State of Tennessee v. Jerome Sidney Barrett

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

June 22, 2011 Session

STATE OF TENNESSEE v. JEROME SIDNEY BARRETT

Appeal from the Criminal Court for Davidson County

No. 2008-B-1791 Steve Dozier, Judge

No. M2009-02636-CCA-R3-CD - Filed July 13, 2012

The Defendant, Jerome Sidney Barrett, was found guilty by a Davidson County Criminal

Court jury of second degree murder, a Class A felony, for a 1975 homicide. See T.C.A. §

39-2403 (1975) (amended 1979, 1985) (renumbered at § 39-2-211) (repealed 1989). He was

sentenced to forty-four years, to be served consecutively to a life sentence for a previous

conviction. On appeal, he contends that: (1) the evidence is insufficient to support the

conviction; (2) the trial court erred in denying his motion to suppress; (3) the trial court erred

in denying his motion to dismiss the prosecution due to excessive pre-indictment delay; (4)

the trial court erred in admitting evidence that the Defendant stated he “had killed before”;

(5) the trial court erred in allowing the State to ask a defense witness whether he was

arrested, suspended, and had resigned from the police force in 1978; (6) the trial court erred

in allowing the forensic pathologist who performed the victim’s autopsy to testify as an

expert in DNA analysis; (7) the trial court erred in permitting impeachment of a defense

witness with evidence of a misdemeanor conviction; (8) the trial court erred in imposing a

forty-four year sentence; and (9) the trial court erred in ordering the sentence to be served

consecutively to the Defendant’s life sentence. We affirm the judgment of the trial court.

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

J OSEPH M. T IPTON, P.J, delivered the opinion of the court, in which T HOMAS T. W OODALL

and C AMILLE R. M CM ULLEN, JJ., joined.

Dawn Deaner, District Public Defender; Jeffrey Devasher and James McNamara (on appeal),

and Aimee Solway and Laura Dykes, (at trial), Assistant Public Defenders, Nashville,

Tennessee, for the appellant, Jerome Sidney Barrett.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant

Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Tom

Thurman, Katy Miller, and Rachel Sobrero, Assistant District Attorneys General, for the

appellee, State of Tennessee.

OPINION

This case relates to the murder of Marcia Trimble. Virginia Trimble Ritter,1 the

victim’s mother, testified that on February 25, 1975, she lived on Copeland Drive in

Davidson County. She said her daughter was born on March 28, 1965, and was in the fourth

grade at the time of her disappearance and death. She said that she allowed the victim to sell

Girl Scout cookies in their neighborhood and that the victim sometimes did so alone. She

said that the victim was allowed to eat fruit after school and that on the day of the victim’s

disappearance, the victim may have eaten a small donut.

Ms. Trimble testified that the victim left her home about 5:20 p.m. on February 25,

1975, to deliver cookies to Marie Maxwell, a neighbor who lived diagonally across the street.

She said the victim had about twenty dollars with her. The victim was wearing a blue

checked blouse, blue jeans, white socks, and black patent leather boots, but was not wearing

a coat. She said that around 5:45 p.m., she went outside to call the victim. She said she saw

the victim’s dogs sitting in Ms. Howard’s yard across from her driveway and knew that the

victim was on that side of the street. She said that the victim always came home when called

but that the victim did not respond on February 25. She said that she called Ms. Maxwell to

inquire about the victim’s whereabouts and that afterwards, her husband and son drove

around the neighborhood searching for the victim. She said she went to the backyard and

called for the victim.

Ms. Trimble testified that her husband called a police officer, Sergeant Sherman

Nickens, who was an acquaintance. She said a police officer came to their home and

completed a missing person report. She said that “everybody in the community” searched

for her daughter that night and that there were aerial searches using helicopters. She said that

the victim’s disappearance received media attention and that various law enforcement

agencies established a command post in their home for about ten days. She said a $30,000

reward was established with funds from her family, a newspaper, and the governor.

Ms. Trimble testified that the victim’s body was found on March 30. She said that

when they came home from church that day, the police chief and Sergeant Nickens were

waiting to give them the news. She said her family was acquainted through the neighborhood

with the family that owned the garage where the victim’s body was found. She identified a

1

Although she remarried after Mr. Trimble’s death, she said she preferred to be called Ms.

Trimble.

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photograph of the victim that was taken a few days before the victim’s disappearance, in

which the victim wore the same blouse as she wore when she disappeared.

Ms. Trimble identified an aerial photograph of their neighborhood. She marked the

locations of her home, the victim’s school, a second school, a landscaping nursery, the house

where the victim’s body was found in a detached garage, and a vacant lot where

neighborhood children played.

On cross-examination, Ms. Trimble said that one of the victim’s male classmates

walked around the neighborhood with the victim while the victim sold cookies earlier that

afternoon and that the classmate then played basketball with the victim’s twelve-year-old

brother and at least two other boys. Although she did not remember receiving a telephone

call before the victim left home the second time, she acknowledged that there was discussion

of a telephone call during a 1975 hypnosis session to which she submitted at the request of

the authorities. She said the victim’s father, who was deceased at the time of the trial,

thought the victim left the house around 5:30 p.m. She thought it was between 5:20 p.m. and

5:30 p.m. She said she called for the victim to come home for dinner at 5:45 p.m. She

acknowledged that although there were pears in the house, she did not see the victim eat a

pear on February 25.

Ms. Trimble testified that when she called Ms. Maxwell about 6:00 p.m., Ms.

Maxwell said the victim had not been to the Maxwell home. She said Ms. Maxwell thought

she saw the victim by the hedge in Ms. Howard’s driveway. She said the police were

notified between 7:00 p.m. and 7:30 p.m. She did not recall telling investigators that she did

not see the dogs when she first went outside to look for the victim. She did not recall telling

them that she instructed the victim’s brother not to call the dogs because they were with the

victim. She said that within a week, her family paid to have tracking dogs brought from

Philadelphia to assist in the search for the victim.

Harry Moffett testified that he was thirty-three years old in 1975 and that he was

visiting his in-laws, the Thorpes, for Easter on March 30, 1975. He said there were six adults

and eight children staying in the Thorpe home that weekend. Mr. Moffett said that the family

attended an early church service that morning and that he went to the Thorpes’ garage, which

was a detached storage building about twenty feet from the house. He said that he went to

the garage to get a tire and an outboard motor and that as he looked at the tires stored in the

garage, he saw the victim’s body. He said that he had his brother-in-law, John Ed Fuller,

come to the garage and that Mr. Fuller touched the victim with a broom handle to see if she

was plastic. He said neither of them made any other contact with the body. He said he did

not smell decomposition. The police were called. Mr. Moffett identified a photograph of

the garage and the locations of the victim’s body and various items in the garage.

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On cross-examination, Mr. Moffett testified that he did not have to move anything to

see the victim’s body. He said that he never came closer than a few feet and that he could

see the victim’s body after he stepped outside the garage. He said that other than a tire he

moved, the police saw the garage exactly as he found it.

Retired Metropolitan Police Captain Thomas Cathey testified that he was a detective

in the homicide and armed robbery sections in March 1975. He said that he was not involved

in the initial investigation of the victim’s disappearance but that he responded when the

victim’s body was discovered on March 30 and took charge of the scene. He said the garage

where the body was found was open-ended without doors. He had the garage secured and

wood planks laid to cover the dirt floor. He identified photographs of the garage. He said

that the victim was well-concealed in the garage and that he could not see her until he was

within three feet of her body. He said a greenish glass jar and a large cardboard box were

on top of the victim. He identified a form, an empty money envelope, and boxes of cookies

near her. He identified a diagram showing the victim in the back left corner of the

rectangular garage.

Mr. Cathey testified that Officer Carol Lawrence of the Youth Guidance Division

recorded notes of his collection of evidence and measurements of the scene. He said he wore

rubber gloves. He said that he and Sergeant Jimmy Vaughn moved the body to a table in the

garage after covering the table with a sheet provided by a funeral home. After the body was

on the table, he removed the victim’s clothing except for her panties and collected it as

evidence. He said the victim’s clothing was in place, including the snaps on the victim’s

jeans. He cut the blouse in order to remove it. He said the evidence “was placed in the ID

unit . . . outside the garage.” He identified the victim’s clothing, which he had sent to the

FBI for analysis. He said that fingerprints collected from the scene were not useful for

identification purposes.

Mr. Cathey testified that the victim’s body was placed in a “crash bag” and taken to

a funeral home. He said that the normal procedure in 1975 was for examination of a body

to take place at a funeral home and that he observed the post-mortem examination conducted

by Dr. Michael Petrone and took notes. He said Dr. Petrone conducted a vaginal

examination. He said the victim’s body was flown to Memphis on a state-owned airplane

for further examination by Dr. Jerry Francisco, the state medical examiner.

On cross-examination, Mr. Cathey testified that he supervised the homicide unit in

1975. He agreed Detective Tommy Jacobs was the lead detective assigned to the victim’s

case and said Detective Jacobs and Sergeant R.C. Jackson were at the victim’s home on the

night she disappeared.

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Mr. Cathey testified that he took extreme care in collecting the evidence and that his

goal was for the evidence to be touched only by him. He said that most of the evidence was

placed in paper bags, although some evidence might have been placed in plastic bags. He

said the unopened boxes of cookies were between the body and the side wall of the garage.

He said that after the body was moved, he could see that it had been on top of stacked bags

of fertilizer and mulch. He said that although the bags were not initially collected, he had

samples taken from them, and that the bags were eventually collected. He said he

accompanied the body to the funeral home and to Memphis to maintain the integrity of the

evidence. He said that in 1975, Nashville’s medical examiners were physicians but not

forensic pathologists and that Dr. Francisco was a forensic pathologist. He said he left

Memphis on March 30 at 9:00 p.m. and returned the next day with the victim’s dental records

and information about scars and moles that Dr. Francisco requested.

Mr. Cathey said that officers from other divisions were involved with the case because

the homicide division was short-staffed and was investigating ten other murders in the month

before the victim’s body was found. He said the victim’s neighborhood was canvassed after

the body was found, which involved going door-to-door and inquiring about anything

unusual that occurred around the time of the victim’s disappearance. He acknowledged that

the homicide division’s property room flooded in February 1976.

Dr. Jerry Francisco, an expert in forensic pathology, testified that he was the

Tennessee Medical Examiner from 1971 until 1989 and for three additional years in the

1960s and that he performed the victim’s autopsy. He said that at the time, no Davidson

County pathologist was willing to perform forensic autopsies. He said the victim’s cause of

death was asphyxia due to manual strangulation, which he said would take considerable

pressure because children’s cartilage and bones were flexible. He noted that the victim’s

thyroid cartilage and hyoid bone were broken, that the victim had an adjacent hemorrhage,

blue lips, and small hemorrhages of the scalp, surface of the chest organs, heart, and lungs,

and that she had a small bruise on her knee. He said that he did not observe any vaginal

injuries and that the victim’s hymen was intact, which he said “suggested that it was unlikely

there had been a sexual act performed.” He said he did not know at the time of his autopsy

that Dr. Petrone had examined the victim’s body in Nashville.

Dr. Francisco testified that the victim showed livor mortis on the back left side of the

body, which was consistent with the position of the body in the garage. He said that based

upon a pear fragment in the victim’s stomach, decomposition, livor mortis, and other changes

to the body, it was his opinion that the victim died at or near the time she disappeared. He

said that he did not know whether the victim was killed in the location where her body was

found but that in his opinion, “she was in that location almost from the time of death.” He

said he had reviewed Dr. William Bass’s report and concurred with it.

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Dr. Francisco testified that his report stated that semen was found on vaginal

swabbings of the victim’s vagina and that Dr. James Spencer Bell collected that evidence

before the autopsy. He said that DNA testing was not performed in 1975 and that the

technique for magnifying DNA was not developed until the early 1980s. He said that in

1975, there were no precautions in the laboratory to prevent the transfer of DNA. He said

that in 1975, the person who prepared a swab would touch it and that there were numerous

sources of contamination. He acknowledged that he and Dr. Bell made their own swabs by

twisting cotton around a stick and that gloves might not be worn in conducting vaginal

swabbings.

Dr. Francisco testified that the vaginal swab procedure called for taking samples with

two swabs, which were placed in a tube and delivered to the laboratory with a request slip.

He said that during any delay before analysis, they would have been stored in a secure area,

currently referred to as an evidence locker, which might be refrigerated. He said that no one

except the analyst had access to the swabs during this time and that the samples probably

would not have been air dried. He said that slides would have been prepared by rolling the

swab onto the slide and that the analysts did not wear gloves at that time. He said the vaginal

samples collected in this case were analyzed four days after they were collected. He said the

analyst, Ms. Fowler, reported that sperm was detected. He acknowledged that other things

that might be present on a dead body, such has mold spores, yeast buds, and fungus, might

appear to be sperm. He said that he first saw the slides when they were retrieved from the

laboratory in 1990 by the Nashville authorities and that between 1975 and 1990, they would

have been stored in numerical order in a slide drawer. He stated that there were conflicting

chemical test results regarding whether the substance was seminal fluid because spermine

and “the impact [sic] for spermatozoa were found, but acid phosphatase and choline were not

detected.” He said that it would be unusual for intact sperm to be present after thirty-three

days but that sperm could survive much longer on a victim’s clothing. He testified that the

slides could be identified as the victim’s because they were marked with a unique “TE

number” assigned by the serology laboratory, TE75-218. He said the autopsy number or the

victim’s name were not used for the slides. He said that in this case, Ms. Fowler would have

assigned the TE number. He said a serological type could not be determined from the slides

because the sample was insufficient or degraded. He said the only evidence of sexual assault

was the observation of sperm on the slides. He said that if testing of the slides showed four

or five DNA contributors, they were probably contaminated. He said contamination would

not alter the presence of existing DNA but would place additional DNA on the slides.

On cross-examination, Dr. Francisco testified that the victim’s autopsy was the only

one he ever performed for Nashville authorities. He agreed that he did not have a

standardized working relationship with Metro Police regarding items to be sent with the

body, such as clothing and fingernail clippings. He said the victim’s hands were bagged. He

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did not initially receive crime scene photographs or other items recovered from the

immediate vicinity of the body. He said he received crime scene photographs after he

performed the autopsy, possibly after he issued his report.

Dr. Francisco testified that the victim’s body was in the first stage of decomposition

and that there was no evidence of animal destruction. He said that he requested information

about food the victim might have consumed, that he was provided information about

powdered donuts, and that he was told that pears were available in the victim’s home. He

said temperature affected the rate of decomposition. He obtained weather information from

the Davidson County Weather Bureau and went to Nashville to record temperatures in the

garage for comparison with weather bureau reports. He did not include this information in

his report.

Dr. Francisco did not recall if he was asked in 1975 whether it would take significant

force to break the hyoid bone or whether an adolescent or a child was capable of producing

that amount of force, but he conceded he might have stated his opinion to the police. He said

a child could produce the necessary force. He stated that although he had some

conversations with detectives about specific issues after his report was delivered, he did not

recall much conversation.

Dr. Francisco testified that during the autopsy, he saw fluid in the vaginal vault but

conceded that it was not possible to identify seminal fluid based upon visual observation.

He said there were three unique numbers associated with the forensic institute and the

toxicology laboratory – the autopsy number, the toxicology number, and the trace evidence

number. He said the batch number was not part of a unique numbering system. He said that

he had “no doubt” the slides identified as evidence were from the victim’s autopsy and that

the numbering used on the slides was consistent with the practice in 1975. He said that the

term “intact spermatoza” used in his report was a plural term meaning more than one sperm.

He said spermine referred to a chemical that is typically present in semen. He said he had

not changed his original opinion that semen was present on the victim’s body. He was

unsure whether he was asked in 1975 whether the victim could have been partially

penetrated. When asked if he recalled being asked whether the victim might have been

penetrated by someone with an underdeveloped penis, he said, “That . . . kind of rings a bell.”

Dr. Francisco testified that it was possible that the victim’s body was moved to the

garage after lividity set in. He said it was more reasonable to conclude, as he had, that the

body was in the garage from the time of the victim’s disappearance or shortly thereafter.

Dr. Francisco testified that the most reasonable explanation for the multiple DNA

profiles was “touched DNA,” caused by contamination in preparation of the swabs,

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preparation of the slides, storage, and handling. He said that in 1975, there were no concerns

about DNA and that no precautions were taken to avoid contamination. He said he did not

prepare a report about possible contamination of the slides. He acknowledged that an

assistant district attorney general provided the information he used to formulate his opinion

about contamination. He did not think he was given specific information about the presence

of a mixture and the gender marker for each slide individually.

On redirect examination, Dr. Francisco testified that the fluid he observed in the

victim’s vagina was small and that decomposition would have produced fluid in the vagina.

He said he would expect to have consistent DNA results on the two swabs. He agreed that

if there were multiple DNA profiles on the five slides prepared, this would indicate

contamination. He said that it was possible to transfer sperm from laboratory samples from

one autopsy to another but that it was “very unlikely.” Dr. Francisco testified that based

upon the lividity of the body, if it was moved from another location after death it would have

had to have been placed in exactly the same position at the original location as it was found

in the garage.

Marie Maxwell testified that she lived on Copeland Drive in 1975 and knew the

victim’s family, who lived across and down the street. She said that on February 25, 1975,

she arrived home about 5:30 p.m. She said that as she was getting her daughter out of the

car, she noticed three people next door at Ms. Howard’s home. She estimated they were

thirty feet away and said there was still enough daylight for her to tell that there were three

people. She admitted she did not see them clearly through the hedge. She said that she

thought one of the people might be the victim and that the victim might be bringing cookies

to her. She said she looked at the people for four to six seconds and did not focus on the

people other than the one she thought was the victim. She said she might have looked at the

people a second time when she brought her daughter around the car. She said she went

inside to retrieve her checkbook and await the victim’s arrival. She identified photographs

taken from her driveway toward Ms. Howard’s home and said that the two people in the

photograph were in approximately the same location as the three people she saw on February

25, 1975, but said that she was standing at a greater distance than the photographer.

Ms. Maxwell testified that she was familiar with the victim’s size. She said the person

who she thought was the victim had a box like the ones used for Girl Scout cookies on the

ground. She acknowledged she could not see the person’s face. She said one of the other

people was “a little bit taller than” the victim and was not facing her. She said the third

person was facing her and was wearing a long, poorly fitted, drab, dark coat. She assumed

the third person was Ms. Howard because Ms. Howard lived on the property alone. She said

she previously described the person as about 5'7" or 5'8", which she based on the person

appearing about one and one-half feet taller than the victim. She recalled the victim reaching

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up to hand something to the taller person. She acknowledged she told the FBI the next day

that she thought the taller person was white. She said that in retrospect, she thought she had

assumed the person was white because Ms. Howard was white and she did not have any

African-American neighbors. She did not, however, recall the person’s race.

Ms. Maxwell testified that the victim’s mother called and inquired about the victim.

She said she told the victim’s mother that she had seen the victim next door about 5:30 p.m.

but that she thought the victim went to the Thorpes’ house because she heard her dog bark

at the back right corner of her yard. She said she assumed the victim was going through the

woods at the back of her property. She said the Thorpes’ garage, where the victim was

found, was about a thirty-second walk from her backyard.

Ms. Maxwell testified that she was interviewed by law enforcement agencies at least

twenty times about the victim’s disappearance. She said that on February 25, she spoke with

several people but was not sure whether they were police officers or media reporters. She

said she felt pressured to provide information that would help find the victim, and later, to

find the victim’s killer. She said she participated in two to four hypnosis sessions around

March 17, 1975, which she did not think were helpful. She said she provided a description

of the taller person, from which a composite sketch was drawn, but she was unsure whether

she had described something she saw or “was just desperate to help.” She acknowledged

telling the police that the person had a dark complexion, but she thought she said this based

upon the person’s complexion in comparison with Ms. Howard’s. She said the person’s hair

was darker than Ms. Howard’s gray hair. She said that based upon the person’s pants, she

described him as being male. She said women did not wear pants often at the time,

especially Ms. Howard. She said she did not think she could identify the taller person. She

said that she was unsure what she saw on February 25 but that she was “pretty sure” she saw

the victim.

On cross-examination, Ms. Maxwell testified that she reviewed her previous

statements before testifying. She said that although she did not know the victim’s family

well, she was familiar with the victim because the victim was interested in Ms. Maxwell’s

one-year-old daughter. She identified a photograph that depicted her driveway, Ms.

Howard’s house and driveway, and the Thorpes’ garage. The Thorpes’ garage was visible

from her driveway. She acknowledged that other than the victim, she did not recognize the

people in Ms. Howard’s driveway. She said that because she thought the victim was one of

them, she did not change her daughter’s outfit in order for the victim to see it, and she

retrieved her checkbook to pay for her cookie order. She said she waited for the victim to

deliver the cookies for twenty to twenty-five minutes, until Ms. Trimble called to inquire

about the victim. She informed Ms. Trimble of her belief that the victim went to the

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Thorpes’ house, based upon the barking dog in the back corner of her yard. She said her yard

was fenced but the Thorpes’ was not.

Ms. Maxwell testified that she was interviewed by several law enforcement agents

while the victim was missing. She said she wanted to help and was not trying to give faulty

information. She agreed that she described the taller person in Ms. Howard’s driveway as

a child but that she did not know the person’s gender. She recalled stating that the child was

white but did not recall being asked whether the child was black. She was certain that the

adult was facing her. She said the person’s coat was knee-length or longer and

acknowledged she may have described it as “an old woman’s coat.” She said the coat was

too big for the person. She agreed she described the person as white.

Ms. Maxwell testified that she attended the victim’s funeral. She did not recall telling

the police that a person named “Demassa” or “Massa” who was at the funeral resembled the

adult she saw in Ms. Howard’s driveway, but she acknowledged that reports created at the

time reflected that she made the statement. She said that at the time the victim disappeared,

she did not know Jeffrey Womack but that she later became familiar with his appearance.

She said she “probably” told the authorities that the person resembled Jeffrey Womack. She

identified a composite sketch that was prepared from her description of the adult in Ms.

Howard’s driveway. She agreed that the sketch depicted a white person, that the sketch was

distributed publicly for a long time, and that she never requested its recall due to inaccuracy.

She agreed that the sketch was prepared from her descriptions during four hypnosis sessions

with the authorities. She said she did not think she was ever under hypnosis during the

sessions because she did not feel like she ever lost awareness of her environment. She said

that she never identified a suspect and that she did not think she would have been able to do

so. She agreed she probably told the police in October 1976 that she never looked at the

adult’s face. She agreed that when she was hypnotized, she had been exposed to outside

information about the investigation. She agreed that Jeffrey Womack came to her door

soliciting money for charity a couple of weeks after the victim’s disappearance. She

maintained that she did not see the person’s facial features and said she was unsure of the

person’s race.

Dr. William Bass testified as an expert in forensic anthropology. He said he was

asked to review the case in 2002 in order to determine the victim’s time of death. He

reviewed the autopsy report, the victim’s dental records, photographs of the autopsy, and

photographs of the crime scene. He identified his written report, which was received as an

exhibit. He said that in his opinion, the victim died at the time of her disappearance. He said

that temperature was the major factor in the decay of a body. He said he reviewed the

records of the temperatures in the thirty-three days between the victim’s disappearance and

the discovery of her body. He said he examined the insect activity relative to the body and

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noted that flies were active only at fifty-two degrees and above. He also noted the presence

and maturity of maggots. He said he agreed with Dr. Francisco that the body was not moved

after the victim’s death.

On cross-examination, Dr. Bass testified that he told defense counsel before the trial

that he had not looked at the crime scene photographs, but he acknowledged that a detective

told him earlier on the day of testimony that he had seen the photographs but had not retained

them. He said he reviewed the photographs that morning but did not recall seeing them

previously. He was unaware in 2002 that the garage did not have doors. He said that this

could be a significant factor but that he did not think it was in this case. He said that he was

not provided with preserved maggot larvae, which would have been helpful. He said he was

not provided with a 1975 entomology report and did not recall seeing the photographs taken

by Dr. Francisco. He acknowledged that his review was premised upon observations made

by others and said the description of the body in the autopsy report was consistent with the

victim’s having been dead for thirty-three days. He said his opinion that the body had been

in the garage for the thirty-three days was based upon the fact that the lividity was unchanged

and Dr. Francisco’s observation that the victim’s clothing was not dirty. He agreed that the

victim’s body could have been elsewhere in an environment under similar conditions.

On redirect examination, Dr. Bass testified that if the victim’s body had been in

another location before it was in the garage, it would have had to have been in a position

“very close” to its presentation at the scene in order to match the rigor mortis pattern. When

shown photographs from the scene, he said the condition of the body was consistent with his

opinions. He agreed that he concurred with Dr. Francisco’s findings.

William Gavin, an expert in forensic serology, testified that he was a former FBI agent

and was employed by the FBI for twenty-eight years. He said that in 1975, he had been

working as an analyst in the serology unit of the FBI laboratory for about three years. With

respect to the procedure for maintaining evidence submitted to the laboratory, he said that

evidence was “signed in” when it was received. He said that they used the case number

assigned by the local agency, that an FBI number would be used if the FBI had an interest

in the case, and that a laboratory number was also assigned. He said that forensic evidence

typically had three numbers. He said that if the substance to be examined was known, this

was designated by a K. Where the composition or identity of a substance was questioned,

this was designated by a Q. He said that when he received evidence, he determined whether

he had been given everything that was supposed to be present. He then conducted tests to

determine the nature of the Q substances. He further marked stains with B, denoting blood,

and S, denoting semen, depending on the substance for which he was looking. He said that

in 1975, they did not photograph the evidence they examined. He said that DNA testing was

not available at the time.

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Mr. Gavin testified that blood testing involved identifying a stain visually, conducting

an initial chemical test, making a cutting, applying a confirmatory chemical test, and

examining the sample under a microscope. If the substance was determined to be blood,

another chemical test was applied and observed microscopically to determine whether the

source was human. If there was enough of the substance for further testing, it was then

grouped by blood type. He said that testing for seminal fluid involved visual inspection and

tactile examination of a stain on a garment, making a cutting, mixing the cutting in a test tube

with a saline solution, placing a sample on a slide, adding a reagent, and examining the slide

under a microscope. He said that the presence of seminal fluid did not allow for a conclusion

that semen was present and that spermatozoa must also be present on the slide to support a

conclusion that a substance was semen. He said that the appearance of spermatozoa was very

distinctive, with a head, neck, and a tail, and that he would not have confidence to conclude

that spermatozoa were present if he merely observed segments. He said he would not work

on two cases simultaneously due to the risk of contamination.

Mr. Gavin testified that he examined evidence in the victim’s case. He said that

although he prepared notes when he conducted his examination, he learned when he was

called to testify that his notes were destroyed, although his reports were not. He said that

after he conducted his testing, he would have returned the notes and evidence to the person

or persons who gave him the evidence and would have given them his conclusions. He said

the conclusions from various laboratory examinations would have been typed into a report.

He identified a report containing his findings and identified the laboratory number, PCL7190,

the FBI number associated with the victim’s kidnapping, 7-15942, and his initials used on

the report, OJ. He said he used his own initials when identifying evidence. Referring to the

report, he testified that Lieutenant J. Wise delivered the evidence to the laboratory on March

31, 1975.

Mr. Gavin identified underwear that he examined for the presence of blood and semen

and testified that neither was present. He identified a pair of pants and said he found semen

containing spermatozoa on them, but not blood. He identified a blouse and said he found

blood on the sleeve but was unable to obtain a blood type grouping. He found semen

containing spermatozoa on the blouse. Mr. Gavin stated that in 1975, cuttings made from

evidence were partially consumed in the testing process and that the remaining portions were

not retained. He said he was not provided with any of the Defendant’s bodily fluids for

serology examination.

On cross-examination, Mr. Gavin testified that he recognized the items he tested based

upon their identification number, not his specific recall of having tested them thirty-four

years earlier. He said that although he did not have specific memories of conducting

individual tests in this case, he was confident from the documentation and identifying

-12-

information that he worked on the case. He said his name did not appear on the report but

that the initials OJ designated him. He said the identities of others who handled the evidence

were likewise designated by initials, not names.

Mr. Gavin testified that in the victim’s case, Agent John Hipperd received the

evidence first and designated the Q numbers. He said Agent Hipperd conducted microscopic

analysis and then gave the evidence to him. He said that three people examined the evidence

but that he was unsure of the third person’s identity and the nature of the testing done by that

person. He said that laboratory aides who worked under the supervision of the analysts might

have handled the evidence. He said he could not identify the date when he conducted the

examination but said the information would have been recorded in his notes.

Mr. Gavin testified that protocol called for garments to be packaged individually. He

said that evidence was examined in the laboratory in a specific order and that in a rape case,

microscopic analysis for hair and fibers was conducted before the serological examination.

He acknowledged that he did not wear gloves when performing the tactile examination. He

said the number of cuttings he made on the various garments would have been recorded in

his notes. He acknowledged the report did not state the number of cuttings, the results for

the individual cuttings, or the number of spermatozoa he observed. He said that the

microscopic testing he performed to determine the presence of semen was considered reliable

at the time. He conceded that he had not worked at the FBI laboratory since 1977 and that

he did not know the current testing standards. He said the semen grouping tests were

inconclusive. He said that as a matter of customary practice, the cuttings and slides would

have been discarded. On redirect examination, Mr. Gavin testified that during his time in the

FBI laboratory, he never had a semen sample from any individual associated with this case.

Metro Police Captain Mickey Miller testified that he was presently in charge of the

warrant fugitive division but that he was assigned to the criminal investigation division in

1990, when he reviewed the victim’s case file. He said their review was for evidence to

submit for DNA testing. He identified the victim’s blouse and jeans. He said they retrieved

slides that had been stored by the medical examiner’s office in Memphis. He said that the

medical examiner had been unable to locate the slides when they first requested them but that

the slides were located about two-and-one-half weeks later in a basement file cabinet. He

said the jeans were submitted to the FBI laboratory and then to CDR Laboratories. He said

a DNA profile was identified in March 1992. He said that due to advancing technology, the

jeans were sent to the TBI laboratory in 2000 and to the FBI laboratory in 2004. He said the

slides were sent to the FBI initially, returned in December 1990, sent to CDR Laboratories,

and sent to CDR a second time in 1994. He said the slides were also reviewed by Roche

Biomedical, which later became Lab Corp, and by Joe Minor of the TBI. He said the blouse

was sent first to the FBI laboratory, then to CDR. The blouse was also sent to the TBI in

-13-

2000 and to the FBI in 2004. He said that over 100 samples were obtained for DNA testing,

including those of Jeffrey Womack and Bill Massa. He agreed they tried to obtain DNA

samples for almost everyone in the victim’s neighborhood.

On cross-examination, Captain Miller testified that Detective Tommy Jacobs reopened

the investigation in August 1990. He agreed he was not involved with the investigation until

1990 but said Detective Jacobs had been involved since the night of the victim’s

disappearance. He agreed that DNA testing in 1990 required blood to be drawn but that it

could now be accomplished from swabbing a person’s cheek. He agreed that the majority

of people gave a biological sample voluntarily but that a search warrant had to be obtained

to draw blood from some of the people. He also agreed that numerous polygraph tests were

administered. He thought that all of the people whose blood was drawn and who were given

polygraph tests were white males.

Captain Miller acknowledged that a report was prepared from a 1991 exercise in

which various officers played the roles of the victim and other individuals in the case in order

to reconcile the various timelines. He said, however, that they were unable to reconcile the

timelines. He could not recall whether he met with Ms. Ray, a library employee, on the same

day as the exercise or the following day, regarding “the bus exercise.” Captain Miller

identified an undated police photograph as appearing to be the same as the Defendant’s 1975

police photograph, which he reviewed previously.

On redirect examination, Captain Miller testified that Jeffrey Womack took several

polygraph examinations. He said that in the 1991 exercise, he was unable to disprove Mr.

Womack’s alibi.

Charles “Friday” Blackwood testified that he was a private investigator and was a

former crime scene investigator for the Metro Police Department. In September 1991, he

visually examined the victim’s pants, shirt, underwear, and boots using an alternate light

source. He said he was looking for items such as stains, fibers, or hairs. He said that to his

knowledge, the police department did not have alternate light sources in 1975 and that

alternate light source technology continued to improve after 1991. He said that he identified

five areas showing contrast on the victim’s jeans and that he marked and made cuttings for

further examination. He said he did not identify any contrasting areas on the victim’s blouse,

and he explained that the alternate light source did not detect all stains. He said a sample was

collected from a stain on the victim’s underwear, another from the victim’s left boot, and two

from the victim’s right boot. On cross-examination, Mr. Blackwood testified that he

collected hair and fibers from the victim’s jeans.

-14-

Davidson County Sheriff’s Investigator Michelle Ray testified that she reviewed

recorded video footage from the jail in which the Defendant was confined. The recording

was received as an exhibit.

Sheldon Anter testified that he and the Defendant were housed in the Davidson

County Jail in the summer of 2008. He acknowledged that he was an illegal alien from

Trinidad facing deportation proceedings that were deferred until after he testified in the

Defendant’s case. He acknowledged that he testified previously in another matter involving

the Defendant and that the State requested that federal authorities release him into the

community in order for him to testify in the present case. He denied receiving other benefits

for his testimony. He said that he had been convicted of worker’s compensation fraud and

that a theft charge was retired in exchange for his agreement not to appeal the fraud

conviction.

Mr. Anter testified that while he was in jail with the Defendant, they talked “pretty

much” every day. He said they discussed their respective cases. He said that the first time

the Defendant mentioned the case involving the victim, the Defendant stated that the

Defendant’s DNA was on the victim but denied raping the victim. He said they had another

conversation on the roof in which the Defendant admitted killing the victim but denied raping

her. He said the Defendant stated that his DNA was on the victim but not inside her. He said

that another time, a television program featured information about the victim, prompting the

Defendant to say to Frank White and him that the authorities found the Defendant’s DNA

on the victim. He said the Defendant stated that the authorities were about to obtain

fingerprints from him and perform tests. Mr. Anter recalled another occasion in the

recreation room when he and Mr. White inquired why the Defendant’s DNA was on the

victim, given the Defendant’s previous denial of any knowledge of the victim. He said that

the Defendant admitted that his DNA was on the victim and that the Defendant claimed to

have killed but not raped the victim. He said the Defendant made the same statement on

another occasion when he, Mr. White, and Jerome Napper questioned the Defendant about

the victim.

Mr. Anter testified that on August 16, 2008, Mr. White was taunting the Defendant

about being a “baby killer and a rapist.” He said the Defendant responded, “I have killed

before and I have no problem killing you.” He said the Defendant went inside Mr. White’s

cell and stated that the Defendant would kill Mr. White as the Defendant had killed before.

He said that Mr. White pushed the Defendant away and that the Defendant said, “I will kill

you like I’ve killed before.” He said the Defendant also claimed to have killed but not raped

the victim. He said that later the same evening, Mr. White continued to taunt the Defendant

and that the Defendant continued to admit killing the victim but denied raping her. He

acknowledged that it was not good to be known in jail as a child rapist. He said the incident

-15-

was documented on videotape. The video recording introduced during Ms. Ray’s testimony,

which had no audio, was played for the jury as Mr. Anter narrated it. Mr. Anter said he did

not report any of the Defendant’s statements to the police until he was questioned by

Detective Coleman about ten days after the August 16 incident. He denied requesting the

meeting with Detective Coleman.

On cross-examination, Mr. Anter testified that he had been in the United States for

twenty-four years. He said he had family, a fiancee, and children in the country. He said

that before his arrest, he planned to live the rest of his life in the United States. He said he

feared for his life if he returned to Trinidad. He acknowledged that he knew in March 2008

that he faced deportation proceedings. He acknowledged that he hired an immigration

attorney to help avoid his return to Trinidad but denied that he was using the Defendant as

leverage in the deportation matter.

Mr. Anter acknowledged that the pod in which he and the Defendant were housed was

small, that there was only one television in the pod, and that he first heard the victim’s name

on television, not from the Defendant. He agreed that Mr. Napper and Mr. White had been

his cellmates at times. He acknowledged that the inmates spoke to each other through the

vents and that conversations could be heard throughout the pod. He acknowledged that he

did not know the Defendant until he requested and was moved into the pod on May 21, 2008,

and that the Defendant was already in the pod when he arrived. He said he asked the

Defendant what his charges were but denied asking questions about the victim. He

acknowledged that the Defendant did not answer him. He denied asking the Defendant about

writing a letter to the District Attorney General regarding another inmate.

Mr. Anter acknowledged that he spoke with Mr. White frequently about Bible study,

although they had not known each other before being in jail. He said the Defendant and Mr.

White did not like or trust each other. He agreed he told Detective Coleman about Mr.

White’s statement that Mr. White would kill the Defendant because the Defendant was a

“baby killer.” He agreed that Mr. White had information from the internet about other

inmates in his cell and that the materials were contraband in the jail. He said Mr. White had

a photograph of the Defendant. He said he was never questioned about Mr. White’s

possession of the materials.

Mr. Anter denied that Corporal Antonio Johnson, one of the jailers, allowed him to

come out of his cell when the other inmates were locked inside their cells. He denied that

he asked Corporal Johnson about the Defendant. He acknowledged that as time passed, he

and the Defendant did not get along well. He said the Defendant approached and threatened

him when he was playing cards with other inmates. He said he overheard the Defendant

talking to other inmates in addition to the Defendant’s statements to him. He acknowledged

-16-

that Mr. White became his cellmate the night of August 16, 2008, and that he told the

Sheriff’s Department that he wanted to report a crime. He said that the crime was a fight

between Mr. White and the Defendant and that he told them he did not want to explain the

details of the incident. He acknowledged that when he was questioned about the Defendant,

he told the authorities he had notes of everything that occurred in the pod. He said, though,

that he later flushed them in the toilet.

Mr. Anter denied that he committed the theft that was the basis for the retired felony

charge or that he tried to defraud a business by using a receipt for previously purchased

goods. He denied telling his sister that the State was going to help him with his immigration

case in exchange for his testimony in the other matter involving the Defendant. He said that

he did not ask for the State’s assistance and that the only thing the State did was write a letter

requesting that he remain in the United States in order to testify. He denied that he

previously refused to testify unless his custody status was changed but explained that he

demanded to be released in order to deal with the immigration case. He said that he refused

to testify because he wanted to avoid cameras and that the Defendant had threatened his life

and his family. He said he had been deported previously. He agreed he had been released

from federal custody and was home with his family in Nashville but said his deportation

proceeding was still pending.

On redirect examination, he identified the Defendant in the courtroom. He agreed he

had a good relationship with the Defendant at times. He agreed he had no knowledge

whether his lawyer requested that the district attorney’s office write a letter on his behalf

regarding the deportation proceeding.

Metro Police Detective Hugh Coleman testified that on August 26, 2008, he was

assigned to the Homicide Cold Case Unit. He said he interviewed Sheldon Anter about

possible statements made by the Defendant. He said Mr. Anter cooperated and did not

request anything, nor did he promise Mr. Anter anything in exchange for the statement. On

cross-examination, Detective Coleman testified that Mr. Anter claimed to keep information

to himself. He agreed that Mr. Anter did not know ahead of time that the sheriff’s

department was going to interview him.

Andrew Napper, an inmate, testified that he was present when a news story about the

victim was on television at the jail. He said that Mr. Anter made a remark to the Defendant

and that the Defendant stated, “I killed her, I didn’t rape her.” He said that he did not report

the statement to the police but that he revealed it when the police questioned him. He

acknowledged his own lengthy criminal record, which included convictions for burglary,

robbery, forgery, theft, escape, and criminal impersonation. He also acknowledged that he

had worked as a paid police informant in drug cases. He had a pending probation violation

-17-

case. He denied making any deals with the State other than his transfer to another county for

protection following his testimony.

On cross-examination, Mr. Napper acknowledged writing a letter to the district

attorney about an inmate other than the Defendant in which he requested assistance with his

case in exchange for his testimony against the inmate. He said he never received a response.

He denied that he made statements to jail workers claiming that he made a deal which would

require him to serve sixty days of a five-year sentence.

Will Griffith testified that he was Andrew Napper’s attorney. He said the State did

not promise anything to his client aside from its agreement that Mr. Napper could be

transferred to another county if he testified in the Defendant’s case.

Metro Police Detective Pat Postiglione testified that he was the sergeant in charge of

the Homicide Cold Case Unit. He said that in the course of investigating the victim’s

homicide, the police determined that the Defendant lived in Nashville in 1975, that the

Defendant lived in Memphis in 2007, and that they obtained a search warrant for the

Defendant’s DNA sample. He said a DNA sample was collected by swabbing the inside of

the subject’s mouth on both cheeks. He identified the swabs used to collect evidence from

the Defendant and said they were first sent to the TBI laboratory and later sent to the SERI

laboratory in California. He said the SERI laboratory conducted DNA testing using the same

method used to test the victim’s jeans in 1991. He said that the method of testing was no

longer prevalent but that they had to use the same means for the Defendant’s sample as had

been used to test the victim’s pants. He said that after the testing, the Defendant was indicted

and arrested.

Detective Postiglione testified that he interviewed Andrew Napper at the CCA

correctional facility on September 11, 2008. He said Mr. Napper did not request the

interview but was cooperative. He said he did not offer assistance, nor did Mr. Napper

request it. He said a paid police informant must be truthful and reliable. On cross-

examination, Detective Postiglione testified that he learned through the investigation that the

Defendant was in jail part of the time the victim was missing, beginning on March 12, 1975,

and continuing through the time the victim’s body was found.

Janice Williamson testified as an expert in DNA analysis and said that from 1974 until

1997, she was employed with Center for Blood Research (CBR) Laboratories as the manager

of clinical laboratories. She said that from 1990 until 1994, she worked with the forensic

section of CBR Laboratories. She said the laboratory conducted two types of DNA testing,

PCR testing for forensic applications and RFLP testing for paternity applications. She said

that PCR testing was better suited for forensic settings because it allowed for amplification

-18-

of old or small samples. She said that DNA could degrade but that it could not change its

genetic composition. She identified DQ Alpha testing as a type of PCR testing the laboratory

used in the early 1990s.

Ms. Williamson testified that the procedure for newly submitted evidence was to make

a log entry for the sample, assign a unique case number, and photograph the evidence.

Individual numbers were also assigned for each item pertaining to a single case. She said

that the evidence would be stored in the best location for the type of evidence. She said that

she worked with a team that included Dr. David Bing and Susan Mitchell and that they

worked collaboratively when determining the strategy for testing samples, that at least two

of them read the results independently, and that they discussed any discrepancies. She said

Dr. Bing was deceased. After the evidence was documented, the team would discuss who

was going to test the evidence and the procedures that would be used for the tests. She said

that the evidence relative to the victim’s homicide was numbered F131 and that some of the

records of the testing done with respect to the victim’s homicide were no longer available,

including a notebook and photographs.

Ms. Williamson described the process of differential extraction, whereby an analyst

separated “fractions” of cells in two groups to determine whether it was possible to isolate

DNA in each type of cell. The laboratory compared the DNA profiles of stains on the

victim’s clothing with the victim’s DNA from her hair roots. The laboratory results reflected

that the victim’s DQ Alpha Type was not the same as that on two samples from the victim’s

jeans. The laboratory report, which was received as evidence, reflected that ten individuals

whose biological samples were submitted were ruled out as the contributor. These

individuals included Mr. Womack, Mr. Egerton, and Mr. Mesa.

Ms. Williamson identified slides that the laboratory received on April 6, 1994, and

testified that the slides were previously received on September 18, 1991, and that numbers

were assigned, but that no testing was done at that time and they were returned to Nashville.

She said that in 1994, the slides were assigned new individual numbers but retained the same

case number. She said the slides were opened and the material was tested for DNA evidence.

She said that because some of the slides had mixtures of DNA from multiple persons, she

sent the slides to another laboratory for further testing. On cross-examination, she identified

the laboratory where the slides were sent as Roche Lab in North Carolina.

Megan Clement, the technical director of the forensic identity department of

Laboratory Corporation of America in Research Triangle Park, North Carolina, testified as

an expert witness in DNA analysis and said that in 1994, “Lab Corp” operated with a

different business name. She received approximately eighty-one vials of extracted DNA,

slides, cloth material taken from a pair of underwear, and the victim’s reference sample,

-19-

which were shipped from Dr. Bing at CBR Laboratory. She stated that her laboratory was

able to examine eight areas of DNA, whereas Dr. Bing’s laboratory could only examine one.

Ms. Clement testified that a laboratory number for her laboratory was assigned to the

evidence. She said they tested samples from thirty-five people who had not been ruled out

by the testing done at CBR Laboratory. She stated that with one exception, her laboratory

relied on the DQ Alpha test results developed by CBR Laboratory. Her laboratory developed

a DQ Alpha type for one sample that CBR had been unable to develop. She said that none

of the known DNA profiles matched the slides from the victim’s body and that they were not

given a sample from the Defendant. She said they could not verify the victim’s DNA on any

of the slides they tested, although she would have expected to find the victim’s DNA from

the vaginal swabbings. She said, though, that there were DNA mixtures on all but one of

these slides. She said that similar results were expected but that completely different results

were not. She identified three samples containing two or more DNA profiles and said that

the combination of the contributors to the mixtures varied. She stated that DNA from at least

five people was in the mixtures and that there could have been as many as six to eight. She

said there were numerous ways in which extraneous DNA might reach the slide, including

someone who touched the slides, spoke near the slides and deposited saliva, or sneezed on

the slides. She doubted that gloves were worn in laboratories in 1975 and said that she did

not wear gloves when she began doing serological analysis in 1985.

Ms. Clement testified that she did not examine whether there were sperm cells on the

slides, nor did she determine the gender of the contributors. She said technology to

determine the sex of the contributor was not available at the time. She said sperm cells broke

down over time and could become unidentifiable. Ms. Clement said that her laboratory

tested the substance on the slide that CBR Laboratory had not been able to type with the DQ

Alpha process and eliminated all thirty-five known samples as not matching the DNA on the

slide. She said the eliminated samples included the victim’s known sample.

On cross-examination, Ms. Clement testified that her laboratory used what was

cutting-edge technology at the time. She said that technology existed at the time of the trial

that allowed analysis of a DNA profile to determine whether it was from a sperm cell but that

her laboratory did not have the technology when it conducted the testing. She said that the

probability of the profile that was developed matching someone in the Caucasian population

was approximately one in 180,000 and that it was one in 10,800,000 for the African-

American population. She said that after the initial testing, the laboratory received seventeen

additional samples to test. After their testing was complete, they sent the slides to the

Nashville authorities.

-20-

On redirect examination, Ms. Clement testified that although the victim’s underwear

was tested, they were unable to obtain any DNA results. She acknowledged that upon

microscopic examination of apparent sperm cells, the substance might actually be yeast or

overlapping cell nuclei.

Retired Berry Hill Police Officer Tommy Lunn testified that he was on duty on March

12, 1975, around 8:30 p.m., when he was called to an apartment complex, where he arrested

the Defendant. He said the Defendant was wearing a full length coat, a ski mask, a second

hat, and two pairs of gloves. He identified the Defendant’s booking photograph and clothing.

He said the Defendant gave a home address that was eight or nine miles from the arrest

location. He said that at the time of the arrest, the Defendant was 6'2", 150 pounds, with

black hair and brown eyes. On cross-examination, Officer Lunn testified that the Defendant

reported that his employer was the Nation of Islam.

TBI Special Agent Forensic Scientist Joe Minor testified as an expert in DNA analysis

and said that on August 25, 2000, he received the victim’s blouse and slides for testing. He

analyzed the blouse with an alternate light source and noticed stains. He did not receive

results from presumptive testing, but he explained that this did not eliminate the possibility

that DNA or semen was present. He said Jennifer Luttman performed additional testing to

develop the DNA profiles.

Agent Minor testified that he was familiar with the methodology for serology testing

in the 1970s and 1980s. He said that a swab of a person’s vaginal area would be air dried up

to sixteen hours and then packaged in paper. Air drying involved removing the swab from

the tube and exposing it to air. He said he tested the swabbings of the slides prepared by Lab

Corp. He developed one profile from the swabbings. He said that it was a male profile but

that he could not say whether it was sperm or another type of cell. He said that the statistical

probabilities for the profile were that it would match one in approximately forty-one billion

individuals in the Caucasian population, and one in one trillion in the African-American

population. He considered it a “strong profile.” He placed the profile in the CODIS system,

a national database of DNA profiles, and did not receive a match. He said he did not receive

a match from any of the other profiles from samples that were submitted. He said the male

profile from the slide did not match the Defendant’s profile. He acknowledged that he tested

the Defendant’s DNA recently and did not have DNA samples from Dr. Bell, Dr. Petrone,

or the Memphis laboratory for comparison.

When asked how many rape kits he had worked with in homicide and rape cases,

Agent Minor said, “[H]undreds, thousands perhaps.” He said he had never seen a rape kit

that did not contain the victim’s DNA. He said he would have expected to receive different

results and varying mixtures from the five slides prepared from the two vaginal swabs from

-21-

the victim’s autopsy. He said that DNA would be transferred if the laboratory personnel did

not wear gloves or if they made their own swabs to collect the evidence and that performing

a vagina examination without wearing gloves could also transfer DNA, as could touching the

slides without gloves. He said that the current practice was to wear gloves and laboratory

coats, and to limit conversations in the lab due to the easy transfer of epithelial cells. He

agreed he did not have a known sample from the Defendant for testing until 2007. Agent

Minor thought it would be unusual to find intact sperm inside a vagina thirty-three days after

sperm was deposited.

On cross-examination, Agent Minor testified that the testing of the slides in 2000 used

technology that was not available at the time of the previous testing. He was confident that

the male contributor identified from one slide was from one person and could only have

come from a male. He said, however, that testing was not done to eliminate Dr. Francisco

or Dr. Bell as the contributor. He reiterated that the Defendant was not the contributor and

did not recall telling Captain Mickey Miller otherwise. He acknowledged that DNA was

developed from only one of the two differentiated cell types in the sample. He said he

compared sixty-three samples with the profile on the slide. He said the presumptive test he

used to detect the possible presence of semen on the victim’s shirt was still considered

reliable. On redirect examination, Agent Minor clarified that he told Captain Miller that the

slide contained a sperm fraction, which referred to male cells, not necessarily to sperm. He

said it was possible for DNA not to be shown in a presumptive test but found in microscopic

analysis.

Gary Harmor, a forensic serologist with The Serological Research Institute, testified

as an expert in DNA analysis. He said that advances had been made in DNA technology and

that that current technology allowed for identification of anyone other than identical twins.

He said DQ Alpha testing was no longer widely used because it was not as sensitive as STR

testing now used. He said DQ Alpha testing used only one marker, which would yield

different test results in two people about ninety-six percent of the time. In contrast, STR

testing was more discriminating because it used about fifteen markers.

Mr. Harmor identified the Defendant’s reference sample, which he received on

December 12, 2007. He identified the packaging in which he received the sample and the

case number assigned by his laboratory, which was M’73-7531’07. He said that when the

sample arrived in his laboratory, it was “logged in and stored in a secured area, frozen.” The

case file was established and assigned to him because he was the only person in the

laboratory who did DQ Alpha testing. He gave the reference sample to Amy Lee, who

worked in a separate reference sample room. The reference sample room existed to keep

reference samples away from unknown samples. Ms. Lee performed testing and gave him

the extracted DNA. Mr. Harmor amplified the extracted DNA, determined the typing, and

-22-

wrote his report. He identified two reports he prepared. He said that the first, dated January

28, 2008, stated an incorrect date for his receipt of the evidence, and that the second, dated

July 8, 2009, corrected the error.

Mr. Harmor testified that the original DQ Alpha testing only tested for one marker,

but that more recent tests allowed testing for four markers. Using the four-point test for

comparing the Defendant’s sample with the crime scene evidence, he determined that the

Defendant’s DQ Alpha DNA type was the same as that on the victim’s right front pants leg

and inside pants leg. He also determined that the victim was not the source of the DNA on

the pants leg. He said the test results excluded ninety-two percent of the population. On

cross-examination, Agent Minor testified that DNA testing did not reveal how or when a

sample was deposited.

TBI Special Agent Chad Johnson testified as an expert in forensic science and DNA

analysis and said that in STR DNA testing, thirteen loci and the sex-determining marker were

analyzed. He received the Defendant’s sample on October 25, 2007, analyzed it, and issued

his report on November 7, 2007. He said he did not receive any physical evidence from the

victim’s homicide. He sent his report to the FBI when it was requested.

Jennifer Luttman, an expert in forensic DNA analysis, testified that she was the chief

of the CODIS Unit of the FBI and had worked as a DNA examiner. She said the FBI

followed multiple procedures to avoid contamination or cross-contamination of biological

samples. She said that the examiners had only one item on their workbenches at a time, that

they cleaned their workbenches and implements, and that they covered their workbenches

with butcher paper for each item of evidence. She said the DNA analysts ran control tests

to ensure accuracy.

Ms. Luttman testified that the FBI conducted short tandem repeat (STR) analysis, for

which there were three possible outcomes. If the profile from evidence was found to match

a known reference sample, it was reported as an inclusion, or DNA match. Alternatively, if

the two did not match, it was reported as an exclusion. She said that when DNA was found

but the information was not sufficient to allow confidence, it was reported as inconclusive.

She said they also conducted probability analysis based upon four population groups. She

said the laboratory could determine whether a sample contained DNA from more than one

person and the relative proportions from the different sources.

With respect to the laboratory procedures, Ms. Luttman testified that a sample must

be accompanied by a letter explaining the nature of the crime and detailing the evidence

submitted. She said the evidence was given a laboratory number that was based on the day

the evidence was received and whether the source was questioned or known, and followed

-23-

a numerical pattern. She said that the evidence was also assigned a case file number if it was

submitted from a state or local agency and that the case file number would have been

assigned previously if the evidence was submitted from an FBI field office. She said that the

evidence was inventoried and that its transfer to units within the laboratory was documented.

She said that each analyst was assigned a two-letter identifier and that hers was MD. That

identifier was noted on the evidence she was assigned to examine.

Ms. Luttman testified that evidence from the victim’s homicide was received in the

laboratory on March 29, 2004. The evidence was also submitted in 1975 and 1995. From

its 1995 analysis, it was already assigned case number 7-15942 and laboratory number PC-

L7190NUOJJP. She said that the policy for assigning case numbers changed and that

evidence from the victim’s homicide was assigned new case number 95A-HQ-1460421, the

new laboratory number for the victim’s head hair was 040329005UJMD, and the new

laboratory number for the victim’s clothing was 040405031UJMD. She said that the

laboratory’s policy was not to re-examine previously analyzed evidence but that there was

an exception if the notes from the previous analysis could not be found, as with the 1975

notes in this case. She said that additional examinations but not re-examinations might also

be warranted due to technological advances. She said that despite the absence of the 1975

notes, the reports from 1975 were available.

Ms. Luttman testified that serology testing was conducted in 1975 and that RFLP

DNA typing analysis was conducted in 1990. She said that there had been advances since

the introduction of RFLP testing, which required a large sample that was not degraded. With

respect to samples from the victim’s jeans and blouse, she said that no DNA profile was

obtained through RFLP testing and that the stains were consumed in the testing process.

Ms. Luttman testified that the evidence from the victim’s jeans and blouse was re-

analyzed in 2004. She said that after biologists conducted tests, she analyzed the results and

determined that semen was present on one sample from the victim’s jeans and two samples

from the victim’s blouse. The samples from the the victim’s blouse and jeans were submitted

for DNA testing. She said samples from the victim’s underwear were tested by the serology

unit and were negative for semen. She said the DNA testing on the jeans did not establish

that DNA was present. She said that DNA from more than one person was present on the

victim’s blouse and that they were able to obtain a profile for the major contributor and

determine that the person was male. DNA from the minor contributor was only present at

two locations, which was below the laboratory’s threshold for conclusive results. Ms.

Luttman said that due to the small quantity of DNA from the major contributor, she was only

able to examine nine of the thirteen loci. A known sample of the victim’s DNA was

compared and did not have the same profile as the DNA from the major contributor for the

blouse. The comparison of the victim’s DNA to the minor contributor’s DNA was

-24-

inconclusive but consistent with the victim’s DNA. The comparison allowed for elimination

of some individuals as the minor contributor. She said that the evidence was returned to local

authorities and that a report was generated. The report was received as an exhibit.

Ms. Luttman testified that she placed the profile she obtained from the evidence into

CODIS in August 2004. In the fall of 2007, she received information about the evidence that

she gave to the local authorities. The TBI later provided her with the Defendant’s DNA

profile, although she was not given the cheek swabs. She said the Defendant’s DNA profile

matched the major contributor’s profile developed from the blouse. She said the random

match probability was one in six trillion. She said the probability of selecting an unrelated

person from the general African-American population was approximately one in five

quadrillion. The probability in the Caucasian population was approximately one in 160

quadrillion. The probability in the Southeastern-Hispanic population was approximately one

in 230 quadrillion. The probability in the Southwestern-Hispanic population was

approximately one in 2.2 quintillion. She said the Defendant was eliminated as the source

of the minor contributor. Her report was received as an exhibit.

On cross-examination, Ms. Luttman agreed that the FBI laboratory used a team

approach with “different people routinely conduct[ing] different aspects of testing.” She

agreed that the laboratory’s reports did not specify each member of the team and each

person’s participation in the testing, but she said that the information was in the case notes.

With respect to the 1975 analysis, Ms. Luttman acknowledged that she was not able to tell

where cuttings were made on the blouse. She said she did not know when cuttings were

made or how many people handled the blouse before it came to the laboratory in 1975. She

said she had information about the 1990 blouse cuttings’ approximate locations and that the

notes from 1990 state that the cuttings were taken from the same area. She acknowledged

that the cuttings she made in 2004 were not from the immediate area of the previous cuttings.

She said the stains from 1975 and 1990 were consumed in the testing process. She said that

the victim’s boots were tested in 2004 and that blood and semen were not detected.

Ms. Luttman testified that she did not know what the FBI laboratory’s protocols were

in 1975 because she was not employed there at the time. She agreed the protocols were

different in 2004 than in 1990. She acknowledged that there were new protocols in place in

2004 because a biologist had not followed existing protocols in 2002, which had required

repeating work in many cases. She said that although there were thirty-one

recommendations, the protocols did not change drastically. On redirect examination, Ms.

Luttman said that the person who did not follow protocols did not work on the present case.

The defense called retired Metro Police Officer Bill Fallati, who testified that he was

employed in the Youth Guidance Division in February 1975. He said he was assigned to

-25-

investigate the victim’s disappearance. He recalled searching the Thorpes’ garage for the

victim about one and one-half to two weeks after her disappearance. He said it was mid-

morning and daylight. He said the Trimble home was approximately 100 yards from the

garage. He said that he asked his partner, David Mincey, to accompany him during the

search but that he went alone because Officer Mincey had other duties. He said he did not

see a child lying on fertilizer bags in the corner of the open garage. He acknowledged that

he did not create a report about his search.

On cross-examination, Mr. Fallati acknowledged that earlier in the week of the trial,

he told Captain Miller he was not 100% sure the body was not in the garage. He conceded

that it was possible the body was in the garage. On redirect examination, he said that he did

not think there was a body in the garage but that there was “some possibility.”

Ewen Robert “Bobby” Downs testified that in February 1975, he was a police recruit

in training at the police academy. He said he left the police department in January 1980. Mr.

Downs said that as part of the investigation of the victim’s disappearance, he and his partner,

Larry Felts, were asked to search the area near the Thorpes’ garage, the garage, and in the

Trimbles’ neighborhood. He said that “pretty much the whole class” of recruits was involved

in the search. He could not recall how long after the victim’s disappearance the search

occurred, although his report stated it was February 28, 1975. He said he was looking for a

living person, not a body.

With respect to the search of the garage, Mr. Downs testified that he and Mr. Felts

used a systematic method whereby he searched right to left and Mr. Felts searched left to

right. He said that he inspected the inside of the garage, that he emptied wood from a bin,

that he looked under a swimming pool, in fertilizer bags, on shelves, and around a table, but

that he did not see the victim or any boxes of Girl Scout cookies. The diagram he drew

hastily after searching the garage was received as an exhibit.

On cross-examination, Mr. Downs testified that after leaving the police department,

he had done iron work, odd jobs, and been a district manager of furniture stores. He did not

recall how many places he searched for the victim, although he remembered the garage

because he “felt very strange” about it. He did not recall Billy Butler being present during

his search of the garage. He said he expressed his “gut feeling” about the garage in a

meeting of the recruits held after the victim’s body was found. He said Mr. Felts also

expressed his strange feeling about the garage. He said that they had not yet been told that

the victim’s body had been found and that he was asked to draw a diagram of the garage. He

said he also wrote a three-page report at the request of his superior officer but did not recall

when it was written in relation to his drawing the diagram. He denied that he was taken to

the garage to view it again before he created the diagram and the report. He maintained that

-26-

he remembered specific items in the garage that were mentioned in his report, even though

it was created thirty-one days after the search. He said a hole in the back of the garage and

the open front of the garage allowed him to see the fertilizer sacks clearly. He denied that

he was fearful of losing his job because the body was not found during the search.

Mr. Downs denied that he involuntarily resigned from the police department after

being charged with fraudulent breach of trust. He said that it was possible he was charged

at the time he resigned but that he could not remember without “see[ing] the paperwork.”

John Thorpe, Jr., testified that he was fourteen years old in 1975 and that he lived on

Estes Road with his parents and older sister. He said the victim’s body was found in his

family’s garage and identified a diagram of the neighborhood. He said that the house was

thirty yards from Estes Road and that the detached garage was ten to twenty feet from the

house. He said that the garage was used to store items such as garden tools, fertilizer,

lawnmowers, and a bicycle, and that his parents did not park their cars in the garage. He said

his family had a German Shepherd/Laborator mix dog that was allowed outside unleashed.

Mr. Thorpe testified that on February 25, 1975, he came home around 5:15 to 5:30

p.m. from school and basketball practice. He ate a snack inside the house for about ten to

fifteen minutes and left through the back door to go to the Ettinger home to play basketball.

He said he passed behind the garage as he went through his back yard, “trotted” through the

Frenches’ backyard and the Ettingers’ backyard, and arrived at the Ettingers’ driveway. He

did not see anyone or hear anything unusual other than the sound of a bouncing ball. He said

he would have remembered if he had seen anyone unusual. He thought that Brooks Ettinger,

Jodie Macey, Overton Tompson, Chuck Trimble, and March Ettinger were playing

basketball. He said that the victim’s home was across the street from the Ettinger home. He

said that while they were playing basketball, the victim’s father came to the door and called

for the victim.

Mr. Thorpe testified that he was sure he went into the garage between February 25 and

March 30 to get a bicycle, garden hose, or other item, but that he did not go into the garage

regularly. He said other family members would have done the same. He said he never saw

anything suspicious in the garage.

On cross-examination, Mr. Thorpe testified that a photograph exhibit depicted his

bicycle near the front of the garage and that he usually kept it near the front. He agreed there

were several neighborhood boys playing basketball that afternoon. He said there had been

a nice path from the Thorpe house to the Maxwell house, although it became overgrown in

the past couple of years since the Maxwells moved into the house. He said that

-27-

neighborhood children typically did not go into the woods to the right of the Maxwell house

but that they played in his backyard.

Mr. Thorpe testified that he did not see the victim or Ms. Maxwell on the night of the

victim’s disappearance. He said that Hal Moffett, who found the victim’s body, was his

uncle. He said that his family’s dog “was free to roam” and that she was allowed to sleep

inside or outside.

Larry Felts testified that he was a police recruit in 1975 and that he worked as a police

officer until his termination in 1992. He said that he pled guilty to misdemeanor attempted

misuse of information as a result of charges that led to his termination. He said he was

presently employed as an attorney. He said he and his fellow recruits searched for the victim

for two weeks. He said that on February 28, he searched behind the Thorpes’ house with

Bobby Downs. He did not recall how long they searched inside the shed. He said Mr.

Downs began on the right and moved to the left and that he searched in the opposite

direction. He said he could see the location where the victim was eventually found. He said,

“[I]t was evident . . . that she was not out in the open. We would have literally almost tripped

over her.” He said the body was not there, nor did he see any Girl Scout cookies.

Mr. Felts said that after the victim’s body was found, the recruits were told of the

discovery and asked who searched the Thorpes’ garage. He said that he and other recruits

had searched several open garages. The commanding officer said there was something

unique about the Thorpes’ garage. He said that when Mr. Downs told the commanding

officer that there was a commode in a garage, he and Mr. Downs were taken to another room

to prepare a report and a diagram. He did not recall going back to the scene before preparing

the diagram.

On cross-examination, Mr. Felts testified that the recruits searched many locations and

buildings for weeks. He recalled that the Thorpes’ garage was “kind of an eye sore” in the

upper middle class neighborhood and that most of the other garages they searched were

enclosed. He acknowledged that he did not write a report about any of the garages he

searched other than the Thorpes’ garage. He did not recall any lights inside the garage but

said that it was daylight and that light was coming through the front. He did not recall Billy

Butler searching with him, but he would not dispute it if Mr. Butler said he did. He said that

although he and Mr. Downs were taken into a room together to write their reports, they did

not confer and wrote the reports separately. He was not positive that he was not taken back

to the scene before writing the report. He maintained that he remembered specific items in

the garage, including golf shoes and a small swimming pool, even though time passed

between the search and his creating a report.

-28-

Mr. Felts testified that his employment was terminated because he told a person who

was later arrested that the person was not going to be “raided,” although his information

proved incorrect. He said he did not appeal a determination that he lied to his superior

officers.

Davidson County Sheriff’s Corporal Antonio Johnson testified that in August 2008,

he worked at the jail. He said that the Defendant, Mr. Anter, and Mr. White were in a

subsection of the unit he monitored and that Andrew Napper was another inmate he

monitored. He said that the pod area was ten to fifteen yards from the recreation area. He

recalled a day when Mr. Anter asked to come out of his cell to clean and said that Mr. Anter

had been requesting to clean for several days. He said Mr. Anter eventually said that Mr.

Anter wanted to talk to him privately. He said Mr. Anter stated that the Defendant’s case had

been on television recently and inquired whether Corporal Johnson knew anything about the

case. He said he told Mr. Anter that he did not become involved in other inmates’ business.

He said that most inmates would not have asked about another inmate’s case.

On cross-examination, Corporal Johnson testified that Mr. White filed a complaint

alleging that he showed favoritism toward the Defendant. When asked whether he disliked

Mr. White, he said Mr. White was “another inmate.” He said he did not know at the time

what the Defendant’s charges were, although he knew the Defendant had been moved to

protective custody.

On rebuttal, Billy Butler testified that he was a retired police officer. He said he left

in good standing. He said he searched for the victim in 1975. His partner in the search was

Ricky Smith, and they also searched with Mr. Downs and Mr. Felts. He thought that during

the search, he saw Mr. Downs and Mr. Felts through a hole or crack in the back of a small

building. He went to the front of the building and watched from the opening but did not go

inside. He recalled seeing a table and a commode inside. He thought Mr. Downs sat on the

table and looked into a back corner. He said that Mr. Downs and Mr. Felts were searching

but did not touch anything inside and that he watched them for “no more than a couple of

minutes.” He said that at the meeting after the body was found, “We were taken back to the

scene and that’s where I was handed a supplement report to fill out.” He said he wrote the

report while looking at the garage.

On cross-examination, Mr. Butler acknowledged that photograph exhibits did not

depict a hole in the back wall of the garage but maintained that to the best of his recollection,

he saw Mr. Downs and Mr. Felts through a hole or crack. He remembered that the garage

did not have doors but not whether it faced the driveway beside the house. He agreed he did

not go past the center post in the doorway. He did not see Mr. Downs or Mr. Felts discover

anything in the garage. Based on the date reflected in his report, he agreed that this search

-29-

was on February 28, 1975. He identified an undated diagram and said he drew it on March

31, 1975, the same day he created the supplement report.

The jury found the Defendant guilty of the lesser included offense of second-degree

murder for the count charging premeditated murder and for the count charging felony murder

in the perpetration of larceny. The jury sentenced him to forty-four years for each conviction.

The trial court merged the convictions and ordered that the sentence be served consecutively

to a life sentence for a previous conviction. This appeal followed.

I

The Defendant challenges the sufficiency of the convicting evidence. He states that

there was no eyewitness account of the crime, that the evidence is circumstantial, and that

the conviction rests “solely” upon proof of his DNA on the victim’s blouse and the testimony

of two convicted felons. The State counters that the proof is sufficient to support the

convictions. We agree with the State.

Our standard of review when the sufficiency of the evidence is questioned on appeal

is “whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Williams, 657 S.W.2d 405,

410 (Tenn. 1983). This means that we may not reweigh the evidence but must presume that

the trier of fact has resolved all conflicts in the testimony and drawn all reasonable inferences

from the evidence in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn.

1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Any questions about the

“credibility of the witnesses, the weight to be given to their testimony, and the reconciliation

of conflicts in the proof are matters entrusted to the jury as the trier of fact.” State v. Dotson,

254 S.W.3d 378, 395 (Tenn. 2008) (citing State v. Vasques, 221 S.W.3d 514, 521 (Tenn.

2007)); see State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

The Defendant’s contention is premised, in part, upon the former standard for analysis

of convictions based solely upon circumstantial evidence. Previously, Tennessee law

provided that for a conviction to be based upon circumstantial evidence alone, the evidence

“must be not only consistent with the guilt of the accused but it must also be inconsistent

with his [or her] innocence and must exclude every other reasonable theory or hypothesis

except that of guilt.” Pruitt v. State, 460 S.W.2d 385, 390 (Tenn. Crim. App. 1970); see also

State v. Crawford, 470 S.W.2d 610, 612 (Tenn. 1971). Shortly after the Defendant filed his

brief, however, our supreme court adopted the United States Supreme Court’s perspective

that the standard of proof is the same, without regard to whether evidence is direct or

circumstantial, eliminating the “every other reasonable theory or hypothesis except that of

-30-

guilt” analysis. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (citing Jackson, 443

U.S. at 326; Holland v. U.S., 348 U.S. 121, 139-40 (1954)). We will, therefore, conduct our

review in accord with Dorantes. See State v. Sisk, 343 S.W.3d 60, 68 (Tenn. 2011)

(reinstating convictions based on Dorantes analysis after Court of Criminal Appeals reversed

convictions for insufficient evidence under Crawford circumstantial evidence analysis but

noting that intermediate court did not err in applying Crawford because its ruling was pre-

Dorantes).

At the time of the Defendant’s crime, the relevant statute provided that the defining

characteristics of second degree murder were an unlawful, willful, and malicious killing of

a victim. T.C.A. §§ 39-2401 (1975, 1985) (renumbered at T.C.A. § 39-2-201) (repealed

1989), 39-2402 (1975) (amended 1977, 1979, 1988) (renumbered at T.C.A. § 39-2-202)

(repealed 1982), 39-2403 (1975) (amended 1979) (renumbered at T.C.A. § 39-2-211)

(repealed 1989); see, e.g., State v. Johnson, 541 S.W.2d 417, 418-19 (Tenn. 1976); State v.

Shepherd, 862 S.W.2d 557, 565 (Tenn. Crim. App. 1992).

The Defendant challenges both the sufficiency of the proof of the statutory elements

of the crime and that of his identity as the perpetrator or as an aider and abettor to the crime.

In the light most favorable to the State, the record reflects that the victim died from asphyxia

due to manual strangulation. Her injuries were so great that her thyroid cartilage and hyoid

bone were broken. Dr. Francisco testified that this would take considerable pressure because

a child’s cartilage and bones were flexible. The evidence demonstrates that the killing was

unlawful, willful, and malicious and is sufficient to support the conviction for second degree

murder.

With respect to the proof that the Defendant perpetrated the crime, the evidence in the

light most favorable to the State established that the Defendant’s DNA was present on the

victim’s blouse. The chance of the same STR DNA profile occurring in another person was

one in five quadrillion for the African-American population and one in 160 quadrillion for

the Caucasian population. The Defendant’s DNA alpha type was present on the victim’s

pants. This type was shared by only eight percent of the population. Over 100 other

individuals, including virtually everyone from the victim’s neighborhood, were eliminated

as the contributors of the DNA evidence. Two of the Defendant’s fellow inmates testified

that the Defendant admitted that he killed the victim and that his DNA was on her. Their

testimony regarding the altercation between the Defendant and Frank White was consistent

with the video recording of the altercation. There was no indication of any prior

acquaintance or association of the victim and the Defendant that might provide an alternate

explanation of the presence of his DNA on her clothing. Dr. Francisco and Dr. Bass testified

that the victim died at or near the time of her disappearance, which was before the Defendant

was in jail. When the Defendant was arrested, he was wearing a full length coat, a ski mask,

-31-

another hat, and two pairs of gloves. His clothing and physical stature were consistent with

the description Ms. Maxwell gave of the adult she saw in Ms. Howard’s driveway with the

child she presumed was the victim. The Defendant is not entitled to relief.

II

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

the evidence obtained pursuant to a search warrant for his DNA sample in another case. The

DNA sample was later matched to the DNA evidence in this case, leading to the Defendant’s

arrest for and charge of the victim’s murder. The Defendant contends that the affidavit used

to obtain the warrant contained a false statement that overstated the evidence supporting

probable cause and omitted material information that was favorable to the Defendant. The

State contends that the affidavit did not contain a material misrepresentation or a material

omission and was supported by probable cause. We conclude that the trial court properly

denied the motion to suppress.

A trial court’s factual findings on a motion to suppress are conclusive on appeal unless

the evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996);

State v. Jones, 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990). Questions about the

“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.” Odom, 928

S.W.2d at 23. The prevailing party is entitled to the strongest legitimate view of the evidence

and all reasonable inferences drawn from that evidence. State v. Hicks, 55 S.W.3d 515, 521

(Tenn. 2001). The application of the law to the facts as determined by the trial court is a

question of law which is reviewed de novo on appeal. State v. Yeargan, 958 S.W.2d 626,

629 (Tenn. 1997).

In Franks v. Delaware, the United States Supreme Court held that the fruits of a search

should be excluded when the affidavit in support of the search warrant contains deliberately

or recklessly false statements by the affiant, which are material to the establishment of

probable cause. 438 U.S. 154, 172-73 (1978). The “fraudulent misrepresentation of a

material fact will invalidate a search warrant.” State v. Little, 560 S.W.2d 403, 406 (Tenn.

1978). Our supreme court has defined two situations in which false information within the

supporting affidavit mandates the application of the exclusionary rule despite the affidavit’s

facial sufficiency:

(1) a false statement made with intent to deceive the Court,

whether material or immaterial to the issue of probable cause,

and

-32-

(2) a false statement, essential to the establishment of probable

cause, recklessly made. Recklessness may be established by

showing that a statement was false when made and that affiant

did not have reasonable grounds for believing it, at that time.

Id. at 407. Thus, even an immaterial statement in the affidavit will result in exclusion of the

evidence if the statement is intentionally false. However, “negligence or innocent mistake

[is] insufficient” to support exclusion. Franks, 438 U.S. at 172; see Little, 560 S.W.2d at

406-07. This court has recognized that the Franks analysis has also been applied to material

omissions from an affidavit. See State v. Yeomans, 10 S.W.3d 293, 297 (Tenn. Crim. App.

1999) (citing 2 LaFave, Search and Seizure § 4.4(b) (3d ed.1996)). Nevertheless, the court

in Yeomans said that “an affidavit omitting potentially exculpatory information is less likely

to present a question of impermissible official conduct than one which affirmatively includes

false information.” Id. at 297.

The evidence presented at the suppression hearing and the trial reflects that a series

of crimes including rape, attempted rape or assault, and homicide occurred in a particular

geographic area of Nashville in 1975. In 1976, the Defendant was convicted of one of the

crimes, the rape of A.P. He was charged with two other crimes that occurred in the area

involving a second rape and an attempted rape of two other victims, but those charges were

retired. In 2007, Detective Bill Pridemore of the Metro Police Department’s Cold Case Unit

was investigating an uncharged crime, the 1975 homicide of S.D., in which the Defendant

was a suspect. Detective Pridemore reviewed the transcript of the A.P. rape trial and the

investigative records for other crimes in the area that occurred around the same time. As a

result of his review, he prepared an affidavit seeking a search warrant for the Defendant’s

DNA. The affidavit stated:

On February 2nd, 1975, [S.D.] was found murdered by

Asphyxia in her apartment located at 911 20th Ave. South

Nashville, Tn. During the investigation it was determined that

the victim was sexually assaulted in the early morning hours.

Evidence from the sexual assault including but not limited to

negroid pubic hairs and semen was collected and examined.

Investigators interviewed the last person known to be with

[S.D.] who states during the early morning hours of February

2nd 1975 he dropped [S.D.] off in front of her apartment

building located at 911 20th Ave. South Nashville, Tn. and

drove away. During the time frame of her death there was a rash

of rapes and sexual assaults occurring in the same general area

where the victims [sic] body was located. The pattern of the

-33-

assaults consisted of female white’s [sic] being assaulted in their

dorm rooms or apartments. The suspect would enter through an

unlocked door and would forcibly rape the victim. March of

1975, one month after the death of [S.D.], [the Defendant] was

arrested and charged with committing at least two of the rapes

and one attempted rape in the vicinity of [S.D.’s] residence. He

was later tried and convicted in Davidson County Criminal

Court Nashville, Tn. for rape. During the investigation [the

Defendant] made a statement implicating himself. In this

statement Mr. Barrett stated in the early morning hours he would

enter the buildings attempting to find unlocked apartment doors.

Once entering the apartment he would forcibly rape the victims.

All of the victims were young female whites who appeared to be

alone.

At the suppression hearing, Detective Pridemore acknowledged in his testimony that

he was aware that the Defendant confessed to the rape of A.P. but that the Defendant had not

confessed to another rape and attempted rape. The detective claimed he summarized his

investigation by stating in the affidavit, “In this statement Mr. Barrett stated in the early

morning hours he would enter the buildings attempting to find unlocked apartment doors.”

He said this summary was a compilation of the Defendant’s statement, a detective’s reports

and the trial transcripts from the A.D. case, a statement from a victim that “he attempted to

get in her door, and also another door, neighbor’s door and . . . was the one arrested trying

to get into the maintenance area.” Detective Pridemore later explained that the sentence in

the affidavit referred to “[t]he college campus of Belmont and also the different levels that

he – he entered through the basement door and he went through several levels of the building

before he found an unlocked door where [A.P.] was sleeping.” He denied that he used the

word “buildings” to refer only to floors of a single building and said, “That could be a

combination of – of [A.P.], entering into her dormitory, going through the floors and a

combination of the – of the crime scenes of other crimes that were committed and also from

[another victim’s] statement.”

Detective Pridemore testified that the sentence in the affidavit, “Once entering the

apartment he would forcibly rape the victims,” was based upon “the one statement that he

made that he had committed the rape and also in [another victim’s statement] that she was

forced into her house or her apartment and then forced to have sexual intercourse.” The

detective denied that he intended to imply that the Defendant made all of the statements and

reiterated that the affidavit was a summary of all of the investigative files.

In denying the Defendant’s motion to suppress, the trial court stated:

-34-

The “statement” or more specifically “word” at issue

here is “buildings.” The search warrant affidavit contained the

following language “ . . . [the Defendant] would enter buildings

attempt to find unlocked apartment doors.” The defendant

maintains that the statement attributed to the defendant as

contained in the investigative files (including evidence gathered

by Ralph Langston), did not use the plural of the word. He adds

that Detective Pridemore’s use of the term was in error and

constituted a false statement. The defendant suggests that the

false statement was intentionally or at least recklessly made by

Detective Pridemore. He added that at a minimum Pridemore

was negligent in including the term “buildings.” As a result, he

maintains, the judge reviewing the search warrant and affidavit

was necessarily [misled] as to the existence of probable cause.

...

[T]he Court heard the testimony of Detective Bill Pridemore and

was in a position to assess his credibility. Detective Pridemore

conceded that the statement attributable to the defendant did not

indicate an admission to going into “buildings” to search for

females. However, he testified that he went through the

voluminous files and attempted to summarize what he had

learned from his review. Detective Pridemore indicated that he

did not intentionally include erroneous information in his

affidavit.

Having heard from Pridemore and Langston, the Court is

unconvinced that Detective Pridemore intentionally included a

technically false statement in his affidavit. Further, relying on

the appellate court’s definition of reckless (in this context), this

Court similarly cannot find that defendant has shown (or the

evidence support[s]) that the term was false when made and that

affiant (Detective Pridemore) did not have reasonable grounds

for believing it at that time. Finally, . . . negligence or innocent

mistake do not support exclusion.

On appeal, the Defendant complains that Detective Pridemore’s assertion that the

Defendant admitted entering buildings, attempting to find unlocked doors, and raping the

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victims was false. He also complains that Detective Pridemore failed to divulge that some

of the charges against him were retired.

The trial court accredited Detective Pridemore’s testimony that he did not intend to

make false statements. Because the trial court relied entirely on its credibility determination

and in the absence of proof to the contrary of Detective Pridemore’s testimony about his lack

of intent, we conclude that the evidence does not preponderate against the trial court’s

finding that there was no intentionally false statement in the affidavit. See Odom, 928

S.W.2d at 23.

We must consider, then, whether the statements were recklessly made, and if so,

whether they were essential to establishing probable cause. See Little, 560 S.W.2d at 407.

The record reflects that Detective Pridemore reviewed the cold case file and compiled his

information from it. We note first that his affidavit states, “In [the Defendant’s] statement,

he stated in the early morning hours he would enter the buildings attempting to find unlocked

apartment doors. Once entering the apartment he would forcibly rape the victims.” A police

report summarizing the Defendant’s statement reflects that the Defendant admitted raping

one victim but denied multiple attacks, although police reports in the record also contain

information that the Defendant was arrested “attempting to break into a female whites [sic]

apartment” and that the victim of another rape and the victim’s husband identified articles

of clothing and a gun that had been collected from the Defendant or his home. We conclude

that the evidence preponderates against the trial court’s finding that the statement was not

recklessly made. Given the evidence of record, we also conclude that Detective Pridemore

did not have reasonable grounds for believing the facts as represented in the affidavit.

Regarding the Defendant’s argument that the affidavit did not reveal that some of the

charges were retired, we note that the omission of potentially exculpatory information from

an affidavit is less likely to support a finding of official misconduct than the inclusion of

false information. Yeomans, 10 S.W.3d at 297 (citing United States v. Atkin, 107 S.W.3d

1213, 1217 (6th Cir. 1997)). In any event, we do not view it as significant that the affidavit

did not state that the charges were retired given that it accurately stated that the Defendant

was charged with “at least two . . . rapes and one attempted rape in the vicinity of [the

victim’s] apartment” and that he was later convicted of rape. The affidavit did not falsely

state that the Defendant was convicted of all of the charges. Any favorable inference that

could be drawn from some of the charges being retired could likewise be drawn from the

Defendant’s conviction of a single rape from the multiple charges. We conclude that

Detective Pridemore was not reckless in not disclosing that two of the charges were retired.

The question of the proper remedy remains. In Franks v. Delaware, the Supreme

Court said:

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In the event that at that hearing the allegation of perjury or

reckless disregard is established by the defendant by a

preponderance of the evidence, and, with the affidavit’s false

material set to one side, the affidavit’s remaining content is

insufficient to establish probable cause, the search warrant must

be voided and the fruits of the search excluded to the same

extent as if probable cause was lacking on the face of the

affidavit.

Franks, 438 U.S. at 156. We consider, then, whether the affidavit establishes probable cause

absent the portion that states: “In [the Defendant’s] statement, he stated in the early morning

hours he would enter the buildings attempting to find unlocked apartment doors. Once

entering the apartment he would forcibly rape the victims.” Absent this portion, the affidavit

still recites that there were multiple rapes in the area around the time of S.D.’s homicide, that

S.D. was sexually assaulted, and that the pattern of the rapes was similar in that they involved

a rapist entering a dormitory room or apartment and assaulting a white female who appeared

to be alone, that the Defendant was arrested and charged with at least two rapes and one

attempted rape, and that the Defendant was convicted of one of the rapes. We conclude that

even without the erroneous statement, the affidavit contained sufficient information to

establish probable cause. Despite the trial court’s erroneous finding that the affidavit did not

contain recklessly made false statements, the court did not err in denying the motion to

suppress. The Defendant is not entitled to relief.

III

The Defendant contends that the trial court erred in denying his motion to dismiss the

indictment on the basis that the delay between the offense and the return of the indictment

violated due process. The State counters that the trial court correctly denied the motion. We

agree with the State.

A criminal defendant has the right to due process under the Fifth and Fourteenth

Amendments to the United States Constitution and article I, section 8 of the Tennessee

Constitution. The delay between the commission of an offense and the initiation of formal

proceedings may violate this right to due process. State v. Gray, 917 S.W.2d 668, 671 (Tenn.

1996).

In State v. Dykes, 803 S.W.2d 250, 256 (Tenn. Crim. App. 1990), relying upon United

States v. Marion, 404 U.S. 307 (1971), this court stated that “[b]efore an accused is entitled

to relief based upon the delay between the offense and the initiation of adversarial

proceedings, the accused must prove that (a) there was a delay, (b) the accused sustained

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actual prejudice as a direct and proximate result of the delay, and (c) the State caused the

delay in order to gain tactical advantage over or to harass the accused.” In State v. Utley, 956

S.W.2d 489, 495 (Tenn. 1997), the supreme court acknowledged the “Marion-Dykes”

analysis for cases of delay in charging a defendant.

The offense was committed in February 1975, and the victim’s body was discovered

in March 1975. It is undisputed that DNA technology was not available to the State in 1975.

The DNA testing that identified the Defendant took place in 2007. The indictment was

returned in June 2008.

We agree with the Defendant that sufficient delay occurred in this case to trigger a due

process inquiry. See, e.g., State v. Carico, 968 S.W.2d 280 (Tenn. 1998) (conducting due

process inquiry in case involving seven-year delay between offense and arrest); Utley, 956

S.W.2d 489 (five-year delay). Without question, the thirty-three-year delay was lengthy. We

do not dispute that in some cases, the passage of this many years may be prejudicial to the

defense. The Defendant argues, “[T]he extraordinary delay between the commission of the

crime and the return of the indictment rendered all but impossible the Defendant’s ability to

formulate an alibi defense or produce witnesses or other evidence in his favor.” He argues

generally that the passage of time may impair the quality and quantity of evidence available

and may compromise the reliability of the outcome. We acknowledge that this is a relevant

concern. See, e.g., Carico, 968 S.W.2d at 285 n.5. We note that the Defendant has not

identified any specific unavailable witness or evidence due to the passage of time, nor is any

actual prejudice apparent. We likewise note that the Defendant does not contend that the

State intentionally delayed the prosecution in order to obtain a tactical advantage. In fact,

the record reflects that the police continued to investigate the crime through the cold case

unit and that advances in DNA technology eventually proved fruitful in identifying the

Defendant.

The record supports the trial court’s determination that the Defendant’s due process

rights were not violated by the pre-indictment delay. The trial court did not err in denying

the motion to dismiss the indictment. The Defendant is not entitled to relief.

IV

The Defendant contends that the trial court erred in admitting Sheldon Anter’s

testimony that while the Defendant was in custody, he said that he “had killed before.” The

Defendant advocates the application of Tennessee Rule of Evidence 404(b). The State, on

the other hand, argues that the trial court did not abuse its discretion in admitting the

evidence as an admission of a party opponent pursuant to Rule 803(1.2). We agree with the

State.

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We begin with a review of the relevant evidentiary rules. Evidence is relevant if it has

“any tendency to make the existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be without the evidence.” Tenn.

R. Evid. 401. However, relevant evidence “may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury.” Tenn. R. Evid. 403. Prejudicial evidence is not excluded as a matter

of law. State v. Carruthers, 35 S.W.3d 516, 577 (Tenn. 2000) (citing State v. Gentry, 881

S.W.2d 1, 6 (Tenn. Crim. App. 1993)). The term “undue prejudice” has been defined as

“‘[a]n undue tendency to suggest decision on an improper basis, commonly, though not

necessarily, an emotional one.’” State v. Banks, 564 S.W.2d 947, 951 (Tenn. 1978) (quoting

Fed. R. Evid. 403, Advisory Comm’n Notes).

When relevant evidence reflects on the defendant’s character, however, the trial court

must apply the more rigorous standard of Tennessee Rule of Evidence 404(b), rather than

Rule 403. State v. James, 81 S.W.2d 751, 758 (Tenn. 2002); State v. Dubose, 953 S.W.2d

649, 655 (Tenn. 1997). Rule 404(b) prohibits evidence of other crimes, wrongs, or acts

offered to show a character trait in order to prove that a defendant acted in conformity with

that character trait. Tenn. R. Evid. 404(b). However, evidence of other crimes, wrongs, or

acts may be admissible for other purposes, such as establishing identity, motive, common

scheme or plan, intent, or absence of mistake. Id.; State v. McCary, 119 S.W.3d 226, 243

(Tenn. Crim. App. 2003). The rule lists four requirements that must be satisfied before a

court determines admissibility:

(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 issues, the ruling, and the

reasons for admitting the evidence;

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

to be clear and convincing; and

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

outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b)(1)-(4).

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Hearsay is an out-of-court statement offered in court “to prove the truth of the matter

asserted.” However, Tennessee Rule of Evidence 803(1.2), provides

Hearsay Exceptions.-The following are not excluded by the

hearsay rule:

....

(1.2) Admission by Party-Opponent.-A statement offered against

a party that is (A) the party’s own statement in either an

individual or a representative capacity . . . .

A defendant’s statements, both written and oral, are admissible under this exception, subject

to Tennessee Rules of Evidence 401 and 403. See State v. Binion, 947 S.W.2d 867, 874

(Tenn. Crim. App. 1996); see also Neil P. Cohen et al., Tennessee Law of Evidence, §

8.06[3][a] (6th ed. 2011).

The State filed a pretrial notice that it intended to offer evidence of the Defendant’s

other crimes that included the Defendant’s statements to Sheldon Anter about having killed

other people. The trial court conducted a hearing, at which Mr. Anter testified that while

incarcerated with the Defendant, he witnessed an altercation between the Defendant and

Frank White on August 16, 2008. He said that Mr. White and the Defendant argued about

the television and about another inmate, Andrew Napper. He said that Mr. White had

paperwork containing information about the Defendant’s crimes and taunted the Defendant,

calling him a rapist and a baby killer. Recalling the Defendant’s response, Mr. Anter said,

“[H]e said he don’t have no problem killing here, he had killed four people and had no

problem killing again.” Mr. Anter said the Defendant followed Mr. White into his room and

said, “I will kill you like I killed them blue-eyed b------.” Mr. Anter said Mr. White pushed

the Defendant on top of him. He said the Defendant said that he did not rape the victim, but

that he killed her. He said that the Defendant and Mr. White continued to talk through the

ducts that night after they were “locked down” and that the Defendant again stated he did not

rape anyone but that he killed the victim. Mr. Anter said he did not report the incident to the

police but recounted it when he was questioned ten days later.

Mr. Anter also recalled an occasion when he and the Defendant were on the roof and

the Defendant talked about the charge related to the victim’s death. Mr. Anter could not

recall precisely what the Defendant said, although he recounted,

he was talking about he – that he have a – he haven’t raped – he

hadn’t raped. He killed her but he did not rape her and – . . . He

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also mentioned, he says his DNA wasn’t in her, it was on her.

And he told me if I said anything to anybody he would kill me.

He said the Defendant made these statements on several occasions.

Mr. Anter was cross-examined extensively about his immigration status and his prior

convictions, and his hearing testimony was in accord with his trial testimony on these points.

He acknowledged that he saw television coverage and that he discussed the Defendant’s case

with Mr. White when he and Mr. White were cellmates briefly. He acknowledged that he

told the guards he wanted to report a crime. He denied ever asking Corporal Johnson for

information about the Defendant’s case. He admitted that he did not tell Detective Coleman

in the first interview about the Defendant’s statement that the Defendant had killed “blue-

eyed b-----,” but said he reported it later in a meeting with Detective Postiglione and an

Assistant District Attorney General.

The trial court applied the Rule 404(b) framework in analyzing whether the evidence

was admissible. The court found by clear and convincing evidence that the incidents

described in Mr. Anter’s testimony occurred. See Tenn. R. Evid. 404(b)(3). The court found

that the evidence was admissible because

in some respects it would go to identity, ie., and admission of

guilt and [the Defendant’s] intent. These segments that I am

speaking of are the references to, I’ve killed four other people

and I will kill you, and the statement about, I’ve killed blue-eyed

b------, plural, in the past, and I will kill you. The Court, in the

prior case [against the Defendant for the murder of S.D.], and I

see no reason t[o] change in here, has redacted that statement

about I’ve killed four people to – still reflecting the content of

the statement to a reference of, I’ve killed before and I will kill

you, the Court still is of the opinion that still does not change the

meaning of that statement. And under the case law that can be

done to protect the defendant in terms of the prejudicial effect

that may be present when, or if, the multiple references were

made.

And I do think that that is, obviously, probative as to

intent and the identity of the perpetrator in this particular case.

Could it mean other things? Sure. Maybe he is not speaking of

[the victim], but maybe he is. So that goes more to the weight

and the argument that the parties want to make of it.

-41-

The court found that the prejudicial effect of the statement about the “blue-eyed b-----” was

too great and that it would not be admitted. The court noted the impossibility of redacting

the reference in that statement to the Defendant killing more than one person, finding that

the statement could not effectively be modified to refer to the Defendant killing one blue-

eyed person without changing the meaning. The court noted that the victim had blue eyes.

The court found, however, that evidence of the Defendant’s statements about having killed

before and his threats to kill other inmates was admissible. See Tenn. R. Evid. 404(b)(2), (4).

Thus, at the trial, Mr. Anter was allowed to testify that the Defendant threatened to kill as the

Defendant had killed before.

The question before us, first, is whether Mr. Anter’s testimony that the Defendant had

“killed before” is subject to the general bar of evidence of a defendant’s other crimes,

wrongs, or acts as contemplated by Rule 404(b), or whether the admissibility should be

analyzed under Rule 803(1.2) as an admission of a party-opponent. The evidence was

offered to show that the Defendant admitted killing the victim, the charged crime. The trial

court’s ruling required that the evidence be limited to the Defendant’s admission that he

killed the victim but did not rape her and excluded his admission that he killed four people,

eliminating the evidence of other crimes. In the context in which the Defendant made the

statement, he was referring to homicides he committed before his threat to kill other inmates,

not to homicides he committed before he killed the victim. Once the evidence was limited

to the Defendant’s inculpatory statements about the victim’s homicide, any issue regarding

Rule 404(b) was eliminated.

Turning to Rule 803(1.2), the evidence was an admission of a party opponent and was

admissible subject to the limits of Rules 401 and 403. In that regard, the evidence was

relevant and material because it included the Defendant’s admission that he killed the victim.

See Tenn. R. Evid. 401. We acknowledge that the Defendant’s actual statement that he killed

“them blue-eyed b-----” did not specifically identify the victim, although it might be

interpreted to refer to her. The trial court allowed only the testimony that the Defendant said

he had “killed before.” Standing alone, the evidence as limited by the trial court might be

interpreted to be more inculpatory of the Defendant’s guilt of killing the victim to the extent

that it could be interpreted to refer to a single victim, rather than multiple individuals who

might or might not include the victim. With respect to the victim, however, the Defendant

specifically admitted in other statements that he killed her but did not rape her. The

probative value of the evidence was not substantially outweighed by the danger of unfair

prejudice. See Tenn. R. Evid. 403. The court did not abuse its discretion in admitting the

evidence.

In so holding, we have rejected the Defendant’s argument that the trial court’s

“attempt to ‘sanitize’” the Defendant’s prior record was not permitted by State v. Galmore,

-42-

because it created the risk the jury would speculate about the Defendant’s other crimes. See

994 S.W.2d 120, 122 (Tenn. 1999). We note, first, that the trial court’s ruling eliminated any

evidence of any homicide other than the victim’s that the Defendant claimed to have

committed. We likewise disagree with the Defendant that Galmore has any bearing on his

case. The issue in Galmore was whether the testifying defendant’s credibility could be

impeached with his prior conviction pursuant to Rule 609(a)(3) when the impeaching

conviction was identified only as a prior felony conviction, rather than by identifying the

specific crime of which the defendant had been convicted. See id. The supreme court was

concerned in Galmore that the jury might speculate to the defendant’s detriment about the

nature of the unidentified conviction. Id. In the present case, the Defendant did not testify,

meaning the evidence was not used to impeach his credibility. Perhaps more significantly,

the crime in this case was neither a prior conviction nor was it unidentified. The Defendant

is not entitled to relief.

V

The Defendant contends that the trial court erred in allowing Bobby Downs to be

questioned about the circumstances surrounding his departure from the Metropolitan Police

Department. The Defendant argues that Tennessee Rule of Evidence 608 did not permit the

questioning. The State contends that the trial court did not err. We conclude that the

Defendant is not entitled to relief.

Rule 608 provides that conduct involving dishonesty may be inquired into on

cross-examination of a witness if certain conditions are met. See Tenn. R. Evid. 608. Rule

608(b)(1) provides,

(b) Specific Instances of Conduct.– Specific instances of

conduct of a witness for the purpose of attacking or supporting

the witness’s character for truthfulness, other than convictions

of crime as provided in Rule 609, may not be proved by

extrinsic evidence. They may, however, if probative of

truthfulness or untruthfulness and under the following

conditions, be inquired into on cross-examination of the witness

concerning the witness’s character for truthfulness or

untruthfulness . . . . The conditions which must be satisfied

before allowing inquiry on cross-examination about such

conduct probative solely of truthfulness or untruthfulness are:

(1) The court upon request must hold a hearing outside the

jury’s presence and must determine that the alleged conduct has

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probative value and that a reasonable factual basis exists for the

inquiry;

(2) The conduct must have occurred no more than ten years

before commencement of the action or prosecution, but evidence

of a specific instance of conduct not qualifying under this

paragraph (2) is admissible if the proponent gives the adverse

party sufficient advance notice of intent to use such evidence to

provide the adverse party with a fair opportunity to contest the

use of such evidence and the court determines in the interests of

justice that the probative value of the evidence, supported by

specific facts and circumstances, substantially outweighs its

prejudicial effect[.]

Tenn. R. Evid. 608(b)(1), (2).

As we noted in our recitation of the trial evidence, Mr. Downs testified as a defense

witness about the extensive search of the victim’s neighborhood conducted by police recruits.

He described the systematic approach he and Mr. Felts used to search the Thorpes’ garage.

He said that he was searching for a missing child and a large box of Girl Scout cookies but

that the search was not fruitful. He described the contents of the garage in detail.

Before the State cross-examined Mr. Downs, the prosecutor requested at a bench

conference that he be permitted to ask the witness “if he was suspended from the police

department on August 22nd, ‘78 for lying during a police investigation.” The defense

objected on the basis that the conduct was “way too remote” and noted that Mr. Downs’s

police work on the victim’s homicide was in March 1975. The prosecutor represented to the

court that the witness “resigned under investigation when he was charged with fraudulent

breach of trust. He stole a car (phonetic) basically.” The defense did not challenge the

accuracy of the prosecutor’s statement about the resignation and underlying facts. The only

basis for objecting to the evidence that the defense raised was that “[i]t exceeds the years.”

The trial court ruled that the evidence was admissible. The record does not reflect that the

court elaborated on its rationale for admitting the evidence, although the court said something

that is recorded in the transcript as “(Indiscernible, too low to understand).”

On cross-examination, Mr. Downs said that at a meeting about the case on March 30,

he told his superior officer that he had a strange feeling about the Thorpes’ garage. He

denied knowing at the time that the victim’s body was found in the garage that day. He said

that he was asked to draw a diagram of the garage and that he wrote a detailed three-page

supplemental report about the garage. The report was dated March 31. He denied that he

-44-

knew when he wrote the report that the victim’s body had been found. He denied that he was

taken to the garage before drawing the diagram and writing a report. He claimed he was able

to remember all of the details about the contents of the garage that he recorded in the March

31 report. The State also elicited that as a recruit, Mr. Downs could have “washed out” of

his police training before becoming an officer. The prosecutor asked Mr. Downs if he was

suspended for lying to Internal Affairs, to which Mr. Downs replied that he would have to

see the paperwork. Mr. Downs denied that he resigned from the force under investigation.

He said he would have to see the paperwork to answer whether he was charged with

fraudulent breach of trust at the time he resigned. He said he would “have to see it on paper”

to answer whether he was arrested for fraudulent breach of trust when he was a police

officer.

On appeal, the Defendant argues that the cross-examination about the resignation and

its circumstances involved a matter that was too remote in time from the Defendant’s

indictment and that the State failed to present “specific facts and circumstances” about the

conduct. Alternatively, he argues that the probative value of the cross-examination did not

substantially outweigh its prejudicial effect.

As a preliminary matter, we address the Defendant’s argument that the State failed to

present the specific facts and circumstances of the prior conduct. Our supreme court has

said:

[W]henever possible, extrinsic proof should be offered at the

jury-out hearing to establish the “reasonable factual basis.” If

the realities of trial make it impossible to do so, the attorney

proposing to ask the question should, at a minimum, clearly state

on the record the source and origin of the information

underlying the specific instance of conduct about which inquiry

is proposed.

State v. Nesbit, 978 S.W.2d 872, 882 (Tenn. 1998) (examining requirements for

impeachment of a character witness with evidence of specific instances of conduct under

Rule 405); see State v. Wyrick, 62 S.W.3d 751, 781 (Tenn. 2001) (applying Nesbit guidelines

to analysis of admissibility of specific instances of conduct for witness impeachment

pursuant to Rule 608(b)(1)). Although the State did not provide extrinsic proof of the matters

about which it sought to cross-examine Mr. Downs, the prosecutor stated specific factual

information about the identity and nature of the prior conduct about which it sought to cross-

examine the witness. The defense did not question the accuracy of the prosecutor’s statement

to the court. Given that no challenge was raised in this respect, the record supports that a

reasonable factual basis existed for the inquiry. See Tenn. R. Evid. 608(b)(1).

-45-

The question that arises next is whether the alleged 1978 misconduct was too remote

under Rule 608(b)(2), which generally prohibits evidence of conduct that occurred more than

ten years before the prosecution began. Rule 608(b)(2) places limits on impeachment with

specific instances of conduct that occurred more than ten years before the prosecution

commenced and requires that the proponent give the adverse party advance notice and an

opportunity to contest the use of the evidence. The general rule is one of exclusion, the

theory being that conduct that occurred more than ten years ago has little bearing on the

witness’s credibility. Neil P. Cohen et al., Tenneseee Law of Evidence, § 6.08[8][a], [c] (6th

ed. 2011). Evidence of the conduct is considered to be “too stale to be probative.” Id. at [b].

Considering the facts of the present case, the record reflects that Mr. Downs left the

police department in 1978, and the Defendant was indicted thirty years later. Mr. Downs’s

testimony on direct examination was significant to the defense theories that the victim was

not killed in the garage and that her body was not in the garage during the neighborhood

search. Mr. Downs insisted that he remembered the search of the garage and recalled

detailed information about the garage’s contents, even though he did not see the victim or the

Girl Scout cookies that the State’s proof suggested had been in the garage since the victim’s

death around the time of her disappearance. The State also elicited evidence from Mr.

Downs that he was able to draw a diagram and write a three-page report weeks after the

victim’s disappearance. Mr. Downs denied that he knew the victim’s body had been found

in the garage on the day he drew the diagram and wrote the report. He admitted he was a

police recruit at the time and could have “washed out” of the police academy.

As with any untruthful conduct, the evidence of the alleged misconduct was probative

of Mr. Downs’s character for truthfulness. Given the passage of decades between the

witness’s alleged misconduct and the commencement of the prosecution, however, we cannot

conclude that the probative value substantially outweighed its prejudicial effect. We

conclude that the trial court erred in allowing the State to cross-examine Mr. Downs about

the circumstances of his departure from the police force.

The Defendant is not entitled to relief unless he can demonstrate that the error more

probably than not affected the judgment. T.R.A.P. 36(b). We hold that he has not. Mr.

Downs denied that he was fired and professed not to remember other details of his departure

from the police force and an alleged criminal charge. In any event, the State cross-examined

Mr. Downs thoroughly about his claims that he thoroughly searched the garage, that he

recalled in detail the items in the garage, and that he was able to draw a diagram and write

a report weeks after the search, his failure to find the victim or the cookie box

notwithstanding. The Defendant is not entitled to relief on this basis.

-46-

VI

The Defendant contends that the trial court erred in allowing Larry Felts to be

questioned about the circumstances of his departure from the police department and his

conviction for attempted misuse of information. The State contends that the trial court did

not abuse its discretion. We conclude that the trial court did not err in allowing cross-

examination about the conviction and the employment termination.

Before Mr. Felts was called as a witness, the State requested a ruling on whether it

would be permitted to cross-examine him about the circumstances under which he left the

police department. The prosecutor told the court,

[Mr. Felts] was fired in 1991 for leaking information of a known

target for a State and Federal investigation. He was also

discharged for lying to superior officers about where he got the

information orally. And . . . in writing . . . he later was charged

with a felony and pled guilty to a misdemeanor misuse . . . of

information.

Defense counsel objected on the basis that the conviction was more than ten years old and

noted that the correct conviction offense was attempted misuse of information. The trial

court noted that the conviction was “related to his police work” and inquired whether the

evidence was probative of bias2 against the police department.

Like Mr. Downs, Mr. Felts was a police recruit at the time he helped search for the

victim, and he later became an officer. Mr. Felts testified on direct examination that he pled

guilty to attempted misuse of information and that as a result, his employment was terminated

in 1992. He testified about his search of the Thorpes’ garage and said he specifically recalled

it because there was a commode inside. On cross-examination, Mr. Felts explained that he

leaked information to a suspect and lied to his superior officers about the matter. He claimed

to have specific recall of the garage because it was not as well-maintained as others in the

neighborhood.

The Defendant argues that the evidence of the conviction and conduct should have

been excluded because it did not qualify for admission under Tennessee Rules of Evidence

608, 609, or 616 and that it was barred by Rule 403. As in the situation involving Mr.

Downs, the evidence regarding Mr. Felts involved misconduct related to official duties as a

2

The trial court meant prejudiced against the police. Under the rule, bias indicates favoring the

police. See Tenn. R. Evid. 616.

-47-

police officer. Although there was no offer of proof, the defense did not object to the facts

recited at the bench conference by the prosecutor except to note that the conviction offense

was attempted misuse of information, rather than misuse of information. As noted by the

defense, the events and conviction were outside the ten-year period.

As we have noted, specific instances of conduct of a witness for the purpose of

attacking a witness’s character for truthfulness or untruthfulness may, in certain

circumstances, be the subject of cross-examination of the witness. Tenn. R. Evid. 608(b).

When the conduct was prosecuted and formed the basis for a criminal conviction, however,

Tennessee Rule of Evidence 609 is the operative rule. See Tenn. R. Evid. 608, 609; Neil P.

Cohen et al., Tennessee Rules of Evidence, § 6.08[4] (6th ed. 2011) (stating that acts

resulting in a criminal conviction must be introduced via Rule 609, not Rule 608).

The State asserted that Mr. Felts was involved in a specific instance of conduct in

which he leaked information to a suspect and lied to his superior officers. The conduct

formed the basis for his attempt conviction, and Rule 609 provides the relevant framework.

The rule permits impeachment of a witness with his or her prior convictions if certain

conditions are met: The prior conviction must be for a misdemeanor involving “dishonesty

or false statement” or for a felony. Tenn. R. Evid. 609(a)(2); State v. Mixon, 983 S.W.2d

661, 674 (Tenn. 1999). Less than ten years must have elapsed between the witness’s release

from confinement for the prior conviction and the commencing of the present prosecution,

or if there was no confinement, from the date of conviction, although older convictions may

be admissible if the adverse party has sufficient advance notice and a fair opportunity to

challenge the evidence. Tenn. R. Evid. 609(b). If the conviction is more than ten years old,

the trial court must find that in the interests of justice, “the probative value of the conviction,

supported by specific facts and circumstances, substantially outweighs its prejudicial effect.”

Id. Finally, the trial court must find that the impeaching conviction’s probative value on

credibility outweighs its unfair prejudicial effect on the substantive issues. Id.

The conviction offense was attempted misuse of official information. The substantive

offense, misuse of official information, is a Class B misdemeanor. T.C.A. § 39-16-404(b)

(2010). Attempted misuse of official information is a Class C misdemeanor. See id., § 39-

12-17(a) (2010). Although a question of first impression, we conclude that attempted misuse

of official information is a crime involving dishonesty or false statement as contemplated by

our supreme court. See generally T.C.A. § 39-16-404(a) (defining misuse of official

information: “A public servant commits an offense who, by reason of information to which

the public servant has access in the public servant’s official capacity and that has not been

made public, attains or aids another to attain a benefit.”). The offense involves dishonesty

because a person entrusted with official information misuses it to his or her own advantage

or to the advantage of a third party.

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We note that the trial court did not make the required findings pursuant to Rule 609.

The record reflects that the conviction was more than ten years old. Despite the age of the

conviction, the misconduct was related to Mr. Felts’ police duties, although there is no

indication the misconduct was related to the Defendant or the investigation of the victim’s

disappearance and death. The Defendant notes that Mr. Felts has since demonstrated his

honesty and good moral character because he was licensed as an attorney after his law

enforcement career ended. We are persuaded, though, that the State was properly allowed

to cross-examine Mr. Felts about the conviction because it was a crime involving dishonesty

that occurred in his capacity as a police officer. The integrity of the investigation was called

into question by the failure of the police to locate the victim’s body in the Thorpes’ garage,

even though the forensic evidence suggested that it had been there all along. Whether Mr.

Felts testified truthfully was a significant point. We conclude that the probative value of the

evidence on Mr. Felts’s credibility substantially outweighed the prejudicial effect of the

evidence. The trial court did not err in allowing the State to cross-examine Mr. Felts about

the conviction.

We consider next the admissibility of the evidence under Rule 616, which provides

for cross-examination, extrinsic evidence, or both, of a witness’s bias or prejudice toward a

party or another witness. See Tenn. R. Evid. 616. The Defendant contends that the trial

court erred in allowing the State to cross-examine Mr. Felts about the circumstances

surrounding the conviction in order to demonstrate that he was prejudiced against the police

department. The State concedes that Rule 616 does not apply because the police department

was not a party or other witness. While we view the adverse party as the State, we view the

police department as the functional equivalent of the State, which prosecuted the crime.

Mr. Felts testified about a thorough search of the garage and said, “Her body was not

there.” His testimony called into question the State’s theory that the victim was in the garage

from the time of her disappearance and death until being found. The defense offered his

testimony to attempt to show otherwise. The facts of Mr. Felts’s dismissal from the police

department were relevant to possible prejudice against the State. We acknowledge the

passage of many years between the employment termination and the Defendant’s trial, but

the facts of the dismissal included Mr. Felts’s admission that he lied to his superior officers.

We conclude that the evidence was probative of prejudice and that the trial court’s admission

of it was consistent with Rule 616.

We have also considered the Defendant’s argument that even if the evidence was

otherwise admissible, Rule 403 barred its admission because “its probative value [was]

substantially outweighed by the danger of unfair prejudice.” See Tenn. R. Evid. 403. As we

have noted regarding admissibility under Rule 609, the probative value of the evidence was

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not substantially outweighed by the danger of unfair prejudice. Rule 403 did not defeat its

admissibility.

The trial court did not err in allowing the State to cross-examine Mr. Felts about his

conviction and employment termination. The Defendant is not entitled to relief.

VII

The Defendant contends that the trial court erred in allowing Dr. Jerry Francisco to

testify as an expert in DNA analysis. The State contends that the trial court did not err in

allowing the former state medical examiner to testify in limited fashion about his

observations of the handling of DNA in his laboratory. We conclude that the trial court did

not abuse its discretion.

Tennessee Rules of Evidence 702 and 703 address the admissibility of opinion

testimony of expert witnesses. Questions regarding the admissibility, qualifications,

relevancy, and competency of expert testimony are left to the discretion of the trial court.

McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 263-64 (Tenn. 1997). A trial court’s ruling

on the admissibility of such evidence may be overturned on appeal only for an abuse of

discretion. State v. Stevens, 78 S.W.3d 817, 834 (Tenn. 2002).

The record reflects that Dr. Francisco testified as an expert witness in forensic

pathology. During his direct examination, he was asked about precautions taken in the

laboratory at the time of the victim’s autopsy to avoid the transfer of DNA evidence. The

defense objected to Dr. Francisco’s testifying as an expert in DNA analysis. The State then

questioned Dr. Francisco about his medical training and education specific to DNA. He said

he had DNA-specific training in medical school. He said it was necessary for a physician to

learn about DNA because “[i]t’s pervasive, it’s everywhere.” He said that he had not done

DNA analysis or interpretation but that he had knowledge of the science of DNA. When

cross-examined on voir dire, he said he was in medical school in 1952 through 1955. He said

he had never testified as an expert in DNA testing. He said he attended a DNA seminar at

least ten years earlier, before his retirement, but that he had done additional “work, review,

literature searching, online examinations constantly since that time because . . . it’s a very

fas[c]inating thing.” The trial court ruled, “I’ll allow Dr. Francisco to answer the question

he’s been asked and we’ll deal with any other objections in terms of explaining . . . about the

lab not taking precautions for any DNA issues.”

Dr. Francisco proceeded to testify that because DNA was present in small amounts,

there was a need for a technique to magnify it. He said that in the late 1970s, a magnification

technique called polymerase chain reaction was developed to unwind DNA molecules. He

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explained, “In 1975, we didn’t know it existed and, therefore, you would touch the swab with

your hands. There were all sorts of contamination that would lead to a false positive, if you

will, and we had no knowledge of this in 1975.” He said that at the time, swabbing was done

to collect fluid in order to examine it for the presence of sperm. He explained the process

by which he and Dr. Bell made their own swabs and the procedure for handling the swabs

and transferring the fluid to slides. He also testified that if testing showed that four or five

individuals’ DNA was on the slides, this was probably due to contamination.

When the trial court instructed the jury, it listed Dr. Francisco as an expert witness in

forensic pathology. The court listed William Gavin as an expert in forensic serology. It

listed Janice Williamson, Meghan Clement, Jennifer Luttman, Chad Johnson, Joe Minor, and

Gary Harmor as experts in DNA analysis.

We conclude that contrary to the Defendant’s assertion, Dr. Francisco did not testify

as an expert in DNA analysis. He testified as an expert in forensic pathology, and as part of

his expertise as a physician, he described basic scientific knowledge as it related to his

laboratory’s lack of procedures for preventing contamination of DNA evidence in 1975. His

voir dire testimony established that basic scientific knowledge about DNA was part of his

medical school curriculum and continuing education and that he had additional independent

education due to his particular interest in the field. He did not testify about any DNA

analysis performed on the evidence in this case. The Defendant has not established that the

trial court abused its discretion or arbitrarily allowed Dr. Francisco to testify about basic

scientific facts within his knowledge as a forensic pathologist.

In so holding, we distinguish the case cited by the Defendant, State v. Halake, 102

S.W.3d 661 (Tenn. Crim. App. 2001). In Halake, this court held that the trial court

committed prejudicial error by allowing a police officer to testify as an expert witness that

blood spots on the defendant’s pants were consistent with gunshot blood spatter. The court

noted the complicated nature of blood spatter analysis. The court also noted that although

the officer had some on-the-job experience at crime scenes where blood spatter was present

and had attended general law enforcement seminars where information about blood spatter

was presented, the officer had no specialized training in blood spatter analysis. Id. at 670-72.

In contrast to Halake, Dr. Francisco’s testimony in the present case was appropriate expert

testimony for an expert in forensic pathology. Dr. Francisco’s testimony was limited to the

procedures in his laboratory before the advent of techniques to examine evidence for the

presence and identity of DNA, the means by which samples prepared before that time could

become contaminated, and his opinion that the slides from the victim’s homicide containing

DNA from multiple sources probably were contaminated. As a forensic pathologist who

worked in a laboratory setting for many years and who had specialized training and an

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individual interest in DNA, Dr. Francisco did not exceed the scope of his expertise. The

Defendant is not entitled to relief.

VIII

The Defendant contends that the jury imposed an excessive sentence of forty-four

years. The State counters that the sentence is within the range of ten years to life

imprisonment that was prescribed for second degree murder at the time of the offense. We

conclude that the Defendant has not established error.

As noted by the State, second degree murder at the time of the offense carried a

sentence to prison “for life or for a period of not less than ten (10) years.” T.C.A. § 39-2408

(1975) (renumbered at T.C.A. § 39-2-212) (repealed 1989); see id., § 40-35-117(c) (2010)

(providing that prior law shall apply to sentencing of a defendant for a crime committed

before July 1, 1982). The law also provided, “The jury before whom the offender is tried,

shall ascertain in their verdict whether it is murder in the first or second degree; and if the

accused confess his guilt, the court shall proceed to determine the degree of crime by the

verdict of a jury, upon the examination of testimony, and give sentence accordingly.” See

id., § 39-2404 (1975) (amended 1977, 1988) (repealed 1989); see, e.g., State v. Bryant, 805

S.W.2d 762, 763 (Tenn. 1991). “Until 1982, appellate review of sentencing was limited to

issues of probation, consecutive sentencing, and capital punishment. Where the jury fixed

sentences within the range authorized by the criminal statute, no appeal was available.”

Bryant, 805 S.W.2d at 763 (citing Ryall v. State, 321 S.W.2d 809 ( Tenn. 1959); State v.

Webb, 625 S.W.2d 281 (Tenn. Crim. App. 1980); Johnson v. State, 598 S.W.2d 803 (Tenn.

Crim. App. 1980)).

The Defendant acknowledges that jury-imposed sentences within the range prescribed

by the former sentencing law normally have not been considered to be “excessive or

indicative of passion, prejudice, or caprice on the part of the jury.” See Dukes v. State, 578

S.W.2d 659, 666 (Tenn. Crim. App. 1978). He notes that the Tennessee Supreme Court

modified sentences involving jury-imposed jail confinement in McKnight v. State, 106

S.W.2d 556 (Tenn. 1937) and Bacon v. State, 385 S.W.2d 107 (Tenn. 1964). We note,

however, that both cases cited by the Defendant involved misdemeanors, and distinguish

them on that basis. See Bacon, 385 S.W.2d at 270 (identifying “assault and battery” and

describing a misdemeanor assault); McKnight, 106 S.W.2d at 557 (identifying unlawfully

soliciting insurance as a misdemeanor).

In any event, the Defendant advocates that this court should reduce his sentence to one

commensurate to a Range I sentence for second degree murder under current law. He notes

that his forty-four year sentence is greater than the maximum sentence for both Range I and

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Range II sentences for second degree murder under current law. He argues that pursuant to

current Code section 39-11-112, he should receive the benefit of the lesser sentence provided

for second degree murder by current law. Code section 39-11-112 states:

When a penal statute or penal legislative act of the state is

repealed or amended by a subsequent legislative act, the offense,

as defined by the statute or act being repealed or amended,

committed while the statute or act was in full force and effect

shall be prosecuted under the act or statute in effect at the time

of the commission of the offense. Except as provided under the

provisions of § 40-35-117, in the event the subsequent act

provides for a lesser penalty, any punishment imposed shall be

in accordance with the subsequent act.

T.C.A. § 39-11-112 (2010) (emphasis added). Code section 40-35-117 provides that prior

law shall apply for all defendants who committed crimes before July 1, 1982. Id., § 40-35-

117(c) (2010). This court has said that section 40-35-117 is constitutional. See, e.g., State

v. Turner, 919 S.W.2d 346, 361-62 (Tenn. Crim. App. 1995); State v. Melvin, 913 S.W.2d

195, 201-02 (Tenn. 1995).

We conclude that the jury imposed a sentence that was within the applicable range and

that the Defendant is not afforded further review by this court. The Defendant is not entitled

to relief.

IX

The Defendant’s final contention is that the trial court erred in imposing his sentence

consecutively to a life sentence for a previous conviction. The State counters that the trial

court did not err. We agree with the State.

Before considering the issue raised, we note that at the Defendant’s request, the trial

court considered consecutive sentencing of the Defendant under current Code section 40-35-

115. That statute was not in effect at the time of the Defendant’s crime. At that time, the

Code provided:

When any person has been convicted of two (2) or more

offenses, judgment shall be

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