State of Tennessee v. Marvin E. Potter, Jr.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

October 13, 2015 Session

STATE OF TENNESSEE v. MARVIN E. POTTER, JR.

Appeal from the Criminal Court for Washington County

No. 39694 Jon Kerry Blackwood, Senior Judge

No. E2015-00013-CCA-R3-CD – Filed March 8, 2016

The Defendant, Marvin E. Potter, Jr., was convicted by a Washington County Criminal

Court jury of two counts of premeditated first degree murder, for which he is serving

consecutive life sentences. On appeal, he contends that (1) the evidence is insufficient to

support the convictions, (2) the trial court erred in admitting hearsay evidence as

statements of co-conspirators, (3) the trial court erred in denying the Defendant‟s motion

for a mistrial due to an absent material witness, and (4) the State‟s use of visual aids

during closing argument constituted prosecutorial misconduct. We affirm the judgments

of the trial court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JAMES

CURWOOD WITT, JR., and TIMOTHY L. EASTER, JJ., joined.

David L. Robbins, Johnson City, Tennessee, and H. Randolph Fallin, Mountain City,

Tennessee, for the appellant, Marvin E. Potter, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;

Anthony Clark, District Attorney General; Dennis Brooks and Matthew Roark, Assistant

District Attorneys General, for the appellee, State of Tennessee.

OPINION

The Defendant‟s convictions pertain to the January 31, 2012 killings of Billie Jean

Hayworth and Billy Clay Payne in Johnson County.1 The lifeless bodies of Ms.

Hayworth and Mr. Payne were found in the home they shared with their infant son and

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The trial court granted a change of venue to Washington County.

Mr. Payne‟s father. Both victims had been shot in the head, and Mr. Payne‟s neck had

been cut. At the trial, the State‟s theory was that the killings were related to

disagreements between the victims and the Defendant‟s adult daughter, Jenelle Potter,2

which had played out on social media websites and at in-person encounters involving the

Potter family and the victims.

According to friends of Ms. Hayworth, Jenelle began interacting with the friends

and Ms. Hayworth through MySpace and Facebook around 2008 or 2009. Lindsay

Thomas testified that shortly after she accepted Jenelle‟s Facebook friend request, Jenelle

began posting statements on Facebook that Ms. Thomas and Ms. Hayworth were “mean

girls.” Ms. Thomas said Jenelle captured images from Ms. Thomas‟s and Ms.

Hayworth‟s Facebook pages and posted them on Jenelle‟s page, “tagging” them with

Jenelle‟s name to make it appear as if the photographs depicted Jenelle, rather than Ms.

Thomas or Ms. Hayworth. Ms. Thomas said she called Jenelle and asked her to stop

talking about her and Ms. Hayworth. Ms. Thomas said that Jenelle claimed to have no

knowledge of what Ms. Thomas was talking about and that Jenelle did not write anything

about Ms. Thomas and Ms. Hayworth on Facebook. Ms. Thomas said that after this

conversation, she began receiving as many as fifteen to twenty telephone calls per day in

which no one spoke but in which she could hear breathing. Ms. Thomas said that she

knew the calls were from Jenelle because they came from a telephone number Ms.

Thomas recognized as the Potters‟ home number and that Ms. Thomas told the caller to

stop calling. Ms. Thomas said that sometimes a man, whom she assumed was the

Defendant, came to the phone and told Ms. Thomas to leave the caller alone. Ms.

Thomas said she told the man that the other person had called her and that Ms. Thomas

had not placed the call. Ms. Thomas said that over time, she became more stern with the

caller when the calls continued.

Ms. Thomas testified that in May 2011, she filed telephone harassment charges

against Jenelle. She said that by this time, she and Ms. Hayworth had removed Jenelle

from their Facebook friends lists. Ms. Thomas said that the court dismissed the charges

after a November 2011 hearing because Ms. Thomas had been unable to prove that

Jenelle was the caller. Ms. Thomas said Ms. Hayworth attended court with her.

Ms. Thomas acknowledged posting comments on the website Topix and thought

her posts were related to comments she attributed to Jenelle. She said she could not

2

The Defendant‟s daughter, Jenelle Potter, and his wife, Barbara Potter, are both involved in this case. Because

they share the same last name, we will refer to Jenelle Potter and Barbara Potter by their first names. We mean no

disrespect. Lyndsey Potter testified as a State‟s witness, as did Lindsay Thomas. In order to differentiate between

these witnesses who share the same first name, we will refer to Lyndsey Potter as Ms. Potter and to Lindsay Thomas

as Ms. Thomas.

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know with certainty who posted the comments she attributed to Jenelle because a person

could post comments using any name.

Ms. Thomas testified that she had seen Jenelle in public and that she had never

confronted her publicly or physically. Ms. Thomas said she probably “said stuff back to”

Jenelle when she saw Jenelle in public.

Lyndsey Potter, a friend of Ms. Hayworth‟s, testified that she met Jenelle in 2008

or 2009 at Food Lion, where Ms. Potter‟s brother was employed. She was unaware of

any familial relationship she had with the Defendant and his family and said Potter was a

common last name in Johnson County. Ms. Potter said she and Jenelle became friends on

social media websites shortly after meeting. Ms. Potter said she did not have any

problems with Jenelle until Jenelle‟s trouble with the victims started. Ms. Potter said that

Jenelle posted a photograph of Tara Osborne, Ms. Thomas, and Ms. Hayworth with

“some pretty nasty” comments, that Ms. Potter told Jenelle that what she had said was

inappropriate, and that Jenelle did not remove the photograph. Ms. Potter said that a few

months later, Jenelle sent her a private Facebook message stating that Jenelle was sick

and that Ms. Thomas and Ms. Hayworth would not stop bothering her. Ms. Potter said

that after she told Jenelle that she did not think Ms. Thomas and Ms. Hayworth were

bothering Jenelle, Jenelle “blocked” her on Facebook. Ms. Potter said Ms. Hayworth‟s

problems with Jenelle began when Ms. Hayworth and Ms. Thomas removed Jenelle from

their Facebook friends lists.

Tara Osborne testified that she knew the victims for about five years before their

deaths. She said that she first met Jenelle at Food Country, that Jenelle had been talkative

while they stood in the checkout line, and that she received a Facebook friend request

from Jenelle afterward. Ms. Osborne said they began “instant messaging” each other and

that after she gave Jenelle her telephone number, they began talking and developed a

“small friendship.” Ms. Osborne said that after the “drama” started, however, she wanted

to remove herself from the situation. Ms. Osborne said Jenelle recounted various ways in

which Jenelle was mistreated: people harassed her, people knew information about her

home life, she could not see her boyfriend, she disagreed with how her father treated her,

and she did not like her mother‟s behavior. Ms. Osborne said that she disabled a

Facebook feature that allowed other users to see when she was online and that she

eventually removed Jenelle from her Facebook friends list. Ms. Osborne said that a

couple of weeks later, she received a private Facebook message from a Facebook user

with the same profile name and photograph as Jenelle. Ms. Osborne responded to the

message, stating that she did not want to be in the middle of any disputes and did not

want to be contacted. She said that when the harassment started, a male contacted her

and that she told him she was going to be a “b---- he did not want to p--- off.” She said

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the male who called her tried to make noises from a horror movie and had an “insanity

laugh.”

Ms. Osborne testified that she went to the Sheriff‟s Department and brought

harassment charges relative to the actions. She said she took a voicemail message to the

sheriff‟s office that had been left on her cell phone. She said that she was assisted by an

unidentified woman in completing the paperwork and that the Sheriff‟s Department did

not investigate on her behalf. She said the case was “thrown out” because she had not

filed it properly and did not know what she was doing. Ms. Osborne said she “fixed it” in

order to prevent the Potters from contacting her, but she did not specify what she did.

Ms. Osborne said she was a witness in Lindsay Thomas‟s harassment case against

Jenelle.

Ms. Osborne read an email that had been received as an exhibit, in which the

author claimed to have pulled a gun on “Tara” and told her she needed to worry about

“her own life.” The author also claimed to have threatened Tara that her baby could be

taken from her. Ms. Osborne denied that this occurred.

Linda Stephens testified that she worked at Larry Potter‟s store, which Ms.

Hayworth frequented. She said that on one occasion when Ms. Hayworth was outside the

store pumping gas, a car containing two people pulled into the parking lot between the

gas pumps and the store. Ms. Stephens said the occupants of the car threw up their arms

and leaned in as if they were screaming and pointing. She said Ms. Hayworth appeared

upset. Ms. Stephens went to the door and asked if Ms. Hayworth was okay and if Ms.

Stephens should call the police. Ms. Stephens said that when she mentioned the police,

the car fled the parking lot. Ms. Stephens said Ms. Hayworth was upset, crying,

trembling, and shaking. Ms. Stephens said Ms. Hayworth told her the people in the car

had been Jenelle and Barbara Potter. Ms. Hayworth told Ms. Stephens that the Potters

called her “trash” and said Ms. Hayworth did not deserve to have her child, who was in

Ms. Hayworth‟s car. Ms. Stephens said Ms. Hayworth stated she was on her way to her

son‟s first pediatric well visit and that because Ms. Hayworth was upset by the incident,

Ms. Hayworth planned to return home to have Mr. Payne accompany her to the

appointment. Ms. Stephens said Ms. Hayworth left without obtaining change for her

payment for the gas.

Tracy Greenwell, Mr. Payne‟s brother, testified that he and Mr. Payne had assisted

in getting Jenelle and Jamie Curd together romantically. He said he had been friends

with both of them and that Jenelle met Mr. Payne when Mr. Greenwell brought Jenelle to

his father‟s house. He said that he had liked Jenelle and got along well with her but that

she became “mean” after she and Mr. Curd began dating. Mr. Greenwell said Mr. Payne

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showed Mr. Greenwell a three-ring binder containing comments Jenelle made on the

Topix website. Mr. Greenwell said the Topix comments were about Mr. Payne, Ms.

Hayworth, and “Lindsay” and that this occurred in approximately October 2011. Mr.

Greenwell said that Mr. Payne and Mr. Curd had a confrontation after Mr. Payne told Mr.

Curd things at work and then went home to find the subject of their conversation posted

on Topix. Mr. Greenwell said that due to the conflict, Mr. Payne and Mr. Curd‟s

employer placed Mr. Curd on a different shift from Mr. Payne. Mr. Greenwell

acknowledged that a person did not have to use his or her own name to post on Topix.

Mr. Greenwell said he was aware of the harassment charges involving Jenelle.

Mr. Greenwell testified that Mr. Payne took pain medication and had a drug

problem, but Mr. Greenwell said Mr. Payne started going to a Suboxone clinic after

meeting Ms. Hayworth and realized he wanted to be involved in a serious relationship

with her. Mr. Greenwell said Mr. Payne changed positively after becoming a father. Mr.

Greenwell acknowledged that Mr. Payne sometimes sold drugs.

Mr. Greenwell testified that Mr. Curd had not been to the house where Mr. Payne

and Ms. Hayworth lived anytime close to when the crimes occurred. Mr. Greenwell said,

though, Mr. Curd had been to the house enough to be familiar with it.

Bradley Osborne testified that he and his wife, Tara Osborne, were friends with

the victims. He said he had been aware of a Facebook dispute between Jenelle and

people close to him, although he did not identify with whom, other than his wife. He was

aware his wife had gone to court relative to proceedings against Jenelle. He said Ms.

Hayworth did not go to court with Ms. Osborne. Mr. Osborne said Mr. Payne told him

about a couple of confrontations Mr. Payne had with the Defendant. Mr. Osborne said

that the Defendant confided in him about things Jenelle posted on the Internet and that

the conversation could have occurred before November 2011. Mr. Osborne was unaware

of Mr. Payne‟s and the Defendant‟s having agreed to end their feud.

Mr. Osborne testified that he and Mr. Payne carpooled to work together. He said

that his custom was to leave his house around 6:20 to 6:25 a.m. and to drive to Mr.

Payne‟s house. Mr. Osborne said that they typically left Mr. Payne‟s house around 6:30

to 6:35 a.m. and that they had to be at work by 7:00 a.m. Mr. Osborne said that on

January 31, 2012, he waited outside the victims‟ house for a few minutes, but Mr. Payne

did not come outside. Mr. Osborne tried to call Mr. Payne and to send him a text

message, but Mr. Osborne‟s cell phone was not working. Mr. Osborne went to the

sliding glass door and went into the house, calling out for Mr. Payne but receiving no

response. Mr. Osborne said he went to a telephone in the living room and called Mr.

Payne‟s cell phone to try to wake Mr. Payne. Mr. Osborne said he could hear an alarm

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from a clock that sounded like it was in the victims‟ bedroom. He thought he heard a

baby whimper, but he was unsure. Mr. Osborne said he did not go to the bedroom out

of respect and did not think anything unusual had happened. He left and went to work.

Roy Stephens testified that he and his wife, Linda Stephens, were separated at the

time of the homicides and that he had stayed at the victims‟ house on occasion during the

separation. He received his mail at the victims‟ house. On January 31, 2012, he and Ms.

Stephens went to the victims‟ house for Mr. Stephens to retrieve his mail. He said that he

arrived around 10:10 a.m. and that he saw the victims‟ cars outside the house but did not

see Mr. Payne‟s father‟s car. Mr. Stephens went in through the sliding door at the back

of the house and yelled the victims‟ names but did not receive an answer. He suspected

something was not right, and when he went to the victims‟ bedroom, he found Mr.

Payne‟s body. Mr. Stephens went outside to tell Ms. Stephens to call 9-1-1, then went

back into the house. He found Ms. Hayworth‟s body in another bedroom. The victims‟

infant son was in Ms. Hayworth‟s arms, and Mr. Stephens took the child from her arms.

Dr. Karen Cline-Parhamovich, an expert in forensic pathology, testified that after

performing the victims‟ autopsies, she determined that Mr. Payne‟s cause of death was a

gunshot wound to the face and sharp force injuries to the neck. She thought the gunshot

wound would have occurred first. She said that he did not have any defensive wounds

but that he had a shoulder wound that might have been caused by “overshot” of a

weapon. Dr. Cline-Parhamovich said Ms. Hayworth‟s cause of death was a gunshot

wound to the head. She did not observe any defensive wounds on Ms. Hayworth‟s body.

Tennessee Bureau of Investigation (TBI) Agent Scott Lott testified that he

responded to the victims‟ home. He said that both victims appeared to have died

violently and that Mr. Payne, who was dressed in his underwear, appeared not to have

dressed. He said Ms. Hayworth‟s body was in another bedroom. He said the shotguns

and a .22-caliber pistol at the scene did not appear to have been used to fire the shell

casings the police found at the scene, which he said were .38-caliber or nine-millimeter

casings. Agent Lott said they recovered a small quantity of methamphetamine and a

credit card, which could have been used to make a “line” to snort the methamphetamine,

on a piece of furniture in the room in which Ms. Hayworth‟s body and the infant were

found. He said they also recovered a pipe, and he thought an analysis showed it

contained methamphetamine and codeine residue. He said they found prescription

medication at the victims‟ house.

Agent Lott testified that Mr. Payne‟s cell phone records showed that Calvin

Williams and Matthew Richardson, friends of Mr. Payne‟s, called Mr. Payne throughout

the evening of January 30, 2012. Agent Lott said Mr. Williams and Mr. Richardson

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cooperated with the investigation. Agent Lott said that when Mr. Williams was

interviewed, Mr. Williams stated that Mr. Payne sold some of the medication Mr. Payne

received at a Suboxone clinic and that Mr. Williams bought eight to ten Suboxone strips

from Mr. Payne. Mr. Williams stated that Mr. Payne sold other pills, but Mr. Williams

did not know Mr. Payne‟s source of the other pills. Mr. Williams said that he and Mr.

Richardson attempted to arrange a meeting with Mr. Payne on the evening of January 30

but that Mr. Payne sent a text message at 11:30 p.m. stating that he was tired and was not

going to meet them.

Agent Lott testified that the investigation showed that the only people with whom

the victims had conflicts were the Defendant, Barbara, and Jenelle. Agent Lott said he

and Chief Deputy Joe Woodard spoke to the Potters at their home on February 1, 2012.

He said Chief Deputy Woodard recorded the conversation.

The recording of the February 1, 2012 interview of the Potters was played for the

jury. In it, a male stated that they were shocked by the victims‟ deaths and learned of

them on the news. Two women‟s voices are heard on the recording. One female

(“Female 1”), whom we infer from the context of her statements was Jenelle, stated that

the victims had been unhappy she had prevailed in a court case she won against them that

pertained to harassment of Ms. Thomas and Ms. Hayworth but that they did not have

problems afterward. Female 1 said that her social media account had been hacked, that

“they” made three Facebook profiles using her photograph, and that her friends “up

north” had been harassed online. She said she posted, “Bill, Billy, and Lindsay,3 please

leave me alone.” Female 1 said she knew “they” would kill her parents to get to her. She

denied stating on the internet that she wished “they” were dead. Female 1 said that

around the time of the hearing in the harassment case, “Lindsay” created a fake email

address and stole Female 1‟s password. Female 1 said Jamie Curd helped her obtain a

new Facebook password so “they” would not hack her account.

Female 1 said “Lindsay” stated in court that “Lindsay” hoped Female 1 would die.

The male corroborated that this occurred. Female 1 said men had threatened to rape her.

Female 1 said she was home alone when someone kicked in the garage door.

Female 1 said Mr. Payne stated falsely that Mr. Curd sold drugs and that Female 1

drove. She said she did not drive. She said Mr. Payne and Mr. Curd had a disagreement

and that Mr. Payne was upset with Mr. Curd because Mr. Curd went to court with the

Potters relative to the harassment case.

3

She was not asked to clarify if she referred to Lindsay Thomas or Lyndsey Potter. Our spelling of the name should

not be interpreted as a specific reference to Lindsay Thomas, rather than Lyndsey Potter.

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Female 1 said she had been friends with Tracy Greenwell about five years earlier.

She said she had gone with Tracy to a party at the house the victims shared with Mr.

Payne‟s father but felt uncomfortable about some things that were occurring and waited

in the car. Female 1 said that people were drinking and that drugs, guns, and knives were

present. The male said the gun that Female 1 described was an AK-47. She said

“Lindsay” had cursed at her at a store for having a food stamp card.

Female 1 denied that Mr. Curd was her boyfriend. She said she had health

problems and ended up in the hospital after Mr. Payne shot at their house one night. She

said that someone shot at Mr. Curd‟s house and that Mr. Curd stated he had seen Mr.

Payne‟s truck.

A second woman (“Female 2”), whom we infer from the context of her statements

was Barbara, provided corroborative details and confirmation relative to some of the

statements of the male and Female 1.

Agent Lott testified that the authorities interviewed Jamie Curd one or two days

after speaking with the Potters at their home, that Mr. Curd denied involvement. They

interviewed Mr. Curd again on February 6. Agent Lott said that during the second

interview, Mr. Curd called the Defendant, and the conversation was recorded. Agent Lott

said that based upon Mr. Curd‟s statement, in which Mr. Curd said he had been present

for the homicides, and the contents of the call between Mr. Curd and the Defendant, the

authorities drafted arrest warrants for Mr. Curd and the Defendant. Agent Lott said they

went to the Defendant‟s house to arrest him and to execute two search warrants. Agent

Lott acknowledged that Mr. Curd later recanted the statement upon which the warrants

were based. In a third statement, Mr. Curd stated that he had not been present and that

the Defendant told him what happened.

Agent Lott testified that when the authorities went to the Potter residence to arrest

the Defendant, they were aware that the Defendant was usually armed and that numerous

weapons were in the house. Agent Lott said that when they advised the Defendant he

was under arrest, the Defendant‟s right hand moved quickly to the Defendant‟s side and

that they stopped the Defendant. The Defendant had a loaded .45 caliber gun holstered

on his right hip. Agent Lott did not know if the Defendant was going to shoot. Agent

Lott said, though, that the Defendant did not resist and was cooperative during the arrest.

Agent Lott testified that after the Defendant was arrested, the Defendant was

interviewed for several hours. The interview was recorded and played for the jury. In the

interview, the Defendant repeatedly denied any involvement and knowledge of who

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committed the homicides. When told that Mr. Curd had implicated him, the Defendant

said Mr. Curd was “throwing [him] under the bus.”

In the statement, the Defendant said his and his wife‟s lives had been threatened.

He said “they” had threatened to cut off Jenelle‟s head. He said “Lindsay” had posted

online that she had a $3,000 bounty on his, Barbara‟s and Jenelle‟s heads. The Defendant

said he had heard people talking about kidnapping Jenelle from a bathroom, taking her to

a field, raping her because she was a virgin, and murdering her. The Defendant said Mr.

Payne had claimed Jenelle stated that Mr. Payne was a bad father. The Defendant said

“Linsday” created three fake Facebook profiles of Jenelle.

The Defendant said in the statement that he had been to the victim‟s house once to

take them some wood he was unable to use. He said Mr. Payne had been to the Potter

residence three times.

In the statement, the Defendant denied that Mr. Curd was in love with Jenelle and

said the matter had been “straightened out a long time ago.” He said that Jenelle was

thirty years old and that Mr. Curd could not take care of her. He denied that Mr. Curd

committed the crime to prove to the Defendant that Mr. Curd could take care of Jenelle.

The Defendant said in the statement that he and his truck had been at home until

6:00 a.m. on January 31, 2012. At 6:00, he left to go to the Veterans‟ Administration

(VA). He said his neighbors who said Mr. Curd‟s car was at his house that day were

incorrect. He said Mr. Curd might have been at his house on the night of January 30 and

might not have left until 1:00 a.m. on January 31.

In the interview, the Defendant was confronted with the telephone call between

Mr. Curd and himself that occurred during Mr. Curd‟s second interview and in which Mr.

Curd asked if the Defendant got rid of everything from “Billy‟s.” The Defendant denied

knowing what happened and said he did not get rid of anything. In the telephone call, the

Defendant told Mr. Curd that no reason existed for anyone to point fingers at Mr. Curd

“just because Bill was pulling the s--- he did.” The Defendant said in the call that Mr.

Payne was involved in drugs and the homicides looked like a “drug deal gone bad.”

The Defendant acknowledged in the interview that he had several weapons and

types of ammunition at his house. The Defendant eventually stated that Jenelle and

Barbara did not know what he had done. He was permitted to call Barbara, and the call

was recorded. In the call, the Defendant told Barbara that he was involved and that he

“did it.” He said he did it because of what “they” tried to do to her and Jenelle.

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Agent Lott testified that immediately after the Defendant‟s interview, Agent Lott

made a list of the Defendant‟s medications. He said that although he knew the Defendant

had been prescribed oxygen and medications and was a patient at the Veterans

Administration Hospital, Agent Lott did not have any concerns that the Defendant, who

had hearing loss, had been unable to understand what was discussed in the interview.

Agent Lott was unsure if the Defendant wore his hearing aids during the interview, but

Agent Lott described the Defendant as lucid and said the Defendant seemed to

understand the questions. Agent Lott said that although the Defendant had some

difficulty hearing, the Defendant was able to hear “pretty well” during the interview.

Agent Lott said the Defendant asked the officers to repeat things if necessary. Agent Lott

acknowledged that the Defendant did not use supplemental oxygen during the three and

one-half hour interview.

Agent Lott testified that while the Defendant‟s interview was taking place, other

officers executed search warrants for the Defendant‟s house and truck. Agent Lott said

bags of shredded papers were collected from the Defendant‟s truck. They were analyzed

and pieced together by a TBI employee over a period of about one month. The

documents were received as an exhibit. Agent Lott identified two email addresses in the

documents as belonging to Barbara and Jenelle. In the assembled documents, the author

and recipient were not always specified. Some of the messages expressed dissatisfaction

and factual specifics related to the conflict between the Jenelle and the victims,

“Lindsay,” and “Tara.” Some of the messages appear to be between Barbara and

“Chris.” Read in context, some of the messages appear to be reproductions of

communications that originated from other accounts.

In one of the messages, the unidentified author stated to “Chris” that “Bud” was

mad and the author was “100% behind whatever happens.” The author stated that “[y]ou

guys” should meet when they were ready. The author stated that Bud might have his

“ID” by then and might be able to use “CIA guns, etc. for his protection [and to] get the

job done.” The author stated, “They all need to go & the ones left need to be given a big

scare as they watch & wonder „am I next?‟” The author stated that Bud knew the area

well and that Bud had said he would help Chris. The author stated that Bud was “fed up

& ready.” Agent Lott testified that he was unable to identify a person named Chris who

was associated with the CIA and this case. Agent Lott said that Jenelle‟s sister was

named Christy and that he spoke with a high school classmate of Jenelle‟s named Chris

who was a law enforcement officer in another state but determined that the classsmate

was not the person for whom they were looking. Agent Lott said he never spoke to

anyone from the CIA who acknowledged any association with the Potter family.

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In another message, the unidentified author told Chris not to let anyone see the

“list.” The author instructed Chris to continue scaring “these 3 girls w/guns,

etc&breaking their cars[.]” The author encouraged Chris to make things hard for “them”

because “they” were making life hard for “us.”

In a message from Chris to “Barbie,” Chris stated that “they” were scared of Chris

and that Chris wanted to kill all of them now. Chris stated that “Lindsay” and “Tara”

started the dispute because they saw Jenelle using food stamps. Chris stated that Chris

had a new boss, with whom Chris planned to talk about having someone call “Buddy.”

Chris stated, “He‟s in the computer they can look him up and he comes up CIA so he can

be called for anything.” Chris stated that Chris was sorry for Barbie and Jenelle.

In an April 4, 2011 message from an unidentified person to Chris, the author stated

that Buddy was “raising hell today.” The author stated that Buddy had been told he was

activated in the CIA and was waiting for an “ID card” so Buddy would not have to bother

“you guys” and that they were not doing their job correctly. The author stated “Mike”

was angry and reprimanded three individuals. The author said “Bud” told unidentified

individuals that he was tired of the harassment, particularly “Jen” and the author. The

author asked if Chris had threatened “them physically anymore” and stated that “Billie,”

“Tara,” and “Lindsay” needed to die. The author stated, “They are doing wrong. And

Mike, of course, if he set you up,&he bought his death ticket.” The author stated Mike

questioned Bud about Bud‟s CIA work. Agent Lott testified that “Mike” in this message

referred to Sheriff Mike Reece and that another name in the message referred to a

Sheriff‟s Department investigator.

In a message without identification of the sender or the recipient, the author stated

that he or she was going to kill “Lindsay,” “Bill,” and “Billie.” The author stated that he

or she was going to “get” Lindsay‟s car again and would do something much worse. The

author stated that “Buddy is CIA” and that “buddy can kill thembefore [sic] they will so

no worries there[.]” The author stated that the author was happy that Jenelle was happy.

In a message from Barbie to Chris, Barbie stated that if Chris did not “get them

w/Bud,” God or someone would. Barbie stated that men from the CIA had been in court.

Barbie referred to Chris having discovered a “facebk [sic] Tara started on Jenelle.”

In a message with an unidentified sender and recipient, the author stated that Bud

had given up and would not work for “them” if they would not give him an ID. The

author stated that the recipient‟s “CIA guys aren‟t really good at their jobs” because Bud

had never been treated that way.

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Another message states that the unidentified sender heard that the unidentified

recipient had been on Bulldog Road “watching them all day.” The sender told the

recipient to do whatever the recipient had to do if the recipient felt “alright with it.”

In a message from Jenelle to “mom” dated “May 5,” Jenelle stated that “they”

were using “Bill‟s” cell phone and that they were being “hateful f------ tonight.” Jenelle

stated that nothing scared her and that she guessed she “just need[ed] to shoot her 4 times

in the f------ head and a few other times, and then she will be gone.” Jenelle stated that

she would “get the d--- f------. Pay back. For what they have done to you and me and a

few of the guys.” Jenelle also stated, “Let Buddy do his thing that‟s the best anything.”

In a message from an unidentified sender to Chris, the author told Chris that Bud

waited all night but “[t]hey did not show.” The author stated that “all of them” were

going to have to go to prison or die. The author stated, “We just can‟t take it anymore,”

and predicted that the author or Jen would end up back in the hospital. The author stated

that Jenelle was trying to “keep her sugar down.” The author stated that Bud wanted a

phone number for “Dugger,” whom Bud knew from “serving together in Nam.” The

author stated Bud wanted “to help you do „things.‟”

In a message dated November 14, 2011, the unidentified sender stated to an

unidentified recipient that the sender‟s boss “has my back” if “Bill and them want to act

like they do.” The author stated that Bill did not take care of his children and hoped that

“they” could not have more. The author stated that “Bill and them are really trying to

kill” Jenelle and that Bill was mad at “Jamie.”

A message sent to and from Barbara‟s email address and dated March 12, 2011,

appears to be a summary of a previous communication. The author stated he or she was

glad the recipient was “watching out for us.” The author stated he or she was glad Bud‟s

ID was coming.

A message dated March 30, 2011, which has both Jenelle‟s and Barbie‟s names at

the top stated that the author pulled a gun on Tara, told Tara she needed “to worry about

you d--- f----- life,” and told Tara the author could have Tara‟s baby taken. The author

stated that he or she was trying to get Buddy‟s ID more than ever.

An undated message from an unidentified sender to Chris stated that the author did

not know why the CIA had not contacted Buddy, that Buddy was “in the computer as

CIA,” and that the author would try to determine the situation with Buddy‟s “card.” The

author stated that “we” told the police to stop driving by the recipient‟s house and not to

worry because “they will be taken care of.” The author stated that he or she wanted to do

-12-

what the author was “down here to do. To get Chrisite [sic] and then the cops and these‟s

f------ and the girls. W---- bag no good s----.” The author stated that Jenelle should not

have any more issues and that two guys who worked with the author were going to take

over the author‟s job.

An undated message from an unidentified sender to Chris stated that Bud was

willing to work with and teach Chris to help ease Chris‟s concerns. The author stated

that Bud had been trained in “CIA work & recon, black ops, etc.” and that Bud was ready

to help and “go at it with” Chris. The author suggested a place for Chris and Bud to meet

where no one would watch them.

An undated, handwritten note stated that Bud and Jamie had a “good time &

session last Thursday” shooting and cleaning guns and that “we” ate together and worked

with a computer.

A January 25, 2012 message from Chris to an unidentified person stated that Chris

hoped “Buddy and him get them and ASAP would be great.” Chris stated that “Lindsey”

had moved in with “Tim” and that Chris hoped Lindsey died before her birthday on

January 28. Chris stated that he or she “made sure Jamie got home from work” the day

Chris passed Jamie in town. Chris stated Bill had been “saying s--- on the phone to

others.”

An April 3, 2011 message from Jenelle stated, “I would love to meet Buddy,” and

that she was trying to determine where Lindsay lived.

An “April 1” message from Jenelle stated that she was upset but “got” Lindsay

today. Jenelle said Lindsay was “hurt a little” but that Lindsay‟s car “will not be ready

for a while.” Jenelle stated her desire to kill Lindsay.

A “4/21/201”4 message from Jenelle to Barbara with the subject “Chris” stated

that Lindsay had been pursued and ticketed by police. Jenelle expressed hate for Bill and

said Bill had no idea what Lindsay and Billie would do but would learn the hard way.

Jenelle stated that people drove past the recipient‟s house and that she would put the

people back in hell. Jenelle asked if Buddy went to get a report and to determine whether

“they took a report on Jenelle up there” relative to an incident in a store.

4

The date on this document, which was reconstructed after having been shredded, is incomplete.

-13-

An undated message from Jenelle to an unidentified recipient stated that Jenelle

did not know the recipient‟s real name and that they were using “many names/codes.”

Jenelle said Bill‟s truck and Lindsay‟s car were driving slowly past Jenelle‟s house.

Jenelle said it would be “too bad for them” if she or “dad” got a “chance.” She said “J”

was going to look at the computer regarding deleting “more about dad so that‟s good.”

An April 22, 2011, message sent from and to Barbara‟s email account and titled

“FB-Barb to Chris 4/22” stated that the author thought Jenelle was going to die “with all

this crap.”

An undated message with an unidentified sender and recipient stated that the

author was undecided about whether to let Lindsay live. The message referenced killing

“Bill and Billie and that d--- baby” and some police officers. The author stated that he or

she was getting a sense of the daily routines of an unidentified female and her “BF.” A

message on the same page below this message from Jenelle advised the recipient to carry

his or her guns at all times.

An “April 3” message from Chris expressed concern for Jenelle and whether she

would hurt herself. Chris stated that “they” would be sorry and that “I will kill.”

An April 6, 2011, message from Barbara stated that Lindsay had bragged that she,

Tara, and Billie were going to “get Jenelle” tonight. The author stated, “Buddy is in

„Vietnam Jungle Recon Mode.‟” The author stated that Chris Campbell took Jenelle “off

of his Facebook.”

An undated message without identification of the sender or recipient stated that the

author was at a “red point. KILL KILL KILL and don[‟]t worry about them.” The author

wished that Buddy had his ID because he would be able to work with “us.”

Johnson County Chief Deputy Sheriff Joe Woodard testified that during the

execution of a search warrant, a spiral notebook was recovered from a computer room at

the Defendant‟s house. Chief Deputy Woodard said the notebook contained what

appeared to be passwords, memoranda about Topix, and names. He said that during the

search, Barbara Potter began ripping some papers, which he took from her. He said the

papers included photographs of Ms. Hayworth, Ms. Thomas, Ms. Potter, and an unknown

man. Chief Deputy Woodard said several guns were collected during the search at the

Defendant‟s house.

Chief Deputy Woodard testified the Defendant, Barbara, and Jenelle made several

complaints to the Sheriff‟s Department relative to people hacking their emails and about

-14-

Facebook. He said they also complained about telephone calls involving Ms. Hayworth,

Ms. Thomas, and Ms. Osborne. He was unaware of the Potter family‟s being the victims

of vandalism or assault involving “that group of people.”

A recording made by jail personnel of a telephone call between the Defendant and

Barbara during the Defendant‟s pretrial detention was played for the jury. In the call,

Barbara stated that she and Jenelle were “cleaning up” and getting rid of junk. The

Defendant stated that he had planned to take items to the landfill. Barbara stated that she

knew the Defendant had loaded his truck. She mentioned something “shredded,” but her

full statement is unintelligible on the recording in the record. The Defendant asked if the

police had taken everything that had been in his truck, and Barbara responded

affirmatively.

The Johnson County Sheriff and a deputy sheriff testified that the Defendant made

statements to them before the homicides about having worked for the Central Intelligence

Agency (CIA). The sheriff said the Defendant claimed to have been awaiting further

orders. Agent Lott testified that during Mr. Curd‟s interview, Mr. Curd asked if the CIA

was present.

TBI Special Agent Forensic Scientist Lisa Wessner, who led the crime scene

response team that processed the Defendant‟s truck, testified that five bullets and four

pieces of paper were recovered from the center console. She said the papers appeared to

be printed from Facebook or MySpace pages.

TBI Special Agent Forensic Scientist Steve Scott, an expert in firearms

identification, testified that the bullets recovered from the Defendant‟s truck were two

different brands and that all were .38-special caliber lead bullets. He said bullets of this

caliber could be fired from .38 special or .357 magnum weapons. He said that all of the

bullets had scratches, or tool marks, on the sides and that if they were fired from a gun,

these areas would not come into contact with the firearm. He said that the markings were

not uniform, as they would be if made by a machine, and that they were “after market”

modifications which would not have been created by the manufacturer. He referred to

the bullets with the alterations as a “poor man‟s hollow point” because the alterations

were used to make the bullet expand upon striking a target.

Regarding two fired bullets recovered at the scene, Agent Scott testified that the

bullets were made by different manufacturers. His report, which was received as an

exhibit, stated that the fired bullets were “38/357 caliber, lead bullets.” He said that

“after market tool marks” were visible on one of the bullets and that he could not

determine if the other one contained such marks because the relevant area of that bullet

-15-

was missing. He had no opinion regarding whether the two bullets were fired from

different guns. He said that they could have been fired from the same gun, with one

bullet being slightly undersized for the gun, or they could have been fired from different

guns. He said an unfired bullet from a bedroom in the victims‟ house had similar

markings and was likely the same type, design, make, and manufacturer as the less intact

fired bullet.

Agent Scott testified that of the guns recovered from the Defendant‟s house, six

could have fired the spent bullets found at the scene, although he was unable to identify

characteristics from which he could conclude that they were fired from any of the guns.

Christie Groober testified that she was the Defendant and Barbara‟s daughter and

Jenelle‟s sister. Ms. Groober said she was estranged from her family. She said Jenelle

had auditory processing disorders, but she did not think Jenelle was “borderline

retarded.” She agreed that Jenelle functioned at the level of a teenager and that Jenelle

did not understand joking and took things seriously that were not meant that way. Ms.

Groober said Jenelle graduated from high school after completing special education

classes. Ms. Groober said her parents had always coddled Jenelle. Ms. Groober said that

the Defendant had serious medical issues, including several that resulted from a 70' fall at

a construction site that occurred when she was an infant, and that he had been unable to

work since the fall.

Ms. Groober testified that she was familiar with Barbara‟s handwriting and was

less familiar with Jenelle‟s handwriting. When she was shown the photographs Chief

Deputy Woodard identified as the papers Barbara had tried to rip during the search of the

Potter residence, Ms. Groober identified some of the handwriting as belonging to Barbara

and Jenelle.

Ms. Groober testified that the Defendant collected guns. She said that her family

shot guns together and that the Defendant took her target shooting when she was

younger.

Jerry “J.D.” Winebarger testified that he met the Defendant and the Defendant‟s

family when Mr. Winebarger worked at Food Lion in 2011 and 2012. Mr. Winebarger

said he and the Defendant discussed various topics. Mr. Winebarger said that the Potters

talked about the victims frequently and that the Defendant disparaged the victims. Mr.

Winebarger stated that a couple of months before the victims were killed, the Defendant

said that if the Defendant had the chance, he was going to put a bullet through Mr.

Payne‟s head. Mr. Winebarger said he did not think, at the time, the Defendant was

-16-

serious. Mr. Winebarger said he was aware of a disagreement between the Defendant

and Mr. Payne that occurred in a parking lot.

Mr. Winebarger testified that a few days after the homicides, the Defendant and

Jenelle were in the store and that the Defendant mentioned the homicides. Mr.

Winebarger stated that when he said he did not know how someone could commit the

crimes while Ms. Hayworth held her child, the Defendant and Jenelle gave him a “death

look.” Mr. Winebarger explained, “[I]f looks could have killed, I‟d been dead then[.]”

Mr. Winebarger testified that he did not know the Potters other than from seeing

them at the store. He said he went to school with Ms. Hayworth but had no other

connections to anyone involved.

David “Calvin” Williams testified for the defense that Mr. Payne told him

regularly about Mr. Payne‟s problems with the Potters. Mr. Williams said Mr. Payne was

likeable and had no enemies other than the Potters. Mr. Payne had shown Mr. Williams a

binder containing printed copies of things that had been said about Mr. Payne and Ms.

Hayworth on Facebook.

Mr. Williams said that he had been present at Larry Potter‟s store for a meeting of

“all of these people.” He identified those present as Matthew Richardson, Mr. Payne,

Jenelle, Barbara, and the Defendant. Mr. Williams said that he stayed in the car and did

not hear everything. He said Jenelle, Barbara, and Mr. Payne talked at first and that the

Defendant became involved later. Mr. Williams said Jenelle and Barbara were

“belligerent” and that Mr. Payne was “agitated” but not angry. Mr. Williams later said

this occasion was the only time he had seen Mr. Payne mad. Mr. Williams said Mr.

Payne tried to show the binder to the Defendant because the Defendant and Barbara did

not believe Jenelle had written the things reflected. Mr. Williams said it appeared the

Defendant and Mr. Payne resolved their differences. Mr. Williams said that from what

he gathered, the Defendant and Mr. Payne were going to contact each other if an issue

arose. Mr. Williams said that afterward, Mr. Payne no longer mentioned any problems

with the Potters. Mr. Williams said he had been around the Defendant daily.

Mr. Williams testified that on the evening of January 30, 2012, he was at a mall

looking at collectible coins with Mr. Richardson and Chris Farrow. Mr. Williams had

understood that Mr. Payne might get some pills that night and said that he and Mr.

Richardson called Mr. Payne several times about the pills and coins. Mr. Williams

planned to see Mr. Payne on January 31. Mr. Williams said that he occasionally bought a

Suboxone strip from Mr. Payne for $15 to $20 but that he did not know what Mr. Payne

charged for Lortab pills.

-17-

Mr. Williams testified that he met Mr. Curd once or twice. Mr. Williams said Mr.

Curd and Jenelle dated. Mr. Williams said Mr. Payne had been hurt over the Facebook

harassment because Mr. Payne thought Mr. Curd “was family.”

Matthew Richardson testified that he and Mr. Payne worked together and that he

bought Suboxone strips and Lortab pills from Mr. Payne. Mr. Richardson said that he

had been in communication with Mr. Payne on the evening of January 30, 2012, about

drugs Mr. Payne expected to receive that night. Mr. Richardson said he had been in

Bristol with Mr. Williams and Mr. Farrow.

Mr. Richardson testified that he knew about Mr. Payne‟s problems with the Potters

but that he was unaware of a meeting at Larry Potter‟s store involving Jenelle, Barbara,

and Mr. Payne in the summer. Mr. Richardson said he had been present when the

Defendant and Mr. Payne met at the store in late December 2011 or early January 2012,

although he acknowledged the meeting could have been in late November. He said that

he and Mr. Williams had been at Mr. Payne‟s house and that Mr. Hayworth asked them

to go to the store with him to ensure Mr. Payne did not “get himself in trouble.” Mr.

Williams said Mr. Payne took a binder of Jenelle‟s Facebook comments with him to the

meeting. Mr. Williams said that the Defendant, Barbara, Jenelle, Mr. Curd, and Mr.

Payne were present. Mr. Richardson said that he was close enough to hear the

conversation and that the parties bickered. Mr. Richardson said that, ultimately, the

Defendant told Mr. Payne to call him if anything else occurred and that Mr. Payne

seemed satisfied with the resolution. Mr. Richardson was unaware of Mr. Payne‟s having

any problems with the Potters between the meeting and Mr. Payne‟s death. Mr.

Richardson agreed he told Agent Lott that he was unaware of Mr. Payne‟s having

problems with anyone other than the Defendant and Jenelle. Mr. Richardson

acknowledged his prior written statement, in which he admitted buying drugs from Mr.

Payne.

Sarah Wright, a friend of Ms. Hayworth‟s, testified that although Mr. Payne sold

drugs, he did not have a drug “operation.” She said Ms. Hayworth and Mr. Payne‟s

infant slept in their bedroom and identified photographs of the room in which Mr.

Payne‟s body was found. Ms. Wright said Ms. Hayworth and Mr. Payne talked about

how Jenelle would not leave them alone. Ms. Wright said that she had been at the

victims‟ house when Jenelle called repeatedly and that Ms. Hayworth eventually took the

telephone off the hook to prevent further calls. Ms. Wright said the harassment bothered

Ms. Hayworth, whom Ms. Wright said did not cause “drama” or fight back.

Dr. Thomas Schacht, an expert in forensic psychology, testified that he reviewed

the Defendant‟s voluminous medical records, spoke with the Defendant once at the jail,

-18-

and spoke with Barbara and Jenelle at the Potter residence. Dr. Schacht said the

Defendant had nineteen health concerns on his “problems list,” which included

pulmonary disease, diabetes, chronic pain syndrome, post-traumatic stress disorder, high

blood pressure, “neurogenic bladder” requiring catheterization several times daily, severe

hearing loss requiring hearing aids, chronic elevated pulse rate, and sleep apnea. Dr.

Schacht said the Defendant had been prescribed a high dose of two types of morphine.

Dr. Schacht testified that the Defendant was treated by the VA for chronic hypoxia

and that a person‟s mental functioning was dependent upon adequate body oxygen levels.

He said hypoxia could affect a person‟s perception, judgment, and decision-making

abilities. Dr. Schacht testified, though, that no specific research showed that oxygen

deprivation made a person more susceptible to suggestions. He said that oxygen

deprivation was associated with impaired judgment, memory, coordination, and ability to

perform calculations. He said oxygen deprivation could cause emotional changes.

Dr. Schacht testified that the Defendant‟s VA medical records included a 2004

record showing that the Defendant had been prescribed oxygen for home use for seven

years. The records also showed that the Defendant continued using oxygen at home until

the time of his arrest. Dr. Schacht said the records reflected that the Defendant‟s oxygen

saturation levels had been extremely low in 2006 and 2009 but that the records did not

reflect a measurement of the Defendant‟s oxygen levels since 2011.

Dr. Schacht testified that Barbara related that she had to help the Defendant

remember his medications. Dr. Schacht said Barbara also monitored the Defendant‟s

oxygen level because the Defendant did not use the oxygen continuously and started to

get “a little goofy” after being off oxygen for a few hours.

Dr. Schacht testified that if the Defendant experienced hypoxia during the police

interview, it would be reasonable to expect the hypoxia had an adverse impact on the

Defendant‟s mental state. He acknowledged, though, that he could not state that the lack

of oxygen affected the Defendant during questioning. He had no opinion whether the

Defendant exhibited proper judgment and mental abilities during the recorded telephone

call with Barbara that occurred during the police interview.

Dr. Schacht testified that people with hearing loss who did not have hearing aids

withdrew socially. He said such individuals became distressed by not understanding

what was happening. He said people sometimes misunderstood things without realizing

it. Dr. Schacht said that he sat close to the Defendant when he spoke to him and that the

Defendant appeared to understand, although the Defendant sometimes asked Dr. Schacht

to repeat himself. He did not recall if the Defendant wore a hearing aid during their

-19-

conversation. Dr. Schacht said that although he viewed the video recording of the

Defendant‟s police interview, he was unable to determine whether the Defendant wore a

hearing aid during the interview. Dr. Schacht noticed the Defendant‟s turning his head

during the police interview, which Dr. Schacht said would have been something the

Defendant might have done in order to hear.

Dr. Schacht testified that notwithstanding the Defendant‟s post-traumatic stress

disorder diagnosis, the VA records did not reflect that the Defendant received psychiatric

treatment.

Dr. Schacht testified that the Defendant‟s jail records reflected that the Defendant

entered the jail on February 7, 2012, that Barbara brought a box of twenty medications

that included catheters to the jail, that a nurse practitioner made decisions by telephone

approving five of the medications for administration to the Defendant, and that the nurse

practitioner did not approve catheter use until two days later.

The defense recalled Agent Lott, who testified that in October 2012, ten months

after the victims‟ deaths, he became aware of new Facebook profiles for Ms. Hayworth,

Mr. Payne, the Defendant, and Jenelle. He said that the four profiles reflected that all of

the people were friends with each other. He tracked the internet provider addresses to

Mexico but could not determine who created the profiles.

Agent Lott acknowledged that he had not determined whether Brad Osborne

owned any firearms, that he had not examined Mr. Osborne‟s truck for trace evidence,

and that he did not examine Mr. Osborne‟s clothing. Agent Lott said Mr. Osborne had

been upset and cried about his friend‟s death when Mr. Osborne was interviewed a few

days after the homicides. He said Mr. Osborne provided documentation to show that Mr.

Osborne was at work at 6:53 a.m. on January 31, 2012. Agent Lott also acknowledged

that the credit card and pipe recovered at the scene near the drug residue had not been

tested for DNA.

Agent Lott agreed that a machete was visible in a photograph of Mr. Payne‟s

body. Agent Lott agreed the machete was next to Mr. Payne‟s arm but said the machete

was inconsistent with the weapon the police thought had been used to cut Mr. Payne‟s

neck. Agent Lott said no guns that were consistent with a .38-caliber weapon were

located at the scene.

After receiving the proof, the jury found the Defendant guilty of two counts of

premeditated first degree murder. The court imposed two consecutive life sentences.

This appeal followed.

-20-

I

Sufficiency of the Evidence

The Defendant contends that the trial court erred in approving the verdicts because

they were contrary to the weight of the evidence, which, for reasons we will explain, we

will consider as a challenge to the sufficiency of the evidence. The State contends that

the evidence is sufficient to support the convictions. We agree with the State.

The Defendant‟s statement of the issue is, “The trial court erred in approving a

jury verdict which was against the weight of the evidence.” In his argument, however, he

cites to cases involving appellate review of the sufficiency of the evidence to support the

convictions. Tennessee Rule of Criminal Procedure 33(d) provides, in pertinent part,

“The trial court may grant a new trial following a verdict of guilty if it disagrees with the

jury about the weight of the evidence.”

Trial judges exercising their thirteenth juror function are acting as jurors.

“[T]he trial judge and the jury see the witnesses face to face, hear their

testimony, and observe their demeanor on the stand.” Bolin v. State, 405

S.W.2d [768, 771 (Tenn. 1966)]. Thus, proper factors to be weighed by the

trial court include the witness‟ testimony, demeanor, and credibility, all

factors likewise considered by the jury. See State v. Burlison, 868 S.W.2d

713, 719 (Tenn. Crim. App. 1993). The rule calls upon the trial judge to

exercise its role in its traditional capacity.

State v. Dankworth, 919 S.W.2d 52, 58 (Tenn. Crim. App. 1995). An appellate court,

however, may not function as a thirteenth juror. Burlison, 868 S.W.2d at 718-19. The

Rules of Appellate Procedure limit the role of an appellate court relative to findings of

guilt in criminal cases to the question of whether the evidence “is insufficient to support

the findings by the trier of fact of guilt beyond a reasonable doubt.” T.R.A.P. 13(e). In

that vein, the Rules prescribe that “relief may not be granted in contravention of the

province of the trier of fact.” T.R.A.P. 36(a). After a trial court has discharged its

obligation as thirteenth juror and approved the verdict, appellate review requires

“accrediting of the testimony of the witnesses for the state and the resolution of

evidentiary conflicts in favor of the state.” Burlison, 868 S.W.2d at 719 (citing State v.

Grace, 493 S.W.2d 474, 476 (Tenn. 1973)). For these reasons, our review of the

Defendant‟s issue is limited to the question of whether the evidence is sufficient to

support the verdict.

-21-

In determining the sufficiency of the evidence, the standard of review is “whether,

after viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); see State

v. Vasques, 221 S.W.3d 514, 521 (Tenn. 2007). The State is “afforded the strongest

legitimate view of the evidence and all reasonable inferences” from that evidence.

Vasques, 221 S.W.3d at 521. The appellate courts do not “reweigh or reevaluate the

evidence,” and questions regarding “the credibility of witnesses [and] the weight and

value to be given to the evidence . . . are resolved by the trier of fact.” State v. Bland, 958

S.W.2d 651, 659 (Tenn. 1997); see State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).

“A crime may be established by direct evidence, circumstantial evidence, or a

combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see State v.

Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). “The standard of review „is the same whether

the conviction is based upon direct or circumstantial evidence.‟” State v. Dorantes, 331

S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.

2009)).

Relevant to this case, first degree murder is the unlawful, intentional, and

premeditated killing of another. T.C.A. §§ 39-13-201 (2014), 39-13-202(a)(1). In the

context of first degree murder, intent is shown if the defendant has the conscious

objective or desire to cause the victim‟s death. State v. Page, 81 S.W.3d 781, 790-91

(Tenn. Crim. App. 2002); T.C.A. § 39-11-106(a)(18) (2010) (amended 2011, 2014)

(defining intentional as the “conscious objective or desire to engage in the conduct or

cause the result”). A premeditated act is one which is

done after the exercise of reflection and judgment. “Premeditation” means

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

necessary that the purpose to kill preexist in the mind of the accused for any

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

accused allegedly decided to kill must be carefully considered in order to

determine whether the accused was sufficiently free from excitement and

passion as to be capable of premeditation.

Id. § 39-13-202(d). The question of whether a defendant acted with premeditation is a

question of fact for the jury to be determined from all of the circumstances surrounding

the killing. State v. Davidson, 121 S.W.3d 600, 614 (Tenn. 2003). Proof of

premeditation may be shown by direct or circumstantial evidence. State v. Brown, 836

S.W.2d 530, 541 (Tenn. 1992).

-22-

“A person is criminally responsible for the facilitation of a felony, if, knowing that

another intends to commit a specific felony, but without the intent required for criminal

responsibility. . . , the person knowingly furnishes substantial assistance in the

commission of the felony.” T.C.A. § 39-11-403(a) (2014).

Viewed in the light most favorable to the State, the evidence shows that the

Defendant and his family had a lengthy disagreement with the victims and their friends.

Although Jenelle was an adult, she lived with her parents and functioned at the level of an

adolescent, and her parents became involved in the dispute with the victims and their

associates. Jenelle was involved in a harassment case related to Ms. Thomas. Jenelle‟s

and Barbara‟s social media and email messages discussed watching and killing the

victims and the Defendant‟s willingness to help Chris with the task. Barbara‟s messages

indicated the Defendant‟s anger and readiness to do something about the situation.

The Defendant told Mr. Winebarger that the Defendant would put a bullet through

Mr. Payne‟s head if the Defendant ever had the opportunity. Both victims were shot in

the head, each by a single bullet. Bullets found in the Defendant‟s truck were consistent

with the caliber of fired bullets found at the scene. One of the fired bullets from the

scene and the five bullets from the Defendant‟s truck had after-market alterations

designed to inflict more damage upon striking a target.

Facebook and Topix posts bearing Jenelle‟s name made disparaging statements

about Ms. Thomas and Ms. Hayworth. Documents containing email and social media

messages relative to the desire to kill the victims and the Defendant‟s willingness to help

were shredded and found in the back of the Defendant‟s truck shortly after the homicides,

and the Defendant and Barbara discussed that the Defendant had planned to take items to

the landfill. Ms. Thomas, Ms. Osborne, and Ms. Hayworth received harassing telephone

calls, and Ms. Thomas attributed the calls she received to Jenelle because they came from

the Potters‟ home telephone number.

Mr. Curd implicated himself and the Defendant in the crimes, although he gave

contradictory statements about his own involvement. In a recorded telephone call, Mr.

Curd asked the Defendant if he had disposed of items from Billy‟s house, and the

Defendant responded affirmatively. The Defendant initially denied involvement and

recounted various alleged threats against his family, but when he was allowed to call

Barbara, he told her he had been involved and that he “did it.” He stated he had done it

because of what “they” tried to do to Jenelle and Barbara.

Although the Defendant argues that the Defendant and Mr. Payne had resolved

their differences, the Defendant cannot overcome the inculpatory statements he made

-23-

about the crimes in the telephone calls with Mr. Curd and Barbara. He argues that these

statements are explained by his hearing loss and hypoxia. Evidence of these conditions

and the possible effects they might have on his conduct was presented to the jury, which

rejected the Defendant‟s theory. As we have stated, the function of an appellate court is

not to reweigh the evidence.

The evidence is sufficient to support the Defendant‟s convictions of two counts of

premeditated first degree murder. We likewise conclude that the evidence is sufficient to

support the Defendant‟s convictions on the alternative theory of criminal responsibility

for the conduct of another. The Defendant is not entitled to relief on this basis.

II

Timeliness of Motion for a New Trial

The Defendant has raised three additional issues: (1) whether the trial court erred

in admitting hearsay evidence as statements of co-conspirators, (2) whether the trial court

erred in denying the Defendant‟s motion for a mistrial due to an absent material witness,

and (3) whether the State‟s use of visual aids during closing argument constituted

prosecutorial misconduct. The State contends that the Defendant has waived these issues

by failing to file a timely motion for a new trial. The Defendant did not file a reply brief

responding to the State‟s waiver argument.

Tennessee Criminal Procedure Rule 33(b) states, “A motion for a new trial shall

be [made] in writing . . . within thirty days of the date the order of sentence is entered.”

The thirty-day requirement is mandatory and jurisdictional and cannot be waived. State

v. Martin, 940 S.W.2d 567, 569 (Tenn. Crim. App. 1997); see Tenn. R. Crim. P. 45(b)(3)

(stating, in relevant part, that a trial court may not extend the time for taking any action

pursuant to Criminal Procedure Rule 33). This court “does not have the authority to

waive the untimely filing of a motion for new trial.” State v. Patterson, 966 S.W.2d 435,

440 (Tenn. Crim. App. 1997). “A motion for a new trial which is not timely filed is a

nullity.” State v. Dodson, 780 S.W.2d 778, 780 (Tenn. Crim. App. 1989). As a result, a

trial court has no jurisdiction to hold a hearing or render a ruling on an untimely motion

for a new trial. See Martin, 940 S.W.2d at 569.

Our review of the record and supplemental record has revealed that the verdicts

were returned, that the court approved the verdict, and that the court imposed life

sentences on October 11, 2013. The court stated that the hearing for determining whether

the sentences would be served concurrently or consecutively would take place on October

29, 2013. No transcript or court minutes reflecting the date of the sentencing hearing

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appears in the record. The record transmitted to this court contains judgments bearing a

“Date of Entry of Judgment” of October 29, 2013, but not bearing the clerk‟s filed stamp.

A motion for new trial was filed on August 12, 2014, and the court heard the motion on

December 9, 2014. The court denied the motion in a written order filed on December 15,

2014.

This court has said that the date a judgment is entered by the court clerk is the date

from which the thirty-day period for filing a motion for new trial begins. See, e.g., State

v. Stephens, 264 S.W.3d 719, 728-30 (Tenn. Crim. App. 2007); see also T.R.A.P. 4(a),

(c). In that regard, “[T]he „file-stamp‟ date provides evidence of when the order of

sentence was entered by the clerk.” Stephens, 264 S.W.3d at 729.

Although the date of entry subscribed onto the face of a written order is evidence

of the date of entry, the term “entry” itself refers to the official placement of an order into

the court‟s minutes. See State v. Byington, 284 S.W.3d 220, 225-26 (Tenn. 2009); State

v. March, 576, 581 (Tenn. Crim. App. 2008); see also T.C.A. § 16-1-106 (2009) (“The

minutes of the court for each day‟s work shall be signed by the judge. The minute book

shall provide a place for the judge‟s signature after the minute entries each day; however,

where the orders of the court are photocopied so that an accurate facsimile of the entire

order and judge‟s signature appears, it shall be sufficient for the judge to sign at the end

of the minute book approving all minutes in the book.”); T.C.A. § 18-1-105(a)(5) (2009)

(creating a duty in the trial court clerk to “[k]eep a well-bound book, in which shall be

entered the minutes of each day‟s proceedings during the session of the court, in the order

in which they are made”).

We note that by agreement of the parties, the trial court ordered a change of venue

from Johnson County to Washington County on August 1, 2013. Tennessee Rule of

Criminal Procedure 21(e)(1), (2) provides that after a change of venue is ordered, the

clerk of the sending court shall provide a complete transcript of the proceedings and

relevant documents to the clerk of the receiving court, who shall enter them on the

minutes of the receiving court. For reasons that are not explained in the record, the

parties‟ motions and pleadings, the court‟s orders, and the judgments continued for over

nine months to be designated with Johnson County captions, and these documents, aside

from the judgments, reflect that the documents continued to be filed with the Johnson

County Circuit Court Clerk before eventually being filed with the Washington County

Circuit Court Clerk. The judgments of conviction were originally entered into the

Johnson County Circuit Court minutes, but those minutes, in apparent non-compliance

with Tennessee Code Annotated section 16-1-106 and 18-1-105, do not reflect the exact

date on which the minute entries were made, although they appear to have been entered

into that court‟s records in October 2013. The Johnson County minute entries of the

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judgments, however, were certified and sent to the Washington County Circuit Court

Clerk.

In order to determine the date the judgments were entered by the Washington

County clerk, we ordered and received a supplemental record which contains the

Washington County clerk‟s certification of the judgments, printout of the record of the

Washington County clerk‟s receipt of the Johnson County judgments, and the

Washington County clerk‟s certificate stating that the judgments are on file in

Washington County. These documents reflect the judgments were filed in Washington

County on May 14, 2014. Because the judgments do not otherwise evince a filing date

and because Washington County was the proper place to file the judgments pursuant to

Tennessee Rule of Criminal Procedure 21, we consider May 14, 2014, the date of entry.

We conclude, therefore, that the Defendant had thirty days from May 14, 2014, to file his

motion for a new trial. We likewise conclude that the motion for a new trial he filed on

August 12, 2014, was untimely. See Tenn. R. Crim. P. 33(b).

Because the motion for a new trial was untimely, the trial court lacked jurisdiction

to consider it, and the trial court‟s erroneous consideration of the motion does not

validate it. See, e.g., State v. Martin, 940 S.W.2d, 567, 569 (Tenn. 1997); State v.

Dodson, 780 S.W.2d 778, 780 (Tenn. Crim. App. 1989). Rule 3(e) of the Tennessee

Rules of Appellate Procedure provides, in part:

[I]n all cases tried by a jury, no issue presented for review shall be

predicated upon error in the admission or exclusion of evidence, jury

instructions granted or refused, misconduct of jurors, parties or counsel, or

other action committed or occurring during the trial of the case, or other

ground upon which a new trial is sought, unless the same was specifically

stated in a motion for a new trial; otherwise such issues will be treated as

waived.

For this reason, our consideration of the Defendant‟s remaining issues is limited to

review for plain error. See T.R.A.P. 13(b), 36.

In reaching this conclusion, we have considered unpublished opinions of this court

which have concluded that, when faced with questions of timeliness of a post-judgment

motion, the motion cannot be treated as untimely if the judgment did not contain a filed

stamp. In State v. Bobby Lee Allen Robinette, No. E2014-01688-CCA-R3-CD, 2015 WL

4745065 (Tenn. Crim. App. Aug. 11, 2015), the defendant pleaded guilty. Judgment

forms were signed by the judge, and the line on the judgment forms marked “Date of

Entry of Judgment” was completed, but the judgments were not stamped filed. Id. at *2.

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Thirty-one days after the “Date of Entry of Judgment” listed on the judgment forms, the

defendant filed a motion to withdraw his guilty plea. Id. Upon appeal of the trial court‟s

denial of the motion, this court considered whether the judgment became final before the

motion was filed and thereby deprived the trial court of jurisdiction to consider the

motion. Id. The panel relied upon Stephens for the proposition that the date the

judgment was filed by the clerk was evidence of the date of its entry by the clerk. Id. at

*3. The panel noted two unpublished decisions that held the “Date of Entry of

Judgment” was insufficient evidence of the date the trial court clerk entered the

judgment. Id. (citing State v. Kenny Kimble, No. W2012-00407-CCA-R3-CD, 2013 WL

3795949 (Tenn. Crim. App. July 22, 2013), and State v. Jeremy Wendell Thorpe, No.

M2014-00169-CCA-R3-CD, 2015 WL 1242964 (Tenn. Crim. App. Mar. 16, 2015)). The

panel then concluded that in the absence of a filed stamp, the defendant‟s motion to

withdraw his plea was timely despite its having been filed thirty-one days after the “Date

of Entry of Judgment” noted on the judgment forms. Id. at *4.

In Kenny Kimble, the judgment form contained a handwritten “Date of Entry of

Judgment” but was not stamped filed. 2013 WL 3795949, at *1. A motion for a new

trial was filed more than thirty days after the Date of Entry of Judgment. Id. The Kenny

Kimble panel ordered supplementation of the record in order to ascertain the date of entry

of the judgment by the clerk, but the supplemental record showed that “no judgment of

conviction or minute entry . . . precisely states the date the judgment was filed by the trial

court clerk.” Id. at *2. The panel said that in the absence of a filed stamp and without

the clerk‟s signature next to the “Date of Entry of Judgment,” it was unable to conclude

that the motion for a new trial had been untimely. Id. at *4.

In Jeremy Wendell Thorpe, the judgment contained a “Date of Entry of Judgment”

but was not stamped filed. 2015 WL 1242964, at *4. The motion for a new trial was

filed thirty-one days after the Date of Entry of Judgment. Id. The panel relied upon the

Stephens and Kenny Kimble decisions in concluding that “because the judgment of

conviction is not marked by any person in the trial court clerk‟s office as to the date it

was filed,” the panel could not determine the entry date of the judgment. Id. Therefore,

the panel reasoned, it could not determine the date from which the thirty-day period for

filing a motion for a new trial. Id. Ultimately, however, the panel disagreed with the

State‟s calculation of the period for filing the motion for a new trial because the State

calculated the deadline for filing based upon the Date of Entry of Judgment but failed to

account for the deadline‟s, as calculated from that date, falling on a Sunday and thereby

giving the defendant an additional day to file the motion. Id. at *4-5. The panel

concluded that the motion for a new trial had been timely filed and considered the merits

of the appeal. Id. at *5.

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The Bobby Lee Allen Robinette and Jeremy Wendell Thorpe panels do not appear

to have considered the trial court clerk‟s minute entries in resolving the question of the

date of entry of the judgments. The Kenny Kimble panel considered the clerk‟s minute

entries, but the entries did not contain the necessary information. In the present case, we

have examined the relevant trial court clerk‟s records and certification, and they establish

that the Washington County clerk entered the judgments in its minutes on May 14, 2014.

We are, therefore, able to ascertain the period within which the motion for new trial

should have been filed.

We note that pursuant to the Rules of Appellate Procedure, “an appeal as of right

by a defendant lies from any judgment of conviction entered by a trial court[.]” T.R.A.P.

3(b) (emphasis added). The notice of appeal must be filed with the trial court clerk

“within 30 days after entry of the judgment appealed from.” T.R.A.P. 4(a) (emphasis

added). “The jurisdiction of the court of criminal appeals shall be appellate only, and

shall extend to review of the final judgments of trial courts in . . . [c]riminal cases, both

felony and misdemeanor.” T.C.A. § 16-5-108(a)(1) (2009). It is the duty of this court to

determine whether jurisdiction exists in every case. State v. Comer, 278 S.W.3d 758, 760

(Tenn. Crim. App. 2008). Consideration of the merits of an appeal in which the record

contains a judgment which neither bears a filed stamp nor is accompanied by evidence of

the date of the clerk‟s entry of the judgment may, in some circumstances, exceed the

jurisdiction of this court. It was for this reason that we ordered supplementation of the

record in the present case to determine the date the clerk entered the judgments in

Washington County. We note, however, that the district attorney general bears the

burden of ensuring that the judgment forms are filed with the court clerk. T.C.A. § 40-

35-209(e)(1) (2014); see State v. Martin Boyce, No. W2012-00887-CCA-R3-CD, 2013

WL 4027244, at *9 (Tenn. Crim. App. Aug. 6, 2013); Kenny Kimble, 2013 WL 3795949,

at *4. Adherence to this requirement by the district attorney general will avoid such

dilemmas in future cases.

III

Admission of Hearsay Evidence

The Defendant contends that the trial court erred in admitting hearsay evidence as

statements of co-conspirators. He argues that the evidence failed to show a conspiracy

among himself, Barbara, Jenelle, or Mr. Curd. The Defendant‟s argument does not

clearly identify the statements he contends should not have been admitted. He refers to

“documents provided by the State,” which we interpret to be a reference to the shredded

and reassembled email and social media messages. We will limit our consideration to

these evidentiary items.

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As we have stated, our review of this issue is limited to consideration of whether

plain error exists. Five factors are relevant

when deciding whether an error constitutes “plain error” in the absence of

an objection at trial: “(a) the record must clearly establish what occurred in

the trial court; (b) a clear and unequivocal rule of law must have been

breached; (c) a substantial right of the accused must have been adversely

affected; (d) the accused did not waive the issue for tactical reasons; and (e)

consideration of the error is „necessary to do substantial justice.‟”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d

626, 641-42 (Tenn. Crim. App. 1994)). All five factors must exist in order for plain error

to be recognized. Id. at 283. “[C]omplete consideration of all the factors is not necessary

when it is clear from the record that at least one of the factors cannot be established.” Id.

In order for this court to reverse the judgment of a trial court, the error must be “of such a

great magnitude that it probably changed the outcome of the trial.” Id.; Adkisson, 899

S.W.2d at 642.

In the present case, the record does not clearly establish what occurred in the trial

court. We note that the Defendant‟s brief relative to this issue fails to provide any

citations to the voluminous record relative to any motions filed and hearings held

regarding the admissibility of this evidence. See T.R.A.P. 27(a)(6) (requiring that an

appellant‟s brief shall contain a statement of the facts relevant to the issues presented

with appropriate references to the record). Upon review of the record, we note a

document filed under seal on September 27, 2013, titled “Motion in Limine Regarding

Admissibility of Statements of Alleged Co-Conspirators,” which addressed the social

media and email documents. The motion alleged that the State had previously provided a

document to the defense titled “State‟s Pretrial Brief on Admissibility Issues” and that the

State‟s brief addressed the social media and email documents. The State‟s Pretrial brief

on Admissibility Issues is neither in the technical record nor in the sealed documents.

The Defendant‟s motion in limine requested a pretrial hearing. The Defendant states in

his appellate brief that “the Court agreed to allow the parties to be heard on the issue on

October 1, 2013. The Court made a preliminary ruling on the admissibility of hearsay

statements contained in the documents by redacting them in chambers and emailing them

to the parties at a later date.” No transcript of the hearing or written order of the trial

court relative to the hearing appears in the record. At the trial, the trial court advised the

jury relative to the documents:

Ladies and gentlemen, these documents were submitted to the court

prior to their . . . admission into evidence here today at a hearing several

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weeks ago. The purpose of these documents being submitted to the court to

review is that these documents as they were pieced together contained quite

a bit of material that did not have anything at all to do about this case as

you would imagine in emails. And, so, what the court has done is I have

taken and blacked out all those portions that were placed together that . . .

bear no relevance whatsoever on this case. So, when you see a . . .

document that will be broadcasted to you or – or examined to him and you

see black marks those black marks were placed there . . . by the court to

redact, or cover up those . . . items that have absolutely nothing to do with

this case.

Because the record fails to contain all of the necessary information relevant to this issue,

plain error review is inappropriate, and no further consideration is required. Smith, 24

S.W.3d at 283.

IV

Denial of Motion for a Mistrial

The Defendant contends that the trial court erred in denying his motion for a

mistrial that was based upon the absence of a material witness. During the Defendant‟s

case-in-chief, defense counsel stated during a bench conference that Jamie Stout, who

had been subpoenaed by the defense, had failed to appear. Counsel stated that earlier in

the week, Mr. Stout had notified the defense by telephone that Mr. Stout‟s wife was sick

and that the previous day, Mr. Stout‟s wife was “supposedly in and out of the hospital.”

Counsel said he spoke with the witness the previous evening. Counsel said Mr. Stout

sent a text message to counsel‟s daughter stating he was between the courthouse and

Elizabethton and observed, “[O]f course, he could have walked here by now.” Counsel

said he had been notified by text message a few minutes earlier that the witness was at

Fish Springs. Defense counsel made a motion to hold Mr. Stout in contempt for failing to

appear. The court ordered that a capias be issued and that Mr. Stout be held on a $50,000

bond.

The court inquired whether the defense was going to rest, and defense counsel

responded affirmatively. Counsel stated that Mr. Stout was a material witness and that

Mr. Stout‟s absence had caused “irreparable harm” to the defense. Counsel stated that

Mr. Stout‟s absence was grounds for a mistrial. The court permitted counsel to state on

the record the substance of Mr. Stout‟s anticipated testimony. Counsel stated:

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[W]e had interviewed him on three or four occasions. He said that the

afternoon of the murders that Brad Osborne, who was the young man who

said he went into the house and did not find anybody, or didn‟t check on

anybody, was going to bring the deceased to work, that that afternoon that

he was with this man at his apartment and this -- and this witness told him

that Brad Osborne had told -- excuse me, Brad Osborne was at this man‟s

house, Jamie Stout‟s, and told him that he was in fact – he did find the

bodies. That he called his wife from the house and said what should I do.

And she said get out of there they‟re going to blame you for this, and he

went on to work leaving the child in there crying on the floor with this

woman for hours, or God knows how long it would have been if somebody

hadn‟t come along, we don‟t know. He didn‟t go make a 911 call

anonymously or otherwise, and so, it was our theory that he probably shot

them. So, it fit in, so that would be our argument to be made on that and

that‟s – that‟s what he had told us.

At the close of the offer of proof, the court stated, “All right” and instructed the

courtroom officer to bring in the jury, but the court did not rule on the Defendant‟s

motion for a mistrial. The jury returned to the courtroom, the defense rested, and

arguments were heard.

A trial judge should declare a mistrial if manifest necessity arises. Arnold v. State,

563 S.W.2d 792, 794 (Tenn. Crim. App. 1977). Manifest necessity occurs when “no

feasible alternative to halting the proceedings” exists. State v. Knight, 616 S.W.2d 593,

596 (Tenn. 1981). “The granting or denial of a mistrial is within the sound discretion of

the trial court.” State v. McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996); see

State v. Jones, 802 S.W.2d 221, 222 (Tenn. Crim. App. 1990). This court will only

disturb that decision if the trial court abused its discretion. State v. Adkins, 786 S.W.2d

642, 644 (Tenn. 1990).

We begin by noting the trial court‟s failure to rule explicitly upon the Defendant‟s

motion for a mistrial. Once the motion was made, the court had the obligation to make a

finding whether a manifest necessity existed for a mistrial and if so, to grant the motion.

It is apparent from the record, however, that the court was disinclined to grant the motion.

The Defendant has not explained a theory of admissibility for Mr. Stout‟s

testimony. He likewise has not explained how Mr. Stout‟s testimony would have had any

meaningful impact on the defense, such that no feasible alternative existed except halting

the proceedings.

-31-

Had Mr. Stout testified as defense counsel anticipated, his testimony would have

consisted of Mr. Stout‟s recounting his conversation with Mr. Osborne about Mr.

Osborne‟s observations and actions at the victims‟ house and Mr. Osborne‟s conversation

with Ms. Osborne about what he should do after having found the deceased victims. This

evidence would have been hearsay. See Tenn. R. Evid. 801(c) (hearsay “is a statement,

other than one made by the declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.”) The Defendant has not advanced any

hearsay exception or other basis upon which the rule against hearsay could have been

defeated. See Tenn. R. Evid. 802 (hearsay is inadmissible unless an exception to the rule

applies).

We acknowledge that a defendant‟s due process rights may override a hearsay bar

in some cases. See Chambers v. Mississippi, 410 U.S. 284, 294 (1973). In the present

case, however, the Defendant has not shown that he was deprived of the opportunity to

present a defense in the absence of Mr. Stout‟s testimony. The Defendant‟s theory was

that he did not commit the crime, that his statement was not knowingly and voluntarily

given, that Mr. Curd had lied about the Defendant‟s involvement, and that the police had

rushed the investigation and prosecution. Mr. Stout‟s prospective testimony, at most,

would have reflected upon Mr. Osborne‟s credibility. The import of Mr. Osborne‟s

testimony was to help show the timeline of the crimes. When recalled during the

Defendant‟s case-in-chief, Agent Lott testified that Mr. Osborne was interviewed twice,

that Mr. Osborne was upset and cried about the death of Mr. Payne during the first

interview, and that Mr. Osborne provided documentary evidence to show he was at work

around the same time he testified he had arrived. Nothing in Mr. Stout‟s prospective

testimony about Mr. Osborne‟s statements suggested that Mr. Osborne committed the

crimes. Mr. Osborne and Ms. Osborne testified about their friendship with the victims,

and Mr. Osborne had stayed at the victims‟ house during his own domestic troubles. Mr.

Osborne and Mr. Payne carpooled together to work. Nothing suggests that Mr. Osborne

killed the victims. Likewise, the timeline of the crime, while relevant, was not a critical

inquiry in the case. Mr. Stout‟s prospective testimony was not material to the defense.

Had Mr. Stout complied with his subpoena, the Defendant would not have had a due

process right to offer Mr. Stout‟s testimony notwithstanding its hearsay character.

The Defendant has not shown that a clear an unequivocal rule of law was

breached, that a substantial right of the Defendant‟s was adversely affected, and that

consideration of an error is necessary to do substantial justice. Smith, 24 S.W.3d at 282.

He is not entitled to plain error relief.

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V

Prosecutorial Misconduct

The Defendant contends that the State‟s use, during closing argument, of a visual

aid containing a red border was prosecutorial misconduct which necessitated a mistrial.

The record reflects that the defense objected to the visual aid during the State‟s closing

argument. Defense counsel did not specifically request a mistrial, although he argued

that the jury “has been improperly influenced.” Defense counsel argued that the visual

aid was inflammatory because the red border looked like blood, an argument he repeats

on appeal. After the prosecutor responded that the border‟s color could be changed, the

court overruled the objection. The record does not reflect, though, whether the State

changed the border color, and it does not reflect any further defense objection to the

border color.

The Defendant alleges in his brief that the visual aid consisted of “co-conspirator

statements, outlined in a blood red border, pasted over images of the victims and their

infant son.” The appellate record does not contain the visual aid to which the Defendant

objected. We are unable to conduct appellate review of an issue for which the record

does not contain a fair, accurate, and complete account of what occurred in the trial court.

See Bunch, 646 S.W.2d at 160; Miller, 737 S.W.2d at 558. For this reason, we conclude

that the record does not clearly establish what occurred in the trial court, and plain error

relief is not appropriate. See Smith, 24 S.W.3d at 282.

In consideration of the foregoing and the record as a whole, the judgments of the

trial court are affirmed.

_____________________________________

ROBERT H. MONTGOMERY, JR., JUDGE

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