State of Tennessee v. Nelson Troglin

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs December 18, 2001

STATE OF TENNESSEE v. NELSON TROGLIN

Direct Appeal from the Circuit Court for Bledsoe County

No. 66-1998 Thomas W. Graham, Judge

No. E2001-00251-CCA-R3-CD

March 12, 2002

The defendant, Nelson Troglin, was convicted of second degree murder following a jury trial in the

Bledsoe County Circuit Court. The trial court subsequently imposed a sentence of twenty-three

years. In this appeal, Defendant raises the following issues: (1) whether the evidence was sufficient

to support his conviction; (2) whether the trial court erred by ruling that Defendant’s statement to

the police was admissible as evidence during his trial; (3) whether comments made by the trial court

during curative instructions to the jury constituted impermissible expressions of bias toward

Defendant, effectively depriving him of his right to a fair trial; (4) whether the trial court erred when

it excluded evidence that a person, not Defendant, had assaulted the victim on the day of his death,

and when it allowed an expert to testify concerning evidence which was not revealed to Defendant

during regular discovery; (5) whether the trial court erred by failing to instruct the jury on the lesser-

included offenses of reckless homicide and criminally negligent homicide; and (6) whether the

sentence imposed by the trial court was excessive. After a thorough review of the record, we affirm

the judgment of the trial court.

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

THOMAS T. WOODALL , J., delivered the opinion of the court, in which JOSEPH M. TIPTON and

ROBERT W. WEDEMEYER , JJ., joined.

Howard L. Upchurch, Pikeville, Tennessee, for the appellant, Nelson Troglin.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;

J. Michael Taylor, District Attorney General; and James W. Pope, III, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

The following facts are taken from the evidence adduced at Defendant’s trial. (The proof

presented at Defendant’s suppression hearing is discussed in section II of this opinion.) On June 15,

1998, Harvey Ralph Wilkey, the victim in this case, was discovered dead at approximately 6:30 p.m.

on the floor of the bedroom in his residence on Highway 30 in Pikeville, Tennessee. Wilkey was

in the business of selling alcoholic beverages at his home. His body was first discovered by a

neighbor, Richard Stafford, who had stopped by to make a purchase. Upon finding the body,

Stafford immediately dialed 911. The first person to respond was Tony Richardson, a paramedic

with the Bledsoe County Ambulance Service, who arrived at 6:52 p.m. Richardson reported that

Wilkey’s body was positioned face down, with his knees bent up underneath his abdomen and the

right side of his face lay on the floor. Wilkey was not breathing and no pulse was evident, but his

body was still warm and rigor mortis had not set in. Richardson straightened out the body in

preparation for rolling it over to initiate CPR. At this point, he discovered blood on Wilkey’s shirt

and numerous puncture or exit wounds around the right kidney area. Richardson telephoned for

additional police assistance and cleared the area of bystanders. Local law enforcement arrived a few

minutes later.

David Emiren, the Tennessee Bureau of Investigation (“TBI”) agent assigned to Bledsoe

County, arrived at the Wilkey residence at 8:00 p.m. By that time, local police had secured the crime

scene area, and Sheriff Swafford of Bledsoe County and Assistant District Attorney Jimmy Pope

were also present. Wilkey’s body remained face down on the carpet until Agent Emiren’s arrival.

Agent Emiren noted three wounds in the victim’s back, where the shirt covering this area had been

pulled up by the paramedic. Agent Emiren then rolled the body over and observed that the right

pocket of Wilkey’s blue jeans was empty and turned inside out. In a different pants pocket, he found

more than $400. Later, Wilkey’s half-sister, Nannie Lou Troglin, informed Agent Emiren that she

had observed Wilkey place a “large amount of money” into his right front pocket on the day he died.

Agent Emiren observed an unloaded Mossberg 20 gauge shotgun standing in the corner of

the bedroom. It was the only weapon in the immediate vicinity of the body. Located on the wall

directly adjacent to the shotgun were three bullet holes. Four expended 9 mm Winchester Luger

hulls were also discovered in various areas of the bedroom: one in a corner of the room, one under

the bed, and two more lying on the window sill. A subsequent autopsy revealed that Wilkey had

been shot four times. Three bullets completely penetrated the body, and one bullet had remained

lodged in the left buttock.

Meanwhile, William Angel, an investigator with the Bledsoe County Sheriff’s Department,

had been instructed to assist with the murder investigation by conducting interviews of the witnesses

uncovered thus far. Officer Angel arrived at the Sheriff’s Office at approximately 8:00 p.m. on June

15, 1998. He began by interviewing Richard Stafford, the neighbor who reported discovering

Wilkey’s body, and the persons who were with him at that time: Stafford’s girlfriend, Susan Joyner;

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a man named Lonnie Angel, Sr. (no relation to the interviewer); Angel’s son, Lonnie Angel, Jr.; and

Angel’s brother, also known as “Cuckoo.” Thereafter, Officer Angel also interviewed Mike

Stafford, Richard Stafford’s brother; Virginia Wright, who also lived on the property adjacent to

Wilkey’s residence; Christy Luttrell, Virginia’s daughter; and Christy’s boyfriend, Ron Sullivan.

Richard Stafford, Christy Luttrell, and Ron Sullivan all reported observing a vehicle similar

to Defendant’s parked in the driveway of Wilkey’s house at approximately 5:00 p.m. on the day his

body was discovered. The witnesses noticed the vehicle as they drove by Wilkey’s house on their

way to town. Defendant drove a distinctive vehicle at that time: a reddish-brown or “maroon”

Dodge with black stripes extending from the front of the hood to the rear of the car on both sides.

All three witnesses further claimed that the vehicle was still there when they returned. According

to the testimonies of Luttrell and Sullivan, the time was shortly after 6:00 p.m. Additional witnesses,

Mike Stafford and Virginia Wright, confirmed the presence of the maroon vehicle at Wilkey’s house

on June 15, 1998. Mike recalled noticing the vehicle between 5:30 and 6:00 p.m. Virginia recalled

observing the car sometime after 5:00 p.m. Mike was familiar with the vehicle and positively

identified the car he saw at Wilkey’s as belonging to Defendant. Nannie Lou Troglin, half-sister of

the victim and a sister-in-law of Defendant, also observed Defendant’s vehicle parked at Wilkey’s

house on the day of the murder, but was unable to state with any certainty what time it had arrived

or departed. Officer Angel was further informed by numerous witnesses that Wilkey sold liquor and,

thus, it was not uncommon for a variety of vehicles to be parked at his house.

After Richard Stafford, Christy Luttrell, and Ron Sullivan returned from town, Richard and

his girlfriend, Susan Joyner, walked to Wilkey’s house to pick up some liquor. The time was

approximately 6:30 p.m. Richard testified that he “pecked” at the door and they both walked in, as

was customary for them. Richard sat down at the bar. Susan sat at a table. Wilkey was not present.

Shortly thereafter, Lonnie Angel Sr. appeared with his two sons, also wanting to purchase alcohol.

Richard telephoned Wilkey’s sister in an attempt to locate Wilkey. She replied that he was not with

her and instructed Richard to look around. Richard walked into Wilkey’s bedroom and discovered

him “humped over” in the corner, apparently dead. Richard dialed 911, checked for a pulse, and

stayed until the ambulance arrived.

At the conclusion of his interviews on June 15, 1998, Officer Angel attempted to locate the

maroon vehicle that was reportedly parked at the victim’s home on the day of the killing and

matched a description of Defendant’s Dodge. He arrived at Defendant’s brother’s residence at 11:00

p.m. that night. Defendant and his vehicle were both present, and Defendant had not yet retired for

the evening. Officer Angel explained to Defendant that Wilkey had been killed. Defendant

appeared surprised. Officer Angel informed Defendant that Sheriff Swafford would like to speak

with him and asked Defendant to accompany him to the Sheriff’s Department for this purpose.

Officer Angel advised Defendant that no arrest warrant had been issued and that Defendant was not

required to go with him. Defendant agreed to accompany Officer Angel and asked to bring a few

beers with him. It was apparent to Officer Angel that Defendant had been drinking and he refused

permission. Defendant accompanied him anyway.

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TBI Agent Emiren had completed his investigation of the crime scene and was present when

Officer Angel and Defendant arrived at the Sheriff’s Department. The time was 12:30 a.m. on June

16, 1998. Emiren conducted Defendant’s interview and testified at trial that he did not read

Defendant the Miranda warnings because the interrogation was not “custodial,” and Defendant was

not under arrest at that time.

During the interview which ensued, Defendant gave Agent Emiren a statement concerning

his activities on June 15, 1998, which Emiren read to the jury at trial. The statement contained the

following facts: Defendant worked from 4:00 a.m. to 8:00 a.m. Thereafter, his niece, Teresa Smith,

drove him to see Dr. Francis Labuffe, for the purpose of obtaining medication to treat Defendant’s

“nervous condition.” Defendant was uncertain what time he and Teresa returned, but he claimed that

he was drinking beer with two friends named Billy and Janice Billingsley at approximately 2:30 p.m.

Later (the exact time again unspecified), Defendant drove to a store known as “Nyla’s Place,” where

he purchased “22 longs” (22 caliber ammunition). Defendant specifically stated: “I did not buy any

9 millimeter shells. I do not own or have I ever owned a 9 millimeter gun.” After twenty-five

minutes at the store, Defendant claimed that he returned to the Billingsley’s house and stayed until

7:00 p.m. Thereafter, Defendant drove to visit two friends named Jim and Linda Evans. At this

point, Defendant had imbibed too much alcohol to drive safely. Jim gave him a ride home,

sometime between 8:00 and 8:30 p.m. Linda followed the two men in Defendant’s car. Defendant

stated that when he arrived at home, he went directly to bed.

In his statement, Defendant admitted that he had played poker a number of times during the

two week period prior to the murder and that he had cash in his possession. Agent Emiren asked

how much cash he was carrying, and Defendant showed him $639 in currency: two 100-dollar bills,

sixteen 20-dollar bills, two 10-dollar bills, eight 5-dollar bills, and fifty-nine 1-dollar bills. Emiren

requested permission to photocopy the currency, but Defendant refused and put it back into his

pocket.

When Defendant finished his statement, he requested a lawyer. Agent Emiren responded by

handing him a telephone book. Emiren did not state whether Defendant attempted to telephone

anyone. During cross-examination at trial, Defendant’s counsel asked Emiren whether he was aware

that Defendant was illiterate. Emiren replied negatively. Defendant’s counsel also questioned

Emiren regarding Defendant’s state of intoxication. Emiren testified that, although Defendant

appeared to have been drinking alcohol earlier in the evening, he behaved rationally throughout their

conversation.

At approximately 1:30 a.m., Officer Angel drove Defendant back to his brother’s residence.

When they arrived, Officer Angel asked permission to search Defendant’s vehicle and take some

photographs. Defendant consented. Officer Angel testified that he was searching for 9 mm weapons

and ammunition. He discovered only a .22 caliber rifle and one box of .22 caliber ammunition.

Defendant also consented when Officer Angel requested to search his residence. This search

similarly failed to reveal any 9 mm weapons or ammunition.

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During the investigation which followed Wilkey’s murder, law enforcement learned from

various sources that (1) Defendant had owned a 9 mm semiautomatic rifle, (2) he had purchased

shells for the weapon, and (3) he had fired it on at least two separate occasions. One such source was

Norman Blaylock, an acquaintance of Defendant’s. Blaylock testified at trial that he encountered

Defendant and a man named Ted Fugate by “chance” on June 14, 1998, as he was traveling up the

road toward Brockdale Mountain. Defendant and Fugate informed Blaylock that they had recently

won some money playing poker and wondered whether he “had anything to trade on.” Blaylock

replied that he had guns and land to trade. The two men followed him back to his house where

Blaylock sold a 30-30 Winchester lever action rifle to Fugate and a 9 mm semiautomatic Marlin rifle

to Defendant. Blaylock recalled giving ammunition for both weapons to the men and that Defendant

test-fired them both in front of Blaylock’s house. The ammunition “hulls” were expelled onto the

ground and, as far as Blaylock knew, they remained there until an investigator from TBI came to

collect them.

Roger Hodge, co-owner of a small Pikeville store referred to as “Nyla’s Place,” testified that

at approximately 5:00 p.m. on June 15, 1998, Defendant came to his store searching for ammunition

cartridges similar to the cartridges he brought with him, which were 9 mm. Defendant told Hodge

that “he’d traded for an old gun and was going to try it out.” Hodge had only one box of Winchester

9 mm shells in the store and sold them to Defendant for $20. Defendant seemed disturbed and asked

to speak with Hodge privately. When they were alone, Defendant confided that he had just been

diagnosed with cancer. A few minutes later, a friend named Jerry Tullis joined the two men and

bought Defendant a six-pack of beer. Then the store became busy, and Hodge left to work the

counter. According to Hodge’s recollection, Defendant had remained at his store for a total of fifteen

to thirty minutes.

Bob Smith, another acquaintance of Defendant’s, testified at trial that on June 14, 1998,

Defendant came to his house wanting to trade a 9 mm gun for one of his cars. Bob’s wife, Helen,

brought the firearm, a 9 mm rifle, into the house and showed it to him. Bob was not interested, but

he walked out onto the porch and asked Defendant “if it shot good.” Defendant responded by

shooting the rifle into the air two or three times. Still uninterested, Bob went back into his house.

At trial, Bob conceded that he did not recall any details concerning the rifle, other than the fact that

it was a 9 mm weapon. Consequently, he was unable to identify Defendant’s weapon from the

diagrams showed to him at trial. His wife Helen, however, recalled the rifle and also testified at trial.

When showed a diagram of a Marlin “Model 9 Camp Carbine, 9 mm Semiautomatic,” Exhibit 24,

she identified this specific rifle as the type Defendant brought over and fired in their front yard. A

few days later, investigators from the TBI expressed interest in the expended hulls, and Helen

showed the agents where Defendant was standing when he fired the weapon. The agents discovered

and removed two 9 mm hulls from their property.

The murder weapon in this case was never recovered. Steve Scott, a TBI Crime Laboratory

investigator assigned to the firearms identification section, examined the three bullets recovered from

the wall of Wilkey’s bedroom and the single bullet recovered from Wilkey’s body. According to

the results of Scott’s analysis, all four bullets were fired from the same 9 mm weapon. When asked

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for his opinion regarding what brand of manufactured weapon might have fired the bullets, Scott

gave the names of two manufacturers, one of which was the Marlin Firearms Company. Scott also

analyzed the four expended Winchester cartridges recovered from the crime scene, the six expended

cartridges recovered from the Blaylock residence, and the two expended cartridges recovered from

the Smith’s front yard. The test results revealed that all twelve cartridges were fired from the same

weapon.

Dr. Charles W. Harlan, a specialist in the areas of anatomic, clinical and forensic pathology,

testified at trial that he performed the autopsy on Wilkey. Dr. Harlan’s examination revealed four

entry bullet wounds to the anterior chest and abdomen, and three exit wounds on the back of the

same area. All four bullets had traveled from the front to the back of the victim’s body and all of

the bullets’ paths were angled slightly downward. The bullet which did not exit the body was lodged

in the left buttock. The first bullet passed through the heart, esophagus, and liver; the second passed

through the stomach, liver, and abdominal aorta; the third passed through the heart, liver, right

kidney and aorta; and the fourth, which remained in the buttock, did not penetrate any vital organs.

Dr. Harlan testified that, of the first three wounds described, any one would have been capable of

causing death, even if Wilkey had received medical attention within a reasonable period of time after

the injury. Given the anatomical structures damaged, Dr. Harlan further concluded that Wilkey had

bled to death internally within four to five minutes of receiving the injuries. In addition, Dr. Harlan

reported that all blood and urine tests showed negative results for alcohol and drugs, and no

defensive wounds were discovered. Dr. Harlan was unable to estimate the time of death. However,

Billy F. Wheeler, the County Executive of Bledsoe County, testified that he encountered Wilkey at

the post office on June 15, 1998 at approximately 4:30 p.m.

The investigators also spoke with Richard Wooden, who regularly played poker at a local

game room which Defendant frequented. Consequently, Wooden was acquainted with Defendant,

Wilkey, and most of the local residents who enjoyed this particular pastime. Wooden testified that,

on June 13, 1998, he was playing cards with Wilkey, Defendant, and a man named Dennis Johnson.

During the course of the game, Defendant asked Wooden to meet him in the hall. When Wooden

complied, Defendant asked to borrow Wooden’s gun so that he could rob Wilkey of his money.

Wooden wanted no part of Defendant’s plan and responded that, if Defendant wanted Wilkey’s

money, he should ask him for it and Wilkey would probably give it to him. Wooden rejoined the

game, but Defendant called him back into the hall two more times that evening. On one occasion,

Defendant suggested that Wooden offer Wilkey a ride home and then stop at some prearranged point

so that Defendant could rob him. Wooden repeated that he wanted nothing to do with Defendant’s

scheme. Defendant responded, “I’m killing that son-of-a-bitch and I’ll get that money.” The next

day, Wooden saw Defendant with Fugate and Blaylock. Monday, June 15th, Wooden went to work.

Arriving at the game room at approximately 6:30 p.m. that evening, Wooden learned that Wilkey

had been shot. Some time later, Defendant also visited the game room. When he learned of

Wilkey’s death, he threw a twenty-dollar bill on the counter and said, “There’s the son-of-a-bitch

some flowers.” Wooden confessed that he had told no one of his June 13 conversation with

Defendant until after Wilkey was killed.

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Defendant did not testify at trial, but presented an alibi defense through the testimonies of

various witnesses. Teresa Smith, Defendant’s niece, testified that she drove Defendant to see his

doctor at the Johnson’s Mental Health Center in Dayton, Tennessee, on June 15, 1998. Afterward,

she claimed that she and Defendant ate lunch and returned to the home of her mother, Willadean

Smith, who is also Defendant’s sister. Teresa was unsure of the exact time they returned home, but

was certain that it was after 3:00 p.m. because her son was out of school.

Dinah Smith, another niece of Defendant’s, testified that she was at the home of her mother,

Willadean, when Defendant and Teresa left for Dayton on the morning of June 15, 1998. Dinah

recalled that Defendant returned at approximately 3:00 p.m., stayed thirty minutes, and then left to

fill his Xanax prescription. He returned a few minutes after 4:00 p.m., and then left to visit someone

named Billingsley. Defendant returned to Willadean’s again, sometime between 5:00 and 5:15 p.m.,

and said he needed some sleep. He then laid down on the living room couch and asked his nephew,

Scotty, to wake him up at 6:30 p.m. Defendant slept until 6:30 p.m., at which time Scotty woke him

up. Defendant stayed at Willadean’s for approximately ten more minutes, and then he left to visit

friends named Jim and Linda Evans.

The testimonies of Willadean Smith and Scotty Smith, Defendant’s sister and nephew,

respectively, corroborated the testimony of Teresa and Dinah in all pertinent aspects. Significantly,

Willadean and Scotty both attested that Defendant was asleep on Willadean’s couch from

approximately 5:00 p.m. until at least 6:30 p.m., when he left to visit friends. Linda Evans testified

that Defendant arrived at her home at approximately 7:15 p.m. and that her husband drove him home

at 8:30 p.m. because he had been drinking. She also claimed that she followed her husband in

Defendant’s car--a red Dodge with black stripes.

ANALYSIS

I. Sufficiency of the Evidence

Defendant first submits that the State’s case was devoid of direct evidence implicating him

in the crime and that the proof is insufficient as a matter of law to sustain his conviction. We

disagree.

When evidentiary sufficiency is questioned on appeal, the standard of review is whether, after

considering all the evidence in the light most favorable to the State, any rational trier of fact could

have found all the essential elements of the offense beyond a reasonable doubt. See Jackson v.

Virginia, 443 U.S. 307, 318-319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); State v. Hall, 8

S.W.3d 593, 599 (Tenn. 1999); Tenn. R. App. P. 13(e).

In determining the sufficiency of the evidence, we will not reweigh the evidence or substitute

our own inferences for those drawn by the trier of fact. See State v. Sheffield, 676 S.W.2d 542, 547

(Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Instead, on appeal, the State

is entitled to the strongest legitimate view of the evidence and to all reasonable and legitimate

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inferences that may be drawn therefrom. Hall, 8 S.W.3d at 599. A guilty verdict by a jury, approved

by the trial court, accredits the testimony of the witnesses for the State and resolves all conflicts in

favor of the prosecution’s theory, effectively removing the presumption of innocence and replacing

it with a presumption of guilt. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions

concerning the credibility of witnesses, the weight and value of evidence, and factual issues raised

by the evidence are matters to be resolved by the trier of fact, not this Court. Id. The defendant

bears the burden of demonstrating that the evidence is insufficient to support his or her conviction.

State v. Pike, 978 S.W.2d 904, 914 (Tenn. 1998); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.

1982).

The standard for appellate review is the same whether the conviction is based upon direct

evidence, circumstantial evidence, or a combination of both. State v. Hall, 976 S.W.2d 121, 140

(Tenn. 1998) (citing State v. Tharpe, 726 S.W.2d 896, 899-900 (Tenn. 1987)). However, where a

conviction is based upon entirely circumstantial evidence, the facts and the circumstances “must be

so strong and cogent as to exclude every other reasonable hypothesis save the guilt of the defendant,

and that beyond a reasonable doubt.” State v. Crawford, 470 S.W.2d 610, 612 (Tenn. 1971). Put

another way, a conviction based entirely on circumstantial evidence requires that the facts be “so

clearly interwoven and connected that the finger of guilt is pointed unerringly at the Defendant and

the Defendant alone.” State v. Smith, 868 S.W.2d 561, 569 (Tenn. 1993) (quoting State v. Duncan,

698 S.W.2d 63, 67 (Tenn. 1985)).

To convict a defendant of second degree murder, the State must prove beyond a reasonable

doubt that the defendant unlawfully killed the alleged victim and that the defendant acted knowingly.

See Tenn. Code Ann. § 39-13-210(a)(1) (1997). “A person acts knowingly with respect to a result

of the person’s conduct when the person is aware that the conduct is reasonably certain to cause the

result.” Id. § 39-11-302(b).

The evidence presented at trial revealed that Wilkey was killed with a 9 mm firearm and,

although Defendant made a statement wherein he denied ever owning such a weapon or buying

ammunition for same, the testimonies of Norman Blaylock, Bob Smith, and Roger Hodge indicated

otherwise. The proof also showed that the Winchester 9 mm cartridges discovered in the room with

the victim’s body were expended from the 9 mm firearm possessed by Defendant and that these

cartridges were similar to both the type of ammunition purchased by Defendant earlier that day and

the size of the bullets used to kill the victim.

Additionally, Defendant’s account to law enforcement officials of his activities on June 15,

1998 was not consistent with the testimony of numerous witnesses. Importantly, Defendant’s

account did not include a visit to Wilkey’s. Yet, six witnesses testified that Defendant’s vehicle was

parked at the victim’s house. Granted, the testimony of these six witnesses conflicts with the

testimony of Defendant’s two nieces, his nephew, and his sister, all of which reported that Defendant

was asleep on his sister’s couch during the approximate period of time that his car was observed at

the victim’s residence. However, the determination of the weight and credibility of the testimony

of witnesses and reconciliation of conflicts in that testimony are matters entrusted exclusively to the

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trier of fact, not this Court. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); Byrge v. State,

575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). Similarly to any other fact at trial, the testimony

presenting an alibi defense constitutes an issue determinable by the jury. Smith v. State, 566 S.W.2d

553, 556 (Tenn. Crim. App. 1978). In the present case, the jury heard the evidence regarding

Defendant’s alibi, evaluated the credibility of the witnesses attesting to his brief nap during the time

the murder was probably committed, and apparently rejected the defense.

Finally, the proof also indicates that Defendant admitted his desire to rob and kill Wilkey

on June 13, 1998, two days before Wilkey was actually killed and, most likely, robbed. The

evidence indicates that the killer aimed and fired four bullets into the victim’s body, conduct

reasonably certain to kill the victim. Such action falls within the definition of “knowing” conduct.

In sum, when the evidence is viewed in the light most favorable to the State, as it must be,

we conclude that it was sufficient to find beyond a reasonable doubt that Defendant unlawfully killed

the victim, that he acted knowingly, and that no other reasonable hypotheses exist. Defendant is not

entitled to relief on this issue.

II. Admissibility of Defendant’s Statement

Defendant contends that the trial court erred by allowing Defendant’s statement to TBI Agent

Emiren to be admitted as evidence during his trial. Specifically, Defendant argues that he was “in

custody” during his conversation with Emiren and, therefore, his statement is inadmissible because

he was not read his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436 (1966).

Defendant further argues that, even if this Court determines that he was not “in custody” for

purposes of requiring Miranda warnings, his statement was nevertheless inadmissible because it was

not “voluntary,” as contemplated by the Constitution of Tennessee. After a thorough review of the

record, we disagree.

The record reveals that, prior to trial, Defendant filed a motion to suppress his statement to

Agent Emiren. The matter was heard by the trial court on September 20, 1999. At the suppression

hearing, Officer Angel testified that he located Defendant at his brother’s residence on Brockdale

Mountain at approximately 11:00 p.m. on June 15, 1998. He informed Defendant that Ralph Wilkey

had been killed and that Sheriff Swafford “would like to talk to him, if he didn’t mind coming down

and giving a statement,” since a vehicle matching the description of Defendant’s Dodge had been

observed at the victim’s home. Angel testified that Defendant appeared surprised at the news of

Wilkey’s death and responded that he “didn’t mind a bit” going with Angel to the jail. It appeared

to Angel that Defendant had been drinking alcohol. Defendant asked to bring a couple of beers with

him to the jail. Angel denied his request.

Thereafter, Angel and another officer drove Defendant to the Bledsoe County Jail in the rear

of their patrol car, admittedly a “secured” area, because three men would not ride comfortably on

the front seat. Angel testified that Defendant was only a “potential witness” at that time, and Angel

had informed Defendant that he was not under arrest. On the way to the jail, Defendant told the

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officers that they had “better have something good on him or he’d sue the county.” In response,

Angel informed Defendant a second time that he was not under arrest and that they would “turn

around and take him back home if that was what he wanted to do . . . [the Sheriff] just wanted to talk

to him because a car like his had been there.” Defendant again consented to accompany the officers,

if they agreed to give him a ride home afterward. Defendant was not handcuffed, shackled, or

physically restrained in any way. The drive to the jail lasted approximately twenty to twenty-five

minutes.

When the officers and Defendant arrived at the jail, TBI Agent David Emiren used Angel’s

office for the interview. Angel testified that he was not present during questioning and, according

to his recollection, neither were any other officers. At the conclusion of the interview, Angel and

another officer drove Defendant back home. Angel stated that Defendant did not appear dissatisfied

or aggrieved during the trip back. When they arrived at Defendant’s home, he was “very

cooperative” and consented to a search of his vehicle and residence.

Upon cross-examination, Officer Angel testified that transporting Defendant to and from the

interview in the patrol car was not unusual--all of the witnesses previously interviewed that evening

had been transported in identical fashion. Angel also reported that, at the time Defendant was

interviewed, the investigators were uncertain what time the victim was killed. The five witnesses

that Angel spoke with had all observed a vehicle similar to that driven by Defendant at the victim’s

house between the hours of 5:00 and 6:00 p.m., but none had reported seeing Defendant.

TBI Agent Emiren also testified at the suppression hearing. Emiren testified that he was at

the Bledsoe County Jail when Defendant arrived with Officer Angel. Emiren was using the

telephone in Angel’s office at the time. Angel brought Defendant into the office, and Emiren began

interviewing him at 12:30 a.m. They talked for a little over an hour, and Defendant’s written

statement was completed at 1:30 a.m. No other law enforcement personnel were present in the room.

The office had one large window, and the office door was open during the interview. Defendant

drank coffee and smoked cigarettes throughout their conversation. Emiren advised Defendant that

the purpose of the interview was to obtain information. He did not advise Defendant of his Miranda

rights. At that time, he was only a witness. Defendant gave an account of the previous day’s events

in narrative form. The account was specific as to times, persons encountered, and what activities

Defendant had engaged in. Emiren testified that he noted the odor of beer on Defendant, but that

he did not appear “fuzzy,” evince an inability to remember things, or appear unable to comprehend

what was happening at any time during their conversation. Emiren further testified that he never

suggested that Defendant could not leave the jail, or terminate the interview, or quit talking at any

time.

Emiren handwrote Defendant’s statement and, when the interview was nearly completed,

Emiren read the statement back to him. Defendant made some changes, initialed them, and signed

the document. To summarize, Defendant claimed in his statement that he had no knowledge of, or

anything to do with, Wilkey’s death. Based upon his statement, it appeared to Emiren that

Defendant could account for his actions during the time period that Wilkey was most likely killed.

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Although Emiren conceded that the information he received from Defendant did not correspond with

other information he had received, Emiren testified that he had no reason to arrest Defendant.

Emiren further testified that Defendant became briefly upset one time, when Emiren asked

whether he would be willing to submit to a polygraph test. Defendant demanded the number of his

attorney and threatened to sue the county. Emiren handed him a telephone directory. Shortly

thereafter, Defendant “settled right back down, and wanted some coffee.” Emiren had no knowledge

that Defendant was illiterate. When the interview was completed, Defendant told Emiren that he was

not feeling well. He requested that Emiren call his employer to inform him that he would not be

reporting for work the next day. Emiren agreed. Angel and another officer then drove Defendant

home.

At the suppression hearing, Defendant testified that he had no knowledge regarding the

offense he was charged with and appeared largely unable to recall any significant details of the

conversations that had occurred between him and his attorney concerning his trial. Defendant

professed a general inability to assist with his defense or comprehend his situation. Among other

things, Defendant claimed that he was unable to give his attorney names or information about

potential witnesses, that he could not recall what constituted an alibi defense, that he was unaware

that his jury trial had been scheduled for the next day, that he did not understand the concept of plea

bargaining, and, generally, that he did not understand what he was doing in court that day. With

regard to the circumstances surrounding his statement, Defendant testified that he recalled speaking

with Emiren at the jail. However, he claimed that Emiren never read his statement to him and that

he did not know what he was signing. (On November 24, 1999, the trial court ordered that

Defendant undergo a forensic mental evaluation to determine his mental condition at the time of the

offense and whether he was competent to stand trial. The record does not contain the results of the

evaluation, but we may assume that Defendant was found mentally competent since the matter

ultimately went to trial.)

The trial court denied Defendant’s motion to suppress in an order filed October 5, 1999,

which may be summarized as follows: The trial court expressed “concern” over the facts that (1) the

interview took place during a late hour at the jail, which was some distance from Defendant’s home,

and (2) Defendant was transported to and from the jail in the back of a patrol car. However, the trial

court determined that Defendant was an adult capable of voluntarily giving a statement and that the

officers in charge had advised him that he was free to return home at any time. Based on the totality

of the circumstances, the trial court concluded that Defendant’s statement was voluntary and not the

result of custodial interrogation. As such, his statement was admissible and not the result of a breach

of Defendant’s Fourth Amendment rights. The court also stated that Defendant “did not take the

stand,” but the record indicates that Defendant testified. This mistake is immaterial. The order

reflects that the trial court’s misstatement was made in the context of considering the credibility of

the two officers and that the trial court determined that the officers’ testimony that Defendant was

free to go was “undisputed.” Since the record reveals that Defendant’s testimony offered no proof

to contradict the officers’ testimony that Defendant was free to go and/or terminate the interview,

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the trial court’s determination is unaffected and its mistaken finding that Defendant “did not take the

stand” is of no consequence.

Returning to our review of the trial court’s findings of fact and conclusions of law on the

motion to suppress evidence, the standard of review is set forth in State v. Odom, 928 S.W.2d 18

(Tenn. 1996). Under this standard, “a trial court’s findings of fact in a suppression hearing will be

upheld unless the evidence preponderates otherwise.” Id. at 23. As is customary, “the prevailing

party in the trial court is afforded the ‘strongest legitimate view of the evidence and all reasonable

and legitimate inferences that may be drawn from that evidence.’” State v. Carter, 16 S.W.3d 762,

765 (Tenn. 2000) (quoting State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998)). This Court reviews

de novo the trial court’s application of the law to the facts, without according any presumption of

correctness to those conclusions. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v.

Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999). We further note that in reviewing the correctness of

a trial court’s ruling on a pretrial motion to suppress, this Court may consider the proof adduced at

both the suppression hearing and the trial. State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).

A. Whether Defendant Was “In Custody”

Defendant argues that he was “in custody” when he gave his statement and, therefore, the

trial court erred in ruling it admissible because he was not read his constitutional rights prior to

Agent Emiren’s questioning, as required by Miranda v. Arizona, 384 U.S. 436 (1966). The State

argues that the interrogation of Defendant at the Bledsoe County Jail was non-custodial, and, thus,

Miranda warnings were not warranted. We agree with the State.

In Miranda v. Arizona, the United States Supreme Court held that before custodial

interrogation can take place, the police must inform the individual that (a) he has the right to remain

silent; (b) any statement made may be used as evidence against him; (c) he has the right to the

presence of an attorney; and, (d) if he cannot afford an attorney, one will be appointed for him prior

to questioning, if he so desires. Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed.

2d 694 (1966). “Custodial interrogation” was defined by the Miranda court as “questioning initiated

by law enforcement officers after a person has been taken into custody or otherwise deprived of his

freedom of action in any significant way.” Id.

In Tennessee, the appropriate test for determining whether an individual is “in custody” for

purposes of Miranda was set forth by our supreme court in State v. Anderson, 937 S.W.2d 851

(Tenn. 1996). Under Anderson, the proper inquiry is “whether, under the totality of the

circumstances, a reasonable person in the suspect’s position would consider himself or herself

deprived of freedom of movement to a degree associated with a formal arrest.” Id. at 855. The test

is objective from the viewpoint of the suspect, and factors relevant to this determination include:

(1) the time and location of the interrogation; (2) the duration and character of the

questioning; (3) the officer’s tone of voice and general demeanor; (4) the suspect’s

method of transportation to the place of questioning; (5) the number of police officers

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present; (6) any limitation on movement or other form of restraint imposed on the

suspect during the interrogation; (7) any interactions between the officer and the

suspect, including the words spoken by the officer to the suspect, and the suspect’s

verbal or nonverbal responses; (8) the extent to which the suspect is confronted with

the law enforcement officer’s suspicions of guilt or evidence of guilt; and finally, (9)

the extent to which the suspect is made aware that he or she is free to refrain from

answering questions or to end the interview at will.

Id. The Anderson court further concluded that the above factors were “by no means exclusive.” Id.

Instead, “the totality of the circumstances surrounding each interrogation must be closely examined

when evaluating whether an individual is in custody for purposes of Miranda.” Id. The inquiry is

fact-specific, and “[a]pplication of the appropriate, relevant factors to the facts is a task for which

the trial court is especially suited.” Id.

With the above principles in mind, we turn to the facts of this case. Although 11:00 p.m. is

an arguably inconvenient time for an interview, which then occurred at the jail, the totality of the

circumstances regarding time and location do not support Defendant’s argument. Defendant was

interviewed in Officer Angel’s office, not an austere setting. The office had a large window and the

door was left open during the interrogation. While Defendant was not permitted to drink beer, he

was allowed to smoke cigarettes, and the officers brought him coffee. The duration and character

of the interview also appears generally non-custodial. The interview itself lasted barely an hour,

before which both Emiren and Angel informed Defendant that the primary purpose of the

conversation was to gather information. At least twice, Angel advised Defendant that he was not

under arrest and, before the men even reached the jail, Angel offered to drive him back home if he

desired. Defendant was driven to and from the interview in the rear of a patrol car, as it appears the

other witnesses were. Regarding the presence of other officers, we note that Emiren was the sole

officer present during the majority of the interrogation, and no limitation on Defendant’s movement

or other form of restraint was imposed at any time. Emiren further testified that although he and

Defendant experienced one adverse incident, it appears to have been resolved fairly rapidly. Finally,

we observe that Defendant was not confronted with suspicions or evidence of guilt during the

interview, because none existed at that time.

In sum, we find that, given the totality of the circumstances, a reasonable person in

Defendant’s position would not consider himself deprived of freedom of movement to a degree

associated with a formal arrest. Hence, he was not “in custody” as contemplated by Miranda v.

Arizona, 384 U.S. 436 (1966).

B. Voluntariness of Defendant’s Statement

Defendant further argues that, even if this Court determines that he was not “in custody” such

that Miranda warnings were required, his statement was nevertheless not “voluntary” as

contemplated by the federal and state constitutions. Defendant asserts that, at the time of his

statement, he was inebriated and an illiterate individual who, having been awake for twenty-four

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hours, was incapable of providing a “voluntary” statement. The State argues that Defendant’s level

of intoxication did not rise to a level which would cause his statements to be properly considered

“involuntary.” We agree with the State.

As a preliminary matter, we reject outright Defendant’s contentions that because he was

illiterate and/or weary during his conversation with Agent Emiren, he was rendered incapable of

making a voluntary statement. There is no proof in the record to support either contention. Thus,

the issue before this Court is whether the alleged level of alcohol intoxication in Defendant’s blood

caused the character of his statement to be involuntary. As previously concluded, Defendant was

not “in custody” at the time of his pretrial statement to law enforcement officials. However, to be

admissible in court, statements given in a non-custodial interrogation must still be voluntary. State

v. Phillips, 30 S.W.3d 372, 376 (Tenn. Crim. App. 2000).

The test of voluntariness under the Tennessee Constitution is broader and more protective

of individual rights than the test of voluntariness under the United States Constitution. State v.

Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994). For more than a century, courts have been

struggling to articulate a test of voluntariness capable of accommodating the diverse circumstances

under which accused individuals are questioned and, in many cases, ultimately confess. State v.

Smith, 933 S.W.2d 450, 455 (Tenn. 1996). United States Supreme Court Justice Stewart noted that

these efforts have yielded “no talismanic definition of ‘voluntariness’ . . . .” Schneckloth v.

Bustamonte, 412 U.S. 218, 224, 93 S. Ct. 2041, 2046, 36 L. Ed. 2d 854 (1973).

In Tennessee, a court determines voluntariness based on its examination of the particular

circumstances of each case as a whole. Smith, 933 S.W.2d at 455 (citing Monts v. State, 400 S.W.2d

722, 733 (1966)). In the context of confessions, “[t]he law in this state is well-established that ‘[t]he

ingestion of drugs and alcohol does not in and of itself render any subsequent confession

involuntary.’” State v. Morris, 24 S.W.3d 788, 805 (Tenn. 2000) (citations omitted). “It is only

when an accused’s faculties are so impaired that his or her confession cannot be considered the

product of a free mind and rational intellect, that it should be suppressed.” Id. (citations omitted).

This standard similarly applies to statements by the accused which fall short of an actual confession.

Regarding statements in general, if the accused is capable of giving a narrative of past events and

relating his role in the commission of the crime, the statement is admissible, even though the accused

was under the influence of alcohol when it was made. Id.; see State v. Bell, 690 S.W.2d 879, 882

(Tenn. Crim. App. 1985) (“intoxication or mental unsoundness is not alone sufficient to bar the

introduction of statements made by an accused if the evidence also shows the accused was capable

of understanding his rights” (citing State v. Green, 613 S.W.2d 229 (Tenn. Crim. App. 1980)); State

v. Lowe, 584 S.W.2d 239, 241 (Tenn. Crim. App. 1979) (the blood alcohol content of the accused

is merely a factor for the trial court to consider in determining whether a confession was the product

of a free mind and a rational intellect).

In this case, the evidence suggests that defendant’s confession was competently given.

Granted, the two officers detected an odor of beer on Defendant’s person prior to his giving the

statement in issue. However, Defendant was clearly capable of giving Emiren a narrative of the

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day’s events, which was notably specific as to times, persons encountered, and the activities he had

engaged in. Emiren testified that Defendant did not appear “fuzzy,” or demonstrate difficulty

recalling things, or appear unable to comprehend what was happening during their conversation.

In sum, we find that the evidence does not preponderate against the trial court’s findings on

this question, and its ruling will not be overturned by this Court. Defendant is not entitled to relief

on this issue.

III. Comments by the Trial Court

Defendant also contends that various comments made by the trial court during curative

instructions to the jury constituted impermissible expressions of bias toward Defendant, which

effectively deprived him of his right to a fair trial. We disagree.

Defendant’s argument stems from two separate incidents which occurred during the trial,

after which the trial judge gave the jury “curative” instructions. The first incident concerned defense

counsel’s attempts to impeach the witness, Mike Stafford, with questions about possible prior

convictions, i.e., jury tampering, drug sales, public intoxication, and passing bad checks. In

Tennessee, a witness’ credibility may be attacked by proof that the witness has been convicted of

a crime. See Tenn. R. Evid. 609. However, certain conditions must be satisfied before the evidence

is admissible, and special procedures are required before a criminal conviction may be used to

impeach a witness other than the accused. See Tenn. R. Evid. 609(a)-(d); Neil P. Cohen et al.,

Tennessee Law of Evidence § 6.09 (4th ed. 2000).

Here, the record reveals that Defendant’s counsel did not fully comply with the rules

governing this method of impeachment. Thus, the State objected, and the trial court sustained the

objection. Afterward, the court gave the following instructions as to how the jury should consider

what had occurred:

COURT: Ladies and gentlemen, the [State’s] objection is correct. The only thing

that concerns the jury on questions of that nature is whether or not it would

have any application, that is, a crime where there was a conviction would

have any application to credibility, so whether somebody’s charged with a

crime, but not convicted, it’s not proper for you to consider since there’s no

finding, and whether or not somebody might have been convicted of a DUI,

for instance, that doesn’t have anything to do with credibility unless the

person maybe was arguing whether the person was sober or not at the

particular time something happened.

The State is objecting, all this came in, so I’ve got to give you a full

explanation. The only thing that’s relevant about past acts, [are] past acts that

relate to honesty and so forth, so a conviction, so a conviction of a felony

offense is acceptable for the jury to know about. All other things that

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somebody’s accused of or that they might have done, that has nothing to do

with their credibility, is not proper and some of the questions that were

addressed by [Defendant’s counsel] would ask for responses that just tend to

make a witness look bad, but don’t really address the issue of credibility, and

for that reason I sustain the objection.

....

Ladies and gentlemen, if there was some, I don’t think I told you that

every question he asked was improper. The response to the jury tampering

is something you would consider. That is proper. And I believe he wants to

ask another question on another possible crime, and if there’s a conviction

and if it’s a matter involving honesty, or a felony conviction, that’s proper,

he’s going to ask that question, but those other matters that were raised,

issues of being charged or issues of driving under the influence are not

relevant and that’s what I was trying to express to you that you should not

consider about those kinds of things.

The second incident was similar in that it involved an attempt by Defendant’s counsel to

impeach another witness, Richard Wooden. In this instance, Defendant’s counsel asked Wooden,

“Are you a convicted felon?” Wooden answered affirmatively before the State could voice an

objection. A jury-out hearing ensued, during which the court discovered that Wooden’s felony

conviction occurred in 1969 and, as such, it was inadmissible for impeachment purposes. See Tenn.

R. Evid. 609(b) (generally prohibiting evidence of a conviction where more than ten years has

elapsed between the date of release and commencement of the court proceeding). When the jury

returned, the trial judge gave them the following instruction as to how it should consider Wooden’s

conviction:

COURT: All right, ladies and gentlemen, before we sent you back in there the

question was asked to the witness that was not properly phrased, and elicited

an answer that you heard, so the only thing I can do to correct what happened

is to try to tell you a little bit why you are not to consider on your judgment

of this witness the fact that he said that he was convicted of a felony. Our

rules of evidence say that all evidence that is used, even on issues of

credibility, has to be relevant to that issue. And one of the issues of relevance

is closeness in time to something that may have happened. Our . . . rules of

evidence specifically say that past convictions can be brought out when a

witness has testified, so a jury can judge their credibility, but they should not

be older than 10 years before the time of the issue that you’re being asked to

judge credibility on.

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Now, as it turns out, this man has been apparently convicted of a

felony back in 1969, so that’s many many years removed from this incident,

and it would be improper for you to consider the fact that he answered this

question, which was too broad, should not have been asked. It was

determined that counsel did not, in fact, know of this situation, or he would

be in real hot water as far as the Court is concerned, because no attorney can

intentionally bring forth evidence that clearly is improper for a jury to

consider, but [Defendant’s counsel] was not aware of this conviction. As an

officer of the court, I accept his statement on that issue. His question should

have been phrased differently. Unfortunately, before the objection could be

acted upon, the witness answered the question, so there you’ve got this

impression before the Court that this man was convicted of a felony. I’m

telling you that a felony that long past is not relevant information upon which

you should judge his credibility. It’s too long in the past. Our rules would

not have allowed that question to have been answered if we’d been able to

deal with it quickly enough, but sometimes we’re unable to do that, so you’re

instructed that you cannot use that answer that he gave to weigh his

credibility and I think that’s really about all I can say.

Defendant contends that the trial court also made comments and gave opinions during these

incidents which “directly commented on the credibility” of the two witnesses. Defendant argues that

this, in conjunction with the fact that the court’s instructions were “not accurate statements of the

law,” constitutes reversible error and justifies a new trial.

The briefs of both the State and Defendant cite our supreme court’s decisions in State v.

Cazes, 875 S.W.2d 253 (Tenn. 1994), and State v. Suttles, 767 S.W.2d 403 (Tenn. 1989), in their

arguments on this issue. In State v. Cazes, the court stated that “a trial judge has broad discretion

in controlling the course and conduct of the trial, and that in exercising that discretion, he or she

must be careful not to express any thought that might lead the jury to infer that the judge is in favor

of or against the defendant . . . .” Cazes, 875 S.W.2d at 260 (citing State v. Caughron, 855 S.W.2d

526, 536 (Tenn. 1993)). A similar caveat was expressed in State v. Suttles, when the court stated

that “[i]n all cases the trial judge must be very careful not to give the jury any impression as to his

feelings or to make any statement which might reflect upon the weight or credibility of evidence or

which might sway the jury.” Suttles, 767 S.W.2d 403, 406-407 (Tenn. 1989).

We agree that the comportment of a trial judge is unquestionably important in the conduct

of a fair trial and that his impartiality is a key component in the administration of justice. However,

Defendant’s brief on this issue fails to cite any specific comments by the trial court which it regarded

as improper, and, a thorough review of the record concerning the above incidents reveals nothing

that would indicate partiality or bias toward Defendant or any witness on the part of the trial judge.

Because we also find that the instruction given the jury was not an inaccurate statement of the law,

we conclude that the trial court did not err. Defendant is not entitled to relief on this issue.

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IV. Admissibility of Evidence

Defendant argues that the trial court erred (1) when it excluded evidence that a person other

than Defendant had assaulted the victim on the day of his death, and (2) when it allowed an expert

to testify concerning evidence which was not revealed to Defendant during regular discovery. These

two issues are predicated on alleged errors committed during Defendant’s trial and were not included

in his motion for a new trial. Thus, they may be treated as waived. Tenn. R. App. P. 3(e); see also

Tenn. R. App. P. 36(a).

Even if not waived, these issues would not entitle Defendant to relief. Defendant asserts that

he should have been permitted to “point the finger of guilt” at someone other than himself by

presenting evidence that a person other than Defendant had a motive to kill the victim. Specifically,

he wanted the trial court to allow the victim’s son, Dallas Wilkey, to testify that a man named

Charles Cole had attacked his father, the victim, in the hours preceding his death. Defendant had

been informed that Cole and Dallas Wilkey broke into a fight in the courthouse courtyard over this

fact. He was also told that a woman named Melissa Nipper witnessed the skirmish and heard Dallas

Wilkey exclaim that he struck Cole “for striking his daddy the day he died.” The problem with

allowing Dallas Wilkey’s testimony arose during Defendant’s offer of proof in a jury-out hearing.

At that time, Dallas Wilkey denied striking Cole for the reason suggested by Defendant. Instead,

he claimed that he struck Cole merely because he disliked him. Consequently, Defendant requested

permission to present testimony from Nipper reiterating what Dallas Wilkey had shouted in the

courtyard. The trial judge ultimately ruled that Dallas Wilkey’s testimony, as heard during

Defendant’s proffer of evidence, was not relevant and that Nipper’s testimony was inadmissible

hearsay. Based on the record before us, we concur with the trial court’s ruling. See Tenn. R. Evid.

802. Defendant is not entitled to relief on this issue.

Defendant’s second argument contends that the trial court erred by allowing the State’s

expert to testify concerning test results relating to the bullet discovered in the victim’s left buttock.

Apparently, the State had neglected to include this bullet when it submitted the three bullets

recovered from the wall of the victim’s bedroom for analysis by the TBI Crime Lab. The oversight

was discovered on the day prior to trial. When Defendant learned that the State’s expert witness

would testify that the bullet recovered from the victim’s body was consistent with the three bullets

found lodged in the wall, he objected. Defendant argued that the evidence should be excluded

because of untimely discovery or, in the alternative, the court should grant Defendant a continuance

to conduct an independent analysis to confirm that the bullets were “consistent,” as claimed by the

State. The trial court denied Defendant’s motion, based on the fact that Defendant was previously

aware that (1) a total of four bullets had been recovered and (2) the possibility existed that the fourth

may be found “consistent” with the other three. The trial court also observed that Defendant had

chosen not to seek independent testing of the other three bullets.

Discovery and inspection of the evidence by both the State and the accused in a criminal case

is generally governed by Rule 16 of Tennessee’s Rules of Criminal Procedure. Upon his or her

request, a defendant is entitled to inspect or copy or photograph the results and/or reports of

-18-

scientific tests or experiments within the possession, custody, or control of the state, the existence

of which is known or may become known by the exercise of due diligence. See Tenn. R. Crim. P.

16(a)(1)(D). The duty to disclose is a continuing obligation, which includes additional evidence

discovered up to and during the trial. See Tenn. R. Crim. P. 16(c). Failure to comply with the rule

may result in the court ordering an exclusion of the offending party’s evidence. In lieu of exclusion,

the court may grant a continuance or “enter such other order as it deems just under the

circumstances.” Tenn. R. Crim. P. 16(d)(2). Whether a defendant has been prejudiced by a failure

to disclose information is a significant factor in fashioning an appropriate remedy. State v. Smith,

926 S.W.2d 267, 270 (Tenn. Crim. App. 1995). Exclusion of the evidence is considered a “drastic”

measure, not recommended unless no reasonable alternative exists. Id.

In the case sub judice, Defendant has failed to show that he was prejudiced by either the

expert’s testimony or the lack of independent testing. We find it significant that Defendant chose

not to have the other three bullets evaluated, for we fail to decipher a significant distinction between

these three bullets and the one in issue, with one exception: according to the medical examiner, the

fourth bullet caused the only wound determined not to be lethal, i.e., capable of causing death within

five minutes. The admissibility of evidence is a matter within the sound discretion of the trial court,

and this Court will not disturb the trial court’s ruling absent a clear showing of an abuse of that

discretion. See State v. Cauthern, 967 S.W.2d 726, 743 (Tenn. 1998); State v. Banks, 564 S.W.2d

947, 949 (Tenn. 1978). Because we find no abuse of discretion, Defendant is not entitled to relief

on this issue.

V. Lesser-Included Offenses

Defendant was charged with first degree murder. The trial court instructed the jury on first

degree murder, second degree murder, and voluntary manslaughter. The jury convicted Defendant

of second degree murder. Defendant contends that the trial court erred by refusing his request to also

charge the jury on the lesser-included offenses of reckless homicide and criminally negligent

homicide. We disagree.

The State concedes that reckless homicide and criminally negligent homicide are lesser-

included offenses of first degree murder. See State v. Sims, 45 S.W.3d 1, 21 (Tenn. 2001).

However, the State argues that under State v. Burns, 6 S.W.3d 453 (Tenn. 1999), the trial court is

under a mandatory duty to only instruct the jury on lesser-included offenses where evidence exists

that reasonable minds could accept as to the lesser-included offense, and the evidence is legally

sufficient to support such a conviction. Id. at 469. The State submits that since there was no

evidence which reasonable minds could accept as to reckless homicide or criminally negligent

homicide, it was not error to refuse to charge the jury on these offenses.

Under the circumstances presented here, the evidence was sufficient to prove beyond a

reasonable doubt that Defendant committed second degree murder, a knowing killing. See Tenn.

Code Ann. § 39-13-210(a)(1). The record reflects that the trial court instructed the jury on the lesser-

included offense of voluntary manslaughter. If it was error to refuse to instruct the jury on additional

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lesser-included offenses as requested by Defendant, the proper inquiry for this Court would be

whether that error would be harmless beyond a reasonable doubt. See State v. Ely, 48 S.W.3d 710,

727-28 (Tenn. 2001) (a defendant’s right to instruction on all offenses embraced by the indictment

is not derived only from statute, but from the Tennessee Constitution as well). Our review reveals

that, under State v. Williams, 977 S.W.2d 101 (Tenn. 1998), the trial court’s failure to instruct on

reckless homicide or criminally negligent homicide, if error, would be harmless beyond a reasonable

doubt.

In Williams, the defendant was on trial for first degree murder. The trial judge instructed the

jury on the elements necessary to prove first degree premeditated murder, and the lesser-included

offenses of second degree murder and reckless homicide. The jury ultimately convicted the

defendant of first degree murder. The defendant argued that because the proof introduced at trial was

legally sufficient to warrant an instruction upon voluntary manslaughter, the trial court erred in

refusing to charge that offense to the jury. The supreme court agreed that the jury should have been

instructed on voluntary manslaughter, but further concluded that the trial court’s failure to instruct

was harmless error. See id. at 106. Specifically, the court in Williams determined that

[B]y finding the defendant guilty of the highest offense to the exclusion of the

immediately lesser offense . . . the jury necessarily rejected all other lesser offenses

. . . . Accordingly, the trial court’s erroneous failure to charge voluntary manslaughter

is harmless beyond a reasonable doubt because the jury’s verdict of guilt on the

greater offense of first degree murder and its disinclination to consider the lesser

included offense of second degree murder clearly demonstrates that it certainly would

not have returned a verdict on voluntary manslaughter.

Id. at 107 (citations omitted).

In a similar vein, by finding Defendant guilty of second degree murder, we may conclude

that the jury necessarily rejected the other charged lesser offense, and, further, that its disinclination

to consider the lesser-included offense of voluntary manslaughter clearly demonstrates that it

certainly would not have returned a verdict of guilt for reckless homicide or criminally negligent

homicide. Defendant is not entitled to relief on this issue.

VI. Sentencing

Finally, Defendant contends that the twenty-three year sentence imposed by the trial court

was improperly enhanced based on criminal behavior exhibited by Defendant after the indictment.

We disagree.

Appellate review of sentencing is de novo on the record with a presumption that the trial

court's determinations are correct. Tenn. Code Ann. §§ 40-35-401(d), 402(d) (1997). If the trial

court followed the statutory sentencing procedure, made findings of fact that are adequately

supported in the record, and gave due consideration and proper weight to the factors and principles

-20-

relevant to sentencing under the 1989 Sentencing Act, we may not disturb the sentence even if a

different result were preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

However, “the presumption of correctness which accompanies the trial court’s action is

conditioned upon the affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991). Therefore, meaningful appellate review requires that the trial court place on the record its

reasons for arriving at the final sentencing decision, identify the mitigating and enhancement factors

found, state the specific facts supporting each enhancement factor applied, and articulate how the

mitigating and enhancement factors were evaluated and balanced in determining the sentence. State

v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997); see Tenn. Code Ann. § 40-35-210(f) (1997). The burden

is on the appealing party to show that the sentencing is improper. Tenn. Code Ann. § 40-35-401

(1997), Sentencing Commission Comments.

In conducting a de novo review, we must consider (1) the evidence, if any, received at the

trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing and

arguments as to sentencing alternatives, (4) the nature and characteristics of the criminal conduct,

(5) any mitigating or statutory enhancement factors, (6) any statement that the defendant made on

his own behalf, and (7) the potential for rehabilitation or treatment. Id. §§ 40-35-102, 103, 210; see

Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229 (Tenn. 1986).

Defendant was convicted of a Class A felony. The presumptive sentence for a Class A felony

is the midpoint in the range when no enhancement or mitigating factors are present. See Tenn. Code

Ann. § 40-35-210(c) (1997). Procedurally, the trial court is to increase the sentence within the range

based upon the existence of enhancement factors and then reduce the sentence as appropriate for any

mitigating factors. Id. § 40-35-210(d), (e). The weight to be afforded an existing factor is left to the

trial court’s discretion so long as it complies with the purposes and principles of the Sentencing Act,

and its findings are adequately supported by the record. Id. § 40-35-210, Sentencing Commission

Comments; Moss, 727 S.W.2d at 237; see Ashby, 823 S.W.2d at 169.

Defendant was sentenced as a standard Range I offender. See Tenn. Code Ann. § 40-35-105

(1997). According to the record, the trial court found that two enhancement factors applied in

Defendant’s case: (1) “[t]he defendant has a previous history of criminal convictions or criminal

behavior in addition to those necessary to establish the appropriate range,” and (9) “[t]he defendant

possessed or employed a firearm, explosive device or other deadly weapon during the commission

of the offense.” Id. § 40-35-114(1), (9) (emphasis added). The trial court also applied mitigating

factor (8), “[t]he defendant was suffering from a mental or physical condition that significantly

reduced the defendant’s culpability for the offense; and factor (13), “[a]ny other factor consistent

with the purposes of this chapter,” based on a finding that Defendant had lived a responsible life as

a citizen “for the first 50 or so years of his life.” Id. § 40-35-113(8), (13).

The trial court assigned significant weight to both mitigating factor (13) and enhancement

factor (9), which it concluded effectively “offset” each other. The trial court assigned “some” weight

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to mitigating factor (8), and then enhanced Defendant’s sentence three years based on the great

significance it gave Defendant’s previous history of criminal behavior, under enhancement factor

(1). Although Defendant’s prior criminal record reveals only two misdemeanor convictions for

driving without a license, the trial court gave this factor considerable weight based on proof of

additional criminal behavior, to wit: Defendant’s attempt to shoot a witness in his case. The

presentence report shows that in May 1999, Defendant was arrested for attempting to kill Mike

Stafford with a handgun. Defendant was on bond for the instant offense at the time he allegedly shot

Stafford, a State witness in his upcoming trial. Bond was revoked on June 16, 1999, and in July

1999, Defendant was indicted for attempt to commit first degree murder. At the conclusion of the

hearing, the trial court announced that, if enhancement factor (1) should subsequently be determined

inapplicable, the length of Defendant’s sentence should be reduced to twenty years, the presumptive

sentence in the range.

Defendant does not dispute the trial court’s use of enhancement factor (9), and we find this

factor was properly applied. We also find no error in the trial court’s use of mitigating factors in this

case. Thus, the sole sentencing issue before this Court is whether enhancement factor (1) was

applicable, based on proof of criminal behavior which occurred subsequent to the offense for which

Defendant was convicted and sentenced. Defendant asserts that pending charges may not be used

as “criminal behavior” for purposes of enhancing punishment under Tennessee Code Annotated

section 40-35-114(1). The State responds that a panel of this Court has previously decided that a

sentencing court may consider proof of criminal behavior occurring prior to the sentencing hearing

when determining whether to apply factor (1), regardless of whether the criminal behavior occurred

before or after the commission of the instant offense. See State v. Chris Smith, No. 03C01-9807-

CR-00259, 1999 Tenn. Crim. App. Lexis 838, McMinn County (Tenn. Crim. App., Knoxville, Aug.

17, 1999), perm. to app. denied (Tenn. 2000). The State concedes that a trial court is precluded from

considering merely a defendant’s prior arrests or pending charges, but argues that no per se rule in

Tennessee prohibits a court from considering unadjudicated conduct. Rather, “the trial court is

merely prohibited from relying upon a mere arrest record to enhance a defendant’s sentence.” State

v. Robinson, 971 S.W.2d 30, 46 (Tenn. Crim. App. 1997).

Defendant cites State v. Buckmeir, 902 S.W.2d 418 (Tenn. Crim. App. 1995), to support his

argument that the trial court is precluded from considering pending criminal charges to enhance his

sentence. In Buckmeir, a panel of this Court determined that the trial judge improperly considered

pending charges in sentencing the defendant. See id. at 424. Specifically, this Court noted that the

record contained “no evidence” that the charges against the defendant “were anything more than

charges.” Because the defendant should be presumed innocent until convicted of those charges, our

Court concluded that the trial judge should not have considered them. Id. The Buckmier opinion

revealed no further details on the charges pending in that case. However, this Court cited State v.

Miller, 674 S.W.2d 279, 284 (Tenn. 1984), wherein the supreme court stated: “Ordinarily mere

arrests or indictments are not evidence of the commission of a prior crime. They are nothing more

than charges or accusations made by the arresting or indicting authority upon such information as

that authority had at the time.” Id. In the case sub judice, the evidence that Defendant attempted to

kill Stafford amounts to much more than “mere charges.” The trial court stated that it “heard the

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victim in that case testify under oath, subject to cross-examination, that, in fact, [Defendant] did

shoot him.” (The trial judge apparently heard this testimony from the victim, Mike Stafford, during

the hearing on the State’s motion to revoke Defendant’s bond, which was granted on June 16, 1999.)

In State v. Carico, 968 S.W.2d 280 (Tenn. 1998), our supreme court considered the issue

whether evidence of prior criminal acts committed by the appellant for which there had been no

criminal conviction, constituted “criminal behavior” for purposes of enhancing the appellant’s

sentence. See id. at 287-88. The supreme court began by noting that “the United States Supreme

Court has held that the Sixth and Fourteenth Amendments to the United States Constitution do not

prohibit a sentencing court from considering a defendant’s previous criminal behavior which does

not result in conviction.” Id. at 287. It cited Williams v. New York, 337 U.S. 241, 69 S. Ct. 1079,

93 L. Ed. 1337 (1949), as the origin of the holding, and quoted Justice Black, who delivered the

opinion of the Court:

A sentencing judge . . . is not confined to the narrow issue of guilt. His task within

fixed statutory or constitutional limits is to determine the type and extent of

punishment after the issue of guilt has been determined. Highly relevant--if not

essential--to his selection of an appropriate sentence is the possession of the fullest

information possible concerning the defendant’s life and characteristics.

Id. at 247, 69 S. Ct. at 1083. Our supreme court also recognized, along with prior federal and state

decisions, that the trial court may utilize criminal behavior shown by a preponderance of the

evidence to enhance a sentence without violating federal or state due process. Carico, 968 S.W.2d

at 287; see also State v. Winfield, 23 S.W.3d 279, 282-83 (Tenn. 2000). The court ultimately

concluded that, although the phrase “criminal behavior” had not been previously defined for

purposes of applying enhancement factor (1), the appellant’s prior sexual acts with a ten-year-old

child clearly and firmly established “criminal behavior” for purposes of applying enhancement factor

(1). Carico, 968 S.W.2d at 288.

Relying on the various court decisions discussed above, we find Defendant’s attempt to shoot

the witness, Mike Stafford, constitutes “criminal behavior” for purposes of applying enhancement

factor (1). Further, we concur with those cases which have concluded that a sentencing court is not

per se prohibited from considering unadjudicated criminal conduct where such conduct is established

by a preponderance of the evidence, as it was here. See State v. Robinson, 971 S.W.2d 30, 46 (Tenn.

Crim. App. 1997) (a sentencing court is “merely prohibited from relying upon a mere arrest record

to enhance a defendant’s sentence”); State v. Hunter, 926 S.W.2d 744, 748-49 (Tenn. Crim. App.

1995) (victim’s testimony concerning acts of sexual abuse not included in defendant’s indictment

were not improper to consider in enhancing sentence); State v. Chris Smith, No. 03C01-9807-CR-

00259, 1999 Tenn. Crim. App. Lexis 838 at *8, McMinn County (Tenn. Crim. App., Knoxville,

Aug. 17, 1999), perm to app. denied (Tenn. 2000) (criminal behavior occurring prior to the

sentencing hearing may be considered as evidence of prior criminal behavior for purposes of

enhancement under factor (1), regardless of whether the offending conduct occurred before or after

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commission of the offense under consideration). Accordingly, Defendant is not entitled to relief on

this issue.

CONCLUSION

For the above reasons, the judgment of the trial court is AFFIRMED.

____________________________________

THOMAS T. WOODALL, JUDGE

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