State v. Trusty

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

December 8, 2009 Session

STATE OF TENNESSEE v. JEFFERY BOYD TRUSTY

Direct Appeal from the Criminal Court for Smith County

No. 06-130 John D. Wootten, Jr., Judge

No. M2008-02653-CCA-R3-CD - Filed April 23, 2010

The defendant, Jeffery Boyd Trusty, was convicted by a Smith County jury of first degree

premeditated murder, first degree felony murder, especially aggravated kidnapping, and theft

of property over $1000. The trial court merged the two first degree murder convictions and

sentenced the defendant to concurrent terms of life imprisonment for the first degree murder

conviction, twenty-five years as a violent offender for the especially aggravated kidnapping

conviction, and four years as a Range I offender for the theft of property over $1000

conviction, for an effective sentence of life in the Department of Correction. The defendant

raises essentially eight issues on appeal, arguing that the evidence was insufficient to sustain

the first degree murder and especially aggravated kidnapping convictions, that the State

failed to prove venue in Smith County beyond a reasonable doubt and the trial court

improperly instructed the jury on the State’s burden to prove venue, and that the trial court

erred by denying the defendant’s requests for special jury instructions, allowing hearsay

testimony that the victim feared the defendant, allowing irrelevant and prejudicial evidence

about the search procedures employed to locate the victim’s body and the evidence

uncovered during those searches, allowing a police officer to offer legal opinions and

conclusions, allowing irrelevant and prejudicial evidence about the defendant’s possession

and movement of firearms, and not allowing each of the defendant’s counsel to deliver a

separate closing argument. Having reviewed the record and found no reversible error, we

affirm the judgments of the trial court.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which D AVID H. W ELLES and

R OBERT W. W EDEMEYER, JJ., joined.

David L. Raybin, Nashville, Tennessee (on appeal); B.F. (Jack) Lowery, J.D. Lowery, and

Jeff Cherry, Lebanon, Tennessee (at trial), for the appellant, Jeffery Boyd Trusty.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth T. Ryan, Associate Deputy

Attorney General; Tom P. Thompson, Jr., District Attorney General; and Katrin N. Miller,

Sharon Reddick, and David Durham, Assistant District Attorneys General, for the appellee,

State of Tennessee.

OPINION

FACTS

This case arises out of the kidnapping and murder of the defendant’s former fiancée,

Christina Hunt, whose partially decomposed body, covered with lime, was found buried in

rural Smith County on land adjacent to the defendant’s. According to the State’s proof at

trial, in late May 2005, the victim, who had been in a volatile romantic relationship with the

defendant, broke off her engagement and fled the state to stay with relatives in Indiana and

Texas. The victim returned to Nashville on June 22, 2005, and, in an effort to avoid

detection by the defendant, borrowed a friend’s vehicle and spent the night at her brother’s

home. The next day, the victim not only failed to return her friend’s car but also missed a

scheduled breakfast with her son. A massive search for the victim eventually resulted in the

August 4, 2005, discovery of her body in Smith County. The defendant was subsequently

indicted by the Smith County Grand Jury for first degree premeditated murder, first degree

murder during the perpetration of a kidnapping, first degree murder during the perpetration

of a theft, especially aggravated kidnapping, and theft of property over $1000.

Trial

State’s Proof

At the defendant’s November 2007 trial, John Beckett, an area supervisor for

McDonald’s Restaurants, identified a surveillance videotape that showed that the victim

purchased three large cups of coffee at 4:45 a.m. on June 23, 2005 from the drive-through

window of a McDonald’s Restaurant located on Interstate 440 in Davidson County.

The victim’s sister, Susan Bennett, testified that the victim, who had recently broken

off her engagement with the defendant, came to visit her at her home in Texas in early June

2005 but left unexpectedly on June 22, 2005. Later that same evening, the victim called

Bennett on her cell phone to report that she was driving through Memphis en route back to

Nashville. Bennett learned the next day that the victim was missing and responded by going

to Tennessee to assist in the search. During the course of that search, she distributed

approximately 20,000 missing person flyers, including in Carthage, where she believed the

defendant was holding the victim against her will. Bennett testified that the defendant was

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unconcerned and unhelpful when she and her family pleaded with him to let the victim go,

telling them only that the victim had left him and he did not know her current whereabouts.

On cross-examination, Bennett testified that the victim had visited relatives in Indiana

before coming to see her in Texas. She acknowledged that the victim had broken up with the

defendant at least four or five times during the course of their relationship, which began in

the fall of 2003, but had never gone missing after any of those previous breakups. On

redirect examination, she testified that the victim told her that she had left Tennessee because

she was afraid of the defendant.

Loretta Warren, the victim’s friend and former sister-in-law, testified that the victim

showed up at her Nashville apartment between 9:00 and 10:00 p.m. on June 22, 2005, where

the two discussed how the victim would spend the night at the home of her brother, John

Warren, who was the witness’s ex-husband and lived across the street from the victim’s

Nashville home. Warren said she suggested that the victim borrow her 1999 Pontiac Sunfire

because she believed the victim would be safer driving a vehicle other than her own. The

victim agreed and made plans to pick up Warren in time for work the next morning.

The victim had habitually met Warren in the early morning for coffee and cigarettes,

and she called Warren between 4:15 and 4:20 a.m. the next day to let her know that she

would bring coffee to her home. Warren explained that it would not have been unusual for

the victim to purchase three cups, as she and the victim usually drank one cup each and split

a third. The victim, however, failed to show up as planned and her cell phone went directly

to voice mail each time Warren attempted to reach her that day.

Warren further testified that she regularly stopped in her vehicle at a Mapco store near

her home. She identified photographs of her vehicle and said that her insurance company

eventually paid her $5000 for its loss.

The victim’s twenty-year-old son, Andrew Clinton, testified that the victim and the

defendant had a turbulent, on-again, off-again relationship. The defendant gave the victim

an engagement ring approximately six months before she disappeared and at one point in the

couple’s relationship the victim, Clinton, and Clinton’s younger brother, Austin Hunt, lived

with the defendant at his Smith County home. At the time of her disappearance, however,

the victim had her own residence in Nashville and Clinton’s uncle, John Warren, had

returned the victim’s engagement ring to the defendant.

Clinton testified that the victim returned to Nashville on June 22, 2005, and spent the

night at John Warren’s house, where Clinton lived in a basement apartment. Clinton said that

he and the victim argued because he knew she had gone to Texas to get away from the

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defendant and he was upset with her decision to return to Nashville. He stated that the victim

was driving his aunt’s white Pontiac Sunfire in an attempt to “throw [the defendant] off” and

was gone by the time he awakened the next day. During the time the victim was out of the

state, the defendant came several times to the restaurant where Clinton worked to try to find

out the victim’s whereabouts, but each time Clinton told him that he did not know where the

victim was.

The victim’s mother, Wilda Brown, testified that the victim broke off her engagement

with the defendant and left Nashville on May 27, 2005, because she was afraid of the

defendant. The victim first visited Brown’s sister in Indiana and then on June 2 left to visit

Bennett in Texas. During the time that the victim was in Indiana and Texas, the defendant

came to Brown’s home in an attempt to find out where the victim was, but she refused to tell

him. The defendant told Brown that he was going to track down the victim, and she replied

that it sounded as if he was stalking the victim. In response, the defendant kept repeating in

a determined tone of voice his intention of tracking down the victim. On cross-examination,

Brown acknowledged that the victim had broken up and reconciled with the defendant

several times in the past.

Austin Hunt, the victim’s fifteen-year-old son, testified that on June 23, 2005, he

drove with his stepmother from Clarksville to Nashville to meet the victim for breakfast, but

the victim never showed up.

Detective Mark Webb of the Metropolitan Nashville Police Department testified that

he was a patrol officer on June 23, 2005, and responded to Wilda Brown’s missing person

report on the victim. Brown gave him the name of the defendant as a possible suspect and

informed him that he lived in Smith County. He, therefore, contacted a Smith County

sheriff’s deputy, related the situation, and asked for his assistance.

Tom Agee testified that he was a service team manager for Roadway Express, a

transportation trucking company based in Antioch where the defendant was employed in June

2005 as an over-the-road truck driver. He said the company’s records reflected that the

defendant made a round trip from Nashville to Memphis on June 22-23, 2005, departing

Nashville at approximately 12:45 p.m. on June 22, 2005, dispatching out of Memphis at 8:00

p.m., and arriving back in Nashville at 12:02 a.m. on June 23.

Jeffrey Grey, the manager of a Mapco Express store located on Old Hickory

Boulevard, testified that Loretta Warren was a regular customer and that he was familiar with

her vehicle, which had distinctive rims. He said he was driving to work at approximately

5:00 a.m. on June 23, 2005, when he saw Warren’s vehicle parked behind a BP station down

the street from his store, which struck him as strange. He was unable to tell if anyone was

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in the vehicle because the windows were tinted and the area was not well-lit. There were no

other vehicles in the parking lot at that time, and when he left work at 3:00 p.m. that day, the

vehicle was no longer there.

Homer Webb testified that in June 2005, he lived in a farmhouse on Cedar Lane in

Smith County, which was owned by the defendant’s brother, William Trusty. The defendant

showed up at the property at approximately 8:00 a.m. on June 23, 2005, driving a Ford dually

pickup truck, told him that he was looking for a set of ramps to use to move a shed, searched

in a garage, and left after ten or fifteen minutes. Webb saw the defendant’s truck at an

outlying barn on the property later that afternoon but could not tell who was driving, as it

departed when he walked outside into the yard.

John Lindberg, an employee of Roadway Express, testified that the defendant called

him on June 23, 2005, to ask him to go to lunch. When he met the defendant shortly before

noon in the employee parking lot, he noticed scratches on the defendant’s face, which the

defendant explained as the result of his having fallen off a horse into some briars. The

defendant covered his face as they walked past the garage, and when he asked him why, told

him that he had called in sick that day and did not want anyone to see him. They left for

lunch in Lindberg’s vehicle and, en route, the defendant suggested that they drive to the

Burger King on Bell Road, telling him that his jeep had broken down there. However, when

they reached the restaurant and Lindberg started to take out his jumper cables, the defendant

told him that he had already repaired the jeep, that he had a lot of things to do, and that he

did not want to eat lunch after all.

Lindberg testified that when he learned on Friday of the victim’s disappearance, he

called a tip line to report what he knew to the police. The next day, the defendant came to

his house and asked him not to tell the police that he had given him a ride to his jeep, but to

instead lie and say that he had helped him unload his motorcycle off his trailer. On July 4,

the defendant showed up at his house again and told him that if anyone testified against him

and he was in jail, he had friends who would “take care of that.” Lindberg testified that two

or three weeks before the victim disappeared, he and the defendant were at a bar when the

defendant told him that he would kill the victim and himself if the victim ever left him

because the victim was “the best piece of ass” he had ever had and he loved her.

The defendant’s brother, William Trusty, testified that he was an employee of the

Smith County Sheriff’s Department and lived on Rome Road in Smith County, where the

defendant, his mother, and his grandmother also lived in 2005. He said the defendant came

to his house at approximately 7:00 a.m. on June 23, 2005, to find out where the ramps to his

trailer were. Trusty testified that the trailer to which the defendant referred was his sixteen-

foot ball hitch trailer, which he normally kept beside his grandmother’s house on Rome

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Road, and that the ramps, which were used to load vehicles on the trailer, were kept in a

garage located on the family farm on Cedar Lane.

Trusty testified that he was on his way to Goodlettsville at about 5:00 that afternoon

when he saw the defendant driving toward Carthage in his Ford pickup truck while towing

the trailer. At approximately 7:30 or 8:00 that same evening, he spotted a vehicle “down in

the bottom” below his grandmother’s house, investigated, and discovered the defendant

beside his truck, which was no longer towing the trailer. The defendant told him that he was

deer hunting, but Trusty did not see any weapon.

Trusty testified that after he had returned home, he received a call from Sergeant Mark

West of the Smith County Sheriff’s Department, who asked him to find out if the defendant

knew where the victim was. He said he first checked the defendant’s home and then drove

to the back of the defendant’s property to see if the defendant was still hunting. Not seeing

anyone, he turned around, saw lights near the garage, and found the defendant near an old

road that led to the property of a neighbor, Walter Beasley. He asked the defendant what he

was doing, and the defendant told him that he was coyote hunting. He then asked the

defendant if he knew where the victim was, and the defendant said he did not. Trusty

identified various photographs of the area, including the old road beside the defendant’s

house that led to Walter Beasley’s property and a parcel of land behind the defendant’s

property that belonged to Jimmy Joe Boze.

Tammy Self, the defendant’s ex-wife, testified that sometime in the early afternoon

of June 23, 2005, the defendant stopped at the end of her mother’s driveway to give a

birthday card and gift to their younger son. The defendant was driving his Ford extended

cab, dually pickup truck and towing a trailer, and she saw him only from a distance. The next

day, which was Friday, he came uninvited to their son’s birthday party and asked her to rent

a storage building in Lafayette for him, telling her that he needed to store his belongings

where no one would know about it except for himself, his brother, and the witness. Self said

that she refused to do so, both on Friday and again the next day when the defendant repeated

his request. The defendant had red finger marks on his face when she saw him on Friday,

and the following day he was wearing the same clothes and had dirt on the back of his shirt.

Tyler Trusty, the defendant’s sixteen-year-old son, testified that on Saturday, June 25,

2005, he noticed red marks on the defendant’s face and overheard him saying that he had

fallen off an ATV. He said the defendant took him and his brother to his house on Rome

Road that day, where he had them wash his mud-covered ATV while he took a shower. He

saw the defendant when he got out of the shower and noticed that he also had red marks or

scratches on his shoulders and chest.

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Paul Garrett, a long-time friend of the defendant’s, testified that the defendant came

to his Lafayette home at about 9:30 a.m. on June 23, 2005, towing a trailer that was carrying

a white-colored, tarp-covered vehicle. He said that the defendant asked him to rent a storage

unit for him, telling him that the car was a Saturn that he planned to repair in the storage unit

and give to his son, but that he did not want Tammy Self to learn of the project. Garrett

stated that the defendant gave him money and went with him to a storage facility in

Lafayette, where Garrett rented the storage unit for the defendant in Garrett’s name.

Garrett testified that he grew suspicious the following Sunday when he learned that

the defendant had also asked Tammy Self to rent a storage unit for him. He, therefore, went

to the rented storage unit with a friend, cut the lock, and found inside a suitcase, a large

purse, and a vehicle that was not a Saturn. Believing that the vehicle was stolen, he called

the defendant and demanded that he remove it from the storage unit. He and his friend

remained in town, and a little after midnight on Monday, June 27, they saw the defendant at

a service station, trailer in tow, getting fuel for his truck. After circling around town, they

drove back by the storage facility and saw the defendant pulling in behind the storage unit.

When Garrett checked the next morning, the unit was empty.

A few weeks later, the defendant came to Garrett’s house and told him that the victim

was in Mexico, that she had his money, and that the two were supposed to meet but he had

not heard from her. Garrett had spoken to Metropolitan Nashville Police Detective Brad

Corcoran the previous day, but he did not let the defendant know that he had. Instead, he told

the defendant only that the police wanted to talk to him. In response, the defendant gritted

his teeth and said that Garrett did not have to tell the police anything.

Teresa McCormick, who in June 2005 worked at Turner’s Citgo on Gordonsville

Highway in South Carthage, testified that the defendant came into the store to buy beer

approximately one week after she had taped the victim’s missing person flyer to the counter,

placed his hand on the flyer, and “took his thumb like he was trying to dig [the victim’s]

picture off the poster.”

Officer Erik Nash of the Metropolitan Nashville Police Department, who was a trainee

at the Metropolitan Police Academy in August 2005, testified that on August 4, 2005, he and

the other members of his class were searching for the victim’s remains in a wooded area in

Smith County when he noticed a rotting smell, saw an unnatural looking pile of rocks

covered with a blue-green powder, moved one of the rocks, and discovered a blackish-

colored human finger sticking up out of the middle of some powder.

Homicide Detective Brad Corcoran of the Metropolitan Nashville Police Department,

the lead detective assigned to the case, testified that in a June 24, 2005, telephone

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conversation, the defendant told him that he last had seen the victim on May 26, last spoken

with her on June 13, and had no knowledge of her whereabouts. The defendant suggested,

however, that the victim might be in Mexico, telling Detective Corcoran that he and the

victim had made plans to go to Mexico in the future and that the victim might have already

gone.

On the afternoon of Monday, June 27, 2005, Detective Corcoran, Tennessee Bureau

of Investigation (“TBI”) Agent Jason Winkler, and Investigator Joe Jones of the Fifteenth

District interviewed the defendant in person at his home on Rome Road in Smith County.

During that conversation, the defendant said that the victim was supposed to marry him on

June 4 but left his house unannounced on May 26 and refused to discuss their marriage plans

during the last phone conversation he had with her on June 13. The defendant reported that

he had arrived home from work at 1:30 or 2:00 a.m. on June 23, 2005, completed some

chores, was bucked off a horse and injured, worked on his four-wheeler, retrieved some

ramps from his brother’s house, and transported his motorcycle to a motorcycle shop. The

defendant additionally stated that his relationship with the victim had been rocky, that the

victim had accused him of domestic violence in Wilson County, and that the victim had taken

out two orders of protection against him but that he had paid her $500 each to drop them.

Finally, the defendant explained the visible scratches on his arms, neck, and face as the result

of the horseback riding incident.

Detective Corcoran testified that after interviewing Paul Garrett, he went to the

storage unit in Lafayette in Macon County, where he discovered some charred debris,

including a piece of plastic that was consistent with a tarp. He said that the investigation

eventually changed from a missing person to a homicide case and that he obtained search

warrants for the three parcels of land on Rome Road owned by the Trusty family and consent

from the owners of thirty to forty neighboring tracts in order to conduct a ground search of

the area. The military performed a preliminary search on June 2, 2005, to identify the type

of terrain and the best methods to be employed in the search, and on June 3, 2005, a large,

systematic search involving over 300 military and police personnel began.

Detective Corcoran identified various photographs of the search, including the burial

site located on Jimmy Joe Boze’s property, the excavation of the remains, the old logging

road that ran beside the defendant’s house, and an old lime pit located within a quarter-mile

of the burial site. He additionally identified photographs of the clothing the victim was

wearing at the time her body was discovered, the BP station where Grey saw Loretta

Warren’s white Pontiac parked early on the morning of June 23, and the Burger King

restaurant where Lindberg dropped off the defendant in the early afternoon of the same day.

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Detective Corcoran testified that the victim’s body was clothed in capri-style, blue-

jean overalls and a pink pullover top, which was consistent with the pink top the victim was

wearing in the McDonald’s surveillance videotape. He said that the victim’s body was not

wearing any socks and that a small, partially burned white sock was recovered from a fire pit

on the defendant’s property on August 3, 2005. He further testified that the distance from

the Burger King restaurant to where Warren’s car had been parked in the BP service station

lot measured 336 yards and that the BP station was less than 100 feet from Loretta Warren’s

apartment.

Identifying on a map the relevant areas in the case, Detective Corcoran testified that

it took approximately forty to forty-five minutes to drive from the area in Nashville marked

on the map to the area in Carthage, thirty minutes from Rome Road to Lafayette, and forty-

five to fifty minutes from Lafayette back to Nashville. He stated that at the time the

defendant was being booked for the victim’s murder, he made a spontaneous statement that

“he didn’t mean for this to happen” and that “[h]e just didn’t know what to do.” He said that

on November 30, 2005, he received a call from defense counsel’s office informing him that

Loretta Warren’s vehicle was located on the square in Lebanon adjacent to counsel’s office.

He then went to that location and recovered the vehicle, which was missing its tags.

On cross-examination, Detective Corcoran acknowledged that the first indictment

returned against the defendant charged him with the crimes in Davidson County. He further

acknowledged that he did not know if or where the victim had been killed or kidnapped. On

redirect examination, he testified that evidence that the victim was kidnapped, murdered, and

her car stolen was presented to both the grand jury of Davidson County and to the grand jury

of Smith County, and he clarified his cross-examination testimony by stating that he did, in

fact, know that the victim had been killed. On recross-examination, he acknowledged that

he did not know where the victim was killed or how she was killed and that he had no

eyewitness or photographic proof that she had been abducted.

Dr. Michael Phillip Tabor, an expert in forensic dentistry who compared the victim’s

dental records to the teeth of the body found buried in Smith County, opined that the remains

were those of the victim.

Frances Wheatley, the lead investigator for the Davidson County Medical Examiner’s

Office who participated in the recovery of the victim’s body, testified that a traditional

autopsy was unable to be performed because the partially skeletonized remains did not

contain any internal organs.

Dr. Hugh Berryman, an expert in the field of forensic anthropology, testified that he

found fractures to the victim’s nose and multiple fractures to the left side of her mandible,

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which were reflective of blunt force trauma applied to the lower part of her face. He opined

that some of the blunt force trauma could have been caused by a fist, but that one of the

fractures in which the bone was notched was suggestive of a penetrating injury to the soft

tissue, which had to have been caused by some type of instrument. Although he was able to

determine that the injuries occurred around the time of the victim’s death, he was unable to

determine whether they were pre- or post-mortem. On cross-examination, he acknowledged

that he was unable to determine the cause of death, and he conceded that some of the

fractures could have been caused post-mortem by rocks dropped or thrown on the left side

of the victim’s face.

Metropolitan Nashville Police Officer William Kirby of the Crime Scene

Identification Division testified that he processed the 1999 Pontiac Sunfire on December 1,

2005, and found that it had been wiped clean and had no unusual items inside it.

TBI Special Agent Jason Wilkerson testified that the defendant consented to a search

of his home on June 27, 2005, and told him, when asked, that he had guns but had moved

them to his mother’s home because he did not want the officers to find them at his residence.

He said there was no evidence that any of the guns were involved in the victim’s

disappearance.

Defendant’s Proof

Steven Dill, an employee of Boswell Harley Davidson in Nashville, identified a repair

order that reflected that the shop took the defendant’s motorcycle in for an oil change on June

23, 2005. On cross-examination, he testified that he had no independent recollection of the

transaction.

The defendant testified that his relationship with the victim had been turbulent,

explaining that he and the victim sometimes got along but also had issues that at times led

to heated arguments. He related their series of breakups and reconciliations and testified that

in April 2005, the victim was living in her own apartment in Nashville but that the two had

reconciled and were engaged to be married. He stated that he thought their relationship was

still going well when he dropped the victim off at her apartment after she had spent the night

at his home, and became worried when she would not answer his subsequent telephone calls.

The victim’s mother and son could not tell him her whereabouts, but the victim’s brother

finally informed him that the victim was uncertain about the marriage and that the brother

was sending the engagement ring back to the defendant. The defendant said the next time

he heard from the victim was when she called him on June 13 while he was on the road.

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The defendant testified that he drove a load to Memphis on June 22, 2005, and

returned to Nashville, clocking out at five or ten minutes after midnight on June 23. He then

hung out in the driver’s lounge for a couple of hours before carrying his gear out to his jeep,

where he found a note from the victim asking him to meet her at the Waffle House on Old

Hickory Boulevard at 5:00 a.m. After stopping to purchase fuel, a soda, and cigarettes, he

drove to the Waffle House, located next door to the Burger King, and parked his vehicle. A

few minutes later, the victim pulled up in Loretta Warren’s vehicle, motioned him into the

vehicle, and handed him a cup of coffee. She then drove to the BP station, parked the

vehicle, and began talking.

The defendant testified that the victim told him that she had left to clear her head and

returned because she intended to go to school. The victim then asked him to give her $700,

telling him that she needed some money to get her started. He refused, and the victim

became enraged, called him “a sorry SOB,” threw her cup of hot coffee in his face, and

began hitting and scratching him and pulling his hair. The defendant stated that he pushed

forward to get the victim off him and ended up on top of her in the backseat. At that point,

he noticed that she was no longer moving. He described the episode:

She just started screaming at me and took her hot coffee and threw it on

me in my face, and it blinded me, and I grabbed my shirt that I had on and

pulled it up over my face and was trying to wipe my eyes out, and at that time,

she started hitting on me and pulling my hair and scratching me, and she just

wouldn’t stop hitting me, and I had nowhere to go. I was backed up against

the back of the door with my back, and she was on top of me pretty much

holding my head and my hair, and I couldn’t get her to quit and took and

pushed forward on her, pushed forward and tried to knock her off of me, and

I just pushed real hard, and we flew between the seats and landed up in the

back of the back seat, and I was on top of her looking up at the roof, and I

noticed that she had quit moving. She was just limp there. I took and got up

off her and got situated around and tried to see what was wrong with her, and

she wasn’t moving.

The defendant testified that he attempted CPR on the victim but was unable to get any

response. In a state of shock, he initially began walking down the road, but, unable to leave

the victim “there like that,” he returned to the vehicle, covered the victim with a quilt, and

began driving to his home in Smith County, following the shortest route. The vehicle began

to run out of gas as he was driving through Hartsville, so he pulled behind an old tobacco

barn, raised the hood, locked the doors, and hitched a ride home. Once there, he retrieved

his truck, the trailer ramps, the trailer, and five gallons of fuel, returned to the vehicle, filled

its tank, and drove it onto his trailer. He then carried the vehicle on the trailer to Lafayette,

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where Garrett rented the storage unit for him.

The defendant testified that he put the vehicle in the storage unit, moved the victim

to the backseat of his truck, drove home, and placed the victim on a bed in his house. He

then drove to the Roadway Express parking lot, obtained a ride from Lindberg to the Waffle

House where he had left his jeep, and drove back to Roadway Express, where he discovered

that his jeep was too large to fit on the trailer. He, therefore, drove his jeep home, rode his

motorcycle back to Roadway Express, loaded the motorcycle onto the trailer, and dropped

off the motorcycle at the motorcycle shop. Next, he drove the truck and trailer back to

Carthage, dropped the trailer at his grandmother’s rental house, returned to his home, placed

the victim’s body in his truck, drove to the back of his property, and carried the victim down

to the area where her body was found.

The defendant testified that he did not call the police because he panicked. He said

he had made some bad choices, but he did not kidnap the victim and never intended to kill

her. On cross-examination, he testified that Hartsville is in Trousdale County and that he

therefore never crossed the county line into Smith County with Warren’s vehicle. He said

that he used a five-gallon bucket and his four-wheeler to place lime on the victim’s body on

June 24, 2005, removing a couple of rocks from the pile he had placed on the victim the

previous day and then replacing them afterwards He stated that when he was covering the

victim’s body with rocks, a large one slipped from his hands and fell onto her face.

At the conclusion of the defendant’s proof, the trial court granted the State’s motion

to dismiss count three, which charged the defendant with felony murder in the perpetration

of theft.

State’s Rebuttal Proof

Loretta Warren testified that her 1999 Pontiac Sunfire, a small two-door car with

“pretty good” gas mileage, contained a half-tank of gas at the time the victim borrowed it.

On cross-examination, she acknowledged that she did not know where the victim drove when

she left her home.

Following deliberations, the jury convicted the defendant of the four remaining counts

charged in the indictment.

ANALYSIS

I. Sufficiency of the Evidence

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The defendant first challenges the sufficiency of the evidence for his first degree

murder and especially aggravated kidnapping convictions. When the sufficiency of the

convicting evidence is challenged on appeal, the relevant question of the reviewing court 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, 99 S. Ct. 2781, 2789 (1979); see also Tenn.

R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury shall

be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt

beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State

v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). The same standard applies

whether the finding of guilt is predicated upon direct evidence, circumstantial evidence, or

a combination of direct and circumstantial evidence. State v. Matthews, 805 S.W.2d 776,

779 (Tenn. Crim. App. 1990).

All questions involving the credibility of witnesses, the weight and value to be given

the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754

S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the

trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in

favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our

supreme court stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and

the jury see the witnesses face to face, hear their testimony and observe their

demeanor on the stand. Thus the trial judge and jury are the primary

instrumentality of justice to determine the weight and credibility to be given

to the testimony of witnesses. In the trial forum alone is there human

atmosphere and the totality of the evidence cannot be reproduced with a

written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212

Tenn. 464, 370 S.W.2d 523 (1963)).

A jury conviction removes the presumption of innocence with which a defendant is

initially cloaked and replaces it with one of guilt, so that on appeal, a convicted defendant

has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 639

S.W.2d 913, 914 (Tenn. 1982).

A. First Degree Premeditated Murder

To sustain the conviction for first degree premeditated murder, the State had to prove

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beyond a reasonable doubt that the defendant committed “[a] premeditated and intentional

killing” of the victim. Tenn. Code Ann. § 39-13-202(a)(1) (2003 & 2006). Premeditation

is defined as

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

means that the intent to kill must have been formed prior to the act itself. It is

not necessary that the purpose to kill pre-exist in the mind of the accused for

any definite period of time. The mental state of the accused at the time the

accused allegedly decided to kill must be carefully considered in order to

determine whether the accused was sufficiently free from excitement and

passion as to be capable of premeditation.

Id. § 39-13-202(d).

The defendant argues that there was “not one shred of evidence” that the killing was

premeditated and no proof that he caused the victim’s death. The State responds by arguing

that there was abundant evidence to show that the defendant killed the victim with

premeditation, including proof, among other things, of his tumultuous relationship with the

victim, his declared intent to kill her if she ever left him, the efforts he made to locate her

after she left the state, his failure to seek any assistance for her at the time of her death, and

the elaborate steps he took to conceal the crime. We agree with the State.

The presence of premeditation is a question of fact for the jury to determine based

upon a consideration of all the evidence. See State v. Suttles, 30 S.W.3d 252, 261 (Tenn.

2000). Premeditation may be inferred from circumstantial evidence surrounding the crime,

including the manner and circumstances of the killing. See State v. Pike, 978 S.W.2d 904,

914 (Tenn. 1998); State v. Addison, 973 S.W.2d 260, 265 (Tenn. Crim. App. 1997). Facts

from which the jury may infer premeditation include the use of a deadly weapon on an

unarmed victim; the lack of provocation on the part of the victim; the defendant’s

declarations of his intent to kill; the defendant’s failure to render aid to the victim; the

establishment of a motive for the killing; the particular cruelty of the killing; the defendant’s

procurement of a weapon, preparations to conceal the crime, and destruction or secretion of

evidence of the killing; and a defendant’s calmness immediately after the killing. State v.

Thacker, 164 S.W.3d 208, 222 (Tenn. 2005); State v. Leach, 148 S.W.3d 42, 54 (Tenn.

2004); State v. Lewis, 36 S.W.3d 88, 96 (Tenn. Crim. App. 2000) (citations omitted).

Viewed in the light most favorable to the State, the evidence established that the

defendant had a history of domestic violence toward the victim, stated his intention of killing

her if she ever left him, attempted to discover her whereabouts after she broke off their

engagement and fled the state, and repeatedly announced to her mother his intention of

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tracking her down. The evidence further established that the victim had expressed her fear

of the defendant and, at the time of her disappearance, was taking steps to prevent him from

locating her; that the victim sustained multiple fractures to her jaw and nose around the time

of her death, including a fracture caused by some type of instrument; and that the defendant

appeared calm and went to elaborate efforts to dispose of the victim’s body and to conceal

evidence of the crime rather than seeking immediate medical assistance or reporting her

alleged accidental death to the police. From all of this proof, a rational jury could have found

beyond a reasonable doubt that the defendant killed the victim intentionally and with

premeditation. We conclude, therefore, that the evidence was sufficient to sustain the

defendant’s conviction for first degree premeditated murder.

B. First Degree Felony Murder and Especially Aggravated Kidnapping

The defendant argues that the evidence was insufficient to sustain his especially

aggravated kidnapping and first degree murder in the perpetration of a kidnapping

convictions because “there was absolutely no evidence that [the victim] was ever kidnapped

by anyone.” The State argues that it presented sufficient circumstantial evidence to establish

that the defendant confined the victim in her vehicle against her will and that she died at

some point during her confinement. We, again, agree with the State.

To sustain the conviction for first degree felony murder, the State had to prove beyond

a reasonable doubt that the defendant killed the victim “in the perpetration of or attempt to

perpetrate any . . . kidnapping.” Tenn. Code Ann. § 39-13-202(a)(2) (2003 & 2006). To

sustain the conviction for especially aggravated kidnapping, the State had to prove beyond

a reasonable doubt that the defendant committed a kidnapping of the victim where the victim

suffered serious bodily injury. Id. § 39-13-305(a)(4). Kidnapping is defined as “false

imprisonment . . . [u]nder circumstances exposing the other person to substantial risk of

bodily injury.” Id. 39-13-303(a)(1). “False imprisonment” is committed when one

“knowingly removes or confines another unlawfully so as to interfere substantially with the

other’s liberty.” Id. 39-13-302(a).

The defendant asserts that there was no proof that the victim was kidnapped. The

State, however, presented evidence at trial to show that the victim had fled the state because

she feared the defendant and that she took steps upon her return to avoid his detection by

borrowing a friend’s car and staying in her brother’s home. Based on this evidence, a

rational jury could have reasonably found that she did not invite the defendant into her car

or willingly accompany him anywhere, but that the defendant instead knowingly removed

or confined her against her will and that he caused her death during the course of that

removal or confinement. We conclude, therefore, that the evidence was sufficient to sustain

the defendant’s convictions for first degree felony murder and especially aggravated

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kidnapping.

II. Venue

The defendant next contends that the State failed to prove venue in Smith County by

a preponderance of the evidence and that the trial court issued erroneous instructions to the

jury on the State’s burden to prove venue. Specifically, the defendant argues that “[t]here

was no evidence, direct or circumstantial, to establish that any crime occurred in Smith

County.” He further argues that the trial court’s instructions on venue, which stated that the

jury may infer that a murder was committed in the county where the body was found,

unconstitutionally shifted the burden of proof from the State to the defendant.

The Tennessee Constitution provides criminal defendants with the right to a jury trial

in the county where the offense was committed. Tenn. Const. art. I, § 9; State v. Young, 196

S.W.3d 85, 101 (Tenn. 2006). Accordingly, “[a]lthough venue is not an element of the

crime, the [S]tate must prove by a preponderance of the evidence that the offense was

committed in the county alleged in the indictment.” State v. Anderson, 985 S.W.2d 9, 15

(Tenn. Crim. App. 1997) (citations omitted); see also Tenn. Code Ann. § 39-11-201(e) (“No

person may be convicted of an offense unless venue is proven by a preponderance of the

evidence.”); Tenn. R. Crim. P. 18(a) (“Except as otherwise provided by statute or by these

rules, offenses shall be prosecuted in the county where the offense was committed.”).

“Venue is a question for the jury,” Young, 196 S.W.3d at 101 (citing State v.

Hamsley, 672 S.W.2d 437, 439 (Tenn. Crim. App. 1984), and can be established by

circumstantial evidence. Id. at 101-02 (citing State v. Bennett, 549 S.W.2d 949, 950 (Tenn.

1977)). To determine venue, the jury is permitted to draw reasonable inferences based on

the evidence presented. Id. at 102 (citing State v. Johnson, 673 S.W.2d 877, 882 (Tenn.

Crim. App. 1984)).

At trial, defense counsel made a general objection to the State’s special instruction as

to venue. The State’s request included the instruction that the jury “may infer” that the

“murder was committed in the county where the body was found.” The trial court included

the State’s special instruction, instructing the jury as follows:

The burden of proof venue, generally. The burden is upon the State to

prove by a preponderance of the evidence that this offense was committed in

Smith County, Tennessee. Proof by a preponderance of the evidence means

that the greater weight of the evidence must be in support of the State’s

contention. Venue of the offense lies in the county where the offense was

commenced or consummated. If you find that the State has failed to prove by

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a preponderance of the evidence that this offense was commenced or

consummated in Smith County, Tennessee then you must return a verdict of

not guilty.

The burden is upon the State to prove by a preponderance of the

evidence which may be either direct, circumstantial, or both if the offense was

committed in Smith County, Tennessee. Proof by a preponderance of the

evidence means that the greater weight of the evidence must be in support of

the State’s contention.

Venue of the offense lies in the county where the offense was

commenced or consummated. If one or more elements of an offense are

committed in one county and one or more elements in another, the offense may

be prosecuted in either county. You may infer that a murder was committed

in the county where the body was found.

If you find that the State has failed to prove by a preponderance of the

evidence that this offense was commenced or consummated in Smith County,

Tennessee then you must return a verdict of not guilty.

Preponderance of the evidence simply means the greater weight of the

evidence which is not determined alone by the greater number of witnesses

testifying one way or another about the issues sought to be proved but the

preponderance is that evidence which to your mind has the greater and more

persuasive force and which you believe more closely details the factual truth.

Evidence is whatever has been admitted by the Court during the course

of this trial for you, the jury, to see, hear or examine.

In this cause the State has the burden of establishing by a

preponderance of the evidence all the facts necessary to prove the following

issue, that venue of the offenses is in Smith County, Tennessee. The burden

of proving an issue by a preponderance of the evidence has not been met if the

evidence on that issue appears to be equally balanced. You must consider all

the evidence pertaining to this issue regardless of who presented it.1

The defendant contends on appeal that the trial court erred by instructing the jury that

it “may infer that a murder was committed in the county where the body was found,”arguing

1

There is some repetition in this instruction.

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that such an instruction is unconstitutional in that it “shifts the burden of proof to the

defendant and there is no rational or logical basis upon which this so-called inference is

based.” We respectfully disagree, as the trial court included this additional instruction as to

inference in its instructions to the jury:

The Court has charged the jury concerning an inference that the jury

may make in regarding to certain evidence in this case, however[,] the jury is

not required to make this inference. It is the exclusive province of the jury to

determine whether the facts and circumstances shown by all the evidence in

the case warrant the inference which the law permits the jury to draw. The

inference may be rebutted by direct or circumstantial evidence or both,

whether it exists in the evidence of the [S]tate or is offered by the defendant.

Although the defendant is not required by law to do so when the

defendant offers an explanation to rebut the inference raised, you should

consider such explanations along with all the evidence to determine not only

the correctness of the inference but also the reasonableness of the defendant’s

explanation. You aren’t bound to accept either the inference or the

defendant’s explanation. The statements have proven beyond a reasonable

doubt every element of the offense before the defendant can be found guilty.

In State v. Pickett, 211 S.W.3d 696, 701 (Tenn. 2007), our supreme court considered

the constitutionality of the following inference set out in Tennessee Code Annotated section

39-17-1003(b) (2003) for cases involving the sexual exploitation of a minor: “In a

prosecution under this section, the trier of fact may infer that a participant is a minor if the

material through its title, text, visual representation or otherwise represents or depicts the

participant as a minor.” The defendants in Pickett argued that subsection (b) “impermissibly

shift[ed] the burden to the defendant to prove that the images do not portray actual minors.”

211 S.W.3d at 702. The court disagreed, explaining that the inference was permissive rather

than mandatory:

[I]t is our view that the statute does not impermissibly shift the burden to the

defendant to prove that the image does not depict a minor. Both this Court and

the United States Supreme Court have specifically approved of the use of

permissive inferences in criminal trials. See, e.g., Estelle v. McGuire, 502

U.S. 62, 78-79, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991); Lowe v. State, 805

S.W.2d 368, 371-72 (1991); State v. Bolin, 678 S.W.2d 40, 42 (Tenn. 1984).

In Estelle, the United States Supreme Court held that “a permissive inference

is not a violation of due process because the State still has the burden of

persuading the jury that the suggested conclusion should be inferred based on

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the predicate facts proved.” Estelle, 502 U.S. at 79, 112 S. Ct. 475 (citing

Ulster County Court v. Allen, 442 U.S. 140, 157-63, 99 S. Ct. 2213, 60 L. Ed.

2d 777 (1979)). A “permissive inference allows, but does not require, the

triers of fact to infer the elemental fact from proof by the State of the basic fact

and places no burden of any kind on the defendant.” Bolin, 678 S.W.2d at 42.

Conversely, a mandatory presumption violates due process because it

shifts the burden to the defendant. Patterson v. New York, 432 U.S. 197, 215,

97 S. Ct. 2319 (1977). “The mandatory presumption tells the triers of fact that

they must find the elemental fact upon proof of the basic fact unless [the]

defendant comes forward with some evidence to rebut the presumed

connection between the two facts.” Bolin, 678 S.W.2d at 42.

In this instance, Tennessee Code Annotated section 39-17-1003(b)

provides that “the trier of fact may infer that a participant is a minor if the

material through its title, text, visual representation or otherwise represents or

depicts the participant as a minor.” Tenn. Code Ann. § 39-17-1003(b) (2003)

(emphasis added). The statute does not require the trier of fact to conclude

that the material depicts a minor. Further, the statute places no burden on the

defendant to prove that the image is not that of a minor. The State must still

establish each of the elements of the crime, including the fact that the material

contains the image of a minor. It is our view, therefore, that the statute does

not unconstitutionally shift the burden of proof.

Id. at 703.

The inference regarding venue in the present appeal, similar to the inference regarding

the age of the participant in Pickett, was permissive rather than mandatory. Accordingly, we

conclude that the State’s special instruction as to venue did not shift the burden of proof to

the defendant.

The defendant additionally argues that the inference was improper because it was not

based on statute, as in other states, but rather was judicially created. In Reynolds v. State,

287 S.W.2d 15, 16 (Tenn. 1956), our supreme court held that “there must be a presumption,

. . . rebuttable in character, that the crime was committed where the body was found when

there is no showing to the contrary.” Relying on that language, the defendant in Cagle v.

State, 507 S.W.2d 121, 131 (Tenn. Crim. App. 1973), argued “that the court erred in failing

to instruct the jury that there is a presumption the deceased was killed in the county where

her body was found.” The Cagle court, however, explained why such an instruction was not

required in that case:

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In this case, as noted, there is evidence from which the jury could justifiably

find that the crime was committed partially in both Hamblen and Jefferson

Counties. Consequently, the defendant was not prejudiced by the court’s

failure to charge the jury this homicide victim was presumed to have been

killed where her body was found.

Id.

Thus, by implication, the Cagle court held that such an instruction would be

appropriate in certain cases.

The defendant additionally argues that the jury could not properly have made the

presumption that the victim died in Smith County because the defendant presented “direct

evidence to the contrary,” namely, that the victim was neither moving nor breathing while

she was in the backseat of her car in Davidson County. The defendant summarizes his

argument as follows: “[T]he lead investigating detective testified that the government was

unable to prove the cause of death of the victim, whether it was even a homicide, was unable

to establish where the victim was killed, whether the victim was even kidnapped or not,

whether the victim was killed in perpetration of any theft or any kidnapping.”

The State responds by arguing that the defendant did not rebut the presumption that

the victim died in Smith County:

The defendant testified that the victim was not moving or breathing

after the two had struggled in the white car, while it was parked behind the BP

station. Though he may have [implied] through his testimony that he killed the

victim in the car, he never testified that he killed her.

By its verdict, the jury clearly rejected the defendant’s tale. And

without the defendant’s testimony, the jury was presented with proof that the

victim was alive in Davidson County the last time she was seen [alive] and the

proof of her death was found under a pile of rocks in Smith County.

We agree with the State that it is apparent by its verdict that the jury made the

presumption that the victim died in Smith County. Despite the defendant’s assertion that his

trial testimony was that “the victim died in Davidson County,” the record shows that the

defendant in fact testified merely that the victim was not breathing and did not respond to his

attempts at CPR while she was in her car in Davidson County.

The jury was, moreover, entitled to disbelieve any implication contained in the

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defendant’s testimony that the victim died in Davidson County. In State v. Beall, 729

S.W.2d 270 (Tenn. Crim. App. 1986), cited by the State, this court concluded that the jury

was entitled to disbelieve the defendant’s testimony that he had killed his wife in Kentucky

rather than in Montgomery County, where her body was found:

In Reynolds v. State, 287 S.W.2d 15 (Tenn. 1956), the Supreme Court

held that the finding of a body in the county of trial created a presumption the

killing occurred in that county and the jury could so find on the question of

venue. Although the question raised in this matter is not one of venue in a

particular county but one of territorial jurisdiction in Tennessee, we see no

reason to hold that the finding of the body in Montgomery County, Tennessee,

would not give rise to a presumption that the killing occurred in this state.

The defendant contends that such a presumption is invalid in this case

because of his positive testimony that he shot his wife in Kentucky. The

argument has validity only if his testimony is accepted as true in the face of

evidence to the contrary. This, of course, is not the manner in which such

issues are resolved.

Whether the defendant established the killing occurred in Kentucky or

whether the killing occurred in Tennessee was a factual matter to be resolved

by the jury after hearing all the testimony of the witnesses, weighing their

credibility, and applying to the facts the law as given them by the trial judge.

The jury has accepted the state’s theory on the location of the shooting

and rejected the defendant’s theory thereof. . . .

Id. at 271.

We conclude, therefore, that the State presented sufficient evidence to support the

jury’s determination that the victim died in Smith County.

Finally, the defendant relies on the holding in Henderson v. State, 539 S.W.2d 843

(Tenn. Crim. App. 1976), to argue that just because language appears in the text of an

appellate opinion, it does not mean that it is appropriate to be included in the charge to the

jury. The instruction to which the defendant objected in the Henderson case was quoted from

the opinion in Crosswy v. State, 157 Tenn. 363, 371, 8 S.W.2d 486, 488 (1928), and stated

as follows:

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If one will use an intoxicant, he must remember that organized society

speaking through the legislative department of this State has inhibited him

from driving while under the influence of intoxicating liquor any automobile,

motorcar, taxicab, or motorcycle in the State of Tennessee and especially

prohibits the driving of an automobile by any person on the public highways

of Tennessee while such person is under the influence of an intoxicant. Such

person has no right to speculate as to the extent of the potency of the intoxicant

he has taken or as to his powers of resistance. If he would avoid the penalty

which the law imposes for violation of its command, common prudence would

suggest that he refrain from experimenting as to his ability to overcome the

influence of the intoxicant he has used. The statute must be obeyed.

Henderson, 539 S.W.2d at 847.

The Henderson Court concluded that the instruction was error, albeit harmless,

because it was not supported by the facts and was not appropriate as a standard upon which

the jury should make its determination:

A close review of the Crosswy opinion indicates that the language here quoted

from it is dictum and, taken in context, was merely supportive of the

Crosswy’s court’s conclusion that the evidence as a whole did not

preponderate against the jury’s verdict of guilt. The statement may not be

wrong when viewed as a principle of appellate review, but it is not altogether

appropriate as a legal standard by which a jury should decide the defendant’s

guilt or innocence.

Id. at 848-49 (footnote omitted).

In contrast to the court’s holding in Henderson, we do not find that the instruction the

jury could make the permissive inference that the victim died in the county where her body

was found to be either stating a principle more suited for appellate review or an inappropriate

legal standard for the jury to utilize in making its determination. Accordingly, we conclude

that this issue is without merit.

III. Special Jury Instructions

The defendant next contends that the trial court erred by not granting his request for

special jury instructions that transporting or burying a body after death is not an element of

the offense of homicide and that a homicide is consummated and completed when death

occurs. In the body of his brief, the defendant additionally contends that the trial court erred

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by not instructing the jury that a person must be alive in order to be kidnapped. The State

points out that the trial court granted the special jury instruction on kidnapping and argues

that the trial court properly denied the defendant’s other requested special jury instructions

on the basis that the pattern jury instructions adequately set out the elements of the offenses

of premeditated and felony murder.

“It is well-settled in Tennessee that a defendant has a right to a correct and complete

charge of the law so that each issue of fact raised by the evidence will be submitted to the

jury on proper instructions.” State v. Farner, 66 S.W.3d 188, 204 (Tenn. 2001) (citing State

v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000); State v. Teel, 793 S.W.2d 236, 249 (Tenn.

1990)). Accordingly, trial courts have the duty to give “a complete charge of the law

applicable to the facts of the case.” State v. Davenport, 973 S.W.2d 283, 287 (Tenn. Crim.

App. 1998) (citing State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986)). A trial court’s

denial of a request for special jury instructions is error only when the trial court’s charge does

not fully and fairly state the applicable law. State v. Cozart, 54 S.W.3d 242, 245 (Tenn.

2001).

We agree with the State that the trial court’s instructions, which accurately set out the

required elements for first degree premeditated and felony murder, fully and fairly stated the

applicable law. We note that defense counsel admitted that he had no case law in support of

the proposed jury instruction on transporting a dead body but instead had drafted it himself.

We conclude, therefore, that the defendant is not entitled to relief on the basis of this claim.

IV. Hearsay Testimony

The defendant next contends that the trial court erred in admitting hearsay testimony

from Bennett and Brown that the victim feared the defendant. Hearsay is defined as “a

statement, other than one made by the declarant while testifying at the trial or hearing,

offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid. 801(c). As a

general rule, hearsay is not admissible at trial unless it falls under one of the exceptions to

the rule against hearsay. Tenn. R. Evid. 802. “The determination of whether a statement is

hearsay and whether it is admissible through an exception to the hearsay rule is left to the

sound discretion of the trial court.” State v. Stout, 46 S.W.3d 689, 697 (Tenn. 2001).

Accordingly, we will not reverse the trial court’s ruling on this issue absent a clear showing

of an abuse of discretion.

The trial court admitted the challenged testimony under the state of mind exception

to the rule against hearsay, finding that the statements were reflective of the victim’s then-

existing state of mind and relevant to show the relationship between the victim and the

defendant during that window in time. Following the first hearsay statement admitted, the

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trial court also issued a limiting instruction to the jury to the effect that it was not to consider

the statement as proof of the defendant’s or anyone else’s conduct, but only as indicative of

the victim’s state of mind at the precise moment she uttered the statements.

We conclude that the trial court properly admitted the testimony under the state of

mind exception to the rule against hearsay, but that its limiting instruction was unnecessarily

restrictive. The state of mind exception provides for the admission of a “declarant’s then

existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive,

design, mental feeling, pain, and bodily health).” Tenn. R. Evid. 803(3). The Advisory

Commission comments to the rule explain that “[c]ombining the hearsay exception with

relevancy principles, declarations of mental state will be admissible to prove mental state at

issue or subsequent conduct consistent with that mental state,” but that “only the declarant’s

conduct, not some third party’s conduct, is provable by this hearsay exception.” Id.,

Advisory Comm’n Comment (emphasis added).

As further explained in Neil P. Cohen et al., Tennessee Law of Evidence, § 8.08[5][a]

(5th ed. 2005):

Once we accept the settled proposition that declarations of mental state

are admissible to prove the declarant’s mental state at that time, it follows

under relevance principles that consistent contemporaneous or future conduct

can likewise be proved by such declarations of mental state. In other words,

if a person has a mental state that suggests conduct would be forthcoming

because of that mental state, the existence of that mental state can be used as

some proof that the conduct occurred.

Declarations of mental state can also be used to prove the declarant’s past or future

mental state:

It only takes application of the traditional definition of relevance in

Rule 401 to conclude that a declarant’s expression of his or her present mental

state is admissible to prove that the declarant had the same mental state on a

later date or at an earlier time. The boundaries are those of common sense and

probability.

Id. § 8.08[4].

Given the proof of the on-again, off-again nature of the victim’s relationship with the

defendant, we conclude that the statements she made shortly before her death about her fear

of the defendant were relevant and admissible under the state of mind exception to show not

-24-

only her state of mind at the time she uttered the statements, but also her probable mental

state and behavior at the time of her death, including whether she would have been likely to

initiate contact with the defendant or willingly accompany him in her vehicle. The defendant

is not, therefore, entitled to relief on the basis of these claims.

V. Evidence Related to Search for Victim’s Body

The defendant next contends that the trial court erroneously admitted irrelevant and

prejudicial evidence related to the search for the victim’s body; specifically, Officer Nash’s

testimony about the procedures used to search for the victim, the partially-burned sock found

in the fire pit, Detective Corcoran’s testimony about the various places that were searched,

and photographs of the burial site, buckets of dirt, and rocks. The State responds by arguing,

inter alia, that the evidence was properly admitted on the basis that its probative value on the

issue of premeditation outweighed any prejudicial effect. We agree with the State.

A. Testimony of Police Officers

The defendant first complains about Officer Nash’s description of the “grid pattern”

employed in the search and Detective Corcoran’s testimony about the various places in which

officers unsuccessfully searched for the victim. The defendant argues that such testimony

was irrelevant, “proved nothing,” and “was designed to prejudice the defendant by showing

some massive police effort to locate the alleged victim.” We agree with the State, however,

that the officers’ testimony served to show how well the victim’s body was hidden and was

therefore relevant to the issue of premeditation. We further agree that the probative value

of the evidence outweighed any prejudicial effect. We conclude, therefore, that the trial

court did not err in admitting the testimony.

B. Crime Scene Photographs

The defendant takes no issue with the admission of photographs depicting the victim’s

body at the burial site but complains that photographs of the site without the victim’s body,

“of buckets of dirt which did not even have the body in it,” and of rocks “when there was no

evidence that the rocks were relevant to anything,” were unfairly prejudicial to his case. We

respectfully disagree.

The admissibility of photographs generally lies within the sound discretion of the trial

court and will not be overturned on appeal absent a clear showing that the trial court abused

its discretion. State v. Faulkner, 154 S.W.3d 48, 67 (Tenn. 2005); State v. Banks, 564

S.W.2d 947, 949 (Tenn. 1978). “Tennessee courts follow a policy of liberality in the

admission of photographs in both civil and criminal cases.” State v. Morris, 24 S.W.3d 788,

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810 (Tenn. 2000). In determining whether a photograph is admissible, the trial court must

first determine whether it is relevant to a matter at issue in the case. See Tenn. R. Evid. 401;

State v. Vann, 976 S.W.2d 93, 102 (Tenn. 1998); Banks, 564 S.W.2d at 949. The court must

next consider whether the probative value of the photograph is “substantially outweighed by

the danger of unfair prejudice, confusion of the issues, or misleading the jury.” Tenn. R.

Evid. 403.

The photographs at issue, which were part of a series introduced during the testimony

of Detective Corcoran, showed the remote and wooded location in which the body was

found, the natural rock formations in the area and the individual rocks that had been placed

on the body, and the procedures employed in the recovery of the remains. During their

introduction, Detective Corcoran testified, inter alia, that the vegetation was dense, that there

was no trail or foot path that led down to the area where the body was located, and that the

recovery of the remains included removing the topsoil by hand, placing it in buckets, and

carrying it to “an environment that would be more advantageous to be able to remove or

recover any artifacts that may be in this soil.” We, therefore, agree with the State that the

photographs were relevant and admissible to show the appearance of the crime scene,

including the great lengths to which the defendant went to conceal the body, which helped

to support the State’s theory that the defendant premeditated the killing. We further agree

that the probative value of the evidence outweighed any prejudicial effect.

C. Burned Sock

Finally, the defendant cites State v. Cannon, 254 S.W.3d 287 (Tenn. 2008), to argue

that the trial court erred in admitting evidence of the partially burned sock found at the fire

pit because there was “absolutely no evidence whatsoever that the sock belonged to or was

connected with the alleged victim in any way.” We agree with the State, however, that

Cannon is distinguishable from the case at bar. Cannon was a rape case in which our

supreme court concluded that the introduction of a pair of pantyhose containing the

defendant’s DNA was reversible error because the State failed to show a sufficient chain of

custody to establish that the item belonged to the victim. Id. at 309. In the case at bar, the

defendant raised no objection to the sock’s chain of custody but instead merely argued that

it should not be admitted unless the State could prove that it belonged to the victim. In

overruling the objection, the trial court noted that the State’s inability to identify the sock as

the victim’s went to the weight, rather than admissibility, of the evidence. We find no error

in this ruling. The fact that the victim’s body was found without socks and that a small,

partially-burned sock was discovered on the defendant’s property soon after her

disappearance was yet more circumstantial evidence of the defendant’s premeditation.

Furthermore, the probative value of such evidence was not outweighed by its prejudicial

effect. We conclude, therefore, that the trial court did not err in admitting the evidence.

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VI. Alleged Improper Opinion Testimony

The defendant next contends that the trial court erroneously permitted Detective

Corcoran to offer improper opinion testimony. Specifically, he argues that the trial court

erred in ruling that defense counsel “opened the door” to the prosecutor’s questions on

redirect as to “whether the detective presented evidence that [the defendant] had killed the

victim with premeditation and that he had kidnapped her in Davidson County and that she

was killed or ended up in Smith County.” The State argues that the trial court did not abuse

its discretion by allowing the prosecutor to ask Detective Corcoran essentially the same

questions defense counsel had asked on cross-examination in order to clarify and rehabilitate

the detective’s cross-examination testimony.

On cross-examination, Detective Corcoran conceded that he had given sworn

testimony to the Davidson County Grand Jury that the defendant had committed in Davidson

County the same crimes, including first degree premeditated murder, felony murder during

the perpetration of a kidnapping, and especially aggravated kidnapping, for which he was

currently on trial in Smith County. Upon further cross-examination, the following exchange

took place:

Q. You don’t know the cause of death in this case, do you?

A. No, sir.

Q. You don’t know if she was killed and you don’t know where she

was killed, do you?

A. That’s correct.

Q. You don’t know whether she was kidnapped or not, do you?

A. That is correct.

Q. You don’t know that she was killed in the perpetration of any

theft, do you?

A. No, sir.

Q. And I ask you this -- if I did, I don’t mean to be repetitious, you

don’t know where she was killed, if she was killed; you don’t know that, do

you?

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A. No, sir. The investigation shows that she was in Nashville and

ended up in Smith County. Where she was killed along the way, I don’t know,

but all of the information that we’ve obtained shows that the car was taken,

that she was the last person that had the car and the car ended up in Macon

County at some point and back in Wilson County.

Q. You don’t know whether she voluntarily drove it here or what;

you don’t know that, do you?

A. No, sir.

In response to a series of questions asked by the prosecutor on redirect examination,

Detective Corcoran testified that, based on his investigation, he had presented evidence to

the Davidson County Grand Jury that the victim was “murdered and kidnapped,” “that her

car was stolen,” “that she was murdered during the theft of her car,” and that “she was

premeditatedly murdered” while one of the TBI agents later presented evidence of the same

in Smith County. He also said that, based on his investigation, the kidnapping began in

Davidson County. The prosecutor then asked him where the kidnapping ended based on his

investigation. At that point, defense counsel objected, arguing that the question called for

a legal conclusion. The trial court overruled the objection, stating:

Sir, I agree that is a conclusion that this jury will have to draw, but it is

in response to your question asking for a same or similar conclusion. Ladies

and Gentlemen of the jury, this is not an expert witness, all right? He’s a fact

witness, but I’m going to allow that question because you asked a similar

question, and I think you opened the door there, [Defense Counsel].

The prosecutor then asked what proof Detective Corcoran had that the victim “was

kidnapped in Davidson County at the beginning,” and the detective replied:

The fact that -- all of the witnesses I interviewed. All the information

received places her in that area, the vehicle last seen in that area, [the

defendant’s] Jeep recovered from that area, and then finding her body in Smith

County, but that’s where it all began, right there in that intersection of Old

Hickory Boulevard and Nolensville Road.

The trial court sustained defense’s counsel objection to the question, “And where did

the crimes ultimately end?” and the following exchange then took place between the

prosecutor and the witness:

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Q. At some point during the investigation and in the indictment

process, did we decide to try this case in Smith County rather than Davidson

County?

A. Yes, ma’am.

Q. Why?

A. For the venue, for the fact of where the body was found.

Although some of the prosecutor’s questions were inartfully phrased, we cannot

conclude that the trial court erred in overruling the defendant’s objection and allowing the

testimony. When viewed in the context of the entire cross and redirect examination, it is

clear that the prosecutor was not attempting to elicit an opinion or legal conclusion from the

detective, but was instead trying to show the progression of the detective’s investigation and

the reason the defendant was first indicted in Davidson County and then again for the same

crimes in Smith County. We conclude, therefore, that the defendant is not entitled to relief

on the basis of this claim.

VII. Evidence of the Defendant’s Movement of Firearms

The defendant next contends that the trial court erred by allowing Agent Wilkerson

to testify about his movement of his firearms to his mother’s house, arguing that the evidence

was irrelevant and unfairly prejudicial to his defense because it forced him to waive his right

against self-incrimination. The State disagrees that Agent Wilkerson’s testimony forced the

defendant to waive his Fifth Amendment rights and argues that any error in the admission

of the evidence was clearly harmless.

The record reveals that the State responded to the defendant’s initial objection to the

testimony on the grounds of relevance by stating that it had to give “the jury options on how

[the victim] was kidnapped and how she was killed.” The trial court overruled the

defendant’s objection, and Agent Wilkerson testified that the defendant told him that he had

moved his guns to his mother’s residence because he knew the officers were coming to

interview him and he did not want them to find the weapons at his house. In a subsequent

jury-out hearing, defense counsel and Agent Wilkerson revealed that the defendant’s

complete statement to the officer was that he had moved the weapons because he had a

felony conviction and did not want them to be found at his house. Defense counsel then

asked that the trial court strike the testimony, arguing that it had been elicited in a manner

that left the jury with the “totally fraudulent impression” that the defendant had moved the

guns for some sinister purpose, which would force the defendant to waive his self-

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incrimination rights in order to explain “this discrepancy in this matter.”

The trial court denied the defendant’s motion to strike, and the State then offered to

ask Agent Wilkerson the additional question of whether he knew if the guns were involved

in the victim’s disappearance. Defense counsel stated that he had no objection, and the State

thereafter elicited Agent Wilkerson’s testimony that there was no evidence that the

defendant’s guns were involved in the crimes.

The rules of evidence provide that irrelevant evidence is not admissible and that even

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. See Tenn. R.

Evid. 402, 403.

We agree with the defendant that his statement about moving firearms to his mother’s

house should not have been admitted at his trial, as it was irrelevant and potentially

prejudicial to his case. However, we also agree with the State that the error was harmless.

As the State points out, Agent Wilkerson’s testimony that there was no evidence that the

weapons were involved in the victim’s disappearance should have allayed suspicions on the

part of the jury that the defendant had moved the weapons for some “sinister” reason.

Moreover, the defendant’s claim that the evidence forced him to waive his rights against self-

incrimination is belied by the fact that he mentioned nothing about the weapons during his

testimony. We conclude, therefore, that the defendant is not entitled to relief on the basis of

this claim.

VIII. Closing Argument

Lastly, the defendant contends that the trial court erred by denying his request for

both defense counsel to deliver separate portions of the closing argument “sandwiched

between the [S]tate’s two arguments.” He argues that the trial court could have granted the

request under the Tennessee Rules of Criminal Procedure, which provide that the court has

the discretion to set “the number of closing arguments in excess of one permitted each

defendant,” Tenn. R. Crim. P. 29.1(d)(1)(B), and that its decision to follow its usual practice

of allowing argument by only one defense counsel, without consideration of such factors as

the length of the trial, the number of witnesses, the complexity of the issues, and the gravity

of the charges, was arbitrary and an abuse of discretion.

The trial court is given substantial discretion in controlling the course of closing

arguments and its decisions will not be reversed on appeal absent a showing of an abuse of

discretion. State v. Bane, 57 S.W.3d 411, 425 (Tenn. 2001) (citing Terry v. State, 46 S.W.3d

147, 156 (Tenn. 2001)); see also State v. Zirkle, 910 S.W.2d 874, 888 (Tenn. Crim. App.

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1995).

As an initial matter, we agree with the State that the defendant waived consideration

of this issue on appeal by acquiescing when the trial court explained its practice of allowing

closing argument from only one counsel. The record reflects that just before the start of

closing argument, senior defense counsel informed the court that he had just learned that the

State was going to use two different prosecutors to deliver its closing argument and

wondered if the court would allow both defense counsel to “to argue in between that?”

When the trial court replied that it normally allowed just one, defense counsel responded,

“Well, normally the attorney general closes the argument in this matter.” The trial court

observed that they had “a selection of three,” to which defense counsel retorted, “You ain’t

got but one from this county.” At that point, one of the Nashville district attorneys stated that

she and her colleague were acting as pro tem district attorneys in Smith County. The

following exchange then took place:

THE COURT: They’re pro tem. That’s why they’re here. I think I’m

going to stick with the rule I usually go with. I don’t think it’s right at this late

time to change.

[SENIOR DEFENSE COUNSEL]: We’re not changing anything. I

didn’t know it was set up -- I didn’t know how it was set up, but it’s all right.

THE COURT: Well, I’ll just take you at your word. Okay, Anything

else?

[ASSISTANT DISTRICT ATTORNEY]: No, sir.

[SENIOR DEFENSE COUNSEL]: All right, okay.

Even if not waived, the defendant has not shown that the trial court abused its

discretion in denying his last-minute request to change the court’s established practice of

allowing argument by only one defense counsel. We conclude, therefore, that the defendant

is not entitled to relief on this issue.

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the judgments of the trial

court.

_________________________________

ALAN E. GLENN, JUDGE

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