State of Tennessee v. Rickey Alvis Bell Jr.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

February 4, 2014 Session

STATE OF TENNESSEE v. RICKEY ALVIS BELL, JR.

Appeal from the Circuit Court for Tipton County

No. 6664 Joe H. Walker, III, Judge

No. W2012-02017-CCA-R3-DD - Filed May 30, 2014

A Lauderdale County jury convicted the defendant, Rickey Alvis Bell, Jr., of felony murder

in the perpetration of a kidnapping, felony murder in the perpetration of a rape, aggravated

kidnapping, and aggravated sexual battery. Following the penalty phase, the jury sentenced

the defendant to death on the two counts of felony murder. The trial court merged the two

felony murder convictions and sentenced the defendant to twenty years each for the

aggravated kidnapping and aggravated sexual battery convictions. The trial court ordered

the defendant to serve the two twenty-year sentences concurrent to each other but

consecutive to the death sentence, for an effective sentence of death plus twenty years. On

appeal, the defendant asserts that: (1) the trial court erred in denying his motion to strike the

State’s notice of its intent to seek the death penalty because he is intellectually disabled; (2)

the evidence is insufficient to support the convictions; (3) the trial court erred in denying his

two motions for a mistrial; (4) the trial court erred in refusing to allow the defense to

question the victim’s husband regarding an extramarital affair; (5) the aggravating

circumstance codified in Tennessee Code Annotated section 39-13-204(i)(7) is

unconstitutional; (6) the absence of an intent to kill renders the death penalty

disproportionate; (7) proportionality review should be modified and the pool of cases

considered in proportionality review should be broadened; and (8) the sentence of death is

arbitrary and disproportionate. We affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court are

Affirmed.

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which A LAN E. G LENN

and C AMILLE R. M CM ULLEN, JJ., joined.

James M. Gulley (at trial), Juni Samrat Ganguli (at trial and on appeal), and James Edward

Thomas (on appeal), Memphis, Tennessee, for the appellant, Rickey Alvis Bell, Jr.

Robert E. Cooper, Jr., Attorney General & Reporter; Michelle Consiglio-Young, Assistant

Attorney General; D. Michael Dunavant, District Attorney General; and James Walter

Freeland, Jr. and Joe Van Dyke, Assistant District Attorneys General, for the appellee, State

of Tennessee.

OPINION

The defendant was convicted of two counts of felony murder and one count each of

the aggravated kidnapping and aggravated sexual battery of the wife of his employer,

Thomas R. Harris, Jr. (“Rick”)1 . During the evening hours of June 1, 2010, the victim’s body

was discovered by Nathan McKell in a wooded area behind the residence of Rick and the

victim at Richardson Landing Lane in Drummonds, Tipton County, Tennessee.

Mr. McKell, Rick’s stepson from a prior marriage, testified that he was fifteen years

old in June 2010 and lived with Rick, the victim, Rick’s children, and the victim’s children.

Mr. McKell also worked for Rick, who ran a business that performed landscaping and

cleaning services on foreclosed houses. The employees gathered at Rick’s house every

morning, and Rick sent crews to various locations. While the crews were working, the

victim remained at their home and completed paperwork on the computer. The computer

was located in the front of the residence and to the left of the front door.

Mr. McKell testified that on June 1, 2010, he awoke at approximately 9:30 a.m. and

that he, Johnny Parker, “Jose,” James Arcutt, and Rick’s two sons, Josh Harris (“Josh”) and

Ricky Adam Harris (“Ricky Adam”), gathered outside the residence to receive their

assignments. Mr. McKell said he, Mr. Parker, and “Jose” began mowing the grass. At some

point, Mr. Arcutt asked Mr. McKell to take him to Mr. Arcutt’s house located around the

corner so that he could retrieve his cigarettes. Mr. McKell drove Mr. Arcutt to his house on

a four wheeler.

Mr. McKell said that in June 2010, the defendant lived in a house down the road from

them. At 11:45 a.m., Mr. McKell saw the defendant walking down the driveway

approximately 100 yards from Rick’s house. The defendant was wearing black shorts, a

black shirt, a black hat, and a chain. Mr. McKell said that shortly before noon, he overheard

Rick and the defendant discussing the defendant’s pay. The defendant asked Rick why his

pay was short, and Rick responded that the defendant had missed a day of work. Mr. McKell

explained that Rick paid his employees in cash based upon the number of days that they

1

Because Thomas R. Harris, Jr. and some witnesses who testified at trial share the same last name,

we will refer to them by their first names for purposes of clarity. By doing so, we intend no disrespect.

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worked. Mr. McKell stated that the victim was in the area when the conversation occurred.

Mr. McKell, Mr. Parker, and “Jose” then went to a house in Millington to mow a yard, while

Rick worked with another crew.

Mr. McKell testified that he returned to his home at approximately 7:30 or 8:00 p.m.

just as it was becoming dark. He assisted “Jose” in unhooking the trailer from the truck

while Mr. Parker entered the residence. Mr. McKell then entered the residence and noticed

that the computer was knocked back behind the desk and that the front door was open.

Neither the victim nor the family’s dogs were inside the house. Mr. McKell later found the

dogs outside. He did not contact the police immediately. Rather, he contacted Rick and

informed him of his observations.

Mr. McKell said he began looking around the house and noticed that the back door

was open. He explained that the back door was not used often and believed that it was

unusual that the back door was unlocked and open. He told Mr. Parker, who was in the

living room, that the back door was open, and Mr. Parker called Rick to inform him. Mr.

McKell and Mr. Parker then exited through the back door.

Mr. McKell stated that the back yard included an area of tall grass and a wooded area

behind the grass. He noticed a path in the tall grass that was not there when he had left the

house earlier in the day. Mr. McKell drove his four wheeler down a path into a heavily

wooded area with hills, which made driving the four wheeler difficult. As a result, he flipped

the four wheeler and was thrown off of it. When he got back on the four wheeler, he saw the

lights shining on the victim’s body, approximately twenty yards away.

On cross-examination, Mr. McKell testified that Mr. Arcutt was at his house when he

awoke that morning. He was aware that Mr. Arcutt was dating “Katie,” who also was

“talking” to the defendant. The defendant and “Katie” had been involved for several weeks

before June 1, 2010, and Mr. Arcutt was aware of it. Some of the employees teased Mr.

Arcutt about the relationship. Mr. McKell said Mr. Arcutt did not like to be teased and did

not like the defendant.

Mr. McKell said that at approximately 11:45 a.m. on June 1, he and Mr. Arcutt rode

a four wheeler through the woods to Mr. Arcutt’s house to retrieve Mr. Arcutt’s cigarettes.

They then rode the four wheeler down the road to Mr. McKell’s house. Mr. Arcutt did not

work that afternoon, and Mr. McKell did not know why Mr. Arcutt did not work.

Mr. McKell testified that he saw the defendant around noon on June 1 outside of Mr.

McKell’s home. Mr. McKell said Rick gave the defendant his pay as the defendant was

standing in the doorway inside the home. Mr. McKell saw the defendant again as Mr.

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McKell was walking back outside and going to work. He did not see the defendant for the

rest of the day. Mr. McKell did not speak to Rick from noon until 8:00 p.m. He believed

Mr. Parker may have talked to Rick.

When Mr. McKell arrived home from work, he observed that the lights were on inside

the home and that the front door was open. After Mr. Parker entered the house, he did not

call out for Mr. McKell and “Jose” to enter. Mr. McKell testified that when he called Rick

to report his observations, Rick was “calm” but suspected that something was wrong. Rick

instructed Mr. McKell to call out for the victim and try to find her. Rick also told him to

look outside. Mr. McKell looked around the yard and called Rick when he noticed that the

grass had been laid down in a path. Rick instructed him to look in the woods. Mr. McKell

said he searched for the victim in the woods for approximately thirty minutes before he found

the victim’s body. He stated that the only other people who went into the woods were Kelly

Phelps, Dustin Perdue, and Mr. Parker. Other people came to the residence. Mr. McKell did

not recall seeing Mr. Arcutt at the scene.

Belinda Joyce Bell, the defendant’s mother, testified that in June 2010, she and her

three sons lived on Richardson Landing Road in Drummonds. She was employed in the food

service department at the West Tennessee State Penitentiary. She said that on June 1, 2010,

she worked from 5:00 a.m. to 1:00 p.m. and arrived home at approximately 2:00 p.m.

Ms. Bell said that upon arriving home from work, she spoke to the defendant who was

sitting on the couch. The defendant was wearing a white T-shirt, blue short pants, and white

socks. He was not wearing any shoes. Ms. Bell stated that the defendant had not been home

when she left for work at 4:00 a.m. Rather, he was at his girlfriend’s home. Ms. Bell said

the defendant had called her the previous day and told her that he was not coming home that

day.

Ms. Bell said that after speaking to the defendant, she showered. She also said that

as far as she knew, the washing machine was not running at that time. She explained that her

shower lost pressure whenever her washing machine was operating.

Ms. Bell testified that the defendant worked for Rick and was paid in cash. She did

not know whether the defendant had missed one day of work during the week before May

31, 2010, Memorial Day. Two weeks before Memorial Day, Ms. Bell drove the defendant

to the doctor. The defendant did not mention to Ms. Bell whether he would be paid for the

day that he missed work.

Ms. Bell testified that officers arrived at her home on June 1st at approximately 8:45

p.m. She said the officers handcuffed the defendant and escorted him outside. Another

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officer later instructed the officers to remove the handcuffs. On June 9th, the defendant was

arrested at his girlfriend’s residence. Ms. Bell said the officers seized several items from her

home, including her work shoes, the defendant’s clothes, her clothes, the clothes of her son,

Kevin, towels, and condoms. Ms. Bell did not know to whom the condoms belonged. She

said the defendant slept on the couch in the den and used a closet in the room of one of her

other sons.

Ms. Bell recalled that law enforcement came to her home on another occasion and

showed her a photograph of what she believed to have been a gun. She informed officers

that her son, Kevin, had a gun similar to the one depicted in the photograph but that the gun

had been stolen the previous year.

On cross-examination, Ms. Bell testified that the defendant did not work on Memorial

Day and was at home. The defendant generally was paid on Mondays. He informed Ms.

Bell that he would not be home on Tuesday because he expected to be paid on Memorial

Day. However, the defendant was not paid as he expected.

Ms. Bell did not recall whether the washer was operating when she returned home

from work on June 1st. After she returned home from work, she did not see the defendant

wash any laundry. Ms. Bell said the defendant left her home at approximately 3:30 or 4:00

p.m. He took her car to purchase gas and a package of cigarettes. While the defendant was

gone, she received a call from her son, Michael, requesting that she allow the defendant to

pick him up and drive him to another location. Ms. Bell then called the defendant and told

him of the conversation. The defendant returned at approximately 8:30 or 9:00 p.m. and

approximately twenty-five minutes before officers arrived.

Ms. Bell testified that approximately twelve or thirteen officers came to her residence

on June 1st and remained until around midnight. The officers knocked on her door, and she

invited them inside. The officers did not have a warrant. They asked to speak to the

defendant. Ms. Bell said that at the time, she did not know why the officers were there. The

officers asked the defendant to step outside, and he complied with the request. Ms. Bell said

the officers took items from her home and questioned her for approximately thirty minutes.

Tommy Redditt, who lived on Richardson Landing Lane, testified that he had taken

a week’s vacation during the week of June 1, 2010. While outside grilling at approximately

1:00 p.m. on June 1st, Tommy saw an African-American man walking down Richardson

Landing Lane. Tommy recognized the man as one of Rick Harris’ employees and knew that

the man lived in the area.

Tommy testified that he saw the man again at approximately 1:30 p.m. on the same

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day. The man was standing near a “goose neck” trailer and was looking around and back

toward Rick’s house. The man was wearing the same clothing that he had been wearing

when Tommy first saw him. Tommy said the man’s actions seemed unusual, and he did not

know whether the man was waiting for Rick or one of the other employees to return for him.

Tommy testified that later that evening at approximately 8:00 p.m., his son, Tommy

Redditt, Jr., a first responder, called and said that someone had been murdered or found dead

behind Rick’s house. Tommy, Jr. asked Tommy to go to Rick’s house and check on the

victim. Tommy said the distance between his front porch and Rick’s house was 150 to 200

yards. Tommy went to the home but did not enter it. He saw some of Rick’s employees

standing outside beside the home. They informed Tommy that the body was the victim and

that she might have a pulse. Tommy stated that one of Rick’s step-children was there and

was an “emotional wreck” because he had found the victim.

Tommy said he and Tommy, Jr. went into the woods to see the victim’s body. They

used flashlights to find their way. Several people were with the victim’s body when they

arrived. The first responders had not yet arrived. Tommy stated that he did not recognize

the victim at first and that she had what appeared to be a great amount of blood on her. He

also saw a four-wheeler with its headlight on in the general area.

On cross-examination, Tommy testified that while he was grilling, his son, Andrew,

was playing basketball a few hundred feet away. Tommy acknowledged that his attention

was on grilling and watching his son. He did not see the man walk directly to the victim’s

home. He did not keep a close watch on the man because he recognized the man as one of

Rick’s employees.

Tommy said that while he was grilling, he was in and out of his house. He remained

inside his home for no more than three minutes at a time. He never saw two men drive up

to the victim’s home in a truck. He did not see the postman at any time during that afternoon

and did not see a Federal Express truck on Richardson Landing Lane. Tommy stated he

entered his home at approximately 1:30 p.m. and remained inside for the remainder of the

day.

Andrew Michael Redditt, Tommy’s son, testified that on June 1, 2010, at

approximately 12:40 or 12:50 p.m., he went outside and played basketball on Rick’s

basketball court. His father, Tommy, was outside grilling. After Andrew had been playing

basketball for ten to fifteen minutes, the defendant approached him and asked where “Little

Josh” was. Andrew assumed that the defendant was referring to Josh Harris. Andrew said

the defendant was wearing black shorts and a black T-shirt. He did not know where the

defendant lived or worked.

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Andrew testified that after speaking to the defendant, the defendant began to leave,

walking down the gravel road. The defendant then stopped for a moment and began walking

toward Rick’s house. Andrew said the defendant knocked on the door. Andrew saw the

victim come to the door and speak to the defendant for approximately ten seconds. He stated

he then saw the defendant enter the home. Andrew continued playing basketball and then

returned home where his father was preparing their lunch.

On cross-examination, Andrew testified that while he was playing basketball, his

father was behind their home grilling. Andrew said that there was quite a bit of distance

from his home to the basketball court and that he did not recall whether there was junk or

garbage near the basketball court. He stated that he could walk from the gravel road to the

basketball court in approximately ten seconds and from the basketball court to Rick’s home

in approximately fifteen seconds.

Andrew testified that he was certain that he saw the defendant enter Rick’s home. He

did not see the victim step outside of the home when the defendant arrived but saw the victim

answer the door.

Andrew said he continued to play basketball for approximately ten more minutes. He

did not see a truck pull into Rick’s driveway. He did not see a Caucasian man and another

man drive up in a truck and the Caucasian man speaking to the victim for approximately ten

minutes. While eating inside his home, Andrew did not see a Federal Expresss truck in the

area.

Carol Redditt, Tommy’s wife and Andrew’s mother, testified that between 1:00 and

1:10 p.m. on June 1, 2010, she was in her back yard with her husband grilling. Mrs. Redditt

saw the defendant walking down Richardson Landing Lane toward Rick’s house. He was

wearing all black and had a black “do-rag” on his head. Mrs. Redditt said she had seen the

defendant several times before in connection with Rick’s lawn care service. She did not see

the defendant do anything but walk in the direction of Rick’s home.

Mrs. Redditt testified that at approximately 8:30 p.m. that evening, she heard

screaming and yelling coming from down the street and walked down the road to investigate.

Upon arriving at Rick’s home, she learned that a body had been found behind the home but

did not know who it was. Once she learned that it was the victim who had been found, she

walked around to the back of the house where she met Mr. McKell. Mr. McKell was talking

to a 9-1-1 operator over the telephone. He handed Mrs. Redditt the telephone, asked her to

talk to the operator, and ran back toward the location of the victim’s body. Mrs. Redditt

remained on the telephone for approximately forty-five seconds and then walked toward the

area of the victim’s body. At that time, she did not know whether the victim was still alive.

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Mrs. Redditt said she walked partially down a hill in the woods where the victim was

and saw her husband, Tommy, Jr., and two other people. Mrs. Redditt knew that the victim

was lying in the area but could not see any details. Tommy instructed her to not go any

further. Mrs. Redditt saw a four-wheeler. The headlights were on but were at an angle so

that she could not see the victim’s body. Mrs. Redditt denied touching the victim’s body.

She then returned to the front of the home and was there when law enforcement arrived.

Rick arrived six to seven minutes after Mrs. Redditt arrived.

On cross-examination, Mrs. Redditt testified that she went to the victim’s house, along

with her husband, to sit with the victim. Mrs. Redditt said she had been friends with the

victim for a little more than one year. When she first arrived, she only saw Thomas Harris,

Rick’s father, standing in front of the house. She saw Dustin Perdue, Kelly Phelps, her

husband, and her son standing next to the victim’s body. As Mrs. Redditt was standing in

the woods, a law enforcement officer and two emergency medical technicians walked past

her. Everyone then walked back to the home. By the time they returned, law enforcement

officers were everywhere.

Mrs. Redditt said that in June 2010, garbage and debris, including an abandoned truck,

were piled near Rick’s home. Garbage was piled between her home and the basketball court.

Mrs. Redditt did not recall seeing a truck drive from Richardson Landing Lane to the Harris

home earlier that day.

Alexia Block, a friend of the victim, testified that on June 1, 2010, she and the victim

exchanged text messages. The series of text messages began at 1:02 p.m. and twenty-seven

seconds and continued until 1:28 p.m. and three seconds. The last text message that Ms.

Block received from the victim was at 1:25 p.m. At 1:28 p.m., Ms. Block sent the victim a

text message that stated that she hoped that the victim’s day improved and that she loved her.

Ms. Block said that the victim generally responded that she loved Ms. Block too; however,

the victim never responded to the text message.

Gregory Plunk, who delivered packages for Federal Expresss Ground, testified that

on June 1, 2010, he delivered a package to Rick’s home. He went to one of the houses on

Richardson Landing Lane and spoke to an older man who was in the yard. Mr. Plunk told

the man that he had a package for Thomas Harris. The man said the package was probably

for his son and directed Mr. Plunk to Rick’s house at the end of the lane. The man told Mr.

Plunk that someone likely was there and that if no one was there, he would sign for the

package. Mr. Plunk said he delivered the package at 2:16 p.m.

Mr. Plunk saw a vehicle was in the driveway, so he assumed that someone was there.

He knocked on the door, but no one came to the door. The inside and outside doors were

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closed, and Mr. Plunk did not hear any noise from inside the house. He scanned the delivery

notice and left.

Kevin Sisco testified that in June 2010, he and his wife, Brittany, lived on Richardson

Landing Lane and that he worked for Rick Harris. At that time, Mr. Sisco was the supervisor

over the landscaping crew, while the defendant was on the debris crew. The employees

generally met at Rick’s home to receive their orders for the day. The employees were paid

in cash and were not paid for days that they were absent. Mr. Sisco stated all employees

understood that they would not be paid if they were absent from work for any reason. He

also stated that the topic was discussed at work on a daily basis. He recalled the defendant

stating that he had a doctor’s appointment one day.

Mr. Sisco said he saw the defendant on Tuesday, June 1, 2010, when the defendant

came to Rick’s home to be paid. Rick Adam Harris gave the defendant his wages while they

were standing outside. On that day, Mr. Sisco was mowing the entire property at Richardson

Landing Lane. He said he left Rick’s house at 10:00 a.m. or 11:00 a.m. and saw the

defendant standing outside of the defendant’s front door. Mr. Sisco waved at the defendant,

and the defendant waved in return. Mr. Sisco said he was driving a white Chevrolet box

truck, which everyone recognized as the only truck that he drove unless he was working on

the debris crew.

Mr. Sisco stated that while he was working on another yard, Mrs. Sisco called him and

said that the defendant had dropped by and asked for him. Mr. Sisco believed this was

strange because he had seen the defendant as he was leaving. Mr. Sisco normally parked the

truck that he was driving in his driveway when he was at home.

Mr. Sisco testified that while he was on his way home from work, Rick Adam Harris

called him and told him about the victim. When he returned home, Mrs. Sisco told him that

the victim was found in the woods, and she wanted to go to Rick’s home to see whether they

needed to help Kelly Phelps and Dustin Perdue. They walked into the woods where the

victim’s body was located. When they arrived, only Ms. Phelps and Mr. Perdue were there.

Mr. Sisco denied that he and his wife touched the victim’s body. They then returned to

Rick’s yard, and Rick arrived approximately twenty minutes after they arrived.

Mr. Sisco testified regarding a route that existed from the approximate location of the

victim’s body and Rick’s home that could have been taken to avoid detection. Mr. Sisco said

he took that route while fleeing from law enforcement officers in December 2010. He ran

through the woods to the other side of Richardson Landing Road and near the defendant’s

house. Mr. Sisco said a person could run the route in approximately fifteen to thirty seconds.

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On cross-examination, Mr. Sisco testified that he had prior convictions for evading

arrest, aggravated burglary, and vandalism of property valued more than $500. The episode

in December of 2010 during which he ran from law enforcement officers was an incident

separate from the convictions.

Mr. Sisco said that Rick never paid him on time and that he grew tired of it. He was

not absolutely certain that Rick gave the defendant’s wages to Rick Adam to give to the

defendant. Mr. Sisco said he was with Hunter Fleming when he waved at the defendant. The

defendant was several feet away, and Mr. Sisco did not recall how fast he was driving.

Brittany Sisco, Mr. Sisco’s wife, testified that in June 2010, she was nine months

pregnant and unemployed. She knew the defendant because he lived in the neighborhood

and worked for Rick Harris. On the morning of June 1st, while on her front porch, Mrs.

Sisco saw the defendant in Rick’s yard with the other employees who were gathering before

going to job sites.

Mrs. Sisco said that after Mr. Sisco left, she went grocery shopping with her mother

and returned at approximately 1:00 p.m. The defendant knocked on her front door as she was

putting the groceries away. Mrs. Sisco came to the door, and the defendant asked for Mr.

Sisco. She told the defendant that Mr. Sisco was at work, and the defendant replied, “Dang,

they were just here.” Mrs. Sisco gave Mr. Sisco’s cellular number to the defendant. After

the defendant left, she called Mr. Sisco and told him that the defendant should be calling him.

Mrs. Sisco testified that after the defendant left, he called their home telephone four

or five times. The defendant’s telephone number appeared on her “Caller ID.” She

answered the first and second call from the defendant. She never received a response when

she answered. She said “hello” several times, and no one responded. Mrs. Sisco said she

heard wind or breathing on the other end when she answered the calls. She began ignoring

the defendant’s calls after she did not receive a response. She stated she was not having

problems with her telephone that day.

Mrs. Sisco stated that at 6:00 p.m. or 7:00 p.m., Rick Adam called her and told her

that they could not get in touch with the victim. He asked whether she had seen or heard

from the victim, and Mrs. Sisco said she had not. She then looked outside and saw Johnny

Parker’s work truck parked at Rick’s house. She called Mr. Sisco and asked whether he

knew what had happened. He said he did not. While they were talking, Rick Adam called

Mr. Sisco. When Mrs. Sisco hung up, she went to Rick’s house to help search for the victim.

Mr. McKell, Mr. Parker, and “Jose” were there when she arrived. She walked into the house

and saw that the computer was knocked over. By that time, Mr. Parker had called the police.

She then went outside on the front porch.

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Mrs. Sisco testified that Mr. McKell said he was going to ride his four-wheeler and

search for the victim. Mr. Parker told Mr. McKell to not go into the woods, but Mr. McKell

did so anyway. Mrs. Sisco said that approximately thirty seconds later, she heard Mr. McKell

screaming, “Oh, my God, [she] is dead. [She] is dead.”

Mrs. Sisco said she returned to her home later that evening. Mr. Sisco arrived thirty

to forty minutes after Mr. McKell discovered the victim’s body. Mr. and Mrs. Sisco walked

into the woods to search for the victim. The grass was so tall that Mrs. Sisco could see the

trail that Mr. McKell had made. The four wheeler was flipped over, and its lights were still

on.

Mrs. Sisco stated that she saw the victim’s body. When she and her husband

approached the victim, Ms. Phelps and Mr. Perdue were the only other people around. As

Mr. and Mrs. Sisco were returning from the woods, they saw Rick and the police officers.

The officers stopped Rick as he was walking down the hill to the victim’s body. The officers

led Mrs. Sisco back up the hill and said she did not need to be down there.

On cross-examination, Mrs. Sisco testified that in June 2010, Mr. Sisco and Kevin

Bell, the defendant’s brother, spoke regularly about Mr. Bell selling his Grand Marquis to

Mr. Sisco. She said the defendant could have continued to dial her number accidentally.

Kelly Phelps, Rick Harris’ business partner, testified that she and Rick performed

landscaping and property preservation tasks on foreclosed homes. They generally employed

ten to twenty workers at a time depending upon the amount of work they had to complete.

They sent multiple crews of three to four people to different sites. In June 2010, Rick was

responsible for the lawn and debris work, while Ms. Phelps supervised the cleaning crews.

Ms. Phelps said the victim assisted them by uploading photographs of projects they

had completed. She also responded to emails and telephone calls. The victim operated in

a dining area in the front of her home just inside the front door. The crews responsible for

lawn care and debris met every morning at Rick’s house before reporting to job sites.

Ms. Phelps stated that on June 1, 2010, she called Rick at his home at approximately

8:30 a.m. Both Rick and the victim had cellular telephones. Ms. Phelps, however, called

their home telephone because they did not have cellular service in that area. Ms. Phelps said

that once she and Rick completed their work at a property, they called to update each other.

At one point that day, Rick told her that he was at Munford Tire and Brake. She

communicated with the victim in a similar fashion.

Ms. Phelps testified that on June 1st, she talked to the victim on the victim’s home

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telephone four or five times to update her. She last spoke to the victim shortly before 1:00

p.m. She called the victim at 2:30 p.m., but the victim did not answer. She called the victim

multiple times and sent multiple text messages to the victim, but the victim did not respond.

Ms. Phelps said that on June 1st, she and Dustin Phelps worked at multiple locations,

including Brownsville and Cordova, Tennessee. They ended the day in Mississippi. Ms.

Phelps said she spoke to Rick over the telephone at times throughout the day. She last spoke

to him at approximately 6:30 p.m. when she was driving back from Mississippi and he was

in Collierville.

Ms. Phelps testified that the victim’s daughter, Brenna, cared for her children while

she was working. Ms. Phelps was at her desk at 7:00 or 7:30 p.m. that evening when she

heard Brenna answer her telephone. Rick had called Brenna and asked her whether she had

talked to the victim, and Brenna said that she had not. At the same time, Ms. Phelps called

the victim at her home to update her. Mr. McKell answered the telephone and told her that

something was wrong. He said that the victim’s desk and chair were toppled over and that

the back door was open. After Ms. Phelps spoke to Mr. McKell, Rick called her and asked

whether she had spoken to the victim. He asked her to go to his house and said he was in

Collierville, Tennessee. Ms. Phelps lived five to ten miles away from Rick’s home.

Ms. Phelps testified that she and Mr. Perdue drove Brenna to her father’s house and

then went to Rick’s house. When they pulled into the driveway, Mr. McKell was screaming

that he had found the victim. Johnny Parker was on the porch with Mr. McKell and was

trying to hold him. Ms. Phelps and Mr. Perdue ran into the woods. Mr. McKell had told

them that he had turned over the four-wheeler and that the lights were shining on her. They

were able to find the victim’s body.

Ms. Phelps said that blood was on the victim’s face, that her shirt was ripped open,

and that her bra was pulled down to her waist. She also said that something was wrong with

the back of the victim’s head and that her eye was damaged badly. Mr. Perdue told Ms.

Phelps that he did not want her to come toward the victim’s head, so she sat near the victim’s

knees. Mr. Perdue touched the victim to determine whether she had a pulse and said he

believed he felt a pulse. Ms. Phelps laid her hands on the victim’s body and cried. Mr.

Perdue said he needed to insure that someone had called the police and left Ms. Phelps with

the victim.

Ms. Phelps testified that she attempted to cover the victim’s body because she did not

want people to see the victim exposed. She denied moving the victim. She did not leave the

victim until police officers arrived and made her leave. The paramedics arrived before the

police. Ms. Phelps said the first responder was unable to feel a pulse. The paramedics then

-12-

hooked the victim up to an electronic machine and said they believed they detected

something. They then determined that they were wrong.

Ms. Phelps recalled that as she was leaving, she saw Kevin and Brittany Sisco walking

down the hill and toward the victim. She told them to stop because she did not believe that

Mrs. Sisco, who was pregnant, needed to see the victim’s body. Ms. Phelps walked to the

top of the hill just as Rick Harris arrived and said that he was in “absolute terror.” Officers

stopped Rick from going to see the victim’s body.

Ms. Phelps stated she then entered Rick’s home. The victim’s computer desk was a

corner desk with a cabinet on top of it. The cabinet, the printer, and the computer monitor

were pushed over. The victim’s chair was on its back.

On cross-examination, Ms. Phelps reviewed telephone records. According to the

records, she did not speak to Rick on his cell phone between 1:30 p.m. and 2:21 p.m. on June

1, 2010.

Ray “Tank” Horne testified that on June 1, 2010, he and the defendant were employed

by Rick Harris. He and the defendant worked in the same crew on some days. Everyone was

paid in cash only for those days in which they worked. Mr. Horne believed that everyone,

including the defendant, was aware of this policy.

Mr. Horne said he saw Rick Adam Harris pay the defendant on the morning of June

1st at Rick’s house before they left for work. Mr. Horne also said that upon receiving his

money, the defendant counted it. The defendant asked Mr. Horne why his money was

“short,” and Mr. Horne reminded him that he had missed one day of work.

Mr. Horne testified that he, Rick, and Rick Adam loaded up the dump truck and went

to Munford Tire to purchase new tires. They arrived at approximately 11:00 a.m. or noon.

Mr. Horne said they may have taken two trucks to Munford Tire. They remained there for

some time because the mechanics had difficulty removing one of the tires. Mr. Horne said

Josh joined them after they arrived. While the truck was being repaired, they remained in the

waiting area and checked on the progress periodically. Mr. Horne, Rick, Rick Adam, and

Josh then went to lunch at a Chinese restaurant located next to Munford Tire. The repairs

were completed shortly after they returned from lunch. All four of them then left in the

truck.

Mr. Horne said they cleaned four houses in Shelby County that day. While they were

at the fourth house, a woman approached and wanted them to cut her hedges. They drove

to her house to look at them and give her an estimate. While Rick was outside talking to the

-13-

woman, Mr. Horne, Rick Adam, and Josh remained inside the truck. Either Mr. McKell or

Mr. Parker called, and Josh answered the telephone. Josh learned that Rick’s house appeared

as if someone had been in there. When Rick returned to the truck, he learned what had

occurred. Mr. Horne said that Rick began calling the victim but that the victim did not

answer. They left and drove back to Rick’s house, arriving thirty to forty minutes later.

Mr. Horne said that when they arrived at Rick’s house, rescue personnel, fire fighters,

and police officers were there. Mr. Horne denied walking down into the woods to see the

victim’s body. They attempted to keep Rick away but were unable to do so. Mr. Horne was

not sure whether Rick went into the woods and saw the victim’s body.

On cross-examination, Mr. Horne testified that he quit working for Rick because the

money that he was paid was not worth the work that he was doing. He said he first saw the

defendant at Rick’s house at 9:00 a.m. or 10:00 a.m. Rick Adam paid the defendant while

Rick was inside sleeping. The defendant then counted his money. Once the defendant

realized the money was less than he normally made, he began to question others why this

would have happened. Mr. Horne reminded the defendant that he had missed work one day.

He did not recall the defendant telling him that his pay had already been deducted for the day

that he was absent. The defendant continued to ask to speak to Rick, but Rick did not come

outside. Mr. Horne did not know what time that Rick woke up and came outside.

Mr. Horne clarified that they drove only one truck to Munford Tire and that they took

a tire from a Yukon to be worked on. Munford Tire was located “a couple of minutes” away

from Rick’s home and was busy that day. Mr. Horne stated Rick was with them the entire

time that they were at Munford Tire. He was not sure what time that they left Munford Tire.

Rick Adam Harris, Rick Harris’ son, testified that in June 2010, he was seventeen

years old and living with his father. Rick Adam said the employees would meet at his home

to receive their orders for the day. Rick would instruct Rick Adam what tasks needed to be

completed that morning before going to the job sites. Rick Adam then would instruct the

employees, who would complete the tasks. He stated the employees were paid in cash and

were not paid for those days in which the employees were absent. He also stated that this

policy was known among all of the employees. He testified that on June 1, 2010, he gave the

defendant his wages from the previous week. The defendant then spoke to Mr. Horne about

whether Rick would allow him to return to work.

Rick Adam said that on June 1st, he, Rick, and Mr. Horne were assigned to clean out

foreclosed homes. They left together in a dump truck. They first went to Munford Tire to

have the tires on the dump truck repaired. The repairs took longer than expected because the

tires on the studs were broken. After waiting for approximately one hour at Munford Tire,

-14-

Josh Harris arrived at 11:00 or 11:30 a.m. Josh had walked from Munford High School

where he had basketball practice to Munford Tire so that he could work with the crew for the

remainder of the day. While the tire was being repaired, Rick, Rick Adam, Josh and Mr.

Horne went to a Chinese restaurant located next to Munford Tire and ate lunch.

Rick Adam testified that while they were walking back to Munford Tire from the

restaurant, Rick received a call regarding the defendant’s pay. While taking the call, Rick

asked Rick Adam the amount that the defendant had been paid. Rick Adam told him $300,

and Rick said that was the correct amount.

Rick Adam said they waited another forty-five minutes to one hour for the tire to be

repaired. After the tire was repaired, Rick, Rick Adam, Josh, and Mr. Horne went to Shelby

County where they cleaned three houses and yards. As they were preparing to return home,

Rick Adam received a call from Mr. McKell, who said that he was unable to contact Rick.

At the time, Rick was speaking with a woman about cutting her grass. Mr. McKell told Rick

Adam that he had arrived home to discover that the computer was turned over and the back

door was open. Rick told Rick Adam to instruct Mr. McKell to look for the victim and call

her friends to see whether they had been in contact with her.

Rick Adam testified that while they were going home, Mr. McKell called Rick and

said he drove his four wheeler into the woods and found the victim. Mr. McKell said the

victim was not breathing. They drove home as fast as they could. When they arrived, Rick

took off running, while Rick Adam ran inside the house. Rick Adam did not go into the

woods to see the victim’s body. When law enforcement officers arrived, they made everyone

leave the house and placed crime scene tape around the area.

On cross-examination, Rick Adam testified that the defendant counted his money in

front of him but never said anything to him about his pay being less than it generally was.

The defendant did not ask to speak to Rick about why his pay was less. Rick Adam said Rick

was with him during the entire time that they were at Munford Tire. He denied that Rick told

him to instruct Mr. McKell to look for the victim in the woods.

Logan Tate, a manager at Munford Tire, testified that on June 1, 2010, Rick Harris

and a crew of men came to Munford Tire before lunch. Mr. Tate recognized Rick as a

customer and said that he had performed maintenance work on all of Rick’s vehicles. Mr.

Tate said he had to send someone to Memphis to retrieve parts to repair Rick’s vehicle. He

saw Rick during the course of working on his vehicle. Rick had customers waiting and

wanted Mr. Tate to hurry. At one point, Rick and his crew went to the Chinese restaurant

located next to Munford Tire.

-15-

On cross-examination, Mr. Tate testified that he did not know the exact time of Rick’s

arrival. He said that the shop generally has approximately one hundred customers each day

and that they were busy that day. He prepared a handwritten receipt of the charges for the

repairs and gave it to Rick.

Rick Harris testified that on June 1, 2010, he and the victim had been married for

almost three years and that they lived together for three to three and one-half years before

they married. Rick and his partner, Kelly Phelps, owned a business where they performed

property preservation work on foreclosed homes. At the time, Rick had two crews who

mowed grass and one crew who completed property maintenance tasks and cleaned the

houses. Rick also worked on the crews. Ms. Phelps was responsible for the cleaning side

of the business. Once the debris was removed and the lawn was mowed, she performed the

final cleaning in the house. Rick paid his employees in cash. He said the employees were

not paid on days in which they were absent.

Rick stated that he and Ms. Phelps were paid for the jobs after the victim uploaded

photographs of the work performed and prepared the invoices. The victim performed this

work in the front room of their home. Rick had a land line at his home due to poor cellular

reception and maintained a cellular telephone while he was on a job site. While on a job site,

he called the victim on the land line and Ms. Phelps on her cellular telephone throughout the

day.

Rick testified that on Monday night, Memorial Day, he and the victim played cards

at Rob Chaney’s house and returned home in the early morning hours of June 1st. On June

1st, the work crews arrived at Rick’s home at 7:00 a.m. Rick explained that he received his

jobs through email. Because his internet was down, he was not able to assign jobs to his

crews. Rather, he instructed them to perform yard work on his property.

Rick said he did not see the defendant on the morning of June 1st because Rick was

either still in bed or lying on his couch. Rick gave Rick Adam $300.00 to give to the

defendant.

Rick stated he was on a work crew on June 1st with Rick Adam and Mr. Horne. Due

to a problem with one of the tires on his truck, they first stopped at Munford Tire, arriving

at approximately noon. The staff at Munford Tire had issues with one of the lug nuts on the

tire and were unable to place the tire onto the truck. Josh Harris met the crew at Munford

Tire following basketball practice. Rick said they waited at Munford Tire for forty-five

minutes to one hour before going to lunch.

Rick testified that at approximately 1:10 p.m., the victim called his cellular telephone

-16-

from the land line at their home. The call lasted for approximately one minute. The victim

told Rick that the defendant was at their home and wanted to speak to him. Rick told her to

give the telephone to the defendant. Rick said the reception on their wireless telephone with

the land line number was forty to fifty feet from the front door. The defendant asked Rick

why his wages were $50.00 less than they usually were. Rick did not know whether someone

had explained to the defendant the reason that his wages were less that week. He told the

defendant, “Don’t you remember you missed a day last week when you went to the doctor

or something?” The defendant replied, “Oh, okay.” Rick told the defendant to be ready to

work the following morning. Rick did not believe that any problem existed between him and

the defendant.

Rick stated that approximately fifteen minutes later, he, Rick Adam, and Mr. Horne

walked to the Chinese restaurant located next to Munford Tire to eat lunch. Rick did not

recall whether Josh had joined them yet. The staff at Munford Tire were unable to locate a

part to repair the tire. As a result, they told Rick to return when they received the part. Rick,

Rick Adam, Mr. Horne and Josh left Munford Tire at approximately 4:00 p.m. They went

to four houses in Shelby County where they tended to the lawns and hedges.

Rick testified that while they were at the fourth location, he called his land line

number because he had not spoken to the victim in some time. The victim did not answer.

A short time later, Mr. McKell called Rick and said that the computer was knocked over and

that the victim was not there. Rick instructed Mr. McKeall and his crew to search the house.

They called Rick and said that the back door was open and that there was a path in the grass.

Rick explained that the back door was never used because it had a dead bolt on it. He

instructed them to search outside. The men called him again and said that they could not see

anything in the dark and that they were going to borrow flashlights from Rick’s father.

While Rick was driving home, Mr. McKell called him and said that the victim was dead.

Rick was still in Shelby County when he received the news.

Rick said that when he arrived home, he parked his truck and took off running. He

attempted to run down to the location of the victim’s body, but an officer stopped him. He

said he last saw the victim when he left their home to go to Munford Tire and last spoke to

her at 1:10 p.m.

On cross-examination, Rick denied that he and the victim argued while at Mr.

Chaney’s house on Memorial Day. When they returned home that morning, they engaged

in sexual intercourse and went to sleep. Rick said he awoke at 7:00 a.m. on June 1st and

learned that the internet was down. He got out of bed at 10:00 a.m. He then spoke to Rick

Adam and understood that the defendant was there for his wages.

-17-

Rick said when he awoke that morning, he was told that one of the tires on his Yukon

was damaged. He instructed the employees to plug the tire, but they were unable to do so.

He said he did not remove the tire and take it with him to Munford Tire. He also said they

drove one vehicle to Munford Tire, which was located eight to ten miles from his home.

Rick denied killing the victim and placing her body in the woods. He said he regretted

not calling and checking on the victim earlier in the day but said he was too busy working.

He acknowledged that during the course of the afternoon, he sent five text messages to

Rebecca Harris and that the text messages were not related to work.

Rick stated he called Ms. Harris during the trial and discussed hairs that were found

on the victim. He told her that the hairs likely were his. Rick testified that he and the victim

had engaged in sexual intercourse and that the victim had not taken a shower. He said that

when he left his home that morning, the victim was wearing the same clothes that she had

been wearing the previous night. He did not know whether the victim took a shower after

he left his home that morning. He denied instructing Ms. Harris on how to testify and said

he only told her to testify regarding what she knew.

Rick testified that he did not have any life insurance on the victim. His sister applied

on his behalf for a lump sum settlement from the Social Security Administration in December

of 2010, and he received a small amount of money.

Special Agent John Sullivan, a criminal investigator assigned to the Field Unit of the

Tennessee Bureau of Investigation, testified that he received a call from his supervisor to

report to the crime scene on June 1st at approximately 9:30 p.m. He contacted Chief Deputy

Donna Turner with the Tipton County Sheriff’s Office and advised her that he was en route

to the scene. He arrived at the scene at approximately 11:00 p.m. Many officers were

already at the scene, a modular home located at the end of the street. He observed crime

scene tape around the front yard. He also observed a pile of scrap metal, old lawn mowers,

miscellaneous junk in the yard, and a flat-bed, “goose-neck” trailer for a “dully style” truck.

Special Agent Sullivan said Chief Deputy Turner escorted him to the victim’s body.

He observed a path in the back yard through the tall grass where the grass had been pushed

down. He said it appeared as if people had recently walked through the area. The grass was

still green, and he believed the grass would have been dead and brown had the path been old.

Special Agent Sullivan testified that the victim’s body was located in a densely

wooded area with many hills. He said that it was difficult to walk in the area in the dark and

that he had to use a flashlight to see. The victim’s body was located approximately one

hundred yards into the woods, and two deputies were stationed by the body. The two

-18-

deputies turned off their flashlights to keep from attracting bugs. When Chief Deputy Turner

yelled for the deputies, they yelled back and turned on their flashlights to enable Chief

Deputy Turner and Special Agent Sullivan to find them. Special Agent Sullivan noted that

the victim was not wearing shoes and that walking through the terrain without shoes would

have been difficult.

Special Agent Sullivan stated he next went inside the residence. He observed that a

disturbance appeared to have occurred near the computer desk. The back door was open.

On June 2nd, Special Agent Sullivan, Detective Richard Nessley, and other deputies

with the Tipton County Sheriff’s Office visited the home of Belinda Bell. After obtaining

consent from both Ms. Bell and the defendant, the officers searched the home and recovered

shoes and other evidence. Special Agent Sullivan saw but did not collect an empty Magnum

condom wrapper and a necklace with a metal medallion in the shape of a marijuana leaf.

Special Agent Sullivan said that on June 8, 2010, he met with Ms. Bell and showed

her a photograph of a lighter in the shape of a handgun that was recovered in the woods. He

asked Ms. Bell whether she had seen the item in her residence, and she said that she had. Ms.

Bell then signed the photograph.

Special Agent Sullivan testified that he spoke to Rick Harris on multiple occasions.

Special Agent Sullivan agreed that the spouse is often the initial person of interest. Rick was

visually examined, and photographs were taken of his hands, legs, and back. Special Agent

Sullivan observed scratches on Rick’s hand and left forearm. He knew that Rick mowed

yards, maintained homes, and performed manual labor. Special Agent Sullivan said Rick’s

scratches were similar to those received when working in a yard and were not significant

injuries. Officers also interviewed those who worked in Rick’s crew on June 1st and an

employee of Munford Tire and Brake.

Special Agent Sullivan testified that on June 2nd, he and detective Nessley

interviewed the defendant at the Tipton County Sheriff’s Office. (Vol. 10, p. 457) The

interview began at 3:23 a.m., and the defendant left the interview room at 4:51 a.m. Special

Agent Sullivan advised the defendant that he was free to leave at any time. He said the

defendant was not under arrest at that time.

The defendant told Special Agent Sullivan that his girlfriend dropped him off at his

house at approximately 8:00 a.m. on June 1st. The defendant then went to Rick’s house to

receive his wages for his work the previous week. He first stopped by the home of Kevin and

Brittany Sisco, Rick’s neighbors. When he arrived at Rick’s residence, Ray Horne, Hunter

Fleming, Jose Froilan, Kevin Sisco, and John Parker were there. The defendant said he

-19-

received his money from “Little Rick,” Rick Harris’ son. He then returned home, counted

his money, and realized that he only had been paid $300.00. The defendant generally

received $350.00 each week. He believed he had been “shorted” and returned to Rick’s

house. The defendant said the victim was the only person there.

The defendant said that the victim met him at the front door and that he told her that

he wanted to know why his wages were less than he normally made. The victim retrieved

the cordless telephone from inside the house, called Rick, and gave the telephone to the

defendant. Rick told the defendant that his wages were less because the defendant had

missed some work during the previous week. The defendant said he missed work for a

doctor’s appointment. He also said he never entered Rick’s house and returned home

following the telephone conversation. He then changed clothes.

Special Agent Sullivan testified that he obtained buccal swabs from the defendant and

Rick and submitted them to the crime laboratory. He also submitted a marijuana necklace

that he had observed at the defendant’s house on June 2nd and recovered from the

defendant’s girlfriend on June 8th. Other evidence submitted to the T.B.I. crime laboratory

included one pair of black SAS shoes, one pair of Arapaho boots, one pair of size ten black

Air Jordan tennis shoes, a black “do-rag,” a black pair of jeans with a blue image on them,

and a blue pair of boxers. The boxers were collected from the garbage at the defendant’s

home. Several hairs were collected from the victim’s hand and at the crime scene in the

woods.

Special Agent Sullivan said that on June 3rd, he, Detective Sheri Wassel, Detective

Chris Williams, Detective Nessly, Deputy Chief Turner, and Sheriff Panco Chumley located

a second crime scene approximately one hundred feet from where the victim’s body had been

discovered. A condom, a gun, and broken sticks were recovered from that area. Officers

determined that the gun was actually a lighter. In the same area, officers found a trail of

disturbed leaves that led to the location where the victim’s body was found.

On cross-examination, Special Agent Sullivan testified that the crime scene included

the residence, the front yard, and the wooded area. He learned that various people had visited

the crime scene before he arrived and that individuals other than law enforcement may have

entered the woods and been near the victim’s body. He recalled a statement where a person

acknowledged touching the victim’s body. At some point, law enforcement brought Rick

Harris inside the home.

Special Agent Sullivan said there was no direct trail “per se” from the home to the

area where the victim’s body was found. The grass was laid over in the path and appeared

to be fresh. Special Agent Sullivan said that the grass was not trampled but that it appeared

-20-

as if someone had walked through the area.

Special Agent Sullivan stated the underbrush in the woods included leaves, sticks, and

small saplings. He agreed that if he had not been wearing shoes the underbrush would have

scratched or bruised his feet. He also saw poison ivy near the victim’s body. He said the

distance between the defendant’s home and the victim’s home was less than one mile. He

walked from the area where the victim’s body was discovered, through the area where the

grass had been knocked down, down Richardson Landing Lane, to Richardson Landing

Road, and to the defendant’s front porch. He then reset his stopwatch and walked back to

the area where the victim’s body was found. He said it took him seven minutes and thirty

seconds to walk to the defendant’s house and seven minutes and twenty-five seconds to

return to the area where he began.

When Special Agent Sullivan interviewed the defendant, he saw no visible scratches

or bruises on him. Special Agent Sullivan later learned that a fingernail had been recovered

from underneath the victim’s body. He said the fingernail could indicate some type of

defensive posture or intense fight occurred. He observed a small scratch on Rick’s right

middle finger and a small scratch or crease on one of the knuckles on his right hand. He also

observed a scratch on Rick’s left arm that was approximately one inch long and three smaller

scratches on the inside of his left forearm. He said Rick’s shoes were never collected and

submitted for DNA testing because Rick had been eliminated as a suspect.

A black hat was recovered on a four wheeler trail that went down into the woods and

ended near the home of Thomas Harris, Rick’s father. Special Agent Sullivan believed he

recovered the hat but did not know when he recovered it. The hat was not subjected to DNA

testing. A plastic bag was recovered from the crime scene. Special Agent Sullivan said the

bag appeared to have been the type used by emergency medical technicians during the course

of rendering first aid. Law enforcement also recovered pieces of wood at the second crime

scene where the condom and gun/lighter were recovered. Special Agent Sullivan did not

believe that Ms. Bell had told him that the gun/lighter had been stolen from her home.

Special Agent Sullivan testified that he reviewed Rick’s cellular telephone records.

At 1:10 p.m. on June 1st, Rick received a call from the land line at his residence that lasted

approximately one minute and two seconds. The next call from Rick’s telephone was at 1:24

p.m. and lasted one minute and seven seconds. The records reflected that at 1:32 p.m., there

was a call that went to voicemail. There was no activity on Rick’s cellular phone from 1:32

p.m. to 2:19 p.m. At 5:39 p.m., there was some attempt of communication between Rick’s

cellular telephone and the land line at his residence. At 8:05 p.m., there was a call from the

land line at Rick’s residence to his cellular telephone. After that call, there were numerous

calls back and forth between Rick’s cellular phone and the land line.

-21-

On redirect examination, Special Agent Sullivan testified regarding the inability to

seize every item at the crime scene because there was “junk” everywhere. Law enforcement

determined what evidence to collect based upon their interviews with witnesses and their

experience. Both a T-shirt with a reddish-brown stain and the plastic bag were recovered in

an area directly behind Rick’s home. After the emergency personnel arrived, the plastic bag

was found about twenty yards from the home and within eighty yards of the victim’s body.

Special Agent Sullivan noted that Rick had an alibi from 1:30 p.m. to 8:30 p.m. on June 1st.

Law enforcement verified the information.

Special Agent Sullivan said the four wheeler trail was located approximately twenty

yards away from the walking trail. The black hat was found approximately thirty yards away

from the entrance of the four wheeler trail. Special Agent Sullivan stated that the hat

appeared to have been at that spot for some time. A branch was laying over the hat, and the

hat was dirty and appeared weathered. Special Agent Sullivan did not believe that the hat

was worn by the person who killed the victim at the time of her death.

On re-cross examination, Special Agent Sullivan testified that Rick Harris was with

several people at the time of the offenses, including Ray Horne and Rick Adam Harris.

Special Agent Sullivan was not aware that Rick Adam had been “waffling” regarding the

alibi.

Deputy Chief Donna Turner with the Tipton County Sheriff’s Office responded to the

scene on June 1st, arriving at 9:55 p.m. When she arrived, she was met by Corporal

Tremaine Reed. The officers had set up a perimeter around the area. Corporal Reed escorted

Chief Turner to the residence and provided her with a brief overview. Corporal Reed, Chief

Turner, and Detective Sheri Wassel walked through the house and then to a location at the

bottom of a ravine and down into a wooded area behind the house where Chief Turner saw

the victim’s body. Emergency medical personnel were already at the scene.

Chief Turner testified that once they determined that a homicide had occurred, she

contacted the district attorney general. The district attorney general’s office requested that

the T.B.I. send an agent and their crime scene team to assist in the investigation. Special

Agent Sullivan, Special Agent Robert Marshall, and the Violent Crime Response Team

arrived at the scene. Chief Turner led Special Agents Sullivan and Marshall to the victim’s

body.

Chief Turner said the backyard behind Rick’s house was mowed. Behind the mowed

portion of the yard were weeds, some of which were taller than Chief Turner, who was five

feet, nine inches tall. After walking through the weeds, Chief Turner came to a thick wooded

area with a “chicken wire” fence that had not been maintained. The fence had been trampled

-22-

down, and bushes, kudzu, and vines had grown through the fence. Deputies were watching

over the victim’s body and directed Chief Turner and Special Agents Sullivan and Marshall

to the location. The victim’s body was located in an area that was open, circular, and sunken.

Chief Turner stated that her first priority was to remove the victim’s body from the

area because the bugs and heat were causing her body to deteriorate. The victim’s body

remained at the location until approximately 5:00 a.m. on June 2nd when law enforcement

determined how to remove her body from the location. Two deputies were assigned to

remain with her body at all times. Deputies used yellow spikes to mark the position in which

the victim was found. They also placed yellow crime scene flags throughout the woods so

that law enforcement officers would not get lost.

Chief Turner testified that both the house and the wooded area were maintained as

crime scenes. The only two areas where someone could enter the woods were secured with

yellow tape. One trail or walkway expanded from the left of Rick’s home to the tree line.

The trail did not lead into the depths of the woods but ended at another residence. The trail

was a “beaten path” that had been used frequently. The second trail was located to the right

of the house where a boat and other items were stored. Chief Turner said officers were

unable to secure the entire area with yellow tape. Rather, a deputy in a marked car remained

at the scene until the scene was released on June 6th. Chief Turner said that while

maintaining a crime scene for such a long period of time was unusual, officers required such

time to search the area. Officers were unable to search the area one of the days due to a

storm.

On June 8, 2010, Chief Turner and Detective Wassel interviewed the defendant.

Chief Turner read the defendant his rights, and the defendant signed the waiver of rights

form. Chief Turner said that the defendant did not appear to be under the influence of drugs

or alcohol and that she did not threaten him.

The defendant told Chief Turner that he began working for Rick Harris in May of

2010 and was paid $350.00 each week. He denied having any problems with Rick. He said

he learned of the victim’s death from a neighbor and not the police. On the Sunday before

the victim’s death, the defendant called Rick and left a message that he was vomiting and

would not be at work that Monday. Rick never returned his call. On Sunday night, the

defendant stayed with his girlfriend, Sharhanda Jones. The defendant said he called Rick the

following day. Rick told him that he was playing poker and instructed him to come to Rick’s

house the following day. On Tuesday, June 1st, the defendant and Ms. Jones went to the

library, and Ms. Jones then drove the defendant home.

The defendant said that upon arriving home, he called Rick and asked Rick about

-23-

receiving his wages. Rick instructed the defendant to come to his house and to do so quickly

because Rick was leaving soon. The defendant walked to Rick’s house. When he arrived,

the defendant saw Mr. Parker, “Tank,” Rick Adam Harris, “Jose,” and “Hunter.” The

defendant did not see Rick Harris or the victim. Rick Adam exited the house and paid the

defendant. The defendant said he did not count the money at that time. He spoke to “Tank”

about Rick not needing him to work that day. The defendant stated he then returned to his

mother’s home and counted his money, which totaled $300.00. When he discovered that he

had not been paid $350.00, he said that he returned to Rick’s home but that Rick was not

there. The defendant saw the victim on the porch and asked her about Rick. The victim told

the defendant that he had just missed him. The defendant informed the victim that he had

a question regarding his pay, and the victim said she would call Rick. The victim called Rick

and gave the telephone to the defendant. The defendant said Rick reminded him that he did

not work that Monday but called in sick. After the call, the defendant left Rick’s home

around 1:30 p.m. and returned to his residence. He denied entering Rick’s house when he

spoke to the victim. He said that the victim entered the house to retrieve the telephone but

that he did not enter the house with her.

The defendant told Chief Turner that after talking to Rick on the telephone, he went

to Brittany Sisco’s house. Ms. Sisco came to the door, and the defendant asked if Kevin

Sisco was there. Ms. Sisco said Mr. Sisco was at work, and the defendant returned home.

The defendant stated that his mother arrived home from work and that she generally returned

from work at 2:00 or 2:10 p.m. He then picked up his brother, Allen, purchased gasoline at

an Exxon in Watertown, and drove to Raleigh. He stated that when he went to Raleigh, he

was wearing black pants with grey and silver lining on the pockets, jeans, a white T-shirt, a

white and blue Carmelo Anthony jersey, black Jordan sneakers, and a black “wave” cap or

“do-rag.” The defendant said he wore the same clothing both times that he went to Rick’s

house. He changed clothes when he returned to his mother’s house due to the heat. He wore

the same T-shirt and jersey, did not take a shower, and put on blue shorts.

The defendant denied ever being in the woods behind the victim’s house. Chief

Turner testified that she showed the defendant a photograph of a gun and that he denied that

he had seen the gun in his house or touched it. Chief Turner asked the defendant about a

condom wrapper that had been observed at his house. The defendant said he doubted there

was a used condom at his home but that he used a condom “last night, this morning” in

Memphis with his girlfriend. Chief Turner stated that “last night, this morning” would have

been June 7th or 8th. Chief Turner showed the defendant a photograph of the wooded area

where officers recovered a condom. The defendant did not comment.

Chief Turner testified that the condom was recovered when officers returned to the

crime scene on June 3rd. Several law enforcement officers assisted in searching the area

-24-

where the victim’s body was found. As Chief Turner was standing where the victim’s body

was found, she received a call on the radio from Sheriff Chumley instructing her to come to

the top of a hill near the area. Chief Turner said that while walking toward the area where

Sheriff Chumley was located, she noticed disturbed debris in the wooded area, especially

along the line of trees that were leading back to Sheriff Chumley’s location. Small saplings

and small branches had been bent down or broken. Chief Turner and Detective Chris

Williams met Sheriff Chumley and Detective Nessly. The sheriff identified what appeared

to be a condom. Chief Turner stated that the condom was difficult to see due to its color and

the thickness of the leaves in that area. As a result, she directed Detective Williams to stand

next to the condom. Chief Turner then saw the gun nearby. She picked up the gun, inspected

it, and determined that the item actually was a replica of a gun.

Chief Turner testified that there were markings in the foliage as if something had been

drug through the area or someone had scuffled his or her feet. There were broken logs in the

area, and vegetation was laying down as if someone had been lying in the area. Chief Turner

also observed a “butt print” where it appeared as if someone had been sitting down. Officers

collected pieces of wood found near the condom that were not in a natural position. The

pieces were in an area where it appeared that someone had been lying down, and a hair was

on one of the pieces. Officers collected and submitted the wood and hair to the T.B.I. crime

laboratory for DNA analysis. Hairs from the victim’s head and in her left hand also were

sent to the T.B.I. crime laboratory.

Chief Turner said that there were many abrasions on the victim’s back and that her

clothing was in disarray. The victim’s bra and shirt were down, and she was exposed. Her

underwear was completely rolled up. Her shorts were up, and dirt that was not consistent

with the dirt in which the victim was found lying was on her shorts. The victim was lying

in green foliage and had a great amount of blood in the area of her head.

On cross-examination, Chief Turner testified that when she arrived at the crime scene

on June 1st, several people, including the victim’s friends and family, were present. Chief

Turner noted that Kelly Phelps had touched the victim’s right leg, foot, and shorts and that

Dustin Perdue also had touched the victim’s body. Rick Adam Harris, Rick Harris, Josh

Harris, Brittany Sisco, and Hunter Fleming had entered the house. The house was released

to Rick Harris on June 3rd.

Chief Turner observed poison ivy or poison oak in the area of the victim’s body but

not in the immediate area. The foliage on the ground was thick in areas and included

branches with thorns on them. Chief Turner said that a person would not be able to walk

through the area on his or her bare feet without injury.

-25-

Special Agent Robert Marshall, a forensic science supervisor with the T.B.I., testified

that he was the team leader of the Violent Crime Response Team. On June 1, 2010, at

approximately 11:15 p.m., Special Agent Marshall received a call to report to the crime

scene. Upon arriving at the scene, he received a report from Special Agent Sullivan and

Chief Deputy Turner. Special Agent Marshall and his team then conducted a brief

pre-inspection of the residence. He observed an office located inside the front door and to

the left. He noted that several items appeared to have been disturbed in the office. The

computer was disrupted, and the chairs were turned over onto the floor.

Special Agent Marshall said he wanted to first focus upon the victim’s body and any

evidence in the area where she was found. The team then worked backwards to the house

where they believed that the incident began. Special Agent Marshall said the victim’s body

was discovered in a wooded area outside the back entry way of the house. A small area of

the back yard was mowed, but most of the grass reached Special Agent Marshall’s mid-calf.

The wooded area was approximately ten to fifteen yards from the victim’s residence. Special

Agent Marshall described the terrain in the woods as “rough” and said it included high grass,

weeds, kudzu, hills, and many trees. He noted a great deal of insect activity, including

mosquitoes and gnats. He said the insect activity and heat would have caused the victim’s

body to degrade. He did not want the evidence to degrade to the point where it would no

longer have been pristine and wanted to do whatever he could to maintain the evidence.

Special Agent Marshall testified that while he and his team were in the woods, they

relied upon lights provided by the Shelby County Sheriff’s Department and the headlights

from the violent crime scene response van. He said gathering the evidence was difficult. At

one point, they had to work using flashlights because the electrical cords on the other lights

were not long enough. They also had to work quickly because the heat caused the lifetime

of the batteries in the flashlights to dissipate. As a result, they had to complete all tasks

possible in a minimum amount of time.

Special Agent Marshall stated that his team recovered two cellular phones, a pair of

reading glasses, a pair of sunglasses, a T-shirt, and a golf club shaft from the crime scene.

The golf club shaft was found in the wooded area while they were en route to the victim’s

body. It was sticking out of the ground, and the end was broken off of it. The T-shirt with

a reddish-brown stain was recovered outside the back entrance of the house and near the

corner or the back side. The team also took a latent fingerprint, the entire crossbow lock

from the back entry, and some contact vacuumings and standards of those vacuumings. The

team transported the evidence to the T.B.I crime laboratory where they conferred with the

case agent and determined what items were pertinent to the case.

Lieutenant Richard Nessly, supervisor of the Criminal Investigative Division of the

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Tipton County Sheriff’s Office, testified that he was involved in the search of the wooded

area and the videography of that search on June 3, 2010. Lieutenant Nessly recorded the

search conducted by Sheriff Chumley, Chief Turner, Special Agent Sullivan, Detective Sheri

Wassel, and Detective Chris Williams. During the search, a fingernail was recovered near

the area where the victim was found. While the fingernail was being processed, Sheriff

Chumley found a condom while he was on top of a ridge. A novelty pistol/lighter was

recovered near the condom. Chief Turner showed Lieutenant Nessly a drag path in the

leaves going toward the area where the victim’s body was recovered.

Lieutenant Nessly testified that on June 1st, Chief Turner contacted him and told him

to go to the defendant’s residence. He arrived at approximately 9:30 p.m. and saw the

defendant sitting on a chair outside by the front door with two officers from the Sheriff’s

Office. At that time, Lieutenant Nessly only knew that a homicide had occurred but did not

know anything about the case. He said the defendant was a “person of interest” and the last

person to have seen the victim alive. Lieutenant Nessly stated that the evidence was not

sufficient to justify arresting the defendant at that time. The defendant was free to leave.

Lieutenant Nessly said he questioned the defendant regarding his identifying

information and his whereabouts for that day. The defendant said he did not work on June

1st because his boss told him that he did not have to do so. He did not recall when he last

worked. He said he was supposed to have worked the day before but called in sick. He also

said he had been at his girlfriend’s apartment in Raleigh for the past few days. The defendant

told the lieutenant that he went to Rick’s house that day to receive his wages. He then

returned home and counted his money. When he discovered that his wages were $50.00 less

than he usually was paid, he returned to Rick’s residence. The defendant said that Rick was

not there but that he spoke to a woman who was at Rick’s house. The woman called Rick,

and the defendant spoke to him. The defendant stated that he then returned home and waited

for his mother to return from work. He drove his mother’s car to his girlfriend’s apartment

in Raleigh. He said he was wearing black pants but changed when he returned home from

speaking to Rick over the telephone because it was hot. The defendant also said his mother

returned home at approximately 2:30 p.m. or 2:40 p.m.

Lieutenant Nessly testified that the defendant consented to the search of his room. A

silver necklace with a marijuana emblem and an open condom wrapper were on the

defendant’s bed. Wet clothing was in the washing machine. Lieutenant Nessly said officers

photographed the bottom of shoes and searched for any items that they believed were

relevant. He and Special Agent Sullivan later spoke to the defendant at the Sheriff’s Office.

On June 8th, they returned to the defendant’s house and spoke to his mother. The defendant

was not at home.

-27-

Lieutenant Nessly said he, Special Agent Sullivan, and Detective Rodriguez went to

an apartment complex in Raleigh where they believed the defendant was staying with his

girlfriend, Sharhonda Jones. They found the defendant there and arrested him. Ms. Jones

was wearing a silver necklace with a marijuana leaf emblem that was similar or identical to

the necklace that Lieutenant Nessly saw in the defendant’s room on June 1st. Officers seized

the necklace and sent it to a laboratory to be analyzed.

On cross-examination, Lieutenant Nessly testified that when he was dispatched to the

defendant’s home on June 1st, he knew that a homicide had occurred and that a lady had been

discovered in the woods. He did not know that the victim had been involved in a struggle.

He examined the defendant’s hands and arms when the defendant came to the Sheriff’s

Office at 3:00 a.m. or 4:00 a.m. on June 2nd and did not see evidence indicating that the

defendant had been involved in a fight or struggle.

Lieutenant Nessly did not recall whether the defendant was handcuffed when he

arrived at the defendant’s residence on June 1st. He said that if the defendant was

handcuffed, he instructed officers to remove them. He later learned that Ms. Bell was inside

sitting on her couch but did not recall whether an officer was with her. Lieutenant Nessly

was with the defendant for one to two hours. At one point, the lieutenant went to the scene

to learn pertinent information about the case. When he returned to the defendant’s house,

he still was not focused on the time period between 1:00 p.m. and 3:00 p.m. At the time,

Lieutenant Nessly did not know when the offenses occurred but only knew that the defendant

had to account for his whereabouts that day. He later learned that the defendant was the last

person to have seen the victim alive. At the time, he was not aware that the victim had

received a telephone call at 1:30 p.m. on June 1st.

Lieutenant Nessly said Ms. Bell told him that she returned home from work on June

1st at 2:00 p.m. She said that when she returned home, the defendant was lying on the couch.

Lieutenant Nessly stated Ms. Bell calmly answered his questions. Ms. Bell, the defendant,

and the defendant’s brother, Michael, willingly and voluntarily answered the officers’

questions.

Lieutenant Nessly testified that officers did not collect a great amount of evidence that

night. They may have collected shoes and one pair of glasses. Lieutenant Nessly said

officers essentially looked in the defendant’s room for any items that were in plain view.

They were searching for blood and a weapon. Officers walked throughout the house but did

not see any evidence that something suspicious had occurred inside the house. Lieutenant

Nessly did not see any blood or any evidence that a person had committed a murder. He and

Special Agent Sullivan interviewed the defendant again at the Sheriff’s Office from 3:20 a.m.

to 4:50 a.m.

-28-

On redirect examination, Lieutenant Nessly testified that when he responded to the

defendant’s residence, he was not told that the defendant had been seen at the victim’s home

at 1:30 p.m. that afternoon. According to his notes, the defendant said his mother returned

home from work at 2:30 p.m. or 2:50 p.m.

Detective Chris Williams of the Tipton County Sheriff’s Office testified that he was

involved in the processing of the crime scene and was present during the videotaping of the

search of the wooded area on June 3, 2010. He said that during that time of the year, the

wooded area was very dense. The trees were green, and a great amount of dead foliage was

on the ground making evidence on the ground difficult to see.

Detective Williams stated that when the condom was located, Chief Turner instructed

him to act as a “human marker” on the evidence. He placed his foot approximately sixteen

inches away from the condom and pointed his foot directly at it. He remained in that position

for approximately fifteen minutes. Chief Turner located the gun while Detective Williams

was marking the condom. The gun was behind Detective Williams and to his right and was

within three to four feet of the condom. Detective Williams also saw a clearing in the dirt

that appeared to be in the shape of human buttocks within a few feet from the condom.

There was no well-worn path in the area where the condom and gun were found.

Detective Williams testified that he and Special Agent Sullivan located a cap while

walking the four wheeler trail. They were following up on how James Arcutt had returned

after going to his house to get his cigarettes. Detective Williams and Special Agent Sullivan

were advised that Mr. Arcutt had come from Thomas Harris’ house, through the woods, and

up to the back of Rick’s house. The cap was located a substantial distance from where the

victim’s body was found. To go to the victim’s body from that location, Detective Williams

and Special Agent Sullivan would have had to have walked through an area of high grass and

down to the bottom of a ravine. Detective Williams said the cap was dirty and had debris on

top of it. Although it appeared that the cap had been at that location for some time, Detective

Williams collected it anyway.

Detective Sheri Wassel of the Tipton County Sheriff’s Office testified that she went

to the scene on June 1st and entered the residence. An office area was located to the left of

the entryway. Detective Wassel said it appeared as if a scuffle had occurred in the office

area. A chair was upside down, and the computer was knocked over. There were several

items scattered across the floor. Detective Wassel later signed a form submitting a condom,

a known blood sample, and a replica of a pistol to the T.B.I. for analysis.

On cross-examination, Detective Wassel testified that when she first arrived on the

scene, several people, including those outside law enforcement, were present. At that time,

-29-

she did not see anyone collect evidence, clothing, or boots from Rick Harris. She was not

with Rick during the majority of the investigation.

Detective Wassel stated that on June 3rd, she found the fingernail that was near the

area where the victim’s body was discovered. The fingernail was photographed, measured,

and collected. While Detective Wassel was processing the fingernail, the sheriff found the

condom. Detective Wassel collected the condom and placed it into a container. Fluid was

inside the condom. She said she did not collect the condom immediately after it was found

due to the risk of mildew developing if it was collected and sealed. Officers continued

collecting other evidence and collected the condom once it began to rain.

Dr. Lisa Funte, a forensic pathologist and medical examiner at the Shelby County

Regional Forensic Center in Memphis, was accepted by the trial court as an expert in forensic

pathology. Dr. Funte performed the autopsy on the victim. She described the victim as a

thirty-six-year-old Caucasian female with dark shoulder length hair and highlights. She was

approximately 5’5 and was somewhat thin. When Dr. Funte received the victim’s body, it

was in a state of very early decomposition. Dr. Funte said it was not possible to determine

the exact time of the victim’s death.

Dr. Funte testified that the cause of death was strangulation associated with blunt

force injuries. She determined that the manner of death was homicide. She said some of the

blunt force injuries were so extensive that they could have caused death in and of themselves.

She explained that blunt force injuries can be caused by an object striking the body or the

body striking an object. Blunt force injuries fall within three categories: contusions or

bruises, abrasions or scrapes, and lacerations or tears of the skin. Dr. Funte noted abrasions

and contusions on the victim’s head, torso, arms, and legs. There also were contusions and

lacerations on the victim’s upper and lower lips. Some of the victim’s fingernails were

broken, and a thumb nail was ripped off.

Dr. Funte said the victim had hemorrhages in the tissues of her scalp and temporalis

muscles bilaterally. The temporalis muscle is the temple that aids in chewing. The injuries

were the result of blunt force trauma. The victim had a basilar skull fracture or hinge fracture

that spanned across the base of the skull from one side to the other. The fracture continued

upward into the sides of the skull. It spanned through the region where the spinal cord leaves

the skull and goes into the vertebral column. A basilar skull fracture can cause contusion of

the brain stem, which can result in the disruption of the rhythm of the heart and can be fatal.

Dr. Funte noted two types of intracranial bleeding: subdural hemorrhage and

subarachnoid hemorrhage. The dura is the first membrane shown when a skull is opened.

The next layer, the arachnoid layer, contains many blood vessels. The pia is the layer next

-30-

to the brain and is very thin and membranous. There are spaces between each layer where

blood can collect. A subdural hemorrhage is blood between the dura and the arachnoid

layers. A subarachnoid hemorrhage is blood between the arachnoid and pia layers. The

subdural and subarachnoid hemorrhages are neurologic irritants. Dr. Funte explained that

neurons in the brain receive signals and can control movement. An irritant such as a

hemorrhage causes a disruption of that signaling and can result in neurogenic cardiac

arrhythmia. The cardiac center becomes disrupted and does not tell the heart how to beat

correctly. Dr. Funte said this interruption can cause a fatal arrhythmia. She also said that

either the basilar skull fracture or the intracranial hemorrhage alone can be fatal.

Dr. Funte observed bruising and scraping to the left side of the jaw line and chin that

she said could have been caused by the skull fractures. She explained that a hinge fracture,

which spans across the base of the skull, results when the chin is impacted, pushing the chin

up and fracturing a pivot area around the foramen magnum where the spinal cord comes up.

Dr. Funte said a hinge fracture requires quite a bit of force. In extreme situations, the

fracture could result from a blow to the head. Dr. Funte stated the victim’s injuries could

have been caused by a kick to her chin using either a foot or a knee. She further stated that

the injuries more than likely resulted from a blow from a foot rather than a knee because a

blow using a foot has more leverage than a blow using a knee. She stated that death as a

result of the skull fracture could have been instantaneous because it could have caused

cardiac arrhythmia. The fracture could have resulted in swelling to the brain causing death

within minutes or hours.

Dr. Funte found bleeding in the anterior strap muscles located in the front of the neck.

She said she generally did not see blood in these muscles. She noted extensive hemorrhaging

throughout the soft tissue in the muscles of the anterior neck. The left portion or left horn

of the hyoid bone was fractured. Dr. Funte explained that the hyoid bone is a fairly thin bone

which connect the strap muscles and allows the muscles to exert force and move the neck

from side to side and from front to back. Hemorrhaging was present in the upper chest

muscles and soft tissues and the thyroid gland located in the neck.

Dr. Funte testified that she observed ligature strangulation. She observed linear marks

on the victim’s neck that may have been associated with a ligature but did not observe an

obvious ligature furrow. She said the marks could have been consistent with a foot, log, or

knee on the victim’s neck or upper torso. She also said that the injuries on the victim’s upper

torso and neck area were consistent with being stomped. A large quantity of blood was in

the strap muscles, through the soft issue and connective tissue, and to the back of the neck.

Dr. Funte observed blood in the posterior oral pharynx and in the tongue. She explained that

the presence of this blood meant that bleeding was in the back of the throat, as well as in the

muscles of the tongue under the chin. The hemorrhage extended into the upper chest and

-31-

through the muscle and soft tissues of the upper chest.

Dr. Funte said the hyoid bone generally is fractured as a result of pressure from the

outside inward. She also said the victim may have experienced pressure from the sides of

the neck resulting in her hyoid bone fracturing. She stated that a fracture of the hyoid bone

did not always result in cases of manual strangulation. In cases of manual strangulation,

quite a bit of force is required to fracture the hyoid bone.

Dr. Funte found scleral and petechial hemorrhaging in the victim’s left eye. Petechia

is pinpoint areas of hemorrhaging that results when increased pressure in the capillaries

causes them to break. Increased pressure could be caused by strangulation. Sclera is the

white area of the eye. Dr. Funte found bleeding and pinpoint hemorrhages in the white area

of the eye.

Dr. Funte testified that when a person is strangled, the blood flow through the external

jugular veins can be blocked with six to eight pounds of pressure, which can lead to

unconsciousness within a matter of seconds. She estimated that a person could lose

consciousness within six to eight seconds and death within one minute if the blood flow

through the jugular veins is restricted.

Dr. Funte said blunt force injuries were present on the victim’s extremities, including

the backs of her hands and the tops of her feet. The victim’s left arm had petechial

hemorrhages, abrasions, and a bruise. A “stretch type” laceration was at the base of the

victim’s right thumb. Dr. Funte said bending a thumb all the way back rapidly can stretch

and tear the skin in the palm of the hand. She also said that the victim had lacerations at the

base of her thumb that were consistent with those types of injuries.

Dr. Funte testified that the victim had a gaping laceration on the right side of her head

and a bruise on her ear. She said the large gaping laceration and the linear laceration to the

right side of the victim’s head could have caused intracranial bleeding, which can be fatal.

She also said that the length of time in which death could occur was not well-studied and that

death could occur up to several hours following injury.

Dr. Funte testified that she collected fibers that were clutched in the victim’s left hand

and released them to Detective Williams and Chief Turner. Dr. Funte also provided Chief

Turner with a sample of the victim’s blood, hair from the victim’s head, nail clippings and

scrapings from her hands, a yellow metal ring with clear stones, paper bags that were placed

on the victim’s hands at the crime scene, and a sexual assault kit.

Dr. Funte stated she observed evidence indicating sexually related trauma. When she

-32-

received the body, the victim’s clothes were in disarray. Her shorts and panties were pulled

down. The victim had blunt force injuries to the inside of her thighs. She had bruising on

her right leg, reddish-brown discoloration on her right knee, contusions on the inside of her

left thigh, and a contusion or bruise on the inside of her right thigh. Dr. Funte did not see

extreme trauma or mutilation to the genital area. She explained that in over 95% of cases

where sexual assault was either suspected or known to have occurred, trauma is not present

in the genitals.

Dr. Funte testified that the victim had dirt on her feet, bruises on her right leg and

ankle, and an abrasion on the top of her foot with some bruising. The victim also had

bruising and abrasions along the length of her legs, extending from her knees to the tops of

her feet.

Dr. Funte was unable to provide a chronological sequence regarding the order in

which the injuries occurred. She said the victim would have been alive at the time of the

strangulation. She also said that the victim’s head injuries occurred either prior to or at the

time of death.

On cross-examination, Dr. Funte testified that when the victim’s body arrived at her

office, the victim’s shorts were buttoned. The victim’s shorts were pulled down slightly in

the front, and her underwear was raised up above the shorts. Dr. Funte said the rape kit

would have been performed as a precaution due to the beating that the victim received and

even if her shirt had not been torn. She also said that the bruising on the victim’s inner thigh

was the only medical suggestion of any sexual assault. She explained that she examined the

entire circumstances of the victim’s death to determine that there was evidence suggestive

of sexual assault. She acknowledged that anything could have been used to put pressure on

the insides of the victim's legs. She also acknowledged that the victim had bruises and

contusions essentially on all sides of her legs.

Dr. Funte observed blood underneath the victim’s index and third fingers on her right

hand. Her thumbnail was missing on her right hand. Dr. Funte said the injuries on the

victim’s hand were consistent with her scratching someone. She also observed bruising on

the back of the victim’s right hand and her knuckle at the base of her index finger. She stated

these injuries were consistent with the victim’s hand coming in contact with an object. There

were no lacerations or abrasions on the bottom of the victim’s feet.

Dr. Funte was unable to determine the number of blows that the victim sustained to

her head. The hinge fracture likely was the result of one blow, and the victim sustained three

lacerations to the head. Dr. Funte said the victim sustained at least four blows and possibly

more to her head. Any of the blows could have been fatal, and any of them could have

-33-

resulted in death instantly.

Dr. Funte acknowledged that she could not be certain that some type of hand-to-neck

strangulation was involved. She said a combination of hand-to-neck strangulation and a

blow to the throat could have occurred. The victim could have sustained multiple blows to

her throat.

Dr. Funte testified that the damage to the victim’s neck could have been caused by a

very forceful punch upwards. The smaller the neck, the less resistance to that force and the

more likely a punch could have caused the resulting trauma. Dr. Funte could not rule out that

the injury could have been caused solely by a punch or by an object harder than a hand.

Dr. Funte was unable to determine which blow or the number of blows that caused the

victim’s death. Rather, she opined that several blows caused the victim’s death. Dr. Funte

was not able to specify the type of encounter that was involved. She said that the trauma

could have been caused by stomping, punching, or a combination of the two and that rocks

could have been involved. She did not know how long the assault occurred and said it could

have taken a long time.

John Hoang, a trace examiner for the Arizona Department of Public Safety in Phoenix,

Arizona, was admitted by the trial court as an expert in trace examinations and hair

comparisons. Mr. Hoang testified that he worked in one of the regional laboratories under

contract with the Federal Bureau of Investigation (“F.B.I.”) and assisted the F.B.I. in hair

examinations and comparisons. He said that hair is not a form of identification and that he

could not determine whether a particular hair came from a specific person due to the number

of characteristics in each person’s hair.

Mr. Hoang testified that he compared a bindle of the victim’s head hairs with two sets

of questioned head hairs. One set included ten questioned head hairs, and the other set

included three questioned head hairs. Mr. Hoang conducted a microscopic examination of

the hairs to determine whether any similarities existed. He determined that nine of the hairs

were consistent with having a common origin with the victim’s head hairs. He noted that the

questioned hair and the victim’s hair had some hair treatment and damage that could have

resulted from the hair treatment or from the elements. He said, however, that because the

remaining unknown hairs were grey or lacked pigmentation, he could not establish a common

source between those hairs and the victim’s hairs. He also said the unknown hairs were

consistent with Caucasian hair.

On cross-examination, Mr. Hoang testified that he did not have personal knowledge

regarding where the hairs were recovered or how they came to him. He said that nine of the

-34-

hairs were consistent with the victim’s hair. The remaining hairs had treatment and were

damaged and grey. As a result, Mr. Hoang could not testify that the remaining hairs

belonged to the victim. On redirect examination, he testified that grey hair means that the

hair is colorless or has no pigmentation. He stated that four of the hairs were inconclusive

and could not be included or excluded as consistent with the victim's hair.

T.B.I. Special Agent Lawrence James, a forensic scientist assigned to the DNA and

Forensic Biology Section, was admitted by the trial court as an expert in serology and DNA

comparison. Special Agent James performed a DNA analysis on a blood stain that was on

a T-shirt collected from the backyard of the victim’s home. He determined that the blood

belonged to the victim. He attempted to obtain a DNA sample from the shirt’s collar to

determine who was wearing it but was unable to obtain a DNA profile. He was unsure who

owned the shirt and whether it was worn during the offense.

Special Agent James testified that he found sperm cells in a vaginal swab taken from

the victim. He obtained a mixture profile off that sample with the victim as the major

contributor and Rick Harris as the minor contributor. The defendant was excluded from that

mixture.

Special Agent James obtained touch DNA, or DNA left behind when someone has

handled an item, from the rough and uneven areas of the lighter/gun. He obtained a partial

DNA profile that matched the defendant. He obtained data at nine of the thirteen areas of

a DNA profile that matched the defendant. Special Agent James said he excepted to have

a greater chance of obtaining fingerprints off the lighter/gun than DNA due to the difficulty

in obtaining touch DNA. In swabbing the lighter/gun for DNA, he avoided the smoother

areas to avoid interfering with any potential fingerprints.

Special Agent James also tested the condom that was collected at the crime scene. He

noted that the sample was degrading. The condom remained outside in hot weather until it

was collected two days after the offense. Special Agent James said DNA can be destroyed

by bacteria, environmental extremes such as humidity, ultraviolent exposure through

sunlight, or chemicals. He also said that a wet sample may be destroyed if it is packaged into

something that does not allow it to breathe. He noted that condoms are made out of latex,

which does not breathe.

Special Agent James testified that he saw fluid on the inside of the condom. He tested

both sides of the condom separately and treated them as two different samples. He found

semen on the inside of the condom and obtained a partial DNA profile. He obtained data at

two of the thirteen areas that matched the defendant. Special Agent James also found sperm

cells on the outside of the condom. He explained that frequently the liquid on the inside of

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a condom will leak. He obtained a full DNA profile that matched the defendant.

Special Agent James tested the necklace with the marijuana leaf charm and received

weak positive results through presumptive testing for blood. He explained that presumptive

testing is not a confirmatory test but a screening test. Further testing is required to confirm

the presence for blood. Special Agent James attempted to obtain DNA from the area but was

unable to obtain a profile. He did not believe that human blood was on the necklace. Rather,

other items, such as rust or grease, may test positive as blood in presumptive testing.

Special Agent James testified that a stain on a pair of boxer shorts tested positive for

blood through presumptive testing. He was unable to obtain a DNA profile from the stain.

He said that the stain was not visible and that a blood stain generally is visible.

On cross-examination, Special Agent James testified that none of the evidence tested

had the DNA of both the defendant and the victim. He said that as long as a condom is not

damaged or destroyed, DNA could survive outside of a condom for possibly weeks. The

DNA on the inside of the condom was degraded. Special Agent James stated that he

generally expected to find the DNA of two people on the outside of a condom but that he

only found the defendant’s DNA. He did not see any evidence that cross-contamination

occurred.

After the State rested its case, the defendant presented the testimony of Arthur Chen,

who was employed with the Millington Telephone Company. He reviewed records from the

land line telephone number associated with the victim’s house. He stated that on June 1,

2010, at 1:30 p.m., an incoming call came from telephone number 901-5XX-XXXX that

lasted forty seconds. Mr. Chen could not determine whether the call was answered by a

person or an answering machine. The next call that was answered from the land line was at

8:09 p.m. The only incoming call from Rick’s cellular phone number was at 8:09 p.m.

Johnnie Phelps testified that in June 2010, his cellular phone number was

901-5XX-XXXX. He said that on June 1st, he attempted to call Rick Harris on his cellular

phone three times but that Rick did not answer. Mr. Phelps could not recall when he first

attempted to call Rick. He also called Rick at 12:30 p.m. and 2:30 p.m. Mr. Phelps said

Rick’s failure to return his calls seemed odd because Rick generally returned his call within

fifteen to twenty minutes unless Rick was out of range. Mr. Phelps testified that he called

Rick’s land line at 1:30 p.m. and that the victim answered. He said that the victim sounded

normal and that he did not hear any dogs in the background.

On cross-examination, Mr. Phelps testified he called Rick’s cellular phone twice on

the morning of June 1st. Mr. Phelps hung up the first time and received Rick’s voicemail the

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second time. He made both calls before 1:30 p.m. Mr. Phelps then called the land line. He

attempted to call Rick at 2:30 p.m. after he had spoken to the victim.

Harry Ellens, Jr. testified that he was good friends with Rick Harris and had been to

his home approximately three dozen times. He, along with his roommate, Bobby Hill, drove

to Rick’s home in his truck on June 1, 2010. They arrived at approximately noon. Mr. Ellens

said he saw an African American man standing by himself at the beginning of Rick’s

driveway and approximately thirty feet from Richardson Landing. Mr. Ellens also saw

several people who appeared to have been cooking out at the first house to the right. He said

he waved at them, and they waved back.

Mr. Ellens testified that when he knocked on the door, he heard dogs barking. The

outer door was open, but the screen door was closed. The victim came to the door. Mr.

Ellens said he placed his foot on the door so that the dogs would not run outside. The victim

told him not to worry about the dogs, and the dogs moved out of the way. Mr. Ellens held

the door open and talked to the victim. She said he had just missed Rick. Mr. Ellens stated

he remained there for approximately ten minutes. He did not see Rick that afternoon and did

not attempt to call him.

Rebecca Harris, the former wife of Rick Harris, testified that she spoke to Rick during

the trial and that he instructed her on how to testify. She said she did not want to testify. She

also said Rick Adam told her that while at Munford Tire, he had to wait for Rick to arrive.

Rick Adam did not tell her how long that he had to wait.

On rebuttal, the State recalled Rick Adam Harris. Rick Adam denied having any

conversation with Rebecca Harris regarding the events of June 1st or waiting for Rick at

Munford Tire. He said he never told Kevin Sisco that he had to wait for Rick at Munford

Tire.

The defendant was charged with felony murder in the perpetration of a kidnapping,

felony murder in the perpetration of a rape, aggravated kidnapping, and aggravated rape. At

the conclusion of the evidence, the jury convicted the defendant of two counts of felony

murder as charged, one count of aggravated kidnapping, and one count of aggravated sexual

battery as a lesser included offense of aggravated rape.

SENTENCING

During the penalty phase, the State presented copies of a judgment dated November

18, 1997, showing that “Richard Alvin Bell” with a date of birth of September 2, 1979, was

convicted of robbery of a motor vehicle and aggravated assault in Pennsylvania. The parties

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stipulated that the defendant’s date of birth was September 2, 1979, and that he was in

Pennsylvania in 1997.

The defendant presented the testimony of Belinda Bell, his mother. Ms. Bell testified

that she loves the defendant and that it would hurt her if the defendant received the death

penalty.

At the conclusion of the penalty phase, the jury found the following aggravating

circumstances beyond a reasonable doubt: (1) the defendant was previously convicted of

one or more felonies other than the present charge whose statutory elements involve the use

of violence to the person; (2) the murder was especially heinous, atrocious, or cruel, in that

it involved torture or serious physical abuse beyond that necessary to produce death; (3) the

defendant knowingly committed the murder while having a substantial role in committing

kidnapping; and (4) the defendant knowingly committed the murder while having a

substantial role in committing or attempting to commit rape. See T.C.A. § 39-13-204(i)(2),

(5), (7) (2010). The jury also found that the aggravating circumstances outweighed the

mitigating circumstances beyond a reasonable doubt and imposed a sentence of death.

During a separate sentencing hearing, the trial court sentenced the defendant to twenty

years for each of the aggravated kidnapping and aggravated sexual battery convictions. The

trial court merged the two felony murder convictions. The court ordered the defendant to

serve the two twenty-year sentences concurrent to each other but consecutive to the death

sentence.

ANALYSIS

On appeal, the defendant asserts that: (1) he is intellectually disabled and, therefore,

ineligible for the death penalty; (2) the evidence is insufficient to support the convictions; (3)

the trial court erred in denying his two motions for a mistrial; (4) the trial court erred in

refusing to allow the defense to question the victim’s husband regarding an extramarital

affair; (5) the aggravating circumstance in Tennessee Code Annotated section 39-13-

204(i)(7) is unconstitutional; (6) the absence of an intent to kill renders the death penalty

disproportionate; (7) proportionality review should be modified and the pool of cases

considered in proportionality review should be broadened; and (8) the sentence of death is

arbitrary and disproportionate.

I. INTELLECTUAL DISABILITY

The defendant contends that the trial court erred in concluding that he failed to

establish that he is intellectually disabled. He asserts that he meets all three statutory

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requirements deeming him ineligible for the death penalty.

A. Evidentiary Hearing

Prior to trial, the defendant filed a motion to dismiss the State’s notice of its intent to

seek the death penalty in which he claimed that he was intellectually disabled and, therefore,

ineligible for the death penalty. During a pretrial hearing, the defendant presented the

testimony of Dr. John Hutson, a clinical psychologist who the trial court admitted as an

expert in forensic psychology. Dr. Hutson testified that he treated the defendant in 1993

while the defendant was a patient in the adolescent unit at Lakeside Hospital. Dr. Hutson

also was retained to evaluate the defendant for purposes of trial.

Dr. Hutson testified that when he treated the defendant in 1993, the defendant had just

turned fourteen years old and had experienced turmoil in his life. The defendant’s parents

had divorced several years prior to the defendant’s treatment, and he had lost contact with

his father. The defendant was kept away from his father due to issues between the

defendant’s mother and his new step-mother. Dr. Hutson believed that the defendant’s father

was afraid to stand up to the two women in order to have contact with the defendant.

Approximately one month after the defendant was released from Lakeside Hospital, he was

admitted into Saint Joseph Hospital, a psychiatric hospital in Memphis that has since closed.

The defendant later was transferred from juvenile custody in Tennessee to a boarding school

in Pennsylvania.

Dr. Hutson said the defendant was very polite and well behaved but did not function

at a high intellectual level. The defendant was very depressed but was not psychotic. Dr.

Hutson stated that the defendant was in touch with reality and was able to communicate but

was limited in his intellectual understanding. When the defendant was fourteen years old,

Dr. Hutson administered the Wechsler Intelligence Scale for Children, Revised (“WISC-R”)

to the defendant, who received a full-scale I.Q. score of 77. The reported margin of error for

the test was plus or minus seven points. Dr. Hutson said there is a 95% prediction that the

defendant’s I.Q. range was between 70 and 84.

Dr. Hutson testified that he met with the defendant on two occasions at the Tipton

County Jail in 2010 and 2011. Dr. Hutson did not administer another I.Q. test to the

defendant. Dr. Hutson said the defendant’s verbal ability, understanding, and comprehension

were consistent with his abilities in 1993. Dr. Hutson explained that verbal ability and

comprehension almost never improves and that the defendant’s abilities had not significantly

deteriorated.

Dr. Hutson did not conduct a formal evaluation of the defendant’s adaptive

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functioning. He explained that one of the issues in conducting such an evaluation was that

the defendant had not really functioned outside of an institutional environment for one year

or more at a time since adolescence.

Dr. Hutson testified that the defendant fell within the borderline range of intelligence.

Dr. Hutson said any complex language had to be explained to the defendant. When Dr.

Hutson questioned the defendant, he did not rely upon any “yes” or “no” answer given by the

defendant. Rather, he then asked follow up questions to determine whether the defendant

understood the original question.

Dr. Hutson concluded that the defendant was competent to proceed to trial. Dr.

Hutson said the defendant was able to communicate if the language was not too abstruse or

if the concepts were explained to him in simple terms. He also said the defendant understood

the charges and the potential consequences that could result if convicted. He stated that

while the defendant was impaired in his ability to understand the judicial process, he could

grasp the roles of each person if explained to him.

On cross-examination, Dr. Hutson testified that the defendant is not intellectually

disabled. Dr. Hutson based his conclusion in part upon the results of the I.Q. test that he

administered to the defendant in 1993. He clarified that he administered the third edition and

not the revised edition of the WISC. He did not recall reviewing a report from Saint Joseph

Hospital stating that the defendant received a full-scale I.Q. score of 84 on the WISC-III

approximately two months after Dr. Hutson administered the test to him. Dr. Hutson

expected the defendant to receive a higher score on the test after he had been exposed to the

same test two months before.

Following the evidentiary hearing, the trial court entered an order denying the

defendant’s motion to dismiss. The trial court noted that the defendant received a full-scale

I.Q. score of 77 on the WISC-III. The court further noted that even though Dr. Hutson

testified that a margin of error existed regarding the test score, he also testified that the

defendant was not intellectually disabled.

B. Analysis

In 1990, Tennessee Code Annotated section 39-13-203 was enacted prohibiting the

execution of defendants who were intellectually disabled at the time that they committed first

degree murder. Tenn. Code Ann. § 39-13-203(b); Howell v. State, 151 S.W.3d 450, 455

(Tenn. 2004); Van Tran v. State, 66 S.W.3d 790 (Tenn. 2001). Although the statute is not

to be applied retroactively, the execution of intellectually disabled individuals violates

constitutional prohibitions against cruel and unusual punishment. Howell, 151 S.W.3d at 455

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(citing Van Tran, 66 S.W.3d at 798-99); see also Atkins v. Virginia, 536 U.S. 304, 321

(2002).

In Tennessee, “intellectual disability” rendering a defendant ineligible for the death

penalty requires:

(1) Significantly subaverage general intellectual functioning as evidenced by

a functional intelligent quotient (I.Q.) of seventy (70) or below;

(2) Deficits in adaptive behavior; and

(3) The intellectual disability must have manifested during the developmental period,

or by eighteen (18) years of age.

Tenn. Code Ann. § 39-13-203(a). All three prongs must be satisfied to establish intellectual

disability.

The defendant has the burden of establishing intellectual disability by a preponderance

of the evidence. Tenn. Code Ann. § 39-13-203(c); Howell, 151 S.W.3d at 465. The issue of

whether a defendant is intellectually disabled and, thus, ineligible for the death penalty is a

mixed question of law and fact. State v. Strode, 232 S.W.3d 1, 8 (Tenn. 2007). A trial

court’s findings of fact are binding on this court unless the evidence preponderates against

those findings. Id. The trial court’s application of the law to those facts is reviewed de novo.

Id.

1. Significantly Subaverage General Intellectual Functioning

Regarding “[s]ignificantly subaverage general intellectual functioning” under section

39-13-203(a)(1), the Tennessee Supreme Court previously held in Howell that the

demarcation of an I.Q. score of 70 was a “bright-line” rule that must be met. Howell, 151

S.W.3d at 456-59. The court also held that the statutory provision should not be interpreted

to allow for a standard error of measurement or any other circumstance whereby an

individual with an I.Q. above 70 could be considered intellectually disabled. Id. at 457-58.

On April 11, 2011, the Tennessee Supreme Court concluded that although an

individual’s I.Q. is generally obtained through standardized intelligence tests, section

39-13-203 does not provide clear direction regarding how an I.Q. should be determined and

does not specify any particular test or testing method that should be utilized. Coleman v.

State, 341 S.W.3d 221, 241 (Tenn. 2011). The court noted that section 39-13-203(a)(1)

requires a “functional intelligence quotient of seventy (70) or below” and does not require

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a “functional intelligence quotient test score of seventy (70) or below.” Id. (emphasis in

original). Therefore, “the trial courts may receive and consider any relevant and admissible

evidence regarding whether the defendant’s functional I.Q. at the time of the offense was

seventy (70) or below.” Id.

The supreme court noted that section 39-13-203(a)(1) differs with clinical practice in

one material respect. Id. at 247. In diagnosing intellectual disability, clinicians generally

report their conclusions regarding an individual’s I.Q. within a range, and section

39-13-203(a)(1) requires more definite testimony. Id. As a result, “an expert’s opinion

regarding a criminal defendant’s I.Q. cannot be expressed within a range (i.e., that the

defendant’s I.Q. falls somewhere between 65 to 75) but must be expressed specifically (i.e.,

that the defendant’s I.Q. is 75 or is ‘seventy (70) or below’ or is above 70).” Id. at 242.

In determining whether a defendant’s functional I.Q. is 70 or below, “a trial court

should consider all evidence that is admissible under the rules for expert testimony.” Keen

v. State, 398 S.W.3d 594, 605 (Tenn. 2012). Experts may use relevant and reliable practices,

methods, standards, and data in formulating their opinions. Coleman, 341 S.W.3d at 242.

Moreover,

if the trial court determines that professionals who assess a person’s I.Q.

customarily consider a particular test’s standard error of measurement, the

Flynn Effect, the practice effect, or other factors affecting the accuracy,

reliability, or fairness of the instrument or instruments used to assess or

measure the defendant’s I.Q., an expert should be permitted to base his or her

assessment of the defendant’s “functional intelligence quotient” on a

consideration of those factors.

Id. at n.55. The emphasis to be placed upon clinical judgment varies depending upon “the

type and amount of information available, the complexity of the issue, and the presence of

one or more challenging conditions or situations.” Id. at 246. The trial court is not required

to follow any particular expert’s opinion but must fully and fairly consider all evidence

presented, including the results of all I.Q. tests administered to the defendant. Id. at 242.

Therefore, pursuant to Coleman, “a trial court may accept the opinion of an expert that

a defendant’s I.Q. is 70 or below based upon the application of the Flynn Effect even though

the defendant received an I.Q. score of 75 on the applicable test.” Michael Wayne Howell

v. State, No. W2009-02426-CCA-R3-PD, 2011 Tenn. Crim. App. LEXIS 447, at *39 (Tenn.

Crim. App., at Jackson, June 14, 2011), perm. app. denied (Tenn. June 9, 2013). The

application of the Flynn Effect or the standard error of measurement, however, is not

required. Coleman, 341 S.W.3d at 242 n.55; Michael Wayne Howell, 2011 Tenn. Crim. App.

-42-

LEXIS 447, at *39. As a result, a trial court “may reject the application of the Flynn Effect

to adjust I.Q. scores based upon evidence of its lack of validity and consider the I.Q. score

of 75 as the defendant’s functional I.Q.” Id.

On October 8, 2013, the Tennessee Supreme Court released its opinion in State v.

Pruitt, 415 S.W.3d 180 (Tenn. 2013), further clarifying its opinion in Coleman. Pruitt

presented testimony from Dr. Rebecca Rutledge, who assessed Pruitt in November 1996

when Pruitt was sixteen years old at the request of juvenile court. Pruitt, 415 S.W.3d at 194.

Pruitt received an I.Q. score of 66 on the Slosson Intelligence Scale, which Dr. Rutledge said

fell within the mildly intellectually disabled range. Id. at 195. Dr. Rutledge said that Pruitt

did not appear to have taken the testing seriously and that his test results may have been

slightly lower than his actual level of cognitive functioning. Id. She stated that Pruitt would

have continued to test in the mildly intellectually disabled range had he put forth more effort.

Id.

Dr. Rutledge also reviewed a report from the Middle Tennessee Mental Health

Institute (“MTMHI”) from a September 2006 evaluation of Pruitt which reflected a diagnosis

of mildly intellectually disabled. Id. While Dr. Rutledge acknowledged that the WAIS test

is the “gold standard” for I.Q. testing, she said Pruitt would have “fallen pretty close” to his

score on the Slosson test had he taken the WAIS test in 1996. Id.

The State presented the testimony of Dr. Sam Craddock, who evaluated Pruitt in 2006

at MTMHI. Id. at 198. Dr. Craddock testified that the report of the evaluation erroneously

stated that Pruitt was diagnosed as mildly intellectually disabled. Id. at 199. He said the

correct diagnosis was “borderline intellectual functioning.” Id. Pruitt received an I.Q. score

of 68 on a test administered by Dr. Craddock. Id. Dr. Craddock said the report stated that

Pruitt appeared to make good effort on the test “[w]ith the exception of him occasionally

giving quick responses with accompanying little thought.” Id. As a result, he believed

Pruitt’s I.Q. was higher than his scores reflected. Other factors that led Dr. Craddock to

conclude that Pruitt’s score was indicative of intellectual disability included his score on the

Beta test and his school records. Id. The trial court found that Pruitt failed to prove by a

preponderance of the evidence that he had significantly subaverage intellectual functioning

as evidenced by an I.Q. of 70 or below. Id. at 200.

The Tennessee Supreme Court first noted that Pruitt’s raw I.Q. test scores were below

70. Id. at 202. The court further noted that although both experts stated that Pruitt may not

have given his best effort on the tests, neither expert testified that Pruitt’s I.Q. would have

been higher than 70 had his effort been greater. Id. at 203. Moreover, neither expert testified

that Pruitt’s test scores were “unreliable.” Id. The court explained, “Although the scores in

this case were called into question by the trial court, neither expert opined that Mr. Pruitt’s

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I.Q. was greater than seventy, whether through lack of effort or on some other basis for

adjustment of the raw score. Neither expert testified that the tests had an element of

unreliability in their administration.” Id. “In the absence of expert testimony that his I.Q.

was above seventy,” the court held that the evidence preponderated against the trial court’s

finding that Pruitt failed to establish significantly subaverage general intellectual functioning

as evidence by a functional I.Q. of 70 or below. Id.

In the present case, the defendant’s raw I.Q. scores were all above seventy. Therefore,

to establish that he had significantly subaverage general intellectual functioning as provided

in Tennessee Code Annotated section 39-13-203(a)(1), the defendant must present evidence

that the raw I.Q. scores or the method of testing was unreliable and that his functional I.Q.

is seventy or below. See id. at 202-03; Coleman, 341 S.W.3d at 242. Dr. Hutson testified

that the defendant’s full-scale I.Q. score of 77 had a margin of error of plus or minus seven

points, resulting in an I.Q. range of 70 to 84. Dr. Hutson, however, did not testify that the

application of the margin of error resulted in the defendant’s functional I.Q. equaling seventy

or below. Rather, he concluded that the defendant is not intellectually disabled and falls

within the borderline range.

The defendant asserts that because the I.Q. range included an I.Q. score of 70, he met

the first prong of the statute. The supreme court in Coleman stated that section 39-13-

203(a)(1) requires experts to provide “definite testimony” regarding a defendant’s functional

I.Q. Coleman, 341 S.W.3d at 247. Experts must testify “to a specific score” or at least that

the defendant’s functional I.Q. “is either ‘seventy (70) or below’ or above seventy.” Id. Dr.

Hutson offered no testimony that based on his consideration of the margin of error, the

defendant’s functional I.Q. is seventy or below. The defendant, therefore, failed to establish

that he had significantly subaverage general intellectual functioning as provided in section

39-13-203(a)(1).

2. Deficits in Adaptive Behavior

To establish intellectual disability, a defendant also must establish “[d]eficits in

adaptive behavior.” Tenn. Code Ann. § 39-13-203(a)(2). “Deficits in adaptive behavior”

refer to the inability of an individual to adapt to surrounding circumstances. State v. Smith,

893 S.W.2d 908, 918 (Tenn. 1994). The accepted clinical definition of adaptive functions

requires that an intellectually disabled person have “significant limitations in at least two of

the following basic skills: ‘communication, self-care, home living, social/interpersonal

skills, use of community resources, self-direction, functional academic skills, work, leisure,

health, and safety.’” Van Tran, 66 S.W.3d at 795 (quoting American Psychiatric

Association, Diagnostic and Statistical Manual of Mental Disorders 39 (4th ed. 1994)).

-44-

In this case, little evidence was presented concerning the defendant’s adaptive

behavior. Dr. Hutson testified that he did not conduct any formal adaptive function testing,

and he did not identify any areas of adaptive functions in which the defendant had significant

limitations. Therefore, the defendant failed to establish deficits in adaptive behavior as

required by section 39-13-203(a)(2).

3. Manifestation Before the Age of Eighteen

Finally, the defendant must prove that his intellectual disability manifested during his

developmental period or by the age of eighteen. Tenn. Code Ann. § 39-13-203(a)(3). The

defendant did not establish by a preponderance of the evidence that he had significantly

subaverage general intellectual functioning or deficits in adaptive behavior. Thus, he has not

demonstrated that he had an intellectual disability that manifested during his developmental

period or before the age of eighteen. Because the defendant has failed to establish all three

prongs of section 39-13-203(a), he is not entitled to relief regarding this issue.

II. SUFFICIENCY

The defendant asserts that the evidence is insufficient to support his convictions.

Specifically, he asserts that the evidence is insufficient to establish his identity as the

perpetrator and that he raped or sexually assaulted the victim.

A guilty verdict shall be set aside if the evidence is insufficient to support the jury’s

findings of guilt beyond a reasonable doubt. Tenn. R. App. P. 13(e). When considering the

sufficiency of the evidence, “the State must be afforded the strongest legitimate view of the

evidence and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221

S.W.3d 514, 521 (Tenn. 2007) (citing State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)).

The relevant question is whether, after reviewing the evidence in the light most favorable to

the State, any rational trier of fact could have found the essential elements of the offense

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn. R.

App. P. 13(e). A verdict of guilt removes the presumption of innocence and raises a

presumption of guilt, and the defendant bears the burden of establishing that the evidence

was legally insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-

58 (Tenn. 2000).

A criminal offense may be established exclusively be circumstantial evidence. State

v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). The jury must determine the significance

of the circumstantial evidence, the inferences to be drawn from the evidence, and the extent

to which the circumstances are consistent with guilt and inconsistent with innocence. State

v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006). Appellate courts may not substitute their own

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inferences for those drawn by the jury in circumstantial evidence cases. State v. Lewter, 313

S.W.3d 745, 748 (Tenn. 2010). The Tennessee Supreme Court has abolished any distinction

between the standard of proof required in cases based solely upon circumstantial evidence

and in cases where direct evidence of guilt is presented by the State. Dorantes, 331 S.W.3d

at 381. Therefore, our standard of review is identical regardless of whether the conviction

is based upon direct or circumstantial evidence. Id. at 379.

A. Identity

The defendant contends that the evidence was insufficient to establish his identity as

the perpetrator. The identity of the perpetrator is an essential element of any criminal

offense. Rice, 184 S.W.3d at 662. The identification of the defendant as the perpetrator is

a question of fact for the jury after considering all the relevant proof. State v. Strickland, 885

S.W.2d 85, 87 (Tenn. Crim. App. 1993).

When viewed in a light most favorable to the State, the evidence presented at trial

established that the defendant was in the area of the victim’s house at the time of the murder,

had a lighter that resembled a gun, forced the victim out of her house and into a wooded area

behind her home, engaged in sexual activity with the victim, left a condom with his DNA at

the crime scene, and killed the victim by strangling her and striking her head. According to

the evidence presented at trial, the defendant came to the victim’s house before noon on June

1, 2010, to receive his wages. Ray Horne testified that after Rick Adam Harris paid the

defendant, the defendant counted his money and discovered that his wages were less than

what he generally received. The defendant questioned others regarding the reason that his

wages were less, and Mr. Horne reminded him that he had been absent from work one day.

The defendant continued to ask to speak to Rick Harris, but Rick did not come outside.

The defendant admitted that he returned to the victim’s home later that day and that

Rick was not there. Andrew Reddick testified that after speaking to the defendant, he saw

the defendant approach the Harris home and knock on the door. Andrew saw the victim

come to the door and speak to the defendant for approximately ten seconds. Andrew then

saw the defendant enter the home. The defendant told the victim that he had a question

regarding his wages. The victim called Rick, and the defendant spoke to him regarding the

pay discrepancy. The call occurred at 1:10 p.m. and lasted one minute and two seconds.

Multiple witnesses testified that they last communicated with the victim between 1:00

and 1:30 p.m. Kelly Phelps said she spoke to the victim a few minutes before 1:00 p.m.

regarding a job site. Alexia Block and the victim exchanged text messages between 1:02 and

1:28 p.m. The last text message sent by the victim was at 1:25 p.m. Johnnie Phelps called

the victim’s land line and spoke with her at 1:30 p.m. No one communicated with the victim

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after Mr. Phelps’ call. No one answered the door when Mr. Plunk delivered a package to the

victim’s home at 2:16 p.m.

The defendant was seen in the area of the victim’s home at approximately 1:30 p.m.

Tommy Redditt testified that at around 1:30 p.m., he saw an African-American man, who he

recognized as one of Rick’s employees, standing near a trailer and looking at the victim’s

home and his surroundings. Tommy also saw the man in the area at approximately 1:00 p.m.

The defendant argues that based upon Ms. Bell’s testimony that he was at home when

she returned from work at 2:00 p.m., he would have had less than thirty minutes to commit

the offenses. The defendant contends that he would not have been able to commit the

offenses and then return home in this period of time especially in light of Special Agent

Sullivan’s testimony that it took him seven minutes and thirty seconds to walk the path in the

woods from the Harris residence to the defendant’s home. The defendant, however,

informed officers that Ms. Bell arrived home between 2:30 and 2:50 p.m. Mr. Sisco also

testified that there was a shortcut through the woods from the area where the victim’s body

was found to an area near the defendant’s house. Mr. Sisco said it would only take thirty

seconds to run the route.

Agents discovered a lighter in the shape of a handgun near the location of the victim’s

body. Ms. Bell identified a gun-shaped lighter in a photograph as belonging to her son,

Kevin. A partial DNA profile matching the defendant’s DNA was obtained from the lighter.

A condom with the defendant’s DNA was found near the lighter. A trail of disturbed leaves

led from the area where the lighter and condom were found to the location of the victim’s

body. It appeared that something had been drug from the location of the lighter and the

condom to the location of the victim’s body. We conclude that this evidence, when viewed

in a light most favorable to the State, is sufficient to establish the defendant as the perpetrator

of the offenses.

B. Killing During Rape

The defendant next contends that the evidence is insufficient to prove that the killing

was committed during the perpetration of a rape, as to support his conviction for felony

murder. To obtain a conviction for felony murder, the State was required to prove: (1) a

killing of another; (2) committed during the perpetration of a rape. Tenn. Code Ann. § 39-

13-202(a)(2). Rape is defined as:

Unlawful sexual penetration of a victim by the defendant . . . accompanied by

any of the following circumstances:

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(1) Force or coercion is used to accomplish the act;

(2) The sexual penetration is accomplished without the consent of the victim

and the defendant knows or has reason to know at the time of the penetration

that the victim did not consent. . . .

Tenn. Code Ann. § 39-13-503(a).

The defendant used a lighter in the shape of a gun to force the victim into the woods.

The victim was found with her shirt ripped open, her bra rolled down to her waist, and her

chest exposed. Her underwear was rolled above her pants line, and her shorts were pulled

higher than her waist. A condom was found in an area near the victim’s body, and a print in

the shape of human buttocks was in the ground near the condom. Semen on the condom

matched the defendant’s DNA. Dr. Funte found that the victim had signs of sexually related

trauma, including blunt force injuries to her inner thighs. This evidence, when viewed in a

light most favorable to the State, is sufficient to establish that the killing of the victim was

committed during the perpetration of a rape.

C. Aggravated Sexual Battery

Aggravated sexual battery is defined as:

unlawful sexual contact with a victim by the defendant or the defendant by a

victim accompanied by any of the following circumstances:

(1) Force or coercion is used to accomplish the act and the defendant is armed

with a weapon or any article used or fashioned in a manner to lead the victim

reasonably to believe it to be a weapon; [or]

(2) The defendant causes bodily injury to the victim. . . .

Tenn. Code Ann. § 39-13-504(a). “Sexual contact” is defined as including “the intentional

touching of the victim’s . . . intimate parts, or the intentional touching of the clothing

covering the immediate area of the victim’s . . . intimate parts, if that intentional touching can

be reasonablly construed as being for the purpose of sexual arousal or gratification.” Tenn.

Code Ann. § 39-13-501(6). “Intimate parts” include “the primary genital area, groin, inner

thigh, buttock or breast of a human being.” Id. at (2).

Evidence supporting the conviction for felony murder in the perpetration of a rape also

is sufficient to establish aggravated sexual battery. Dr. Funte’s testimony, the photographs

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of the victim’s body, the disarray of the victim’s clothing, and the defendant’s DNA found

on the condom at the crime scene are sufficient to establish that sexual contact occurred. The

defendant is not entitled to relief regarding this issue.

III. DENIAL OF MOTION FOR MISTRIAL

The defendant submits that the trial court erred in denying his motion for a mistrial

during the testimony of Ms. Bell and Rick Harris. According to the defendant, Ms. Bell and

Rick Harris improperly testified regarding his prior incarceration.

A mistrial should be declared in criminal cases only in the event that a manifest

necessity requires such action. State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App.

1991). A mistrial is an appropriate remedy when a trial cannot continue or a miscarriage of

justice would result if it did. State v. McPherson, 882 S.W.2d 365, 370 (Tenn. Crim. App.

1994). The decision to grant a mistrial lies within the sound discretion of the trial court, and

this court will not interfere with the exercise of that discretion absent clear abuse appearing

on the face of the record. State v. Hall, 976 S.W.2d 121, 147 (Tenn. 1998). Moreover, the

burden of establishing the necessity for mistrial lies with the party seeking it. State v.

Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996).

A. Ms. Bell’s Testimony

The State called Ms. Bell as its second witness at trial. During the State’s direct

examination, the following exchange occurred:

Q. Now, in June of 2010, and listen carefully to my question. In June of

2010 how long had [the defendant] lived there? When had he moved

in with you before June of 2010?

A. Well, he came---he came to me in February after--after--after prison, in

February the 20th.

Q. Okay. So he came to you in February of 2010, correct?

A. Uh-huh.

Q. Now, he had lived at that address as a young man?

A. Yeah.

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Q. And what ages had he lived at that same address?

A. Well, ever since he was--well, not ever since, but since he was like

three years old, at that that address.

Defense counsel requested a bench conference and moved for a mistrial, arguing that

the State’s question was designed to elicit a response regarding the defendant’s criminal

history. The prosecutor stated that he did not intend to elicit such a response and that he was

surprised by the answer. The trial court agreed that the State’s question was not worded in

a way to solicit a response regarding the defendant’s criminal history. Rather, the trial court

stated that the State was allowed to question Ms. Bell to establish the defendant’s familiarity

with the neighborhood. The trial court found that Ms. Bell’s testimony was not responsive

to the question asked. Defense counsel also argued that the jury could find that the defendant

had been in juvenile facilities and prison for a substantial amount of time based upon Ms.

Bell’s testimony that he had lived at home since the age of three. The trial court stated it

“didn’t get that” out of the question or the answer.

The trial court denied the defendant’s motion for a mistrial and offered to give the jury

a curative instruction. Defense counsel argued that a curative instruction would further

“highlight” the comment and asked that the trial court not give such an instruction. The trial

court cautioned the prosecutor regarding the wording of his questions. The court also told

Ms. Bell to respond to the question asked and to not mention the defendant’s prior jail

sentence.

We cannot conclude that Ms. Bell’s testimony created a “manifest necessity” for a

mistrial. The record does not reflect that the prosecutor deliberately elicited the testimony

in order to create an inference of guilt on the part of the defendant. Rather, the State’s

questions were designed to establish the defendant’s familiarity with the area. The record

also does not reflect that the prosecutor anticipated Ms. Bell’s answer. Ms. Bell’s answer

was not responsive to the State’s question regarding the time period during which the

defendant lived with her. See State v. Smith, 755 S.W.2d 757, 766 (Tenn. 1998) (holding that

the trial court did not err in denying the defendant’s motion for a mistrial when there was no

indication that the State “intended or anticipated that the witness would mention that the

defendant had been in jail”). The trial court did not offer a curative instruction to the jury

because defense counsel requested that the court not do so. Finally, the State’s case against

the defendant was strong such that the jury would have convicted the defendant in the

absence of the improper testimony. Accordingly, the trial court did not abuse its discretion

in denying the defendant’s motion for a mistrial.

B. Rick Harris’ Testimony

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The following exchange occurred during the State’s direct examination of Rick

Harris:

Q. Okay. Now, back in June of 2010 did you know [the defendant]?

A. Yes, sir.

Q. And how did you know him?

A. His brothers had actually worked for me once or twice, and I knew his--

well, I met his mom once, but I knew him from around the corner. And

my son came to me and told me that he was, you know, just got out of

jail--

The defendant objected and requested a mistrial. The State argued that Rick did not

respond to the question asked and requested that they be allowed to address Rick outside of

the presence of the jury. The trial court denied the defendant’s motion for a mistrial. The

trial court instructed the jury: “Ladies and gentlemen, again, the last question and response

to it, I ask you just ignore it entirely. Put it out of your mind.” The prosecutor then

questioned Rick outside the jury’s presence, during which the prosecutor admonished Rick

to only respond to the question asked and to refrain from referring to the defendant’s criminal

history.

The record does not reflect that the prosecutor deliberately elicited the testimony in

order to create an inference of guilt on the part of the defendant or that the prosecutor

anticipated Rick’s answer. Rick’s answer was not responsive to the State’s question. The

trial court also gave a curative instruction, which we must presume that the jury followed.

See State v. Young, 196 S.W.3d 85, 111 (Tenn. 2006). Finally, the State’s case against the

defendant was strong such that the jury would have convicted the defendant in the absence

of the improper testimony. Accordingly, we conclude that the trial court did not abuse its

discretion in denying the defendant’s motion for a mistrial.

IV. EVIDENCE OF RICK HARRIS’ EXTRAMARITAL AFFAIR

Defense counsel sought to question Rick Harris on cross-examination regarding his

extramarital affair with his former wife, Rebecca Harris, at the time of the victim’s death.

The State objected and argued that the evidence was irrelevant. Defense counsel asserted

that the affair was relevant for impeachment purposes and as evidence of motive to either kill

the victim or have her killed.

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During a jury out hearing, defense counsel questioned Rick regarding the affair. Rick

testified that the extramarital affair with Ms. Harris began in November of 2009 and that they

engaged in sexual intercourse on five occasions. Their second sexual encounter occurred in

the Frayser area of Memphis. As a result, they referred to their sexual encounters as

“Frayser[s].” Rick admitted that he sent Ms. Harris four text messages on the afternoon of

June 1st. Rick told Ms. Harris that he wanted a drink, dinner, and a “Frayser.” On the

afternoon of June 1st, Rick called the victim, but the victim did not answer. Rick denied

wanting to get back together with Ms. Harris and said their relationship was only sexual in

nature.

On cross-examination, Rick testified that he informed law enforcement officers of the

affair and that he did not attempt to hide the affair from them. Upon further questioning by

defense counsel, Rick said that when Special Agent Sullivan questioned him on June 2nd,

Rick told him about the affair. Rick explained that he was open about the affair because he

did not want officers to suspect him based upon the affair and wanted officers to catch the

actual killer. He acknowledged that information regarding the affair was not included in his

written statement. He said he did not tell officers about the affair when questioned a second

time on July 2nd because he previously informed them of the affair on June 2nd.

The trial court disallowed the evidence, stating:

The Rules require that proof of another wrong or act has to go to credibility.

It’s not just . . . bad conduct, but to truthfulness or untruthfulness.

And the Court doesn’t believe this line of questioning, while the Court

acknowledges it’s conduct that might involve moral turpitude or certainly

inappropriate conduct, does not go to truthfulness or untruthfulness or would

aid the jury really in any way in determining the credibility of the witness. So

the Court will sustain the objection with regard to this line or questioning.

With regard to the defendant’s argument that the affair was evidence of motive, the trial court

stated:

[Rick Harris] is not a criminal defendant. So you can certainly ask him

the other questions that have to do with whether he committed a crime,

whether he committed this crime, any of those type of questions.

The defendant asserts that the trial court erred in refusing to allow defense counsel to

question Rick Harris regarding his affair with Ms. Harris. We review trial court decisions

concerning the admissibility of evidence under an abuse of discretion standard. State v.

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Robinson, 146 S.W.3d 469, 490 (Tenn. 2004). A trial court does not abuse its discretion

unless it applies an incorrect legal standard or reaches an illogical decision that causes an

injustice to the complaining party. Id.

The defendant submits that evidence of Rick’s extramarital affair with Ms. Harris was

relevant to impeach Rick’s credibility. “Specific instances of conduct of a witness for the

purpose of attacking or supporting the witness’s character for truthfulness” may be inquired

into on cross-examination if “the alleged conduct has probative value and [ ] a reasonable

factual basis exists for the inquiry.” Tenn. R. Evid. 608(b). “Evidence of non-commercial,

non-felonious and private sex acts will not impeach or discredit a witness’s testimony and

such evidence is not admissible for that purpose.” Walden v. State, 542 S.W.2d 635, 637

(Tenn. Crim. App. 1976); see also Anthony Bull v. William Fey, 1988 Tenn. App. LEXIS

405, at *6 (Tenn. App. July 13, 1988) (holding that the fact that a person is involved in an

extramarital affair is not probative of the person’s truthfulness or untruthfulness under Rule

608(b)).

The defendant also sought to present evidence of the affair to establish that Rick

Harris had a motive to kill the victim. Criminal defendants have a constitutional right,

implicit in the Sixth Amendment, to present a defense, and this right is “a fundamental

element of due process of law.” State v. Brown, 29 S.W.3d 427, 432 (Tenn. 2000) (quoting

Washington v. Texas, 388 U.S. 14, 19 (1967)); see Crane v. Kentucky, 476 U.S. 683, 690

(1986); Chambers v. Mississippi, 410 U.S. 284, 294 (1973). A defendant is entitled to

present evidence implicating others in the crime. State v. Powers, 101 S.W.3d 383, 394

(Tenn. 2003).

In Powers, the Tennessee Supreme Court addressed the standard for determining the

admissibility of evidence of a third party defendant. Id. at 394-95. The court rejected the

“direct connection” test, which required that the evidence “directly connect the third party

with the substance of the crime and . . . clearly point out someone besides the accused as the

guilty person in order to be admissible.” Id. at 395. The court held that the threshold

imposed by the “direct connection test” was too high. Id. The court further held that the

Rules of Evidence are adequate to determine the admissibility of evidence regarding third

party culpability.

At trial, defense counsel characterized Rick Harris’ extramarital affair as a “prior bad

act.” The trial court rejected the defendant’s argument, stating that Rick Harris was not a

defendant. Rule 404(b) of the Tennessee Rules of Evidence, which addresses prior bad acts

of a defendant, does not apply when a third-party defense is raised. State v. Rogers, 188

S.W.3d 593, 612-13 (Tenn. 2006). “‘[E]vidence of crimes, wrongs or acts, if relevant, is not

excluded by Rule 404(b) if the acts were committed by a person other than the accused.’”

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State v. Stevens, 78 S.W.3d 817, 837 (Tenn. 2002) (quoting State v. Dubose, 953 S.W.2d

649, 653 (Tenn. 1997)). Accordingly, the trial court correctly declined to analyze evidence

of Rick Harris’ affair under the standards set forth in Rule 404(b).

The trial court, however, failed to analyze the admissibility of the evidence under the

general relevancy standards provided in Rules 401 and 403. Evidence is relevant if it 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.” Tenn.

R. Evid. 401. Relevant evidence “may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury,

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

evidence.” Tenn. R. Evid. 403. “Evidence that a third party had the motive and opportunity

to commit the offense has been deemed relevant to a criminal prosecution.” Rice, 184

S.W.3d at 672.

One of the defendant’s theories of defense was that Rick Harris committed the

offenses. Defense counsel questioned law enforcement officers regarding their investigation

of Rick. Evidence was presented that a struggle occurred, that the woods where the victim’s

body was found had thick brush, that Rick had cuts on his hand, and that his DNA was found

on the victim. The defendant also attempted to challenge Rick’s alibi by questioning

witnesses regarding whether they maintained contact with Rick during the entire time that

they were at Munford Tires. The question is whether evidence of Rick’s extramarital affair

at the time of the victim’s murder makes “any fact that is of consequence . . . more probable

or less probable than it would be without the evidence.” Tenn. R. Evid. 401; see Rice, 184

S.W.3d at 672. This court previously has recognized that evidence that a defendant was

involved in an extramarital affair at the time of his wife’s murder indicated that there was

trouble in the defendant’s marriage to the victim and suggested a motive for the murder.

State v. Brock, 327 S.W.3d 645, 704 (Tenn. Crim. App. 2009). Evidence that Rick was

involved in an extramarital affair at the time of the victim’s murder is relevant as it tends to

make the fact of his involvement in the crime more probable than it would be without the

evidence. This evidence was not substantially outweighed by risk of unfair prejudice,

confusion of issues, possible misleading of the jury, or waste of time. Accordingly, the trial

court erred in excluding the evidence.

The defendant argues that the trial court’s exclusion of the evidence deprived him of

his due process right to present a meaningful defense. An evidentiary ruling generally does

not rise to the level of a constitutional violation. Rice, 184 S.W.3d at 647; see Crane, 476

U.S. at 689 (“We acknowledge also our traditional reluctance to impose constitutional

constraints on ordinary evidentiary rulings by state trial courts.”). In determining whether

the constitutional right to present a defense has been violated by the exclusion of evidence,

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a court should consider whether: (1) the excluded evidence is critical to the defense; (2) the

excluded evidence bears sufficient indicia of reliability; and (3) the interest supporting the

exclusion is substantially important. Powers, 101 S.W.3d at 397.

In Chambers, the defendant was not allowed to introduce evidence that a third party

had confessed to the crime, and the United States Supreme Court held that the exclusion of

the “critical” evidence denied the defendant a trial in accordance with due process standards.

Chambers, 410 U.S. at 302. Evidence of Rick Harris’ extramarital affair, however, falls far

short of the critical evidence considered in Chambers. Multiple witnesses testified at trial

that they were with Rick around the time of the victim’s murder. Special Agent Sullivan

testified that the scratches on Rick were consistent with those obtained while working in the

yard. Rick explained that his DNA was on the victim because they had engaged in sexual

intercourse the night before the victim’s murder. Moreover, no evidence was presented at

trial suggesting that Rick had someone commit the crimes for him.

The defendant argues that the evidence was critical in order to impeach Rick’s

testimony. According to the defendant, Rick’s “omissions of details to police regarding his

extramarital affair with Rebecca Harris call into question his credibility.” Rick, however,

testified during the jury out hearing that he told police of the extramarital affair during his

initial interview with them. Moreover, while Rick testified at trial that he did not call the

victim on the afternoon of her murder because he was too busy working, he acknowledged

that he sent four text messages to Rebecca Harris, none of which were work-related.

Considering the strength of the State’s evidence against the defendant and the

relatively weak probative value of the evidence sought to be introduced by the defendant, we

conclude that the error was harmless beyond a reasonable doubt. See Rice, 184 S.W.3d 673-

74 (holding that the trial court’s error in not allowing the defendant to present evidence of

third party culpability to be harmless beyond a reasonable doubt); see also Powers, 101

S.W.3d at 397 (concluding there was no due process violation from the denial of evidence

that someone had seen the victim and her husband the night before she disappeared, that the

victim was shaking and attempting to hide from her husband, and that that the victim’s

husband later denied being with the victim on that night). The defendant is not entitled to

relief regarding this issue.

V. CONSTITUTIONALITY OF THE (i)(7) AGGRAVATOR

The defendant contends that the felony murder aggravating circumstance in Tennessee

Code Annotated section 39-13-204(i)(7) is unconstitutional. The defendant, however, did

not raise this issue in the trial court. Therefore, the issue is waived. See Tenn. R. App. P.

36(a).

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Notwithstanding waiver, the defendant is not entitled to relief. In State v.

Middlebrooks, 840 S.W.2d 317, 346 (Te

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