State of Tennessee v. Raynella Dossett Leath

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

April 24, 2012 Session

STATE OF TENNESSEE v. RAYNELLA DOSSETT LEATH

Appeal from the Criminal Court for Knox County

No. 85787 Richard R. Baumgartner, Judge

No. E2011-00437-CCA-R3-CD - Filed June 3, 2013

Following a jury trial, the Defendant, Raynella Dossett Leath, was convicted of first degree

premeditated murder and sentenced to imprisonment for life, with the possibility of parole.

See Tenn. Code Ann. § 39-13-202. In this appeal as of right, the Defendant contends (1) that

she was retried in violation of her state and federal constitutional protections against double

jeopardy; (2) that the trial court erred by declining to exclude test results from analysis of the

victim’s blood and urine; (3) that the trial court erred by admitting “certain estate planning

documents” into evidence at trial; (4) that the trial court erred by denying the Defendant’s

motion for a mistrial after a witness testified that she had previously stated that she was

“scared” of the Defendant; (5) that the evidence was insufficient to sustain the Defendant’s

conviction for first degree premeditated murder; (6) that the trial court erred by failing to

instruct the jury on the State’s duty to preserve evidence pursuant to State v. Ferguson, 2

S.W.3d 912 (Tenn. 1999); (7) that the trial court’s jury instruction regarding the defense of

alibi improperly shifted the burden of proof onto the Defendant; (8) that the trial court erred

by failing to instruct the jury on the Defendant’s “theory of defense”; (9) that the trial court

used an improper method to select the alternate juror; (10) that members of the jury

committed misconduct by deliberating prematurely and reviewing extraneous prejudicial

information; (11) that the State withheld evidence favorable to the Defendant in violation of

Brady v. Maryland, 373 U.S. 83 (1963), and its progeny; (12) that the Defendant is entitled

to a new trial based upon newly discovered evidence; (13) that the trial court, by accepting

the jury’s guilty verdict, “abdicated” its role as the thirteenth juror; and (14) that the

Defendant is entitled to a new trial based upon cumulative error.1 Following our review, we

affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

1

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

Defendant in her brief.

D. K ELLY T HOMAS, JR., J., delivered the opinion of the court, in which J AMES C URWOOD

W ITT, J R., and R OBERT W. W EDEMEYER, JJ., joined.

James A. H. Bell, Knoxville, Tennessee (at trial and on appeal); John Wesley Hall, Little

Rock, Arkansas (on appeal); Paula R. Ham, Loudon, Tennessee (at trial); Richard L.

Holcomb, Honolulu, Hawaii (at trial), for the appellant, Raynella Dossett Leath.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel;

Robert Steven Bebb, District Attorney General, pro tem; and Richard A. Fisher, Cindy

LeCroy-Schemel, and Joseph Y. McCoin, Assistant District Attorneys General, pro tem, for

the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND 2

I. State’s Evidence

A. Police Investigation

Shortly before 11:30 a.m. on March 13, 2003, the Knox County Emergency

Communications District received a 911 call from a residence belonging to the Defendant

and her husband, David Leath. When the 911 operator answered the phone call, the

Defendant repeatedly asked the operator to help her before telling the operator that her

husband “shot himself.” The operator asked the Defendant where her husband was located,

and the Defendant stated that he was “in the bed.” The Defendant implored the operator to

“please hurry” and stated that she was “going to vomit.” The Defendant then began

screaming incoherently and crying for a few brief moments. After that, the telephone line

remained open, but the Defendant did not respond to the 911 operator and could no longer

be heard in the background.

Sergeant David Amburn of the Knox County Sheriff’s Office (KCSO) testified at trial

that he and Assistant Chief Deputy L. Keith Lyon3 were the first officers to arrive at the

2

This case has a long and complex procedural history. The victim was killed in March 2003. The Defendant

was not indicted until November 2006. The Defendant was first tried from March 2 to 12, 2009. However,

that trial resulted in a mistrial. Numerous pre- and post-trial motions were filed involving the second trial.

This section will discuss only the factual background regarding the Defendant’s conviction. The factual

background of the Defendant’s procedural issues will be discussed in other portions of this opinion.

3

Chief Lyon was killed in an automobile collision several years prior to the Defendant’s trial.

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Defendant’s residence. When they arrived, the front door “was standing open,” and the

Defendant was lying face down in the front yard “motionless” and not making any sounds.

Sgt. Amburn “nudged [the Defendant] with [his] foot” and said, “Ma’am.” The Defendant

then “started crying heavily” to the point where she “couldn’t catch her breath.” Sgt.

Amburn helped the Defendant up, and she “started yelling uncontrollably.” Sgt. Amburn

recalled at trial that the Defendant “had some kind of hand towel . . . that she might have

been sobbing with.” However, Sgt. Amburn could not remember if the Defendant “had any

blood on her.”

Sgt. Amburn testified that, after he got the Defendant up, she “was totally out of it,”

“really uncontrollable,” and “was very hysterical.” Sgt. Amburn recalled that the Defendant

asked him to help her husband, told him that her husband had been shot, and told him where

her husband was before she started saying “[s]ome stuff that didn’t make sense.” Sgt.

Amburn testified that nothing about the Defendant’s behavior seemed “disingenuous” at the

time, and he later described the Defendant in his report as having been “overcome by grief.”

Sgt. Amburn and Chief Lyon then left the Defendant in the front yard “unattended” as they

entered the house to check on the victim.

Sgt. Amburn and Chief Lyon went inside and began “to clear the residence.” Sgt.

Amburn recalled that the house was “very dark,” especially in the bedroom where the victim

was found. Sgt. Amburn testified that he and Chief Lyon tried “not to disturb anything at all”

in the bedroom as they checked on the victim. The victim was lying on his side with a pillow

underneath his head and blankets tucked in around his body. Sgt. Amburn testified that it

was obvious from looking at the victim that he was deceased. There was a revolver near the

victim’s hand and pointing away from the victim’s head. Sgt. Amburn recalled that there

was a “TV tray . . . with maybe a bowl of what looked like oatmeal or something in it, like

he’d eaten in the bed earlier.” Sgt. Amburn testified that he and Chief Lyon then backed out

of the bedroom and “checked the rest of the residence to make sure” the Defendant was the

only other person there.

Sgt. Amburn testified that he and Chief Lyon “cleared” the entire house, checking all

of the rooms, closets, and under the beds. Sgt. Amburn could not recall how long it took to

check the entire house. When Sgt. Amburn and Chief Lyon had finished, there were other

officers at the front door, and the Defendant had been moved from the yard to the front

porch. Sgt. Amburn testified that neither he nor Chief Lyon entered the house alone, and he

was certain about their actions that day. Sgt. Amburn also recalled that the Defendant’s

vehicle felt “lukewarm,” like it had been driven sometime “in the last couple of hours.”

Sgt. Robert D. Lee of the KCSO arrived at the Defendant’s residence shortly after Sgt.

Amburn and Chief Lyon. However, Sgt. Lee recalled events differently from Sgt. Amburn.

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According to Sgt. Lee, Chief Lyon was alone in the foyer of the house while Sgt. Amburn

was with the Defendant in the front yard. Sgt. Lee recalled that the Defendant appeared to

be “pretty upset.” According to Sgt. Lee, he rushed into the house because he thought it was

tactically unsound for Chief Lyon to be alone in the house. Sgt. Lee testified that he and

Chief Lyon then went into the bedroom, checked on the victim, “cleared” the room, and then

backed out and waited on the paramedics to arrive. Sgt. Lee recalled that the blood on the

victim “was jelled.” Both Sgt. Lee and Sgt. Amburn testified that to their knowledge, no one

moved the victim’s body or touched the gun.

Sgt. Lee testified that he “secured the scene” and stationed himself at the front door.

Sgt. Lee started a “crime scene log” to keep track of everyone who entered the Defendant’s

house that afternoon. Sgt. Lee testified that Chief Lyon walked the paramedics into the

bedroom and that they confirmed that the victim was dead. Sgt. Lee recalled that there were

a lot of people on the Defendant’s property that afternoon, including approximately thirty

“civilians” who congregated at a barn near the residence. However, Sgt. Lee testified that

none of these “civilians” were allowed into the Defendant’s house or near the crime scene.

Detective Sergeant Perry Moyers of the KCSO testified at trial that he was the lead

detective in this case. When Det. Moyers arrived at the Defendant’s home, Chief Lyon and

Sgts. Amburn and Lee gave him a “quick” assessment of the situation. Det. Moyers was told

that nobody had touched anything and “that everything was as it was when [they] got there.”

Det. Moyers noticed a bullet hole in the headboard of the victim’s bed. The bed was later

removed, and a bullet was recovered from the wall, approximately twenty inches above the

floor. There was also a bullet hole in the mattress near the victim’s body and the gun. Bullet

fragments were later recovered from the bed frame and underneath the bed.

Det. Moyers observed that the victim had an entrance wound just above his left

eyebrow. The victim’s body was lying on his right side with his right arm outstretched and

the gun was “right next to” his left hand. Det. Moyers noted that lividity, the settling of

blood in the lower portions of the body after death, had begun to set in, but had not yet

become “fixed.” Det. Moyers opined that this meant the victim had been dead for more than

thirty minutes but less than five or six hours. The blood had started to pool on the bed and

the floor beneath it. Det. Moyers recalled that the blood on the victim and the bed appeared

to be dried except for some blood still pouring out of the victim’s nose. There was a pillow

“between [the victim’s] head and his shoulder.” The victim also had sheets “tucked in

around him up and down.” There was no blood on the left side of the bed.

The gun found next to the victim’s body was a Colt .38 caliber “police special”

revolver. Det. Moyers removed the gun from the victim’s bed. Upon visual inspection, there

were no signs on the gun of “blow back,” blood spatter and material that sprays when a

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person is shot while the barrel of the gun is in contact with the skin or from a very close

range. Det. Moyers opened the gun’s cylinder and was careful to insure that the cylinder did

not move when he opened it. The cylinder contained three live rounds and three spent shell

casings. The cylinder rotated clockwise, and at the top of the cylinder was a spent Western

shell casing, then two spent Remington shell casings, one live Remington round, and two live

Western rounds. No fingerprints were found on the gun and the live rounds, spent casings,

and spent bullets were not tested for fingerprints.

There were no signs that there had been a struggle in the victim’s bedroom, but Det.

Moyers testified that based upon the evidence at the scene, he began to suspect the victim’s

death was not a suicide. Det. Moyers believed that the blood spatter on the wall was not

consistent with the victim’s having been shot where his body was lying. Measurements and

photographs of the blood spatter were taken for later analysis. Det. Moyers also noticed that

the gunpowder around the bullet hole in the mattress appeared to be undisturbed. Based

upon this, Det. Moyers concluded that the victim’s body was in the position it was found in

and the sheets were tucked in around the body before the shot was fired into the mattress.

Samples were taken from the hands of both the Defendant and the victim to test for gun shot

residue. The Defendant also gave Det. Moyers the clothes she and her daughter had been

wearing that day for forensic tests to be performed.

Three latex gloves were found on a shelf over a toilet in a bathroom adjoined to the

victim’s bedroom. An open Bible was also found on a counter near the sink in the bathroom.

The police did not search any other rooms in the house besides the bedroom and the adjacent

bathroom. The police did check the house for signs of a break-in because the Defendant told

Det. Moyers that she had “secured the place” before she left and that “when she came back

home, it was still secure.” There were no signs of a break-in, but none of the KCSO officers

who testified at trial recalled checking to make sure the doors were actually locked. The

Defendant originally told Det. Moyers that “she did not know where the gun came from” or

who it belonged to, but she later told Det. Moyers that she thought the gun had belonged to

the victim’s deceased father.

Det. Moyers was told that the victim “had some medical problems” and was depressed

because his mother had a terminal illness. When Det. Moyers asked the Defendant for the

name of the victim’s doctor, she voluntarily gave Det. Moyers an appointment calender that

had “information for the doctor appointments and stuff.” The calender had numerous entries,

not all of them pertaining to the victim. There were several entries from the end of January

to March 8, 2003, in which the Defendant described the victim as being “hateful,”

“controlling,” and “paranoid.” The Defendant also stated in a couple of entries that the

victim had “stayed in bed all day” or that he had made her cry.

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In an entry dated March 8, 2003, the Defendant stated that the victim had “slurred

speech,” was “hateful,” and had “stayed in bed all day.” The victim’s daughter, Cindy

Wilkerson, testified that on March 8, 2003, the Defendant and the victim had gotten into an

argument about “feeding the cows” and that the Defendant told her that “she was going to

teach [the victim] a F’ing [sic] thing.” However, the victim’s neighbor, Roger Yarnell,

testified that he had never witnessed any problems between the victim and the Defendant.

At trial, several witnesses described the victim as having been “laid-back,” “carefree,”

and “a fun-loving guy.” Friends and family of the victim testified that they observed no

deterioration in the victim’s mental or physical health in the months before his death.

However, it was established at trial that the victim was a private man who seldom spoke

about his health or personal matters. The victim’s neighbor, Mr. Yarnell, also testified that

the victim was “[v]ery emotional” about his mother’s ill health. Mr. Yarnell testified that he

was supposed to meet with the victim to pick up some mulch around noon on March 13,

2003. According to Mr. Yarnell, the victim was always on time and had never called off a

meeting before.

Ms. Wilkerson testified that she had a strained relationship with the Defendant and

that the Defendant “was always distant” towards her. Due to their poor relationship, Ms.

Wilkerson thought it was extremely odd when the Defendant called her at work just before

10:00 a.m. on March 13, 2003. Ms. Wilkerson testified at trial that the Defendant had “never

called [her] at work” before. Ms. Wilkerson worked at the same barbershop as the victim,

and the Defendant asked her if the victim had “stopped by to talk to [her].” Ms. Wilkerson

told the Defendant that she had not spoken to the victim that morning, and the Defendant said

that the victim “didn’t eat his oatmeal [that] morning” and that she guessed “he was just

going to go work out on an empty stomach.” Ms. Wilkerson testified that the Defendant told

her she was at the hospital visting the victim’s mother, Mayme Leath, and bringing her some

flowers from Mrs. Leath’s home. The Defendant then put Mrs. Leath on the line, and Ms.

Wilkerson spoke to her briefly before hanging up to return to work.

Ms. Wilkerson testified that she thought something was “wrong” and that “something

just wasn’t right about the conversation.” Ms. Wilkerson thought that the Defendant’s voice

“didn’t sound right” and that she seemed too “chipper.” Ms. Wilkerson testified that while

she visited Mrs. Leath in the hospital every day, the Defendant rarely visited Mrs. Leath and

had never brought her flowers before. Ms. Wilkerson also testified that it was odd for the

Defendant to be in a hospital because she had a “liver condition” and “wasn’t supposed to

be around any sick people.” When the Defendant had to be in a hospital, she would wear a

mask over her face. Ms. Wilkerson did not find out about her father’s death until around

2:00 p.m. when the Defendant’s son-in-law came to her barbershop and asked her to leave

with him.

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Ms. Wilkerson testified that when she got to the victim’s house, the Defendant told

her the victim “had committed suicide.” Ms. Wilkerson asked the Defendant how the victim

could have done that, and the Defendant responded, “Well, he killed cows.” Ms. Wilkerson

testified that her father “would never have hurt his face . . . [and] would have been afraid that

he would have been a vegetable.” According to Ms. Wilkerson, the gun used to kill the

victim had belonged to the victim’s father, and she had seen it, along with a holster, at Mrs.

Leath’s house several years before the victim’s death. Gordon Armstrong, a friend of the

victim’s, testified that he also recognized the gun as having belonged to the victim’s father

because he had previously used the gun to kill a dog for the victim’s family. Mr. Armstrong

further testified that the victim had access to the gun, “but he wouldn’t fool with it because

he didn’t like handguns.”

James A. Safewright testified that he owned a “cremation company” and that he met

with the Defendant on March 1, 2001. The Defendant met with Mr. Safewright by herself

and paid in full to make “prearrangements” for the cremations of herself and the victim. Mr.

Safewright recalled that the Defendant told him that the victim “had been in ill health.” Mr.

Safewright testified that the victim’s body had been released to him after an autopsy was

performed and that he cremated the body March 14, 2003. Mr. Safewright also testified that

the Defendant still had a valid contract with him to cremate her body upon her death.

Randall Carr testified that in 2003 he was the director of human resources at Parkwest

Hospital. Mr. Carr testified that on March 19, 2003, he had a “pretty unusual” meeting with

the Defendant. According to Mr. Carr, the Defendant came to the hospital that morning

wearing “a clinical mask [] over her face,” which she removed once she had been shown to

a conference room. The Defendant had her daughter and a private investigator with her and

was at the hospital because she had requested to interview several hospital employees. As

one of the interviews was concluding, the Defendant “gave the impression that something

had just popped into her mind.”

Mr. Carr testified that the Defendant stated that she remembered meeting and speaking

with a physical therapist who was working with Mrs. Leath on the morning of the victim’s

murder and “that must be noted in the medical records somewhere.” The Defendant also

stated that she remembered making a phone call to the victim “to cheer him up” in front of

the physical therapist. Mr. Carr testified that the Defendant told him that the victim “didn’t

answer” and then she “started crying.”

Mr. Carr testified that he checked Mrs. Leath’s medical records, and the physical

therapist made a notation “about seeing [the Defendant] that morning” at 9:53 a.m. on March

13, 2003. However, there were several entries in Mrs. Leath’s chart at 9:53 a.m., and it was

possible that the physical therapist met with Mrs. Leath earlier in the morning. Mr. Carr

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testified that there were also references in Mrs. Leath’s medical records to the Defendant’s

having previously discussed Mrs. Leath’s care with hospital employees. Ms. Wilkerson

testified that she was unaware that documents from the hospital showed that the Defendant

had visited Mrs. Leath in the past and was involved in decisions about Mrs. Leath’s care.

A few weeks after the victim’s murder, Ms. Wilkerson found an empty holster in Mrs.

Leath’s underwear drawer. Ms. Wilkerson turned the holster over to Det. Moyers. Det.

Moyers testified at trial that the gun found beside the victim fit inside the holster. The holster

was tested for fingerprints, and four latent fingerprints were found but were not of sufficient

quality to make an identification. Ms. Wilkerson testified that the Defendant had Mrs.

Leath’s pocketbook and house keys prior to the victim’s murder. According to Ms.

Wilkerson, the Defendant only visited Mrs. Leath in the hospital once after the victim’s

death, and that was to return Mrs. Leath’s pocketbook and house keys. Ms. Wilkerson also

testified that on March 20, 2003, the Defendant came to her barbershop and told her that Mrs.

Leath was “no more than a neighbor to her, and that [Mrs. Leath] was [Ms. Wilkerson’s]

responsibility because [she] was next of kin.” Mrs. Leath died approximately a month after

the victim was killed.

Charles Child testified that he was a licensed attorney whose practice focused on

“people problems” such as estate planning and family law. Mr. Child testified that the victim

had been a long time client of his and that he had drafted wills for the victim and the

Defendant. In 1993, after the victim married the Defendant, he had a will drafted which

named the Defendant as the administrator of his estate and left all of his property to Mrs.

Leath and Ms. Wilkerson. Mr. Child testified that in 1996, the victim had his previous will

destroyed and had a new will drafted which left everything to the Defendant and gave Mrs.

Leath a life estate in a portion of his real property. The will left nothing for Ms. Wilkerson.

In 1996, the Defendant had a will drafted that mirrored the victim’s, leaving her entire estate

to him.

Mr. Child also testified about a series of three quitclaim deeds executed in 1999. Mr.

Child testified that the documents appeared to have been self-drafted, and two of the deeds

stated that they had been prepared by the Defendant. The deeds took real property that had

been owned by the victim and the Defendant individually and transferred the property’s

ownership to the victim and the Defendant jointly. The deeds made the victim and the

Defendant tenants by the entireties with a right of survivorship in the new joint property. Mr.

Child explained that based upon the quitclaim deeds, if the victim died, the Defendant would

become the sole owner of all the property covered under the quitclaim deeds. Mr. Child

further explained that the quitclaim deeds ensured that the Defendant would inherit all of the

victim’s real property regardless of what was stated in the victim’s will. However, Mr. Child

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noted that the victim’s will would control how the remaining portions of the victim’s estate

would be divided.

Mr. Child testified that he last saw the victim on February 4, 2003. The victim and

the Defendant came to his office to discuss the victim’s 1996 will. According to Mr. Child,

the Defendant did not appear to be upset, but the victim was “agitated, emotional,” and

“upset” about the 1996 will. Mr. Child testified that the victim “had questions” about the

1996 will and spoke with Mr. Child about the will without the Defendant present. However,

Mr. Child testified that the victim ultimately made no changes to his 1996 will and that he

was unaware of any attempts by the victim himself to change the will. Mr. Child testified

that he believed the victim wanted his estate governed by the will because the victim did not

instruct him to alter or destroy the will. Mr. Child further testified that the victim was aware

of what needed to be done in order to invalidate the 1996 will. According to Mr. Child, the

victim’s will was lost after his death, and only a copy remained. Mr. Child testified that if

the victim died without a will, Ms. Wilkerson would have been entitled to a large portion of

the victim’s estate.

Ms. Wilkerson testified that the Defendant served as the administer of the victim’s

estate and that under the victim’s will she received nothing and her children received a car

and some heirlooms. Ms. Wilkerson admitted that her father never discussed his estate

planning with her and that she had sued the Defendant to challenge the victim’s will. The

Defendant answered the lawsuit by claiming that Ms. Wilkerson had killed the victim.4 Ms.

Wilkerson testified that no one other than the Defendant had ever accused her of murdering

her father.

B. Forensic Evidence

Doctor Darinka Mileusnic-Polchan, the chief medical examiner for Knox County and

an expert in forensic pathology and toxicology, testified that on March 14, 2003, she

performed an autopsy on the victim’s body. Dr. Mileusnic-Polchan testified that the victim

appeared to be “a well-built, well-groomed . . . individual who obviously took care of

himself” and noted that “he had a quite a bit of hair spray in his hair.” According to Dr.

Mileusnic-Polchan, the cause of the victim’s death “was a close-range gunshot wound” to

the victim’s forehead, above the left eyebrow. The entrance wound was “a tear-drop shape”

suggesting that the bullet entered at “a slightly downward angle.”

4

Ms. Wilkerson’s co-worker, Hoyt Vanosdale, testified that Ms. Wilkerson got to work around 7:00 a.m. on

the day of the murder.

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Dr. Mileusnic-Polchan testified that there was also “a widespread area of stippling or

gunpowder tattooing” on the victim’s forehead suggesting “the distance between the gunshot

wound . . . and the muzzle was several inches.” Dr. Mileusnic-Polchan compared the

stippling on the victim’s forehead to the results from forensic testing in which the gun found

beside the victim was fired from several different distances. Dr. Mileusnic-Polchan

concluded that the stippling on the victim’s forehead matched the stippling pattern created

when the gun was fired from twelve inches away from a target. Dr. Mileusnic-Polchan

testified that the victim’s wound was definitely not a contact wound. Dr. Mileusnic-Polchan

further testified that forehead wounds were “extremely rare” in suicides and that it would be

“even more rare” for it to be a suicide with a non-contact wound. It was also noted that the

victim was right-handed and blind in his left eye.

Dr. Mileusnic-Polchan testified that the bullet entered the victim’s skull, crossed

through the left hemisphere of the victim’s brain, and severed the victim’s brain stem. After

severing the brain stem, the bullet then “ricocheted inside the skull” before stopping inside

the victim’s brain. Dr. Mileusnic-Polchan recovered the spent bullet from the victim’s brain

during the autopsy. Dr. Mileusnic-Polchan testified that the victim’s death was “pretty much

instantaneous.” Dr. Mileusnic-Polchan further testified that once the bullet severed the

victim’s brain stem, the victim was unable to move or pull the trigger of the gun. Dr.

Mileusnic-Polchan was unable to determine an exact time of death, but she testified that the

range for time of death “could be anywhere between just dead to about six hours.” Given

that there was evidence that “some cooling [had] already occurred” when the body was

found, Dr. Mileusnic-Polchan narrowed the range to between “one or two hours to six

hours.”

Dr. Mileusnic-Polchan examined the victim’s brain and found no evidence that the

victim suffered from Alzheimer’s disease. During the autopsy, Dr. Mileusnic-Polchan found

that the victim’s stomach was empty, but his bladder was full. Dr. Mileusnic-Polchan took

samples of the victim’s blood and urine to be tested for alcohol and drugs. There was no

alcohol found in the victim’s blood. However, the following drugs were found in the

victim’s blood: .08 micrograms per milliliter of Demerol; .16 micrograms per milliliter of

Sinequan; and .05 micrograms per milliliter of Phenergan. Forensic testing also revealed that

the victim had .08 micrograms per milliliter of norpethidine, a metabolite of Demerol, in his

blood. All three drugs were prescription medications for which the victim did not have a

prescription. There was no evidence at trial that any of these drugs were found in the

Defendant’s house or that the Defendant had access to these drugs.

Dr. Mileusnic-Polchan testified that Demerol is a sedative primarily used for short-

term “moderate to severe pain control,” usually for surgery. Dr. Mileusnic-Polchan further

testified that the presence of the metabolite norpethidine was evidence of “chronic use” of

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Demerol for at least “several days.” According to Dr. Mileusnic-Polchan, Phenergan is also

a sedative used to treat nausea, is frequently added to Demerol to increase its effect, and a

combination of the two drugs is often used as a “sedative cocktail” prior to surgery. Dr.

Mileusnic-Polchan testified that Sinequan is an antidepressant which, like Demerol and

Phenergan, acts as a sedative. Dr. Mileusnic-Polchan further testified that the amount of

Sinequan in the victim’s blood was outside of the therapeutic range and was bordering on

toxic levels. Dr. Mileusnic-Polchan opined that these three drugs taken together were a “very

unsafe combination . . . to be used.”

Dr. Mileusnic-Polchan testified that the combination of drugs in the victim’s blood

did not “make him completely unconscious,” but caused the victim to be “really out of it” and

“really impaired.” Dr. Mileusnic-Polchan opined that based upon the level of drugs in the

victim’s blood, he could not have gotten out of bed that morning, gone to work, or driven a

car. Dr. Mileusnic-Polchan testified that she did not know how the drugs got into the

victim’s system but theorized that they could have been mixed with food and ingested or

injected into the victim. However, Dr. Mileusnic-Polchan did not find any needle marks on

the victim’s body. Dr. Mileusnic-Polchan testified that the victim could have ingested the

drugs with “relatively light food” the night before his death and still have had an empty

stomach at the autopsy. Based upon the evidence from the autopsy and forensic analysis of

the victim’s blood, Dr. Mileusnic-Polchan concluded that the victim’s death was a homicide

rather than a suicide.

Paulette Sutton, a retired forensic scientist and an expert in “blood stain pattern

analysis,” testified that she reviewed photographs of the crimes scene as well as photographs

and measurements of the blood spatter on the bedroom wall. Ms. Sutton testified that based

upon the evidence she reviewed, the victim was found “lying on his side with the right arm

outstretched, the left arm bent at an angle.” The entrance wound above the victim’s left

eyebrow was the source of the blood found in the bedroom. Ms. Sutton further testified that

there was evidence of two other gunshots: one that was fired into the headboard of the bed

and another that was fired into the mattress of the bed.

Ms. Sutton opined that the gunshot into the headboard was fired before the fatal

gunshot to the victim’s forehead. Ms. Sutton explained that strands of the victim’s hair were

found in the splinters caused by the bullet hole in the headboard, which meant that a bullet

was fired into the headboard “and then the hair [came] down into it and [caught on] it.” Ms.

Sutton testified that once the victim was shot, blood traveled “upward and to the left” striking

the wall at a ninety degree angle. Ms. Sutton further testified that blood spatter was found

on the headboard and on the wall right above it. Based upon this evidence, Ms. Sutton

opined that the victim was “in a raised position” with his head near the top of the headboard

when he was shot. Ms. Sutton testified that once shot, the victim’s body would have dropped

-11-

“straight down.” Ms. Sutton concluded that the blood spatter was inconsistent with the

victim’s having been shot in the position his body was found in “or in a low position close

to lying down.” Ms. Sutton also concluded based upon the evidence she reviewed that the

victim’s death was a homicide.

No blood was found on the clothes the Defendant gave to Det. Moyers for forensic

testing. The three latex gloves found in the victim’s bathroom also tested negatively for

blood and gunshot residue, a combination of three chemical elements expelled when a gun

is fired. However, the Defendant’s DNA was found on the latex gloves. Joe Minor, a

supervisor and forensic scientist with the Tennessee Bureau of Investigation (TBI), testified

that blood could have been removed from the clothing and the gloves by simply washing the

items. Likewise, gunshot residue could have been removed from the gloves by washing

them. Gunshot residue was found on the pillow beneath the victim’s head and on the back

of the victim’s left hand. There was “a good distribution of elements on both the palms and

the backs of both [of the victim’s] hands,” but all three elements were only found on the back

of the victim’s left hand. There was no evidence of gunshot residue on the Defendant’s

hands. However, Laura Hodges, a forensic scientist with the TBI, testified that gunshot

residue can be removed from a person’s hands simply by washing them.

Donald Carman, a special agent with the TBI and expert in ballistics, testified that he

examined the Colt .38 caliber revolver found beside the victim, three live cartridges found

in the revolver, three spent cartridges found in the revolver, a spent bullet recovered from the

wall of the bedroom, a bullet fragment recovered from underneath the bed, and a spent bullet

recovered from the victim’s brain during the autopsy. A spent Western shell casing, two

spent Remington shell casings, one live Remington round, and two live Western rounds were

recovered from the cylinder of the revolver.

Agent Carman testified that the spent bullets recovered from the wall and the victim’s

brain were consistent with the characteristics of a Remington bullet and of having been fired

from a Colt .38 caliber revolver. According to Agent Carman, the bullet fragment found

underneath the bed was consistent with the characteristics of a Western bullet. Agent

Carman testified that the shot fired into the mattress appeared to be a “loose contact” shot

where the muzzle was just off the surface of the bed. Based upon the position of the Western

shell casing when the cylinder was opened, and the fact that the bullet fragment found under

the bed was a Western bullet, Agent Carman opined that the gunshot into the mattress was

fired after the gunshots into the headboard and the victim’s forehead.

II. Defendant’s Evidence

A. Alibi Witnesses

-12-

Barbara Sadler testified at trial that in 2003 she worked at Parkwest Hospital as a

registered nurse and case manager. On March 13, 2003, Ms. Sadler was working on the

“four-west” floor where Mrs. Leath was being treated. Ms. Sadler testified that she normally

got to the “four-west” floor around 9:00 a.m. and that shortly after she arrived that morning

the Defendant approached her. Ms. Sadler recalled that the Defendant was “teary-eyed” and

upset because she did not want Mrs. Leath to be sent to a nursing home that day. Ms. Sadler

testified that there was no social worker on the floor at that time, so she told the Defendant

she would take care of Mrs. Leath. Ms. Sadler also recalled that the Defendant told her the

victim “was home sick with high blood pressure” that morning. Ms. Sadler testified that she

did not notice anything unusual about the Defendant’s behavior that morning.

Ms. Sadler testified that on March 19, 2003, she gave a recorded statement to the

Defendant and her private investigator. In the statement, Ms. Sadler told the investigator that

she could not recall exactly when she saw the Defendant but that it was “sometime between

9:00 and 9:30 a.m.” Ms. Sadler testified that she believed she saw the Defendant closer to

9:00 a.m. but admitted that it was “hard to remember exactly” what time it was. Ms. Sadler

estimated that it would take someone ten minutes to get from the hospital’s parking lot to

“four-west.” Ms. Sadler recalled that the Defendant was not wearing a face mask when she

spoke to her on March 13, 2003. Ms. Sadler also testified that she could not recall seeing the

Defendant visit Mrs. Leath prior to that morning.

Sergeant Thomas Fox of the Knoxville Police Department testified that he lived near

the Defendant’s property and that his wife and the Defendant were friends. Sgt. Fox testified

that on the morning of March 13, 2003, he was going to his mailbox to get the newspaper

when the Defendant drove up in her car. The Defendant stopped, rolled down her window,

and said hello to Sgt. Fox. Sgt. Fox testified that he talked “briefly” with the Defendant that

morning. Sgt. Fox characterized his conversation with the Defendant as “[j]ust small talk.”

Sgt. Fox testified that the Defendant was “in a good mood” and laughing during their

conversation and that she did not seem upset or “teary-eyed.” Sgt. Fox further testified that

he did not notice anything suspicious about the Defendant’s behavior.

Sgt. Fox could not recall which direction the Defendant drove off in. Sgt. Fox also

could not recall what time it was when he spoke to the Defendant, but he believed it was

sometime “later [in the] morning” around 10:00 or 11:00 a.m. Sgt. Fox testified that, due to

his schedule, he did not go to his mailbox at the same time everyday and that his encounter

with the Defendant seemed like an “inadvertent passing.” Sgt. Fox also testified that the

Defendant never stopped to speak with him at his mailbox before or after March 13, 2003.

However, Sgt. Fox admitted that the Defendant had visited his wife several times since

March 13, 2003.

-13-

Ann Troutman testified that on March 13, 2003, she was a guidance counselor at

Karns High School (KHS). At that time, the Defendant’s daughter Katie attended the school.

Ms. Troutman testified that the Defendant and her daughters were very active at the school

and that the Defendant was at the school quite often while her daughters were at KHS.

According to Ms. Troutman, Katie called the Defendant that day around 10:15 a.m. to ask

the Defendant to bring her some stomach medicine. Ms. Troutman testified that the

Defendant arrived at the school around 11:00 a.m. and brought drinks for her and Katie. The

Defendant stayed in Ms. Troutman’s office for approximately fifteen minutes and “was

friendly and pleasant.” Ms. Troutman testified that nothing about the Defendant seemed

unusual that morning.

Kathy Hobson testified that on March 13, 2003, she was a secretary at KHS. Ms.

Hobson recalled the Defendant arriving at the school sometime between 10:30 and 11:00

a.m. The Defendant went to the guidance office and then came to the main office to speak

with Ms. Hobson. Ms. Hobson testified that the Defendant “stood there quite a while and

talked” to her and another secretary about several things. Ms. Hobson further testified that

the Defendant seemed normal and was “happy, jovial” during their conversation.

B. Remaining Witnesses

Betty Lenoir testified that the Defendant and the victim attended the church pastored

by her husband. Ms. Lenoir testified that the Defendant and the victim had “a normal

relationship” and would regularly attend church together. Ms. Lenoir further testified that

their relationship “appeared to be good.” Ms. Lenoir recalled that she went to the victim’s

house on the day of his murder to comfort the Defendant. Ms. Lenoir also recalled that a few

weeks after the victim’s death, the Defendant spoke to the congregation. However, Ms.

Lenoir could not recall what the Defendant said or if she said, “My name is Raynella Dossett,

and I’ll always be Ms. Dossett.”

Raynella Magdelena Connatser testified that she was the Defendant’s oldest daughter

and had known the victim her entire life. Ms. Connatser testified that the Defendant did not

kill the victim because “she loved him” and he “was the best person to her ever.” Ms.

Connatser told the jury that the victim was her godfather and that he and her father had been

friends. Ms. Connatser explained that her father had died in 1992 and that the Defendant and

the victim married in January 1993. Ms. Connatser testified that the victim was very loving

to her and her siblings, that he had no enemies, and that he was “gentle and loving” to the

Defendant. According to Ms. Connatser, the Defendant “loved taking care of” the victim and

she could not recall the victim’s ever fixing a meal for himself. Ms. Connatser testified that

the victim supported her family when her eleven-year-old brother died in a car accident in

1994, and when the Defendant was diagnosed with breast cancer and had both of her breasts

-14-

removed in February 1999. When Ms. Connatser was married later that year, the victim

walked her down the aisle and gave her away.

Ms. Connatser testified that on March 13, 2003, she was a student at the University

of Tennessee when she was told that something was wrong at the Defendant’s house. Ms.

Connatser learned on her way to the Defendant’s house that the victim had died. Ms.

Connatser testified that when she pulled up to the Defendant’s house “it was like a circus.”

Ms. Connatser recalled that the Defendant was on the front porch “holding a rag” and “kind

of shaking.” According to Ms. Connatser, Det. Moyers was talking to the Defendant, and

“he was very focused.” Ms. Connatser testified that Det. Moyers did not recognize the

Defendant’s “deteriorating condition.” Ms. Connatser recalled that the Defendant “was

having to be kind of supported by somebody, and she was shaking, and her eyes were glassed

over, almost catatonic, and she was crying.” Ms. Connatser testified that “after a number of

minutes and [the Defendant] getting worse and worse,” she feared that the Defendant was

going to die. Ms. Connatser then “removed” the Defendant and took her to a hospital.

Det. Moyers recalled that there was talk that afternoon of sending the Defendant to

a hospital because she was so distraught. Ms. Hobson testified that she drove Katie’s car

from the KHS parking lot to the Defendant’s home that afternoon. As she was pulling onto

the Defendant’s property, Ms. Hobson saw the Defendant being driven away by Ms.

Connatser. Ms. Hobson testified that the Defendant looked “close to being in shock,” and

she was “very upset [and] had been crying.” Ms. Hobson also testified that after parking the

car, she went into the Defendant’s kitchen to leave some homework for Katie and that none

of the police officers stopped her or made her sign anything.

Ms. Connatser testified that the Defendant stayed with her for two weeks after the

victim’s murder. According to Ms. Connatser, the Defendant “was a mess” while staying

with her. Ms. Connatser testified that the Defendant “was glassy all the time . . . and sad and

fragile.” During that time, Ms. Connatser thought the Defendant “was going [to] die pretty

soon.” Ms. Connatser testified that most of the victim’s things were “just sitting” on the

Defendant’s property and that the Defendant’s house was like “a museum to sadness.”

According to Ms. Connatser, her father and her brother were buried on the Defendant’s

property, but Ms. Connatser did not know if the Defendant and the victim intended for the

property to remain in the Dossett family or share it with Ms. Wilkerson and her family. Ms.

Connatser testified that Mrs. Leath loved the Defendant, but she did not know if the

Defendant regularly visited Mrs. Leath in the hospital.

III. Verdict

-15-

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

premeditated murder. The trial court imposed a sentence of life imprisonment, with the

possibility of parole. The Defendant filed a timely motion for new trial and two amended

motions for new trial. The trial court denied the Defendant’s motion for new trial in a

lengthy written order filed January 28, 2011. A few weeks later, the Defendant filed a

motion to vacate the trial court’s order. Following a hearing, Senior Judge Jon Kerry

Blackwood, sitting by designation, denied the motion. The Defendant filed a timely notice

of appeal, and this appeal followed.

ANALYSIS

I. Double Jeopardy

The Defendant contends that she was retried in violation of her federal and state

constitutional protections against double jeopardy. The Defendant argues that the trial court

improperly declared a mistrial in her original trial without following the procedures outlined

in Tennessee Rule of Criminal Procedure 31(d)(2) to determine if the jury was unable to

reach a verdict on the indicted offense, or if it had acquitted her of the indicted offense and

was “hung” on a lesser-included offense. Because of this uncertainty, the Defendant argues

that she should not have been retried for the indicted offense. The State responds that the

Defendant acquiesced to the trial court’s declaration of a mistrial and “cannot now establish

a double jeopardy violation.”

The Defendant was originally tried between March 2 and 12, 2009. After the jury had

deliberated for approximately seven hours, they sent the trial court a note stating that they

were “hung” and requesting further instructions from the trial court. When the trial court

informed defense counsel of the jury’s note, defense counsel stated, “It looks to me like

you’re at a mistrial.” The trial court responded that it was not prepared to declare a mistrial

at that time and recalled the jury into the courtroom to inquire if there was a possibility that

they could reach a verdict after further deliberations.

The jury foreman stated that there were “philosophical difference[s]” between some

jurors as to whether they needed “a smoking gun” in order to convict the Defendant. The

jury foreman then stated that the jury was “very lopsided” and that he had been told “by the

dissenting party that they [would] never change their mind” and “would not be satisfied

unless there were . . . several eyewitnesses to the deed.” The trial court asked the jury

foreman if there was “room for further negotiation.” The foreman told the trial court that the

jury needed “a suggestion” as to what they should do. The trial court stated that its

“preference” was for the jury to “work a little bit longer.” The jury foreman stated that they

would, and the jury was sent back to continue its deliberations.

-16-

After the jury left the courtroom, the Defendant immediately moved for a mistrial.

The Defendant argued that the trial court’s colloquy with the jury foreman “unreasonably

single[d] out” and pressured the dissenters on the jury. The trial court denied the

Defendant’s motion. Later, the trial court received a note from the jury stating that they were

“closer to a decisive, unanimous verdict” but that they wanted to break for the day. The

Defendant renewed her motion for a mistrial, arguing that the jury felt “compelled to render

a verdict.” The trial court again denied the Defendant’s motion but instructed the jury it did

not “care if there [was] a verdict in this case” and that it did not want its comments to

influence the jury’s deliberations. The jury foreman assured the trial court that “[n]o one

[had] been coerced in any way.”

The next day, the Defendant filed a written motion for a mistrial outlining the same

arguments made the previous day and stating that the jury had deliberated “for an

unreasonable length of time.” The trial court denied the motion for a third time. A few hours

later, the trial court received a note from the jury stating that they were unable to reach a

verdict. The jury returned to the courtroom, and the trial court addressed the jury, stating that

it would declare a mistrial. At that point, defense counsel interrupted the trial court to thank

the jury “very much for [their] hard work.” The trial court then dismissed the jury. At no

point during the proceedings did the trial court inquire as to whether the jury failed to reach

a verdict on the indicted offense of first degree premeditated murder or on one of the lesser-

included offenses, nor did the jury state which offense they were “hung” on.

At the time, the Defendant made no objection to the trial court’s declaration of a

mistrial or its dismissal of the jury. Approximately a month later, the Defendant filed a

motion to dismiss the indictment against her arguing that the trial court failed to follow

Tennessee Rule of Criminal Procedure 31(d)(2) and that retrial would violate her

constitutional protections against double jeopardy. The trial court denied the Defendant’s

motion and her application for an interlocutory appeal. This court denied the Defendant’s

motion for an extraordinary appeal. The Defendant now raises this issue on direct appeal.

Both the federal and state constitutions protect a defendant from being “twice put in

jeopardy of life or limb” for “the same offense.” U.S. C ONST. amend. V; T ENN. C ONST. art.

1, § 10. Our state constitutional provision has been interpreted identically to the federal

constitution’s prohibition against double jeopardy. State v. Houston, 328 S.W.3d 867, 875

(Tenn. Crim. App. 2010). The constitutional prohibition against double jeopardy also

encompasses a defendant’s “right to have [her] trial completed before a particular tribunal.”

Id. at 878 (quoting State v. Nash, 294 S.W.3d 541, 550 (Tenn. 2009)) (internal quotation

marks omitted).

-17-

However, the prohibition against double jeopardy does not bar retrial when “there is

a ‘manifest necessity’ for the declaration of [a] mistrial, regardless of the defendant’s consent

or objection.” State v. Mounce, 859 S.W.2d 319, 321 (Tenn. 1993). “The impossibility of

a jury reaching a verdict has long been recognized as a sufficient reason for declaring a

mistrial.” Id. at 321-22. But it is only a sufficient reason “when there is no feasible and just

alternative to halting the proceedings that a manifest necessity is shown.” Id. at 322. When

a trial court improperly exercises its discretion and discharges a jury without a finding of

manifest necessity, such a discharge is “tantamount to an acquittal.” Houston, 328 S.W.3d

at 880.

In this state, “sequential jury instructions” are given to the jury which “require a jury

to consider [guilt] of the greatest charged offense before moving on to consider the lesser[-

included] offenses.” Tenn. R. Crim. P. 31, Advisory Comm’n Cmt. Due to the use of

sequential jury instructions, when a jury “reports an inability to reach a verdict, it is not

always apparent on which offense the jury disagreed.” Id. “If the [trial] court grants a

mistrial as to all offenses because of the jury’s failure to reach agreement on a lesser[-

included] offense, the double jeopardy clause is implicated if the jury actually acquitted the

defendant of one or more of the greater offenses but disagreed on a lesser one.” Id.

To prevent such a situation for occurring, Tennessee Rule of Criminal Procedure

31(d)(2) provides as follows:

If the court instructs the jury on one or more lesser included offenses and the

jury reports that it cannot unanimously agree on a verdict, the court shall

address the foreperson and inquire whether there is disagreement as to the

charged offense and each lesser offense on which the jury was instructed.

Rule 31(d)(2) then outlines a detailed procedure for trial courts to utilize in order to

determine which offense a jury has deadlocked on.

Here, the trial court properly determined that the jury was hopelessly deadlocked and

that a manifest necessity for a mistrial existed. However, there was no indication from the

jury as to which charge they were deadlocked on, and the trial court failed to inquire whether

the disagreement involved the indicted offense of first degree premeditated murder or one

of the lesser-included offenses. As such, the trial court erred when it declared a mistrial and

dismissed the jury without first engaging in the procedure outlined in Rule 31(d)(2).

Nevertheless, the trial court’s failure to follow Rule 31(d)(2) in this case did not bar the

Defendant’s retrial.

-18-

The prohibition against double jeopardy does not bar retrial “if the defendant

consented to the termination of the proceeding at issue.” Mounce, 859 S.W.2d at 321; see

also State v. Huskey, 66 S.W.3d 905, 916 (Tenn. Crim. App. 2001) (stating that “double

jeopardy does not bar a retrial when the defendant asks for a mistrial”). In such situations

the defendant “has deliberately elected to forego [her] right to have guilt or innocence

determined by the first trier of fact.” Id. (quoting State v. Knight, 616 S.W.2d 593, 596

(Tenn. 1981)). Our supreme court has held that “when a defendant chooses not to object to

the mistrial and give the trial court an opportunity to correct the error, consent may be

inferred and, therefore, double jeopardy will not bar a subsequent prosecution.” Id. at 323.

However, before consent can be inferred from the defendant’s silence, the “defendant must

have a realistic opportunity to object, prior to a trial court’s sua sponte declaration of a

mistrial.” Houston, 328 S.W.3d at 881 (quoting State v. Skelton, 77 S.W.3d 791, 800 (Tenn.

Crim. App. 2001)).

The Defendant requested a mistrial three times, twice orally and once in a written

motion, before the trial court ultimately declared a mistrial and dismissed the jury. It is clear

from the record that the Defendant “deliberately elected to forego [her] right to have guilt or

innocence determined by the first trier of fact.” Mounce, 859 S.W.2d at 321. As such, the

Defendant cannot now claim that the trial court lacked the manifest necessity required for the

declaration of a mistrial. Nor can the Defendant claim that the prohibition against double

jeopardy barred her retrial because the trial court failed to follow the procedures outlined in

Rule 31(d)(2). The Defendant acquiesced in the trial court’s failure to follow Rule 31(d)(2)

by failing to object to the error.

The Defendant cites State v. Houston, 328 S.W.3d at 867, for the proposition that she

did not acquiesce in the trial court’s error because she did not have a meaningful opportunity

to object. However, the facts in Houston are markedly different from the facts of this case.

In Houston, the jury was dismissed without an actual declaration of a mistrial. Id. at 881

(stating that “where there has been no actual declaration of a mistrial, the defendant will not

be held responsible for [her] failure to object to the termination of the proceedings”). Here,

the possibility of a mistrial was discussed over a two-day period, during which the Defendant

requested a mistrial on three separate occasions.

Furthermore, prior to declaring the mistrial and dismissing the jury, the trial court

made lengthy remarks which defense counsel interrupted in order to thank the jury for its

service. The Defendant had ample opportunity to object to the trial court’s failure to follow

Rule 31(d)(2) prior to the jury’s dismissal but failed to do so. Accordingly we conclude that

the Defendant consented to the declaration of a mistrial and acquiesced in the trial court’s

failure to follow Rule 31(d)(2). Therefore, the Defendant’s retrial was not barred by the

constitutional protections against double jeopardy.

-19-

II. Admissibility of Test Results from Samples of the Victim’s Blood and Urine

The Defendant contends that the trial court erred by denying her pre-trial motion to

exclude test results from analysis of the victim’s blood and urine. The Defendant argues that

the State had a duty to preserve samples of the victim’s blood and urine and that destruction

of the samples warranted exclusion of the test results from the TBI’s analysis of the samples

pursuant to State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999). The Defendant further argues that

the State was “grossly negligent” in the destruction of the samples and that the test results

“formed an integral and important aspect” of the State’s case against her. The State responds

that exclusion of the test results was not warranted in this case because the samples were

destroyed pursuant to TBI policy, and no evidence was presented to challenge “the accuracy

of the results reached by the TBI . . . or the testing methods used.”

During the victim’s autopsy on March 14, 2003, samples of his blood and urine were

taken to be tested for the presence of alcohol and narcotics. The samples were sent to the

TBI, and the victim’s blood tested positive for Demerol, Sinequan, and Phenergan. Jeff

Crews, a special agent with the TBI and expert in toxicology, testified at trial that it was

standard procedure to destroy blood and urine samples sixty days “after [the TBI] report goes

out.” Special Agent Crews testified that the samples in this case were destroyed on February

2, 2004. Special Agent Crews further testified that his report was sent to the medical

examiner and the District Attorney General’s office but that no notice was sent to the

Defendant that the samples were to be destroyed. Special Agent Crews testified at trial that

the narcotics found in the samples would normally degrade over time; therefore, it would be

unlikely that tests on the samples several years later would have been accurate even if the

samples had been preserved.

At the time the samples were destroyed, the Defendant had not been indicted for the

victim’s murder. After the Defendant was indicted in November 2006, she filed a motion

to preserve all samples of the victim’s blood. After learning that the samples had been

destroyed, the Defendant filed a motion to exclude the test results from the TBI’s analysis

of the samples. The trial court concluded that the State had a duty to preserve the samples

but that the test results would not be excluded because the samples had been destroyed

pursuant to TBI policy, the evidence was not necessary to establish an element of the indicted

offense, and the Defendant had not “challenged the sufficiency or accuracy of the TBI testing

or procedures.”

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. Ferguson, 2 S.W.3d at 915. In situations where evidence that the defendant

maintains would have been exculpatory has been lost or destroyed by the State, trial courts

-20-

must determine whether a trial, conducted without the missing evidence, would be

fundamentally fair. Id. at 914. The first step in this analysis “is to determine whether the

State had a duty to preserve the evidence.” Id. at 917.

Only if the proof establishes the existence of such a duty and that the State failed in

that duty, will a trial court then conduct a balancing analysis involving the following factors:

“1.) The degree of negligence involved; 2.) The significance of the destroyed evidence;

considered in light of the probative value and reliability of secondary or substitute evidence

that remains available; and 3.) The sufficiency of the other evidence used at trial to support

the conviction.” Ferguson, 2 S.W.3d at 917 (footnote omitted). After considering all of

these factors, if the trial court concludes “that a trial without the missing evidence would not

be fundamentally fair,” it may dismiss the charges or “craft such orders as may be appropriate

to protect the defendant’s fair trial rights.” Id.

We disagree with the trial court’s conclusion that the State had a duty to preserve the

victim’s blood and urine samples. Generally, “the State has a duty to preserve all evidence

subject to discovery and inspection under [Tennessee Rule of Criminal Procedure] 16, or

other applicable law.” Ferguson, 2 S.W.3d at 917. However, this duty is limited to

constitutionally material evidence which “possess[es] an exculpatory value that was apparent

before the evidence was destroyed, and [is] of such a nature that the defendant would be

unable to obtain comparable evidence by other reasonably available means.” Id. (quoting

California v. Trombetta, 467 U.S. 479, 488-89 (1984)).

Furthermore, the duty to preserve evidence “does not extend to that which the State

cannot preserve,” such as evidence that is consumed during testing or is too dangerous to

retain. State v. Tony Best, No. E2007-00296-CCA-R3-CD, 2008 WL 4367259, at *14

(Tenn. Crim. App. Sept. 25, 2008), perm. app. denied, (Tenn. Mar. 16, 2009). “It is common

knowledge that human blood is perishable, and specimens of blood can only be maintained

for a short period of time.” State v. David Lynn Jordan, No. W2007-01272-CCA-R3-DD,

2009 WL 1607902, at *35 (Tenn. Crim. App. June 9, 2009), aff’d, 325 S.W.3d 1 (Tenn.

2010).

The samples of the victim’s blood and urine were taken at his autopsy in March 2003.

The Defendant did not request that the samples be preserved and provided to her for

independent testing until after she was indicted in November 2006. Special Agent Crews

testified at trial that the narcotics found in the samples would normally degrade over time,

making it unlikely that tests conducted on the samples several years later would have

produced accurate results. As such, the State had no duty to preserve the samples in this

case. Moreover, even if the State had a duty to preserve the samples, the Defendant “has

-21-

failed to demonstrate that [her] right to a fair trial was affected by the destruction of the

evidence.” Jordan, 2009 WL 1607902, at *35.

The State did not act in bad faith in destroying the samples, as they were destroyed in

accordance with established TBI policy and long before the Defendant was indicted in this

case. Jordan, 2009 WL 1607902, at *35 (stating that the “mere loss or destruction of

evidence does not constitute bad faith”). There was no evidence that the samples were

improperly collected or tampered with, and the chain of custody was established at trial.

More importantly, the Defendant has not presented any evidence to question or doubt the

accuracy of the TBI’s analysis of the samples. As such, “it cannot be said that evidence

critical to the defense was excluded.” Id. Accordingly, we affirm the trial court’s denial of

the Defendant’s motion to exclude the test results.

III. Admissibility of “Estate Planning” Documents

The Defendant contends that the trial court erred by denying her pre-trial motion to

exclude evidence regarding her and the victim’s “estate planning, wills, [and] quitclaim

deeds.” The Defendant argues that this evidence was irrelevant and that its probative value

was substantially outweighed by the danger of unfair prejudice. The Defendant’s chief

argument is that this evidence could not be used to establish motive because the “quitclaim

deeds . . . accomplished in life what their wills would have accomplished in death.” The

State responds that the trial court did not abuse its discretion in admitting this evidence

because it was relevant to establish the Defendant’s motive and was not unfairly prejudicial.

A determination regarding the relevancy of evidence “is a matter within the trial

court’s discretion and will not be reversed on appeal absent an abuse of that discretion.”

State v. Biggs, 218 S.W.3d 643, 667 (Tenn. Crim. App. 2006) (citing State v. DuBose, 953

S.W.2d 649, 652 (Tenn.1997)). Tennessee Rule of Evidence 401 defines “relevant evidence”

as “evidence having any tendency to make the existence of any fact that is of consequence

to the determination of the action more probable or less probable than it would be without

the evidence.” Generally, relevant evidence is admissible, while irrelevant evidence is

inadmissible. Tenn. R. Evid. 402. However, relevant evidence may be excluded if its

probative value is “substantially outweighed by the danger of unfair prejudice . . . .” Tenn.

R. Evid. 403.

The “estate planning documents” introduced at trial established that the Defendant

would inherit the victim’s entire estate, to the exclusion of his daughter, upon his death. The

quitclaim deeds established that the Defendant would become the sole owner of the victim’s

real property upon his death. The documents also established that the victim would have

inherited all of the Defendant’s estate, to the exclusion of her children, had she died before

-22-

him. The Defendant and the victim owned a large amount of real property which the

Defendant stood to gain sole ownership of upon the victim’s death. This evidence had the

tendency to make the existence of the fact that the Defendant had a financial motive to kill

the victim more probable than it would be without the evidence.

This evidence had significant probative value because it established a possible

financial motive for the Defendant. There is nothing in the record before us to suggest that

the probative value of this evidence was substantially outweighed by the danger of unfair

prejudice. The Defendant’s argument that the “quitclaim deeds . . . accomplished in life what

their wills would have accomplished in death” is an attack on the weight and credibility of

the evidence, which was for the jury to determine, and has nothing to do with the evidence’s

admissibility. See N EIL P. C OHEN, S ARAH Y. S HEPPEARD, & D ONALD F. P AINE, T ENNESSEE

L AW OF E VIDENCE § 4.01[5][e] (6th ed. 2011) (stating that the trier of fact determines the

weight to be given to a piece of evidence and in doing so the trier of fact “decides how

convincing the evidence is in the context of the case”). Accordingly, we conclude that the

trial court did not abuse its discretion in admitting the “estate planning” documents into

evidence.

IV. 404(b) Evidence

The Defendant contends that the trial court erred in denying her motion for a mistrial

after a witness testified that she had previously stated that she was “scared” of the Defendant.

The Defendant argues that the witness’ statement was improper evidence of a prior bad act

elicited in violation of Tennessee Rule of Evidence 404(b) and instilled “in the minds of the

jury that [the Defendant] was a bad person to be feared.” The State responds that the trial

court did not abuse its discretion in denying the Defendant’s motion for a mistrial because

the witness’ testimony that she was “scared” of the Defendant was “not clear and convincing

evidence of a prior bad act.”

Barbara Sadler was called as a defense witness during the trial and testified that she

was a case manager and registered nurse at Parkwest Hospital. Ms. Sadler also testified that

“for a couple of years” she worked “under [the Defendant’s] leadership” when the Defendant

was director of nursing at the hospital. On cross-examination, the prosecutor asked Ms.

Sadler if she recalled telling Det. Moyers “that [she] was scared of” the Defendant. Ms.

Sadler responded that she recalled “saying that and scared -- yes, [she] did say that.” Defense

counsel objected and moved for a mistrial, stating that Ms. Sadler’s testimony was “clearly

404(b).” The trial court denied the Defendant’s motion, stating that it did not believe that

“somebody being scared of somebody is 404(b).” The State did not ask anymore questions

of Ms. Sadler. On redirect examination, Ms. Sadler testified that the Defendant had never

“done anything” to her and that she had never had any altercations with the Defendant.

-23-

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

the trial court and, as we alluded to above, 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). When

determining whether a “manifest necessity” exists, “no abstract formula should be

mechanically applied and all circumstances should be taken into account.” Mounce, 859

S.W.2d at 322. “The purpose for declaring a mistrial is to correct damage done to the

judicial process when some event has occurred which precludes an impartial verdict.”

Williams, 929 S.W.2d at 388. A trial court’s decision regarding whether to grant a mistrial

will only be overturned upon a showing of an abuse of discretion. Id.

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

a person in order to show that person’s actions were in conformity with the character trait.

Tenn. R. Evid. 404(b). However, we agree with the State that Ms. Sadler’s testimony that

she had previously stated that she was “scared” of the Defendant was not evidence of a prior

bad act. Ms. Sadler did not testify as to any prior acts committed by the Defendant, and her

testimony, even at its most damaging, only created a mere inference of some possible,

undefined prior bad act. See United States v. Harris, 165 F.3d 1062, 1066 (6th Cir. 1999)

(arriving at a similar conclusion under Federal Rule of Evidence 404(b)); Haak v. State, 695

N.E.2d 944, 947 (Ind. 1998) (arriving at a similar conclusion under Indiana Rule of Evidence

404(b)). The State did not inquire any further about Ms. Sadler’s statement after the

Defendant’s objection, and on redirect examination, Ms. Sadler testified that the Defendant

had never “done anything” to her or had any altercations with her. Based upon the totality

of the circumstances, we conclude that the trial court did not abuse its discretion when it

denied the Defendant’s motion for a mistrial following Ms. Sadler’s testimony.

V. Sufficiency of the Evidence

The Defendant contends that the evidence was insufficient to sustain her conviction

for first degree premeditated murder. The Defendant argues that her conviction was based

“entirely on speculation” and that the State failed to establish her identity as the perpetrator

of the offense. The Defendant chiefly complains that the evidence produced at trial

established that she left the victim’s house “shortly after 8:30 [a.m.],” leaving a period of

time too small for her to have killed the victim. While acknowledging that our supreme court

has altered the standard by which the sufficiency of circumstantial evidence is judged in State

v. Dorantes, 331 S.W.3d 370 (Tenn. 2011), the Defendant nevertheless urges this court to

apply the pre-Dorantes standard and argues that the State’s evidence was not “so strong and

cogent as to exclude every other reasonable hypothesis save the guilt of the defendant.” The

-24-

State responds that the evidence, while circumstantial, was sufficient to sustain the

Defendant’s conviction.

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

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

-25-

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).

Premeditated first degree murder is defined as “[a] premeditated and intentional

killing of another.” Tenn. Code Ann. § 39-13-202(a)(1). A person acts intentionally “when

it is the person’s conscious objective or desire to engage in the conduct or cause the result.”

Tenn. Code Ann. § 39-11-302(a).

Premeditation is an act done after the exercise of reflection and judgment.

Premeditation means that the intent to kill must have been formed prior to the

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

accused for any definite period of time.

Tenn. Code Ann. § 39-13-202(d) (internal quotations omitted).

The element of premeditation only requires the defendant to think “about a proposed

killing before engaging in the homicidal conduct.” State v. Brown, 836 S.W.2d 530, 541

(Tenn. 1992). The presence of premeditation is a question for the jury and may be

established by proof of the circumstances surrounding the killing. Bland, 958 S.W.2d at 660.

Our supreme court has held that factors demonstrating the existence of premeditation include,

but are not limited to, the following: the use of a deadly weapon upon an unarmed victim, the

particular cruelty of the killing, declarations by the defendant of an intent to kill, evidence

of procurement of a weapon, preparations before the killing for concealment of the crime,

destruction or secretion of evidence of the killing, and calmness immediately after the killing.

See State v. Davidson, 121 S.W.3d 600, 614 (Tenn. 2003); Bland, 958 S.W.2d at 660.

Additional factors cited by this court from which a jury may infer premeditation include lack

of provocation by the victim and the defendant’s failure to render aid to the victim. See State

v. Lewis, 36 S.W.3d 88, 96 (Tenn. Crim. App. 2000).

Viewing the evidence in the light most favorable to the State and drawing all

reasonable inferences therefrom, the evidence at trial was sufficient to establish that the

victim’s death was a homicide. The victim was shot above his left eye from a distance of

approximately twelve inches away. The victim was blind in his left eye, and Dr. Mileusnic-

Polchan testified that it was “extremely rare” in suicides to find a non-contact forehead

wound. The victim was also heavily sedated at the time of his death. The forensic evidence

established that a gunshot was fired into the headboard of the bed, the victim raised his head

to near the top of the headboard, was fatally shot, and his body fell straight down onto the

bed. The victim’s body was then moved and wrapped in bed sheets. The position of the

victim’s body did not match the blood splatter in the room. A third gunshot, which would

-26-

have been impossible for the victim to fire after he had been shot, was fired into the bed after

the victim’s body had been moved.

With respect to the Defendant’s identity as the perpetrator of the offense, we begin

by noting that the Defendant was the last person to see the victim alive and made the 911 call

reporting the victim’s death. That morning, the Defendant had made conflicting statements

about where the victim was. The Defendant told Ms. Sadler that the victim “was home sick

with high blood pressure,” but she told Ms. Wilkerson that she expected the victim “to go

work out” and possibly visit Ms. Wilkerson at work. The Defendant then repeatedly stated

that the victim had killed himself. The Defendant told Det. Moyers that the victim “had some

medical problems” and was depressed. The Defendant volunteered a calender to Det.

Moyers in which she purported to document the victim’s declining mental health. However,

Dr. Mileusnic-Polchan testified that the victim was in good health and did not suffer from

Alzheimer’s disease. The Defendant had prepaid for the victim’s cremation without the

victim present, and the victim’s body was cremated the day after the autopsy in accordance

with that contract.

There was no evidence that the home had been broken into or that a struggle had

occurred in the victim’s bedroom. The victim had been sedated, possibly by having the drugs

placed into his food. There was testimony at trial that the Defendant prepared all of the

vicitm’s meals. The murder weapon was identified as having belonged to the victim’s father.

The gun had been kept at Mrs. Leath’s residence, which the Defendant had a key to, and an

empty holster fitting the murder weapon was found there several weeks after the victim’s

death. The Defendant eventually told Det. Moyers that she believed the gun belonged to the

victim’s father. Witnesses testified that the victim did not like “handguns” and would not

have shot himself in the face. Latex gloves which tested positive for the presence of the

Defendant’s DNA were found in the bathroom next to the bedroom where the victim’s body

was found.

The calender given to Det. Moyers by the Defendant had several entries that described

the victim as “hateful” and “controlling.” It also documented several fights between the

Defendant and the victim in the months leading up to March 13, 2003. A few days before

the murder, the Defendant told Ms. Wilkerson that “she was going to teach [the victim] a

F’ing [sic] thing.” Also, a month before the murder, the victim visited his attorney, Mr.

Child, and was “agitated, emotional,” and “upset” about his will. The victim spoke with Mr.

Child alone about his will, but he made no changes. The victim’s will gave his entire estate

to the Defendant. Additionally, quitclaim deeds ensured that upon the victim’s death, the

Defendant would become the sole owner of all their real property.

-27-

Witnesses testified that the Defendant’s actions on the morning of March 13, 2003,

were unusual and out of character for her. The Defendant called Ms. Wilkerson that morning

while Ms. Wilkerson was at work. Ms. Wilkerson testified that the Defendant had been

“distant” towards her and “never called [her] at work.” The Defendant told Ms. Wilkerson

that she had gone to the hospital to take Mrs. Leath some flowers and told her that the victim

“didn’t eat his oatmeal” that morning. Ms. Wilkerson testified that the Defendant’s voice

“didn’t sound right” and that she seemed too “chipper.” The Defendant rarely visited Mrs.

Leath in the hospital. The Defendant normally wore a face mask whenever she went to a

hospital due to a liver condition, but on March 13, 2003, she visited Mrs. Leath in the

hospital without a mask over her face. The Defendant also stopped to speak with her

neighbor, Sgt. Fox, at his mailbox that morning. Sgt. Fox testified that the Defendant had

never stopped to talk to him in his driveway before or after March 13, 2003.

A few weeks after the victim’s death, the Defendant along with a private investigator

went to Parkwest Hospital to interview several hospital employees. As one interview was

concluding, the Defendant “gave the impression that something had just popped into her

mind” and recalled that she had spoken to a physical therapist on March 13, 2003, and made

a phone call to the victim in front of her. Ms. Wilkerson testified that the Defendant only

visited Mrs. Leath in the hospital one time after the victim’s death and that was to return Mrs.

Leath’s pocketbook and house keys. The Defendant eventually told Ms. Wilkerson that Mrs.

Leath was “no more than a neighbor to her” and was Ms. Wilkerson’s “responsibility” as the

“next of kin.”

The Defendant argues that she could not have killed the victim because there was too

small a window of time for her to have committed the offense. The Defendant states in her

brief that her daughter Katie left for school sometime between 8:00 and 8:15 a.m. that

morning. However, there is no evidence in the record to establish what time Katie left for

school. The record does establish that Katie was at school that morning. Additionally, the

Defendant told Ms. Wilkerson that she had been in the house with victim and that he did not

eat his breakfast. The Defendant argues that she must have left the house “shortly after 8:30

[a.m.]” in order to have stopped to get flowers, speak with Sgt. Fox, and arrive at Parkwest

by 9:00 a.m. While this is a plausible inference that can be drawn from the evidence

presented at trial, it is not the only plausible inference that may be established by the

evidence.

Ms. Sadler testified that she could not remember exactly when she spoke to the

Defendant on the “four-west” floor of Parkwest Hospital on March 13, 2003 but that she

believed it was closer to 9:00 a.m. However, Ms. Sadler gave a recorded statement to the

Defendant’s private investigator that she saw the Defendant “sometime between 9:00 and

9:30 a.m.” There was a notation in Mrs. Leath’s medical records at 9:53 a.m. that morning

-28-

that the Defendant had spoken to a physical therapist. Likewise, Sgt. Fox testified that he

believed he spoke to the Defendant sometime between 10:00 and 11:00 a.m. that morning

and that he could not recall which direction she drove off in. Dr. Mileusnic-Polchan opined

that the victim had been killed between “one or two hours to six hours” before the

investigators arrived at the house shortly after 11:30 a.m.

The State was not required to rule out every hypothesis except that of the Defendant’s

guilt beyond a reasonable doubt. The Defendant’s argument here would have this court

accept all plausible inferences in her favor while ignoring the plausible inferences arising

from the evidence that favor the State. Based upon the foregoing evidence, it was possible

that the Defendant did not arrive at Parkwest Hospital on March 13, 2003, until 9:30 a.m. or

later. The fact that the jury chose not to believe the Defendant’s alibi does not cause its

verdict to be suspect. See Williams, 657 S.W.2d at 410-11 (concluding that jury’s decision

not to believe alibi witnesses was within its province). As recognized by the Dorantes

standard, the jury was in a better position than this court to weigh the evidence and decide

between the competing plausible theories presented by the State and the Defendant.

The mere fact that the jury chose the State’s plausible theory over that of the

Defendant’s does not justify overturning the jury’s verdict. So long as the jury’s verdict was

supported by reasonable inferences drawn from the evidence, we are bound to uphold it

against a challenge to the sufficiency of the evidence. See Sisk, 343 S.W.3d at 67; cf. State

v. Chad Allen Love, No. E2010-01782-CCA-R3-CD, 2012 WL 391064, at *6-8 (Tenn. Crim.

App. Feb. 8, 2012) (concluding that the defendant’s identity as the alleged perpetrator of the

crime could not be reasonably inferred from the evidence established at trial). Based upon

the foregoing evidence, we conclude that a rational juror could reasonably infer the

Defendant’s identity as the perpetrator of the offense from the evidence presented at trial.

We also conclude that the evidence was sufficient to establish the elements of

premeditation and intent. A shot was fired into the headboard of the victim’s bed before the

victim was shot in the forehead. The bullet severed the victim’s brain stem, killing him

instantly. The victim was unarmed, heavily sedated, and unable to defend himself. The gun

used had belonged to the victim’s father and had been taken from Mrs. Leath’s home

sometime before the murder. The victim’s body was moved, a pillow was placed beneath

his head, and sheets were tucked in around his body in an effort to make his death appear to

be a suicide. The Defendant went to visit Mrs. Leath and called Ms. Wilkerson that morning,

both actions that were unusual for her. Ms. Wilkerson recalled that the Defendant seemed

too “chipper” and several witnesses testified that the Defendant seemed normal, friendly, and

happy that morning. Having determined that the State established all the requisite elements

of first degree premeditated murder, we conclude that the evidence was sufficient to sustain

the Defendant’s conviction.

-29-

VI. Jury Instructions

A. Ferguson Instruction

The Defendant contends that the trial court erred by failing to instruct the jury on the

State’s duty to preserve evidence pursuant to State v. Ferguson, 2 S.W.3d at 917 n.11. The

Defendant argues that the Ferguson instruction should have been provided to the jury because

the State destroyed samples of the victim’s blood and urine prior to her being indicted for the

victim’s murder. The State responds that such an instruction was not warranted under the

facts of this case. We have previously concluded that the State had no duty to preserve the

samples taken from the victim, and, even if it did, the Defendant’s right to a fair trial was not

affected by the destruction of the samples. As such, we conclude that the trial court did not

err in denying the Defendant’s request for a Ferguson jury instruction.

B. Alibi Instruction

The Defendant contends that the trial court’s jury instruction regarding the defense

of alibi improperly shifted the burden of proof. The Defendant argues that the use of the

words “if believed” in the pattern jury instruction used by the trial court “improperly shifted

the burden of proof” and suggested that she “had some affirmative duty to prove her alibi.”

The State responds that the instruction did not shift the burden of proof onto the Defendant

because it explicitly stated that the burden was on the State “to prove beyond a reasonable

doubt that the defendant was at the scene of the crime when it was committed.”

A defendant is entitled to “a correct and complete charge of the law governing the

issues raised by the evidence presented at trial.” State v. Brooks, 277 S.W.3d 407, 412

(Tenn. Crim. App. 2008) (citing State v. Forbes, 918 S.W.2d 431, 447 (Tenn. Crim. App.

1995)). In determining whether a jury instruction correctly, fully, and fairly sets forth the

applicable law, we review the instruction in its entirety. Id. (citing State v. Guy, 165 S.W.3d

651, 659 (Tenn. Crim. App. 2004)). “Phrases may not be examined in isolation.” Id. (citing

State v. Dellinger, 79 S.W.3d 458, 502 (Tenn. 2002)).

In Christian v. State, our supreme court approved the following jury instruction for

use when the facts of a case raise the defense of alibi:

An alibi is defined as evidence which if believed would establish that

the defendant was not present at the scene of the alleged crime when it

allegedly occurred. If the defendant was not present when the crime was

committed, [she] cannot be guilty.

-30-

The burden is on the state to prove beyond a reasonable doubt that the

defendant was at the scene of the crime when it was committed. If you find

from your consideration of all the evidence that the state has failed to prove

beyond a reasonable doubt that the defendant was at the scene of the crime

when it was committed, you must find the defendant not guilty.

555 S.W.2d 863, 866 (Tenn. 1977) (emphasis added); see also T.P.I. Crim. 42.13.

Read in its entirety, it is clear that the alibi instruction used here did not improperly

shift the burden of proof onto the Defendant. While the words “if believed” are used in the

first part of the instruction, the second part makes clear that the burden of proof is on the

State to prove beyond a reasonable doubt that the defendant was present at the commission

of the offense. The second part of the instruction further elaborates that if the State fails to

met its burden, then the jury should acquit the defendant.

The Defendant argues that her contention that the words “if believed” in the alibi

instruction improperly shifted the burden of proof is supported by the fact that an “‘if

believed’ jury instruction like Tennessee’s was held to impermissibly shift the burden of

proof” by the New York Court of Appeals. However, the jury instruction at issue in the case

cited by the Defendant was not invalidated solely because it used the term “if believed.”

Instead, it was found to improperly shift the burden onto the defendant because it failed to

state that the prosecution “had the burden of disproving the alibi beyond a reasonable doubt”

in addition to using the words “if believed.” People v. Hoke, 468 N.E.2d 677, 680 (N.Y.

1984); cf. Fox v. Mann, 71 F.3d 66, 71-72 (2nd Cir. 1995) (concluding that an alibi

instruction which stated that the jury was to determine if alibi witnesses had testified

truthfully did not shift the burden of proof where the instruction also emphasized that the

prosecution had the burden of proof); Richard Murphy v. Kathleen Dennehy, No. 05-12246-

DPW, 2007 WL 430754, at *12 (D. Mass. Feb. 5, 2007) (concluding that alibi instruction

which stated “if you believe the defendant’s alibi” did not shift the burden of proof because

it also “made clear” that the prosecution “bore the burden on each essential element of the

offense”). Accordingly, we conclude that trial court did not err in its use of the Christian

alibi instruction.5

C. “Theory of Defense” Instruction

5

The Defendant also contends that the trial court’s use of the Christian instruction constituted an improper

comment on the evidence by the trial court. See State v. Suttles, 767 S.W.2d 403 (Tenn. 1989). However,

there is nothing in the record to suggest that the trial court made any comment on the Defendant’s alibi

defense other than to read the pattern jury instruction approved by our supreme court in Christian. As such,

we conclude that this issue is devoid of any merit.

-31-

The Defendant contends that the trial court erred by failing to instruct the jury on her

“theory of defense.” Prior to the trial court’s instructing the jury, the Defendant orally moved

the trial court to charge “the defense theory to the effect that the defense theory of the case

[was] that the State [had] not proven the presence of the Defendant at the time of the offense,

and that the Defendant did not kill the deceased.” The State responds that the Defendant has

waived this issue by failing to file a written request for the jury instruction. The State further

responds that the trial court fully and fairly instructed the jury on the applicable law,

including instructing the jury on the defense of alibi.

We agree with the State that the Defendant has waived full appellate review of this

issue. The Defendant failed to file a written request for a special jury instruction on her

“theory of defense.” See Tenn. R. Crim. P. 30(a); State v. Mackey, 638 S.W.2d 830, 836

(Tenn. Crim. App. 1982) (stating that Rule 30 “envisions that such requests be made in

writing” and that oral requests for instructions are not sufficient for an appellate court to

place a trial court in error for rejecting a requested jury instruction). Additionally, the

Defendant failed to include this issue in her motion for new trial. See Tenn. R. App. P. 3(e)

(stating that “no issue presented for review shall be predicated upon error in. . . jury

instructions granted or refused, . . . unless the same was specifically stated in a motion for

new trial”). Due to the Defendant’s waiver of this issue, we examine the issue solely to

determine whether plain error review is appropriate.

The doctrine of plain error only applies when all five of the following factors have

been established:

(a) the record must clearly establish what occurred in the trial court;

(b) a clear and unequivocal rule of law must have been breached;

(c) a substantial right of the accused must have been adversely affected;

(d) the accused must not have waived the issue for tactical reasons; and

(e) consideration of the error must be “necessary to do substantial justice.”

State v. Page, 184 S.W.3d 223, 230-31 (Tenn. 2006) (quoting State v. Terry, 118 S.W.3d

355, 360 (Tenn. 2003)) (internal brackets omitted). “An error would have to [be] especially

egregious in nature, striking at the very heart of the fairness of the judicial proceeding, to rise

to the level of plain error.” Id. at 231.

Plain error review is not appropriate here because the Defendant has failed to establish

that consideration of the error is necessary to do substantial justice. The requested “theory

of defense” jury instruction was nothing more than a restatement of the Defendant’s alibi

defense. As discussed above, the trial court gave an alibi instruction that correctly, fully, and

fairly set forth the applicable law. Likewise, the trial court fully and fairly instructed the jury

-32-

on Defendant’s presumption of innocence and the State’s burden of proof. Accordingly, we

conclude that plain error review is not warranted and that this issue is without merit.

VII. Alternate Juror Selection

The Defendant contends that the trial court used an improper method to select the

alternate juror. The Defendant argues that a “plain and simple reading” of Tennessee Rule

of Criminal Procedure 24(f)(2)(A) mandates that trial courts randomly select twelve names

“to serve as the jurors to deliberate and the juror[s] not selected . . . shall be discharged.”

According to the Defendant, Rule 24(f)(2)(A) “does not say to pick one [juror] and send him

or her home. It says to pick twelve and send the rest home.” The State responds that the

Defendant has waived this issue by failing to raise a contemporaneous objection to the trial

court’s method of selection and by failing to include this issue in her motion for new trial.

The State further responds that the text of Rule 24(f)(2)(A) clearly belies the Defendant’s

argument.

After the close of the Defendant’s proof, during a scheduling discussion regarding

when the jury would begin its deliberations, defense counsel incorrectly stated to the trial

court that Rule 24(f)(2)(A) required that the trial court “select by lot the names of the

requisite number of jurors to -- to a body of twelve,” meaning that the trial court would “pick

twelve names out of the box, and whoever is left on the cutting room floor [would be] the

alternate.” The trial court responded that it had never selected alternate jurors in such a

manner and that defense counsel had misinterpreted the rule. The trial court then read Rule

24(f)(2)(A) in its entirety to defense counsel and informed defense counsel that it would

randomly select the name of the alternate juror. Defense counsel repeatedly stated that he

was not “challenging” or “arguing” with the trial court’s method of selecting the alternate

juror. Instead, defense counsel stated that he was “just pointing [] out what the rule says.”

After instructing the jury, the trial court selected the alternate juror by randomly selecting his

name from a bowl. The Defendant made no objection to the trial court’s selection.

We agree with the State that the Defendant has waived full appellate review of this

issue. The Defendant failed to raise a contemporaneous objection during the trial court’s

selection of the alternate juror. See Tenn. R. App. P. 36(a) (stating that “[n]othing in this rule

shall be construed as requiring relief to be granted to a party responsible for an error or who

failed to take whatever action was reasonably available to prevent or nullify the harmful

effect of an error”). Likewise, the Defendant failed to raise this issue in her motion for new

trial. See Tenn. R. App. P. 3(e) (stating that “no issue presented for review shall be

predicated upon . . . [a] ground upon which a new trial is sought, unless the same was

specifically stated in a motion for new trial”). As such, we will only examine this issue to

determine whether plain error review is appropriate.

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Tennessee Rule of Criminal Procedure 24(f)(2) allows trial courts to choose between

two methods to select and impanel alternate jurors. Here the trial court chose the single

entity method, which is governed by Rule 24(f)(2)(A):

During jury selection and trial of the case, the court shall make no distinction

as to which jurors are additional jurors and which jurors are regular jurors.

Before the jury retires to consider its verdict, the court shall select by lot the

names of the requisite number to reduce the jury to a body of twelve or such

other numbers as the law provides. A juror who is not selected to be a member

of the deliberating jury shall be discharged when that jury retires to consider

its verdict.

(Emphasis added). The Advisory Commission Comment to Rule 24(f)(2)(A) further clarifies

that “before the jury retires to deliberate the court will randomly deselect the additional

jurors, leaving the desired number of jurors, ordinarily twelve. The deselected jurors are then

discharged when the remaining jurors retire to deliberate.” (Emphasis added).

The Defendant’s argument runs counter to both the plain text of Rule 24(f)(2)(A) and

the spirit of the rule, as expressed in the Advisory Commission Comment. Plain error review

of this issue is not appropriate here because the Defendant has failed to establish that “a clear

and unequivocal rule of law” has been breached. Page, 184 S.W.3d at 230. Accordingly, we

conclude that this issue lacks any merit.

VIII. Juror Misconduct

The Defendant contends that members of the jury committed misconduct by

deliberating prematurely and reviewing extraneous prejudicial information. The Defendant

argues that the jurors began deliberating during the State’s case-in-chief, that this was

brought to the attention of a court officer, and that the court officer took no action and did

not inform the trial court about this misconduct. The Defendant further argues that the

alternate juror presented extraneous prejudicial information to the other members of the jury

during the course of the trial. The State responds that “a fair reading” of the testimony given

by the alternate juror at a post-trial hearing establishes that the jurors did not prematurely

deliberate. The State further responds that the Defendant has failed to prove that the jury was

exposed to extraneous prejudicial information.

After the jury convicted the Defendant, two private investigators employed by her

interviewed the alternate juror, Joseph Brian Creech, and surreptitiously recorded their

conversation. In the conversation, Mr. Creech stated that he had complained to the court

officer that another juror “wouldn’t deliberate” and was “making comments, just a comment

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here or there getting all the buzz or something.” The juror at issue was eventually excused

from the jury due to a family emergency.

Mr. Creech also stated that after the jury returned its verdict, he “interviewed” the

jurors about their decision. Mr. Creech told the investigators that several of the jurors

thought a picture of the open Bible found in the victim’s bathroom was “an eye-opener,”

“very critical,” and “a transition point.” Mr. Creech explained that the Bible was opened to

Psalm 69 which “talk[ed] about preserving the inheritance of Israel . . . for the Jewish

people.” Mr. Creech further explained that he believed the Defendant’s desire to have her

children, and not the victim’s daughter, inherit all of her property was a motive for the

murder. Mr. Creech also stated that after the picture was shown at trial, “people went back

and read [Psalm 69] at the hotel.”

Based upon Mr. Creech’s statements to the Defendant’s private investigators, he was

subpoenaed to testify at a post-trial hearing. Mr. Creech testified that the jurors did not

prematurely deliberate during the trial. According to Mr. Creech, a juror who was eventually

removed for an emergency made “passing comments” on two occasions. Mr. Creech recalled

that she said, “This is crazy. This is a waste of time, and I don’t see any evidence of guilt

here.” Mr. Creech testified that he did not believe that the juror “thought she was

[intentionally] deliberating by her actions” but that the other jurors told her that they did not

“need to be talking about this.”

Mr. Creech brought her statements to the attention of the court officer, who told him

that they should “self-police” and “be on guard for that.” Mr. Creech testified that he never

discussed the evidence with the other jurors during the trial. Furthermore, he testified that

everything he told the Defendant’s investigators about what the other members of the jury

thought about the evidence was based upon his conversations with the jurors “after they came

back to the hotel after the verdict was passed down.”

Mr. Creech testified that during the trial, a picture of an open Bible found in the

victim’s bedroom was shown to the jury. Psalm 69 was featured prominently in the picture,

but a pair of glasses obscured some of the text and a glasses case covered the very last line

of the psalm. Mr. Creech testified that after the picture was shown at trial, he read Psalm 69

“as well as other passages” from the Bible in his hotel room. Mr. Creech further testified that

he did not discuss Psalm 69 with the other jurors during the trial.

According to Mr. Creech, after the verdict was returned, he asked some of the jurors

about the picture, and they said “it was an interesting piece of evidence.” Mr. Creech

clarified that he “assumed [] based on their answers” that they had read Psalm 69 or “knew

what that was” but that he was not aware of any of the other jurors having “looked at [an]

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unobstructed” version of Psalm 69. Mr. Creech testified that the last line of Psalm 69 was

obscured but that “the majority of it [was] right there on the picture,” including portions that

stated that God’s “people will live there and possess the land” and that “the descendants” of

God’s servants “will inherit it.”

A. Premature Deliberation

Tennessee Rule of Evidence 606(b) provides that during an inquiry into the validity

of a verdict,

a juror may not testify as to any matter or statement occurring during the

course of the jury’s deliberations or to the effect of anything upon any juror’s

mind or emotions as influencing that juror to assent to or dissent from the

verdict . . . or concerning the juror’s mental processes, except that a juror may

testify on the question of whether extraneous prejudicial information was

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

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

advance to be bound by a quotient or gambling verdict without further

discussion; nor may a juror’s affidavit or evidence of any statement by the

juror concerning a matter about which the juror would be precluded from

testifying be received for these purposes.

This court has previously held that post-verdict inquiries into whether a jury has

prematurely deliberated are barred because premature deliberations do not involve extraneous

prejudicial information or outside influence. State v. Frazier, 683 S.W.2d 346, 353 (Tenn.

Crim. App. 1984); see also State v. Aldret, 509 S.E.2d 811, 815 n.5 (S.C. 1999) (citing

Frazier for the proposition that Tennessee courts “disallow any inquiry into allegations of

premature deliberations since such allegations do not involve an extraneous influence over

the jury”). As such, the Defendant’s inquiry into whether the jury deliberated prematurely

was barred by Rule 606(b).

Furthermore, while he gave a somewhat confusing statement to the Defendant’s

investigators, Mr. Creech testified to the trial court that the jurors did not prematurely

deliberate during the trial. Mr. Creech further testified that a single juror made a few

“passing comments” that the State had failed to meet its burden of proof but that the other

jurors told her that they did not “need to be talking about this.” We do not expect perfection

from jurors and “[n]o normal honest Americans ever worked together in a common inquiry

for any length of time with their mouths sealed up like automatons or oysters.” United States

v. Klee, 494 F.2d 394, 396 (9th Cir. 1974) (quoting Winebrenner v. United States, 147 F.2d

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322, 330 (8th Cir. 1945) (Woodrough, J. dissenting)). Accordingly, we conclude that this

issue is without merit.

B. Extraneous Prejudicial Information

Both the United States and the Tennessee Constitutions entitle a defendant to a trial

by an impartial jury. U.S. C ONST. amend. VI; T ENN. C ONST. art. 1, § 9. To ensure this right,

a jury must be “influenced only by legal and competent evidence produced during trial.”

State v. Hugueley, 185 S.W.3d 356, 377 (Tenn. 2006) (quoting State v. Lawson, 794 S.W.2d

363, 367 (Tenn. Crim. App. 1990)). However, a defendant is entitled to a fair trial, not a

perfect trial, and our ultimate inquiry “is whether the jury that tried the case was actually fair

and impartial.” State v. Willie Calvin Taylor, Jr., No. W2011-00671-CCA-R3-CD, 2012 WL

2308088, at *6 (Tenn. Crim. App. June 18, 2012).

A new trial may be warranted when a jury has been exposed to extraneous prejudicial

information. Carruthers v. State, 145 S.W.3d 85, 92 (Tenn. Crim. App. 2003). Furthermore,

“when it has been shown that a juror was exposed to extraneous prejudicial information or

subject to improper influence, a rebuttable presumption of prejudice arises, and the burden

shifts to the State to explain the conduct or demonstrate that it was harmless.” Walsh v.

State, 166 S.W.3d 641, 647 (Tenn. 2005). Extraneous information is “information from a

source outside the jury.” Carruthers, 145 S.W.3d at 92 (citing Caldararo v. Vanderbilit

Univ., 794 S.W.2d 738, 742 (Tenn. Ct. App. 1990)). A jury’s consideration of “facts not

admitted in evidence” is an external influence that may “warrant a new trial if found to be

prejudicial.” Id.

Before a new trial will be warranted, the extraneous information must be determined

to have been prejudicial. David Keen v. State, No. W2004-02159-CCA-R3-PD, 2006 WL

1540258, at *31 (Tenn. Crim. App. June 5, 2006), perm. app. denied, (Tenn. Oct. 30, 2006).

Rule 606(b) permits “juror testimony to establish the fact of extraneous information or

improper influence on the juror; however, juror testimony concerning the effect of such

information or influence on the juror’s deliberative process is inadmissible.” Walsh, 166

S.W.3d at 649. As such, we “may only determine prejudice from the content” of the alleged

extraneous information. Keen, 2006 WL 1540258, at *31.

We begin by noting that the testimony and statements of Mr. Creech regarding the

effect of Psalm 69 on him or other members of the jury were inadmissible pursuant to Rule

606(b). Generally, readings from the Bible that are not particular to the defendant, the

victim, or the facts and legal issues of a case are not considered prejudicial extraneous

information. Keen, 2006 WL 1540258 at *31. Here, the Defendant argues that the

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references in Psalm 69 to “the descendants” of God’s servants inheriting the land could be

considered evidence of the Defendant’s motive to murder the victim.

However, those references are not obstructed and are readable in the picture of the

Bible that was introduced into evidence at trial with no objection from the Defendant. The

only line of the psalm which was completely obscured was the last line, which states as

follows: “and those who love his name shall live in it.” Psalms 69:36 (NRSV). As such, we

cannot conclude that the jury’s possible exposure to an “unobstructed” version of Psalm 69

was prejudicial. See Keen, 2006 WL 1540258 at *32 (stating that a “finding of reversible

prejudicial error cannot be based on a mere possibility that a juror was improperly

influenced”). Furthermore, there was no evidence that any of the jurors besides Mr. Creech,

the alternate juror, read Psalm 69 in its entirety. See Taylor, 2012 WL 2308088, at *7

(concluding that because “the only testimony on the record indicate[d] that the jury as a

whole . . . was not exposed to extraneous information” the defendant was not entitled to a

new trial). Accordingly, we conclude that this issue has no merit.

IX. Alleged Brady Violation and Newly Discovered Evidence

The Defendant contends that the State withheld exculpatory evidence in violation of

Brady v. Maryland, 373 U.S. 83 (1963), and that she is entitled to a new trial based upon this

newly discovered evidence. According to the Defendant, after her trial, she received a

statement from former KCSO Sergeant Steve Robinson that he was the first police officer

to arrive at the victim’s house and that he witnessed another officer remove the gun from the

house. The State responds that there was no Brady violation because Sgt. Robinson’s

statement did not exist until after the Defendant’s trial. The State further responds that a new

trial is not warranted because Sgt. Robinson recanted his statement that another officer

removed the gun from the house, and because Sgt. Robinson’s statement that he was the first

officer on the scene was not so crucial to the Defendant’s guilt or innocence that its

admission would have probably resulted in an acquittal.

After the Defendant’s trial, Sgt. Robinson had a chance encounter with one of the

Defendant’s private investigators. As a result of their conversation, Sgt. Robinson signed

an affidavit in which he stated that he and KCSO Officer Joe Preston were the first two

officers to arrive at the victim’s house on March 13, 2003, that he saw the Defendant come

out of the house “screaming” that the victim had killed himself, and that he later saw Officer

Preston come “out of the residence holding a weapon and confirmed that the victim was

dead” before returning “inside the residence with the gun in his hand.”

Sgt. Robinson later spoke with Det. Moyers about the affidavit and recanted his

statement that Officer Preston removed the gun from the victim’s house. Officer Preston told

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Det. Moyers that Sgt. Amburn and Chief Lyon were already at the victim’s house when he

and Sgt. Robinson arrived. Officer Preston further stated that he and Sgt. Robinson “had

nothing to do with” the investigation in this case and that they were only at the scene “for just

a few minutes.” Officer Preston told Det. Moyers that Sgt. Robinson’s affidavit was “not

true at all” and “a lie.” Officer Preston stated that he briefly entered the house to check on

Chief Lyon, but he did not enter the bedroom or touch anything inside the house.

Sgt. Robinson testified via telephone at a post-trial hearing on this matter. Sgt.

Robinson testified that he had told the Defendant’s private investigators that he and Officer

Preston were “one of the first, if not the first, car to get there” and that they found the

Defendant “outside of the house, very upset.” Sgt. Robinson admitted that he told the

investigators that he saw Officer Preston walk “out of the house with the weapon.” Sgt.

Robinson testified that the affidavit, at the time he signed it, represented his recollection of

what happened on March 13, 2003.

However, Sgt. Robinson testified that after signing the affidavit, he “subsequently

thought about” what happened on March 13, 2003, “a lot” and realized that he had

“misremembered” what happened and that his “recollection was wrong.” Sgt. Robinson

testified that he never saw Officer Preston come “out of the house with the weapon.” Sgt.

Robinson further testified that Officer Preston was too good of a police officer to do

something like move a possible murder weapon and that Officer Preston “absolutely did not

do that.”

Sgt. Robinson also testified that when he arrived at the house, the Defendant was “on

the porch” and “extraordinarily upset.” Sgt. Robinson could not recall if Sgt. Amburn was

there and testified that he was “so focused on” the Defendant that he could not remember

who any of the other responding officers were. Sgt. Robinson also did not recall the

Defendant’s coming out of the house screaming and was unsure why that was in his affidavit.

Sgt. Robinson testified that he “obviously misremembered that.” Sgt. Robinson admitted that

his recollection of March 13, 2003, was “not that good.” Sgt. Robinson testified that he

never went into the victim’s house that day.

A. Brady Violation

As previously stated, 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. Ferguson, 2 S.W.3d at 915. 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, the State is not required to disclose “information that the accused already

possess or is able to obtain, or information which is not possessed by or under the control of

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the prosecution or another governmental agency.” State v. Marshall, 845 S.W.2d 228, 233

(Tenn. Crim. App. 1992) (internal citations omitted).

The State is also not required “to seek out exculpatory evidence not already in its

possession or in the possession of a governmental agency.” Marshall, 845 S.W.2d at 233;

see also State v. Brownell, 696 S.W.2d 362, 363 (Tenn. Crim. App. 1985) (noting that the

“State is under no obligation to make an investigation, or to gather evidence, for the

defendant”). Likewise, when “evidence does not exist the State cannot be charged with

suppressing it.” Brownell, 696 S.W.2d at 364. Additionally, there is no constitutional

requirement that the State “make a complete and detailed accounting to the defense of all

police investigatory work on a case.” Johnson, 38 S.W.3d at 56 (quoting State v. Walker,

910 S.W.2d 381, 389 (Tenn. 1995)).

Sgt. Robinson’s statements to the Defendant’s private investigators and his affidavit

did not exist until after the Defendant’s trial. Sgt. Robinson’s name did not appear on the

crime scene log, and there is no evidence in the record that Sgt. Robinson ever made similar

accusations prior to his conversation with the Defendant’s investigators. As such, the State

cannot be faulted for suppressing evidence which did not exist until after the Defendant’s

trial was completed. Instead, we examine whether the State committed a Brady violation by

failing to disclose Sgt. Robinson’s name to the Defendant.

We first note that Sgt. Robinson testified that he spoke with the Defendant at her

house on March 13, 2003. Therefore, the Defendant should have been aware that Sgt.

Robinson was one of the first police officers to respond to her 911 call, and the State cannot

be faulted for failing to disclose information already in her possession. Nor does Brady

require the State to “make a complete and detailed accounting” of the police investigation.

Johnson, 38 S.W.3d at 56.

Sgt. Robinson was one of several officers to respond to the victim’s house that day.

Sgt. Robinson’s name was not recorded on the crime scene log because he never entered the

house and he was only at the scene for a short period of time. Additionally, Sgt. Robinson

arrived at the victim’s house with Officer Preston, and Officer Preston’s name was on the

crime scene log provided to the Defendant. Furthermore, as we will discuss more fully

below, the proof established at the post-trial hearing showed that Sgt. Robinson possessed

no exculpatory evidence. Accordingly, we conclude that the State did not commit a Brady

violation by failing to provide the Defendant with Sgt. Robinson’s name.

B. Newly Discovered Evidence

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A new trial will be granted on the basis of newly discovered evidence only when a

defendant has established the following: “(1) reasonable diligence in attempting to discover

the evidence; (2) the materiality of the evidence; and (3) that the evidence would likely

change the result of the trial.” State v. Caldwell, 977 S.W.2d 110, 116 (Tenn. Crim. App.

1997) (citing State v. Goswick, 656 S.W.2d 355, 358-60 (Tenn. 1983)). The decision to

grant or deny a new trial on the basis of newly discovered evidence “rests within the sound

discretion” of the trial court. Id. at 117.

This court has previously held as follows:

When it appears that the newly discovered evidence can have no other

effect than to “discredit the testimony of a witness at the original trial,

contradict a witness’ statements or impeach a witness,” the trial court should

not order a new trial “unless the testimony of the witness who is sought to be

impeached was so important to the issue, and the evidence impeaching the

witness so strong and convincing that a different result at trial would

necessarily follow.”

Caldwell, 977 S.W.2d at 117 (quoting State v. Rogers, 703 S.W.2d 166, 169 (Tenn. Crim.

App. 1985)).

Sgt. Robinson’s statements that he and Officer Preston were the first officers to arrive

at the victim’s house and that the Defendant was “screaming” and “extraordinarily upset”

would have no other effect than to contradict Sgt. Amburn’s testimony at trial. We cannot

conclude that Sgt. Robinson’s statements on these issues were “so strong and convincing that

a different result at trial would necessarily follow.” In his testimony before the trial court,

Sgt. Robinson contradicted the statements in his affidavit. Sgt. Robinson testified that he

was “one of the first, if not the first” officers to arrive and that he had did not recall the

Defendant running out of the house screaming. Furthermore, Officer Preston stated that Sgt.

Amburn and Chief Lyon were already at the house when he and Sgt. Robinson arrived.

Additionally, although Sgt. Amburn testified that the Defendant initially was “motionless,”

after he touched her she became “very hysterical.” Accordingly, we do not believe that these

minor contradictions would have necessarily resulted in a different result at trial.

In sworn testimony before the trial court, Sgt. Robinson recanted the statement in his

affidavit that he witnessed Officer Preston remove the gun from the victim’s house. As such,

the only newly discovered evidence supporting the Defendant’s claim that Officer Preston

removed the gun from the house is the now discredited affidavit. Sgt. Robinson’s affidavit

by itself would be inadmissible at trial as hearsay. See Tenn. R. Evid. 802. Nor could the

Defendant call Sgt. Robinson to testify at trial for the sole purpose of impeaching him with

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his prior inconsistent statement. See Tenn. R. Evid. 607, Advisory Comm’n Cmts. (stating

that “[d]ecisional law prohibits a lawyer from calling a witness-knowing the testimony will

be adverse to the lawyer’s position-solely to impeach that witness by an inconsistent

statement”).

More importantly, Sgt. Robinson’s recantation of his statement and Officer Preston’s

vigorous denial that he removed the gun from the house call the validity of the affidavit into

serious doubt. Sgt. Robinson testified at the post-trial hearing that his recollections in the

affidavit were “wrong” and that his memory of March 13, 2003, was “not that good.” As

such, the Defendant has failed to meet her burden to show that the affidavit would likely

change the result of the trial. Accordingly, we conclude that the trial court did not error in

denying the Defendant’s request for a new trial on the basis of newly discovered evidence.

X. Thirteenth Juror

The Defendant contends that the trial court, by accepting the jury’s guilty verdict,

“abdicated” its role as the thirteenth juror. The Defendant argues that no “rational person,

based on the evidence . . . could have possibly convicted [her] on the scant evidence

presented in this case.” Essentially, the Defendant raises this issue in an attempt to reargue

her contentions on the sufficiency of the evidence. The State responds that the trial court

expressly approved the jury’s verdict in its written order denying the Defendant’s motion for

new trial; therefore, the trial court fulfilled its duties as the thirteenth juror.

Tennessee Rule of Criminal Procedure 33(d) provides that “[t]he trial court may grant

a new trial following a verdict of guilty if it disagrees with the jury about the weight of the

evidence.” This is the modern equivalent of the thirteenth juror rule and “imposes upon a

trial court judge the mandatory duty to serve as the thirteenth juror in every criminal case,

and that approval by the trial judge of the jury’s verdict as the thirteenth juror is a necessary

prerequisite to imposition of a valid judgment.” State v. Biggs, 218 S.W.3d 643, 653 (Tenn.

Crim. App. 2006) (quoting State v. Carter, 896 S.W.2d 119, 122 (Tenn. 1995)) (internal

quotation marks omitted).

We “may presume that the trial court approved the verdict as the thirteenth juror”

when it has overruled a motion for new trial without comment. Biggs, 218 S.W.3d at 653

(citing Carter, 896 S.W.2d at 122). It is only when “the record contains statements by the

trial judge expressing dissatisfaction or disagreement with the weight of the evidence or the

jury’s verdict, or [evidence] indicating that the trial court absolved itself of its responsibility

to act as the thirteenth juror, [that] an appellate court may reverse the trial court’s judgment”

on the basis that the trial court failed to carry out its duties as the thirteenth juror. Carter, 896

S.W.2d at 122.

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Here, the trial court did more than simply deny the Defendant’s motion for new trial

without commit. The trial court reviewed the evidence as well as the applicable law and

expressly approved the jury’s verdict in its written order denying the motion. Therefore, the

trial court fulfilled its duty as the thirteenth juror. The State is correct in its assertion that an

allegation that the trial court “abdicated” its role as the thirteenth juror is not a proper vehicle

to challenge the sufficiency of the convicting evidence. The mere fact that the trial court

approved the jury’s verdict which was adverse to the Defendant did not evidence that the trial

court failed to fulfill its duty as the thirteenth juror. Accordingly we conclude that this issue

is without merit.

In a one-sentence argument citing only to a news media article, the Defendant

contends that Judge Richard Baumgartner could not fulfill his duty as the thirteenth juror

because he was “under the influence of drugs.” The Defendant has failed to make any

argument to support this contention beyond the conclusory sentence included in her brief.

The Defendant has also failed to supply any citations to the record or legal authorities to

support this contention. As such, the Defendant has waived review of the issue in this court.

See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument, citation

to authorities, or appropriate references to the record will be treated as waived in this

court.”).

Furthermore, there is no evidence in the record before us that Judge Baumgartenr was

intoxicated or incompetent at the time he approved the jury’s verdict and denied the

Defendant’s motion for new trial. See State v. Manuel Haynes, No. W2009-00599-CCA-R3-

CD, 2010 WL 2473298, at *10 (Tenn. Crim. App. June 17, 2010), perm. app. denied, (Tenn.

Nov. 12, 2010) (concluding that a new trial was not warranted when, despite the defendant’s

argument to the contrary, there was “no proof in the record that any juror was intoxicated

during the trial”). Likewise, a trial judge’s misconduct outside the courtroom does not

constitute structural constitutional error “when there is no showing or indication in the record

that the trial judge’s misconduct affected the trial proceedings.” State v. Letalvis Cobbins,

LeMaricus Davidson, and George Thomas, No. E2012-00448-SC-R10-DD, slip op. at 3

(Tenn. May 24, 2012) (order vacating grant of new trials for the defendants). Based upon

the record before us, we conclude that this issue is without merit.

XI. Cumulative Error

The Defendant contends that, even if no single error requires a new trial, the

cumulative effect of multiple errors mandates such action. The Defendant argues that there

were several errors during the course of her second trial and that these errors deprived her

of a “fair and meaningful defense.” The State responds that there can be no cumulative error

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because the Defendant “failed to prove a single basis for reversal and remand for a new

trial.”

The cumulative error doctrine applies to 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). However, circumstances which would warrant reversal of

a conviction under the cumulative error doctrine “remain rare.” Id. Having discerned no

error during the Defendant’s second trial, there can be no cumulative error. Accordingly, we

conclude that this issue is without merit.

CONCLUSION

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

trial court is affirmed.

_________________________________

D. KELLY THOMAS, JR., JUDGE

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