State of Tennessee v. Kenneth Paul Dykas

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs August 15, 2001

STATE OF TENNESSEE v. KENNETH PAUL DYKAS

Appeal from the Circuit Court for Rutherford County

No. F-44931A J. Steve Daniel, Judge

No. M2000-01665-CCA-R3-CD - Filed March 5, 2002

After a lengthy trial, a Rutherford County jury found the defendant, Kenneth Paul Dykas, guilty of

first-degree murder, especially aggravated robbery, and conspiracy to commit especially aggravated

robbery. Following a separate penalty trial on the first-degree murder conviction, the same jury

sentenced the defendant to life without the possibility of parole, and the trial court subsequently

sentenced the defendant as a Range I offender to eleven years on the conspiracy conviction and as

a violent offender to 24 years on the especially aggravated robbery conviction. The trial-court-

imposed sentences were ordered to run concurrently with one another but consecutively to the first-

degree murder sentence. In this appeal, the defendant complains that the evidence is insufficient,

that numerous errors in the jury selection process taint his convictions, that DNA test results were

improperly admitted, that the state suppressed exculpatory evidence about its jailhouse informant

who testified at trial, and that consecutive sentencing was not justified. After a comprehensive

review of the record, the briefs of the parties, and the applicable law, we affirm the judgment of the

trial court.

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

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

JOE G. RILEY, JJ., joined.

L. Gilbert Anglin and David Bragg, Murfreesboro, Tennessee, for the appellant, Kenneth Paul

Dykas.

Paul G. Summers, Attorney General and Reporter; Jennifer Smith, Assistant Attorney General;

William C. Whitesell, Jr., District Attorney General; Thomas F. Jackson, Jr., Assistant District

Attorney General; and J. Paul Newman, Assistant District Attorney General, for the appellee, State

of Tennessee.

OPINION

Between 5:00 p.m. and 5:30 p.m. on February 20, 1998, Donald Roscoe Greenwood

was bludgeoned to death with a claw hammer in Room 178 at the Jackson Motel in Murfreesboro,

Tennessee. Mr. Greenwood, who was 69 years old and suffered from Parkinson’s Disease, had

moved a short time before to Murfreesboro and rented a room at the motel to be closer to the

Veterans’ hospital where he was being treated.

From the vantage point most favorable to the state, the evidence at trial demonstrated

that the defendant and his girlfriend, Deborah Reese, had taken up residence in Room 184 at the

same motel a month earlier. Their financial situation was bleak. She was working at a Hardee’s

restaurant across the street from the motel, and for about a year, the defendant had not held a steady

job. The Jackson Motel manager testified at trial that the couple was behind in their rent payments

at the time of the victim’s death.

The defendant and Reese befriended the victim the same day that the victim settled

into the motel room. On February 19, the following day, the victim went to the motel office to

submit a list of things that needed to be fixed or cleaned in his room. The defendant offered to the

motel manager to help clean Mr. Greenwood’s room. The motel manager, Nancy Robinson, testified

at trial that she also recalled the defendant telling her that he and Reese would “look after the old

man” and take some of the burden off of her. Ms. Robinson became suspicious of the couple as soon

as they made friends with the victim.

As the day progressed, the defendant ingratiated himself further with the victim by

volunteering to drive him to Wal-Mart the next day. The victim accepted the offer. As part of their

investigation, Murfreesboro Police Department officers were able to construct a time line tracking

the activities of the defendant, Reese, and the victim on February 20, the day of the murder. Based

on receipts and numerous interviews with local merchants, the officers determined that the victim

purchased household-type items totaling $161.47 at Wal-Mart at approximately 12:30 p.m. At 1:50

p.m. the victim and a woman, who was later identified as Reese from a photo spread, purchased beer,

liquor, cigarettes, and deli food at a local market/package store. The victim paid for the items in

cash.

The next time that the couple and the victim were spotted together was after 2:00 p.m.

when Eddie Tennyson, the motel maintenance supervisor, went to the victim’s apartment to retrieve

a cordless drill that had been borrowed earlier that day. Tennyson testified that the defendant was

putting up a cabinet for the victim and that Reese and the victim also were present. Around 4:00

p.m., Valerie Moore placed a call to the victim’s apartment. Ms. Moore, who was a friend of the

victim, testified that a man answered and handed the telephone to the victim. The victim explained

to her that the person who answered the phone was helping him with things in the apartment that

needed to be done.

-2-

The last outside contact with the victim was at approximately 5:00 p.m. when his

former wife, Shirley Barrett, called. Ms. Barrett testified that she and the victim talked for roughly

ten minutes, and during the conversation Ms. Barrett heard male and female voices in the

background. Ms. Barrett stated that the victim told her that “Debbie and Ken,” who lived in

apartment 184, were hanging up shelves for him that he had purchased at Wal-Mart.

Alice Lovvorn was working the 3:00 p.m. to 11 p.m. shift at the Jackson Motel on

February 20. At approximately 9:00 p.m. she saw Reese peeping through the venetian blinds into

the victim’s room. According to Lovvorn, the defendant then walked up, banged on the victim’s

door, and tried to open it. When he was unsuccessful, the defendant walked to the office, and

Lovvorn handed him the keys to the victim’s apartment. Lovvorn testified that she saw Reese and

the defendant go inside the apartment, after which Lovvorn heard a scream. Lovvorn called the

police, and she told the couple to come out of the room and not to touch anything.

Officers with the Murfreesboro Police Department responded to the call, and agents

with the Tennessee Bureau of Investigation were summoned to process the crime scene. Crime

scene photographs and a videotape were introduced at trial. Significant amounts of blood and blood

spatter were discovered throughout the room, including on the bathroom sink, the top of the

microwave, the front of the refrigerator, and on the ceiling directly above the victim’s body. A claw

hammer with a large amount of blood staining was found underneath a table in the room. The

victim’s body was on the floor next to the bed.

Detective Joel Davis was one of the Murfreesboro police officers who responded to

the homicide call. He was directed to interview the defendant and Reese because evidently they

were the last people who had been with the victim. Detective Davis conducted the interview in the

couple’s room. Detective Davis testified that he became concerned by their “lackadaisical” attitude.

The couple was unable to provide general information about when and where they had been that day.

The defendant inquired at one point whether he was going to jail; similarly, Reese also wanted to

know if she was going to be arrested.

The police sought and obtained consent from the couple to search their room and

vehicle. The police also decided that the defendant and Reese should be questioned at the police

station. At the police station, the couple answered questions, gave permission to have their blood

drawn, and allowed their clothing to be examined for the presence of blood by black light and

luminol testing. No blood was detected on the clothing.

TBI Agents Steve Scott, Oakley McKinney, and Joe Minor testified at trial about the

crime scene investigation. After the victim’s apartment was processed for evidence, the agents

searched and examined the defendant’s apartment. They were particularly interested in looking for

items that might be bloodstained. The agents found and collected bloodstains on the doorjamb of

the defendant’s apartment, on the concrete ground directly outside his apartment, and on a pair of

boots underneath the bed.

-3-

Agent McKinney subsequently examined various items of evidence for the presence

of latent fingerprints. He testified that he was unsuccessful in getting prints from the suspected

murder weapon, the hammer. Likewise, Agent McKinney tried but was unable to lift any prints from

the victim’s wallet, its contents, or his briefcase. Latent prints, however, were developed from a

Kessler liquor bottle, a coffee can, and a magazine found in the victim’s apartment. The defendant’s

prints were on the bottle and magazine, and Reese’s prints appeared on the coffee can.

TBI Agent Connie Howard, a forensic scientist specializing in DNA analysis, testified

about the bloodstains that she tested. The bloodstain sample collected from the door frame of the

defendant’s apartment matched that of the victim. The bloodstain on the concrete in front of the

defendant’s apartment matched the defendant’s blood. One bloodstain sample taken from the

defendant’s work boots was tested and found to match that of the victim.

The most detailed testimony at trial was provided by Reese. On February 23, 1999,

Reese pleaded guilty to first-degree murder, especially aggravated robbery, and conspiracy. For the

murder, she received a life sentence; for the especially aggravated robbery, fifteen years; for the

conspiracy, eight years. All sentences were ordered to run concurrently.

Reese corroborated the earlier proof of the places and times that she, the defendant,

and the victim were together on the day of the murder. Reese testified that throughout the afternoon,

the three of them were drinking. She and the defendant went back and forth several times between

their apartment and the victim’s apartment. Reese remembered being in the victim’s room when

Moore called about 4:00 p.m. and when Barrett later called about 5:00 p.m.

Reese recounted for the jury the events leading up to the murder. She testified, “We

were sitting around the table. It was a round table. And I figured, you know, we’d just get him

drunk and maybe take his money. But that didn’t happen that way. It just went bad.” According

to Reese, the defendant suddenly struck the victim in the head with the hammer that had been used

to hang up the cabinet. The victim fell off his chair and landed partially on the bed. The victim

implored them, “[Y]’all don’t have to do this.” The defendant wanted to know if the victim had a

pulse to determine if he was alive. Reese checked and told the defendant that she detected a pulse,

whereupon the defendant proceeded to strike the victim repeatedly until he had no pulse. Reese

testified that the defendant then told her to get the victim’s wallet, which she did, and she removed

$370.

Reese testified that she and the defendant returned to their apartment, cleaned up,

changed clothes, and again started drinking. About 7:45 p.m. they took $70 of the victim’s money,

drove to Food Max, and made additional purchases. Along the way, they threw the soiled clothing

in a dumpster. When they returned to their apartment, Reese began cooking, and she made up a plate

of food to take to the victim so that they would have an excuse to find the victim’s body. Reese

testified about finding the door to the victim’s apartment locked and summoning help.

-4-

Dr. Charles Harlan performed the autopsy on the victim’s body. He testified that the

cause of death was blunt trauma to the head. The victim had sustained multiple fractures to his skull.

The victim’s left ear was injured, and his right eye was basically destroyed. There were numerous

other injuries to the victim’s chest and neck that were consistent with a claw hammer. Dr. Harlan

testified that he also found numerous broken ribs on the anterior and posterior portion of the victim’s

body.

The final key pieces of evidence that the state introduced were letters that the

defendant had written to Reese while he was incarcerated and awaiting trial and inculpatory

confidences that the defendant had shared with cellmate, Steve Riggan. While the defendant’s letters

did not contain express admissions of guilt, in the light most favorable to the state, they reflected

appeals by the defendant for Reese to “hang tough,” to remember “no deals,” and not to hurt him or

let him down. In the letters, the defendant also repeatedly professed his love and devotion and his

intention that he and Reese be married.

Steve Riggan testified that for approximately three weeks in May and June of 1998,

he shared a cell with the defendant, who was awaiting trial. Riggan was being held for a probation

violation. At first, the defendant talked with Riggan about how the defendant came to be arrested.

Riggan testified that initially the defendant denied knowing what happened, but then the defendant

would talk about how Reese actually murdered the victim. Riggan testified that finally the defendant

admitted that he “in fact had killed the man and that he was the one that put the hammer on Mr.

Greenwood.” The state elicited from Riggan the detailed account of the murder provided by the

defendant to Riggan. After Riggan was released in June, he decided that the “right thing to do” was

tell the police. Riggan wrote a letter to the police and subsequently provided a videotaped statement

to Detective Guthrie.

At the conclusion of the state’s case-in-chief, the defense rested without presenting

proof.

The jury found the defendant guilty of premeditated first-degree murder, felony

murder, especially aggravated robbery, and conspiracy to commit especially aggravated robbery.

The convicting jury also heard evidence and deliberated on the defendant’s punishment for

committing first-degree murder. The jury sentenced the defendant to life without the possibility of

parole based on the aggravating factors (a) that the murder was especially heinous, atrocious, and

cruel, (b) that the murder was committed to avoid or prevent the arrest or prosecution of the

defendant, and (c) that the victim was killed in the commission of a robbery in which the defendant

played a substantial role. See Tenn. Code Ann. § 39-13-204(i)(5), (6), (7) (Supp. 2001). At a

separate sentencing hearing, the trial court then sentenced the defendant as a Range I offender to

eleven years on the conspiracy conviction and as a violent offender to 24 years on the especially

aggravated robbery conviction; those two sentences were ordered to be served concurrently to each

other but consecutively to the life without parole sentence.

This appeal ensued.

-5-

I. Sufficiency of the Evidence1 2

The defendant complains that the evidence is insufficient to support the jury’s verdict

that he engaged in a “conspiracy” to commit especially aggravated robbery. He also maintains that

his conviction for premeditated, first-degree murder is based on legally insufficient evidence and,

therefore, must be reversed. We are unpersuaded that the evidence supporting these convictions is

legally infirm.

When an accused challenges the sufficiency of the evidence, an appellate court

inspects the evidentiary landscape, including the direct and circumstantial contours, from the vantage

point most agreeable to the prosecution. The reviewing court then decides whether the evidence and

the inferences that flow therefrom permit any rational factfinder to conclude beyond a reasonable

doubt that the defendant is guilty of the charged crime. See Tenn. R. App. P. 13(e); Jackson v.

Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 (1979); State v. Duncan, 698 S.W.2d 63, 67

(Tenn. 1985); State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990), overruled on other

grounds by State v. Hooper, 29 S.W.3d 1 (Tenn. 2000).

In determining sufficiency of the proof, the appellate court does not replay and

reweigh the evidence. See State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).

Witness credibility, the weight and value of the evidence, and factual disputes are entrusted to the

finder of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); Liakas v. State, 199 Tenn. 298,

305, 286 S.W.2d 856, 859 (1956); Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978).

Simply stated, the court will not substitute its judgment for that of the trier of fact. Instead, the court

extends to the State of Tennessee the strongest legitimate view of the evidence contained in the

record as well as all reasonable and legitimate inferences that may be drawn from the evidence. See

Cabbage, 571 S.W.2d at 835.

The defendant in this case was charged in separate counts with premeditated, first-

degree murder and felony murder. The jury found the defendant guilty on both counts, and the trial

court correctly accepted both verdicts but then merged them into a single conviction for first-degree

murder. See Carter v. State, 958 S.W.2d 620, 624-25 (Tenn. 1997); State v. Addison, 973 S.W.2d

260, 267 (Tenn. Crim. App. 1997). When the merger occurs, proof of either felony murder or

premeditated murder is sufficient to sustain the conviction. See State v. Patrick Wingate, No.

1

Our discu ssion of the issues in this opinion is in a different order tha n their presentation in the p arties’ briefs.

2

Citations and page references to the record are conspicuously absent from the argument section of the

defendant’s brief. The rules of this court warn counsel that “[i]ssues which are not supported by argume nt, citation to

authorities, or appropriate references to the record will be treated as waived in this court.” Tenn. Ct. Crim. App. R.

10(b). Despite the defendant’s waiver, we have decided to address the issues raised on appeal so that this appeal might

be disposed of in an expeditious manner and brought to a proper conclusion. Tenn. R. App. P. 2. Counsel should be

mindful that dwindling judicial resources increasingly curb the court’s ability to relieve litigants of the consequences

of noncom pliance w ith the rules.

-6-

M1999-00624-CCA-R3-CD, slip op. at 7 (Tenn. Crim. App., Nashville, May 25, 2000), perm. app.

denied (Tenn. 2000). The defendant in this case, consequently, cannot profit on his evidence

insufficiency claim unless the proof of both felony murder and premeditated murder is lacking. Such

is not the case.

The elements of premeditated, first-degree murder are a “premeditated and intentional

killing of another.” Tenn. Code Ann. § 39-13-202 (Supp. 2001). The defendant isolates portions

of the testimony of Reese and Riggan, which the defendant claims proves that the killing was a

spontaneous reaction. The evidence in this case, however, viewed most favorably to the state clearly

supports the jury’s conclusion that the killing was premeditated.

The element of premeditation is a jury question and may be established by proof of

the circumstances surrounding the killing. State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997); State

v. Brown, 836 S.W.2d 530, 539 (Tenn. 1992). Several factors are regarded as relevant to the

existence of premeditation, including “the use of a deadly weapon upon an unarmed victim; the

particular cruelty of the killing; declarations by the defendant of an intent to kill; evidence of

procurement of a weapon; preparations before the killing for concealment of the crime, and calmness

immediately after the killing.” Bland, 958 S.W.2d at 660. Most of these factors appear in this case.

The defendant wielded a claw hammer, a deadly weapon, upon an elderly, infirm, and unarmed

victim. The killing was particularly cruel with the victim begging that “y’all don’t have to do this.”

Then after the murder, the defendant calmly washed his hands and the hammer in the victim’s

bathroom, and he and Reese carefully orchestrated a coverup so they could pretend to discover the

body. Perhaps most telling was the defendant’s instruction to Reese to check the victim’s pulse to

see if he was still alive; when she reported that the victim had a pulse, the defendant resumed striking

the victim until he was dead. From these circumstances, the jury reasonably could conclude beyond

a reasonable doubt that the defendant premeditated the murder.

The defendant has not assailed the sufficiency of the evidence as it relates to the

felony murder guilty verdict, and we detect no basis to do so. The jury was entitled to credit Reese’s

testimony that after the vicious and lethal assault, they stole $370 in cash from the victim’s wallet.

Also, Steven Riggan testified that the defendant had confided stealing money from the victim’s

wallet in connection with the murder.

Finding no insufficiency with the evidence presented at trial, we affirm the

defendant’s conviction for first-degree murder.

The defendant’s argument that the record is barren of evidence that he conspired with

Reese is, likewise, unavailing. A conviction for conspiracy to commit especially aggravated robbery

requires evidence that

two (2) or more people, each having the culpable mental state

required for the offense which is the object of the conspiracy and each

acting for the purpose of promoting or facilitating commission of an

-7-

offense, agree that one (1) or more of them will engage in conduct

which constitutes such offense.

Tenn. Code Ann. § 39-12-103(a) (1997). An additional element for the offense of conspiracy is that

“an overt act in pursuance of such conspiracy [must be] alleged and proved to have been done by the

person or by another with whom the person conspired.” Id. § 39-12-103(d).

The primordial feature of the crime of conspiracy is the accord – the agreement to

accomplish a criminal or unlawful act. See State v. Pike, 978 S.W.2d 904, 915 (Tenn. 1998); State

v. Hodgkinson, 778 S.W.2d 54, 58 (Tenn. Crim. App. 1989). A formal agreement is not required,

nor must it be expressed; it may, and often will be, proven by circumstantial evidence. See Pike,

978 S.W.2d at 915; State v. Shropshire, 874 S.W.2d 634, 641 (Tenn. Crim. App. 1993); State v.

Gaylor, 862 S.W.2d 546, 553 (Tenn. Crim. App. 1992) (“a mutual[ly] implied understanding is

sufficient, although not manifested by any formal words, or a written agreement”). “The unlawful

confederation may be established by circumstantial evidence and the conduct of the parties in the

execution of the criminal enterprise. Conspiracy implies concert of design and not participation in

every detail of execution.” Randolph v. State, 570 S.W.2d 869, 871 (Tenn. Crim. App. 1978).

We think that a rational jury could easily reach the conclusion, as it did in this case,

that the defendant was acting pursuant to a tacit agreement between himself and Reese. The proof,

for instance, showed that Reese and the defendant had lived together for approximately a year.

Reese and the defendant were financially insecure; stated otherwise, they “didn’t have two pennies

to rub together.” Both of them drove and escorted the victim on the shopping expedition. Reese

testified at trial that she and the defendant “acted as a team” and that she and the defendant had

discussed beforehand taking the victim’s money. While Reese maintained that she “really didn’t

know” that the defendant was going to kill the victim, she did believe that the defendant “might just

knock him out or something.” Reese then later assisted the defendant in staging their discovery of

the victim’s body. Finally, in the letters sent by the defendant to Reese, he spoke repeatedly of

“sticking” together and of the police trying to “set” them up; he also implored Reese to marry him

as soon as feasible.

The jury’s conclusion that the defendant and Reese were co-conspirators is eminently

reasonable and amply supported by the evidence.

II. Jury Selection

By far, the largest flock of issues that the defendant presents for review relates to

claimed irregularities in the jury selection process. His complaints relate to juror bias, lack of notice

as to which method of selection would be used for the alternates, communications between a court

officer and a juror, re-opening voir dire of jurors, and disallowance of a peremptory challenge after

voir dire was re-opened. To place these issues in context, we briefly recount what happened during

jury selection.

-8-

After questioning by the trial court and the parties, a regular, twelve-member jury

panel was selected. Thereafter, the trial court tentatively seated four potential alternate jurors. One

of the four was Carol Pierce. During earlier questioning, Ms. Pierce disclosed that her daughter had

been a recent crime victim, but Ms. Pierce gave assurances that she could decide the defendant’s case

on its merits. Ms. Pierce occupied alternate position two, but after the defendant peremptorily

challenged the alternate juror in position one, Ms. Pierce advanced to position one. On the next

round of challenges, the defendant tried to challenge Ms. Pierce, but the trial court disallowed the

challenge based on Criminal Procedure Rule 24(e)(1). See Tenn. R. Crim. P. 24(e)(1). Another

alternate juror was seated, and the unsworn jury retired for a break.

During the break, another juror, Mr. Parrish, approached a court officer and expressed

reservations about deciding the case based upon religious grounds. The court officer reported the

information to the trial court, whereupon Mr. Parrish was brought into the courtroom and questioned

by the trial court and the parties. Based on the questioning, the trial court excused Mr. Parrish for

cause and replaced him with Ms. Pierce, who had been seated as alternate juror one. The defendant

tried again to challenge Ms. Pierce, this time for cause, but the trial court denied the challenge based

on Ms. Pierce’s indications that she could be fair and impartial.

In denying the defendant’s motion for new trial, the trial court in this case issued

comprehensive written findings regarding jury selection. Our review has been substantially

facilitated by these findings. In its order, the trial court admitted that it neglected to advise the

parties beforehand as to which method of alternate juror selection would be used but that by

soliciting challenges to alternate juror one, the trial court clearly signaled that it was following the

Rule 24(e)(1) procedure. The trial court further explained that it found no basis to remove Ms.

Pierce for cause, given her assurances. As for Mr. Parrish, the trial court believed that he would not

be capable sitting as a juror because of his religious beliefs, and the only way to inquire about his

reservations once he discussed them with the court officer was to re-open voir dire.

A trial court's method of conducting jury voir dire in a criminal case must comport

with constitutional due process notions of fundamental fairness. See Mu'Min v. Virginia, 500 U.S.

415, 426, 111 S. Ct. 1899, 1905 (1991). Jurors “may sit on a case, even if they have formed an

opinion on the merits of the case, if they are able to set that opinion aside and render a verdict based

upon the evidence presented in court.” State v. Mann, 959 S.W.2d 503, 531 (Tenn. 1997). In many

instances, the prospective juror’s acceptability will depend on the believability of the avowal as to

impartiality. See Tenn. R. Crim. P. 24(b)(2). Indeed, in light of the trial judge's opportunity to hear

and observe the prospective jurors, courts have deferred to the trial judge to determine the ability of

a prospective juror to impartially hear the case. Mu'Min, 500 U.S. at 427, 111 S.Ct. at 1906. Given

this deference, a “trial court’s findings of juror impartiality may be overturned only for ‘manifest

error.’” State v. Cazes, 875 S.W.2d 253, 262 (Tenn. 1994) (quoting Patton v. Yount, 467 U.S. 1025,

1031, 104 S. Ct. 2885, 2889 (1984)). There is no such error in this record.

The defendant couches one of his grievances in terms of the trial court’s failure to

question the jurors about any involvement in crimes similar to those charged in the defendant’s case.

-9-

Inasmuch as counsel for the parties were permitted to voir dire potential jurors and to question about

potential bias, we are at a loss to appreciate how error infected the proceeding. As for Jurors Pierce

and Parrish, the defendant offers little more than boilerplate objections, and he has not shown how

or why the trial court abused its discretion.

Furthermore, we perceive no error or abuse of discretion related to Mr. Parrish’s

communications with a court officer or related to the additional questioning and removal of that

juror. There is no proof that the court officer engaged the juror in conversation or solicited the

juror’s opinion about the case. Rather, the juror approached the court officer. Then once the

information was brought to the trial court’s attention, it was entirely appropriate for the trial court

to inquire further of the juror. At that point, the decision to seat an alternate juror, when a regular

juror must be removed, is left to the trial judge’s discretion. Tenn. R. Crim. App. 24(e)(1). One

challenging the trial court’s decision to do so, as the defendant does in this case, has the burden of

demonstrating prejudice by the seating of the alternate juror. State v. Millbrooks, 819 S.W.2d 441,

445 (Tenn. Crim. App. 1991); State v. Max, 714 S.W.2d 289, 294 (Tenn. Crim. App. 1986).

We are confident that had the juror in this case, for example, related to the court

officer something unfavorable about the defendant, the defendant would be insisting that the court

officer had a duty to promptly report it to the trial court, that the trial court should have immediately

investigated, and that the juror should have been removed. The trial court, we conclude, acted

appropriately when confronted with the situation in this case, and the defendant has shown us no

prejudice from the removal of Juror Parrish or the seating of Juror Pierce.

The defendant’s inability to demonstrate prejudice also disposes of his grievance that

he was misled by the trial court’s failure to notify him which method of selecting alternate jurors was

being used and of his invocation of cumulative error. The trial court candidly admitted that the

method of alternate juror selection was not specified beforehand; we agree, however, with the trial

court that the way that jury selection proceeded, the defendant reasonably was on notice of the

method. We note that the defendant on appeal does not specifically claim that he was misled; rather,

his argument is more in the nature of asserting entitlement to additional peremptory challenges

merely because the trial court failed to announce the method. We reject that assertion.

No relief premised on how jury selection was conducted in this case is required or

warranted.

III. Evidence of DNA Test Results

The defendant insists that the trial court committed reversible error in denying his

motion to strike the results of DNA testing performed on blood stains found on a pair of work boots

seized from the defendant. There was no proof, according to the defendant, establishing which of

several blood stains on the boots was tested or the size and shape of the tested stain. As a result, the

defendant argues that the jury was left to speculate about which stain was tested such that the jury

was unfairly left with the impression that all of the blood on the boots came from the victim.

-10-

The defendant couches this issue solely in terms of evidence relevancy pursuant to

Evidence Rule 403. That rule provides, “Although relevant, evidence may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues,

or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation

of cumulative evidence.” Tenn. R. Evid. 403. The defendant focuses on the “unfair prejudice”

component of the rule, which he states includes those situations where a jury could misuse otherwise

admissible proof. The defendant does not challenge the accuracy or reliability of the results of the

DNA testing performed and does not question the qualifications of the expert witness who testified

about the DNA test results.

Our review of this issue takes us into a familiar corner of the law. A trial court’s

decision to admit or exclude evidence based on its evidentiary relevance will not be disturbed absent

an abuse of discretion. State v. Gilliland, 22 S.W.3d 266, 270 (Tenn. 2000); State v. Dubose, 953

S.W.2d 649, 652 (Tenn. 1997). The trial court’s reason underlying its exercise of discretion in this

case was that the defendant’s motion to strike went to the weight, not the admissibility, of the

evidence. The trial court explained,

Clearly the lack of State proof identifying which of the blood stained

areas on the boot was positive for that of the deceased’s blood went

to the weight of testimony of the T.B.I. expert and her credibility.

This issue was fully explored by defense counsel in front of the jury

and the jury had an opportunity to weigh that testimony and ascribe

an appropriate weight to be given to this expert testimony. The Court

finds this issue is without merit.

We agree with the trial court’s assessment that weight, not admissibility, was the

issue. The trial court properly admitted the evidence and correctly refused to later strike it. The

jury then went about its appointed task of weighing the evidence and giving the test results whatever

weight the jury believed appropriate in light of the defendant’s countervailing arguments. Nothing

in the record suggests that the trial court abused its discretion on this issue.

IV. Suppression of Exculpatory Evidence

The defendant accuses the state of failing to advise him that Steve Riggan was a

jailhouse informant who had given inculpatory information to the police involving another pretrial

detainee. The pretrial detainee, Dondie Tidwell, had shared for a time a cell with Riggan and the

defendant. Cellmate Tidwell was charged with murder, and his case was tried approximately seven

months after the defendant was convicted. Riggan testified against Tidwell as a state witness. The

defendant’s attorney claimed that he learned of the connection between Riggan and Tidwell through

newspaper coverage of the Tidwell trial, and the putative Brady violation was raised in the

defendant’s motion for new trial.

-11-

The trial court issued a written order overruling the defendant’s new trial motion.

The order, in pertinent part, recites,

Mr. Riggan was incarcerated at a time in a cell with Mr. Dykas and

obtained admissions from Mr. Dykas that he testified to during the

trial. Riggan was also a cell mate of Dondie Tidwell and testified

against him in a later trial in which Tidwell was charged with first

degree murder. Apparently at some point in time Riggan identified

himself to police authorities and initially testified against Mr. Dykas.

Riggan then disclosed information against Mr. Tidwell and after the

Dykas trial testified in that subsequent trial of State v. Tidwell. Mr.

Dykas, in this assignment of error, asserts that the State failed to

disclose that Riggan was testifying in the latter case and that this was

exculpatory evidence which they failed to provide to the defendant.

. . . The defendant has cited no authority that would lend itself to the

conclusion that the fact that Mr. Riggan was anticipated to testify in

the future against Mr. Tidwell meets the definition of exculpatory

evidence required to be furnished by the State in Brady v. Maryland.

Therefore, this assignment of error is overruled.

We begin by briefly reviewing the controlling constitutional principles. In Brady v.

Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), the United States Supreme Court held that the

prosecution has a constitutional duty to furnish the accused with exculpatory evidence pertaining to

either the accused’s guilt or innocence and the punishment that may be imposed. Failure to reveal

exculpatory evidence violates due process when the evidence is material either to guilt or

punishment, irrespective of good faith or bad faith of the prosecution. Id. at 87, 83 S. Ct. at 1196-97.

Decisions subsequent to Brady have established that to prove a due process violation,

the defendant must show that the information was requested (unless the evidence is obviously

exculpatory, in which case the state is bound to release the information whether requested or not),

that the state suppressed the information, that the information was favorable to the accused, and that

the information was material. See State v. Edgin, 902 S.W.2d 387, 389-90 (Tenn. 1995). The

suppressed information is considered “material” if there is a “reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have been different.”

United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375 (1985). A “reasonable probability,” the

Supreme Court has explained, is a probability sufficient to “undermine[ ] confidence in the outcome

of the trial.” Id., 473 U.S. at 678, 105 S. Ct. at 3381.

In reviewing the trial court’s ruling, it appears to us that the trial court misunderstood

the defendant’s complaint. In addition, from the trial court’s statement that the information did not

meet “the definition of exculpatory evidence,” we cannot tell whether the trial court was referring

to the requirement that the information be “favorable” or the requirement that the favorable

-12-

information be “material.” Our independent review, however, convinces us that no due process

violation occurred.

It may be that an extension of the defendant’s complaint is that the state should have

disclosed that Riggan would be testifying in a future case. The defendant, however, more

specifically defined the issue in terms of the state withholding information that, prior to the

defendant’s trial, Riggan had given a videotaped statement to the same detectives involved in the

defendant’s case regarding inculpatory remarks made by another cellmate. Knowing that Riggan

was informing on other cellmates would have, the defendant argues, served to impeach Riggan’s

credibility by contradicting Riggan’s claimed motivation for testifying that “it’s the right thing to

do.”

Impeachment evidence is treated no differently than other evidence in terms of

exculpatory significance. “Impeachment evidence, . . . as well as exculpatory evidence, falls within

the Brady rule.” Bagley, 473 U.S. at 675, 105 S. Ct. at 3380. Impeachment evidence is “‘evidence

favorable to an accused,’ . . . so that, if disclosed and used effectively, it may make the difference

between conviction and acquittal.” Id., 105 S. Ct. at 3380. In this case, we cannot say that the

information about Riggan is devoid of impeachment value; consequently, it qualifies as evidence

“favorable” to the defendant. The next step is to determine if this favorable evidence is “material,”

such that its suppression violated due process.

The “materiality” of suppressed, favorable evidence was discussed at length in Kyles

v. Whitley, 514 U.S. 419, 115 S. Ct. 1555 (1995). Four aspects are highlighted therein. First,

establishing materiality “does not require demonstration by a preponderance that disclosure of the

suppressed evidence would have resulted ultimately in the defendant’s acquittal.” Id. at 434, 115

S. Ct. at 1566. Second, materiality “is not a sufficiency of evidence test.” Id., 115 S. Ct. at 1566.

Third, “once a reviewing court applying Bagley has found constitutional error there is no need for

further harmless-error review.” Id. at 435, 115 S. Ct. at 1566. Last, the “suppressed evidence [is

to be] considered collectively, not item by item” to gauge materiality. Id. at 436, 115 S. Ct. at 1567.

Plainly stated, establishing materiality requires a “showing that the favorable evidence could

reasonably be taken to put the whole case in such a different light as to undermine confidence in the

verdict.” Id. at 435, 115 S. Ct. at 1566.

In this case, our confidence in the jury’s verdict is not undermined by evidence that

the defendant was not the only cellmate about whom Riggan had “snitched.” There was no evidence

at trial that Riggan was paid for the information that he supplied or that he benefitted in some other

way. Moreover, no proof suggested that the detectives intentionally “planted” Riggan in the same

cell as the defendant to obtain evidence. The state’s theory of the case was that the defendant and

Reese were co-conspirators, jointly involved in the beating death and robbery of the victim. Reese

had pleaded guilty to the charged crimes for which she received a life sentence. The jurors very

likely and reasonably gave substantial weight to Reese’s testimony which placed the defendant at

the murder scene and which identified the defendant as the person who had wielded the lethal claw

hammer. Faced with Reese’s powerful testimony, the defendant crafted a theory of defense (without

testifying or presenting other evidence) that it was Reese who struck and killed the victim. We fail

to see how the battle lines thus drawn would have changed had the defense been able to impeach

Riggan’s motive for testifying, nor does the defendant enlighten us how exposing Riggan as a

-13-

jailhouse snitch would have “put the whole case in such a different light” as to rattle our confidence

in the outcome of the trial.

Accordingly, the defendant has not satisfied his burden of demonstrating the

materiality of the information that was withheld, and we hold that no due process violation has been

established.

V. Sentencing

The defendant’s final complaint is that the trial court improperly ordered consecutive

sentencing. On the defendant’s especially aggravated robbery conviction, the trial court imposed a

25-year sentence at 100 percent. That sentence was ordered to run concurrently to the eleven-year

sentence at 30 percent for the conspiracy conviction. Both sentences were then ordered to be served

consecutively to defendant’s first-degree murder sentence of life without parole. The defendant

contends that the evidence is insufficient to show that he is a professional criminal with no visible

means of support other than his criminal conduct. The defendant also claims that consecutive

sentencing is unnecessary to protect the public because he already has been sentenced to life without

the possibility of parole.

When there is a challenge to the length, range, or manner of service of a judicially

imposed sentence, it is the duty of this court to conduct a de novo review of the record with a

presumption that the determinations made by the trial court are correct. Tenn. Code Ann. §

40-35-401(d) (1997). This presumption 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); see State v. Hooper, 29 S.W.3d 1, 5 (Tenn.

2000). "The burden of showing that the sentence is improper is upon the appellant." Ashby, 823

S.W.2d at 169. In the event the record fails to demonstrate the required consideration by the trial

court, review of the sentence is purely de novo. Id. If appellate review, however, reflects that the

trial court properly considered all relevant factors and its findings of fact are adequately supported

by the record, this court must affirm the sentence, "even if we would have preferred a different

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

Before consecutive sentencing can be ordered, the trial court must first determine that

one or more of the statutorily enumerated criteria of Code section 40-35-115 exist and find that the

aggregate sentence is reasonably related to the severity of the offenses and necessary to protect the

public from further criminal activity of the offender, if the defendant is found to be a dangerous

offender. State v. Wilkerson, 905 S.W.2d 933, 937 (Tenn. 1995). See also State v. Lane, 3 S.W.3d

456 (Tenn. 1999) (holding Wilkerson factors are limited to sentencing of "dangerous offenders").

Notwithstanding proof of these criteria, a sentencing court retains the discretion of imposing

consecutive sentences. On appeal, the decision that flows from the trial court's discretion is assigned

great weight, provided the court correctly applied the principles of consecutive sentencing.

Moreover, in determining whether the trial court providently exercised its discretion, the fairness of

the resulting sentence under all the circumstances must be ensured.

There are seven statutory criteria in Code section 40-35-115 for imposition of

consecutive sentencing. They are:

-14-

(1) The defendant is a professional criminal who has knowingly

devoted such defendant’s life to criminal acts as a major source of

livelihood;

(2) The defendant is an offender whose record of criminal activity is

extensive;

(3) The defendant is a dangerous mentally abnormal person so

declared by a competent psychiatrist . . . ;

(4) The defendant is a dangerous offender whose behavior indicates

little or no regard for human life, and no hesitation about committing

a crime in which the risk to human life is high;

(5) The defendant is convicted of two (2) or more statutory offenses

involving sexual abuse of a minor . . . ;

(6) The defendant is sentenced for an offense committed while on

probation; or

(7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b)(1)-(7) (1997).

Here, the trial court found that the defendant qualified for consecutive sentencing on

grounds (1) and (4). As for the defendant being a professional criminal who relied on criminal

activity as a major source of livelihood, the trial court observed that there was no evidence that the

defendant had “any ability to sustain [himself] except through that of criminal activity,” or that the

defendant had any “visible means of support except that of his actions in taking advantage of the

decedent.” The defendant directs us to the employment information section of his presentence

report and points out that Reese was supporting the defendant and herself by working at Hardee’s.

According to the presentence report, the defendant was 53 years old at the time of

sentencing. The defendant served in the United States Navy in the mid 1960s, but he was court

martialed and received a bad conduct discharge for being away without official leave (“AWOL”) for

one year or more. The defendant told the presentence investigator that he had at some unspecified

time and place worked “for a carnival.” The defendant also claimed to have worked for a year at

G.B. Boot Smith in Mississippi, to have hauled scrap iron, and to have been employed by Wendy’s

for a short time. The presentence investigator was unable to confirm any of this employment

information and was unable even to locate the area in Mississippi where the defendant said he had

worked. “It would appear,” the presentence investigator wrote, “that the defendant is a transient

-15-

moving from place to place and is never employed for any period of time.” The trial court obviously

agreed with that assessment, and we concur.

The record of the defendant’s criminal activity is somewhat sketchy, but evidently

he has one or more Illinois convictions. Moreover, at the time of sentencing arson charges had been

filed and were pending against him in Rutherford County. We note that the defendant listed no

financial assets or outstanding debts, other than court costs from this prosecution. By all

indications, his livelihood was tied intimately to his criminal endeavors, but we “need not spend time

and lineage” further analyzing this factor. See State v. Bernard K. Johnson, No.

E2000-00009-CCA-R3-CD, slip op. at 16 (Tenn. Crim. App., Knoxville, Jan. 31, 2001). "Only one

factor need be proven to support a consecutive sentence." State v. Ernest Leon Powers, Jr., No.

03C01-9606-CC-00222, slip op. at 18 (Tenn.Crim.App., Knoxville, Oct. 28, 1997). In this case, the

record fully supports the application of factor (4) that the defendant is a “dangerous offender whose

behavior indicates little or no regard for human life, and no hesitation about committing a crime in

which the risk to human life is high.”

The trial court made the required specific findings that an extended sentence is

necessary to protect society and is reasonably related to the severity of the offenses relative to

consecutive sentencing under the “dangerous offender” category in Code section 40-35-115(b)(4).

State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). The only finding that the defendant

challenges on appeal is whether consecutive sentencing is necessary to protect the public.

The defendant posits that consecutive sentencing is superfluous inasmuch as his life

without the possibility of parole sentence guarantees that he will never be released from confinement.

This argument has been expressly, as well as implicitly, rejected. State v. Howell, 34 S.W.3d 484

(Tenn. Crim. App.) (consecutive sentencing of life without the possibility of parole for first-degree

murders and 25 years for attempted murder affirmed for five of the six defendants), perm. app.

denied (Tenn. 2000); State v. Blocker, No. 03C01-9803-CR-00120 (Tenn. Crim. App., Knoxville,

Mar. 10, 1999) (approving consecutive sentencing for felony murder and aggravated robbery

convictions; noting cases wherein supreme court had denied permission to appeal when an additional

sentence ordered to be served consecutively to sentence of life without parole), perm. app. denied

(Tenn. 1999); State v. Christa Gail Pike, No. 03C01-9611-CR-00408 (Tenn. Crim. App., Knoxville,

Nov. 26, 1997) (no abuse of discretion for death sentence and 25-year sentence for conspiracy to

commit first-degree murder to be served consecutively ), aff’d, 978 S.W.2d 904 (Tenn. 1998).

Accordingly, our review persuades us that the trial court considered and applied the

appropriate sentencing principles and did not abuse its discretion in ordering consecutive sentencing

in this case. The trial court’s sentencing of the defendant is, therefore, affirmed.

In conclusion, we affirm the judgements of guilt in this case and the trial court’s

sentencing.

__________________________________________

JAMES CURWOOD WITT, JR., JUDGE

-16-

-17-