# State v. Looper

> Court of Criminal Appeals of Tennessee · February 3, 2003 · 118 S.W.3d 386

URL: https://www.frixlaw.com/law-library/cases/1073319

## Case

- **Full name:** STATE of Tennessee v. Byron LOOPER
- **Court:** Court of Criminal Appeals of Tennessee
- **Decided:** February 3, 2003
- **Citations:** 118 S.W.3d 386; 2003 Tenn. Crim. App. LEXIS 83; 2003 WL 222570
- **Precedential status:** Published
- **Opinion:** Opinion by Glenn
- **Judges:** Judge Alan E. Glenn
- **Cited by:** 22 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1073319

## How later opinions describe it (automated extraction)

- concluding that “[i]f the distance and means of travel would have permitted the defendant both to have been at the victim’s farm to commit the crime and, later that morning, to have been in Flowery Branch, the proof would not have established an alibi”
- recognizing that “the essence of an alibi is the physical impossibility of a defendant’s having been at the scene when the crime was committed”

## Opinion text

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
September 24, 2002 Session

STATE OF TENNESSEE v. BYRON LOOPER

Direct Appeal from the Criminal Court for Cumberland County
No. 5346 J. Steven Daniel, Judge

No. E2001-01550-CCA-R3-CD
February 3, 2003

The defendant, Byron Looper, was convicted of first degree murder and sentenced to life
imprisonment without the possibility of parole. He timely appealed, presenting as issues: (1) the
trial court erred in excluding the testimony of witnesses who would have testified as to his location
following the homicide, violating his right to due process; (2) the trial court erred in keeping under
seal the psychological records of one of the State’s witnesses; and (3) the evidence did not support
application of the aggravating factor that the homicide was committed because the victim was a state
official. Following our review, we affirm the conviction and the imposition of life without the
possibility of parole.

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 GARY R. WADE, P.J., and JOSEPH
M. TIPTON, J., joined.

John E. Herbison, Nashville, Tennessee (on appeal); McCracken Poston, Chattanooga, Tennessee
(at trial); and Ron Cordova, Newport Beach, California (at trial), for the appellant, Byron Looper.

Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General;
William E. Gibson, District Attorney General; and David A. Patterson and Anthony J. Craighead,
Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

To the extent possible, we will review the evidence in an order which is chronological to the
offense.

STATE’S PROOF

The victim, Tommy Burks, had lived in Cumberland County with his wife Charlotte for
approximately thirty years. He first had been a state representative and then a state senator, being
in the latter position for approximately twenty years prior to his death on October 19, 1998. The
defendant, Byron Looper, was the Putnam County Tax Assessor at the time.

Sergeant Joseph H. Bond, a Marine recruiter residing in Hot Springs, Arkansas, testified that
he had known the defendant since they were about 14 years old and in the ninth grade. They did not
see each other “for quite a while” after high school, Bond joining the Marines and the defendant
entering the United States Military Academy. He next saw the defendant around Christmas of 1985,
two years after they had graduated from high school, and, following that, in 1986, when the
defendant enrolled at the University of Georgia. He did not see the defendant again until
approximately ten years later. The defendant called him in May or June 1998 and said that he
wanted to stay in touch with Bond, and, about three weeks later, again telephoned Bond, asking if
he could visit him in Arkansas. Bond agreed, and the defendant came to Hot Springs shortly after
that, visiting in June 1998. Together they went to a bar and drank throughout the night. During this
evening, the defendant said that he was “either a senator or a congressman,” in Tennessee and,
accordingly, Bond introduced him as “Senator Looper.” Either later that night or the next morning,
the defendant admitted to Bond that he was “actually just running for office.”

During this weekend visit to Hot Springs, the defendant spoke of his interest in firearms,
saying that he had “been thinking about getting one.” He questioned Bond about the specifics of
firearms, “different calibers, how accurate they were, the ranges on them, and asked . . . about
silencers,” as well as “[c]oncealibility, what would be concealable in a crowd.” Later during the
visit, speaking of the election, the defendant said that “he had thought about killing [his opponent].”
Additionally, he said that “if there were only two people on the ballot, if one of them died 30 days
before the election, that he would automatically win.”

The defendant then came unannounced to Bond’s apartment in July or August 1998, where
he stayed for “a couple of days.” During this visit, the defendant “was more intent on getting a
weapon,” saying that “since the election was coming up, he needed one quick.” Although he had
no intention of doing so, Bond agreed to obtain a pistol for the defendant. Bond said he thought “the
election would go ahead and happen, and that would be it, and I wouldn’t hear anything else about
it.” After his departure, the defendant telephoned Bond “about every day, sometimes two, three, four
times a day,” wanting “to know if [Bond] had got him a pistol yet.” Bond made excuses for not
doing so, and did not obtain a pistol for the defendant. The defendant sent Bond a money order for
$150. The telephone calls from the defendant continued “[i]nside of a week of him leaving.”

William Lindsay Adams, Jr., testified that he resided in Baton Rouge, Louisiana, and
periodically worked “as a staff person for political campaigns around the country and in [his] own
state.” He would become affiliated with candidates by word of mouth or through trade publications.
In the July 1998 edition of Campaigns and Elections, he had seen a notice seeking “a campaign staff
or manager for a first tier campaign.” The advertisement provided a facsimile number to which to
respond but not the name or other information about the candidate. About three days after he had
faxed his résumé to the number, Adams received a telephone call from a person identifying himself
as “Byron Looper,” who said that he “had changed his name to Low Tax Looper.” Adams told of

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his “credentials,” which included working “for a conservative governor who had just recently passed
some laws in Louisiana that [the caller] seemed interested in.” The caller asked about “[c]oncealed
weapons laws” and the “details of the law, and how it was passed, and what was [Adams’] role in
the legislation, or the campaign to get this law elected.” The caller said that he was a candidate for
the state senate; and, Adams “wanted to know how much he thought it would take to run a race” to
find out “if he was serious or not.” The caller said that the race would cost “[t]hirty-five cents,” but
Adams did not ask for an explanation because the conversation was “very awkward” with “[a] lot
of pauses.” Adams testified how the caller said that he would win the race: “He had several ideas,
but he suggested that maybe if a candidate wasn’t in the race at the end, if something happened to
the candidate, that the race wouldn’t cost that much to run, which was my concern, the money.”
Adams decided against going to work for the caller.

Russell Duke testified that he had been a friend of Russell Looper, the defendant’s brother,
for “[a]t least five, six, seven, eight years.” Duke said that he resided in Oakwood, Georgia, which
was located in the northeast part of the state, “[a]bout [a] four-and-a-half, five hours” drive from
Crossville, Tennessee. He testified that he and Russell Looper had planned to go out with some
friends on October 17, 1998; but, because Looper “had something that he had to do” with his
girlfriend in Atlanta, Duke then agreed to “run some errands for Byron,” at Looper’s request. Prior
to that, he had met the defendant on two occasions. Duke and the defendant were to meet at the
Flowery Branch, Georgia, home of the defendant’s mother, which was “[w]ithin five to seven miles”
of Duke’s residence. Duke arrived there at about 7:30 p.m. and allowed the defendant to use his cell
phone to make two or three calls about car advertisements he had seen in an Auto Trader magazine.
The defendant owned a Beretta automobile which he left at his mother’s residence as Duke drove
him to look at cars for sale. With the defendant driving, they took one of the cars for sale, a black,
four-door “older body-styled Audi,” on a test drive. The defendant purchased the Audi for
“somewhere like twelve ($1200) or twelve, fifty ($1250).” In his own vehicle, Duke followed the
defendant, driving the Audi, back toward the home of the defendant’s mother. Five or ten miles
before his mother’s house, the defendant and Duke stopped at a car wash, where the defendant said
that “he wanted to find somewhere that was well lit to leave the car.” It was then parked at a
shopping mall about ten miles from the house of the defendant’s mother, with Duke returning the
defendant to her residence. The defendant explained that he wanted to park the car at a place other
than his mother’s house “because cars had been following [him] since he had came [sic] from here
down to his mother’s.” Duke had not spoken with the defendant since that night. However, he later
identified to Tennessee Bureau of Investigation (“TBI”) agents the seller of the Audi.

On cross-examination, Duke said that it had taken “[a]pproximately four-and-a-half to five
hours” to drive from his home in Georgia to Crossville, where the trial was being conducted. He
agreed that to drive from his residence in Georgia to Crossville by the expressway, it would be
necessary to go south to Atlanta. To avoid this, a driver would have to take “[c]ountry back roads.”
Regardless of which route was taken, the drive from his residence to Chattanooga would take
“probably two and a half hours.” Duke said that the tires on the Audi, when it was purchased by the
defendant, were “pretty worn.”

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Michael R. Levy testified that in October 1998, he had been living in Lilburn, Georgia, and
had advertised a 1987 Audi 4000-S in the Auto Trader for sale. He said that the defendant responded
to the advertisement on October 17, arriving with a friend at Levy’s residence about 6:00 p.m. The
defendant told Levy that he bought cars, repaired them, and then sold them. Levy received $1200
in cash from the defendant for the vehicle, giving him the title and a bill of sale. Identifying his
receipt for a tire purchase, Levy said that he had fourteen-inch NTW Viper tires put on the vehicle
on October 19, 1996, and had driven the car 30,000 miles since installing the tires, which “were in
good condition, though.” He said that the car had ignition problems and would not start all of the
time.

On the morning of Monday, October 19, 1998, the victim and his wife slept later than usual;
and the victim did not go to a local Hardee’s restaurant for biscuits for himself and his grandson, as
was his custom. A group of children were coming to the pumpkin patch on their farm between 9:00
and 9:30 a.m. that morning. As the victim was preparing to leave for the pumpkin patch, his
daughter telephoned, and, after they talked, his wife spoke with their daughter, who was celebrating
her birthday that day. The victim left for the pumpkin patch, and his wife left to join him at about
8:30 a.m.

As the victim’s wife was on her way to meet her husband, she saw their farm hand, Wesley
Rex, as he drove “real fast” out of the farm road. She jumped out of her car to meet him as he pulled
over. He jumped out of his truck and said, “Something’s bad wrong with [the victim]. He’s got
blood coming out of his ear.” She instructed him to telephone 9-1-1 and then proceeded down the
farm road to her husband. She saw his truck and got out and touched him. She explained that, “I
didn’t really realize what – I didn’t know what had happened to him until I – I was holding him, and
I felt the back of his head, and he had a big knot on the back of his head, and I looked at his face, and
I could see the hole.”

The victim’s daughter, Kim, and emergency medical workers soon arrived at the scene.
Detective Gary Roach, of the Putnam County Sheriff’s Department, followed by Chief Detective
David Andrews, arrived at about 9:00 a.m. A number of other law enforcement officers
subsequently arrived. Roach went to the victim’s truck, seeing that the driver’s side door was open
and that the victim’s body was inside. Wesley Rex said he had seen a black car coming down the
farm road, away from the victim’s truck, before Rex had found the victim’s body. After Rex had
shown Roach the place where the black car had turned around, officers secured the area and covered
the tire tracks with tarpaulins to preserve the evidence. Photographs and a videotape were made of
the crime scene. The following morning, Detective Roach was informed that someone at the
victim’s farm wanted to speak with him, and, upon his arrival, learned that it was Wesley Rex. He
met Rex at the hog barn where Rex said that he had seen on television the person who had been
driving the black car, and that his name was Byron Looper.

Wesley Rex testified that he was 24 years old and had lived on the Burks’ farm since he was
three. He had graduated from high school in Cookeville, where he had attended special education
classes and received a special education diploma. He said that he had trouble in school with “my

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reading, writing, and my math.” He had no trouble with his vision. He described his duties at the
farm as “tak[ing] care of the animals, and feeding the cows, and just different stuff.” On the morning
of October 19, 1998, he had gone to the Hardee’s restaurant in Monterey for breakfast, and then
returned to the barn to feed the animals and prepare for a group of children coming that day for a
hayride to the pumpkin patch. As he was on the farm road, he “saw a black car come in, so [he]
pulled over, and [he] seen [the victim] coming in behind it.” He described the single occupant of
the black automobile as “a white male, had glasses on, had a black jacket on with a pair of gloves
on.” The vehicle proceeded down the road and then turned around. The victim stopped his truck
beside Rex and asked “who was in the black car.” Rex replied that he did not know who the
occupant was. As Rex drove off, he looked back and saw the black car pull alongside the victim’s
gray Dodge pickup truck. Rex continued and when he had gone about 100 yards, going to the hay
trailer, he heard a “pop,” and thought he had run over gravel or had a blowout. As he looked in the
mirror, he saw “the black car coming in behind” him “pretty fast.” The black car turned on Highway
70 toward Monterey. Not realizing that anything was wrong, Rex fixed the hay wagon before
returning to the barn. About five minutes later, he passed the victim’s truck, and it appeared that the
victim “was reading something in his lap.” Returning on the tractor, Rex again came beside the
victim’s truck:

And, so, I went on through and got the tractor. I come back
out the same road on the tractor, and I got up there to [the victim’s]
truck, and I seen that there was some blood on his ear, and I thought
there was something wrong, so I got off the tractor and checked him.
I sort of touched him, and I noticed – I said, “Well, I need to go tell
Kim.”

He then went to the victim’s daughter’s house located at the end of the road and told her to
call 9-1-1. Next, he found the victim’s wife and told her that “there was something wrong with [the
victim],” and asked an acquaintance who worked at the fire department come to the scene.

Rex testified that, before that day, he had never seen the defendant. He later told the police
that the black car “looked like a Toyota,” but he was not certain that this was the case. Looking at
a photograph of a black Audi automobile, he said that it appeared to be of “the car that was on the
farm that morning,” recognizing it partly because of “the circles on it . . . the seat covers, the top of
the seats.” Later that morning, Rex assisted a police officer in preparing a computer sketch of the
man he had seen driving the black car. The following morning, he went to the residence of Moe, a
fellow farm worker, to see if he was going to work that day and sat with him to watch the news. As
he watched a morning newscast, he was “[a] hundred percent” certain that a photograph of the
defendant being shown was the man he had seen driving the black car on the farm road the morning
of the killing. Rex then went to Mrs. Burks’ house and told the two deputies there that he “needed
to get a hold of Gary Roach,” who was the only investigator he remembered from the previous day.
He told Roach that he had recognized the man, although he could not remember the man’s name.
Rex then identified in court the defendant as being the man driving the black car he had seen that
morning on the farm road.

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At the crime scene, TBI Agent Don Carman observed the victim’s body and took inventory
of the contents of the victim’s pockets. Inside the victim’s pockets were $43, a white handkerchief,
a brown wallet containing a driver’s license, a pocketknife, two sets of keys, and some change.
Carman inspected the victim’s truck but did not find any fired bullets or cartridge cases. The driver’s
side window of the victim’s truck had been rolled down and was not broken.

Agent Carman, who was qualified as a firearms identification expert at trial, testified that he
examined the bullet recovered from the victim’s body and determined it to be a nine-millimeter class
jacketed bullet. Carman also received a Smith and Wesson Sigma Series Model SW9V nine-
millimeter pistol, as well as a Smith and Wesson nine-millimeter magazine, for examination. After
examining test-fired bullets from the pistol and comparing them with the bullet recovered from the
victim, he determined that the bullet was fired from the barrel of the pistol. He testified that the
magazine was restricted for law enforcement use and was banned for normal practice.

Dr. Sullivan Smith, an emergency physician at the Cookeville Regional Medical Center and
the Putnam County Medical Examiner, testified that he arrived at the crime scene at approximately
9:30 a.m. The victim’s body was still in his truck, and Dr. Smith observed that he had a bleeding
wound from his face. Later, he signed the death certificate, which listed the cause of death as a
gunshot wound to the head.

Dr. Charles Harlan testified that he performed the autopsy on the victim’s body on October
19, 1998. The cause of the victim’s death was a gunshot wound to the head. Dr. Harlan stated that
the bullet entered the victim’s body “at the junction of the left side of the bridge of the nose and the
left eyebrow . . . and then traveled through the brain and was recovered in the posterior right
calvarium.” The victim’s wound was a “distant gunshot wound,” meaning that the barrel of the
weapon was at least twenty-four inches from the victim’s body when it was fired.

The morning that the victim was killed, Jenny Conley, the manager at the Hardee’s restaurant
in Monterey, was working at the drive-through window where her first customer that morning
“seemed like he was in a hurry and nervous, upset that he had to wait for the correct food.” As she
corrected his order, he “slapped the money on the counter,” from where the wind blew it into the
store. She described the customer, who was wearing a white Oxford shirt and black, wire-rimmed
glasses, as “[k]ind of slender, average height . . . [d]ark hair that’s kind of feathered on the side.”
The customer was driving a black, four-door car with gray interior. Ms. Conley later identified the
defendant from a photographic lineup as this customer.

The defendant appeared, again unannounced, at Sergeant Bond’s apartment between 11 p.m.
and 1 a.m. the night of October 19, 1998. After being admitted into the apartment, the defendant’s
first words were, “I did it, man, I did it.” When questioned by Bond, the defendant said, “I killed
that dude. . . . That guy I was running against. . . . I busted a cap in that dude’s head.” The
defendant was “[n]ervous, fidgety, pacing all over [Bond’s] livingroom [sic], pacing behind the
couch, couldn’t be still.” The defendant said that he had used a nine-millimeter pistol he had gotten
from “a guy he knew that either had a business or went to police auctions, went to gun shows, things

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like that.” He said that, after he shot the victim, “he drove for about 10 or 15 minutes and threw [the
pistol] out the window.” Disclosing the details of the killing, the defendant said that it had been
“kind of foggy” that morning and he had gone to the victim’s house and shot him. Concerned that
he had left tire tracks at the scene, he asked if Bond “knew a place where he could get . . . new tires.”
He said that, at the shooting, “he passed a guy on the road that either knew him or might have known
him, and – but he didn’t know whether he saw him or not, or could tell who he was.” The defendant
questioned Bond, “You’ll cover my ass on this, won’t you?” Bond replied that he would provide an
alibi for the defendant, who then said, “If you walked in in your dress blues with all of those medals
you’ve got, that would be the best alibi I could ever have.”

The defendant left Bond’s apartment the following morning, exchanging suitcases with Bond
because “he didn’t want anything on his suitcase.” As the defendant went to leave, his “car wouldn’t
crank,” so Bond pushed the defendant’s car with his own. Bond identified a photograph of an Audi
4000-S as being the vehicle the defendant was driving. The defendant left Bond’s apartment on
Tuesday, and Bond’s brother telephoned the following Friday or Saturday to inform him that the
defendant’s opponent had been killed. Concerned about what might happen to him, and after advice
from others in this regard, Bond telephoned the district attorney’s office where the killing had
occurred.

Gerhard Noll testified that he owned and operated an auto repair shop in Tucker, Georgia.
He said that “[s]omewhere between the 11th to 20th” of October 1998, a man brought a black, four-
door Audi 4000-S to his shop, complaining of several problems with the vehicle. The repair order
for this vehicle, which had been partially filled out by the customer, bore the name and signature of
“Anthony Looper” and the address “Creek Stone Court” in Stone Mountain, Georgia. The charge
for the repairs was $575. The repairs did not include replacing the tires. The customer, whom Noll
said he could no longer identify, told him that he was going to be out of town and leave the car for
“a couple of weeks.” However, the vehicle remained there for several months. After receiving a
telephone call notifying him that the person who had left the car no longer wanted it, Noll utilized
the vehicle’s paperwork, which he found in the glove compartment, and sold it. The title named
“Michael Levy” as the seller and “Joann Milligan,” to whom Noll sold the vehicle, as the buyer.
Milligan testified that she had purchased the vehicle from Noll for $1,700. Because the tags on the
car had not expired, she did not change them, and, subsequently, was met by police officers as she
was about to get into the vehicle. She had not replaced the tires after purchasing it from Noll.

Robert J. Muehlberger, the manager of the forensic laboratory of the United States Postal
Inspection Service and a forensic document examiner, testified that he had examined the signature
“Anthony Looper” on the original Gerhard Auto House form and on a quitclaim deed and two
campaign financial disclosure statements bearing the signature “Byron A. Looper,” as well as an
appointment of political treasurer form also bearing the signature “Byron A. Looper.” He testified
that, in his opinion, the same person had signed each of these documents.

Nancy Bowman, the administrator of elections for Putnam County, testified that the
candidates for the 1998 election for the Fifteenth Senatorial District were Tommy Burks, the

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Democratic nominee, and Byron Looper, the Republican nominee. Because Senator Burks died
fifteen days prior to the election, his name was covered over on the voting machines and marked out
on the paper ballots, in accord with Bowman’s interpretation of the election law. She said that the
defendant had signed his qualifying petition as “Byron Low Tax Looper.” Since Senator Burks died
less than forty days prior to the election, only the defendant’s name appeared on the ballot.
However, Charlotte Burks, the victim’s widow, won the election, as a write-in candidate, in each of
the eight counties in the district.

TBI Agent Larry O’Rear testified that he participated in the execution of a search warrant at
the residence of the defendant. He identified a shoulder holster which was found hanging on a coat
rack in one of the bedrooms; however, no pistol or other type of firearm was found in the residence.
He did not have an opinion as to whether the holster was designed for a particular type of pistol,
revolver, or semiautomatic. During his testimony, he placed, alternately, in the holster, a .45
automatic and a nine-millimeter Smith and Wesson.

Jimmy Hamlet testified that in March 1999, while employed by Meadows Construction, he
was working with a crew “picking up litter along the interstate and the exits.” On March 1, they had
started at Monterey on I-40 West and were working toward Cookeville. He testified that while
“walking up the exit ramp” at Exit 288, he found a nine-millimeter Smith and Wesson pistol.
Hamlet subsequently gave the pistol to Randy Maynard of the Tennessee Highway Patrol.

James Sparkman, an employee of Averitt Express, testified that the weekend following
Thanksgiving 1998, he was “four-wheeling” near his grandparents’ property by the Calfkiller River
and came “across something shiny in the road.” He said that the object, which was a gun magazine,
“had mud on it” and was on the river bank between two bridges. Later, his mother telephoned the
White County Sheriff’s Department, informing them of the clip, and was told it would be picked up.
However, this did not occur and Sparkman then telephoned the Cumberland County Sheriff’s
Department because of his concern in having the clip upon which was imprinted “law enforcement
use only.” Subsequently, he gave the clip to a TBI agent. He said that he found the clip
“approximately 20 to 25 miles” south of the intersection of Highway 111 and I-40.

John Kenneth Stansell, Jr., the general manager for G.T. Distributors in Rossville, Georgia,
testified that his company, located ninety-six miles from Crossville, Tennessee, sold law
enforcement equipment. He said that on March 7, 1997, he sold two Smith and Wesson SW9V nine-
millimeter pistols, bearing serial numbers PAM8264 and PAM7629, to Officer Tim Murphy of the
Monterey Police Department, after Murphy had presented him with a letter from the City of
Monterey authorizing Murphy to make the purchase.

Officer Tim Murphy of the Monterey Police Department testified that on March 7, 1997, he
met with John Bowden, Mayor of Monterey, at City Hall where Bowden gave him $700 in cash to
purchase two Smith and Wesson Sigma nine-millimeter pistols for him. That day, Murphy and
Officer Bruce Cantrell drove to G.T. Distributors in Rossville, Georgia, where Murphy purchased
the pistols Bowden had requested, as well as two .40 caliber pistols, while Cantrell purchased a .45

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caliber pistol. Upon their return to Monterey, Murphy delivered Bowden’s pistols to him at his
office, where the pistols were passed around and “dry-fir[ed]” by Bowden, Murphy, City Council
Member Walt Phillips, and Assistant Chief of Police Terry Rizor. When Murphy left Bowden’s
office that day, both nine-millimeter pistols were in Bowden’s possession. However, he later learned
that Walt Phillips was the recipient of one of the pistols and assumed that Bowden had kept the other
one.

Subsequently, in March 1999, after the murder weapon had been found and associated with
the victim’s death, Murphy was twice interviewed by TBI Agent Bob Krofssik about his purchase
of the nine-millimeter pistols. Murphy admitted that he lied about “[a] lot of things” in the first
interview, specifically that he originally bought the pistols for himself, not disclosing that he had in
fact purchased them for Bowden. He said that he lied during the interviews because of fear that he
had used his position as a police officer “for something other than it was meant to be.” Murphy
admitted that he had untruthfully completed the Federal Firearms Transaction Form on March 7,
1997, by answering “yes” to the question: “I am the actual buyer of the firearm indicated below.
I understand that if I answer no to this question, the dealer cannot transfer the firearm to me.”

Sheila Johnson, a secretary in the Putnam County Tax Assessor’s office who also had done
housecleaning for the defendant at his residence, testified that the defendant did not come to the
office during October 19-22, 1998. She said that John Bowden also worked in the assessor’s office
and was there on October 19, 1998. She noticed that the defendant “seem[ed] a little more quiet”
than usual during the three weeks preceding the victim’s death.

While cleaning the defendant’s residence about a month to a month and a half before the
victim’s murder, Ms. Johnson saw a handgun under a cushion on the couch. She was contacted by
law enforcement officials on October 21, 1998, and gave a statement to TBI Agent David Emerin
about the handgun which she said had a “two-tone to it . . . darker on the bottom and lighter on top.”
After she was shown an array of gun illustrations in an effort to identify the type of handgun she had
seen, Ms. Johnson initialed the illustration of a Model SW9V pistol. However, she felt she had been
“[s]omewhat” directed to certain types of guns to identify.

On cross-examination, Ms. Johnson testified that she “felt intimidated . . . like I was the one
being tried for this” when she gave her statement. She was not allowed to write her statement, and,
to her knowledge, her statement was neither tape-recorded nor videotaped. She said that she told
the assistant district attorney before trial that the gun illustration she had initialed was not the gun
she had seen at the defendant’s house.

TBI Agent David Emerin testified that the victim’s farm employee, Wesley Rex, came to the
Putnam County Justice Center on October 20, 1998, and said that he had seen the man he saw the
morning the victim was killed on television in a political advertisement. The defendant became a
suspect and, the next day, October 21, 1998, the TBI called the Putnam County Tax Assessor’s
Office and asked employees to come to the justice center three at a time for interviews. During
Emerin’s interview with Sheila Johnson, she told him that once when she was cleaning the

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defendant’s house, she saw the handle area of a gun which was “a gray on the upper top area, and
. . . darker on the bottom lower area.” He showed Johnson two gun catalogs which she reviewed
thoroughly, immediately discounting the revolvers and any type of rifle or shotgun as the gun she
had seen at the defendant’s house. After Johnson was unable to identify any weapon in the catalogs,
Emerin contacted Tommy Hefland, a senior forensic scientist with the TBI Laboratory, Identification
Division for Firearms, and gave him Johnson’s description of the gun: “different colored material
on it, the ridges on the slide were from the center of it, all the way back.” Hefland told him that the
description sounded like “something from the Sigma series” and faxed him a photocopy which he
showed to Johnson. Johnson identified the gun on the photocopy as the type she had seen at the
defendant’s house. At the time of Johnson’s interview, Emerin did not know what the murder
weapon looked like; he only knew that it was a nine-millimeter because that was the type of bullet
recovered from the victim. He reduced Johnson’s statement to writing, and the two of them went
over the statement “line by line, period to period,” with Johnson initialing all corrections and the top
and bottom of each page for authentication purposes and also signing an affidavit.

Agent Emerin was contacted by Joe Bond who expressed a desire to come forward with the
information he had. Subsequently, on November 3, 1998, Agent Emerin met with Bond in Georgia
where Bond gave him the defendant’s bag which had a Delta Airlines identification tag bearing the
defendant’s name. Two days later, he met with Bond again, this time at Bond’s apartment in Hot
Springs, Arkansas. There, Bond gave him another bag, containing numerous items of clothing and
personal items, that belonged to the defendant. Agent Emerin individually bagged the contents of
the bag and took photographs of the bag, Bond’s vehicle, and Bond. At that time, he also
interviewed Candace Hill in the presence of her parents because she was a minor.

Georgia State Representative Michelle Henson testified that the defendant, a friend of hers
and her ex-husband, came to her home on Creek Stone Court in Stone Mountain, Georgia, on
October 21, 1998, after 10:00 p.m. The defendant was driving a dark-colored Audi automobile. The
defendant told her that his opponent had been shot, but she did not ask him for details and he gave
none. At her invitation because of the lateness of the hour, the defendant spent the night at her
home. The defendant asked to use her telephone and said he wanted to use a secure phone as
opposed to a cordless phone but did not say why. The following morning, October 22, 1998, she
read a newspaper article about the victim’s murder which stated that the authorities wanted to talk
to the defendant. She spoke to her ex-husband and expressed concern about the defendant’s being
at her residence. She asked the defendant where he was the day of the murder, to which the
defendant replied “down south.” The defendant told her “[s]omething to [the] effect” that she did
not “need to know anymore information.” After the defendant spoke to her ex-husband on the
telephone, she loaned the defendant some money which was later reimbursed by her ex-husband.
She described the defendant’s demeanor when he was at her home as “nervous . . . not being calm
and just sitting there calmly[.]”

Douglas Henson testified that he was formerly married to Representative Michelle Henson.
He said he had been acquainted with the defendant, whom he described as somewhat “quirky” and
known to exaggerate situations at times, for over ten years. On October 22, 1998, Representative

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Henson telephoned him while he was reading a newspaper article about the victim’s murder. He also
spoke to the defendant who was at Representative Henson’s home. The defendant asked him if he
could borrow $200 to $300, which Representative Henson gave to the defendant, Henson later
reimbursing her. Henson asked the defendant if he was in town at the time of the murder, and the
defendant said he was not. When Henson asked the defendant where he was, the defendant said
“[s]outh.” Henson asked, “South where?” and the defendant said, “[T]hat’s facts, and we’re not
going to talk about the facts.”

Randall Kirk Nelson, an employee of the TBI Crime Laboratory assigned to the trace
evidence section, identified a series of photographs which he had taken and castings he had made
of the tire tracks at the scene. Two of the tracks he identified as having been made by a farm tractor
located near the victim’s truck and a pickup truck driven by Wesley Rex. He said that he found an
unidentified track on the road near the victim’s vehicle and at a nearby turnaround area. Castings
were made of the unidentified tracks, and he turned over these, as well as the photographs of the tire
tracks, to Sandy Evans, the tire track examiner at the TBI Laboratory. He said that he had not taken
any measurements to determine the stance or wheel base of the vehicle which had left the tracks
because the tracks did not provide him with the information he needed to make those measurements.
He defined “stance” as “a measurement of the center of a passenger side tire to the center of a
driver’s side tire, the front, and also in the back” and “wheel base” as “a measurement of the center
of the back tire to the center of the front tire.”

TBI Special Agent Sandra Evans, assigned to the microanalysis section of the crime
laboratory, testified that she compared the tire track photographs and castings with those in The
Tread Design Guide and utilized Tread-Assist Software to try to identify the type of tire which left
the tracks. Her conclusion was that the tracks were consistent with a 1997 National Tire and
Warehouse “Viper-TR Passenger Tire,” a 1998 National Tire and Battery “Viper Radial-T Passenger
Tire,” and a 1998 Sears “Viper-T Passenger Tire,” which are manufactured by the Cooper Tire and
Rubber Company. Upon cross-examination, Evans testified that she had examined the defendant’s
Audi automobile on July 1, 1999, and, based upon that examination, concluded that the tires then
on the Audi had not left the impressions at the crime scene. She said that she had examined the
Beretta automobile on November 4, 1998, and that the tires from the Beretta, likewise, were
inconsistent with the tire tracks at the crime scene. After Cooper Viper-TR tires were mounted on
the Audi, it produced a “track similar to” that left at the scene of the homicide.

Bruce Currie testified that he was manager of technical standards for the Cooper Tire
Company and was accepted as an “expert in his field as a tire engineer.” Based upon his
examination of the tire castings from the crime scene, he determined that “the measurements from
the three tire castings [were] consistent with the dimensions of a P19560R14 Viper-TR Radial GT
tire manufactured by Cooper Tire & Rubber Company.” He said that between the introduction of
this tire in 1996 and the time of the homicide, approximately 15,000 of these tires were
manufactured out of the 105,000,000 tires his company manufactured during that period.

-11-
Dorothy Henry testified that she had been employed in the Putnam County Tax Assessor’s
Office from approximately two weeks after the defendant began his term as tax assessor in 1996 and
worked there until his successor had taken office after the defendant’s arrest. The defendant did not
come to the office much, “maybe once or twice a week a couple of hours, or something like that,”
and employee turnover was high. John Bowden came to work in the assessor’s office in 1998 and
was a friend of the defendant. She said that, although Bowden was supposed to perform field work,
“he didn’t know anything about field work.” She knew no function that he performed. On the day
that the victim was killed, Bowden was in the office, but the defendant was not. Another former
employee of the Putnam County Tax Assessor’s Office, Robert Michael Nail, said that the defendant
had hired him in 1997, and he had worked there for fifty weeks. He said that John Bowden “handed
out work assignments” and “was about first in command.” Bowden “might work . . . about ten hours
out of the week, but most of the time, he sat there and was on the computer playing solitary [sic].”
Bowden was paid $19,000 per year. On cross-examination, Nail said that he had filed a $1.2 million
wrongful termination lawsuit against the defendant after he was terminated. Because of Nail’s duties
in “the field,” he was in the office “maybe an hour a day.”

DEFENSE PROOF

Virginia Hill, the mother-in-law of State’s witness Joe Bond, testified that she was present
in November 1998 when TBI Agent David Emerin interviewed her daughter, Candace Hill Bond,
who was a minor at the time. Her daughter told Emerin that she had been molested that summer by
the defendant at Bond’s apartment. Virginia Hill asked Emerin to omit this information from his
report because her “daughter was already traumatized,” and Hill “did not want it drug through the
courts, and for the defense to make [her daughter] look bad.” The next day, she asked Bond if he
knew about the incident. He replied that the day his wife told him that the defendant made her “feel
uncomfortable,” he had asked the defendant to leave. When told of the matter, Virginia Hill’s
husband became more angry than had Bond, and, further, had become angry at Bond for not doing
more about the incident.

Elizabeth Howard, an emergency medical technician with the Putnam County Ambulance
Service, testified that she had been called to the crime scene the morning of October 19, 1998, and
saw a man, whom she later learned was Wesley Rex, talking with a police officer. Rex told the
officer that the black vehicle at the scene “could have been possibly a Toyota” and that Rex did not
know who had been driving.

The former mayor of Monterey, Tennessee, John Henry Bowden, testified that the defendant
had hired him to work for the Putnam County Tax Assessor’s office. He said that his initial
statement was untruthful that he had purchased a Smith and Wesson nine-millimeter pistol from a
flea market. In fact, he had obtained two Smith and Wesson Sigma nine-millimeter pistols in March
1997, while mayor, through a purchase he had authorized for the Monterey Police Department. He
kept one pistol for himself and gave the other one to Walter Phillips. After keeping the pistol for
“around two or three months,” he sold it at a Crossville flea market to a man, whom he did not know,
of “medium build.” However, during cross-examination, Bowden acknowledged that he had been

-12-
in possession of the pistol when he was arrested in December 1997, and that he had owned the
weapon until “[s]ometime after the first of the year” of 1998.

Bruce Cantrell testified that, as a Monterey police officer in March 1997, he had gone with
Officer Tim Murphy to G.T. Distributors in northwest Georgia to purchase handguns. He purchased
a Colt .45 but did not know what weapons Murphy had bought or what he did with them.

Bruce Buckner, who lived approximately two miles from the victim’s farm, testified that he
had purchased in May 1998, a nine-millimeter pistol from Walter Phillips. Buckner said that his
pistol was “on the end table by the bed at [his] home” the day that the victim was killed. Sometime
after that, his pistol was stolen from his truck.

Angela Clark Harris said that she had been working at the Hardee’s restaurant in Monterey
on the morning of the shooting and had talked with Jenny Conley about the behavior of a customer
at the drive-through window.

Walter Phillips, the vice-mayor of Monterey when John Bowden was the mayor, testified that
in March 1997 he purchased a Sigma nine-millimeter pistol through Bowden’s arrangement with
Officer Tim Murphy. He said that he had sold the pistol, which came with a plastic carrying case,
to Bruce Buckner about two months after he had purchased it but kept the case. The serial number
on the case, PAM8264, was the same serial number on the murder weapon.

During cross-examination, Phillips said that when the pistols were delivered by Officer
Murphy, he was one of the five people at Monterey City Hall who were passing the guns around, and
there was a “very good chance” that he did not leave with the case the pistol had come in. He did
not later compare the serial number of the pistol he had with that on the case and did not record the
serial number of the pistol when he sold it to Buckner.

Reba Looper, the defendant’s mother, testified that the defendant arrived at her home in
Flowery Branch, Georgia, on Wednesday, October 14, 1998, and that she had last seen him there
“[p]robably Sunday afternoon.” After he had left, she discovered in her bathroom that “[t]owels
were on the floor, the shower was in disarray, so I could immediately tell Byron had been there and
taken a shower.” This would have occurred during the day on October 19, 1998, while she was at
work. Georgia Bureau of Identification Agent Loggins contacted Reba Looper to ascertain the
whereabouts of her son. She said that she had not known where the defendant was at the time that
Agent Loggins was looking for him or for two days thereafter.

John Dillon, who was qualified as an expert witness in firearms identification, testified that,
in his opinion, the bullet recovered from the victim had been fired from the Smith and Wesson nine-
millimeter pistol found at Interstate 40, Exit 288. He said that three bullets recovered from the
backyard of the home of Walter Phillips had class characteristics consistent with the barrel of the
same pistol used to kill the victim, but he could not say for certain that this was the case.

-13-
John Riley, an expert witness in gunshot residue analysis, testified that he reviewed TBI
laboratory results of the gunshot residue examinations conducted on the 1989 Chevrolet Beretta.
According to those examinations, gunshot residue was found on the interior and exterior of the
Beretta.

Frank Sorrells, a resident of Bonnerdale, Arkansas, whose son had been recruited for the
Marines by State’s witness Joe Bond, testified, as to the reputation of Bond for truthfulness and
veracity, that “[w]ith the people I knew, it wasn’t very good.”

Amy Orr testified that she had a relationship with Joe Bond, beginning in May 1997. Bond
instructed her not to reveal their relationship to anyone, threatening her family if she did so.
However, she said she did not actually feel threatened and did not take the threat seriously.

Tony Richards, the maintenance supervisor at the apartment complex where Joe Bond lived
in 1998, testified that Bond had teenagers in and out of his apartment. He saw two rifles in Bond’s
apartment but no handguns. Bond once told him that he had some automatic weapons for sale.

Lieutenant Mark Webb of the Cookeville Police Department testified that, after learning on
October 23, 1998, the defendant had returned to his house in Cookeville, he went to the residence
and spoke with the defendant, who was calm but “a little bit nervous, too.” The defendant did not
allow Webb to enter his residence but agreed to remain visible through the windows.

Brilla Garrett, who had been hired by the defendant and had been the office manager of the
Putnam County Property Assessor’s office, said that she “hardly ever saw [the defendant] in the
office.” She said that she sent and received political faxes for his campaign against the victim. The
defendant referred to the sheriff’s department and the district attorney’s office as the “good old boys’
system.” She said that she had told the defendant that he could not win the election against the
victim, and he responded, “You think, you think.”

Peter McDonald, testifying as an expert witness regarding treadprint identification, said that
the tire tracks at the crime scene did not match the tires on the defendant’s Audi. During cross-
examination, he said that he had not considered that the tire prints at the crime scene were made by
an automobile moving in reverse. He utilized “stance measurements,” although TBI agents testified
that such measurements could not be made from the tire tracks at the crime scene.

PROOF AT THE SENTENCING PHASE

Two witnesses were presented by the State. Horace Burks, the brother of the victim, testified
that the victim always had been the “leader” in the family, looked to for “advice” and “help.” He said
that his son, who was “really close” to the victim, had undergone counseling because of the victim’s
death. Kim Blaylock, the oldest of the victim’s three daughters, said that, when she arrived at the
crime scene, her mother was at the victim’s truck, holding him. She said that the killing had
occurred on the birthday of the victim’s middle daughter. The victim’s youngest daughter had

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anxiety attacks as the result of her father’s death. Her own daughter had trouble sleeping because
of the death of her grandfather. She said that, in taking her father’s life, the defendant “took my
grandma and my mama. Because my grandma, it’s just – it took everything out of her. My mama
has lost 40 pounds.”

Testifying on behalf of the defendant were his cousin, Carolyn Wilson, and his mother.
Wilson said that after the defendant’s parents had divorced when he was a teenager, his father had
begun drinking, which troubled the defendant. She said the defendant had called her “many times,”
saying that “he was afraid for his life.” He said, “They’re all . . . out to get me, all the people in
Cookeville.” She believed the defendant was paranoid and in need of treatment.

The defendant’s mother, Reba Looper, said that he had become distraught after she and his
father were divorced. The defendant felt that “everybody was following him, and . . . hated him.”
She said that the defendant was “really nervous.”

ANALYSIS

I. Exclusion of Defense Witnesses

During the defendant’s presentation of proof, he attempted to call as witnesses his mother
and brother, his mother’s hairdresser, and one of his mother’s neighbors to testify that he had been
in Flowery Branch, Georgia, later during the morning of October 19, 1998, the day that the victim
was killed in Cumberland County. After an objection from the State and extended arguments on the
issue, the trial court allowed only the defendant’s mother to testify as to his whereabouts following
the crime. The exclusion of the other three witnesses was assigned as error, as explained by the
defendant in his brief:

The Defendant’s principal complaint as to the guilt phase of
the trial relates to the trial court’s exclusion of the testimony of three
witnesses who would have testified as to Mr. Looper’s presence in
Flowery Branch, Georgia[,] a few hours after [the victim] was fatally
shot. This exclusion raises issues under Rule 12.1 of the Tennessee
Rules of Criminal Procedure, and it further implicates the
Defendant’s due process right to offer the testimony of witnesses in
his favor.

We will consider the defendant’s claims after first reviewing the manner in which the
exclusion issue developed in the trial court.

On February 17, 1999, four months after the crime, the State filed its demand that the
defendant provide information as to his alibi, if this defense was to be asserted at trial:

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Comes now the State of Tennessee, by and through the
District Attorney General for the Thirteenth Judicial District, William
E. Gibson, and makes demand upon the defendant as follows:

A. Notice of whether an alibi defense will be asserted.

B. The specific place or places the defendant claims to have
been at the time of the alleged offense.

C. The names and addresses of the witnesses the defendant
will use to support said alibi.

Said offense being as stated in the indictment and occurring
on October 19, 1998, between the hours of 6:00 a.m. and 8:45 a.m.
Central Standard Time at the farm of [the victim] located next to I-40
near the point where the counties of Putnam and Cumberland join in
Cumberland County, Tennessee.

Although the matter was not raised either at trial or on appeal, we take judicial notice of the
fact that Daylight Savings Time was in effect at the time of the offense. Therefore, for the purposes
of our analysis, we will proceed as if the alibi demand had expressed the period as “between 6:00
a.m. and 8:45 a.m. Central Daylight Time.”

On March 8, 1999, the defendant filed a motion requesting an extension of time to file a
notice of alibi:

Comes the Defendant, Byron Looper, by and through counsel,
Douglas A. Trant, to move the Court to permit the Defendant
additional time within which to file his notice of alibi. Since the
Defendant has been incarcerated, it makes it difficult to fully comply
with the notice as to exact times and witnesses who are available.
The Defendant would ask to have until June 23, 1999, which is a full
sixty (60) days before trial and leaves the State ample time to
investigate the witnesses, in order to file his notice of alibi.

On March 17, 1999, the State filed its opposition to the time extension requested by the
defendant, reciting that the deadline already had been extended sixty days to April 23, 1999.
Additionally, the State alleged that there were attempts to obtain “false testimony on behalf of the
defendant.”

Denying that an effort had been made to obtain false testimony, the defendant, on March 19,
1999, again asked for an extension of time to file a notice of alibi:

-16-
Comes the Defendant, Byron Looper, by and through counsel,
Douglas A. Trant, to reply to the State’s response to the Defendant’s
motion for additional time within which to file its notice of alibi.
Initially, the Defendant and his counsel vehemently deny any
allegation by the State that there is any effort to fabricate an alibi in
this case. To investigate where a person was at a particular time is
not as easy as the State tries to suggest. That is especially true when
the Defendant, unlike the State, has very limited resources. The only
time a person would remember exactly where they were is if they
were committing a crime. When someone is at a place different than
where a crime was committed, it takes some time to investigate
witnesses who can recall having knowledge of the Defendant’s
presence at some place other than the scene of the crime. That is
particularly difficult when the Defendant is incarcerated. The State
would suffer no prejudice in having this notice served 60 days before
trial because that would give them plenty of time to do their own
investigation.

The attorney then representing the defendant filed a response on May 5, 1999, but with copies
both to the State and the trial court on May 3, 1999, stating as follows:

Comes the Defendant, Byron Looper, by and through counsel,
Douglas A. Trant, to state that Mr. Looper did not kill [the victim]
and was not present at [the victim’s] farm the day that he was killed.
In that regard, pursuant to Tennessee Rule of Criminal Procedure
12.1(d), Mr. Looper reserves the right to testify at trial as to where he
was at the time that [the victim] was killed.

By letter dated May 4, 1999, and filed May 5, 1999, the trial court informed defense counsel
that the alibi response was inadequate and “nonresponsive to the State’s notice:”

I received by fax on May 3rd your letter as well as a copy of
a pleading denominated Response To Request For Notice Of Alibi.
It appears that this pleading does not meet the requirements of Rule
12.1. The last sentence of that rule states, “Such a notice by the
Defendant shall state the specific place or places at which the
Defendant claims to have been at the time of the alleged offense and
the names and addresses of the witnesses upon whom the Defendant
intends to rely to establish such alibi.”

Unless you can provide me with some authority to the effect
that your response complies with Rule 12.1, I would have to find that
it is nonresponsive to the State’s notice. Therefore, I extend to you

-17-
an opportunity to provide such authority; it to be received not later
than one week from today’s date or by May 11, 1999. If no such
authority exists, you will be required to comply with Rule 12.1 in
order to assert alibi as a defense.

Copies of this letter from the trial court were provided to the State and the clerk. A copy of
the letter bears the clerk’s stamp and handwritten file date of May 5, 1999. Subsequently, counsel
who provided the alibi response was replaced by other counsel who, in turn, were replaced by yet
other counsel who then represented the defendant at trial. However, no other response was provided
for the State’s alibi demand.

On August 11, 2000, the matter of alibi was discussed as the jury was being selected in
Sullivan County:

THE COURT: Now, I want to address something that is some
concern to me, particularly before we begin voir dire, and that is, that
in reviewing some of your jury requests, the ones that were forwarded
to me by [defense counsel], there was some, if I read it correctly,
there was – made some reference to an alibi charge, and I want to
clarify that before we begin tomorrow, because we’ve had notice
down since February of ‘99 on this issue.

[DEFENSE COUNSEL]: Your Honor, our position on that is, it
would be an appropriate charge if and only if the defendant chose to
testify. The defendant being the only alibi witness that we have.

[STATE]: And the state has some precedent that an alibi charge is
not appropriate if it’s just based on the sole testimony of the
defendant.

THE COURT: I’ll consider that. So – I mean, I’ll consider and read
that. But now, the rule appears to have been complied with, with the
state, over a year ago, and there’s been no response to it. So, I’d like
to look at both authorities, and I don’t want that referred to in jury
selection[.]

Subsequently, in his opening statement to the jury, defense counsel stated, “You’re going
to hear from these witnesses who were undisputedly with Byron Looper days before October 19th,
on October 19th at certain times, and after October 19th.”

At trial, Rick Dodson, a truck driver who had been driving on Interstate 40 in Cumberland
County at approximately 8:30 a.m. on October 19, 1998, testifying as one of the State’s first
witnesses, said that he had seen “a bright orange flash” “coming from a pickup truck” on a road near

-18-
the interstate, and saw a “dark blue or black” car beside the truck. Later that morning, as he was
traveling past that same point on his return trip to Knoxville, he saw that the pickup truck, now
covered with a blue tarpaulin, was still sitting in the same place, “and the cops were all around.”
Although he had not been asked on direct examination about driving times between various
locations, the following questions were asked by defense counsel during cross-examination:

Q. What kind of distances do you go?

A. Well, at that time, I worked normally 150 miles out of Bowling
Green, Kentucky, and now I go 48 states.

Q. Okay. From – I guess you mainly stick to the freeways, don’t
you?

A. Well, whatever road that is legal for me to travel.

Q. Okay. How far, in your experience, or how long in time, in your
experience – well, maybe you’ve never driven this route, from here
to Chattanooga?

A. Yeah, I have in the past.

Q. What kind of times are we looking at?

A. Oh, I don’t know. I don’t know what the exact miles are. I’m
guessing, probably two hours.

Q. Okay. And then, have you driven the Chattanooga-Atlanta
corridor?

A. Sure.

Q. And what do you recall that could be done in?

A. It depends on what time of the day.

Q. Yeah. With Atlanta, that’s especially true, isn’t it?

A. Right.

Q. At the best time of day, when it’s absolutely optimal?

A. Two, two and a half hours.

-19-
Q. This scene was well exposed to the interstate, wasn’t it?

A. It was, yes.

Q. And pretty close, this little road was pretty close to the interstate,
wasn’t it?

A. It was.

These estimates of the travel time between Flowery Branch and Monterey are consistent with
the testimony of Russell Duke, who testified as a State’s witness and said that the drive from his
home in Oakwood, Georgia, about five to seven miles from Flowery Branch, to the courthouse to
testify had been four and a half to five hours.

During the defense proof, Reba Looper, the defendant’s mother, was called and testified
extensively about his background. She said that the defendant had come to her home in Flowery
Branch, Georgia, on October 14, 1998, a week that she was on vacation. At the time, her other son,
Russell, had “just finished college” and was living with her. She said that she had told her
hairdresser, Barbara Reed, during an appointment on Thursday, October 15, that the defendant was
visiting her. During her testimony, she produced a check, entered into evidence over the objection
of the State, which had not previously seen the check, and said that she had told Barbara Reed of a
house for rent near the Looper residence. She had last seen the defendant on Sunday afternoon,
October 18, 1998, probably around “4:00 or 5:00” p.m. After the defendant left the house that
afternoon, she “went in [his] room and cleaned it up, changed the bed, changed the sheets.” She said
that she arose at about 6:00 a.m. on Monday, October 19, and, after awakening Russell and taking
the defendant’s puppy, “Low Tax,” for a walk, went to work.

Reba Looper said that she arrived home from work at about 6:00 p.m. on October 19, 1998,
and, while watching the news on an Atlanta television station, heard the word “Monterey.” She did
not know if the commentary was about Monterey, Tennessee, or a town of the same name in another
state, and asked her son, Russell, who knew of no news about “Monterey.” Later, after Russell
Looper had left to have dinner with his girlfriend, she looked outside and saw a man who then
identified himself as Paul Loggins of the Georgia Bureau of Investigation. He inquired about the
defendant, and she “told him Byron had been there.” She then told of going into the defendant’s
room after Agent Loggins left:

Q. And what state did you find Byron’s room in, particularly the
bed?

A. Well, when the GBI came, I had only been in my bedroom,
changed my clothes. I had not even gone to the bathroom. I had not
done anything. So, after he left, I went to the bathroom. Towels were

-20-
on the floor, the shower was in disarray, so I could immediately tell
Byron had been there and taken a shower.

Q. Well, how do you distinguish a Byron shower from a Russell
shower?

A. It takes three towels for Byron to take a shower; two to walk on,
and one to dry on. The shower is quite disorderly.

Q. Well, what is the condition when Russell takes a shower?

A. He’s a lot neater.

Q. Will you tell the jury . . .

A. No towels.

The State then objected to Ms. Looper’s testimony, asserting that it was presented as alibi
proof:

[THE STATE]: Your Honor, may we object at this point, enter an
objection and approach the bench?

THE COURT: Yes, sir.

(The following proceedings were had at the bench by the Court and
counsel out of the hearing of the jury:)

[THE STATE]: Your Honor, the state has previously requested and
the Court has ruled as to an alibi defense.

THE COURT: Uh-huh (yes).

[THE STATE]: At this point, the state is contending that they are
presenting alibi testimony from this witness as to the defendant’s
whereabouts at the time of the murder based on what she observed,
and we’re objecting to it.

[DEFENSE COUNSEL]: Your Honor, she’s gone nowhere near this.
They requested a specific time in their alibi defense. She’s talking
about something that could have happened Sunday night. It could
have happened Monday night.

-21-
THE COURT: Overrule the objection at this point, and I’ll allow you
to ask all of those questions in cross.

Continuing her testimony before the jury, Ms. Looper said that she had “made” the
defendant’s bed on Sunday, but that it was “[u]nmade” when she went into his bedroom on the
afternoon of Monday, October 19, 1998. Additionally, she said that Russell had left the house that
morning before she did, and that the bathroom was in “[g]ood shape” when she left. Amplifying her
description of the bathroom, she said that “[t]he shower curtains were closed, the towels were all put
up. Everything was neat. There was nothing out of order.” When TBI agents interviewed her the
following Wednesday at her workplace, she did not tell them about “the bathroom and the bed in the
states of condition that they were in” because she was “very upset” that her supervisor was not
allowed to be with her during the questioning. She said that Flowery Branch was “[a]pproximate[ly]
50 miles” from Atlanta.1

Following the testimony of the defendant’s mother, the trial court addressed, out of the
presence of the jury, the State’s complaint that the defendant was attempting to present alibi
testimony:

THE COURT: You know, I raised this before we even began, and I
let this last witness testify on this issue, but this notice that the state
filed on this – under Rule 12 of alibi, was produced and presented
better than a year and a half ago. There’s been no response to it.

[DEFENSE COUNSEL]: Nor will there ever be, Your Honor. It’s
time specific. We have no way to account, other than the defendant
himself, as to his whereabouts.

THE COURT: And they’re entitled to the notice, as it’s requested
under the rules, as to who it will be that will vouch for those periods
of time.

[DEFENSE COUNSEL]: That’s correct. We have no . . .

THE COURT: We haven’t had that. So, what you’re doing is
circumstantially coming in the back door here.

[DEFENSE COUNSEL]: That is correct.

THE COURT: And I don’t know that that’s appropriate.

1
W e take judicial notice that Flowery Branch is northeast of Atlanta.

-22-
[DEFENSE COUNSEL]: They limited a time. We didn’t, Your
Honor.

THE COURT: Well, they were required to, under the rule.

[DEFENSE COUNSEL]: And they gave the time. And we are
explaining his whereabouts after the time specified.

THE COURT: So, you will not be able to discuss those times.

[DEFENSE COUNSEL]: We understand that, Your Honor, nor do
we intend to.

[THE STATE]: Your Honor, may I respond to that?

THE COURT: Yes, sir.

[THE STATE]: Your Honor, if the state was required to give time
frames that were . . .

THE COURT: And you did.

[THE STATE]: The time that we have given there is the time of
Byron Looper upon the murder scene, but the defendant would have
to respond, if he were in Puerto Rico at that time, for instance, that he
were there, or that he were traveling, and that he could not have been
at that place at that specific time.

[DEFENSE COUNSEL]: He would only have to respond if he had
witnesses to testify to that. We have no one to testify to where he was
at that time, and that is what [the State] is making reference to. I
agree with him one hundred percent, but we have no witness to speak
to Byron’s presence at that particular time.

[THE STATE]: But what Reba Looper has testified to will be tied to
the fact that he could not have been in Cookeville, because he was
taking a shower in her home, and that is not proper when this notice
is given.

....

-23-
THE COURT: I’m going to agree as to that respect. So, if we
continue down that line, I’m going to sustain the objections on those
time frames.

[THE STATE]: And there will be . . .

[DEFENSE COUNSEL]: On those time frames, we understand that,
Your Honor.

THE COURT: Yes, sir. Or circumstantially any other way
associated with their notice.

[THE STATE]: As to any time that would make him . . .

[DEFENSE COUNSEL]: (Interposing) Your Honor, . . .

[THE STATE]: Your Honor, if he was in Japan, the time frame
might be two days because . . .

[DEFENSE COUNSEL]: The fallacy of the prosecution’s argument
is the following: If notice is given, the defendant has an obligation to
respond and give the names of any witnesses who would testify to his
location anywhere other than the crime scene at the time specified.
We have no one to speak to that issue.

THE COURT: “A”. There has been no response to it.

[DEFENSE COUNSEL]: But that is previous counsel.

THE COURT: Call your next witness.

[DEFENSE COUNSEL]: Your Honor, we’ll do it collaterally on
some other way.

The parties continued to present arguments on this issue, with the defense explaining that
they were presenting no witnesses as to the defendant’s whereabouts at the time the victim was
killed:

[DEFENSE COUNSEL]: [A]ny speaking to where Byron Looper
was during the hours delineated in the state’s demand for notice can
only come from Byron Looper, because we have no witnesses to
speak to those particular hours. The state didn’t ask an accounting of
Mr. Looper’s entire day. It asked for where he was during specific

-24-
hours. The issue of his not being in Monterey is specifically
addressed. His presence elsewhere cannot be addressed by the
witnesses we’re proffering because they don’t know where he was at
that time. Only Mr. Looper knows that, and if he chooses to testify,
he will share that with us.

THE COURT: But the last witness was presented to establish
circumstantially a fact which would be in effect an assertion of an
alibi, and that appears to circumvent, or attempt to circumvent the
clear mandate of Rule 12.

[DEFENSE COUNSEL]: Your Honor, we don’t share the Court’s
view.

THE COURT: Well, do you have any authority that would support
your view?

[DEFENSE COUNSEL]: I think we can look to cases previously
cited by the prosecution. I had the opportunity to walk through the
Howard Baker, Jr., Senator Howard Baker, Jr., r[o]tunda, the
University of Tennessee Law School this weekend, and after
marveling at its beauty, I went to research the cases previously cited
by the prosecution, or I should say, miscited by the prosecution.

....

An alibi defense is invoked by the defendant himself if he chooses
to take the stand, and corroboration may be necessary before the
Court sua sponte must give the instruction. But there is nothing to
suggest in those cases that anything that Mr. Trant did was outside the
rule. If Mr. Trant did something outside the rule, I fear for the
prosecution, because should they be so fortunate as to get a
conviction, despite the paucity of evidence they have produced, then
we will be revisiting this issue through habeas corpus, and the
competence of Mr. Trant will well become the focus and the issue.

THE COURT: Okay. Yes, sir, you had something you want to
present?

[THE STATE]: Nothing further, just a letter from this Court dated
May 4th to Mr. Trant, and it makes a finding, and I quote from it:
“Unless you can provide me with some authority to the effect that
your response complies with Rule 12.1, I would have to find that it’s

-25-
nonresponsive to the state’s notice,” and you extended to him an
opportunity to find some authority.

So, what they have filed is something that has been determined to
be nonresponsive as an alibi notice.

THE COURT: Okay. I want to make you file that – make sure we’ve
got . . . Oh, you found it for me, have you?

DEPUTY CLERK SMITH: Yes.

THE COURT: Okay, good. Where is my letter? Do you have it
there, in response to this? Apparently, he’s reading a letter that I sent
Mr. Trant. What was the date of the letter? I’m sure it’s in the
correspondence file at the clerk’s office.

[THE STATE]: It’s dated May 4th. I was reading from paragraph 2.
And there is a reply from Mr. Trant the next date that addresses the
defendant’s right to testify in his own behalf.

[DEFENSE COUNSEL]: Your Honor, that’s not a document to
which we are privy. Mr. Trant apparently has not felt it appropriate
or necessary to give us documents that he would have received in
return.2

THE COURT: Here, I’ll let you look at it.

(Counsel for the defense reviews document.)

[DEFENSE COUNSEL]: It appears to be a restatement of what Mr.
Trant had filed previously.

DEPUTY CLERK SMITH: Be May 4th of ‘99?

THE COURT: Yes, uh-huh. And May 5th, the response from Mr.
Trant. Here are the two documents. I want to make sure the record
has that in there.

[THE STATE]: We’d just like to request an order that, before they
go into it in the presence of the jury, they have a jury-out.

2
We note that two other attorneys had represented the defendant in the interim.

-26-
THE COURT: Yeah. And I’m going to have to say to you that, I
don’t find that Rule 12 has been complied with here, and I’m going
to cut that testimony off, so. And I agree with you, if Mr. Looper
takes the witness stand, he may assert it, but the state was fair in their
notice under Rule 12, and there hasn’t been a reply that complies with
Rule 12.

[DEFENSE COUNSEL]: Your Honor, I can’t speak for Mr. Trant,
though I can imagine his reasoning. I suspect, and the state has
narrowed its parameters, surely Mr. Trant has properly responded to
those parameters. I understand the Court’s ruling. I would make
certain offers of proof. I would also ask the Court for guidance in the
following fashion: Should Mr. Looper take the stand, is the Court
then saying that that which would be physically corroborative, but not
testimonial corroborative, of the – I shouldn’t say that. Physically
corroborative, but not direct testimony of his whereabouts at the time
of the murder, is the Court going to preclude that?

THE COURT: I’m going to have to listen to each one of those issues
...

[DEFENSE COUNSEL]: Well, Your Honor, . . .

THE COURT: Because clearly, the notice requirement here is to put
the state on even footing so that they can respond to what efforts that
are being made in the furtherance of the alibi defense.

Subsequently, the three witnesses whose testimony placed the defendant in Flowery Branch,
Georgia, as early as an hour and fifteen minutes after the period set out in the State’s Rule 12.1 alibi
request, testified out of the presence of the jury.

[DEFENSE COUNSEL]: Your Honor, before the jury comes back
in, we’d like to call in a witness, two witnesses, actually, perhaps
three, and make an offer of proof of the type of testimony that the
Court has preliminarily indicated it’s not going to allow, and just out
of an abundance of caution so that we don’t have that brought up in
examination before the jury, we’d like to offer it at this point.

THE COURT: Are you talking about on the alibi?

[DEFENSE COUNSEL]: It’s not clearly alibi, Your Honor, and
that’s my point. It concerns periods of time not in the state’s brackets

-27-
of requirement. None of the three witnesses have anything to do with
those periods of time.

....

THE COURT: All right, I’ve been handed the case of State versus
Coury, 697 S.W.2d 373, which is annotated behind the rule. I read it
at lunch prior to this being identified, and I’ve had my law clerk also
engaged in doing some research on the issue as well. So, I’m willing
to hear the offer of proof. I’d say this is as good a time as any other.

Barbara Reed testified that she was a hairdresser in Flowery Branch, Georgia,3 and had “been
doing Reba[] [Looper’s] hair about 20 years.” On October 15, 1998, Ms. Looper told her about a
house for rent in her neighborhood, and she went on Monday, October 19, a day off from work, to
look at the house. She described what she saw as she arrived at the house, which was off Paradise
Point Road:

Q. On the way to the Paradise Point location, at 11:00, or somewhere
around that time, what time was it when you passed Reba Looper’s
house?

A. About 11:00, 11:00.

Q. All right. Did you observe anyone or anything?

A. Yeah, I just saw Byron playing with his dog in the front yard.

Q. And that’s 11:00 or . . .

A. Uh-huh (yes).

Q. That time?

A. Yeah, close to it.

Q. Okay. On the 19th of October, 1998?

A. Uh-huh (yes).

3
Flowery Branch, Georgia, is located in the Eastern Time Zone. Although the witnesses from Flowery Branch
did not so specify, we presume that the various times to which they testified were expressed as Eastern D aylight times.

-28-
During cross-examination, Reed said that in June 1999 she and Ms. Looper had “started
talking about things” and, upon being reminded of learning about the rental house from Looper, Reed
then “told her that [she] had saw [sic] Byron” on October 19, 1998. At the time of this conversation,
the two were in the beauty shop where Reed worked, and no one was with Ms. Looper. She said that
another reason she knew “it was the 19th, because we’d had a birthday party on the 18th” for herself
and her nephew.

Paul Voelker testified that he was a neighbor of Reba Looper in Flowery Branch, Georgia.
He specifically remembered the weekend of October 17, 1998, two years earlier, because on that day,
“which was the start of [his] vacation, [he] came home from work around noonish in a really pissed-
off mood.” He worked at Kroger store number 324 in Dunwoody, Georgia, on the midnight shift.
The following morning, Sunday, October 18, he noticed a blue Beretta automobile, which he had
never seen before, parked on the grass in front of Ms. Looper’s house. On Monday, October 19, he
saw that the car was still parked in Ms. Looper’s yard. As he was sitting on his porch, “[s]omewhere
between 11:00 and noon,” he saw two men, one of whom he recognized as Russell Looper, come
out of Ms. Looper’s house. He saw the second man again that day as the man was driving away from
Ms. Looper’s house around 2:00 p.m. Voelker identified the second man as the defendant. Voelker
said that “[i]t’s like 63 feet” from his porch to that of Ms. Looper, and that he had observed the
defendant by using a monocular.

Voelker said that he had not spoken with Reba Looper about this matter until July 2000,
when “she told [him] that she was – they just needed to find someone in the neighborhood that had
seen [the defendant].” At the end of July 2000, less than two weeks before jury selection began, he
told the attorneys representing the defendant at the trial that he had seen the defendant the day of the
homicide. He said that he had not told TBI agents who had interviewed him on October 21, 1998,
about seeing the defendant two days earlier because they asked if he “had seen a car that they
described sitting in the front lawn of the house.” However, the name “Byron Looper” was not
mentioned by them; and he was asked by an agent of the Georgia Bureau of Investigation, in
November 1998, only to report if he saw the cocker spaniel dog, “Low Tax.”

Russell Looper, the defendant’s brother, testified that in October 1998, he was living at his
mother’s house in Flowery Branch, Georgia. He said that on Monday, October 19, 1998, he had seen
the defendant “going out when [he] was coming in” for lunch “[a] little bit before noon.” He
returned to the residence after work, between 4:00 and 5:00 p.m., and did not see the defendant. On
Friday or Saturday of that week, he learned that his brother had been charged with the victim’s
murder. He said that he talked with two TBI agents on October 21, but did not remember telling
them that he had last seen the defendant the Thursday or Friday of the previous week, explaining
“that was a relatively stressful time in our lives.”4

4
As to this testimo ny, the de fendant argue s that he “is the refore entitled to the missing witness inference – this
Court may infer that had the agents bee n called , they would no t have contradicted Russell Looper.” However, we
disagree with this assertion. As explained in Neil P. Co hen et al., Tennessee Law of Evidence § 4.01[14][a] (4th ed.
2000), the permissive inference resulting from a missing witness permits either a missing witness instruction or
(continued...)

-29-
During cross-examination, Russell Looper was questioned about when he first revealed that
the defendant had been in Flowery Branch the day of the homicide:

Q. And at what point did you come forward and make that
information known?

A. As I said – to whom are you asking?

Q. Well, let me step back. That was important, wasn’t it?

A. Yes, it was.

Q. And it’s important – the importance is clear here today. You’re
an alibi witness for him; right?

A. Right.

Q. You came to the preliminary hearing?

A. Yes, I did.

Q. And did you talk to his attorneys that day and say, “Hey, I saw
Byron this morning, the morning of this murder”?

A. I don’t remember when the first day was that I was with them.

Q. But you learned the facts at the preliminary hearing when the
murder took place?

A. Yes, what – what day it took place, yes.

Q. And you knew in your mind at that time you had seen him. . .

A. Yes, I knew it.

4
(...continued)
app ropriate closing argument “not[ing] the absence of the witness and ask[ing] the jury to draw a negative inference from
the absence.” In the present appeal, the matter arose during a hearing on whether the undisclosed alibi witnesses would
be allowed to testify before the jury. Since the witnesses were not allowed to testify, the inference is not applicable.
Further, we note that during the State’s presentation of proof, neither Lisa Lingwall nor Gerald Presley, the two TBI
agents who had questioned Russe ll Looper, testified. Since the State had rested four days before R ussell Looper was
called to testify, and the State had no reason to kno w that he would be presenting an alibi for the defendant, there wo uld
not appear to have bee n any reason for the State to ha ve these two agents ava ilable to refute that which they could not
have anticipated.

-30-
Q. . . . in Georgia?

A. Yes.

Q. And he couldn’t have been at the murder scene?

A. If – to the best of my knowledge, when that took place, there was
no time frame established with when that had taken place.

Q. At the preliminary hearing, . . .

A. Yeah, I don’t. . .

Q. . . . you didn’t understand the time frame?

A. I don’t – I don’t recall there being a specific time frame stated, no,
sir.

Q. But you – you’re – what kind of education do you have?

A. Well, I have a high school education, and a majority of a
bachelor’s degree.

Q. Okay. And you realized that you had seen your brother at noon,
11:00 central time on the date that he was accused of killing [the
victim]?

A. Right.

Q. But you never came forward to tell anybody?

A. Right.

Q. Until when?

A. Until later that – a couple of months, I guess.

Q. A couple of months after the killing?

A. That’s when – when – the next time that I saw his attorneys, that’s
when I spoke with them.

Q. What attorney?

-31-
A. I don’t recall which one it was, to be honest with you.

Q. Not these?

A. No. They weren’t on the case at that time.

Q. Was it Mr. Trant?

A. I don’t know, to be honest with you.

Q. Was it at or about the time of the preliminary hearing?

A. I believe it was after that point.

Q. How much after?

A. I don’t remember, to be honest with you.

On redirect examination, he was asked to identify which of the defendant’s previous
attorneys he had told of the fact that the defendant had been in Flowery Branch the day of the
homicide:

Q. Mr. Looper, when you spoke to the attorney that represented your
brother before Mr. Cordova and I, do you remember his name?

A. I don’t. I’m sorry.

Q. Did you speak to him in person or over the telephone?

A. I can’t recall, to be honest with you.

Q. Does the name Doug Trant from Knoxville. . .

A. I remember Mr. Trant, but I can’t, you know, specifically
remember if it was he or another attorney.

Q. Larry Warner, Howard Upchurch, Jerry Burgess, Lionel Barrett?
Do any of those names ring a bell?

A. You know, there was [sic] conversations between several and
different ones, you know. I spoke with Mr. Burgess on several
occasions.

-32-
Following the testimony of Russell Looper, the attorneys argued at great length as to whether
the three witnesses should be permitted to testify before the jury. The defense noted that both Paul
Voelker and Russell Looper were known to the State because both had been interviewed by TBI
agents. Additionally, they contended that a proper response had been made to the State’s alibi notice
demand:

In the case at bar, there is a demand narrowly specified,
parameters are limited. We’re told that the state has interest in the
alibi as to the hours 6:00 A.M. to 8:45 A.M. Central Time, and that
would be transliterated to 7:00 A.M. to 9:45 A.M. Eastern Time. The
response in the case at bar, and the response itself differs from the
situation in Coury, is to answer that time specific question. (A) is
answered, (B) is answered, and (C) is answered. At the very least,
Your Honor, and I respectfully suggest that to do otherwise would be
to risk reversal of the conviction we believe will never occur, at the
very least, Paul Voelker’s testimony must be admitted, because the
state had knowledge of the witness’s existence at least, at least 20
months before the defense.

The State responded that the defense had “known about this [testimony] for months, and they
made an intentional strategic decision to not disclose it to the state:”

Your Honor, in this particular situation, in this case at bar the
prejudice that would result to the government from the defendant’s
failure to disclose is great. It’s an ambush. They’ve brought in three
witnesses. At least one of which was interviewed in the past, he’s
changed his story. The prejudice suffered by the defendant if the
sanction of exclusion is employed is minimal. The reasons for
nondisclosure in this case, Your Honor, are obvious. They’ve known
about this for months, and they made an intentional strategic decision
to not disclose it to the state, and the purpose, the only reason for that
strategic decision would be to ambush the state with this information.
We had some discussion of alibi even as late as the jury selection
process in Sullivan County. The defense was well aware they were
going to call these witnesses, and they made no mention of it. It was
in the context of whether or not an alibi charge would be given by the
Court based solely on the testimony of the defendant.

The defense responded that if the State had been adversely affected by not having advance
notice of the three witnesses, it should be granted time to refute their testimony:

If the state truly believes that it has suffered a detriment, then let the
state interview the witnesses, let the state have as much time as it

-33-
needs to refute the witnesses, if refute the witnesses it can. Most
importantly, these witnesses speak not to alibi in its literal and legal
sense. They speak to an issue pennon-braided [sic] by McCracken
Poston in his opening statement, when McCracken Poston said: “The
defendant Byron Looper did not kill Senator Burks, could not have
killed Senator Burks, and would not have killed Senator Burks.” We
mean to establish the first by reason of the latter two. We’ve already
attempted, I believe succeeded in establishing the one, there is no
reason. We now show that he could not physically have done so.
That is not alibi. What we are providing through these witnesses is,
that he could not have been in Tennessee . . .

THE COURT: Is that not an alibi?

[DEFENSE COUNSEL]: That is not alibi, Your Honor. That is not
an alibi. An alibi is, that he was elsewhere, not that he was not in
Tennessee. It is a person speaking to . . . where he was at the time of
the murder, and there is no one other than the defendant who can
speak to that.

The trial court concluded that the defense was attempting to present alibi proof and ruled that,
because the defense had not properly responded to the alibi notice request, the testimony of Barbara
Reed, Paul Voelker, and Russell Looper could not be presented to the jury:

All right, let’s talk about the last avenue of your attack, in which
you basically are placing this responsibility on Mr. Trant.
Historically, you have to point out that this record will demonstrate
the proper notice under Rule 12, February the 17th, 1999, an
opportunity to extend the period of time for Mr. Trant to respond, and
later that year, a response from Mr. Trant, which has been identified
earlier, which this Court found to be not satisfactory, and that
response communicated to Mr. Trant. But the more important issue
here is, that I recognized the request of the defense team for an alibi
in their response to my inquiry about jury instructions, and I queried
the defense, current defense team, in Blountville about this issue, and
was given the response, as previously been advanced, that this didn’t
deal with alibi. If it was to be advanced, Mr. Looper would be the
sole witness.

So, it appears to me that this current defense team was
knowledgeable in all respects of the peril associated with Rule 12,
and Rule 12 is very specific. The state has met its requirement to
notice over a year ago. This defendant, his current team, as well as

-34-
his predecessor team, has known of the particular notice, and they
have not responded to it. Knowledge of a particular witness does not
equate to knowledge that witness will be used for an alibi. And if I
were to construe Rule 12 in the very limited way that is advanced by
the defense team, this rule would have no value, or purpose, or reason
whatsoever. It cannot be read in that manner.

So, for all of those reasons, your request is denied, and these
witnesses are excluded.

The trial court allowed defense counsel to make a statement for the record as the defense was
preparing to present another witness:

Your Honor, before we do, I’d like simply to put on the record
two observations. And if my recollection differs from the Court, I
apologize.

But the question that was propounded to counsel was couched as
if the defendant were to take the stand. Indeed, we submitted to the
Court, and therefore we gave the Court notice, that if the defendant
did take the stand, he would be entitled to an alibi instruction.

With regard to the issue of whether or not the proffered witness,
particularly Paul Voelker, spoke to an alibi or to some other aspect of
the case, I would point out to the Court that which might not seem
obvious, it is not impossible for Byron Looper to have been in
Monterey at 8:30 in the morning and been in the Gainesville, Georgia
area at 11:30 that same morning.

Thus, during arguments to the trial court as to Georgia witnesses who would testify that the
defendant was in Flowery Branch late on the morning of the crime, the defense asserted that this
testimony would show both that he could have been near the crime scene during a portion of the
period in the alibi demand, “it is not impossible for Byron Looper to have been in Monterey at 8:30
in the morning and been in the Gainesville, Georgia area at 11:30 that same morning,” and that he
could not, “[w]hat we are providing through these witnesses is, that he could not have been in
Tennessee.”

We do not understand the purpose of counsel’s asserting the defense testimony of the
Flowery Branch witnesses would have allowed the defendant to have been in “Monterey” at about
the time the victim was killed at his farm. First, the alibi notice specified that the crime occurred at
the victim’s farm; and, the defendant’s response stated that he was not at the victim’s farm on the
date of the crime. It is not clear whether the defendant’s trial counsel was contradicting this
response, believing these two locations to be the same, or whether he was claiming that, while the

-35-
defendant was not at the victim’s farm the day of the homicide, he could have been in Monterey
during a portion of the period in the alibi demand and later that morning in Flowery Branch.
Additionally, we are not certain of the significance of “8:30” and “11:30” or of the three-hour gap
in these times, and whether both are expressed as being in the same time zone. Although 8:30 a.m.,
Central Daylight Time, was the approximate time of the shooting, the defendant’s Georgia witnesses
placed him in Flowery Branch as early as 10:00 a.m., Central Daylight Time, approximately an hour
and a half after the crime. To review the issue of exclusion of the witnesses, we will presume that
successor counsel was speaking of the scene of the crime by referring to “Monterey.”

The benefit to the defendant of these contradictory arguments is apparent. Claiming that he
was in Monterey for only a portion of the period set out in the alibi demand notice enabled the
defendant then to argue that proof of his being in Flowery Branch later that same morning was not
proof of alibi, because such proof must cover the entire period in which the crime was committed.
Yet, by then arguing the reverse, that being in Flowery Branch made it “impossible” for the
defendant to have been in Monterey to commit the crime, the non-alibi had the evidentiary effect of
an alibi.

To assess the defendant’s varying claims that the trial court erred in excluding the testimony
of Barbara Reed, Paul Voelker, and Russell Looper, we will review the applicable law.

The circumstances under which a defendant must inform the State that an alibi defense will
be presented are set out in Tennessee Rule of Criminal Procedure 12.1, which provides:

(a) Notice by Defendant. Upon written demand of the district
attorney general stating the time, date, and place at which the alleged
offense was committed, the defendant shall serve within ten days, or
at such different time as the court may direct, upon the district
attorney general a written notice of an intention to offer a defense of
alibi. Such notice by the defendant shall state the specific place or
places at which the defendant claims to have been at the time of the
alleged offense and the names and addresses of the witnesses upon
whom the defendant intends to rely to establish such alibi.

(b) Disclosure of Information and Witness. Within ten days
thereafter, but in no event less than ten days before trial, unless the
court otherwise directs, the district attorney general shall serve upon
the defendant or the defendant’s attorney a written notice stating the
names and addresses of the witnesses upon whom the state intends to
rely to establish the defendant’s presence at the scene of the alleged
offense and any other witnesses to be relied on to rebut testimony of
any of the defendant's alibi witnesses.

-36-
(c) Continuing Duty to Disclose. If prior to or during trial a party
learns of an additional witness whose identity, if known, should have
been included in the information furnished under subdivision (a) or
(b), the party shall promptly notify the other party or the other party's
attorney of the existence and identity of such additional witness.

(d) Failure to Comply. Upon the failure of either party to comply
with the requirements of this rule, the court may exclude the
testimony of any undisclosed witness offered by such party as to the
defendant’s absence from or presence at, the scene of the alleged
offense. This rule shall not limit the right of the defendant to testify
in his or her own behalf.

(e) Exceptions. For good cause shown, the court may grant an
exception to any of the requirements of this rule.

(f) Inadmissibility of Withdrawn Alibi. Evidence of an intention
to rely upon an alibi defense, later withdrawn, or of statements made
in connection with such intention, is not admissible in any civil or
criminal proceeding against the person who gave notice of the
intention.

Reviewing the intended testimony of the three excluded witnesses, the defendant on appeal
argues that “[f]or purposes of Rule 12.1, ‘alibi’ testimony should be construed to encompass only
that specific time period designated by the State in its demand for notice.” Thus, by this view, the
State’s alibi demand did not require disclosure of these witnesses. In reviewing the efficacy of this
claim, we first will ascertain whether the excluded witnesses were, as the trial court determined,
“alibi” witnesses.

Barbara Reed, Reba Looper’s hairdresser, testified as to these main points: on Monday,
October 19, 1998, (1) she was looking for a house to rent and looked at an available house in Reba
Looper’s neighborhood; and (2) while looking at the house at 10:00 a.m., Central Daylight Time,
she saw the defendant, playing with his dog, in the front yard of Reba Looper’s house in Flowery
Branch, Georgia.

Paul Voelker, a neighbor of Reba Looper, testified as to these main points: (1) on Monday,
October 19, 1998, between 10:00 and 11:00 a.m., Central Daylight Time, he saw Russell Looper and
another man on Reba Looper’s front porch in Flowery Branch, Georgia; (2) at about 1:00 p.m.,
Central Daylight Time, later that day, he saw the same man get into a car and drive away; and (3)
the man he saw on both occasions was the defendant.

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Russell Looper, the defendant’s brother, testified as to this main point: he went home for
lunch in Flowery Branch, Georgia, a “little bit before noon”on Monday, October 19, 1998, and, as
he entered the house, the defendant was leaving.

Thus, various items of information, much of it unrelated, were presented by these witnesses.
However, the common element in their offered testimony was that on October 19, 1998, as early as
10:00 a.m., Central Daylight Time, one hour and fifteen minutes after the period set out in the State’s
alibi demand, the defendant was in Flowery Branch, Georgia, a four-and-a-half- to five-hour drive
from the crime scene. The practical effect of this claim, if true, would be to establish the geographic
impossibility of the defendant’s killing the victim. However, this evidence was not “alibi” proof,
according to the defendant, for two reasons: (1) it established his whereabouts only outside the
period in the State’s alibi demand, saying nothing of where he was during the period; and (2) since
being in Flowery Branch also allowed him to have been in Monterey during a portion of the period
in the alibi demand, his proof was not of alibi which must cover the entire period when the crime
was committed.5 Thus, by the defendant’s argument, witnesses establishing his whereabouts outside
the period in an alibi demand were not required to be disclosed because it was not proof of alibi.

To support this view of what is not required to be disclosed pursuant to an alibi demand, the
defendant relies upon several sources. He points out that in Christian v. State, 555 S.W.2d 863, 866
(Tenn. 1977), our supreme court defined alibi as “evidence which if believed would establish that
the defendant was not present at the scene of the alleged crime when it allegedly occurred.”
Additionally, he notes that in 11 David Louis Raybin, Tennessee Practice: Criminal Practice and
Procedure § 28.20, at 15 (1985), it is said that “[a]libi is a claim by the defendant that he was
elsewhere at the time of the offense and therefore could not be the person who committed the
offense.” Utilizing these definitions of “alibi,” the defendant argues that “[t]he proffered testimony
of Barbara Reed, Paul Voelker and Russell Looper was not ‘alibi’ evidence,” because they testified
only as to a time following the period set out in the alibi demand.

The defendant’s view of an alibi, used to avoid the disclosure requirement, ignores the
function of an alibi. Black’s Law Dictionary 72 (7th ed. 1999) defines “alibi” as “[a] defense based
on the physical impossibility of a defendant's guilt by placing the defendant in a location other than
the scene of the crime at the relevant time.”6 To establish the materiality of the testimony, and
resulting harm because of its exclusion, the defendant, in fact, utilizes the “geographic impossibility”
of his having committed the crime, which the excluded witnesses would have established.

5
On a ppe al, the defendant repeats this argument, applying the principle that an alibi must cover the entire period
in which the crime was comm itted, asserting “the presence of the shooter quite o bviously was no longer required to
acco mplish the crime after the fatal wou nd wa s inflicted.”

6
As we have noted, am ong the arguments of trial defense counsel as to why the witnesses from Flowery Branch,
Georgia, should be allowed to testify, counsel said of their testimony, “We now show that he could not physically have
[killed the victim].”

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If the distance and means of travel would have permitted the defendant both to have been at
the victim’s farm to commit the crime and, later that morning, to have been in Flowery Branch, the
proof would not have established an alibi. However, since the trial testimony established the
impossibility of his being in both places at the relevant times, proof that he was in Georgia would
have established an alibi, contrary to the refusal of one of the defendant’s arguments to so recognize.
The time and distance components of alibi proof were explained in Owens v. State, 809 So. 2d 744,
746-47 (Miss. Ct. App. 2002):

Black’s Law Dictionary suggests that the defense requires evidence
that the defendant’s location at the relevant time was “so removed
therefrom as to render it impossible for him to be the guilty party.”
Black’s Law Dictionary 71 (7th ed. 1999). Thus, a defendant in close
enough physical proximity to have committed the crime may deny the
criminal activity and may affirmatively assert that he was elsewhere
at the critical time. However, if the asserted alternate location is such
that, based on the version of events contended for by the defense, it
would remain within the realm of physical possibility for the
defendant to have committed the crime, then the defense is nothing
more than a denial and would not rise to the level of alibi.

Although arguing that we should not apply its holding, the defendant recognizes what,
apparently, is the only Tennessee decision considering proof of alibi by inference or implication,
State v. Coury, 697 S.W.2d 373 (Tenn. Crim. App. 1985), where a defense witness testified that he
had seen Coury in Mesa, Arizona, between 7:00 a.m. and 7:30 a.m. the morning of the 5:15 p.m.
sniper shooting in Williamson County, Tennessee. As to this witness, the issue raised on appeal was
whether the trial court had erred in allowing the State to question him about his 1956 Tennessee
conviction for grand larceny:

Initially, we note that the State objected to Francis’s testimony on
the grounds that no alibi notice was given, as such is required by
Tenn. R. Crim. P. 12.1. Coury’s counsel argued that he merely
wanted to show that Coury was in Arizona on the morning of June
15, 1981, and that he was not attempting to set up an alibi defense.
If, as argued by Coury’s counsel, the testimony was not for the
purpose of an alibi defense, then such testimony was irrelevant.

At any rate, it is obvious that the import of Francis’s testimony
was to leave the inference with the jury that if Coury was in Arizona
on the morning of the shooting, then he could not have been present
in Tennessee at the time of the shooting that afternoon. Thus, the
clear purpose of the testimony of Francis was to alibi Coury. As
such, none of Francis’s testimony should have been admitted by

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reason of Coury’s failure to comply with the alibi notice mandate of
Tenn. R. Crim. P. 12.1.

Id. at 379-80.

The defendant, reporting that Coury had not been cited subsequently by any court on the issue
of alibi, argues this part of the holding is dicta and that it “is an aberrant decision which should not
be followed as to what is or is not ‘alibi’ evidence.” Although this portion of the Coury holding may
be dicta, it certainly is not an aberration, for the essence of an alibi is the physical impossibility of
a defendant’s having been at the scene when the crime was committed.

The holding in Coury demonstrates one of the problems created by the defendant’s arguing
both that the evidence of his being in Flowery Branch the late morning of the crime did and did not
establish an alibi. If it did not, as one claim asserts, then the proof was not admissible, Coury
explaining that evidence of a defendant’s location, if not used to establish an alibi, is “irrelevant.”
If it did establish an alibi, as his other claim contends, Rule 12.1 required timely disclosure of the
identities of the Flowery Branch witnesses.

Contrary to the defendant’s view, the holding in Coury is not an aberration. Rather, time and
distance considerations are essential components of an alibi, as explained in Greenhow v. United
States, 490 A.2d 1130 (D.C. Ct. App. 1985):

“[Alibi] involves the impossibility of accused’s presence at the scene
of the offense at the time of its commission. . . . The defense of alibi
is designed to prove that accused, during the whole time that the
crime was being committed, was so far from the place where the
crime occurred that he could not have participated in it, or that he was
so far away that he could not, with ordinary exertion, have reached
the place in time to have so participated in the crime; and in order to
be legally effective it must cover the entire time during which the
crime is alleged to have been committed.”

Id. at 1134 (quoting 22 C.J.S. Criminal Law § 40, at 130-31 (1961)).

Other cases demonstrate the universal recognition of the time and distance components of
alibi and show that it may be proven inferentially, as recognized in Coury. The defense attempted
to prove an alibi in this fashion in State v. Nunn, 273 A.2d 366 (N.J. Super. Ct. App. Div. 1971),
wherein the two Nunn brothers were alleged to have carnally abused a fourteen-year-old girl after
2:00 a.m. on November 7, 1968, in a field behind their house. Although a New Jersey statute
required that advance notice of alibi proof be provided to the prosecution, the defendants did not
advise until the beginning of the trial of their intention to call their mother and sister as witnesses,
with both to testify that the brothers had gotten home at 11:30 p.m. on November 6 and gone to bed.
The trial court granted the state’s motion to exclude this testimony, because notice had not been

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given to the prosecution. Following their convictions, the brothers argued on appeal “that they were
not obliged to specify witnesses who had only circumstantial knowledge of [their] whereabouts at
the moment of the commission of the offense.” Id. at 368. However, the appellate court explained
that disclosure was required also of circumstantial evidence of alibi:

Whether the testimony of the proposed witness shows directly
that a defendant was not physically present at the precise time and
place of the alleged offense, or does so only inferentially, its purposes
and objectives are the same. The difference is the weight and degree
of persuasiveness attributed to that testimony by the jury. There is no
less reliance by defendant on such testimony nor less need for notice
by the State that it will be offered.

Id. at 370.

Other cases illustrate the requirement that an alibi cannot be established by showing a
defendant’s location before or after a crime unless the time and distance were such that the defendant
could not have committed the crime. Establishing geographic impossibility by showing the
defendant’s whereabouts prior to the crime was utilized for an alibi claim in Commonwealth v.
Blystone, 617 A.2d 778 (Pa. Super. Ct. 1992), although disclosure of the proof was not an issue. The
defendant, charged with arson for setting fire to a farmer’s milkhouse, argued that the state’s proof
was insufficient because, at the time the fire began, he was working at Domino’s Pizza, a ten-minute
drive from the scene of the arson. Affirming the conviction, the court recognized that the defendant
had attempted to establish an alibi by proving that, shortly before the crime, he was at a location
sufficiently distant from the scene of the crime that he could not have committed it:

“Alibi is a defense that places the defendant at the relevant time in a
different place than the scene involved and so removed therefrom as
to render it impossible for him to be the guilty party.”
Commonwealth v. Gainer, 397 Pa.Super. 348, 353, 580 A.2d 333,
336 (1990). Here, several defense witnesses testified that on
February 14, 1990, Blystone was at work until 2:00 in the morning.
Based on this testimony, Blystone argues that he did not have
sufficient time to drive to the farm and set the milkhouse on fire
before 2:15 a.m. when the owners of the farm telephoned the fire
department.

Id. at 780. However, a witness saw the defendant’s automobile, with a Domino’s pizza sign on the
roof, in the vicinity of the fire forty-five minutes before the victims reported the blaze to the fire
department. See State v. Hubbard, 711 So. 2d 393, 396 (La. Ct. App. 1998) (testimony that the
defendant was in Houston, Texas, a six-and-one-half-hour drive from Rayville, Louisiana, on Sunday
and Monday, did not provide an alibi for the charge that he had sold illegal drugs in Louisiana on
Saturday); Glover v. State, 458 S.E.2d 538, 540 (S.C. 1995) (defendant did not establish an alibi

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with testimony that he was in Florida between 8:00 a.m. and 8:30 a.m. the morning of the crime,
which occurred eleven hours later in Williamsburg County, South Carolina, a six-and-one-half-hour
drive from the place of the crime, the distance not making it physically impossible for him to have
driven from Florida to South Carolina to commit the crime).

Although the defendant relies upon a number of cases to support his claim that he was not
attempting to present proof of alibi, we respectfully disagree with his interpretations of these
authorities. From the cases, he extracts language to argue his restrictive view of alibi proof, but, as
we will explain, none of the cases support his arguments.

In State v. Horenberger, 349 N.W.2d 692, 695-96 (Wis. 1984), the defendant was alleged
to have aided two men in planning the robbery of a woman whom the defendant was dating. One
of the codefendants, testifying for the state, said that earlier in the day the group, including the
defendant, had planned the late night robbery, with the defendant waiting in the car while one of the
codefendants robbed the victim and the other burglarized her apartment. When the defendant
attempted to present proof that he had been at work during the day and, thus, could not have aided
in planning the crime, the State objected that he was attempting to present previously undisclosed
alibi proof. The court on appeal concluded that proof the defendant was not present at the planning
stage of the crime did not constitute alibi proof, which would focus solely on his whereabouts at the
time of the crime itself:

[T]he notice of alibi statute focuses on the defendant’s whereabouts
at the time the offense was committed. The statute, by its terms,
makes no reference to acts other than the actual offense. In this case,
then, the actual offenses to which the statute refers would be the
criminal acts which occurred at approximately 11 p.m. The crimes
with which the defendant was charged did not occur at the time they
were planned. Rather, the crimes occurred at the time the plan was
executed by robbing and falsely imprisoning Zess and burglarizing
her apartment. The defendant’s acts in planning the crimes, which
might have led to criminal liability as a party to the crime, were
separate in time and location from these offenses. We conclude that
the testimony concerning the defendant’s whereabouts earlier in the
day on July 2 was not an alibi defense within the meaning of [the
statute].

Id. at 696.

Thus, in Horenberger, the offered proof was not of alibi because it sought to show only that
the defendant was elsewhere when the crime was planned, but not that he could not have been
present when it was committed. Accordingly, its holding is irrelevant to the claim in the present
appeal that inferential proof of alibi is excused from disclosure.

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In another case relied upon by the defendant, State v. Berg, 697 P.2d 1365 (Mont. 1985),
Berg admitted that he had arrived at the residence in question at 8:10 p.m. but denied that he there
had assaulted the babysitter, as she claimed. Because alibi notice had not been given, the trial court
excluded the testimony of a witness who would have testified that he was with the defendant from
approximately 7:30 p.m. until 8:10 p.m. that same night. On appeal, the court determined that since
this witness would have testified as to being with the defendant earlier in the evening than when the
crime was committed, he did not provide an alibi. Accordingly, “the testimony by this witness was
not relevant, and it was therefore within the discretion of the court to strike it.” Id. at 1367.

The holding in Berg illustrates the dilemma the defendant creates by asserting conflicting
claims as to whether the Flowery Branch testimony is evidence of alibi. As explained by 21
Am.Jur.2d Criminal Law § 225, “Requirement That A ‘True’ Alibi Be Involved” (2002), citing the
holding in Berg, “[a] statute or rule requiring that special notice be given to the state of the
defendant’s intent to present an alibi defense does not apply where the evidence to be offered by the
defendant does not relate to a true alibi.” In the usual situation, it is the State which argues that the
defendant is not presenting a “true” alibi. If the testimony is that a defendant was in another
location, but the time and distance were such that he still could have committed the crime, he is not
presenting a “true” alibi and, as explained in Berg, the testimony is irrelevant. By contrast, in the
present appeal, it is the defendant who is arguing he is not presenting a “true” alibi, as he claims it
was not “impossible” for him to have been in “Monterey” and, later that morning, in Flowery
Branch. This claim, of course, ignores that the testimony estimated the travel time by automobile
to have been, at best, four and one-half to five hours, but frees the defendant to make his corollary
argument that since he did not offer a “true” alibi, as the Berg holding would support, he was not
required to reveal his witnesses. He then ties together these conflicting arguments, claiming there
would have been “a more nearly level playing field” if the jury learned of the defendant’s “presence
hundreds of miles away from the crime scene within a few hours after the fatal shooting.” However,
these conjoined arguments ignore the fact, explained in Berg, that if the testimony is not alibi, it,
also, is not relevant. Thus, Berg does not support the defendant’s argument.

Additionally, the defendant cites, in support of his view of what constitutes “alibi” proof,
United States v. Dupuy, 760 F.2d 1492 (9th Cir. 1985), where the prosecution had requested that
Dupuy disclose any alibi defense he had for August 31, 1980. However, at trial, the informant
testified that the criminal acts occurred on the previous day, August 30, 1980, while the indictment
alleged they occurred on yet a third date, September 1, 1980.7 Id. at 1498. Apparently, Dupuy
argued at trial that the prosecution should be allowed to present proof only as to August 31, the date
set out in the alibi demand. However, the court, distinguishing a motion for bill of particulars, which
would have had the limiting effect sought by the defendant, determined that the differing dates meant
that the defendant could present testimony from undisclosed alibi witnesses for August 30, because

7
The court noted that Dupuy’s trial counsel had known, from the informant’s grand jury testimony, the
discrepancies in the dates but waited eighteen days b efore bringing it to the court’s attention in moving for a continuance.
As it was, Dupuy presented testimony from his wife and mother-in-law that he was at a party in Nogales, Mexico, o n
August 30, 1980, until late in the evening.

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the prosecution, wrongly believing the offense date was August 31, had sought alibi information only
as to the latter date:

In this case the appellant was not limited by the Rule 12.1 request for
notice-of-alibi to alibi witnesses for August 31, 1980. He was free
to bring forth any alibi witnesses he deemed appropriate for the other
days encompassed by the charges against him. The Government
could not, for those days, claim unfair surprise because it had not
invoked Rule 12.1 as to those days.

Id. at 1499.

The defendant in the present appeal seeks to use this and other language from Dupuy to argue
that, because the State had limited its alibi notice to the period from 6:00 a.m. to 8:45 a.m., Central
Daylight Time, on October 19, 1998, he was not required to identify witnesses who would testify as
to times outside of this period:

The State demanded notice as to a specific, discrete, two hour and
forty-five minute period. The State made no demand as to any other
time. The “alibi” witnesses which the defense thereby became
obligated to disclose included those persons (other than the
Defendant), and only those persons, that would be offered to establish
Byron Looper’s whereabouts from 6:00 to 8:45 a.m., Central
Standard Time, on October 19, 1998. Here, as in United States v.
Dupuy, supra, Mr. Looper was free to bring any witness he deemed
appropriate for the other hours of October 19, 1998; as in Dupuy, the
Government could not, for those hours claim unfair surprise because
it had not invoked Rule 12.1 as to those hours.

We respectfully disagree that Dupuy supplies that which the defendant seeks to extract from
it. In fact, the court held that if the prosecution requests alibi information for a discrete period, as
alibi notice provisions require, yet proves that the criminal offense occurred during a different
period, it cannot seek to exclude alibi testimony as to the second period because the disclosure
requirement is only for the period set out in the state’s pleading. The Dupuy holding might be
relevant to the present appeal if, for instance, the State mistakenly had set out October 20, 1998, in
its alibi demand as the date of the crime. The defendant then could argue that the Flowery Branch
testimony was not subject to disclosure, since it proved the defendant’s whereabouts only on October
19. However, the State did not make this mistake, and Dupuy is not relevant to the defendant’s
argument.

No authority exists to support the defendant’s efforts to explain how the same proof can be
alibi for evidentiary purposes but non-alibi for disclosure purposes. If his restrictive version of alibi
proof were correct, it then would follow that an accused would not have to reveal, in response to an

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alibi demand, the identity of a witness testifying that, fifteen minutes after the period in an alibi
demand for a crime occurring in Tennessee, the defendant was camping in the Australian outback.
By the arguments in the present appeal, this testimony would not be subject to disclosure, regardless
of its implications, because the witness could speak only to the defendant’s location outside of the
period in the alibi demand. We do not believe that such a result was intended by the drafters of Rule
12.1.

We conclude that, without question, the defendant was attempting to establish an alibi
through the testimony of the Flowery Branch witnesses. We now will determine whether the trial
court erred in excluding this testimony.

The defendant argues that, in excluding the Flowery Branch witnesses from testifying, the
trial court abused its discretion and violated his right to due process of law. Our supreme court
explained in State v. James, 81 S.W.3d 751, 760 (Tenn. 2002), the role of the appellate court in
reviewing evidentiary rulings of the trial court:

Rulings on the admissibility of evidence are largely within the
sound discretion of the trial court, and on appellate review, a trial
court’s ruling to admit or exclude evidence will not be disturbed
unless it appears that such a ruling amounts to an abuse of that
discretion. [State v.]DuBose, 953 S.W.2d [649,] 652 [Tenn. 1997].
. . . “‘[A]n appellate court should find an abuse of discretion when
it appears that the trial court applied an incorrect legal standard, or
reached a decision which is against logic or reasoning that caused an
injustice to the party complaining.’” State v. Stevens, 78 S.W.3d 817
(Tenn. 2002) (quoting State v. Shuck, 953 S.W.2d 662, 669 (Tenn.
1997)).

The defendant argues that the trial court abused its discretion in excluding the testimony of
three of the witnesses from Flowery Branch because the court “inexplicably made no findings with
regard to these factors, despite the prosecuting attorney’s having cited the same six factors [set out
in United States v. Wood, 780 F.2d 555 (6th Cir. 1986)] during argument.” He argues, additionally,
that we cannot determine whether the trial court abused its discretion in excluding the testimony
without considering, also, whether the exclusion violated his right to due process. Relying upon
United States v. Hamilton, 128 F.3d 996, 1002 (6th Cir. 1997), the defendant argues that on appeal
a de novo standard of review is utilized in determining whether a trial court properly considered the
factors set out in Taylor v. Illinois, 484 U.S. 400, 410, 108 S. Ct. 646, 653-54, 98 L. Ed. 2d 798
(1988).8 Other courts, however, do not make this distinction, and simply apply an abuse of

8
He asserts also that we should apply the considerations set out in State v. Brown, 29 S.W .3d 427, 431 (Tenn.),
cert. denied, 531 U.S. 916, 121 S. Ct. 275, 148 L. Ed. 2d 200 (2000), in deciding whether the trial court violated the
defendant’s due process rights in exclud

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1073319. Public record. Not legal advice.