State of Tennessee v. Joshua Eugene Anderson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

December 20, 2006 Session

STATE OF TENNESSEE v. JOSHUA EUGENE ANDERSON

Appeal from the Criminal Court for Knox County

No. 79671A Richard R. Baumgartner, Judge

No. E2005-02660-CCA-R3-CD - Filed July 6, 2007

A Knox County Criminal Court jury convicted the defendant, Joshua Eugene Anderson, of eight

offenses involving victims Sampson Jonathan McGhee (“McGhee”) and George England

(“England”). The convictions were: (1) first degree premeditated murder of McGhee; (2) felony

murder (robbery) of McGhee; (3) felony murder (theft) of McGhee; (4) attempted especially

aggravated robbery (by violence) of McGhee; (5) attempted especially aggravated robbery (by

putting in fear) of McGhee; (6) attempted first degree murder of England; (7) attempted aggravated

robbery (by violence) of England; and (8) attempted aggravated robbery (by putting in fear) of

England. The trial court properly merged certain offenses and sentenced the defendant to serve an

effective 25- year sentence in the Department of Correction consecutively to the life-without-parole

sentence imposed by the jury. The defendant appeals on several grounds, including whether the trial

court erred in: (1) failing to suppress the evidence that resulted from the warrantless search of the

defendant’s home; (2) failing to suppress the defendant’s statement to police; (3) denying

defendant’s motion to dismiss when the State failed to preserve his entire statement; (4) failing to

exclude the defendant’s recorded statement when the entire statement could not be entered into

evidence; (5) denying a new trial due to prosecutorial misconduct; and (6) declining to answer the

jury’s question regarding the consequences of not reaching a unanimous verdict at sentencing. We

affirm the judgments of the trial court.

Tenn. R. App. P. 3; Judgments of the Criminal Court are Affirmed.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J.,

and DAVID H. WELLES, J., joined.

Mike Whalen, Knoxville, Tennessee, for the Appellant, Joshua Eugene Anderson.

Robert E. Cooper, Jr., Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney

General; Randall E. Nichols, District Attorney General; and Philip H. Morton and Paula Ham,

Assistant District Attorneys General, for the Appellee, State of Tennessee.

OPINION

The evidence at trial showed that on December 20, 2003, the victims, McGhee and

England, who were openly homosexual, left their homes in Sevierville and traveled in a Jeep

Cherokee to Knoxville around 1:30 a.m. They patronized Kurt’s Bar, a known homosexual

establishment. At one point, McGhee informed England that he was going to Rainbow West,

another homosexual bar, and left. Approximately one hour later, McGhee returned and informed

England that he had met two men, the defendant and Tim Canady, and wanted England to meet

them. At approximately 2:45 a.m., McGhee and England left Kurt’s in their Jeep Cherokee and

drove to West Knoxville News.1

Once in the area of West Knoxville News, McGhee pointed out the defendant and

Canady’s car. McGhee and England followed the car around the block “a couple of times.” Then

the car went into a nearby graveyard off Sutherland Avenue. England refused to follow the car into

the graveyard and drove the Jeep back to West Knoxville News. The defendant and Canady’s car

pulled into the parking lot, and Canady exited the vehicle and walked to the Jeep’s passenger side

where McGhee was sitting. England left and went inside West Knoxville News. After

approximately 20 minutes, McGhee entered the store and told England that he wanted to follow the

defendant and Canady to their house.

McGhee and England then followed the defendant and Canady to the defendant’s

home at 2813 East 5th Avenue, and England parked the Jeep behind the defendant’s car. Inside the

house, the defendant and Canady drank alcohol and spoke of how “messed up” they were because

they had been drinking alcohol and taking Xanax. After approximately 45 minutes, England

informed McGhee that he wanted to leave. However, while Canady was out of the room, the

defendant informed England that Canady “really like[d] [him].” Thus, when Canady came back,

England asked him if “there [was] a place [they] [could] go to be alone.” However, Canady laughed

at England, so England and McGhee announced that they were leaving.

As England and McGhee walked toward the door, the defendant pulled a gun and

said, “We want your money. We want everything you have. We want everything.” England told

the defendant that he did not need to do this, and McGhee said as he walked toward the defendant,

“F” this. You’re going to have to kill me.” McGhee put his hands on the defendant, and the

defendant “shoved him off of him.” The defendant then shot McGhee twice.

At that point, England grabbed McGhee and ran out the door toward the Jeep. The

defendant stood on the porch and shot McGhee again. McGhee fell to one knee, and England helped

him across the yard to the passenger side of the Jeep as the defendant continued to shoot. McGhee

became unresponsive at this point, and as the defendant walked off the porch toward them, he said,

“What do you think of me now, George? How do you like me now, George?”

1

According to the testimony, the streets around W est Knoxville News are “cruised” by homosexual men in

search of a “hook up.”

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After England got McGhee into the Jeep and ran back to the driver’s side, he

discovered that the doors were locked and that the keys were inside. He attempted to get McGhee

to let him in, but McGhee’s body was limp. When England realized McGhee was dead, he ran

because the defendant was pointing the gun at him.

England made his way to a children’s runaway shelter, and Sheila Harris, employed

by Child and Family Services of Tennessee, came to the door but refused to open it due to the

children’s safety. She instructed England to lie on the porch, and she called 9-1-1 at approximately

3:55 a.m. As she was speaking to the 9-1-1 dispatcher, the defendant drove very slowly by the

shelter a few times. Knoxville Police Officers Robert Taylor and Doyle Lee arrived and placed

England in the back of the patrol car while they investigated.

The officers drove to the defendant’s home and found the Jeep Cherokee with

McGhee’s body inside. The back window had been broken out, and the defendant’s car, which had

been parked in front of the Jeep, was gone. Officers Taylor and Lee called for backup.

In the meantime, the defendant wrecked his vehicle while taking Canady to his house.

The defendant was then admitted to the University of Tennessee Medical Center where Nurse Todd

Allen attended him. When the defendant was first admitted, Mr. Allen suspected that the defendant

was under the influence of a chemical substance. Mr. Allen found a .25 caliber pistol and bullets

on the defendant and notified Security Officer James Marshall, who took possession of the weapon

and rounds. The defendant was later released to the custody of the Knoxville Police Department

after it was determined he was injury free and not intoxicated.

While the defendant was at the hospital, Detective Bryan Davis was investigating

the shooting of McGhee and discovered the defendant’s involvement; he broadcast the defendant’s

description and his vehicle’s description over the police radio. He then learned that the defendant

had been admitted to the hospital and sent officers there to take him into custody. Meanwhile, he

prepared a photographic array and interviewed England at the police department and attempted to

videotape the interview. England identified the defendant from the array as the shooter.

At approximately 1:00 p.m., officers brought the defendant into the same interview

room where Detective Davis had interviewed England. The defendant was “walking fine.”

Detective Davis attempted to record the interview by placing a videotape into the videocassette

recorder and pushing the “record” button; however, the video camera malfunctioned and failed to

record. Detective Davis did record the defendant’s “final statement” via an audio recorder.

Upon hearing the evidence, the jury convicted the defendant of all charged offenses

and sentenced him to life without the possibility of parole for first degree murder. Subsequently, the

trial court sentenced him to an effective 25 years to run consecutively to his life sentence. The

defendant filed a timely notice of appeal.

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On appeal, he raises six issues: whether the trial court erred in (1) failing to suppress

the evidence that resulted from the warrantless search of the defendant’s home; (2) failing to

suppress the defendant’s statement to police; (3) denying defendant’s motion to dismiss where the

State failed to preserve his entire statement; (4) failing to exclude the defendant’s recorded statement

where the entire statement could not be entered into evidence; (5) denying the defendant a new trial

due to prosecutorial misconduct; and (6) declining to answer the jury’s question regarding the

consequences of not reaching a unanimous verdict at sentencing.

I. Suppression of Evidence and Motion to Dismiss (Issues (1) through (4))

First, the defendant argues that the trial court erred in failing to suppress evidence that

resulted from the warrantless search of the defendant’s home. Second, the defendant’s issues two

through four regard the admission of the defendant’s statement to police. We will first address the

standard of review on suppression issues and then discuss the issues in turn.

A. Standard of Review for 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. Binette, 33 S.W.3d 215, 217 (Tenn. 2000);

State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, questions of credibility, the weight and value

of the evidence, and the resolution of conflicting evidence are matters entrusted to the trial judge,

and this court must uphold a trial court’s findings of fact unless the evidence in the record

preponderates against them. Odom, 928 S.W.2d at 23; see also Tenn. R. App. P. 13(d). The

application of the law to the facts, however, is reviewed de novo on appeal. State v. Keith, 978

S.W.2d 861, 864 (Tenn. 1998). We review the issues in the present appeal with these standards in

mind.

B. Warrantless Search of Defendant’s Home

At trial, Officer Lee testified that he and Officer Taylor arrived on the scene at 4:20

a.m. Other officers arrived at 4:23 and 4:25 a.m. and attempted to secure the perimeter. Captain

Lockmiller arrived at 5:20 a.m., and Detective Davis arrived at 5:40 a.m. Officer Lee further

testified that he heard something inside the house and that another officer saw the curtains moving.

The officers were unsure of the defendant’s and Canady’s locations or whether another victim was

inside, so Officer Lee received permission from Captain Lockmiller to enter the house and did so

through an unlocked window at approximately 5:20 a.m.2 Officer Lee found two puppies, the

apparent sources of the movement and noise, and after securing the house, he opened the front door

for the other officers, who collected evidence. Officer Russell Whitfield took pictures of the inside

of the house, collected one spent and one live round from a .25 caliber handgun, and retrieved

2

The defendant proffered the incident recall list from the 9-1-1 tape which showed a reported house entry at

6:52 a.m. The trial court commented that even though it was reported at that time, it did not necessarily mean entry

actually occurred at that time.

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fingerprints from beer and water bottles, ashtrays, and a pack of cigarettes. Ultimately, the

photographs, the spent shell, and the bullet were placed into evidence, but the State did not offer any

fingerprint evidence. Patricia M. Reside, employed by the Knoxville Police Department in the

forensic unit, analyzed the shell casing and determined that it had been fired from the .25 caliber

handgun found on the defendant.

Both the United States and Tennessee Constitutions protect against unreasonable

searches and seizures. U.S. Const. amend IV; Tenn. Const. art. 1, § 7. A search or seizure

conducted without a warrant is presumed unreasonable, thereby requiring the State to prove by a

preponderance of the evidence that the search or seizure was conducted pursuant to an exception to

the warrant requirement. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043

(1973); State v. Simpson, 968 S.W.2d 776, 780 (Tenn. 1998).

The United States Supreme Court, holding that the constitution prohibits the

warrantless entry into a suspect’s home to make a felony arrest, has stated that “the Fourth

Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that

threshold may not reasonably be crossed without a warrant.” Payton v. New York, 445 U.S. 573,

590, 100 S. Ct. 1371, 1382 (1980). Exigent circumstances exist “(1) when the officers [are] in hot

pursuit of a fleeing suspect; (2) when the suspect represent[s] an immediate threat to the arresting

officers or the public; and (3) when immediate police action [is] necessary to prevent the destruction

of vital evidence or thwart the escape of known criminals.” Jones v. Lewis, 874 F.2d 1125, 1130

(6th Cir. 1989). In addition, “law enforcement officers may also make a warrantless entry in an

emergency to protect human life.” State v. Robbie W. Fields, No. E2004-00716-CCA-R3-CD, slip

op. at 6 (Tenn. Crim. App., Knoxville, Jan. 7, 2005).

In the present case, the defendant did not raise the issue of suppression of the

photographs, the spent shell, and the bullet until the trial was in progress. Specifically, prior to the

testimony of Officer Russell Whitfield, the State gave the defense a copy of Officer Whitfield’s

“nonproperty inventory reports” and “criminalistics report” in an effort to comply in advance with

the “Jencks” rule. See Tenn. R. Crim. P. 26.2(a) (“After a witness other than the defendant has

testified on direct examination, the trial court, on motion of a party who did not call the witness,

shall order the attorney for the state or the defendant and the defendant’s attorney, as the case may

be, to produce, for the examination and use of the moving party, any statement of the witness that

is in their possession and that relates to the subject matter concerning which the witness has

testified.”) (amended 2006).3 At this point in the trial, the State had introduced the photographs of

the interior of the defendant’s house but had not yet introduced the shell casing and bullet. Upon

receiving, pursuant to Rule 26.2, the officer’s reports and realizing that the State had gleaned

evidence from the defendant’s home without a warrant, the defense, outside the presence of the jury,

moved to suppress the evidence.

3

Amendments to Tennessee Rule of Criminal Procedure 12 that became effective July 1, 2006, made

organizational and slight language changes to the subsections cited and quoted above. The language and subsection

references used above were applicable to the 2005 trial.

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Nevertheless, a motion to suppress evidence must be filed before trial. Tenn. R.

Crim. App. 12(b)(3) (“The following must be raised prior to trial: . . . [m]otions to suppress evidence

. . .”) (amended 2006). “Failure by a party to raise defenses or objections or to make requests which

must be made prior to trial . . . shall constitute waiver thereof, but the court for good cause shown

may grant relief from the waiver.” Tenn. R. Crim. P. 12(f) (amended 2006). In the present case, the

trial court did not determine that the defendant had shown good cause for failing to move to suppress

before trial,4 and we discern no good cause for failing to move to suppress prior to trial. Thus, the

issue is waived.

To assist possible further appellate review, however, we mention that England led the

police to the scene where the shooting occurred, and the police officers found McGhee’s body. The

defendant and Canady had not been apprehended, and officers observed movement in the house. The

evidence in the record does not preponderate against the trial court’s statement that exigent

circumstances existed to justify the warrantless entry into the defendant’s home.

Of course, however, once Officer Lee determined no suspects were present in the

home, the exigency ended. The officers who subsequently entered without a warrant to collect

evidence did so in violation of the Fourth Amendment. Nevertheless, because of the inevitable

discovery doctrine the evidence was admissible. Under the inevitable discovery doctrine, illegally

obtained evidence is admitted by the court when the evidence would have inevitably been discovered

by lawful means. See State v. Patton, 898 S.W.2d 732, 735 (Tenn. Crim. App. 1994) (citing Nix v.

Williams, 467 U.S. 431, 104 S. Ct. 2501 (1984)). Here, England informed police officers that the

shooting occurred at this house, 2813 East 5th Avenue, and the police found a dead body in the

house’s driveway. Under these circumstances, the police officers had probable cause to obtain a

search warrant.

C. Defendant’s Statement

1. Voluntariness of the Defendant’s Statement

At the suppression hearing, Detective Davis testified that in investigating the

December 20, 2003 homicide, he learned that the defendant was the suspect and that the defendant

was being treated at the University of Tennessee Medical Center. After the defendant was

discharged from the hospital, Knoxville Police officers brought him to the police department at

approximately 1:00 p.m. for questioning. Detective Davis testified that the defendant seemed

“calm[] and alert” and that he did not appear to be under the influence of drugs or alcohol.

Detective Davis attempted to videotape the interview; however, the video equipment

malfunctioned and did not record the entire interview. Detective Davis did record a portion of the

4

The trial court was abruptly dismissive of the mid-trial claim to suppression, referring to pretrial discovery

through which the defense should have known of the warrantless search and seizure, to the failure to file a pretrial motion

to suppress, and to the obvious exigent circumstances that authorized entry.

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interview via a “backup” audio recorder. He testified that the defendant was upset and “very

emotional” during the interview. He did not notice that the video camera did not record until some

time after the interview.

On cross-examination, Detective Davis testified that he did not audio-record the entire

statement because he assumed that the video camera was recording. He admitted that during the

interview the defendant misspelled his own name and gave an incorrect date of birth.

On redirect examination, Detective Davis reiterated that the defendant was able to

walk on his own and did not appear to be under the influence of drugs or alcohol. Detective Davis

stated that a toxicology report showed that the defendant’s blood/alcohol level was .03 percent at

11:40 a.m. and that the blood contained .10 micrograms of Alprazolam per milliliter. Detective

Davis interviewed the defendant after 1:00 p.m.

The defendant called Mr. Allen, the nurse from the University of Tennessee Medical

Center who treated the defendant. Mr. Allen testified that when the defendant was admitted at 7:50

a.m. December 20, he appeared to be under the influence of something. The defendant could not

respond appropriately to questions, his speech was slurred, and he closed his eyes frequently.

On cross-examination, Mr. Allen testified that he found a gun on the defendant and

that the defendant’s condition improved significantly as time passed. He was discharged according

to hospital policy when his blood alcohol level became insignificant.

The defendant testified that on the night of December 19, 2003, and the morning of

December 20, 2003, he ingested 20 Xanax pills and drank alcohol. He testified that he did not

remember being in an accident, being at the hospital, or giving a statement to police.

On cross-examination, he testified that the last thing he remembered that night was

being at a friend’s house with Canady.

The trial court first stated, “There are an extraordinary number of cases in which there

is a . . . malfunction of the taping equipment at the Knoxville Police Department. . . . At some point

that’s going to become a real problem.” However, the court found that in the present case the

defendant was under the influence at the time of the wreck but that his condition improved while at

the hospital. The court found that the hospital would not have discharged the defendant had he still

been intoxicated and stated that there would have been traces of Xanax in the defendant’s system

had he taken 20 pills. The court further found that at the police station, the defendant was able to

walk properly, follow instructions, and communicate. The defendant gave a voluntary statement

after understandingly waiving his Miranda rights. Thus, the court denied the motion to suppress.

The Fifth Amendment to the United States Constitution provides that “[n]o person

. . . shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V.

The corresponding provision of the Tennessee Constitution states “[t]hat in all criminal prosecutions,

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the accused . . . shall not be compelled to give evidence against himself.” Tenn. Const. art. I, § 9.

Our supreme court has previously held that “[t]he significant difference between these two

provisions is that the test of voluntariness for confessions under Article I, § 9 is broader and more

protective of individual rights than the test of voluntariness under the Fifth Amendment.” State v.

Crump, 834 S.W.2d 265, 268 (Tenn. 1992).

To be admissible into evidence, the statement must have been given voluntarily by

a defendant knowledgeable of his constitutional rights and accompanied by a valid and knowing

waiver of those rights. See State v. Middlebrooks, 840 S.W.2d 317, 326 (Tenn. 1992). The

prosecution may not use statements, whether inculpatory or exculpatory, that stem from custodial

interrogation unless it demonstrates the use of procedural safeguards that effectively secure the

privilege against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612

(1966); Crump, 834 S.W.2d at 268; State v. Hicks, 629 S.W.2d 908, 910 (Tenn. Crim. App. 1981)

(defendant’s statement given three hours after Miranda warnings held to be admissible). In

determining whether a defendant has validly waived his Miranda rights, courts look to the totality

of the circumstances. Middlebrooks, 840 S.W.2d at 326. Factors relevant in determining whether

a defendant voluntarily made a statement to the police include (1) the length of time between the

arrest and the statement; (2) the occurrence of intervening events between the arrest and the

confession; (3) the giving of Miranda warnings; and (4) the purpose and flagrancy of any official

misconduct. Brown v. Illinois, 422 U.S. 590, 603-04, 95 S. Ct. 2254, 2261-62 (1975).

Furthermore, before an accused is entitled to have his statement suppressed because

he was under the influence of alcohol or other drugs, the accused must establish that the statement

cannot be considered the product of a free mind and rational intellect. State v. Leonard Lebron Ross,

No. 03C01-9404-CR-00153, slip op. at 7 (Tenn. Crim. App., Knoxville, Apr. 10, 1996); State v.

Larry Thomas Teeters, No. 02C01-9304-CC-00051, slip op. at 4 (Tenn. Crim. App., Jackson, Feb.

2, 1994); State v. Michael Abernathy, No. 03C01-9111-CR-00372, slip op. at 13 (Tenn. Crim. App.,

Knoxville, Oct. 2, 1992), perm. app. denied (Tenn. 1992); see Bram v. United States, 168 U.S. 532,

18 S. Ct. 183 (1897); State v. Robinson, 622 S.W.2d 62, 67 (Tenn. Crim. App. 1980). Generally, if

the accused is capable of giving a narrative of past events and relating his role in the commission of

the crime, the statement is admissible even though the accused was under the influence of alcohol

when he made the statement. State v. Green, 613 S.W.2d 229, 232-33 (Tenn. Crim. App. 1980).

We hold that the record supports the trial court’s conclusion that the statement was

given voluntarily. The evidence showed that the defendant’s blood/alcohol level was .03 percent at

11:40 a.m., and he gave his statement after 1:00 p.m. Furthermore, the evidence showed that he was

coherent and responded appropriately to questions. The defendant gave a complete narrative of his

role in the crimes.

2. State’s Failure to Preserve Entire Statement

On the day of trial, the defendant moved to dismiss the indictment based upon his

being denied access to his entire pretrial statement, claiming that the denial of the statement

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prevented effective cross-examination and violated his right to a fair and full trial. The defendant

also argued that the denial violated Tennessee Rule of Evidence 106. See Tenn. R. Evid. 106.

The trial court stated that it had essentially ruled on this issue at the suppression

hearing. The court stated that there was no “conscious design on behalf of the Knoxville Police

Department, and specifically Bryan Davis, to defeat this taping.” Thus, the trial court denied the

motion to dismiss.

On appeal, the defendant raises the same arguments.

First, we address whether the defendant’s trial was fundamentally unfair because the

State failed to preserve the videotape of the defendant’s entire statement. The defendant relies

substantially upon State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999). In Ferguson, officers videotaped

the defendant’s performance on field sobriety tests administered as part of a driving under the

influence investigation; however, the taped tests were inadvertently “taped over” before they were

viewed by anyone. Id. at 914-15. Our supreme court determined that, for purposes of applying the

Tennessee Constitution’s “law of the land” clause to issues of the State’s losing, damaging, or

destroying potentially exculpatory evidence, a balancing test should be utilized. First, as a threshold,

the court should “determine whether the State had a duty to preserve the evidence.” Id. at 916. If

the State failed to discharge a duty to preserve evidence, the court then determines

1. The degree of negligence involved;

2. The significance of the destroyed evidence, considered in light of

the probative value and reliability of secondary or substitute evidence

that remains available; and

3. The sufficiency of the other evidence used at trial to support the

conviction.

Id. at 917.

We hold that the State had no duty to record the defendant’s oral statement. Thus,

the response to Ferguson’s threshold question is peremptory. In State v. Linda H. Overholt, No.

E2003-01881-CCA-R3-CD (Tenn. Crim. App., Knoxville, Jan. 21, 2005), perm. app. denied (Tenn.

2005), the defendant asserted Ferguson in claiming that “the trial court erred in admitting into

evidence a videotape of a police interview of her on which the audio track malfunctioned for 27

minutes, producing no sound when the tape was played in court.” Id., slip op. at 7. Commenting

that “Ferguson’s balancing test need be applied no further” when State had no duty to preserve the

evidence, this court declined to grant Ferguson relief. Id. We distinguished between, on the one

hand, the duty to record images or sounds in the first place and, on the other hand, a duty to preserve

an existing recording. Id. We pointed out that, “at the point in time when the interview was being

conducted, the state had no duty to preserve it.” Id. (citing Tenn. R. Crim. P. 16(a)(1)(A) (“requiring

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state, upon the defendant’s request, to furnish the defendant with copies of any written or recorded

statement given by the defendant, as well as ‘the substance of any oral statement which the state

intends to offer in evidence at trial made by the defendant’”)); see Ferguson, 2 S.W.3d at 917

(“Generally speaking, the State has a duty to preserve all evidence subject to discovery and

inspection under Tenn[essee] R[ule] Crim[inal] P[rocedure] 16, or other applicable law.”). The

facts in the present case, in which the video camera failed to record a portion of the defendant’s

interview, are analogous to Linda H. Overholt, which controls. The police officer had no duty to

preserve a recording that he never made and had no duty to make.

3. Tennessee Rule of Evidence 106

The defendant also argues that the audio taped portion of the defendant’s statement

should have been excluded pursuant to Tennessee Rule of Evidence 106, which states, “When a

writing or recorded statement or part thereof is introduced by a party, an adverse party may require

the introduction at that time of any other part or any other writing or recorded statement which ought

in fairness to be considered contemporaneously with it.” Tenn. R. Evid. 106. This rule “allows the

trier of fact to ‘assess related information at the same time rather than piecemeal.’” State v. Keough,

18 S.W.3d 175, 182 (Tenn. 2000) (citations omitted). However, this rule, by its own terms, only

applies to written or recorded statements or parts thereof. State v. Wilson, 164 S.W.3d 355, 365

(Tenn. Crim. App. 2003). A trial court’s determination concerning the admission of evidence

pursuant to Rule 106 will be reversed on appeal only when there has been an abuse of discretion.

Id.

Here, the entire recorded statement was furnished; thus Rule 106 does not apply to

this issue. See Wilson, 164 S.W.3d at 365.

II. Prosecutorial Misconduct

The defendant argues that the trial court erred in not granting a new trial because of

prosecutorial misconduct. The specific incidents complained of are as follows: (1) the prosecutor

failed to turn over the Investigative Action Report and evidence inventory sheets until mid-trial,

preventing the defendant from preparing a defense; (2) the prosecutor mentioned that the defendant

was “laughing and joking” as he entered the interview room although the court had previously ruled

the information inadmissible; and (3) during closing argument at the first degree murder sentencing

hearing, the prosecutor told the jury that the defendant blamed his actions on his drug addiction but

that he nevertheless had failed to present an addiction expert.

In reviewing allegations of prosecutorial misconduct, this court determines “whether

such conduct could have affected the verdict to the prejudice of the defendant.” State v. Smith, 803

S.W.2d 709, 710 (Tenn. Crim. App. 1990). That analysis involves consideration of five factors: (1)

the conduct complained of viewed in context and in light of the facts and circumstances of the case;

(2) the curative measures undertaken by the trial court and the prosecution; (3) the intent of the

prosecutor in making an improper statement; (4) the cumulative effect of the improper conduct and

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any other errors in the record; and (5) the relative strength or weakness of the case. State v. Buck,

670 S.W.2d 600, 609 (Tenn. 1984); Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976).

A trial court’s ruling on the issue of prosecutorial misconduct is reviewed for abuse of discretion.

State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1972).

The trial court did not abuse its discretion regarding any of the three incidents. First,

the trial court found that the prosecutor lawfully withheld the Investigative Action Report and

evidence inventory sheets before releasing them as Jencks material. The report was not discoverable.

See Tenn. R. Crim. P. 16(a)(2). In addition, the discovery response filed in advance of trial

inventoried the items recovered after the warrantless entry of the house. Also, the defendant showed

no prejudice. Defense counsel had adequate notice to prepare a proper defense, and the evidence of

guilt was strong. Thus, we hold there was no prosecutorial misconduct in this regard.

Second, the statement by the prosecutor that the defendant was “laughing and joking”

as he entered the interview room was inappropriate considering the trial court’s prior ruling;

however, it did not amount to prosecutorial misconduct. The statement was made during opening

statements, which the jury was instructed were not evidence. In addition, nothing to this effect was

entered into evidence during the trial. Most importantly, the defendant failed to show that the

statement prejudiced him, and the evidence of his guilt was strong.

Third, the prosecutor commented during closing argument at the sentencing hearing

that although the defendant blamed his offense on his drug addiction, he did not present an expert

to testify to this addiction. The comment did not shift the burden of proof for a life without parole

sentence to the defendant. From the record, we discern that the prosecutor did not intend to shift the

burden; he merely commented upon the defendant’s conclusory statement and in essence argued that

the defendant’s excuse was without merit. The trial court did not abuse its discretion in ruling that

the statement was not prejudicial.

III. Trial Court’s Answer to Jury Question

At the sentencing hearing on the first degree murder conviction, the jury asked the

trial court, “Judge, if we cannot vote unanimously, what?” The trial judge discussed the question

with defense counsel and the prosecution, and the trial court told the jury, without objection, that

“sometimes you can’t agree unanimously. Obviously, it would be our preference that you arrive at

a unanimous decision, and – but we understand that sometimes that’s not possible.” The court

further reminded them of the jury instructions and reiterated that the members were “not to surrender

[their] honest conviction as to the weight or effect of the evidence merely for the purpose of reaching

a verdict.”

Because it was approximately 4:41 p.m., the trial court adjourned and told the jury

members that they could resume deliberations the next morning. At 10:25 a.m., the jury returned

a unanimous verdict that the defendant must serve life without the possibility of parole.

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The defendant’s argument on appeal is somewhat unclear. Thus, we will address two

arguments that he may be offering.

First, the defendant may be arguing that the trial court omitted proper instructions in

response to the jury’s question. A defendant complaining of an instruction being omitted must make

a special request that the instruction be given or otherwise object to the omission, see Tenn. R. Crim.

P. 30(a), (b); State v. Cravens, 764 S.W.2d 754, 757-58 (Tenn. 1989); State v. Haynes, 720 S.W.2d

76, 84-85 (Tenn. Crim. App. 1986); Bolton v. State, 591 S.W.2d 446 (Tenn. Crim. App. 1979).5

Because the defendant failed to make a contemporaneous objection, we will employ

the plain error analysis. Before an error is recognized as plain error, it must be “plain” and must

affect a “substantial right” of the accused. The term “plain” equates to “clear” or “obvious.” See

United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1777 (1993). Plain error is not error that

is simply conspicuous; rather, it is especially egregious error that strikes at the fairness, integrity, or

public reputation of judicial proceedings. See State v. Wooden, 658 S.W.2d 553, 559 (Tenn. Crim.

App. 1983).

In State v. Adkisson, 899 S.W.2d 626 (Tenn. Crim. App. 1994), this court defined

“substantial right” as a right of “fundamental proportions in the indictment process, a right to the

proof of every element of the offense and . . . constitutional in nature.” Id. at 639. In that case, this

court established five factors to be applied in determining whether an error is plain:

(a) the record must clearly establish what occurred in the trial court;

(b) a clear and unequivocal rule of law must have been breached;

(c) a substantial right of the accused must have been adversely affected;

(d) the accused [must not have waived] the issue for tactical reasons; and

(e) consideration of the error must be “necessary to do substantial justice.”

Id. at 641-42 (footnotes omitted). Our supreme court characterized the Adkisson test as a “clear and

meaningful standard” and emphasized that each of the five factors must be present before an error

qualifies as plain error. State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000).

After considering the Adkisson factors, we hold that the trial court did not commit

plain error because a clear and unequivocal rule of law was not breached. The trial court reiterated

5

No objection or special request for an omitted charge is required when the charge relates to an issue that is

“fundamental to the defense and essential to a fair trial.” Poe v. State, 212 Tenn. 413, 420, 370 S.W .2d 488, 491 (Tenn.

1963); see also Monts v. State, 214 Tenn. 171, 379 S.W .2d 34, 40 (Tenn. 1964); Casey v. State, 491 S.W .2d 90, 94-95

(Tenn. Crim. App. 1972). The Poe exception is inapplicable in the present case, however.

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a proper instruction previously given and neither directed comments to the minority nor encouraged

any juror to reevaluate his or her position.

Second, the defendant may be claiming that the supplemental instruction given to the

jury was error. The instruction “not to surrender . . . honest conviction[s] as to the weight or effect

of the evidence merely for the purpose of reaching a verdict” emanates from Kersey v. State, 525

S.W.2d 139 (Tenn. 1975). In Kersey, our supreme court promulgated the following instruction in

lieu of the much maligned “dynamite” charge:

The verdict must represent the considered judgment of each juror. In

order to return a verdict, it is necessary that each juror agree thereto.

Your verdict must be unanimous.

It is your duty, as jurors, to consult with one another and to deliberate

with a view to reaching an agreement, if you can do so without

violence to individual judgment. Each of you must decide the case

for yourself, but do so only after an impartial consideration of the

evidence with your fellow jurors. In the course of your deliberations,

do not hesitate to re-examine your own views and change your

opinion if convinced it is erroneous. But do not surrender your

honest conviction as to the weight or effect of evidence solely

because of the opinion of your fellow jurors, or for the mere purpose

of returning a verdict.

Id. at 145. The court indicated that the instruction may be given “as a part of the main charge, [and]

it may be repeated should a deadlock develop.” Id.

We note that the defendant failed to object to the supplemental instruction at the time

of sentencing; however, an erroneous or inaccurate jury charge, as opposed to an incomplete jury

charge, may be raised for the first time in a motion for a new trial and is not waived by the failure

to make a contemporaneous objection. See State v. Lynn, 924 S.W.2d 892, 898-99 (Tenn. 1996)

(citing Tenn. R. Crim. P. 30(b)). Because the defendant raised this issue in his new trial motion, the

issue, as a claim of an erroneous charge, is not waived. However, we discern no error in the trial

court’s supplemental instruction. Pursuant to Kersey, the court merely reminded the jury of the

instruction that it had already given; no pressure was applied.

IV. Conclusion

For the foregoing reasons, the judgments of the trial court are affirmed.

__________________________________

JAMES CURWOOD WITT, JR., JUDGE

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