State of Tennessee v. Alejandro Rivera

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

April 29, 2003 Session

STATE OF TENNESSEE v. ALEJANDRO RIVERA

Direct Appeal from the Circuit Court for Cocke County

No. 7144 Ben W. Hooper, II, Judge

No. E2002-00491-CCA-R3-CD

December 1, 2003

The Cocke County Grand Jury indicted the Defendant for first degree premeditated murder pursuant

to Tennessee Code Annotated section 39-13-202 (1997). After a trial, the jury convicted the

Defendant of the indicted charge and then sentenced him to life in prison with the possibility of

parole. The Defendant appeals contending that: (1) the prosecutor made improper statements to the

jury; (2) the trial court improperly admitted into evidence two pieces of evidence and statements of

his co-defendants; (3) the trial court erred when it refused to grant his request for a continuance; (4)

the trial court erred when it refused to grant him a judgment of acquittal; (5) the trial court erred

when it instructed the jury; (6) the voir dire was improper; (7) the trial court erred when it refused

the Defendant’s request to change venue; (8) the trial court erred when it refused to admit drawings

made by a key prosecution child-witness; (9) the trial court erred when it allowed two witnesses to

remain in the courtroom for the duration of the trial; (10) the trial court erred when it refused to

consider evidence regarding statements allegedly made by the jury foreman; (11) the trial court erred

when it refused to allow a New York search warrant and affidavit to be admitted into evidence; (12)

the trial court erred when it allowed a photograph of the deceased to be admitted into evidence; and

(13) the trial court erred when it did not review the “TBI file.” Finding no error in the judgments

of the trial court, we affirm the Defendant’s conviction.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID H. WELLES and

JERRY L. SMITH, JJ., joined.

Carl R. Ogle, Jr., Jefferson City, Tennessee, and Tim S. Moore, Newport, Tennessee, for the

appellant, Alejandro Rivera.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Angele M.

Gregory, Assistant Attorney General; Alfred C. Schmutzer, Jr., District Attorney General; and

Ronald C. Newcomb, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

This case arises from the killing of Jonathan Aaron Smith (“Aaron Smith” or the “victim”)

on July 23, 1997. The State asserted that the victim’s wife, Denice Smith, and her twin sister,

Deborah Graham, hired the Defendant to kill the victim, which he did with the assistance of Deborah

Graham.1 At the time of the murder, the victim and Denice Smith were recently divorced, and a few

days before the murder, on July 17, 1997, the court entered an order granting the victim custody of

the couple’s two minor children, Brittany and Joshua. Based upon this theory and supporting facts,

the Cocke County Grand Jury indicted the Defendant for premeditated first degree murder.

Following a jury trial in the Cocke County Circuit Court, a jury convicted the Defendant of first

degree murder, and the trial court sentenced him to life in prison with the possibility of parole.

Because one issue that the Defendant appeals is whether sufficient evidence exists to convict

him of premeditated first degree murder, we must summarize the evidence presented at trial. At trial,

the State offered testimony from Sharon Jarvis, Sharon Michael Strange, and Christine Latham

Loveday, who all testified that Denice Smith sought to kill her husband. Jarvis testified that she was

a day-care worker who watched Denice Smith’s children between June and August of 1996. Jarvis

testified that, during that time, Denice Smith confided in Jarvis that she and the victim were getting

a divorce and that she did not want him picking up the children. Jarvis stated that Denice Smith told

her that she was concerned that the victim would get custody of the children and on three occasions

told her that, if the victim did get custody, she would kill him. On cross-examination, Jarvis testified

that Denice Smith told her that there had been some physical confrontations between the victim and

herself and that the son, Joshua, had Down Syndrome. Jarvis also stated that Denice Smith told her

that on one occasion she had her daughter Brittany assist her in “break[ing] into the house where [the

victim] was staying” to retrieve items.

Sharon Michael Strange testified that she was the manager of a tanning salon that Denice

Smith frequented from May of 1997 to July of 1997. Strange testified that Denice Smith told her

that she had marital problems and was going through a divorce from her husband, Aaron Smith.

Strange stated that Denice Smith told her that the couple was battling for custody of the children.

Strange testified that, on one occasion, Denice Smith asked her if “I knew anybody [who] could do

a job for her? And I asked her what kind of job that she wanted done, and she said that she would

like to have [her] husband taken care of . . . .” Strange testified that, after Denice Smith told her that

she wanted her husband killed, Strange told her that she needed “to be careful who she was talking

to, and that she could get in a lot of trouble.” Strange testified that Denice Smith did not mention

the marriage again for the next couple of weeks but brought pictures to show Strange that the

children had been abused by the victim. Strange stated that, at some point, Denice Smith called her

and told her that the court awarded the victim custody of the children and that she was going to take

1

The sisters were found guilty of first degree murder and were sentenced to life imprisonment with the

possibility of parole. That conviction was affirmed by this court in State v. Graham, No. E1999-02248-CCA-R3-CD,

2001 WL 301160, at *16 (Tenn. Crim. App., at Knoxville, Mar. 29, 2001), and the sisters’ applications for permission

to appeal to the Tennessee Supreme Court were denied on September 17, 2001.

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the “kids [to Florida] and run with them, and that if she had to kill him in the process, that she

would.” On cross-examination, Strange testified that Denice Smith told her that the victim

physically abused her and her children. She also testified that Denice Smith told her that the victim

stuck a pencil lead in Joshua’s leg.

Christine Loveday testified that she worked with Denice Smith at a dentists’ office and that

Denice Smith discussed her marital problems with her. Loveday testified that Denice Smith told her

more than once that if her husband ever got custody of the children, she would kill him or have him

killed. Loveday stated that Denice Smith told her that she would leave the country with the children

before she would allow her husband to have custody of the children. Loveday testified that, five days

before she heard that the victim was killed, she saw Denice Smith at the dentists’ office and noticed

that her truck was loaded down and that Denice Smith’s father was with her. Loveday testified that,

when she asked Denice Smith where she was going, Denice Smith said that “she couldn’t tell us, and

that we didn’t want to know.”

Charles Jackson Snyder testified that he was an employee of the Gatlinburg Post Office and

that he was employed there on July 15, 1997. Snyder reported that, while working at the post office

on July 15, 1997, he received a phone call from “Carl Sanders who said he was from Bismarck,

North Dakota.” Snyder stated that Sanders informed him that an express mail package addressed

to Aaron Smith was going to arrive and that the package contained drugs. Snyder testified that he

gave this information to his supervisor, who contacted the Postal Inspector from Knoxville, Russell

F. Fallis. Snyder stated that, subsequently, the package arrived and was given to Fallis.

Fallis testified that, after learning that the package might contain drugs, he decided to pose

as a postal carrier and deliver the package to the victim with the assistance of Randy Parton and

Rickie McMahan from the Fourth Judicial District Task Force. Fallis testified that the package

indicated that it was from Atlanta, and, after he delivered it to the victim, the victim opened it on the

street, which was relatively crowded. Fallis stated that, after the Task Force officers showed the

victim their credentials, the victim stated that he had been “set up.” Fallis testified that after the

officers approached the victim and explained that they suspected that the package contained drugs

the victim consented to allow the officers to open the package in front of him. The package

contained two bags of what appeared to be drugs and an envelope that read, “To Aaron Smith. Next

time the price goes up.”

Fallis testified that they did not arrest the victim because it did not appear that he was aware

that this package contained drugs. Fallis stated that he later learned that the package originated in

Miami, Florida, and not in Atlanta, as the return address indicated. Fallis testified that he requested

an inquiry by the postal inspector in Miami. Fallis also testified that he sent the contents of the

package to the crime lab to determine if any latent fingerprints were present on the items, and the

lab determined that the fingerprints of Deborah Graham were on the items. On cross-examination,

Fallis testified that the victim told him that Deborah Graham was heavily involved in drugs and that

he suspected that she sent him the package.

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Carl Smith, a forensic scientist for the Tennessee Bureau of Investigation (“TBI”), testified

that the substance contained in the two bags in the package weighed 0.14 grams and was tested and

confirmed to be cocaine.

The State filed the Memorandum Opinion entered by the Circuit Court for Cocke County in

the case of Jonathan Aaron Smith versus Denice Smith filed on July 17, 1997, which granted custody

of the couple’s children to the victim.

Harry T. Smith, the victim’s father, testified that he lived on a campground called Camp

Acres, which he owned at the time of the victim’s murder. Harry Smith testified that Camp Acres

was only accessible by an electric gate that required a card for entry. The only people who had cards

were “lot owners” who either owned or rented a lot. Harry Smith testified that Denice Smith had

one of those cards. He stated that the victim lived in a house on Camp Acres for some time with his

wife, Denice Smith, and their two children. Harry Smith testified that Denice Smith and the victim

were married for twelve years before they began to have marital problems that led to the couple filing

for divorce. Harry testified that, when the couple separated, the victim moved into Harry Smith’s

house and that the children remained with Denice Smith in the couple’s house.

Harry Smith testified about the day of the murder, July 23, 1997. Harry Smith testified that

on that day he was fixing the road down by the gate to Camp Acres. He stated that at 3:30 p.m. he

went back to the house to shower and change clothes, and at about 4:20 p.m. he left his house to get

something to eat. Harry Smith testified that the victim was not home at this time. Harry Smith

testified that he came back to the house around 6:00 p.m., and, at that time, he saw his son laying on

his side in front of the house. He explained that his son appeared to have been shot. Harry Smith

testified that he went in the house, which looked as if it had been ransacked, and called 9-1-1. Harry

Smith noticed that the return air vent was open and “laying down,” and he thought that it was

unusual because he used to keep money behind the return air vent, a fact of which Denice Smith was

aware. Harry Smith testified that there was a pair of handcuffs on a chair in the house, and a gun,

that belonged to him, laying under the table. Harry Smith testified that he noticed that a box

containing some old coins, pocket watches, a “railroad watch” and a “24 karat gold nugget watch”

was missing from a cabinet in the garage. He stated that a gun and gun case were also missing from

the cabinet. He also said that the only room in the house that was not “ransacked” was the room

upstairs where his son was living, but that the rifles that he stored in that room were on the floor.

Harry Smith testified that the last time that he saw Denice Smith was the day after the divorce

was final and custody was granted to the victim. Denice Smith and her father loaded up a truck, put

Brittany and Joshua in the car and left. Harry Smith testified that he thought that she and her father

were leaving, but his wife suggested that they were only going to an appointment.

Robert Caldwell, Chief Detective with the Cocke County Sheriff’s Department, testified that

he investigated the victim’s murder on July 23, 1997. He testified that, when he arrived at the scene,

he found the victim’s body on the sidewalk leading to the residence. Detective Caldwell testified

that he requested assistance from the TBI. On cross-examination, the Detective testified that he

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made an affidavit to the court stating that his file indicated that there were pictures of four suspects

faxed to him, including a picture of the Defendant, and that Brittany, the victim’s daughter, did not

identify any of the suspects. However, the Detective stated that, after he reviewed his file in

preparation for the trial, he found that Brittany did identify the picture of one of the suspects, Harry

Hodges, as somebody named George that she saw in a motel in Florida.

Dr. Cleland Blake, the Assistant State Chief Medical Examiner with the TBI, testified that

he performed the autopsy on the victim. Dr. Blake testified that there were three gunshot wounds

to the victim: one bullet went through his right ear and was from a gun fired from in front of the

victim; another bullet entered the back of his head and exited the front of his forehead and was fired

from a gun behind the victim; and another bullet entered his back and exited his right chest area and

was fired from a gun behind the victim. The doctor testified that the bullet that entered the victim’s

head was “an instantly lethal wound.”

Kelly Smith, who was with TBI at the time of the murder investigation, testified that she was

the team leader of the team responsible for the forensic investigation of the murder. She testified

that when she arrived at the scene of the murder at around 11:00 p.m., the victim’s body had already

been removed. Agent Smith stated that, during the course of her investigation, she found a spent

bullet and several reddish-brown stains both inside and outside of the house. She also testified that

she found handcuffs inside the house and that inside the house there were “clothes and other material

that had been strewn throughout the house, and it was not orderly at all.” Agent Smith stated that

she noticed that a vent had been pulled away from the wall and found a gun lying on the floor. Agent

Smith testified that she also found several pieces of jewelry, including a watch, an earring and an

earring back. The parties stipulated that no blood was found on either the earring or the earring back.

Agent Smith testified that she went upstairs and found “a number of weapons on the floor.”

The parties stipulated that Mark Squibb, with the Tennessee Crime Laboratory, found that

the reddish-brown stains found at the crime scene were human blood. The parties also stipulated that

Boyd Gene Phillips, a Latent Fingerprint Examiner with the TBI Forensic Service Division, found

no readable fingerprints on the gun or at the crime scene other than the fingerprints of the victim.

Additionally, the parties stipulated that Robert Royce, a firearms examiner with TBI, analyzed the

spent bullet found at the crime scene and found that it came from the gun belonging to Harry Smith

that was found at the crime scene.

Brittany Smith testified at trial that her parents were the victim and Denice Smith and that

she had one brother, Joshua Smith. Brittany Smith testified that, at the time of trial, she was fourteen

and her brother was twelve. At the time of her father’s murder, Brittany Smith was ten and her

brother was eight. Brittany Smith testified that, before the murder, her parents were going through

a divorce and that, at that time, she and her brother lived with her mother at Camp Acres. She

explained that her father, the victim, lived up the hill from her mother’s house with his parents.

Brittany Smith stated that when her mother found out that “[her] dad had custody, we left town” with

Joshua and her mother’s father, Don Graham. Brittany Smith testified that they left town in two

vehicles, her mother’s Mitsubishi Montero and her grandfather’s Chevrolet truck. Brittany Smith

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stated that, before they left town, they went to her mother’s workplace to get her mother’s paycheck,

and then “we went to the bank, and I guess she got her check cashed, and then we went to Newport

to her attorney’s office, and then we left town.” Brittany Smith testified that, upon leaving town,

they went to Miami, Florida, driving “straight through.”

Brittany Smith testified that once in Miami they met her “Aunt Debbie,” who was Deborah

Graham, and “some other people” at “a little like bar stand behind the Golden Nugget.” Brittany

Smith testified that “[Deborah Graham], my grandfather, Don [Graham], my mom, two people

named George, and Alex” were present at the meeting. She described “Alex” as “tall . . . real

slender. He shaved his head, he had small glasses, dark skin, a beard and a mustache, tattoos.” She

described the tattoos as “a eagle and a dragon.” Brittany Smith then identified “Alex” as the

Defendant. Brittany Smith testified that Deborah Graham took her and her brother to the beach

while the others stayed behind and talked. She stated that, later, they went to their motel, “The

Driftwood,” and “unpacked, and stayed there.” Brittany Smith testified that she, Don Graham, her

mother and little brother, stayed in room number 321 at the motel.

Brittany Smith testified that, the day after they arrived, her mother rented a white car from

a dealership and Deborah Graham, the Defendant and “both of the Georges” left in the car. Brittany

Smith testified that two or three days later, late at night, Deborah Graham, the Defendant and “one

of the Georges” came back to the motel. She testified that she was supposed to be asleep on the

floor, but she was not and overheard the conversation in the motel room. She stated that she heard

Deborah Graham tell her mother and Don Graham “that they hurt someone bad, and I heard [the

Defendant] say, ‘no, we’ve killed someone,’ and my mom said, ‘yeah, and it was easy, too.’”

Brittany Smith testified that, right before the Defendant left on the trip, he had handcuffs in

his back pocket, which she could identify because she could see the “bottom part of the chain

hanging out over the pocket.” Brittany Smith stated that, when the Defendant returned that evening,

the Defendant did not have the handcuffs with him. Brittany Smith stated that, when Deborah

Graham returned, she was wearing “my mamaw’s [Cleta Smith’s] pink ice ring” and that the

Defendant had “my papaw’s [Harry Smith’s] gold nugget watch, and my dad’s Swiss Army knife.”

Brittany Smith testified that, one or two days after she overheard the conversation, she left

with her mother, Don Graham and her brother, Joshua, to go to Michigan to her “Aunt Marion’s”

house. She explained that “Aunt Marion” was the wife of Don Graham’s brother. Brittany Smith

stated that once they arrived at “Aunt Marion’s” house, she learned that her father had been killed

at Harry Smith’s home. Brittany Smith testified that they stayed in Michigan until “Aunt Marion”

brought her and her brother back to Tennessee. Brittany Smith testified that she was only in

Michigan for “one and a half to two days” before her aunt brought her back to Tennessee.

On cross-examination, Brittany Smith testified that the lights were off when she heard the

conversation about the “killing.” Brittany Smith stated that, when they left the Driftwood motel,

they stored some boxes at a “storage place” to keep them from being in the back of Don Graham’s

truck.

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The parties stipulated that Alamo Car Rental records showed that Denice Smith leased a

white Buick Regal with Florida license tag number UVN79B on July 21, 1997. The car was returned

on July 28, 1997, and it had accumulated 2,476 miles.

Vernon Brown testified that he and his wife owned a lot in Camp Acres and that they were

living in a motor home on that lot during the summer of 1997. He testified that, on July 23, 1997,

he saw two people sitting near a car, one of them a woman with blonde hair. Brown testified that,

a short time later, he saw a man knocking on Harry Smith’s house, where the victim lived. Brown

testified that, while he did not get a good look at the man, he looked like he had a slender build and

black hair. Brown also testified that there was a white car parked nearby that caught his attention

because he did not think it was supposed to be there. After returning to his motor home a few

minutes before 5:00 p.m., Brown heard three gunshots, but did not think it was that unusual because

there are many hunters in the area. Brown testified that shortly after 5:00 p.m. he heard a car

“leaving in a hurry, like a speeding car.” Brown then recognized a picture of tire marks where

someone apparently left in a “hurry.” On cross examination, Brown testified that he told the TBI

agents that the man he saw knocking on the door was “skinny, white male with long hair, wearing

a ball cap.”

Ed Pulley, a state trooper with the Tennessee Highway Patrol, testified that he was working

on July 23, 1997, and he issued a citation to “David Antonio Rivera” for speeding. Trooper Pulley

testified that he “clocked” the white four door 1996 Buick traveling south on 1-75 near mile marker

46 at eighty miles per hour. He explained that the car had Florida license tag number UVN79B, and

riding in the car were a male driver, who produced his drivers’ license, and a woman in the front

seat. Trooper Pulley testified that, after stopping the car, he would have checked the drivers’ license

of the person driving the vehicle to ensure that the picture matched the driver presenting the license,

but could not identify the Defendant in court. The trooper testified that the address listed on the

license was “2560 Northwest 67th Street, Miami, Florida, 33147,” and the drivers’ license number

was “R160161591390.”

Ronald Raccioppi, who was an officer with the Florida Department of Law Enforcement,

testified that he traced the license tag number given to him by police officials in Cocke County,

which they believed was related to a suspect named “Alex,” and it came back to a rental car

registered to LaShawn Taylor. Officer Raccioppi testified that he obtained Taylor’s address, 6750

Northwest 67th Street, from the rental car agency, and he began surveillance of that location. He

stated that, when the officers stopped Taylor’s vehicle, it was occupied by Taylor, who was driving,

and by a man who produced identification that stated that his name was “David Rivera.” Officer

Raccioppi later identified “David Rivera” as the Defendant. The officer asked the Defendant if his

name was “Alex” and he said “no.” The officer then identified a copy of the drivers’ license

showing the name “David Antonio Rivera” and the address as 6750 Northwest 67th Street.

Officer Raccioppi testified that the Defendant then voluntarily went with them to the police

station to discuss a “homicide in Tennessee.” The officer testified that he read the Defendant his

rights, and that the Defendant waived those rights. Officer Raccioppi testified that, at the police

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station, he noticed visible tattoos on the Defendant, one of which was “an eagle on the rising sun”

on the upper left shoulder and the other was a “tattoo of a tiger” on the backside of the same arm.

Officer Raccioppi testified that the Defendant refused to show the rest of his tattoos. The officer

testified that during the interview the Defendant stated that he met Deborah Graham in New York

about five years ago, but had not spoken with her for three years until she contacted him “about a

month and a half ago” after speaking with a mutual friend “Alex Rios.” Officer Raccioppi testified

that the Defendant stated that he did not have a cell phone number for Deborah Graham, but that she

would call his beeper. The officer testified that the Defendant stated that Deborah Graham stayed

at “the Golden Strand and the Fountain Head motels” while in Florida. Officer Raccioppi testified

that the Defendant told him that Deborah Graham never stayed at the Driftwood motel, but that

George Penta, with whom Deborah Graham was intimate, stayed at that motel. The officer reported

that the Defendant stated that he “wasn’t allowed [at the Driftwood motel].”

Officer Raccioppi testified that the Defendant told him that he went to Tennessee about three

weeks ago with another man when he was driving to Michigan. The officer testified that the

Defendant told him that he was traveling in a white rental car and that he did not want to say who

rented it. Officer Raccioppi stated that the Defendant told him that the vehicle was rented from

“Value Rental” in “Fort Lauderdale.” The officer testified that the Defendant denied ever meeting

anyone in Deborah Graham’s family, including her father, sister, or niece and nephew. The officer

testified that when he asked the Defendant, “who is Alex?” he responded, “Alex Rios, a friend of

ours from New York.” Officer Raccioppi stated that, later in the interview, the Defendant said,

“Look, I told you my name is Al – David.”

Officer Raccioppi testified that after he told the Defendant the evidence they had in the case,

including the fact that they had the white car, the Defendant “changed his story.” The officer

testified that the Defendant stated, “I plead the Fifth to driving a white car” and admitted that he

drove with Deborah Graham to Michigan and that he was not with another male. Officer Raccioppi

stated that the Defendant stated that Deborah Graham had a job interview in Michigan, but he could

not remember the name of the city where the two went. The officer testified that the Defendant

stated that “we stayed with a friend named Gilda Hart, a black woman . . . who lives in a red brick

house.” Officer Raccioppi stated that he then questioned why, if the Defendant and Deborah Graham

went to Michigan, were there only 2400 or 2800 miles on the car, and the Defendant responded,

“that’s a lot of miles. Go ahead and check; you’ll see it’s enough to get there and back, and more.”

The officer testified that, at the end of his conversation with the Defendant, the Defendant

said that he would contact Deborah Graham and get her to talk to the police, and, thereafter, the

officer drove him to Taylor’s place of work. Officer Raccioppi testified that later that same day the

Defendant paged him, and when the officer called him back the Defendant told him the location of

Deborah Graham’s interview in Detroit, Michigan, and gave the officer the street on which Gilda

Hart lived. The officer testified that he was unable to contact the Defendant again.

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Officer Raccioppi also testified that the post office from where the package containing drugs

was sent to the victim was located 300 yards from the Defendant’s home. The officer also testified

that the number on the drivers’ license produced by the Defendant matched the drivers’ license

number that was listed on the citation issued by the Tennessee State Highway Patrol.

On cross-examination, Officer Raccioppi testified that he knew that the witnesses at the scene

reported that there was a white male knocking on the door of the victim’s home before they heard

a gunshot. The officer testified that the investigation revealed that the Defendant’s brother was

“David Rivera.” Officer Raccioppi stated that during the course of the investigation it was

discovered that there was a storage unit in the name of “David Rivera,” to which a person named

“Debbie Giovi” had access. The officer stated that, in the storage unit, the officers found “boxes of

toys, furniture, [and] photos.”

The State then entered a copy of the record of the Driftwood Resort Motel from July 18,

1997, to July 23, 1997, for room number 321 showing that it was rented to Don Jones.

Harold David Hutchinson, a criminal investigator with the District Attorney’s Office,

testified that he was involved in the investigation of the victim’s murder. He testified that he was

unable to confirm that Deborah Graham had an interview at Fox Studios in Detroit. Hutchinson

stated that he attempted to find Gilda Hart, who allegedly lived on West Grant Avenue in Detroit,

but he was unable to find her. Hutchinson testified that the mileage for a round trip from Miami,

Florida to Detroit, Michigan and back was 2,788 miles. He stated that the milage from a round trip

from Miami, Florida to the Cosby, Tennessee was 1,882 miles, and the mileage from Camp Acres

to mile marker number 46 was 112 miles. On cross-examination, the investigator testified that he

cleared Harry David Hodge as a suspect because the investigator was unable to place him in

Tennessee at the time of the murder.

LaShawn Taylor, the mother of the Defendant’s son and long-time girlfriend, testified that

she was introduced to Deborah Graham by the Defendant. Taylor testified that the Defendant and

Deborah Graham left town together, and it was her understanding that they drove to Michigan for

a job interview. Taylor stated that, after they left, she received a phone call from the Defendant, and

he said they were in Tennessee helping Deborah Graham’s sister move out of her house. Taylor

testified that the two were gone for three days or more after which the Defendant came back to her

home. Taylor testified that, later, Deborah Graham came to the home driving a white car, and the

Defendant told her to “get the car out of here” or “get in the car and get out of here,” and she left.

Taylor testified that she saw Deborah Graham again when she came to Taylor’s house to spend the

night “because she didn’t have anywhere else to sleep.” Taylor stated she remembered that one night

the Defendant and Deborah Graham were talking and that, every time Taylor entered the room, the

talking would stop. Taylor testified that one day she took Deborah Graham to the airport, and

Deborah Graham said she was going to New York.

Taylor also testified that, on the day that she and the Defendant were stopped by the police,

the Defendant produced false identification in the name of “David Rivera.” Taylor stated that, after

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the Defendant was with the police, he came to her work and got her car and then, at the end of her

work day, the Defendant picked her up and took her to her mother’s house. Taylor testified that the

Defendant left her at her mother’s house and said he would be “right back,” but he never returned.

The next time she saw the Defendant was the day of trial, but she had spoken with him and told him

the police were looking for him. Taylor testified that she and the Defendant went to a pawn shop

“on 79th Street.” She said that, at the pawn shop, the Defendant retrieved some items of jewelry that

were pawned. One piece that he retrieved was a “Noah’s Ark bracelet.”

On cross-examination, Taylor testified that she was jealous of Deborah Graham’s relationship

with the Defendant and that she suspected that they were having an affair. She also testified that the

Defendant never told her that he was involved in any murder and that he was worried that because

of his race the police in Tennessee would not believe his story.

Robert Cecil Latta, Sr., who was employed by the Cash In Pawn Shop in July of 1997,

testified that his records showed that on July 24, 1997, “David Antonio Rivera” pawned an Elgin

non-gold pocket watch, a 10 karat Noah’s Ark bracelet, two women’s free form rings, and a Nikon

camera, Model ZT400. Latta testified that his records indicated that on August 7, 1997, “David

Rivera” retrieved the items that he pawned. Latta produced from his records a photocopy of the state

issued I.D. of “David Rivera.”

Martin Kevin Giovi testified that he used to be Deborah Graham’s boyfriend in 1994 and

that, during their relationship, Deborah Graham mentioned that her sister, Denice Smith, was having

marital problems because her sister’s husband was abusing the kids. Giovi testified that Deborah

Graham requested that he “go down there and kill him” on three or four occasions. Giovi testified

that he went to jail and, upon his release in 1997, he and Deborah Graham began living together

again in New York. Giovi stated that Deborah Graham told him that she was involved in the

victim’s murder. Giovi testified that, when the police came to arrest Deborah Graham, he gave

Detective Paul Dotzler a bag of jewelry that Deborah Graham had given to him. On cross-

examination, Giovi admitted that he had multiple criminal convictions.

Paul Dotzler, a detective with the Port Authority Police Department in New York/New

Jersey, testified that he assisted Miami officers in locating and arresting Deborah Graham. He

testified that Deborah Graham left a piece of luggage at the airport and that, from the luggage, they

learned of her current New York address. The detective testified that when Deborah Graham was

arrested at her New York address Giovi gave the detective a bag of jewelry that he said Deborah

Graham had hidden in his house.

Cleta Mae Smith, the victim’s mother, testified that, when she returned to the house after her

son was murdered, she found that every drawer was taken out and “everything was [thrown]

everywhere.” The State then showed her the bag of jewelry that Giovi gave to Detective Dotzler,

and Cleta Mae Smith identified it as all hers and that, much of it, she made herself. Further, Cleta

Mae Smith testified that, after the murder, she noticed that she was missing her “Noah’s Ark”

bracelet, a Nikon camera, and a “big pink ice ring.”

-10-

Gilbert Ramirez, a detective with the New York City Police Department, testified that he

arrested the Defendant in connection with this murder. Detective Ramirez testified that, when the

Defendant was arrested, he said his name was “Jonathan Rivers” and showed a drivers’ license from

the Virgin Islands that confirmed this name. The detective stated that, while in custody, the

Defendant said, “F---ing B---es set me up” and “Someone’s going to die over this s---.” Detective

Ramirez testified that the Defendant also said, “I narrow it down to five. I got five now on my list.

I’ll make it look like a robbery.” The detective testified that the Defendant also said, “I got the piece

of the puzzle. I bet they didn’t say their dad was involved.” The detective explained that, when he

arrested the Defendant, he noticed some tattoos on him and found a handcuff key on his person.

Detective Ramirez testified that the handcuff key did not fit the handcuffs found at the scene of the

murder.

Detective Ramirez testified that it was “a couple of days” before the Defendant allowed his

fingerprints to be taken. Ramirez then identified pictures of the Defendant’s tattoos. The first was

on the Defendant’s chest and was a dragon. The next was on the back side of his left arm and was

a big eagle.

In his defense, the Defendant called Eric Rodriguez, who testified that he worked at Dezer

Properties, which owned the Driftwood Hotel. Rodriguez testified that the records indicated that

Don Jones checked in to the Driftwood on July 18, 1997, and that he checked out on July 23, 1997,

at 11:34 a.m. Rodriguez testified that he had never met, nor had he ever seen, the Defendant. On

cross-examination, Rodriguez testified that he was not sure whether Dezer Properties owned the

Driftwood hotel in 1997 and that he was not working at the Driftwood at that time.

Marion Graham testified that she was Don Graham’s sister-in-law and Deborah Graham’s

and Denice Smith’s aunt. Marion Graham testified that, during the afternoon of July 24, 1997, she

learned that the victim was killed from he niece Jennifer Gainer. She stated that, on that same day

at around 6:00 p.m. or 6:30 p.m., Denice Smith called her, and then, at approximately 12:30 a.m.,

Denice Smith arrived at Marion Graham’s house with Don Graham, Brittany Smith and Joshua

Smith. Marion Graham testified that Deborah Graham called her earlier that evening and gave her

a phone number in Florida to give to Don Graham when he got to Marion Graham’s house. Marion

Graham stated that she gave Don Graham the number, and Marion Graham’s phone records showed

that at 1:04 a.m. a call was placed from her house to Florida that lasted forty-eight minutes. Marion

Graham testified that, when Deborah Graham called her, she sounded hysterical and she was asking,

“Where’s my dad? He’s gone, he’s checked out, he’s not here. Have you heard from him? Where

did they go.” Marion Graham told Deborah Graham that she had spoken with both Don Graham and

Denice Smith.

Marion Graham testified that the victim’s children, Brittany Smith and Joshua Smith, stayed

with her for a day or two until she brought them back to Cocke County. Marion Graham testified

that Denice Smith had already gone back to Cocke County. Marion Graham testified that, in the

days that she was with Brittany Smith and Joshua Smith, Brittany Smith talked about her feelings

-11-

about the victim’s death, but did not mention any conversation that she might have overheard

regarding the death.

Jennifer Gainer testified that she was Don Graham’s daughter and Denice Smith’s and

Deborah Graham’s sister. She testified that, when she heard about the victim’s death, she called her

aunt, Marion Graham. She testified that Deborah Graham called her and that she was “hysterical”

and looking for Don Graham. Gainer stated that she and Marion Graham called each other multiple

times that day.

The jury found the Defendant guilty of first degree murder and sentenced the Defendant to

life in prison with the possibility of parole. The Defendant filed a timely motion for new trial, which

the trial court denied. The Defendant now appeals contending that: (1) the prosecutor made

improper statements to the jury; (2) the trial court improperly admitted into evidence two pieces of

evidence and statements of his co-defendants; (3) the trial court erred when it refused to grant his

request for a continuance; (4) the trial court erred when it refused to grant him a judgment of

acquittal; (5) the trial court erred when it instructed the jury; (6) the voir dire was improper; (7) the

trial court erred when it refused the Defendant’s request to change venue; (8) the trial court erred

when it refused to admit drawings made by a key prosecution child-witness; (9) the trial court erred

when it allowed two witnesses to remain in the courtroom for the duration of the trial; (10) the trial

court erred when it refused to consider evidence regarding statements allegedly made by the jury

foreman; (11) the trial court erred when it refused to allow a New York search warrant and affidavit

to be admitted into evidence; (12) the trial court erred when it allowed a photograph of the deceased

to be admitted into evidence; and (13) the trial court erred when it did not review the “TBI file.”2

II. Pre-trial Rulings

The Defendant argues that the trial court erred when ruling on several of his pre-trial motions.

First, the Defendant contends that the trial court erred when it refused to grant his motion for a

continuance. Second, the Defendant contends that the trial court erred when it denied his motion for

change of venue. Lastly, the Defendant contends that the voir dire was improper.

A. Motion for Continuance

The Defendant contends that the trial court erred when it denied his request for a continuance,

but does not cite where in the record he made this motion. The State contends that this issue is

waived because there was no formal motion for continuance filed. A thorough review of the record

revealed multiple motions for continuance, all of which were granted by the trial court, save one.

We presume that the Defendant appeals the motion for continuance that he filed under seal on

February 23, 2001, which the trial court denied, and now address this issue on appeal.

2

Issues (10), (11), (12) and (13), while raised in the Defendant’s statement of the issues, were not mentioned

in any other section of the Defendant’s brief. T herefo re, we hold that these issues have been waived. Tenn. R. Crim.

P. 10(b); see also Tenn. R. A pp. P . 27(a )(7).

-12-

In the Defendant’s motion to continue, the Defendant asserted that the State did not provide

him with information regarding Harry David Hodge. Specifically, the Defendant contended that the

State gave him a list of persons considered suspects at the preliminary stages of the investigation,

which included a suspect identified as “George (last name unknown),” and then on February 21,

2001, the State provided pictures of the four people who Brittany Smith failed to identify on August

5, 1997, including a picture of Harry David Hodge. The Defendant alleged that the State called to

inform the defense that, in preparation for trial, it realized that Brittany Smith did identify Hodge as

being one of the “Georges,” and that the Detective was mistaken when he testified that she had not

identified any of the pictures. Upon this basis, the Defendant requested that the trial be continued

so that his investigator could further investigate Hodge’s involvement in this murder. Additionally,

the investigator testified that he had already interviewed Hodge with relation to this case, but that,

had he known that Brittany Smith identified Hodge, his approach in interviewing Hodge would have

been different.

In response to the Defendant’s motion for a continuance, the State filed a letter that the State

furnished to the Defendant, which provided statements from both George Penta and Hodge. In this

letter, the State underlined that these statements were provided as possible Brady material,

specifically that these statements “conflict with the statement of [Brittany Smith].” Further, on

cross-examination, the investigator admitted that in Hodge’s statement, which the State provided to

the defense, Hodge maintained that he did not know Deborah Graham and that he had not been to

Tennessee recently. The investigator stated that from this he would have to assume that the reason

Hodge was being asked about Tennessee was because he was a suspect of some sort. The

investigator admitted that, even though the State may not have listed Hodge as a suspect, he “knew

he had been treated as a suspect at some point by the government.” Based upon this admission, the

Court overruled the motion for continuance.

The granting of a continuance rests within the sound discretion of the trial court. State v.

Hines, 919 S.W.2d 573, 579 (Tenn. 1995); Moorehead v. State, 219 Tenn. 271, 409 S.W.2d 357, 358

(1965); State v. Morgan 825 S.W.2d 113, 117 (Tenn. Crim. App. 1991). A reversal may only occur

if the denial was an abuse of discretion and the defendant was improperly prejudiced in that a

different result might reasonably have been reached if the continuance had been granted. Hines, 919

S.W.2d at 579; State v. Caughron, 855 S.W.2d 526, 534 (Tenn. 1993); State v. Dykes, 803 S.W.2d

250, 257 (Tenn. Crim. App. 1990); Baxter v. State, 503 S.W.2d 226, 230 (Tenn. Crim. App. 1973).

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. Hines, 919 S.W.2d at 579. The burden rests upon the

defendant to show that the trial court’s denial of the motion to continue was prejudicial. Baxter, 503

S.W.2d at 230.

The Defendant cites State v. Reynolds, 671 S.W.2d 854, 856 (Tenn. Crim. App. 1984), for

the proposition that there are five factors that a court should consider when determining whether the

trial court should have granted a continuance to interview or procure a defense witness. In Reynolds,

-13-

this court found “helpful” the five factors articulated in Dickerson v. Alabama, 667 F.2d 1364 (11th

Cir. 1982). Those factors are:

The first factor is the diligence of defense counsel in interviewing the witness and

attempting to procure her attendance. The second factor is the probability of securing

the testimony within a reasonable time. The third factor is the specificity of the

person’s expected testimony. The fourth factor is the degree to which the expected

testimony is favorable to the defendant. The fifth factor is the uniqueness, or the

cumulative nature, of the expected testimony.

Reynolds, 671 S.W.2d at 856. Based upon these factors, the Defendant contends that the trial court’s

denial of his motion to continue prejudiced him and constituted reversible error. Specifically, the

Defendant asserts that it was his contention at trial that the meeting where the Defendant stated,

“We’ve killed someone,” about which Brittany Smith testified, never took place. The Defendant

asserts that when he learned that Brittany Smith identified Hodge, “it became critical to the defense

. . . to show that [Hodge], and for that matter [the Defendant], were not and could not have been

present at the meeting Brittany Smith says occurred in the motel room after the killing.”

We do not find the Defendant’s contention persuasive. The Defendant’s investigator testified

that he interviewed Hodge and that he knew that Hodge had been treated as a suspect. He knew that

the police questioned Hodge as to his whereabouts when the meeting allegedly occurred. Further,

the Defendant was aware that Brittany Smith identified two Georges, and the State gave the

Defendant a picture of Hodge as possible exculpatory evidence. While the investigator testified that

he would have interviewed Hodge differently had he been aware that Brittany Smith identified

Hodge, he still had the opportunity interview Hodge. According to the Defendant, “the interview

clearly showed that [Hodge] was not present at any meeting where the death of [the victim] was

discussed.” This testimony is not specific or unique and, while it may have impeached Brittany

Smith’s testimony, it is not highly favorable to the Defendant. After a review of the entire record

we do not find that the defendant failed to receive a fair trial or that a different result would or might

reasonably have been reached if a continuance had been granted. Therefore, we conclude that the

trial judge did not abuse its discretion when it denied the Defendant’s motion for a continuance.

B. Motion for Change of Venue

The Defendant contends that the trial court erred when it denied his motion for change of

venue. When addressing this issue, the Defendant’s brief, in its entirety, reads:

It is the position of [the Defendant] that the court erred in refusing to change venue

based upon publicity at the time of the commission of the crime, publicity

surrounding the prior trial of Smith and Graham, and publicity prior to [the

Defendant’s] trial. This publicity took place through the newspaper, radio, and

television. Based on the enormous amount of publicity it was impossible to get a

juror who had not been exposed to this publicity, prior to trial.

-14-

The Defendant does not cite to the record or provide any citation to any legal authority. The State

contends that the Defendant waived this issue and is correct that issues that are not adequately

briefed are deemed waived. Tennessee Court of Criminal Appeals Rule 10(b) states that “[i]ssues

which are not supported by argument, citation to authorities, or appropriate references to the record

will be treated as waived in this court.” See also Tenn. R. App. P. 27(a)(7). Accordingly, we

conclude that the Defendant has waived this issue.

C. Voir Dire

The Defendant asserts that the “jury panel was illegal in that it contained at least five

members, or their spouses of people who were on the grand jury which indicted Rivera.” Further,

the Defendant claims that three jury members should have been excused for cause, “two of those

jurors were Marshall and Vick.” The Defendant contends that “Juror Marshall indicated that he had

read about the alleged perpetrator of this offense and had formed an opinion at the time he had read

that and that the two sisters had secured [the Defendant] to kill [the victim].” We only address the

Defendant’s contention that “Marshall” and “Vick” should have been excused for cause since those

are the only jurors whose name he provided in his brief. The Defendant has waived any other issue

with any other juror by not providing the juror’s name and not providing any citations to the record.

Tenn. R. Crim. P. 10(b); see also Tenn. R. App. P. 27(a)(7).

Article I, section 9, of the Tennessee Constitution assures the accused in a criminal

prosecution “the right, among other rights, to a speedy public trial . . . [by] an impartial jury.” To

ensure an impartial jury Tennessee Rule of Criminal Procedure 24 provides that the Defendant, or

the State, may challenge a juror for cause. The Rules states:

(B) Challenges for Cause. — If the trial judge, after examination of any juror, is of

the opinion that grounds for challenge for cause are present, the judge shall excuse

that juror from the trial of the case. . . . Any party may challenge a prospective juror

for cause if:

. . . . (2) The prospective juror’s exposure to potentially prejudicial information

makes the person unacceptable as a juror. Both the degree of exposure and the

prospective juror’s testimony as to his or her state of mind shall be considered in

determining acceptability. A prospective juror who states that he or she will be

unable to overcome preconceptions shall be subject to challenge for cause no matter

how slight the exposure. If the prospective juror has seen or heard and remembers

information that will be developed in the course of trial, or that may be inadmissible

but is not so prejudicial as to create a substantial risk that his or her judgment will be

affected, the prospective juror’s acceptability shall depend on whether the testimony

as to impartiality is believed. If the prospective juror admits to having formed an

-15-

opinion, he or she shall be subject to challenge for cause unless the examination

shows unequivocally that the prospective juror can be impartial.3

Tenn. R. Crim. P. 24. “The challenge for cause was designed to exclude from the jury [prospective

jurors] whose bias or prejudice rendered them unfit . . . .” State v. Humphreys, 70 S.W.3d 752, 765

(Tenn. Crim. App. 2001) (quoting Manning v. State, 155 Tenn. 266, 292 S.W. 451, 455 (1927)).

Juror qualification rests within the discretion of the trial court and “the trial judge’s finding a juror

to be qualified will not be disturbed on review except on the clear showing of an abuse of

discretion.” Humphreys, 70 S.W.3d at 765 (quoting Burns v. State 591 S.W.2d 780, 782 (Tenn.

Crim. App. 1979)); State v. Scarbrough, No. E1999-00931-CCA-R3-CD, 2001 WL 775603, at *9

(Tenn. Crim. App., at Knoxville, July, 2001), perm. app. denied (Jan. 7, 2002).

Although jurors may be excluded for cause if they have formed an opinion which will prevent

impartiality, “[j]urors need not be totally ignorant of the facts of the case on which they sit [and

even] the formation of an opinion on the merits will not disqualify a juror if [the juror] can lay aside

[his or her] opinion and render a verdict based on the evidence presented.” State v. Howell, 868

S.W.2d 238, 249 (Tenn. 1993). The United States Supreme Court has made the following

observation:

In these days of swift, widespread and diverse methods of communication, an

important case can be expected to arouse the interest of the public in the vicinity, and

scarcely any of those best qualified to serve as jurors will not have formed some

impression or opinion as to the merits of the case. This is particularly true in

criminal cases. To hold that the mere existence of any preconceived notion as to the

guilt or innocence of an accused, without more, is sufficient to rebut the presumption

of a prospective juror’s impartiality would be to establish an impossible standard.

Irvin v. Dowd, 366 U.S. 717, 722-23 (1961). Thus, so long as a juror can set aside any previously-

formed opinions and render a verdict based upon the evidence presented in court, the juror may

properly participate in the case. Id. In the case under submission, while Juror Marshall initially

indicated that he had read in the newspaper about the murder and the Defendant’s involvement, he

also told the court that he could serve on the jury and decide this case based upon only the evidence

that was produced in this case and the law.

3

The com ments to this rule state:

A prospective juror who has formed or expressed an opinion as to the merits of the case may still be

qualified to serve, but o nly upo n an unequivoca l showing of imp artiality. The Commission disapproves

of questions tending to lead the prospec tive juror or suggest partiality in the first instance, and also

disapproves of that procedure in “rehabilitating” the pro spective juro r into vo calizing impartiality.

Such a prospective juror should be held to be qualified only upon a truly unequivocal showing of

impa rtiality.

Tenn. R. Crim. P . 24, Advisory Com mission Co mments.

-16-

[DEFENSE]: You’ve read the Plain Talk4 . . . . stories about [the victim] , . . .back

in July of 1997, Debbie Graham and Denise Smith, [and the Defendant]. Have you

read anything in the Plain Talk that you recall about those individuals or these events.

....

[MARSHALL]: I don’t know if I read this or heard it. Exactly what’s in my mind

that I heard or read? . . . Two sisters had him to do it or something or other like that.

[DEFENSE]: Did you recognize his name when . . . .

[MARSHALL]: It has been so long ago I’d forgotten

[DEFENSE]: Do you recall how long ago that was that you heard that? Was it

around the . . .

[MARSHALL]: It was around the time that it happened.

[DEFENSE]: Do you recall anything else about it?

[MARSHALL]: The father had custody of the children.

[DEFENSE]: Okay. Anything else?

[MARSHALL]: I think that’s about all I remember.

[DEFENSE]: Did you form any kind of opinion back when you heard that anywhere

from that [the Defendant] wasn’t involved in it, may have been a little involved in it,

he was involved in it, did you form any opinion at that time?

[MARSHALL]: Well, anytime you read something in the paper you form an opinion,

you know.

[DEFENSE]: What opinion did you form at that time?

[MARSHALL]: You automatically think what you read in the paper is true.

[DEFENSE]: I understand. I don’t mean to put words in your mouth at all, but based

on what you recall reading did you form an opinion that [the Defendant] was or

wasn’t involved in it?

[MARSHALL]: Well, you think he is, I mean when you read something like that.

[DEFENSE]: Would it require some proof from the Defendant’s side to change that

opinion?

[MARSHALL]: No, the burden of proof is on the State.

[DEFENSE]: Has anything happened between the time that you read that or heard it

and I understand . . . that has changed your opinion in any way.

[MARSHALL]: My mind is open.

....

[DEFENSE]: [I]s there anything that you know about yourself that would cause you

any concern as far as your being able to be fair to both sides, the State and the

Defendant?

[MARSHALL]: No.

....

[THE COURT]: I want to ask a question or two, Mr. Marshall. You kind of

indicated some thought, opinion whatever came to your mind. I’m not sure really

whether it was an opinion. But you now say you’re open-minded but then you also

4

Plain Ta lk is a newspaper that circulates locally in Cocke County and which carried stories of the murder.

-17-

said that really nothing had happened to change that thought or opinion if we call it

that. And that raises a little bit of inconsistency. But I think I understood what you

were saying. Are you saying that you read the newspaper or whatever, some thoughts

came to your mind . . .

[MARSHALL]: Right

[THE COURT]: . . .now you have an open mind. Does that mean those thoughts are

not there now?

[MARSHALL]: Yeah.

[THE COURT]: And then the final question, and you’ve served on juries before.

Can you serve on this jury and decide this case based upon only the evidence that is

produced in this case and then the law that I’ll apply to that evidence?

[MARSHALL]: Yeah.

We hold that since Juror Marshall stated that the State had the burden of proof and indicated

that he could serve on the jury and decide the case based upon only the evidence and the law, the trial

court did not abuse its discretion in refusing to excuse Juror Marshall for cause.

While the State is correct that the Defendant waived the issue of whether the trial court erred

when it refused to excuse Juror Vick for cause by providing no citations to the record or any

argument, we briefly address this issue. During voir dire, the following questions were asked of, and

responses given by, Juror Vick:

[DEFENSE]: Let’s talk about the Plain Talk. What do you recall . . . [about] these

events back in July of ‘97. . . .

[VICK]: I mainly just recall reading. I probably made comments, I don’t know.

That’s too far back.

[DEFENSE]: Do you recall anything you read . . . .

[VICK]: Not in detail, no, I don’t remember . . . .

[DEFENSE]: . . . As you sit there do you recall any of the details that you read?

[VICK]: I remember reading that a girl and her sister had hired someone to kill her

husband. I don’t remember the names, I just don’t. . . .

[DEFENSE]: Do you recall any facts other than what you’ve just told us at any time

as far as reading the paper is concerned?

[VICK]: I remember reading that the two girls went to jail. I don’t remember the

details.

....

[DEFENSE]: . . . Do you recall forming any opinion of any type when you read what

you read?

[VICK]: Probably yes.

[DEFENSE]: What opinion do you recall?

[VICK]: I would imagine that I believed part of what I read. I do not believe all of

what I read. But I’m sure that I read enough to say this guy has killed so-and-so; oh,

that’s bad; or – I really, I don’t know what you’re expecting me to say . . . .

-18-

[DEFENSE]: Do you mean after you read what you read, and it may have been on

more than one occasion, that you did or didn’t form an opinion as to whether or not

[the Defendant] did any killing?

[VICK]: I would imagine that yes, I thought by reading it that I would say yes, he did,

you know.

[DEFENSE]: Has anything happened since then that has changed that opinion?

[VICK]: Being here changed it.

[DEFENSE]: How?

[VICK]: Because you’ve got to hear what’s in the courtroom.

[DEFENSE]: Would you have to hear something to change that opinion?

[VICK]: If you’re saying that I have formed an opinion and right this minute that I

say, yes, he’s guilty, I don’t know that yet.

[DEFENSE]: Not exactly what I’m saying but I’m asking if it would take some

evidence to overcome that prior opinion you formed?

[VICK]: I’d just have to hear what evidence is here to form an opinion either way.

[DEFENSE] Are you saying you don’t have an opinion now?

[VICK]: Well, I would say that I am a fair person and that I would have to hear. Like

you say, the State has to prove it, right? Okay. Like I said, I’ve been on enough

cases to know that I’ve been disappointed when I left because it wasn’t proven, I’m

sorry, you know. But that’s what I’m saying. Reading an article and you read and

it’s, like I say, it’s a happening and it’s over, you don’t think about it. But then when

you’re brought down here and you’re put in a position to where you have to judge it

makes a difference.

From this transcript, we hold that the trial court did not abuse its discretion when it refused

to excuse Juror Vick for cause. While Juror Vick mentioned that she read an article in the

newspaper, she clearly understood her duty as a juror to hear the evidence presented and to decide

the case on that evidence alone.

III. Evidentiary Issues

The Defendant contends that the trial court improperly admitted, and refused to admit,

multiple pieces of evidence and testimony. First, the Defendant contends that the trial court

improperly admitted a handcuff key into evidence that was found on him when he was arrested.

Second, the Defendant contends that the trial court erred when it admitted pictures of his tattoos into

evidence. Third, the Defendant contends that the trial court erred when it refused to admit into

evidence drawings that were made by Brittany Smith, which allegedly depicted the victim as being

mean. Finally, the Defendant contends that the trial court improperly admitted into evidence

testimony of his co-defendants.

In Tennessee, admissibility of evidence is within the sound discretion of the trial judge. State

v. Saylor, – S.W.3d –, E2001-00604-SC-R11-CD, 2110 WL 22238947 (Tenn. Sept. 30, 2003). The

determination of whether proffered evidence is relevant in accordance with Tennessee Rule of

-19-

Evidence 402 is left to the sound discretion of the trial judge, as is the determination of whether the

probative value of evidence is substantially outweighed by the possibility of prejudice pursuant to

Tennessee Rule of Evidence 403. State v. Kennedy, 7 S.W.3d 58, 68 (Tenn. Crim. App. 1999)

(citing State v. Forbes, 918 S.W.2d 431, 449 (Tenn. Crim. App. 1995)); State v. Burlison, 868

S.W.2d 713, 720-21 (Tenn. Crim. App. 1993)). In making these decisions, the trial court must

consider the questions of fact that the jury will have to consider in determining the accused’s guilt

as well as other evidence that has been introduced during the course of the trial. State v. Williamson,

919 S.W.2d 69, 78 (Tenn. Crim. App. 1995). We will only disturb an evidentiary ruling on appeal

when it appears that the trial judge arbitrarily exercised his discretion. State v. Baker, 785 S.W.2d

132, 134 (Tenn. Crim. App. 1989).

Initial questions of admissibility of evidence are governed by Tennessee Rules of Evidence

401 and 403. These rules require that the trial court must first determine whether the proffered

evidence is relevant. Pursuant to Rule 401, evidence is deemed relevant if it has “any tendency to

make the existence of any fact that is of consequence to the determination of the action more

probable than it would be without the evidence.” See Forbes, 918 S.W.2d at 449. In other words,

“evidence is relevant if it helps the trier of fact resolve an issue of fact.” Neil P. Cohen, et al.,

Tennessee Law of Evidence § 4.01[4], at 4-8 (4th ed. 2000).

After the trial court finds that the proffered evidence is relevant, it then weighs the probative

value of that evidence against the risk that the evidence will unfairly prejudice the trial. State v.

James, 81 S.W.3d 751, 757 (Tenn. 2002). If the court finds that the probative value is substantially

outweighed by its prejudicial effect, the evidence may be excluded. Tenn. R. Evid. 403. “Excluding

relevant evidence under this rule is an extraordinary remedy that should be used sparingly and

persons seeking to exclude otherwise admissible and relevant evidence have a significant burden of

persuasion.” James, 81 S.W.3d at 757-58 (quoting White v. Vanderbilt Univ., 21 S.W.3d 215, 217

(Tenn. Ct. App. 1999)).

A. Handcuff Key

The Defendant alleges that the trial court erred when it allowed the State to admit into

evidence a handcuff key that was confiscated from him when he was arrested. Tthe New York

officer testified that he found the key on the Defendant at the time of arrest and that the key did not

open the handcuffs that were found at the scene of the murder. The State claims that the Defendant

has waived his right to appeal this issue because he did not object to the key being entered into

evidence at trial. However, the record reflects that the Defendant filed a motion in limine to prevent

the State from introducing the handcuff key, which the trial court denied.5 We conclude that the

ruling was sufficiently clear that further objection at the trial was not necessary. See Goines v. State,

572 S.W.2d 644, 649 (Tenn. 1978); State v. Gallaher, No. E2001-01876-CCA-R3-CD, 2003 WL

21463017, at *2 (Tenn. Crim. App., at Knoxville, June 25, 2003). The Defendant need not renew

5

During the pre-trial hearing the Defendant’s attorney stated, “And I think I understood the Court ruled that the

hand cuff key does come in?” and the trial judge responded, “I d id.”

-20-

his objection during the trial to save the issue for appeal; therefore, the Defendant has not waived

this issue.

The Defendant asserts that the handcuff key was not relevant pursuant to Tennessee Rule of

Evidence 401 and therefore inadmissible pursuant to Tennessee Rule of Evidence 402. Further, the

Defendant asserts that, even if relevant, the probative value of the handcuff key was substantially

outweighed by the danger of unfair prejudice pursuant to Tennessee Rule of Evidence 403. At the

hearing on the Defendant’s motion for new trial, the trial court stated:

I’m going to have to overrule [the admittance of the handcuff key] as a grounds for

a motion for new trial. The handcuff key, even though it came at a later time [than

the arrest], was relevant. Quite frankly, wasn’t it proven at trial that it didn’t fit? It

cut both ways and I think it was admitted with the understanding that it didn’t fit.

You all checked it, you know, before it was ever actually introduced. So I felt that

it was relevant.

But then on the other hand, and I realize there are times that items like this

could have been offered to be introduced and it would have been improper to do it,

but under the facts of this case that’s just another piece of evidence. It was

something that he possessed at the time. You know, had he possessed let’s say

marijuana or drugs or something, that might not have been admissible. But under the

particular facts of this case it was relevant and should have been admitted and of

course was admitted.

The trial court determined that the handcuff key was relevant, and we conclude that the trial

court did not abuse its discretion by so determining. Brittany Smith testified that the Defendant was

carrying handcuffs when she met him and before he left with Denise Smith in the rental car.

Detectives found handcuffs at the scene of the victim’s murder. The Defendant was in possession

of a handcuff key at the time of his arrest. In light of this, the trial court did not abuse its discretion

when it determined that the handcuff key was relevant.

Similarly, we find that the trial court did not abuse its discretion when it determined that the

probative value of the handcuff key was not substantially outweighed by its prejudicial effect. As

the trial court noted, the handcuff key found on the Defendant did not fit the handcuffs that were

found at the scene of the crime. The trial court accurately stated that this evidence “cut both ways.”

Therefore, we conclude that this issue is without merit.

B. Pictures of Tattoos

The Defendant next alleges that the trial court erred when it allowed the State to admit

pictures of his tattoos into evidence because this evidence “was not necessary” since “Brittany Smith

identified the Defendant from the witness stand without the aid of tattoos.” Conversely, the State

contends that the trial court properly admitted the pictures, because the pictures “were highly

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relevant to demonstrate that Brittany Smith recognized and could accurately identify the Defendant.”

The trial court found that the photographs were relevant and admissible, stating, “I don’t know that

I can even say that they were prejudicial . . . .”

To be admissible, a photograph must be relevant to some issue at trial and the danger of

unfair prejudice, confusion of the issues, or misleading the jury must not substantially outweigh its

probative value. Tenn. R. Evid. 403; State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978); Gallaher,

2003 WL 21463017, at *2. The determination of the admissibility of photographs lies within the

sound discretion of the trial court. Gallaher, 2003 WL 21463017, at *2. Before any photograph can

be admitted into evidence it must be verified and authenticated by a witness with knowledge of the

facts. Banks, 564S.W.2d at 949-50.

The trial court’s discretion to allow a jury to “view certain aspects of an individual’s physical

appearance, such as tattoos or scars” is recognized in 3 Warton’s Criminal Evidence § 16:20 (15th

ed. 1999). See State v. Henderson, No. W2000-00607-CCA-R3-CD, 2001 WL 912759 (Tenn. Crim.

App., at Jackson, Aug. 10, 2001), perm. app. denied (Feb. 11, 2002) (holding that did not violate the

defendant’s constitutional rights when it required the defendant to display his teeth to the jury); see

also State v. Henderson, 623 S.W.2d 638, 641 (Tenn. Crim. App. 1981) (holding that the trial

judge’s forcing the defendant to display to the jury a distinctive tattoo on his arm did not violate the

defendant’s Fifth Amendment right against self-incrimination); Black v. State, 479 S.W.2d 656, 658

(Tenn. Crim. App. 1972) (holding that the trial court did not err when it required the defendant to

stand up before the jury to present a front and side view that revealed a disfigurement that was

previously referred to by a witness).

While the cases cited above address whether compelling a defendant to reveal a scar or tattoo

violates a defendant’s constitutional right against self-incrimination, we find that they are instructive

to our holding in the case under submission because in none of these cases was it considered

inflammatory, cumulative or unnecessary to compel the defendant to reveal tattoos or scars. In fact,

in all of these cases, the evidence was considered relevant and admissible. Similarly, the

photographs of the Defendant’s tattoos were both relevant and admissible. The evidence in this case

was purely circumstantial, and one of the issues was whether Brittany Smith correctly identified the

Defendant. Brittany Smith testified that she noticed the Defendant’s tattoos upon first meeting the

Defendant, and she described those tattoos to the jury. Therefore, the photographs of the tattoos

were highly relevant to Brittany Smith’s credibility and to her identification of the Defendant.

Further, in light of the many cases that hold that this evidence does not violate the Defendant’s

constitutional rights, we find that this evidence is not unduly prejudicial. Accordingly, we conclude

that trial court did not abuse its discretion by admitting the photographs of the Defendant’s tattoos.

C. Brittany Smith’s drawings

The Defendant contends that the trial court erred when it refused to allow him access to the

file that the Department of Children’s Services created prior to Debbie Smith’s divorce from the

victim because “if there is evidence in that file which would reflect on the credibility of Brittany

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Smith, then [the Defendant] should be entitled to that and should have been entitled to that at the

time of trial.” The file contained some pictures that Brittany Smith drew before the divorce. The

Defendant also contends that it was error for the trial court to not allow the “introduction of the

findings of the divorce court as it related to allegations that Brittany [Smith] made . . . .” In his brief,

the Defendant makes no citations to the record and, accordingly, has waived this issue pursuant to

Tennessee Rule of Criminal Procedure 10(b).

Assuming the Defendant did not waived this issue, it is without merit. The trial court

reviewed the records in camera and determined that nothing contained therein was in any way

relevant to Brittany Smith’s credibility or any other issue at trial. After thoroughly reviewing the

records, we agree with the trial court that they contain no relevant evidence and, pursuant to

Tennessee Rule of Evidence 401, the trial court did not abuse its discretion when it determined that

the evidence was inadmissible. Accordingly, we conclude that this issue is without merit.

D. Statements of Co-defendants

The Defendant contends that the trial court erred when it allowed the State to admit evidence

that Denice Smith and Deborah Graham made statements to various witnesses that they would kill

the victim or have the victim killed, including statements made to: Sharon Jarvis; Sandra Strange;

Christine Loveday; and Martin Giovi. The trial court determined that these statements were hearsay,

but that they were admissible pursuant to Tennessee Rule of Evidence 803(3), which is commonly

referred to as the “state of mind” exception. On appeal, the State concedes that it was error for this

testimony to be admitted pursuant to Rule 803(3) relying on State v. Long, 45 S.W.3d 611 (Tenn.

Crim. App. 2000), but contends that the testimony was admissible as admissions by a party-

opponent, pursuant to Tennessee Rule of Evidence 803(1.2). We agree with the State on both

accounts.

The Defendant objects to the testimony of Jarvis, Strange, Loveday and Giovi, based upon

hearsay grounds. The respective statements of the respective witnesses are as follows: (1) Jarvis’s

testimony that, sometime between June of 1996 and August of 1996, Denice Smith told her that she

was concerned that the victim would get custody of the children and, on three occasions, told her

that, if the victim did get custody, she would kill him; (2) Strange’s testimony that, sometime

between May of 1997 and July of 1997, Denice Smith inquired whether Strange “knew anybody

[who] could do a job for her? And I asked her what kind of job that she wanted done, and she said

that she would like to have [her] husband taken care of . . . ”; (3) Loveday’s testimony that Denice

Smith told her, on more than one occasion, that if her husband ever got custody of the children, she

would kill him or have him killed; and (4) Giovi’s testimony that Deborah Graham requested that

he “go down there and kill” the victim on three or four occasions between 1994 and 1995.

Hearsay is a “statement, other than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid. 801(c). A

hearsay statement is not admissible except as provided by the rules of evidence or otherwise by law.

Tenn. R. Evid. 802. The trial court admitted the statements pursuant to the so called “state of mind”

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exception to the hearsay rule found in Tennessee Rule of Evidence 803(3). The State properly

concedes, and we hold, that this was error. The state of mind exception can only be used to show

the declarant’s conduct. Tenn. R. Evid. 803(3). This Court has concluded:

Only the declarant’s conduct, not some third party’s conduct, is provable by this

hearsay exception. If the statement had been admitted solely to prove [the

declarant’s] conduct . . . the statement would have been admissible. However, it is

clear that the statement was entered to prove Defendant’s conduct, not [the

declarant’s] and for this reason, should not have been admitted.

Long, 45 S.W.3d at 623; see Tenn. R. Evid. 803(3), Advisory Commission Comments. In the case

under submission, it is clear that the State offered the testimony of these four witnesses to prove that

Denice Smith and Deborah Graham did, in fact, hire or secure the Defendant to kill the victim.

Therefore, this evidence was not properly admissible pursuant to the state of mind exception.

While the State concedes this error, it contends that the aforementioned statements fall into

another exception, that of “a statement by a co-conspirator of a party during the course of and in

furtherance of the conspiracy.” See Tenn. R. Evid. 803(1.2)(E). The rationale for this exception is

the principle of agency, under which each conspirator is bound to the actions and statements made

by other conspirators during the course of and in furtherance of a common purpose. State v. Henry,

33 S.W.3d 797, 801 (Tenn. 2000) (citing Tennessee Law of Evidence § 803(1.2).6, at 521 (3rd ed.

1995)). The Tennessee Supreme Court stated that:

[F]or a statement to be admissible under this exception, the prosecution must

establish: 1) that there is evidence of the existence of a conspiracy and the

connection of the declarant and the defendant to that conspiracy; 2) that the

declaration was made during the pendency of the conspiracy; and 3) that the

declaration was made in furtherance of the conspiracy.

Id. at 801-02. These requirements must be established by a preponderance of the evidence. State

v. Stamper, 863 S.W.2d 404, 406 (Tenn. 1993). If a conspiracy is shown to exist, the co-

conspirator’s statement is admissible even though no conspiracy has been formally charged. State

v. Lequire, 634 S.W.2d 608, 612 (Tenn. Crim. App. 1981); see State v. Alley, 968 S.W.2d 314 316

(Tenn. Crim. App. 1997).

1. Evidence of Existence of Conspiracy

We must first determine whether the State established by a preponderance of the evidence

the existence of a conspiracy and the connection of the declarants, here Denice Smith and Deborah

Graham, and the Defendant. A conspiracy is defined as “a combination between two or more

persons to do a criminal or unlawful act or a lawful act by criminal or unlawful means.” State v.

Carruthers, 35 S.W.3d 516, 555 (Tenn. 2000) (citing Alley, 968 S.W.2d at 316; State v. Gaylor, 862

S.W.2d 546, 553 (Tenn. Crim. App. 1992); State v. Houston, 688 S.W.2d 838, 841 (Tenn. Crim.

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App. 1984); Lequire, 634 S.W.2d at 612). The State only has to show an implied understanding

between the parties, not formal words or a written agreement, in order to prove a conspiracy. Gaylor,

862 S.W.2d at 553. “The unlawful confederation may be established by circumstantial evidence and

the conduct of the parties in the execution of the criminal enterprises.” Id.

We find that the State proved the existence of a conspiracy and established the connection

between Denice Smith and Deborah Graham and the Defendant. There was ample evidence that

Denice Smith and Deborah Graham both sought to have the victim killed and that Deborah Graham

was soliciting someone to kill the victim for her sister as early as 1995. The Defendant was seen

“riding around” with Deborah Graham in the summer before the victim’s murder. Eight days prior

to the murder, a package containing drugs was mailed to the victim from a post office 300 yards from

the Defendant’s home and contained Deborah Graham’s fingerprints. Upon leaving Tennessee,

Denice Smith went to Florida, where Deborah Graham was living and where she had befriended the

Defendant. After meeting with Denice Smith and Deborah Graham, the Defendant left with Deborah

Graham for a couple of days and, when he returned, he met with Denice Smith and Deborah Graham

and told Denice Smith that “we’ve killed someone.” It is clear from this evidence that, by a

preponderance of the evidence, the State established that evidence of a conspiracy existed as early

as 1995 and established the connection of Deborah Graham, Denice Smith and the Defendant to the

conspiracy.

2. Declaration Made During Pendency of Conspiracy

Next, we must determine whether the State established by a preponderance of the evidence

that the statements at issue were made during the pendency of the conspiracy. For a statement of a

co-conspirator to be admissible:

[I]t must have been made “during the course of” the conspiracy which means that the

conspiracy must have been ongoing at the time the statement was made. If the

conspiracy had not yet begun or had ended when the statement was made, the

declaration is not admissible under this hearsay exception, although it may still be

admissible under some other exception.

State v. Walker, 910 S.W.2d 381, 385 (Tenn. 1995). “Where a conspiracy exists, ‘everyone entering

into the conspiracy is a party to every act which has before been done by the others and to every act

by the others afterward in furtherance of the common design.’” Carruthers, 35 S.W.3d at 556 (citing

Owens v. State, 84 Tenn. 1, 4 (1885)). “All acts or declarations of conspirators, or of any of them,

may be given in evidence against all, from the time the conspiracy had its origin until its design has

been consummated, or until it is abandoned.” Owens, 84 Tenn. at 1.

We find that the State proved by a preponderance of the evidence that all four statements to

which the Defendant objects were made during the pendency of the conspiracy between Denice

Smith and Deborah Graham. At the time that Deborah Graham requested that Giovi kill the victim,

Deborah Graham was living in New York, and the stories of the victim’s abuse were relayed to her

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by Denice Smith. Further, from subsequent events, we can infer that it was upon Denice Smith’s

request that Deborah Graham attempted to find someone to murder the victim.

While it is clear each of the statements were made during the pendency of the conspiracy

between Denice Smith and Deborah Graham, the question remains whether the Defendant is

responsible for statements made during the pendency of the conspiracy, but prior to his joining the

conspiracy. Using the holding in Carruthers as guidance, we hold that everyone entering into the

conspiracy is a party to every statement, as well as act, which has been done before by the others in

furtherance of the conspiracy. This holding accords with holdings of other courts interpreting the

federal counterpart to Tennessee Rule of Evidence 803(1.2)(E) and other similar state rules of

evidence. See United States v. Cassity, 631 F.2d 461, 464 (6th Cir.1980) (adopting the holding

articulated in United States v. United States Gypsum Co., 33 U.S. 364, 393 (1948) that “[w]ith the

conspiracy thus fully established, the declarations and acts of the various members, even though

made or done prior to the adherence of some to the conspiracy, become admissible against all as

declarations or acts of co-conspirators in aid of the conspiracy”); United States v. Rocha, 916 F.2d

219, 240 (5th Cir. 1990) (holding that any statements of the defendants co-defendants made in

furtherance of a conspiracy in which the defendant was a participant were admissible, including

statements made before the defendant joined the conspiracy since there was evidence of the

defendant’s subsequent knowledge and willingness to participate in the conspiracy); United States

v. Brown, 755 F.Supp. 942, 946 (D. Colo. 1991) (holding that “[Federal Rule of Evidence]

801(d)(2)(E) permits admission of co-conspirator statements against a defendant who joins the

conspiracy after the statements are made”); People v. Beck, 593 P.2d 371, 373 (Colo. App. 1979)

(holding that “[t]he acts and declarations of co-conspirators, even those occurring prior to a

defendant’s involvement, may be admitted against the defendant”). Accordingly, we find that the

statements to which the Defendant objects were made during the pendency of the conspiracy between

Denice Smith and Deborah Graham and, even though the Defendant did not join the conspiracy until

after the statements were made, he is responsible for them since there was evidence of his subsequent

knowledge and willingness to participate in the conspiracy.

3. Declaration in Furtherance of Conspiracy

As we have determined that all four statements meet the first two prongs of the test, we must

now decide whether the statements were made “in furtherance of” the conspiracy. To be in

furtherance of the conspiracy, the statement must be one that will advance or aid the conspiracy in

some way. State v. Heflin, 15 S.W.3d 519, 523 (Tenn. Crim. App. 1999). In Carruthers, the court

explained that:

[A] statement may be in furtherance of the conspiracy in countless ways. Examples

included statements designed to get the scheme started, develop plans, arrange for

things to be done to accomplish the goal, update other conspirators on the progress,

deal with arising problems, and provide information relevant to the project. While

such statements are ordinarily made to other conspirators, Rule 803(1.2)(E) does not

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so require. Statements to third parties may qualify if in furtherance of the conspiracy.

Carruthers, 35 S.W.3d at 555-56 (citing Tennessee Law of Evidence, § 803(1.2)(6), p. 552). Casual

conversations are not made “in furtherance of” the conspiracy unless they somehow advance the

objectives of the conspiracy. State v. Hutchison, 898 S.W.2d 161, 170 (Tenn. 1994).

We conclude that Denice Smith’s inquiry of Strange about whether Strange “knew anybody

[who] could do a job for her? And I asked her what kind of job that she wanted done, and she said

that she would like to have [her] husband taken care of . . .,” and Deborah Graham’s request that

Giovi “go down there and kill [the victim]” were both in furtherance of the conspiracy. The aim of

the conspiracy was to kill the victim, and the sisters attempted to achieve this end by procuring

someone to kill the victim. The evidence indicated that, after a period of searching for someone to

commit the murder, the sisters successfully retained the services of the Defendant, who the jury

found killed the victim. The sisters’ prior statements attempting to locate someone to kill the victim

were both in furtherance of the conspiracy that the Defendant later joined.

Conversely, we conclude that the statements made by Denice Smith to Jarvis and Loveday

to the effect that if the victim got custody of the children she would kill him or have him killed were

not in furtherance of the conspiracy. Denice Smith’s statements were merely a declaration of her

intent that did absolutely nothing to advance or aid the conspiracy in any way. Indeed, these

statements appear to be a part of a casual conversation rather than an attempt to further the

conspiracy. Thus, we agree with the Defendant that the trial court erred when it allowed Jarvis and

Loveday to testify about Denice Smith’s statements. However, we conclude that this error is

harmless in light of the fact that the testimony of Strange and Giovi was admissible and was nearly

identical and even more condemning.

IV. Prosecutorial Misconduct

The Defendant contends that the prosecutor made two improper statements to the jury in his

closing argument. First, the Defendant contends that the prosecutor gave the jury an incorrect

definition of “reasonable doubt.” Second, the Defendant contends that the prosecutor improperly

informed the jury that it did not matter whether the Defendant committed the murder, as long as the

Defendant was “sitting in the car.”

The Tennessee Supreme Court “has long recognized that closing arguments are a valuable

privilege that should not be unduly restricted.” Terry v. State, 46 S.W.3d 147, 156 (Tenn. 2001)

(citing State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978)); State v. Goltz,111 S.W.3d 1, 5 (Tenn.

Crim. App. 2003). “Consequently, attorneys are given greater leeway in arguing their positions

before the jury, and the trial court has significant discretion in controlling these arguments, to be

reversed only upon a showing of an abuse of that discretion.” Terry, 46 S.W.3d at 156 (citing Sutton,

562 S.W.2d at 823); see Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975); Goltz, 111 S.W.3d at

5. This Court has explained that “[closing] arguments must be temperate, based upon the evidence

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introduced at trial, relevant to the issues being tried, and not otherwise improper under the facts or

law.” Goltz, 111 S.W.3d at 5 (citing Coker v. State, 911 S.W.2d 357, 368 (Tenn. Crim. App. 1995)).

When an appellate court finds an argument to be improper, “the established test for

determining whether there is reversible error is whether the conduct was so improper or the argument

so inflammatory that it affected the verdict to the Appellant’s detriment.” Goltz, 111 S.W.3d at 5

(citing Harrington v. State, 215 Tenn. 338, 385 S.W.2d 758, 759 (1965)). In measuring the

prejudicial impact of an improper argument, this Court should consider the following factors: “(1)

the facts and circumstances of the case; (2) any curative measures undertaken by the court and the

prosecutor; (3) the intent of the prosecution; (4) the cumulative effect of the improper conduct and

any other errors in the record; and (5) the relative strength or weakness of the case.” Goltz, 111

S.W.3d at 5-6 (citing Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976)); see State v.

Buck, 670 S.W.2d 600, 609 (Tenn. 1984).

In Goltz, this Court found that within the closing argument, five general areas of

prosecutorial misconduct are recognized:

1. It is unprofessional conduct for the prosecutor intentionally to misstate the

evidence or mislead the jury as to the inferences it may draw.

2. It is unprofessional conduct for the prosecutor to express his [or her] personal

belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of

the defendant. See State v. Thornton, 10 S.W.3d 229, 235 (Tenn. Crim. App. 1999);

Lackey v. State, 578 S.W.2d 101, 107 (Tenn. Crim. App. 1978); TENN.CODE OF

PROF’L RESPONSIBILITY DR 7-106(c)(4).

3. The prosecutor should not use arguments calculated to inflame the passions or

prejudices of the jury. See Cauthern, 967 S.W.2d at 737; State v. Stephenson, 878

S.W.2d 530, 541 (Tenn. 1994).

4. The prosecutor should refrain from argument which would divert the jury from

its duty to decide the case on the evidence, by injecting issues broader than the guilt

or innocence of the accused under the controlling law, or by making predictions of

the consequences of the jury’s verdict. See Cauthern, 967 S.W.2d at 737; State v.

Keen, 926 S.W.2d 727, 736 (Tenn. 1994).

5. It is unprofessional conduct for a prosecutor to intentionally refer to or argue facts

outside the record unless the facts are matters of common public knowledge.

Goltz, 111 S.W.3d at 6 (quoting S TANDARDS RELATING TO THE PROSECUTION FUNCTION AND THE

DEFENSE FUNCTION §§ 5.8-5.9 Commentary (ABA Project on Standards for Criminal Justice,

Approved Draft 1971)).

The Defendant first contends that the prosecutor made an improper statement by incorrectly

defining “reasonable doubt” in his closing argument. However, the Defendant failed to object to this

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particular comment at trial and did not raise this issue in his motion for new trial.6 Therefore, the

Defendant has waived this issue on appeal. Tenn. R. App. P. 3(e) and 36(a); State v. Walker, 910

S.W.2d 381, 386 (Tenn. 1995). Even if we were to consider this issue, we conclude that it lacks

merit. At the end of the his closing argument, the prosecutor stated the following:

His Honor’s going to charge you that when looking at this proof and deciding guilt

or innocence, you must decide, in deciding whether or not there’s reasonable doubt,

is whether or not the mind can rest easily upon the certainty of guilt. Well, I humbly

submit to you that in the face of all of this proof, that if you decide to turn this man

loose and let him walk away, that your minds will never rest easy. Thank you.

After thoroughly reviewing the prosecutor’s closing argument, we conclude that the prosecutor’s

comment about “reasonable doubt” was not improper. The prosecutor based his comment upon the

definition of “reasonable doubt” found in the jury instructions. The trial court gave the jury the

following instruction regarding reasonable doubt: “Reasonable doubt is that doubt engendered by

an investigation of all the proof in the case and an inability after such investigation to let the mind

rest easily as to the certainty of guilt. . . .” The Defendant did not object to this jury instruction at

trial. We conclude that the prosecutor’s comment clearly conforms to this “reasonable doubt” jury

instruction, and the trial court did not abuse its discretion by allowing the prosecutor to make this

comment.

Next, the Defendant contends that the prosecutor improperly informed the jury that it did not

matter whether the Defendant committed the murder, as long as the Defendant was “sitting in the

car.” The prosecutor made the following statement in his closing argument:

Any doubt in anybody’s mind, I submit to you, but that Deborah Graham was

involved in this murder? Any doubt? It’s uncontradicted. She told her boyfriend

Marty Giovi of her involvement in this murder. It’s uncontradicted that she came up

here to Tennessee and went back in that white Buick. And it’s uncontradicted that

this man came with her. And there was no other explanation that’s come from that

witness stand as to why he was with her. And the only reasonable explanation could

be it was to come up here and take care of Aaron Smith. And it didn’t matter if he

was in there and pulled the trigger, it didn’t matter if he was sitting out in the car.

But he sure as heck wasn’t in Gatlinburg. There’s absolutely no proof on this stand

coming in here and telling you he was ever in Gatlinburg. . . .

We conclude that the prosecutor’s comment in this instance was not improper. The prosecutor

argued that the Defendant was guilty of first degree murder, whether he “pulled the trigger” or was

“sitting out in the car.” Indeed, such an argument is consistent with the State’s theory that the

6

The Defendant’s attorney only objected to the prosecutor’s alleged comm ents about the Defendant not

testifying and his comments about how the Defendant was guilty, whether he pulled the trigger or was just sitting in the

car.

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Defendant conspired with Denice Smith and Deborah Graham to kill the victim because the victim

obtained custody of his children. The State’s theory was that the Defendant was criminally

responsible as a party to first degree murder if the murder was committed by the Defendant’s own

conduct, by the conduct of another for which the Defendant was criminally responsible, or by both.

The trial court gave extensive instructions regarding “criminal responsibility.” We conclude that the

prosecutor’s comment was consistent with the trial court’s jury instructions. Accordingly, we

conclude that the trial court did not abuse its discretion by allowing the prosecutor to make this

comment.

V. Sufficiency of the Evidence

The Defendant contends that the trial court erred when it refused to grant his request for a

judgment of acquittal because the evidence was insufficient to sustain a conviction. When an

accused challenges the sufficiency of the evidence, an appellate court’s standard of review is

whether, after considering the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Tenn.

R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324 (1979); State v. Smith, 24 S.W.3d 274, 278

(Tenn. 2000). This rule applies to findings of guilt based upon direct evidence, circumstantial

evidence, or a combination of both direct and circumstantial evidence. State v. Pendergrass, 13

S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).

In determining the sufficiency of the evidence, this Court should not re-weigh or re-evaluate

the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); State v. Matthews, 805 S.W.2d

776, 779 (Tenn. Crim. App. 1990). Nor may this Court substitute its inferences for those drawn by

the trier of fact from the evidence. Buggs, 995 S.W.2d at 105; Liakas v. State, 286 S.W.2d 856, 859

(Tenn. 1956). Questions concerning the credibility of the witnesses, the weight and value of the

evidence, as well as all factual issues raised by the evidence are resolved by the trier of fact. Liakas,

286 S.W.2d at 859. This Court must afford the State of Tennessee the strongest legitimate view of

the evidence contained in the record, as well as all reasonable inferences which may be drawn from

the evidence. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Because a verdict of guilt against

a defendant removes the presumption of innocence and raises a presumption of guilt, the convicted

criminal defendant bears the burden of showing that the evidence was legally insufficient to sustain

a guilty verdict. Id.

Sufficient evidence was presented in this case for a rational jury to convict the Defendant of

first degree murder pursuant to Tennessee Code Annotated section 39-13-202. That code section

states: “First degree murder is: (1) A premeditated and intentional killing of another; (2) A killing

of another committed in the perpetration of or attempt to perpetrate any first degree murder, act of

. . . robbery, burglary, theft, kidnapping . . . .” Tenn. Code Ann. 39-13-202. The evidence presented,

while primarily circumstantial, was sufficient for this conviction.

The two sisters, Denice Smith and Deborah Graham, were heard to say that they wanted

Denice Smith’s husband killed. Deborah Graham requested that her boyfriend kill Denice Smith’s

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husband, and Denice Smith inquired about finding someone to kill the victim for her. Denice

Smith’s husband then got custody of their children, and she fled with the children to Florida

whereupon she met with, among others, Deborah Graham and the Defendant in the presence of her

children. Brittany Smith, Denice Smith’s daughter, identified the Defendant in court as the man

present at this meeting and described the Defendant’s tattoos. A short time after the meeting,

Deborah Graham and the Defendant left in a rental car for a few days. While driving this rental car

on the day of the murder, the Defendant was stopped and cited for speeding in Tennessee. When

Deborah Graham and the Defendant returned to Florida, Brittany Smith heard the Defendant say that

“we’ve killed someone.” The Defendant pawned jewelry at a pawn shop that was later identified

to be jewelry taken from the victim’s home. When questioned by police about his trip in the rental

car with Deborah Graham, the Defendant stated that the couple went to Detroit, but according to the

mileage on the rental car, such a trip was impossible. However, the mileage on the rental car was

consistent with a round trip to the victim’s home and back to Florida. We conclude that this

circumstantial evidence is sufficient to convict the Defendant of first degree murder.

VI. Trial Court’s Instructions

The Defendant contends that the trial court erred when it instructed the jury by: (1) giving

the jury a flight instruction; (2) instructing the jury on the criminal responsibility of another; and (3)

improperly stating “if [the Defendant] had been proved guilty say so.”

A. Flight Instruction

The Defendant contends that the trial court erred when it gave a jury instruction on flight

because there was no evidence of flight, rather “the evidence was that [the Defendant] was present

in Tennessee and removed himself from the State of Tennessee by returning to Miami, Florida where

he lived. At a later point in time, [the Defendant] removed himself from Miami to New York, where

he had previously lived.” The Defendant in his brief makes no citations to the record and the issue

is, therefore, waived. Tenn. R. Crim. P. 10(b); see also Tenn. R. App. P. 27(a)(7). However, even

had the Defendant not waived this issue, it is without merit.

The trial court instructed the jury that:

The flight of a person accused of a crime is a circumstance which, when considered

with all the facts of the case, may justify an inference of guilt. Flight is the voluntary

withdrawal of oneself for the purpose of evading arrest or prosecution for the crime

charged. Whether the evidence presented proves beyond a reasonable doubt that the

defendant fled is a question for your determination. The law makes no precise

distinction as to the manner or method of flight. It may be open or it may be a

hurried or concealed departure or it may be a concealment within the jurisdiction.

However, it takes both a leaving the scene of the difficulty and a subsequent hiding

out, evasion or concealment in the community or a leaving of the community for

parts unknown to constitute flight. If flight is proved, the fact of flight alone does not

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allow you to find that the defendant is guilty of the crime alleged. However, since

flight by a defendant may be caused by a consciousness of guilt, you may consider

the fact of flight if flight is so proven together with all of the other evidence when

you decide the guilt or innocence of the defendant. On the other hand, an entirely

innocent person may take flight and such flight may be explained by proof offered

or by the facts and circumstances of the case. Whether there was flight by the

defendant, the reasons for it and the weight to be given to it are questions for you to

determine.

This instruction is taken verbatim from the Tennessee Pattern Jury Instructions. See 7 Tenn.

Practice, Tenn. Pattern Jury Inst.–Criminal 42.18 (5th ed. 2000). This pattern jury instruction is a

correct statement of the applicable law and has been previously cited with approval by our court.

See, e.g., State v. Kendricks, 947 S.W.2d 875, 885-86 (Tenn. Crim. App. 1996). In order for a trial

court to charge the jury on flight as an inference of guilt, there must be sufficient evidence to support

such instruction. There is sufficient evidence to support a jury charge on flight where there is proof

of “both a leaving the scene of the difficulty and a subsequent hiding out, evasion, or concealment

in the community, or leaving the community for parts unknown.” State v. Burns, 979 S.W.2d 279,

289-90 (Tenn. 1998) (quoting State v. Payton, 782 S.W.2d 490, 498 (Tenn. Crim. App. 1989)); State

v. Franks, No. W2003-0003-CCA-R3-CD, 2003 WL 22351024 (Tenn. Crim. App., at Jackson, Oct.

14, 2003), perm. app. filed (Nov. 13, 2003).

In the case under submission, there is sufficient evidence for the trial court to instruct on

flight. LaShawn Taylor, the mother of the Defendant’s son and long-time girlfriend, testified that,

after she and the Defendant were stopped by the police and the Defendant spoke with the police, he

came to her work place and got her car. Taylor further stated that, at the end of her work day, the

Defendant picked her up and took her to her mother’s house. Taylor testified that the Defendant left

her at her mother’s house and said he would be “right back,” but he never returned. The next time

she saw the Defendant was the day of trial, but she had spoken with him and told him the police were

looking for him. From this testimony, it is clear that there was proof that the Defendant left the

scene of his “difficulty” and did not return, even though he knew that the police were looking for

him. We conclude this evidence was more than sufficient to support the flight instruction.

B. Criminal Responsibility of Another Instruction

The Defendant also contends that the trial court erred when it instructed the jury on criminal

responsibility of another because “there was simply no evidence to show that [the Defendant] was

involved in the crime in any way.” The Defendant again makes no citations to the record and,

accordingly, the issue is waived. Tenn. R. Crim. P. 10(b); see also Tenn. R. App. P. 27(a)(7).

However, even had the Defendant not waived this issue, it is without merit.

The trial court instructed the jury:

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The defendant is criminally responsible as a party to the offense of First

Degree Murder if the offense was committed by the defendant’s own conduct, by the

conduct of another for which the defendant is criminally responsible or by both.

Each party to the offense may be charged with the commission of the offense. The

defendant is criminally responsible for an offense committed by the conduct of

another if acting with the intent to promote or assist the commission of the offense

or to benefit in the proceeds or results of the offense the defendant solicits, directs,

aids or attempts to aid another person to commit the offense.

Before you find the defendant guilty of being criminally responsible for said

offense committed by the conduct of another, you must find that all the essential

elements of said offense have been proven by the State beyond a reasonable doubt.

This instruction accords with the law of this state. Tenn. Code Ann. §§ 39-11-401, -402 (2003).

Criminal responsibility is not a separate crime. State v. Lemacks, 996 S.W.2d 166, 170 (Tenn.

1999). “It 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.” Id. To be criminally responsible for the acts

of another, the defendant must “‘in some way associate himself with the venture, act with knowledge

that an offense is to be committed, and share in the criminal intent of the principle in the first

degree.’” State v. Maxey, 898 S.W.2d 755, 757 (Tenn. Crim. App. 1994) (quoting Hembree v. State,

546 S.W.2d 235, 239 (Tenn. Crim. App. 1976)); see State v. Phillips, 76 S.W.3d 1, 9 (Tenn. Crim.

App. 1999).

In the case under submission, it is clear that the evidence was sufficient for the trial court to

instruct the jury on criminal responsibility. While it was unknown who fatally shot the victim

because there were no eyewitnesses to the crime, the circumstantial evidence showed that the

Defendant actively participated in the crime. First, the Defendant drove Deborah Graham in the

vehicle while in Tennessee, as evidenced by his speeding ticket. Second, Brittany Smith heard the

Defendant say, “We’ve killed someone.” This evidence was sufficient to warrant an instruction on

criminal responsibility.

C. Instruction on Return of Jury’s Verdict

The Defendant also contends that the trial court erred when it instructed the jury on the return

of the jury’s verdict. In its entirety, the Defendant’s brief states:

[The Defendant] insists that the trial court erred in giving an instruction as to what

to do if the jury found him guilty, but not stating in that same instruction what to do

if the jury found him not guilty. “It is the duty of the trial court to give a complete

charge of the law applicable to the facts of the case.”

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The Defendant again makes no citations to the record and, accordingly, the issue is waived. Tenn.

R. Crim. P. 10(b); see also Tenn. R. App. P. 27(a)(7). However, even had the Defendant not waived

this issue, it is without merit.

The trial court instructed the jury as follows: “If [the Defendant] has been proved guilty, say

so, keeping constantly in mind that it would violate your sworn duty to base any verdict on anything

but the evidence and the law in this particular case.” The trial court also instructed the jury that:

As I told you before at the very beginning of this case, it isn’t a question of whether

the State of Tennessee wins or loses a case, because ladies and gentlemen, our state

always wins when justice is done regardless of whether the verdict of the Jury is

guilty or not.

We conclude that, from these instructions, the jury was clearly aware of its duty and was in no way

encouraged by the trial court’s instructions to return a guilty verdict. Therefore, we conclude that

this issue is without merit.

VI. Witnesses in Courtroom

The Defendant contends that the trial court erred when it allowed “Cletus Smith7 and Robert

Caldwell to remain in the courtroom during the trial.” However, the Defendant does not provide any

citations to the record or to any legal authority to support his contention. Therefore, we find that he

waived this issue on appeal. Tenn. R. Crim. P. 10(b); see also Tenn. R. App. P. 27(a)(7). Further,

this issue is simply without merit. Cleta Smith was the victim’s mother, and the prosecution

designated her as a party for the victim. Tennessee Rule of Evidence 615, which allows for the

exclusion of witnesses at trial, clearly states that “this rule does not authorize exclusion of . . . a

person designated by counsel for a party that is not a natural person.” The other witness to which

the Defendant objects is Robert Caldwell, the investigating officer. Caldwell was excluded from

trial, but the Defendant objects to his being allowed to sit at the prosecutor’s table during voir dire

when he was “not the prosecutor.” The Defendant has cited no legal authority for his position and

it is simply without merit.

Accordingly, we find that there was no reversible error in the judgments of the trial

court and the trial court is, therefore, AFFIRMED.

___________________________________

ROBERT W. WEDEMEYER, JUDGE

7

W e assume that the D efendant is referring to the victim’s mother Cleta S mith as the re is no evidence o f a

“Cletus Smith” present at trial.

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