State of Tennessee v. Arthur T. Copeland

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

March 22, 2005 Session

STATE OF TENNESSEE v. ARTHUR T. COPELAND

Circuit Court for Blount County

No. C-11100 D. Kelly Thomas, Jr.

No. E2002-01123-CCA-R3-DD - Filed August 22, 2005

The defendant, Arthur T. Copeland, was convicted by a Blount County jury of one count of first

degree premeditated murder. The jury found that the state proved one aggravating circumstance:

The defendant was previously convicted of one or more felonies involving violence to the person.

Upon its further finding that the aggravating circumstance outweighed the mitigating circumstances

beyond a reasonable doubt, the jury sentenced the defendant to death. In this appeal as of right, the

defendant raises issues regarding the sufficiency of the evidence; the exclusion of jurors; an invalid

indictment; the admission of certain testimony; the exclusion of expert testimony; his right to testify

in his own defense; the denial of due process; the denial of his motion for continuance; the denial

of his motion to suppress; error by the trial court during voir dire; the denial of a change of venue;

prosecutorial misconduct during closing argument in the guilt and sentencing phases; discovery

violations by the prosecution; error in allowing the introduction of certain photographs; denial of a

request for a special jury instruction; the failure to charge the jury on a self-defense theory; the

refusal to disqualify the district attorney's office; the refusal to excuse trial counsel from post-trial

representation of the defendant; the failure to grant a new trial based on newly discovered evidence;

improper jury instructions; the denial of expert funding for development and use of mitigation

evidence; the admission of photos of the victim; the cumulative effects of errors during the guilt and

sentencing phases; and various constitutional challenges to the death penalty and to the statutory

capital sentencing procedure in this state. After review, this court concludes that reversible error

attended the trial court's response to defendant's decision not to testify and that the death penalty in

this case is disproportionate to the particular offense. We therefore reverse the conviction and

sentence.

Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed in Part,

Reversed in Part, and Remanded.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which DAVID G. HAYES and

JERRY L. SMITH , JJ., joined.

Randall E. Reagan, Knoxville, Tennessee; Gerald L. Gulley, Jr., Knoxville, Tennessee (on appeal);

W. Phillip Reed, Maryville, Tennessee; and Robert W. White, Maryville, Tennessee (at trial), for

the appellant, Arthur T. Copeland.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Alice B.

Lustre, Assistant Attorney General; Michael L. Flynn, District Attorney General; Kirk Andrews,

Assistant District Attorney General; and Edward P. Bailey, Jr., Assistant District Attorney General,

for the appellee, State of Tennessee.

Factual Background

The defendant was convicted in the April 1998 murder of Andre Jackson in

Maryville, Tennessee. Briefly summarized, the proof established that the murder was triggered by

a rape that occurred in the Alcoa community where the defendant, the victim, and their friends

frequently associated. On the afternoon of April 6, 1998, Lynn Porter reported being raped in her

Alcoa apartment by two men whom she could not identify. At the time, Porter dated Reginald

Sudderth. Upon learning of his girlfriend's rape, a visibly shaken Sudderth appeared at the Howe

Street Park area of Alcoa and publicized to the usual group gathered there that he was offering a

$10,000 "bounty" on the head of the person who had committed the rape, adding that "someone is

going to die tonight." The proof further established that the defendant learned of and expressed

interest in the reward money. Later that same evening, the defendant accompanied Sudderth and

others to Maryville in search of the victim's residence, after concluding that the victim and his friend,

Chris Knighton, were responsible for Ms. Porter's rape. After identifying the home where the victim

lived, the defendant obtained a gun in Alcoa, and he and others returned to Maryville. The defendant

entered the victim's home about 2:00 a.m. that morning and soon exited with the victim. Shortly

afterwards, the homeowner heard gunshots, and the victim reentered the house alone where he

collapsed from gunshot wounds and died. No direct evidence indicated who actually shot the victim.

In addition to the defendant, Reginald Sudderth and two other men were later indicted for the

victim's murder.

Guilt Phase

State's Proof

The state's first witness was Edna Delapp, who lived on Scenic Drive in Maryville,

Tennessee, along with her daughter, Stephanie, and Stephanie's boyfriend, Andre Jackson.

According to Delapp, her daughter had convinced her to allow Jackson to live with them over the

previous 10 months because he was having problems at home and was trying to get in school and

"back on track." Delapp recalled that on April 6, she was off from work. Jackson was also home

and slept most of the morning. At about 1:00 p.m. that afternoon, Jackson briefly introduced her to

Chris Knighton, a friend. Jackson left with Knighton, and Delapp did not see Jackson again until

her daughter returned home with him at about 11:30 p.m. that night. About 2:00 a.m., Delapp was

awakened by a "very insistent pounding" at the front door. She looked out the window and saw no

cars in her driveway. The loud knocking continued. She looked through the glass panes and thought

she recognized the person standing at the door as Knighton. She opened the door and angrily

confronted the man about waking everyone. He entered and replied that he needed to talk to

Jackson.

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As they walked through the hallway and she was better able to see, Delapp stated that

she realized the man was not Knighton. With the man following her, she opened the door leading

down to Jackson's room and called his name, but Jackson did not respond. The man said, "I'll go get

him" and walked down the stairs into Jackson's room. Delapp returned to her bedroom, looked out

the window again, and saw no one. As she made her way back to the hall, she encountered Jackson

following the man up the stairs. Delapp recalled that the man was wearing dark clothing and had

"really weird hair" with "little twisted ponytails." She further noted his eyes, stating that they stared

at each other for a few seconds and that she would "never forget him." She did not recall noticing

his hands. She stated that the man and Jackson went out the front door. She again returned to her

bedroom window but saw nothing. At the window, Delapp testified, she heard shots and glass

shattering. She ran from her bedroom and collided with Jackson in the doorway to the hall. She

described Jackson as being "hunkered down and running, just as fast as he could." Delapp stated that

during the collision, she was knocked down and cut her forehead, which bled quite a bit. She ran

to the living room, slammed the front door closed and tended to her forehead in the hall bath. Her

daughter appeared, and the two went to Edna Delapp's master bathroom and found Jackson lying on

the floor. He was wearing black and red tennis shoes at the time.

Edna Delapp identified photographs indicating bullet marks to her sofa, hardwood

floors and the walls of the entrance to her home. She identified the defendant as the man that came

to her home and called Jackson outside that night. Delapp observed that "his eyes were so intense,

I'll never forget him." Delapp stated that later that night, she and her daughter went to the Maryville

Police Department and gave statements. Delapp then went to the hospital and received

approximately twenty stitches for the cut to her forehead. She stated that the next afternoon, she

returned to the police department for a photographic lineup of suspects. She viewed six photographs

and identified the man she saw at her home based on his eyes. Delapp noted that in July 2000, two

detectives came to her house and observed the foyer area that led to the basement. She stated the

area was lit with night lights, the same as it was the night of the murder.

On cross-examination, Delapp testified that following the advice of her boss and a

friend, she had refused to talk with anyone from the defense team about the case. She stated that

on the day of the murder, she briefly looked at Knighton as he stood in the foyer when he picked up

Jackson. Regarding the man who came to her home at 2:00 that morning, she stated that she would

not forget him because "we stared at each other for two full seconds" and had "eye-to-eye contact."

Delapp described the lighting when she first saw him at the door, as "very bright outside," because

the moon was nearly full and there was a lamppost in the carport area. She stated there was no

conversation between the man and Jackson when they exited the house. Delapp agreed that at the

preliminary hearing, she had testified that when she injured her head in the collision with Jackson,

"I had so much blood on my face, I couldn't see." She stated that although there was a lot of blood

over her left eye, she could still see out of her right eye. She noted that in her description to police

that night, she recalled the man's dark clothing and his hairstyle and estimated that he was a little

taller than her height of five-foot-six inches. She stated she also recalled the man's eyes but probably

did not mention them. Delapp stated that she told the emergency room doctor that she had fallen at

home because she was upset and embarrassed and did not want to explain that someone had just been

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murdered in her home. She stated that the day after she identified the defendant in the photo lineup,

she saw the same picture of him in the local newspaper with an article stating that he had been

arrested and charged with murder.

Maryville Police Detective David Graves testified that he had been a detective for 10

years and specialized in the areas of crime scene processing and forensic art. In July 2000, Detective

Graves and Detective Bill Manuel went to the Delapp home to view the lighting conditions inside

as they were on the night of the murder. Detective Graves noted there were four lights on in the

hallway area, three of which had 25-watt bulbs. He stated the lighting was not "real bright," but he

could see quite well. He noted that he was able to identify various facial features of Detective

Manuel from various distances and angles. Detective Graves further testified that it was less than

one mile from the scene of the murder to the Gardenvale Apartments in Maryville. On further

examination, Detective Graves agreed that he had worked with Detective Manuel and had seen him

almost daily over the past 16 years.

Stephanie Delapp testified that on the day of the murder, she picked up Jackson at

6:00 p.m. in Alcoa, they returned home briefly, and she drove him back to Alcoa. At 11:30 p.m.,

Delapp picked up Jackson again and they went home and to sleep. She stated that she woke up about

2:15 a.m. upon hearing her mother screaming. She discovered her mother in a guest bathroom with

blood running down her face. Her mother told her someone was shooting, and Stephanie Delapp

retrieved a knife from the kitchen, not knowing who else was in the house. She went to the back

bathroom and found Jackson. After police arrived, she and her mother were driven to the police

station and gave statements. Stephanie Delapp testified that when Jackson called her the first time

that day to pick him up, he did not say whether anyone was with him. When she arrived in Alcoa,

Jackson was with Chris Knighton. She did not observe any gun or hear any discussion of a gun.

Delapp conceded that when first questioned, she did not tell police she picked up Knighton along

with Jackson. She explained that she lied because of the murder and because a "certain somebody,"

Knighton, was still roaming around. She was aware that shortly after the murder, Knighton was

jailed and charged with rape.

Stephanie Delapp further testified that in December 1998, she violated the City of

Alcoa curfew and was charged with possessing a loaded weapon. She testified that the weapon was

inside the glove box of the car in which she was a passenger and that the charges were later dropped

because the gun was not hers. She admitted that at the time she was already on juvenile probation

for leaving the scene of an accident. Delapp testified that she believed Jackson sold drugs in Alcoa,

although he had never taken or sold drugs in her presence. She testified that Jackson's mother, Diva

Brown, had called the Delapp's home at around 8:00 p.m. on the night before the murder and told

her that Lynn Porter had been raped. Delapp stated that Brown was concerned that Jackson had been

involved in the rape. Delapp stated that she and her mother had never discussed whether Knighton

may have been the person that came into their home on the night of the murder.

Maryville Police Sergeant Gary Nitzband testified that he was a detective on duty on

the date of the April 1998 murder. He and three other officers were the first to arrive at the Delapp

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residence. On their "walk-through," detectives observed the victim's body and damage from

gunshots to the home. Eight empty shell casings from a semi-automatic weapon were retrieved in

the home, three from the foyer area. The victim's body was found in a back bathroom with three

apparent gunshot wounds to the groin area and above. Sergeant Nitzband testified that evidence

collected at the crime scene included a very small quantity of tiny rock-like substances found in

several locations in the victim's basement bedroom. He opined the substance was crack cocaine.

A knife was recovered on the tub where the victim's body was found. Sergeant Nitzband testified

that based on the information he had, there was no reason to attempt to recover fingerprints from the

crime scene. After he left the Delapp residence, Sergeant Nitzband went to the nearby Gardenvale

Apartments to speak to a woman named Karla Bragg. She answered the door and seemed "excited,

scared." He informed Bragg they were investigating an incident nearby and obtained a statement

from her.

On cross-examination, Sergeant Nitzband testified he did not question Edna or

Stephanie Delapp at the scene. He was unaware whether anyone had been charged with a drug

offense in connection with the substance found in the victim's room.

Karla Bragg testified that in April 1998 she lived at the Gardenvale Apartments in

Maryville. Her boyfriend was Knighton. She stated that at about 2:30 a.m. on April 7, the defendant

knocked on her door. He was wearing all black clothing, black gloves, and his hair was sticking up

in "plaits" or little sections. The defendant said he was looking for Knighton. Bragg stated she

noticed the defendant's gloves when he asked for a cigarette and couldn't light it himself. Bragg

agreed that in her statement to police she stated that the defendant told her, "I really need to see him.

He said, tell that –--- I will be back, and he asked me for a cigarette." Following Bragg's testimony

that she did not actually remember the events of April 7, that she had "blocked it out," her April 7

statement to police was read into evidence. In further testimony, Bragg stated that she had known

the defendant for years before the murder but could not recall whether the defendant or Knighton had

been to her apartment that day.

Dr. David Gilliam performed the autopsy of the victim. He testified that the victim

suffered three gunshot wounds to the front of the body. One bullet entered the collarbone from

close-range and exited the back. Another entered the chest and also exited the back. Both wounds

were fatal. A third gunshot to the groin was not fatal. Dr. Gilliam testified that a person could easily

run 100 yards after sustaining these wounds before succumbing to the injuries. He stated that the

wound to the groin would have been painful and caused the victim to bend over. He opined that if

the shot to the groin occurred first, it could explain the downward trajectory of the other two bullets.

He opined that the gun was in the range of a nine millimeter to .45 caliber weapon. The cause of the

victim's death was massive blood loss and pneumothorax as a result of two of the gunshot wounds.

His examination revealed that the victim was otherwise healthy. On cross-examination, Dr. Gilliam

stated that he found no evidence of a head injury to the victim. He noted that TBI lab testing

indicated the presence of marijuana in the victim's body.

Maryville Police Captain John McCullough testified that he went to the crime scene

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on the morning of April 7 and spoke with Edna Delapp in an effort to get details of the night's event.

However, Delapp was emotional and gave a statement with "minimal" information. He testified he

did not get an accurate account of the perpetrator's movements in the home that he could duplicate

at the scene. Captain McCullough testified that no gun tied to the murder was located. He stated

that one theory police considered was that the murder was related to the drugs found in the victim's

room. He stated neither Edna nor Stephanie Delapp was questioned about the drugs.

Detective Bill Manuel testified that he arrived at the murder scene and escorted the

Delapps to the police station. At the station, the women were interviewed separately. Neither could

identify the suspect. Edna Delapp described the person in her home as a black male, about five-feet-

eleven inches tall, wearing dark clothing, and having little "horns" of twisted hair. Later that day,

after the photographic lineup, Detective Manuel informed Edna Delapp that she had identified the

person police suspected in the victim's shooting. He stated that Knighton was never a suspect in the

victim's murder and was not included in the photographic array shown to Edna Delapp. He testified

that the knife found near the victim was not sent for testing because Stephanie Delapp had indicated

that she took the knife from the kitchen to the bathroom that morning. Detective Manuel stated that

his interviews with the Delapps were not recorded although he did make brief notes regarding Edna

Delapp's description of the suspect. He testified that he never pursued charges or questioned

Stephanie Delapp about the drugs found in the victim's room.

Michael J. Lyttle, a forensic scientist with the Tennessee Bureau of Investigation

Crime Lab in Nashville, testified that tests performed on blood samples from the victim indicated

the presence of a marijuana byproduct used within 24 hours of his death.

Glen Glenn, also a forensic scientist with the Crime Lab, testified that of the rock-like

substances collected at the scene, seven were ascorbic acid, or Vitamin C, and one was .03 grams

of cocaine base. Mr. Glenn stated that it was common to find other substances mixed with cocaine.

Dan Royce, a firearms examiner with the Crime Lab, testified that the three bullets

recovered from the crime scene were nine-millimeters, all fired from the same weapon. All eight

shell casings were also fired from the same weapon, an automatic or semi-automatic gun that

resembled a small submachine gun in appearance.

Lynn Porter testified that in April 1998 she was dating Stacey Sudderth. On April

6, she arrived home at 5:30 to find two males in her home. One was tall; the other, short. She

described one as a light-skinned black man. Their faces were covered, both wore black clothing, and

one wore red tennis shoes. They asked Porter to contact Sudderth, saying he "owed them money or

something." One man instructed Porter to get $10,000 by 10:00 p.m. and place it in a clear plastic

bag. She stated that he threatened her family and Sudderth's family. Porter testified that the shorter

man then left the room and the taller man raped her. After the men left, Porter called Sudderth, and

he and the police arrived at the same time. Porter went to the hospital and to the police station to

give a statement. Sudderth remained with her for a time and later left her at her mother's home.

Porter testified that Knighton was later convicted for his part in her rape.

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On cross-examination, Porter testified that she and Sudderth had dated for ten years.

She had also known David Bell Brown, a friend and employee of Sudderth, for over ten years.

Porter stated that she had seen the defendant on occasion, but he was not a friend of hers or Sudderth.

Porter testified that the men in her home gained access by kicking open the back door. She

attempted to call Sudderth as they instructed but could not reach him. One man had a knife and the

other had a gun. Her clothes were removed with a knife and her hands bound. During the rape, she

observed that the perpetrator had light skin and a gold tooth. She was not aware whether Sudderth

began gathering the money the men had demanded. Porter testified that she told Sudderth that she

could not see the men's faces, but the rapist reminded her of a man named Toure Teeter. Porter

agreed that at the police station, she stated that the rapist could have been the defendant. Porter

stated that she had since come to believe that the murder victim, Andre Jackson, was actually the

man who raped her, and Knighton was the man with him. She agreed that Knighton had been

convicted even though she was never able to identify the race of the person accompanying the rapist.

She testified that she never told Sudderth or anyone else that she knew for certain who had raped her.

Billy Williams testified that in April 1998 he lived in Alcoa. Between 5:00 and 6:00

p.m. on April 6, he was at the Howe Street Park, shooting dice with others, when Sudderth arrived

along with Homer Henderson. Sudderth jumped out of a car, very upset, and began yelling at them,

saying "you young mother f------ are wrong, . . . the $10,000 you came for, it's a bounty . . . a reward

for your head." Williams stated that he asked Sudderth what he was talking about and Sudderth

continued, "[T]he $10,000 you wanted, come get it, when I find out who done it, you're dead."

Sudderth also told the group that one of the men he was talking about wore red Air Jordan tennis

shoes. On further examination, Williams testified that he knew the defendant and did not see him

in the park on April 6. He did recall seeing the victim and Knighton sitting on a bench in the park

as Sudderth was yelling at the group.

Victor Hodge testified that on April 6, he was shooting dice at the Howe Street Park

when Sudderth arrived there "real upset," with "tears running out of his eyes." He stated that

Sudderth slammed his hand on the hood of his car, and hollered "you –----- got my attention . . . ,

you all had no business doing that to the girl . . . , and you all wanted ten thousand . . . I got ten

thousand dollars." Later that night, Hodge went to "Jack's Place" to "hang out." People there were

discussing "the situation." He recalled that the defendant and Brown were there. According to

Hodge, the defendant asked him if he knew Sudderth's beeper number or how to contact Sudderth.

Hodge stated that the defendant "just blurted out that he had to have that ten thousand and wanted

to get in touch with Sudderth." On cross-examination, Hodge testified that on April 6, Porter's rape

was the main topic of discussion in the community, and there was a lot of speculation and rumors

as to who had committed the crime. Hodge recalled that Knighton was in the dice game that day,

but he did not see the defendant or the victim at the park. Hodge stated that when he left Jack's Place

about 12:30 a.m. that night, the defendant was still there. He recalled that the defendant normally

wore his hair either in braids or in an afro. He did not observe the defendant with a gun that night.

He agreed that Knighton and the defendant resembled each other when their hair was styled the same

way.

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Tyrone Haley testified that at the time of the defendant's trial, he was serving a

sentence for a drug offense in the county jail. On April 6, 1998, he was shooting dice in the Howe

Street Park. Haley stated that he knew the defendant and saw him that evening about 9:00 p.m.

standing alone on the corner of Howe Street. He stated the defendant was dressed in all black

clothing and was carrying a weapon with a long clip and a muzzle around the nozzle at his hip. On

cross-examination, Haley stated that he was on probation for an earlier conviction for sale of cocaine

when he incurred his current drug conviction. He acknowledged that he had refused to speak with

the defense team regarding their case. He stated that he had had trouble with the defendant two years

before when the defendant had robbed him of some gold and money. He stated he didn't report

seeing the defendant on the night of the victim's murder to police because that same night the

defendant threatened to blow his head off with a sawed-off shotgun. Haley stated that he was getting

nothing in return for his testimony. He stated that the defendant had been carrying around the gun

he saw him with for about a week before April 6. Haley stated that he told prosecutors for the first

time about seeing the defendant with a gun on April 6 in the weeks prior to the defendant's trial. He

stated that he agreed to talk with them, but not with defense counsel "because they are defending

[sic] my friend that's dead and gone."

Kimani Dean testified that on the late afternoon of April 6, 1998, he was standing

with friends on the corner of Howe Street when they noticed police cars at a nearby house. He later

found out it was the home of Lynn Porter. Sudderth slowly drove by and said, "[Y]'all –----- better

watch out 'cause somebody is going to die tonight." Shortly before midnight, Dean was driving

around and saw the defendant standing in a parking lot near Howe Street, talking with a girl named

Giovanna Hodge. The defendant was dressed in all dark clothing, and his hair was plaited. Dean

further testified that he was not a friend of the defendant but had seen him in Alcoa. Dean stated the

victim was his cousin and that the two were close.

Dorinda Pitts testified that the defendant was a personal friend. She stated on the day

before the murder, she and the defendant went to dinner in Knoxville, and they returned to Alcoa

about 9:30 p.m. She dropped the defendant off at Kelvin Road and Howe Street. She later saw him

again at about 11:00 p.m. in a car that looked like one that Homer Henderson drove. Pitts further

stated that she was able to identify the defendant because he briefly exited the vehicle. She stated

she did not observe Henderson, only a car that looked like one he drove.

Toure Teeter testified that he had prior drug convictions and was out of jail at the time

of the defendant's trial. He stated that Stephanie Delapp and the victim were friends of his. On the

night before the murder, he was at Jack's Place. Around 11:00 p.m., he saw the defendant in front

of Jack's Place. He stated that the defendant was mad, "raising a lot of Cain," saying, "[y]ou all

mother-f------- talking about I'm the one that went in Lynn Porter's house. You all got me f------ up.

I'm going to go down in history tonight, somebody going to die tonight." Teeter stated he left and

went to his grandmother's house because he was afraid of the defendant. In further testimony, Teeter

agreed that the victim was his best friend. He also knew Knighton but did not hang out with him.

Teeter stated that he received several phone calls from Knighton and the victim on April 6 when they

were inside Porter's home asking him to bring them another gun. He did not take them a gun and

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told them to leave Porter's home. Teeter agreed that he was hurt and angry about the victim's death.

He stated Stephanie Delapp never discussed with him who may have killed the victim. He

acknowledged that he was on community corrections for two 1998 drug convictions, had a

conviction for felony reckless endangerment, and had given an incorrect social security number to

Maryville police after being pulled over the same week he testified in the defendant's trial. He

denied telling a defense investigator through his door that he did not want to talk about the defendant

and that he wanted to see him "fried."

Myron Kellogg testified that he was a former drug dealer and had a conviction for

delivery of a controlled substance, for which he received three years' probation. According to

Kellogg, the victim sold enough drugs to make money to live on, and Knighton also dealt drugs. On

the day before the murder, Kellogg was in Jack's Place and saw the defendant there along with David

Brown around 11:30 p.m. He stated that the defendant "said he needed to make this money, he

needed to get this over with, go on and do this." Kellogg stated Ashley James drove him home a

little before midnight. After 1:00 a.m., Kellogg received a phone call from Brown. Sudderth also

got on the telephone and asked Kellogg if he knew where Knighton and the victim were and where

the victim's girlfriend lived.

The next morning, Kellogg saw Ashley James again and recalled that she was

"hysterical" and "excited." According to Kellogg, James informed him that after she took Kellogg

home the night before, she joined Henderson, Sudderth, Brown, and the defendant. Henderson

wanted to know where James had dropped off the victim earlier in the week, and she gave him the

victim's Scenic Drive address. The group went in two cars to Maryville with James, Henderson, and

the defendant in one car, and Sudderth and Brown in the other. They drove near the victim's

residence, and the defendant got out of his car and into the car with Sudderth and Brown. James

stated that she and Henderson went to Kay's Ice Cream around the corner. While there, James heard

gunshots. She also told Kellogg that she had seen guns before she and Henderson separated from

the others that night.

On cross-examination, Kellogg testified that the victim was his friend and his cousin.

He stated he had known James for about three years, and it was "possible" they had used drugs and

had a sexual relationship together. He had seen James use cocaine, was aware that she had been in

a drug rehab program, and had provided her a place to stay when she could no longer stay with her

parents. Kellogg testified that he first reported that he knew that Sudderth, Henderson, Brown, and

the defendant planned to kill the victim in late 1999. He stated he decided to tell a police officer who

had previously arrested him for possession of drugs about the victim's murder. He stated he

received nothing in exchange for the information. He stated he also tried to convince James to tell

police what she knew, but she had initially refused. In June 2000, Kellogg accompanied Detective

Manuel to the department store where James worked so that she could give him her information

about the victim's murder. Kellogg agreed that he had slept with James once before the murder and

a few times more recently. Besides the police officer, Kellogg stated he also discussed the murder

with the district attorney and Detective Manuel. He could not recall whether any of his discussions

had been recorded.

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Although involved in an unrelated murder case in which he admitted going to Atlanta

with a friend and bringing back $30,000 worth of cocaine to Blount County, Kellogg stated that he

received nothing in exchange for his testimony in the present case. He stated that he was testifying

against the defendant because he felt that if the victim had committed a crime, the courts, and not

the defendant, should have punished him. He felt that the victim did not deserve to die. He stated

James would not come forward earlier because she was afraid of Sudderth. Kellogg testified that

he was never charged with drug offenses as a result of his testimony in another case; however, he

did incur a probation violation. He stated he gave testimony in that case because one of the victims

was his friend.

Margaret Amason testified that in April 1998 she lived in Alcoa with her boyfriend,

David Brown, and her daughter. On April 6, the day Porter was raped, Amason went to bed and was

awakened around midnight by Brown and the defendant playing music and laughing in her living

room. She stated she knew the defendant pretty well, that he was friends with her and Brown, and

that he came to her house often. She stated she went into the kitchen and found the defendant rolling

marijuana "blunts" and Brown making sandwiches. She was aggravated and instructed them to

leave. The next morning, she awoke and discovered Brown sitting on the bed, tying his shoes. On

cross-examination, Amason stated that Brown was still her boyfriend, but he was currently

incarcerated. She testified that it was normal for the defendant to visit her home socially, and there

was nothing unusual about the defendant and Brown coming over that night, although she did not

like them making a mess in her kitchen.

Michael Curtis testified that on April 7, 1998, he left his sister's house in Alcoa

around 11:00 p.m. to take a friend home. He saw the defendant in a black "Sidekick" that he

recognized as belonging to Henderson's wife. Henderson was driving and there were two females

in the car. Curtis stated he was a friend of the defendant and stopped to talk with him. Curtis did

not recall anything unusual about the defendant's appearance but noted that the defendant dropped

a black glove with glitter on it in Curtis' car. He did not recall seeing the glove before and did not

observe a second glove. Curtis stated that the defendant wanted to discuss getting back together with

Curtis' sister who had recently broken up with the defendant. Curtis agreed that the defendant was

wearing his hair in four braids that night, two in the front and two down the back. The defendant

did not appear to be intoxicated. Curtis noted that the next day, he saw Knighton, who was wearing

his hair in four braids identical to the style the defendant was wearing the night before.

Robyn Rainer testified that in 1998 she lived in Alcoa and was a friend of Knighton.

On April 6, the victim dropped off Knighton at her house shortly before dark, and he went to sleep

on her couch for the night. About 3:00 a.m., she awoke to find the defendant knocking on her front

door. The defendant came in and reported that the victim was dead and told Knighton that he needed

to leave. The defendant asked to spend the night at Rainer's house, but she declined, saying she had

no more room. According to Rainer, the defendant responded that he would tell Brown to leave.

The defendant then left and did not return. The next day, Rainer described Knighton as being very

nervous, running if someone knocked at the door. She observed that Knighton had a gun. Rainer

testified that she had drug convictions but had been through rehabilitation and had stayed off drugs

10

for the past four months.

On cross-examination, Rainer stated that when she went to bed about 1:30 a.m. on

April 6, Knighton was on her couch and appeared to be asleep. She did not believe that he ever left

her house that night. She stated that Knighton told her the next morning that he had left and returned

during the night. Rainer stated she reported this information to Detective Manuel shortly after the

victim's murder. She stated she did not know why a November 1998 drug charge against her was

dismissed. She testified that she pleaded guilty to a December 1999 drug charge and after speaking

to the state about the instant case, she was allowed to serve her eight-year sentence on Community

Corrections. She recalled that when the defendant reported that the victim was dead, Knighton

appeared more nervous than upset. In further testimony, Rainer stated that prosecutors did not help

obtain her release from custody for her drug convictions.

Ashley James testified that in April 1998 she lived in Knoxville but frequently came

back to Maryville. She often went to see Myron Kellogg. The two had an intimate relationship, and

she used cocaine around him. On April 6, she and Kellogg went to Alcoa. There, she went to the

Howe Street Park to drink beer and visit with friends, and he went to Jack's Place. Later, she went

to a store and met Sudderth and Henderson. Henderson informed her that Porter had been raped, and

they were looking for the victim and Knighton. According to Henderson, the victim or Knighton had

raped Porter, and they needed to find them. James stated she left to pick up Kellogg, took him home,

and returned to the store. When she got into Henderson's vehicle, he was holding a gun. He told her

they were still looking for the victim and Knighton "because they had raped Lynn. And that

[Sudderth] was his cousin and he wasn't going to let him down."

James stated that she rode with Henderson and Sudderth to pick up the defendant.

The defendant got into the back seat with her and Henderson and Sudderth sat in the front seat. She

recalled that the defendant was wearing a black sweatshirt. The group drove to Scenic Drive in

Maryville. She stated that the defendant knew where to go because he had been to the victim's house

to have speakers installed in his car. They drove down the street until the defendant identified a car

parked in front of one house as that of Stephanie Delapp. The group left, took Sudderth to his truck,

and picked up Brown. They drove to another house in Alcoa, Brown walked to a window, and

someone handed him a gun. Still inside the car with the defendant, James stated that the defendant

said that he needed to get some "cheese," or money, to get out of town. Referring to Brown, the

defendant further stated that he didn't know why there was a "crack head" there, that he would "just

mess everything up." Brown handed the gun to the defendant, and the group returned to pick up

Sudderth. The defendant and Brown got into a car with Sudderth. James stated that she and

Henderson left the others and drove to a motel in Knoxville, checking in before midnight.

At the motel, James stated that Henderson left about an hour after they checked in,

telling her that he had been paged and would be "right back." He did not return until 8:00 a.m.

Alone at the motel, James stated that she used a little cocaine, watched television, and went to sleep.

The next morning, Henderson drove her back to her car and on the way told her some upsetting

news. Back in Alcoa, James stated that she drove around for a while and was "distressed, disgusted

11

and upset." She stated that she went to Kellogg's house and told him about driving around with the

men the night before, that they obtained guns, that she went to the motel with Henderson, and that

he had left her there until the next morning. She stated that although she was a cocaine addict at the

time, drug use did not affect her memory or cause her to hallucinate.

On cross-examination, James testified that she met Kellogg in 1997 and began a

relationship with him. She admitted that Kellogg paid her expenses and supplied her with drugs but

denied that she had sex with him in exchange. She stated she also had a relationship with

Henderson, although she knew he was married. She stated that April 6 was not the first time she had

stayed with him at a motel. According to James, when she drove to Scenic Drive with Sudderth,

Henderson, and the defendant earlier that night, she did not give them any directions to the victim's

house. She stated she believed that Stephanie Delapp drove a white car but recalled that the

defendant had pointed out a silver Sidekick as the car they were looking for. Shown a photograph

of a black Sidekick with a white roof, James stated that she was mistaken that the car the defendant

identified was silver. She agreed that there was a lot she did not remember accurately anymore.

After leaving the motel the morning of April 7, James stated that she drove around for a while and

hung out with friends. Everyone was talking about the murder. She stated she did not tell anyone

about being with Henderson or Sudderth the night before. She went to Kellogg's house after lunch,

had a few shots of liquor, and told him everything that had happened the pat night.

James denied that Henderson persuaded her to show him the address where she had

dropped off the victim earlier in the week. She further denied that she and Henderson went to Kay's

Ice Cream on April 6 or that she heard gunshots fired nearby. She stated in November 1998 that

Kellogg had some charges pending in Blount County and told her that she needed to help him get

out of trouble. It was during this time that Kellogg first asked her to come forward and tell police

about the events of April 6. James stated that she first learned that the victim was dead when

Henderson told her the morning of April 7 as they left the motel. She stated she cried. She was

aware that the victim was Kellogg's cousin. She stated that she did not help plan the victim's murder

or help the others locate him. Her purpose in being with the others on April 6 was that Henderson

planned to use her as an alibi witness. James denied making up all of her testimony in an effort to

keep Kellogg out of jail because she needed him to supply her with drugs. James stated that she

made a mistake in not calling anyone about the murder plan when Henderson left her alone at the

motel on April 6. She explained that she did not tell anyone later because Sudderth had threatened

her the next day and she was scared for her life. James stated she had not been charged with any

crime in connection with the murder and had made no deals with the state. She did not know who

returned to the victim's residence later that night and did not know who actually shot him.

Danny Wilburn testified that he was on patrol with the Blount County Sheriff's Office

on the morning of April 7, 1998, when he was dispatched to an address on Alcove Boulevard. There

he found the defendant lying on the front porch. The defendant was hurt, could barely speak, and

reported that he had been shot in the upper buttocks by a "Bella" or David and another male who

were in a green Toyota 4-Runner. Wilburn noted that the defendant's hair was tightly braided around

his head.

12

Patrol Officer Rusty Borden, of the Blount County Sheriff's Department testified that

he stopped a green 4-Runner on April 7 near the Foothills Mall in Maryville. Sudderth was the

driver, and Brown was his passenger. A gun was found on the passenger floorboard, and a $10,400

roll of cash was found in the console.

The state rested its case-in-chief.

Defendant's Proof

Beverly Black testified that Henderson was her son-in-law and that she was Kellogg's

next-door neighbor. She testified that Kellogg often came to her house, and she treated him like a

son. She stated that two months before the defendant's trial, Kellogg came over, and she asked him

whether he was working or still selling drugs and whether his drug charges were still pending.

Kellogg responded that he was not going to jail because he had made a deal that he would testify to

what police wanted to hear about the victim's murder, and he would make sure that James did the

same. According to Kellogg, James would not be charged with conspiracy in the murder. Black

stated that Kellogg also told her that the police had taken $30,000 worth of his cocaine, and he

needed to make up that money. Black stated she knew that Kellogg lied a lot and did not believe the

police had his cocaine.

On cross-examination, Black stated that when Detective Manuel called before the

trial, she told him that Kellogg had told her he had made a deal, but the detective made no comment.

She admitted that this was a few days after Henderson, her son-in-law, had been indicted in the

victim's murder. She stated she never told anyone else what Kellogg had said because she assumed

he was lying. She admitted that she was aware that Ashley James was her son-in-law's lover, but she

stated that the issue was between her daughter and Henderson. Black stated that after hearing

Kellogg's testimony, she approached defense counsel because she was "appalled" by the lies she

heard from Kellogg.

Cathy Kivett testified that on the morning of April 7, 1998, there was a knock at her

door, and she found the defendant on the front porch. He was holding his side, told her that he had

been shot, and asked her to call for help. She described the defendant as having tightly braided hair

that was not sticking out and wearing a gold chain and a dark blue tank top and shorts.

Detective Warren Headrick testified that he arrived at Kivett's home to find the

defendant in the back of the ambulance. He reported he had been shot by "Bella." Detective

Headrick testified that the defendant was shot with the gun found in the green 4-Runner and that the

police believed that the shooting took place on Cedar Church Road at a barn that belonged to a

relative of Sudderth.

Officer Ron Talbott testified that in the course of his work with the Drug Task Force

in Blount County, he had received reliable information about criminal activity from Kellogg. During

13

one interview in February or March 2000, Talbott recorded the information that Kellogg gave him

about the victim's murder and turned it over to Detective Manuel in the Blount County Sheriff's

Office. Officer Talbott also learned from Kellogg that there was an unnamed female who knew first-

hand information but was too afraid to talk. A few months later, Kellogg told him the female was

Ashley James. Officer Talbott testified that he was not aware that Kellogg would testify at the

defendant's trial until a few weeks before trial and never offered him any sort of leniency or

suggested what he should say if he testified.

On further questioning, Officer Talbott testified that Kellogg had been an informant

for about three years. He acknowledged that he sometimes paid Kellogg but stated he did not pay

him for information about the murder case. He agreed that he arrested Kellogg on Halloween night

in 1998 for drug possession and driving on a revoked licensed and that Kellogg was on probation

at the time. He did not know why the charges were later dropped. Officer Talbott was aware that

in another murder case Kellogg had testified to bringing over two pounds of cocaine from Atlanta

to Blount County, but he stated that no effort had been made to prosecute Kellogg based on that

testimony. Shown a report in which he discussed Kellogg's information about the victim's murder

with an FBI agent on January 24, 2000, Officer Talbott stated that he didn't recall exactly when the

interview with Kellogg had taken place. On further questioning, Officer Talbott noted that the two

judgments relating to the Halloween arrests of Kellogg reflected that charges were initially held in

abeyance for six months and then dismissed.

Betty Law testified that she was a retired schoolteacher and the next door neighbor

of Edna Delapp on Scenic Drive for over thirty years. She stated that after the Delapps and the

victim moved in, there was more traffic at the home. She noted that mostly male visitors often came

to the house for short periods of time.

The defense rested.

State's Rebuttal

On rebuttal examination, Detective Manuel stated that he was very good friends with

Beverly Black and her family. He stated that about a week before the defendant's trial, he called

regarding the arrest of Black's son-in-law, Henderson. During their conversation, Black told him that

Kellogg had been to her house and had said "he would do whatever he has to to help himself out in

any situation with law enforcement." Detective Manuel stated that nothing specific about the murder

case was discussed, and he asked Black no questions about Kellogg.

Following deliberations, the jury returned a verdict finding the defendant guilty of

first degree murder.

Sentencing Phase

Through Mr. Tom Hatcher, Circuit Court Clerk for Blount County, the state

14

introduced a judgment reflecting the defendant's prior conviction for aggravated robbery. Detective

Dale Boring testified that he was the prosecuting officer on the case, and the defendant had pleaded

guilty as charged. He noted that the robbery indictment identified the defendant as "Anthony Carter,

Jr., alias."

Diva Brown testified that the victim was her only child. Before he lived with the

Delapps, he lived with her and her husband, but he felt it was time to move out on his own. She

stated that after he moved out, she spoke to and saw her son often. She and Edna Delapp discussed

their children three or four times a week. Brown described her son as "a sweet loving child, full of

fun." She stated he was respectful toward her and was close to his stepfather and other family

members. She felt that he was beginning to stray toward dealing in drugs, and this was one reason

he decided to leave home. She last saw him on the morning before his murder and told him she

would take him to apply for a job. She recalled telling him that she wanted him to get back in

school, go to church, move back home, and start over because he would not make it living on the

streets. About 2:00 a.m., she received a phone call from Stephanie Delapp telling her that her son

had been shot. A few minutes later, Delapp called back and told her "he's gone." Brown stated a

friend had called her earlier that day and told her that her son might be involved in the rape of Lynn

Porter. Brown did not believe her son would do "something that stupid." She stated after he was

killed, she thought all the time that if she had gone and found her son that day, maybe he would still

be alive. She stated her life would never be the same and that no one knew how hard it was for her

to sleep through the night because she thought about her son constantly. She stated she could not

bear to hear other parents talking about their children and felt that she had become mentally unstable

because of his death. Brown stated that she wanted to die so she could see her son again.

Elizabeth Faye Dean testified that the victim was her nephew and was always with

her own three children. She stated that his death had "about driven [her] crazy," and there was not

a day that she did not miss him. She stated that "a part of her heart has been tore out."

The defendant testified in his own defense. He stated that he was born in January

1973 and was twenty-seven years old. He admitted to previous convictions for theft over $10,000,

reckless endangerment, and aggravated robbery. As to the latter conviction, he stated he entered a

best interest plea. He stated the incident began as a fight, and he was not involved until he jumped

in after the other person pulled out a knife. After the fight, the defendant stated he picked up some

items from the ground and fled from police, which resulted in the robbery charge.

The defendant stated he grew up with his mother until he turned fourteen, and then

he felt it was time to be on his own. He initially lived with a girl friend but later was locked up in

various juvenile facilities. He stated that a five-month period was the longest time that he had gone

without being locked up since the age of fourteen. He stated that since being held prior to the instant

trial, he had obtained his graduate equivalency diploma. He described his mother as his best friend,

and because she had been to the trial every day and was under a lot of stress, he had asked her not

to come to hear him testify. He stated he had a seven-year old son and wrote to him regularly from

prison. He stated that before he was incarcerated, he had custody of his son and tried to support him

15

despite having no job.

On cross-examination, the defendant stated that his name was Arthur Todd Copeland,

or "A.C." He stated "Anthony Carter, Jr." was an alias "they came up with" in his aggravated

robbery case. He stated he pleaded guilty in that case and admitted that he was the one who caused

that victim's injuries. The defendant stated that he drank and smoked marijuana at that time "every

day." He agreed that in previous testimony regarding the robbery, he stated that the victim's face was

crushed "probably from the kicks or something." The defendant stated that he tried to support his

son by "hustling" before he went to prison for the first time. He explained that he could not get a

"real job" without an education.

Following deliberations, the jury sentenced the defendant to death for the murder of

Andre Jackson. The jury found that the state had proven one aggravating circumstance: the

defendant was previously convicted of one or more violent felonies. See Tenn. Code Ann. § 39-13-

204(I)(2) (2003). The jury further found that the statutory aggravating circumstance outweighed any

mitigating circumstances beyond a reasonable doubt.

I. Sufficiency of the Evidence

The defendant challenges the sufficiency of the evidence, asserting that the state's

proof fails to establish beyond a reasonable doubt that he shot and killed the victim or was involved

in a complicity to kill him.

When evaluating the sufficiency of the evidence, we must determine whether "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 (1979). A verdict of guilt removes

the presumption of innocence and replaces it with a presumption of guilt. On appeal, the defendant

has the burden of illustrating why the evidence is not sufficient to support the jury's verdict. State

v. Cole, 155 S.W.3d 885, 897 (Tenn. 2005); State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn.

2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). We are required to afford the state the

strongest legitimate view of the evidence in the record, as well as all reasonable and legitimate

inferences which may be drawn therefrom. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

The defendant was convicted of first degree premeditated murder, defined as a

"premeditated and intentional killing of another." See Tenn. Code Ann. § 39-13-202(a)(1) (2003).

Premeditation is the exercise of reflection and judgment before the doing of an act. Id. § 39-13-

202(d). Circumstances supporting a finding of premeditation include the use of a deadly weapon

upon an unarmed victim, the particular cruelty of a killing, the defendant's threats or declarations of

intent to kill, the defendant's procurement of a weapon, any preparations to conceal the crime

undertaken before the crime is committed, destruction or secretion of evidence of the killing, and a

defendant's calmness after a killing. State v. Leach, 148 S.W.3d 42, 53-54 (Tenn. 2004); Bland, 958

S.W.2d at 660. A motive for the killing is another factor from which the jury may infer

premeditation. Leach, 148 S.W.3d at 54; State v. Nesbit, 978 S.W.2d 872, 898 (Tenn. 1998).

16

In the light most favorable to the state, the proof showed that on April 6, Stacey

Sudderth went to the Howe Street Park and publicly announced to those gathered that he had $10,000

as a "bounty" on the head of the persons responsible for the rape of his girlfriend earlier that

afternoon. Tyrone Haley saw the defendant at 9:00 p.m. that evening near the Howe Street Park with

the same large gun that he had seen him with earlier in the week. Toure Teeter saw the defendant in

front of Jack's Place at around 11:00 p.m. that night. The defendant was "raising a lot of Cain,"

saying "[y]ou all mother-------- talking about I'm the one that went in Lynn Porter's house. You all

got me f----d up. I'm going to go down in history tonight, somebody going to die tonight." Victor

Hodge, a witness to Sudderth's angry outburst at the park, stated that Ms. Porter's rape was the main

topic of discussion in the community that day. Later that night, Hodge went to Jack's Place, where

he saw the defendant and David Brown and spoke with them about "the situation." The defendant

asked Hodge for Sudderth's beeper number and told Hodge that he wanted to get in touch with

Sudderth because "he had to have that ten thousand."

The jury further heard from Ashley James that Sudderth and Henderson were looking

for the victim and Chris Knighton because they believed one of them had committed the rape. James

stated Henderson had a gun. Sometime after midnight, she joined Sudderth, Henderson, and the

defendant, and the three drove to Maryville to look for the victim's residence. She recalled the

defendant was wearing a dark sweatshirt. The defendant directed them to Scenic Drive where they

drove down the street until the defendant identified a car belonging to the victim's girlfriend in front

of a house. They left and picked up David Brown, who obtained a large gun that he gave to the

defendant. The defendant stated that he needed to get the "cheese," or money, to get out of town.

Edna Delapp placed the defendant at her home about 2:00 a.m. that morning. Initially, she believed

the person pounding on her door was Chris Knighton, who she had briefly met for the first time

earlier that day. After staring at him "face-to-face" in the hallway, Delapp realized he was not

Knighton. After the victim followed the person out the front door, she had time only to get to her

bedroom window before she began hearing gunshots and glass shattering inside the home. Delapp

later identified the defendant as the person who came into her home and left with the victim shortly

before he was shot. She described him to police as a black male, a little taller than herself, wearing

dark clothing, and having his hair styled in "little horns" sticking up around his head. Robyn Rainer

testified that the defendant came to her house at about 3:00 a.m. on April 7, and he reported to her

and Chris Knighton that the victim was dead and that Knighton needed to leave.

From this proof, a jury could reasonably infer that after proclaiming that he needed the

reward money and obtaining a gun, the defendant went to the victim's house, led him outside, and shot

him. The defendant focuses on discrepancies in Edna Delapp's identification of the defendant. For

instance, at trial, she stated that she had identified the defendant based on his eyes, a factor she did

not note in her initial description or earlier testimony. Further, the stipulated height of the defendant

was six feet, one inch tall, compared to Delapp's estimation of him as being a little taller than her

height of five feet, six inches. Also, Delapp did not see a gun when she observed the defendant. The

defendant further points to inconsistencies in the testimony of Myron Kellogg and Ashley James. The

jury heard this proof, however, and apparently resolved any issues against the defendant as it was

permitted to do. Questions concerning the credibility of the witnesses, the weight to be given the

17

evidence, and any factual issues raised by the evidence are resolved by the trier of fact. State v. Davis,

141 S.W.3d 600, 611 (Tenn. 2004) (citing Bland, 958 S.W. 2d at 659); State v. Cazes, 875 S.W.2d

253, 259 (Tenn. 1994).

The defendant further asserts that the evidence was insufficient to convict him for the

victim's death under a theory of criminal responsibility. He asserts that there was no evidence

showing that he knew the victim was targeted to be killed or that he was involved in a complicity to

kill him. The proof does not support the defendant's argument.

A person is criminally responsible for the conduct of another if, "acting with intent to

promote or assist the commission of the offense, or to benefit in the proceeds or results of the offense,

the person solicits, directs, aids, or attempts to aid another person to commit the offense." Tenn. Code

Ann. § 39-11-402(2) (2003). Criminal responsibility is not a separate crime but "is solely a theory

by which the State may prove the defendant's guilt of the alleged offense, . . . based upon the conduct

of another person." State v. Lemacks, 996 S.W.2d 166, 170 (Tenn. 1999). Under the theory of

criminal responsibility, presence and companionship with the perpetrator of a felony before and after

the commission of the crime are circumstances from which an individual's participation may be

inferred. See State v. Ball, 973 S.W.2d 288, 293 (Tenn. Crim. App. 1998). No particular act need

be shown, and the defendant need not have taken a physical part in the crime. See id.

As recited above, there was sufficient evidence for the jury to conclude that the

defendant planned with others to kill the victim for the reward money and/or to avenge the rape of

Sudderth's girlfriend. The defendant was aware of the reward money, was angry that some believed

he might be the rapist, had proclaimed that someone was going to die that night, procured a weapon,

led others to the victim's location, and personally led the victim out of the house very shortly before

shots rang out and the victim was fatally shot. Jurors could have logically inferred that the defendant

through this conduct was criminally responsible for the victim's death, ultimately leading him outside

where Brown and/or Henderson actually shot him.

In summary, the proof was sufficient to sustain the defendant's first degree

premeditated murder conviction regardless whether the jury found that the defendant killed the victim

or was criminally responsible for his death.

II. Exclusion of African-Americans from Petit Jury and as Grand Jury Foreman

In his second amended motion for new trial, the defendant argued that the systematic

exclusion or under-representation of African-Americans from the petit jury and in the position of

grand jury foreman in Blount County violated his right to equal protection of the laws and to a fair

trial under the federal and state constitutions.

At a motions hearing on July 30, 2001, Mr. Tom Hatcher testified that he had been

Circuit Court Clerk for Blount County since 1994. As part of his duties, he oversaw the jury

commission responsible for selecting the juries for trials held in the circuit court. He testified that

18

potential jurors were randomly selected by computer from a database of names compiled by the

drivers' license division of the Tennessee Department of Motor Vehicles. Jury commissioners

reviewed the list of names to verify addresses and selected jurors. Mr. Hatcher stated that at the time

of the defendant's trial, two of the three jury commissioners were Caucasian, and one was African-

American. He noted that a list of jurors who actually served on each jury was retained, but not the

names of those in an initial pool. No vital statistics such as race, age, or sex, were recorded. Mr.

Hatcher testified that grand jurors were chosen in the same manner, and their names were also

retained. As to grand jury forepersons, only the names and dates of service were retained.

Defense counsel presented a compilation of information regarding the jurors who

actually served in the defendant's case. This report reflected that of the 253 people in the jury pool,

245 were Caucasian, five were African-American, two were Asian, and one was listed as "American."

This equated to 96.8 % Caucasian, 1.97 % African-American, and less than one percent Asian. Based

on a 1990 Census Bureau Report, counsel noted that the estimated African-American population of

Blount County in 1999 was 3.6 percent. Counsel concluded that the information established that

African-Americans were under-represented in the jury venire for the defendant's trial and asserted that

because of the failure to maintain records of jury venires, he was denied the ability to meet his burden

of demonstrating systematic exclusion of African-Americans from serving on petit and grand juries.

In overruling the motion for new trial, the trial court found that the evidence established that one

African-American had served as the grand jury foreperson before the defendant's trial. The court

further found that "there is no information available as to the racial makeup of the [g]rand [j]ury or

petit jury, therefore, the issue is without merit."

Before this court, the defendant maintains that the proof established under-

representation of African-Americans in the jury venire from which his petit jury was selected as well

as in the position of grand jury foreperson over the last twenty years. He cites Rose v. Mitchell, 443

U.S. 545, 99 S. Ct. 2993 (1979), in support of his claim for a new trial.

"A criminal defendant 'is entitled to require that the State not deliberately and systematically

deny to members of his race the right to participate as jurors in the administration of justice.'" Id., at

551, 99 S. Ct. at 2998 (quoting Alexander v. Louisiana, 405 U.S. 625, 628-29 (1972)). In Rose, the

Court observed that because discrimination in the selection of grand jurors "strikes at the fundamental

values of our judicial system and our society as a whole, . . . a criminal defendant's right to equal

protection of the laws has been denied when he is indicted by a grand jury from which members of

a racial group purposefully have been excluded." Rose, 443 U.S. at 556, 99 S. Ct. at 3000. The Court

assumed without deciding "that discrimination with regard to the selection of only the foreman

requires that a subsequent conviction be set aside, just as if the discrimination proved had tainted the

selection of the entire grand jury venire." Id., at 551 n.4, 99 S. Ct. at 2998 n.4.

This court has observed that a prima facie case of discrimination in the selection of

grand jury forepersons is met by satisfying a three pronged test as follows:

The first step is to establish that the group is one that is a recognizable,

distinct class, singled out for different treatment under the laws, as

19

written or as applied . . . . Next, the degree of under-representation

must be proved, by comparing the proportion of the group in the total

population to the proportion called to serve as [foreman], over a

significant period of time . . . . This method of proof, sometimes called

the "rule of exclusion," has been held to be available as a method of

proving discrimination in jury selection against a delineated class . . .

. Finally . . . a selection procedure that is susceptible of abuse or is not

racially neutral supports the presumption of discrimination raised by

the statistical showing.

State v. Hailey, 658 S.W.2d 547 (Tenn. Crim. App. 1983), perm. app. denied (Tenn. 1983) (quoting

Rose, 443 U.S. at 565, 99 S. Ct. at 3005).

In the present case, the first prong has been met. As the Court noted in Rose, "[t]here

is no question, of course, that respondents, as Negroes, are members of a group recognizable as a

distinct class capable of being singled out for different treatment under the laws." Rose, 443 U.S. at

565-66, 99 S. Ct. at 3005. Our consideration of the proof adduced at the motion hearing, however,

does not convince us that the remaining two steps have been satisfied. The testimony of the Blount

County Circuit Court Clerk reflected that no African-American had served as foreperson in the seven

years since he took office in 1994. The clerk further testified from his personal knowledge and

supporting research that an African-American had served as foreman during the 1981-1983 session.

As noted, the 1990 census report showed that the estimated percentage of African-Americans residing

in Blount County was 3.6. If the total number of years testified to by the Clerk is considered "a

significant period of time," the evidence presented reflects that at least one African-American served

as foreperson. There was no evidence of how many total forepersons served during the period or what

percentage of the total African-American population was in fact eligible to serve as grand jury

foreperson during the years considered. Nor was any evidence presented in the form of testimony of

any trial judge, court clerk, or former forepersons to shed light upon the process for selecting the

foreperson. We cannot conclude that the defendant has proven his claim by establishing that one

African-American served as grand jury foreperson during the period in question when the low

percentage of African-Americans in the overall population of Blount County is also considered.

"Where a disparity may thus be the result of 'chance or accident,' a prima facie case has not been

proven." State v. Beal, 614 S.W.2d 77, 79 (Tenn. Crim. App.), perm. app. denied (Tenn. 1981)

(quoting Rose, 443 U.S. at 571, 574, 99 S. Ct. at 3008, 3009).

The defendant further asserts that there was under-representation of African-Americans

on the jury venire from which his petit jury was chosen. A criminal defendant has a constitutional

right to a jury drawn from a venire that represents a fair cross-section of the community. "Selection

of a petit jury from a representative cross-section of the community is an essential component of the

Sixth Amendment right to a jury trial." State v. Bell, 745 S.W.2d 858, 860 (Tenn. 1988) (citing

Taylor v. Louisiana, 419 U.S. 522, 95 S. Ct. 692 (1975)). Moreover, although a defendant has no

right under the Equal Protection Clause to a "'petit jury composed in whole or in part of persons of

[the defendant's] own race,' . . . he or she does have the right to be tried by a jury whose members are

selected by nondiscriminatory criteria." Powers v. Ohio, 499 U.S. 400, 404, 111 S. Ct. 1364, 1367

20

(1991) (quoting Strauder v. West Virginia, 100 U.S. 303, 305 (1880)). In this case, the defendant

points to the fact that he was ultimately tried by 12 Caucasians. He has failed, however, to establish

discriminatory selection of jurors.

Tennessee applies the three-pronged test set forth in Duren v. Missouri, 439 U.S. 357,

364, 99 S. Ct. 664, 668 (1979), for determining whether a jury was properly selected from a fair

cross-section of the community pursuant to the Sixth and Fourteenth Amendments. State v. Buck,

670 S.W.2d 600, 610 (Tenn. 1984). Accordingly, in order to establish a prima facie violation of the

fair cross-section requirement, the defendant must show:

(1) that the group alleged to be excluded is a "distinctive" group in the

community;

(2) that the representation of this group in venires from which juries

are selected is not fair and reasonable in relation to the number of such

persons in the community; and

(3) that this underrepresentation is due to systematic exclusion of the

group in the jury-selection process.

Duren, 439 U.S. at 364, 99 S. Ct. at 668.

In the present case, the evidence showed that there were five African-Americans in the

petit jury pool. The record reveals a slight disparity between the size of the cognizable group in the

community and its representation in the jury pool. Had they been included in a number equal to their

actual percentage of representation in the community, there would have been nine rather than five

African-Americans in the jury pool. Even assuming that the under representation prong is thereby

established, however, the defendant has not shown that it was the result of systematic exclusion of

African-Americans from the jury pool. Names were selected by jury commissioners from a database

created from another database of randomly selected names registered at the State Department of

Motor Vehicles. Race and other vital statistics were not requested or recorded in the selection

process, and there was no evidence to suggest that the commissioners were otherwise made aware of

the race of potential jurors or that they thereby excluded them as members of the venire. Finally, our

supreme court observed that there is "no material difference" in selecting jury venires from lists of

registered voters versus selecting them from rolls of licensed drivers. State v. Mann, 959 S.W.2d 503,

535 (Tenn. 1997). The defendant has failed to establish that his right to be tried by a fair cross-

section of the community was violated.

III. Failure of Indictment to Charge Criminal Responsibility

The defendant asserts that his due process rights were violated through the failure of

the indictment to provide him with notice that he was being charged with criminally responsibility

for the conduct of others. The one-count indictment charged the defendant with first degree murder.

In relevant portion, the indictment specified that the defendant "did unlawfully, intentionally,

21

deliberately and with premeditation" kill the victim in violation of Tennessee Code Annotated section

39-13-202. The defendant concedes that in State v. Lemacks, 996 S.W.2d 166 (Tenn. 1999), the

Tennessee Supreme Court decided this issue adversely to his position but argues that Lemacks is

distinguishable.

The overriding purpose of an indictment is to inform the accused of "the nature

and cause of the accusation." U.S. Const. amend. VI; Tenn. Const. art. I, § 9. "[A]n indictment is

valid if it provides sufficient information (1) to enable the accused to know the accusation to which

answer is required; (2) to furnish the trial court an adequate basis for entry of a proper judgment; and

(3) to protect the accused from a subsequent prosecution for the same offense." State v. Carter, 121

S.W.3d 579, 587 (Tenn. 2003) (citing State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997)).

The indictment in this case named the defendant and informed him that he was charged

with first degree murder. More specifically, it charged premeditated murder of the victim on a date

certain in violation of the specified statute. Our supreme court has repeatedly held that an indictment

need not further allege the specific theory or means by which the State intends to prove each element

of an offense. State v. Hammonds, 30 S.W.3d 294, 300 (Tenn. 2000); Wyatt v. State, 24 S.W.3d 319

(Tenn. 2000); Lemacks, 996 S.W.2d at 172. Thus, "[a]n indictment that charges an accused on the

principal offense 'carries with it all the nuances of the offense,' including criminal responsibility."

Lemacks, 996 S.W.2d at 173. In Lemacks, the court expressly held that "to the extent that the State

sought to convict the appellee of DUI by way of criminal responsibility, the indictment was

constitutionally valid in charging only DUI." Id.

We disagree with the defendant's position that Lemacks is distinguishable in view of

the supreme court's added observation therein that "it was the appellee himself who presented

evidence which allowed the State to pursue the theory of criminal responsibility." Id. As the court

has subsequently noted, the case stands "for the proposition that an indictment which alleges all the

elements of an offense will not be held insufficient if it fails to allege the specific theory by which the

State intends to prove each element." Hammonds, 30 S.W.3d at 301. The indictment against the

defendant sufficiently alleged first degree murder, and no more was required.

IV. Aggravating Circumstance in Indictment under Apprendi

The defendant asserts that the indictment was defective and void because it failed to

charge the aggravating factor relied upon by the state to support the sentence of death. He argues that

under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and its progeny, the aggravating

factor in this case -- that the defendant had a prior violent felony conviction -- must be included in

the indictment. The defendant further asserts that because his prior conviction was not entered until

after the murder for which he was sentenced in the present case, the conviction cannot be used to

enhance the penalty to death.

Our supreme court has repeatedly rejected the defendant's argument that the state must

charge the aggravating circumstances in the indictment, beginning with its decision in State v.

Dellinger, 79 S.W.3d 458, 466-67 (Tenn. 2002), cert. denied, 537 U.S. 1090, 123 S. Ct. 695 (2002).

See also State v. Odom, 137 S.W.3d 572, 591 (Tenn. 2004); State v. Holton, 126 S.W.3d 845, 862-63

22

(Tenn. 2004); State v. Carter, 114 S.W.3d 895, 910 n.4 (Tenn. 2003). In so holding, the court in

Dellinger noted that the prior violent felony conviction aggravator was specifically excluded from

the Apprendi holding.

In State v. Berry, 141 S.W.3d 549, 559 (Tenn. 2004), the court revisited the issue at

length and reaffirmed its holding in Dellinger. In so doing, the court further concluded that

subsequent decisions extending and clarifying the application of Apprendi did not alter its holding

in Dellinger that the state is not required to charge aggravating circumstances in an indictment. See

also State v. Leach, 148 S.W.3d 42, 59 (Tenn. 2004).

Finally, the defendant contends that his aggravated robbery conviction cannot be used

to support the prior violent felony aggravating circumstance because his guilty plea and conviction

for the robbery charge were not entered until after the date of the murder in the present case. He

asserts that the robbery conviction is thus not properly considered a "prior conviction" for sentencing

purposes.

The record reflects that the aggravated robbery offense occurred on May 14, 1996.

The defendant entered a guilty plea to the aggravated robbery charge on May 16, 1997, and judgment

was entered on June 25, 1998. The victim in the instant case was murdered on April 7, 1998. The

defendant's capital sentencing hearing took place in 2000. In sentencing the defendant to death, the

jury found that the defendant had a prior conviction for a violent felony offense pursuant to Tennessee

Code Annotated section 39-2-203(I)(2). That section requires that the "defendant was previously

convicted of one or more felonies, other than the present charge, which involved the use or threat of

violence to the person." Tenn. Code Ann. § 39-2-203(I)(2) (2003).

The language in the statute, 'previously convicted' clearly indicates that

the date of the conviction, not of the commission of the crime, is the

important factor. The order in which the crimes were actually

committed is irrelevant, as long as the convictions have been entered

before the sentencing hearing at which they are introduced into

evidence.

State v. Caldwell, 671 S.W.2d 459, 465 (Tenn. 1984). In the present case, the defendant's conviction

for aggravated robbery was entered over two years before his sentencing on his first degree murder

conviction. The prior conviction was properly used to establish the (I)(2) aggravating circumstance

and to support the sentence of death.

V. Excited Utterance Testimony

The defendant argues that the trial court erred in permitting Myron Kellogg to testify

to statements made to him by Ashley James on the day after the victim's murder as "excited

utterances" pursuant to Tennessee Rule of Evidence 803(2).

Before the jury, Kellogg testified that he was with James on April 6 and that she drove

23

him home before midnight. The following morning, James returned to his house about 11:00,

"hysterical, excited," and "upset about something." On being advised that the state intended to

question Kellogg concerning the subsequent statements made by James, the court held a jury-out

hearing. At the conclusion of the hearing, the court ruled that James's statements to Kellogg made

eight to ten hours after the murder and after her arrival at Kellogg's house in a "hysterical" state,

qualified as excited utterances. Specifically, the court observed that "if what she said was true, then

that certainly would qualify as a startling event, driving around with four people planning a murder

and then hearing a gunshot." The court permitted Kellogg to testify to James's statements as to "who

she was with initially, what Homer Henderson wanted to know, and what she told him; that the four

of them got back together, . . . that she and Mr. Henderson went to Kay's," and that she heard gunshots

and then went to Knoxville.

Pursuant to the court's ruling, Kellogg testified before the jury that according to James,

she got together with Henderson, Sudderth, Brown, and the defendant after leaving Kellogg's home

the night before. Henderson wanted to know where James had dropped off the victim earlier in the

week, and James told him the Scenic Drive address. The group drove in two vehicles to Maryville.

Somewhere near the victim's home, the defendant got out of the car with James and Henderson, talked

with Sudderth and Brown and then got into their car. James stated that she and Henderson then went

to the Kay's Ice Cream "around the corner" and while there, James heard gunshots. She told Kellogg

she had seen guns before she and Henderson had separated from the other three men.

James later testified at trial. Although she testified to driving to Maryville with

Sudderth, Brown, Henderson, and the defendant after leaving Kellogg on the night of April 6, she

denied that her purpose in going with the men was to provide them with directions to the victim's

house. She agreed that Henderson had asked her if she knew where the victim lived, but she told him

that she did not. James stated that the defendant said he knew where the victim lived because he had

been there before to have speakers installed in his car and that it was the defendant who spotted the

car belonging to the victim's girlfriend in a driveway on Scenic Drive. James denied going to Kay's

Ice Cream with Henderson after they split up from the others or hearing any gunshots fired. Instead,

she testified that after leaving the other three men, she and Henderson drove to a motel in Knoxville

and checked in before midnight. She testified that she was "distresssed, disgusted, and upset" the next

morning on learning that the victim had been killed and was "still upset" when she went to Kellogg's

house and told him what had happened the night before.

The defendant argues first that James's statements do not qualify as excited utterances,

particularly in view of her subsequent inconsistent testimony. The defendant further asserts that the

state misled the trial court in arguing that James's statements were "excited utterances" in view of her

testimony that she told prosecutors a month before trial that she was at a motel in Knoxville at the

time of the murder and could not have been at Kay's Ice Cream and heard gunshots.

Pursuant to Rule 803 of the Tennessee Rules of Evidence, an "excited utterance" is

an exception to the general rule excluding hearsay evidence. Tenn. R. Evid. 803(2). In order for a

statement to be admissible under this exception, (1) there must be a startling event or condition, (2)

24

the statement must relate to the startling event or condition, and (3) the statement must be made while

the declarant is under the stress or excitement from the event or condition. Dellinger, 79 S.W.3d at

486 (citing State v. Gordon, 952 S.W.2d 817, 820 (Tenn. 1997)).

In the present case, the trial court admitted James's statements as excited utterances

based on the context and nature of the statements as testified to by Kellogg during the jury-out hearing

on the matter. Based on Kellogg's testimony, the court properly found that the gunshots that James

heard nearby shortly after parting company with her three acquaintances and knowing that they had

guns and were planning a murder qualified as a startling event. In addition, evidence that James was

"hysterical" when she arrived at Kellogg's home the next day and recounted the previous night's

events supports a finding that her statements related to the startling event and were made while she

was under the stress of the event.1 Thus, the trial court properly admitted the statements under Rule

803(2). Although portions of James's later testimony contradicted her account of the events as

testified to by Kellogg, any inconsistency goes to the issue of the credibility of James and Kellogg,

both of whom were extensively cross-examined by the defense. The trial court's decision to admit

the excited utterance when that issue was presented during Kellogg's testimony cannot be impugned

by testimony of the hearsay declarant that was not presented until later.

VI. Proposed Expert Testimony on Eyewitness Identification and Special Jury Instruction

on Eyewitness Identification

As noted, the evidence against the defendant was entirely circumstantial. The

testimony of Edna Delapp, a Caucasian woman, was critical in that it placed the defendant, an

African- American male, at the scene of the murder immediately before the victim was killed. The

defendant sought to call Professor John Brigham to testify as an expert in the area of cross-racial eye-

witness identification. He faults the trial court in refusing to permit the expert to testify at trial and,

in a related issue, in denying a special jury instruction based on the expert's proffered testimony.2 We

consider both issues here.

(a). Expert testimony

In his proffered testimony, Dr. Brigham testified that some factors influencing

eyewitness identifications are not within the common knowledge of the average citizen. He noted

studies showing that there is a lack of a relationship between a person's confidence or certainty in an

identification and its accuracy. Dr. Brigham generally testified to the process of making an

identification through the three stages of memory and the effect of reinforcement on an identification.

1

Based on James's trial testimony, the startling event which actually caused her to become hysterical was

learning the next morning that the victim had actually been killed. James said that she was "still upset" when she spoke

with Kellogg several hours later. As noted, the trial court did not hear this testimony until after ruling as set forth above.

2

This latter issue was presented by the defendant as his issue number XXI.

25

He noted studies reflecting a large percentage of misidentifications in cases in which eyewitness

identification was the predominant source of evidence. Dr. Brigham opined that his testimony

explaining the factors relevant to consideration of eyewitness identifications would give the jurors

a "frame of reference with which to weigh eyewitness identification to decide how much weight to

give it in comparison to other types of evidence." On questioning by the court, defense counsel stated

they intended to ask Dr. Brigham "general questions that are not specifically about the factors in this

case" and about cross-racial identification through a hypothetical question "about white people

identifying black people." Finding that settled case law did not permit such testimony, the trial court

declined to permit Dr. Brigham's testimony.

On appeal, the defendant concedes that since his trial, the Tennessee Supreme Court

has held that expert testimony concerning eyewitness identification does not substantially assist the

trier of fact under Tennessee Rule of Evidence 702 and is therefore per se inadmissible. See State

v. Coley, 32 S.W.3d 831, 838 (Tenn. 2000). The defendant nonetheless avers that it was reversible

error to exclude the expert testimony in his case. He asserts that "there are very important scientific

factors affecting the reliability of cross-racial eyewitness identifications that can substantially assist

the jury."

The admissibility of expert testimony is within the broad discretion of the trial court.

Its ruling will not be overturned on appeal absent an abuse of such discretion. See State v. Stevens,

78 S.W.3d 817, 832 (Tenn. 2002), cert. denied, 537 U.S. 115, 123 S. Ct. 873 (2003); Coley, 32

S.W.3d at 833.

The court in Coley explained the basis for its finding that a per se rule excluding such

expert testimony was appropriate. The court stated:

[W]e find that expert testimony concerning eyewitness

identification simply offers generalities and is not specific to the

witness whose testimony is in question. Moreover, we are of the

opinion that the subject of the reliability of eyewitness identification

is within the common understanding of reasonable persons. Therefore,

such expert testimony is unnecessary. It may mislead and confuse, and

it could encourage the jury to abandon its responsibility as fact-finder.

Such responsibility is a task reserved for and ably performed by the

jury, aided by skillful cross-examination and the jury instruction

promulgated in [State v. Dyle, 899 S.W.2d 607 (Tenn. 1995)] when

appropriate. For these reasons, we find that general and

unparticularized expert testimony concerning the reliability of

eyewitness testimony, which is not specific to the witness whose

testimony is in question, does not substantially assist the trier of fact.

Coley, 32 S.W.3d at 837-38.

26

We are unpersuaded by the defendant's attempt to distinguish Coley from the instant

case. As in Coley, the proposed expert testimony herein was on the subject of eyewitness

identification in general and was not specific to the identification of the defendant by Edna Delapp.

Further, although the defendant in his brief emphasizes "the undeniable scientific nature and

complexity of the 'own-race effect' in cross-racial eyewitness identifications," we observe that cross-

racial identification in particular was never mentioned in the witness's proffer. The trial court did not

err in ruling the proffered testimony inadmissible.

(b). Jury Instruction

The defendant requested a jury instruction on eyewitness identification that excluded

language contained in the pattern jury instruction regarding an eyewitness's "certainty" of an

identification. The trial court denied the request and charged the jury in accordance with the pattern

instruction on eyewitness identification approved in Dyle. In relevant part, the pattern instruction

informed jurors that among the factors they may consider in determining the value of identification

testimony is "the degree of certainty expressed by the witness regarding identification. "

As noted, the trial court properly excluded the proffered expert testimony because it

is per se inadmissible. Accordingly, the trial court properly denied the request for a special jury

instruction based on the same excluded testimony.

VII. Defendant's Right to Testify at Trial

Although acknowledging that this issue was not raised at trial or in his motion for new

trial, the defendant asserts that the trial court's failure to assure that the defendant in fact waived his

right to testify in his own defense constitutes plain error. The defendant seeks remand of his case to

the trial court for a hearing to determine whether the alleged violation of the defendant's right to

testify was harmless error.

Before this court may address the merits of the issue, we must determine whether it

is one of plain error -- an error which affects a substantial right of the accused and that may be noticed

at any time. See Tenn. R. Crim. P. 52(b). In State v. Adkisson, 899 S.W.2d 626 (Tenn. Crim. App.

1994), this court set forth the following factors for deciding whether an issue constitutes plain error:

(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 did not waive the issue for tactical reasons; and

27

(e) consideration of the error is "necessary to do substantial justice."

Id. at 641-42.

As our supreme court observed in Momon v. State, 18 S.W.3d 152, 157 (Tenn. 1999),

it is well-settled that the right of a criminal defendant to testify in his own defense is a fundamental

right guaranteed under the state and federal constitutions. Because the right is fundamental, it may

only be personally waived by the defendant. Id. at 161. "[T]he waiver of a fundamental right will

not be presumed from a silent record, and the courts should indulge every reasonable presumption

against the waiver of a fundamental right." Id. at 162. In Momon, the court mandated that henceforth,

in all trials, the trial court must hold a jury-out hearing during which the defendant's counsel shall voir

dire the defendant to determine that the defendant's knowing, voluntary, and intelligent waiver of his

right to testify is preserved on the record. Id. Here, the record does not reflect that an inquiry

regarding the defendant's right to testify was conducted. We therefore conclude that the trial court

erred in failing to require defense counsel to conduct an inquiry into the defendant's right to testify

under the Momon guidelines.3

In concluding that the failure to follow the guidelines of Momon constitutes plain error,

we reject the state's position that the defendant waived his right to testify for a tactical reason. The

record reflects that after the completion of testimony by defense witnesses, the defense sought to

introduce various criminal records of several state's witnesses in an effort to establish their bias, and

the state objected. Still in the presence of the jury, the court first inquired of the defense whether it

had "any other live witnesses," to which defense counsel responded it did not. The court ordered a

jury-out hearing and ruled regarding the challenged records. After a lunch recess, proceedings

continued outside the jury's presence. Defense counsel stated:

I think . . . we have arrived at the time for the Court to rule on the

State's motion -- notice that they gave us to impeach Mr. Copeland

with prior convictions. And I believe they also filed one regarding

prior bad acts. We would ask for the ruling on that at this time.

The trial court ruled that defendant's prior convictions for aggravated robbery, theft

over $10,000, and felony reckless endangerment would be admissible if he took the stand, although

evidence of a pending weapons charge would be inadmissible. Following the ruling, the jury

returned and the defendant rested its case. The state contends that under this factual background, the

record supports a determination that the defendant made a tactical decision not to testify after learning

that his prior convictions could be used against him if he did take the stand. Under Momon, however,

the defendant must be examined to ensure, at a minimum, that he "has consulted with his or her

counsel in making the decision whether or not to testify; that the defendant has been advised of the

advantages and disadvantages of testifying; and that the defendant has voluntarily and personally

3

The defendant's trial began on July 10, 2000. The Momon opinion had been filed approximately eight months

earlier, on November 15, 1999.

28

waived the right to testify." Id. In our view, the fact that the defendant was informed that his three

prior convictions would be admissible against him if he testified is not sufficient, without more, to

show that he personally made a strategic decision to waive his right to testify based on the court's

ruling. Again, we may not presume a waiver of a fundamental, constitutional right from a silent

record.

In State v. Posey, 99 S.W.3d 141 (Tenn. Crim. App. 2002), this court considered the

defendant's identical claim that the trial court erred in failing to comply with the Momon guidelines.

Noting that the record gave "no indication of what the substance of the Defendant's testimony would

have been had he testified," did not reflect "whether the Defendant desired to testify," and did not

reflect "that the Defendant personally waived his right to testify," this court concluded that it was

without sufficient information to conduct a harmless error analysis of the asserted constitutional

violation. Id. at 149. The court thus remanded the case for a determination whether the defendant

wished to exercise his right to testify on his own behalf. Id. The court further observed:

If he did, then a hearing must be held at which the State will bear the

burden of establishing that the denial of the Defendant's right to testify

on his own behalf was harmless beyond a reasonable doubt. If the trial

court concludes that the State has met its burden, the Defendant's

conviction will be sustained. However, if the State fails to prove that

the error was harmless beyond a reasonable doubt, the trial court must

vacate the Defendant's conviction and grant the Defendant a new trial.

Id.

Because a fundamental right of the defendant is involved, the failure to follow the

procedure in Momon is an error that requires a remand pursuant to Posey. We hold that, to the extent

that a remand for determining harmlessness of the error is necessary, the error should be noticed as

plain on the record. On remand, the following factors are relevant to a determination of whether the

denial of the right to testify is harmless beyond a reasonable doubt: (1) the importance of the

defendant's testimony to the defense case; (2) the cumulative nature of the testimony; (3) the presence

or absence of evidence corroborating or contradicting the defendant on material points; and (4) the

overall strength of the prosecution's case. Momon, 18 S.W.3d at 168. The cited factors are "merely

instructive and not exclusive considerations." Id.; see also Posey, 99 S.W.3d at 149.

As discussed herein, this case must be remanded for an initial determination pursuant

to Momon whether the defendant desired to exercise his right to testify in his own defense at trial and,

if necessary, for a harmless error hearing, in which the burden of showing harmlessness would rest

upon the state. James C. Breer v. State, No. W2004-01017-CCA-R3-PC (Tenn. Crim. App., Jackson,

May 20, 2005).

29

VIII. Leg Restraints

The defendant contends that being forced to wear a leg restraint during jury selection

and throughout his trial with no judicial determination of the necessity for the restraint violated his

due process rights to a fair trial. The state asserts that because the restraint was not visible, the fact

that it slightly affected his gait, without more, is insufficient to establish a due process violation.

In a pretrial motion, the defendant requested that the members of the jury pool who

witnessed him walk before them at the beginning of the jury selection process be excused and that

he not be required to wear a leg restraint at any time when he appeared before potential or actual

jurors throughout the remainder of the trial. The court held a hearing on the matter during jury

selection. The defendant testified that his left leg was restrained by a Velcro strap attached to a metal

rod that went down the side of his leg under his clothing. It was locked at the bottom of his leg. He

claimed that the restraint was visible under his pants, as if he had "a cast or something on." He stated

that the restraint made him limp, that it was generally uncomfortable, and that it caused him to make

smaller steps in an effort to avoid a "clicking sound" when he stretched his leg. The court found that

the defense table was purposely situated not more than 5 to 10 feet from the door "so [the defendant]

wouldn't have to walk very far, because his gait -- the way he walks is affected some," but that this

was not something that "anybody would notice when everybody that's walking in was walking slowly

to begin with."

Following argument, the court ruled that neither case law nor due process principles

required a hearing regarding the wearing of restraints that were not visible to the jury or the public.

The court declined to discharge the jury pool or to relieve the defendant from continuing to wear the

restraint.

Later during jury selection proceedings, defense counsel again brought up the subject

of the leg restraint, claiming that from the end seats in the jury box, the defendant's legs could be

viewed under the defense table. Counsel claimed that the brown, metal end of the restraint was

visible when the defendant's pants rode up. The discussion ended with the parties and the court

briefly discussing whether there were "skirts" available to place around the attorneys' tables in court,

but the record does not reflect that any such measure was taken. There is no dispute that the

defendant continued to wear the leg restraint throughout the trial.

The concept of due process imbedded in our state and federal constitutions guarantees

every criminal defendant a fair and impartial trial. Included in the presumption of innocence is the

defendant's right to the "physical indicia of innocence." Willocks v. State, 546 S.W.2d 819, 820

(Tenn. Crim. App. 1976) (citing Kennedy v. Cardwell, 487 F.2d 101, 104 (6th Cir. 1973), cert. denied

sub nom. Kennedy v. Gray, 416 U.S. 959, 94 S. Ct. 1976 (1974)). The rule that a prisoner brought

into court for trial is entitled to appear free from all bonds or shackles is an important component of

a fair and impartial trial, and shackles should never be permitted except to prevent the escape of the

accused, to protect everyone in the courtroom, and to maintain order during trial. Kennedy, 487 F.2d

at 105 (citing Woodards v. Cardwell, 430 F.2d 978, 982 (6th Cir. 1970)).

30

In holding that in-court shackling is inherently prejudicial, this court has agreed that

"there should be a legal presumption against the necessity of in-court restraint, with the burden falling

on the state 'to show the necessity of any extreme physical measures.'" Willocks, 546 S.W.2d at 821

(quoting Kennedy, 487 F.2d at 107). In the present case, there was no showing at the outset that it

was necessary to restrain the defendant. We nonetheless conclude that the defendant has failed to

show an abuse of discretion in the trial court's failure to reach the issue because the defendant has not

demonstrated that the type of leg restraint in this case falls within the same category as the obvious

shackles, manacles, and gags found objectionable in Willocks and the cases cited therein. Other than

the trial court's finding that the restraint worn under his clothing affected the defendant's gait in that

it caused him to walk more slowly, the record before us is devoid of any proof that the restraint was

in fact visible to jurors or that they were aware that he was restrained at all.

Generally, the trial court, which has presided over the proceedings, is

in the best position to make determinations regarding how to achieve

[the] primary purpose [of ensuring a fair trial], and absent some abuse

of the trial court's discretion in marshalling the trial, an appellate court

should not redetermine in retrospect and on a cold record how the case

should have been better tried.

State v. Franklin, 714 S.W.2d 252, 258 (Tenn. 1986).

Finally, the defendant has submitted supplemental authorities in support of his

argument, including the recent decision of the United States Supreme Court in Deck v. Missouri, __

U.S. __, 125 S. Ct. 2007 (2005). Therein, the capital defendant at his resentencing hearing was

shackled with leg irons, handcuffs, and a belly chain visible to the jury over the defense's strenuous

objections. The jury sentenced the defendant to death for the second time. The Court began by noting

that the "law has long forbidden routine use of visible shackles during the guilt phase" of a criminal

trial, permitting them "only in the presence of a special need." Id. at __, 125 S. Ct. at 2010.

Observing that the jury's decision during the penalty phase is equally as important as its determination

of the defendant's guilt, the Court held that "courts cannot routinely place defendants in shackles or

other physical restraints visible to the jury during the penalty phase of a capital proceeding." Id. at

__, 125 S. Ct. at 2014. The Court reversed and remanded the case for further proceedings. Returning

to the instant case, we observe that the significant factor distinguishing Deck is the lack of a showing

from the record before us that the leg restraint worn by the defendant throughout his trial was in fact

at any point visible to the jury. Absent such a showing, the defendant cannot prevail on this issue.

Upon our review of the record, the defendant has failed to establish that the trial court

abused its discretion in ordering that he wear a concealed leg restraint at trial.

IX. Motion for Continuance

The defendant avers that the trial court erred in refusing to grant his motion for a

continuance based on his assertion that the state failed to disclose a number of its witnesses until less

31

than thirty days before trial was set to begin. In addition, the defendant points to the fact that only

a week before the trial, the state also indicted Mr. Sudderth, Mr. Henderson, and Mr. Brown for

murder and conspiracy in the victim's death.

After several earlier continuances, jury selection was set to begin on July 10, 2000.

Before that time, on July 5, the defense moved to strike all witnesses provided by the state in an

untimely manner. The court heard argument on July 7. The defendant asserted that between June 2

and July 5, the state first began issuing subpoenas and providing to the defense lists of witnesses.

While acknowledging that the defense was already aware of some of these witnesses, it claimed many

were a complete surprise and left the defense without time to investigate or interview them. The

defense asserted that its preparations were further complicated when on June 30, the state indicted

three other persons, Mr. Sudderth, Mr. Henderson, and Mr. Brown, for murder and conspiracy in the

victim's death. In response, the state asserted that many witnesses in the case were reluctant to come

forward, and it had provided lists of their names and addresses to the defense as that information was

received. The court denied a continuance, finding that the state had done what was required of it and

sometimes more, that the state could choose to continue its investigations and pursue leads at the

eleventh hour, and that the parties had had nearly two years to prepare their cases.

[I]t has always been the rule in this State that a trial judge will not be

put in error for denying a continuance unless it is shown that he has

abused his discretion in doing so, because the granting or denying of

a continuance is a matter which addresses itself to the sound discretion

of the trial judge.

Moorehead v. State, 409 S.W.2d 357, 358 (Tenn. 1966) (citing Bass v. State, 191 Tenn. 259, 231

S.W.2d 707 (1950)). An abuse of discretion is demonstrated by showing that the failure to grant a

continuance denied the defendant a fair trial or that it could be reasonably concluded that a different

result would have followed had the continuance been granted. State v. Hines, 919 S.W.2d 573, 579

(Tenn. 1995) (citing State v. Wooden, 658 S.W.2d 553, 558 (Tenn. Crim. App. 1983)). "The burden

rests upon the party seeking the continuance to show how the court's action was prejudicial. The only

test is whether the defendant has been deprived of his rights and an injustice done." State v.

Goodman, 643 S.W.2d 375, 378 (Tenn. Crim. App. 1982) (citing Baxter v. State, 503 S.W.2d 226,

228 (Tenn. Crim. App. 1973)). In the context of an alleged late disclosure of witnesses, "it is not the

prejudice which resulted from the witnesses' testimony but the prejudice which resulted from the

defendant's lack of notice which is relevant to establish prejudice." State v. Kendricks, 947 S.W.2d

875, 883 (Tenn. Crim. App. 1996) (citing State v. Jesse Eugene Harris, No. 88-188-III (Tenn. Crim.

App, Nashville, June 7, 1989)).

In this case, the defendant offers nothing to support his conclusion that the denial of

a continuance in this cause "clearly was prejudicial to the defense." The defendant complains, for

example, that the "most devastating" witnesses against him, Myron Kellogg, Ashley James, and

Tyrone Haley, were first disclosed about 10 days before trial, but he does not show whether or how

this notice affected his trial preparations. The record reflects that James met with the defense on July

32

6 and refused to discuss the case with them. On cross-examination, Kellogg acknowledged that he

knew an effort was being made to serve him with a subpoena and that defense counsel wanted to

speak with him a few weeks before trial, but he stated that he had "been busy." Similarly, Haley

acknowledged that he had agreed to talk with the state but not the defense because the state was

working on behalf of his friend, the victim. The record further reflects that counsel extensively cross-

examined each of these witnesses and vigorously attempted to impeach them. In short, with respect

to these and any other challenged witnesses, "the defendant has failed to show what more he could

or would have done had he known about [the witnesses] earlier." Kendricks, 947 S.W.2d at 883.

X. Photographic Lineup

The defendant contends that the trial court erred in failing to suppress the photographic

lineup identification of the defendant by state's witness Edna Delapp. He asserts that the method used

to conduct the photographic lineup was so impermissibly suggestive that it gave rise to a substantial

likelihood of misidentification in violation of his due process rights.

At a hearing on the defendant's motion to suppress, Detective Manuel testified that

he transported Edna Delapp and her daughter to the police station to interview them between 2:00

a.m. and 3:00 a.m., just after the murder. According to Detective Manuel, Delapp described the man

who came into her home as a "black male, five-ten, five-eleven, wild-looking hair," "tall, with

ponytails of hair sticking up,"and wearing a dark-colored coat. She did not note any other distinctive

characteristics such as scars or facial hair. Detective Manuel explained that during the hours after the

murder, investigators "developed" the defendant as a possible suspect. Detective Manuel contacted

the Blount County Sheriff's Department and requested that they create a photographic array including

a photograph of the defendant and people similar in appearance to him. Delapp returned to the

police station and was shown a black and white copy of the color-photographic array prepared by the

sheriff's department. Detective Manuel estimated that within five minutes, Delapp identified the

defendant as the man she had seen in her home. He testified that the witness was always told that the

person he or she had observed may or may not appear in an array, and that one should not identify

anyone if one were not sure. He stated that no one was suggested to Delapp as being the suspect. He

further stated that he was certain that he told Delapp after she identified the defendant that he was in

fact the person that police considered a suspect in the victim's murder. Detective Manuel further

testified that he did not recall whether Stephanie Delapp was with her mother during the photographic

line-up. He recalled that at that time, Edna Delapp had received treatment for her eye injury and did

not appear to be in any obvious pain or under the influence of any kind of medication or drugs.

The court further heard from Edna Delapp that she recognized the defendant from the

photographic array and that she had no doubt whatsoever that he was the person who knocked on her

door and came into her house earlier that morning. She noted that she initially observed the person

from about one foot away when she answered the door, and then she got a better look at him in the

hallway as they stood face-to-face when he and the victim came up the stairs to exit the house.

Delapp noted that she had also met Mr. Knighton the day before and believed that his photograph

"possibly" appeared in the array she viewed. In denying the motion to suppress, the trial court found

33

that the procedure utilized by Detective Manuel was not suggestive and ruled that both the out-of-

court and in-court identifications of the defendant were thus admissible.

"[C]onvictions based on eyewitness identification at trial following a pretrial

identification by photograph will be set aside on that ground only if the photographic identification

procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of

irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971

(1968). Following Simmons, the Court in Neil v. Biggers, 409 U.S. 188, 198-99, 93 S. Ct. 375,

381-82 (1972), established a two-part analysis to assess the validity of a pre-trial identification. First,

the trial court must determine whether the identification procedure was unduly suggestive. Id. at 198,

93 S. Ct. at 381-82. Next, if the trial court determines that the identification was unduly suggestive,

it must then consider whether, under the totality of the circumstances, the identification procedure was

nonetheless reliable. Id. at 198-99, 93 S. Ct. at 382.

Applying the first prong of the test, we conclude that the record supports the trial

court's finding that the identification procedure was not suggestive. There was nothing improper in

the photographic array itself. The black and white array included photographs uniform in size of six

young African American males with similar, braided hairstyles. Except for one person, all, including

the defendant, wore dark-colored tee shirts. Moreover, the witness observed the defendant as he

entered and left her home that morning and once stood face-to-face with him. She was able to

provide a description to police within two hours of the victim's murder. There was nothing to indicate

that anyone suggested the defendant to her as the suspect. She stated that she did not recognize

anyone pictured other than the defendant and "possibly" Chris Knighton. She stated she took several

minutes to view the photographs to be sure she did not make a mistake and had no doubt of her

identification of the defendant as the person she saw shortly before the victim's murder. In view of

our conclusion that there was nothing suggestive about the procedure by which the witness identified

the defendant, we need not reach the question of whether the identification was "nonetheless reliable"

under the second prong of the Biggers test.

XI. Informing Jurors of Indictment of Others

During voir dire, the trial court informed prospective jurors of the fact that Stacey

Sudderth, Homer Henderson, and David Brown had also been recently charged in the victim's murder.

The nature of the court's similar remarks to each group of prospective jurors was as follows:

The indictment charges that on the 7th of April, 1998, here in Blount

County, at 1614 Scenic Drive in Maryville, which is out in West

Maryville, Mr. Copeland premeditatedly killed Mr. Robert Andre

Jackson. Now, there have also been, in the paper of late, some articles

about new indictments charging Mr. Stacey Sudderth and Mr. Homer

Henderson and Mr. David Bella Brown with conspiracy to murder and

murder of this same Mr. Jackson. And I understand that some of the

newspaper articles have had some information about this charge

34

against Mr. Copeland, all of it intermingled in the paper. And the

reason I'm mentioning that, not because those cases are going to be

tried today, but to see if you read any of those articles or have heard

any talk about these cases, know anything about it at all.

The defendant contends that by informing jurors that others had been indicted for

conspiracy in the victim's murder, the trial court deprived him of one of his indicia of innocence. The

defendant suggests that the trial court could have instead accomplished its intended purpose by simply

asking the jurors whether they knew or knew of Mr. Sudderth, Mr. Henderson, or Mr. Brown. As the

state notes, the defendant makes no effort to explain how he was prejudiced by the trial court's

remarks from which jurors could reasonably infer that others may have been involved in or

responsible for the victim's death.

Our supreme court has noted that "although questions regarding the content of any

publicity to which jurors have been exposed may be helpful in assessing whether a juror is impartial.

However, such questions are not constitutionally required, and a trial court's failure to ask such

questions is not reversible error, unless the defendant's trial is thereby rendered fundamentally unfair."

Cazes, 875 S.W.2d at 262. In our view, the reverse is also true; that is, that the trial court was not

prohibited from inquiring whether prospective jurors were aware through pre-trial newspaper articles

that others had been indicted in the victim's murder in an effort to assess their impartiality. "The

ultimate goal of voir dire is to see that jurors are competent, unbiased, and impartial, and the decision

of how to conduct voir dire of prospective jurors rests within the sound discretion of the trial court."

State v. Howell, 868 S.W.2d 238, 247 (Tenn. 1993); State v. Harris, 839 S.W.2d 54, 65 (Tenn. 1992);

State v. Simon, 635 S.W.2d 498, 508 (Tenn. 1982). The trial court's actions will not be disturbed

unless clear abuse of discretion is shown." Harris, 839 S.W.2d at 65. In the present case, the record

reflects no abuse of discretion in the trial court's voir dire of prospective jurors.

XII. Change of Venue

The defendant submits that the trial court abused its discretion in denying his motion

for change of venue in light of evidence that one-third of the sixty-five prospective jurors, four of

whom actually served on the jury, indicated during voir dire that they had been exposed to pretrial

publicity about the case or personally knew one or more witnesses or other persons associated with

the trial. The defendant further noted that at the defendant's preliminary hearing, "a number of

individuals . . . showed up wearing sympathetic T-shirts with photographs of Mr. Jackson." The trial

court overruled the motion after first taking it under advisement "to see if any problems develop in

selecting the jury" with respect to any pretrial publicity.

The trial court has the discretion to determine whether to grant a change of venue.

Its decision will be reversed only for a clear abuse of discretion. State v. Davidson, 121 S.W.3d 600,

611-12 (Tenn. 2003) (citing Dellinger, 79 S.W.3d at 481). "Moreover, before a conviction will be

reversed for the trial court's failure to grant a change of venue, an accused must establish 'that the

jurors who actually sat were biased and/or prejudiced.'" Id. at 612 (quoting Dellinger, 79 S.W.3d at

35

481); see also State v. Mann, 959 S.W.2d 503, 532 (Tenn. 1997); State v. Melson, 638 S.W.2d 342,

361 (Tenn. 1982).

As the defendant suggests, the record reflects that numerous prospective jurors noted

during voir dire that they were exposed to pre-trial publicity or knew someone associated with the

defendant's case. However, "[t]he mere exposure of jurors to newspaper publicity is not constitutional

error." Lackey v. State, 578 S.W.2d 101, 103 (Tenn. Crim. App. 1978) (citing Murphy v. Florida, 421

U.S. 794, 95 S. Ct. 2031 (1975)). "One who is reasonably suspected of a serious crime cannot expect

to remain anonymous." Id. (citing Dobbert v. Florida, 432 U.S. 282, 97 S. Ct. 2290 (1977)). Without

more, the defendant has failed to meet his burden of establishing actual bias or prejudice of any of

the jurors who actually heard his case. Based on our own examination of the voir dire of the four

jurors specifically referenced by the defendant, we conclude that the record fails to establish any such

bias or prejudice. Regarding the questioning of Jurors Price, Lindsey, Arendt, and Webb, the record

reflects that only Juror Price recalled hearing about the case and further noted that a friend of his was

a possible witness. The other three jurors could recall nothing concerning the defendant's case in

articles regarding pending trials. Further, as the state correctly notes, the defendant neither questioned

these jurors concerning pretrial publicity nor challenged them for cause. The defendant has shown

no abuse of discretion in the trial court's failure to order a change of venue.

XIII. Testimony Regarding Lighting Conditions at Crime Scene

The defendant asserts that it was error to allow Maryville Police Lieutenant David

Graves to testify regarding the lighting conditions at the Delapp home based on his observations from

a visit to the home two years after the murder. The defendant asserts the testimony was irrelevant and

prejudicial in that it served only to bolster the eyewitness identification of the defendant by Edna

Delapp.

Relevant evidence is evidence "having any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less probable than it would

be without the evidence." Tenn. R. Evid. 401. "All relevant evidence is admissible except as

provided by the Constitution of the United States, the Constitution of Tennessee, these rules, or other

rules or laws of general application in the courts of Tennessee. Evidence which is not relevant is not

admissible." Tenn. R. Evid 402. Questions regarding the relevancy of evidence are entrusted to the

sound discretion of the trial court, and a trial court's ruling on evidence will be disturbed only upon

a clear showing of abuse of discretion. State v. Robinson, 146 S.W.3d 469, 490 (Tenn. 2004).

At trial, Lieutenant Graves testified that one morning in July 2002, before the trial

began, he went to the Delapp home at about 2:00 a.m. His purpose was "to see whether or not you

could see well enough to identify a person from the small watt bulbs that she kept inside her home."

He stated he had Edna Delapp "turn on the lights to where they were in the past," noted that the light

bulbs were all 25-watts, and then observed Detective Manuel from varying distances.

During a jury-out hearing, Lieutenant Graves further testified that he stood in the

36

hallway where there was one light at the head of the stairs because this was the location where Ms.

Delapp had reported that she had best observed the defendant. He testified that he was "surprised"

to find that he had "no problems identifying [Detective Manuel] and seeing features." Following

objections by the defense and argument by counsel, the court ruled that "proof about the general

amount of light in an area where a critical identification has been made is clearly probative." The

court permitted Lieutenant Graves to testify to the lighting conditions in the home and what he was

able to see but disallowed questions as to whether Ms. Delapp could have identified someone under

those conditions.

Based on our review of the record, we cannot conclude that the trial court "applied an

incorrect legal standard, or reached a decision which is against logic or reasoning that caused an

injustice to the party complaining." State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997) (defining a

standard for abuse of discretion in admitting evidence). Prior to the testimony of Lieutenant Graves,

the defendant cross-examined Ms. Delapp regarding the lighting conditions under which she observed

the person whom she later identified as the defendant. The trial court concluded that Lieutenant

Graves's testimony about the general lighting conditions in the home and visibility under those

conditions was probative regarding Ms. Delapp's identification of the defendant. On cross-

examination, the defense elicited testimony from Lieutenant Graves that he had good vision, had

worked with Detective Manuel, his subject during the lighting "experiment," and had seen him on an

almost daily basis for the previous sixteen years. As the trial court correctly observed, the jury could

properly determine what weight, if any, to give the challenged testimony. No abuse of discretion has

been shown on appeal.

XIV. Improper Closing Argument at Trial

The defendant challenges portions of the prosecution's closing argument during the

guilt phase as improper and prejudicial in violation of his constitutional rights to due process and a

fair trial. He asserts that at various stages in their argument, prosecutors improperly vouched for the

credibility of witnesses, denigrated defense counsel, misstated evidence, implied that defense counsel

were attempting to mislead the jury, improperly argued in favor of a guilty verdict based on general

deterrence, and argued facts not in evidence.

As the state correctly observes, the defendant failed to offer any objection to the

challenged portions of the argument at trial. The failure to make a contemporaneous objection

constitutes a waiver of the issue on appeal. Appellate relief is generally not available when a party

has "failed to take whatever action was reasonably available to prevent or nullify the harmful effect

of any error." Tenn. R. App. P. 36(a); State v. Leonard Dale Kincer, No. M2004-01403-CCA-R3-

CD, slip op. at 19 (Tenn. Crim. App., Nashville, May 11, 2005); see State v. Sims, 45 S.W.3d 1, 16

(Tenn. 2001); Carruthers, 35 S.W.3d at 580.

XV. Improper Closing Argument at Sentencing

The defendant avers that prosecutors improperly invited jurors to impose a sentence

37

of death based on factors other than the aggravating and mitigating circumstances established by the

evidence. Again, the state correctly contends that the defendant has waived this issue by his failure

to contemporaneously object to the prosecutor's statements during closing argument. See Tenn. R.

App. P. 36(a).

XVI. Prosecutorial Misconduct as to Witness's Assertion of Fifth Amendment Privilege

The defendant alleges that the prosecutor prevented the defendant from impeaching

witness Myron Kellogg in violation of the defendant's right of confrontation by advising the witness

of his right against self-incrimination only after the state had completed its direct examination.

After the state's direct examination of Mr. Kellogg and a recess, the following

discussion occurred:

Mr. Bailey [Prosecutor]: Your Honor, may we approach?

Mr. Reed [Defense Counsel]: Your Honor, could we ask the witness

to step out. I don't want the witness to hear what he tells me.

The Court: What were you wanting to approach about?

Mr. Bailey: I was wanting to ask the Court --

Mr. Reed: Well, Your Honor, I don't want the witness to hear what

he's going to --

The Court: Wait, wait, wait.

Mr. Reed: The witness is going to hear it –

The Court: Be quiet. What is the subject of what you want to talk

about without telling me what you want to say about it?

Mr. Bailey: Fifth Amendment.

The Court: Okay. And you don't want him to hear any talk about

that?

Mr. Reed: I don't. Too late.

Following this exchange, the trial court declined to administer a Fifth Amendment-

based admonition to the witness. The defense vigorously and thoroughly cross-examined him. The

witness invoked his Fifth Amendment privilege in response to questions about his drug dealings.

38

We conclude that, in context, the invocation of the Fifth Amendment privilege

hampered the defendant's exploration of only collateral issues, and moreover, the defendant's counsel

was able to effectively pursue his lines of cross-examination and elicited from Mr. Kellogg a plethora

of details about his drug dealing activities, including facts supporting an inference that Mr. Kellogg

received prosecutorial forbearance in exchange for his testimony against the defendant. Essentially

then, the defendant's claim of prejudice from the witness's mid-testimony perception of his privilege

not to incriminate himself, even if prompted by the prosecutor's comment, is not supported in the

record.

XVII. Prosecutorial Misconduct - Hindering Access to and Cooperation of Witness

The defendant asserts that the ability of defense counsel to effectively defend him was

hampered by the misconduct of prosecutors in purposely denying defense counsel access to the state's

most crucial witness, Ashley James, and in advising her not to talk with them.

The defendant relies on an affidavit by a private investigator, Ron Lax, who

interviewed James after the defendant's trial had ended. According to Lax, James told him that she

was "forced" to testify at the defendant's trial and that prosecutors had told her that "it would be in

[her] best interest not to talk to the defense attorneys." The defendant further asserts that James was

not disclosed as a state's witness until late June 2000 and went under the protection of the sheriff's

office in early July where the state actively concealed her location, making it impossible for the

defense to locate and interview her in the two-week interim.

Blount County Detective Bill Manuel testified that in the weeks before trial, Ms. James

feared for her own safety. She requested and was provided protection by the sheriff's department.

She was housed at motels in Knox and Loudon counties, accompanied by a deputy who stayed in an

adjoining room. Detective Manuel further stated that deputies did not try to "control" Ms. James; she

could freely come and go, she made telephone calls, received visitors and initially continued to work,

with the deputy coming with her to and from her job site. Before trial, the prosecutors arranged a

meeting in a conference room of the district attorney general's office between Ms. James and defense

counsel. James, however, declined to speak with defense counsel. In post-trial testimony, James was

questioned regarding what she reported to Investigator Lax and another investigator who interviewed

her following the trial:

Q: Did you tell those two private investigators that Mr. Bailey and

Ms. Andrews told you that it would be in your best interest not to talk

to the defense attorneys of Mr. Copeland?

A: No. They told me I did not have to speak to anyone I didn't want

to.

Q: So, you were never told not to talk to us?

39

A: No. I was told you don't have to. That's it.

The trial court found, based on the post-trial testimony of James, there was no issue

raised by the affidavit of Ron Lax that warranted a new trial:

The court finds that Ashley James was not told by the

prosecutors that it would be in her best interests not to talk to the

defense attorneys. The court further finds that Ms. James was told by

the prosecuting attorneys that she could speak with whomever she

wished, but she was not required to speak with anyone.

This court has said,

"An assessment of the witnesses' credibility by the trial court is

essential in order for the trial court to determine whether the evidence

is likely to change the result of the trial. The trial court may determine

the credibility of any newly discovered evidence, and if the court

concludes that the evidence would not be worthy of belief by the jury,

the court should deny the motion for new trial."

State v. Bowers, 77 S.W.3d 776, 784 (Tenn. Crim. App. 2001). In the present case, the trial court

credited Ashley James's post-trial testimony that prosecutors did not advise her not to speak with

defense counsel.

Upon our review of the record, we find no abuse of discretion in the trial court's ruling.

There is no indication that Ms. James would have agreed to an interview with defense counsel before

the defendant's trial. Without such a showing, the defendant cannot establish that he was prejudiced

by his inability to locate or interview her. Moreover, the defendant is unable to provide any authority

showing a legal requirement that the state make James available to the defense. "Tennessee case law

. . . gives a prospective witness the discretion to talk -- or not to talk -- to either counsel, as the

witness sees fit. Of course, the law also provides that counsel may not instruct a witness not to

discuss the facts of a case with opposing counsel." State v. Singleton, 853 S.W.2d 490, 493 (Tenn.

1993); see also Gammon v. State, 506 S.W.2d 188, 190 (Tenn. Crim. App. 1973). In this case, the

defendant cannot establish his claim that the state actively hindered his access to James because,

despite having no obligation to do so, the state arranged a pre-trial meeting between James and

defense counsel. At this meeting, however, James exercised her privilege not to speak with defense

counsel. Although "a defendant is entitled to have access to any prospective witness, . . . such right

of access may not lead to an actual interview. . . . The importance of the rights of access is somewhat

tempered by the witness's equally strong right to refuse to say anything." Singleton, 853 S.W.2d at

493 (citing United States v. Scott, 518 F.2d 261, 268 (6th Cir. 1975)).

The defendant failed to establish that prosecutors purposely denied access to or

cooperation by Ashley James, thereby hindering his pre-trial preparation of his case. On the record

40

before us, we cannot conclude that the trial court erred in overruling his motion for new trial based

on this issue.

XVIII. Discovery Violations

The defendant asserts that the state failed to provide to the defense a transcript of

witness Myron Kellogg's prior statement to law enforcement authorities in accordance with Tennessee

Rule of Criminal Procedure 26.2. He concludes that he is entitled to a new trial.

Rule 26.2 requires disclosure of a witness's prior statement, commonly referred to as

"Jencks material," when the statement "relates to the subject matter concerning which the witness has

testified." Tenn. R. Crim. P. 26.2(a). In the present case, the state provided Jencks material

consisting of a three-page summary of information provided in January 2000 by Mr. Kellogg, in his

capacity as a confidential informant, to District Drug Task Force Agent Ronnie Talbott as related to

FBI Agent Juanita Walls. The heading of the document notes that "[o]nly information related to the

murder of Andre Jackson is contained herein." During Mr. Kellogg's testimony at trial, the prosecutor

characterized the Jencks material provided to the defense as being the witness's statements "about this

area of Mr. Kellogg's testimony." At that point in his direct examination, Mr. Kellogg was testifying

concerning Ms. James's excited utterance. Although Agent Talbott testified that he had a transcript

of his entire three-day interview with Mr. Kellogg in his office, the record does not reflect any attempt

by the defense to have the complete transcript produced for further examination and a determination

by the trial court of whether portions of the statement were appropriately withheld. See Tenn. R.

Crim. P. 26.2(c).

As a result of his failure to seek the complete transcript, the defendant failed to place

either the trial court or this court in a position of being able to determine whether any more of Mr.

Kellogg's statement than that portion provided in exhibit 83 was related "to the subject matter

concerning which the witness . . . testified" pursuant to Rule 26.2. Accordingly, the court concludes

that the issue is waived. See Tenn. R. App. P. 36(a).

XIX. Prosecutorial Misconduct - Coaching Witness's Testimony

The defendant argues that his due process rights, right to effective assistance of

counsel, and right of confrontation were violated when a prosecutor improperly conferred with,

advised, and coached testimony by witness Ashley James. The defendant further asserts that such

conduct calls into question the good faith of the prosecution and should thus be considered as

exculpatory evidence which the state failed to reveal to the defense during trial in violation of Brady

v. Maryland.

The defendant asserts that he first learned of the alleged coaching of Ms. James at a

post-trial hearing in the defendant's case. The defendant contends that in her cross-examination of

Ms. James at the post-trial motion hearing, an assistant district attorney admitted that during a break

following Ms. James's jury-out testimony she met privately with Ms. James and instructed her

41

regarding the emotions she should display during her testimony before the jury. We include the

following relevant excerpts of Ms. James's testimony at the post-trial hearing.

On direct examination, defense counsel questioned the witness regarding her meeting

with two private investigators in April 2001, after the defendant's trial:

Q: During the course of talking to them, did you tell either of the

private investigators that prior to your testimony in Mr. Copeland's

case that you rehearsed and practiced your testimony on two occasions

with prosecutors, Ms. Kirk Andrews and Mr. Bailey, who isn't here

today?

A: I told them that we went over things and we met several times to

discuss, but I told them that they didn't tell me what to say, as they

were trying to -- they were trying to make it seem like they told me

what to say.

Q: Did you tell those two gentlemen that prior to your testimony at

Mr. Copeland's trial that you were told by the prosecuting attorneys

what emotions to show during your testimony?

A: They told me to try to show a little bit more emotion instead of

being so angry and uptight and rude to whoever was questioning me.

Q: Did you tell either of those gentlemen that Ms. Andrews asked you

to cry during your testimony?

A: She told me to try to show a little bit more emotion than I was.

Q: But did you tell those gentlemen that she asked you to cry?

A: I could have told them anything. I was ready to go home.

Q: Are you telling me that you don't remember exactly what you told

them?

A: I don't remember exactly what I told them, but I could have told

them that.

....

Q: Did you tell -- now, I'm not asking you if this is true or not, but

did you tell the private detectives that Mr. Bailey and Ms. Andrews

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wanted you to testify to what Myron [Kellogg] said that you had

told him instead of what you remembered had happened?

A: I believe I told them that we went over it several times and they

kept asking me things that Myron had said, but they didn't try to

make me change my story to what Myron had said.

Q: So, you wouldn't have told the two detectives that you were told

by Mr. Bailey or Ms. Andrews to change your testimony to what

Myron said?

A: I may have told them anything. They weren't anybody special to

me. I could have told them anything.

Q: Well, are you saying that what you told them wasn't necessarily

true?

A: Who, the private investigators?

Q: Yes, ma'am. Yes, ma'am.

A: I could have told them several lies. I wasn't under oath.

On cross-examination by the prosecutor, Ms. Andrews, Ms. James further testified as follows:

Q: There was a jury-out hearing during the trial of Mr. Copeland

where I took you back into that little room, isn't that true, and Mr.

Reed had been questioning you; do you remember that?

A: Yes, ma'am.

Q: And when I told you not to be rude and angry, I told you also that

underlying anger a lot of times is sadness and fear; isn't that true?

A: Yes, ma'am.

Q: And I told you if you were going to show emotion, to show the

sadness and not the anger, isn't that true?

A: Yes, ma'am.

Q: And I told you not to be rude; isn't that true?

43

A: Yes, ma'am.

Initially, the court notes that the defendant has offered no citation to authority

specifically supporting his position that prosecutors' alleged "coaching" of Ms. James establishes a

due process violation or a violation of the defendant's Sixth Amendment right to counsel. The

primary focus of the defendant's argument appears to be that the claimed conduct violates Tennessee

Rule of Evidence 615. The Rule applies to the sequestration of witnesses at trial and provides that

the court "shall order all persons not to disclose by any means to excluded witnesses any live trial

testimony or exhibits created in the courtroom by a witness." The defendant submits that permitting

prosecutors to confer with Ms. James before she began testifying in the presence of the jury to "give

pointers to the witness and improve on [her] testimony" defeats the purpose of Rule 615.

On review of the record, this court concludes, as did the trial court, that the alleged

"coaching" consisted essentially of the prosecutor discussing with Ms. James her demeanor on the

witness stand and advising her to curb her anger and avoid being rude. Even if the prosecutor's advice

was properly characterized as "coaching," it certainly was not egregious. Further, there is no evidence

in the record establishing that the defendant was prejudiced as a result of the prosecutor's discussion

with her witness. That is, nothing in the record reflects any notable display of emotion or that Ms.

James in fact cried while testifying, as the defense suggests she was prompted to do. Moreover,

nothing in our review of Ms. James's testimony indicates that any information from the testimony of

other witnesses was imparted to Ms. James by the prosecutor.

Last, the defendant asserts that the coaching of Ms. James hampered his ability to

impeach Ms. James through cross-examination because the coaching was not revealed to the defense

during James's testimony at trial. The defendant submits that the coaching is properly considered

exculpatory information which the state was required to disclose to the defense under Brady v.

Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). In Brady, the United States Supreme Court held that

"the suppression by the prosecution of evidence favorable to an accused upon request violates due

process where the evidence is material either to guilt or to punishment, irrespective of the good faith

or bad faith of the prosecution." Id. at 87, 83 S. Ct. at 1196-97. Further, "[t]he Court has specifically

held that evidence impeaching a government witness's credibility may be exculpatory within the

meaning of Brady. 'When the reliability of a given witness may well be determinative of guilt or

innocence, nondisclosure of evidence affecting credibility falls within this general rule.'" Hartman

v. State, 896 S.W.2d 94, 101 (Tenn. 1995) (quoting Giglio v. United States, 405 U.S. 150, 154, 92

S. Ct. 763, 766 (1972)). In the present case, however, the defendant has not established that failing

to disclose their discussion with James just before she testified before the jury constitutes evidence

"favorable to [the] accused" under Brady. That is, the defendant has failed to cite to any portion of

Ms. James's testimony to show when and/or how his earlier knowledge of the prosecutor's conduct

with the witness could have been used by him to impeach Ms. James on cross-examination.

Furthermore, the defendant has made no showing of prejudice resulting from the lack of such

knowledge.

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XX. Introduction of Photographs

The defendant challenges the admission into evidence of Exhibit 40, a photograph of

the victim taken in the examination room before the victim's autopsy. He asserts that other, less

graphic photographs were available and that this particular photograph served only to inflame and

prejudice the jury against him.

Before the medical examiner testified, the prosecutor noted that the state intended to

introduce several photographs of the victim taken prior to his autopsy. The photographs of the victim

lying on an examination table are taken from various angles and include close-up views of the areas

surrounding his three gunshot wounds. Exhibit 40 shows the victim from the chest up, with trails of

blood leading from his mouth and nose, and portions of his white tee-shirt being blood-soaked. On

viewing and admitting that photograph, the trial court in allowing the photograph commented that "as

pictures of dead people go, I don't think that's worse than any others I've seen, really. So it shows

blood and the general condition of the body."

In State v. Cole, the Tennessee Supreme Court reviewed the law generally

governing the admissibility of photographic evidence at trial. The court observed:

Tennessee courts follow a policy of liberality in the admission

of photographs in both civil and criminal cases. Accordingly, "the

admissibility of photographs lies within the discretion of the trial court

whose ruling . . . will not be overturned on appeal except upon a clear

showing of an abuse of discretion." However, a photograph must be

found relevant to an issue that the jury must decide before it may be

admitted into evidence.

Photographs of a corpse are generally admissible in murder

prosecutions if they are relevant to the issues at trial, notwithstanding

their gruesome character. Conversely, evidence which is not relevant

to prove some part of the prosecution's case should not be admitted

solely to inflame the jury and prejudice the defendant. "Photographs

of the victim may be admitted as evidence of the brutality of the attack

and the extent of force used against the victim, from which the jury

could infer malice." The probative value of the photograph must

outweigh any unfair prejudicial effect that it may have upon the trier

of fact.

Cole, 155 S.W.3d at 912 (internal citations omitted).

In the present case, the pre-autopsy photographs of the victim, including Exhibit 40,

supplemented the medical examiner's testimony and were relevant to proving the extent of the

victim's injuries. State v. Norris, 874 S.W.2d 590, 597 (Tenn. Crim. App. 1993), overruled on other

grounds by Stater v. Imfeld, 70 S.W.3d 698 (Tenn. 2002). Moreover, on viewing the photograph, we

45

agree with the trial court's assessment that it is not particularly gruesome. Based on the foregoing,

this court finds no error on the part of the trial court in admitting Exhibit 40.

XXI. Failure to Charge Theory of Self-Defense

The defendant claims prejudicial error in the refusal of the trial court to charge a theory

of self-defense. He asserts that the issue of self-defense was fairly raised by inferences which jurors

could draw from testimony that one or more knives were present in the Delapp home as well as

evidence of "unseen gunshots."

At trial, Sergeant Nitzband testified that a "kitchen-type knife, a steak knife" was found

on the bathtub ledge next to the location of the victim's body. In testifying, Stephanie Delapp

explained that after she found her mother, she took a knife from the kitchen with her as she searched

the house and ultimately located the victim on the bathroom floor. In addition, Exhibit 36 depicted

a knife next to a potted plant in the home. As to gunshots, the defendant points to testimony of Edna

Delapp that after the victim and another man exited the home, she went to her bedroom window and

heard gunshots. At the close of proof, the defendant requested that the jury be instructed on a self-

defense theory based only on the evidence regarding the two knives. The trial court rejected a self-

defense instruction, concluding that nothing in the evidence "remotely raises self-defense. "

Before this court, the defendant argues that the jury could reasonably infer that the

knife next to the bathtub could have belonged to the victim and that the gunshots could have been

fired in response to the victim brandishing the knife while he was outside.

Our supreme court has observed that "[t]he evidence, not the theories of the parties,

controls whether an instruction is required." State v. Allen, 69 S.W.3d 181, 188 (Tenn. 2002). To

determine whether self-defense is fairly raised by the proof and must be explained to the jury, "a court

must, in effect, consider the evidence in the light most favorable to the defendant, including drawing

all reasonable inferences flowing from that evidence." State v. Shropshire, 874 S.W.2d 634, 639

(Tenn. Crim. App. 1993). A person is justified in using force against another person when he or she

reasonably believes (1) that death or serious bodily injury is imminent and (2) that the force used is

immediately necessary to protect against the other person's use or attempted use of unlawful force. See

Tenn. Code Ann. § 39-11-611(a) (2003).

In this case, there was no evidence at all to indicate that the victim was ever in

possession of either knife or any evidence of the victim's actions or behavior after he exited the house

and was shot. The trial court did not err in refusing to instruct the jury on a theory of self-defense.

XXII. Failure to Disqualify District Attorney's Office

The defendant asserts that the trial court erred in refusing to disqualify prosecutors

based on an alleged conflict of interest discovered at the time of the hearing on the defendant's motion

for new trial. On October 25, 2001, during the pendency of the defendant's motion for new trial, the

46

defense filed a motion seeking to disqualify the prosecutors from further participation in the case based

on information contained in an affidavit of Investigator Ron Lax regarding his interview with state's

witness Ashley James on April 3, 2001. At the time of the interview, Mr. Lax was working as an

investigator for the defense in the case of State v. Reginald Stacy Sudderth, in which Sudderth was

being prosecuted for his role in the victim's murder. In his affidavit, Mr. Lax states that Ms. James

made various assertions related to her testimony in the defendant's trial in July 2000, including that

prosecutors Bailey and Andrews were aware that she was provided cocaine while being held in

protective custody during the defendant's trial; that prosecutors wanted Ms. James to testify

consistently with Myron Kellogg's version of events and not Ms. James's own version; that prosecutors

advised her it was in her best interest not to speak with defense attorneys; and that prosecutors coached

her testimony by telling her which emotions to display when she testified and specifically asked that

she cry during her testimony. The defense argued that based on the contents of Mr. Lax's affidavit and

the specific allegations of Ms. James set forth therein, that the prosecutors were disqualified from

further participation in the defendant's case. The defendant noted that based on Mr. Lax's affidavit,

the trial judge in the Sudderth case had ruled that prosecutors were disqualified from prosecuting

Sudderth. Finally, the defense noted that disqualification of the prosecutors in both Sudderth's case

and the defendant's case was supported by the Board of Professional Responsibility's advisory ethics

opinion that the prosecutors could not ethically continue prosecution of the case in view of the

potential conflict of interest created by Ms. James's allegations against them as well as the real

possibility that the prosecutors would be called as witnesses at Sudderth's trial in the event Ms. James

also testified as was expected.

Following a hearing, the trial court overruled the motion to disqualify prosecutors in

the defendant's case. The trial court stated:

The reason, in a nutshell, is that all of this came to light after the jury

trial was already over. And the bulk of the motion for new trial had

already been argued and resolved.

....

So -- you know, if this was a trial -- if I was hearing this in relation to

an upcoming trial on the merits, then my decision might be very

different. But since the trial has already happened and she's not going

to be testifying at trial and they're not going to be compelled to be

called, then I think it's a totally different situation from Mr. Su

This text is long and has been trimmed here. Open the source document for the complete record.