State of Tennessee v. Thomas Lee Hutchison

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

December 17, 2013 Session

STATE OF TENNESSEE v. THOMAS LEE HUTCHISON

Appeal from the Criminal Court for Knox County

No. 88264 Jon Kerry Blackwood, Judge

No. E2012-02671-CCA-R3-CD - Filed April 11, 2014

A Knox County jury convicted appellant of three counts of facilitation of first degree murder

and one count of facilitation of especially aggravated robbery. The trial court merged the

facilitation of first degree murder convictions and sentenced appellant to seventeen years.

The trial court also sentenced appellant to a concurrent sentence of eight years for facilitation

of especially aggravated robbery. On appeal, appellant presents thirteen issues for our

review: (1) whether the trial court erred in overruling appellant’s motion to suppress evidence

seized in an extended warrantless search of his house; (2) whether the trial court erred in

allowing the State to introduce video footage of the crime scene; (3) whether the trial court

erred in allowing the State to introduce evidence of blood samples taken from appellant

without a warrant; (4) whether the trial court erred in admitting prior bad act evidence; (5)

whether the trial court erred by allowing testimony regarding evidence that had been

destroyed; (6) whether the trial court erred by allowing a medical examiner to testify about

an autopsy performed by another medical examiner; (7) whether the trial court erred in

denying appellant’s three motions for mistrial based on prosecutorial misconduct; (8)

whether the trial court erred when it denied appellant’s request for a continuance in light of

the State’s late disclosure of certain evidence; (9) whether the trial court erred by denying

appellant’s request to strike a witness’s testimony when the testimony was internally

contradictory; (10) whether the trial court erred by allowing the State to introduce graphic

photographs of the victim’s injuries; (11) whether the trial court erred in its jury instructions;

(12) whether the evidence was sufficient to support appellant’s convictions; and (13) whether

appellant is entitled to a new trial due to cumulative error. Based on our thorough review,

we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

R OGER A. P AGE, J., delivered the opinion of the court, in which N ORMA M CG EE O GLE, J.,

joined. J OSEPH M. T IPTON, P.J., filed a separate opinion, concurring in part and dissenting

in part.

Robert L. Jolley, Jr., and Megan A. Swain, Knoxville, Tennessee, for the appellant, Thomas

Lee Hutchison.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilbur, Assistant Attorney

General; Randall Eugene Nichols, District Attorney General; and Ta Kisha Fitzgerald,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Facts

This case concerns the February 19, 2002 murder and robbery of the victim, Gary

Lindsey. The victim was killed in appellant’s home, and the police arrested appellant for the

crime. On December 11, 2007, a Knox County grand jury indicted appellant for

premeditated murder, murder in the perpetration of robbery, murder in the perpetration of

theft, and especially aggravated robbery. Prior to trial, appellant moved the court, in separate

pleadings, to suppress blood evidence taken from appellant without a warrant and to suppress

all evidence seized from appellant’s house during a warrantless search. The trial court

denied both motions. On or around November 19, 2010, the State notified appellant that

physical evidence in his case had been inadvertently destroyed by the Knoxville Police

Department (“KPD”). Consequently, appellant moved the court to dismiss the indictment

based on the destruction of evidence. The trial court heard appellant’s motion to dismiss the

indictment on February 25, 2011, and subsequently denied the motion. On May 27, 2011,

appellant filed a motion requesting that the trial court reconsider the previously filed motions

to suppress evidence. The trial court granted the motion to reconsider but ultimately denied

the motions to suppress by written order filed July 13, 2011. The matter proceeded to trial

on August 8, 2011, and the jury found appellant guilty of three counts of the lesser included

offense of facilitation of first degree murder and one count of the lesser included offense of

facilitation of especially aggravated robbery.

A. Motions to Suppress Hearing

The trial court heard arguments and testimony regarding both motions to suppress

during the same hearing. At the hearing, Michael Mays testified that he was the records

specialist for the Knox County Emergency Communications District. According to Mr.

Mays, the 9-1-1 system received a call regarding a shooting at 1:21 a.m. on February 20,

2002, at appellant’s residence. The complainant was Gene Mitchell. The first officer arrived

at the scene at 1:23 a.m., and another officer arrived at 1:28 a.m. Detectives from the Major

Crimes unit arrived at 1:37 a.m., and the crime scene investigators arrived at 1:39 a.m. A

person was transported to the University of Tennessee Medical Center emergency room,

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accompanied by a Major Crimes detective and an officer, at 1:46 a.m. At 2:56 a.m.,

University of Tennessee police were called for a blood alcohol test kit. Mr. Mays said that

the majority of the police began leaving the crime scene around 4:00 a.m. On cross-

examination, Mr. Mays clarified that the records did not indicate that a person was

transported to the emergency room, only that a detective and an officer went there at 1:46

a.m. In addition, he said that the last crime scene officer left the scene at 8:49 a.m.1

KPD Officer Joshua Shaffer testified that he received a call about a shooting on

Millertown Pike on February 20, 2002. He had just driven by the location, so he turned

around to find the address. A vehicle attempting to exit a driveway at a high rate of speed

caught his attention, and he blocked the vehicle in the driveway. The driver exited and

screamed, “‘He’s inside.’” Officer Shaffer then saw two men exiting the house. He gathered

the three men into the carport of the house. The men were frantic and kept saying,

“‘Inside.’” Officer Shaffer entered the house and observed appellant sitting on the floor.

Appellant had blood on his head and upper body. Officer Shaffer also saw a broken fireplace

poker on the floor that had blood on it. The other three men re-entered the house and began

yelling at appellant. Officer Shaffer asked another officer who had arrived to escort the men

out. As they were leaving, they pointed toward a specific room and said, “‘He’s in there.’”

Officer Shaffer entered the room via a small set of stairs. He noted that it was not possible

to see the floor of the room until one reached the top of the stairs. Once he could see the

floor, he observed a body lying face down on the floor with significant injuries. Officer

Shaffer testified that it was clear from the injuries that the person was deceased, so he briefly

checked the room to assess whether anyone else was there, then exited.

Thereafter, Officer Shaffer stayed with appellant while medical personnel treated him

at the house, and then he accompanied appellant to the hospital in the ambulance. Officer

Shaffer testified that his purpose was to take any potential evidence, such as appellant’s

clothing, into possession immediately if he had the opportunity, and he did, in fact, take

possession of appellant’s clothing. Officer Shaffer further testified that he observed blood

and “tissue type items” on appellant’s pants. He said that at the time, he was not able to

affirmatively identify the tissue, but he connected it with the victim’s head trauma. While

at the hospital, Officer Shaffer asked the hospital staff to take a sample of appellant’s blood

for a drug and alcohol screening.

On cross-examination, Officer Shaffer testified that the first time he recalled seeing

handcuffs on appellant was in the ambulance. He further testified that he did not have a

search warrant for appellant’s house and that he did not have a resident’s consent to search.

1

We note that other witnesses provided slightly different times; however, with the differences being

inconsequential, for purposes of this opinion, we will rely on the times provided by Mr. Mays.

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Officer Shaffer confirmed that at the time he requested the blood sample, he did not have any

information about drug or alcohol use at appellant’s residence.

KPD employee Janice Gangwer testified that she was a forensic specialist in 2002.

She responded to the scene of the victim’s homicide on February 20, 2002. She videotaped

the scene prior to any collection of evidence. The State played the crime scene video while

Ms. Gangwer narrated. Ms. Gangwer also detailed the evidence collected from the scene and

evidence collected by Officer Shaffer (appellant’s clothing and blood sample) that he turned

over to her. She testified that she was at the scene from 1:41 a.m. until 6:00 a.m.

On cross-examination, Ms. Gangwer testified that the victim’s body was removed

from the crime scene around 5:30 a.m. She agreed that nothing occurred over the course of

the time she was at the scene that would have destroyed evidence. Ms. Gangwer testified

that she collected blood, swabs of appellant’s hands, and fingernail clippings from appellant

pursuant to a search warrant. On re-direct examination, Ms. Gangwer testified that the crime

scene log indicated that the victim’s body was removed at 5:00 a.m.

The trial court ultimately denied appellant’s motions to suppress, and it reaffirmed this

decision after reconsidering the motion. The trial court concluded that Officer Shaffer’s

entry into appellant’s house was under exigent circumstances and that the crime scene unit’s

entry was an extension of Officer Shaffer’s entry. The trial court further concluded that the

officers were justified in seizing evidence under the plain view doctrine. Finally, the trial

court concluded that the seizure of appellant’s blood by Officer Shaffer was reasonable

because Officer Shaffer had probable cause to believe a crime had been committed. The trial

court reasoned that analysis of appellant’s blood would be critical evidence, considering the

blood spatters found in his house and the blows he had received.

B. Motion to Dismiss Indictment Hearing

On November 24, 2010, appellant moved to dismiss the indictment based on the

State’s negligent destruction of material, exculpatory evidence. In the motion, appellant

alleged that the State had notified appellant’s counsel on November 19, 2010, that all

evidence in his case had been destroyed. The trial court held a hearing on the motion on

February 25, 2011.

At the hearing, the prosecutor reviewed the history of the case and explained that the

evidence in the case was stored on State Street. The case was scheduled for trial in August

2010, so the prosecutor called KPD and asked that the evidence be pulled so that she and

appellant’s counsel could review it. The attorneys ultimately did not view the evidence then

because the case was continued. When they began preparing for trial again, the State’s

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attorney called KPD, and KPD informed her that they could not locate the evidence. The

State’s attorney explained KPD’s general procedure for destroying evidence: KPD obtains

a court order to destroy evidence and then places evidence on pallets outside to be picked up

and taken to a landfill. KPD suspected that the evidence in appellant’s case was

inadvertently taken to the landfill along with evidence tagged for destruction.

Appellant’s counsel argued that while photographs of much of the evidence existed,

no photographs existed of appellant’s shirt and jacket, which were seized by Officer Shaffer

at the hospital. Counsel further argued that the items were exculpatory because the crime

laboratory had determined that only appellant’s blood was on the items. Counsel also posited

that the destruction of the evidence prevented appellant from presenting a defense that the

murder was committed by another person or was committed in self-defense. In addition,

counsel stated that the destruction of a gold nugget ring prevented the jury from contrasting

that ring with the ring removed from the victim during the autopsy and that it impeded

witnesses from identifying whether the rings were typically worn by the victim. Counsel

argued that a chain of custody issue arose due to the destruction because the chain of custody

documentation was marked on each individual item. Counsel contended that appellant was

left with no way to preserve the issue of appellant’s blood samples because the samples were

destroyed and that appellant no longer had any way to collect fingerprints or test any of the

items, such as the crack cocaine found on the victim’s person and in appellant’s house.

Finally, counsel pointed out that there was no destruction order in this case and no

documentation of any removal of the evidence from storage after April 2009.

The State responded that the case was not limited to physical evidence because there

were also laboratory reports, photographs, and testimony from witnesses and investigators.

The State contended that the evidence was inculpatory, as shown in part by appellant’s

motion to suppress all of the evidence, rather than exculpatory. The State also noted that

appellant had never asked to test any of the evidentiary items prior to being notified of their

destruction.

In its order denying appellant’s motion to dismiss, the trial court concluded that the

destroyed evidence had some exculpatory value. The State had conceded that it had a duty

to preserve the evidence, and the court determined that the destruction of the evidence was

simple negligence. In making that determination, the trial court focused on several factors:

(1) no motion was made for additional testing of the evidence between 2002 and 2009; (2)

when additional testing was performed in 2009, “no mention was made of its exculpatory

nature until it was destroyed”; (3) the KPD stored the evidence according to protocol for

many years but negligently failed to return it to its original place; and (4) the KPD

accidentally destroyed the evidence. The court stated that it had reviewed the exhibits filed

in the case and that it determined that the probative value of the evidence was not significant

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because any “[f]urther testing would be speculative” and because the evidence would have

shown “what would be uncontroverted at trial.” The court further determined that the

photographs of the evidence alongside photographs of the crime scene were reliable and

provided appellant an adequate opportunity to present a defense. The court ruled that the

destruction of the evidence did not deprive appellant of a fair and impartial trial and thus

denied appellant’s motion to dismiss the indictment.

C. Motion to Dismiss and Motion for a Continuance

During a pre-trial motion hearing on August 8, 2009, appellant renewed his motion

to dismiss the indictment and moved for a continuance. The continuance motion was based

on his having received from the State on August 5, 2009, two photographs, which purported

to be of appellant’s clothing. In addition, appellant complained that he had not received from

the State a statement made to the police by witness John Mitchell. The State responded that

appellant had recently requested photographs from the Tennessee Bureau of Investigation

(“TBI”). The State contacted the TBI, and Agent Keith Proctor sent the State two

photographs, which it then sent to appellant. The photographs were of appellant’s clothing

that had been tested by the TBI, specifically a jacket and shirt. The State noted that these

clothing items were the same ones appellant had listed at a prior motion hearing as items of

which he did not have photographs following the destruction of the evidence. Regarding

John Mitchell’s statement, the State said that it did not have a copy of the statement but that

the police investigative action report detailed what each witness told the police. The State

contended that appellant would be able to potentially impeach John Mitchell with the action

report. The trial court denied appellant’s motions.

D. Trial

Michael Mays, the custodian of records at the Knox County Emergency

Communications District 9-1-1 (“E-9-1-1”), explained that recordings of 9-1-1 calls were

only kept for fifteen months but that calls and dispatch reports were also logged into the

computer-aided dispatch (“CAD”) system. The State introduced a CAD report, dated

February 20, 2002, into evidence and asked Mr. Mays to explain the report. Mr. Mays

testified that according to the report, E-9-1-1 received a call from Gene Mitchell at 1:19 a.m.

The dispatcher noted on the report that she had difficulty understanding the complainant

(Gene Mitchell) but that the complainant reported that someone had been killed and that

“‘they [were] holding a suspect.’” The remainder of Mr. Mays’ testimony was consistent

with his testimony during the motion to suppress hearing, with two notable exceptions. He

added that a description of witness Penny Cox was entered at 2:56 a.m. and that the report

noted that officers had called area taxi cab companies to determine whether Ms. Cox had

taken a cab.

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KPD Officer Joshua Shaffer testified consistently with his testimony at the motion to

suppress hearing. Officer Shaffer was the first officer to arrive and encountered three men

outside of appellant’s home. He entered appellant’s home and observed appellant, who was

sitting in the living room and obviously injured. Officer Shaffer found the victim’s body. He

testified that it was immediately apparent that the victim was deceased. Officer Shaffer

accompanied appellant to the hospital and collected his clothing. Officer Shaffer also had

the hospital staff take a blood sample from appellant. He said that he requested the blood

sample to determine whether the blood at the scene and on appellant belonged to appellant

or the victim.

In addition to the testimony previously given, Officer Shaffer testified that he had

been involved in drug investigations and had learned that people often hid drugs in their

pockets, in the lining of their waistbands, or in their underwear. He further testified that

when he found the victim, the victim’s pants had been pulled down around his knees. Officer

Shaffer said that people who are high on crack cocaine are generally agitated or excited.

When he found appellant, appellant was “disoriented, dazed, confused[,] . . . the other end

of the spectrum” from someone who had just smoked crack cocaine. Officer Shaffer testified

that appellant’s behavior was more consistent with someone “coming off of a high” or at “the

end phase” of a high.

On cross-examination, Officer Shaffer testified that the victim’s body was not covered

when he first saw it. He further testified that all of appellant’s clothing had been placed in

a single bag by a hospital employee.

Melanie Carlisle, a forensic scientist with the TBI, testified that she tested appellant’s

blood using the sample taken at 3:23 a.m. on February 20, 2002. She found less than .25

micrograms per milliliter of cocaine in his blood. She further testified that based on the half-

life of cocaine, appellant would have ingested cocaine three hours before the blood sample

was taken.

KPD crime scene technician Janice Gangwer testified that she processed the scene at

appellant’s house. She first videotaped the scene, beginning outside the house and walking

through the house. The State played the video for the jury as Ms. Gangwer narrated. Also

through Ms. Gangwer’s testimony, the State introduced photographs of the crime scene;

appellant, as he appeared at the hospital; and Penny Cox, as she appeared while at the police

station. Ms. Gangwer and her partner, Gerald Smith, collected evidence from the house,

including a knife handle with a broken blade; 0.27 grams of crack cocaine; a crack pipe; a

crowbar with blood, hair, and brain matter on it; a shirt; a jacket; and a “gold nugget ring”

with blood on it from the bathroom counter.

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Ms. Gangwer testified that she also collected swabs of appellant’s hands, head, and

right foot, as well as his fingernail clippings. She observed while a nurse drew appellant’s

blood, and then she transported his blood and the other items to the property unit. Ms.

Gangwer submitted to the TBI all the samples she had taken, appellant’s blood, samples from

appellant’s clothing, and blood and hair samples from the victim. Ms. Gangwer testified that

she and Mr. Smith tested various items in the house for fingerprints, including the knife

handle and the crowbar. They were unable to obtain useful fingerprints from either item

because the knife handle was covered in blood and the surface of the crowbar was too rough.

Penny Cox testified that she met appellant through John “J.B.” Mitchell. She met the

victim through Mr. Mitchell’s family. Ms. Cox said that the first day she went to appellant’s

house, Mr. Mitchell and the victim were also there. The following day, she was again at

appellant’s house along with Mr. Mitchell and the victim, and they played a card game

together. Ms. Cox testified that during the game, appellant asked the victim for crack

cocaine. The victim responded by calling appellant a “dumb a**.” Ms. Cox said that she

was at appellant’s house the day after the card game and that she planned to rent a room from

appellant. That day, appellant told her that he did not like the victim and that he planned to

rob the victim. Appellant did not tell her his plan, however.

Ms. Cox testified that she overheard appellant talking on the telephone with a person

she assumed was the victim. Appellant told the victim that he knew a doctor who wanted to

buy crack cocaine. Subsequently, the victim and Mr. Mitchell arrived at appellant’s house.

Ms. Cox stayed in the bedroom she planned to rent, but she managed to overhear their

conversation. The men discussed setting up a drug deal with the doctor, and appellant said

that he did not want anyone else in the house other than Ms. Cox, who would stay in her

bedroom. Mr. Mitchell and the victim left appellant’s house and later returned with a pizza.

They went directly to the upstairs bedroom. Mr. Mitchell came back downstairs and smoked

crack with Ms. Cox in her bedroom. After Mr. Mitchell left the house, Ms. Cox fell asleep.

Ms. Cox testified that she was awakened by the sound of loud thumps. Ms. Cox

emerged from her bedroom and saw appellant exiting the upstairs bedroom. She stated that

she thought she saw the victim’s body on the floor in the upstairs bedroom before appellant

closed the door. Ms. Cox described appellant as having blood on his hands and said he was

“wild looking.” Appellant told Ms. Cox that he had killed the victim with a knife. She said

that he looked out all the windows and turned off the lights. Appellant would not allow her

to leave or check on the victim. Ms. Cox testified that he asked her to help him dispose of

the body: “He said that he wanted to chop [the victim] up and burn him in the fireplace or

take him out back to a nursery and bury him.” She refused to help him. Ms. Cox said that

they smoked crack together and that he allowed her to call a friend, “Kim,” to pick her up.

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Ms. Cox testified that Kim picked her up and that they went to Kim’s apartment. Ms.

Cox told Kim what appellant had done, and Kim took her to “George[’s]” house on

“Tacoma.” While at George’s house, Ms. Cox called Mr. Mitchell’s father, Gene Mitchell,

II, and told him that appellant had killed the victim. She was taken by the police to the police

station the next day, where they interviewed her for several hours. Ms. Cox testified that she

had not changed clothes or showered in the interim between leaving appellant’s house and

arriving at the police station. She said that she did not have any blood or brain matter on her.

Ms. Cox denied stabbing, bludgeoning, or even touching the victim. She further testified that

she had been cooperative with the investigation and that at the time of trial, she no longer

used cocaine.

On cross-examination, Ms. Cox testified that during a jury-out hearing, she had

mistakenly said that the victim was the person who did not want anyone else in the house

during the drug deal with the doctor. She said that she did not remember telling the police

that appellant had not been angry with the victim. She also did not remember testifying at

an October 2007 hearing that she had not smoked cocaine the evening of the murder. Ms.

Cox admitted that she had a physical relationship with both Mr. Mitchell and the victim.

TBI special agent forensic scientist Margaret Bash testified that in 2002, she worked

in the serology unit. Agent Bash tested two areas of appellant’s blue jeans, the left pocket

and the ankle area, against samples of appellant’s blood and the victim’s blood. Blood from

the pocket matched appellant’s, and blood from the ankle area matched the victim’s. She

also tested appellant’s socks and determined that the blood on those was the victim’s. On

cross-examination, Agent Bash testified that she did not recall what area of appellant’s socks

she tested.

Gerald Smith testified that in 2002, he was a crime scene technician with the KPD.

Mr. Smith described the scene in the room where the victim was found: The victim was lying

face down on the floor, and there was blood spatter around the victim, up the walls, and on

items nearby. He noted that some items in the room did not have blood spatter but were on

top of items that did have blood spatter, which he interpreted to mean that “[t]here had been

some covering up of some of the spatter.” Mr. Smith explained that he and Ms. Gangwer

attempted to reveal the scene as it had been “at the time that [the] force was applied to [the]

blood source,” which they did by removing layers of items and examining each layer

individually. Mr. Smith testified that he measured the victim’s head wound and described

the wound as the source of the spattered blood. The State moved into evidence a photograph

depicting Mr. Smith’s measurement of the head wound, as well as several photographs of

items found at the scene that illustrated the blood spatter. Mr. Smith opined that based on

the blood spatter patterns, the victim was already prone on the carpet when he received “the

majority of the blows.” Mr. Smith testified that he attended the victim’s autopsy. He brought

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the crowbar and the knife handle found at the scene to the autopsy at the medical examiner’s

request. He said that the autopsy revealed that the victim had two stab wounds to his back

and that the knife blade was still in his back. Mr. Smith collected the victim’s clothing, the

knife blade, a bag of marijuana found in the victim’s shirt, and a crack rock found in the

victim’s sock.

John Bolton “J.B.” Mitchell testified that he knew both appellant and the victim. He

called the victim one of his best friends and stated that he knew appellant through his father,

Eugene “Gene” Mitchell. Mr. Mitchell testified that appellant met the victim through the

Mitchell family. He said that the victim occasionally brought food to appellant when

appellant was hungry. Mr. Mitchell stated that he knew Penny Cox through his father. Mr.

Mitchell testified that in the days leading up to the victim’s death, he took Ms. Cox to

appellant’s house, where they used crack cocaine together. He would come by appellant’s

house whenever Ms. Cox called him to buy more crack cocaine.

On February 19, 2002, Mr. Mitchell used cocaine with Ms. Cox at appellant’s house

and gave Ms. Cox and appellant each $20 worth of crack cocaine. He used Ms. Cox’s car

that day to drive around making drug sales. Around 8:30 or 9:00 p.m., Mr. Mitchell gave the

victim a ride to appellant’s house. He said that when they arrived, appellant asked Mr.

Mitchell why he had accompanied the victim, and Mr. Mitchell explained that the victim’s

car was broken down. Mr. Mitchell observed that doors were open in appellant’s house that

he had never seen open before. When he questioned appellant about it, appellant said that

his friend, to whom the men planned to sell drugs, had run away because he was worried

about being robbed. Mr. Mitchell testified that appellant was acting strangely during this

time and that as a result of appellant’s behavior, Mr. Mitchell warned the victim not to go

through with the sale. The victim ordered a pizza, and the three men waited for the pizza and

for the buyer to return. Appellant pressured Mr. Mitchell to leave the house, which he

eventually did. Before Mr. Mitchell left, he told the victim to call him when he was ready

to leave.

Mr. Mitchell testified that the victim never called him. Mr. Mitchell called appellant

to ask about the victim’s whereabouts, and appellant told him that the victim had left.

Appellant also asked Mr. Mitchell to bring him $40 worth of crack cocaine. Mr. Mitchell

and his brother went to appellant’s house to sell him the cocaine around 1:00 a.m., and they

saw their father along the way, waving at them and looking “hysterical.” When they arrived

at appellant’s house, appellant came outside, and they began discussing the drug deal. Mr.

Mitchell’s father arrived at that point and said that Ms. Cox had told him that appellant had

stabbed the victim. Mr. Mitchell ran inside and found the deceased victim in the upstairs

room. Mr. Mitchell said that the victim was wrapped in a blanket with a crowbar lying on

top of him and that “[h]e had no brains in his head.” Mr. Mitchell unwrapped the victim and

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prayed for his soul. He then “went out there to get” appellant. Appellant tried to run, but Mr.

Mitchell stopped him and beat him. He and his family took appellant back inside appellant’s

house. Mr. Mitchell dialed 9-1-1 and handed the telephone to his father. He continued to

beat appellant and asked him why he killed the victim. Appellant responded, “I didn’t do it

by myself.” Appellant would not say who else was involved, however. When the police

arrived, Mr. Mitchell went with them for questioning.

Mr. Mitchell testified that prior to his death, the victim had $2,000 in cash, marijuana,

and “a lot” of crack cocaine. The State showed Mr. Mitchell a photograph of the cocaine

found in the victim’s sock after his death, and Mr. Mitchell said that the victim had “way

more” than that amount before his death. Mr. Mitchell identified the nugget ring found in

the upstairs bathroom as the victim’s, explaining that he was with the victim when he bought

the ring. Mr. Mitchell further explained that the victim customarily wore two rings on one

hand. Mr. Mitchell testified that the crowbar found with the victim was usually propped up

beside appellant’s front door. Mr. Mitchell denied harming or robbing the victim.

On cross-examination, Mr. Mitchell testified that his father was on the telephone with

9-1-1 while Mr. Mitchell was beating appellant. He supposed that 9-1-1 was recording any

statements made at that time. Mr. Mitchell said that he could not tell whether appellant was

bloody when he came outside because it was dark. Mr. Mitchell testified that Ms. Cox had

been at appellant’s house for one and a half to two days before the victim’s death. He said

that he thought appellant’s house would be a safe place for her to “get high,” where she

would not have to worry about being robbed. Mr. Mitchell agreed that he had a physical

relationship with Ms. Cox. He said that he never played cards with Ms. Cox, appellant, and

the victim. Mr. Mitchell testified that the victim ordered the pizza to be delivered; he did not

leave to pick one up. Mr. Mitchell recalled that he spoke to Ms. Cox before he left

appellant’s house and told her to call him when the drug deal was complete. He agreed that

he was driving Ms. Cox’s car and said that Ms. Cox knew he used the car to make drug sales,

not to fix a broken taillight. Mr. Mitchell testified that he talked to Ms. Cox about the

victim’s death several times because he “was mad at her” and “thought she might have had

something to do with it.” Mr. Mitchell said that he did not leave the house to meet the police

outside; he stayed inside to continue restraining appellant.

TBI special agent forensic scientist Keith Proctor testified that on March 2, 2009, he

received a request from Gerald Smith to test certain items, including a blue sweatshirt, two

jackets, white shoes, a knife handle, a cellular telephone, a ring, a carpet sample, a crowbar,

swabs from appellant’s hands, and clippings from appellant’s fingernails. He was also given

blood standards from appellant and the victim. Agent Proctor found both appellant’s and the

victim’s blood on the finger swabs and fingernail clippings from appellant’s right hand, with

appellant being the major contributor and the victim being the minor contributor. Only

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appellant’s blood was located on the swabs and fingernail clippings from appellant’s left

hand. Human blood was located on appellant’s foot swab, but the DNA was insufficient or

degraded. Agent Proctor tested a blue shirt and found it to be positive for appellant’s blood.

A maroon jacket likewise tested positive for appellant’s blood. Appellant’s blood was found

on his white shoes, but other areas on the shoes provided inconclusive results due to

degraded or insufficient DNA. Agent Proctor found the victim’s blood on the knife handle

and the crowbar.

On cross-examination, Agent Proctor testified that he did not test the cellular

telephone because he did not deem it necessary. He also did not examine the ring or carpet

sample.

KPD Officer Bob Solomon testified that he worked in the property unit. He recalled

that the evidence in appellant’s case was originally stored at the police department but that

it was moved to an offsite storage location due to the age of the case. He testified that he

received a call from the prosecutor requesting to view the evidence prior to the trial date.

Officer Solomon said that the evidence was moved to a shelf near the door. The evidence

stayed there even after the property unit learned that the case had been continued. At some

point, the property unit realized that the evidence was missing. Teams of officers searched

the storage facility for the evidence. Officer Solomon estimated that they searched twenty

times but were unable to find it. He testified that the police department’s policy was to only

destroy evidence upon a court order. He did not recall whether there were any destruction

orders issued for any property stored in the same facility as the evidence in the instant case.

On cross-examination, Officer Solomon testified that only three officers had access

to the storage site. He further testified that any evidence set for destruction would be

checked against a list of cases for which there were court orders for destruction. Officer

Solomon agreed that there was no indication that the evidence in appellant’s case was

mistakenly destroyed.

Former KPD Investigator Jim Murray testified that he worked in the major crimes

division in 2002. He responded to appellant’s address on February 20, 2002, at

approximately 1:40 a.m. Investigator Murray testified that he and fellow investigators

received a briefing from the responding officers, after which he and another investigator

began processing the crime scene. Another investigator returned to the police department

to question the Mitchells. Investigator Murray testified that he observed a knife handle in

the room with the victim’s body and that similar knives were found in the kitchen. He

noticed that the victim was wearing one gold ring and that another finger had an area void

of blood, which led Investigator Murray to believe that the victim had been wearing a second

ring. Investigator Murray found a ring on the vanity in the upstairs bathroom.

-12-

Investigator Murray further testified that he went to the hospital to see appellant. He

observed blood on appellant’s hands, so he obtained a search warrant to collect samples

therefrom. Investigator Murray said that while he was waiting for the search warrant, the

police were trying to locate a witness, Penny Cox. Later that day, he received a notification

that Ms. Cox had been found and was being brought to the police station.

Investigator Murray testified that he met with Ms. Cox and informed her of her

constitutional rights. She agreed to waive her rights and gave a statement. Investigator

Murray described her interview as “forthcoming.” She told him that she had been at

appellant’s house for three days and that appellant had told her he did not like the victim

because of the way the victim spoke to him when they played cards. Ms. Cox elaborated by

saying that the victim called appellant a “bum” because he always needed money. Ms. Cox

told Investigator Murray that appellant said he knew how he could rob the victim. She said

that the victim came to appellant’s house with John Mitchell and that John Mitchell left the

house. Ms. Cox informed Investigator Murray that one to one and a half hours later, she

heard ten thuds. She observed appellant exiting the upstairs room and thought that she saw

the victim’s body on the floor. Appellant told her, “‘It’s done,’” and said that he had killed

the victim by stabbing him. Ms. Cox told Investigator Murray that appellant was acting

strangely and had blood on his hands. She reported that appellant asked her to help him

dispose of the victim’s body but that she refused. She further reported that appellant

suggested he could dispose of the body by either burning it in the fireplace or burying it in

a pile of mulch. Ms. Cox told Investigator Murray that she and appellant smoked crack

cocaine that “she believed [appellant] had taken off of [the victim].” Appellant also gave her

over $100 even though he had not had money earlier in the day. Ms. Cox related to

Investigator Murray that she was eventually able to call a friend to pick her up. She reported

that she told her friend what had happened and that her friend took her to someone else’s

house. Ms. Cox contacted Eugene Mitchell and told him that appellant had killed the victim.

She told Investigator Murray that she had not contacted the police because she was afraid of

appellant. She said that she had not changed clothes since the previous day.

On cross-examination, Investigator Murray testified that the interview with Ms. Cox

was recorded and later transcribed. A copy of the transcription was placed in the police files,

and the recording was placed into evidence. Investigator Murray agreed that Ms. Cox told

him she did not know appellant’s last name. She did not mention John Mitchell at all until

she told Investigator Murray that Mr. Mitchell had taken her car to have its taillight repaired.

She later told him that Mr. Mitchell had arrived at appellant’s house with the victim when

earlier she had said that the victim had been alone. Ms. Cox did not tell Investigator Murray

about smoking crack cocaine with appellant, but she did tell him that she had smoked with

Mr. Mitchell the day before. Investigator Murray agreed that the transcription of the

-13-

interview did not reflect that Ms. Cox told him about smoking crack cocaine with appellant

or his giving her over $100.

Investigator Murray further testified that Investigator Sam Brown had interviewed at

least two members of the Mitchell family, John Mitchell’s father and brother. Investigator

Murray incorporated Investigator Brown’s summary of the interviews into his investigative

action report. He opined that if either of the Mitchells had mentioned that appellant told

them that he did not kill the victim by himself, that information would have been included

in the summary. Likewise, if anyone had said that the murder was the result of a drug deal

gone awry, that statement would have been included in the summary. Investigator Murray

did not have any knowledge of statements made by John Mitchell.

Dr. Darinka Mileusnic-Polchan, the Chief Medical Examiner for Knox County,

testified as an expert in forensic and anatomical pathology. She further testified that the

victim’s autopsy in this case was performed by Dr. Sandra Elkins. Dr. Mileusnic-Polchan

said that she reviewed photographs taken during the autopsy and the autopsy report prepared

by Dr. Elkins. Dr. Mileusnic-Polchan opined that the major cause of the victim’s death was

the blunt force trauma injury to his skull and brain; the minor cause of his death was the two

stab wounds to his back; and the manner of his death was homicide. She noted that the

victim received multiple strikes to his head. According to Dr. Mileusnic-Polchan,

photographs introduced through her testimony demonstrated how the crowbar found at the

scene matched the injury pattern. She testified that one of the stab wounds penetrated the

right lung and that the other penetrated the left lung and heart. The knife blade remained in

the stab wound on the victim’s left side. The victim did not have a “classic defense injury,”

indicating that he was not involved in fighting nor was he trying to protect himself, but he

did have one bruise on his right hand. Dr. Mileusnic-Polchan testified that her findings and

conclusions were consistent with the victim’s being stabbed in the back while in a seated

position and then being bludgeoned with a crowbar while lying prone on carpet or a rough

surface.

On cross-examination, Dr. Mileusnic-Polchan testified that she was unable to

determine time of death because the facts necessary to calculate time of death were not

available to her. She further testified that the sharp force and blunt force injuries occurred

near-simultaneously but that she could not say which preceded the other. She agreed that it

was possible that the victim was held by one person while another inflicted the injuries. Dr.

Mileusnic-Polchan opined that any adult, male or female, might have inflicted the stab

wounds but that she believed the head trauma would have been inflicted by a male. She

based her conclusion regarding the head trauma on her personal experiences, having never

seen a female inflict such trauma on a male victim. Following Dr. Mileusnic-Polchan’s

testimony, the State rested its case.

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The defense called KPD Investigator Sam Brown as a witness. He recalled meeting

three black males at appellant’s house when he responded to the crime scene. He further

recalled interviewing all three subjects at the police department and recording their

statements. Investigator Brown testified that Eugene Mitchell, Jr., John Mitchell’s father,

told Investigator Brown that he received a telephone call from “Penny” at “four.”

Investigator Brown opined that Eugene Mitchell, Jr., meant either 4:00 p.m. or 4:00 a.m. the

previous day, considering that his statement was taken at 2:50 a.m. Investigator Brown

agreed that if anyone had told him that appellant had made a statement indicating he had

killed the victim or that the victim was killed as part of a crack cocaine deal, he would have

shared that information with Investigator Murray. Investigator Brown stated that he had

never seen a transcription of the interview he conducted with John Mitchell.

On cross-examination, Investigator Brown testified that if he had seen any blood or

brain matter on any of the Mitchells’ clothes or skin, he would have confiscated their

clothing or processed their skin for evidence. He said that he did not see any such matter on

any of the Mitchells and that the interview room where he met with them was very small.

Investigator Brown testified that Investigator Murray had a respected reputation for truth and

veracity in the community.

Kimberly Armas-Trejo testified that on February 19, 2002, she received four

telephone calls from Penny Cox asking her to pick up Ms. Cox at a house near East Towne

Mall. The telephone calls began around 8:00 p.m. Ms. Armas-Trejo said that she picked up

Ms. Cox at either 10:00 p.m. or 11:00 p.m. Defense counsel showed Ms. Armas-Trejo a

picture of Ms. Cox taken at the police station and asked whether the clothes she was wearing

were the same clothes she was wearing when Ms. Armas-Trejo picked her up. Ms. Armas-

Trejo said that they were not the same clothes. Ms. Armas-Trejo testified that Ms. Cox paid

her $20 for the ride. She further testified that Ms. Cox had more cash than she typically had

and that she had crack cocaine. She said that she did not see any blood on Ms. Cox but that

it was dark. According to Ms. Armas-Trejo, Ms. Cox was acting strangely, so she questioned

her. Ms. Cox told her that the victim was dead and that appellant had “‘beat him in the head

with a hammer and covered him up with a sheet.’” Ms. Armas-Trejo was not willing to take

Ms. Cox to her own home, so she drove Ms. Cox to another person’s house. When Ms.

Armas-Trejo heard on the news that the police were looking for Ms. Cox, she called them

and informed them of Ms. Cox’s location.

On cross-examination, Ms. Armas-Trejo testified that she did not recall telling the

police that Ms. Cox told her that appellant had stabbed the victim, that she had seen him

come downstairs with blood on his hands, or that she was scared of appellant. On redirect

examination, Ms. Armas-Trejo testified that the State had paid for her to travel to Nashville

and for a hotel room but that the State stopped contacting her and did not offer to pay for

-15-

additional nights at the hotel after she gave them the information about which she had just

testified.

Following the close of proof and deliberations, the jury found appellant guilty of three

counts of the lesser included offense of facilitation of first degree murder and one count of

facilitation of especially aggravated robbery. The trial court merged the facilitation of first

murder convictions and sentenced appellant to seventeen years. The trial court also

sentenced appellant to a concurrent sentence of eight years for facilitation of especially

aggravated robbery. This appeal follows.

II. Analysis

A. Motion to Suppress Physical Evidence

Appellant’s first argument centers on what he terms the “extended warrantless ‘crime

scene’ search of his house.” He contends that the search of his home and the seizure of

evidence therein went far beyond the scope of any exigent circumstances justifying the first

responding officer’s entry into his home and that the evidence should have been suppressed.

The State responds that exigent circumstances justified the first officer’s entry, that the entry

of subsequent officers was merely an extension of the first officer’s entry, and that the

seizure of evidence was justified under the plain view doctrine. In the alternative, the State

contends that if this court concludes that the evidence was illegally seized, the inevitable

discovery doctrine would nonetheless allow its admission at trial.

A trial court’s findings of fact at a hearing on a motion to suppress are binding upon

this court unless the evidence contained in the record preponderates against them. State v.

Ross, 49 S.W.3d 833, 839 (Tenn. 2001). As the trier of fact, the trial court is in a better

position to assess the witnesses’ credibility, determine the weight of the evidence and the

value to be afforded it, and resolve any conflicts in the evidence. State v. Odom, 928 S.W.2d

18, 23 (Tenn. 1996). However, the trial court’s conclusions of law are not binding on this

court. State v. Randolph, 74 S.W.3d 330, 333 (Tenn. 2002). Further, the trial court’s

applications of law to the facts are questions of law that we review de novo. State v. Daniel,

12 S.W.3d 420, 423 (Tenn. 2000). On appeal, the prevailing party is entitled to the strongest

legitimate view of the evidence and all reasonable inferences drawn therefrom. State v.

Hicks, 55 S.W.3d 515, 521 (Tenn. 2001). The defendant bears the burden of establishing that

the evidence contained in the record preponderates against the trial court’s findings of fact.

Braziel v. State, 529 S.W.2d 501, 506 (Tenn. Crim. App. 1975).

At a hearing on a motion to suppress evidence recovered as a result of a warrantless

search, the State must prove that the search was reasonable. State v. Coulter, 67 S.W.3d 3,

-16-

41-42 (Tenn. Crim. App. 2001). To carry its burden, the State must prove that law

enforcement conducted the warrantless search or seizure pursuant to one of the

narrowly-defined exceptions to the warrant requirement. State v. Binette, 33 S.W.3d 215,

218 (Tenn. 2000) (citing State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997)). Our supreme

court has held:

[U]nder both the federal constitution and our state constitution, a search

without a warrant is presumptively unreasonable, and any evidence obtained

pursuant to such a search is subject to suppression unless the [S]tate

demonstrates that the search was conducted under one of the narrowly defined

exceptions to the warrant requirement. Moreover, Tennessee has approved of

and adopted exceptions to the requirement of obtaining a valid search warrant,

including search incident to arrest, plain view, stop and frisk, hot pursuit,

search under exigent circumstances, and others.

State v. Cox, 171 S.W.3d 174, 179 (Tenn. 2005) (internal citations omitted).

Exigent circumstances exist: “‘(1) when officers are in ‘hot pursuit’ of a fleeing

suspect; (2) when the suspect presents an immediate threat to the arresting officers or the

public; or (3) when immediate police action is necessary to prevent the destruction of vital

evidence or thwart the escape of known criminals.’” State v. Adams, 238 S.W.3d 313, 321

(Tenn. Crim. App. 2005) (quoting State v. Steven Lloyd Givens, No. M2001-00021-CCA-R3-

CD, 2001 WL 1517033, at *3 (Tenn. Crim. App. Nov. 29, 2001)). In State v. Meeks, 262

S.W.3d 710, 723 (Tenn. 2008), our supreme court added an additional situation, “to render

emergency aid to an injured person or to protect a person from imminent injury,” to the list

of circumstances that would establish exigent circumstances. The mere existence of one of

these circumstances does not, in and of itself, validate a warrantless search; the State must

also show that “‘the exigencies of the situation made the search imperative.’” Yeargan, 958

S.W.2d at 635 (quoting State v. Bartram, 925 S.W.2d 227, 230 (Tenn. 1996)). The question

of whether the exigent circumstances were sufficient to justify a warrantless search is a

mixed question of law and fact that we review de novo. Meeks, 262 S.W.3d at 722.

The following guidance from our supreme court is instructive on this issue:

[I]n assessing the constitutionality of a warrantless search, the inquiry is

whether the circumstances give rise to an objectively reasonable belief that

there was a compelling need to act and insufficient time to obtain a warrant.

The exigency of the circumstances is evaluated based upon the totality of the

circumstances known to the governmental actor at the time of the entry. Mere

speculation is inadequate; rather, the State must rely upon specific and

-17-

articulable facts and the reasonable inferences drawn from them. The

circumstances are viewed from an objective perspective; the governmental

actor’s subjective intent is irrelevant. The manner and the scope of the search

must be reasonably attuned to the exigent circumstances that justified the

warrantless search, or the search will exceed the bounds authorized by

exigency alone.

Id. at 723-24.

At the suppression hearing in this case, Officer Shaffer testified that he was

responding to an emergency call that was originally reported as a shooting. When he arrived

at appellant’s house , he was confronted by three frantic men, the Mitchells, who would only

say, “‘He’s inside.’” Officer Shaffer then entered the house and found appellant in the living

room, bleeding. By that time, other officers were already arriving. The Mitchells directed

Officer Shaffer to the upstairs room, where he discovered the victim’s body. Officer Shaffer

returned to the lower floor, and soon thereafter, the crime scene technicians began processing

the scene. According to the testimony at the suppression hearing, the emergency call was

received at 1:21 a.m., Officer Shaffer arrived at 1:23 a.m., and the first crime scene

technician arrived at 1:39 a.m. The victim’s body was removed from the scene at either 5:00

or 5:30 a.m.

From this evidence, we conclude that Officer Shaffer’s entry and search of appellant’s

house was justified by exigent circumstances. He was responding to an emergency call, and

as the Mitchells were clearly not injured and were directing him inside, he had to enter the

house “to render emergency aid to an injured person or to protect a person from imminent

injury.” Meeks, 262 S.W.3d at 723. Officer Shaffer immediately encountered an injured

person, appellant, but the Mitchells insisted that “he” was upstairs. Based on this

information and the condition of appellant, who did not have injuries consistent with what

was reported in the emergency call, Officer Shaffer was justified in entering the upstairs

bedroom, where he discovered the victim.

The question remains whether the subsequent officers were likewise justified in

entering the house and whether the evidence seized was justifiable. Appellant argues that

no exception to the warrant requirement applied to the officers, particularly the crime scene

technicians, arriving after Officer Shaffer. He further argues that the processing of the crime

scene, including taking video and photographs, and the seizure of evidence were outside the

scope of the exigent circumstances search. He contends that even if this court were to apply

the plain view doctrine to the seizure of the evidence, some of the evidence was not in plain

view and should have been suppressed. In particular, appellant protests the seizure of the

knife handle, the blue sweatshirt, and the gold nugget ring.

-18-

Appellant’s argument relies in part on the United States Supreme Court’s rulings that

a homicide does not justify a warrantless search of a residence. The United States Supreme

Court in Mincey v. Arizona declined to recognize a “murder scene exception” to the warrant

requirement. 437 U.S. 385, 395 (1978); see also Flippo v. West Virginia, 528 U.S. 11, 14

(1999); Thompson v. Louisiana, 469 U.S. 17, 21 (1984) (per curiam). However, the Court

also acknowledged the continuing viability of the exigent circumstances exception to the

warrant requirement and the application of the plain view doctrine to the seizure of evidence

discovered in the course of law enforcement officers’ “legitimate emergency activities.” See

Mincey, 437 U.S. at 392-93 (citing Michigan v. Tyler, 436 U.S. 499, 509-10 (1978)).

Nonetheless, the Court stated that “a warrantless search must be ‘strictly circumscribed by

the exigencies which justify its initiation.’” Id. at 393 (quoting Terry v. Ohio, 392 U.S. 1, 26

(1968)).

This court has previously encountered very similar circumstances and arguments as

those presented herein. For example, in Coulter, the defendant told the police that he had

killed his wife. State v. Coulter, 67 S.W.3d 3, 16 (Tenn. Crim. App. 2001). One officer

handcuffed the defendant, drove him to the defendant’s house, entered the house, and

discovered the victim’s body lying on a bed. Id. Another officer was dispatched to the

defendant’s house and collected evidence, including the murder weapon found on the kitchen

table and the bed linen. Id. at 16-17. After paramedics removed the victim’s body, the police

discovered a spent bullet in the bed’s box springs. Id. at 17. In addition, a later-arriving

officer photographed the crime scene. Id. On appeal, the defendant contested the officers’

warrantless search of his house and the seizure of evidence not in plain view, particularly the

spent bullet. Id. at 40. This court ruled that the initial entry was justified under the exigent

circumstances exception to the warrant requirement, that the collection of the murder weapon

and bed linen were justified under the plain view doctrine, and that these doctrines allowed

the responding officers to photograph the scene. Id. at 43 (citing Bills v. Aseltine, 958 F.2d

697, 707 (6th Cir.1992)). Furthermore, this court concluded, after surveying decisions from

other states, that the entry of the later-arriving officers presented no Fourth Amendment issue

under the circumstances of the case. Id. at 43-45. In particular, this court cited the following

rationale:

“[W]hen 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.”

-19-

Id. at 44 (quoting State v. Magnano, 528 A.2d 760, 764 (1987)) (second and third alterations

in Coulter). The court also cited the following from the North Carolina Supreme Court:

“[W]hen 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.”

Id. at 44-45 (quoting State v. Jolley, 321 S.E.2d 883, 886 (1984)). Finally, this court

determined that the officers were justified in retrieving the bullet from the box springs

because the bullet hole was in plain view once the victim’s body was removed and the

defendant could have no legitimate expectation of privacy in the bullet. Id. at 45 (citations

omitted).

Under the circumstances of this case, we conclude that the entry of officers arriving

subsequent to Officer Shaffer was a continuation of his original entry. See Coulter, 67

S.W.3d at 45. We note that all of the officers, detectives, and crime scene technicians were

essentially responding at the same time. Officer Shaffer only arrived as quickly as he did

because he was already in the area.

Furthermore, under Mincey, Hicks, and Coulter, evidence meeting the criteria under

the plain view doctrine was subject to seizure. For the plain view doctrine to apply, the

following requirements must be met: “(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 . . . .’” Coulter, 67 S.W.3d at 43 (citations omitted). We have

already determined that the KPD did not violate constitutional mandates by entering

appellant’s house. The majority of the evidence seized was clearly in plain view, in

particular the crowbar and the crack cocaine, and the incriminating nature of the evidence

was immediately apparent. Indeed, the only seized items that appellant claims could not be

plainly seen were the gold ring from the bathroom and items found under a chair in the

upstairs bedroom — the knife handle and a sweatshirt. Based on the testimony and

photographs, we agree that these three items either could not have been plainly seen or were

outside the scope of the initial, exigent circumstances search. The bathroom where the ring

was found was not within the scope of Officer Shaffer’s initial search, and there was no

evidence presented that an officer entered that room looking for another victim or suspect.

-20-

See Hicks, 480 U.S. at 324-25 (“[T]aking action, unrelated to the objectives of the authorized

intrusion, which exposed to view concealed portions of the apartment or its contents, did

produce a new invasion of respondent’s privacy unjustified by the exigent circumstance that

validated the entry.”) As for the sweatshirt, the testimony and photographs are unclear with

regard to whether any officers could plainly see it. Ms. Gangwer testified that the sweatshirt

was on top of an overturned chair but was possibly underneath other items. Regarding the

knife handle, Ms. Gangwer testified that the officers did not know it was there until they

began processing the scene. Therefore, we conclude that these items were not in plain view

and thus were seized in violation of appellant’s constitutional rights.

However, the State contends that the evidence not in plain view would have been

inevitably discovered. “Under the inevitable discovery doctrine, illegally obtained evidence

is admissible if the evidence would have otherwise been discovered by lawful means. Proof

of inevitable discovery ‘involves no speculative elements but focuses on demonstrated

historical facts capable of ready verification or impeachment.’” State v. Cothran, 115

S.W.3d 513, 525 (Tenn. Crim. App. 2003) (quoting Nix v. Williams, 467 U.S. 431, 444

(1984)) (internal citations omitted).

This court’s application of the inevitable discovery doctrine in Brock is instructive for

this case. See State v. Brock, 327 S.W.3d 645, 686 (Tenn. Crim. App. 2009). In Brock, the

defendant’s truck was illegally seized and searched prior to defendant’s confession. Id.

However, this court held that after defendant’s confession, the police would have had

probable cause to seize and search the truck; therefore, the inevitable discovery doctrine

operated to admit the illegally seized evidence from the truck. Id. This court also reasoned

that “[t]his same analysis might also be said to apply to the search of [the defendant’s]

residence. It is indeed inevitable that a known homicide scene with a body present would

eventually have been searched by lawful means.” Id. at 686 n.2.

In this case, the police likewise had “a known homicide scene with a body present.”

It is clear that the police had sufficient probable cause to support a search warrant, had they

sought to obtain one. See State v. Joshua Eugene Anderson, No. E2005-02660-CCA-R3-CD,

2007 WL 1958641, at *5 (Tenn. Crim. App. July 6, 2007); State v. Rickie J. Stallings, No.

E2005-00239-CCA-R3-CD, 2006 WL 2061736, at *19 (Tenn. Crim. App. July 26, 2006).

Therefore, we conclude that the inevitable discovery doctrine applies to the admission of the

knife handle, sweatshirt, and ring. See Brock, 327 S.W.3d at 686; Joshua Eugene Anderson,

2007 WL 1958641, at *5; Rickie J. Stallings, 2006 WL 2061736, at *19. Consequently, any

error in the trial court’s suppression ruling is harmless beyond a reasonable doubt. See Rickie

J. Stallings, 2006 WL 2061736, at *19.

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B. Admission of Crime Scene Photographs and Video

Appellant contends that the trial court erred by admitting photographs of the crime

scene and video of the crime scene. In particular, he argues that both the photographs and

video should have been excluded as fruits of an illegal search and that both were prejudicial

and inflammatory. Regarding the video only, he argues that it was duplicative. The State

responds that appellant has waived this issue.

Tennessee Rules of Evidence 401, 402, and 403 govern the admissibility of the

photographs in this case. See State v. Banks, 564 S.W.2d 947, 949-51 (Tenn. 1978). First,

a witness with knowledge of the facts must verify and authenticate a photograph before it can

be admitted into evidence. Id. at 949; see also Tenn. R. Evid. 901. Next, a trial court must

first determine whether the photograph is relevant. Id.; see Tenn. R. Evid. 401. Irrelevant

evidence is inadmissible. Tenn. R. Evid. 402. If the evidence has “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,” it is relevant. Tenn. R. Evid. 401.

Once it determines that a photograph is relevant, the trial court must then determine whether

the probative value of the photograph is substantially outweighed by the danger of unfair

prejudice. See Tenn. R. Evid. 403; Banks, 564 S.W.2d at 950-51. “Unfair prejudice” is

“‘[a]n undue tendency to suggest decision on an improper basis, commonly, though not

necessarily, an emotional one.’” Banks, 564 S.W.2d at 951 (quoting Fed. R. Evid. 403

advisory committee’s note). Furthermore,

A trial court should consider: the accuracy and clarity of the picture and its

value as evidence; whether the picture depicts the body as it was found; the

adequacy of testimonial evidence in relating the facts to the jury; and the need

for the evidence to establish a prima facie case of guilt or to rebut the

defendant’s contentions.

State v. Leach, 148 S.W.3d 42, app. at 63 (Tenn. 2004) (citing Banks, 564 S.W.2d at 951).

The decision whether to admit the photographs rests within the trial court’s sound

discretion, and we will not reverse the trial court’s determination absent a clear showing of

an abuse of that discretion. Banks, 564 S.W.2d at 949; see also State v. Dubose, 953 S.W.2d

649, 653 (Tenn. 1997); State v. Stinnett, 958 S.W.2d 329, 331 (Tenn. 1997). Tennessee

courts follow a policy of liberality in the admission of photographs in both civil and criminal

cases. See Banks, 564 S.W.2d at 949.

Regarding appellant’s first argument that the photographs and video were products

of an illegal search, we have already determined that the police were allowed to enter the

-22-

home due to exigent circumstances and seize evidence in plain view. See supra Part II A.

As a corollary to this ruling and based upon the rationale in Coulter, we conclude that the

police were allowed to photograph and videotape the crime scene as it appeared when they

arrived. See Coulter, 67 S.W.3d at 43. However, many of the photographs depict police

investigative procedures, such as evidence markers, or objects after the police had moved

them. Again, we have determined that any evidence not in plain view would have been

inevitably seized pursuant to a warrant in a case such as this; by the same reasoning, we

conclude that the photographs depicting the police investigation would have been inevitably

taken. See Brock, 327 S.W.3d at 686 & n.2.

Appellant also argues that the crime scene photographs were inflammatory due to the

presence of police, depiction of evidence markers, graphic nature of the victim’s head

trauma, and alteration of the original crime scene. However, the State argues that appellant

has waived this argument due to failure to object at the proper time. The State’s argument

is well-taken with regard to all photographs with one exception.

The record shows that appellant specifically objected to exhibits 116, 125-127, and

132-134. Exhibit 116 depicted crime scene technician Gerald Smith holding a measuring

tool next to the victim’s head trauma. At trial, appellant objected that the photograph was

“posed” and that other photographs could show the victim’s injury without the measuring

tool. The trial court ruled that the photograph’s probative value was not substantially

outweighed by the danger of unfair prejudice.2 Based on the record before us, we conclude

that the trial court did not abuse its discretion in admitting the photograph. Banks, 564

S.W.2d at 949. Issues at trial included whether a man or woman could have exerted the force

required to injure the victim and the credibility of the police investigation; thus, there was

a “need for the evidence to establish a prima facie case of guilt or to rebut the defendant’s

contentions.” Id. at 951. The photograph shows the extent of the victim’s injury, and by

comparing it with autopsy photographs, the State was able to show that the condition of the

body did not change. Appellant has not established that the probative value of exhibit 116

was substantially outweighed by the danger of unfair prejudice.

With regard to 125-127 and 132-134, the trial court reserved its ruling until a witness

could lay a proper foundation with regard to what each photograph depicted. When the State

moved to admit the photographs during Gerald Smith’s testimony, appellant did not object.

Appellant’s failure to object prevented the trial court from making a ruling on the

admissibility of the evidence. Therefore, appellant has waived his argument regarding

2

The trial court actually misspoke during its ruling when defense counsel interrupted by saying that

the probative value was not substantially outweighed by its probative value. The trial court’s intention in

its ruling, however, was clear.

-23-

exhibits 125-127, 132-134, and any other exhibit to which he did not specifically object. See

Tenn. R. App. P. 36(a). (“Nothing in this rule shall be construed as requiring relief be

granted to a party responsible for an error or who failed to take whatever action was

reasonably available to prevent or nullify the harmful effect of an error.”)

Appellant also argues that the crime scene videotape was admitted in error. He

complains that it was taken without a warrant and that it was inflammatory and duplicative.

Again, our ruling regarding the warrantless search includes the videotaping of the crime

scene; therefore, appellant’s contention is without merit. As for the inflammatory and

duplicative nature of the videotape, the appellant only objected “[b]ased on previous rulings.”

The State argues that this was a “blanket objection” and that this court should regard it as

waiver of the issue. This court recently made the following ruling with regard to a similar

objection:

[W]e conclude that such a blanket objection is essentially no different than no

objection being made. Perhaps the basis of the objection was clear to the trial

court for reasons that are not apparent from the print of the transcript. But a

reviewing court has no way to guess as to what was the basis of the objection.

State v. Neil Vader, No. M2011-02394-CCA-R3-CD, 2013 WL 1279196, at *5 (Tenn. Crim.

App. Mar. 28, 2013), no perm. app. filed. After carefully reviewing the record, we cannot

discern exactly on which previous rulings appellant was relying when he objected to the

introduction of the crime scene video. In addition, there does not appear to be an objection

on the basis of the video being duplicative, which is the primary focus of appellant’s

argument on appeal. Therefore, we conclude that appellant has waived our review of this

issue.

C. Warrantless Withdrawal of Appellant’s Blood

Appellant contends that his blood was drawn without his consent and without a search

warrant. He argues that any evidence of the illegally obtained blood samples should have

been suppressed. The State concedes that appellant’s blood was drawn illegally but contends

that the error was harmless beyond a reasonable doubt. We agree with the State.

At the motion to suppress hearing in this case, Officer Shaffer testified that he

requested that the hospital staff draw appellant’s blood. His reasoning was that the police

needed the blood to compare with the blood found at the scene. The State argued that the

metabolization of the cocaine in appellant’s system was an exigent circumstance that justified

the warrantless drawing of appellant’s blood. The trial court, however, ruled that the blood

-24-

evidence was admissible because Officer Shaffer had probable cause to believe that appellant

had committed a crime.

Because this issue centers on a legal conclusion rather than factual findings, we

review the trial court’s decision de novo. Randolph, 74 S.W.3d at 333. It has long been clear

that the withdrawal of a person’s blood is a search subject to the constraints of the Fourth

Amendment. See Missouri v. McNeely, 569 U.S. ---, 133 S.Ct. 1552, 1558 (2013);

Schmerber v. California, 384 U.S. 757, 767-72 (1966); State v. Blackwood, 713 S.W.2d 677,

679 (Tenn. Crim. App. 1986). In this case, there was no warrant obtained prior to the

withdrawal of appellant’s blood in the early morning hours of February 20, 2002. Moreover,

there has been no evidence presented that exigent circumstances or any other exception to

the Fourth Amendment’s warrant requirement applied to justify this warrantless search.3

While it might be true that Officer Shaffer had probable cause to believe appellant had

committed murder, having probable cause is not an exception to the warrant requirement but

rather a prerequisite. Thus, it was error for the trial court to admit evidence of the blood

samples taken without a warrant.

Earlier in this opinion, we applied the inevitable discovery doctrine in this case to

admit illegally obtained evidence; however, that doctrine cannot be applied in this situation.

The only evidence at trial that stemmed from the inadmissible blood samples was the

testimony that appellant had cocaine in his system. TBI forensic scientist Melanie Carlisle

testified about how quickly cocaine metabolizes. Based on her testimony, we cannot apply

the inevitable discovery doctrine to cure the inadmissibility of the blood evidence because

it is unknown whether Ms. Carlisle would have found the cocaine in appellant’s blood had

she tested blood acquired pursuant to a warrant, which would have taken time to obtain,

rather than test the illegally acquired blood. Therefore, appellant’s blood evidence and the

testimony regarding the blood tests should have been excluded.

However, the State contends that the error was harmless beyond a reasonable doubt,

and we agree. “If a constitutional error is not structural, then it is subject to harmless error

analysis, and the proper test is whether it appears beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained.” State v. Allen, 69 S.W.3d 181, 190

3

At trial, the prosecution argued – without support from Officer Shaffer’s testimony – that the

metabolization of cocaine in appellant’s bloodstream was an exigent circumstance justifying the search.

However, this was not the rationale employed by the trial court in its ruling. In addition, the United States

Supreme Court in McNeely declined to create a per se rule that the metabolization of alcohol in the

bloodstream is an exigent circumstance justifying a warrantless search and confirmed that the existence of

an exigent circumstance must be decided on a case-by-case basis. 569 U.S. ---, 133 S.Ct. at 1560. Again,

Officer Shaffer’s testimony presented no evidence of an exigent circumstance or any knowledge that drugs

were involved in this case.

-25-

(Tenn. 2002) (internal quotation marks omitted) (citing Neder v. United States, 527 U.S. 1,

15 (1999)). The State argues that the blood test results were not key to the State’s case. At

best, the blood test results corroborated Penny Cox’s testimony that she and appellant

smoked crack cocaine after he killed the victim. However, Ms. Cox’s testimony was

thoroughly impeached by the defense, and it appears that the jury did not find her credible

considering they found appellant guilty of facilitation of first degree murder and facilitation

of especially aggravated robbery rather than the charged offenses of premeditated murder,

felony murder, and aggravated robbery. Furthermore, we note that both Ms. Cox and John

Mitchell testified about appellant’s habitual use of cocaine. The State did not need the blood

test results to advance its theory that appellant robbed the victim when Mr. Mitchell testified

that the victim had more cocaine on his person prior to his death than after, had a large

amount of cash that was missing, and was missing a gold ring. Therefore, we conclude

beyond a reasonable doubt that the error in the admission of the blood evidence did not

contribute to the verdict obtained and was thus harmless beyond a reasonable doubt.

Appellant is without relief as to this issue.

D. Prior Bad Act Evidence

Appellant argues in the alternative that the admission of the blood test results showing

that appellant’s blood was positive for cocaine was error under Tennessee Rule of Evidence

404(b).4 The State failed to address the issue in their brief. However, at trial, the State

advanced the argument that the blood test results corroborated various witnesses’ testimonies

and supported their theory of appellant’s motive. The trial court allowed TBI forensic

scientist Melanie Carlisle to testify about the results, provided that the State presented

evidence linking appellant’s cocaine use to his motive in committing the offenses.

Rule 404(b) provides:

Other Crimes, Wrongs, or Acts.—Evidence of other crimes, wrongs, or acts

is not admissible to prove the character of a person in order to show action in

conformity with the character trait. It may, however, be admissible for other

purposes. The conditions which must be satisfied before allowing such

evidence are:

(1) The court upon request must hold a hearing outside the jury’s presence;

4

The heading in appellant’s brief also posits that the trial court erred by admitting evidence of

appellant’s drug use through Penny Cox’s testimony; however, he did not support this contention with

citations to the record or argument in the body of his brief. Therefore, we deem that he has waived plenary

review of this issue on appeal. See Tenn. Ct. Crim. App. R. 10(b).

-26-

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

conforming with a character trait and must upon request state on the

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

evidence; and

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

outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b). Possible “other purposes” for which evidence of other crimes,

wrongs or acts may be admitted include identity (including motive and common scheme or

plan), intent, or rebuttal of accident or mistake. Tenn. R. Evid. 404(b), Advisory Comm’n

Commt.

Thus, to satisfy the requirement of relevancy, the first inquiry by the trial court must

be whether “‘a material issue exists other than conduct conforming with a character trait.’”

State v. McCary, 922 S.W.2d 511, 514 (Tenn. 1996) (quoting Tenn. R. Evid. 404(b)). Upon

the court’s satisfaction of the existence of a material issue, the trial court must then weigh

the proffered evidence to determine whether the probative value outweighs the danger of

unfair prejudice to the defendant. McCary, 922 S.W.2d at 514 (citing Tenn. R. Evid.

404(b)). The trial court must finally find that appellant committed the other crimes, wrongs,

or acts by clear and convincing evidence. Id. (citations omitted).

When it substantially complies with the procedural requirements of Rule 404(b), the

trial court’s determination of admissibility is entitled to deference on appeal. State v. Gilley,

297 S.W.3d 739, 758 (Tenn. 2008); see State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997).

In reviewing a trial court’s ruling on 404(b) evidence, an appellate court may not disturb the

lower court’s ruling absent an abuse of discretion. Gilley, 297 S.W.3d at 758; State v.

Thacker, 164 S.W.3d 208, 240 (Tenn. 2005).

The trial court in this case did not substantially comply with the procedural

requirements because it did not state on the record what material issue existed nor did it make

a finding that the probative value was not outweighed by the danger of unfair prejudice.

Nonetheless, we conclude that it was not error under Rule 404(b) because the State presented

a material issue — motive — that it later supported with additional testimony. The trial court

tacitly accepted the State’s argument and allowed the evidence to be admitted. Likewise, we

accept the State’s argument that the evidence was relevant to prove motive, although, as

previously stated, it was not essential to proving motive. There was plentiful other evidence

admitted regarding appellant’s drug use; thus, the danger of unfair prejudice was minimal in

comparison to the probative value. Therefore, the admission of the evidence was not error

under Rule 404(b).

-27-

E. Destruction of Evidence

On appeal, appellant presents three issues stemming from the destruction of the

following evidence: the physical evidence, the 9-1-1 recording, and John Mitchell’s

statement to police.

1. Physical Evidence

Prior to trial, all of the physical evidence in appellant’s case, including the murder

weapons, clothing worn by appellant and the victim, and the gold ring, disappeared. The

record indicates that the evidence was stored in an off-site facility to which only a few

officers had access. The evidence was placed near the door of the facility for viewing by the

attorneys, but the attorneys did not come at the scheduled time due to a continuance. Soon

thereafter, the evidence disappeared. The State speculated that it had been accidently

destroyed along with other evidence that had been marked for destruction pursuant to court

order. The trial court ruled that the destruction was caused by simple negligence, that the

evidence had some exculpatory value, and that the secondary evidence was reliable and

would allow appellant to present a defense. Appellant now claims that this ruling was error.

In Ferguson, our supreme court considered the appropriate “consequences that flow

from the State’s loss or destruction of evidence which the accused contends would be

exculpatory.” State v. Ferguson, 2 S.W.3d 912, 914 (Tenn. 1999). Our supreme court

exercised its authority “to expand the minimum level of protection mandated by the federal

constitution,” Burford v. State, 845 S.W.2d 204, 207 (Tenn. 1992), by rejecting the United

States Supreme Court’s “bad faith” standard in favor of a test that is less onerous on a

criminal defendant. Ferguson, 2 S.W.3d at 916; see generally Arizona v. Youngblood, 488

U.S. 51 (1988). The court, instead, “‘promulgate[d] . . . an analysis in which the critical

inquiry is: Whether a trial, conducted without the [lost or] destroyed evidence, would be

fundamentally fair?’” Coulter, 67 S.W.3d at 54 (quoting Ferguson, 2 S.W.3d at 914). The

Ferguson analysis requires a court to first determine “whether the State had a duty to

preserve the evidence.” State v. Merriman, 410 S.W.3d 779, 785 (Tenn. 2013). The State

has a general duty to preserve evidence subject to discovery and inspection in accordance

with Tennessee Rule of Criminal Procedure 16 and Brady v. Maryland, 373 U.S. 83 (1963).

Id. However, “the State’s duty to preserve evidence is limited to constitutionally material

evidence described as ‘evidence that might be expected to play a significant role in the

suspect’s defense.’” Id. (quoting Ferguson, 2 S.W.3d at 917). Our supreme court held that

to meet this materiality standard, “the evidence must potentially possess exculpatory value

and be of such a nature that the defendant would be unable to obtain comparable evidence

by other reasonably available means.” Id. (citing Ferguson, 2 S.W.3d at 915, 918).

-28-

If the proof demonstrates that the State had a duty to preserve the evidence and that

the State failed in that duty, the analysis then shifts to a consideration of the following factors

in deciding the consequences of the State’s breach:

(1) [t]he degree of negligence involved;

(2) [t]he significance of the destroyed evidence, considered in light of the

probative value and reliability of secondary or substitute evidence that

remains available; and

(3) [t]he sufficiency of the other evidence used at trial to support the

conviction.

Id. (quoting Ferguson, 2 S.W.3d at 917) (alteration in original).

If, after due consideration of the three factors, the trial court concludes that a trial

without the missing or destroyed evidence would not be fundamentally fair, the court may

order dismissal of the charges. Ferguson, 2 S.W.2d at 917. “Dismissal is, however, but one

of the trial judge’s options.” Id. The trial court may craft a special jury instruction or grant

other appropriate remedies. Id. This court reviews the trial court’s decision de novo, with

deference to the trial court’s findings of fact unless the evidence preponderates against the

findings. See Merriman, 410 S.W.3d at 791. Any remedy crafted by the trial court is

reviewed under an abuse of discretion standard. Id. at 791-92.

All of the physical evidence in this case was destroyed, from the murder weapons to

appellant’s fingernail clippings. Appellant contends that the evidence would have played a

significant role in his defense because the exculpatory nature of the evidence was apparent

and because there was no comparable evidence. Clearly, there was no comparable evidence

to be had that could replace any of the evidence destroyed. However, the exculpatory nature

of the evidence was only speculative. All of the items had already been tested by the State,

but it appears that the defense had never even inspected the evidence — despite having many

years in which to do so. Perhaps appellant might have recovered fingerprints where the

State’s experts were unable to do so, or maybe he would have been able to cross-examine the

State’s witnesses more exactly about their testing methods and the chain of custody.

Nonetheless, due to the bizarre circumstance that all of the physical evidence was destroyed,

appellant’s argument that the evidence would have played a significant role in his defense

is well-taken because while the evidence “was probably of marginal exculpatory value, it was

at least material to the preparation of the defendant’s defense.” See Ferguson, 2 S.W.3d at

918 (internal quotation marks omitted). Therefore, the State had a duty to preserve the

evidence and breached that duty.

-29-

The trial court found that the destruction of the evidence was accidental, and as no

evidence was presented that preponderates against that finding, we defer to the trial court’s

finding. Thus, because the evidence was destroyed accidentally, we agree with the trial court

that the destruction was due to simple negligence.

The next factor to consider is the significance of the evidence in light of the probative

value and the available secondary or substitute evidence. In this case, our review of the

record indicates that the probative value of the evidence weighs more in favor of the State,

considering the impact on the jury of having the actual murder weapons and bloody clothing

presented rather than photographs. Photographs of the majority of the destroyed evidence

were available and were used at trial. Appellant appears to have been able to mount his

defense effectively despite having to use photographs rather than physical evidence,

considering he was convicted of lesser included offenses.

We must also consider the sufficiency of the other evidence presented at trial. The

most incriminating evidence was the testimony of Penny Cox. John Mitchell’s testimony was

also significant considering his statement that appellant allegedly confessed to him that he

did not “do it” — the killing of the victim — alone, and his observation that the victim had

more cocaine and cash on him prior to his death than at his autopsy. The State also presented

laboratory reports showing appellant had the victim’s blood on his clothing and hands. Thus,

there was sufficient other evidence to convict appellant of the offenses.

Taking all of these factors into consideration, it is clear that appellant “was not

hindered in the full and complete exposition of his theory to the jury.” See Ferguson, 2

S.W.3d at 918. We conclude that appellant’s trial was fundamentally fair, and his argument

to the contrary is without merit.

2. 9-1-1 Log

On appeal, appellant presents two arguments regarding whether the trial court erred

by admitting the log of the 9-1-1 call when the original recording of the call had been

destroyed pursuant to the procedure of the Knox County Emergency Communications

District. First, he contends that under Ferguson, the destruction of the recording rendered

it plain error for the trial court to admit the 9-1-1 log. Secondly, appellant argues that the log

contained hearsay statements that did not meet the business records or public records hearsay

exceptions. See Tenn. R. Evid. 803(6), 803(8). The State responds that appellant waived the

Ferguson argument by not addressing it below and that the entire 9-1-1 log qualified as a

business record, rendering it admissible in toto under the business records hearsay exception.

We agree that appellant waived the Ferguson argument; however, the admission of hearsay

statements within the 9-1-1 log was harmless error.

-30-

Appellant argues for the first time on appeal that the Ferguson analysis should apply

to the destruction of the 9-1-1 recording, with the remedy being the exclusion of the 9-1-1

log. However, appellant did not raise this issue below prior to trial, during trial, or in his

motion for new trial.5 He contends that this court should review the matter for plain error.

Our supreme court formally adopted this court’s Adkisson test for reviewing claims

of plain error:

The Court of Criminal Appeals has developed five factors to consider when

deciding whether an error constitutes “plain error” in the absence of an

objection at trial: “(a) the record must clearly establish what occurred in the

trial court; (b) a clear and unequivocal rule of law must have been breached;

(c) a substantial right of the accused must have been adversely affected; (d) the

accused did not waive the issue for tactical reasons; and (e) consideration of

the error is ‘necessary to do substantial justice.’”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626,

641-42 (Tenn. Crim. App. 1994)). To rise to the level of “plain error,” an error “‘must [have

been] of such a great magnitude that it probably changed the outcome of the trial.’” Adkisson,

899 S.W.2d at 642 (quoting United State v. Kerley, 838 F.2d 932, 937 (7th Cir. 1988)). All

five factors must be established by the record before a court will find plain error. Smith, 24

S.W.3d at 282. Complete consideration of all the factors is not necessary when clearly at

least one of the factors cannot be established by the record.

Here, appellant has not established that consideration of the error is necessary to do

substantial justice. He claims that certain evidence — his statement to Mr. Mitchell that he

did not commit the murder by himself — would have been heard on the 9-1-1 recording but

was not included in the 9-1-1 log; consequently, he claims that under Ferguson, the 9-1-1 log

should have been excluded as a remedy for the State’s failure to preserve the 9-1-1 recording.

However, evidence of appellant’s statement was presented to the jury through Mr. Mitchell’s

testimony, and there is no indication other than Mr. Mitchell’s speculation that appellant’s

statement was in fact recorded on the 9-1-1 call. Therefore, we decline to apply plain error

review and conclude that appellant has waived plenary review on appeal. See Tenn. R. App.

P. 36(a)-(b).

5

In his reply brief, appellant claims that he should be allowed to present his Ferguson argument for

the first time on appeal. However, in Merriman, the supreme court repeatedly referred to the trial court

performing the Ferguson analysis. See Merriman, 410 S.W.3d at 786-90. Contrary to appellant’s assertion,

the supreme court’s ruling that this court should review a trial court’s Ferguson analysis de novo does not

relieve appellant of the responsibility of raising the issue at the trial level. See id. at 790-92.

-31-

However, appellant’s argument regarding hearsay has some merit. Appellant contends

that the trial court erred by admitting the entirety of the 9-1-1 log without determining

whether each statement therein met a hearsay exception. At trial, he particularly disputed the

log’s documentation of the search for Penny Cox by stating what the various police officers

were doing to locate her.

Hearsay is defined as “a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

Tenn. R. Evid. 801(c). Generally, hearsay is not admissible at trial unless it falls within an

exception to the exclusionary rule. Tenn. R. Evid. 802. We are aware of the disagreement

among panels of this court regarding the appropriate standard of review of the admissibility

of hearsay evidence;6 however, for purposes of this case, the result is the same whether

reviewed for abuse of discretion or de novo.

In the trial court, the State moved for admission of the 9-1-1 log in its entirety under

both the business records exception, Tenn. R. Evid. 803(6), and the public records exception,

Tenn. R. Evid. 803(8). Tennessee Rule of Evidence 803(6) provides:

A memorandum, report, record, or data compilation, in any form, of acts,

events, conditions, opinions, or diagnoses made at or near the time by or from

information transmitted by a person with knowledge and a business duty to

record or transmit if kept in the course of a regularly conducted business

activity and if it was the regular practice of that business activity to make the

memorandum, report, record or data compilation, all as shown by the

testimony of the custodian or other qualified witness or by certification that

complies with Rule 902(11) or a statute permitting certification, unless the

source of information or the method or circumstances of preparation indicate

lack of trustworthiness. The term “business” as used in this paragraph

6

See State v. Dotson, 254 S.W.3d 378, 392 (Tenn. 2008) (in considering an issue involving hearsay,

holding that “questions concerning the admissibility of evidence rest within the sound discretion of the trial

court, and this Court will not interfere in the absence of abuse appearing on the face of the record”); Pylant

v. State, 263 S.W.3d 864, 871 n.26 (Tenn. 2008) (maintaining that the standard of review for hearsay issues

is abuse of discretion); Willie Perry, Jr. v. State, No. W2011-01818-CCA-R3-PC, 2012 WL 2849510, at *3

(Tenn. Crim. App. July 11, 2012), perm. app. denied (Tenn. 2012), (stating that standard of review for

admissibility of evidence is abuse of discretion). But see State v. Gilley, 297 S.W.3d 739, 760 (Tenn. Crim.

App. 2008) (stating that whether a statement is offered to prove the truth of the matter asserted is “necessarily

a question of law” and is not subject to review under abuse of discretion standard); State v. Schiefelbein, 230

S.W.3d 88, 128 (Tenn. Crim. App. 2007) (holding that appellate review of hearsay issues is de novo with

no presumption of correctness); Willie Perry, Jr., 2012 WL 2849510, at *7 (Bivins, J., concurring) (applying

de novo standard of review to hearsay issues).

-32-

includes business, institution, profession, occupation, and calling of every

kind, whether or not conducted for profit.

The public records exception, Rule 803(6), states:

Unless the source of information or the method or circumstances of

preparation indicate lack of trustworthiness, records, reports, statements, or

data compilations in any form of public offices or agencies setting forth the

activities of the office or agency or matters observed pursuant to a duty

imposed by law as to which matters there was a duty to report, excluding,

however, matters observed by police officers and other law enforcement

personnel.

The admissibility of certain types of documents under Rule 803(6) “does not mean

that every entry contained in the documents can be admitted into evidence.” State v. Rucker,

847 S.W.2d 512, 516 (Tenn. Crim. App. 1992). In this case, the log contained “matters

observed by police officers” — specifically, the report from a police officer that the officer

had spoken with someone about Penny Cox’s whereabouts and statements regarding the

police department’s contacting various taxicab companies. The public records exception,

Rule 803(8), prohibits such observations. Therefore, it was error for the trial court to admit

the entirety of the 9-1-1 log without excluding the specific prohibited statements.

Nonetheless, the error is clearly harmless in light of the other evidence presented during the

trial about Ms. Cox’s whereabouts following the victim’s death. See Tenn. R. Evid. 36(b).

3. John Mitchell’s Testimony

Appellant argues that the trial court should not have allowed John Mitchell to testify

because the recording and transcript of his interview with the police had been destroyed. The

sole basis of his argument on appeal is that the trial court should have applied the Ferguson

analysis. However, he did not object on this basis in the trial court, instead choosing to

object on the basis of Jencks v. United States, 353 U.S. 657 (1957), and Tennessee Rule of

Criminal Procedure 26.2. “An appellant cannot change theories from the trial court to the

appellate court.” State v. Banes, 874 S.W.2d 73, 82 (Tenn. Crim. App. 1993). In addition,

he did not present this argument in his motion for new trial. Appellant’s argument is thus

waived. See Tenn. R. App. P. 3(e) (failure to state issue regarding admission of evidence in

motion for new trial results in waiver); State v. Brewer, 932 S.W.2d 1, 9 (Tenn. Crim. App.

1996) (citing State v. Gregory, 862 S.W.2d 574, 578 (Tenn. Crim. App. 1993)). Moreover,

we decline to review this issue for plain error.

-33-

F. Admission of Autopsy Report and Dr. Mileusnic-Polchan’s Testimony

Appellant contends that it violated his right to confront witnesses for the trial court

to admit the autopsy report compiled by Dr. Sandra Elkins through the testimony of Dr.

Mileusnic-Polchan. In so arguing, appellant relies on the United States Supreme Court

opinions of Melendez-Diaz v. Massachusetts, 557 U.S. 305, 307 (2009), and Bullcoming v.

New Mexico, --- U.S. ---, 131 S.Ct. 2705, 2709 (2011). In addition, appellant submits that

Dr. Mileusnic-Polchan should not have been accepted as an expert because she was not

licensed to practice medicine in Tennessee at the time of the victim’s autopsy nor should she

have been allowed to testify regarding her own conclusions drawn from Dr. Elkins’ report.

The State responds that there was no error, and we agree.

1. Autopsy Report

This court recently handled a very similar issue and determined that it was not error

for the trial court to admit an autopsy report written by a different medical examiner than the

one testifying. See State v. Jessie Dotson, No. W2011-00815-CCA-R3-DD, 2013 WL

4728679, at *66 (Tenn. Crim. App. June 25, 2013).7 This court summarized the case law

regarding the Confrontation Clause and forensic reports as follows:

In Crawford v. Washington, 541 U.S. 36, 68 (2004), the United States

Supreme Court held that “[w]here testimonial evidence is at issue . . . the Sixth

Amendment demands . . . unavailability and a prior opportunity for

cross-examination.” “Where nontestimonial hearsay is at issue, it is wholly

consistent with the Framers’ design to afford the States flexibility in their

development of hearsay law.” Id. The Court adopted what came to be known

as “the primary purpose test” for distinguishing testimonial statements from

nontestimonial statements, concluding:

Statements are nontestimonial when made in the course of

police investigation under circumstances objectively indicating

that the primary purpose of the interrogation is to enable police

assistance to meet an ongoing emergency. They are testimonial

when the circumstances objectively indicate that there is no such

ongoing emergency, and that the primary purpose of the

interrogation is to establish or prove past events potentially

relevant to later criminal prosecution.

7

As a death penalty case, Jessie Dotson was automatically appealed to the Tennessee Supreme

Court and is pending as of the filing of this opinion.

-34-

Davis v. Washington, 547 U.S. 813, 822 (2006). Objective evaluation of “the

circumstances in which the encounter occurs and the statements and actions

of the parties” is necessary to determine whether a statement is testimonial or

nontestimonial. Michigan v. Bryant, --- U.S. ---, 131 S.Ct. 1143, 1156 (2011).

In Melendez–Diaz v. Massachusetts, 557 U.S. 305, 307 (2009), the

Court concluded that “affidavits reporting the results of forensic analysis

which showed that material seized by the police and connected to the

defendant was cocaine” were testimonial and subject to exclusion as violating

the confrontation clause. The Court concluded that “the affidavits ‘made

under circumstances which would lead an objective witness reasonably to

believe that the statement would be available for use at a later trial’ “and that

“under Massachusetts law the sole purpose of the affidavits was to provide

‘prima facie evidence of the composition, quality, and the net weight’ of the

analyzed substance.” Id. at 311 (citations omitted). The Court held that absent

a showing that the analysts were unavailable to testify at trial and that the

defendant had a prior opportunity to cross-examine them, the defendant was

entitled to confront the analysts at trial. Id. The Court concluded that live

confrontation of the witness by the defendant was the only constitutionally

permissible way “to challenge or verify the results of a forensic test” and

observed that confrontation would “weed out” fraudulent and incompetent

forensic analysis. Id. at 318-19. The Court rejected the argument that reports

of forensic testing were admissible as business records and that business

records were exempted from the ruling in Crawford. Id. at 321-24.

In Bullcoming v. New Mexico, --- U.S. ---, 131 S.Ct. 2705, 2709 (2011),

the prosecutor introduced the results of forensic testing through the testimony

of a forensic analyst who was familiar with the laboratory’s testing procedures

but did not participate or observe the test on the defendant's blood sample.

The Court held that the defendant’s confrontation rights were violated, noting

that “if an out-of-court statement is testimonial in nature, it may not be

introduced against the accused at trial unless the witness who made the

statement is unavailable and the accused has had a prior opportunity to

confront the witness.” Id. at 2713. The Court rejected the argument that

substitute testimony satisfied the constitutional requirement based upon the

reliable nature of the tests themselves, explaining that “the analysts who write

reports that the prosecution introduces must be made available for

confrontation even if they possess ‘the scientific acumen of Mme. Curie and

the veracity of Mother Teresa.’” Id. at 2715 (quoting Melendez-Diaz, 557 U.S.

at 319 n. 6). The Court concluded that the Confrontation Clause “does not

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tolerate dispensing with confrontation simply because the court believes that

questioning one witness about another’s testimonial statements provides a fair

enough opportunity for cross-examination.” Id. at 2716.

Jessie Dotson, 2013 WL 4728679, at *64.

The Jessie Dotson opinion explained that while Melendez-Diaz and Bullcoming led

this court to the opposite conclusion in State v. James Drew Freeman, Jr., No. M2011-

00184-CCA-R3-CD, 2012 WL 1656975, at *10-13 (Tenn. Crim. App. May 9, 2012), perm.

app. denied (Tenn. Oct. 17, 2012), the United States Supreme Court’s latest opinion on the

matter, Williams v. Illinois, --- U.S. ---, 132 S.Ct. 2221 (2012), effectively abrogated James

Drew Freeman, Jr. See Jessie Dotson, 2013 WL 4728679, at *65-66. The court summarized

Williams v. Illinois:

Williams involved a bench trial in a rape case during which a forensic

specialist from the Illinois state laboratory testified that she matched a DNA

profile produced by an outside laboratory from a vaginal swab taken from the

victim to a profile that the state laboratory obtained using a sample of the

defendant’s blood. In a plurality opinion, the Court concluded that the

testimony did not violate the Confrontation Clause. Id. at 2240. The Court

noted that while the report from the independent laboratory was not introduced

into evidence, the admission of the report would not have violated the

Confrontation Clause even if the report had been introduced for its truth. Id.

at 2242.

The Court stated that the “Confrontation Clause refers to testimony by

‘witnesses against’ an accused.” Id. The Court explained:

The abuses that the Court has identified as prompting the

adoption of the Confrontation Clause shared the following two

characteristics: (a) they involved out-of-court statements having

the primary purpose of accusing a targeted individual of

engaging in criminal conduct and (b) they involved formalized

statements such as affidavits, depositions, prior testimony, or

confessions.

Id. The Court noted that while it held that the forensic reports at issue in

Melendez-Diaz and Bullcoming qualified as testimonial statements, “the Court

did not hold that all forensic reports fall into the same category.” Id. at 2243.

Rather, the introduction of the reports, which reported an elevated

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blood-alcohol level and the presence of an illegal drug, violated the

Confrontation Clause “because they were the equivalent of affidavits made for

the purpose of proving the guilt of a particular criminal defendant at trial.” Id.

There was no ongoing emergency, as both suspects had already been captured,

and the tests were “relatively simple” and generally could be performed by a

single analyst. Id. The Court also noted that the technicians who prepared the

reports must have realized that the contents of the reports would be

incriminating. Id. The Court also noted earlier in its opinion that the forensic

reports in Melendez-Diaz and Bullcoming included a testimonial certification,

made in order to prove a fact in a criminal trial. Id.

The Court explained that an objective test is to be applied in

determining the primary purpose of an out-of-court statement. Id. “We look

for the primary purpose that a reasonable person would have ascribed to the

statement, taking into account all of the surrounding circumstances.” Id. The

Court concluded that the primary purpose of the report from the independent

laboratory in Williams was not to accuse the defendant or to create evidence

for use at trial. Id. Rather, the primary purpose of the report was to “catch a

dangerous rapist who was still at large.” Id.

. . . . As Justice Breyer recognized in his concurring opinion in

Williams, “[a]utopsies, like the DNA report in this case, are often conducted

when it is not yet clear whether there is a particular suspect or whether the

facts found in the autopsy will ultimately prove relevant in a criminal trial.”

132 S.Ct. at 2251 (Breyer, J. concurring).

Jessie Dotson, 2013 WL 4728679, at *65-66.

Applying Williams, this court determined that admitting the autopsy report in Jessie

Dotson when the medical examiner who compiled the report did not testify was not a

violation of Dotson’s right to confront witnesses. Id. at *66. In that case, the primary

purpose of the autopsy report “was not to target the defendant as the perpetrator but instead

to identify the injuries sustained by the victims and their causes of death.” Id.

The primary distinguishing fact between Jessie Dotson and the case sub judice is that

appellant was already in custody when the autopsy was performed, whereas Dotson was not.

See id. Nonetheless, our review of the autopsy report in this case leads us to conclude that

its primary purpose was to identify the injuries sustained by the victim and determine his

cause of death. It was not “accusing a targeted individual of engaging in criminal conduct.”

Williams, 132 S.Ct. at 2242. Moreover, the autopsy report would have remained the same

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whether or not the police had appellant or any other suspect in custody. Therefore, under the

primary purpose test, the autopsy report was not testimonial,8 and its admission at trial absent

the presence of its author, Dr. Elkins, was not a violation of the Confrontation Clause.

2. Dr. Mileusnic-Polchan’s Testimony

Appellant argues that Dr. Mileusnic-Polchan should not have been accepted as an

expert because she was not licensed to practice medicine in Tennessee as of the date of the

victim’s autopsy. In support of his argument, he points to Tennessee Code Annotated section

29-26-115(b), which requires that a licensed health care professional testifying in a medical

malpractice lawsuit must be licensed to practice in Tennessee or a contiguous state in the

year proceeding the alleged tort. However, he has not provided any authority suggesting that

this statute should apply to an expert testifying in a criminal matter, and we decline his

invitation to so apply it.

Appellant further argues that Dr. Mileusnic-Polchan’s testimony violated his right of

confrontation because she did not perform the autopsy yet was testifying as to her

conclusions drawn from the autopsy report. This court in Jessie Dotson addressed this issue

and determined that it was proper for a medical examiner to testify with regard to an autopsy

performed by another medical examiner. Jessie Dotson, 2013 WL 4728679, at *66. As in

Jessie Dotson, Dr. Mileusnic-Polchan was testifying within her area of expertise and relied

on a document, the autopsy report, that was ‘“of a type reasonably relied upon by experts.”’

Id. (quoting Tenn. R. Evid. 703). It is clear that Dr. Mileusnic-Polchan testified as to her

own conclusions, and appellant had an opportunity to thoroughly cross-examine her. This

court has previously noted that several federal courts have held that “‘the Confrontation

Clause does not limit experts offering their own opinion regardless of the independent

admissibility of the material relied upon.’” James Drew Freeman, Jr., 2012 WL 1656975,

at *14 (quoting Nardi v. Pepe, 662 F.3d 107, 112 (1st Cir. 2011)) (citing United States v.

Pablo, 625 F.3d 1285, 1292 (10th Cir. 2010)). Having held that the autopsy report was not

testimonial, we further conclude that Dr. Mileusnic-Polchan’s testimony did not violate

appellant’s right to confrontation.

8

In his concurring opinion in Williams, Justice Breyer questioned what the result would be if the

Court were ever to hold that autopsy reports were testimonial, writing, “What is to happen if the medical

examiner dies before trial?” and “Is the Confrontation Clause ‘effectively’ to function ‘as a statute of

limitations for murder’?” See Williams, 132 S.Ct. at 2251 (J. Breyer, concurring) (citing Melendez-Diaz, 129

S.Ct. 2527 (Kennedy, J., dissenting) (quoting Comment, Toward a Definition of “Testimonial”: How

Autopsy Reports Do Not Embody the Qualities of a Testimonial Statement, 96 Cal. L. Rev. 1093, 1115

(2008))).

-38-

G. Motions for Mistrial

Appellant challenges the trial court’s denial of three motions for mistrial, two

predicated on alleged prosecutorial misconduct and the third on an improper comment from

a witness that allegedly violated appellant’s right to remain silent. The State responds that

there was no manifest necessity to declare a mistrial on any of the three occasions. We agree

with the State.

A trial court may declare a mistrial if it appears that some matter has occurred which

would prevent the jury from reaching an impartial verdict. Arnold v. State, 563 S.W.2d 792,

794 (Tenn. Crim. App. 1977). A trial court should only declare a mistrial in criminal cases

where a manifest necessity requires such action. State v. Millbrooks, 819 S.W.2d 441, 443

(Tenn. Crim. App. 1991). A mistrial is appropriate when a trial cannot continue or a

miscarriage of justice would result if it did continue. State v. McPherson, 882 S.W.2d 365,

370 (Tenn. Crim. App. 1994). This court will review the trial court’s decision to grant or

deny a mistrial for abuse of discretion. See State v. Hall, 976 S.W.2d 121, 147 (Tenn. 1998)

(citing State v. Adkins, 786 S.W.2d 642, 644 (Tenn. 1990)). The party requesting the mistrial

bears the burden of establishing the necessity for it. State v. Williams, 929 S.W.2d 385, 388

(Tenn. Crim. App. 1996).

1. Prosecutorial Misconduct

Appellant cites two occasions when he moved for a mistrial based on the allegedly

improper conduct of the prosecutor. On the first occasion, appellant accuses the prosecutor

of eliciting evidence of appellant’s prior bad acts without first requesting a hearing under

Tennessee Rule of Evidence 404(b). The following exchange occurred during Penny Cox’s

testimony:

PROSECUTOR: [L]et’s talk about . . . the first time that you go

over to [appellant]’s house, the first time that you

meet him.

Can you explain that to us?

MS. COX: Well, we went over there, and we smoked crack.

PROSECUTOR: Okay. When you say “we,” who is “we?”

MS. COX: John and Gary. He didn’t smoke, but he was

there.

-39-

DEFENSE COUNSEL: May we approach, Your Honor?

MS. COX: And Thomas Hutchison.

The trial court held a bench conference, during which defense counsel objected to the

State’s not following the procedure outlined in Tennessee Rule of Evidence 404. The

prosecutor responded that Ms. Cox had not yet said appellant had smoked crack but that she

likely would. The prosecutor argued that appellant’s smoking crack showed how he knew

the people involved in this case. The trial court held a jury-out hearing to allow the State to

proffer Ms. Cox’s testimony. Subsequently, the trial court ruled that Ms. Cox could testify

about smoking crack cocaine with appellant after the victim’s death and issued a jury

instruction for the jury to disregard Ms. Cox’s statement, “We smoked.”

Appellant also claims that the prosecutor acted improperly during Ms. Cox’s

testimony when defense counsel objected to leading, and the prosecutor stated, “I can not

lead, and she could say what she knows.” Appellant alleges that the implication of the

prosecutor’s statement is that the defense was hiding evidence from the jury. The trial court

issued a curative instruction that comments by counsel were not evidence.

When reviewing allegations of prosecutorial misconduct, this court must review the

record to determine “whether such conduct could have affected the verdict to the prejudice

of the defendant.” State v. Smith, 803 S.W.2d 709, 710 (Tenn. Crim. App. 1990).

“[P]rosecutorial misconduct does not amount to reversible error absent a showing that it has

affected the outcome of the case to the prejudice of the defendant.” State v. Reid, 164

S.W.3d 286, 321 (Tenn. 2005). Our supreme court has outlined the following factors to

consider when making such a determination:

(1) the conduct complained of viewed in context and in light of the facts and

circumstances of the case; (2) the curative measures undertaken by the [c]ourt

and the prosecution; (3) the intent of the prosecutor in making the improper

statement; (4) the cumulative effect of the improper conduct and any other

errors in the record; and (5) the relative strength or weakness of the case.

State v. Buck, 670 S.W.2d 600, 609 (Tenn. 1984) (quoting Judge v. State, 539 S.W.2d 340,

344 (Tenn. Crim. App. 1976)).

In both of these instances, the trial court issued curative instructions to the jury,

instructions which we presume the jury followed. See State v. Vanzant, 659 S.W.2d 816, 819

(Tenn. Crim. App. 1983). In the first instance, when Ms. Cox mentioned that appellant

smoked crack with her the first day she met him, we fail to see how, in the context of the

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case, the prosecutor’s conduct in eliciting the comment amounted to reversible error. We

agree that the prosecutor should not have asked Ms. Cox to elaborate with regard to who had

been smoking crack cocaine at that juncture without a Rule 404(b) hearing, but it was all but

inevitable that the jury would hear that appellant smoked crack cocaine at some point. There

has been no indication that the prosecutor had malicious intent. We conclude that the

prosecutor’s conduct did not amount to reversible error nor did it create a manifest necessity

to declare a mistrial.

As for the second instance, the trial court saw fit to issue a curative instruction when

asked to do so by appellant but not to declare a mistrial. Appellant suggests that the

prosecutor’s statement implied that appellant was hiding information from the jury, but on

the cold, written record we have on appeal, we are unable to either agree or disagree with

appellant’s deduction as to the prosecutor’s meaning. Therefore, we must defer to the

decision of the trial court, which was in a much better position to interpret the prosecutor’s

meaning. Based on the record before us, we must conclude that there was no manifest

necessity to declare a mistrial.

2. Alleged Violation of Fifth Amendment Right to Remain Silent

Appellant moved for a mistrial during Investigator Murray’s testimony predicated on

the witness’s saying that he asked appellant whether he wanted to give a statement and read

appellant’s rights to him. Investigator Murray did not say that appellant refused to give a

statement because either the prosecutor or the court (it is unclear from the transcript)

interrupted him.

It is fundamental that the State cannot use a defendant’s post-arrest silence against

him, with certain exceptions that do not apply to this case. See Doyle v. Ohio, 426 U.S. 610,

617-19 (1976); Miranda v. Arizona, 384 U.S. 436, 468 n.37 (1966) (“[I]t is impermissible

to penalize an individual for exercising his Fifth Amendment privilege when he is under

police custodial interrogation. The prosecution may not, therefore, use at trial the fact that

he stood mute or claimed his privilege in the face of accusation.”). In this case, while

Investigator Murray nearly crossed the line, the fact remains that he never said that appellant

invoked his right to remain silent. Moreover, the trial court issued a curative instruction to

the jury that it should disregard both the prosecutor’s question that led to Investigator

Murray’s answer and his answer. Again, we apply the presumption that the jury followed the

trial court’s instruction. See Vanzant, 659 S.W.2d at 819. Under these circumstances, we

conclude that the trial court did not abuse its discretion by denying appellant’s motion for

mistrial because there was no manifest necessity.

-41-

H. Denial of Request for Continuance

Appellant argues that the trial court should have granted him a continuance on the

morning of the first day of his trial based on the prosecution’s late disclosure of photographs

of appellant’s clothing. The State responds that appellant has failed to demonstrate actual

prejudice from the denial of the request for continuance. We agree with the State.

The record in this case reflects that just before trial, appellant requested from the State

any photographs taken by the TBI. The State contacted the TBI, and Agent Keith Proctor

sent the State two photographs, which it then sent to appellant. The photographs were of

appellant’s clothing that had been tested by the TBI, specifically a jacket and shirt. Appellant

stated that he received the photographs the Friday prior to the first day of trial. He requested

a continuance to be allowed to examine the photographs and explore who made the

photographs and when the photographs were made, among other inquiries. The trial court

denied his request.

The decision to grant or deny a continuance is a matter left to the discretion of the trial

judge, whose decision will not be disturbed absent a showing of abuse of discretion to the

defendant’s prejudice. State v. Odom, 137 S.W.3d 572, 589 (Tenn. 2004) (citing State v.

Hines, 919 S.W.2d 573, 579 (Tenn. 1995)). “An abuse of discretion requires a showing that

the denial of a continuance denied the defendant a fair trial or that the result of the trial

would have been different.” Id. In this case, appellant has not demonstrated that the denial

of the continuance prejudiced him to the extent that he was denied a fair trial or that he would

have received a different result otherwise. Appellant had the opportunity to thoroughly

cross-examine the TBI agent responsible for testing the items of clothing depicted in the

photographs. Moreover, appellant has not asserted that he would have discovered any

additional information about the photographs had he been granted a continuance. Therefore,

we conclude that the trial court did not abuse its discretion in denying appellant’s request for

a continuance.

I. Denial of Motion to Strike Penny Cox’s Testimony

Appellant contends that the trial court erred by denying his motion to strike Penny

Cox’s testimony. Appellant claims that Ms. Cox’s testimony was inconsistent to the point

that it was incompetent. The State responds that appellant was allowed to impeach Ms. Cox

with her inconsistencies and that any inconsistencies did not require striking her testimony.

During Ms. Cox’s testimony, the trial court held a Rule 404(b) hearing. See Tenn. R.

Evid. 404(b). In that jury-out hearing, Ms. Cox stated that appellant discussed robbing the

victim on the second day that she was at his house, but she later stated that it was the third

-42-

day she was there. She insisted that she was nervous and confirmed that the discussion

happened on the third day. Appellant moved to strike her testimony based on the

inconsistency of her testimony. The trial court denied the motion, and appellant was allowed

to impeach her with her inconsistent statements.

“The purpose of a motion to strike evidence is to exclude incompetent evidence from

the record and consideration by the trier of fact.” State v. Melvin, 913 S.W.2d 195, 200

(Tenn. Crim. App. 1995). The movant may request the exclusion of an item of evidence, part

of a witness’s testimony, or a witness’s entire testimony. Id. We review the trial court’s

decision for abuse of discretion. Id.

Appellant relies on the “rule of cancellation” to assert that Ms. Cox’s testimony

should have been stricken. Tennessee law holds that “contradictory statements by a witness

in connection with the same fact cancel each other.” State v. Matthews, 888 S.W.2d 446, 449

(Tenn. Crim. App. 1993) (citing Taylor v. Nashville Banner Pub. Co., 573 S.W.2d 476, 482

(Tenn. Ct. App. 1978)). However, the “rule of cancellation applies only when inconsistency

in a witness’s testimony is unexplained and when neither version of his testimony is

corroborated by other evidence.” Id. (citing Taylor, 573 S.W.2d at 483) (emphasis added).

“The testimony of a witness as to a particular fact may have value even though he has both

affirmed and denied it if the contradiction is explained and is shown to have been the result

of misunderstanding or inadvertence.” Johnston v. Cincinnati, N. O. & T. P. Ry. Co., 146

Tenn. 135, 240 S.W. 429, 435 (1922).

Ms. Cox explained that she misspoke because she was nervous and affirmed that

appellant told her of his plan to rob the victim on the third day of her stay at his house. This

appears to be the type of inadvertent mistake comprehended by our supreme court in

Johnston. In any event, the rule of cancellation would apply only to the specific facts about

which Ms. Cox testified inconsistently, not the entirety of her testimony. The trial court did

not abuse its discretion by denying appellant’s motion to strike.

J. Autopsy Photographs

Appellant argues for the first time on appeal that the trial court erred by admitting the

autopsy photographs. He specifically complains that the jury’s “prolonged exposure” to the

photographs during Dr. Mileusnic-Polchan’s testimony was unnecessary as the fact and cause

of the victim’s death and his injuries had been established by other witnesses. The State

responds that appellant has waived review of this issue for failing to object to the admission

of the photographs at trial. We agree with the State. Appellant did not lodge an objection

to the photographs and has thus waived appellate review of this claim. See Tenn. R. App.

P. 36(a); Tenn. R. Evid. 103(a)(1).

-43-

K. Jury Instruction that Witnesses Are Presumed to Tell the Truth

Appellant argues that the trial court’s instructing the jury that witnesses are presumed

to tell the truth infringed on his right to remain silent and was an improper comment on the

evidence by the trial court. He is especially concerned that the presumption endorses the

credibility of Ms. Cox’s and Mr. Mitchell’s testimonies. The State replies that courts of this

state and the United States Supreme Court have allowed such jury instructions and that

application of the controlling authority renders appellant’s argument meritless. We agree

with the State.

In Cupp v. Naughton, the United States Supreme Court ruled that a jury instruction

that all witnesses were presumed truthful did not violate the Due Process Clause of the

Fourteenth Amendment when the jury was also “instructed to consider the manner of the

witness, the nature of the testimony, and any other matter relating to the witness’ possible

motivation to speak falsely” and “was charged fully and explicitly about the presumption of

innocence and the State's duty to prove guilt beyond a reasonable doubt.” 414 U.S. 141, 149

(1973). The Court reasoned that such instructions allowed the jury to “remain[] free to

exercise its collective judgment to reject what it did not find trustworthy or plausible.” Id.

Moreover, such instructions did not place undue pressure on an accused to take the witness

stand or to call witnesses. Id. Likewise, this court in Lundy v. State applied Cupp to a

similar instruction in Tennessee and concluded that the jury charge taken as a whole,

including the presumption of truthfulness, was constitutionally sound. 752 S.W.2d 98, 103

(Tenn. Crim. App. 1987).

In this case, the trial court thoroughly instructed the jury on the presumption of

innocence applied to appellant and the State’s burden to prove his guilt beyond a reasonable

doubt. The trial court also instructed the jury that while the law presumed that witnesses

testified truthfully, it was the jury’s prerogative to reconcile conflicts in witnesses’

testimonies and to decide whom they believed. The trial court also provided factors for the

jury to consider when weighing a witness’s credibility, including the witness’s motives,

mannerisms while on the stand, and whether the witness was in a position to know about the

matter to which he or she was testifying. These jury instructions “acknowledg[ed] that a

witness could be discredited by his own manner or words,” and therefore, “the instruction

freed [appellant] from any undue pressure to take the witness stand himself or to call

witnesses under the belief that only positive testimony could engender disbelief of the State’s

witnesses.” See Cupp, 414 U.S. at 149. We conclude that appellant’s claim is without merit.

-44-

L. Sufficiency of the Evidence

Appellant contends that the evidence was insufficient to support his convictions for

facilitation of first degree murder and facilitation of especially aggravated robbery because

there was no evidence that he substantially assisted another person who committed murder

and especially aggravated robbery, which is a required element of facilitation. In addition,

he argues that the trial court should have granted his motion for a judgment of acquittal with

regard to the especially aggravated robbery charge because there was no proof of a robbery.

The State responds that there was sufficient evidence for the jury to determine that an

unknown and unindicted person committed the murder and especially aggravated robbery,

substantially assisted by appellant.

The standard for appellate review of a claim challenging the sufficiency of the State’s

evidence is “whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citing Johnson

v. Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v. Davis, 354

S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of insufficient evidence, appellant

must demonstrate that no reasonable trier of fact could have found the essential elements of

the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319. This standard of

review is identical whether the conviction is predicated on direct or circumstantial evidence,

or a combination of both. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v.

Brown, 551 S.W.2d 329, 331 (Tenn. 1977). A motion for judgment of acquittal raises a

question of law, i.e., the legal sufficiency of the evidence, for determination by the trial court.

State v. Adams, 916 S.W.2d 471, 473 (Tenn. Crim. App. 1995) (citing State v. Hall, 656

S.W.2d 60, 61 (Tenn. Crim. App.1983)). Thus, on appeal, this court applies the same

standard of review both to the trial court’s denial of a motion for a judgment of acquittal and

to the sufficiency of the convicting evidence underlying the jury’s verdict. State v. Carroll,

36 S.W.3d 854, 869 (Tenn. Crim. App. 1999) (citing State v. Ball, 973 S.W.2d 288, 292

(Tenn. Crim. App. 1998)).

On appellate review, “‘we afford the prosecution the strongest legitimate view of the

evidence as well as all reasonable and legitimate inferences which may be drawn

therefrom.’” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857 (Tenn.

2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage, 571 S.W.2d

832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of witnesses and

the weight and value to be given the evidence, as well as all factual disputes raised by the

evidence, are resolved by the jury as trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn.

1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). This court presumes that the jury

has afforded the State all reasonable inferences from the evidence and resolved all conflicts

-45-

in the testimony in favor of the State; as such, we will not substitute our own inferences

drawn from the evidence for those drawn by the jury, nor will we re-weigh or re-evaluate the

evidence. Dorantes, 331 S.W.3d at 379; Cabbage, 571 S.W.2d at 835; see State v. Sheffield,

676 S.W.2d 542, 547 (Tenn. 1984). Because a jury conviction removes the presumption of

innocence that appellant enjoyed at trial and replaces it with one of guilt at the appellate

level, the burden of proof shifts from the State to the convicted appellant, who must

demonstrate to this court that the evidence is insufficient to support the jury’s findings.

Davis, 354 S.W.3d at 729 (citing State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).

In order to support appellant’s convictions for facilitation, the State had to prove

beyond a reasonable doubt that “the accused (a) knew another person was going to commit

a specified felony and (b) knowingly furnished substantial assistance in the commission of

the felony although the accused did not possess the requisite intent to be guilty of the felony.”

State v. Parker, 932 S.W.2d 945, 950-51 (Tenn. Crim. App. 1996); see also Tenn. Code Ann.

39-11-403(a). Appellant was convicted of facilitating first degree murder under alternate

theories of premeditation and felony murder and of facilitating especially aggravated robbery.

Under the theory of premeditated murder, the State would have had to show that “the intent

to kill [was] formed prior to the act itself.” See Tenn. Code Ann. § 39-13-202(d). For the

felony murder counts, the State had to establish that the victim was killed in the course of a

robbery or theft. Finally, the State had to demonstrate that the person to whom appellant

provided substantial assistance was culpable of especially aggravated robbery, which is

defined as “the intentional or knowing theft of property from the person of another by

violence or putting the person in fear” that is “[a]ccomplished with a deadly weapon[ ] and

[w]here the victim suffers serious bodily injury.” Tenn. Code Ann. §§ 39-13-401, -403. In

addition, to survive the motion for judgment of acquittal with regard to the especially

aggravated robbery charge, the proof had to be sufficient that appellant was responsible for

especially aggravated robbery as we have just defined it.

Appellant contends that there was no evidence that another person was involved in

the victim’s death and that there was no evidence of a robbery. However, viewed in the light

most favorable to the State, the evidence revealed at trial was sufficient to support appellant’s

convictions. Regarding whether the victim was robbed, the testimony indicated that the

victim typically wore two rings on one hand, but he was only wearing one ring when the

police found him. A gold ring, identified by John Mitchell as belonging to the victim, was

found in an adjacent bathroom. Moreover, according to Mr. Mitchell’s testimony, the victim

had at least $2000 in cash on his person prior to his death. Appellant had money after the

victim’s death that he did not have before. Ms. Cox also had a sum of money after the

victim’s death, the origin of which was unclear from the testimony. She claimed she had

received a tax return, but according to one witness, Ms. Cox did not work. In any event,

most of the victim’s $2000 was unaccounted for as the police did not testify that appellant

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had that much currency when he was arrested. Thus, the facts established that an especially

aggravated robbery occurred. This evidence was sufficient to support the trial court’s denial

of appellant’s motion for judgment of acquittal. The State’s evidence also established both

premeditated murder and felony murder, considering that appellant expressed to Ms. Cox his

plan to rob the victim, his luring the victim into his home to conduct a drug sale, with no

evidence of a buyer, and the aforementioned facts supporting the especially aggravated

robbery of the victim.

The central issue is whether the facts support that appellant knew someone was going

to kill and rob the victim and that appellant substantially assisted said person. Appellant’s

foreknowledge is supported by the same facts supporting premeditation: appellant had a plan

to rob the victim and lured the victim into his house on the pretext that they would conduct

a drug sale with a third party. Several facts also support appellant’s assistance of the

principal actor, rather than his direct participation. Ms. Cox was in the house during the

offenses, and although she told the police that she had not changed clothes since the murder,

Ms. Armas-Trejos testified that Ms. Cox was wearing different clothes when she picked her

up than when Ms. Cox was at the police station. Mr. Mitchell testified that appellant said,

“I didn’t do it by myself.” The clear implication is that another person was involved in the

offenses. In addition, while appellant had some of the victim’s blood on his clothing, near

his ankles, and on his fingers, the amount of blood was not necessarily what one would

expect considering the massive trauma received by the victim. There is also the issue of who

had the victim’s missing $2000. While there is no direct proof that another person was

involved, a jury could have found the existence of a culpable party based on this

circumstantial evidence. Therefore, we conclude that any rational jury could have found

appellant guilty of facilitating first degree murder and facilitating especially aggravated

robbery.

M. Cumulative Error

Appellant argues that he is entitled to a new trial due to cumulative errors throughout

his trial. However, he has only shown two errors, both of which we deemed harmless.

Therefore, we conclude that he is not entitled to a new trial on this basis.

CONCLUSION

Based on our review of the record, the parties’ arguments, and the applicable law, we

affirm the judgments of the trial court.

_________________________________

ROGER A. PAGE, JUDGE

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