State of Tennessee v. Noura Jackson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

September 7, 2011 Session

STATE OF TENNESSEE v. NOURA JACKSON

Direct Appeal from the Criminal Court for Shelby County

No. 05-06767 Chris Craft, Judge

No. W2009-01709-CCA-R3-CD - Filed December 10, 2012

The defendant, Noura Jackson, was convicted of second degree murder for the death of her

mother, Jennifer Jackson, and sentenced to twenty years and nine months in the Department

of Correction. On appeal, she argues that the trial court erred in the following rulings: (1)

concluding that her conversation at the scene with a family friend, who is an attorney, was

not subject to the attorney-client privilege; (2) concluding that the searches of the residence

she shared with the victim and of a vehicle parked in the driveway were lawful; (3) allowing

testimony of lay witnesses as to her use of “drugs”; (4) allowing testimony of her having

sexual relations at a time after the murder, as to her eviction from an apartment after the

murder, and as to her hospitalization at Lakeside Hospital after the murder; (5) allowing the

victim’s brother and sisters to testify as to arguments between the defendant and the victim

prior to the murder; and (6) allowing certain photographs of the crime scene and the victim’s

body. Additionally, the defendant argues that she is entitled to a new trial because of (7)

prosecutorial conduct consisting of references to the post-arrest silence of the defendant;

suppression of the third statement of a State’s witness; loudly beginning its opening

statement by saying, “Give me the f*cking money”; using a misleading PowerPoint

presentation during its closing argument; commenting on her right to remain silent;

references to the Deity during closing arguments; commenting in closing argument on the

length of the trial; treating as established facts which were not proven at trial; making

personal attacks during closing statements upon her; and making additional improper

statements during closing argument. Further, the defendant argues on appeal that (8) the

evidence is insufficient to support her conviction for second degree murder and that (9) the

court erred in imposing more than a minimum sentence. We have carefully reviewed the

record and conclude that the arguments of the defendant are without merit. Accordingly, we

affirm the judgment of the trial court.

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

A LAN E. G LENN , J., delivered the opinion of the Court. J EFFREY S. BIVINS, J., filed a

concurring opinion, in which T HOMAS T. W OODALL, J., joined.

Valerie T. Corder (on appeal and at trial); Arthur Quinn (at trial), Memphis, Tennessee, for

the appellant, Noura Jackson.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; William

L. Gibbons, District Attorney General; and Amy P. Weirich and Stephen P. Jones, Assistant

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

OPINION

FACTS

This case arises out of the June 2005 murder of the defendant’s mother, Jennifer

Jackson, for which the then eighteen-year-old defendant was indicted on one count of first

degree premeditated murder. Following a jury trial in February 2009, the defendant was

convicted of the lesser-included offense of second degree murder. In our consideration of

this matter, we first will set out the extensive trial testimony.

James Tual testified that he and the victim attended a wedding on the evening of June

4, 2005, and were together until about 11:30 p.m. He learned of the victim’s death the

following morning.

Regina Frierson, an employee of First Tennessee Bank, testified regarding the

victim’s account records for June 2005. The records reflected a purchase on the victim’s

credit card at the Cockeyed Camel restaurant at 11:06 p.m. on June 4, 2005. The card was

not used again after that purchase.

Mayo Josiah Cocke testified that he lived across the street from the victim and that

during the early morning hours of Sunday, June 5, 2005, he and his wife were awakened by

“loud banging” at their front door. When his wife opened the door, Cocke heard the

defendant repeatedly yelling, “[M]y mom, my mom. Somebody’s breaking into my house.”

He grabbed his pistol for protection, ran to the victim’s house, and followed the defendant

inside. The defendant went directly to the sunroom located in the back of the house and

called 9-1-1. Cocke asked the defendant where the victim was, and the defendant, who was

crying and hysterical, replied that the victim was in her bedroom. Cocke found the deceased

victim, who was nude and covered in blood, lying on the floor in the bedroom. The victim’s

bed was also covered in blood. Cocke immediately ran back to his house and told his wife

that the victim had been murdered. Cocke and his wife then returned to the victim’s house

where they found the defendant still on the telephone with the 9-1-1 operator. Mrs. Cocke

took the telephone from the defendant who was “all curled up on the floor.” Cocke noticed

bloody shoe prints and drops of blood next to the prints on the kitchen floor. The window

in a kitchen door leading to the garage was broken, and glass was on the floor in the kitchen.

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Cocke saw the defendant’s Jeep Cherokee in the driveway.

Cocke said that, the weekend before the victim’s death, the victim and the defendant

went out of town and the victim asked him to “keep an eye” on the house while they were

gone. That weekend, he saw between twenty and forty teenagers go into the victim’s

backyard with beer bottles. The police were called to investigate, but no one answered the

front door. The police tried unsuccessfully to open the gate to the backyard, and the

teenagers quickly dispersed, jumping over the fence and running across the street. After the

police left, the teenagers returned but left soon thereafter.

Rachael Cocke, Josiah Cocke’s wife, testified that at approximately 5:00 a.m. on June

5, 2005, the defendant, who was wearing a long-sleeve, gray “zipper hoodie,” came to her

house screaming, “[M]y mom, my mom, there’s someone breaking . . . into my house.” She

said that the defendant was hysterical and “very sweaty.” Mrs. Cocke called 9-1-1, and Mr.

Cocke went to the victim’s house but soon returned, screaming, “[S]he’s been murdered.”

Mr. and Mrs. Cocke went to the victim’s house and found the defendant “rocking and

wailing” in the sunroom with the telephone in her lap. Mrs. Cocke took the telephone and

spoke to the 9-1-1 operator. At the operator’s instruction, Mrs. Cocke went to the victim to

render aid but realized there was nothing she could do and informed the 9-1-1 operator that

CPR would not help the victim. She said that the victim appeared to have been dead for

“quite a while.” Mrs. Cocke saw no movement in the victim’s chest, and the look on the

victim’s face was “fixed and . . . dead.” She said there were bloody footprints in the hallway

leading to the victim’s bedroom.

Sheila Cocke, Josiah Cocke’s mother, testified that in June 2005 she lived with her

son and daughter-in-law across the street from the victim’s residence. She recalled an

argument she overheard between the victim and the defendant that occurred one evening

after the defendant’s eighteenth birthday in March 2005. Ms. Cocke was outside walking her

dog at about 9:00 p.m. when she heard the defendant and the victim arguing in their

driveway. The defendant, who was in a rage, told the victim, “[J]ust give me the F’ing

money,” and the victim told the defendant to be quiet and go inside. Ms. Cocke also recalled

another argument sometime in the spring of 2005 when the defendant told the victim, “Give

me the money. I want the money.” The victim replied, “I will. I will.” Ms. Cocke said that,

on the morning of the victim’s murder, she went to the victim’s residence to comfort the

defendant. She sat with the defendant as police officers inquired about her whereabouts that

morning, and the defendant “never gave the same answer twice.”

Officer Russell Tankersley of the Memphis Police Department testified that he

responded to a robbery call at the victim’s residence at approximately 5:15 a.m. on June 5,

2005. He said that it was unseasonably hot that morning and estimated the temperature at

ninety to ninety-five degrees. Upon his arrival at the scene, the defendant came out of the

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house “yelling that something [was] wrong with her mom.” The defendant was wearing “a

sweatshirt or a fleece type jacket,” which Officer Tankersley thought was odd due to the

warm weather. Inside the house, Officer Tankersley noticed blood in the hallway, in the

doorway of the victim’s bedroom, and on the victim’s bed and discovered the victim lying

on the floor in front of the foot of the bed. The defendant then came running into the house,

screaming, “[M]y mom, my mom,” and Officer Tankersley asked another officer to take her

outside. In the kitchen, officers found broken glass on the floor beside a door leading into

the garage. The defendant told the officers that she was tired and wanted to go to sleep.

Michelle Hulbert, a firefighter/paramedic with the Memphis Fire Department, testified

that she and her partner responded to the call at the victim’s residence on June 5, 2005. A

fire truck with four men also responded to the scene. Hulbert found the nude victim lying

on the floor with multiple stab wounds to her head, neck, and chest. Hulbert had to remove

a wicker basket that was covering the victim’s head, neck, and upper chest in order to

examine her. The victim’s mouth was full of blood, and she was not breathing. Hulbert

placed a cardiac monitor on the victim to check for electrical activity in her heart, but there

was none. She said the victim’s body felt cool, but she did not take the victim’s core

temperature. She pronounced the victim dead at 5:18 a.m. Hulbert identified photographs

of the victim’s body. Hulbert recalled the defendant’s making a statement in response to a

question from a police officer that “her mother’s boyfriend was an asshole but he wouldn’t

do something like this.”

Officer David Payment, a crime scene investigator with the Memphis Police

Department, testified that he responded to the victim’s residence at approximately 5:45 a.m.

on June 5, 2005. He first walked the perimeter of the residence and noticed the vehicles in

the driveway. He saw what appeared to be blood on the front porch and front door and put

on gloves and “footies” before entering the house. He requested that special equipment be

brought to the scene and that Officers Kay Turnmire, Ricky Davison, and Lloyd Thomas

respond to the scene as well. Officer Payment explained that items and locations containing

possible blood were sprayed with either Hungarian Red or Coomassie Blue, chemicals which

cling to biological fluid “so it can be photographed and later lifted” with a gel lift and

preserved as evidence. He said that the chemical products were new to the police department

and that he used the products for the first time at the victim’s residence but did not use them

again after that day because he did not like the results. He identified several items of

evidence, including a pair of shoes; a wooden footstool; a wicker basket; a light switch cover

from the victim’s bedroom; a piece of an envelope containing possible hair obtained from

the stepstool; an envelope containing a piece of blue plastic obtained in the victim’s

bedroom; a condom wrapper found on the floor next to the victim’s bed; the victim’s bed and

mattress, as well as the sheets, pillows, and pillowcases that were on the bed; a comforter

found on the floor next to the victim; a pillow found underneath the victim’s bed; closet

doors from the victim’s bedroom; broken shards of glass; a silver-colored kitchen knife with

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a black handle; a golf club; and a white kitchen door.

According to Officer Payment’s crime scene log, twenty-two people entered the

victim’s residence between the time he arrived at 5:45 a.m. and when he left the scene at 3:00

p.m. He explained that the collection of evidence was a team effort with him and Officer

Davison taking photographs and Officer Turnmire documenting the evidence. He

acknowledged that he personally did not take any notes and that Officer Turnmire’s

handwritten notes were subsequently destroyed after the team made a hard copy of their

report. Officer Payment said he returned to the crime scene at about 7:00 a.m. the following

day.

Officer Payment estimated that over 200 photographs were taken at the crime scene

and identified photographs of the victim’s body and those made in the kitchen depicting a

knife on the countertop next to the sink, a knife and a golf club on another countertop, and

a knife block with two empty slots. He acknowledged that the entry hall was not the original

location of two sets of shoes that were photographed. He identified photographs of the dirt

in front of the gate leading to the backyard and agreed that some of the photographs showed

some type of impressions but said he did not take any casts or lifts of the impressions. He

also identified photographs of the hall bathroom showing a hair dryer and what appeared to

be blood on the floor.

Officer Payment said that the investigation team used a Krime Sight Imager, “a non-

invasive body fluid, fingerprint detection,” throughout the victim’s house, but no fingerprints

with ridge details were detected, only smudges which would not be recognizable. He said

that shoe print lifts in the hallway were taken after the victim’s body had been removed by

two people who had a crime scene officer in front of them and another officer behind them,

“guiding them so they would not step on what [was] considered possible evidence.” Officer

Payment identified photographs depicting the bloody sheets on the victim’s bed and what

appeared to be a bloody shoe print on the bottom sheet. He explained that one of the bloody

pillows in the victim’s bedroom had “[d]ifferent types of patterns[,] [p]ossible pooling[,]

[s]mears[,] [b]lood spatter. It was a combination and I was trying to document with

photographs the different patterns.” He said that he put on a different pair of gloves every

time he touched a piece of evidence and sent the condom wrapper found in the victim’s

bedroom for fingerprint analysis.

Officer Ricky Davison of the Memphis Police Department Crime Scene Investigation

Unit testified that he had worked “up in the hundreds” of crime scenes and met Officer

Payment at the victim’s residence on June 5, 2005. When he arrived, the scene had been

taped off and photographs were being taken by Officers Payment and Turnmire. He said

there was no forced point of entry at the residence, and the doors and windows were locked.

He observed what appeared to be blood on the front porch and blood spatter on the front

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door. Swab samples were collected from the porch area and the door. He said that a cat later

discovered inside the house was captured and removed. Officers found bloodstains and

possible shoe prints on the floor in the hallway. Samples of what appeared to be blood were

taken in the hallway and the bathroom located off the hallway. Numerous items of evidence

were collected from the victim’s bedroom. Officer Davison said that the condom wrapper

found in the victim’s bedroom was discovered the next day while officers were conducting

an additional search for evidence and after the victim’s bed and other items had been moved.

He said that the officers processed the condom wrapper, doorways, countertops, doorknobs,

sinks, and other surfaces for fingerprints. Unidentified fingerprints were lifted from the

condom wrapper and a Blackberry box found in the kitchen.

Sergeant Connie Justice of the Memphis Police Department Homicide Unit testified

that she transported the defendant to the homicide office on Sunday, June 5, 2005, to obtain

a witness statement from her. The defendant was not in custody or Mirandized and rode in

the front seat of Sergeant Justice’s unmarked police cruiser. The defendant fell asleep during

the thirteen to fourteen-minute drive to the homicide office, and Sergeant Justice had to

awaken her when they arrived. Sergeant Justice took a typewritten statement from the

defendant at 8:35 a.m., which the defendant initialed and signed at 9:53 a.m.

In her statement, the defendant said that, the evening of Saturday, June 4, she had

gone to the Italian Festival, Carter Kobeck’s house, a party in Germantown, and then to Perry

Brasfield’s house. The defendant called the victim from her cell phone at 12:10 a.m. while

at Brasfield’s house. Their conversation lasted about five minutes, and the defendant was

told by the victim that she was going to bed. The defendant said that she stayed at

Brasfield’s house for about thirty minutes after her conversation with the victim and that

Richard Raines, Sophie Cooley, and Brooke Thompson then took her to her car. She next

went to buy cigarettes and to Taco Bell and, realizing that she did not have her wallet, called

Brasfield and asked him to look around his house for it. She returned to Kobeck’s house,

found her wallet, bought gas, and drove to Eric Whitaker’s house in Cordova but decided to

go home instead. She talked to Andrew Hammack on the phone, and he was going to come

by her house to see her kitten. She was supposed to call Hammack when she got home, but

she found “what [she] found and [she] didn’t get to call him.” She did not know what time

she arrived home but thought “it was in between four and five [a.m.].”

The defendant further said that she entered the house through the front door which

was locked and went into the kitchen to get her cat. She stepped on something that cracked

and realized that glass was all over the floor. Asked what she did next, the defendant

explained:

I walked into [the victim’s] room and I took the basket off of her head. I tried

to talk to her but she wouldn’t talk. Then I tried to feel a pulse. I kept shaking

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her. Then I ran out the front door to my neighbor’s house and got them. And

I was screaming. And they followed me back. . . . And then I ran into the

sunroom to call the cops from the land phone. And then I went in the kitchen

and sat on the floor and I was holding my cat screaming, just waiting for them

to get there.

The defendant said that she turned on the light in the hallway but did not remember

if she had turned on the light in the victim’s bedroom. The light in the victim’s bathroom

was on and the victim’s bedroom door was open, although she usually slept with the door

closed. The defendant said that she was alone when she arrived home and denied that

anyone had come to her house before she discovered the victim. Asked about the victim’s

valuables, the defendant said that the victim had a “high tech cell phone” that she used at

work and usually had cash in her wallet. She denied having any recent arguments with the

victim other than “the same kind that teenagers and mothers” have. She said that the victim

was disappointed with Perry Brasfield for throwing a party at their house the weekend she

and the victim were out of town and that he had been allowed in the house because he was

feeding their dog while they were away. The defendant said that the victim had “an on and

off again boyfriend,” Mark Irvin, and they were broken up at the time of her death. She said

that Irvin had spent the night with the victim “[a] lot of times” and that he and the victim

often exchanged “[h]eated words,” but their arguments were not physical. The defendant

acknowledged that she had blood on her shoes and that she had touched the victim’s face and

arms. The defendant said she wiped her hands on some beach towels near the telephone in

the sunroom.

The defendant also said that she had cut her left hand near the thumb on broken beer

bottles at the Italian Festival on Friday night and that she went to the festival on Saturday

night as well. The defendant said that the victim had gotten her some “adhesive stuff” to put

on the cut. Sergeant Justice asked the defendant how bad the cut was and if it needed

stitches. Sergeant Justice said that the defendant did not appear intoxicated or “spaced out

on drugs” at the time she gave her statement.

Sergeant Justice said that she took photographs of the defendant to document what she

was wearing and collected her shoes because they had blood on them. She identified

photographs she took of the defendant’s gray New Balance shoes. She also took photographs

of the defendant’s hands, including the bandage which appeared to be a piece of tape. She

said that the defendant was cooperative, “but when it came to the particular point about the

extent of her injury, . . ., it seemed that she did not want to expose her bandage or answer any

questions about her specific injury.” She said that the defendant never mentioned going to

Walgreens that morning. Officers at the crime scene asked Sergeant Justice to obtain a

consent to search the defendant’s vehicle. The defendant signed a consent to search form for

her vehicle at 10:50 a.m. and also gave consent for a saliva sample to be taken from her. The

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sergeant drove the defendant back to the victim’s residence and returned the defendant’s

purse, keys, and cell phone to her. A woman on the scene gave Sergeant Justice a gray

hoodie that had been dropped in the yard.

Sergeant Justice said that the following day she called the defendant to inquire about

some of the phone numbers on her cell phone records and to confirm the time line of events.

In their discussion regarding Taco Bell, the defendant would not commit to which location

she had gone to and then “broke down and . . . started crying, and she goes, well, I didn’t

want you to think that I was a bad person, but I didn’t really go to Taco Bell, and instead, I

just rode around and I smoked a bowl of weed.” The next day, two days after the defendant

had given her statement, the defendant called Sergeant Justice wanting to know if there were

any developments in the case and that was Sergeant Justice’s last communication from her.

Sergeant Justice said that buccal swabs were also obtained from Andrew Hammack and

Mark Irvin. She also made photographs of the defendant’s hands and entire body while the

defendant was in the hospital.

Officer Patricia Turnmire of the Memphis Police Department Crime Scene

Investigation Unit testified that she assisted the other officers at the crime scene by

documenting what they were doing and taking photographs. She was at the scene on June

5, 2005, from approximately 7:10 a.m. until 5:30 p.m. and tagged into evidence the gray

sweater and New Balance tennis shoes the defendant was wearing. The defendant’s package

of cigarettes and lighter and two black-handled knives were also collected into evidence.

Officer Turnmire returned to the scene the following day and assisted Officer Davison with

fingerprinting and documentation. She identified a photograph showing “a portion of the

victim’s bed along with the placard forty-six” which depicted what appeared to be a broken

wooden crate found underneath the bed.

Officer Turnmire said that on June 10, 2005, she went to a hospital and took

photographs of the defendant’s left hand, feet, and a small bruise on her left thigh, as well

as an overall body shot. She identified photographs of the defendant’s left hand depicting

what appeared to be a healing cut.

Officer Turnmire said that she participated in the search of a 2000 Jeep Cherokee at

the crime scene office on June 19, 2005. She identified photographs of the vehicle depicting

the interior and the license plate and identified a white skirt that was found in the trunk area.

Other evidence collected from the Jeep included a Q-tip swab, forty-five cents in change

inside a Walgreens plastic bag, a paper towel with an unknown substance, three empty Skin

Shield packages, and Nexcare bandages and paper tape, all of which were found in the rear

trunk area underneath clothing. Two floor mats and fluid samples were also collected into

evidence.

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On cross-examination, Officer Turnmire acknowledged that the defendant consented

to a search of the house and all of the vehicles on the property the day of the victim’s murder.

She said there were “tons” of clothing in the Jeep Cherokee that she later searched. She

acknowledged that the defendant was in the hospital when the search was executed on the

Jeep Cherokee. She said that the Krime Sight Imager was used in the hall bathroom and that

there did not appear to be any blood spatter or blood smears in the shower. Officer Turnmire

said she noted in her report that there appeared to be a bloody footprint in the upper left

corner of the bottom sheet on the victim’s bed.

Lieutenant Mark Miller of the Memphis Police Department Homicide Unit testified

that he was the case coordinator and arrived at the crime scene at 6:45 a.m. The defendant’s

purse and phone were inside the house and were collected into evidence. He returned to the

scene a few days later and found two cordless telephones in the defendant’s bedroom.

Lieutenant Miller determined that the last number dialed from one of the phones was Andrew

Hammack’s number and that the last number on the defendant’s cell phone was Hammack’s

number. He later had Sergeant Connie Justice photograph some New Balance shoes that

were brought into his office by several of the defendant’s friends who appeared “slightly

incoherent.” He spoke to Hammack about the shoes, and Hammack gave a statement.

On cross-examination, Lieutenant Miller said that he had never taken shoe prints for

elimination and that he did not direct any of the crime scene officers to do so at the victim’s

residence. He acknowledged that Perry Brasfield was not “totally forthcoming” when he

gave his first statement to the police and that he gave another statement.

Thomas Helldorfer, a retired homicide investigator for the Memphis Police

Department, testified that he had been involved in over 1200 death investigations and was

in charge of the crime scene at the victim’s residence. When he arrived on the scene, seven

or eight officers, including Crime Scene Officer David Payment, were already there. He saw

the defendant standing in the front yard with Genevieve Dix. He put on boots and gloves

and conducted a “walk through” of the victim’s residence, looking for evidence. Investigator

Helldorfer noticed what appeared to be blood on the front porch and door and in the foyer,

kitchen, hallway, hallway bathroom, and the victim’s bedroom. The window in a kitchen

door had been broken out, and glass was all over the floor. He went into the hallway

bathroom and noticed that the bathtub, shower, and sink were wet. He found the victim’s

body in her bedroom between the foot of the bed and the wall. Investigator Helldorfer said

that the victim’s body was not removed from the scene until about 4:00 p.m., explaining that

the officers “tried to work [their] way in towards where [the victim] was to collect the

evidence and gather it and photograph it before [they] were going to disturb it to bring [the

victim] out.” Investigator Helldorfer also walked the exterior of the house and observed that

the possible points of entry were secure. He said that consent to search the defendant’s Jeep

Cherokee was obtained at 10:50 a.m. and that the search was conducted “[s]ometime after

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that.” A total of 810 photographs and a videotape were made during the investigation.

Investigator Helldorfer said he returned to the scene again on June 17, 2005, looked

inside the defendant’s Jeep Cherokee, and saw a Walgreens bag in plain view in the back of

the vehicle. The defendant’s vehicle was towed to the crime scene tunnel and searched.

Sergeant William D. Merritt of the Memphis Police Department Homicide Unit

testified that he was assigned to assist Sergeant Helldorfer inside the victim’s residence and

to check the perimeter of the residence for possible evidence. He said that the defendant did

not immediately sign a consent to search form but eventually did so at 7:51 a.m. on June 5,

2005. He said that the victim’s house keys were never found. He collected into evidence a

sales receipt for a gasoline purchase made at the All-In-One store at 6646 Poplar on June 5,

2005, at 4:20 a.m. and identified the security videotape he obtained from the store. He

subsequently returned to the victim’s residence and found some condoms in a table beside

the victim’s bed and in a box in the defendant’s bedroom. He said that he decided to submit

the condom wrapper found in the victim’s bedroom for fingerprint analysis, rather than DNA

analysis, because it had a plastic-type surface and the fingerprint database was larger than

the DNA database. Sergeant Merritt also collected a sales receipt for cigarettes purchased

from the BP gas station at 4830 Poplar Avenue dated June 5, 2005 at 12:46 a.m. bearing the

defendant’s signature. On August 15, 2005, he examined the defendant’s sweatshirt that had

been collected into evidence and found a folded napkin inside a front pocket. He noticed

“some red spotting” on the napkin that “looked out of the ordinary” and submitted the napkin

to the TBI for DNA testing.

Sergeant Merritt said he participated in the search of the defendant’s vehicle at the

crime scene office on June 19, 2005. Inside the vehicle, officers found a Walgreens sack

containing first-aid supplies, including “a Next Care First Aid Gentle Paper Tape[,] . . . an

empty box[,] Next Care Bandage Drops Liquid Bandage[,] . . . [and] “Skin Shield Liquid

Bandage, container.” As a result, he contacted the twenty-four-hour Walgreens store located

at the corner of Poplar Avenue and Massey Road and, after relaying the bar code information

to the store manager, learned that the items found in the defendant’s vehicle had been

purchased during the early morning hours of June 5, 2005. He met with the store manager

and viewed the video surveillance for the time the medical supplies were purchased,

approximately 4:01 a.m., and obtained a copy of the sales receipt showing the time and a list

of the items that were purchased. He recognized the defendant on the Walgreens

surveillance tape as the purchaser of these items.

On cross-examination, Sergeant Merritt acknowledged that the defendant gave

consent to search her vehicle, to give her fingerprints and a saliva sample, and for her hands

and body to be photographed. He said that the defendant was given back the keys to her

vehicle the afternoon of the victim’s murder. He further acknowledged that blood found at

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the crime scene indicated that the victim’s attacker may have been injured. He opined that,

based on the severity of the victim’s injuries, she did not leave her bedroom after she was

stabbed and that the perpetrator may have been cut, left the residence, and dropped some

blood on the front porch. He acknowledged that he used the information he obtained from

Katherine Menkel in support of his affidavit for the search warrant of the defendant’s

vehicle.

Agent Linda Littlejohn of the Tennessee Bureau of Investigation (“TBI”), accepted

by the trial court as an expert in microanalysis footprint examination, testified that she

examined a pair of tennis shoes, three gel lifts, two pairs of sandals, and CDs containing

approximately 669 photographs of the crime scene. She narrowed down the photographs to

those that pertained to impression evidence and determined that nine of the impressions left

at the scene had a similar tread design to the tennis shoes she examined.

On cross-examination, Agent Littlejohn acknowledged that she did not receive any

original evidence from the crime scene and that the best way to evaluate evidence is to have

the original evidence. She also agreed that if impression evidence was not properly

recovered, important details of the impression would be lost and the examination results

might be affected. As to one of the crime scene photographs depicting a bloody impression,

Agent Littlejohn said that because it was not an examination quality photograph, she could

not “tell if there was any detail present in that impression.” As to another photograph

depicting a bloody imprint, she determined that tread design was present but inconsistent

with any of the shoes she examined.

Qadriiyyah Debnam, a special agent/forensic scientist specializing in DNA serology

with the TBI, testified that she examined numerous items of evidence sent to her by the

Memphis Police Department, including nail clippings from the victim’s hands; the victim’s

sexual assault kit; saliva samples from the defendant, Andrew Hammack, and Mark Irvin,

from which she obtained DNA profiles; a pair of New Balance tennis shoes; a gray, pullover,

long-sleeved jacket; and a golf club. The victim’s sexual assault kit was negative for the

presence of semen. Samples taken from the victim’s front door, front door mat, entryway,

a piece of glass from the kitchen, hallway, and the bathroom floor off the hallway revealed

the presence of blood which matched the victim’s DNA profile. Agent Debnam also

examined the wicker basket found in the victim’s bedroom which revealed the presence of

blood that matched eight of thirteen loci of the victim’s DNA profile. The victim’s blood

was also found on, among other things, a stepstool, a purse, a piece of wood, pillows,

pillowcases, sheets, and the comforter from the victim’s bed. Agent Debnam tested four

areas from the top sheet of the victim’s bed. The DNA profile obtained from one area was

a “mixture of genetic material where the major contributor of the profile [was] from an

unidentified female individual.” The defendant was excluded as a major contributor, but the

victim could not be excluded as a minor contributor. Agent Debnam had no opinion as to

-11-

when the mixture of the blood for the major contributor and either the blood, skin cells, or

saliva from the minor contributor occurred. She agreed that it was possible that the blood

from the major contributor was on the sheet prior to the mixture occurring. A mixture of two

DNAs was also found on one of the pillowcases she examined, but Agent Debnam had no

way of determining when the DNA was left on the pillowcase or when the mixture occurred.

Agent Debnam said that tests revealed the presence of the defendant’s blood on a

white napkin found in the pocket of a gray sweatshirt she received from Sergeant Merritt on

August 17, 2005. Agent Debnam also examined a pair of tennis shoes which revealed the

presence of blood matching the victim’s DNA profile at twelve of thirteen markers on the

sole of the right shoe and at seven of nine markers on the right shoestring and at seven of

thirteen markers on the sole of the left shoe and the left shoestring.

On cross-examination, Agent Debnam acknowledged that the defendant’s DNA was

not present on the pillows, pillowcases, sheets, footboard, headboard, or finials of the

victim’s bed; the light switch; or the fingernail scrapings taken from the victim’s hands. She

said that there was ridge detail in the blood on the footboard of the victim’s bed and that she

notified the Memphis Police Department of her finding. She acknowledged that she was not

asked to perform a DNA analysis on the condom wrapper found in the victim’s residence.

Officer Martin Milner of the Memphis Police Department Crime Scene Unit, accepted

as an expert in fingerprint identification, testified that his expertise was in the identification

of friction ridge on the palmar side of hands and feet. The lifts he received for analysis in

the case were compared against the victim, the defendant, Andrew Hammack, Rachel Cocke,

Mark Irvin, and McKenzie Koale Madison. Madison’s prints were found on two drinking

glasses. He examined the ridge detail in blood that the TBI agent noticed on the footboard

of the victim’s bed, but it was a minute amount and he was unable to compare it against

anyone. On cross-examination, Officer Milner said that neither the victim’s nor the

defendant’s fingerprints matched the fingerprint on the condom wrapper.

Dr. Karen Chancellor, the chief medical examiner for Shelby County, testified that

she performed the autopsy on the victim’s body and determined that the cause of death was

multiple stab wounds. The victim had approximately fifty stab wounds to the front and back

of her body, neck, and arms, as well as many cut wounds.1 The maximum depth of the stab

wounds was six inches, and Dr. Chancellor estimated the width of the knife used at one-half

to three-quarter inches. Dr. Chancellor collected nail clippings from the victim’s hands; a

1

Dr. Chancellor explained that a cut wound differed from a stab wound “in that a cut is generally

longer on the surface of the body than it is deep. A stab wound is generally deeper into the body than it is

in the width on the skin.”

-12-

sexual assault evidence kit; and some loose hairs, which she noted as long and blonde,2 found

in the victim’s hands. Dr. Chancellor identified several photographs of the victim’s body.

She grouped the stab wounds according to where they were located but could not determine

in what order the wounds were inflicted. Two of the wounds to the chest area passed through

the right ventricle of the heart and one passed through the left ventricle. Dr. Chancellor

opined that the wounds to the victim’s chest were made as the knife was at a ninety-degree

angle to the body. The group of wounds to the abdomen involved the stomach, liver, and

aorta. The wounds on the front of the right shoulder involved the right lung. The victim had

seven to eight “side to side” stab wounds on her neck, one of which went through the cricoid

cartilage. Wounds on the victim’s face included a sharp force injury to the forehead that

went down to the bone, a sharp force injury with a V-shaped end on the cheek, and a cut

wound on the chin which was a pattern injury, indicating that the wound was likely caused

by a sharp instrument with a serrated edge. Additionally, the victim had stab wounds to the

left shoulder, both hands, right arm, and right wrist, as well as cuts on the back of the fingers

of the left hand and the palm of the right hand. She said that the wounds on the victim’s

hands, especially the palmar surfaces, were consistent with defensive wounds. It was Dr.

Chancellor’s opinion that most of the wounds were made with a single-edged knife. The

victim also had a pinkish, purple contusion on the left side of her head, which Dr. Chancellor

opined was caused by a blunt object and was a recent injury.

Dr. Chancellor said that a forensic anthropologist, Dr. Love, assisted her in the

victim’s autopsy and examined certain portions of the victim’s ribs. Dr. Love’s examination

indicated that the stab wounds to the ribs were inflicted by a non-serrated, sharp-edged

weapon. Dr. Chancellor opined that two knives could have been used or a knife with an

unusual configuration, such as a sharp edge on one side and a serrated edge on the other. As

to the cut wounds on the victim’s neck, Dr. Chancellor said that she could not “imagine

anything else other than a serrated knife causing this.”

Cindy Eidson, the victim’s sister, testified that the victim was thirty-nine years old at

the time of her death. She said that the victim and the defendant spent Memorial Day

weekend of 2005 at Eidson’s home in Florida. She recalled an “all night” conversation

between herself, the defendant, and the victim that weekend wherein the victim told the

defendant that she wanted her to go to boarding school because she was not taking the tests

in her home schooling program and was “partying all the time.” Eidson said the victim

“figured [the defendant] was eighteen years old and still ha[d]n’t finished [the] eleventh

grade and that she needed to either go to boarding school or move out.” The defendant said

“nothing” in response to the victim’s accusations. The victim received a telephone call on

Saturday evening of that weekend informing her that several teenagers were having a party

at her house in Memphis. The victim confronted the defendant about the party, and the

2

Dr. Chancellor testified that the victim had long blonde hair.

-13-

defendant denied any knowledge of it. However, the next day the defendant admitted that

she knew about the party, and the defendant and the victim had a “heated” argument.

Afterwards, “everything was really cold . . . and distant” between the victim and the

defendant. The defendant and the victim left Eidson’s home on Monday morning.

After she learned of the victim’s murder, Eidson asked the defendant where she had

been that night. The defendant said that she had been out all night with “Chris” but had told

Perry Brasfield that she was at home outside smoking a cigarette because she did not want

Brasfield to know that she was with Chris. Eidson said that by the time of the victim’s

funeral, the defendant had been hospitalized but did attend the funeral. The defendant

remained hospitalized for about a month, and, upon her discharge, Eidson and other family

members rented an apartment for her. Eidson and her sister, Grace, paid all of the

defendant’s expenses until she was arrested. After the defendant’s arrest, Eidson asked her

where she was at the time of the victim’s murder. Eidson explained that she did so because

she was taking care of the defendant at the time and

would have gotten her lawyers or anything she needed if she had an alibi and

could prove to me where she was and who she was with when [the victim] was

murdered. And [the defendant] said, I don’t know. And I asked her again,

where were you during all of this? Who were you with? And [the defendant]

said, I don’t know.

Grace France, the victim’s sister, testified that the defendant called her between 6:00

and 7:00 a.m. on June 5, 2005, saying that “something terrible ha[d] happened” to the victim.

The victim’s neighbor, Sheila, then got on the telephone, screaming hysterically that the

victim had been stabbed to death. The next day, France flew to Memphis from her home in

Atlanta, Georgia, and asked the defendant to go with her to the police station “to try and

figure out what [was] going on with all this,” but the defendant refused to go. After France

later had left the police station, she called the defendant and offered to pick her up, but the

defendant insisted that she stay another day at Kathy Menkel’s house because her friends

were there. The following day, France picked up the defendant at Menkel’s house. Because

the defendant was wearing an oversized, long-sleeved gray polar fleece jacket and flip-flops,

France took her shopping for clothes and tennis shoes. The defendant told her that the victim

had bought her some tennis shoes while they were in Florida and that she wanted to get them

from the house, a request France thought was strange because the shoes were part of the

crime scene and had blood on them. While shopping, the defendant picked out only long-

sleeved shirts which, due to the hot weather, France thought was odd. After they finished

shopping, France and the defendant went to the hotel where France and Eidson were staying.

France described the defendant’s demeanor during this time as “[v]ery to herself. Didn’t

really want to be with us. She . . . would beg, can my friends come pick me up. Wanted to

be with her friends.” France later asked the defendant about the cut on her hand, and the

-14-

defendant told her she had burned her hand while cooking.

France said that, after the defendant was released from the hospital, she and Eidson

rented an apartment for her and paid all of her living expenses. The defendant told France

that she was not going to live in “a five to six hundred dollar a month apartment” because she

was used to living in a nice house, so the family spent more money to get her a nicer

apartment. France said the defendant still had access to the victim’s residence at that time.

Asked about the appearance of the victim’s house at the time of her death, France said that

the victim “had a lot of stuff and very little room to put it all in.” The victim also had

numerous items in four storage units.

On cross-examination, France acknowledged that some of the items in the storage

units belonged to the defendant’s father, who was killed about fifteen months before the

victim’s murder. France gave items of property belonging to the defendant to Bill Shelton,

a friend of the victim, since the defendant was incarcerated at that point. She acknowledged

that she had filed a civil lawsuit against the defendant. Asked about the victim’s relationship

with Mark Irvin, France said it was an “on again, off again[] relationship, that lacked

consistency.”

Eric Sherwood, the victim’s brother, testified that about two or three months before

the victim’s murder, the defendant admitted to him that she smoked marijuana. Sherwood

said that the victim hosted a birthday party for him on May 21 at her residence, and the

defendant arrived late for the party. The victim told the defendant that her “eyes look[ed]

glazed over” and that she “look[ed] high.” The victim wanted the defendant to take a drug

test. The defendant denied using any drugs, and the party resumed without further

discussion.

Sherwood said that he accompanied the victim and the defendant on their Memorial

Day weekend trip to Florida to visit his sister, Cindy Eidson. During the drive to Florida, the

victim told the defendant that her drug test indicated she had drugs in her system. The

defendant denied using any drugs, and the victim told her they would “deal with it” when

they returned to Memphis. While they were at Eidson’s house in Florida, the victim received

a telephone call from Joe Cocke stating that several people were having a party at her house

in Memphis. The victim was upset because there had been a party there six months earlier.

The defendant denied any knowledge of the party. The victim told the defendant that she

was “going to have to send [the defendant] off to either boarding school or military school,”

and the defendant replied that she would “just go off to the military.”

Sherwood said they left Eidson’s house on Monday, and as they were driving, the

victim received a phone call from one of her clients about selling a bond. The defendant

asked the victim about the number of bonds she sold and how much money she made. The

-15-

victim told the defendant that the defendant was on her life insurance policy and a 401(k)

policy and that she would be “well taken care of if something happened to [the victim].”

Sherwood said that shortly after the Florida trip, he had dinner with the victim and the

defendant at the victim’s residence. The victim and the defendant discussed the vehicles

from the estate of the defendant’s father. The victim told the defendant that if she was able

to sell the vehicles, the proceeds would be used for the defendant’s college education or, if

the defendant did not go to college, the proceeds would be used for back child support the

defendant’s father owed the victim. The defendant became upset and said, “[T]hat was my

father’s cars, and the money goes to me.”

Sherwood said that he went to the victim’s residence after he learned of her murder,

and en route he listened to his voicemail messages on his cellular telephone. The defendant

had left a message saying that “something [had] happened” and asking him to call her back.

He saw the defendant at the victim’s residence the morning of the murder but did not talk to

her. He said he visited the defendant twice a week while she was in the hospital and asked

her more than once if she had any ideas about the victim’s death, and the defendant

“basically just put her head down and wouldn’t say anything.” During one of his visits,

Sherwood asked the defendant about the wound on her hand. The defendant said she had cut

it on barbed wire while jumping a fence at the Italian Festival. During another visit about

a week later, Sherwood again asked the defendant about the wound, and the defendant told

him she had burned her hand on the stove. After the defendant’s discharge from the hospital,

Sherwood subsequently helped her move into an apartment at the complex where he worked.

He told the defendant that “she needed to try to find a job to keep her occupied,” and the

defendant replied, “I’ll just go into selling pills or whatever.” He saw three or four different

pills and a clear, hard plastic straw with white residue at the defendant’s apartment when he

was moving furniture.

Sherwood said that after the defendant’s arrest, he was at the victim’s house where

he found the victim’s wallet containing her driver’s license, social security card, bank debit

card, and a Focal Company card in the sunroom in a plastic bin.

On cross-examination, Sherwood said that the victim had dated Mark Irvin for about

three years before her death and that he had met Irvin on a few occasions. He acknowledged

that he, the victim, the defendant, and Irvin had keys to the victim’s residence. She

sometimes kept a spare key underneath a flower pot on the front porch.

Alexandra Kline testified by video deposition that she had been friends with the

defendant since eighth grade and that they both had attended Ridgeway High School. During

her junior year, the defendant started attending a different school and their friendship “kind

of died off.” However, about two weeks before the victim’s death, the defendant returned

to Ridgeway High School, and they started “hanging out again.”

-16-

Kline said she and the defendant went with others to the Italian Festival on the Friday

night before the victim’s death. She did not remember the defendant’s falling while at the

festival but acknowledged that she was not with the defendant the entire time. She and the

defendant spent most of the next day, Saturday, swimming at Koale Madison’s house. Kline

and the defendant left Madison’s house around 5:00 or 6:00 p.m., and the defendant drove

Kline home. Kline then went to a friend’s house and did not go out that night. She

acknowledged that the defendant called her several times that night wanting her to “come out

and party,” but she did not go. After she learned of the victim’s death, she went to the

victim’s house around noon. She did not notice an injury to the defendant that day but

sometime later noticed “a scar” on the defendant’s hand.

Kline recalled that after the victim’s funeral the defendant lived in an apartment in

Collierville. During the time the defendant lived in the apartment, Kline and the defendant

went to a party at Daniel Novak’s farm where over 100 people had gathered. She and the

defendant drank beer at the party. She had seen the defendant drink alcohol at her apartment

“maybe once” but acknowledged that the defendant’s apartment was “a place to drink.”

Sophie Cooley testified that she attended parties with the defendant during their

teenage years and that they often drank alcohol and used drugs. Cooley and the defendant

frequently smoked marijuana together at the defendant’s house when the victim was not

home, including in 2005. She had seen the defendant snort cocaine sometime in 2003, but

not in 2005.

Cooley said that on Saturday, June 4, 2005, she, Brooke Thompson, and Kirby

McDonald went to Carter Kobeck’s house “[t]o party, to hang out with friends.” The

defendant and her ex-boyfriend, Perry Brasfield, were also there. Cooley saw the defendant

take three Lortabs and explained that she knew the pills were Lortab because she had seen

them before. Cooley said she did not see a cut or bandage on the defendant’s hands that

night. The defendant was wearing a yellow tank top, knee-length white skirt, and gold

sandals. Shown the white skirt collected from the trunk area of the defendant’s vehicle,

Cooley said that it appeared to be the skirt the defendant was wearing at the party at

Kobeck’s house. Cooley said she and Thompson went to Perry Brasfield’s house later that

night in McDonald’s car and recalled sitting outside with Thompson, Brasfield, McDonald,

and Richard Raines. The defendant arrived later and was “more quiet than normal.” Cooley,

Raines, Thompson, and the defendant subsequently left Brasfield’s house in Raines’s car.

Raines drove the defendant back to Kobeck’s house to get her Jeep Grand Cherokee before

taking Cooley and Thompson to Cooley’s home. Brasfield and “Joey” came to Cooley’s

house sometime after 1:30 a.m. and stayed until about 5:30 a.m.

Cooley said that she learned of the victim’s murder later that morning and went to the

victim’s residence to comfort the defendant. The defendant was wearing a heavy, long-

-17-

sleeved jacket, which Cooley thought was odd since it was summer time. She talked to the

defendant while the defendant sat inside Regina Hunt’s car with the door open, and Cooley

noticed a small ziplock bag containing “[v]ery, very, many” Lortabs in the defendant’s

hands. Cooley later saw the defendant at Hunt’s house and described her demeanor at that

time as “[j]ust not very emotional. Just upset but not overly upset.” Cooley noticed a small,

white bandage on the defendant’s left hand.

McKenzie Koale Madison testified that he had known the defendant since middle

school and that she had dated his best friend, Perry Brasfield. He had seen the defendant use

drugs, including marijuana, mushrooms, and cocaine. In the year before the victim’s death,

Madison spent about every other day with the defendant. He said they smoked marijuana

together “[q]uite often.” He said that he, Brasfield, Joey McGoff, and eight to ten others

were at the party at the victim’s residence Memorial Day weekend 2005 when the victim and

the defendant were out of town. They sat in the backyard and smoked marijuana and drank

from about 4:00 p.m. until the police showed up. The defendant and Alexandra Kline came

to his house the following Saturday, June 4, and he did not see a cut on the defendant’s hand.

They all left Madison’s house about 3:00 p.m. and stopped by Kline’s house before driving

to the defendant’s residence. Upon seeing her mother’s car in the driveway at her house, the

defendant did not want to go home, so they went to Eastgate Shopping Center “to check out

some parking” for the Italian Festival. They returned to the defendant’s residence, and he

drank two or three beers while waiting for the defendant to get ready. He asked the

defendant for a glass of water which he left on the counter or in the sink. They left the

defendant’s residence in her Jeep Grand Cherokee at about 4:30 p.m. and went to Carter

Kobeck’s house which was “right around the corner from the Italian Festival.” They stayed

at Kobeck’s house for approximately three hours, and by then they “had a pretty nice buzz

because [they] had been sitting there drinking and smoking weed in the back yard.” He said

he and three or four others decided to walk to the Italian Festival, but the defendant did not

go with them. He later “bumped into” her at the festival and saw her again between 10:30

and 11:00 p.m. as he was leaving. He did not notice a cut or a bandage on her hand that

night.

Madison acknowledged that he had been arrested in September 2005 for criminal

trespass, resisting official detention, public intoxication, and disorderly conduct and that the

charges had been dismissed. He further acknowledged that he had been arrested again in

May 2007 for violation of financial law, reckless driving, DUI, and refusal to submit to a

blood-alcohol test and that he had been convicted of DUI from that case. Madison said that

his telephone number was 901-237-2530.

Kirby McDonald testified that she was a high school friend of the defendant and that

she and the defendant often smoked marijuana. She said that on Saturday night, June 4,

2005, she, the defendant, Sophie Cooley, Brooke Thompson, Koale Madison, Clark Schifani,

-18-

Brad Reedie, Richard Raines, and Perry Brasfield were “hanging out” at Carter Kobeck’s

house. She acknowledged that neither Kobeck nor his parents were home and that she and

her friends were drinking beer. She also took a fourth of a Xanax bar. McDonald said that

the defendant had gotten an acrylic French manicure that day and showed her nails to

McDonald. She took the defendant by the hand to admire her nails and did not see a cut on

them. The defendant was wearing a long, white skirt; a yellow tank top with gold beading;

and gold sandals with rhinestones that night. While at Kobeck’s house, McDonald, the

defendant, and other girls were discussing their mothers and when the defendant’s mother’s

name came up, the defendant said, “[M]y mom’s a bitch and she need[s] to go to hell.” The

defendant did not give any details, and McDonald thought “[i]t just seemed like a teenager

saying something about their mom, being in an argument with them, and being mad.”

McDonald said that everyone left Kobeck’s house to go to a party in Midtown after

Kobeck’s grandmother came and kicked them out of the house. The defendant did not ride

with McDonald, but she was in the caravan of cars that left to go to the party. The party had

already ended when they arrived, so McDonald, Cooley, and Thompson went to Perry

Brasfield’s house in Germantown, arriving there between 10:00 and 10:30 p.m. About ten

people from the group at Kobeck’s house also came to Brasfield’s house. The defendant

arrived at Brasfield’s house about twenty to thirty minutes later and had changed clothes,

wearing a dark denim skirt and black sandals. When McDonald left Brasfield’s house at

about 11:30 p.m., the defendant was still there.

Brooke Thompson testified that she rode with Kirby McDonald and Sophie Cooley

to Carter Kobeck’s house on the night of June 4, 2005, arriving there at approximately 7:30

p.m. The defendant arrived there in her vehicle about thirty minutes later, wearing a white

skirt and yellow top. Thompson identified a photograph taken on her cell phone at Kobeck’s

house depicting the defendant wearing a white skirt. Thompson drank beer that night but did

not see anyone using drugs. She estimated that about twenty-five to thirty people were

present at Kobeck’s house and they were there for one to two hours. The group then left to

go somewhere in Midtown, but some ended up at Perry Brasfield’s house, including

Thompson, McDonald, Cooley, and the defendant. Thompson estimated that she left

Brasfield’s house around midnight with Richard Raines, Cooley, and the defendant. Raines

took the defendant to her car at Kobeck’s house and then took Cooley and Thompson to

Cooley’s home. When they took the defendant to her car, she was wearing the same top she

had on earlier but had changed into a dark bluejean skirt with a ruffle at the bottom.

Thompson did not notice a cut on the defendant’s hands that night.

Thompson said that after she learned of the victim’s murder the following morning,

she went to Regina Hunt’s house, where about thirty teenagers had gathered. Cooley and the

defendant were there, and Thompson saw a cut on the defendant’s left hand toward the

thumb that was covered with a white bandage. She did not ask the defendant about the cut.

-19-

Joey McGoff testified that he was a high school friend of the defendant and had

visited her home about ten times. He had seen her use marijuana, Lortab, alcohol, and, once,

cocaine. He said that the defendant smoked marijuana “[p]retty frequently,” and he had

smoked it with her on multiple occasions. He acknowledged that he had taken Lortabs and

said he had seen the defendant take them at her house two or three times. He visited the

defendant at her apartment after the victim’s murder about ten times and drank alcohol and

smoked marijuana there with her. At the apartment, he also saw her take Lortabs one time.

McGoff said that he saw the defendant at Carter Kobeck’s house on Friday and

Saturday nights before the victim’s murder. He said that the defendant went to the Italian

Festival on Friday night, but he went elsewhere. He said that on Saturday night he and Clark

Schifani left Kobeck’s house to go to Midtown to look for a party but ended up at Brasfield’s

house. Also at Brasfield’s house were Koale Madison, the defendant, Brooke Thompson,

Kirby McDonald, and Richard Raines. He did not notice any injuries or bandages on the

defendant’s hands that night. Around 1:30 a.m., he and Brasfield went to Sophie Cooley’s

house to “hang out” with Cooley and Thompson. McGoff and Brasfield left Cooley’s house

at about 5:00 a.m. and returned to Brasfield’s house. He learned of the victim’s death at

about 8:00 a.m. and went to the victim’s residence where he saw the defendant but did not

talk to her. He identified a photograph depicting what the defendant was wearing when he

saw her that morning – a gray, pullover, long-sleeved sweater and light-colored denim skirt.

Caroline Giovannetti testified that she had known the defendant since seventh grade

and saw her at the Italian Festival on the Friday night before the victim’s death. The

defendant was with Alexandra Kline and two other girls and did not appear to be intoxicated.

Giovannetti next saw the defendant on the day of the victim’s murder when the defendant

asked her to keep her dog for a few days. As they were driving to Giovannetti’s house,

Giovannetti asked the defendant where she was during the time of the murder, and the

defendant responded that she “got dropped off at [her] car and . . . drove past [her] house at

midnight and saw that all the lights were out. And so, [the defendant] assumed [her] mom

was [a]sleep, so [she] just kept driving, and . . . went over to Eric Whitaker’s. And then,

came home around four or five and found [her] mom.” While at Giovannetti’s house, the

defendant took a shower and changed clothes. Giovannetti noticed a Band-Aid about two

inches long and one inch thick on the defendant’s hand. When she asked the defendant about

the injury on her hand, the defendant “just shrugged it off.” She and the defendant

subsequently went to Regina Hunt’s house where about twenty people had gathered.

Giovannetti said that she stayed at Hunt’s house until about 6:00 p.m. and, while there, the

defendant said she wanted to go to a movie or go shopping that night. She said there was a

discussion at Hunt’s house about the cut on the defendant’s hand, and the defendant said that

she had cut it on a beer bottle at the Italian Festival and that she was drunk at the time.

-20-

Ronald Perryman Brasfield testified that his friends called him “Perry” and that the

defendant was his ex-girlfriend. He said that he and the defendant used alcohol and drugs

together “[m]any” times while they were dating. He snorted cocaine for the first time with

the defendant and had used it “a few times” with her at her house and at parties. In the year

preceding the victim’s murder, Brasfield saw the defendant “most every day, every other

day,” and they used marijuana and alcohol frequently during that time. He saw the defendant

use Xanax “[v]ery rarely” before the victim’s death. He visited the defendant after she

moved into her apartment “a dozen times,” and saw marijuana, cocaine, and Lortab being

used. He said he had two telephone numbers at the time of the victim’s murder, one of which

was 901-xxx-5xxx.

Brasfield said that the victim gave him a key to her house so he could feed the dog and

water the plants while she and the defendant were in Florida the Memorial Day weekend

before the victim’s death. He admitted that he hosted a party at the victim’s house on

Saturday of that weekend but said no one went inside the house that evening. He called the

victim and the defendant while they were in Florida to apologize. When the victim and the

defendant returned home, Brasfield immediately gave the key “probably” to the defendant

because the victim “wasn’t too happy with [him].”

Brasfield said that on the night of June 4, 2005, he, the defendant, Eric Whitaker,

Koale Madison, Joey McGoff, and others were partying at Carter Kobeck’s house. Brasfield

and the defendant had “[a] bad conversation that went sour” about him being there with

another girl, and the defendant slapped him in the face. The party ended when Kobeck’s

grandmother arrived. Brasfield, the defendant, Joey McGoff, Sophie Cooley, Brooke

Thompson, Kirby McDonald, and others then left in multiple vehicles to find another party

but ended up at Brasfield’s house where they sat around the swimming pool and drank. The

defendant left Brasfield’s house around midnight, saying “she had to get to her house.”

Everyone else left also except McGoff. The defendant called Brasfield shortly after she left,

wanting to talk about them getting back together. He also received a text message from her

around 1:00 a.m., saying that she wanted to get back together. Brasfield denied that the

defendant called and asked him about a purse or wallet. Brasfield and McGoff subsequently

went to Sophie Cooley’s house and Brooke Thompson was there. After staying at Cooley’s

house a few hours, Brasfield and McGoff returned to Brasfield’s house. The next morning,

he learned of the victim’s murder and went to the victim’s house to see the defendant. The

defendant “seemed all right” and was walking her dog. He noticed a bandage on the

defendant’s hand that had not been there the night before. The defendant told him she had

cut her hand on some broken glass inside the house while chasing her cat. Brasfield said

that, after the defendant was arrested, he asked her what she was doing at the time of the

victim’s murder, but the defendant did not answer him.

-21-

Clark Schifani testified that he and fifteen to twenty others, including the defendant,

were partying at Carter Kobeck’s house on the night of June 4, 2005. Kobeck’s grandmother

arrived and broke up the party. Schifani left with Joey McGoff to find a party in Midtown

but ended up at Brasfield’s house. He left Brasfield’s house at approximately 11:15 p.m. and

went home. The defendant was still at Brasfield’s house when he left. He learned of the

victim’s murder the following morning. He said that his telephone number at that time was

901-xxx-2xxx and that he received a call from the victim’s house telephone line at 12:59 a.m.

and a missed call from the defendant’s cell phone at 1:09 a.m.

James Spearman, a security manager and custodian of records for AT&T, testified

that a phone call was placed from the victim’s house telephone to Clark Schifani’s phone

number on June 5, 2005 at 12:59 a.m. and that the call lasted 5.8 seconds.

Susan Johnson, the custodian of records for T-Mobile, testified that the account for

cellular telephone number 901-xxx-4xxx was in the victim’s name, but she did not know who

the user was. The records for the early morning hours of June 5, 2005, reflected outbound

phone calls at 1:08 a.m and 3:18 a.m., an outbound text message at 1:13 a.m., an incoming

text message at 2:11 a.m., and an outbound text message at 3:34 a.m.

John Eric Whitaker testified that he and a friend, Hunter Dean, were at his house

during the early morning hours of June 5, 2005, and that he did not go out the previous

evening because he was “grounded.” The defendant called him around 3:00 or 4:00 a.m. on

June 5, wanting “to come over and hang out.” The defendant arrived at his house at about

4:30 a.m. as he was leaving to take Dean to his house down the street. The defendant was

in her Jeep Cherokee at the bottom of the driveway, and he rolled down his car window to

ask her if she wanted to ride with him to take Dean home. The defendant declined and said

that she was “going to go meet up with some people.” Whitaker estimated that the defendant

was at his house two or three minutes.

Andrew Hammack testified that in June 2005 he and the defendant were “friends with

benefits.” He said that he talked to the defendant “[b]etween ten and twelve”3 on the night

of June 4 and that the defendant wanted him to meet her at her house, but he did not do so.

He talked to the defendant again around 4:00 a.m. when she was on her way back from

“Eric’s” house, and the defendant wanted him to meet her at her house, but he did not go.

He said that he received a text message from the defendant at about 5:00 a.m., saying she

wanted to talk to him. After learning of the victim’s death, Hammack saw the defendant at

Regina Hunt’s house. Hammack said he gave two statements to the police, explaining that

he gave the second statement a few days after the first because he had his “nights mixed up,

3

Later in his testimony, Hammack said that his first conversation with the defendant occurred

“between twelve and two.”

-22-

so I think the second statement was the more clear statement.”

Hammack identified a pair of New Balance shoes but said they belonged to Garrett

Perryman who was living with him and others at the time of the victim’s murder. He said

that he wore the shoes when he came to the police station to give his first statement on June

7, 2005. Hammack said that a group of his friends later brought the shoes to the police

station.

On cross-examination, Hammack admitted that he was intoxicated the night of June

4 and said that he attended a party with Ryan Grisham. Grisham took him home between

11:00 and 11:30 p.m., and he then drove Bucky Schultz to his house on White Station Road

so Schultz could meet his 12:30 a.m. curfew. He stayed at Schultz’ house for about two

hours. He acknowledged that, in his first statement, he said he talked to the defendant

between 11:00 p.m. and 1:00 a.m. when she was on her way home from a party and told him

to meet her at her house in fifteen minutes. He denied going to the defendant’s house.

On redirect examination, when asked if the defendant’s cell phone records reflected

that the defendant called him at 4:47 a.m., 5:00 a.m., 5:01a.m., 5:02 a.m., 5:03 a.m., and 5:06

a.m. on June 5, Hammack said that he did not remember if he talked to her all of those times

and that he was probably asleep.

Genevieve Dix, an attorney, testified that she had known the victim, who was her best

friend, since 1993. After learning of the victim’s death on the morning of Sunday, June 5,

2005, she went to the victim’s residence shortly before 8:00 a.m. She saw the defendant

sitting outside in front of the house and noticed that she had on “a very odd outfit.” Dix

explained that the defendant, who usually “dressed in really lovely clothes, . . . whatever was

fashionable,” was wearing a gray, long-sleeved sweatshirt, a denim mini-skirt, and gray New

Balance tennis shoes. She hugged the defendant who “just stood there. She had her

sweatshirt pulled down . . . to her knuckles and she had her arms straight at her side.” Dix

noticed that the defendant did not smell like smoke even though she was a smoker and was

not wearing makeup even though she normally had on heavy eye makeup. The defendant

told her that she had gotten home about 4:00 a.m. but did not say anything else.

Dix said that as she was making telephone calls on the sidewalk, a detective

approached her and told her that the defendant wanted to talk to her. She told the detective

that she was an attorney, but she was not there in that capacity; she was there because the

victim was her best friend. The police wanted the defendant to sign a consent to search, but

the defendant wanted to talk to Dix. Dix and the defendant walked down the driveway

fifteen to twenty feet, and the defendant asked her about the consent to search form. Dix told

the defendant, “I don’t know what it is. I do not practice criminal law. I’ve never seen a

consent to search form before in my life. I can’t explain it to you. I don’t know. And I don’t

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represent you.” The defendant asked Dix five or six times if the police could “get in [her]

car,” and Dix told her she did not know. She told the defendant, “[W]hat I can tell you is,

sooner or later, they’re going to get into anything, if they have to go downtown and get a

search warrant, I’m sure, if you don’t cooperate, they’re going to go get a search warrant, but

I don’t know what they’re planning on doing. Quite frankly, I don’t know why they’re not

already in there.” Her conversation with the defendant lasted about two minutes, and the

defendant decided to sign the consent form. Dix also signed the form “as a witness only.”

Dix said that the defendant was “an extremely smart, intelligent” person and had no trouble

understanding her that morning. Dix said that it “was clear that [the defendant] was

concerned about them getting in her Jeep Cherokee,” and she repeatedly asked Dix about it.

Dix told the defendant she did not have to sign anything, but the police would eventually get

into anything they wanted. She asked the defendant what was in her car that she was so

worried about, and the defendant told her she had “a bong pipe” in the car.

Dix said that one to two hours later she had another conversation with the defendant

after Perry Brasfield arrived. She told the defendant that Brasfield had said she called him

from her house at about 12:30 or 1:00 a.m. Dix reminded the defendant she had told Dix

that she did not get home until 4:00 a.m. The defendant said that the victim had called her

and told her to come home, but she knew the victim was probably asleep and when she drove

by the house, the lights were off. The defendant kept driving and went to a boy’s house

where she “smoked pot” with him in the driveway until 4:00 a.m. and then went home.

On cross-examination, Dix acknowledged that the victim had been dating Mark Irvin

but said their relationship was “kind of on an iffy footing” at the time of the victim’s death.

Patty Masterson testified that she had known the victim for ten or twelve years and

that her daughter and the defendant were childhood friends. After learning of the victim’s

death on June 5, 2005, she went to the victim’s residence at about 9:30 a.m. The defendant

was not there when she arrived, but Masterson saw her walking down the sidewalk about

thirty minutes later. She hugged the defendant, and the defendant asked her, “[I]s all of this

going to be on the news?” She noticed that the defendant was wearing a gray, long-sleeved

sweatshirt with a white, long-sleeved shirt underneath. She told the defendant that she must

be hot in those two long-sleeved shirts because the weather was “excruciatingly hot” that

morning. The defendant then took off the top sweatshirt and threw it on the ground.

Masterson picked up the sweatshirt and gave it to a detective.

Regina Hunt testified that she attended church with the victim and the defendant, who

had attended the same school as her children in 2004-2005. Hunt owned a sandwich shop

in 2005, and the victim and defendant often came there. In 2005, Hunt observed the

defendant talk to the victim “very disrespectful, ugly” on numerous occasions. Hunt said that

the defendant came to her shop during school hours at least once a week, and she related a

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conversation she had with the defendant about a week before the victim’s murder. The

defendant told Hunt in the presence of Perry Brasfield and Clark Schifani about the party that

Brasfield had at the victim’s house while they were out of town and that the victim was

considering getting a restraining order against Brasfield and was “drug testing” her. The

defendant was angry.

Hunt said that after she learned of the victim’s murder she went to the victim’s

residence around 8:00 a.m. She talked to the defendant who told her that she felt

uncomfortable because several of the victim’s friends were in the yard across the street and

that she wanted to leave. Hunt drove the defendant to her sandwich shop, but when they

pulled up, they saw Brasfield, Schifani, and Joey McGoff inside and the defendant

immediately told Hunt to leave because she did not want to see them. Hunt drove to the back

of her shop and took the defendant inside to her office and made her a sandwich. They then

returned to the victim’s residence where the defendant got a bag out of her Jeep. Hunt drove

the defendant to Caroline Giovannetti’s house because the defendant wanted to take a

shower. Joey McGoff was there, and he and the defendant “went in the back.” When they

returned, the defendant’s hair was wet and they both smelled like marijuana. Hunt, the

defendant, Giovannetti, and Brooke Thompson left to go to Hunt’s house and the defendant

asked her to stop at Memorial Park Cemetery so she could visit the gravesite of her friend,

Anna Menkel. Hunt said that the defendant cried at the gravesite but had not been crying

when Hunt arrived at the victim’s residence. They then went to Hunt’s house, and the

defendant told her she wanted to have a party. Hunt told her that was not a good idea, and

the defendant then said she wanted to go to a movie. Hunt told her that they were not going

anywhere, and the defendant walked away to another part of the house. Other friends of the

defendant came to Hunt’s house and stayed until about 11:00 p.m. Hunt acknowledged that

she looked through the defendant’s purse and found a prescription bottle in the name of

“Robert something.” The bottle also had “Concerta” on it and contained twelve to twenty

tablets “with little speckles on them.” When Hunt confronted the defendant about the

prescription bottle, the defendant told her that it was a prescription for Lortab that her doctor

had prescribed for her. Hunt told the defendant “she needed to quit filling [her] full of crap

and tell [her] . . . where she got them.” The defendant finally told her they were drugs she

had gotten from someone at Ridgeway High School. Hunt asked the defendant about the

bandage on her hand, and the defendant told her she had cut it on a beer bottle at the Italian

Festival on Saturday night.

Hunt said that when she asked the defendant about her activities on Saturday, the

defendant told her

that she was at home and she was going out that night and then she said she

snuck out. She gave me two different stories. . . . That she had snuck out and

then the other conversation was that she had ridden by the house and decided

-25-

not to go home because she had talked to her mom and she was already going

to bed.

Hunt said that the defendant “got very defensive when [Hunt] corrected her that her story

was different.” She asked the defendant what time she had gotten home, and the defendant

said she did not know.

Hunt said the defendant received a phone call from the police department, after which

she asked Hunt if she was a suspect. The defendant told Hunt, “I hug my mother, I touch my

mother. I’m all over my mother.” Hunt told the defendant not to worry because the police

would find out who killed her mother, and the defendant “very cold[ly]” replied that the

police did not find out who had killed her father. The defendant then told Hunt that she

wanted to go tanning or shopping, but Hunt refused to take her. The defendant called Kathy

Menkel, Anna Menkel’s mother, who came and picked her up. Hunt later picked up the

defendant from Menkel’s house and took her to the hotel where the victim’s sisters were

staying. En route to the hotel, Hunt again asked the defendant about the cut on her hand.

The defendant told her that she had cut her hand while trying to get her cat out of the garage.

When Hunt told the defendant that was a different story from what she had told her

previously, the defendant “got defensive . . . and started saying that she wanted to kill

herself.” Hunt subsequently visited the defendant at the hospital, and the defendant wanted

her to contact Perry Brasfield, but she refused to do so. The defendant told Hunt that she had

talked to her aunts about getting an apartment, but the “big issue was always money. That

what [the defendant] wanted and what [the defendant’s aunts] were willing to give her as far

as money was not up to [the defendant’s] standards.” The defendant told Hunt on multiple

occasions that her aunts were “keeping her money from her. That the cars were hers, the

money was hers.”

Rebecca Robertson testified that she was a friend of the victim’s brother, Eric

Sherwood, and that they worked at the same apartment complex. She said that she met the

defendant for the first time on the day of the victim’s funeral. The defendant stayed with

Robertson and her daughter for about six weeks after the victim’s death, and Robertson

noticed a cut on the defendant’s hand. When she asked the defendant about it, the defendant

told her she had cut her hand at the Italian Festival and “wouldn’t say anything else about it.”

Robertson recalled a day toward the end of June 2005 when the defendant was visiting with

her in her office and the police arrived in response to a problem with one of the residents at

the apartment complex. Upon seeing the police, the defendant asked Robertson, “[A]re they

here for me?” Robertson thought the defendant’s question was “kind of unnerving a little bit

the way that she spoke. And she seemed really nervous. Very uncomfortable.” The

defendant’s family subsequently rented an apartment for her at Robertson’s apartment

complex, but, after about a month, the defendant was evicted because of “[n]oise complaints”

and having a pet on the property.

-26-

Mark Irvin, a pastor with the United Methodist Church, testified that he dated the

victim from July 2001 until about a month before her death. During the course of their

relationship, there were times when they had differences of opinion “maybe an average of

about every five months, somebody would say something that would hurt the other person’s

feelings, . . . [b]ut there was never any kind of violence. And [they] would take a time apart.

[They] would think about it. And [they] would reconnect.” He visited the victim in her

home “a lot” and sometimes spent the night. He acknowledged that he had a key to her

house and still had it at the time of her death. He said it was not unusual for the victim to

sleep in the nude in the summer months. He and the victim often golfed together, and he

identified his pitching wedge which had been missing for two or three months prior to the

victim’s death. He explained that his club had accidentally been put in the victim’s golf bag.

Irvin said that he moved from Memphis in 2004 and was living in Jackson in 2005.

He said that, about a month before the victim’s death, he took her to a Memphis restaurant

where they discussed their relationship. The victim came to Jackson a day or two later to

again discuss their relationship and that was the last time Irvin saw her. He said that the

victim called him on June 4, 2005, wanting to take him out to dinner for his birthday in

Jackson the next day. However, he was not ready to reconcile with the victim, so she was

not going to come to Jackson. Irvin said that his conversation with the victim ended on

friendly terms other than she was disappointed. He called the victim’s cell phone later that

night between 11:30 p.m. and midnight but realized it was too late to call and hung up. He

learned of the victim’s murder the next day and came to Memphis late that afternoon.

On cross-examination, Irvin denied that he and the victim ever had any violent

arguments. He acknowledged that he and the victim occasionally had sex at her home but

said that the defendant was “very seldom” present on those occasions.

Keith McDonald testified that he worked as a sales clerk at the Walgreens on the

corner of Poplar Avenue and Massey Road on June 5, 2005. He identified photographs,

including one of himself, taken from the store’s security camera that morning. He recalled

that the female customer shown in the video at about 4:00 a.m. checked out at his register

and that she purchased medical supplies, including bandage tape, hydrogen peroxide, and

Liquid Skin. The customer asked McDonald for a paper towel, and he gave her one.

Deborah Walls, an assistant manager at the Walgreens located at Poplar Avenue and

Massey Road, testified that she was contacted by Sergeant Merritt to see if she could retrieve

a receipt for some products purchased between 12:00 a.m. and 5:00 a.m. on June 5, 2005.

Because the store had an electronic journal, Walls was able to search the items Sergeant

Merritt brought to her by entering the UPC code which would then bring up a receipt if the

items were purchased at that store. She retrieved the receipt which indicated that all of the

items were purchased at the same time, at the same register, and in the same transaction at

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the store. She identified a photograph of the items and the store receipt reflecting the total

price of the transaction as $22.55. The transaction was paid with $40 cash. She then viewed

the security videotape for that time period and gave the tape and receipt to Sergeant Merritt.

Louie Nelson, Jr., the director of safety and security for MIC Burger King, testified

that he was also the security manager for four All-In-One convenience stores in Memphis

and that he was contacted by the Memphis Police Department regarding security video from

the All-In-One store located at 6646 Poplar Avenue. The video reflected that the defendant

purchased gas at the store on the morning of June 5, 2005. According to the receipt for the

transaction, the gas was purchased at 4:20 a.m.

The defendant elected not to testify and rested her case without presenting any proof.

ANALYSIS

On appeal, the defendant raises twelve issues, several of which we have consolidated

because of their similarity.

I. Representation by Counsel/Search and Seizure Issues

A. Testimony of Genevieve Dix

The defendant argues that the conversation at the crime scene between her and Ms.

Dix, who is an attorney, was protected by the attorney-client privilege and that the trial court

erred in allowing Ms. Dix to tell the jury of her profession. The State responds that the trial

court correctly determined that Ms. Dix was not acting as the defendant’s attorney and, thus,

their conversation was not privileged.

Previously, we have set out in detail the trial testimony of Ms. Dix. Regarding this

issue, the trial court provided a lengthy analysis, which we will set out in part, as to why the

attorney-client privilege did not apply to the conversation between Ms. Dix and the

defendant:

We have two conflicting stories here. We have [the defendant] saying

that she walked over to her and said I want to talk to you as my attorney.

M[s.] Dix denies this. She says that when she made the scene, the

police, before she could talk to [the defendant], . . . several police talked to her,

why are you here, and in what capacity.

She denied being her attorney from the start. That when [the defendant]

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started to talk to her, she told her immediately that I’m not your attorney.

When she showed her the form, she said, . . . I’m not your attorney, I’m

not a criminal lawyer. I don’t know anything about that form, and I’m not

acting as your lawyer.

And I find that [the defendant’s] credibility is lacking in this instance.

And that [the defendant] went to [Ms. Dix] and talked to her as a friend, but

did not tell her that she was talking to her as her attorney.

....

And I find as a matter of fact that [the defendant] was told by [Ms. Dix]

before she made these statements, I’m not acting as your lawyer.

Therefore, any confidence that [the defendant] had in M[s.] Dix’s not

communicating her oral statements to M[s.] Dix, [sic] would be confidences

as a family friend, not as a lawyer.

....

But I find that M[s.] Dix in giving this testimony will not be disclosing

a communication made to her as [an] attorney, as such, during the pendency

of the suit, before or afterwards, in this case, the homicide case.

So, for that reason, I’m going to allow her to testify. I find that this was

not a privileged communication, because before [the defendant] made these

statements, she was informed by M[s.] Dix, just as M[s.] Dix had informed

everybody else on the scene before talking to [the defendant] that she was not

there as an attorney. And that [the defendant] knew that when she discussed

it with her.

As to this finding, the defendant argues on appeal that the trial court erred in

concluding that the communications she had with Ms. Dix were personal rather than

professional. The defendant sets out as “undisputed facts” the defendant’s asking to “speak

to the sole lawyer present asking only legal questions pertaining to her rights and the legal

form provided by police.” Further, argues the defendant, “[h]er questions clearly reveal she

sought legal advice, confided in Dix to do so, and was never advised by Dix that these

communications were not protected by confidentiality.” To these arguments, the State

responds that Ms. Dix informed both the defendant, as well as officers at the crime scene,

that she did not represent the defendant, and, thus, the court correctly determined that she

-29-

could testify as to the defendant’s statements to her.

Tennessee Code Annotated section 23-3-105 codifies the attorney-client privilege:

No attorney, solicitor or counselor shall be permitted, in giving

testimony against a client or person who consulted the attorney, solicitor or

counselor professionally, to disclose any communication made to the attorney,

solicitor or counselor as such by such person during the pendency of the suit,

before or afterward, to the person’s injury.

In making its determination that the defendant and Ms. Dix did not have an attorney-

client relationship, the trial court found that there were “two conflicting stories” and credited

the testimony of Ms. Dix. To assess this ruling, we will review the relevant testimony.

During a jury-out hearing, the defendant testified that she asked Ms. Dix “if [she]

should sign” the forms and was told that if she “had nothing to hide, then sign it.” The

defendant explained why she wanted to talk with Ms. Dix about the consent forms: “I picked

her because . . . she was an attorney. I knew she was an attorney and I kind of – you know,

I knew that she wouldn’t tell me to sign something if I shouldn’t sign it. You know, I trusted

her. So, that’s why I picked her.” On cross-examination, the defendant denied that Ms. Dix

told her that she was not acting as her attorney.

Ms. Dix testified that she came to the scene that morning after receiving information

that the victim had been killed. She told a police officer dressed in a suit that she had come

because she was a friend of the victim and not in capacity as a lawyer. She said that she

made this “clear to the officer and [she] made it clear about fifteen other times that day

whenever anybody would ask [her] anything, including [the defendant].” Ms. Dix explained

in detail her initial conversations in this regard with the defendant:

Well, when that question came up, when the officer came over and said,

who are you? And I told him. Then he took me over to where she was and he

had handed her the consent form. And he said, she wants to talk to you about

this. I said, I don’t represent her. I’m not a criminal attorney. What is that?

And he said, that’s a consent to search. I said, I’ve never even seen one. I

don’t do criminal law. He said, well, she wants to talk to you. And so, I

walked with [the defendant] over to the driveway area and I said . . . I can’t

represent you. I’m not a criminal attorney. I’ve never seen one of these

consent forms in my life. She said, what does it mean? I said, I cannot tell

you . . . . I said, you can read it. I can read it. And she said, well, you know,

what can they do? I said, . . . they want to search the house. I said, but you

know, I can’t tell you anything beyond that. I mean, clear, [sic] your mother

-30-

is lying dead in there not forty feet from where we are, and don’t you want to

help them? And she said, well, can they get in my car? And I said, . . . I can’t

tell you that. I don’t know whether they can or not. I’ve already told you, I

don’t represent you. I haven’t got any idea what this form means. I don’t

know whether it extends to the grounds or the cars or whatever. I said, I don’t

know any of that. And she just kept saying, can they get in my car[?] And I

kept saying, . . . I don’t know. And I said, . . . what in the world’s in your car

that you’re so worried about it and your mother’s lying dead in there and they

need to investigate?

Ms. Dix testified that she never told the defendant she was acting as her attorney and

that after the defendant signed a consent form, which an officer then handed to her, she told

him that she was “not going to sign it. I’m not her attorney. I don’t represent her.”

However, Ms. Dix did agree to sign the form as a witness.

In resolving conflicts between the testimony of Ms. Dix and the defendant, the trial

court accredited that of Ms. Dix. The court concluded, as a matter of fact, “that [the

defendant] was told by [Ms. Dix] before she made these statements, I’m not acting as your

lawyer.”

In her reply brief, the defendant argues that “the attorney-client privilege may attach

even when legal representation is declined by the attorney, such that no attorney-client

relationship is formed.” In support of this argument, the defense relies upon Grace v. Center

for Auto Safety, 72 F.3d 1236, 1242 (6th Cir. 1996), for the statement that, as to whether an

attorney-client relationship exists, “the focus is on the client’s subjective belief that he is

consulting a lawyer in the lawyer’s professional capacity and his intent is to seek professional

legal advice.” However, in that case, there had been a lengthy course of dealing between the

party and the lawyer, during which the party had been “regularly seeking and obtaining

professional legal advice.” Id. In the present appeal, however, the only dealings between

the defendant and Ms. Dix were at the crime scene. According to the testimony of Ms. Dix,

she made it plain to the defendant that she had no experience in criminal law, had never

before seen consent to search forms, and was there as a friend of the victim and not a lawyer

for the defendant. The court accredited the testimony of Ms. Dix as to her advising the

defendant that she was not acting as her counsel, and the record supports this determination.

The defendant also argues that the trial court erred in allowing Ms. Dix to testify that

she was an attorney, asserting that this information enhanced her credibility with the jury.

It is not unusual for a witness to be asked about his or her employment or professional status.

In all such cases, it is up to the jury to determine whether that status bears on the credibility

of the witness. It is, therefore, relevant evidence. Thus, we agree with the trial court’s ruling

that the information as to her profession was admissible to place her testimony into the

-31-

proper context.

B. Motions to Suppress/Search and Seizure

The defendant filed motions to suppress evidence obtained as the result of searches

of the defendant’s residence on June 5, 2005, and her vehicle on June 19, 2005, arguing that

her signing the “consent to the search was predicated upon her having advice of ‘her

attorney.’” Since the trial court concluded that Ms. Dix and the defendant did not have an

attorney-client relationship, the defendant’s consent to the search was not voluntary,

according to her argument. The State responds that the defendant gave valid consent to both

searches and, additionally, that she did not establish she had standing to object to the search

of the vehicle.

In reviewing a trial court’s ruling on a motion to suppress evidence, “[q]uestions of

credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts

in the evidence are matters entrusted to the trial judge as the trier of fact.” State v. Odom,

928 S.W.2d 18, 23 (Tenn. 1996). The party prevailing at the suppression hearing is afforded

the “strongest legitimate view of the evidence and all reasonable and legitimate inferences

that may be drawn from that evidence.” State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998).

The findings of a trial court in a suppression hearing are upheld unless the evidence

preponderates against those findings. See id. However, the application of the law to the

facts found by the trial court is a question of law and is reviewed de novo. See State v.

Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

1. June 5, 2005 Search of the Defendant’s Residence

As we have set out, Sergeant Merritt, after first viewing the victim’s body inside the

residence, advised the defendant that he either needed her consent or a search warrant to

search the residence. The defendant was then presented with a consent to search form and

asked that Sergeant Merritt inform Ms. Dix that the defendant wished to speak with her.

When he did as the defendant requested, Ms. Dix responded, “I am an attorney. However,

I am not here in that capacity. [The victim] is my best friend and I am here because of that.”

The two then returned to the defendant, and Ms. Dix stated, “I don’t represent her. I’m not

a criminal attorney.” The defendant and Ms. Dix walked a few feet away, and Ms. Dix

advised the defendant, “I can’t represent you. I’m not a criminal attorney. I’ve never seen

one of these consent forms in my life.” Ms. Dix was asked by the defendant if the police

could search her car and replied, “I’ve already told you, I don’t represent you. I haven’t got

any idea what this form means. I don’t know whether it extends to the grounds or the cars

or whatever. . . . I don’t know any of that.” The defendant said that she was going to sign

the form, and she and Ms. Dix then returned to Sergeant Merritt. The defendant signed the

form, which Sergeant Merritt handed to Ms. Dix for her signature. However, Ms. Dix said,

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in the presence of the defendant, “I’m not her attorney. I don’t represent her.”

The consent to search form signed by the defendant reads as follows:

I, Nora [sic] Jackson, having been informed of my constitutional right

not to have a search made of the premises hereinafter mentioned without a

search warrant and of my right to refuse to consent to such a search, hereby

authorize Sgt. W.D. Merritt and Sgt. T. Helldorfer[,] police officers Mphs

Police Dept.[,] to conduct a complete search of my premises located at 5001

New Haven.

This written permission is being given by me to the above named

persons voluntarily and without threats or promises of any kind.

Noura Jackson 06/05/05

(Signed) 7:51 a.m.

WITNESSES:

Genevieve M. Dix

Sgt. W.D. Merritt

[Illegible signature of third witness]

The trial court determined that the defendant had consented to the search of her

mother’s residence:

I understand there was some issue about Ms. Di[x] being present or not

present, but I’ve got no proof before me that this was anything other than a

voluntary consent to search with a [d]efendant who is an adult, who was not

under any mental impairment or intoxication that I can see, so I find that the

consent to search is valid and was freely given, and so I’m not going to

suppress any of the items seized under that consent to search.

On appeal, the defendant makes several claims as to these findings. She argues that

the court erroneously concluded that the relationship between her and Ms. Dix was

“personal,” rather than “professional,” and in finding, subsequently, that “all communications

were subject to disclosure.” Additionally, the defendant argues that, in relating her

conversation with the defendant, Ms. Dix “made negative inferences to the jury directly

referring to [d]efendant’s effort to seek legal advice before executing a police consent form

[which] subverted [d]efendant’s presumption of innocence and adversely reflected on her for

exercising her constitutional right to legal counsel.”

Previously, we have reviewed and agreed with the trial court’s ruling that Ms. Dix was

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not functioning as an attorney in her conversations with the defendant. While the defendant

argues on appeal that she would not have signed the consent to search unless she believed

that Ms. Dix was functioning as her attorney, the trial court accredited the contrary testimony

of Ms. Dix. As we have set out, the court found that, when the defendant signed the consent

to search the residence, she was not under any mental impairment or intoxication and her

consent was freely given. We conclude that the record supports these determinations by the

trial court.

2. June 19, 2005 Search of the Defendant’s Vehicle

The defendant also filed a motion to suppress evidence obtained as the result of a June

19, 2005 search of a Jeep Grand Cherokee, which was parked in the driveway of the victim’s

home. She asserts that the information which was the basis for the affidavit supporting the

warrant resulted from an illegal view of the vehicle obtained by Sergeant Helldorfer. As to

this claim, the State responds that the defendant failed to prove she had a possessory interest

in the vehicle and, as a result, did not have standing to challenge the search and failed to

show any infirmities in the search warrant. We will review these claims.

The consent to search form for the vehicle, signed by the defendant and bearing the

date and time of June 5, 2005, at 10:50 a.m., provided as follows:

I, Nora [sic] Jackson, having been informed of my constitutional right

not to have a search made of the vehicle hereinafter mentioned without a

search warrant and of my right to refuse to consent to such a search, hereby

authorize investigators of Homicide – MPD to conduct a complete search of

my vehicle, a 1997-98 Jeep Cherokee – silver, tag TN DU9486, VIN

___________ located at 5001 New Haven.

This written permission is being given by me to the above named

persons voluntarily and without threats or promises of any kind.

WITNESSES:

Sgt. C.V. Justice

Subsequently, on June 17, 2005, Sergeant Merritt obtained a search warrant for “a

1998 gray 4-door Jeep Grand Cherokee bearing Tennessee tag number DU9486 and VIN

1J4FX58SXWC110113, registered to Jennifer Jackson, at 5001 New Haven in Memphis,

TN.”

Overruling the motion to suppress, the trial court concluded that the defendant did not

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have standing to contest the search of the vehicle:

I’ve got no proof before me that it was titled to [the defendant] or that

she at all had a possessory interest in this automobile. I have no proof before

me that [the defendant] owned the home at 5001, whatever the address is, that

it was her property. So [the defendant] does not have standing to contest an

officer walking up the driveway of a woman’s property who has been

murdered when the police look in the car through the window. She also has

no standing . . . to contest any property seized from that vehicle because I that

no proof that she the vehicle at all [sic].

Accordingly, the trial court found that the search warrant for the vehicle was valid,

properly executed, and, additionally, that the defendant did not have standing to object to the

search.

One who challenges the reasonableness of a search or seizure has the initial burden

of establishing a legitimate expectation of privacy in the place or thing to be searched. State

v. Oody, 823 S.W.2d 554, 560 (Tenn. Crim. App. 1991). One who does not have such an

expectation of privacy lacks “standing” to challenge the search. State v. Patterson, 966

S.W.2d 435, 441 n.5 (Tenn. Crim. App. 1997).

The testimony was that the vehicle was registered to the victim and parked in the

driveway of the residence owned by the victim. We note that on appeal the defendant has

not contested the trial court’s finding that she did not establish that she had standing to object

to the search of the vehicle registered to the victim. Accordingly, we conclude that the

evidence supports the determination by the trial court that the defendant did not establish that

she had standing to object to the search of the vehicle.

II. Evidence of Motive

Several of the defendant’s issues on appeal are based upon the trial court’s rulings that

certain evidence was admissible to establish the defendant’s motive to kill the victim.

A. Testimony Regarding the Defendant’s Use of “Drugs”

The defendant asserts that the trial court erred in allowing lay witnesses to testify as

to “drugs” in her possession. The State responds that the trial court correctly allowed this

testimony, based upon the witnesses’ personal knowledge, admissions by the defendant or

statements overheard by the witnesses, because it was relevant to establish a motive for the

killing of the victim. In her reply brief, the defendant refines her argument, asserting that,

as to this testimony, the court erred in allowing lay witnesses’ “identifying narcotics and

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attributing their use, possession and delivery to [d]efendant absent proper factual foundations

as predicates or pharmacological expertise.”

We previously have set out in detail the testimony of the witnesses at trial and will

summarize briefly their testimony regarding the defendant’s use of drugs.

Sophie Cooley testified that she had seen the defendant use marijuana, cocaine, and

Lortab. Eric Sherwood testified that the defendant told him she had smoked marijuana

before and after the victim’s death. Koale Madison testified that he had seen the defendant

use cocaine, Xanax, and Lortab and had used mushrooms and marijuana with her. Kirby

McDonald testified that she had often smoked marijuana with the defendant. Joey McGoff

testified that he had seen the defendant use marijuana, cocaine, alcohol, and Lortab. Perry

Brasfield testified that he and the defendant had used alcohol, marijuana, Lortab, Xanax, and

cocaine together. Regina Hunt testified that she found pills and a prescription bottle in the

defendant’s purse, and a pharmacist told her that the bottle contained Hydrocodone. The

defendant later admitted that the drugs were hers. Alexandra Kline testified that she saw the

defendant consume alcohol on more than one occasion.

On appeal, the defendant presents several arguments as to why the court erred in

allowing this testimony. According to the defendant, the State’s “original theory of

[d]efendant’s motive for matricide was profit.” After proof that the defendant’s deceased

father died without assets, the State claimed that the motive was “drugs,” according to the

defendant, and that the trial court correctly determined that “each of the witnesses about

which the defendant complains personally observed and used those drugs with the defendant,

the defendant admitted to them what she was taking or that she was being tested, and/or they

were present when the defendant and the victim discussed these matters.” The State notes

that the trial court conducted Tennessee Rule of Evidence 404(b) hearings as to the State’s

witnesses Cindy Eidson, Sophie Cooley, Eric Sherwood, McKenzie Koale Madison, Carter

Kobeck, Kirby McDonald, Joey McGoff, Perry Brasfield, Regina Hunt, and Alexandra

Kline. We will review the court’s rulings as to these witnesses.

Following a lengthy jury-out hearing regarding the difficult relationship between the

defendant and her mother, the trial court concluded that testimony regarding it would be

allowed because it was probative to “the motive that [the defendant] had and her state of

mind as far as premeditation and a reason to kill.” The court explained that the jury would

hear proof that the defendant was “having these parties at home against her mother’s wishes”

and of the fear of the defendant’s being expelled from school, not to show that the defendant

acted in conformity with a certain trait but because they were “probative to a reason that [the

defendant] would resent her mother” and the testimony was not unfairly prejudicial.

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When the jurors returned to the courtroom, the trial court instructed at length as to

how they were to consider the testimony of Cindy Eidson, as well as that of the defendant’s

friends, regarding the relationship between the defendant and the victim, explaining that

“[t]he only thing you can use this for is to show the relationship between [the defendant] and

her mother and any possible motive or lack of motive for a killing.”

In each jury-out hearing prior to the testimony of each witness as to the defendant’s

use of drugs and alcohol, the court concluded that the witness’s testimony about the

defendant’s drug and alcohol use was relevant to help the State prove its theory as to her

motive for the killing. The court further concluded that the defendant’s drug and alcohol use

was dissimilar to the crime for which she was on trial and the probative value of such

evidence was not outweighed by its prejudicial effect. The trial court’s ruling with respect

to Sophie Cooley’s proposed testimony best explains its analysis and handling of this issue:

I think this [is] relevant to show why her mother was concerned about

her and wanted to send her to boarding school and do all these other things,

and it would be a motive for her mother to be wanting to clamp down on her

and that would be a motive for her to put her mother away.

....

I’m finding it’s not a similar crime as murder, and I’m finding that

given the probative value of [the defendant’s] running with these other kids

who were all doing drugs, that that’s probative to show the trap, and I’m

looking at the evidence from the State’s point of view, to show the trap that

[the defendant] was in, and the only way she could avoid that trap was to put

her last parent away and inherit that money. That’s the State’s theory.

And I find that this drug use is very relevant to that theory, and for that

reason, I find that any unfair prejudice, especially with my curative instruction

to the jury, any unfair prejudice does not outweigh the probative value.

Then, before Cooley testified as to the defendant’s use of illegal drugs, the court gave

a curative instruction to the jury regarding her testimony:

And you are going to hear a witness’[s] testimony, and I want to give you

another curative instruction. This witness may testify to use of drugs by the

defendant, legal or illegal drugs.

If you do hear testimony, and you choose to believe that testimony,

which is up to you, this cannot be used by you to say, well, because she used

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an illegal drug or a legal drug, therefore, she’s guilty of the offense now on

trial.

If an illegal drug was used by anyone or if someone drank alcohol

under age, that would be a criminal act. But . . . you cannot use that to show

that because someone did that, that they would also commit the crime that’s

charged.

I will give you a jury instruction at the end of the trial, and it’s basically

going to say, if from the proof you find that the defendant has committed a

crime or crimes other than that for which she is on trial [sic]. You may not

consider such evidence to prove her disposition to commit such a crime as that

on trial, just from committing that other crime. And we will set out reasons,

and the reason is offering this proof, and that will be the only thing you can

consider it for. Does everybody understand that? We will be revisiting this

issue later.

As we have set out, Sophie Cooley then testified, in part, that she had attended parties

with the defendant when they were teenagers, where they drank alcohol and used drugs, that

she had frequently smoked marijuana with the defendant at her house, had seen the defendant

snort cocaine, and that she saw the defendant take three Lortabs on the evening before the

homicide.

Likewise, prior to the testimony of Eric Sherwood, the court had a jury-out hearing

and concluded that his testimony as to the defendant’s use of illegal drugs was “clear and

convincing. And . . . the probative value of this to show the motive and the reason for the

killing is not . . . outweighed by the danger of unfair prejudice to [the defendant].”

As to the defendant’s use of drugs, Sherwood testified that a few months before the

victim’s murder, the defendant admitted to him that she had smoked marijuana. Also, on

May 21, 2005, during a birthday party for him at the victim’s house, the defendant arrived

late and the victim said her eyes looked “glazed over” and she looked “high.” However, the

defendant denied that she was on drugs.

The trial court conducted a jury-out hearing prior to the testimony of McKenzie Koale

Madison and concluded that his testimony regarding the defendant’s drug use was

admissible: “It would be two years prior to her death. We’ve already had testimony from

Miss Cooley that she was there at the cocaine incident. And I think their relationship during

this two years is relevant. So I’m going to allow that.”

Madison testified, in part, that he had seen the defendant use marijuana, mushrooms,

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and cocaine and had “[q]uite often smoked marijuana with the defendant in the year before

the victim’s death.

Prior to the trial testimony of Kirby McDonald, she testified out of the presence of the

jury as to her smoking marijuana with the defendant, and the court determined that this

evidence was “clear and convincing” and admissible. McDonald then testified, in part, that

she and the defendant often smoked marijuana and that on June 4, 2005, McDonald took a

fourth of a Xanax bar.

Prior to his trial testimony, Joey McGoff testified out of the presence of the jury that

he once, “probably close to a year” before the victim was killed, had seen the defendant use

cocaine, and “a lot of times” had seen her smoke marijuana, as well as seen her drinking

beer, whiskey, or vodka and taking Lortabs. Following a defense objection that this

testimony would be cumulative and prejudicial, and the State’s response that the testimony

was permissible because McGoff was talking of different occasions than had the other

witnesses, the court ruled that the testimony would be allowed: “I think that’s going to be

a jury question. So as far as being cumulative, any unfair prejudice, . . . we wouldn’t be

adding any unfair prejudice at all to it, either, so I’m going to allow the State to make their

case, and of course, you can cross examine him.”

McGoff then testified to the jury in part that he had seen the defendant use Lortab and

alcohol and, once, cocaine, and had both seen the defendant smoke marijuana and smoked

it with her on multiple occasions. After the victim’s death, he smoked marijuana and

consumed alcohol with the defendant at her apartment.

Perry Brasfield testified at a jury-out hearing that he had seen the defendant use

cocaine, marijuana, Lortab, Xanax, and alcohol. As to the testimony of this witness, the

defense renewed the same objection, and, in accord with earlier rulings, the court allowed

the testimony. Brasfield then testified as to these facts, saying that he had “snorted” cocaine

with the defendant.

Regina Hunt testified out of the presence of the jury that she had found pills in the

defendant’s purse and “confronted her about them.” The trial court ruled that this

information was relevant:

Now, as far as the relevance, I’ve already found that these things are

relevant beforehand, showing the relationship with the mother, . . . a

defendant’s actions after a killing may be taken into consideration of the jury

to show premeditation and other things.

....

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But I find that it’s relevant. I don’t know how the jury’s going to take

it. But I still find that this 404(b) evidence is probative of this mindset of the

defendant, and I don’t find that any unfair prejudice outweighs the probative

value, under 404(b). So, I’m going to allow that.

While Alexandra Kline testified as to the defendant’s use of drugs, the record on

appeal does not include a transcript of the jury-out hearing.

At the conclusion of the trial, the court again instructed the jury as to how it was to

consider evidence as to the defendant’s use of drugs and alcohol:

Evidence of alleged alcohol or drug use. If from the proof you find that

the defendant has engaged in alcohol or drug use, you shall not consider such

evidence to prove her disposition to commit such a crime as that on trial.

This evidence shall only be considered by you for the limited purpose

of determining whether it provides motive.

That is, such evidence shall be considered by you . . . if it tends to show

a motive of the defendant for the commission of the offense presently charged.

Such evidence, if considered by you for any purpose, must not be

considered for any purpose other than that specifically stated.

We will review the defendant’s claims that the trial court erred in allowing this

testimony as to the defendant’s drug and alcohol use.

Tennessee Rule of Evidence 404(b) sets out the procedure by which proof of other

crimes may be admitted:

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

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

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

which must be satisfied before allowing such evidence are:

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

presence;

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

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

record the material issue, the ruling, and the reasons for admitting the

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evidence;

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

clear and convincing; and

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

outweighed by the danger of unfair prejudice.

On appeal, the defendant’s specific argument is that the trial court erred, as to the Rule

404(b) findings, by not requiring an adequate foundation as to whether the substances in

question were actually drugs or requiring proof as to the ability of each of the witnesses

accurately to identify what they testified to were drugs. Further, according to the defendant’s

argument, the trial court’s allowing this testimony was contrary to the provisions of

Tennessee Rule of Evidence 701(a)(1), which requires that, when a lay witness is providing

opinion evidence, the testimony “is limited to those opinions or inferences which are

rationally based on the perception of the witness.” In support of this contention, the

defendant identifies perceived deficiencies in the testimony of the various witnesses

regarding their description of the defendant’s drug use.

The State responds that, prior to allowing testimony regarding the defendant’s use of

drugs, the court conducted jury-out hearings of the witnesses in which the witnesses testified

that they observed and used drugs with the defendant, she told them what drug she was using,

and/or they were present when the victim and the defendant discussed her usage of drugs.

Generally, Rule 404(b) is one of exclusion, and evidence is not admissible that an

accused has committed some other crime or bad act independent of that for which he or she

is charged, even though it may be a crime or act of the same character as that for which the

accused is on trial. See State v. Howell, 868 S.W.2d 238, 254 (Tenn. 1993). If, however,

evidence that a defendant has committed a crime or bad act separate from the one for which

he or she is being tried is relevant to some matter actually in issue in the case on trial and its

probative value is not outweighed by the danger of its prejudicial effect, the evidence may

be admitted. See id. “Only in an exceptional case will another crime, wrong, or bad act be

relevant to an issue other than the accused’s character. Such exceptional cases include

identity, intent, motive, opportunity, or rebuttal of mistake or accident.” State v. Drinkard,

909 S.W.2d 13, 16 (Tenn. Crim. App. 1995). We review a trial court’s ruling on evidentiary

matters under Rule 404(b) under an abuse of discretion standard, provided the trial court has

substantially complied with the prerequisites of the rule. State v. DuBose, 953 S.W.2d 649,

652 (Tenn. 1997).

On appeal, the defendant relies upon the holding of our supreme court in State v.

Marise, 197 S.W.3d 762, 766 (Tenn. 2006), in which the court concluded that olfactory

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observations of the officers may not be enough, standing alone, to convict. In that case,

however, the court was dealing with a statute which criminalized the possession of anhydrous

ammonia consisting of at least 82 % nitrogen.

As the State notes on appeal, its trial theory was the defendant killed the victim

because she had told the defendant of her being tested for drugs and sent to a boarding

school. Following the Rule 404(b) hearings conducted by the trial court prior to testimony

regarding the defendant’s use of drugs, the court made extensive findings that the testimony

was probative and relevant to show why the victim wanted to test the defendant for drugs and

send her to a boarding school and that the probative value of this evidence outweighed its

prejudicial effect. Additionally, we note that the trial court gave limiting instructions as to

how the jury was to consider this testimony. Accordingly, we conclude that the record

supports the determinations by the trial court that this testimony was probative in establishing

the defendant’s motive for the crime.

B. Evidence as to Defendant’s “Other Crimes and Bad Acts”

The defendant argues that the trial court erred in allowing testimony as to her having

sexual relations with Perry Brasfield at a time after the murder; as to her eviction from an

apartment; as to her educational performance and health history; and as to her hospitalization

at Lakeside Hospital. We will consider these claims.

During the direct examination of Perry Brasfield, he was asked about the defendant’s

coming to his house at a time following the death of the victim, and he responded, without

objection, that it had been “[a] while after[wards]” that she had called him, come to his house

and climbed a ladder to his bedroom, where they had sexual intercourse. Since no objection

was made to this series of questions and answers at trial, the objection to them on appeal is

waived. See Tenn. R. App. P. 36(a) (“Nothing in this rule shall be construed as requiring

relief 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.”).

Rebecca Robertson, the assistant manager at the apartment complex where the

defendant resided before she was arrested after the victim’s death, testified that the defendant

was evicted from the apartment for “not following the lease agreement. Disturbances. And

having a pet that wasn’t supposed to be there.” The disturbances consisted of “[n]oise

complaints.” After “two and possibly three” conversations about this with the defendant,

Robertson evicted her. The defendant objected to the testimony regarding the eviction,

asserting that it was “irrelevant and violative of 404(b),” and the court overruled this

objection. Ultimately, the court concluded that the witness would be allowed to testify that

the defendant was threatened with evictions because of parties in her apartment. Robertson

then testified of noise complaints because of parties in the defendant’s apartment, about

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which she had “two and possibly three” conversations with the defendant, after which she

was asked to move out because the behavior continued.

The record supports the trial court’s determination that this testimony was admissible

to show the behavior of the defendant following the victim’s death.

After the defendant’s aunt, Cindy Eidson, had been the subject of direct and cross-

examination out of the presence of the jury, the trial court explained that she would be

permitted to testify as to the bases for the disputes between the defendant and the victim

because her testimony was relevant to show the relationship between the two and the

defendant’s state of mind, and the probative value of the evidence was not outweighed by its

prejudicial effect. Once again the trial court issued a lengthy curative instruction to the jury

regarding the limited purpose of the evidence.

The record supports the trial court’s determination that this testimony was relevant to

show the relationship between the victim and the defendant.

Cindy Eidson and Grace France then testified that the defendant was hospitalized by

the time of the victim’s funeral and remained there for approximately one month. Eric

Sherwood testified that the defendant had attended several different schools, St. Mary’s, St.

Agnes, Ridgeway, St. Georges and, then, was home-schooled. The defendant argued, before

Sherwood’s testimony, that this information was irrelevant, but the court found otherwise,

and Sherwood repeated the testimony before the jury. Additionally, during his lengthy

testimony, Sherwood, in response to the State’s question as to when he first saw the wound

on the defendant’s hand, responded, “God, I noticed it when we looked at Lakeside, I saw

it.”

The defendant objected to Regina Hunt’s testimony that the defendant had said she

wanted to kill herself, arguing that this was irrelevant and that she may have wanted to do

so because she was “distraught” over her mother’s death. The court concluded that the

evidence was relevant because it showed the defendant’s mental state.

We review a trial court’s ruling on evidentiary matters under Rule 404(b) under an

abuse of discretion standard, provided the trial court has substantially complied with the

prerequisites of the rule. DuBose, 953 S.W.2d at 652.

In this matter, the trial court complied with the Rule 404(b) requirements by

determining, before each of these witnesses had testified, the substance of their testimony

and the basis of their knowledge. The court found that the testimony which the witnesses

gave in this regard was admissible to show the defendant’s mental state. We have carefully

reviewed all of this testimony, the contending arguments of counsel, and the analyses of the

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trial court and conclude that the court did not abuse its discretion in allowing this testimony.

C. Hearsay Testimony of Witnesses Eidson, France, and Sherwood

The defendant argues that the trial court erred in allowing testimony by witnesses

Cindy Eidson, Grace France, and Eric Sherwood as to hearsay statements of the victim,

offered for substantive truth. The specific claim, cited by the defendant as to this issue, is

that, Eric Sherwood, the victim’s brother, testified that while he was riding in a vehicle with

the defendant and the victim en route to Florida, the victim told the defendant that “drugs

were found in [the defendant’s system]” by “a drug test.” The defendant “denied the fact that

she did any kind of drugs,” and the victim responded that they would “deal with it later when

[they] g[o]t back to Memphis.” Immediately following this testimony, the trial court, once

again, issued a curative instruction to the jury regarding its limited use of the testimony. The

trial court also explained in a jury-out hearing that it was allowing Sherwood’s testimony

because it concluded that the evidence was relevant to show the defendant’s intent and

possible motive and that the probative value of the testimony was not outweighed by its

prejudicial effect. The trial court further concluded that the evidence fell within the state of

mind exception to the rule against hearsay.

On appeal, the defendant argues that either the information as to the defendant’s

having drugs in her system “was intended to be accepted by the jury as truthful,” or “so

prejudicial it should not have been admitted to infer the state of mind or motive of [the]

[d]efendant.” Additionally, the defendant seeks to make a distinction that, since the

statement as to drugs was made by the victim rather than the defendant, “it did not reflect

[the] [d]efendant’s thoughts or infer her state of mind.”

We respectfully disagree with the defendant’s analysis in this regard. First, the cases

relied upon by the defendant for this argument do not support her position. In United States

v. Augenblick, 393 U.S. 348, 353 (1969), the issue focused upon the government’s non-

production of interview notes and an audiotape made by government agents of an interview

of the defendant. In State v. Caughron, 855 S.W.2d 526, 537 (Tenn. 1993), the relevant

issues were whether the trial court erred in allowing testimony that a witness was “upset”

with the victim because of a conversation between the victim and the defendant’s mother and

that the witness “hated [the victim] for going to [the witness’s mother] and trying to separate

[the witness] from the [d]efendant.” Our supreme court agreed with the determination of the

trial court that “any statements of the victim described by [the witness] were not offered for

their truth but to show [the witness’s] state of mind and what provoked her to harm the

victim.” Id.

In the present appeal, following the testimony of the victim’s brother that the victim,

in his presence, had told the defendant of drugs being found in the defendant’s system, the

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trial court immediately instructed the jury that this testimony was to be considered “to show

the motive [the defendant] had for getting rid of her mother.” These cases do not support the

defendant’s view that testimony admissible to show the defendant’s state of mind or motive

for the crime is limited to utterances of a third party and not the victim. Thus, we conclude

that this issue is without merit.

III. Photographs of Deceased Victim

The defendant argues that the trial court erred in allowing into evidence unduly

gruesome and repetitive photographs of the victim. The State responds that the photographs

were both relevant to explain the testimony of witnesses and that their evidentiary value

outweighed any prejudicial effect. The State also responds that the crime scene photographs

were relevant to the jury’s understanding of the crime scene.

In State v. Trusty, 326 S.W.3d 582 (Tenn. Crim. App. 2010), this court explained the

process by which a trial court must determine whether photographs are admissible:

The admissibility of photographs generally lies within the sound

discretion of the trial court and will not be overturned on appeal absent a clear

showing that the trial court abused its discretion. State v. Faulkner, 154

S.W.3d 48, 67 (Tenn. 2005); State v. Banks, 564 S.W.2d 947, 949 (Tenn.

1978). “Tennessee courts follow a policy of liberality in the admission of

photographs in both civil and criminal cases.” State v. Morris, 24 S.W.3d 788,

810 (Tenn. 2000). In determining whether a photograph is admissible, the trial

court must first determine whether it is relevant to a matter at issue in the case.

See Tenn. R. Evid. 401; State v. Vann, 976 S.W.2d 93, 102 (Tenn. 1998);

Banks, 564 S.W.2d at 949. The court must next consider whether the

probative value of the photograph is “substantially outweighed by the danger

of unfair prejudice, confusion of the issues, or misleading the jury.” Tenn. R.

Evid. 403.

Id. at 604.

Before any of the questioned photographs were accepted as evidence, the trial court

described in detail what each depicted and explained why each was admissible. Although

the photographs were graphic, that could be expected when a victim dies as a result of

multiple knife wounds. We have examined the photographs and reviewed the trial court’s

determinations as to each and, as we will explain, cannot conclude that the court erred in

allowing them into evidence.

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A. Exhibits 11 and 12

The trial court explained first what was shown in the photographs marked as exhibits

11 and 12 and why they would be admitted:

It’s a picture of the victim with her head up at the top of the picture with

her knees at the bottom, and it shows a pool of blood under her left arm, and

it shows a basket over her right shoulder, which presumably is the basket, if

you will have her testify, that this was moved.

I don’t find that there’s anything in this photograph that’s unfairly

prejudicial to the defendant, given the probative value that the State is going

to have to show that there was blood to produce the fingerprints [sic].

. . . [H]er eyes are open, but they’re hard to see because they’re at the

top of the photograph.

There are two tubes in the right and left shoulder, but they’re distant

and . . . you can’t see that they’re going into the body.

The other photograph is a photograph of the bed with the body off to

the right on the floor, in a distant picture, with items forty-five, forty-four and

forty-three, little placards there.

So, I’m going to allow in both of these photographs, and I find under

[Tennessee Rule of Evidence] 403 that any unfair prejudice, and I really don’t

– although it’s – there’s some gore, there’s a reason for it. And it’s on the

floor, it’s not on the body, that any unfair prejudice, it does not substantially

outweigh the probative value of this photograph.

Since this photograph showed the position of the victim’s body when first found and

is not unduly prejudicial, we concur with the determination of the trial court that its probative

value was not substantially outweighed by any prejudicial effect. Thus, the record supports

the trial court’s determination on this matter.

B. Exhibits 111-116

These exhibits consist of two photographs, from different perspectives, of the victim’s

body and four photographs, also from different perspectives, of the victim’s bed and

bedroom. Because of the large number of photographs, many of which were admitted in

groups, but with individual exhibits numbers, it is not entirely clear that the defendant

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objected to admission of these photographs. It appears they were among a group of

photographs that the trial court determined were not prejudicial to the defendant. We have

examined the photographs and conclude, as the trial court did, that the photographs

accurately depicted the crime scene, that they served to explain the testimony of the State’s

witnesses, and that their probative value was not substantially outweighed by any prejudicial

effect.

C. Exhibits 264-266

These exhibits consist of photographs of the victim’s left shoulder and upper arm, her

feet and legs beneath the knees, and a pillow with several bloodstains. The trial court found

that these photographs were not gruesome and that they were relevant because they offered

different perspectives of the crime scene. The record supports this determination.

D. Exhibits 269-271

These exhibits consist of photographs of the victim’s feet and lower legs, the right

side of the victim’s body from her hip to her face, and a pillow and bed, both with

bloodstains. As with earlier exhibits, the court found that these photographs were not

gruesome and were relevant because they offered different perspectives of the crime scene.

The record supports this determination.

E. Exhibits 286-287

The trial court described Exhibit 286 as a photograph depicting the bed and the floor

and Exhibit 287 as a photograph showing a stain on the floor. They were utilized during the

testimony of Officer Patricia Turnmire to illustrate her testimony. The trial court found that

these photographs were probative, were not gruesome, and admitted them into evidence. The

record supports this determination.

F. Exhibit 323

Dr. Chancellor, through whom this photograph came into evidence, testified that it

showed the victim’s “neck and . . . thorax, the chest and upper part of the abdomen, the front

part of the body. And it shows the body as it appeared to me at the time of my examination.”

Dr. Chancellor continued her testimony saying that the area and wounds shown by the

photograph corresponded with what was shown on the victim’s body chart. The trial court

found that this photograph was relevant and probative, which was not substantially

outweighed by any prejudicial effect, and the record supports this determination.

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G. Exhibits 330-339

The court described this autopsy photograph:

I don’t see that this is gruesome and there’s no pooled blood. There’s no tubes

in the body and it accurately represents what the body looked like after it was

cleaned up, so I’m going to allow this, but I’ll mark it – well, we’ll show – let

me just describe it for the record.

It’s a photograph from the middle of the face on down below the belly

button of the torso, the front of the torso.

The court explained why the photograph was admissible:

Well, what we have here, and it’s almost geographical, it has little

layers of scratches, so I don’t see that there’s any unfair prejudice to it. And

it does have a close-up showing scratches from a serration. So, I will allow

that as well.

And for the record, it[’]s got some stab wounds at the bottom. And at

the top it’s got some long scratches that look like geographic layers, almost.

All right. This one?

[THE STATE]: The same thing. Those marks are indicative of perhaps

a serrated knife being used as well.

THE COURT: I don’t see that this is prejudicial at all. Unfairly

prejudicial at all. So, I will allow this. This is a close up of the serration

scratches on the chin.

The record supports this determination.

H. Exhibits 340-344

These photographs, taken during the autopsy with the victim’s right arm covering

about half of her face, show wounds to her upper left arm and numerous cuts to her neck and

upper torso; wounds to her right forearm, right bicep, neck, and chest; several wounds to the

interior of her right forearm; a wound to her forehead; and wounds to her right hand and

wrist consistent with defensive wounds. As we understand, the defendant argued that these

photographs were duplicative to photographs already in evidence. The trial court found,

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however, that the photographs were not duplicative, and the record supports this

determination.

Before these photographs were admitted into evidence, the trial court first examined

each, explained why it was relevant to an issue in the case and concluded that its probative

value was not substantially outweighed by the danger of its admission. We have examined

each of these photographs and conclude that the trial court did not abuse its discretion in their

admission.

IV. Alleged Prosecutorial Misconduct

A. References to Post-Arrest Silence of Defendant

The defendant argues that the State made improper references in its rebuttal argument

at the close of the trial to her post-arrest silence, thus violating her Fifth Amendment rights

and denying her a fair trial. The State responds that the trial court correctly concluded that

the State had not commented upon the defendant’s post-arrest silence in its use, in final

argument, of the testimony of Cindy Eidson, the defendant’s aunt.

The opening sentence of the State’s rebuttal argument drew an objection from defense

counsel and their request for a mistrial:

[THE STATE]: Just tell us where you were. That’s all we’re asking, Noura.4

[DEFENSE COUNSEL]: Objection, Your Honor.

THE COURT: All right. Would you all approach the bench[?]

(Whereupon a bench conference was held on the record, in the

presence of the jury, but out of its hearing, and the following

proceedings were had, to wit:)

[DEFENSE COUNSEL]: I want a mistrial. That is absolutely inappropriate.

4

The record on appeal includes a DVD of what the defendant has represented shows the opening

portion of the State’s rebuttal argument at trial. However, Tennessee Supreme Court Rule 30(I) provides,

in part, that film or videotape recorded by a media organization of a trial is not “admissible as evidence in

the proceeding out of which it arose, any proceedings subsequent and collateral thereto, or upon any retrial

or appeal of such proceeding.” On August 31, 2011, relying upon that rule, this court denied the defendant’s

motion to play, at the oral arguments in this matter, this video recording. We have not considered the DVD

in our review of this matter.

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[THE STATE]: It’s a quote from an aunt who testified.

[DEFENSE COUNSEL]: There are enough Appellate Court opinions that [the

prosecutor] ought to know that.

That is an unfair comment on my client’s right to remain silent and it’s

a demand that she not remain silent.

She can couch it in whatever terms she wants, but that was grossly

inappropriate.

THE COURT: [The prosecutor]?

[THE PROSECUTOR]: One of the witnesses testified to that, Your Honor,

asking her where she was. Just tell us where you were and we’ll do anything

we can for you.

THE COURT: Okay. I will give an instruction to the jury that she’s

commenting on testimony in the case and . . . I will also re-affirm, if you all

wish me to, to the jury, that she does not have to testify today or any time

during the trial in her own defense.

That she’s talking about the question that she was asked –

[THE PROSECUTOR]: By her aunt.

THE COURT: – by the lay witness.

....

THE COURT: All right.

....

[DEFENSE COUNSEL]: We ask for a mistrial, immediately.

....

THE COURT: All right. You all have made your record and what I’m going

to do at some point is to give the jury an instruction at this time and I’ll allow

[the prosecutor] to proceed as long as you tie it to testimony in the trial.

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[THE PROSECUTOR]: That’s what I was attempting to do.

THE COURT: And not that you’re speaking to the defendant now.

[THE PROSECUTOR]: No, sir.

[DEFENSE COUNSEL]: And in explaining that to the jury, Your Honor, I

hope you will strongly explain to them that she doesn’t have to tell anybody

anything. That the burden’s on the State to find out everything.

THE COURT: I understand.

Before the State continued its rebuttal argument, the trial court instructed the jury as

to the defendant’s right not to testify during the trial:

[L]adies and gentlemen, I want to make a distinction here so you’ll understand.

I have given you in your jury instructions and you will get in your copy

of the instructions, but to make sure that there’s no confusion, the following

instruction, which I will re-read to you, which you were discussed when we

picked the jury last Monday.

Defendant not testifying. The defendant has not taken the stand to

testify as a witness, but you shall place no significance on this fact.

The defendant is presumed innocent and the burden is on the State to

prove her guilt beyond a reasonable doubt.

She is not required to take the stand in her own behalf and her election

not to do so cannot be considered for any purpose against her, nor can any

inference be drawn from such fact.

Now, when [the prosecutor] opened her argument, she was not at all

discussing or asking [the defendant] a question. What she is doing, and she

will explain to you, is that she was quoting another witness and commenting

on the proof of the case that [the defendant], a witness who testified to

something about [the defendant] being asked where she was.

It’s very important for all of you to understand that you cannot ever,

ever, hold anything against [the defendant] for not testifying in this trial.

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Also, at any time from the time of this alleged killing until today, [the

defendant] never has to talk to anyone about anything. She has an absolute

right to remain silent and it’s up to the State to prove her guilt beyond a

reasonable doubt. It’s not up to anyone to prove that they’re innocent.

Can every one of you follow that instruction? And I want to see every

head. Can you, sir?

(The jury was polled and each juror indicated an affirmative

response.)

THE COURT: Okay. I’m going to allow [the prosecutor] to continue with

this argument, but I want everybody to understand that when she says this

phrase, she’s not asking [the defendant] that question now about – commenting

at all about her right not to testify.

She is talking about proof in the case.

Closing arguments as you have realized, are different than opening

statements, in that attorneys can be persuasive. They can talk about the law

and how it applies to the facts.

And they are allowed to draw reasonable inferences from the evidence.

But the laws that we have that I’ve read to you and charged to you, you’ll have

back there, says that you can never, ever, hold it against anyone for not

testifying on the stand in their trial because they have that right not to. They

don’t have to prove anything.

During this trial, the defense didn’t have to ask any questions of jurors.

Other than entering a plea to the indictment, they did not have to give an

opening statement. They didn’t have to ask any questions of any of the

witnesses or give a closing argument. Because they have nothing to prove[.]

Does everybody understand that? The burden’s on the State of

Tennessee and never shifts.

Following the court’s giving these instructions, the State’s rebuttal argument

continued with a reference to the question asked of the defendant by her aunt as to where she

was at the time the victim was killed.

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We will review the defendant’s claims as to this statement in the State’s rebuttal

argument.

The trial testimony upon which the opening lines of the State’s argument were based

was that of Cindy Eidson, the defendant’s aunt, who earlier had testified as to asking the

defendant where she was during the time period in which the victim was killed.

On appeal, the defendant argues that the statement opening the closing argument,

“Just tell us where you were,” was an “impermissible comment on [d]efendant’s election to

exercise her Fifth Amendment rights and not testify at trial [and] was constitutional error

warranting a mistrial.” The State disputes this analysis, noting that, following the

defendant’s objection to the statement and the subsequent bench conference, the State

explained that it was referring to the testimony of one of the defendant’s aunts and that the

trial court then instructed the jury that no inference could be drawn from the fact that the

defendant had not testified and that the prosecutor’s reference was to the evidence presented

in the case.

In this matter, we must determine whether the allegedly improper remark by the

prosecutor constitutes reversible error. In State v. Thornton, 10 S.W.3d 229, 234-35 (Tenn.

Crim. App. 1999), this court discussed the limits upon a prosecutor’s final argument:

In general, closing argument is subject to the trial court’s discretion.

Counsel for both the prosecution and the defense should be permitted wide

latitude in arguing their cases to the jury. State v. Bigbee, 885 S.W.2d 797, 809

(Tenn. 1994). Arguments must be temperate, predicated on evidence

introduced during the trial, relevant to the issues being tried, and not otherwise

improper under the facts or law. State v. Middlebrooks, 995 S.W.2d 550

(Tenn. 1999).

Tennessee courts “have traditionally provided counsel with a wide latitude of

discretion in the content of their final argument” and trial judges with “wide discretion in

control of the argument.” State v. Zirkle, 910 S.W.2d 874, 888 (Tenn. Crim. App. 1995).

A party’s closing argument “must be temperate, predicated on evidence introduced during

the trial, relevant to the issues being tried, and not otherwise improper under the facts or

law.” State v. Middlebrooks, 995 S.W.2d 550, 557 (Tenn. 1999). The five generally

recognized areas of prosecutorial misconduct in closing argument occur when the prosecutor

intentionally misstates the evidence or misleads the jury on the inferences it may draw from

the evidence; expresses his or her personal opinion on the evidence or the defendant's guilt;

uses arguments calculated to inflame the passions or prejudices of the jury; diverts the jury

from its duty to decide the case on the evidence by injecting issues broader than the guilt or

innocence of the accused under the controlling law or by making predictions on the

-53-

consequences of the jury’s verdict; and intentionally refers to or argues facts outside the

record, other than those which are matters of common public knowledge. State v. Goltz, 111

S.W.3d 1, 6 (Tenn. Crim. App. 2003).

For a defendant to be entitled to a new trial on the basis of allegedly improper remarks

during the closing argument, they must be shown to have prejudiced the case by affecting the

jury’s verdict. Middlebrooks, 995 S.W.2d at 559. In determining whether this occurred, we

consider the following factors: (1) the conduct viewed in light of the circumstances and

facts in the case; (2) any curative measures taken by the trial court and the prosecution; (3)

the prosecutor’s intent in making the improper statements; (4) the cumulative effect of the

prosecutor’s statements and other errors in the record; and (5) the relative strength and

weakness of the case. Id. at 560. We will apply these considerations to the proof in this

matter.

In the presentation of the State’s case-in-chief, the defendant’s aunt, Cindy Eidson,

testified that she asked the defendant where she had been when the victim was killed, and the

defendant said she had been “out with Chris all night.” As we understand the conversation,

the defendant also related that when Perry Brasfield called her that evening, she said she

“was at home, outside smoking a cigarette” because “Perry hate[d] Chris.” Eidson testified

that, after the defendant’s arrest, she again asked her, “Where were you during all of this?

Who were you with?” and the defendant replied, “I don’t know.” Thus, applying the

considerations set out in Buck, we first conclude that the State was accurate in asserting that

one of the defendant’s aunts had testified that the defendant, although asked, had not revealed

where she was at the time of her mother’s murder, other than initially saying she had been

with “Chris.”

As for the intent of the prosecutor in making the statement, the prosecutor explained

that the statement referred to prior testimony in the trial. There was, in fact, such testimony,

as we have set out. However, instead of quoting the actual words spoken by Cindy Eidson,

and reminding the jury she had asked the defendant this question, the State’s closing

argument instead began, “Just tell us where you were. That’s all we’re asking, Noura.”

Thus, while the statement did make the same basic request as had Cindy Eidson, it could

have been interpreted as if it were being asked of the defendant by those in the courtroom,

which included the jury. On the other hand, the word “we” could be interpreted to mean that

Cindy Eidson was asking the question on behalf of the victim’s family. Because of the

immediate and to-be-expected objection from defense counsel, the record cannot reflect

whether the State would have followed the objected-to statement by explaining this was the

question asked by Cindy Eidson to the defendant. There is risk to the State in rephrasing

witness testimony, especially when it focuses on the fact that the defendant elected not to

testify. The upshot of all this is that we cannot conclude that the prosecutor’s beginning to

her rebuttal argument, though certainly dramatic, was improper.

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As we will discuss in detail in our analysis of the evidence, the State presented

evidence that the defendant had both motive and opportunity to murder the victim. There

was much proof of heated arguments between the two over the defendant’s aimless and

casual lifestyle and use of drugs. Before the victim was killed, the defendant had questioned

her about the assets the defendant would receive were the victim to die. In our review of the

sufficiency of the evidence, we will review in detail the activities of the defendant during the

early morning hours and conclude, as will be set out, that this does not rise to the to the level

of reversible error, given the prompt and thorough curative instructions from the trial court

and the strength of the circumstantial evidence against the defendant.

B. Additional Claims of Prosecutorial Misconduct

As we will review, the defendant asserts that the State committed prosecutorial

misconduct in a number of instances. The State denies that the acts complained of constitute

prosecutorial misconduct.

1. Alleged Suppression of Brady/Giglio/Jencks Material

Subsequently, as a separate issue, we will review in detail the defendant’s claim that

the State suppressed evidence which would have impeached Andrew Hammack. Our

determination is that this claim does not constitute reversible error.

2. State’s Opening Statement

This text is long and has been trimmed here. Open the source document for the complete record.