State v. Larry Coulter

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

October 17, 2000 Session

STATE OF TENNESSEE v. LARRY COULTER

Direct Appeal from the Circuit Court for Rutherford County

No. F-43611 J. Steve Daniel, Judge

No. M1999-00784-CCA-R3-CD - Filed June 26, 2001

The appellant, Larry Coulter, appeals his conviction by a jury in the Rutherford County Circuit Court

of one count of first degree premeditated murder. For his offense, the appellant received a sentence

of life imprisonment in the Tennessee Department of Correction. In this appeal, the appellant

presents the following issues for our review: (1) whether the trial court erred in failing to disqualify

the office of the District Attorney General for the Sixteenth Judicial District from participating in

the appellant’s case; (2) whether the trial court erred in denying the appellant’s pre-trial motion to

suppress a statement that he made to officers of the La Vergne Police Department following his

offense; (3) whether the trial court erred in denying the appellant’s pre-trial motion to suppress the

fruits of a warrantless search of his home by officers of the La Vergne Police Department; (4)

whether the trial court erred in denying the appellant’s pre-trial motion to exclude from evidence

notes and letters written by the appellant to the victim prior to this offense; (5) whether the trial court

erred in denying the appellant’s pre-trial motion to exclude from evidence any proof of the victim’s

plans to move away from the Coulters’ mobile home; (6) whether the trial court erred in overruling

the appellant’s objection to testimony by Sybil Victory concerning a telephone conversation; (7)

whether the trial court erred in overruling the appellant’s Tenn. R. Evid. 615 objection to testimony

by Fawn Jones; (8) whether the trial court erred in overruling the appellant’s objection to testimony

by the State’s firearms identification expert concerning a bullet recovered from the victim’s body;

(9) whether the trial court erred in permitting each member of the jury to “dry-fire” the murder

weapon during the State’s case-in-chief; (10) whether the trial court erred in permitting a State’s

witness to testify by deposition pursuant to Tenn. R. Crim. P. 15; (11) whether the trial court erred

in permitting the State to impeach the appellant’s psychologist with a “learned treatise” without

satisfying the requirements of Tenn. R. Evid. 618; (12) whether the trial court erred in overruling the

appellant’s objection to rebuttal testimony by the State’s psychologist that violated Tenn. R. Crim.

P. 12.2(c); (13) whether the trial court erred in failing to charge the jury with certain special

instructions requested by the appellant; (14) whether the trial court erred in permitting the State to

alter or amend an exhibit immediately prior to the jury’s deliberations; (15) whether the evidence

adduced at trial is sufficient to support the jury’s verdict; and (16) whether the cumulative effect of

any errors requires the reversal of the appellant’s conviction and the remand of this case for a new

trial. Following a review of the record and the parties’ briefs, we affirm the judgment of the trial

court.

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

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which THOMAS T. WOODALL and

ROBERT W. WEDEMEYER , JJ., joined.

Darrell L. Scarlett and Michael A. Myers, Murfreesboro, Tennessee, for the appellant, Larry Coulter.

Paul G. Summers, Attorney General and Reporter; Lucian D. Geise, Assistant Attorney General;

William C. Whitesell, Jr., District Attorney General; and J. Paul Newman, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

Factual Background

On January 6, 1998, a Rutherford County Grand Jury indicted the appellant, Larry

Coulter, for first degree premeditated murder. The indictment arose from the shooting death of the

appellant’s wife, Robin Coulter, on December 3, 1997, at the Coulters’ mobile home in La Vergne,

Tennessee. At the appellant’s trial, the State established that the appellant and his wife had been

married for approximately two years. The Coulters had no children together, although Ms. Coulter

had a son by a prior relationship who was living with his grandmother at the time of this offense.

Both of the Coulters were employed, the appellant as a security guard by a local company named

Brentwood Security and Patrol and Ms. Coulter as a clerk by a local market known as “The Pantry.”

Tommy Thompson, the owner of Brentwood Security and Patrol, testified on behalf

of the State at the appellant’s trial. Thompson stated that, at the time of this offense, the appellant

had attained the rank of “captain” in Thompson’s company. The appellant’s duties included the

supervision of three or four patrol officers in addition to several officers assigned to stationary posts.

Thompson further testified that, due to his employment as a security guard, the appellant possessed

a “written directive” to carry a Taurus .38 Special revolver, was trained in the use of the Taurus .38

Special revolver, and was qualified as a “police sharpshooter.” According to Thompson, the

appellant did “an excellent job” for Brentwood Security and Patrol.

However, Thompson also recalled that, prior to the instant offense, the appellant

informed Thompson that he was experiencing marital difficulties and complained to Thompson

concerning his lack of sexual relations with his wife. Moreover, approximately two weeks prior to

his offense, the appellant exhibited a “change of attitude” at work. Mack Rinehart, III, another

employee of Brentwood Security and Patrol, specifically recalled that, during the weeks immediately

preceding Ms. Coulter’s murder, the appellant appeared to be “just a little bit down” and was “more

or less silent.”

Christopher Alexander, a lieutenant with Brentwood Security and Patrol, confirmed

at the appellant’s trial that, prior to Ms. Coulter’s murder, the appellant was complaining of marital

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difficulties. According to Alexander, the appellant appeared to be very bitter about his relationship

with his wife and frequently referred to his wife as a “b**ch.” Alexander further recalled:

[W]ithin the last three months of [his wife’s] life, [the appellant]

would make statements to myself and other people to the fact that she

was giving him a hard time. And the statements he would make, If

she tries to take my trailer, I’ll kill the b**ch. If she tries - - I’m

getting tired of her. She won’t leave me alone. I can’t get no rest. I

think I’ll just go on and kill the b**ch.

Alexander stated that he was so troubled by the appellant’s threats to kill Ms. Coulter that he visited

the appellant’s wife at her workplace one evening, informed her about the appellant’s threats, and

“warn[ed] her that she might not want to push [the appellant].”

Two more co-workers of the appellant, Baron Hightower and Robert Cadwallader,

likewise testified that, on several occasions prior to killing Ms. Coulter, the appellant voiced his

dissatisfaction with his marriage. Specifically, the appellant expressed to his co-workers doubts

concerning his wife’s fidelity.

Michael Hills, Ms. Coulter’s fifteen-year-old son, also testified at the appellant’s trial.

Hills recounted that he lived with his mother and stepfather for approximately one year until June

15, 1997. He recalled that, during much of this time, his mother and stepfather communicated

primarily through notes or letters, and, approximately six months prior to Hills’ departure, they

“discontinued sleeping together.” Moreover, as a further example of the ongoing discord between

his mother and stepfather, Hills testified that the appellant did not permit his mother to use the

telephone in their home “freely.” According to Hills, the appellant informed his wife that the

telephone “was in his name and she wasn’t allowed to use it.”

Sybil Victory, a friend of Ms. Coulter, related to the jury that, at the time of the

appellant’s offense, she had known Ms. Coulter for approximately three years. During that time,

Victory had never met the appellant, spoken with the appellant, nor visited the Coulters’ home.

However, in June or July 1997, Victory telephoned her friend “at home.” A man initially answered

the telephone before surrendering the receiver to Ms. Coulter. During her ensuing telephone

conversation with Ms. Coulter, Victory could hear the same man screaming at Ms. Coulter in the

background. Victory recalled that “[the man] was yelling at [Ms. Coulter] in the background, that

she was not allowed to have phone calls, that was his phone, and he was yelling obscenities at her.”

According to Victory, Ms. Coulter referred to this man as “Larry” during the telephone conversation.

Victory further noted that, on the day following this telephone conversation, Ms. Coulter purchased

a pager by which friends and family members could contact her.

Fawn Jones, a co-worker of Ms. Coulter at the Pantry, testified on behalf of the State

that, immediately prior to this offense, Ms. Coulter asked Jones for assistance in moving Ms.

Coulter’s belongings from the mobile home that she shared with the appellant to a new apartment.

Michael Hendrickson, an employee of Wherry Housing Cooperative in Smyrna, Tennessee,

confirmed that, on December 2, 1997, Ms. Coulter signed a lease for an apartment at the

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Cooperative, paid the necessary deposits, and paid one month’s rent. Ms. Coulter listed only herself

and her son as occupants of the apartment.

Additionally, the State introduced into evidence a video cassette recording of a

deposition of Rob McVicker, the Director of the Legal Affairs Division of the Domestic Violence

Program, Inc., in Murfreesboro, Tennessee. During the deposition, McVicker testified that, on

December 1, 1997, Ms. Coulter sought assistance from the Program and, consequently, filed a

petition in the Rutherford County Chancery Court requesting an order of protection against the

appellant. According to McVicker, the court granted Ms. Coulter’s petition.

Sandra Jenkins, an employee of the Rutherford County Chancery Court, confirmed

that, upon Ms. Coulter’s petition, Judge James Clayton, Jr., signed an ex parte order of protection

against the appellant on December 2, 1997. Thomas Whittaker Davis, an officer with the Rutherford

County Sheriff’s Department, further verified that he served the appellant with the ex parte order in

the early afternoon of December 3, 1997.

At approximately 6:34 p.m. on the evening of December 3, 1997, the appellant

walked into the lobby of the La Vergne Police Department and informed the dispatcher, Cassandra

Lowery, that he had just killed his wife. Lowery testified at the appellant’s trial that the appellant

appeared to be lucid, albeit somewhat distraught, and there was “blood spatter” on his t-shirt.

Because there were no other officers present at the police station, Lowery immediately radioed for

assistance. Stace L. Thompson, an officer with the Criminal Investigation Division of the La Vergne

Police Department, arrived at the station soon thereafter.

Thompson testified that, upon his arrival, he immediately approached the appellant.

In response to Thompson’s questioning, the appellant reiterated that he had killed his wife and also

disclosed that his wife was currently at the Coulter’s mobile home. At this point, Thompson briefly

searched the appellant for weapons, handcuffed him, and escorted him to a patrol car. The appellant

in turn directed Thompson to his home, where the officer discovered Ms. Coulter’s lifeless body

lying on the bed in her bedroom. A Taurus .38 Special revolver was lying on a table in the kitchen.

Nick Watson, a detective with the La Vergne Police Department, testified that he too

was dispatched to the appellant’s mobile home on the evening of the murder. According to Watson,

his “primary duty was to look at the crime scene and look around Ms. Coulter’s bedroom.” In

performing this task, Watson also collected evidence, including among other items the Taurus .38

Special revolver located on the kitchen table and the pillows and pillow cases located on Ms.

Coulter’s bed. Watson noted that the cylinder of the revolver contained two empty shell casings and

four live rounds. Moreover, when paramedics moved Ms. Coulter’s body, the police discovered a

spent bullet in the box springs of Ms. Coulter’s bed, near the headboard. Watson subsequently

obtained a second spent bullet from the medical examiner who performed the autopsy of Ms.

Coulter. The detective submitted the Taurus .38 Special revolver, the two empty shell casings, and

the two spent bullets to the Tennessee Bureau of Investigation (TBI)’s crime laboratory in Donelson,

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Tennessee. However, he acknowledged at trial that, after the TBI completed its testing, at least one

of the spent bullets and the pillows and pillowcases seized from Ms. Coulter’s bed were lost.

Watson further testified that, several days following the appellant’s offense, the police

obtained a warrant to search the appellant’s home. Among the items seized pursuant to the warrant

was a receipt reflecting the appellant’s purchase of the Taurus .38 Special revolver in 1996.

Moreover, the police seized notes and letters that were written by the appellant and addressed to his

wife. Some of these letters were undated, but others were dated July, August, September, and

October 1997. In the letters, the appellant complained about Ms. Coulter’s refusal to engage in

sexual relations with him and her alleged infidelity. Additionally, the appellant discussed Ms.

Coulter’s plans to leave him. In this regard, he occasionally expressed impatience that she had not

yet found another place to live, inquiring on one occasion, “Why are you still here? . . . Why can’t

you just pack your things and go away!? Why must you stay!” Alternately, the appellant expressed

anger that Ms. Coulter was “collecting boxes, getting newspapers and calling about places to live.”

Primarily, the appellant begged Ms. Coulter to remain with him and continue their marriage,

indicating that he could not live without her.

Harry E. Hollins, a sergeant with the La Vergne Police Department, testified at the

appellant’s trial that he was dispatched to the appellant’s mobile home at approximately 7:00 p.m.

on the evening of this offense, arriving sometime after Detective Watson. Following his arrival,

Hollins assumed the task of photographing the crime scene. As he performed this task, Hollins

particularly noted that there were several boxes in Ms. Coulter’s bedroom, and clothing was lying

“around the room,” apparently having been removed from closets or dressers. Hollins subsequently

observed that Ms. Coulter’s car, which was parked outside the mobile home, also contained clothing.

Later on the evening of the offense, Hollins returned to the police station and, along

with Officer Thompson, conducted an audio taped interview of the appellant. At trial, the State

played the audio cassette recording of the interview for the jury. According to the recording, the

appellant conceded during the interview that, prior to the murder, he and his wife were experiencing

marital difficulties. In this regard, the appellant noted that he and his wife had always slept in

separate bedrooms, but, one year prior to the murder, his wife informed him that she no longer loved

him. Moreover, approximately four months prior to the murder, the appellant discovered sexually

explicit letters written by his wife. On the basis of these letters, the appellant suspected that his wife

was engaged in a sexual liaison with another man. Despite persistent questioning by the appellant

during the ensuing months, Ms. Coulter refused to explain the letters. Rather, Ms. Coulter

repeatedly stated to the appellant her intention to leave him as soon as she was financially able to

support herself. She also informed the appellant that she would obtain a restraining order against

him when she moved.

The appellant additionally confirmed that, on December 3, 1997, while Ms. Coulter

was at work, a police officer visited the Coulters’ home and served him with an ex parte order of

protection issued on behalf of Ms. Coulter. Upon serving the appellant with the ex parte order, the

officer recommended to the appellant that he temporarily leave his home until the court hearing on

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the order of protection. The officer explained that, if the appellant remained in the same home with

his wife, he would be vulnerable to false accusations by his wife of threatening or assaultive behavior

and to consequent arrest.

According to the appellant, he was frightened by the officer’s comments. Therefore,

following the officer’s departure, the appellant telephoned his workplace in order to find out if he

could live at the company’s headquarters for several days. The company’s owner, however, was not

available. Therefore, the appellant left a message for his employer and went to his bedroom, where

he slept until 5:30 p.m.

When the appellant awakened, his wife had returned home. The appellant briefly

confronted her concerning the order of protection, after which encounter Ms. Coulter went to her

bedroom and slept, and the appellant returned to his own bedroom. In his bedroom, the appellant

opened his closet and removed his gun from the “duty belt” that he wore while at work. He briefly

considered whether or not he should replace the gun in the duty belt and go to work. Instead, he

placed the gun on a table and reflected upon his wife’s behavior. The appellant especially felt

betrayed by Ms. Coulter’s acquisition of an order of protection. As the appellant continued to reflect

upon Ms. Coulter’s betrayal, he smoked several cigarettes and drank several sodas. He also picked

up his gun and laid it down several times.

Finally, the appellant picked up his gun, obtained a pillow from his bed, and walked

to his wife’s bedroom. The bedroom was dark. Yet, instead of turning on the lights, the appellant

approached his wife’s bed, visualized his wife’s head, placed the pillow on what he believed to be

his wife’s head, and placed the gun against the pillow. According to the appellant, he could feel the

trigger of the gun. He then heard a “pop,” whereupon Ms. Coulter began screaming, and the

appellant felt something strike his legs. The appellant asserted during the interview that, at this

point, he could no longer feel the gun in his hand and was unsure of the location of the pillow. The

appellant heard a second “pop” before running to the kitchen.

In the kitchen, the appellant placed the gun on a table and sat down for several

moments. Afterwards, he returned to his wife’s bedroom and turned on the lights. His wife

appeared to be dead; therefore, he retrieved his gun and returned to his own bedroom, where he

smoked another cigarette and contemplated suicide. Ultimately, however, the appellant decided to

surrender to the police. He put on his shoes, placed the gun on the kitchen table once more, and

drove to the police station.

During the audio taped interview, the appellant asserted his belief that he had

murdered his wife because he had “snapped or something [-] it just . . . all pilling up on me and I just

went bazirk.” The appellant explained:

Cause like I said I was feeling a lot of emotions I was scared I was

angry uh I just didn’t know which way to turn and I was probably not

man enough to take a hold of my emotions and uh done the wrong

thing.

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Dr. Charles Warren Harlan, the acting medical examiner for Rutherford County,

testified at trial that he performed the autopsy of Ms. Coulter. Dr. Harlan related that Ms. Coulter

suffered two entry gunshot wounds to the head and one exit gunshot wound to the neck. One of the

entry gunshot wounds was located on Ms. Coulter’s left cheek. The bullet that caused this wound

exited Ms. Coulter’s body on the anterior right side of her neck. Dr. Harlan noted that the gunshot

wound to the victim’s left cheek did not possess the characteristics of a “close” or “contact” gunshot

wound. However, he emphasized that the presence of an “intervening or intermediary material,”

such as a pillow, between the gun and Ms. Coulter’s head might explain the absence of such

characteristics. Dr. Harlan also observed that “[t]his particular bullet struck no vital structure.”

Indeed, he noted that, “[f]ollowing receipt of [the wounds to Ms. Coulter’s left check and neck] . .

. there would be no loss of physical ability for mobility, for the ability to walk, talk, etc.” He also

opined that Ms. Coulter would have been capable of screaming following the infliction of these

wounds.

As to the second entry gunshot wound, Dr. Harlan testified that this wound was

located on the back of Ms. Coulter’s head. According to Dr. Harlan, this gunshot wound did possess

the characteristics of a contact gunshot wound. Moreover, the bullet that caused this wound passed

through significant portions of Ms. Coulter’s brain and caused her death. Because this bullet was

still lodged in Ms. Coulter’s brain at the time of the autopsy, Dr. Harlan was able to recover the

bullet and provide it to the police.

Donald Carman, a special agent employed by the TBI at its crime laboratory in

Donelson, Tennessee, testified on behalf of the State that he specializes in forensic firearms

identification and that he examined the Taurus .38 Special revolver recovered from the kitchen table

in the appellant’s home, the spent bullet recovered from the box springs of Ms. Coulter’s bed, and

the spent bullet recovered from Ms. Coulter’s brain. Upon testing the evidence, Carman determined

that both bullets had been fired from the Taurus .38 Special revolver.

Carman further testified that the Taurus .38 Special revolver appeared to be

functioning properly and could be fired “single action” or “double action.” He explained:

Single action . . . mean[s] that I manually pull back on the hammer

until it is cocked, then I pull the trigger like that. You could fire it

that way. That’s single action.

Double action would be where I just pull through the trigger itself.

Carman observed that, in order to fire the weapon “single action,” a person would need to apply four

and one-half pounds of pressure to the trigger. In contrast, in order to fire the weapon “double

action,” a person would need to apply a little more than twelve pounds of pressure to the trigger.

The appellant did not testify on his own behalf at trial, nor did he present evidence

refuting the State’s claim that he had killed his wife. Rather, he attempted to demonstrate that, as

a result of a mental defect, he did not possess the mental state necessary to commit the offense of

first degree premeditated murder. In this regard, the appellant presented the testimony of Hershel

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Dean Wolfe, a friend and former co-worker. Wolfe testified that, in 1992, he and the appellant were

employed as aircraft mechanics at “Cross Continent.” While at work, the appellant fell fifteen or

twenty feet from scaffolding and hit his head against a concrete floor, suffering severe injuries.

Wolfe noted certain changes in the appellant following the accident:

Well, I’ll tell you, Larry is an even person. It’s hard to tell the

difference before and after. Only he had some withdrawal. He had

depression, and he complained a lot about headaches and his pain that

he was having in his hands and the loss of the feeling that he had in

his hands.

Wolfe further recalled that, following the accident, the appellant was less able to concentrate and

appeared to be suffering memory deficits. However, the appellant “did not evidence hallucinations,

delusions, or bizarre behavior,” nor did the appellant experience any blackouts.

Following the appellant’s offense in this case, Wolfe visited his friend in jail.

According to Wolfe, the appellant stated during the visit that he could not recall the murder, but,

“when [he] came to from blacking out[,] . . . [Ms. Coulter] was dead and . . . the gun was on the

table, so he figured he must have shot her.” The appellant additionally informed Wolfe that he was

hearing voices and was experiencing dreams and visions, including seeing a “dark man.”

Judy Marie Prince, an ex-wife of the appellant, also testified on his behalf. She

recounted that she was married to the appellant for four years, divorcing him in 1992. Prince

asserted that the appellant was a good husband. She recalled:

He was very kind, very loving. I could go to the grocery store and

come home, and he would have gone out and bought flowers and

some other little gift, and it would be waiting for me on the table. We

did things together. We were very close. Wherever I went, he

usually went. It was very rare that he would let me go to the grocery

store by myself. He always went with me. So we were just kind of

one together.

Prince conceded that, during her marriage to the appellant, he was very “jealous of

[her] time,” including the time that she spent with her children from a prior relationship. Moreover,

the appellant discouraged her from visiting other family members, again demanding her undivided

attention. Nevertheless, Prince maintained that the appellant never argued with her during their

marriage. Prince explained that the appellant was “very timid and like he was beat down. And he

wouldn’t even voice his opinion. Even if he didn’t like something, he wouldn’t voice his opinion.”

Instead, the appellant expressed his anger or discontent by “tighten[ing] the lids on [Prince’s] Coke

bottle[s].” Ultimately, Prince divorced the appellant because he was not adequately mature and

stable. According to Prince, the appellant opposed their divorce and begged Prince to remain with

him but never threatened her with violence.

The appellant’s accident at “Cross Continent” and his resultant head injury occurred

following Prince’s divorce from the appellant. Nevertheless, upon the appellant’s release from the

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hospital, Prince cared for the appellant for several months. Prince recounted that, like Wolfe, she

noticed certain changes in the appellant. She related to the jury:

I think the biggest [change] was his memory. And then his - - I don’t

know if it was impatience or intolerance or he couldn’t wait. He

acted impulsively. And then he couldn’t remember.

Prince testified concerning several specific incidents in which the appellant uncharacteristically

engaged in impulsive shopping. However, Prince acknowledged that, at the time of the murder, she

had not seen the appellant for approximately one year and had not spoken with the appellant on the

telephone for six months.

Sonya Craig, Prince’s daughter, also testified at the appellant’s trial. She recalled

that, during her mother’s marriage to the appellant, she lived with them for approximately one and

one-half years. She observed that, during this time, she never heard the appellant threaten anyone

with physical harm or even raise his voice. Rather, the appellant was “passive” and generally

withdrew to his room whenever he was angry. In particular, Craig noted that, when she lived with

her mother and the appellant, she had a mentally handicapped child, and the appellant was able to

interact with the child without becoming frustrated. Craig conceded that she had not seen or spoken

with the appellant since “shortly after his accident at work.”

Finally, the appellant presented the testimony of Judith Weiss, a licensed clinical

psychologist specializing in neuropsychology. According to Dr. Weiss, the appellant was referred

to her in 1993 because he had been denied workers’ compensation for a closed head injury that he

claimed to have suffered when he fell twenty feet from scaffolding at his workplace. Dr. Weiss

noted that the Diagnostic and Statistical Manual of Mental Disorders classifies closed head injuries

as mental defects. However, she recalled that, at the time of her evaluation, the appellant had not

been examined by a neurologist. Accordingly, “there [was] no documented medical record of any

brain injury.” Nevertheless, upon evaluating the appellant, Dr. Weiss diagnosed a closed head

injury. Due to Dr. Weiss’ diagnosis, the appellant was awarded workers’ compensation.

With respect to closed head injuries, Dr. Weiss related to the jury that they invariably

entail some damage to the brain’s frontal lobe and to the frontal tips of the brain’s temporal lobes.

Moreover, she testified that closed head injuries are associated with “a shearing or tearing of little

fibers throughout the brain,” including the subcortical or “inner part” of the brain, and frequently

produce neurochemical imbalances. Due to these common results of closed head injuries, people

suffering such injuries exhibit similar symptoms.

Providing examples, Dr. Weiss noted that, because the frontal lobe “is the part of our

brain that is responsible for judgment and forethought,” individuals with closed head injuries “can

lose a significant amount of reasoning and judgment.” She further remarked that, because the

temporal lobes “are responsible for storing memory,” such individuals often suffer “memory

problems.” Additionally, due to “the shearing of . . . fibers,” people with closed head injuries suffer

“[h]eadaches, irritability, sensitivity to noise, sensitivity to light.” Finally, Dr. Weiss testified that

neurochemical imbalances may manifest as labile or unstable emotions, depression, anxiety, and

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withdrawal. Indeed, depending upon the kind of neurochemical imbalance, a person may suffer a

“wide range of problems, ranging from depression to eating disorders to alcoholism to psychotic

disorders, schizophrenia.” In particular, she observed that neurochemical imbalances may contribute

to impulsive behavior:

Just to react to some circumstance at the moment without thinking

about it is more common in someone who’s had a closed head injury

than to sit down and say if I do this, this is going to happen; if I do

this, this will happen. It’s more likely that one does something and

then looks at one’s hand and says what did you do.

Dr. Weiss assured the jury that, prior to diagnosing the appellant with a closed head

injury, she interviewed the appellant on two occasions: March 24, 1993, and March 30, 1993.

During these interviews, Dr. Weiss obtained information concerning the appellant, including his

“lengthy history of successful employment,” the details of his accident at “Cross Continent,” and the

impact of the accident upon his life, including his daily activities. She also administered various

psychological tests, including the Wechsler Adult Intelligence Scale-Revised (WAIS-R), the

Woodcock-Johnson Test of Cognitive Ability-Revised, the Peabody Picture Vocabulary Test-

Revised, the Detroit Test of Learning Aptitude-Revised, the Goldman-Fristoe-Woodcock Test of

Auditory Discrimination, the Wide Range Achievement Test-Revised, the Peabody Individual

Achievement Test-Revised, the Halstead-Reitan Neuropsychological Battery, and the Sixteen

Personality Factor Test.

Dr. Weiss conceded that the appellant performed well on a majority of the

psychological tests. However, she asserted that specific aspects of the appellant’s performance

supported her diagnosis of a closed head injury. For example, on the WAIS-R, the appellant

achieved a full-scale intelligence quotient (I.Q.) of ninety-three (93) or average. Yet, there was a

disparity of twenty-four points between the appellant’s verbal intelligence quotient, which was

eighty-three (83) or “low average,” and his performance intelligence quotient, which was 107 or

average. Dr. Weiss observed that such a significant disparity was unusual in an “unimpaired”

person, and the disparity suggested a “loss” in the appellant’s verbal intelligence quotient.

Dr. Weiss also cited the appellant’s performance on specific subtests of the WAIS-R

in support of her diagnosis. While acknowledging that the appellant performed at a “high average”

level on subtests measuring logical sequencing and puzzle construction, Dr. Weiss noted that the

appellant experienced difficulty on the portion of the scale that measures “common sense reasoning.”

Moreover, the appellant experienced significant difficulties in completing the subtest measuring

“mental arithmetic,” difficulties that could reflect short-term memory deficits. Finally, the appellant

experienced difficulty reproducing “block designs,” even though “you would expect a mechanic to

do extremely well, above average.” According to Dr. Weiss, people with “some form of central

nervous system dysfunction, some form of brain damage, can have a great deal of difficulty with [the

block design] test.”

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The academic achievement tests also produced mixed results. The tests measured the

appellant’s reading comprehension as “average for an adult.” In contrast, the appellant performed

in the bottom sixth percentile of test subjects in reading words aloud out of context, in the bottom

fifth percentile in spelling, and in the bottom third percentile in arithmetic.

Similarly, on the Woodcock-Johnson Test of Cognitive Ability-Revised, the appellant

performed at the highest possible level in following oral directions accompanied by a visual

component, yet performed at the level of a nine-year-old in simply repeating words. Moreover, the

appellant’s

performance initially in . . . repeating . . . sentences was at the six year

old level and the fourth percentile for someone his age, so that 96

percent of people his age at the time I tested him would have done

better in repeating sentences.

Dr. Weiss opined that these test results also reflected cognitive dysfunction.

Finally, the appellant performed well overall on the Halstead-Reitan

Neuropsychological Battery. However, Dr. Weiss noted that this battery of tests “was developed to

look at the outer surface of the brain, not subcortical damage.” She explained that, therefore, the

battery of tests is not particularly sensitive to closed head injuries. She further remarked that the test

in the battery that is most sensitive to such injuries is the Seashore Rhythm Test, which measures

“sustained auditory attention span, . . . how well you can listen over a period of time.” Dr. Weiss

related that the appellant experienced difficulties with this test “suggestive of problems with . . .

central auditory processing disorder, that the subcortical portions of the brain that deal with auditory

information are not working well as a result of the injury. And, therefore, auditory input is not

handled well by the brain.” The results of the Goldman-Fristoe-Woodcock Test of Auditory

Discrimination also “supported the presence of subcortical contribution to inability to handle

auditory information.”

Dr. Weiss testified that people with closed head injuries may or may not get better

over time; however, “[h]istorically, reason and judgment and memory are the most difficult to

rehabilitate.” Moreover, Dr. Weiss testified that she interviewed the appellant again in 1999

following this offense, although she did not re-administer any psychological tests, nor did she

interview the police or the appellant’s co-workers, friends, and family members. She also reviewed

a report by Samuel N. Craddock, the State’s psychologist, concerning his recent evaluation of the

appellant. Dr. Weiss concluded that the appellant “continues to be impulsive and to use poor

judgment, to be irritable, to be withdrawn.” She stated that it was “highly improbable [that] he acts

with reflection and judgment.” Instead, “[the appellant] responds to things in the environment at the

moment without thinking about aftermath.”

Accordingly, Dr. Weiss opined that it was “improbable” that the appellant was acting

with reflection and judgment at the time that he killed his wife. Indeed, she noted that the appellant

informed her during the 1999 interview that, at the time of this offense, “he basically went into

automatic pilot and really is not sure of how anything happened in terms of the shooting.” She

-11-

asserted that this claim was consistent with statements made by the appellant during his audio taped

interview with the police.

In rebuttal of Dr. Weiss’ testimony, the State presented the testimony of Dr.

Craddock, a forensic psychologist at the Middle Tennessee Mental Health Institute (MTMHI). Dr.

Craddock testified that, following the instant offense, the appellant was admitted to MTMHI for four

days because he claimed to be experiencing depression and had threatened violence both to himself

and to other individuals. The appellant was provided medication and returned to the jail.

Subsequently, on October 27, 1998, the appellant was again admitted to MTMHI. On this occasion,

the court ordered Dr. Craddock to perform a forensic evaluation of the appellant in order to

determine both the appellant’s competency to stand trial and his mental condition at the time of the

instant offense. The appellant stayed in the residential unit at MTMHI for twenty-four days.

In conducting a forensic evaluation of the appellant, Dr. Craddock was joined by other

members of the staff at MTMHI, including Dr. Rokeya Farooque, a psychiatrist; Rebecca Smith, a

social worker; and several nurses who recorded their observations of the appellant during his stay

in the residential unit. In addition to their own observations, members of the evaluation team

collected information from sources including the appellant, the appellant’s co-workers, the

appellant’s acquaintances or friends, the appellant’s mother, and the police. Dr. Craddock also

listened to the audio cassette recording of the appellant’s interview with the police. Moreover, Dr.

Craddock administered several psychological tests. He administered the Shipley Institute of Living

Scale, a test designed to measure vocabulary, reading comprehension, and reasoning. He

administered the Trail Making Test and portions of the Halstead-Reitan Neuropsychological Battery,

both of which are sensitive to cerebral “insult” or damage. He administered the Milan Clinical

Multi-Axial Inventory and the Personality Assessment Inventory, tests designed to detect personality

disorders. Finally, Dr. Craddock reviewed information that he had received from Dr. Weiss,

including the results of the Minnesota Multiphasic Inventory, Second Edition (MMPI-II), that Dr.

Weiss administered to the appellant on July 4, 1998.

As to the results of the psychological testing, Dr. Craddock confirmed that the

appellant possesses average or near-average intelligence but, at the time of the forensic evaluation,

was also exhibiting symptoms of a “mental defect.” Thus, Dr. Craddock agreed with Dr. Weiss’

diagnosis of a closed head injury and further agreed that the appellant had thereby suffered some

impairment in reasoning and judgment. Specifically, Dr. Craddock noted that the Shipley Institute

of Living Scale measured the appellant’s reasoning at an eleven-year-old level. Dr. Craddock

recalled that the appellant “made a good effort on the test sensitive to brain damage. I don’t think

he was trying to be deceptive in that respect.”

Dr. Craddock also testified that, at the time of the forensic evaluation, the appellant

appeared to be suffering a “mental disease.” Specifically, Dr. Craddock diagnosed the appellant with

an “adjustment disorder.” Moreover, Dr. Craddock observed in the appellant “[p]resent features of

anxiety and depression as well as features of a personality disorder with passive/aggressive, self-

defeating, and schizoid components.” However, the psychologist opined that, in contrast to the

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appellant’s “effort on the test sensitive to brain damage,” the appellant exaggerated symptoms on

the tests designed to detect personality disorders.

Dr. Craddock noted that, notwithstanding any mental disease or defect, the appellant’s

behavior while residing at MTMHI was “unremarkable,” and the appellant experienced no

difficulties interacting with either members of the staff or other inmates. Indeed, Dr. Craddock

remarked that the appellant demonstrated “good judgment” by avoiding confrontations with other

inmates who were “mentally disturbed” or had “a history of acting out.” Dr. Craddock further

recalled:

I didn’t see any bizarre behavior. He was polite with me. He was

cordial. I thought we established a good rapport. . . . I did not hear

him express complaints. He seemed to be able to live with our

policies and, I enjoyed working with him.

Dr. Craddock elaborated that the appellant did not appear to be experiencing hallucinations during

his stay at MTMHI, nor did he complain of hallucinations. Rather, the appellant appeared to be alert

and oriented and made lucid and coherent statements to the psychologist.

Dr. Craddock concluded that, despite any mental disease or defect, the appellant “was

functioning within normal expectations or bounds” at the time of the instant offense and possessed

the capacity to form the requisite mental state, i.e., intent and premeditation. Dr. Craddock conceded

that he “was not saying whether he exercised that capacity. I’m saying he possessed the capacity.”

Rokeya Farooque, the psychiatrist employed by the forensic services unit of MTMHI,

also testified on behalf of the State. Dr. Farooque confirmed that she participated in the evaluation

of the appellant. She recalled that, while residing at MTMHI, the appellant complained of difficulty

sleeping and of dreams. However, she observed:

Mr. Coulter was very cooperative, pleasant with us. Whenever we

interviewed, he talked coherently without any problem. He gave us

whatever question we asked. He did not have any problem while he

was with us or while he was in the unit. He was cooperative with us

and talked about his dream problems, sleeping problems, that I treated

with Vistaril.

Due to the appellant’s claims of a closed head injury, Dr. Farooque additionally ordered an

electroencephalogram (EEG) and a CT scan of the appellant’s head. Both the EEG and the CT scan

yielded results within normal ranges. In sum, Dr. Farooque concurred in Dr. Craddock’s

conclusions.

At the close of the trial and following deliberations, the jury returned a verdict of guilt

of first degree premeditated murder. Because the State sought neither the death penalty nor a

sentence of life imprisonment without parole, the trial court sentenced the appellant to life

imprisonment in the Tennessee Department of Correction.

II. Analysis

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a. Motion to Disqualify the District Attorney General’s Office

In appealing his conviction of first degree premeditated murder, the appellant first

challenges the trial court’s denial of his pre-trial motion to disqualify the office of the District

Attorney General for the Sixteenth Judicial District from prosecuting his case. The appellant asserts

that “the Trial Court’s ruling was fundamentally unfair, inappropriate and casts doubt over the

fairness of the entire proceeding and the entire judicial process if allowed to stand.” In support of

his claim, the appellant notes that his original attorney in this case was William Osborne, an assistant

district public defender for the Sixteenth Judicial District, and that, prior to the appellant’s trial,

Osborne accepted employment with the District Attorney General’s office in the same judicial

district. The State responds that the District Attorney General’s office utilized adequate procedures

to insulate Osborne from the appellant’s case. We must agree with the State.

1. Trial Court Proceedings

The appellant filed his disqualification motion on October 8, 1998, and the trial court

conducted an evidentiary hearing on the motion on December 7, 1998. At the evidentiary hearing,

the appellant presented the testimony of Gerald Melton, the District Public Defender for the

Sixteenth Judicial District. Melton confirmed that his office was initially appointed to represent the

appellant in this case. According to the record, the appointment occurred on January 8, 1998.

Melton additionally recalled that he assigned the appellant’s case to William Osborne, an assistant

employed by his office, and also agreed to act as co-counsel.

Melton maintained that, during the course of Osborne’s representation of the

appellant, the attorney received confidential or privileged communications from the appellant, which

communications Osborne recorded in the appellant’s case file. In this regard, Melton emphasized

that Osborne was the lead attorney in the appellant’s case:

[Osborne] . . . undert[ook] the interviews with Mr. Coulter. I don’t

recall that I . . . ever met Mr. Coulter. . . . My primary involvement

[was] working with Mr. Osborne to do things toward the defense.

We collaborated with one another at different times and talked about

the facts of the case and talked about areas in which we would pursue

a defense, the possibility of various expert services, and things of this

nature.

Additionally, the record reflects that Osborne filed several motions with the Rutherford County

Circuit Court on behalf of the appellant, including a motion for a bill of particulars, a motion for

discovery, and a motion for a mental evaluation of the appellant. Osborne also filed a notice of the

appellant’s intent to introduce expert testimony concerning his mental condition at the time of this

offense.

According to Melton, Osborne left the District Public Defender’s office in September

1998 in order to accept a position as an assistant district attorney general with the office of the

District Attorney General for the Sixteenth Judicial District. At that time, Melton and Osborne

discussed the potential development of conflicts of interest in numerous cases, including the instant

case. Moreover, at the request of the District Public Defender’s office, the trial court permitted that

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office to withdraw from representation of the appellant and appointed attorney Darrell Scarlett to

represent the appellant. Melton explained that his office was concerned about a possible appearance

of impropriety due to Osborne’s employment by the District Attorney General’s office. The trial

court’s order appointing Darrell Scarlett includes the following notation: “Due to a conflict with the

District Public Defender, the above Attorney is appointed.”

In addition to Melton’s testimony, the appellant presented the testimony of David

Jones, the Rutherford County Building Official. Jones testified that the District Attorney General’s

office occupied space on the third floor of the “Judicial Building.” According to Jones, this space

consisted of 2,111 square feet.

In rebuttal, the State presented the testimony of William Osborne, the appellant’s

former attorney. Osborne confirmed that, from June 1, 1996, until August 29, 1998, he was an

assistant district public defender in the Sixteenth Judicial District. He also confirmed that he initially

represented the appellant in the instant case and received confidential or privileged communications

from the appellant during the course of his representation. Finally, he confirmed that, on August 31,

1998, he accepted a position as an assistant district attorney general in the same judicial district.

With respect to his change of employment, Osborne recalled that, prior to being

sworn in as an assistant district attorney general, he engaged in discussions with both Melton and

the District Attorney General, William C. Whitesell, Jr., concerning the procedures required to avoid

any conflicts of interest or any appearance of impropriety. Due to these discussions, Whitesell

determined that he would not assign Osborne to prosecute cases in the Rutherford County Circuit

Court, the court in which Osborne had provided representation as an assistant district public

defender. Moreover, on September 1, 1998, the day on which Osborne was sworn in as an assistant

district attorney general, Whitesell authorized Osborne’s circulation of a memorandum to the

attorneys and other staff members of the District Attorney General’s office. In this memorandum,

Osborne alerted staff members to his employment by the District Attorney General’s office and to

the danger of conflicts of interest due to his prior employment as an assistant district public defender.

Specifically, Osborne acknowledged his continuing duty to preserve the confidences of his former

clients. He also advised staff members of the need to shield him from exposure to any cases pending

in the Rutherford County Circuit Court in which he had participated as an assistant district public

defender or in which the District Public Defender’s office had participated during Osborne’s

employment by that office. Osborne concluded in the memorandum that any discussions pertaining

to those cases should be conducted outside his presence and that he should be denied access to the

files in those cases.

Osborne additionally testified that, since becoming an assistant district attorney

general, he had not discussed the appellant’s case with anyone other than the appellant’s new

attorney, nor had he seen the prosecution’s file in the appellant’s case. Indeed, Osborne asserted that

he had had no contact with anyone in the District Attorney General’s office concerning the

appellant’s case. He conceded that he frequently encountered the prosecutors assigned to the

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appellant’s case. He noted, however, that his office and the office of J. Paul Newman, the principal

prosecutor in the appellant’s case, were located on different floors.

Osborne also conceded that the staff of the District Attorney General’s office

frequently drank coffee and conversed together in the mornings. However, he could only recall one

occasion on which he overheard staff members discussing the appellant’s case. Specifically, one

staff member inquired concerning the date of a court hearing in the appellant’s case. On that

occasion, Osborne immediately departed the room. Osborne assured the court that, should anyone

attempt to discuss the appellant’s case with him, he would immediately notify the court.

The State next presented the testimony of William C. Whitesell, Jr., the District

Attorney General for the Sixteenth Judicial District. Whitesell confirmed that, when he hired

Osborne, he discussed with Osborne potential conflicts of interest. Due to these potential conflicts,

Whitesell assigned Osborne to prosecute cases in the Rutherford County General Sessions Court

rather than in the Rutherford County Circuit Court. Whitesell also directed members of his staff to

avoid any discussions with Osborne concerning the appellant’s case and other cases in which

Osborne had participated as an assistant district public defender or in which the District Public

Defender’s office had participated during Osborne’s employment by that office. Whitesell noted

that, in light of the charged offense, “[the appellant’s] case was given special attention.” Indeed,

Whitesell asserted that, to his knowledge, the file in the appellant’s case was being kept at a location

outside the District Attorney General’s office. He assured the court that, should he become aware

of any impropriety, he would immediately notify the court. Finally, Whitesell conceded that,

notwithstanding the procedures employed by his office, some might perceive an appearance of

impropriety in the appellant’s case due to Osborne’s employment by his office.

Both the State and the appellant stipulated that, were Assistant District Attorney

General J. Paul Newman to testify, he would state that he obtained possession of the file in the

appellant’s case prior to Osborne’s employment as an assistant district attorney general. Moreover,

Newman would state that, since obtaining possession of the file, he had kept the file at his home with

the exception of one occasion on which he brought the file to the office in order to allow the

appellant’s attorney to view a videotape cassette. Newman assured the court that he intended to keep

the file at his home until the appellant’s trial.

On December 22, 1998, the trial court denied the appellant’s motion to disqualify the

entire District Attorney General’s office. In its order, the trial court concluded:

After careful consideration of the motion to disqualify the District

Attorney General’s office in the prosecution of this case, I find that

Mr. Osborne has not participated either directly or indirectly in the

Coulter case. Further, I find that the Memorandum of procedure

employed by the District Attorney’s office has effectively prevented

the possibility that confidences of Mr. Coulter would be disclosed by

Mr. Osborne to the others in the office intentionally or inadvertently.

These affirmative actions overcome any appearance of impropriety.

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Therefore, the Motion is overruled. The District Attorney and his

staff are ordered to strictly follow the Memorandum and to have no

discussion either directly or indirectly with Mr. Osborne concerning

the Coulter case. They are also not to discuss this case in Mr.

Osborne’s presence. Mr. Osborne is ordered to continue protecting

the confidence of Mr. Coulter as he has in the past. If it comes to the

attention of the Defendant that this order has been violated they may

raise this issue again with any supporting proof.

I find that the original order appointing Mr. Scarlett is to be amended

to reflect that his appointment was an accommodation to the District

Public Defender’s office and to dispel any potential appearances of

impropriety. I find that no actual conflict exist[ed] for that office to

continue in the representation of Mr. Coulter.

2. Analysis

In reviewing the trial court’s denial of the appellant’s motion, we initially note that

improper or unethical participation by a prosecutor or a prosecutor’s office in a criminal case may

implicate the basic constitutional rights of a defendant, “the orderly administration of justice, the

dignity of the courts, the honor and trustworthiness of the legal profession[,] and the interests of the

public at large.” State v. Phillips, 672 S.W.2d 427, 435 (Tenn. Crim. App. 1984); see also State v.

Willie Claybrook, No. 3, 1992 WL 17546, at *8 (Tenn. Crim. App. at Jackson, February 5, 1992).

In protecting these concerns, Tennessee courts generally turn for guidance to our Code of

Professional Responsibility, as adopted by our supreme court in Tenn. Sup. Ct. Rule 8, and to court-

created principles of professional conduct. State v. Ricky Raymond Bryan, No. M1999-00854-CCA-

R9-CD, 2000 WL 1131890, at **3-8 (Tenn. Crim. App. at Nashville, August 4, 2000). A trial

court’s application of these legal standards to a disqualification motion will not be disturbed on

appeal absent an abuse of discretion. State v. Culbreath, 30 S.W.3d 309, 313 (Tenn. 2000); State

v. Tate, 925 S.W.2d 548, 549-550 (Tenn. Crim. App. 1995); John M. Clinard v. C. Roger

Blackwood, No. M1998-00555-SC-R11-CV, 2001 WL 530834, at *1 (Tenn. at Nashville, May 18,

2001); State v. Steve Mason, No. 01C01-9603-CC-00103, 1997 WL 311900, at *6 (Tenn. Crim.

App. at Nashville, June 6, 1997); Claybrook, No. 3, 1992 WL 17546, at *12. An abuse of discretion

might comprise the application of an incorrect legal standard or a decision that is against logic or

reasoning and that caused an injustice to the complaining party. State v. Shirley, 6 S.W.3d 243, 247

(Tenn. 1999); State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997). In determining whether the trial

court has applied an incorrect legal standard, “‘appellate courts are not required to defer to a trial

court’s interpretation of the Code of Professional Responsibility or to its decisions regarding legal

standards applicable to a particular disqualification motion.’” Bryan, No. M1999-00854-CCA-R9-

CD, 2000 WL 1131890, at *2; cf. Clinard, No. M1998-00555-SC-R11-CV, 2001 WL 530834, at *2.

For purposes of deciding whether a prosecutor or his office should be disqualified

from participation in a criminal case, this court and our supreme court have adopted the following

analytical framework: (1) Do the circumstances of the defendant’s case establish an actual conflict

-17-

of interest that requires the disqualification of a prosecutor? (2) Do the circumstances of the

defendant’s case create an appearance of impropriety that requires the disqualification of a

prosecutor? (3) If either theory requires the disqualification of a prosecutor, is the entire District

Attorney General’s office likewise disqualified? Culbreath, 30 S.W.3d at 312-313; Tate, 925

S.W.2d at 550; Mason, No. 01C01-9603-CC-00103, 1997 WL 311900, at *6.

In this case, it is obvious that an actual conflict of interest required Osborne’s

disqualification from any participation in the appellant’s case. Reviewing the applicable legal

standards, Tenn. Sup. Ct. Rule 8, EC 5-1 states that “[t]he professional judgment of a lawyer should

be exercised, within the bounds of the law, solely for the benefit of the client and free of

compromising interests and loyalties.” Citing this ethical consideration, our supreme court has

observed in turn that “an actual conflict of interest . . . includes any circumstances in which an

attorney cannot exercise his or her independent professional judgment free of ‘compromising

interests and loyalties.’” Culbreath, 30 S.W.3d at 312. Accordingly, Tenn. Sup. Ct. Rule 8, DR 5-

105(A) prohibits a lawyer from accepting proffered employment “if it would be likely to involve the

lawyer in representing differing interests.” DR 5-105 does not expressly address an attorney’s

successive (as opposed to simultaneous or multiple) representation of differing interests. Cf.

Tennessee Rules of Professional Conduct 1.9, 1.11 (Proposed Official Draft 2000). Nevertheless,

it is clear that actual conflicts of interest may arise in cases involving successive representation. See,

e.g., Clinard, No. M1998-00555-SC-R11-CV, 2001 WL 530834, at **1-3; State v. Frank A. Hoggett,

No. 01C01-9003-CR-00073, 1990 WL 172632, at *1 (Tenn. Crim. App. at Nashville, November 9,

1990); William R. Mills v. Donald E. Crane, No. 66, 1987 WL 9165, at **4-5 (Tenn. App. at

Knoxville, April 10, 1987). Moreover, it is clear that one of the primary concerns in such cases is

the possibility that the attorney may use or divulge on behalf of the new client confidential or

privileged information obtained from the former client. See Tenn. Sup. Ct. R. 8, DR 4-101.

Indeed, broadly speaking, “a lawyer may not represent interests materially adverse

to those of a former client if the subject matter of the new representation is substantially related to

the subject matter of the previous representation.” John M. Clinard v. C. Roger Blackwood, No.

01A01-9801-CV-00029, 1999 WL 976582, at *7 (Tenn. App. at Nashville, October 28, 1999),

affirmed by Clinard, No. M1998-00555-SC-R11-CV, 2001 WL 530834, at *8. Under those

circumstances, a presumption arises that the attorney received confidential or privileged information

during his prior representation, raising the specter that the attorney will use or divulge the

information on behalf of the new client. Mills, No. 66, 1987 WL 9165, at *5. Of course, in this

case, it was undisputed that Osborne both had previously represented the appellant in the pending

prosecution and had received his confidences. As this court has previously observed,

“[w]hen an attorney has once been engaged and received the

confidences of his client, he cannot enter the services of those whose

interests are adverse to that of his client or former client. . . . [Thus,]

[a]n attorney cannot be permitted to participate in the prosecution of

a criminal case if, by reason of his professional relation with the

accused, he has acquired knowledge of facts upon which the

prosecution is predicated, or which are closely interwoven therewith.”

-18-

Phillips, 672 S.W.2d at 430-431 (quoting Autry v. State, 430 S.W.2d 808, 809 (Tenn. Crim. App.

1967)); see also Tate, 925 S.W.2d at 553; State v. Locust, 914 S.W.2d 554, 557 (Tenn. Crim. App.

1995); Mattress, 564 S.W.2d at 680; Claybrook, No. 3, 1992 WL 17546, at *7. In short, having

defended the appellant in this case and received his confidences, Osborne could not then “switch

sides” and represent the State in prosecuting the appellant.

We turn then to the primary issue in this appeal, namely whether Osborne’s

disqualification due to an actual conflict of interest likewise required the disqualification of the entire

District Attorney General’s office. As noted by our supreme court in Clinard, No. M1998-00555-

SC-R11-CV, 2001 WL 530834, at **2-3, Tenn. Sup. Ct. Rule 8, DR 5-105(D) provides:

If a lawyer is required to decline employment or to withdraw from

employment under a Disciplinary Rule, no partner, or associate, or

any other lawyer affiliated with that lawyer or that lawyer’s firm may

accept or continue such employment.

However, the court in Clinard, No. M1998-00555-SC-R11-CV, 2001 WL 530834, at *3 (footnote

omitted), also affirmed that, “[i]n these days of monolithic law firms and increased opportunity and

mobility for both clients and attorneys, a per se rule of vicarious disqualification is not feasible.”

Accordingly, as an exception to the DR 5-105(D) rule of vicarious disqualification, the court adopted

the case-by-case analysis employed by the United States Court of Appeals for the Seventh Circuit

in Schiessle v. Stephens, 717 F.2d 417, 420 (7th Cir. 1983), in determining whether an attorney’s

prior representation mandates vicarious disqualification. Clinard, No. M1998-00555-SC-R11-CV,

2001 WL 530834, at **3-4; see also See also Board of Professional Responsibility of the Supreme

Court of Tennessee, Formal Ethics Op. No. 89-F-118, 1989 WL 534365, at **2-3 (March 10, 1989).

Having already determined that Osborne previously represented the appellant in the

pending prosecution and that Osborne received the confidences of the appellant during the former

representation, we have resolved the first two inquiries of the Schiessle analysis. Clinard, No.

M1998-00555-SC-R11-CV, 2001 WL 530834, at *4. Moreover, once a defendant has established

a substantial relationship between the pending prosecution and the matter in which the attorney was

previously representing the defendant, there arises a presumption that the attorney shared

confidential or privileged information with his new associates in the District Attorney General’s

office. Id.; see also Tate, 925 S.W.2d at 557; Claybrook, No. 3, 1992 WL 17546, at *11. In order

to rebut this presumption of shared confidences, the prosecution carries the burden of establishing

by clear and convincing evidence that appropriate screening measures have been undertaken to

insulate the “infected” attorney from the ongoing prosecution. Clinard, No. M1998-00555-SC-R11-

CV, 2001 WL 530834, at *4; see also Tate, 925 S.W.2d at 557-558; Claybrook, No. 3, 1992 WL

17546, at *11; cf. Tennessee Rules of Professional Conduct 1.10(c) (Proposed Official Draft 2000).

Thus, any determination of whether a prosecutor’s disqualification must be imputed

to the entire District Attorney General’s office depends upon a case-by-case evaluation of the

screening mechanisms employed. Clinard, No. M1998-00555-SC-R11-CV, 2001 WL 530834, at

**4-5; see also Board of Professional Responsibility of the Supreme Court of Tennessee, Formal

Ethics Op. No. 87-F-111, 1987 WL 364065, at *2 (Sept. 16, 1987). The supreme court in Clinard,

-19-

No. M1998-00555-SC-R11-CV, 2001 WL 530834, at *4, set forth a non-exclusive list of factors

relevant to a court’s evaluation:

1) the structural organization of the law firm or office involved,

2) the likelihood of contact between the “infected” person and the

specific attorneys and support personnel involved in the present

representation,

3) the existence of law firm or office rules which prevent the

“infected” person

a) from access to relevant files or other information

pertaining to the present litigation and

b) from sharing in the fees derived from such

litigation.

See also Bryan, No. M1999-00854-CCA-R9-CD, 2000 WL 1131890, at *3 n.2; Claybrook, No. 3,

1992 WL 17546, at *10-12. In weighing the above factors, the question to be asked is “‘whether the

screening mechanisms reduce to an acceptable level the potential for prejudicial misuse of client

confidences.’” Clinard, No. M1998-00555-SC-R11-CV, 2001 WL 530834, at *4; see also

Claybrook, No. 3, 1992 WL 17546, at *10. Viewing the particular facts of the instant case in light

of the above factors, we conclude that the State adequately rebutted the presumption that Osborne

shared the appellant’s confidences with other staff members of the District Attorney General’s office.

Notwithstanding our conclusion, the supreme court in Clinard, No. M1998-00555-

SC-R11-CV, 2001 WL 530834, at **6-7, further held that an appearance of impropriety may require

vicarious disqualification even if the disqualified attorney and his associates employ adequate

screening mechanisms. The court cited the ethical consideration set forth in Tenn. Sup. Ct. Rule 8,

EC 9-6 that “[e]very lawyer owes a solemn duty to . . . avoid not only professional impropriety but

also the appearance of impropriety.” The court then identified the following “subtle, but identifiable,

contours” of the appearance of impropriety standard. Clinard, No. M1998-00555-SC-R11-CV, 2001

WL 530834, at *6. First, the mere possibility of impropriety is insufficient to warrant

disqualification. Id. Second, “objective public perception rather than the subjective and ‘anxious’

perceptions of litigants governs.” Id. Third, the existence of an appearance of impropriety is to be

determined from the perspective of a reasonable lay person. Id. at 7. Fourth and finally, the

reasonable lay person is deemed to have been informed of all the facts, including whether and to the

extent screening mechanisms were employed. Id.

We note that the court in Clinard, No. M1998-00555-SC-R11-CV, 2001 WL 530834,

at *7, was addressing factual circumstances in which a private firm “st[ood] as adversary” to an

associate’s former clients in the same litigation in which the associate had previously represented

the clients and gained their confidences. Applying the above appearance of impropriety standard,

the court concluded that the firm must be disqualified despite its employment of adequate screening

mechanisms. Id. at 8. In reaching its conclusion, the court remarked:

To analogize to baseball, [the associate] has not only switched teams,

he has switched teams in the middle of the game after learning the

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signals. That [he] has been benched by his new team does little to

ameliorate the public perception of an unfair game.

Id. at *7.

As in Clinard, Osborne “switched teams in the middle of the game after learning the

signals.” Id. Nevertheless, we believe it to be significant that the supreme court arrived at its

conclusion in Clinard in the context of an attorney moving between private firms and in the context

of civil proceedings. Therefore, the supreme court did not address the court of appeals’ observation

below that Tennessee’s intermediate appellate courts have taken different paths with regard to

imputed disqualification and the efficacy of screening mechanisms. Clinard, No.

01A01-9801-CV-00029, 1999 WL 976582, at *16. The court of appeals remarked:

This difference can be explained, at least in part, by the distinction

between lawyers in government service and those in private practice

and by the difference between criminal proceedings and civil

proceedings. The cases reflect an understanding that applying the

imputed disqualification doctrine to district attorney generals’ offices

in the same way that it is applied to private law firms would seriously

hamper the prosecution of criminal cases.

Id. Correspondingly, this court recently observed in Bryan, No. M1999-00854-CCA-R9-CD, 2000

WL 1131890, at *6 (quoting United States v. Caggiano, 660 F.2d 184, 191 (6th Cir. 1981)), that

[p]rivate and public practice have significant distinctions, such that

screening procedures for attorneys in government service are

generally viewed with less skepticism: “The relationships among

lawyers within a government agency are different from those among

partners and associates of a law firm. The salaried government

employee does not have the financial interest in the success of

departmental representation that is inherent in private practice.”

See also Tate, 925 S.W.2d at 556-557; Claybrook, 1992 WL 17546, at **9-10. Moreover, in

Claybrook, No. 3, 1992 WL 17546, at *9 (quoting ABA Comm. on Ethics and Prof’l Responsibility,

Formal Op. 342 (1976)), we noted “‘[t]he important difference in the adversary posture of the

government lawyer . . . recognized [in] Canon 7.’” See Tenn. Sup. Ct. Rule 8, EC 7-13.

Thus, this court has repeatedly observed that a prosecutor’s disqualification need not

be imputed to the “entire district attorney general’s office . . . so long as the attorney at issue does

not disclose confidences or otherwise participate in the prosecution.” Tate, 925 S.W.2d at 556; see

also Mattress, 564 S.W.2d at 680; Mason, No. 01C01-9603-CC-00103, 1997 WL 311900, at *6;

State v. Robert West, No. 01C01-9107-CC-00202, 1992 WL 62020, at **2-3 (Tenn. Crim. App. at

Nashville, March 31, 1992). In other words, “[e]arly and adequate screening in the case of actual

conflict or the appearance of impropriety should usually resolve [the] problem.” Tate, 925 S.W.2d

at 556. We have followed this principle even when a disqualified prosecutor was previously a

member of the defense “team.” For example, in Mason, No. 01C01-9603-CC-00103, 1997 WL

311900, at **5-6, under factual circumstances substantially identical to those in the instant case, we

declined to hold that an attorney’s “mere presence in the District Attorney[] [General’s] office while

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in possession of privileged, confidential information pertaining to [the] appellant warranted

disqualification of the entire office” from prosecuting the appellant’s case. See also West, No.

01C01-9107-CC-00202, 1992 WL 62020, at **2-3. In sum, the trial court in this case did not abuse

its discretion in concluding that the screening mechanisms employed by the District Attorney

General’s office forestalled any actual or apparent impropriety.

In reaching our conclusion, we reiterate that, when an accused’s attorney joins the

prosecution, “[t]he potential for disclosure, inadvertent or otherwise, by the . . . attorney of a

criminally accused’s confidences and secrets threatens the foundation of the accused’s constitutional

rights,” including his privilege against self-incrimination, his right to the effective assistance of

counsel, and his right to a fair and impartial trial and due process of law. Claybrook, No. 3, 1992

WL 17546, at *11. In this regard, however, “the appearance of impropriety is not the central

concern. Primarily, it is a matter of an unacceptable risk of harm or disclosure which is at issue.”

Id.; see also Tate, 925 S.W.2d at 557. The screening mechanisms employed by the District Attorney

General’s office in this case adequately addressed this “central concern.” This issue is without merit.

b. Fourth and Fifth Amendment Claims

The appellant next challenges the trial court’s denial of his pre-trial motions to

suppress both his “statement” to officers of the La Vergne Police Department on December 3, 1997,

and the “fruits” of the warrantless search of his home conducted by police officers on the same day.

The appellant asserts that the officers violated his rights under the Fourth and Fifth Amendments to

the United States Constitution.

1. Trial Court Proceedings

The appellant filed his motions to suppress on February 22, 1999, and the trial court

conducted an evidentiary hearing on the appellant’s motions on February 26, 1999. At the

suppression hearing, as at trial, the State established that the appellant appeared in the lobby of the

La Vergne Police Department on the evening of December 3, 1997. Officer Lowery approached the

appellant and asked if she could assist him, whereupon he informed her that he had “just killed his

wife.” Lowery immediately retreated to the dispatchers’ office, radioed her sergeant, and asked that

he come to the station. She then reemerged from the office and asked the appellant to seat himself

on a bench in the lobby, indicating that another officer would soon be available to speak with him.

While the appellant was waiting on the bench, Lowery obtained from him his home address and

dispatched an officer to that address.

Almost immediately thereafter, Officer Thompson arrived at the police station and

approached the appellant. Thompson asked the appellant “what had happened.” When the appellant

responded that he had killed his wife, Thompson briefly searched the appellant for weapons and

handcuffed the appellant. Afterwards, “[t]here was some communication in reference to the address

which [the appellant] had reported.” Ultimately, the appellant offered to guide Thompson to his

home.

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Accordingly, Thompson escorted the appellant to a patrol car and placed him in the

prisoner compartment of the vehicle. Thompson testified at the suppression hearing that the prisoner

compartment of the vehicle is separated from the front seats by a “shield.” The upper portion of the

shield consists of “Lexan,” and the lower portion consists of “a stainless steel metal material.”

Nevertheless, Thompson stated that, as he began to drive toward the appellant’s home, he overheard

the appellant begin “making some statements . . . [that the appellant] couldn’t believe he [had] killed

[his wife].” Thompson immediately interrupted the appellant and provided a Miranda warning.

Before conveying to the appellant the requisite litany of constitutional rights,

Thompson obtained confirmation from the appellant that he could hear Thompson through the

“shield” and also that he “spoke, wrote, read, and understood English” and did not suffer from “any

medical problems that would impair him from understanding [Thompson].” Thompson then

informed the appellant

that he had the right to remain silent, that if he gave up the right to

remain silent, anything that he said would be used against him in

court. He had the right to talk to a lawyer for advice before he said

anything or I asked him any questions. If he couldn’t afford to hire

a lawyer, one would be appointed for him without cost to him, if he

wished one. He also had the right to stop answering any questions at

any time in order to talk to a lawyer.

After informing the appellant of his constitutional rights, Thompson inquired if the appellant

understood his rights. The appellant responded affirmatively. According to Thompson, the patrol

car’s siren was not activated during the provision of the Miranda warning.

Following the above exchange, Thompson obtained from the appellant more detailed

directions to the appellant’s mobile home, arriving at the mobile home at approximately 6:52 p.m.

Almost simultaneously, Corporal Mark Sloan, another officer of the La Vergne Police Department,

arrived at the Coulters’ home. The appellant directed both officers to an unlocked door, and the

officers entered the mobile home, loudly announcing their presence. Thompson testified at the

suppression hearing that his “most immediate concern” was determining whether anyone inside the

Coulters’ home required medical assistance. Thompson especially feared that Ms. Coulter might be

“alive and dying.” Additionally, Sloan was familiar with the Coulter family and indicated to

Thompson that a child might be present inside the home.

Upon entering the Coulters’ home, the officers initially found themselves inside the

living room. Thompson also observed a “little kitchenette” to the left of the living room. A gun was

lying on a table in the kitchenette. No one responded to the officers’ repeated calls, and the officers

quickly determined that no one was present in either the living room or the kitchenette. Continuing

their search, they entered a hallway that appeared to lead to additional rooms. In the hallway, the

officers opened the first door that they encountered, revealing a darkened room. When Thompson

turned on the lights in the room, the officers observed Ms. Coulter’s body lying on a bed and “a

considerable amount of blood about the bed, spattered on the wall.”

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Sloan briefly examined Ms. Coulter, confirming that she was dead. Thereafter, Sloan

remained inside Ms. Coulter’s room, while Thompson returned to the living room and notified both

the police station and the “Rutherford County EMS coroner” about the discovery of Ms. Coulter’s

body. Thompson also went outside and erected a barrier around the mobile home using crime scene

tape. Finally, at approximately 7:00 p.m., Thompson returned with the appellant to the police

station. At the suppression hearing, Thompson confirmed that, to his knowledge, the police did not

have a warrant to search the appellant’s home on December 3, 1997.

At approximately 7:07 p.m. on the same night, Detective Watson arrived at the

Coulters’ home, where he encountered Sloan and two additional officers. Watson immediately

entered the mobile home, viewed Ms. Coulter’s body, and began collecting evidence. Watson

recalled at the evidentiary hearing that, overall, he was at the crime scene for “close to an hour.”

During this time, Sergeant Hollins also arrived at the appellant’s home, and Hollins and Sloan

photographed the crime scene. Like Thompson, Watson testified at the suppression hearing that, to

his knowledge, the police never obtained a warrant to search the Coulters’ mobile home on

December 3, 1997. Watson conceded that he could have obtained a warrant.

The evidence collected by Watson on the night of the murder included the gun found

on the kitchen table, a purse found on the floor of Ms. Coulter’s bedroom, and the sheets, pillows,

and pillowcases located on Ms. Coulter’s bed. Additionally, as later indicated at trial, Ms. Coulter’s

body was moved, uncovering a bullet hole in Ms. Coulter’s mattress. Upon further investigation,

Watson and Sloan discovered a spent bullet “under the mattress in the springs.”

Meanwhile, at the police station, Thompson “booked” the appellant into the jail.

During booking procedures, Thompson asked the appellant if he wished to make a telephone call,

but the appellant refused Thompson’s offer. Thompson also read to the appellant an “admonition

and waiver of rights” form. The appellant confirmed that he understood his rights and, at

approximately 7:03 p.m., signed a written waiver of those rights.

Thompson testified at the suppression hearing that, following the appellant’s waiver

of his rights, the officer

entered into some conversation [with the appellant] about [the

appellant’s] background, where he was from, some personal things,

date of birth, what kind of work he did, what kind of illnesses he had

had in his life, any medications, if any, that he was taking at the time.

According to Thompson, the appellant recounted that he had previously been employed in the

aircraft industry and had sustained injuries during an accident at his workplace. However, the

appellant assured Thompson that he “was okay now.”

Subsequently, Sergeant Hollins arrived at the police station. Hollins introduced

himself to the appellant and obtained permission from the appellant to conduct an audio taped

interview of the appellant. The interview commenced at 8:35 p.m., approximately one and one-half

-24-

hours after the appellant’s waiver of his Miranda rights, and concluded at approximately 9:08 p.m.

Both Hollins and Thompson participated in questioning the appellant.

Following the State’s presentation of evidence at the suppression hearing, defense

counsel argued in support of the appellant’s motions to suppress. With respect to the appellant’s

motion to suppress “the statement he gave to members of the Lavergne Police Department on or

about December 3, 1997,” defense counsel solely addressed statements made by the appellant to

Hollins and Thompson during the audio taped interview. Essentially, counsel asserted that the

appellant did not knowingly and voluntarily waive his Miranda rights before agreeing to participate

in the audio taped interview.

As to the appellant’s motion to suppress “the fruits of the search of his home on or

about December 3, 1997,” defense counsel conceded that Thompson and Sloan could enter the

Coulters’ mobile home without a warrant for the purpose of determining Ms. Coulter’s medical

condition and for the purpose of determining “if anyone else was lurking around.” Moreover, the

appellant appeared to concede that the police were entitled to seize anything in plain view of the

initial responding officers and only asked that any photographs taken of the crime scene and

“anything else they seized that was not in plain view, such as the bullet hole, the fragment, and so

forth, . . . be suppressed.” With respect to the photographing of the crime scene and the search for

and seizure of items outside the plain view of the officers, the appellant asserted that,

once they determine [Ms. Coulter’s] condition and determine that no

one else is there, they’ve got to get out, seal the scene, and go get a

search warrant, which they didn’t do.

In passing, the appellant disputed any claim that the appellant consented to a search of his home.

In responding to the appellant’s motion to suppress his statement to officers of the

La Vergne Police Department, the prosecutor initially noted, “I didn’t hear anything about the

volunteered statement at the police station, and I assume by that that there’s not any opposition to

that.” Nevertheless, “to be on the safe side,” the prosecutor noted that volunteered or spontaneous

statements “made under these . . . type of conditions” are admissible. Additionally, the prosecutor

asserted that the appellant’s later waiver of his Miranda rights at the police station was knowing and

voluntary, emphasizing Thompson’s provision of the Miranda warning to the appellant on two

separate occasions.

In response to the appellant’s motion to suppress evidence obtained pursuant to the

December 3, 1997 warrantless search, the prosecutor asserted that the officers’ entry into and search

of the appellant’s mobile home were justified by exigent circumstances. Moreover, the prosecutor

argued that the ensuing seizures of evidence were encompassed by the plain view doctrine.

Alternatively, he noted that the police would inevitably have discovered the seized items.

At the conclusion of the suppression hearing, the trial court first denied the

appellant’s motion to suppress his statement to officers of the La Vergne Police Department. Like

the prosecutor, the trial court preliminarily noted that “the Defendant in this case present[ed] himself

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voluntarily at the police station declaring that he in fact ha[d] . . . just killed [his] wife. . . . [T]here’s

no requirement that you stop somebody from making a voluntary statement. That’s clearly a

voluntary statement.” In this regard, the trial court additionally noted that the appellant volunteered

statements while confined in the prisoner compartment of Thompson’s patrol car, presumably

referring to the appellant’s remark of disbelief that he had killed his wife. Finally, like the

prosecutor, the trial court noted that Thompson subsequently provided Miranda warnings to the

appellant on two separate occasions. Accordingly, the trial court concluded that the appellant

participated in the audio taped interview at the La Vergne Police Department “freely and knowingly

. . . after a waiver of the right to remain silent under the Fifth Amendment as applicable by the

Fourteenth Amendment to the state.”

As to the appellant’s motion to suppress evidence obtained pursuant to the warrantless

search of his home, the trial court concluded:

[C]learly there are exigent circumstances here that allow the police to

enter this residence. I can’t think of anything more exigent than to be

presented with a situation where you are now knowledgeable that

someone has been shot, in the view of the person who has said that,

they believe that they’ve killed them. And the police certainly need

to get to that scene to check out the condition of that person and to

render aid or provide aid to them if they have not expired. So,

certainly, exigency exists to get them there.

In addition, in this case Mr. Coulter, he’s cooperating. He’s directing

them to the place where this particular victim is located. He’s telling

them how to get in, in effect, consenting to the entry. And once

inside into this inquiry, the police are observant of the weapon in

plain view. They have a right to seize that.

And in processing this body, trying to move it, they certainly are

entitled to seize what is immediately in their plain view there that

depicts how this occurred, this death occurred. And I find nothing is

out of the ordinary about that.

. . . [T]he exigencies of the potential harm to the wife certainly gives

rise to them processing what is right in front of them and taking the

pillow, the sheets, the projectile.

2. Analysis

A. Standard of Review

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

a trial court’s findings of fact following a suppression hearing are conclusive on appeal unless the

evidence contained in the record preponderates otherwise. In this regard, the court observed:

-26-

Questions of credibility of the witnesses, the weight and value of the

evidence, and resolution of conflicts in the evidence are matters

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

the trial court is [therefore] entitled to the strongest legitimate view

of the evidence adduced at the suppression hearing as well as all

reasonable and legitimate inferences that may be drawn from that

evidence.

Id. More recently, in State v. Walton, 41 S.W.3d 75, 81 n.3 (Tenn. 2001), the court reaffirmed that

“the standard of appellate review for findings of fact at a suppression hearing is that articulated by

this Court in Odom.” Of course, an appellate court’s review of the trial court’s factual findings is

not limited to evidence submitted at the suppression hearing but encompasses the entire record of

proceedings, including evidence submitted at trial. State v. Henning, 975 S.W.2d 290, 299 (Tenn.

1998). Moreover, an appellate court will review de novo the trial court’s application of the law to

factual findings. State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999).

B. Appellant’s Statements to Officers of the La Vergne Police Department

In his brief on appeal, the appellant challenges the admissibility of statements that he

made to Officer Thompson in the lobby of the La Vergne Police Department and en route to the

appellant’s home prior to the discovery of Ms. Coulter’s body. In particular, the appellant focuses

his complaint upon statements that he made in response to Thompson’s questioning and that

concerned his commission of this offense, the location of Ms. Coulter’s body, and his address. The

appellant asserts that, in eliciting these statements, Thompson failed to comply with the procedures

set forth by the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602

(1966), procedures intended to safeguard the privilege against compulsory self-incrimination

contained in the Fifth and Fourteenth Amendments to the United States Constitution. The State

responds that the appellant’s initial statements to Thompson “were voluntary and did not require

Miranda warnings.” We simply conclude that, because the appellant failed to challenge in the trial

court the statements at issue in this appeal, he has waived this issue.

Tenn. R. Crim. P. 12(b)(3) provides that motions to suppress evidence must be raised

prior to trial. “The rule is applicable when a claim of a constitutional right is involved whose

violation would lead to suppression of evidence.” State v. Goss, 995 S.W.2d 617, 628 (Tenn. Crim.

App. 1998). Moreover, like other motions, a motion to suppress is governed by Tenn. R. Crim. P.

47. State v. Bell, 832 S.W.2d 583, 588 (Tenn. Crim. App. 1991); State v. Burton, 751 S.W.2d 440,

445 (Tenn. Crim. App. 1988). Tenn. R. Crim. P. 47 provides:

A motion other than one made during a trial or hearing shall be in

writing unless the court permits it to be made orally. It shall state

with particularity the grounds upon which it is made and shall set

forth the relief or order sought.

(Emphasis added).

In this case, the appellant filed a written motion prior to trial that sought

-27-

to suppress the statement he gave to members of the Lavergne Police

Department on or about December 3, 1997. As grounds therefore

[he] would state and show unto the Court he was not adequately

advised of his rights or the waiving of the same and would further

show he did not waive his right to counsel prior to questioning.

Because the appellant made several statements to officers of the La Vergne Police Department on

December 3, 1997, the appellant’s motion does not clearly set forth the relief sought. Nevertheless,

as previously noted, the appellant clarified at the suppression hearing that his complaint lay in the

introduction into evidence at his trial of his audio taped statements to Thompson and Hollins. At

no time during the suppression hearing did the appellant challenge the introduction into evidence of

his initial statements to Thompson in the lobby of the La Vergne Police Department and en route to

the Coulters’ mobile home. Again, the State did raise the admissibility of the appellant’s

“volunteered statement at the police station,” seemingly referring to the appellant’s initial statement

to Lowery that he had killed his wife. The trial court’s ruling largely conformed to the arguments

of counsel. In other words, the trial court addressed the appellant’s motion to suppress as presented,

and its ruling did not reach the statements at issue in this appeal. Bell, 832 S.W.2d at 588-589.

Of course, a trial court may address a motion to suppress at a later juncture in the

proceedings “for cause shown.” Tenn. R. Crim. P. 12(f); see also Bell, 832 S.W.2d at 589.

However, the appellant in this case also failed to challenge the admissibility of his initial statements

to Thompson either during the trial itself or in his motion for new trial. Tenn. R. App. P. 3(e) &

36(a); see also State v. Alvin B. Tate, No. W1999-01224-CCA-R3-CD, 2000 WL 791807, at *2

(Tenn. Crim. App. at Jackson, June 16, 2000). In sum, “[a] trial court cannot be held in error when

it was not given an opportunity to rule on the issue raised [on appeal].” State v. Walker, 910 S.W.2d

381, 396 (Tenn. 1995).

Additionally, notwithstanding the appellant’s statement of the issue and his

accompanying argument, it is unlikely that the appellant’s complaint on appeal lies purely in the

admission at his trial of his initial statements to Thompson. Otherwise, even if worthy of merit, the

appellant’s complaint would afford him no relief. In other words, the admission of the appellant’s

initial statements to Thompson would be harmless error in light of other, overwhelming evidence

admitted at the appellant’s trial, including the audio cassette recording of the appellant’s interview

with Thompson and Hollins. Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828 (1967).

Indeed, the appellant suggests in his brief that his complaint actually lies in the admission at his trial

of physical evidence discovered as a consequence of his initial statements to Thompson.

Specifically, the appellant observes, “The knowledge of the defendant’s address and other pertinent

information concerning the defendant was obtained by Sergeant Thompson during the initial

custodial interrogation of the defendant prior to Miranda warnings. . . . The[] [appellant’s] statements

led to the discovery of the victim and to the warrantless search that was performed by the LaVergne

Police Department.”

Of course, the appellant’s failure to challenge in the trial court the admissibility of

his initial statements to Thompson necessarily led to his failure to invoke the “fruit-of-the-poisonous-

-28-

tree” doctrine in favor of suppressing physical evidence obtained as a consequence of those

statements. Moreover, to the extent that he has attempted to invoke the doctrine on appeal, his

statement of the issue and his argument are inadequate. Tenn. R. App. P. 27(a)(4) & (7); Tenn. Ct.

of Crim. App. Rule 10(b). In any event, interpreting both the federal and state constitutions, our

supreme court recently concluded that

a per se exclusionary rule, which would automatically exclude non-

testimonial evidence obtained from a technical failure to give

Miranda warnings, is not warranted. Instead, we hold that a

defendant may seek suppression of non-testimonial evidence

discovered through his or her unwarned statements only when the

statements are the product of an actual violation of the privilege

against self-incrimination, i.e., such as when actual coercion in

obtaining the statement is involved or when the invocation of the

right to remain silent or to have counsel present is not “scrupulously

honored.”

Walton, 41 S.W.3d at 92. The appellant in this case does not allege “an actual violation of the

privilege against self-incrimination” within the meaning of Walton. Thus, without even addressing

the potential applications of the independent source and inevitable discovery doctrines, we can

conclude that the exclusionary rule would not extend to non-testimonial evidence obtained as a

consequence of the appellant’s initial statements to Thompson.

Finally, we note in passing that the appellant also failed to invoke in the trial court

the “fruit-of-the-poisonous-tree” doctrine in favor of suppressing the appellant’s audio taped

statements to Thompson and Hollins. Indeed, the appellant does not claim in his brief on appeal that

his audio taped statements to Thompson and Hollins were the “fruit” of his earlier statements to

Thompson or otherwise challenge the introduction into evidence at his trial of the audio taped

statements. Tenn. R. App. P. 27(a)(4) & (7); Tenn. Ct. of Crim. App. Rule 10(b).1 This issue is

without merit.

C. Warrantless Search of Coulters’ Mobile Home

The appellant also challenges the admissibility at his trial of the “fruits” of the

warrantless search of his home conducted by officers of the La Vergne Police Department on

December 3, 1997. As in the trial court, the appellant effectively concedes on appeal that Officer

Thompson and Corporal Sloan could lawfully enter his home on December 3, 1997, in order to

ascertain Ms. Coulter’s medical condition. However, he asserts that any subsequent search of his

home and the photographing and seizure of evidence found therein required a warrant under the

Fourth and Fourteenth Amendments to the United States Constitution. Again, the State responds

that exigent circumstances justified the officers’ entry into the appellant’s home and their ensuing

search for Ms. Coulter. Moreover, the State asserts that, “[o]nce inside, officers were entitled to

1

Significantly, moreov er, the appe llant relies solely up on federa l constitutional p rotections in challenging the

trial court’s den ial of his motion to suppres s. Cf. Oregon v. Elstad, 470 U.S. 298, 309, 105 S. Ct. 1285, 1293 (1985),

and Walton, 41 S.W.3d at 91-92.

-29-

seize any evidence in plain view.” Following careful consideration of this issue, we conclude that

the appellant is not entitled to relief.

Preliminarily, we reiterate that, when a defendant files a pre-trial motion to suppress

pursuant to Tenn. R. Crim. P. 12(b)(3), it is the defendant’s obligation to identify the relief sought

and the grounds therefor. Tenn. R. Crim. P. 47. Moreover, at the suppression hearing, “the

defendant ha[s] the burden of going forward with the evidence, at least to the extent of identifying

the items he [seeks] to suppress, [although] the ultimate burden of proof for a warrantless search is

on the prosecution.” State v. Johnson, 705 S.W.2d 681, 683 (Tenn. Crim. App. 1985); see also

Burton, 751 S.W.2d at 445. In his written motion, the appellant broadly sought to suppress

the fruits of the search of his home on or about December 3, 1997.

As grounds therefore defendant would state and show unto the Court

his residence was searched without a search warrant and no exigent

circumstances were present justifying the search without a warrant.

At the suppression hearing, the appellant more specifically identified the items he sought to suppress.

We note, however, that the appellant’s identification of objectionable evidence at the suppression

hearing differs from his identification of objectionable evidence on appeal.

On appeal, the appellant asserts in his brief that “[t]he fruits of the warrantless search

included the [murder] weapon, sheets, pillowcases, bullet fragments, photographs and diagrams all

of which were submitted to the jury as evidence and which greatly prejudiced the [appellant].” Yet,

as noted previously, the appellant only objected at the suppression hearing to the introduction into

evidence of photographs taken of the crime scene during the challenged search and “anything . . .

[the police] seized that was not in plain view, such as the bullet hole, the fragment, and so forth.”

Although not entirely clear from the record, the appellant did not appear to be challenging in the trial

court the introduction into evidence of the murder weapon found on the Coulters’ kitchen table or

of the sheets, pillows, and pillowcases found on Ms. Coulter’s bed.2 Similarly, at no time during the

suppression hearing, during trial, or in his motion for new trial did the appellant object to the State’s

introduction into evidence of any “diagrams” or otherwise identify any diagrams as the fruit of the

challenged search. The record does reflect that the State introduced into evidence at the appellant’s

trial a diagram of the Coulters’ mobile home. However, the record does not reflect the source of this

diagram.

For purposes of clarity, we also note that, in fact, the State did not introduce into

evidence at the appellant’s trial the sheets, pillows, or pillowcases seized from Ms. Coulter’s bed on

December 3, 1997. Again, Detective Watson testified at trial that the La Vergne Police Department

lost the pillows and pillowcases during the course of the murder investigation. Nevertheless, the

State did introduce into evidence Sergeant Hollins’ photographs of the murder scene, which depicted

2

Indeed, in addition to his Fourth Amendment claim, the appellant argued at the suppression hearing that any

relevance of the crime scene photographs that depicted Ms. Coulter’s body lying on her bed was substantially outweighed

by the potential for unfair prejudice bec ause the State had “the pillows and the she ets. They can bring those in and show

us.”

-30-

these lost items of evidence in addition to Ms. Coulter’s body, and testimony concerning the seizure

of these items from the Coulters’ mobile home. Moreover, we assume that the appellant’s reference

to “bullet fragments” is a reference to the spent bullet recovered from Ms. Coulter’s bed.3 The State

did not introduce this spent bullet into evidence at the appellant’s trial but did introduce into

evidence testimony concerning the bullet, including testimony by Special Agent Carman, the State’s

firearms identification expert.

Clearly, in the Fourth Amendment context,

[t]he exclusionary rule prohibits introduction into evidence of

tangible materials seized during an unlawful search and of testimony

concerning knowledge acquired during an unlawful search. Beyond

that, the exclusionary rule also prohibits the introduction of derivative

evidence, both tangible and testimonial, that is the product of the

primary evidence, or that is otherwise acquired as an indirect result

of the unlawful search.

Murray v. United States, 487 U.S. 533, 536-537, 108 S. Ct. 2529, 2533 (1988)(citations omitted);

see also Wong Sun v. United States, 371 U.S. 471, 484-486, 83 S. Ct. 407, 416 (1963); State v.

Clark, 844 S.W.2d 597, 600 (Tenn. 1992). However, on appeal, an appellant has an obligation to

state in his brief the issue presented for review, the facts relevant to that issue, his contentions with

respect to that issue, including the reasons why the contentions require appellate relief, and “the

precise relief sought.” Tenn. R. App. P. 27(a). In other words, even assuming a Fourth Amendment

violation, the appellant must clearly identify objectionable evidence admitted at his trial and explain

why the admission of that evidence requires appellate relief. If an appellant declines even to

accurately identify the objectionable evidence, he risks the refusal by this court to sift through both

the record and the myriad potential applications of the exclusionary rule to determine the scope of

relief warranted by a Fourth Amendment violation. Tenn. Ct. of Crim. App. Rule 10(b).

At a minimum, the appellant has waived any objection to the introduction into

evidence at his trial of any diagrams and also the murder weapon, sheets, pillows, and pillow cases

seized by police on December 3, 1997, or testimony concerning those items. Nevertheless, we note

that, with the exception of any diagrams, the trial court did address the admissibility of all the items

challenged in this appeal. Accordingly, we will in turn evaluate the correctness of the trial court’s

determinations.

The Fourth Amendment to the United States Constitution is applicable to the states

through the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691 (1961),

and provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated.” A search or seizure is

presumptively unreasonable if conducted without a warrant. Mincey v. Arizona, 437 U.S. 385, 390,

3

As already stated, the police additionally recovered a spent bullet from Ms. Coulter’s brain. Although the

appellant challenged in the trial court and challenges on appeal the State’s introduction into evidence of testimony

concerning this bullet, the appellant has consistently relied upon grounds other than a Fourth Amendment violation.

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98 S. Ct. 2408, 2412 (1978); see also Illinois v. McArthur, 531 U.S. 326, __, 121 S. Ct. 946, 949

(2001); Coolidge v. New Hampshire, 403 U.S. 443, 454-455, 91 S. Ct. 2022, 2032 (1971).

However, the State may rebut the presumption if the search or seizure falls within one of several

“‘specifically established and well-delineated exceptions.’” Mincey, 437 U.S. at 390, 98 S. Ct. at

2412. In other words, “[w]hen faced with special law enforcement needs, diminished expectations

of privacy, minimal intrusions, or the like, . . . certain general, or individual, circumstances may

render a warrantless search or seizure reasonable.” McArthur, 531 U.S. at __, 121 S. Ct. at 949. As

earlier indicated, when the State invokes an exception to the warrant requirement in order to justify

a search or seizure, the burden rests upon the State to demonstrate that the circumstances of the case

lie within the scope of the exception. Coolidge, 403 U.S. at 455, 91 S. Ct. at 2032.

A well-settled exception to the warrant requirement is a search conducted pursuant

to consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-2044 (1973); State

v. Bartram, 925 S.W.2d 227, 230 (Tenn. 1996). Again, the trial court found that the appellant at

least consented to the entry of Thompson and Sloan into his home for the purpose of locating Ms.

Coulter. We need not address, however, whether the evidence contained in the record preponderates

in favor of this finding, nor need we address the scope of any consent by the appellant. Rather the

appellant concedes that the officers’ entry into his home was justified by exigent circumstances, and

we conclude that the consequent search of the home and the photographing and seizure of evidence

found therein were likewise “reasonable.”

Notwithstanding the appellant’s concession, a review of the law pertinent to

warrantless searches in exigent or emergency situations is useful in evaluating the challenged police

conduct in this case. As correctly noted by the appellant, the United States Supreme Court in

Mincey, 437 U.S. at 395, 98 S. Ct. at 2415, “declined to recognize any special authority in the police

to conduct a warrantless investigation at the scene of a possible homicide.” 3 WAYNE R. LA FAVE,

SEARCH AND SEIZURE § 6.5(e), at 377 (West Publishing Co. ed., 3d ed. 1996); see also Flippo v.

West Virginia, 528 U.S. 11, 14, 120 S. Ct. 7, 8 (1999); Thompson v. Louisiana, 469 U.S. 17, 21, 105

S. Ct. 409, 411 (1984)(per curiam). As also acknowledged by the appellant, however, the Court in

Mincey did approve warrantless searches in exigent or emergency circumstances. 437 U.S. at 392,

98 S. Ct. at 2413; see also Arizona v. Hicks, 480 U.S. 321, 325-326, 107 S. Ct. 1149, 1153 (1987);

State v. Tyler, 598 S.W.2d 798, 801 (Tenn. Crim. App. 1980). Thus, “a warrantless entry by

criminal law enforcement officials may be legal when there is compelling need for official action and

no time to secure a warrant.” Michigan v. Tyler, 436 U.S. 499, 509, 98 S. Ct. 1942, 1949 (1978).

More specifically, the Court in Mincey observed that police may enter a home and

conduct a search without a warrant “when they reasonably believe that a person within is in need of

immediate aid.” 437 U.S. at 392, 98 S. Ct. at 2413; see also Flippo, 528 U.S. at 14, 120 S. Ct. at 8;

Thompson, 469 U.S. at 21, 105 S. Ct. at 411; Tyler, 598 S.W.2d at 801. In this regard, the State

“must establish that the circumstances as they appeared at the moment of entry would lead a

reasonable, experienced law enforcement officer to believe that someone inside the house . . .

required immediate assistance.” United States v. Arch, 7 F.3d 1300, 1304 (7th Cir. 1993).

Additionally, if the police come upon the scene of a homicide, the officers may “make a prompt

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warrantless search of the area to see if there are other victims or if a killer is still on the premises.”

Mincey, 437 U.S. at 392, 98 S. Ct. at 2413.

The Court in Mincey emphasized that any warrantless search “must be ‘strictly

circumscribed by the exigencies which justify its initiation.’” 437 U.S. at 393, 98 S. Ct. at 2413.

However, in Hicks, 480 U.S. at 325-326, 107 S. Ct. at 1153 (citation omitted), the Court further

clarified that

Mincey v. Arizona, . . . in saying that a warrantless search must be

“strictly circumscribed by the exigencies which justify its initiation,”

was addressing only the scope of the primary search itself, and was

not overruling by implication the many cases acknowledging that the

“plain view” doctrine can legitimate action beyond that scope.

The plain view doctrine provides that, under certain circumstances, the police may

seize evidence in plain view without a warrant. Coolidge, 403 U.S. at 465, 91 S. Ct. at 2037

(plurality opinion). Under the federal constitution, prerequisites to the application of the plain view

doctrine include: (1) the officer did not violate constitutional mandates in arriving at the location

from which the evidence could plainly be seen; (2) the officer had a lawful right of access to the

evidence; and (3) the incriminating character of the evidence was “immediately apparent,” i.e., the

officer possessed probable cause to believe that the item in plain view was evidence of a crime or

contraband. Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S. Ct. 2130, 2136-2137 (1993); Soldal

v. Cook County, Illinois, 506 U.S. 56, 65-66, 113 S. Ct. 538, 545-546 (1992); Horton v. California,

496 U.S. 128, 136-137, 110 S. Ct. 2301, 2308 (1990); Hicks, 480 U.S. at 326-327, 107 S. Ct. at

1153-1154. Accordingly, when an officer enters private premises pursuant to exigent or emergency

circumstances, the officer may generally seize any apparently incriminating items located on the

premises in plain view. Furthermore, an officer may “record by photography scenes presented to

[his] plain view.” Bills v. Aseltine, 958 F.2d 697, 707 (6th Cir. 1992); see also People v. Reynolds,

672 P.2d 529, 532-533 (Colo. 1983).

Applying the above principles to the facts of the instant case, the appellant’s report

to the police on December 3, 1997, that he had “just” killed his wife clearly warranted a “reasonable

belief” that a person inside the Coulters’ home was in need of immediate aid. Accordingly,

Thompson and Sloan could enter the Coulters’ home without a warrant and search for Ms. Coulter.

As noted by Circuit Judge (later Chief Justice) Warren Burger, “[e]ven the apparently dead often are

saved by swift police response.” Wayne v. United States, 318 F.2d 205, 212 (D.C. Cir. 1963). See

also, e.g., People v. McGee, 489 N.E.2d 439, 440-443 (Ill. Ct. App. 1986)(applying the “emergency”

exception to the warrant requirement to a police officer’s entry into a residence in order to

investigate a “strong foul odor” of decomposing flesh as “the odor may have been caused by rotting

flesh of a living person after severe burns or other injury”); Colburn v. State, 966 S.W.2d 511, 519

(Tex. Crim. App. 1998)(observing that, although the police officer was informed of defendant’s

claim that he had just killed a girl in his apartment, “a reasonable officer . . . might have thought

there was a possibility that the victim might still be alive, but seriously injured,” and the officer’s

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warrantless search of the apartment was justified under the “Emergency” or “Exigent Circumstances”

doctrine).

Upon entering the appellant’s home and during the ensuing search for Ms. Coulter,

Thompson and Sloan observed in plain view the murder weapon, Ms. Coulter’s body, and the sheets,

pillows, and pillowcases on Ms. Coulter’s bed. The officers clearly possessed probable cause to

believe that these “items” were evidence of a crime. They were, therefore, entitled to seize these

items. Moreover, they were entitled to photograph the “scenes presented to their plain view.” Bills,

958 F.2d at 707. Less easily resolved, however, is the issue of whether Detective Watson and

Sergeant Hollins could enter the appellant’s home soon thereafter and, with Sloan’s assistance,

photograph and seize what was in plain view of the initial responding officers.

In upholding “warrantless ‘second entries’ made by the police following the

termination of the emergency that justified an initial entry,” Wofford v. State, 952 S.W.2d 646, 653

(Ark. 1997), courts in several of our sister states have held that,

when a law enforcement officer enters private premises in response

to a call for help, and during the course of responding to the

emergency observes but does not take into custody evidence in plain

view, a subsequent entry shortly thereafter, by detectives whose duty

it is to process evidence, constitutes a mere continuation of the

original entry. Under such circumstances, it is permissible for the

detectives to [seize,] photograph and take measurements [of], without

a search warrant, . . . evidence which was in the plain view of the

initial responding officers.

State v. Magnano, 528 A.2d 760, 764 (Conn. 1987); see also State v. Spears, 560 So.2d 1145, 1150-

1151 (Ala. Crim. App. 1989); Wofford, 952 S.W.2d at 653-654; State v. Johnson, 413 A.2d 931,

933-934 (Maine 1980); Hunter v. Commonwealth, 378 S.E.2d 634, 635-636 (Va. Ct. App. 1989);

La Fournier v. State, 280 N.W.2d 746, 750-751 (Wis. 1979). “Whether a subsequent entry is

detached from an initial exigency and warrantless entry or is a continuation of the lawful initial entry

can be determined only in light of the facts and circumstances of each case,” including the time

interval between the two entries and the extent to which the later officers do no more than the initial

responding officer or officers would have been justified in doing. La Fournier, 280 N.W.2d at 750;

cf. Tyler, 598 S.W.2d at 801-802.

Still other courts have relied upon rationales somewhat distinct from the “continuing

entry” rationale articulated above in upholding “warrantless ‘second entries.’” For example, the

United States Court of Appeals for the Fifth Circuit more broadly reasoned that the Fourth

Amendment to the United States Constitution protects a citizen against the invasion of privacy.

United States v. Brand, 556 F.2d 1312, 1317 (5th Cir. 1977). “Once that interest is invaded legally

by an official of the State, the citizen has lost his reasonable expectation of privacy to the extent of

the invasion.” Id. The court emphasized that additional investigators or officials must confine their

intrusion to the scope of the original invasion unless a warrant or one of the exceptions to the warrant

requirement justifies further police activity. Id. at n. 9; cf. Mincey, 437 U.S. at 391-392, 98 S. Ct.

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at 2413 (rejecting the State’s argument that, due to the initial intrusion by police into the defendant’s

apartment, the defendant had a lessened expectation of privacy in his entire home); Thompson, 469

U.S. at 22, 105 S. Ct. 411-412 (reaffirming that police officers’ entry into the defendant’s home

under exigent circumstances did not diminish the defendant’s expectation of privacy in her entire

home).

Adopting yet another approach, the North Carolina Supreme Court has held that

when a law enforcement officer enters private premises in response

to a call for help and thereby comes upon what reasonably appears to

be the scene of a crime, and secures the crime scene from persons

other than law enforcement officers by appropriate means, all

property within the crime scene in plain view which the officer has

probable cause to associate with criminal activity is thereby lawfully

seized within the meaning of the fourth amendment. Officers arriving

at the crime scene thereafter and while it is still secured can examine

and remove property in plain view without a search warrant.

State v. Jolley, 321 S.E.2d 883, 886 (N.C. 1984); see also State v. Tidwell, 888 S.W.2d 736, 740-743

(Mo. Ct. App. 1994).

Regardless of the applicable rationale, we must agree with the trial court’s

determination that, under the facts of this case, the photographs of the crime scene, the murder

weapon, and the sheets, pillows, and pillowcases were not the fruit of a Fourth Amendment

violation. Our inquiry, however, is not complete as we must now turn to the issue of whether the

introduction into evidence of the spent bullet recovered from the box springs of Ms. Coulter’s bed

was likewise consistent with the Fourth Amendment.

As noted earlier, the evidence adduced at the suppression hearing and at trial revealed

that, while Watson and Sloan were collecting evidence on December 3, 1997, paramedics moved

Ms. Coulter’s body, revealing a bullet hole in the mattress. Detective Watson and Corporal Sloan

then discovered the spent bullet “under the mattress in the springs.”

Initially, because the police could lawfully seize Ms. Coulter’s body, the officers did

not violate constitutional mandates in arriving at the location from which the bullet hole could

plainly be seen. Cf. Hicks, 480 U.S. at 325-327, 107 S. Ct. at 1153-1154. Moreover, upon

observing the bullet hole, the police were entitled to seize the mattress. Therefore, to the extent the

officers moved the mattress and exposed the box springs to plain view, they similarly did not violate

constitutional mandates. However, it is unclear from the record whether the mattress was, in fact,

moved or whether any movement of the mattress exposed the bullet or another bullet hole to plain

view. In any event, as applied to the facts of this case, we agree with the observation that, when

bullet holes [are] visible to the naked eye, . . . police [are] entitled to

follow them to retrieve the bullets. This [is] not “a search” because

once police [have] observed the holes, defendant [has] no reasonable

expectation of privacy in the bullets.

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State v. Arias, 661 A.2d 850, 857 (N.J. Super. Ct. Law Div. 1992);4 see also Commonwealth v.

Mitchell, 414 A.2d 1021, 1022-1023 (Penn. 1980); State v. Hebard, 184 N.W.2d 156, 168 (Wis.

1971), overruled on other grounds by Schimmel v. State, 267 N.W.2d 271 (Wis. 1978). In sum, we

conclude that the trial court properly denied the appellant’s motion to suppress. This issue is without

merit.

c. Notes and Letters

Relying upon general evidentiary rules of relevance, the appellant also contends that

the trial court erred in denying his pre-trial motion to exclude from evidence the notes and letters

written by him to his wife prior to this offense. Tenn. R. Evid. 401, 402, & 403. The appellant

asserts that the letters were “not relevant to any of the issues presented and serve[d] only to inflame

the jury against the defendant based on his use of sexually graphic language.” The State responds

that the letters were relevant to the appellant’s “design and intent, which [are] critical elements of

first degree murder.” We conclude that the trial court properly denied the appellant’s motion.

1. Trial Court Proceedings

The appellant filed a motion to suppress the disputed notes and letters on February

22, 1999. The trial court heard the appellant’s motion at the February 26, 1999 hearing. At this

hearing, defense counsel argued:

These parties were obviously having marital problems. Many of

these notes are Mr. Coulter’s complaint of lack of sexual relations,

phrased one way or another, between he and his wife. The language

in there would be somewhat prejudicial due to the graphic nature of

it. They have zero relevance to this case. The complaint of lack of

sexual matters between a husband and wife is made daily in this

country. I do a ton of divorce work and it’s a gripe I all the time hear.

Very few of these men go out there and kill their wives over that.

So it doesn’t come close to making more probable than not any issue

involved in this case. The only possible purpose of putting these type

of notes in there would be to inflame the jury against my client.

In response, the prosecutor argued that the notes and letters were highly relevant but also noted that

the admissibility of the disputed documents was “more attuned to . . . prior bad acts.” The trial court

4

The New Jersey court in Arias, 661 A.2 d at 857 , analogized bullet holes in “w alls, furniture and plants” to

containers, echoing the United States Supreme Court’s observation in Arkansas v. Sanders, 442 U.S. 753, 764 n. 13, 99

S. Ct. 2586 , 2593 n.1 3 (1979 ), overruled on other grounds by California v. Acevedo, 500 U.S. 565, 579, 111 S. Ct. 1982,

1991 (1991), that “some containers (for example a kit of burglar tools or a gun case) by their very nature cannot support

any reasonable expec tation of privacy because their contents can be inferred from their outward appearance.” Cf. Illinois

v. Andreas, 463 U.S. 765, 771-772, 103 S. Ct. 3319, 3324 (1983)(“[O]nce a container h as been fou nd to a certa inty to

contain illicit drugs, the contraba nd beco mes like ob jects physically within the p lain view of the p olice, and the claim

to privacy is lost.”)( footnote o mitted). Acc ordingly, the N ew Jersey co urt conclud ed that, “when police follow ed a hole

in the wall cavity, loveseat, floor or baseb oard, they d id not tramp le on Fourth Amendment rights.” Arias, 661 A.2d at

857.

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deferred ruling upon the appellant’s motion, instead granting the parties an opportunity to submit

briefs.

The prosecutor submitted a brief to the court on March 8, 1999. As relevant to this

appeal, the prosecutor explained that the notes and letters were highly relevant to the State’s case

because they demonstrated the nature of the Coulters’ relationship prior to Ms. Coulter’s murder,

including the appellant’s “sustained hostility and animosity toward his wife,” and also established

a possible motive for the killing. Accordingly, the notes and letters constituted an integral part of

the State’s proof of intent and premeditation.

Defense counsel filed a response on March 15, 1999. In relevant part, defense

counsel again disputed the State’s claim that the documents were relevant. In this regard, counsel

noted that some of the letters are undated. Accordingly, “even assuming the notes were some

indication of the state of mind of the defendant, it is impossible to know when the defendant was

thinking these things.” Moreover, counsel asserted that, even if in close temporal proximity to Ms.

Coulter’s murder, statements by the appellant concerning the Coulters’ marital difficulties, including

a lack of sexual relations, were “not relevant to the alleged crime.” Finally, citing Tenn. R. Evid.

403, the appellant claimed that any relevance of the notes and letters was substantially outweighed

by “the danger of unfair prejudice and misleading the jury.”

Subsequently, at a May 10, 1999 hearing, the Court ruled upon the appellant’s

motion:

I’ve read these memorandums, and I’ve read the notes and the various

letters that were submitted. And in this case it is incumbent upon me

under the rules of evidence, particularly 403(b), I believe it is. Let me

get that citation exactly correct. It may be 404(b). We have a

determination first of the issue that this particular material would

come in on, and thereafter have a balancing test to determine whether

it should or should not - - it’s 404(b) - - come in.

. . . [I]n this particular case, there is going to be an issue under 39-13-

202 of design and intent of the Defendant because those are critical

elements of the offense of first degree murder. And it appears that

these notes and memorandums and letters are material to that issue.

So then we go to the balancing test in this particular case on that

material issue of the design and intent, and it appears that the

probative value of these documents outweigh the prejudice to the

Defendant . . . . So I’m finding that the letters which surround and

precede the death are capable of introduction.

Immediately thereafter, defense counsel inquired if the trial court’s ruling extended to undated notes

and letters. The court responded that the undated documents

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appear all to fall within the same format of the discussion of the

issues of the difficulties in the marriage relationship leading up to the

discord, and I find that they are probative and that the probative value

outweighs the prejudice.

On May 21, 1999, the trial court also entered into the record a written order denying the appellant’s

motion.

2. Analysis

When the decision of a trial court is based on the relevance of the proffered evidence

under Tenn. R. Evid. 401, 402, and 403, the standard of review is abuse of discretion. State v.

DuBose, 953 S.W.2d 649, 652 (Tenn. 1997). Yet, unsolicited by the appellant, the trial court in this

case apparently based its ruling upon Tenn. R. Evid. 404(b). Our supreme court has held that the

decision of a trial court to admit evidence of “other crimes, wrongs, or acts” under Rule 404(b)

“should be afforded no deference unless there has been substantial compliance with the procedural

requirements of the Rule.” DuBose, 953 S.W.2d at 652. The record, in fact, reflects the trial court’s

substantial compliance with those requirements. Nevertheless, as already noted, the appellant

predicates his complaint on appeal wholly upon Tenn. R. Evid. 401, 402, and 403. In short, we

choose to address the appellant’s complaint as presented to this court. Cf. Tenn. R. Crim. P. 52(b).

Turning to the appellant’s complaint, relevant evidence is generally admissible

pursuant to Rule 402. “‘Relevant evidence’ means evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” Tenn. R. Evid. 401. Relevant evidence need not

be sufficient to satisfy a party’s burden of proof; rather, “[e]ach item of proof may make a small,

incremental contribution to a party’s total efforts to meet its proof obligations.” NEIL P. COHEN ET

AL., TENNESSEE LAW OF EVIDENCE § 401.4, at 86 (Michie ed., 3d ed. 1995).

However, Rule 403 prohibits the introduction of even relevant evidence “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.” Specifically addressing the danger of unfair prejudice, this court has

elaborated that evidence should not be admitted when its primary purpose “is to elicit emotions of

‘bias, sympathy, hatred, contempt, retribution, or horror.’” State v. Collins, 986 S.W.2d 13, 20

(Tenn. Crim. App. 1998). That having been said, “unfair prejudice” should be carefully

distinguished from the prejudice “naturally flow[ing] from all admissible evidence [that] is intended

to persuade the trier of fact.” State v. Hayes, 899 S.W.2d 175, 183 (Tenn. Crim. App. 1995). In

other words, “the mere fact that evidence is particularly damaging does not make it unfairly

prejudicial.” State v. Gentry, 881 S.W.2d 1, 7 (Tenn. Crim. App. 1993); see also State v. Jerry Lee

Hunter, No. 01C01-9411-CC-00391, 1996 WL 10086, at *6 (Tenn. Crim. App. at Nashville, January

11, 1996)(observing that “any evidence, whether introduced by the prosecution or the defense, is

prejudicial”).

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In determining the admissibility of evidence under the above rules, “the trial court

must consider, among other things, the questions of fact that the jury will have to consider in

determining the accused's guilt as well as other evidence that has been introduced during the course

of the trial.” State v. Williamson, 919 S.W.2d 69, 78 (Tenn. Crim. App. 1995). In this case, the jury

was required to find beyond a reasonable doubt that the appellant committed an intentional and

premeditated killing. Tenn. Code Ann. § 39-13-202(a) (1997). “‘Intentional’ refers to a person who

acts intentionally with respect to the nature of the conduct or to a result of the conduct when it is the

person’s conscious objective or desire to engage in the conduct or cause the result.” Tenn. Code

Ann. § 39-11-302(a) (1997). Premeditation, in turn, “means that the intent to kill must have been

formed prior to the act itself.” Tenn. Code Ann. § 39-13-202(d). Moreover, premeditation entails

the exercise of reflection and judgment. Id.

Because the appellant in this case did not dispute that he had killed his wife, the

principal issue at trial was whether the appellant possessed the requisite mental state, particularly

premeditation. Our supreme court has noted that “a determination of culpable mental states, such

as premeditation . . . , must [often] be inferentially made from the circumstances surrounding the

killing.” State v. Hall, 958 S.W.2d 679, 704 (Tenn. 1997). Among the relevant circumstances are

facts about the defendant's prior relationship and conduct with the victim from which the jury may

infer a motive. Id.; see also State v. Jones, 15 S.W.3d 880, 889 (Tenn. Crim. App. 1999); State v.

Schafer, 973 S.W.2d 269, 273 (Tenn. Crim. App. 1997); State v. Bordis, 905 S.W.2d 214, 222

(Tenn. Crim. App. 1995); Gentry, 881 S.W.2d at 5.

Thus, for example, in affirming a defendant’s conviction of first degree murder in

State v. Stephen Lajaun Beasley, No. 03C01-9509-CR-00268, 1996 WL 591203, at **1 & 4 (Tenn.

Crim. App. at Knoxville, October 10, 1996), we observed that the jury could infer a motive and,

therefore, premeditation from the defendant’s “stormy relationship” with the victim, a relationship

that had culminated in a separation immediately prior to the murder. See also State v. Richardson,

875 S.W.2d 671, 674 (Tenn. Crim. App. 1993)(holding that the evidence adduced at trial including

evidence of ongoing animosity between the defendant and the victim was sufficient to sustain the

defendant’s conviction of attempted first degree murder); State v. Johnny O. Clark, No. 02C01-9708-

CR-00307, 1998 WL 170141, at *4 (Tenn. Crim. App. at Jackson, April 14, 1998)(observing that

the jury could infer premeditation from evidence that the “appellant and the victim had an oral

argument three days prior to the homicide”); cf. State v. Smith, 868 S.W.2d 561, 574 (Tenn.

1993)(confirming that, under Tenn. R. Evid. 404(b), “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”); State v. Jackie Lee Redd, No. 03C01-9101-CR-0007, 1991 WL 136316, at *2 (Tenn. Crim.

App. at Knoxville, July 25, 1991)(observing that the defendant’s act of spitting on the victim

“revealed some deep animosity toward the victim, from which premeditation for the killing a few

minutes later can be inferred”). Conversely, in Schafer, 973 S.W.2d at 273, this court held that the

State had failed to prove premeditation due, in part, to the lack of any proof of motive: Specifically,

we stated that “the proof demonstrate[d] no argument between the [the defendant and the victim].

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The proof further demonstrate[d] little to no prior relationship between the defendant and [the

victim].” Id.

In this case, although the State introduced other evidence concerning the Coulters’

relationship prior to this offense, the challenged notes and letters uniquely imparted the appellant’s

perspective on his marriage and on his ongoing dispute with his wife as the appellant wrote the notes

and letters contemporaneously with the dispute. Thus, by virtue of these documents, the jury was

able to more accurately assess the bitterness of the dispute, which persisted for at least one year prior

to this offense. Again, several of the documents reflect the appellant’s anger at his wife’s withdrawal

from any intimacy with him and possible infidelity despite her continued cohabitation with him.

More importantly, several documents also reflect the appellant’s fervent desire to reconcile with his

wife and his opposition to ending their marriage. In assessing whether this evidence could

reasonably affect the probability of premeditation in the context of other evidence introduced at trial,

the trial court was entitled to “draw upon common sense, general knowledge, and its understanding

of human conduct and motivation.” Hayes, 899 S.W.2d at 183.

We note in passing that the appellant does not argue on appeal that the undated notes

and letters were inadmissible due to any possible lack of temporal proximity to the murder. In any

event, this court has observed that, “while ‘a lapse of time may, of course, affect [the relevance of

evidence], it is the rational connection between events, not the temporal one, that determines whether

the evidence has probative value.’” Gentry, 881 S.W.2d at 7 (approving the admission of evidence

that the defendant threatened the victim over a period of years before murdering him)(alteration in

original); see also State v. Ronald Jeffery Davis, No. 03C01-9511-CC-00360, 1997 WL 184771, at

*3 (Tenn. Crim. App. at Knoxville, April 17, 1997)(approving the admission of evidence that the

defendant delivered a threatening message to the victim approximately four or five months before

attempting to murder him). Moreover, it is apparent from both the contents of the notes and letters

and other evidence introduced at trial that the appellant wrote them during the year preceding this

offense.

Again, the appellant asserts that, notwithstanding any probative value of the notes and

letters, that value was substantially outweighed by the danger of unfair prejudice due to the

appellant’s use of “sexually graphic language.” We submit, however, that this language itself

possessed great probative value in showing the degree of the appellant’s animosity toward his wife.

Cf. State v. Audrey Martin, No. 299, 1990 WL 18173, at *3 (Tenn. Crim. App. at Knoxville, March

1, 1990). Moreover, having carefully reviewed the notes and letters, we cannot say that the

introduction of the challenged documents posed any significant danger of unfair prejudice. In sum,

we decline to disturb the trial court’s exercise of its discretion. This issue is without merit.

e. Ms. Coulter’s Plans to Move

Relying once more upon general evidentiary rules of relevance, the appellant further

argues that the trial court erred in denying his pre-trial motion to exclude from evidence any proof

of Ms. Coulter’s plans to move from the Coulters’ mobile home into an apartment. The appellant

asserts that he was “completely unaware” of Ms. Coulter’s plans to move; therefore, this evidence

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was irrelevant to the principal issue at his trial of whether he possessed the requisite mental state for

first degree premeditated murder and, moreover, “served to the substantial prejudice of the defendant

[and] confused the jury.” The State disagrees, and so do we.

Initially, the State correctly notes in its brief that the fact of the Coulters’ imminent

separation, whether known by the appellant or not, substantiated the deterioration of their

relationship prior to this offense. More importantly, the appellant’s assertion that, at the time of the

murder, he was “completely unaware” of his wife’s plans “to relocate herself” is belied by the record

before this court. Briefly recapitulating, the appellant himself stated to police that his wife had

repeatedly informed him of her intention to move as soon as she was financially able to do so and

that his wife had further indicated her intention to obtain a restraining order when she moved. The

appellant was served with an order of protection only hours prior to the murder. Moreover,

photographs of the crime scene depict several moving boxes in Ms. Coulter’s bedroom. Sergeant

Hollins further testified that clothes were lying openly about Ms. Coulter’s bedroom, seemingly in

preparation for packing. The appellant apparently had free access to Ms. Coulter’s bedroom as there

was no lock on the bedroom door. Additionally, in one of his letters to Ms. Coulter, the appellant

complained that she was “collecting boxes, getting newspapers and calling about places to live.”

Although this letter was undated, the appellant referred in the letter to the sexually explicit letters

that were written by his wife and that he discovered approximately four months prior to this offense.

In sum, the disputed proof was relevant and posed no danger of unfair prejudice or confusion of the

issues. Accordingly, the appellant’s claim is without merit.

f. Sybil Victory’s Testimony

The appellant next contends that the trial court erred in overruling his objection to

testimony by Sybil Victory concerning her telephone conversation with Ms. Coulter approximately

five or six months prior to this offense and statements that were made in the background by a man

to whom Ms. Coulter referred as “Larry.” The appellant rests his challenge upon Tenn. R. Evid. 602,

arguing that the State failed to establish that Ms. Victory possessed “personal knowledge” “as to the

sound of [the appellant’s] voice and did not have the ability to identify his voice.” The State

responds:

Ms. Victory reasonably thought that she could identify the voice she

heard yelling at Mrs. Coulter as the defendant’s. She was rigorously

cross-examined about the basis of her identification. The trial court

correctly allowed the jury to determine the weight to be given Ms.

Victory’s identification of the defendant.

We conclude that this issue, also, is without merit.

Initially, we note that Victory did not identify the voice in question as the voice of the

appellant. Indeed, she specifically conceded that this telephone conversation was the sole occasion

on which she had ever heard the voice in question. Again, Victory merely testified that she called

Ms. Coulter “at home,” a man’s voice answered the telephone, Ms. Coulter subsequently referred

to the man who answered the telephone as “Larry,” and Victory overheard this man cursing at Ms.

Coulter and complaining concerning Ms. Coulter’s use of the telephone. There is no dispute that

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Victory had personal knowledge of these facts. Accordingly, Victory’s testimony was entirely

consistent with Tenn. R. Evid. 602.

At trial, without citing the pertinent rule of evidence, the appellant objected to

Victory’s testimony on the basis that the State had failed to “lay a foundation that that was Larry

Coulter that she . . . heard.” To the extent the appellant is, in fact, relying upon Tenn. R. Evid.

104(b) and Tenn. R. Evid. 901 in this appeal, we consider his brief to be inadequate, Tenn. Ct. of

Crim. App. Rule 10(b); Tenn. R. App. P. 27(a)(7), nor is relief otherwise warranted. Tenn. R. Crim.

P. 52(b).

g. Fawn Jones’ Testimony

Citing Tenn. R. Evid. 615, the appellant next asserts that the trial court erred in

overruling his objection to testimony by Fawn Jones notwithstanding her presence in the courtroom

when the State played to the jury the video cassette recording of McVicker’s deposition. The State

responds that the trial court acted within its discretion, and we agree.

1. Trial Court Proceedings

On December 22, 1998, the State filed a motion pursuant to Tenn. R. Evid. 615 to

sequester all witnesses testifying at the appellant’s trial, which motion the trial court granted.

Subsequently, during the appellant’s trial, defense counsel interrupted the testimony of a State’s

witness, Fawn Jones. In a bench conference outside the jury’s hearing, defense counsel notified the

court that

[co-counsel] has just made me aware this witness was in the

courtroom earlier during at least part, if not all, of Mr. McVicker’s

testimony, so she has apparently violated the rule that we had in effect

in this case. So I object to her being able to testify at all.

The prosecutor responded that Jones had entered the courtroom during a lull in proceedings and that

he had immediately asked her to leave the courtroom. The prosecutor asserted, “And at that time

there was no witness nor was the tape being played.” Defense counsel, in turn, acknowledged that

“[the prosecutor] did ask her to leave, apparently as soon as he knew about it.” Following this

exchange, the trial court determined:

This is within the discretion of the trial court. And considering what

testimony she’s testifying about and the relationship of what

previously was testified, I overrule the objection.

2. Analysis

Tenn. R. Evid. 615 is commonly referred to as the “rule of sequestration” and

provides:

At the request of a party the court shall order witnesses, including

rebuttal witnesses, excluded at trial . . . . The court shall order all

persons not to disclose by any means to excluded witnesses any live

trial testimony or exhibits created in the courtroom by a witness.

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“The purpose of the rule is to prevent one witness from hearing the testimony of another and

adjusting his testimony accordingly.” State v. Harris, 839 S.W.2d 54, 68 (Tenn. 1992); see also State

v. Larry S. Brumit, No. M1999-00154-CCA-R3-CD, 2000 WL 502681, at *14 (Tenn. Crim. App.

at Nashville, April 28, 2000), perm. to appeal denied, (Tenn. 2000). “‘The rule’ may be invoked at

anytime and is mandatory.” State v. Anthony, 836 S.W.2d 600, 605 (Tenn. Crim. App. 1992).

Notwithstanding its mandatory nature, the rule does not set forth a sanction for its

violation. However, this court has observed that, in the most egregious cases, possible sanctions

include the declaration of a mistrial or the preclusion of a witness from testifying. Anthony, 836

S.W.2d at 605; State v. Jackie Dean Mayes, Jr., No. 01C01-9806-CR-00265, 1999 WL 771011, at

*3 (Tenn. Crim. App. at Nashville, September 30, 1999). In contrast, “[i]f a witness inadvertently

and unintentionally hears some trial testimony, the sense of the rule would permit the judge to allow

the witness to testify if fair under the circumstances.” Tenn. R. Evid. 615, Advisory Commission

Comments. In those less egregious cases, “[a] violator may be subjected to cross-examination about

the incident . . . [and] [a] jury could be instructed to consider the violation of the sequestration order

in assessing the witnesses’ testimony.” Anthony, 836 S.W.2d at 605; see also Mayes, No. 01C01-

9806-CR-00265, 1999 WL 771011, at *3.

The trial judge is afforded wide discretion in determining whether a case is

sufficiently egregious to warrant either the declaration of a mistrial or the preclusion of a witness

from testifying. Brumit, No. M1999-00154-CCA-R3-CD, 2000 WL 502681, at *14. For the

purpose of determining both the facts of the violation and the appropriate sanction, trial courts in

Tennessee generally hold a jury-out hearing. State v. Victoria Voaden, No. 01C01-9305-CC-00151,

1994 WL 714223, at *9 (Tenn. Crim. App. at Nashville, December 22, 1994). Once the facts of the

violation are established, the appropriate sanction will generally depend upon the following factors:

(1) the harm caused by the sequestration violation; (2) the importance of the testimony of the witness

who ignored the sequestration decree; and (3) who was at fault in the violation, i.e., was it accidental

or intentional? NEIL P. COHEN ET AL., TENNESSEE LAW OF EVIDENCE § 615.4, at 431 (Michie ed.,

3d ed. 1995).

On appeal, in reviewing the trial court’s exercise of its discretion, this court must

consider both “the seriousness of the violation and the prejudice, if any, that enured to the

[appellant].” State v. James Edward French, No. 03C01-9503-CR-00096, 1996 WL 138289, at *6

(Tenn. Crim. App. at Knoxville, March 28, 1996). However, it is not entirely clear from the record

in this case that a sequestration violation occurred. The representations of defense counsel and the

prosecutor significantly differed, and the trial court did not conduct a jury-out hearing for the purpose

of determining whether or not Jones was exposed to McVicker’s testimony and, if so, to what extent.

Indeed, the appellant did not request an evidentiary hearing. Of course, the

appellant’s failure raises the issue of whether or not the trial court was required to conduct an

evidentiary hearing sua sponte. Cf., e.g., State v. Nguyen, 756 A.2d 833, 835 & 840-844 (Conn.

2000)(interpreting its own, distinct rule of sequestration and holding that, “although the trial court

must conduct a preliminary inquiry of counsel when presented with a facially credible allegation that

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a sequestration order has been violated, whether to conduct an evidentiary hearing sua sponte is a

matter within the trial court’s discretion”). However, we note that, notwithstanding any error by the

trial court, the appellant did not attempt to make an offer of proof for purposes of appeal.

In any event, even assuming that Jones was present in the courtroom when the State

played to the jury the video cassette recording of McVicker’s testimony, it is undisputed that the

violation of the rule was purely accidental. Moreover, our review of the record satisfies us that no

prejudice enured to the appellant. Although Jones’ testimony was related to McVicker’s testimony

in the very broad sense that both testimonies concerned the breakdown of the appellant’s relationship

with his wife at the time of this offense, the specific facts to which each witness testified were

discrete. More importantly, Jones’ testimony was largely cumulative of other evidence adduced at

trial. Accordingly, the possibility that Jones altered her testimony to conform to McVicker’s was

minimal. Finally, we must agree with the State that the appellant’s failure to cross-examine Jones

concerning her exposure to McVicker’s testimony or request a jury instruction concerning Jones’

exposure suggests an absence of any urgent concern by the appellant about possible prejudice. Tenn.

R. App. P. 36(a). This issue is without merit.5

h. Bullet Recovered from the Victim’s Body

The appellant couches his next complaint in the following manner: “The trial court

erred in overruling defendant’s objection to allowing the State to enter testimony regarding the

alleged bullet recovered from the victim’s body due to the fact that the bullet was not made available

to the defendant as the same was lost by the LaVergne Police Department.” However, the

appellant’s argument encompasses testimony by the State’s firearms identification expert concerning

both the bullet recovered from Ms. Coulter’s bed and the bullet recovered from her brain.

Specifically, the appellant cites State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999), and argues that the

loss of both bullets by the La Vergne Police Department resulted in a trial lacking fundamental

fairness. Alternatively, the appellant cites Tenn. R. Evid. 403 and asserts that, due to the loss of the

bullets, any probative value of the disputed testimony was substantially outweighed by the danger

of unfair prejudice. The State responds that, “because the defendant was not denied a fair trial by

the introduction of the evidence, the defendant is not entitled to any relief on this issue.” We

conclude that the trial court properly overruled the appellant’s objection.

1. Trial Proceedings

As noted previously, the State introduced at trial the testimony of Donald Carman,

an expert in firearms identification employed by the TBI. Again, Carman testified that he performed

testing on the appellant’s Taurus .38 Special revolver, the bullet recovered from Ms. Coulter’s bed,

and the bullet recovered from Ms. Coulter’s brain, and he determined that the bullets were fired from

the appellant’s revolver. Defense counsel interjected an objection to Carman’s testimony on the

5

The advisory commission comments to Tenn. R. Evid. 615 state: “This rule does not prohibit a witness from

reviewing depositions of other witnesses before testifying.” See also State v. Jackson, 889 S.W.2d 219, 223 (Tenn. Crim.

App. 1993). However, in light of the purpo se of the rule, we doubt this state ment enco mpasses d epositions tha t a party

intends to introduce at trial in lieu of live testimony. Tenn. R. Crim. P. 15.

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basis that both bullets were “unavailable.” The State responded that the appellant had been provided

Carman’s report well in advance of trial and, moreover, questioned whether the appellant would have

conducted independent testing of the bullets had they been available. The trial court summarily

overruled the objection.

2. Analysis

In Ferguson, 2 S.W.3d at 915, our supreme court addressed “what consequences flow

from the State’s loss or destruction of evidence alleged to have been exculpatory.” Specifically, the

court rejected the analysis set forth in Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333 (1988),

to the extent the United States Supreme Court required that a defendant show bad faith on the part

of police in order to establish a denial of due process of law. Ferguson, 2 S.W.3d at 917. Instead,

the court applied due process principles embodied in Article 1, Section 8 of the Tennessee

Constitution and “promulgate[d] . . . an analysis in which the critical inquiry is: Whether a trial,

conducted without the [lost or] destroyed evidence, would be fundamentally fair?” Id. at 914

(footnote omitted).

In resolving the question of fundamental fairness, a court must first determine

whether the State had a duty to preserve the lost or destroyed evidence. Id. at 917. In this regard,

the supreme court observed that, “[g]enerally speaking, the State has a duty to preserve all evidence

subject to discovery and inspection under Tenn. R. Crim. P. 16, or other applicable law.” Id.

However, for purposes of fundamental fairness, the court seemingly cited with approval the

following statement by the United States Supreme Court in California v. Trombetta, 467 U.S. 479,

488-489, 104 S. Ct. 2528, 2534 (1984)(footnote and citation omitted):

Whatever duty the Constitution imposes on the States to preserve

evidence, that duty must be limited to evidence that might be

expected to play a significant role in the suspect’s defense. To meet

this standard of constitutional materiality, evidence must both possess

an exculpatory value that was apparent before the evidence was

destroyed, and be of such a nature that the defendant would be unable

to obtain comparable evidence by other reasonably available means.

Ferguson, 2 S.W.3d at 917.

Only if the proof demonstrates the existence of a duty to preserve and further shows

that the State has failed in that duty must a court turn to a balancing analysis involving consideration

of the following factors:

1. The degree of negligence involved;

2. The significance of the destroyed evidence, considered in light of

the probative value and reliability of secondary or substitute evidence

that remains available; and

3. The sufficiency of the other evidence used at trial to support the

conviction.

Id. (footnote omitted). See also State v. Ricky Hill Krantz, No. M1999-02437-CCA-RM-CD, 2000

WL 59915, at *1 (Tenn. Crim. App. at Nashville, January 25, 2000), perm. to appeal denied, (Tenn.

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2000). If the court’s consideration of these factors reveals that a trial without the missing evidence

would lack fundamental fairness, the court may consider several options. For example, the court

may dismiss the charges or, alternatively, provide an appropriate jury instruction. Id. Again, the

appellant in this case asserts only that the trial court should have excluded Carman’s testimony

concerning testing performed upon the spent bullets.

Applying the above analysis to the instant case, we note that, although furnished with

Carman’s report prior to trial, the appellant has never demonstrated any flaw in Carman’s testing

methodology or otherwise questioned the results of Carman’s testing. Indeed, the appellant has

never disputed that he killed his wife using the Taurus .38 Special revolver, nor does the record

contain a scintilla of evidence suggesting otherwise. In short, to conclude that the bullets possessed

exculpatory value on the basis of

This text is long and has been trimmed here. Open the source document for the complete record.