State of Tennessee v. Charles Lee Warner

05/09/2018

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs October 18, 2017

STATE OF TENNESSEE v. CHARLES LEE WARNER

Appeal from the Circuit Court for Rutherford County

No. F-72670 David M. Bragg, Judge

No. M2016-02075-CCA-R3-CD

The Defendant, Charles Lee Warner, appeals his jury conviction for first degree murder,

for which he was sentenced to life imprisonment. In this direct appeal, the Defendant

alleges the following errors: (1) that the evidence was insufficient to support his

conviction, challenging the evidence establishing his identity and premeditation, and

alleging that his jailhouse confession was not sufficiently corroborated; (2) that the trial

court erred by declaring Robert Strange to be an unavailable witness and admitting his

preliminary hearing testimony; and (3) relying on the rules of evidentiary relevance, that

the trial court erred (a) by permitting a law enforcement officer to testify “regarding the

[D]efendant’s propensity to carry weapons in the past”; (b) by allowing a former

employer to testify about murderous threats made by the Defendant to the victim over a

year prior to the victim’s death; and (c) by prohibiting defense counsel from eliciting

testimony “regarding the potentially violent propensities of others known to the witness

in the homeless community.”1 Following our review of the record and the applicable

authorities, we affirm the judgment of the trial court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which, ROBERT H.

MONTGOMERY, JR., and TIMOTHY L. EASTER, JJ., joined.

Chadwick W. Jackson, Nashville, Tennessee, for the appellant, Charles Lee Warner.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;

Jennings H. Jones, District Attorney General; and J. Paul Newman, Matthew W.

Westmoreland, and John C. Elrod, Assistant District Attorneys General, for the appellee,

State of Tennessee.

1

For clarity and ease of discussion, we have combined and reordered the issues as they are set forth in the

Defendant’s brief.

OPINION

FACTUAL BACKGROUND

In May 2014, the victim’s nude body was found in Lytle Creek in Murfreesboro.

His throat had been slit. Thereafter, the Defendant was charged with the first degree

premeditated murder of the victim, Emad Kadhim Al Azraki, and tampering with

evidence. See Tenn. Code Ann. §§ 39-13-202, -16-503. Ultimately, the tampering with

evidence charge was dismissed, and the Defendant proceeded to a trial by jury on the

murder charge, which was held February 8-11, 2016.

A. Discovery of the victim’s body and search of the surrounding area. On May

12, 2014, Trey Parsley, a construction worker, was standing on a walking bridge

overlooking the greenway area of Lytle Creek when he observed “something kind of

shiny” in the creek. Mr. Parsley had been working in the area installing a gas pipeline

and had noticed a smell near the bridge for several days that had become more pungent

over time. Upon closer observation of the shiny object, Mr. Parsley saw that it was a

nude body face-down in the creek. According to Mr. Parsley, the victim’s hands

appeared to be “out like maybe he was trying to push up or something.” Mr. Parsley also

observed “sticks and stuff” placed across the victim’s back “kind of like in an ‘X’ maybe

. . . to hold him down.” Mr. Parsley returned to the bridge and telephoned 9-1-1. When

the officers arrived, Mr. Parsley showed them how to get to where the body was “because

it was kind of rough to get in in spots.” After the officers turned the body over, Mr.

Parsley noticed a “big gash” across the victim’s neck.

Detective Paul Mongold with the Murfreesboro Police Department (“MPD”)

responded to Mr. Parsley’s call. Detective Mongold determined that the victim’s body

was found in approximately eight inches of water. Detective Mongold also saw “debris,

[] logs, and a board” lying on top of the victim. According to Detective Mongold, it

appeared as though the victim was “pinned underneath those logs” and, based upon the

condition of the body, it also appeared as though it had been in the water for several days.

Collected from the area that day were a blue shirt, a blue and black sleeping bag, a white

tank top, and a cigarette butt.

The victim’s body was later identified by his wife, Lisa Azraki. She testified that

the victim was from Iraq. After viewing several photographs, Ms. Azraki was able to

identify the body based upon certain tattoos—one of which was Ms. Azraki’s first name

with hearts besides it, and another was the name of the victim’s nephew.

On May 15, 2014, Detective Mongold returned to the area, searching along the

greenway and creek behind Dodge’s Store where the victim’s body was discovered. He

discovered an area under some concrete on the greenway with newspapers and cardboard

laid down, believing that may have been where the victim slept. He also found a duffle

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bag containing a Verizon phone card and a torn-up piece of paper with the victim’s full

name on it. On May 21, 2014, Detective Mongold searched the area once more; this time

searching the creek downstream from where the victim’s body was found, thinking that

the current might have carried evidence. He found a white plastic bag with clothes inside

that had been submerged in the water. Inside the bag were a pair of blue shorts, a pair of

camouflage print underwear, a pair of socks, and a white tank top that was torn and

“possibly” had blood on it. The bag was also weighted down with rocks and beer bottles,

according to Detective Mongold.

B. Testimony from witnesses acquainted with the Defendant. John Watson

testified that he was “in [the Defendant’s] company” on the evening of August 23, 2013.2

On this occasion, Mr. Watson observed the Defendant in possession of “three fixed blade

knives on his right side in a sheath.”

Mr. Eric Dill testified that he owned a construction “restoration company,” and

through his work “with a homeless ministry,” had hired three homeless individuals

during the spring of 2013 to work on a project near Chicago, Illinois. The Defendant and

the victim were two of the individuals Mr. Dill had hired. One evening, Mr. Dill and his

crew went out to dinner, and while at dinner, the Defendant and the victim, who were

both drinking, “had an argument that led to a fight.” Mr. Dill maintained that the

Defendant punched the victim and threatened to kill him. Although Mr. Dill saw the

Defendant in possession of a knife that evening, the Defendant did not use the knife

during the argument, according to Mr. Dill.

Because Mr. Dill found the victim to be “very passionate about” the argument

with the Defendant, and because Mr. Dill also believed that the Defendant’s threat was

credible, Mr. Dill decided to send the victim back to Tennessee. So, Mr. Dill drove two

and a half hours each way to Chicago, paid for a bus ticket, and placed the victim on a

bus.

Three or four days later, Mr. Dill and the Defendant returned to Tennessee.

According to Mr. Dill, the Defendant again threatened to kill the victim during the drive

home. The Defendant was not intoxicated at the time he made this threat, but according

to Mr. Dill, the Defendant “[w]as still angry about the argument” and had “been fuming

about [it] for the last several days.”

Sixty-year-old Clifford Wayne Brothers testified that the Defendant “showed

[him] the ropes” when he became homeless, teaching him how to survive outdoors and to

find assistance like “where the Journey Home was, where there’s free food, the Salvation

2

Although Mr. Watson was acting in his a capacity as a police officer when he encountered the

Defendant on August 23, that information was not relayed to the jury.

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Army and that kind of stuff.” Mr. Brothers was eventually able to get his own apartment

in Murfreesboro, where he lived in May 2014. According to Mr. Brothers, the Defendant

“had a job at the diesel college in Nashville” and lived in the college dormitory, but he

would ride his bike or hitchhike to Murfreesboro “every weekend” to visit Mr. Brothers.

The Defendant did not stay with Mr. Brothers but would instead “stay at his campsite.”

However, the Defendant often stored “his gear or equipment” at Mr. Brothers’s apartment

when he would return to Nashville.

Mr. Brothers became “curious” as to why the Defendant would travel such a

“good distance” every weekend. According to Mr. Brothers, the Defendant said that he

came to Murfreesboro to look for the man who “had stolen his bike and cut up his tent”

and that he intended on hurting the man in “some way.” While the Defendant provided a

name and said that the man was from India, Mr. Brothers did not know who the man was

at that time. Mr. Brothers maintained that the Defendant “was infatuated [with] taking

care of this business.” Mr. Brothers advised the Defendant to “just drop it” because that

occurred “almost six months ago,” and they had “different lives now.” Mr. Brothers also

advised the Defendant that he did not “want to hear any more about it.”

Although Mr. Brothers could not recall the exact date, the Defendant eventually

informed him “about midday” on “a Friday afternoon or something” in May 2014 that he

had located the man who had stolen his bicycle. When Mr. Brothers asked the Defendant

what he was “going to do” about it, the Defendant said that he was “going to take care of

it.” Mr. Brothers again advised the Defendant to “give it a rest.” However, according to

Mr. Brothers, the Defendant returned to the apartment later that evening with “all this

blood on him and had a big cut on him.” Mr. Brothers described that the Defendant “had

specks [of blood] all over him” and “some soaking blood in his tennis shoes, his shorts,

all that kind of stuff.” The Defendant also appeared “damp.” In addition, Mr. Brothers

confirmed that the “big cut” on the Defendant’s shoulder was bleeding and that he gave

the Defendant “[g]auze and a piece of tape” to help “him close it[.]” At some point, the

Defendant also told Mr. Brothers that “he had taken care of his business” with “this guy.”

The Defendant told Mr. Brothers that “a truck had hit him on his bicycle,” to

which Mr. Brothers replied, “[W]ell, you took a pretty good lick if it did.” The

Defendant asked Mr. Brothers if he could take a shower, and Mr. Brothers said “sure.”

The Defendant also asked to borrow some clothes. When asked what the Defendant was

wearing that day prior to showering, Mr. Brothers responded, “It was a white tank top

and a blue pair of shorts. I know it had an emblem. I can’t remember the emblem. A

pair of white tennis shoes.” After showering, the Defendant asked for a plastic bag to put

his bloody clothes inside, and Mr. Brothers told him that there were plastic bags

underneath the sink. At this time, according to Ms. Brothers, there were several men

already inside the apartment and George Lee had also arrived. After retrieving a plastic

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bag, “they put the clothes” inside. Mr. Brothers claimed he “didn’t want nothing [sic] to

do with it.” However, Mr. Brothers accompanied the Defendant outside where the

Defendant asked him how long he had “known these guys here” and whether they could

be trusted.

The Defendant, according to Mr. Brothers, then asked Mr. Brothers to help him

look for his glasses on the greenway next to Lytle Creek behind Dodge’s Store, the

location of the bike wreck. Mr. Brothers testified that he agreed, and the two of them

looked for the glasses “[o]n the other side of the creek on the next road over.” Mr.

Brothers brought a flashlight. When Mr. Brothers inquired about how the glasses ended

up twenty or thirty yards away from the roadway, the Defendant replied, “[A]ctually, I

came down that breezeway and hit the railing, and my glasses [flew] across the creek”

into the “brush” on the other side. Mr. Brothers again said, “[M]an, you took a pretty

good lick.” While searching, Mr. Brothers was about to sit down when the Defendant

said that he “wouldn’t sit there” because “[t]hat’s where [he] sat down . . . after the

wreck, and there might be some blood on it, on the grass.” They never found the glasses.

After returning to the apartment from looking for the glasses, Mr. Brothers saw the

Defendant’s bicycle. However, according to Mr. Brothers, the bicycle “[d]idn’t have a

scratch on it,” and he saw “a little piece of wood in the back that he had his tool box or

something on.” Upon entering the apartment, there were “three people standing there,”3

and Mr. Brothers recognized the plastic bag. He told “everybody just get what they need

and go” because he was “ready to go to bed.” They all left. Mr. Brothers did not see the

Defendant again until Sunday afternoon when he returned Mr. Brothers’s tent along with

a tarp that had a crowbar wrapped inside. The Defendant then left for Nashville. Mr.

Brothers claimed that he did not see the Defendant again.

Mr. Brothers was shown a photograph of the bag of clothes recovered from Lytle

Creek. He opined that they appeared to be the same clothes the Defendant was wearing

that day when he arrived at the apartment covered in blood.

On cross-examination, Mr. Brothers confirmed that he spoke with the police on

May 15 and May 16, 2014. However, Mr. Brothers claimed that he had recently had

back surgery and “was on muscle relaxers” when he spoke to the police. After reviewing

a recording of his police interview, Mr. Brothers acknowledged that he told the police

that he refused to help the Defendant go look for the Defendant’s glasses. Mr. Brothers

further agreed that, during the interview, he described the man that the Defendant was

looking for as “either a Mexican or something like that.” Mr. Brothers confirmed that he

told the police that the Defendant did not appear to “be skinned up that bad” when he

3

From the testimony at trial, we can decisively say that two of these individuals were Mr. Lee and Mr.

Strange.

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returned in bloody clothes that evening, although Mr. Brothers never mentioned anything

about a bike wreck to the police.

Mr. Brothers testified that he did not see the Defendant in possession of a weapon

that evening. However, Mr. Brothers “knew [the Defendant] to have knives” because

“[h]e was always sharpening” them. According to Mr. Brothers, the Defendant “had

some nice knives,” which he thought the Defendant may have sharpened on the weekend

in question. When asked if he was “certain that it was that weekend or was it another

weekend that [the Defendant] might have been sharpening a knife,” Mr. Brothers replied,

“It was about every time that I saw him,” but he was not positive about that weekend.

George Allen Lee testified that he met the Defendant while he was staying at Mr.

Brothers’s apartment in March or April 2014. Mr. Lee also had known the victim for a

few years because he “used to work with him at a water meter place[.]” Mr. Lee

described the victim as “a little bitty guy.”

Mr. Lee provided many of same details as Mr. Brothers. Mr. Lee confirmed that

the Defendant “talked about an individual who stole his bike and his tent” when they

“were both living in [a] camp together” and that the Defendant said he “hope[d] to see

him one day so he could . . . ask him why he did it.” Mr. Lee stated that, while the

Defendant did not talk “about it constantly,” “it came up a couple times[.]” In addition,

one Sunday when Mr. Lee and the Defendant were eating dinner together at the Journey

Home, the Defendant pointed out the victim as the individual who had “robbed” him.

According to Mr. Lee, the Defendant asked him to go “find out” where the victim was

living, but Mr. Lee did not do that because he “could see there was a little bit of

animosity there” and he did not “want to get involved[.]”

According to Mr. Lee, he was at Mr. Brothers’s apartment on Sunday May 4,

4

2014, when the Defendant left and returned “a couple of hours” later with “blood on his

t-shirt, blood on his pants, and blood on his shoes.” Mr. Lee described that there were

“dots” of blood, or what looked like “splatter paint,” on the Defendant’s shirt and a

concentration of blood “stuck” on his right shoulder “like he hit something.” The

Defendant said that he had been involved in a bike wreck.

Mr. Lee testified that, after the Defendant had showered, he emerged from the

bathroom with a plastic bag. The Defendant then asked Robert Strange, who was also in

the apartment, “to get rid of” the plastic bag, which Mr. Lee assumed contained the

Defendant’s bloody clothes. According to Mr. Lee, Mr. Strange left with the bag.

Because the Defendant did not really “trust Mr. Strange” that much, he asked Mr. Lee to

accompany him. Mr. Lee left the apartment and caught up with Mr. Strange, and the two

4

The transcript notes the year as “2015.” However, this appears to be in error.

-6-

men walked to Dodge’s Store. They were looking for a place to throw the bag away and

“were going to throw it in the creek,” but Mr. Lee saw “a cop car sitting there” and told

Mr. Strange not to throw it in the creek. Mr. Lee claimed that he did not want to “get in

trouble for littering” and that he “didn’t think anything was amiss with it.” So, they

“walked on around the creek” and to the store. Mr. Lee went inside the store and told

Mr. Strange, “[Y]ou do what you need to do with the bag. Put it in the dumpster or

whatever.” When Mr. Lee exited the store, Mr. Strange did not have the bag anymore.

According to Mr. Lee, after they returned to the apartment, the Defendant left.

Mr. Lee believed that he saw the Defendant at Mr. Brothers’s apartment the

following weekend. According to Mr. Lee, when he saw the Defendant on this occasion,

the Defendant asked him “what did Mr. Strange do with the bag[,]” and Mr. Lee told him

that he “didn’t know.” Mr. Lee recalled that the Defendant and Mr. Strange later left the

apartment together.

Mr. Lee was also asked if he knew the Defendant to carry any weapons. Mr. Lee

said that the Defendant carried a “Rambo knife” or “fixed blade knife” in a sheath on his

hip and that the Defendant was in possession of the knife “[e]very time” he saw him. Mr.

Lee described the Defendant’s knife as a knife with “the little compass on the top,”

“double edges,” and “serrated on one side and like razor on the other side.” Mr. Lee

stated that he saw the Defendant sharpen the knife twice.

On cross-examination, Mr. Lee explained that the garbage can inside the

apartment was full, so regardless, Mr. Strange would have had to “take [the plastic bag]

outside anyway.” Mr. Lee affirmed that he “didn’t think anything bad or sinister” when

the Defendant returned bloody to the apartment that evening.

Timothy Ortega testified that he knew the victim “well” and that he also knew the

Defendant. When asked if he knew the Defendant “to ever be in possession of a knife,”

Mr. Ortega responded affirmatively. Mr. Ortega explained that the Defendant “used to

wear” “quite a long knife” “on his side.” According to Mr. Ortega, “[i]t was a knife that

[the Defendant] wore on his side[,] like in a pocket thing or whatnot”; “[i]t wasn’t in a

case.”

Mr. Ortega testified that he remembered Sunday, May 4, 2014, “well.” Around

midday, Mr. Ortega went to Dodge’s Store, bought a beer, and sat in the bushes behind

the store where he drank the beer. While sitting there, the victim came “up from

underneath the underpass[.]” According to Mr. Ortega, the victim “had some beer and

vodka in a water bottle,” so they sat on a log and drank and “caught up on old times.”

They then went to Camino Real restaurant, a place that feeds the homeless. After eating,

they decided to come to the town square and panhandle for more money for beer.

Sometime after dark that evening, they left the square headed back towards Dodge’s

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Store when they ran into the Defendant. According to Mr. Ortega, the Defendant and the

victim began to have a normal conversation; they were not confrontational. When the

victim asked Mr. Ortega if he wanted to hang out with him and the Defendant, Mr.

Ortega declined. The Defendant then reached into his backpack and handed Mr. Ortega a

beer, and the Defendant and the victim “took off walking” in the direction of Dodge’s

Store. Mr. Ortega was unsure where exactly the two men were headed.

Mr. Ortega testified that he was supposed to meet with the victim two days later

and “go down to Chattanooga because [the victim] was promised work.” According to

Mr. Ortega, they were scheduled to meet “on that same log” behind Dodge’s Store where

they had drank together and where the victim had left his “personal property.” However,

the victim never showed up. Mr. Ortega identified a photograph of the area where the

victim had been sleeping.

Mr. Ortega was asked on cross-examination what the “homeless community [was]

like in Murfreesboro,” and he responded, “It’s not all that great.” Thereafter, defense

counsel probed further:

Q. It’s a pretty violent community, isn’t it?

A. Pretty much, yes.

Q. You have been assaulted before, haven’t you?

A. Of course.

Q. You have been robbed?

A. Yes, sir.

After Robert Strange was declared unavailable for trial, Mr. Strange’s preliminary

hearing testimony from September 24, 2014, was admitted into evidence. During this

testimony, Mr. Strange conveyed that he was twenty-three years old and that he was in

custody for a violation of probation on a public intoxication conviction. Mr. Strange

stated that he knew both the Defendant and the victim. He was familiar with Defendant

because the Defendant rode his bicycle every weekend from Nashville to visit. Mr.

Strange recalled that one Sunday evening, in early May 2014, he was outside of Mr.

Brothers’s apartment hanging out with the Defendant, the victim, and Mr. Ortega.

According to Mr. Strange, he had about three beers that evening; the Defendant

was already drinking beer; and the victim was intoxicated. The victim asked the

Defendant and Mr. Ortega to accompany him to his motel room at the Imperial Inn, and

they agreed. Mr. Strange said that the Defendant and the victim “seemed calm” around

each other at that time. In addition, Mr. Strange estimated that it was between 7:30 and

8:00 p.m. when the three men left together because it was dark outside.

-8-

Mr. Strange testified that the Defendant returned to the apartment about an hour to

an hour and a half later and was “covered in blood.” According to Mr. Strange, he saw

blood on the Defendant’s clothes, arms, face, and legs. The Defendant asked Mr. Lee for

a bag for his clothes and then took a shower. Mr. Strange testified that, thereafter, the

Defendant instructed him to throw the clothes in the creek behind Dodge’s Store. Mr.

Strange said that he and Mr. Lee weighted the bag with bottles and rocks, which was Mr.

Lee’s idea. Mr. Strange then threw the bag in the creek from the walking bridge.

According to Mr. Strange, he encountered the Defendant a week later on the

walking bridge on the greenway near Dodge’s Store, and the Defendant asked him to

show him where he had thrown the bag into the creek. Mr. Strange also said that the

Defendant asked for help with moving a body, and the Defendant instructed him to grab a

tarp and crowbar from the Defendant’s campsite. Mr. Strange complied. However,

before searching, they went to eat at the Journey Home where they saw Cody Simmons.

Afterwards, the three men went to look for the bag of clothes but did not find it. They

also did not find the body. Mr. Strange said that he did not see the Defendant with a

weapon that evening. According to Mr. Strange, he did not go to Mr. Brothers’s

apartment anymore after this incident. Mr. Strange also testified that he did not go to the

police because he “was frightened” of the Defendant.

Cody Simmons testified that he had met the Defendant “a couple of times” and

that he interacted with the Defendant several times in May 2014, including once at Mr.

Brothers’s apartment when he, Mr. Lee, Mr. Brothers, Mr. Strange, and the Defendant

were all present. According to Mr. Simmons, the third time he encountered the

Defendant was one evening when the Defendant and Mr. Strange “walked up to the

Journey Home” for pizza night. Mr. Strange was carrying a tarp. Mr. Simmons

described Mr. Strange as acting terrified, and Mr. Strange said that he wanted “to lose”

the Defendant. Mr. Simmons joined the two men, and they “walked down the greenway”

behind Dodge’s Store. According to Mr. Simmons, the Defendant then “pulled a silver

gun out on” them and started “waving it back and forth.” The Defendant ordered Mr.

Strange “to take his boots off and get in the water.” Mr. Simmons maintained that they

were “looking for something,” although he did not know what at the time. Mr. Simmons

estimated that they looked for approximately thirty minutes but found nothing. After

they were unsuccessful, all three men returned to Mr. Brothers’s apartment.

Mr. Simmons testified that he knew the Defendant to carry a knife. According to

Mr. Simmons, the Defendant carried a knife “in a sheath on his . . . belt loop.” Mr.

Simmons agreed that he had never seen the Defendant in possession of a handgun other

than on this one evening.

Timothy Davis testified that he met the Defendant while they were incarcerated in

the Rutherford County Jail. According to Mr. Davis, they developed a relationship when

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the Defendant began to attend a Bible study taught by Mr. Davis. However, at the time

of the Defendant’s trial, Mr. Davis was no longer incarcerated and was working at a

manufacturing job in Franklin, Tennessee. Mr. Davis relayed that he spoke with law

enforcement on September 17, 2015, about the Defendant’s confession to him and that he

was released from the Rutherford County Jail on September 22, 2015.

Mr. Davis recalled that, one day after Bible study, he had a conversation with the

Defendant when the Defendant just “started talking to [him] about” the victim’s murder.

Although the Defendant did not provide Mr. Davis with a name, he told Mr. Davis that

the victim had stolen from him twice. The Defendant explained to Mr. Davis that he did

not do anything about the first theft, but after the second time, that “God . . . deliver[ed]

the man into [the Defendant’s] hands.” The Defendant said that he asked the man to take

a walk with him and that they proceeded to “go walk up the creek bank.” While on the

creek bank, the Defendant attacked the man, getting on top of him and cutting him with a

knife. The Defendant maintained that “the man had asked for forgiveness,” but that when

the man “said God bless you,” the Defendant attacked him. According to Mr. Davis, the

Defendant said that the man “pleaded with him or something” and that he cut the man’s

throat to keep “[t]he man from screaming for help.”

The Defendant claimed that a police car drove by during the attack and that the

light from the car “illuminated his body[,]” so “he rolled off the man over into the creek.”

It was during that process that the Defendant lost his glasses. The Defendant then

recounted to Mr. Davis how, “after the incident, he went to somebody’s house to change

clothes,” “put his clothes in a bag,” and asked someone “to get rid of” them. The

Defendant also told Mr. Davis “that the police had a knife, but it was not the knife that he

had used.” He further conveyed to Mr. Davis that it rained after the attack and “that

would have [had] an [e]ffect on the evidence[.]” Moreover, according to Mr. Davis, the

Defendant “believed that he wouldn’t be convicted[] because God would deliver him.”

Furthermore, the Defendant expressed to Mr. Davis that he was acting as “a warrior for

God.”

Mr. Davis recalled being “in shock” by the revelation, and he was uncertain why

the Defendant had chosen to confide in him. Mr. Davis thought that the Defendant

“appear[ed] to be serious about it[.]”

In addition, Mr. Davis confirmed that he had multiple felony convictions but

stated that he had not received any promises from the State in exchange for his testimony

against the Defendant. He affirmed that he initially spoke with detectives in hopes of

receiving favorable treatment on a failure to appear charge, but none was ever

forthcoming. Moreover, Mr. Davis agreed that he helped law enforcement previously

“on several cases” and had once been released from jail on a theft charge “to be a

cooperating witness” in a federal murder case.

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Mr. Davis also testified that he talked with his cellmate, James Hummer, about the

Defendant’s confession. According to Mr. Davis, Mr. Hummer advised him to talk with

the authorities about what the Defendant had told him.

C. Police Investigation and Forensic Evidence. MPD Detective James Abbott

testified that his investigation of the victim’s death led him to visit Mr. Brothers’s

apartment on May 15, 2014. When Detective Abbott arrived, he saw “what appeared to

be blood on the wall going up the stairs” and “possible blood” on the door and “door

facing.” Samples of these stains were collected, according to Detective Abbott.

After knocking on the door, Detective Abbott went inside the apartment and spoke

with Mr. Brothers and Mr. Lee, who was also present. Detective Abbott and other

officers searched the apartment. Inside a closet, the officers found a tent and a tarp.

When the tarp was unfolded, a crowbar was discovered. Along with collecting these

items, the officers also collected items from the apartment’s bathroom, including a bath

mat and several towels, believing that the Defendant showered there after killing the

victim.

The Defendant was arrested on May 15, 2014, in his college dormitory room. A

sleeping bag was taken from the Defendant’s room, and the Defendant’s bicycle was

photographed. No gun or knife was found. According to MPD Officer Haley Alden, the

Defendant “appeared to be calm and unemotional” upon his arrest. Detective Abbott also

assisted in taking pictures of the Defendant “a couple of weeks after he had been

arrested,” possibly “[l]ate May.” The photographs depicted “what appeared to be a cut

healing on [the Defendant’s] right arm.”

Buccal swabs were obtained from Mr. Brothers, Mr. Simmons, Mr. Strange, Mr.

Lee, and the Defendant. A blood sample and fingerprints were also acquired from the

victim’s body. Ultimately, none of the evidence collected connected the Defendant or

anyone else with the victim’s murder.

Dr. Erin Carney testified as an expert in “anatomical, clinical, and forensic”

pathology. Dr. Carney performed the victim’s autopsy and concluded that the fifty-two-

year-old victim’s cause of death was “sharp force injuries” or multiple “cutting wounds”

and that the manner of death was homicide. Dr. Carney defined sharp force injuries as

“injuries that are inflicted by a sharp object, such as a knife or a razor blade or something

like that.” She opined that the victim “had been assaulted by someone else, maybe more

than one person,” and confirmed that the wounds were not accidental or self-inflicted and

that the victim did not drown. However, Dr. Carney was unable to determine how long

the victim was submerged in water before he was found and was unable to render an

opinion on the time of death.

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Dr. Carney documented six cutting wounds to the victim’s body, which measured

five feet and one inch tall and weighed ninety-eight pounds. According to Dr. Carney,

the victim sustained a sharp cutting wound across his neck, which measured

approximately nine and a half inches in length. Dr. Carney described this wound as a

“pretty extensive injury,” cutting through the carotid artery, muscles, and bone. She

maintained that, after this wound was inflicted, the victim possibly would have still been

“moving” and “able” to defend himself, but he would have lost consciousness in “a

matter of minutes” and would have died shortly thereafter. Moreover, according to Dr.

Carney, “the injury that [she] observed” was “consistent with being caused by a knife.”

Dr. Carney also saw a second cut on the posterior right neck and scalp. This cut, which

measured four inches, penetrated the scalp but not the skull. She also observed a third cut

to the victim’s right earlobe. This cut was three quarters of an inch in length and

separated the victim’s earlobe from his face. Also, there were superficial cutting wounds

to the right side of the victim’s face. In addition, there was a cut to the victim’s right ear,

which was “a three-quarter V-shaped cutting wound.” This cut went through the

cartilage into the scalp and muscle. Finally, the victim had a one-inch cutting wound to

his left thumb, which Dr. Carney opined was a defensive injury when the victim tried to

block a sharp object. Also, an alcohol screen indicated that the victim had been drinking

before he died.

D. Defense Proof. The Defendant called James Hummer. Mr. Hummer testified

the he shared a cell with the Defendant for three months beginning in July 2014. Mr.

Hummer said that sometimes he attended the Bible study group with the Defendant and

Mr. Davis. According to Mr. Hummer, the Defendant never confided in him about the

details of his case.

On cross-examination, Mr. Hummer confirmed that he also shared a cell with Mr.

Davis at some point during his incarceration. Mr. Hummer denied that Mr. Davis ever

gave him any details about the Defendant’s confession.

E. Verdict, Sentence, and Appeal. Following the conclusion of the proof, the jury

found the Defendant guilty as charged. Thereafter, he was sentenced to life

imprisonment. The Defendant’s timely motion for new trial was denied by the trial court.

The Defendant appealed to this court. However, the Defendant’s notice of appeal

document was not filed in the clerk’s office until October 7, 2016, which would be

considered untimely. See Tenn. R. App. P. 4(a) (stating that “the notice of appeal

required by Rule 3 shall be filed with and received by the clerk of the trial court within 30

days after the date of entry of the judgment appealed from”). The certificate of service

indicated that the document was submitted on October 6, 2016, which would be

considered timely filed. Nonetheless, it is the file-stamp date, not the assertion of

counsel, that controls. See State v. Stephens, 264 S.W.3d 719, 728-30 (Tenn. Crim. App.

-12-

2007). In addition, the State cited these timeliness anomalies in its appellate brief, yet the

Defendant failed to address this problem in a reply brief and did not file a motion to

waive the timely filing of the notice of appeal. While this appeal could justifiably be

dismissed because of the untimely filed notice of appeal, we will forgo this disposition in

the interest of justice and address the issues raised by the Defendant due to the gravity of

the charge. See Tenn. R. App. P. 4(a) (also providing that “in all criminal cases the

‘notice of appeal’ document is not jurisdictional and the filing of such document may be

waived in the interest of justice”).

ANALYSIS

On appeal, the Defendant argues (1) that the evidence was insufficient to support

his conviction; (2) that the trial court erred by declaring Mr. Strange to be unavailable

and admitting his preliminary hearing testimony; and (3) that the trial court erred (a) by

permitting Officer Watson to testify “regarding the [D]efendant’s propensity to carry

weapons in the past”; (b) by allowing Mr. Dill, the Defendant’s former employer, to

testify about murderous threats made by the Defendant to the victim over a year prior to

the victim’s death; and (c) by prohibiting defense counsel from eliciting testimony from

Mr. Ortega “regarding the potentially violent propensities of others known to the witness

in the homeless community.” We will address each in turn.

I. Sufficiency of the Evidence

The Defendant challenges the sufficiency of the convicting evidence supporting

his first degree murder conviction. Specifically, the Defendant argues that the State

failed to prove the Defendant’s identity as the perpetrator, failed to establish the

necessary element of premeditation, and failed to corroborate the Defendant’s jailhouse

confession to Timothy Davis. The State counters that the evidence was sufficient to

support the Defendant’s conviction.

An appellate court’s standard of review when a defendant questions the

sufficiency of the evidence on appeal is “whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,

319 (1979). This court does not reweigh the evidence; rather, it presumes that the jury

has resolved all conflicts in the testimony and drawn all reasonable inferences from the

evidence in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984);

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness

credibility, conflicts in testimony, and the weight and value to be given to evidence were

resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

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A guilty verdict “removes the presumption of innocence and replaces it with a

presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the

evidence is insufficient to support the jury’s verdict.” Id.; State v. Tuggle, 639 S.W.2d

913, 914 (Tenn. 1982). The standard of proof is the same whether the evidence is direct

or circumstantial. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). Likewise,

appellate review of the convicting evidence “is the same whether the conviction is based

upon direct or circumstantial evidence.” Id. (quoting State v. Hanson, 279 S.W.3d 265,

275 (Tenn. 2009)). The duty of this court “on appeal of a conviction is not to

contemplate all plausible inferences in the [d]efendant’s favor, but to draw all reasonable

inferences from the evidence in favor of the State.” State v. Sisk, 343 S.W.3d 60, 67

(Tenn. 2011).

First degree murder, in this instance, is defined as “[a] premeditated and

intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)(1). A person acts

intentionally “when it is the person’s conscious objective or desire to engage in the

conduct or cause the result.” Tenn. Code Ann. § 39-11-302(a).

“[P]remeditation” is an act done after the exercise of reflection and

judgment. “Premeditation” means that the intent to kill must have been

formed prior to the act itself. It is not necessary that the purpose to kill pre-

exist in the mind of the accused for any definite period of time.

Tenn. Code Ann. § 39-13-202(d).

A. Identity

The identity of the perpetrator is an essential element of any crime. State v. Rice,

184 S.W.3d 646, 662 (Tenn. 2006) (citing State v. Thompson, 519 S.W.2d 789, 793

(Tenn. 1975)). The State has the burden of proving “the identity of the defendant as the

perpetrator beyond a reasonable doubt.” State v. Sneed, 908 S.W.2d 408, 410 (Tenn.

Crim. App. 1995) (citing White v. State, 533 S.W.2d 735, 744 (Tenn. Crim. App. 1975)).

The identity of the defendant as the perpetrator may be established by direct evidence,

circumstantial evidence, or a combination of the two. Thompson, 519 S.W.2d at 793.

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) (citing State v. Crawford, 635 S.W.2d 704, 705 (Tenn. Crim. App. 1982)).

Mr. Davis testified that the Defendant, while they were incarcerated together,

confessed to killing the victim. Also, Mr. Brothers testified that the Defendant stopped

by his apartment on “a Friday afternoon or something” in May 2014 and stated that he

had located the man who had stolen his bicycle and damaged his tent. The Defendant

said that he was “going to take care of it.” According to Mr. Brothers, the Defendant

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returned to his apartment later that evening with blood on him. At some point thereafter,

the Defendant also told Mr. Brothers that “he had taken care of his business” with “this

guy.”

Mr. Brothers recalled that the Defendant was wearing a white tank top, a pair of

blue shorts, and white tennis shoes. After the Defendant took a shower, the Defendant

asked for a bag in which to put his bloody clothes. Mr. Brothers identified the clothes

found in the plastic bag in Lytle Creek as the same clothes the Defendant was wearing

that evening. Also, that same evening, the Defendant asked Mr. Brothers for help with

locating his glasses, which he had lost on the greenway next to the creek.

Mr. Lee testified that, one evening while he was having dinner with the Defendant

at the Journey House, the Defendant pointed out the victim as the individual who stole his

bike and damaged his tent. In addition, Mr. Lee said he observed that “there was a little

bit of animosity there.” Furthermore, according to Mr. Lee, he was at Mr. Brothers’s

apartment on Sunday May 4, 2014, when the Defendant left and returned “a couple of

hours” later with “blood on his t-shirt, blood on his pants, and blood on his shoes.” Mr.

Lee testified that the Defendant asked Mr. Strange “to get rid of” the plastic bag, which

Mr. Lee assumed contained the Defendant’s bloody clothes.

Mr. Ortega testified that he remembered Sunday, May 4, 2014, “well” and that,

sometime after dark that evening, he and the victim left the town square together headed

back towards Dodge’s Store when they ran into the Defendant. After Mr. Ortega

declined their invitation to accompany them, the Defendant and the victim “took off

walking” in the direction of Dodge’s Store. The victim never showed up to meet with

Mr. Ortega two days later as they had planned.

Mr. Strange recalled that, one Sunday evening, in early May 2014, he was outside

of Mr. Brothers’s apartment hanging out with the Defendant, the victim, and Mr. Ortega.

The victim asked the Defendant and Mr. Ortega to accompany him to his motel room at

the Imperial Inn, and they agreed. According to Mr. Strange, the Defendant returned to

the apartment about an hour to an hour and a half later and was covered in blood. Mr.

Strange testified that, after the Defendant showered, he instructed Mr. Strange to throw

the clothes in the creek behind Dodge’s Store, which Mr. Strange did. Mr. Strange also

said that he encountered the Defendant a week later on the greenway and that the

Defendant asked for help with moving a body.

Moreover, the Defendant was known to carry a fixed blade knife, and the victim

was cut with a sharp object, possibly a knife. All of this evidence, while circumstantial,

was more than sufficient to establish the Defendant as the individual who murdered the

victim.

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B. Premeditation

The element of premeditation is a factual question to be decided by a jury from all

the circumstances surrounding the killing. State v. Davidson, 121 S.W.3d 600, 614

(Tenn. 2003). Although a jury may not engage in speculation, it may infer premeditation

from the manner and circumstances of the killing. Bland, 958 S.W.2d at 660. Our

supreme court has held that factors demonstrating the existence of premeditation include,

but are not limited to, the following: the declaration of the intent to kill, the procurement

of a weapon, the use of a deadly weapon upon an unarmed victim, the fact that the killing

was particularly cruel, the infliction of multiple wounds, the making of preparations

before the killing for the purpose of concealing the crime, the destruction or secretion of

evidence, and calmness immediately after the killing. State v. Jackson, 173 S.W.3d 401,

409 (Tenn. 2005); State v. Nichols, 24 S.W.3d 297, 302 (Tenn. 2000). Additional factors

cited by this court from which a jury may infer premeditation include lack of provocation

by the victim and the defendant’s failure to render aid to the victim. See State v. Lewis,

36 S.W.3d 88, 96 (Tenn. Crim. App. 2000). Further, “[e]stablishment of a motive for the

killing is a factor from which the jury may infer premeditation.” State v. Leach, 148

S.W.3d 42, 54 (Tenn. 2004) (citing State v. Nesbit, 978 S.W.2d 872, 898 (Tenn. 1998)).

Multiple witnesses established a motive for the killing—that the Defendant wanted

revenge for the victim’s stealing his bicycle and damaging his tent. In addition, those

same witnesses testified that the Defendant rode his bike from Nashville to Murfreesboro

every weekend in the hope of locating the victim. Mr. Brothers maintained that the

Defendant “was infatuated [with] taking care of this business.” In early May 2014, the

Defendant identified the victim as the perpetrator, and the Defendant was the last person

seen with the victim before his death. Moreover, the Defendant had been involved in a

previous physical altercation with the victim and had twice threatened to kill the victim.

The victim’s manner of death, multiple “sharp force injuries,” also showed premeditation.

The Defendant told Mr. Davis that he cut the victim’s throat to keep him “from

screaming for help.”

When the Defendant returned to Mr. Brothers’s apartment that Sunday evening, he

was covered in blood. He showered and requested a plastic bag for his clothes. The

Defendant then secreted evidence when he ordered Mr. Strange to get rid of the bag. A

week later, the Defendant wanted to find the plastic bag and requested help with moving

a body from the creek. Detective Mongold also saw “debris, [] logs, and a board” lying

on top of the victim’s body, seemingly as though to weigh it down. This was sufficient

evidence of premeditation.

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C. Confession

Tennessee follows “the long-established common-law rule that a person cannot be

convicted of a crime solely on the basis of an uncorroborated extrajudicial confession.”

State v. Frausto, 463 S.W.3d 469, 479-80 (Tenn. 2015). Our supreme court recently

adopted the “modified trustworthiness standard” for determining whether an extrajudicial

confession is sufficiently corroborated. State v. Bishop, 431 S.W.3d 22, 58 (Tenn. 2014).

Under this standard, a defendant’s extrajudicial confession is sufficient to support a

conviction if the State presents “independent proof of facts and circumstances which

strengthen or bolster the confession and tend to generate a belief in its trustworthiness,

plus independent proof or loss of injury.” Id. (citation omitted). Our supreme court

explained:

When a defendant challenges the admission of his extrajudicial confession

on lack-of-corroboration grounds, the trial court should begin by asking

whether the charged offense is one that involves a tangible injury. If the

answer is yes, then the State must provide substantial independent evidence

tending to show that the defendant’s statement is trustworthy, plus

independent prima facie evidence that the injury actually occurred. If the

answer is no, then the State must provide substantial independent evidence

tending to show that the defendant’s statement is trustworthy, and the

evidence must link the defendant to the crime.

Id. at 58-59 (footnotes and citations omitted).

To establish trustworthiness, whether or not the charged offense involved a

tangible injury, the independent evidence must corroborate essential facts included in the

defendant’s statement. Bishop, 431 S.W.3d at 59. Our supreme court explained that

“[o]ne way the State can effectively bolster the defendant’s admission or confession is to

present independent evidence that parallels the defendant’s confession or corroborates the

defendant’s account of what happened immediately before and after the crime.” Id. at 60

(internal brackets and quotation marks removed) (citing State v. Weisser, 150 P.3d 1043,

1051-52 (N.M. Ct. App. 2006); State v. Parker, 337 S.E.2d 487, 495 (N.C. 1985)). The

court continued, “Another way the State can bolster an extrajudicial admission or

confession is by presenting evidence showing that the defendant’s statement reveals

‘specific personal knowledge about the crime.’” Id. (quoting State v. Mauchley, 67 P.3d

477, 489 (Utah 2003)).

This sort of personal knowledge can take the form of (1) information

provided by the defendant that leads to the discovery of evidence unknown

to the police, (2) information about “highly unusual elements of the crime

that have not been made public,” or (3) information providing “an accurate

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description of the mundane details of the crime scene which are not easily

guessed and have not been reported publicly” and which are not “the result

of suggestion by the police.”

Id. (citing Mauchley, 67 P.3d at 489).

In the present case, the State clearly established that the victim suffered a tangible

injury. The fact of the victim’s murder was undisputed. We note that the Defendant

never challenged the corroboration of his confession to Mr. Davis in the trial court.

Nonetheless, we conclude that the State established the trustworthiness of the

Defendant’s confession to Mr. Davis by providing substantial independent evidence

corroborating the facts contained in the Defendant’s statements. Mr. Davis provided an

accurate description of the murder and various details surrounding the crime—for

instance, that the Defendant sought revenge after his bike was stolen and his tent was

damaged by the victim; that they were walking on the creek bank when the Defendant

attacked the victim, getting on top of him and slitting his throat; that the Defendant lost

his glasses during the attack; and that “after the incident, [the Defendant] went to

somebody’s house to change clothes,” “put his clothes in a bag,” and asked someone “to

get rid of” them. These facts were testified to by multiple other witnesses in addition to

Mr. Davis. Moreover, the victim sustained a sharp cutting wound to his neck that was

approximately nine and half inches in length. Also, the Defendant’s clothes were found

in a plastic bag in the creek. Although the defense challenged the credibility of the

witnesses, credibility was a determination for the jury and did not impact the

trustworthiness of the confession. Accordingly, because the Defendant’s confession was

sufficiently corroborated, he is not entitled to relief. See, e.g., State v. Billy Hill, No.

E2015-00811-CCA-R3-CD, 2017 WL 532481, at *28-30 (Tenn. Crim. App. Feb. 9,

2017), perm. app. denied (Tenn. June 7, 2017) (holding that the State established the

trustworthiness of the defendant’s statements to two witnesses, one a cellmate, by

providing substantial independent evidence corroborating the facts contained in those

statements).

II. Mr. Strange’s Preliminary Hearing Testimony

The Defendant contends that the trial court erred by admitting the audio recording

of Robert Strange’s preliminary hearing testimony. Specifically, the Defendant argues

that the State did not make a good faith effort to obtain Mr. Strange’s presence for trial,

and therefore, the trial court erred by declaring Mr. Strange unavailable pursuant to

Tennessee Rule of Evidence 804(a)(5). Additionally, the Defendant claims that he did

not have an opportunity to cross-examine Mr. Strange at the preliminary hearing with the

same motives that would have guided his cross-examination of Mr. Strange had he been

available at trial. The States replies that the trial court properly determined that Mr.

Strange was unavailable and that the Defendant had a similar motive for cross-

-18-

examination at the preliminary hearing, and therefore, the trial court properly admitted

the audio recording as an exception to the hearsay rule.

Tennessee Rule of Evidence 804 allows for hearsay testimony of a declarant who

is unavailable at trial if the testimony

[was] given as a witness at another hearing of the same or a different

proceeding or in a deposition taken in compliance with law in the course of

the same or another proceeding, if the party against whom the testimony is

now offered had both an opportunity and a similar motive to develop the

testimony by direct, cross, or redirect examination.

Tenn. R. Evid. 804(b)(1). Before such testimony will be admitted, however, the

proponent must establish that the witness “[i]s absent from the hearing and the proponent

of a statement has been unable to procure the declarant’s attendance by process.” Tenn.

R. Evid. 804(a)(5).

A. Unavailability

In cases such as the one at bar, it must be shown that the declarant is truly

unavailable after good faith efforts to obtain his presence. See Barber v. Page, 390 U.S.

719, 724-725 (1968); see also State v. Arnold, 719 S.W.2d 543, 548 (Tenn. Crim. App.

1986) (citations omitted). The United States Supreme Court stated that “good faith” is

defined as “[t]he lengths to which the prosecution must go to produce a witness . . . [and]

is a question of reasonableness.” Ohio v. Roberts, 448 U.S. 56, 74 (1980), abrogated by

Crawford v. Washington, 541 U.S. 36 (2004). “The ultimate question is whether the

witness is unavailable despite good-faith efforts undertaken prior to trial to locate and

present that witness. As with other evidentiary proponents, the prosecution bears the

burden of establishing this predicate.” Id. at 74-75. We will uphold the trial court’s

determination that a witness is available or unavailable absent an abuse of discretion. See

Hicks v. State, 490 S.W.2d 174, 179 (Tenn. Crim. App. 1972).

Furthermore, the party issuing the subpoena has the duty to supervise and ensure

that effective service of process is completed. “A party desiring the issuance of process

to secure the attendance of a witness has the continuing duty to follow up and supervise

the service of the subpoena.” State v. Jefferson, 529 S.W.2d 674, 688 (Tenn. 1975),

overruled on other grounds by State v. Mitchell, 593 S.W.2d 280 (Tenn. 1980); see also

Barber, 390 U.S. at 724. Proof of use of process to procure the attendance of an

unavailable witness is required under the Rules of Evidence. Tenn. R. Evid. 804(a)(5).

At the preliminary hearing, Mr. Strange stated that he was originally from

Lexington, Kentucky, but was now homeless, and often “hop[ped] back and forth

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between friend’s houses.” Mr. Strange said he was incarcerated on a probation violation,

and he testified that he was to be released from custody on January 22. The prosecutor

stated his concern that Mr. Strange was homeless and his need to be able to contact Mr.

Strange if the Defendant’s case went to trial. The prosecutor asked Mr. Strange who

“always knows where you are at,” and Mr. Strange said his father. Mr. Strange also said

that he would provide contact information for his father after the hearing. Multiple

subpoenas were issued in 2015 for Mr. Strange’s presence at the Defendant’s trial.

Prior to the admission of Mr. Strange’s preliminary hearing testimony, the State

presented Detective Doug Arrington to testify as to the State’s efforts to find the

homeless Mr. Strange. On January 12, 2016, Detective Arrington located Mr. Strange

while he was in the custody of the Coffee County Jail and served a subpoena on him.

The subpoena was issued on October 14, 2015. Detective Arrington believed that, at the

time he served the subpoena, Mr. Strange would remain in the custody of Coffee County

until the Defendant’s trial, which began less than a month later on February 8, 2016.

However, Detective Arrington confirmed that he did not at that time arrange for Mr.

Strange to be transported from the Coffee County Jail to the Rutherford County

courthouse. Detective Arrington also testified that he “was worried that this may

happen,” so when he spoke with Mr. Strange in the Coffee County Jail, he asked Mr.

Strange “where he might go.” Mr. Strange replied that he did not “know where [he was]

going to go” if released. Detective Arrington could not recall if he knew exactly when

Mr. Strange was supposed to be released.

On January 27, 2016, Detective Arrington became aware that Mr. Strange had

been released from custody “with time served” and had not been placed on probation.

Two days later Detective Arrington began to try to locate Mr. Strange. Detective

Arrington first contacted Mr. Strange’s father who lived in Kentucky, but Mr. Strange’s

father had no details about Mr. Strange’s whereabouts at that time. Detective Arrington

also went to the Coffee County Jail and spoke with another detective, who provided Mr.

Strange’s last known address and information concerning “any known associates of [Mr.

Strange’s] based on his incarceration in [the] Coffee County Jail.” Upon receiving this

information, Detective Arrington visited five or six Manchester motels. At those motels,

he spoke with employees and residents “in an attempt to see if [he] could find anymore

leads about [Mr. Strange’s] whereabouts.” Detective Arrington was unsuccessful at the

motels, so he proceeded to Mr. Strange’s “last known address as noted in his arrest

report,” lot number 68 in a community called Lakewood Estates. Detective Arrington

spoke “with some people there at that location,” and he also went to the community’s

“general store and [] bar,” speaking with employees and patrons. However, Detective

Arrington’s efforts once again proved unsuccessful.

-20-

In addition, Detective Arrington testified that he “went to the community of home

assistance [] in Murfreesboro” and met with several people there who did know Mr.

Strange, but they all said that “[t]hey hadn’t seen him for a long time.” Detective

Arrington further affirmed that he had spoken with each of the witnesses in this case that

were members of the homeless community and had asked them if they had information

on Mr. Strange. They also told Detective Arrington either that “[t]hey hadn’t seen [Mr.

Strange] in quite a long time” or that Mr. Strange was in the Coffee County Jail unaware

of his release.

According to Detective Arrington, he told all of the individuals he spoke with in

his quest to locate Mr. Strange to contact him “if they came into contact with [Mr.]

Strange or had any information about” his whereabouts. However, he had never been

contacted by any of those individuals. Detective Arrington said that he could not “think

of any other means” that he could have utilized to contact Mr. Strange. Detective

Arrington maintained that he had “put forth a concerted effort to try to locate Mr.

Strange.”

Following Detective Arrington’s testimony and arguments from the parties, the

trial court found,

[T]here has been sufficient proof to show that the State has made diligent

effort, not only by serving the subpoena on Mr. Strange and making him

aware of his required presence . . . , but also in making all those contacts

and spending that time trying to find Mr. Strange so that he would be

available for trial.

The trial court concluded, “Mr. Strange is unavailable based upon his absence . . . . And

the proponent of the statement has been unable to secure his attendance by process or

diligent efforts to locate him.”

The Defendant argues that the trial court erred in finding that Mr. Strange was

“unavailable” because the State failed to establish that it made a good faith effort to

locate Mr. Strange. The Defendant notes that the State “was well aware of [Mr.

Strange’s] transient nature”; that the State failed to maintain contact with Mr. Strange for

sixteen months after the preliminary hearing until “fortuitous[ly]” locating him in the

Coffee County Jail on January 12, 2016; that Detective Arrington “did not even attempt

to ascertain Mr. Strange’s release date from the Coffee County Jail and failed to make

any effort whatsoever to assure that [Mr. Strange] would be transported from Coffee

County to Rutherford County to testify had he remained in custody”; and that “no one for

the State chose to exercise the use of a Material Witness Bond to secure [Mr. Strange’s]

appearance at trial.”

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In his brief, the Defendant intently focuses on the State’s efforts to locate Mr.

Strange during the sixteen months before Detective Arrington served Mr. Strange with a

subpoena in the Coffee County Jail on January 12, 2016. Fortuitous or not, Mr. Strange

was located by Detective Arrington and served with process. Not only was there proof of

the use of process to procure Mr. Strange’s attendance at trial, but he was actually served

with process less than one month before the Defendant’s trial was to begin and was aware

that his presence was required. Accordingly, only Detective Arrington’s efforts after

January 12, 2016, to follow up and supervise the service of the subpoena are relevant.

Moreover, the Defendant cites to State v. Armes in support of his argument. See

607 S.W.2d 234 (Tenn. 1980). In Armes, the State attempted to subpoena the witness

before trial and discovered that the witness had disappeared. Id. at 236. This

disappearance resulted in a mistrial. Id. One week before the second trial and again one

day before the second trial, the State attempted to subpoena the witness. Not

surprisingly, the State was unable to locate the witness. Id. At trial, the State attempted

to present the testimony of the witness at the preliminary hearing. Id. To prove the

witness’s unavailability, the State failed to provide any independent evidence of an

attempt to locate the witness other than a statement by the prosecutor. Our supreme court

stated, “The prosecuting attorney’s statement to the [c]ourt concerning the efforts of the

State’s investigator to locate the witness cannot be considered as evidence of proof on the

issue of the State’s good faith effort.” Id. at 237. Our supreme court also stated that the

State was on notice that extra effort would be required to locate the witness because he

did not appear for the first trial date. Id.

However, unlike Armes, the State provided independent evidence of its efforts to

locate Mr. Strange. Detective Arrington testified that he believed that Mr. Strange would

remain incarcerated until the Defendant’s trial. Detective Arrington learned two weeks

later on January 27, 2016, that Mr. Strange had been released from custody. Thereafter,

Detective Arrington contacted Mr. Strange’s father, went to the Coffee County Jail and

Mr. Strange’s last known address, visited local motels and a home assistance community

in Murfreesboro, and interviewed the witnesses in this case who were members of the

homeless community concerning Mr. Strange’s whereabouts. Detective Arrington

searched for Mr. Strange through the resources he had but to no avail. Based upon this

evidence, we cannot conclude that the trial court abused its discretion by finding that the

State made a good faith effort to find Mr. Strange and that he was, therefore, unavailable

at trial. See, e.g., State v. Bobby Jackson, No. W2009-02232-CCA-R3-CD, 2011 WL

1849096, at *7 (Tenn. Crim. App. May 11, 2011) (concluding that the State established

that it had made a good effort to find a unavailable witness when the State presented

testimony from one individual that the unavailable witness planned to return to Mexico

and that he had attempted to locate the unavailable witness in Mexico by calling the

number the witness had given him, and from a detective that he had gone to the local

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address that the unavailable witness had provided but no one knew where the witness had

gone); State v. Innocent S. Nzamubereka, No. E2009-00755-CCA-R3-CD2011 WL

255368 (Tenn. Crim. App. Jan. 20, 2011) (holding that the record supported the trial

court’s finding that the witness was unavailable when the trial court relied upon the

subpoena in the court file, which showed that the witness had been served to appear at

trial, and heard credible testimony from three other witnesses regarding the State’s good

faith efforts to have the unavailable witness appear and testify at trial).

B. Similar Motive

The Defendant also submits that the type of cross-examination conducted at a

preliminary hearing is different from that conducted at trial. He states that the “motive”

for cross-examination at the preliminary hearing “is not to engender reasonable doubt in

the mind of the listener/juror like the trial standard of proof beyond a reasonable doubt,

but rather to investigate the merits of the case and conduct as much fact-finding as

possible under a probable cause standard[.]” He continues, “Counsel’s opportunity to

attack the credibility of the witness is limited since credibility is not the main issue and

probable cause is a very low standard of proof.” Additionally, he notes that the defense

lacks the benefit of discovery materials at the preliminary hearing and that such materials

are necessary to “affect a full and meaningful cross-examination of a witness[.]”

Courts of this state have consistently upheld the admission of testimony from a

preliminary hearing when the defendant had an opportunity to cross-examine a witness

who was subsequently deemed unavailable. See, e.g., State v. Davis, 466 S.W.3d 49, 69

(Tenn. 2015) (affirming the admission of preliminary hearing testimony and a prior

statement of a testifying witness as substantive evidence where that witness testified at

trial that he could not remember giving the statement or testifying at the preliminary

hearing, so he was declared to be “unavailable,” and the defendant had the opportunity to

cross-examine the witness on the subject); State v. Howell, 868 S.W.2d 238, 252 (Tenn.

1993) (concluding that, because previous counsel at out-of-state preliminary hearing had

“similar motive” to cross-examine a witness, the admission of the testimony did not

violate the defendant’s right to confront witnesses); State v. Bowman, 327 S.W.3d 69, 89

(Tenn. Crim. App. 2009) (concluding that “preliminary hearing testimony was admissible

under the ‘former testimony’ hearsay exception of Rule 804(b)(1) and . . . did not violate

the defendant’s rights under the Confrontation Clause.”); State v. Brian Roberson, No.

E2013-00376-CCA-R3-CD, 2014 WL 1017143, at *6-7 (Tenn. Crim. App. Mar. 14,

2014) (holding that the defendant had a similar motive to develop the testimony at the

preliminary hearing as he would have had at trial, and that the preliminary hearing cross-

examination was sufficient to meet the requirements of the Confrontation Clause); State

v. Edward Warren Wise, No. M2012-02129-CCA-R3-CD, 2013 WL 4007787, at *5-6

(Tenn. Crim. App. Aug. 6, 2013) (concluding that preliminary hearing testimony was

-23-

admissible because there was a similar motive to develop the testimony and because the

defendant engaged in thorough cross-examination); State v. Brian Eric McGowen, No.

M2004-00109-CCA-R3-CD, 2005 WL 2008183, at *11-12 (Tenn. Crim. App. Aug. 18,

2005) (holding that the trial court did not err in allowing preliminary hearing testimony to

be introduced at trial under the former testimony exception because the motive to cross-

examine the defendant was the same at both the preliminary hearing and trial).

Likewise, this court has rejected the claim that cross-examination at the

preliminary hearing was insufficient due to differences in the nature of the proceedings,

including the burden of proof. See Howell, 868 S.W.2d at 251 (holding that a

preliminary hearing testimony of a declarant could be introduced at trial under the former

testimony exception based primarily on a finding that “at both the [preliminary] hearing

and the subsequent trial, the testimony was addressed to the same issue of ‘[w]hether or

not the defendant[] had committed the offense’ charged”) (quoting State v. Causby, 706

S.W.2d 628, 632 (Tenn. 1986))); State v. Michael James Grubb, No. E2005-01555-CCA-

R3-CD, 2006 WL 1005136, at *5-7 (Tenn. Crim. App. Apr. 18, 2006) (rejecting claim

that “the type of cross-examination conducted at a preliminary hearing is different from

that conducted at trial” and concluding that the defendant had the opportunity to cross-

examine the witness “at the preliminary hearing with the same motives that would have

guided his cross-examination of the declarant had he been available at trial”). “A

preliminary hearing transcript is precisely the type of former testimony contemplated

under [Rule 804(b)(1)].” Bowman, 327 S.W.3d at 88-89 (internal quotations omitted).

Regarding the Defendant’s argument concerning a lack of discovery materials at

the preliminary hearing, in State v. Robert Echols, the defendant raised a similar

argument, asserting that because discovery was not mandated and identification standards

were more “lax” at the preliminary hearing, admission of the victim’s testimony at trial

violated his right to confront witnesses. No. W2013-02044-CCA-R3-CD, 2014 WL

6680669, at *13 (Tenn. Crim. App. Nov. 26, 2014). This court rejected the defendant’s

argument under a plain error analysis, concluding that the defendant’s motive for cross-

examining the victim at the preliminary hearing was “similar” to the motive for cross-

examining him at trial, i.e., “to negate the [d]efendant’s culpability for the offense

charged,” and that the defendant’s counsel in fact effectively challenged the victim’s

identification in various ways on cross-examination. Id. at *15. Similarly, in State v.

Christopher Terrell Shipp, this court rejected the defendant’s argument that he did not

have a similar motive or adequate opportunity to cross-examine the witness because he

did not have access to her prior statement regarding the facial tattoo at the time of the

preliminary hearing. No. M2016-01397-CCA-R3-CD; 2017 WL 4457595, *5-7 (Tenn.

Crim. App. Oct. 5, 2017), perm. app. denied (Tenn. Feb. 14, 2018).

-24-

We decline to depart from this plethora of caselaw. In accord, we reject the

Defendant’s arguments and conclude that the Defendant had an opportunity and similar

motive to cross-examine the witness at the preliminary hearing. While the prior cross-

examination may not have been “to whatever extent, the defense might wish,” the

Defendant was presented with, and availed himself of, “an opportunity for effective

cross-examination.” Davis, 466 S.W.3d at 68 (quoting Owens, 484 U.S. at 559-60). We

conclude that Mr. Strange’s testimony was properly admitted under Tennessee Rule of

Evidence 804.

III. Relevant Evidence

The Defendant, relying on the rules of evidentiary relevance, argues that the trial

court erred (1) by permitting Officer John Watson to testify “regarding the [D]efendant’s

propensity to carry weapons in the past”; (2) by allowing Eric Dill to testify about

murderous threats made by the Defendant to the victim over a year prior to the victim’s

death; and (3) by prohibiting defense counsel from eliciting testimony from Mr. Ortega

“regarding the potentially violent propensities of others known to the witness in the

homeless community.” The State responds that the trial court acted within its discretion.

Tennessee Rule of Evidence 401 provides that “‘[r]elevant evidence’ means

evidence having any tendency to make the existence of any fact that is of consequence to

the determination of the action more probable or less probable than it would be without

the evidence.” Generally, relevant evidence is admissible, while irrelevant evidence is

inadmissible. Tenn. R. Evid. 402. However, 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.” Tenn. R. Evid. 403. The term “unfair prejudice”

has been defined as “[a]n undue tendency to suggest decision on an improper basis,

commonly, though not necessarily, an emotional one.” State v. Banks, 564 S.W.2d 947,

951 (Tenn. 1978). “The admissibility of evidence under Rule 403 of the Tennessee Rules

of Evidence is a matter within the trial court’s discretion and will not be reversed on

appeal absent an abuse of that discretion.” State v. Biggs, 218 S.W.3d 643, 667 (Tenn.

Crim. App. 2006) (citing State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997)).

Tennessee Rule of Evidence 404(b) generally prohibits “[e]vidence of other

crimes, wrongs, or acts . . . to prove the character of a person in order to show action in

conformity with the character trait.” State v. Jones, 450 S.W.3d 866, 891 (Tenn. 2014).

Rule 404(b) allows such evidence in limited circumstances for purposes other than

proving action in conformity with a character trait. Id. The rule sets out certain

procedural requirements the trial court must follow:

(1) The court upon request must hold a hearing outside the jury’s presence;

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

conforming with a character trait and must upon request state on the record

the material issue, the ruling, and the reasons for admitting the evidence;

(3) The court must find proof of the other crime, wrong, or act to be clear

and convincing; and

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

by the danger of unfair prejudice.

Tenn. R. Evid. 404(b). The comments to Rule 404(b) provide that evidence of other

crimes, wrongs, or acts should be excluded unless relevant to an issue other than the

character of the defendant, such as identity, motive, intent, or absence of mistake. Jones,

450 S.W.3d at 891; see also Tenn. R. Evid. 404, Advisory Comm’n cmt. A trial court’s

decision regarding the admission of Rule 404(b) evidence will be reviewed under an

abuse of discretion standard; however, “the decision of the trial court should be afforded

no deference unless there has been substantial compliance with the procedural

requirements of the Rule.” DuBose, 953 S.W.2d at 652.

A. Officer John Watson

The Defendant argues that Officer Watson’s testimony that the Defendant was

seen in possession of three fixed blade knives on August 23, 2013, was irrelevant and

that, even if relevant, the probative value of his testimony was outweighed by the danger

of unfair prejudice. In support of his argument, the Defendant remarks that “the prior

event was [nine] months prior to [the victim’s] death and there [was] no direct evidence

that the weapon [the Defendant] was alleged to have possessed at that time was used” in

the killing. The Defendant notes that no one testified that the Defendant was in

possession of a knife the night of the alleged murder and that the pathologist testified that

the injuries were “sharp force injuries” “caused by a knife, or razorblade or similar sharp

object.” Furthermore, the Defendant maintains that “any attempt at cross-examination to

mitigate or negate the impact of [Officer] Watson’s testimony would have only led

defense counsel into a thicket of testimony about the true nature of the interaction that

night with [Officer] Watson in his official capacity as a police officer[.]” The State

replies that the trial court properly admitted the evidence because “such testimony was

relevant to the State’s theory that the victim died of injuries inflicted by a knife or razor

blade and that the [D]efendant carried a knife.”

At trial, outside of the jury’s presence, defense counsel moved to exclude Officer

Watson’s testimony raising a relevancy objection. Defense counsel first acknowledged

the trial court’s previous ruling at a pretrial hearing that possession of knives on any

given occasion did not qualify as “a bad act” and was, therefore, not prohibited by Rule

404(b). Defense counsel then noted that the Defendant was ultimately arrested for

aggravated assault and possession of a prohibited weapon on the evening August 23,

-26-

2013, the night that Officer Watson encountered the Defendant and saw him in

possession of the three knives. According to defense counsel, “the interaction itself with

law enforcement [would] leave[] the jury to draw an inference that there was some sort of

bad or nefarious act that was going on” that evening. In addition to noting that the

testimony would come from a law enforcement officer, defense counsel noted that

Officer Watson’s August 23, 2013 observation did not occur “in close proximity” to the

alleged murder on May 3, 2014; that no one would testify that the Defendant had a knife

on the evening in question; and that there were “other lay witnesses” who could testify

that the Defendant carried a knife, which would be “less prejudicial[.]” Defense counsel

further maintained that he would not be able to effectively cross-examine Officer Watson

or the aggravated assault victim, Norman Ogden, if he was called to testify, because any

questioning on defense counsel’s part would lead to prejudicial evidence coming in

against the Defendant—like the prior aggravated assault and the large size of the knife.

In conclusion, defense counsel surmised, “So, therefore, it’s not relevant to say that [the

Defendant] has knives on these other occasions in this circumstance when law

enforcement is involved and a prior crime is involved.”

The prosecutor replied, “Your Honor, it is the cumulative effect of us showing that

[the Defendant] normally carried a knife. He carried a knife in 2013. He carried a knife

on several instances in 2014.” The prosecutor noted that Officer Watson was dressed in a

suit and was not wearing a uniform, that Officer Watson would limit his testimony to

saying “that on that particular occasion he did see [the Defendant]” and that the

Defendant “did have in his possession knives”; that Officer Watson would not be asked

about the Defendant’s arrest; and that Mr. Ogden was not going to be called as a witness.

The prosecutor concluded, “I’m just trying to establish that there is a pattern that [the

Defendant] carries a knife. And [Officer Watson] is the first one in that link.”

The trial court denied the Defendant’s motion and permitted the State to call

Officer Watson. In so ruling, the trial court reasoned: “The [c]ourt previously ruled that

possession of a knife is not a bad act, and . . . would be admissible. The [c]ourt sees no

reason to change based on what it’s heard this morning, and would allow the officer to

testify.”

Prior to Officer Watson’s trial testimony, defense counsel requested that the State

“not elicit his title and rank and occupation.” The prosecutor agreed with defense

counsel’s request and further relayed that he would instruct Officer Watson “not to say

where he’s employed.” Thereafter, Officer Watson’s entire testimony was as follows:

Q. . . . Mr. Watson, I want to take you back to the night of August 23rd,

2013. On that particular occasion, were you ever in the company of the

Defendant in this case . . . ?

A. Yes, sir, I was.

-27-

Q. And while you were in his company, did you ever have an occasion to

see him in possession of any type of knives?

A. Yes, sir.

Q. And can you tell us about those knives?

A. [The Defendant] had three fixed blade knives on his right side in a

sheath.

Q. And he had them inside of a sheath?

A. Yes, sir.

The defense chose not ask Officer Watson any questions.

Our supreme court has expressly rejected the Defendant’s argument in State v.

Reid, 213 S.W.3d 792 (Tenn. 2006). In that case, Reid’s former employer testified that,

shortly after the crimes, Reid possessed a small caliber, automatic handgun and a double-

bladed knife. Id. at 813. In affirming this court’s conclusion that “the trial court did not

err by admitting the testimony, reasoning that the evidence was relevant and not

prohibited by Tennessee Rule of Evidence 404(b) because the possession of a weapon is

not necessarily a crime or wrongful act[,]” our supreme first cited to similar holdings

from other jurisdictions:

Other jurisdictions have ruled similarly in these circumstances. For

example, in Busey v. United States, the Court of Appeals for the District of

Columbia ruled that “testimony that Busey possessed a revolver that might

have been the murder weapon was not admitted improperly to establish

criminal propensity. That evidence was directly relevant . . . because it

constituted evidence supporting the charge that Busey was the person who”

committed the crimes charged. 747 A.2d 1153, 1165 (D.C. App. 2000).

That court has also ruled that “[a]n accused person’s prior possession of the

physical means of committing the crime is some evidence of the probability

of his guilt, and is therefore admissible.” Coleman v. United States, 379

A.2d 710, 712 (D.C. App. 1977). Similarly, in People v. Houston, the

Michigan Court of Appeals determined that proof that Houston had

possessed a .380 handgun three days before the victim was murdered with

the same caliber weapon “was directly relevant to identifying defendant as

the killer,” concluding that the evidence was not inadmissible under Rule

404(b) because the “mere possession of a pistol is not a crime.” 683

N.W.2d 192, 195-96 (Mich. Ct. App. 2004). In Williams v. State, the

Indiana Supreme Court observed that “[i]t is by no means clear that

weapons possession, evidence of gun sales, and the like, are necessarily

prior ‘bad acts’ for 404(b) purposes.” 690 N.E.2d 162, 174-75 (Ind. 1997).

Finally, the Maryland Supreme Court has also agreed that the defendant’s

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possession of guns or ammunition does not qualify as a bad act under the

evidentiary rules. Klauenberg v. State, 735 A.2d 1061, 1073 (Md. 1999).

Id. at 813-14. Then, relying on this jurisprudence, our supreme court concluded that trial

court properly admitted the testimony from Reid’s former employer, reasoning: “In our

view, the ownership of these weapons, standing alone, does not constitute a crime. The

testimony that [Reid’s employer] saw [Reid] in the possession of weapons similar to

those used in the crimes did not necessarily constitute evidence of a bad act. Because of

the weapons’ similarity to those described by the victim [], the evidence was especially

probative as to the identity of the perpetrator.” Id. at 814.

Reid controls here. Officer Watson was not in uniform when he testified, and

during his testimony, he made no mention of his employment or in what context he

encountered the Defendant on August 23, 2013. From all appearances, Officer Watson

appeared to be nothing more than a lay witness. Also, Mr. Ogden, the victim of the

aggravated assault, was not called to testify. Officer Watson’s testimony was extremely

brief, and the defense was not precluded from cross-examining Officer Watson, although

the decision not to do so was understandable. The defense was able to successfully

exclude any prejudicial information prior to Officer Watson’s testimony.

In addition, the Defendant’s former employer testified that the Defendant was in

possession of a knife in the spring of 2013. The Defendant’s associates also testified that

the Defendant frequently carried a knife. Mr. Brothers testified that he “knew [the

Defendant] to have knives” and that the Defendant had a knife “about every time that

[he] saw him.” Mr. Lee testified that the Defendant carried a “Rambo knife” or fixed

blade knife with “double edges[,]” “serrated on one side and like razor on the other side.”

Mr. Lee also said that the Defendant carried the knife in a sheath on his hip. According

to Mr. Lee, “[e]very time [he] saw [the Defendant, the Defendant] had it.” Mr. Ortega

testified that the Defendant carried “quite a long knife” “on his side[,] like in a pocket

thing or whatnot.” Mr. Simmons also testified that the Defendant carried a knife “in a

sheath on his . . . belt loop.” The State used this testimony to establish that the Defendant

had a pattern of carrying a knife similar to one possibly used to kill the victim.

The pathologist testified that the victim’s cause of death was “sharp force injuries”

or multiple “cutting wounds.” The pathologist defined sharp force injuries as “injuries

that are inflicted by a sharp object, such as a knife or a razor blade or something like

that.” Moreover, according to the pathologist, “the injury that [she] observed,” was

“consistent with being caused by a knife.”

The testimony that the Defendant frequently possessed a knife in the days, weeks,

months, and even the year, leading up to the victim’s murder that might have been the

murder weapon was not admitted improperly to establish criminal propensity. Instead,

-29-

the evidence was directly relevant because the evidence was especially probative as to the

identity of the perpetrator. We conclude that the trial court did not abuse its discretion by

permitting Officer Watson to testify that he observed the Defendant with three fixed

blade knives on August 23, 2013. See, e.g., State v. Lamantez Desha Robinson, No.

M2016-02335-CCA-R3-CD, 2017 WL 4693999, at *7-8 (Tenn. Crim. App. Oct. 18,

2017), perm. app. denied (Tenn. Feb. 14, 2018) (concluding that a photograph of the

defendant holding two handguns was not offered as propensity evidence but to establish

the defendant’s identity as the shooter because the photograph tended to make it more

likely that the defendant was in possession of the weapon used to shoot the victim).

B. Eric Dill

The Defendant contends that Mr. Dill’s testimony “should have been excluded

because the State was unable to establish how a [fourteen]-month-old threat following an

argument and fight between [the victim] and the Defendant established any settled intent

or motive on the part of the Defendant to kill [the victim.]” He extrapolates that Mr.

Dill’s testimony was irrelevant because it “did not have any tendency to make the

existence of the State’s assertion that the Defendant killed [the victim] more probable

than it would be without the evidence.” The State responds that the trial court properly

admitted Mr. Dill’s testimony that the Defendant threatened to kill the victim twice

approximately fourteen months before the victim’s murder “because it was relevant to

show the [D]efendant’s motive and intent to kill the victim.”

Prior to Mr. Dill’s trial testimony, a jury-out hearing was held. After hearing

testimony from Mr. Dill, the trial court determined as follows:

[F]irst, the evidence is clear and convincing that there was an

altercation outside in the parking lot. That it reached the level to where,

based on the safety of those involved and his company’s reputation, Mr.

Dill sent one of the people back home. That he continued to work for a

couple more days, and then even two or three days after the event, the

threat was repeated.

And the court finds that to be probative. Finds it to be probative as

to motive, as well as to intent at some level. And would find it to be more

probative than prejudicial. And, therefore, would find it to be admissible.

I find that it is not outweighed by the danger of unfair prejudice.

However, I would note that there is to be no discussion or inquiry, unless

-30-

the [d]efense wants to go into it, as to what was the basis of the altercation

or any discussion related to some allegation that led to the altercation.5

Here, the trial court substantially complied with the procedural requirements of the Rule

404(b).

Turning to the merits of the Defendant’s argument, our supreme court, in State v.

Smith, has held that prior acts of violence and prior threats against a victim were

“admissible under Rule 404(b) because the evidence [was] relevant to show the

defendant’s hostility toward the victim, malice, intent, and a settled purpose to harm the

victim.” 868 S.W.2d 561, 574 (Tenn. 1993); see also State v. Gilley, 297 S.W.3d 739,

758 (Tenn. Crim. App. 2008) (holding that evidence of the defendant’s prior assaults of

the victim fits established the violent nature of their relationship and the defendant’s

hostility toward the victim); State v. Turnbill, 640 S.W.2d 40, 47 (Tenn. Crim. App.

1982) (providing that the “prior relations between the victim and the appellant were

relevant matters for the jury’s consideration on the question of the appellant’s intent”).

The Smith court reasoned that “evidence of these violent episodes was admitted not to

prove the [d]efendant acted in accord with this character but as part of the proof

establishing his motive for the killings” and determined that the probative value of the

evidence was not outweighed by the danger of unfair prejudice. 868 S.W.2d at 574

(citations omitted).

Here, the Defendant was indicted for first degree premeditated murder, and the

State’s theory was that the murder was accomplished by luring the victim to the creek

bank and cutting his throat with a knife. The State had to prove that the Defendant

intended to kill the victim and did so with premeditation. See Tenn. Code Ann. § 39-13-

202(a)(1). The trial court determined that the Defendant’s prior altercation with the

victim and corresponding threats were relevant to establish motive and the Defendant’s

intent to kill the victim. The trial court also determined that the probative value of the

evidence was not outweighed by the danger of unfair prejudice. The evidence established

the volatile nature of their relationship and the Defendant’s hostility toward the victim.

In our view, this evidence fits squarely within the Smith rule. See Gilley, 297 S.W.3d at

758.

The crux of the Defendant’s argument is that the prior altercation and threats were

too remote in time to be admissible, occurring approximately fourteen months before the

victim’s murder. However, “remoteness affects only the weight, not the admissibility of

the evidence.” State v. Kiser, 284 S.W.3d 227, 291 (Tenn. 2009) (quoting Smith, 868

S.W.2d at 575. Here, the State sought to establish through this evidence that the

5

The victim had accused the Defendant of having sex with a fourteen-year-old girl. No mention of this

accusation was made at trial.

-31-

Defendant had a settled purpose to harm the victim, and we note that the prior altercation

and threats were not overly remote. Any issue regarding the remoteness of the evidence

went to its weight and not to its admissibility. Accordingly, we conclude that the trial

court did not abuse its discretion by allowing Mr. Dill to testify that the Defendant and

the victim were involved in a prior altercation and that the Defendant twice threatened to

kill the victim in April or May of 2013. See State v. Christopher Brown, No. W2015-

00990-CCA-R3-CD, 2016 WL 1446221, at *8-9 (Tenn. Crim. App. Apr. 12, 2016),

perm. app. denied (Tenn. Sept. 22, 2016) (rejecting the defendant’s contention that an

October 2011 assault on his girlfriend was “too remote” to be relevant to the issue of his

intent on the night of June 22, 2013, when he approached an SUV in which his girlfriend

and three others were riding and shot multiple times into the vehicle; determining that

“the relationship between the parties was squarely at issue during the trial” and noting

that the trial court weighed the probative value of the evidence against the prejudice to

the defendant and found that the evidence was not “particularly prejudicial”); State v.

Warner Conrad Bias, No. E2007-01452-CCA-R3-CD, 2009 WL 3817291, at *14-16

(Tenn. Crim. App. Nov. 16, 2009) (allowing evidence of a 1997 order of protection and

previous threats made by the defendant toward the victim and her family to be admitted

when the victim was killed in March 2001; holding that the evidence was probative of

both the defendant’s motive and intent and to rebut his theory of self-defense and lack of

premeditation and that, although the evidence was prejudicial, its probative value was not

outweighed by the danger of unfair prejudice).

C. Homeless Community

The Defendant complains that the trial court erred by limiting his cross-

examination of Timothy Ortega “regarding potentially violent propensities that exist

among the homeless community and other acts of violence committed by others in the

same community.” According to the Defendant, the trial court “abused its discretion by

not allowing the questions to continue or, in the alternative, . . . conduct[ing] a jury-out

hearing to explore the relevance of the questions and their potential answers[.]” The

Defendant contends that Mr. Ortega’s testimony was relevant based upon the testimony

of the pathologist “that there could have been other assailants[,]” that “it was not hearsay

or improper character evidence to discuss other acts or crimes that had been directly

witnessed by Mr. Ortega[,]” and that it “would not have been evidence regarding

reputation or character of other witnesses or their credibility.” The State responds that

the Defendant “cannot demonstrate [that] Mr. Ortega’s testimony was relevant to the

victim’s murder and established an alternative suspect who may have killed the victim,”

and moreover, that he has “failed to show ‘manifest prejudice’ in limiting Mr. Ortega[’s

testimony] about other crimes [Mr. Ortega] witnessed while a member of the homeless

community.”

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Prior to trial, on December 12, 2014, the State filed a motion in limine “regarding

alternate suspects,” requesting that the trial court order defense counsel and any witness

for the defense

not to allude to, refer to, or state or ask any question bearing on the topic

that another person other than the [D]efendant, committed, may have

committed, or was a suspect, in the instant offense, or offer any opinion on

said topic areas, in the presence of the jury without there first being an offer

of proof of said evidence, and a [c]ourt ruling made outside of the presence

of the jury allowing same into evidence.

In support of its motion, the State cited the following Tennessee Rules of Evidence: (1)

Rule 402 “because the evidence is not relevant”; (2) Rule 403 because its probative value

is substantially outweighed by any danger of unfair prejudice; (3) Rule 404 because it is

improper character evidence; (4) Rule 602 because there must first be “evidence

introduced sufficient to support a finding that the witness has personal knowledge of the

matter”; (5) Rule 608 regarding the limitations on impeaching the credibility of a witness;

(6) Rule 701 because it “may be improper lay opinion”; and (7) Rule 802 because it “may

be inadmissible hearsay.” The trial court filed an order on May 18, 2015, stating that a

hearing on this motion and multiple other motions, which included arguments from

counsel, was held on May 1, 2015. In the order, the trial court ruled that, “[p]ursuant to

[the] agreement of the parties,” the motion in limine “regarding alternative suspects” was

granted, as were many other motions.

After Mr. Ortega testified on cross-examination at trial that the “homeless

community” in Murfreesboro was “not all that great” and that he had been assaulted and

robbed before, the prosecutor objected on relevancy grounds. At the bench conference

that ensued, defense counsel argued, “[I]f they are going to paint [the Defendant] as being

the only aggressor around here, then the jury needs to hear that it’s in general a violent

community.” The prosecutor noted that the “alternate suspect” motion had been dealt

with in a pretrial hearing and argued that, if the defense was “going to raise anything

about alternate suspects under the case law,” then the defense had “to have more than just

suspicion that somebody else would have done it.” Defense counsel explained that he

was not identifying a “specific subject” and continued: “Because their theory that if [the

victim] was murdered, then probably . . . anybody’s hand could do it.” The trial court

then summarized the complained of portion of Mr. Ortega’s testimony and observed that

the defense’s “point” that it was “a violent community” had been made. The trial court

continued, “I don’t see any relevance in continuing to talk about any specific incidents or

acts of violence that’s not the subject of this trial. And then if you get into that, you’re

going to be looking at the alternative suspect theory discussed before.” When defense

-33-

counsel was asked if he “plan[ned] on exploring the nature of the homeless community

any further,” he said, “No, I do not.”

The prosecutor then cautioned the trial court and defense counsel that, if Mr.

Ortega was “push[ed] . . . too much,” then Mr. Ortega may reference the August 23, 2013

event where he witnessed or knew that the Defendant pulled a knife on Norman Odgen

and which also involved Officer Watson. Defense counsel said, “Okay.” The trial court

admonished the defense not to pursue further questioning about the violent nature of the

homeless community, again a point that had already been established, unless there was a

reason that additional questions were relevant. Defense counsel again said, “[O]kay.”

The trial court ruled that Mr. Ortega’s testimony could stand but warned, “[I]f the State

raises a relevance question again to that line of questioning, I’m probably going to . . .

sustain the objection.” That concluded the bench conference.

In light of this procedural history, we conclude that plenary review of the

Defendant’s issue is waived. The Defendant has failed to include a transcript or copy of

the May 1, 2015 hearing in the record on appeal. During this hearing, it appears that the

defense agreed to terms of the State’s motion in limine “regarding alternate suspects.”

Without a transcript, we cannot know what, if any, specific evidence was addressed at the

hearing and what, if any, arguments of the parties on the subject were addressed. It is the

Defendant’s duty to prepare a record that conveys “a fair, accurate and complete account

of what transpired with respect to those issues that are the bases of the appeal.” Tenn. R.

App. P. 24(b).

Moreover, in the State’s pretrial motion, it was the State who requested a jury-out

hearing prior to the admission of any such testimony “that another person other than the

[D]efendant, committed, may have committed, or was a suspect, in the instant offense, or

offer any opinion on said topic areas[.]” From the trial court’s order, it appears that the

defense agreed to the request. At trial, when the defense began to potentially delve into

this topic during its cross-examination of Mr. Ortega, the State objected on relevancy

grounds, and defense counsel asked for a bench conference. During this bench

conference, however, defense counsel never made a request for a jury-out hearing.

Accordingly, we agree with the State that to the extent the Defendant is claiming on

appeal that he was denied the chance to make an offer of proof on what further

questioning would have shown, this claim is waived. Most importantly, defense counsel

stated during the bench conference that he, in fact, had no additional questions for the

witness “about the nature of the homeless community[.]” See Tenn. R. App. P. 36(a)

(stating that relief is not required if the party seeking it “failed to take whatever action

was reasonably available to prevent or nullify the harmful effect of the error”); Gilley,

297 S.W.3d at 762 (“The failure to make a contemporaneous objection constitute[s]

waiver of the issue on appeal.”).

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In addition, the trial court allowed Mr. Ortega’s testimony to stand and correctly

noted that the defense had established its “point” that the homeless community was a

“violent” place. On appeal, the Defendant argues that Mr. Ortega’s testimony about other

specific acts or crimes by others in the homeless community was relevant because of the

violent nature of that community and the pathologist’s testimony “that there could have

been other assailants.” Initially, we note that Mr. Ortega was permitted to testify that he

had been robbed and assaulted before. Besides, in State v. Larry Scott Reynolds, this

court held that evidence to establish that someone other than the defendant is the guilty

party must be relevant in the trial of the third party and must be limited to such facts as

are inconsistent with the defendant’s guilt and that raise a reasonable inference or

presumption as to the defendant’s innocence. No. M2009-00185-CCA-R3-CD, 2010 WL

5343305, at *30 (Tenn. Crim. App. Dec. 16, 2010) (citing Hensley v. State, 28 Tenn. (1

Hum.) 243 (1848)). “To be admissible, the evidence must be such proof that directly

connects the third party with the substance of the crime[] and tends to clearly point out

someone besides the accused as the guilty person.” Id. (citation omitted). Because the

Defendant’s speculative assertion about members of the homeless community would

have had “no other effect than to cast a bare suspicion on another, or to raise a conjectural

inference as to the commission of the crime by another,” such evidence was inadmissible.

See id. (citation omitted) (holding that evidence a third party had communicated with

victim via a phony MySpace page and was in area on the weekend of the murder was

inadmissible as irrelevant when no evidence suggested a motive for the third party to

commit murder nor was there any animosity between the two, and the third party did not

know where victim lived). Accordingly, the trial court did not abuse its discretion by

limiting the Defendant’s cross-examination of Mr. Ortega.

CONCLUSION

Upon consideration of the foregoing and the record as a whole, the judgment of

the trial court is affirmed.

_________________________________

D. KELLY THOMAS, JR., JUDGE

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