State of Tennessee v. Jerry Wayne Pointer

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs June 19, 2002

STATE OF TENNESSEE v. JERRY WAYNE POINTER

Direct Appeal from the Criminal Court for Davidson County

No. 2000-A-302 Cheryl Blackburn, Judge

No. M2001-02269-CCA-R3-CD - February 28, 2003

The defendant, Jerry Wayne Pointer, was convicted of first degree premeditated murder and

sentenced as a violent offender to life imprisonment without parole. On appeal, he contends that the

trial court erred in denying his motions to suppress evidence seized from his person and his home,

in ruling that his prior convictions were admissible for impeachment purposes, in allowing testimony

of a prior violent incident between him and the victim, and, additionally, that the evidence at trial

was insufficient to support his conviction for first degree premeditated murder. Following our

review, we affirm the judgment of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which DAVID G. HAYES and ROBERT W.

WEDEMEYER, JJ., joined.

Ross E. Alderman, District Public Defender; Jeffrey A. DeVasher, Assistant Public Defender (on

appeal); and Jonathan F. Wing, Assistant Public Defender (at trial), for the appellant, Jerry Wayne

Pointer.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;

Victor S. Johnson, III, District Attorney General; and Katrin N. Miller and Bret T. Gunn, Assistant

District Attorneys General, for the appellee, State of Tennessee.

OPINION

The defendant raises the following issues on appeal:

I. Whether the trial court erred in denying the defendant’s motions to

suppress evidence seized from his person prior to his arrest and from

his residence;

II. Whether the trial court erred in ruling that the defendant’s prior

convictions were admissible for impeachment purposes;

III. Whether the trial court erred in ruling that a prior violent incident

between the defendant and the victim was admissible as substantive

evidence; and

IV. Whether the evidence at trial was insufficient to support the

defendant’s conviction for first degree premeditated murder.

FACTS

One of the defendant’s issues on appeal questions the propriety of the trial court’s rulings

following two motions to suppress, with some of the witnesses testifying at the hearings as well as

during the trial. Accordingly, to place the motions and testimony into context, we will review the

chronology of the prosecution of this matter.

On February 20, 2001, the defendant’s motion to suppress the search of his residence was

heard, with Detective Steve Cleek, Officer James Pearce, and Detective David Carrell of the

Nashville Metro Police Department testifying for the State and Dr. Pamela Auble testifying for the

defendant. On March 16, 2001, the trial court considered the defendant’s motion to suppress the

search of his person, relying upon the testimony from the hearing on the previous motion to suppress.

Since, in our review of the rulings of the trial court on the two suppression motions, we consider the

evidence presented both during the hearings on the motions as well as at trial, we will set out the trial

testimony with references, where appropriate, to the testimony presented during the two suppression

hearings.

Sometime before midnight on September 20, 1999, Delores Morris was standing outside her

house at 2403 Buchanan Street in Nashville when she heard the sounds of breaking glass and “a

woman hollering, screaming,” coming from 2407 Buchanan where the defendant lived with his

girlfriend, the victim in this case, Teresa Ann Barksdale. Concerned, Morris moved closer to the

defendant’s house to investigate. She thought she saw someone come out the defendant’s window,

but then the lights went out and there was no other activity. Going about her business, Morris left

the neighborhood. Upon her return thirty minutes later, she observed a burning fire in the backyard

of 2405 Buchanan, an abandoned house between her house and that of the defendant, and called the

police to alert them to the fire. Based on her earlier observations of the activity at the defendant’s

house, Morris also told the police that she thought it was a body that was burning.

The Nashville Metro Fire Department arrived at the scene and began extinguishing what

Captain Herbert Williams characterized as a small “trash fire.” According to Captain Williams’

testimony, they quickly put out the fire and then he noticed what he thought was a body. To get a

closer look, he shined his flashlight and observed “teeth and a small framed person.”

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Sergeant Antionette Regnier, a Metro police officer for nine years, testified as to the

condition of the victim’s body:

[The victim’s] hands were behind [her] back. There was a phone

cord . . . wrapped around the person’s neck. The feet were gone, and

I thought – I found out later this is what happens when a body burns,

but it looked like someone had tried to chop up the body, dismember

it, because of the way the skin was open, and the body was very badly

– it just looked really bad, and I had never seen one look like that.

Sergeant Regnier proceeded to secure the scene and notify homicide detectives.

On the scene by this point were Officer James Pearce and Detective Steve Cleek who

initiated a canvas of the neighborhood, first approaching the defendant’s house because it was next

door to the crime scene. They noticed a shattered window, with the broken glass still on the porch.

The defendant answered the door wearing only his boxer shorts, dress socks, and house shoes. When

asked about the matter, the defendant initially said he had not seen or heard anything but then said

he had noticed the fire and the firefighters next door. He explained that he did not report the fire

because he liked to keep to himself. He said that the window was broken earlier that night when he

drunkenly leaned up against it. However, neither Pearce nor Cleek believed that the defendant was

intoxicated at the time they talked with him. The defendant told them that his “old lady,” Teresa

Barksdale, and her two children also lived with him, spelling her name as “B-A-R-S-D-A-L-E.” He

said that the children were asleep and that Barksdale was a crack addict and a prostitute who

generally walked the streets all night long, so “he wasn’t too concerned about her.” With the

defendant’s consent, Pearce and Cleek performed a “health and welfare” check to make sure the

children were safe. They entered the house, walked directly to the children’s bedroom, and saw that

they were asleep. Cleek observed that the “curtains were down on the bed” in another bedroom of

the house. As they were leaving the house, Pearce noticed what appeared to be grass on the

defendant’s shirtless back. Pearce asked the defendant whether it was grass or paint on his back and

he replied that it was paint; however, Pearce determined that it was grass by brushing some off the

defendant’s back. Cleek testified that the defendant “was real short with his answers and he seemed

nervous and kind of like shaky” and did not ask about the fire. Pearce and Cleek finally left,

informing the defendant that someone might return to ask additional questions.

Officer Pearce and Detective Cleek, now joined by Detective David Carrell, subsequently

returned to the defendant’s house. This time, the defendant came to the door wearing blue jeans,

with the officers’ testimony differing as to whether he was wearing a shirt. Because the defendant

had changed into pants with pockets, Officer Pearce told him, “[T]here is a dead body next door.

If you don’t mind, . . . I’m going to pat you down and make sure you don’t have any weapons,” to

which the defendant replied, “[T]hat’s fine.” The defendant was found to have a pocketknife in one

pants pocket and a cigarette lighter in the other.

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Detective Carrell asked the defendant about the broken window, and testified that this time

the defendant said that he intentionally punched the window during a Monday night football game

because he was upset that the Dallas Cowboys lost.

Carrell then entered the defendant’s house a second time, describing at trial what he saw:

[A]s I began to look around, I saw blood. I saw – I went into the

master bedroom. I saw blood on a telephone and the cord, all down

the cord, just spiraling down, it was blood. . . . [T]he boots at the foot

of the bed had blood, what appeared to be blood. There was [sic]

some matches on the bed.

Next to the bed at the head of the bed, against the wall where

the window was that was broken was kind of a nightstand, a little

chest, a little table, and it had blood on it, and some of it was a little

thick, drops of kind of thick blood, what I thought to be blood, and

then there was blood on the floor. There was a folding chair that was

spattered all over with blood, just everywhere, lower rungs, back,

seat, under the seat. There was some that was cast-off blood against

the wall.

Because he realized a more thorough search would be required, Carrell ordered everyone out of the

house so that he could obtain a search warrant, which, subsequently, was obtained and executed.

Additionally, officers saw blood on a backpack and in the kitchen and found a trash bag containing

blood-saturated shorts and boxer shorts, as well as an empty bottle of bleach and bleach-soaked rags

that appeared to have been used in a cleaning attempt. A lighter, matches, and a butcher knife were

found in the immediate vicinity of the defendant’s house, and a can of charcoal lighter fluid was

found near the victim’s body. Blood was found on the defendant’s person, and his hands had what

appeared to be fresh cuts and bruises.

The defendant was placed under arrest for the murder of the victim1 and taken into custody.

At the police station, Detective Carrell again spoke with the defendant who repeatedly said that he

did not understand what was happening. Reading from his supplemental report, Carrell testified as

to what he told the defendant:

I believe that the relationship between you and [the victim] had

deteriorated to the point that your confrontations had become

increasingly physical and violent. He [the defendant] nodded his

head up and down affirmatively. I said, When you got home from

work last night around 5:00, you never dreamed that within a few

hours, you would get so angry at [the victim] that you would hurt her.

1

The victim’s bod y had b een identified b y a family memb er by this p oint.

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He nods his head from side to side, and I said, Before you knew it,

you were hitting her. You pushed her through the window. You

chased her through the backyard and into the yard next door . . . and

then by that time, you were so angry, you strangled her, tied her up,

and set her on fire. Then you were afraid. You tried to clean up the

blood in the house. You changed your clothes and hoped all this was

just a bad dream, a nightmare. He nodded his head up and down. I

said, Jerry, when you first met [the victim], you would never have

thought in a million years that it would end like this. You would have

never believed that some day, you would get so angry at this woman

. . . that you would end up killing her. He nodded his head from side

to side . . . negatively.

Tara Barker, employed as a special agent forensic scientist by the Tennessee Bureau of

Investigation (“TBI”), testified that test results showed petroleum distillate, an ingredient commonly

found in charcoal lighter fluid, was present on the victim’s shirt. TBI Special Agent Forensic

Scientist Michael Turbeville testified that forensic DNA tests showed that it was the victim’s blood

that was found on the defendant’s person and the cigarette lighter found in his pocket, as well as on

the mattress, boots, boxer shorts, and chair seized by the police.

An autopsy of the victim showed that her death was a homicide caused by manual

strangulation which, according to the medical examiner’s testimony, requires constant pressure on

the victim’s throat, the victim generally losing consciousness after thirty to forty seconds and dying

after three to four minutes. The victim had been beaten before she was killed; a telephone wire was

wrapped around her neck four times and then run down her back where it was wrapped around her

wrists. A piece of glass was embedded in her breast. Her skin was extensively charred, and severe

heat had caused her legs to fracture and her skin to split open in many areas. The medical examiner

testified that the victim was dead before she was set on fire. No drugs or alcohol were found in her

system. Although the cause of death was manual strangulation, the medical examiner testified that

either the ligature strangulation or the fire was sufficient to cause death.

At trial, a neighbor testified as to an incident that occurred four or five weeks before the

murder. Sometime between 1:30 and 2:00 a.m. at that earlier time, Larry Clopton, who lived across

the street from the defendant, responded to loud knocking at his front door. Opening the door,

Clopton saw the defendant hiding behind a van and the victim in front of the next-door neighbor’s

house trying to get inside. The victim was wearing only a slip and her foot was bleeding. Clopton

and his wife brought the victim inside their house, and the defendant returned to his house across the

street. According to Clopton’s testimony, the victim was “hysterical, terrified, fearing for her life,”

and kept repeating, “[H]e is going to kill me, he is going to kill me.” Clopton added that the victim

said she and the defendant had been fighting and she had to jump out a window because the

defendant was going to kill her. Clopton then telephoned the victim’s family to come get her.

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While they were waiting for the victim’s family, the defendant knocked on Clopton’s door

and asked to speak with the victim. Clopton went outside and spoke with the defendant who

appeared calm and convinced Clopton that the incident was over and that he just wanted to talk with

the victim. Fearing that the defendant was armed, the victim was reluctant to come outside. The

victim searched the defendant but found nothing. The victim’s sister, Fay Cummins, and brother-in-

law arrived to pick up the victim and, as they were leaving, the defendant suddenly attacked the

victim. Clopton testified: “[H]e broke for her . . . and he started beating her in the back of the head,

and in her back, and then he reach[ed] in his back pocket and pull[ed] out this butcher knife.” The

victim’s sister testified that “as [the victim] proceeded to get into the truck, [the defendant] started

to hit her, started fighting her, hitting her in the head, and my husband, Virgil, grabbed her arm to

pull her up into the truck, and as he was pulling her into the truck, [the defendant] pulled out a knife

that came from behind his back, and started stabbing at her, and he caught her on her ankle.” The

victim escaped when her family pulled her into their vehicle car and drove away. However, two

weeks later, the victim returned to live with the defendant.

Dr. Pamela Auble was the only defense witness to testify at trial. She said that the defendant

had an IQ of 65 when she tested him. He read at a third grade level and could write, although his

spelling was not “very good.” She described her analysis of the defendant:

He is suffering from an adjustment disorder with anxiety and

depression which is just simply a reaction to the circumstances in

which he feels badly. He feels anxious and depressed. He suffers

from intermittent explosive disorder, which is a disorder in which –

it is impulse control disorder in which people lose control of

themselves, even without much provocation. They can lash out and

sort of have a rage attack is what it is. It is often associated with his

cognitive deficits; deficits in reasoning and in flexibility, which, in

fact, he showed on my testing. He also had some language problems.

He has a history of alcohol abuse. That would be a diagnosis, and

right now, he is functioning in a retarded range. I don’t think he has

always been retarded from the school records, but that is where his

functioning is right now.

Dr. Auble testified that she had reviewed the facts of the matter for which the defendant was

then being tried and found “they were consistent with an outburst of anger that resulted in a physical

altercation that did not appear to be planned out with any forethought particularly.” In her opinion,

the defendant was not capable, at the time of the crime, of forming the mental state for first or second

degree murder.

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ANALYSIS

I. Motions to Suppress

The defendant filed a motion to suppress the cigarette lighter and pocketknife seized from

him, arguing that there was no “reasonable and articulable suspicion necessary to justify” the search

of his person and, even if the search were justified, its scope was beyond that allowed. Additionally,

he filed a motion to suppress the search of his home, arguing that his “consent to the search was not

unequivocally, specifically, and intelligently given” but was the “product of duress and coercion.”

The defendant argues on appeal that the trial court erred in denying both of these motions, claims

which we now will review.

A. Standard of Review

In State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996), our supreme court clarified the standard

of review to be applied to trial court rulings on suppression issues:

Questions of credibility of the witnesses, the weight and value

of the evidence, and resolution of conflicts in the evidence are matters

entrusted to the trial judge as the trier of fact. The party prevailing in

the trial court is entitled to the strongest legitimate view of the

evidence adduced at the suppression hearing as well as all reasonable

and legitimate inferences that may be drawn from that evidence. So

long as the greater weight of the evidence supports the trial court's

findings, those findings shall be upheld. In other words, a trial court's

findings of fact in a suppression hearing will be upheld unless the

evidence preponderates otherwise. . . . Hereafter, the proper standard

to be applied in reviewing suppression issues is the “preponderance

of the evidence” standard.

“The application of the law to the facts found by the trial court, however, is a question of law which

this Court reviews de novo.” State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997). Additionally,

evidence introduced both at trial and a suppression hearing may be considered when evaluating a

trial court’s ruling on a pretrial motion to suppress. State v. Henning, 975 S.W.2d 290, 299 (Tenn.

1998).

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B. Applicable Law

The Fourth Amendment of the United States Constitution and Article I, Section 7, of the

Tennessee Constitution protect against unreasonable searches and seizures.2 To that end, both

constitutions set forth the requirement of a warrant to safeguard the right to be secure in our persons

and houses from “‘arbitrary invasions of government officials.’” State v. Bridges, 963 S.W.2d 487,

490 (Tenn. 1997) (quoting Camara v. Municipal Court, 387 U.S. 523, 528, 87 S. Ct. 1727, 1730, 18

L. Ed. 2d 930 (1967)). “Under both the federal and state constitutions, a warrantless search or

seizure is presumed unreasonable, and evidence discovered as a result thereof is subject to

suppression unless the State demonstrates by a preponderance of the evidence that the search or

seizure was conducted pursuant to one of the narrowly defined exceptions to the warrant

requirement.” State v. Simpson, 968 S.W.2d 776, 780 (Tenn. 1998). Several exceptions to the

warrant requirement exist, one of which is a protective frisk, commonly referred to as a “Terry frisk,”

explained by Terry v. Ohio, 392 U.S. 1, 30-31, 88 S. Ct. 1868, 1884-85, 20 L. Ed. 2d 889 (1968):

[W]here a police officer observes unusual conduct which leads him

reasonably to conclude in light of his experience that criminal activity

may be afoot and that the persons with whom he is dealing may be

armed and presently dangerous, where in the course of investigating

this behavior he identifies himself as a policeman and makes

reasonable inquiries, and where nothing in the initial stages of the

encounter serves to dispel his reasonable fear for his own or others'

safety, he is entitled for the protection of himself and others in the

area to conduct a carefully limited search of the outer clothing of such

persons in an attempt to discover weapons which might be used to

assault him. Such a search is a reasonable search under the Fourth

Amendment, and any weapons seized may properly be introduced in

evidence against the person from whom they were taken.

When assessing the reasonableness of the officer’s suspicion, the court must determine whether there

were “specific and articulable facts which, taken together with rational inferences from those facts,

reasonably warrant that intrusion.” Id., 392 U.S. at 21, 88 S. Ct. at 1879 (footnote omitted). “The

officer need not be absolutely certain that the individual is armed,” id., 392 U.S. at 27, 88 S. Ct. at

1884, for the purpose of a Terry frisk is the protection of the police officer and any others who may

be nearby. Id., 392 U.S. at 29, 88 S. Ct. at 1884. Thus, a Terry frisk passes constitutional muster

so long as the police officer had a reasonable, particularized suspicion that the suspect is armed.

Bridges, 963 S.W.2d at 502.

Evaluating the reasonableness of a police officer’s suspicion requires a fact specific analysis,

Terry, 392 U.S. at 30, 88 S. Ct. at 1884, and consideration can be given to the nature of the crime

2

Although not a mirror image of its constitutional counterp art, “Article I, § 7, is identical in intent and purpo se

with the Fourth Amendment.” Snee d v. State, 221 Tenn. 6, 13, 42 3 S.W .2d 8 57, 8 60 (196 8).

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suspected. State v. Winn, 974 S.W.2d 700, 703 (Tenn. Crim. App. 1998) (“A frisk has been upheld

as reasonable when the suspected crime might typically involve the use of a weapon; for example,

a suspicion of robbery, burglary, rape, assault with a weapon, homicide, and large scale narcotics

trafficking might allow an officer to reasonably infer that a weapon might be in the possession of the

suspect.”).

C. Search of the Defendant’s Residence

The defendant first filed, and the trial court denied, a pretrial motion to suppress evidence

obtained during a search of his house. He argues that his signed consent to the search was ineffective

because it was not given voluntarily or intelligently.

Detective Carrell testified at the pretrial hearing on the motion to suppress the search of the

defendant’s house of the defendant’s signing the consent form:

Q And tell us about the consent to search. Who got that form?

A Officer Pearce had – I think his police car was the closest to

the front porch. He said, I’ve got some – I requested it and he

went to the car and I believe he got it out of his trunk and

brought it to the porch. I was busy doing something, I don’t

know, and he handed it to Detective Cleek. I think Detective

Cleek deferred to me and I said, Go ahead and read to him.

And I stood there and he read it to him.

Q And did Mr. Pointer appear to understand the meaning of

what Detective Cleek was reading?

A Yes, he did. Detective Cleek read it, read the whole thing off

the paper, and as I recall, he said, Do you have any questions

or is there anything you don’t understand about it? And I

remember he told him he could stop it at anytime, just let us

know, just tell us to stop, and you have that right. I do

remember Mr. Pointer – I think maybe Steve, Detective Cleek

said, If you want to read it, you can. And he said, I know how

to read. And he said, I do want to read it. So he took it and

he read it. After he read it, he signed it. And then I think two

or three other officers signed it.

Q Did he have any, or appear to have any difficulty in signing

his name?

A Not at all.

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The consent form signed by the defendant stated as follows:

I, Jerry Wayne Pointer, having been informed of my

constitutional right not to have a search made of the premises

hereinafter mentioned without a search warrant and of my right to

refuse to consent to such a search, hereby authorize Det. David

Carrell and other Det. and I.D. Unit criminal investigators for the

Metropolitan Police Department, Nashville, Davidson County,

Tennessee, to conduct a complete search of my premises located at

2407 Buchanan St. These investigators are authorized by me to take

from my premises any letters, papers, materials or other property

which they may desire.

This written permission is being given by me to the above

named criminal investigators voluntarily and without threats or

promises of any kind.

The form bears the signature of the defendant, as well as that of Officers Pearce, Boles, and Cleek.

To support the argument that his consent was given unintelligently, the defendant presented

the testimony of Dr. Pamela Auble, a psychologist. At the hearing, she testified that the defendant’s

current IQ of 65 put him in the “retarded range” and that he read at a third grade level.3 Dr. Auble

said that this reading level rendered him incapable of comprehending the consent form. Although

the defendant told the police that he had “gone all the way in school” when he requested to read the

consent form, his school records show that he left school in the ninth grade.4 Dr. Auble opined that

the consent form required a college education to understand. On cross-examination, Dr. Auble

testified that the defendant understood and followed all of the instructions required to take the tests

she administered and it was possible that he could understand the instructions when explained to him

orally, even if reading them may have posed a problem.

Following the pretrial hearing on the defendant’s motion to suppress the search of his house,

the trial court concluded that the search was lawful:

Well, I have heard the proof on this issue and I think Dr. Auble

testified that his level of intelligence, and then she said the form was

given to someone and this sort of, I guess, is somewhat hearsay, that

Dr. Casey Allen, who is with the Bill Wilkerson Center here,

indicates that form would require somebody with 16 years of

3

Apparently, the defendant’s IQ has decreased with age. When tested in elementary school, his IQ was as high

as 79 which is above the retarded range.

4

During his evaluation by Dr. Auble, the defendant maintained that he did, in fact, graduate from high school.

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education, which would require, I can add up, would require a college

degree in order to understand a consent form.

The consent form is what it is and that is that somebody has

been advised of their rights not to have a search made of the premises

without a search warrant, and their right to refuse to consent to a

search. And, therefore, they authorize the investigator to take from

the premises any letters, papers, materials or other property, and the

permission is given without threats or promises of any kind.

Now, I have paraphrased. There are other words in there but

I think to its essence that really isn’t a form that would require a

college education to comprehend. But that being aside, I think the

testimony from Detective Cleek, Pearce, and Detective Carrell was

that it was Detective Cleek who read him the form, who went over

the words to him, he understood, they explained to him that they

could stop. Apparently he questioned about that. He then chose to

read it for himself. I do not believe there is any evidence in the record

that Mr. Pointer cannot read. And he clearly signed the form and has

done so. There is no evidence that there was any animosity, any

force, coercion in any event in this situation. There is also testimony

from the officers that he was not drinking, he appeared to understand

and was cooperative. And, as a matter of fact, he then, at one point,

and I believe this was a subject of another hearing, went and talked

to somebody who, then he decided not to make any further

statements. So he, obviously, had the capacity to stop the police and

they honored that request.

So all that being aside, I will find that – I will deny your

motion. I find that this consent was given voluntarily, knowingly and

understandingly, and it was not withdrawn. So that motion is denied.

Regarding the trial court’s finding that he consented to the search of his house, the defendant

contends on appeal that his consent was “an act of necessity rather than volition,” relying on the facts

that: (1) the police came to his door to ask him questions; (2) he answered the door in his underwear;

(3) it was after midnight; and (4) the police returned for further questioning. We now will assess

these claims.

In determining whether the defendant voluntarily consented to the search, we consider the

“totality of the circumstances,” as explained by State v. Ashworth, 3 S.W.3d 25, 28-29 (Tenn. Crim.

App. 1999):

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The burden of proof rests upon the State to show, by a preponderance

of the evidence, that the consent to a warrantless search was given

freely and voluntarily. Schneckloth [v. Bustamonte], 412 U.S. [218,]

248-49, 93 S. Ct. [2041,] 2059 [(1973)]; Bumper v. North Carolina,

391 U.S. 543, 548, 88 S. Ct. 1788, 1792, 20 L. Ed. 2d 797 (1968);

[State v.] Bartram, 925 S.W.2d [227,] 230 [Tenn. 1996].

The question of whether an accused voluntarily consented to

the search is a question of fact which focuses upon the totality of the

circumstances. Schneckloth, 412 U.S. at 248-49, 93 S. Ct. at 2059.

“In order to pass constitutional muster, consent to search must be

unequivocal, specific, intelligently given, and uncontaminated by

duress or coercion.” State v. Brown, 836 S.W.2d 530, 547 (Tenn.

1992).

Initially, we note that the defendant was not in custody at the time and the police were rightly

in his presence when his consent was requested. Although unclear from the record, it appears that

the police asked the defendant for his consent within a few minutes of their return to his house, and

asked only once. The record is absent of any evidence of express or implied duress or coercion, of

threats or force, or of deceit or trickery. There is no evidence that the defendant was intoxicated

other than the conflicting stories he gave to explain his broken window, and three police officers

testified that he did not appear intoxicated. According to his presentence report, he had at least six

prior arrests, some resulting in multiple charges, beginning in 1977, when he was 20 years old. It

appears that he had been imprisoned on at least three prior occasions, in 1982 following convictions

for burglary second degree, arson, and larceny from the person; in 1983 for larceny of an automobile;

and in 1989 for second degree murder. He was on parole from the second degree murder conviction

at the time of the offense which is the basis for the present appeal. Thus, we conclude that the

defendant had substantial prior experience with law enforcement officers, and was aware of his right

to refuse to consent to the search.

As we have previously set out, Dr. Auble testified at the hearing that she measured the

defendant’s IQ at 65 and his reading ability at a third grade level. However, the trial court disagreed

with Dr. Auble’s opinion that the consent form could be understood only by a person with a college

education. The court noted that officers testified that they read and explained the consent form to

the defendant, explicitly telling him that he had the right to refuse to give consent, and that he

appeared to understand the consent form and what it entailed. Later in the evening, the defendant

invoked his Miranda rights as he was being questioned. Accordingly, we conclude that the record

does not preponderate against the trial court’s finding that the defendant gave his voluntary,

knowing, and understanding consent to the search of his house.

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D. Search of the Defendant’s Person

The defendant’s motion to suppress the cigarette lighter found in his pocket was argued on

March 16, 2001. He argues that the lighter should have been suppressed “because Officer Pearce

did not have reasonable suspicion to believe that the defendant was armed with a weapon when he

conducted the ‘pat-down’ of the defendant.” Alternatively, the defendant argues that even if there

was “reasonable suspicion that [the defendant] was involved in the victim’s death, the search of the

defendant’s person” exceeded the permissible scope to be searched.

At the pretrial hearing on the defendant’s motion to suppress the search of his house, Officer

Pearce explained the basis for the search and its results:

Q Did you go back and introduce Mr. Pointer to Detective

Carrell?

A Yes, ma’am. We actually had to knock on the door again.

Mr. Pointer said he’d be at home so we went back over there

and knocked on the door again. Mr. Pointer came to the door

dressed in a pair of blue jeans and a t-shirt this time, very

well-pressed, clean blue jeans and a white t-shirt as I recall.

He came outside and there was a threat so I asked him if I

could pat him down and make sure he didn’t have any

weapons on him.

Q You didn’t do that the first time?

A . . . He had on a pair of boxer shorts so we pretty much had

the idea that he didn’t have anything on him. So I patted him

down; I forget which pocket it was in but in one pocket I

retrieved a knife, and the other pocket I felt what could have,

again, been a knife, but it ended up being a cigarette lighter.

I retrieved those two items, knowing that somebody had

burned next door, and they can turn cigarette lighters into

torches and all kinds of stuff these days, so I retrieved those

two items and we were standing there on the porch and I was

holding them in my hand as Detective Carrell started

questioning him.

The trial court denied the motion, concluding that, based upon the reasonable suspicion of

the police officers and the need to make certain of their safety, the search was permissible:

Okay. [Defense counsel], I’m going to address this issue, but

I’m not so convinced it is not waived for your not having raised it

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prior to this point, but the issue is, and I think what you need to keep

in mind is the whole constellation of why the police were even there

in the first place. They are responding to a call and they find this

body that has been burned in the lot next to the house that Mr. Pointer

lives in. They go and talk to him. Detective Cleek is suspicious,

based on just the way Mr. Pointer asked questions.

They get the name of Teresa Barsdale. They go to the

computer, try to check this out. They discuss among themselves

about Mr. Pointer. They go back to the door, and he is dressed in a

different outfit.

Now the first time they see him, he is boxer shorts, so the

police officer said they pretty much know he is not armed with a

weapon, but he has been back in the house. He has changed clothes.

The police officers are there investigating a homicide and they are

becoming very suspicious about Mr. Pointer, maybe not to the point

of arresting him, but this is sort of a Terry stop for officer safety, and

though it is unclear in my notes and, obviously, from the transcript

because nobody ever asked him, he said he asked him if he could pat

him down, and then patted him down.

Now he could have very well have said, yes, go ahead in

which case we have no issue, but in any event, I’m going to find that

it is, based on reasonable suspicion and for the officer’s safety at the

time and allow the State to introduce the cigarette lighter, so I deny

your motion.

Implicit in the trial court’s ruling on the search of the defendant’s person was the finding that

officers had reasonable suspicion to pat down the defendant. As the court recounted, officers had

discovered a burned body in the backyard of a house next door to the defendant’s residence. He gave

conflicting answers to their initial questions, changed clothes, and was acting in a fashion which they

believed to be suspicious, given the facts. All of these circumstances match the situation in which

officers may proceed, pursuant to Terry, and pat down a suspect. Explaining the search, Officer

Pearce testified at the suppression hearing that “in one pocket I retrieved the knife, and in the other

pocket, I felt what could have, again, been a knife, but it ended up being a cigarette lighter.” The

defendant argues that the cigarette lighter was seized after officers had exceeded the limits of a pat-

down search. Reviewing conflicting holdings as to the permissible scope of a pat-down search, 4

Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.5(c) (3d ed. 1996),

explains what the author believes as to the “better view”:

Under the better view, then, a search is not permissible when

the object felt is soft in nature. If the object felt is hard, then the

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question is whether its “size or density” is such that it might be a

weapon. But because “weapons are not always of an easily

discernible shape,” it is not inevitably essential that the officer feel

the outline of a pistol or something of that nature. Somewhat more

leeway must be allowed upon “the feeling of a hard object of

substantial size, the precise shape or nature of which is not

discernible through outer clothing,” which is most likely to occur

when the suspect is wearing heavy clothing. Under this approach,

courts have upheld as proper searches which turned up certain objects

other than guns, such as a pocket tape recorder, a pipe, a pair of

pliers, cigarette lighter, several keys taped together, a metal money

clip full of money, tightly wrapped bags of crack cocaine, or a

prescription bottle.

We conclude that the trial court did not err in its determination that the cigarette lighter was

lawfully seized from the defendant.

II. Admissibility of the Defendant’s Prior Convictions

The defendant argues that it was error for the trial court to rule that two 1983 burglary and

larceny convictions could be utilized for impeachment purposes if he testified at trial. He contends

that the convictions were inadmissible because they were more than ten years old, and (1) the State

failed to provide adequate notice of its intent to use them; (2) the trial court failed to set forth specific

facts to establish their probative value; and (3) whatever probative value they had did not outweigh

their prejudicial effect. In our view, we first note that while ruling that the defendant could be

questioned about his burglary and larceny convictions, the trial court also instructed that the State

could not utilize in its cross-examination the defendant’s 1989 second degree murder conviction for

which he then was on parole.

This issue is governed by Tennessee Rule of Evidence 609, which provides that a conviction

may be used to impeach the testimony of an accused in a criminal prosecution if the following four

conditions are satisfied: (1) the conviction is for a crime punishable by death or imprisonment in

excess of one year, or the conviction is for a misdemeanor which involved dishonesty or false

statement; (2) less than ten years has elapsed between the date the accused was released from

confinement and the commencement of the subject prosecution; (3) the State gives reasonable

pretrial written notice of the particular conviction or convictions it intends to use as impeachment;

and (4) the trial court concludes that the probative value of the prior conviction on the issue of

credibility outweighs its unfair prejudicial effect on the substantive issues. State v. Mixon, 983

S.W.2d 661, 674 (Tenn. 1999); Tenn. R. Evid. 609.

Additional safeguards are required if a conviction is more than ten years old, as were these.

Such convictions are only admissible if: (1) advance notice sufficient to provide the adverse party

with a fair opportunity to contest the use of such evidence is given; and (2) the trial court determines

-15-

that the probative value of the conviction, supported by specific facts and circumstances,

substantially outweighs its prejudicial effect. Tenn. R. Evid. 609(b). The trial court’s decision to

admit prior convictions for impeachment purposes will not be reversed on appeal unless it appears

from the record that the trial court abused its discretion. State v. Blanton, 926 S.W.2d 953, 960

(Tenn. Crim. App. 1996).

At a pretrial hearing, the trial court explained why the convictions could be used for the

purpose of impeachment if the defendant testified:

Now one of the things I have to look at is the probative value,

the notice that you might have. Clearly, you’ve been on notice for

some period of time.

I think I also have to look at the total picture, and that is the

State, he does have another conviction, murder, for which he was in

custody a good period of that time, and I’m not going to allow the

State to use that absent some opening of the door to make that

relevant.

Now keep in mind that it is still there, so that if Mr. Pointer

were to testify, he could very easily open that door on that one.

....

But given the facts of this case, and that is – and I’ve heard

enough hearings on this particular issue, that his credibility may, in

fact, become very, very crucial, and what the State is seeking to

introduce are two convictions: one is a burglary, which is definitely

a crime of dishonesty, and larceny, though it says from the person, it

still also goes to the very heart of what the jury would have to

determine.

I think that in the interest of justice, given the notice that has

been given, that I’m going to allow the State to use those for the

purpose of conviction, not the murder.

....

So the burglary and the larceny from a person, given this case,

and the crucial issues with regard to credibility, and the fact that these

are crimes that go to the very heart of credibility. It is not like a

possession for resale. It is not something that is not directly related

-16-

to credibility. Larceny is and so is burglary. These are crimes,

basically crimes of dishonesty.

The purpose of the notice requirement is to provide the opponent sufficient time to contest

the use of the evidence in advance of the cross-examination. See Neil P. Cohen et al., Tennessee

Law of Evidence, § 6.09[6][c] (4th ed. 2000). Here, the defendant learned of the State’s intent to

use the convictions at the March 16, 2001, pretrial motion hearing, with trial to begin four days later.

However, he did not object to the sufficiency of the notice or request a continuance to allow more

time to contest the use of the evidence. Accordingly, we conclude that this argument is waived.

However, even if it were not waived, we would conclude, for reasons which we will explain, that

it was without merit.

In determining whether the probative value of a conviction on the issue of credibility

outweighs its unfair prejudicial effect on the substantive issues, a trial court should assess, as the trial

court did in this matter, the similarity between the crime on trial and the crime underlying the

impeaching conviction and analyze the relevance the impeaching conviction has to the issue of

credibility. State v. Farmer, 841 S.W.2d 837, 839 (Tenn. Crim. App. 1992). The trial court made

the pretrial determination that the defendant’s prior second degree murder conviction was

inadmissible because of its similarity to the crime at issue. In assessing the probative value of the

burglary and larceny convictions, however, the trial court determined that they go “to the very heart

of what the jury would have to determine.” See State v. Baker, 956 S.W.2d 8, 15 (Tenn. Crim. App.

1997) (burglary and theft highly probative of credibility because both involve dishonesty). Thus, as

required by Rule 609, the trial court articulated specific facts establishing the probative value of the

convictions and then balancing it against the prejudicial effect. We cannot conclude that the trial

court abused its discretion in determining that the probative value of the convictions substantially

outweighed their prejudicial effect.

III. Admissibility of Prior Violent Incident

The defendant argues that it was error for the trial court to allow the testimony of Larry

Clopton and Fay Cummins about a prior violent altercation between the victim and the defendant,

contending that the testimony was inadmissible under any Tennessee Rule of Evidence 404(b)

exception or, in the alternative, that it should have been excluded under Rule 403 as a “needless

presentation of cumulative evidence.”

Rule 404(b) provides as follows:

Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs,

or acts is not admissible to prove the character of a person in order to

show action in conformity with the character trait. It may, however,

be admissible for other purposes. The conditions which must be

satisfied before allowing such evidence are:

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(1) The court upon request must hold a hearing outside the

jury’s presence;

(2) The court must determine that a material issue exists other

than conduct conforming with a character trait and must upon request

state on the record the material issue, the ruling, and the reasons for

admitting the evidence; and

(3) The court must exclude the evidence if its probative value

is outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b).

Generally, this rule is one of exclusion, and evidence is inadmissible that an accused has

committed some other crime or bad act independent of that for which he is charged. See State v.

Howell, 868 S.W.2d 238, 254 (Tenn. 1993). If, however, evidence of the other act is relevant to

some matter actually at issue in the case on trial and its probative value is not outweighed by the

danger of its prejudicial effect, the evidence may be admitted. See id. at 254. The recognized

exceptions to the exclusionary rule of 404(b) are when evidence is offered to prove the motive of the

defendant, his identity, his intent, the absence of mistake, opportunity, or as a part of a common

scheme or plan. See Bunch v. State, 605 S.W.2d 227, 229 (Tenn. 1980); Tenn. R. Evid. 404,

Advisory Commission Cmt.

When the trial court has substantially complied with the requirements of Rule 404(b), this

court reviews its decision to admit or exclude evidence under an abuse of discretion standard. See

State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997). The trial court in this case conducted the

appropriate jury-out hearing, concluding that the evidence was probative of two material issues –

intent and premeditation – and that the prejudicial effect did not outweigh the probative value.

Accordingly, we review this issue utilizing an abuse of discretion standard.

This evidence first was discussed in a pretrial hearing on February 20, 2001, with the trial

court advising counsel of the determinations to be made in this regard at the trial:

But, first of all, in a 404(B), I have to have a hearing outside

the jury’s presence which we’re doing now and will do in the future

if we need to. I have to determine that a material issue actually exists,

other than the propensity issue. That is, that the State has a reason for

introducing this testimony other than that based on a character trait.

And that I have to determine whether or not this other crime

evidence, whether or not the State has proved it by clear and

convincing evidence and that the defendant was involved. And

clearly, just based on what I’ve heard, if you have eye witnesses to

this and observed Mr. Pointer doing these acts that that would

-18-

certainly go well toward that clear and convincing test. And then I

guess whether the probative value is outweighed by the unfair

prejudice. Given that the issues I see that you’re trying as to motive,

intent, possibly some identity, but let me make this statement, it

would appear to me that that would be admissible with a limiting

instruction.

Now, for the purposes of trial preparation, you can assume

that some of that may come in but even if I don’t admit it, based on

what I hear at trial, because I have to determine at the point in time it

comes in that there is a material issue, that it may then come in in

rebuttal as to Dr. Auble’s testimony.

At trial, the parties again argued this matter, following a jury-out hearing at which Larry

Clopton testified, and the trial court then explained why his testimony would be allowed:

All right, so 404(b), requires, one, that I have a jury-out

hearing, which I’ve done. We’ve had some discussions about this in

the past, to hear exactly what it is, whether or not there is a material

issue. I think there clearly is in this particular case, not only intent,

but premeditation.

Also, at this point in the trial, I think there are two things that

I also need to consider. One is though it is not evidence, but at least

the statements made in the opening statements are clearly in front of

the jury and I can consider that in doing this, but I think more

important to me in terms of my decision is the cross-examination of

Detective Carrell, where [junior defense counsel] spent a great deal

of time going over the statements that Detective Carrell made to the

defendant and clearly has in front of the jury about whether this was

a spur of the moment, heat of passion sort of issue, which means that

issue is squarely in front of the court, even before Dr. Auble testifies.

The State’s got to prove premeditation, and that’s that it was

done after exercise and reflection and judgment and also it is

important because the charge says that they have to determine

whether the accused was sufficiently free from excitement and

passion as to be capable of premeditation. I talked to them about that

yesterday. I’ll tell them that again.

Given all that, I think the probative value is far greater than

the prejudice. Now, of course, I will instruct the jury appropriately,

and that is that they are to consider this for various – and they are

-19-

limited to the things that they can consider this for, but, and quite

honestly, I think also – I understand your point, [senior defense

counsel], about why he has to go on, but the fact that he is standing

there calmly talking about his brothers, he is assuring these people

that nothing is going to happen, and then he starts in again goes to

this very issue, especially about what Detective Carrell in that cross-

examination, because it shows that he is very calm and then when he

is in her presence, he is so determined to do otherwise, so I think the

jury can hear all that in terms of the relationship of the parties,

whether or not, and it goes to the premeditation and intent, so I will

instruct them appropriately but I’m going to allow that.

The defendant argues on appeal that the testimony of the prior incident was irrelevant to his

intent or motive to commit the crime, and did nothing more than demonstrate his propensity for

violence. However, evidence of violent episodes between a defendant and a victim are admissible

to establish motive for a killing. State v. Smith, 868 S.W.2d 561, 574 (Tenn. 1993); see also State

v. Turnbill, 640 S.W.2d 40, 47 (Tenn. Crim. App. 1982) (prior relations between the victim and the

defendant were relevant on the question of intent); State v. Glebock, 616 S.W.2d 897, 905-06 (Tenn.

Crim. App. 1981) (relations existing between the victim and the defendant prior to the commission

of the crime were relevant and indicative of hostility toward the victim and a settled purpose to harm

or injure). The testimony here depicted a turbulent relationship in which the defendant had

physically threatened and attacked the victim. The trial court, immediately following the testimony,

instructed the jury that the evidence was to be considered only as to motive, intent, or premeditation:

All right, before cross-examination, ladies and gentlemen, let

me give you some admonitions about how you are to receive this

testimony.

If from the proof you find that the defendant has committed

other crimes from that which he is on trial, you may not consider such

evidence to prove his disposition to commit such crime as he is on

trial. This evidence may only be considered by you for the limited

purpose of determining whether it provides, [A], a motive; that is,

such evidence may be considered by you if it tends to show a motive

of the defendant for the commission of the offense presently charged;

B, the defendant’s intent; that is, such evidence may be considered by

you if it tends to establish that the defendant actually intended to

commit the crime with which he is presently charged; or C, the

defendant’s premeditation. Such evidence of other crimes, if

considered by you for any purpose, must not be considered for any

other purpose than that which I’ve previously stated.

-20-

Because the testimony in question had the legitimate nonpropensity purpose to show motive or

intent, we conclude that the trial court did not abuse its discretion by admitting the testimony under

Rule 404(b).

Alternatively, the defendant argues that the evidence should have been excluded under Rule

403 as “needless presentation of cumulative evidence” because two witnesses testified about the

same incident. Rule 403 provides that, “Although relevant, evidence may be excluded if its

probative value is substantially outweighed by the danger of . . . needless presentation of cumulative

evidence.” The “cumulative evidence” category of exclusion under Rule 403 is directed towards

promoting judicial economy and efficiency rather than with excluding prejudicial evidence. See Neil

P. Cohen et al., Tennessee Law of Evidence, § 4.03[7] (4th ed. 2000). The admission of evidence

is largely discretionary and the trial judge’s discretion will not be disturbed on appeal unless there

has been clear abuse. State v. Harris, 30 S.W.3d 345, 350 (Tenn. Crim. App. 1999). There is no

basis for our doing so here.

IV. Sufficiency of the Evidence

The defendant argues that the evidence is insufficient to support a conviction for first degree

premeditated murder, because the State did not establish that the killing was premeditated. By this

argument, the evidence is only sufficient to support convictions for voluntary manslaughter, reckless

homicide, or, at most, second degree murder, all of which were charged to the jury as lesser-included

offenses.

In considering this issue, we apply the familiar rule that where sufficiency of the convicting

evidence is challenged, the relevant question of the reviewing court is “whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,

319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); see also State v. Evans, 838 S.W.2d 185,

190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992); Tenn. R.

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

aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a

reasonable doubt.”). All questions involving the credibility of witnesses, the weight and value to be

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

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

accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory

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

rationale for this rule:

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

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

and observe their demeanor on the stand. Thus the trial judge and

jury are the primary instrumentality of justice to determine the weight

and credibility to be given to the testimony of witnesses. In the trial

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forum alone is there human atmosphere and the totality of the

evidence cannot be reproduced with a written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464,

370 S.W.2d 523 (1963)). A jury conviction removes the presumption of innocence with which a

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

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

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

The defendant was convicted of first degree premeditated murder, which is defined in

Tennessee Code Annotated section 39-13-202 as:

(1) A premeditated and intentional killing of another;

....

(d) As used in subdivision (a)(1) "premeditation" is an act done after

the exercise of reflection and judgment. "Premeditation" means that

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

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

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

accused at the time the accused allegedly decided to kill must be

carefully considered in order to determine whether the accused was

sufficiently free from excitement and passion as to be capable of

premeditation.

Tenn. Code Ann. § 39-13-202(a)(1), (d) (1997).

The “element of premeditation is a question of fact” for the jury to determine based upon a

consideration of all the evidence. State v. Suttles, 30 S.W.3d 252, 261 (Tenn.), cert. denied, 531

U.S. 967, 121 S. Ct. 401, 148 L. Ed. 2d 310 (2000) (citing State v. Bland, 958 S.W.2d 651, 660

(Tenn. 1997)). Premeditation may be inferred from circumstantial evidence surrounding the crime,

including the manner and circumstances of the killing. See State v. Pike, 978 S.W.2d 904, 914

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

evidence of premeditation must, however, be “so strong and cogent as to exclude every other

reasonable hypothesis save the guilt of the defendant, and that beyond a reasonable doubt.” State

v. Crawford, 470 S.W.2d 610, 612 (Tenn. 1971). There are several factors that tend to evidence

premeditation:

the use of a deadly weapon upon an unarmed victim; the particular

cruelty of the killing; declarations by the defendant of an intent to

kill; evidence of procurement of a weapon; preparations before the

-22-

killing for concealment of the crime, and calmness immediately after

the killing.

Bland, 958 S.W.2d at 660.

While the defendant contends that none of these factors apply, we respectfully disagree. The

jury could have found that the defendant choked the victim for three or four minutes, wrapped a wire

around her neck and wrists,5 and set her body on fire. Any of these acts, done sequentially, was

independently sufficient to cause death. The violent altercation preceding the murder is evidence

of the defendant’s intent to kill the victim. See Turnbill, 640 S.W.2d at 47; Glebock, 616 S.W.2d

at 905-06. After the killing, the defendant changed his clothes and attempted to clean his house of

the victim’s blood. Applying these factors to the facts of this case, a reasonable jury could have

concluded that the murder was the premeditated result of a dutifully executed plan. Accordingly,

we conclude that the evidence supports the defendant’s conviction for first degree premeditated

murder.

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the judgment of the trial court.

___________________________________

ALAN E. GLENN, JUDGE

5

A “deadly wea pon” is statutorily defined as “anything that in the ma nner o f its use or intended use is capa ble

of causing death or serious bod ily injury.” T enn. C ode Ann. § 39-1 1-10 6(5)(B) (1997).

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