State of Tennessee v. Albert Eugene Pleasant

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs March 14, 2001

STATE OF TENNESSEE v. ALBERT EUGENE PLEASANT

Appeal from the Circuit Court for Warren County

No. F-7227 Charles O. Haston, Judge

No. M1998-00653-CCA-R3-CD - Filed July 3, 2001

The defendant, Albert Eugene Pleasant, appeals his Warren County Circuit Court jury conviction

for first degree murder in connection with the shooting death of his girlfriend on June 9, 1996. In

this direct appeal, he contests the sufficiency of the conviction evidence and challenges the

admissibility of photographs of the victim taken post-mortem and of evidence of prior threats and

physical abuse of the victim by the defendant. After a 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 G. HAYES and

JOHN EVERETT WILLIAMS, JJ., joined.

Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); and Dale Potter, District Public Defender

(at trial) for the Appellant, Albert Eugene Pleasant.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General;

William M. Locke, District Attorney General; Thomas J. Miner, Assistant District Attorney General;

and Larry G. Ross, Assistant District Attorney General for the Appellee, State of Tennessee.

OPINION

The defendant and his girlfriend, Brenda Lovell, had a troubled relationship that

began in mid-1993 and ended in the early morning hours of June 9, 1996 when the defendant shot

and killed her. The defendant was arrested and charged with first degree premeditated murder. The

theory of defense at trial was that the shooting was accidental. The jury rejected that defense and

found the defendant guilty of first degree murder; the trial court imposed a mandatory sentence of

life imprisonment. See Tenn. Code Ann. 39-13-208(c) (1997).

The victim’s daughter, Sherrie Clark, testified at trial that her mother had twice

married and divorced. The first marriage, to which Ms. Clark and a brother were born, lasted sixteen

years. The second marriage lasted thirteen years, and after the divorce Brenda Lovell moved to

McMinnville. Because she suffered from epilepsy, Ms. Lovell was not employed. She did receive

disability income however.

Ms. Clark had personal knowledge of the relationship between her mother and the

defendant. She testified that they met on July 3, 1993 and began dating. The defendant was good

to Ms. Clark’s children, and he helped with family matters. The relationship progressed to the point

that the victim and the defendant started living together.

The first signs of trouble that Ms. Clark witnessed occurred in December 1993. Ms.

Clark had taken her newborn infant to visit the couple, who were living at the time in a trailer. When

Ms. Clark entered the trailer, the victim and the defendant were engaged in a physical fight. The

defendant was on top of the victim, and when Ms. Clark tried to intervene, she was struck. From

statements made by the defendant, Ms. Clark determined that the fight was preceded by an argument

over taking out the garbage.

Throughout the ensuing years, Ms. Clark saw her mother injured, such as having a

black eye, bloody nose, “busted mouth,” and broken arm. Ms. Clark also heard and witnessed other

violent exchanges. In 1994, the defendant threatened to hit the victim with a two by four. In the

spring or summer of 1995, Ms. Clark checked on the victim, who at that time was living in an

apartment on Villa Street. The victim was upset and had knots on her head. The defendant was not

present, but flower pots were strewn about the apartment, and plants had been uprooted. Ms. Clark

testified that after that incident, the victim came to live with her for a time.

According to Ms. Clark, the defendant continued to pursue the victim and make

threats. When Ms. Clark and her husband disclaimed knowing the whereabouts of the victim, the

defendant on one occasion in the later part of 1995 threatened that when he found the victim “he was

going to kill her.” In addition, the defendant telephoned the victim at Ms. Clark’s home. The victim

would put the calls on the speaker phone, and Ms. Clark personally overheard the defendant accusing

the victim of seeing other men and threatening to kill her.

Ms. Clark testified that her mother and the defendant had separated and reconciled

many times. Frequently, the defendant threatened to kill the victim if she left him. One of the

subjects about which the couple argued was the victim’s crack cocaine use and the victim’s

association with individuals who likewise used the drug. Approximately a week before the

homicide, the victim and the defendant separated for a day. That same day, the victim was assaulted

by another man, Albert Haley, who hit her in the head with a roofing hammer. As a result, she was

hospitalized overnight. The assault occurred in an apartment house on Morford Street and may have

been drug related.

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Ms. Clark explained at trial that her mother was discharged from the hospital on May

31, 1996. Ms. Clark visited daily with her mother for the next eight days. During that time, Ms.

Clark recalled that the victim and the defendant continued to argue, for instance, about the rent for

the house and about whether the victim was “with another man” the night that Haley assaulted her

with a hammer. At some point, the victim advised the defendant that she had decided to leave and

planned to move to Alabama where her son lived.

On the morning of June 8, Ms. Clark needed someone to babysit while she was at

work. The victim was not feeling well, but her neighbor was available. Ms. Clark left her son with

the neighbor, went to work, and returned to pick up the child between 10:00 and 10:30 that evening.

As Ms. Clark was driving off, the victim flagged her down. Ms. Clark saw the defendant standing

nearby and holding a sawed off shotgun. The couple began arguing about the rent and the name on

the lease. The victim capitulated and told the defendant that he could have the mobile home trailer

because she was taking her belongings and going to Alabama, to which the defendant replied that

“no she ain’t.” The victim wanted her son, who lived in Alabama, to protect her while she packed

to leave, and the victim prevailed upon Ms. Clark to drive to Alabama and bring back the son. Ms.

Clark tried to persuade the victim to ride with her to Alabama, but the victim declined because she

needed to pack. The last time Ms. Clark saw the victim alive was as she was leaving at 10:30 p.m.

to drive to Alabama.1

The victim did not stay and pack as she told her daughter she would. Rather, she

asked a neighbor for a ride into town. The neighbor took her to the apartment house on Morford

Street. The defendant, who learned later from the neighbor that the victim was in town, went

looking for the victim. He found the victim in the apartment house on Morford Street. The victim

was visiting with Willie Mae Ramsey and Carlos Wood in their apartment. The defendant entered

the apartment and drew a shotgun from the back of his coat. Ms. Ramsey testified at trial that she

became hysterical and that Mr. Wood wrestled with the defendant and knocked the gun to the floor.

Mr. Wood ordered the defendant to leave, and as he did the defendant told the victim, “You will

have to come out some time.” When the victim finally left, she predicted that the defendant “is

going to kill me.”

The victim next went to Mary Wright’s apartment, where the victim had been visiting

earlier that evening. Ms. Wright testified that the victim was crying and upset. Not long thereafter,

the defendant came to the back door of Ms. Wright’s apartment. The defendant was belligerent, and

he told Ms. Wright that he had come “over here to kill all of ya’ll.” The defendant came inside the

apartment and confronted the victim. When he saw another man already in the apartment, the

defendant threatened that person. Somehow the situation calmed down, and the defendant sat down

1

No one answered her brothe r’s apartmen t door whe n Ms. Cla rk reached Alabama after midnight. She left

a note on his door and returned to McMinnville. Because of the early hour, Ms. Clark went directly to her home. Later

that morning Ms. Clark was notified that her mother had been killed.

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in a chair. The victim sat across from him on a couch, and Ms. Wright and the other man were

seated on different sofa.

At trial, Ms. Wright gave an eyewitness account of the last minutes of the victim’s

life. While seated, the defendant began accusing the victim of being with other men. When the

victim advised that she was leaving for Alabama that night, Ms. Wright testified that the defendant

replied, “Well, you damn bitch, if you go, you will go in a pine box.” The defendant did not

immediately shoot the victim. He talked to her for several minutes, and then he picked up the

shotgun, aimed it at the victim, and clicked the hammer without firing. Ms. Wright believed that the

defendant repeated the mock shooting two or three more times. All the while, the victim was crying

and pleading for the defendant not to kill her. Ms. Wright testified that the victim also begged the

defendant to think of her grandchildren, at which point he cried. He aimed the shotgun at the victim

a final time, announced that he would “just go ahead and kill you, now, bitch,” and delivered a single

lethal shot to the victim’s neck. The defendant walked out of the apartment with the shotgun.

McMinnville Police Sergeant Alan Dalton, who was patrolling Morford Street,

noticed the defendant standing next to a dumpster. The defendant’s hands were raised, and he held

a shotgun in his left hand. When Sergeant Dalton approached, the defendant volunteered that he had

shot his girlfriend and that he was not going to run. Sergeant Dalton relieved the defendant of his

shotgun, and the defendant surrendered seven to nine shotgun shells.

The defendant was arrested and transported to police headquarters. He gave two

statements while in custody. In the first statement, he claimed that the shooting was an accident.

I knocked and went in. Brenda was setting on the couch. I was

standing in front of her. I was asking her to go home and saying

something like your back up here where they hit you in the head. I

can’t remember. I may have put the gun up to her and snapped the

gun I don’t remember. I thought I saw the barrel of a gun. I turned

around and put a shell in my gun. Then I said are you going or not.

Then Brenda told me to lay the gun down. I laid the gun down &

thought I took the shell out of my gun. I thought I seen someone

around the corner. I picked the gun back up, I said fuck this shit. I

started to put the gun under my coat and it went off.

In a second statement, his version of the events changed.

I went to Mary’s apartment to get Brenda to go home with me. She

wouldn’t go. I picked the shotgun up. I don’t know if it had a shell

in it or not. I snapped it once or twice. I, then, remember putting a

shell in it and just stood up and said, “F this shit.” I pointed the gun

at Brenda and shot her. I think I did see a gun barrel, but that is not

what I was shooting at. I was shooting at Brenda.

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The cause of death was not a disputed issue at trial. Dr. Charles Harlan, the attending

Medical Examiner, testified that he discovered two shotgun wounds that were the product of a single

shot. One area of wounding was to the victim’s left index finger, but most of the shot entered her

body above the collar bone on the left side of the body. According to Dr. Harlan, the path of the

shell was from left to right, and in his opinion when the fatal shot was fired, the end of the muzzle

of the shotgun was 6 to 9 feet from the victim’s neck.

The shotgun that the defendant had with him when he was arrested was sent to the

firearms identification section of the Tennessee Bureau of Investigation. TBI Agent Steve Scott

testified at trial that a shell casing found at the homicide scene and sent to him had been fired from

the defendant’s shotgun. From his testing, Agent Scott also opined that the defendant’s shotgun

would not accidently discharge in the sense of malfunctioning.

The defense did not offer any evidence at trial. The trial court instructed the jury on

first degree murder and the lesser included offenses of second degree murder, voluntary

manslaughter, reckless homicide, and criminally negligent homicide. The jury found the defendant

guilty of first degree murder.

I. Sufficiency of the Evidence

The defendant complains that the evidence was insufficient to convict him of first

degree murder because the state failed to prove beyond a reasonable doubt the element of

deliberation. As the state correctly points out, the homicide occurred in 1996, and in 1995 the

legislature amended the first degree murder statute by eliminating the separate requirement or

element that a killing be “deliberate.” The concept of deliberation became incorporated within the

definition of “premeditation.” That is, effective July 1, 1995, first degree murder is defined as “[a]

premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)(1) (1996 Supp.).

The statute further defines “premeditation” in the following fashion:

As used in subdivision (a)(1) “premeditation” is an act done after the

exercise of reflection and judgment. “Premeditation” means that the

intent to kill must have been formed prior to the act itself. It is not

necessary that the purpose to kill pre-exist in the mind of the accused

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

time the accused allegedly decided to kill must be carefully

considered in order to determine whether the accused was sufficiently

free from excitement and passion as to be capable of premeditation.

Tenn. Code Ann. § 39-13-202(d) (2000 Supp.).

When the charged offense is first degree murder, 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).

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Several factors are relevant to the existence of premeditation; they include “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.

The defendant in this case, having been found guilty, no longer enjoys the

presumption of innocence; consequently, he shoulders the burden of demonstrating that the evidence

is legally insufficient to support the conviction. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

In considering his claim, we inspect the evidentiary landscape, including its direct and circumstantial

contours, from the vantage point most agreeable to the prosecution. From that inspection, we then

must decide 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,

namely first degree murder. See Jackson v. Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92

(1979); Tenn. R. App. P. 13(e); State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985).

It matters not to the standard of review whether the findings of guilt are based on

direct evidence, circumstantial evidence, or a combination thereof. See 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). Moreover, witness credibility, the weight and value of the evidence, and factual

disputes are the domain of the finder of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.1978).

This court does not substitute its inferences for those drawn by the trier of fact from the evidence.

See 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). Rather, this court extends 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.

Mindful of the foregoing principles and guidelines, we have carefully reviewed the

evidence at trial in the light most favorable to the state. The jury, we believe, reasonably could have

found that after an ongoing course of arguments and abusive conduct that lasted about three years,

the victim told the defendant that she was leaving him. The defendant, shotgun and ammunition in

hand, hunted her down. He threatened the victim that the only way she was leaving for Alabama was

“in a pine box.” He then tortured her by playing with the gun in a fashion reminiscent of Russian

roulette. The victim made no aggressive or threatening actions; she begged for her life and implored

the defendant to think of her grandchildren. Heedless to the victim’s pleas, the defendant lifted the

shotgun and shot her. Still carrying the shotgun, the defendant walked out of the apartment building

and announced to a nearby law enforcement officer that he shot his girlfriend. He later confessed

that he pointed the gun at Brenda and shot her.

Nearly all of the factors relevant to premeditation, which we enumerated earlier, come

into play. The defendant used a deadly weapon, a shotgun, upon an unarmed victim. The killing

was particularly cruel with the victim begging for her life and the defendant playing with the

shotgun. That evening and many times before, the defendant declared his intent to kill the victim.

When he went looking for the victim, the defendant took his shotgun and nine or ten rounds of

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ammunition with him, and after the shooting the defendant exhibited a calm demeanor. These

circumstances are, to say the least, sufficient for the jury to infer that the defendant premeditated the

murder beyond a reasonable doubt. The evidence is sufficient to support the conviction of first

degree murder.

II. Prior Bad Acts

The issue that the defendant presses most forcefully is that he is entitled to a new trial

because of the erroneous admission of unduly prejudicial evidence of prior threats and physical abuse

visited upon the victim by the defendant. The defendant couches his complaint in terms of

Tennessee Rule of Evidence 404(b), which addresses the admissibility of evidence of other crimes,

wrongs or acts. Tenn. R. Evid. 404(b). He appears to be arguing that the trial court’s failure to

follow the procedural mechanics of Rule 404(b) justifies the reversal of his conviction. The state

primarily counters that the defendant never invoked the safeguards built into Rule 404(b). Both

parties are somewhat off mark.

The defendant’s argument extends too far. When a trial court complies substantially

with the procedural requirements of Rule 404(b), the standard of appellate review of the decision to

admit the evidence is abuse of discretion. See State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997);

State v. Bobby Earl Perkins, No. W1999-01368-CCA-R3-CD, slip op. at 2 (Tenn. Crim. App.,

Jackson, July 28, 2000); State v. Dolwin Deon Cormia, No. E1999-01504-CCA-R3-CD, slip op. at

8 (Tenn. Crim. App., Knoxville, Apr. 4, 2000). If the strict requirements of the rule are not

substantially observed, as the defendant claims in this case, a new trial is not automatically granted;

instead, the reviewing court gives the trial court’s decision no deference. See DuBose, 953 S.W.2d

at 652.

The requirements set forth in Rule 404(b) are:

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

presence;

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

conduct conforming with a character trait and must upon request state

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

admitting the evidence; and

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

outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b)(1), (2), (3). A fourth prerequisite is that the trial court find by clear and

convincing evidence that the defendant committed the other crime. Tenn. R. Evid. 404, Advisory

Comm’n Comment; State v. Parton, 694 S.W.2d 299, 303 (Tenn. 1985).

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As for the state’s position, we do not share its view that the defendant “dropped the

ball,” so to speak. The trial court deferred hearing defense pretrial motions until the day of trial. The

defense objection to the introduction of prior bad acts was heard by the trial court after the jury was

selected but before it was sworn.

The state had filed a notice of intent to introduce evidence of prior bad acts, and the

record reveals that the state began discussing the various paragraphs in the notice and arguing why

it should be permitted to offer evidence of the defendant’s prior threats and physical abuse of the

victim. The trial court read through the notice, pausing occasionally to ask the state what kind of

proof it had and how it intended to prove a particular allegation. From the exchange, most of the

state’s evidence was to come from the victim’s daughter. When the trial court completed its

discussion with the state, it addressed the defense, “Let’s wind her up. What do you say about this?”

In the course of answering the trial court’s question, the defense invoked Rule 404(b) and requested

that the trial court state how the evidence was relevant to a specific issue and explain its reasons for

admitting such evidence. The trial court responded that the evidence was relevant to the question

whether the victim’s death was the result of an accidental discharge of the shotgun. The trial court

did not make a clear and convincing evidence determination and did not comment on the balance

of probative value versus prejudicial effect.2

In our view the trial court in this case did not substantially comply with the procedural

requirements of Rule 404(b). Compare State v. Daryl Hooper, No. 01C01-9711-CC-00507, slip op.

at 7 (Tenn. Crim. App., Nashville, Feb. 8, 1999) (trial court addressed admissibility of tape during

jury out hearing but did not make express determination that danger of unfair prejudice did not

outweigh probative value of evidence or that there was clear and convincing evidence; review is de

novo without any deference to trial court’s ruling), aff’d in part & rev’d in part on other grounds,

29 S.W.3d 1 (Tenn. 2000), with State v. Ray Anthony Nelson, No. 03C01-9706-CR-00197, slip op.

at 15-16 (Tenn. Crim. App., Knoxville, Sept. 9, 1998) (trial court complied with requirements of

Rule 404(b) except did not make clear and convincing evidence determination; held, substantial

compliance). Accordingly, we review the trial court’s decision to admit evidence of the prior

instances of verbal and physical abuse de novo without any deference to the decision.

Pursuant to our de novo review, we conclude that the trial court correctly ruled that

the prior instances of misconduct were admissible under Rule 404(b). First, there was no genuine

dispute that the defendant had threatened and injured the victim in the past. The defendant objected

to the remoteness in time of certain events and elicited that the victim claimed one injury was

accidental, but overall the defendant did not contest the tumultuous nature of the relationship. The

2

As an additional ground why the defendant should be defaulted on his Rule 40 4(b) com plaint, the state argues

that the defendant did not object pursuant to Rule 404(b) when the prior bad act evidence was offered through the

testimony of the victim’s daughter. Rather, the defendant objected on other grounds, such as remoteness, hearsay, and

relevancy. Inasmuch as the defendant had objected previously to the evidence on Rule 404(b) grounds and had obtained

a ruling from the trial court, in our view the d efendant d id not com promise h is position by ra ising other legitim ate

objectio ns to the evide nce when it wa s introduced at trial.

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defendant, in fact, elicited that one of the subjects about which the couple argued was the victim’s

crack cocaine use. From the record, we find that the evidence is clear and convincing that the

defendant had previously threatened and abused the victim.

Next, in the context of homicide prosecutions, violent acts indicating the relationship

between the victim of a violent crime and the defendant prior to the commission of the offense are

relevant to show defendant's hostility toward the victim, malice, intent, and a settled purpose to harm

the victim. See State v. Smith, 868 S.W.2d 561, 574 (Tenn. 1993); State v. Turnbill, 640 S.W.2d 40,

46-47 (Tenn. Crim. App. 1982); State v. Glebock, 616 S.W.2d 897, 905-06 (Tenn. Crim. App. 1981).

This case has the additional feature that part of the defense strategy was to suggest the possibility

that the shooting was accidental. The violent acts and threats that preceded the shooting are

particularly relevant to prove an absence of mistake and that the fatal shooting was not accidental.

DuBose, 953 S.W.2d at 654; see Neil P. Cohen et al., Tennessee Law of Evidence § 4.04[11], at 4-87

(4th ed. 2000) (“The underlying theory is that repeated events of a similar nature make it unlikely that

the event at issue was the product of chance or error.”). Finally, the highly probative value of this

evidence was not outweighed by the danger of unfair prejudice. See Tenn. R. Evid. 404(b)(3).

Consequently, we hold that the trial court did not err in admitting the challenged

evidence.

III. Admission of Photograph

The final issue is whether the trial court properly admitted a color photograph of the

victim’s upper torso highlighting the shotgun wound to her neck. The defendant argues that the

photograph was unduly prejudicial and should not have been introduced because the cause of death

was not in dispute and because Dr. Harlan’s testimony clearly and graphically described the gunshot

wound and its effect. The trial court allowed the photograph to be introduced in connection with Dr.

Harlan’s testimony as relevant to the position and distance of the victim when shot and to the

question of accidental shooting.

The decision of whether to admit a photograph into evidence "lies within the

discretion of the trial court whose ruling in this respect will not be overturned on appeal except upon

a clear showing of an abuse of discretion." State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978)

(citations omitted). Photographs of the victim in a murder case are admissible "if they are relevant

to the issues on trial, notwithstanding their gruesome and horrifying character." Id. at 951. On the

other hand, "if they are not relevant to prove some part of the prosecution's case, they may not be

admitted solely to inflame the jury and prejudice them against the defendant." Id. at 951 (citing

Milam v. Commonwealth, 275 S.W.2d 921 (Ky. 1955)). Photographs are not necessarily rendered

inadmissible because they are cumulative of other evidence or because descriptive words could be

used. Collins v. State, 506 S.W.2d 179, 185 (Tenn. Crim. App. 1973)

Several photographs of the victim at the homicide scene were introduced at trial. The

photograph that is the subject of the defendant’s complaint on appeal is a color closeup of the

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victim’s upper torso highlighting the shotgun wound to her neck and showing the injury to her index

finger. The resolution of the photograph is low, and the picture is grainy and blurred. The victim’s

facial features are obscured.

The state at trial argued for admission of the photograph as showing how close the

defendant was to the victim when the shotgun discharged. Dr. Harlan testified, however, that the

closeup photograph of the wound did not make the shotgun any closer to the victim when it was

fired. No testimony or evidence was introduced that the photograph somehow disproved that the

shooting was accidental. The relevance of this photograph, in our opinion, is marginal.

Nevertheless, we cannot conclude that the trial court abused its discretion in admitting the picture,

and we find no error. See State v. Smith, 868 S.W.2d 561, 576 (photographs used to illustrate

witnesses' testimony admissible for this purpose); State v. Bigbee, 885 S.W.2d 797, 807 (Tenn. 1994)

(relevant photograph not rendered inadmissible merely because cumulative).

Based upon the foregoing and the record as a whole, we affirm the judgment of the

trial court.

__________________________________________

JAMES CURWOOD WITT, JR., JUDGE

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