigned” and for “the appropriateness of the sentence.” Tenn. Code Ann. § 39-13-

207(g). Such a sentence “shall be considered appropriate if the [S]tate proved beyond a

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reasonable doubt at least one [] statutory aggravating circumstance . . . and the sentence was

not otherwise imposed arbitrarily, so as to constitute a gross abuse of the jury’s discretion.”

Id. Here, the State established beyond a reasonable doubt that the victim was seventy years

or older at the time of her death. See Tenn. Code Ann. § 39-13-204(i)(14). As such, we

examine whether the Defendant’s sentence was imposed arbitrarily, “so as to constitute a

gross abuse of the jury’s discretion.”

When the State has established the existence of a statutory aggravating circumstance

beyond a reasonable doubt, “the jury shall, in its considered discretion, sentence the

defendant either to imprisonment for life without possibility of parole or to imprisonment for

life.” Tenn. Code Ann. § 39-13-207(c). A trial court is statutorily mandated to instruct a

jury “that, in imposing sentence, it shall weigh and consider the statutory aggravating

circumstance or circumstances proven by the [S]tate beyond a reasonable doubt and any

mitigating circumstance or circumstances.” Tenn. Code Ann. § 39-13-207(d). The jury in

this case was so instructed, and jurors are presumed to follow the trial court’s instructions.

See State v. Robinson, 146 S.W.3d 469, 494 (Tenn. 2004). There is no evidence in the

record before us to support the Defendant’s argument that the jury sentenced him without

considering and weighing the mitigating evidence presented at the sentencing hearing.

No Tennessee court has previously addressed the question of whether use of the

victim’s age as a statutory aggravating circumstance is constitutional. However, it has

previously been held that “there are no constitutional or statutory impediments” to the use

of the victim’s age as an aggravating circumstance when the victim’s age is an element of

the convicting offense. See State v. Hodges, 7 S.W.3d 609, 629 (Tenn. Crim. App. 1998).

Here, the age of the victim was not an element of the offense and the Defendant has cited to

no authority to support his contention that such a factor alone is arbitrary and constitutionally

suspect. We believe that a rational basis exists for the General Assembly’s determination

that the elderly are especially vulnerable and should be protected. It was not unconstitutional

for the legislature to conclude that murders against the elderly are more abhorrent than other

first-degree murders and should be punished more severely. Accordingly, we conclude that

this issue is without merit.

VII. Juror’s Relationship with the Court Clerk

The Defendant contends that a new trial was warranted because one of the jurors

failed to disclose her relationship with the court clerk during voir dire. The Defendant argues

that the juror’s failure to disclose her relationship denied him the “fair opportunity to use his

peremptory challenge[s],” hampered defense counsel in the jury selection process, and

significantly impaired his right to a trial by a fair and impartial jury. The State responds that

the juror did not give any false or misleading answers during voir dire and that there was no

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evidence of any bias on the juror’s part. The State concludes that the Defendant has not

established any prejudice due to the juror’s failure to disclose her relationship with the court

clerk.

During voir dire, defense counsel asked several times whether any of the potential

jurors were related “by blood or marriage” to either the Defendant or the victim. Defense

counsel also asked the potential jurors if any of them had been the victim of a violent crime

or had any “significant experience or interaction with law enforcement.” Several potential

jurors responded that they had family members involved in law enforcement. Defense

counsel then followed up by asking if “[a]nyone else [had] any significant experience with

law enforcement, or the District Attorney, or the judicial system?” Later, defense counsel

asked if anyone had any “close relatives or close friends who [were] involved in law

enforcement?” Juror Tammie Dotson did not respond affirmatively to any of these questions.

After trial, defense counsel learned that Ms. Dotson was the sister-in-law of the court

clerk and that they were next-door neighbors. At the hearing on the Defendant’s motion for

new trial, Ms. Dotson testified that she did not voluntarily disclose her relationship with the

court clerk because she did not consider the court clerk to be involved with the trial

proceedings and did not think that their relationship had anything to do with her service as

a juror. Ms. Dotson further explained that she was never asked if she was related to anyone

in the clerk’s office. Ms. Dotson testified that she did not have any experience with law

enforcement or the judicial system beyond her jury service in this case.

Ms. Dotson further testified that she did not feel that her relationship with the court

clerk constituted “significant involvement with the judicial system.” Ms. Dotson explained

that she believed that being personally involved in a trial or knowing a party in a case would

constitute a “significant involvement with the judicial system.” Ms. Dotson testified that she

had never seen or participated in a trial except for this case and that she did not know anyone

who had ever been a party in a trial. Ms. Dotson further testified that she did not have any

conversations with the court clerk about this case or her jury service. The court clerk

testified that she never discussed pending court matters with friends and family and that she

never told Ms. Dotson about the Defendant’s case or his criminal history. Based upon the

foregoing, the trial court denied the Defendant’s motion for a new trial on this issue.

Both the United States and the Tennessee Constitutions guarantee a defendant’s right

to trial “by an impartial jury.” State v. Akins, 867 S.W.2d 350, 354 (Tenn. Crim. App. 1993).

Our state constitution guarantees every defendant a trial by a jury free from “disqualification

on account of some bias or partiality toward one side or the other of the litigation.” Id.

(quoting Toombs v. State, 270 S.W.2d 649, 650 (Tenn. 1954)). In protection of this right,

“[t]he essential function of voir dire is to allow for the impaneling of a fair and impartial jury

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through questions which permit the intelligent exercise of challenges by counsel.” Id. A

defendant may challenge a juror’s qualifications post-verdict when bias or prejudice is

actually shown to exist or can be presumed from the circumstance. Id. at 355 (quoting

Durham v. State, 188 S.W.2d 555, 559 (Tenn. 1945)). Likewise, a post-verdict challenge

may be lodged “when a juror conceals or misrepresents information tending to indicate a lack

of impartiality.” Id.

The Defendant “bears the burden of providing a prima facie case of bias or partiality.”

Akins, 867 S.W.2d at 355. “When a juror willfully conceals (or fails to disclose) information

on voir dire which reflects on the juror’s lack of impartiality, a presumption of prejudice

arises.” Id. However, this presumption of bias “may be dispelled by an absence of actual

favor or partiality by the juror.” Carruthers v. State, 145 S.W.3d 85, 95 (Tenn. Crim. App.

2003). Furthermore, “[i]nsignificant nondisclosures will not give rise to a presumption of

prejudice.” Akins, 867 S.W.2d at 356 n.12. A defendant waives his right to object to a

juror’s failure to volunteer information that “could reasonably be interpreted as extraneous”

when he fails to ask “questions calculated to produce specific answers” regarding the

information. Clariday v. State, 552 S.W.2d 759, 771 (Tenn. Crim. App. 1976).

This court has previously held that a juror’s relationship “to people connected with

law enforcement . . . does not give rise to an inherently prejudicial situation in and of itself.”

State v. Taylor, 669 S.W.2d 694, 699 (Tenn. Crim. App. 1983). A juror’s failure to volunteer

information concerning such a relationship “does not establish a prima facie case of bias or

partiality.” Id. at 700. We see no reason why this rule should not apply with equal force to

a juror’s relationship with court personnel. Therefore, Ms. Dotson’s failure to voluntarily

disclose her relationship to the court clerk alone did not give rise to a presumption of

prejudice. We must now examine whether Ms. Dotson answered any of defense counsel’s

questions falsely or withheld requested information during voir dire.

We do not believe that defense counsel’s question whether any of the potential jurors

had “any significant experience with law enforcement, or the District Attorney, or the judicial

system” was calculated to produce specific answers about Ms. Dotson’s relationship with the

court clerk. Ms. Dotson testified at the motion for new trial hearing that she believed

“significant experience” with the judicial system meant having been involved in a trial or

knowing someone who was a party to a trial. Ms. Dotson further testified that she had no

personal experience with law enforcement or the judicial system beyond her service as a juror

in this case. We believe that this is the most reasonable interpretation of defense counsel’s

question and that Ms. Dotson did not willfully withhold requested information during voir

dire.

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Furthermore, Ms. Dotson’s testimony at the motion for new trial hearing established

an absence of favor or partiality on her part. Ms. Dotson testified that she did not speak to

her sister-in-law about the case or her jury service. The court clerk testified that she did not

talk to her family or friends about pending court matters and that she never disclosed the

Defendant’s criminal history to Ms. Dotson. There is no evidence in the record to establish

that Ms. Dotson was biased against the Defendant or partial to the State due to her

relationship with the court clerk. As such, we conclude that this issue is without merit and

that the trial court did not err in denying the Defendant’s motion for a new trial on this issue.

VIII. Cumulative Error

The Defendant raises, for the first time in his reply brief, the contention that a new

trial is warranted due to cumulative error. However, the cumulative error doctrine applies

only to rare circumstances in which there have been “multiple errors committed in trial

proceedings, each of which in isolation constitutes mere harmless error, but when aggregated,

have a cumulative effect on the proceedings so great as to require reversal in order to

preserve a defendant’s right to a fair trial.” State v. Hester, 324 S.W.3d 1, 76 (Tenn. 2010).

Having discerned no error in this case, there can be no cumulative error. Accordingly, we

conclude that this issue is devoid of merit.

CONCLUSION

Upon consideration of the foregoing and the record as a whole, the judgments of the

trial court are affirmed.

_________________________________

D. KELLY THOMAS, JR., JUDGE

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