State of Tennessee v. Shawn Nelson Smoot

10/01/2018

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

March 27, 2018 Session

STATE OF TENNESSEE v. SHAWN NELSON SMOOT

Appeal from the Criminal Court for Roane County

No. 2012-CR-119 Jeffery Hill Wicks, Judge

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No. E2017-00367-CCA-R3-CD

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A Roane County grand jury indicted the defendant, Shawn Nelson Smoot, with the first

degree murder of the victim, Brooke Morris, and later convicted him of the same, for

which he received an enhanced sentence of life imprisonment without the possibility of

parole. The defendant raises the following issues on appeal: (1) the trial court erred

when allowing the introduction of evidence seized during the warrantless search of his

home under the theory of inevitable discovery; (2) the trial court erred when allowing

expert ballistics and firearms identification testimony; (3) the trial court erred when

allowing the introduction of evidence related to the victim’s order of protection against

the defendant; (4) the trial court erred when denying the defendant’s motion to rehear all

pretrial motions; (5) the trial court erred when allowing the victim’s landlord to render

hearsay testimony regarding an incident between the victim and the defendant; (6) the

trial court erred when allowing several witnesses to offer improper character evidence

under Tennessee Rule of Evidence 404(b); (7) the trial court erred when denying the

defendant’s request for a trial continuance so he could obtain a mitigation expert; (8) the

trial court erred when allowing the State to amend the indictment to include an additional

witness twelve days before trial; (9) the trial court erred when denying two motions for

mistrial; (10) the trial court erred when admitting the autopsy report as evidence; (11) the

trial court erred when admitting the prior consistent statement of the defendant’s

roommate into evidence; (12) the trial court erred when excluding the victim’s text

messages to her friends from evidence; (13) the trial court erred when instructing the jury

on flight; (14) the State committed prosecutorial misconduct when making improper

comments to the jury regarding evidence; (15) the State committed prosecutorial

misconduct when commenting during closing arguments on the defendant’s failure to

testify; (16) the evidence was insufficient to support the jury’s guilty verdict; (17) the

State made an improper “golden rule” argument during the sentencing phase of trial; (18)

the evidence was insufficient to support the jury’s imposition of a life sentence without

the possibility of parole; and (19) the cumulative effect of these errors warrant a reversal

of the verdict. Based on the arguments of the parties, our review of the record, and the

pertinent law, we conclude the trial court erred when admitting the evidence seized

during the search of the defendant’s residence, when admitting certain hearsay statements

contained in the order of protection documents, and when admitting the prior consistent

statement of the defendant’s roommate. These errors were harmless, and their

cumulative effect did not change the outcome of either phase of trial. Discerning no

further errors, we affirm the judgment of the trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS

and ROBERT L. HOLLOWAY, Jr., JJ., joined.

Robert L. Jolley, Jr., Knoxville, Tennessee, for the appellant, Shawn Nelson Smoot.

Herbert H. Slatery III, Attorney General and Reporter; Jeff Zentner, Assistant Attorney

General; Russell Johnson, District Attorney General; and Tiffany Smith, Assistant

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

OPINION

Facts and Procedural History

This appeal arises as the result of the victim’s death on October 15, 2011. The

evening of October 14, 2011, the victim left her car in the parking lot of Altruda’s

Restaurant in Knoxville, Tennessee and spent the night with a friend. The next morning,

the victim called the defendant, with whom she previously had a romantic relationship,

and asked for a ride to her car. The defendant declined, indicating he would not be in the

area, but the two remained in constant contact throughout the day via six telephone calls

and forty-three text messages.

Eventually, the defendant and the victim went to Buffalo Wild Wings and Wild

Wings Café together. While at Wild Wings Café, the two sat at the bar and were served

by bartender Alexandria Dukic, who was familiar with the defendant because he

frequented the bar. The defendant’s receipt, authenticated at trial by Eric McCann, the

general manager of Wild Wings Café, confirmed the defendant ordered a bucket of beer

and a Smirnoff Strawberry shot. The defendant was not as talkative as usual. Ms. Dukic

did not observe any other odd behavior but felt tension between the defendant and the

victim. At some point, the victim went to the restroom, leaving the defendant alone at the

bar. In her absence, the defendant ordered and drank the Smirnoff Strawberry shot. The

defendant then paid the bill and left with the victim around 6:30 p.m. Security footage

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showed the defendant open the door for the victim, and the victim walking noticeably

ahead of the defendant.

The defendant’s cell phone records indicated that while at Wild Wings Café, he

sent the victim a text message at 5:45 p.m. stating, “Don’t f*** this up.” The defendant

sent another text message at 6:31 p.m. stating, “Please don’t f*** this up!” Cell phone

records did not show any further communications between the two after this time.

The victim and Daniel Hawkins also sent text messages to one another throughout

the day. Mr. Hawkins previously lived in Knoxville but moved to Colorado for work and

maintained what he described as a “friends with benefits” relationship with the victim.

Mr. Hawkins was in town for a football game and attempted to make plans with the

victim, who was not going to the game but planned to meet Mr. Hawkins afterwards. Mr.

Hawkins sent the victim a text message at 5:53 p.m. advising her of his location, and she

never responded. Mr. Hawkins sent a follow-up text message at 10:20 p.m. stating, “Uh,

Where are you darling?” Again, the victim never responded. Mr. Hawkins returned to

Colorado the next day without seeing the victim.

Around 8:00 p.m., Debra and Larry McCabe were driving down Blair Road. Mrs.

McCabe noticed what appeared to be a body lying close to the intersection of Blair Road

and Old Blair Road. They turned around to see if the individual needed help and

discovered the victim’s body. There was a lot of blood at the scene, and the victim

appeared injured. Mr. McCabe checked the victim’s pulse and did not find one. Mrs.

McCabe called 911, and first responders arrived at the scene shortly thereafter.

Officer Stanley Hohulin with the Roane County Sheriff’s Department was the first

emergency responder to reach the scene. Officer Hohulin received a call regarding the

discovery of the victim’s body around 8:06 p.m. and arrived approximately two minutes

later. When emergency medical services (“EMS”) arrived, paramedics confirmed the

victim’s death. Paramedics discovered the victim’s cell phone under her body, and

Officer Hohulin directed them to turn off the phone and place it on her chest.

Detective Art Wolfe, then a detective with the Roane County Sheriff’s

Department, received a call a little after 8:00 p.m. on October 15, 2011, requesting he

investigate a fatality on Old Blair Road. The area was secluded and rural. There were no

street lights, and the houses were not visible from the street. Detective Wolfe used a

flashlight to assess his surroundings. As he approached the victim’s body, which

paramedics had already covered with a yellow security blanket, he noted droplets of

blood on the street that became larger pools of blood the closer he got to the victim. The

victim’s cell phone and purse were discovered at the scene. The victim’s purse, which

had blood stains on its interior and exterior, contained a wallet, money, credit cards, and

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jewelry. The detectives identified the victim using the driver’s license found inside her

wallet. The victim’s clothes and boots were bloody, and blood stains were visible on

both the tops and soles of her boots. Detective Wolfe found two unfired and three fired

shell casings near the victim’s body. Detective Wolfe collected, sealed, and placed all

evidence in the evidence lockers at the Roane County Sheriff’s Office and photographed

the crime scene. Subsequent tests did not reveal the defendant’s DNA or fingerprints on

any of the evidence found at the crime scene.

Detective Wolfe contacted Jeff Vittatoe, a criminal investigator for the Ninth

Judicial District Attorney General’s Office, and Brad Nealon, a special agent with the

Tennessee Bureau of Investigation (“TBI”), and asked them to come to the crime scene

off of Blair Road to assist with the investigation. Upon arrival, officers handed

Investigator Vittatoe the victim’s cell phone so he could find contact information for the

victim’s next-of-kin and determine who she had been in contact with prior to her death.

Investigator Vittatoe gave Agent Nealon the victim’s phone, and Agent Nealon later took

it to the TBI Technical Services Unit in Nashville for analysis.

After running a background report on the victim, officers determined she had an

active order of protection against the defendant. Authorities then identified the defendant

as a person of interest and issued a “be-on-the-lookout” or “BOLO” for him. Detective

Wolfe remained at the crime scene until approximately 6:00 a.m., at which time he

returned to the Roane County Sheriff’s Office and began searching databases for

information regarding the defendant. Around 3:00 p.m. on October 16, 2011, Detective

Wolfe returned to the crime scene and found another shell casing.

Early in the morning of October 16, 2011, Investigator Vittatoe and his partner,

Investigator Brendan DeBoer, travelled to the defendant’s suspected residence. They

watched the townhouse for approximately one hour and did not observe any activity.

They noted a vehicle registered to the defendant parked outside the townhouse and

received the defendant’s voicemail when calling the telephone number associated with

the address. Around 6:00 a.m., Investigators Vittatoe and DeBoer knocked on the

townhouse door. The defendant answered, wearing only boxer shorts. Investigator

Vittatoe asked the defendant if he would be willing to answer a few questions, and the

defendant agreed but first excused himself to get dressed. The defendant returned

wearing jeans, a sweatshirt, and tennis shoes.

Investigator Vittatoe asked the defendant if he knew the victim. The defendant

said the victim used to be an employee of the Allstate Insurance Company he owned.

The two previously dated and continued to be friends after the relationship ended. The

defendant asked the investigators what was going on, and they said they were conducting

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a welfare check on the victim. Investigator Vittatoe asked the defendant when he last

saw the victim, and the defendant said around 6:30 or 7:00 p.m. the prior evening.

Investigator Vittatoe asked the defendant to recount all interactions he had with

the victim on October 15, 2011. The defendant indicated the victim called him at 9:30

a.m., said she was at a friend’s house in Knoxville, and asked for a ride to her vehicle

because she left it in a restaurant parking lot the proceeding evening. The defendant

picked the victim up from the friend’s house around 1:00 p.m. and took her back to her

house, where she showered and dressed. They then went to Buffalo Wild Wings to watch

a football game, eat dinner, and have drinks. They left around 5:30 p.m. and went to

Wild Wings Café for a few beers. The victim had plans to meet a friend in town from

Colorado, so the defendant took her back to her car at Altruda’s Restaurant around 6:30

or 7:00 p.m. but did not see her get in the car. After dropping off the victim, the

defendant went home, took a nap, and did not leave for the remainder of the evening.

Investigator Vittatoe asked if the defendant owned any weapons, and the

defendant said he owned a shotgun. Investigator Vittatoe then asked whether the

defendant owned any handguns. Only then did the defendant admit to owning a Kel-Tec

P-32 handgun.

During questioning, Chief Tim Phillips from the Roane County Sheriff’s

Department and Agent Nealon arrived and waited in the parking lot. Investigator

Vittatoe asked the defendant if he would hang out with Investigator DeBoer while he

spoke with the officers outside, and the defendant agreed. Investigator Vittatoe told the

officers the defendant admitted to being with the victim until 6:30 or 7:00 p.m. the prior

night and to owning a Kel-Tec P-32 handgun, so he wanted to confront the defendant

about the victim’s death. Agent Nealon agreed he could do so.

Investigator Vittatoe returned and told the defendant the victim’s body had been

discovered in Roane County, and she had been murdered. The defendant just shook his

head and said, “Okay.” Investigator Vittatoe asked, “[I]f I were to tell you that your

phone was discovered near the crime scene . . . what would you say to that?” The

defendant did not respond. Investigator Vittatoe said, “I don’t think you’re being

completely honest with me. We’d like to – we’d like to [get] to the truth here. And it

wouldn’t look good on you if the evidence proved that you were being dishonest.” The

defendant then offered a slightly different version of events. The defendant said that after

dropping the victim off at her car, he went home but subsequently decided drive to South

Carolina. He changed his mind en route, turned around, stopped at a liquor store, and

went home. Investigator Vittatoe told the defendant he believed the defendant was

responsible for the victim’s death.

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Investigator Vittatoe then informed the defendant he would be detained while

officers searched his residence. Investigator Vittatoe patted down the defendant, who did

not have any weapons, and placed him in the back of a patrol car without handcuffs.

Investigator Vittatoe did this for the safety of the officers, to preserve evidence from

destruction, and due to the pending order of protection. Investigator Vittatoe had not yet

seen the order of protection and thought the defendant potentially admitted to being in

violation of it. Around 10:30 a.m., officers confirmed the order of protection was still

active but allowed social contact between the defendant and the victim, so the officers let

the defendant out of the patrol car.

The search of the defendant’s townhouse occurred around 5:50 p.m. on October

16, 2011. Investigators Vittatoe and Nealon searched the ground floor. Inside a front

room, they found a cardboard box containing a Kel-Tec P-32 gun case, a Kel-Tec P-32

owner’s manual, and Kel-Tec P-32 gun safety locks. The handgun was not inside the

case. In a closet between the living room and dining room, Investigator Vittatoe found a

cardboard box containing both handgun and shotgun ammunition. Significantly,

Investigator Vittatoe found a box containing Browning 7.65 caliber ammunition, the

same caliber of ammunition found at the murder scene. An orange tag on the box said,

“Don’s Weaponry,” and included the store’s phone number. The investigators also found

a third box on the floor of the closet containing one live round.

During the course of the search, Brett Meloccaro, the defendant’s roommate,

requested entrance to the residence to gather the things needed for an upcoming out-of-

town trip. An officer escorted Mr. Meloccaro inside the townhouse. None of the officers

asked Mr. Meloccaro for his permission to search the residence.

On October 17, 2011, Mr. Hawkins learned of the victim’s death. Upon hearing of

her death, he contacted Detective Wolfe to advise he had been in communication with her

on October 15, 2011, but had not seen her. He wanted to make it clear he had nothing to

do with her death.

The same day, Amy Reed Denlinger, who worked with the defendant at Allstate,

ran into the defendant at their office. The defendant was putting part of his computer into

his Jeep while trembling and shaking profusely. Ms. Denlinger asked the defendant if

she could help, and the defendant said, “Turn back time.” Ms. Denlinger said she heard

about the victim’s death and that the defendant and Mr. Meloccaro were suspects. The

defendant told her Mr. Meloccaro was not involved, so Ms. Denlinger asked the

defendant whether he had any direct or indirect involvement in the murder. The

defendant responded, “Both.”

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From the crime scene, EMS transported the victim’s body to Knoxville Forensic

Center for autopsy. On October 17, 2011, Dr. Steven Cogswell, then the deputy chief

medical examiner in Knox County, performed the autopsy in the presence of Detective

Wolfe. Dr. Cogswell found the victim suffered three gunshot wounds fired from an

undetermined range – one to the chest, one to the neck, and one to the back of the head.

The victim suffered a penetrating gunshot wound to the chest. Detective Wolfe received

this bullet during the autopsy and preserved it as evidence. Dr. Cogswell determined the

bullet entered through the victim’s left shoulder, moved into to her chest cavity, pierced

her left lung, and travelled to the middle of her chest, hitting her pulmonary artery. The

victim suffered a perforating gunshot wound to her neck. The bullet entered just below

the left side of the victim’s jaw, travelled through her neck, hit the left jugular vein, and

exited the right side of the neck. The bullet did not leave any fragments inside the

victim’s body. Finally, the victim suffered a penetrating gunshot wound to her head.

Detective Wolfe also received this bullet during the autopsy and preserved it as evidence.

This bullet entered the back of the victim’s head, almost midline. Half the bullet went

into the victim’s brain, and the other half imbedded into her skull. Bullet fragments hit

the victim’s cerebellum and brain stem.

Dr. Cogswell could not determine the exact order in which the victim received the

gunshot wounds but opined the gunshot wound to the head occurred last, as brain stem

damage causes instantaneous death. Dr. Cogswell further opined the victim was alive

when shot in the neck and chest because both wounds caused severe bleeding, and his

examination showed the victim inhaled and swallowed some of the blood lost from her

neck. Moreover, the victim was alive long enough after the gunshot wound to her chest

for it to cause the accumulation of approximately a quart of blood in her chest cavity.

Blood stains on the bottom of the victim’s boots indicated she was on her feet or slumped

over in a seated position at some point during the shooting. Without medical assistance,

any of the gunshot wounds would eventually have been fatal.

Dr. Cogswell tested samples taken from the victim for gunshot residue. The tests

were negative. Dr. Cogswell opined this indicated the shots were fired from over three to

five feet away or something blocked the powder from getting to the body.

The ensuing investigation took months. During that time, officers obtained the

defendant’s cell phone records from Verizon, and Karen Milbrandt certified their

authenticity at trial. Through those records, Agent Nealon pieced together the

defendant’s interactions with the victim on October 15, 2011. There were six telephone

calls between the two that began at 9:17 a.m. and ended at 1:02 p.m. There were also

forty-three text messages between the two that primarily addressed the victim’s request

that the defendant take her to her car and their ensuing plans for the day. These text

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messages began at 9:18 a.m. and ended with the defendant’s final text at 6:31 p.m.,

stating, “Please don’t f*** this up!”

Agent Nealon additionally analyzed records that documented communications

between the defendant and the victim going back to August 22, 2011. The victim called

the defendant on August 22, 2011, and the defendant then called her twice the same day.

There were no additional calls until September 17, 2011, when the defendant called the

victim using “star 67” to block his number from appearing on her phone. This continued

on September 22 and September 24, 2011. On September 28, 2011, the victim called the

defendant at 3:00 a.m., and the defendant called her later that afternoon. Between

September 30 and October 4, 2011, the defendant and the victim had multiple calls back

and forth, and the defendant did not use “star 67” to block his phone number. However,

on October 8, 2011, the defendant again initiated a call to the victim using “star 67.” On

October 11, 2011, beginning at 1:23 a.m., there were ten calls between the defendant and

the victim, with the victim placing the initiating call. There were twenty-six calls

between the defendant and the victim on October 12, 2011, and three on October 13,

2011. The defendant initiated the calls on both dates. On October 14, 2011, the

defendant called the victim at 7:00 a.m., again using “star 67” to block his identity from

her phone. He followed up with four additional calls between 7:01 a.m. and 7:36 a.m.

and preceded each with “star 67.” There were a total of twelve calls between the

defendant and the victim on October 14, 2011, and the defendant initiated all but one of

them.

Michael Frizzell, a special agent with the TBI and task force officer for the

Federal Bureau of Investigation (“FBI”), analyzed the defendant’s cell phone records for

information regarding the cell phone tower used to communicate each call and text

message occurring between 4:00 p.m. and 11:59 p.m. on October 15, 2011. When in use

from approximately 4:00 p.m. through 6:31 p.m., the defendant’s cell phone

communicated with towers in proximity to Buffalo Wild Wings and Wild Wings Café.

Then, approximately two hours lapsed without any cell phone usage by the defendant. It

was not possible for Agent Frizzell to determine the cell phone’s location during that time

period. From approximately 8:51 p.m. through 9:59 p.m., the defendant’s cell phone

resumed communications with towers in proximity to the defendant’s residence and

Altruda’s Restaurant. From approximately 10:00 p.m. to 10:50 p.m., the defendant’s cell

phone communicated eighty-four times with a tower in proximity to his home. From

10:53 p.m. to 10:57 p.m., the defendant’s cell phone communicated three times with the

same tower close to his home. From approximately 11:04 p.m. through 11:29 p.m., the

defendant’s cell phone communicated with multiple towers throughout Knoxville,

Tennessee in a manner indicating the cell phone was in motion and travelling east. The

phone communicated with a tower in Kodak, Tennessee at approximately 11:33 p.m. and

then appeared to turn around and begin travelling west back to the defendant’s residence.

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The final cell site activity occurred at approximately 11:56 p.m. with the tower near the

defendant’s residence.

Doug Williams, also a special agent for the TBI, conducted a forensic examination

of the victim’s cell phone. He did not obtain any records from her cell phone provider,

Cricket. Twice Agent Williams attempted to use computer software to pull information

off the phone but could not obtain anything. He instead placed the phone in a cradle and

took photographs of the information in the phone. The defendant’s phone records

revealed communications with the victim that were not found during the forensic analysis

of the victim’s cell phone, leading Agent Williams to believe the victim had deleted some

of her phone calls and text messages. The last text message in the victim’s phone was to

someone named “Tommy Gardner.”

Officers also interviewed over fifty witnesses and obtained security surveillance

video from the home of Edwin Kelley, Jr., located near the crime scene. The surveillance

footage revealed only one unidentified vehicle between 7:00 p.m. and 8:00 p.m. on

October 15, 2011. The vehicle turned, pulled into Mr. Kelley’s driveway at 7:58:52 p.m.,

and pulled out at 7:59:08 p.m. The vehicle then drove towards the corner of Blair Road

and Old Blair Road.

In addition, Detective Wolfe obtained the petition for order of protection filed by

the victim against the defendant on January 18, 2011. The petition indicated the

defendant and the victim had dated, and the defendant owned a pistol that he kept in his

truck. The petition further alleged the defendant had abused or threatened to abuse the

victim in Knox County, and the victim was in “immediate and present danger of abuse.”

The victim requested a “no contact order of protection” and that the defendant, “pay for

the repair of the bathroom window.”

The Fourth Circuit Court entered an ex parte order of protection against the

defendant on January 20, 2011, and set a hearing for February 10, 2011. Prior to the

hearing, the victim and the defendant entered into an agreed order of protection that was

to be effective until February 9, 2012, so it was still active when the victim died. This

order specified: 1

[T]he court makes no finding of fact; no hearing has been held; no

testimony has been offered; and the respondent has made no admission

with reference to this proceeding by virtue of his/her consent to the

agreement, through counsel, or otherwise. This order has no effect upon

1

The original document contained the emphasis.

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[the defendant’s] Second Amendment right to keep and bear arms.

That right is unimpaired by this order.

Lisa Callis, a representative from the Fourth Circuit Court, certified the accuracy of the

copies of the petition for order of protection, ex parte order of protection, and agreed

order of protection exhibited at trial.

On June 18, 2012, a Roane County grand jury returned an indictment against the

defendant charging him with one count of first degree murder. The defendant failed to

appear for his arraignment, so the trial court issued a capias, and Detective Wolfe

contacted the U.S. Marshall Service regarding the defendant’s arrest. The defendant had

moved to Pearl River County, Mississippi at the time, where he had lived as a child.

After being contacted by the U.S. Marshall Service, Sheriff David Allison with the Pearl

River Sheriff’s Department issued a BOLO for the defendant. He later arrested the

defendant in the parking lot of a local business. At the time of his arrest, the defendant

had a shotgun, clothing, and sleeping bag in his car.

Prior to trial, the defendant filed numerous pretrial motions, including a motion to

suppress the evidence seized during the searches of his home and vehicle, motion to

preclude the testimony of Agent Steve Scott regarding ballistics evidence, motion to

exclude evidence related to the order of protection, motion to preclude evidence of flight,

and several motions to continue the trial. The trial court granted the motion to suppress

but ultimately allowed the admission of the evidence seized during the search of the

defendant’s home because the officers would have inevitably discovered it had they

asked Mr. Meloccaro for permission to search the common areas of the residence. The

trial court denied the motion to exclude the order of protection documents but ordered the

parties to redact the victim’s hearsay statements from the petition for order of protection.

The trial court denied the motions to preclude Agent Scott’s testimony regarding

ballistics evidence and allegations of flight. The trial court granted at least three motions

to continue the trial but ultimately denied the defendant’s request to continue the setting

for July 25, 2016.

The State also filed numerous motions and notices, including a notice of its intent

to seek life imprisonment without the possibility of parole and notice of its intent to

introduce evidence of prior bad acts pursuant to Tennessee Rule of Evidence 404(b). The

trial court held an evidentiary hearing regarding the State’s notice of its intent to

introduce evidence of prior bad acts that spanned the course of several days. It heard

testimony from eleven witnesses, including Carol Meredith, Dr. Michelle Hall, Kaitlyn

Okal, and James Cordell. The trial court subsequently entered an order allowing these

witnesses to testify at trial as to prior interactions with the defendant that were related in

some manner to his relationship with the victim.

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At trial, the State called Tina Gregg, Larry McCabe, Debra McCabe, Detective Art

Wolfe, Officer Stanley Hohulin, Lisa Callis, Dr. Steven Cogswell, Investigator Jeff

Vittatoe, Dr. Michelle Hall, Steve Scott, Karen Milbrodt, Brett Meloccaro, Don Hill,

Agent Brad Nealon, Eric McCann, Agent Doug Williams, Agent Michael Frizzell,

Alexandria Dukic, Daniel Hawkins, Kaityn Okal, James Cordell, Carol Meredith, Sheriff

David Allison, and Amy Reed Delinger as witnesses. Mr. and Mrs. McCabe, Detective

Wolfe, Ms. Callis, Mr. Meloccaro, Mr. Hawkins, Ms. Delinger, Dr. Cogswell,

Investigator Vittatoe, Ms. Milbrodt, Agent Nealon, Mr. McCann, Agent Williams, Agent

Frizzell, Ms. Dukic, and Sheriff Allison all testified consistently with the foregoing. Ms.

Gregg, the victim’s mother, identified a photograph of the victim at trial and indicated

she last spoke with the victim on October 12, 2011. Dr. Hall, the defendant’s ex-wife,

testified regarding her interactions with the defendant about his relationship with the

victim.

According to Dr. Hall, on January 4, 2011, the defendant said his Jeep needed to

be repaired, so Dr. Hall followed him from his office back to their house. The defendant

parked his Jeep at home, and Dr. Hall took the defendant back to his office. While on the

way back to his office, the defendant told Dr. Hall the victim, who worked in his Allstate

office at the time, was crazy and wanted to tell Dr. Hall she and the defendant were

having an affair. Dr. Hall and the defendant then passed the victim in the parking lot of a

gas station near their house. After seeing her, the defendant changed his mind about

returning to the office and asked Dr. Hall to take him home instead.

The victim then called the defendant on his cell phone. Dr. Hall took the phone

and had a thirty minute conversation with the victim. After the conversation ended, Dr.

Hall asked the defendant how the victim knew intimate details like the color of the

defendant’s underwear and the presence of a scar on his penis. The defendant said he left

the bathroom at work without fastening his pants entirely, so the victim saw his

underwear. The victim knew about the scar because they were close friends, and he told

her about it. Dr. Hall asked why the victim knew about past conversations between the

defendant and Dr. Hall. The defendant again said he and the victim were really good

friends, so he told her everything. Dr. Hall asked why the victim could describe pictures

in their home. The defendant said once while Dr. Hall was out of town, the victim came

inside the house before the two went out after work. Eventually, the defendant admitted

to having an inappropriate relationship with the victim but said it was limited to kissing,

spending time together, going out with her friends, and going to dinner together. The

defendant never admitted to being intimately sexually involved with the victim.

Dr. Hall further testified that one night the defendant returned home drunk and

passed out on the couch. Dr. Hall found the defendant’s car parked in the garage with a

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broken windshield. The defendant’s cell phone was open, and Dr. Hall read

inappropriate text messages from unknown numbers. Dr. Hall confronted the defendant,

who blamed the broken windshield on a rock and became argumentative about the text

messages.

The defendant and Dr. Hall got married in 2006. They separated on January 5,

2011, the day after the defendant disclosed his inappropriate relationship with the victim.

The defendant and Dr. Hall remained separated until their divorce became final in June of

2011.

Carol Meredith owned an apartment building and rented a ground level apartment

to the victim. Mrs. Meredith lived in the house next door. On January 16, 2011, Mrs.

Meredith received a call from the tenant that lived above the victim. The tenant told Mrs.

Meredith she heard terrible screams from the apartment below and requested Mrs.

Meredith’s presence. Mrs. Meredith arrived at the apartment and met the victim at the

door. The victim had been crying, was shaking, and had messy hair. The victim told

Mrs. Meredith she entered the apartment, and the defendant jumped out of her shower,

fought with her, threw her on the tile floor, tried to hit her, beat her head against the floor,

and tried to rape her. The defendant had entered the apartment through the victim’s

bathroom window, causing the window frame to break and a hairline crack in the

window. The police were called, and Mrs. Meredith went home.

The next day, Mrs. Meredith’s husband called the defendant and said he was

responsible for the cost of repairing the window. The defendant agreed, and Mr.

Meredith requested $275.00. The defendant mailed Mr. Meredith a money order for

$250.00 along with a letter of apology stating, in part, “Women make us do crazy

things.” In response, Mrs. Meredith demanded the remaining $25.00. The defendant

responded by sending a second letter and enclosing $25.00 cash.

Two of the victim’s friends also testified regarding their interactions with the

defendant and the victim. Kaitlyn Okal, who had been best friends with the victim since

the eighth grade, testified that she first met the defendant in 2010 at a Mexican restaurant

close to the Allstate office. Ms. Okal and the victim met for dinner. The defendant was

present as well and had been drinking “shot after shot.” When it was time to leave the

restaurant, the victim got into Ms. Okal’s car so she could take the victim back to her car

at Allstate. The defendant became furious that the victim did not ride with him and

followed. Once at Allstate, the victim exited Ms. Okal’s car and got into her own

vehicle. While the victim’s driver’s side door was open, the defendant grabbed her by

the arm. The victim then got back into Ms. Okal’s car, and the two went to a friend’s

house for a couple of hours until they felt safe returning to the victim’s car.

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Ms. Okal later saw the defendant at a home builder’s association meeting she

attended with her husband. The defendant asked Ms. Okal not to say anything to his wife

about his relationship with the victim. At the time, the defendant referred to the victim as

his girlfriend. Another time, the defendant called Ms. Okal and asked if the victim had a

boyfriend or any men she considered friends.

James Cordell testified he was friends with the victim and had met the defendant a

couple of times. The defendant once showed up at a birthday party for one of the

victim’s friends. The victim was upset by the defendant’s presence, so Mr. Cordell asked

him to leave. The defendant told Mr. Cordell the victim had ruined his life by telling his

wife about their relationship.

At trial, the defendant’s roommate, Mr. Meloccaro, also identified a picture of a

Kel-Tec P-32 as the type of pistol owned by the defendant. In addition to testifying

regarding his brief interaction with the officers during their search of the townhouse he

shared with the defendant, Mr. Meloccaro testified that October 14, 2011, the day before

the victim’s death, there was a “pocket pistol” on the table in their townhouse. He asked

the defendant about it, and the defendant said he took it out of his vehicle to be cleaned.

Mr. Meloccaro admitted to previously telling officers the defendant kept the gun in his

car.

Don Hill, the president of Don’s Weaponry and Shooting Gallery, Inc., in North

Little Rock, Arkansas, also testified regarding the defendant’s gun ownership. Mr. Hill

produced receipts showing the defendant bought a Mossberg 500 shotgun September 1,

2005, and a Kel-Tec P-32 pistol and a box of ammunition on January 14, 2009. Mr. Hill

identified the gun box found during the search of the defendant’s home as the box that

would have held the Kel-Tec P-32 handgun purchased from his store. He also identified

the box of ammunition found during the search as the ammunition purchased at his store.

Finally, the State called Agent Steve Scott to testify as a firearms identification

and ballistics expert. After hearing testimony regarding his related training and

experience, the trial court accepted his designation as such. The State asked Agent Scott

to determine the caliber of the bullets and cartridges found at the crime scene, the caliber

of the bullets recovered during the autopsy, and the type of firearm from which they were

fired. The State additionally requested Agent Scott to perform proximity testing on the

victim’s shirt.

Agent Scott determined, to a reasonable degree of scientific certainty, the bullets

and cartridges were all the same brand – Fiocchi. They were also the same caliber – .32

automatic or 7.65 cartridge cases. Agent Scott opined the three cartridge cases found at

the scene and the bullets recovered during the autopsy had been fired from the same gun.

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When reaching these conclusions, Agent Scott examined the bullets and cartridge

cases under a microscope using a magnification of 40X. He measured and quantified

certain class characteristics on each fired bullet, such as caliber and number of riffling

groves, and based on their similarities, determined they had been fired from the same

firearm. Agent Scott then inputted the data into a general riffling characteristics database

created by the FBI and received a list of firearm manufacturers making guns that fit the

riffling profile. The list included firearm manufacturers Astra, Colt, Dickson, Kel-Tec,

Liberty, Ruby, and Unique.

With respect to the live cartridges found at the scene, Agent Scott compared them

to one another to determine whether there were similar chamber marks, magazine marks,

feed ramp marks, or extractor ejector marks and determined they too had been fired from

the same firearm. Agent Scott conducted a similar comparison of the unfired cartridge

cases and concluded at least one fired and one unfired cartridge had been cycled through

the same gun. Agent Scott compared the three unfired cartridges from the crime scene

and unfired cartridges seized from the defendant’s house and concluded they were the

same caliber and brand.

Agent Scott examined the victim’s shirt and noted one hole in the back of the left

shoulder/upper arm area. He then microscopically examined the area and chemically

processed it for the presence of gun powder and lead residues. Agent Scott found scant

residues but the quantity found were insufficient to determine from what proximity the

victim had been shot.

Following a Momon hearing, the defendant declined to testify. The defendant then

entered two agreed stipulations regarding the testimony that would have been rendered by

Edwin Kelley, Jr. and William Tobin had they been called as witnesses at trial. Mr.

Kelley would have testified that he was a resident of 809 Old Blair Road, approximately

100 yards from the location the victim’s body was found on October 15, 2011. He

provided the Roane County Sheriff’s Office with a copy of the surveillance video from

his home security system for the evening of October 15, 2011, which depicted only one

vehicle between 7:00 p.m. and 8:00 p.m. During that time period, an unidentified vehicle

turned into Mr. Kelley’s driveway at 7:58:52, left his driveway at approximately 7:59:08,

and drove towards the corner of Blair Road and Old Blair Road. The defendant then

played the surveillance video for the jury.

Per the second stipulation, Mr. Tobin would have testified as an expert in the

fields of forensic metallurgy and structural engineering and countered the expert opinions

rendered by Agent Scott. Mr. Tobin disagreed with Agent Scott’s underlying assumption

that each firearm makes a unique set of tool markings that allow firearms examiners to

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identify the markings of one firearm to the exclusion of others. Mr. Tobin based his

opinion on the lack of scientific standards, objective testing, and study in the area of

firearm identification. Mr. Tobin’s opinions were further set forth in his article

Hypothesis Testing of the Critical Underlying Premise of Discernible Uniqueness in

Firearms-Toolmarks Forensic Practice, which was exhibited and provided to the jury.

After being charged, hearing closing arguments, and deliberating, the jury found

the defendant guilty of premeditated first degree murder. The trial court approved the

verdict as the thirteenth juror. The trial court later held a sentencing hearing where the

jury heard Ms. Gregg, the victim’s mother, and Brittany Myers, the victim’s sister, give

victim impact statements. The defendant did not present any proof.

The State sought a sentence of life in prison without the possibility of parole under

Tennessee Code Annotated section 39-13-204(i)(5) because “[t]he murder was especially

heinous, atrocious, or cruel, in that it involved torture or serious physical abuse beyond

that necessary to produce death.” The defendant objected, asserting the victim died

following three gunshots fired over the course of approximately four minutes. These

circumstances were insufficient to support the aggravating factor cited by the State. In

response, the State contended the evidence was sufficient to establish the defendant used

greater force than necessary to kill the victim. Dr. Cogswell testified that all three shots

were fatal, though the first two did not immediately kill the victim. The victim was alive

and likely aware she was dying as the gunshots were fired. The State then cited several

Tennessee cases finding torture or serious physical abuse when the victim was aware she

would die but did not immediately do so. The trial court overruled the defendant’s

objection.

The State then made its closing argument, during which it painted a detailed image

of the circumstances surrounding the victim’s death for the jury. The defendant declined

to make a closing argument. After being charged, the jury returned a verdict sentencing

the defendant to life in prison without the possibility of parole. Relying on the final

autopsy report, the jury found the murder was heinous and cruel because “gunshot[s] B

and C cause[d] aspirations and swallowing of blood [and] lacerations at [the] base of

[the] tongue not resulting in immediate death, causing pain and suffering.” The jury

further found the murder constituted torture, as evidenced by the two live rounds found at

the scene, so “[s]he was aware of what was happening while hearing multiple shots and

clicks.”

The defendant filed numerous post-trial motions, including a motion for new trial,

pro se motion for judgment of acquittal or for a new trial, renewed motion for judgment

of acquittal as to sentencing findings, amended motion for a new trial, and second

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amended motion for new trial. These motions included all of the arguments raised by the

defendant on appeal. The trial court denied all motions, and this timely appeal followed.

Analysis

I. Suppression of Evidence

The defendant first argues officers searched his home and car pursuant to invalid

search warrants, and the trial court erred when allowing the introduction of the evidence

seized during those searches under a theory of inevitable discovery. The Fourth

Amendment to the United States Constitution and Article I, section 7 of the Tennessee

Constitution guarantee freedom from unreasonable searches and seizures. These

guarantees exist to “safeguard the privacy and security of individuals against arbitrary

invasions of government officials.” Camara v. Municipal Court, 387 U.S. 523, 528

(1967); see State v. Downey, 945 S.W.2d 102, 106 (Tenn. 1997). A search and seizure

conducted under a valid search warrant is presumptively reasonable, but a warrantless

search is presumptively unreasonable and the evidence discovered is subject to

suppression unless the State demonstrates the search or seizure was conducted pursuant

to an exception to the warrant requirement. State v. McCormick, 494 S.W.3d 673, 678

(Tenn. 2016) (internal citations omitted). The State has the burden of demonstrating, by

a preponderance of the evidence, that a warrantless search passed constitutional muster.

State v. Harris, 280 S.W.3d 832, 839 (Tenn. Crim. App. 2008).

The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated,

and no Warrants shall issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be searched, and the

persons or things to be seized.

U.S. Const. Amend. IV. Accordingly, to comply with the federal constitution, a warrant

must (1) be issued by a neutral and detached magistrate, (2) particularly describe the

place to be searched and the persons or things to be seized, and (3) be based upon

probable cause, “supported by Oath or affirmation.” State v. Davidson, 509 S.W.3d 156,

182 (Tenn. 2016).

Similarly, the counterpart in the Tennessee Constitution states:

That the people shall be secure in their persons, houses, papers and

possessions, from unreasonable searches and seizures; and that general

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warrants, whereby an officer may be commanded to search suspected

places, without evidence of the fact committed, or to seize any person or

persons not named, whose offenses are not particularly described and

supported by evidence, are dangerous to liberty and ought not to be granted.

Tenn. Const. art. 1, § 7.

Tennessee law then imposes an additional affidavit requirement. See Tenn. Code

Ann. § 40-6-103 (providing a “search warrant can only be issued on probable cause,

supported by affidavit, naming or describing the person, and particularly describing the

property, and the place to be searched”); see also Tenn. R. Crim. P. 41(c) (stating that a

“warrant shall issue only on an affidavit or affidavits that are sworn before the magistrate

and establish the grounds for issuing the warrant” and requiring any subsequently issued

warrant to “describe the property or person to be seized”). The commonly recognized

exceptions to these warrant requirements are: (1) search incident to an arrest, (2) the

plain view doctrine, (3) consent to the search, (4) Terry stop and frisk, and (5) the

existence of exigent circumstances. State v. Cox, 171 S.W.3d 174, 179 (Tenn. 2005).

Aside from the exceptions to the warrant requirement, illegally obtained evidence

is admissible under the inevitable discovery doctrine if it would have otherwise been

discovered by lawful means. Nix v. Williams, 467 U.S. 431, 444 (1984); State v. Ensley,

956 S.W.2d 502, 511 (Tenn. Crim. App. 1996). Under this doctrine, the exclusionary

rule is inapplicable if the prosecution can establish that had certain proper and predictable

investigatory procedures been used in the case at bar, those procedures would have

inevitably resulted in the discovery of the evidence in question. State v. Coury, 657

S.W.2d 777, 780 (Tenn. Crim. App. 1983). Proof of inevitable discovery “involves no

speculative elements but focuses on demonstrated historical facts capable of ready

verification or impeachment.” Nix, 467 U.S. at 444 n.5.

Questions of credibility, the weight and value of evidence, and the resolution of

conflicting evidence are matters entrusted to the trial judge, so factual findings on a

motion to suppress are conclusive on appeal unless the evidence preponderates against

them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). When the trial court does not set

forth its findings of fact upon the record of the proceedings, this Court decides on its own

where the preponderance of the evidence lies. Fields v. State, 40 S.W.3d 450, 457 n.5

(Tenn. 2001); see also Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997). As in

all cases on appeal, “the prevailing party in the trial court is afforded the ‘strongest

legitimate view of the evidence and all reasonable and legitimate inferences that may be

drawn from that evidence.’” State v. Carter, 16 S.W.3d 762, 765 (Tenn. 2000).

Appellate courts, however, conduct a de novo review of the application of the law to

those facts. State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998).

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Here, the defendant filed a motion to suppress the search warrants for his home

and car, alleging they were constitutionally deficient because they failed to list the items

to be seized. During an evidentiary hearing on August 13, 2015, Agent Nealon testified

that Agent Jason Legg assisted him with the warrant process. Both officers testified as to

the procedure followed when obtaining the search warrants. Both admitted the affidavits

used to obtain the warrants set forth the items to be seized, but the subsequently issued

warrants did not, nor did they incorporate the language of the affidavits by reference.

The State agreed the warrants were defective but argued the evidence should not be

suppressed because the officers acted in good faith and the evidence seized would have

been inevitably discovered. Following the hearing, the trial court granted the motion to

suppress, finding, “The warrants are obviously deficient. And under these circumstances,

the Court does not have any recourse except to suppress the evidence as a result of the

defective search warrant.” The trial court reserved ruling on the State’s inevitable

discovery argument.

On October 6, 2015, the trial court held an evidentiary hearing to consider the

applicability of the inevitable discovery doctrine. The State intended to call Mr.

Meloccaro, Investigator Vittatoe, and Agent Nealon to testify. Mr. Meloccaro failed to

appear, so the trial court issued a material witness warrant. Investigator Vittatoe testified

regarding the search of the defendant’s residence and indicated officers seized all

evidence related to ammunition and the defendant’s firearm ownership from common

areas inside the townhouse. Agent Nealon then testified regarding the seizure of the

defendant’s cell phone from his bedroom, the TBI’s inability to obtain evidence from the

cell phone, and his subsequent attempts to obtain cell phone records from Verizon

instead.

Mr. Meloccaro later appeared at an evidentiary hearing on November 20, 2015.

Pursuant to the material witness bond and at the State’s expense, Mr. Meloccaro had been

detained in a Guam jail for approximately twenty-six days, traveled to Tennessee via

plane while in handcuffs, was housed in the Loudon County Jail, and brought to the

hearing. Mr. Meloccaro admittedly did not want to be present. Mr. Meloccaro hoped to

be released from jail after testifying. Mr. Meloccaro stated that had the officers asked

him on October 15, 2011, if they could search the residence he shared with the defendant,

he would have consented. After hearing additional arguments from the parties on

December 8, 2015, the trial court ruled in favor of the State and allowed the admission of

the evidence seized during the search of the defendant’s residence.

The search warrants in the present matter undisputedly did not include a

description of the items to be seized, so they were invalid under both the United States

and Tennessee constitutions. The State argues the trial court properly allowed the use of

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the illegally obtained evidence at trial because Mr. Meloccaro testified at the November

20, 2015 hearing, over four years after the search, that he would have consented to a

search of the common areas of the residence had the officers asked. While it is well-

established that consent for a warrantless search may be given by “a third party who

possessed common authority over or other sufficient relationship to the premises or

effects sought to be inspected,” the inevitable discovery doctrine does not apply to the

situation at hand. United States v. Matlock, 415 U.S. 164, 171 (1974). The timing and

hostile circumstances of Mr. Meloccaro’s testimony make it too speculative to meet the

State’s burden of proving that had proper and predictable investigatory procedures been

used, officers would have inevitably discovered the evidence seized during the search on

October 16, 2011.

The exclusionary rule bars the admission of evidence either directly or indirectly

obtained from an unconstitutional search or seizure. State v. Carter, 160 S.W.3d 526,

532 (Tenn. 2005). Accordingly, the trial court erred when allowing the introduction of

the following: Kel-Tec P-32 pistol case; owner’s manual for a Kel-Tec P-32 pistol; box

of Browning 7.65 caliber ammunition with orange tag reading, “Don’s Weaponry;” the

live round of ammunition found in a miscellaneous box in the bottom of the closet; and

photographs of the items seized and boxes searched. The trial court further erred when

admitting the indirectly obtained records from Don’s Weaponry and Shooting, Inc.

(“Don’s Weaponry”) that documented the defendant’s gun and ammunition purchases

and when allowing Don Hill, the owner of Don’s Weaponry, to testify at trial. In

addition to verifying the authenticity of records from his store documenting the

defendant’s purchase of a Kel-Tec P-32 handgun and box of ammunition on January 14,

2009, Mr. Hill stated Fiocchi manufactured the ammunition purchased by the defendant,

and Kel-Tec P-32 pistols were commonly purchased.

Given the overwhelming proof presented at trial, the trial court’s error was

harmless beyond a reasonable doubt. In addition to proof relating to the defendant’s

relationship with the victim, their interactions the night of her death, the defendant’s

subsequent cell phone usage, and the manner in which the victim died, the State

presented proof regarding the defendant’s gun ownership and the type of ammunition

used during the victim’s murder. The defendant willingly advised officers prior to the

search that he owned a Kel-Tec P-32 handgun, and Mr. Meloccaro testified as to the

defendant’s gun ownership. The State exhibited the two fired and three unfired shell

casings found at the crime scene and the two bullets recovered during the victim’s

autopsy. Agent Scott opined all bullets were 7.65 caliber and manufactured by Fiocchi.

After examining the fired bullets, Agent Scott opined they had been fired from the same

firearm and that firearm was manufactured by Astra, Colt, Dickson, Kel-Tec, Liberty,

Ruby, or Unique. This proof was sufficient for the jury to find the defendant guilty of

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premeditated first degree murder in violation of Tennessee Code Annotated section 39-

13-202. The defendant is not entitled to relief on this issue.

II. Admissibility of Ballistics Expert’s Opinions

Next, the defendant challenges the admissibility of the opinions rendered by

ballistics and firearms identification expert Agent Scott, arguing his testimony did not

meet the requirements of McDaniel v. CSX Transp., 955 S.W.2d 257, 263 (Tenn. 1997).

Rules 702 and 703 of the Tennessee Rules of Evidence govern the admissibility of expert

testimony. Rule 702 addresses expert witness requirements and provides, “If scientific,

technical, or other specialized knowledge will substantially assist the trier of fact to

understand the evidence or to determine a fact in issue, a witness qualified as an expert

by knowledge, skill, experience, training, or education may testify in the form of an

opinion or otherwise.” Tenn. R. Evid. 702. Rule 703 addresses the information on which

an expert opinion may be based, stating:

The facts or data in the particular case upon which an expert bases an

opinion or inference may be those perceived by or made known to the

expert at or before the hearing. If of a type reasonably relied upon by

experts in the particular field in forming opinions or inferences upon the

subject, the facts or data need not be admissible in evidence. Facts or data

that are otherwise inadmissible shall not be disclosed to the jury by the

proponent of the opinion or inference unless the court determines that their

probative value in assisting the jury to evaluate the expert’s opinion

substantially outweighs their prejudicial effect. The court shall disallow

testimony in the form of an opinion or inference if the underlying facts or

data indicate lack of trustworthiness.

Tenn. R. Evid. 703.

Courts utilize four basic components when analyzing the reliability of an expert’s

opinion: (1) qualifications assessment, (2) analytical cohesion, (3) methodological

reliability, and (4) foundational reliability. State v. Scott, 275 S.W.3d 395, 402 (Tenn.

2009). The court must first determine whether, based on knowledge, skill, experience,

training, or education, the witness is qualified to render the proffered opinion. State v.

Stevens, 78 S.W.3d 817, 834 (Tenn. 2002). After determining the witness is qualified to

serve as an expert on the subject of his or her testimony, the trial court must ensure the

expert’s opinions are sufficiently reliable to be admitted into evidence, that is whether the

“basis for the witness’s opinion, i.e., testing, research, studies, or experience-based

observations, adequately support[] that expert’s conclusions.” Id. at 834-35. This

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ensures there is not a significant analytical gap between the expert’s opinion and the data

on which the opinion is based. Id.

Courts should additionally consider the methodological and foundational

reliability of the expert’s testimony, and the Tennessee Supreme Court has set forth these

non-exclusive factors for use when doing so:

(1) whether scientific evidence has been tested and the methodology with

which it has been tested; (2) whether the evidence has been subjected to

peer review or publication; (3) whether a potential rate of error is known;

(4) whether, as formerly required by Frye, the evidence is generally

accepted in the scientific community; and (5) whether the expert’s research

in the field has been conducted independent of litigation.

McDaniel, 955 S.W.2d at 263. However, when weighing the reliability of expert

testimony and forensic evidence, consideration of the McDaniel factors is not required

for admissibility nor is rigid application necessary. State v. Davidson, 509 S.W.3d 156,

208 (Tenn. 2016). The application of the factors instead depends on the nature of the

issue, the witness’s particular expertise, and the subject of the expert’s testimony. Brown

v. Crown Equip. Corp., 181 S.W.3d 268, 277 (Tenn. 2005) (internal citations omitted).

Decisions regarding the qualifications, admissibility, relevance, and competence

of expert testimony fall within the broad discretion of the trial court, and this Court will

only overturn such decisions due to the arbitrary exercise or abuse of that discretion.

Davidson, 509 S.W.3d at 208. “A trial court abuses its discretion when it applies

incorrect legal standards, reaches an illogical conclusion, bases its decision on a clearly

erroneous assessment of the evidence, or employs reasoning that causes an injustice to

the complaining party.” Scott, 275 S.W.3d at 404-05.

Prior to trial, the defendant filed a Motion to Preclude Testimony by Steve Scott,

arguing that pursuant to McDaniel, the trial court should prohibit Agent Scott from

testifying as an expert in ballistics and firearm identification because his opinions were

unreliable and not based on established scientific principles. During a subsequent

hearing, Agent Scott testified as to his education, training, and experience related to the

testing of ballistics evidence. Agent Scott then indicated he had previously been admitted

as an expert witness in Tennessee courts over 300 times, primarily in the field of firearms

analysis. Agent Scott explained his microscopic examination of the cartridges found at

the scene and the bullets recovered during the autopsy. Based on similarities in the

ejector marks left on the unfired bullets that had cycled through the gun’s chamber and

fired bullets found at the scene and during the autopsy, Agent Scott opined all had been

fired from the same firearm. Agent Scott relied on his experience of looking at known

- 21 -

matches and non-matches when reaching this conclusion. Moreover, due to his

familiarity with guns manufactured by Kel-Tec and a tour of the Kel-Tec factory during

which he observed the manner in which Kel-Tec ejectors were made, Agent Scott opined

all the bullets had been fired from a Kel-Tec P-32 pistol.

Agent Scott’s findings were peer reviewed by another TBI agent. After

conducting a similar examination, that agent also opined the bullets cycled through the

same firearm. Agent Scott’s supervisor then administratively reviewed his expert report.

Agent Scott referenced the Ruger Ten Barrel Study Test, Ruger Slides Test, a

study using Glock enhanced barrels, and a study using an M-240 as scientific studies

related to the reproducibility/repeatability of firearm toolmarks. One of these studies

included sixty-seven test sets with zero incorrect matches, one had four hundred and

thirty-six samples with five inconclusive results and zero incorrect matches, and another

had 10,000 samples and only six incorrect matches. None of these studies were specific

to firearms manufactured by Kel-Tec. However, the observations made by Agent Scott

during his tour of the Kel-Tec factory left him with the impression all Kel-Tec ejectors

leave the same mark. In a subsequent order, the trial court denied the defendant’s motion

and designated Agent Scott as an expert in the field of ballistics.

At trial, the defendant renewed his objections to Agent Scott’s designation as an

expert, and the trial court overruled them, allowing Agent Scott to testify as to his

qualifications. Agent Scott had a Bachelor of Science in biology and chemistry from

Austin-Peay State University and had been employed by the TBI crime lab firearm

identification unit for thirty years. Agent Scott spent two years training for his TBI job,

which consisted of reading multiple texts on firearm identification, writing papers on

firearm identification, and performing actual examinations. While training, Agent Scott

spent a lot of time using a microscope, the primary instrument used for toolmark

examinations. Agent Scott’s duties for the TBI included: receiving firearm and toolmark

evidence, producing test bullets and cartridges, performing proximity testing, performing

toolmark examinations, and using the National Integrated Ballistic Identification Network

(NIBIN) to determine whether evidence sent to the lab had been used in other unsolved

crimes.

Agent Scott’s additional credentials included the publication of three articles in

related trade journals. He was also named TBI Forensic Scientist of the Year in 2011,

and admitted into the Scientific Working Group for Guns (SWGGUN) in 2012, a group

formed by the Department of Justice to write forensic standards, including standards for

firearm identification. Agent Scott was certified by the Association of Firearm and

Toolmark Examiners (AFTE) in three fields – examination of firearms and firearm

components, toolmark examination, and gun powder and primer residue testing.

- 22 -

Additionally, Agent Scott was certified by the American Board of Criminalists, a general

certification covering basic knowledge of all work performed in crime laboratories

nationwide. At the time of trial, Agent Scott had qualified and testified as a firearms and

ballistics expert in Tennessee approximately 350 times. Based on his credentials, the

State tendered Agent Scott as an expert in the fields of ballistics, firearms, and toolmark

examinations. The trial court again accepted the designation.

When assisting with the investigation of this matter, Agent Scott examined the

bullets and cartridge cases found at the scene and recovered during the autopsy and

concluded, to a reasonable degree of scientific certainty, they had been fired from the

same gun. Agent Scott reached this conclusion after comparing the bullets under a

microscope and noting the similar characteristics. He then narrowed down the potential

maker of the gun by inputting the characteristics found on examination into a database

created by the FBI. In his report, Agent Scott noted he could not further reduce the list of

potential firearm manufacturers. At trial, however, Agent Scott testified that based on his

prior experience investigating the size and shape of extractor marks made by Kel-Tec

manufactured firearms, when fired they typically create a “rectangular mark that has

elements that go through the center of [the bullet] that are roughly parallel.” When

questioned regarding the standard for firearm identification, Agent Scott referenced the

AFTE theory of identification that assumed all firearms are unique, which had never been

disproven.

Relying on Hypothesis Testing of the Critical Underlying Premise of Discernable

Uniqueness in Firearms-Toolmarks Forensics Practice, by William Tobin, an article

challenging firearm and toolmark identification methods, the defendant argues Agent

Scott’s testimony was unreliable because it did not satisfy any of the McDaniel factors

and should have been excluded. The McDaniel factors, however, are non-exhaustive and

not always appropriate for application by the trial court where, as here, an expert’s

conclusions are based on extensive and specialized experience rather than traditional

scientific evaluation. Brown, 181 S.W.3d at 227. Agent Scott based his conclusion that

all bullets were fired by or cycled through the chamber of a Kel-Tec P-32 pistol on his

extensive experience of making similar ballistics comparisons and on a recent tour of the

Kel-Tec factory. Agent Scott’s experience included over thirty years working in the

TBI’s firearms identification unit. Agent Scott spent two years training for his position

with the TBI, which included proficiency in analyzing ballistics evidence under a

microscope. As part of his duties with the TBI, Agent Scott performed ballistics

comparisons like the comparisons made in this case and created test bullets for the

purpose of making toolmark comparisons. By virtue of his knowledge, skill, experience,

training, and education, Agent Scott was undoubtedly qualified under Tennessee Rule of

Evidence 702 to render the opinions given in this matter. Agent Scott then based his

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conclusions on experienced-based observations, making them reliable under Tennessee

Rule of Evidence 703.

Moreover, applying the McDaniel factors, while Agent Scott was not familiar with

toolmark studies specific to pistols manufactured by Kel-Tec, he was aware of studies

indicating firearms manufactured by other companies leave unique marks on bullets

cycled through their chambers and referenced the rate of error for each study. Agent

Scott’s findings in this particular case were peer reviewed by another agent. Also, while

the defendant was able to reference studies challenging the reliability of the toolmark

comparisons conducted by Agent Scott, he based his method of analyzing ballistics

evidence on the AFTE theory that all firearms are unique, and that theory had never been

disproven. Lastly, while Agent Scott’s analysis was not conducted independent of

litigation, as a TBI agent working in the firearms identification unit, he was tasked with

analyzing forensic evidence, making consideration of whether Agent Scott conducted his

research independent of litigation an unreasonable measure of the reliability of his

testimony. See David Lynn Jordan v. State, No. W2015-00698-CCA-R3-PD, 2016 WL

6078573, at *75 (Tenn. Crim. App. Oct. 14, 2016), no perm. app. filed (concluding the

purpose of forensic psychology is to answer questions posed by the legal system, so “the

McDaniel factor requiring an examination of whether the research had been conducted

independent of litigation is not a reasonable measure of the reliability of [an expert

forensic psychologist’s] testimony”).

Agent Scott was qualified under Tennessee Rule of Evidence 702 to render the

expert opinions offered at trial, and the opinions rendered were reliable under both

Tennessee Rule of Evidence 703 and McDaniel. The defendant was given the

opportunity to cross-examine Agent Scott regarding any weaknesses in his opinions, and

the weight of Agent Scott’s testimony was a matter to be determined by the jury. The

trial court properly exercised its discretion when allowing Agent Scott to testify as a

firearms and ballistics expert for the State. The defendant is not entitled to relief on this

issue.

III. Admissibility of Order of Protection Documents

The defendant next argues the trial court erred when denying the defendant’s

motion in limine to exclude the victim’s order of protection against the defendant because

the statements therein were inadmissible hearsay and violated his right to confront the

witnesses under Article I, Section 9 of the Tennessee Constitution and the Sixth

Amendment of the United States Constitution. The State contends the statements were

admissible under the state-of-mind exception to the hearsay rule and the business records

exception. We conclude the redacted petition for order of protection included hearsay

statements that should have been excluded by the trial court. These statements, however,

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were duplicitous of other properly admitted evidence, so the trial court’s error was

harmless.

A. Hearsay

The Tennessee Rules of Evidence define hearsay as “a statement, other than one

made by the declarant while testifying at trial or hearing, offered in evidence to prove the

truth of the matter asserted.” Tenn. R. Evid. 801(c). Generally, hearsay is inadmissible,

but there are numerous exceptions to this rule, including exceptions for statements of the

declarant’s then existing state of mind, sensation, or physical condition, and records of

regularly conducted business. Tenn. R. Evid. 802, 803(3), and 803(6). A trial court’s

findings of fact and credibility determinations regarding hearsay are binding on this Court

unless the evidence preponderates against them. Kendrick v. State, 454 S.W.3d 450, 479

(Tenn. 2015). However, determinations regarding whether a statement is hearsay and

whether a hearsay exception applies are questions of law and subject to de novo review.

Id.

Prior to trial, the defendant filed a motion in limine to exclude any mention of the

order of protection. The trial court initially found “the totality of the order of protection

would be admissible.” Following a later hearing and a motion to reconsider filed by the

defendant, the trial court, adopting a proposed order submitted by the State, ruled the

order of protection documents were admissible under Rule 404(b) of the Tennessee Rules

of Evidence for the purpose of proving identity, motive, intent, and/or premeditation.

The trial court further found the statements contained in the documents were admissible

under the hearsay exceptions for then existing state of mind, statements against interest

made by unavailable witnesses, and forfeiture by wrongdoing, so the statements did not

violate the defendant’s right to confrontation. The trial court later entered another order

finding the forfeiture by wrongdoing exception did not apply but allowed the introduction

of the order of protection documents as business records and public records. The trial

court further ordered all hearsay statements by the victim had to be redacted from the

petition for order of protection.

In compliance with the trial court’s ruling, the State introduced redacted copies of

the petition for order of protection, ex parte order of protection, and agreed order of

protection at trial. These documents identified the victim, identified the defendant,

included a description of the defendant, stated the victim and the defendant had dated,

identified the defendant’s employer as Allstate, indicated the defendant kept a pistol in

his truck, indicated abuse or threats of abuse had occurred in Knox County, requested a

no contact order of protection, and requested the defendant to pay for the repair of the

bathroom window. The victim’s description of the abuse, including the date of the event,

had been redacted from the documents. However, the petition showed the victim swore

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to the veracity of its contents on January 18, 2011. The ex parte order of protection was

entered January 20, 2011, and the agreed order of protection was dated February 10,

2011. The agreed order of protection clarified that “[t]he parties wish to have social

contact” and “[the defendant] is allowed to be in the presence of the [victim]. The agreed

order of protection additionally stated:

The parties have reached a simple agreement that an order of protection

should enter. Accordingly, the court makes no finding of fact; no hearing

has been held; no testimony has been offered; and the respondent has made

no admission with reference to this proceeding by virtue of his/her consent

to the agreement, through counsel, or otherwise. This order has no effect

upon respondent’s Second Amendment right to keep and bear arms.

That right is unimpaired by this order. (Emphasis in original.)

Rule 404(b) of the Tennessee Rules of Evidence provides:

Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or

acts is not admissible to prove the character of a person in order to show

action in conformity with the character trait. It may, however, be

admissible for other purposes. The conditions which must be satisfied

before allowing such evidence are:

(1) The court upon request must hold a hearing outside the jury’s presence;

(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). This Court reviews findings made by the trial court after

following these procedures for an abuse of discretion. State v. DuBose, 953 S.W.2d 649,

652 (Tenn. 1997).

The trial court followed the procedures outlined in Rule 404(b). When reaching

this conclusion, the trial court found the material issues were the identity and requisite

mental state of the person who killed the victim. Referencing a long list of cases, the trial

court found that “acts of violence and threats made by [the] [d]efendant against the victim

[were] admissible under Tenn[essee] R[ule] of Evid[ence] 404(b) to show premeditation

and intent, lack of accidental mistake, motive and a complete picture of the events

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surrounding the killing.” See State v. Smith, 868 S.W.2d 561, 574 (Tenn. 1993); State v.

Turnbill, 640 S.W.2d 40, 46-47 (Tenn. Crim. App. 1982); State v. Glebock, 616 S.W.2d

897, 905-906 (Tenn. Crim. App. 1981); and State v. Michael Jason Vance, No. M2011-

02469-CCA-R3-CD, 2013 WL 6001954, at *12 (Tenn. Crim. App. Nov. 12, 2013), perm.

app. denied (Tenn. Nov. 12, 2013).

The trial court further found the proof of the defendant’s actions was clear and

convincing. The victim swore under oath to the veracity of the allegations in her petition,

and the petition was accompanied by a companion domestic assault filing. The State also

submitted additional proof, including the letter from the defendant to Mr. and Mrs.

Meredith admitting the actions and enclosing reimbursement for the damages. Moreover,

when testifying at a pretrial hearing, Mr. Meloccaro corroborated the victim’s statements

regarding the defendant’s ownership of a handgun and the location in which he kept it.

Statements made by the defendant’s ex-wife to authorities further corroborated the

victim’s claim she had a romantic relationship with the defendant. Lastly, the trial court

found the probative value of the documents outweighed the danger of unfair prejudice

because the documents were probative of material issues in the case, including the

defendant’s identity, intent, motive, and premeditation.

Our Supreme Court has concluded that “violent acts indicating the relationship

between the victim of a violent crime and the defendant prior to the commission of the

offense are relevant to show the defendant’s hostility toward the victim, malice, intent,

and a settled purpose to harm the victim.” Smith, 868 S.W.2d at 574. For this reason, we

have previously found evidence of prior domestic abuse to be admissible under Rule

404(b) where the defendant was on trial for first degree premediated murder because such

evidence “established the violent nature of their relationship and the defendant’s hostility

toward the victim.” State v. Gilley, 297 S.W.3d 739, 758 (Tenn. Crim. App. 2008); see

also State v. Jeffrey Scott Long, No. E2015-01287-CCA-R3-CD, 2017 WL 2958700, at

*13 (Tenn. Crim. App. July 11, 2017), perm. app. denied (Tenn. Nov. 16, 2017)

(concluding allegations of threats of abuse in a petition for protective order were relevant

to establish criminal intent and motive). There is no per se rule of admissibility under

Rule 404(b) for prior acts of abuse. State v. Gilley, 173 S.W.3d 1, 7 (Tenn. 2005).

Courts must instead consider the admissibility of evidence relating to prior abuse of the

victim by the defendant by applying the safeguards set forth in Rule 404(b). Id.

The defendant was convicted of premeditated first degree murder in violation

Tennessee Code Annotated section 39-13-202. First degree murder is defined as the

“premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)(1).

Premeditation is “an act done after the exercise of reflection and judgment,” meaning

“that the intent to kill must have been formed prior to the act itself.” Tenn. Code Ann. §

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39-13-202(d). The defendant pled not guilty to first degree murder, so the State bore the

burden of proving each element beyond a reasonable doubt.

The order of protection documents were properly admitted under Rule 404(b) to

show the requisite motive and intent of the defendant. The redacted petition for order of

protection, however, contained hearsay statements that did not fall under one of the

exceptions set forth within Tennessee Rules of Evidence 803, 804, or 805, including a

statement that the defendant and victim dated, reference to the defendant’s ownership of a

firearm that he kept inside his truck, and a statement that the victim was in “immediate

and present danger of abuse” by the defendant. Accordingly, the petition for order of

protection should have been excluded as hearsay, and the trial court erred when granting

its admission. The ex parte order of protection and order of protection, on the other hand,

were orders of the trial court, not hearsay, and again properly admitted under Rule

404(b).

B. Right of Confrontation

The defendant contends the erroneous admission of the hearsay contained in the

petition for order of protection violated his right to confrontation. The Confrontation

Clause of the Sixth Amendment to the United States Constitution provides, “In all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the

witnesses against him.” U.S. Const. amend. VI. The Tennessee Constitution similarly

provides, “That in all criminal prosecutions, the accused hath the right . . . to meet the

witnesses face to face.” Tenn. Const. art. 1, § 9. Rights under the Confrontation Clause

of the United States Constitution and the protections afforded by the Tennessee

Constitution are co-extensive. State v. Davis, 466 S.W.3d 49, 68 (Tenn. 2015).

When determining whether an out-of-court statement violates the Confrontation

Clause, the primary consideration is whether the challenged statement was testimonial.

State v. Hutchison, 482 S.W.3d 893, 905 (Tenn. 2016). While the United States Supreme

Court has not provided a comprehensive definition of “testimonial,” it has rendered the

following non-exhaustive list of statements that qualify as testimonial:

[1] ex parte in-court testimony or its functional equivalent – that is, material

such as affidavits, custodial examinations, prior testimony that the

defendant was unable to cross-examine, or similar pretrial statements that

declarants would reasonably except to be used prosecutorially; [2]

extrajudicial statements . . . contained in formalized testimonial materials,

such as affidavits, depositions, prior testimony, or confessions; [and 3]

statements that were made under circumstances which would lead an

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objective witness reasonably to believe that the statement would be

available for use at a later trial.

Melendez-Diaz v. Massachusetts, 557 U.S 305, 310 (2009) (internal quotation marks and

citation omitted). Testimonial hearsay is admissible only where the declarant is

unavailable and there was a prior opportunity for cross-examination. State v. Lewis, 235

S.W.3d 136, 142 (Tenn. 2007). Nontestimonial hearsay does not fall within the ambit of

federal and state confrontation clauses. Id. Whether the admission of hearsay statements

violated the confrontation rights of a defendant is a question of law subject to de novo

review. Davis, 466 S.W.3d at 68.

Here, the statements contained in the petition for order of protection were sworn,

so like statements contained in an affidavit, they were testimonial. However, the victim

was unavailable to testify at trial due to her death, and the defendant had the opportunity

to cross-examine the victim regarding the information sworn to in her petition for order

of protection and failed to do so. Instead, he consented to the entry of a social order of

protection prior to the hearing. Accordingly, the admission of the statements in the

petition for order of protection did not violate the defendant’s confrontation rights.

C. Harmless Error

Finally, we consider the impact of the error in admitting the redacted petition for

order of protection. The error was non-constitutional in nature, so we review it utilizing

the framework set forth within Tennessee Rule of Appellate Procedure 36(b). The

defendant bore the burden of proving the error “more probably than not affected the

judgment or would result in prejudice to the judicial process.” Tenn. R. App. P. 36(b).

The petition for order of protection included statements the defendant and victim

had dated, the defendant owned a firearm and kept it in his truck, and the defendant

abused or threatened to abuse the victim. It further contained a request for the defendant

to pay for the repair of a broken window. All this information also came into evidence

through admissible sources. Investigator Vittatoe testified the defendant admitted to him

that he and the victim previously dated, Ms. Okal testified the defendant referred to the

victim as his girlfriend, Mr. Cordell testified the defendant had a relationship with the

victim, and Dr. Hall testified the defendant admitted to having an inappropriate

relationship with the victim. Mr. Meloccaro stated the defendant owned a pistol that he

typically kept in his truck, and Investigator Vittatoe testified the defendant admitted to

owning both a shotgun and a Kel-Tec P-32 pistol. Mrs. Meredith testified regarding the

manner in which the victim claimed her bathroom window had been broken, the

defendant’s letter of apology following the incident, the type of damage done to the

window, and the defendant’s eventual payment for the cost of repairing that window.

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Given the overwhelming proof presented at trial, the error in admitting the petition

for order of protection was harmless. The defendant has not met his burden of proving

the introduction of this evidence adversely impacted the outcome of the trial. The

defendant is not entitled to relief on this matter.

IV. Denial of Petition to Rehear Pretrial Motions

The defendant argues the trial court erred by declining to rehear all defense

motions filed before January 1, 2016, which included the motions to exclude the order of

protection, suppress the search of the defendant’s home, and for bond. When asked to

rehear the motions, the trial judge ruled, “[T]he Court previously heard these motions and

the Court speaks through its orders and the Court signed the order. So I’m going to deny

the petition to rehear all motions prior to January 1st of 2016.” According to the

defendant, when originally ruling on the motions, the trial court did not make any

independent findings of fact or conclusions of law and instead adopted a proposed order

submitted by the State in violation of Smith v. USC of Lakeside, Inc., 439 S.W.3d 303,

312 (Tenn. 2014). The State counters that Smith does not apply to the Tennessee Rules

of Criminal Procedure, the order complied with Rule 12(e) of the Tennessee Rules of

Criminal Procedure, and, regardless, the trial court exercised independent judgment when

denying the motion to exclude the order of protection. We agree with the State.

Prior to trial, a party may raise by pretrial motion “any defense, objection, or

request that the court can determine without a trial of the general issue.” Tenn. R. Crim.

P. 12(b)(1). Tennessee Rule of Criminal Procedure 12(e) addresses the court’s ruling on

the motion and provides:

The court shall decide each pretrial motion before trial unless it finds good

cause to defer a ruling until trial or after a verdict. The court shall not defer

ruling on a pretrial motion if the deferral will adversely affect a party’s

right to appeal. When factual issues are involved in deciding a motion, the

court shall state its essential findings on the record.

Tenn. R. Crim. P. 12(e). “A verbatim record shall be made of all proceedings at the

motion hearing, including any findings of fact and conclusions of law that are made

orally.” Tenn. Crim. P. 12(g). Pretrial motions addressing questions of law may be

decided prior to trial, as can motions requiring factual findings not associated with the

defendant’s guilt or innocence. State v. Goodman, 90 S.W.3d 557, 561 (Tenn. 2002).

“Where the factual findings necessary to resolve the motion are intertwined with the

general issue, a ruling must be deferred until trial since, in criminal cases, there simply is

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no pretrial procedure akin to summary judgment for adjudicating questions of fact

involving the general issue of guilt or innocence.” Id.

The defendant relies on Smith v. USH of Lakeside, Inc. when arguing the trial

court erred by adopting the proposed findings of fact and conclusions of law submitted by

the State. In that decision, our Supreme Court addressed Tennessee Rule of Civil

Procedure 56.04, which requires the trial court to state the legal grounds upon which it

denies or grants a motion for summary judgment and concluded that “Tenn[essee] R[ule]

of Civ[il] P[rocedure] 56.04 requires the trial court, upon granting or denying a motion

for summary judgment, to state the grounds for its decision before it invites or requests

the prevailing party to draft a proposed order.” Smith, 439 S.W.3d at 316-317.

The defendant’s argument is misplaced. The Tennessee Rules of Civil Procedure

apply only in courts exercising the civil jurisdiction of the circuit or chancery courts.

Tenn. R. Civ. P. 1. Moreover, the Tennessee Rules of Criminal Procedure do not provide

for summary judgment and only require the trial court to state “essential findings” on the

record when ruling on pretrial matters. See Goodman, 90 S.W.3d at 561. Here, the trial

court did so, and in light of our findings above, any error as to the specificity with which

the trial court did or did not make its rulings was harmless. In the absence of the

evidence obtained during the search of the defendant’s residence and the order of

protection documents, the State presented overwhelming proof of the defendant’s guilt,

and the defendant has not challenged the trial court’s order setting bond on appeal. The

defendant is not entitled to relief on this matter.

V. Testimony of Carol Meredith

A. Hearsay

The defendant next asserts the trial court erred when allowing Mrs. Meredith to

testify as to hearsay statements made by the victim. The State contends these statements

were properly admitted because they fell under the excited utterance exception to the

hearsay rule. We agree with the State.

As addressed previously, hearsay statements are generally inadmissible, but there

are several well-established exceptions to this rule. Tenn. R. Evid. 802, 803. An exited

utterance is one such exception and has been defined as “[a] statement relating to a

startling event or condition made while the declarant was under the stress of excitement

caused by the event or condition.” Tenn. R. Evid. 803(2). A statement qualifies as an

excited utterance if it satisfies all three prongs of the rule. Kendrick, 454 S.W.3d at 478

(internal citations omitted). First, there must be an event or condition that is “sufficiently

startling to suspend the normal, reflective thought process of the declarant.” Id. Next,

- 31 -

the statement must be related to the startling event or condition. Id. “A statement relates

to the startling event when it describes all or part of the event or condition, or deals with

the effect or impact of that event or condition.” Id. Third, the declarant must have made

the statement while “under the stress or excitement from the event or condition,” as

evidenced by a statement that suggests “spontaneity” and has a “logical relation” to the

event. Id. Factors to consider when analyzing the applicability of the third prong include

the time elapsed between the startling event and the statement; the seriousness of the

startling event; the appearance, behavior, outlook, and circumstances of the declarant;

and the substance of the statement. Id.

Consistent with Tennessee Rule of Evidence 602, the declarant must have personal

knowledge of the facts contained in the statement. Id. at 479. This personal knowledge

can be inferred from the statement itself or the surrounding facts and circumstances.

State v. Land, 34 S.W.3d 516, 529 (Tenn. Crim. App. 2000). The declarant, however,

does not have to be a participant in the startling event for the exception to apply, and

answers to questions may still fall under the exception so long as the declarant remains

under the stress of the event. State v. Gordon, 952 S.W.2d 817, 820-21 (Tenn. 1997).

Again, the trial court’s findings of fact and credibility determinations regarding

hearsay are binding on this Court unless the evidence preponderates against them.

Kendrick, 454 S.W.3d at 479. Determinations regarding whether a statement is hearsay

and whether a hearsay exception applies are questions of law and subject to de novo

review. Id.

Prior to trial, the trial court ruled Mrs. Meredith could testify regarding the

telephone call she received from the victim’s neighbor on January 16, 2011, the victim’s

conversation with Mrs. Meredith regarding the defendant’s attack, and Mrs. Meredith’s

observations of the victim and the victim’s apartment that day. The trial court found the

statements of the neighbor and of the victim fell under the excited utterances exception to

the hearsay rule. In accordance with this ruling, Mrs. Meredith testified that the victim’s

neighbor called her on January 16, 2011, and said, “[Y]ou have to hurry and get here;

I’ve heard terrible screams from downstairs.” Mrs. Meredith, who was approximately

half a mile from the apartment at the time, rushed to the apartment. When she arrived,

the victim told Mrs. Meredith that “she came home and that [the defendant] had come out

of her bathroom, out of her shower, and fought with her, and threw her down on the tile

floor, and tried to hit her, beat her head against the tile floor, and tried to rape her.”

Mrs. Meredith’s testimony regarding the telephone call from the victim’s neighbor

and her subsequent interaction with the victim were offered for the truth of the matters

asserted but were admissible under the excited utterance exception to the hearsay rule.

Our review of the record confirmed the neighbor called Mrs. Meredith on January 16,

- 32 -

2011, after hearing the victim scream in a nearby apartment. This event was sufficiently

startling for the neighbor to call the owner of the apartment complex to report the

incident and request help. The neighbor’s statement undoubtedly related to the event

precipitating her call – hearing a loud scream from her neighbor’s apartment. The

neighbor’s statement itself indicated she remained under the stress of hearing the scream

at the time she called Mrs. Meredith. The substance of the statement also indicated Mrs.

Meredith was familiar with the facts and circumstances of her statement. The trial court

properly found the neighbor’s comment to Mrs. Meredith was an excited utterance and

did not err when allowing Mrs. Meredith to testify as to her communications with the

neighbor. The defendant is not entitled to relief on this issue.

The defendant further argues the scream heard by the neighbor constituted hearsay

within hearsay. We have already established the neighbor’s conversation with Mrs.

Meredith fell under the excited utterance exception to the hearsay rule. Additionally, the

underlying scream was not hearsay. Nonverbal conduct can only be considered hearsay

if the declarant considered the conduct to be an assertion. Tenn. R. Evid 801(a). The

term “assertion” is not defined by the Tennessee Rules of Evidence, but this Court has

previously stated an assertion “‘has the connotation of a forceful or positive

declaration.’” State v. Thomas D. Stricklin, No. M2005-02911-CCA-R3-CD, 2007 WL

1028535, at *19 (Tenn. Crim. App. Apr. 5, 2007), perm. app. denied (Tenn. Aug. 20,

2007) (quoting State v. Burns, 29 S.W.3d 40, 47 (Tenn. Crim. App. 1999)). For example,

this Court has concluded the crying of a child was an assertion where it occurred in

response to a question about inappropriate touching by a family member. Id.

When considered in the context of Mrs. Meredith’s testimony, the victim’s scream

was not an assertion. Rather, the scream alerted the victim’s neighbor to a potential

problem, thereby prompting her to call the owner of the apartment complex. Even if the

scream could be considered an assertion, the State did not introduce evidence of the

scream through Mrs. Meredith’s testimony to prove the truth of a matter at issue. Rather,

the testimony regarding the victim’s scream showed its effect on the listener. See State v.

Venable, 606 S.W.2d 298, 301 (Tenn. Crim. App. 1980) (holding statements introduced

for their effect on the listener are not hearsay). The defendant’s argument is without

merit.

Likewise, being attacked by the defendant was a sufficiently startling event for the

victim’s statements to Mrs. Meredith to qualify as excited utterances. The victim

informed Mrs. Meredith that the defendant, an individual readily identifiable to her, was

hiding in her bathroom when she came home that day. After she entered the apartment,

the defendant attacked her, beat her head against the floor, and tried to rape her. This

event was certainly startling enough to suspend the victim’s normal, reflective thought

process. When speaking to Mrs. Meredith, the victim described the defendant’s actions

- 33 -

in detail, and her statements were logically related to the attack. The circumstances

surrounding the victim’s statements to Mrs. Meredith indicated she was still under the

stress of the attack at the time of their conversation. Mrs. Meredith rushed to the victim’s

apartment after the neighbor reported hearing the victim scream. The victim appeared

disheveled when Mrs. Meredith arrived. Mrs. Meredith indicated the victim’s hair was

messy, her face was wet from tears, and she was shaking. The trial court properly found

the victim’s statements to Mrs. Meredith fell under the excited utterance exception to the

hearsay rule, so the defendant is not entitled to relief on this issue either.

B. Violation of Court Order

The defendant next argues Mrs. Meredith’s testimony regarding the neighbor’s

report of “terrible screams” violated an order of the trial court requiring Mrs. Meredith to

testify as to “screams” only. The State counters the defendant waived this argument by

failing to make a proper record reference and asserts the trial court never made such an

order. Instead, the trial court decided Mrs. Meredith could not describe the screams as

“blood curdling.” Following our review of the record, we agree with the State.

The defendant did not provide a record citation to support his contention that Mrs.

Meredith violated an order of the trial court when testifying as to “terrible screams,” so

he waived the argument. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not

supported by argument, citation to authorities, or appropriate references to the record will

be treated as waived by the court.”). Moreover, during our comprehensive review of the

record, we did not find such a written order or oral ruling. Instead, when the defendant

objected to Mrs. Meredith’s testimony as violative of a prior order, the trial court

overruled the objection, stating, “I did specifically say take out the blood curdling part,”

and “there’s nothing in writing that said she had to just say screams.” This ruling was

consistent with the broad discretion afforded to the trial court when controlling the

introduction of evidence at trial. See State v. Hutchinson, 898 S.W.2d 161, 172 (Tenn.

1994). The defendant’s argument is without merit.

C. Terms of Settlement

The defendant further maintains the trial court erred when allowing Mrs. Meredith

to testify regarding the defendant’s payment for the window repair because it was a term

of the settlement of the then-pending order of protection matter. The State argues Mrs.

Meredith’s testimony did not address the terms of an offer to compromise this or a related

matter, was not introduced to prove liability for breaking the window, helped establish

the defendant’s settled purpose to harm the victim, and contained important admissions

of the defendant against his own interest. We agree with the State.

- 34 -

Tennessee Rule of Evidence 408 governs the admission of evidence of settlement

and offers to settle, stating:

Evidence of (1) furnishing or offering to furnish or (2) accepting or offering

to accept a valuable consideration in compromising or attempting to

compromise a claim, whether in the present litigation or related litigation,

which claim was disputed or was reasonably expected to be disputed as to

either validity or amount, is not admissible to prove liability for or

invalidity of a civil claim or its amount or a criminal charge or its

punishment. Evidence of conduct or statements made in compromise

negotiations is likewise not admissible. This rule does not require the

exclusion of any evidence actually obtained during discovery merely

because it is presented in the course of compromise negotiations. This rule

also does not require exclusion when the evidence is offered for another

purpose, such as proving bias or prejudice of a witness, negativing a

contention of undue delay, or proving an effort to obstruct a criminal

investigation or prosecution; however, a party may not be impeached by a

prior inconsistent statement made in compromise negotiations.

Tenn. R. Evid. 408. The Advisory Commission Comment explains Rule 408 “excludes

such evidence in both civil and criminal trials.” This Court has further clarified that Rule

408 “addresses the admissibility of settlement negotiations regarding a civil claim in a

civil or criminal proceeding.” State v. March, 395 S.W.3d 738, 772 (Tenn. Crim. App.

2011) (emphasis in original).

At trial, Mrs. Meredith testified that the defendant broke the frame on the

bathroom window when entering the victim’s apartment. Mrs. Meredith’s husband

determined it would cost $275.00 to repair the window, requested the defendant pay this

amount, and the defendant agreed. The defendant initially sent a money order for

$250.00 to Mr. and Mrs. Meredith along with a letter of apology stating, in part, “Women

tend to make us do crazy things, and unfortunately that night was one of them.” The

defendant sent the remaining $25.00 in a second letter.

The defendant objected at trial to Mrs. Meredith’s testimony and the referenced

letters on grounds they were not admissible under Tennessee Rule of Evidence 408. The

trial court overruled the objection. In support of its ruling, the trial court stated, “The

way the [c]ourt sees it, [the rule] says under the present litigation or related litigation. I

don’t believe that [the defendant] is being charged here today with breaking a window . .

. so I’m going to allow the evidence to come in.”

- 35 -

The trial court did not abuse its discretion when admitting evidence of the

defendant’s payment for the repair of the broken window. The trial court correctly

recognized Tennessee Rule of Evidence 408 applies to offers made in “the present

litigation or related litigation.” The defendant attempts to argue this evidence falls under

Rule 408 because the defendant’s payment for the repair of the broken window was a

term of the settlement of the order of protection matter. While the victim’s petition for

order of protection included a request that the defendant pay for repair of the window, the

consent order of protection included no such term. Moreover, this matter is unrelated to

the defendant’s payment for the broken window. The defendant was on trial for the

murder of the victim nine months after the break-in and not for a property crime arising

as a result of the incident occurring on January 16, 2011. Regardless, Tennessee Rule of

Evidence 408 allows the admission of settlement evidence when offered for a purpose

other than establishing liability for the act. The statement was offered at trial to show the

defendant participated in an incident that demonstrated his settled purpose to harm the

victim, not to show he was liable for breaking a window. See Smith, 868 S.W.2d at 574

(concluding prior acts of violence and threats against the 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”). The defendant is

not entitled to relief on this issue.

VI. Evidence of Prior Bad Acts

The defendant goes on to challenge the trial court’s admission of testimony by

Mrs. Meredith, Dr. Hall, Ms. Okal, and Mr. Cordell regarding prior unrelated actions

involving the victim. Tennessee Rule of Evidence 404 governs the admission of

evidence of other crimes, wrongs, or acts committed by a person whose character is at

issue and states, in pertinent part:

Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or

acts is not admissible to prove the character of a person in order to show

action in conformity with the character trait. It may, however, be

admissible for other purposes. The conditions which must be satisfied

before allowing such evidence are:

(1) The court upon request must hold a hearing outside the jury’s presence;

(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

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(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 other purposes for which bad act evidence is admissible

include motive, hostility toward the victim, malice, intent, and a settled purpose to harm

the victim. State v. Hawkins, 519 S.W.3d 1, 45 (Tenn. 2017); Smith, 868 S.W.2d at 574.

If it substantially complies with the procedures set forth therein, this Court affords great

deference to the trial court’s decision to admit evidence under Rule 404(b) and will only

overturn that decision if the court abused that discretion. Hawkins, 519 S.W.3d at 45.

Prior to trial, the trial court held evidentiary hearings to determine the

admissibility of potential trial testimony relating to the defendant’s prior actions of

violence, harassment, and obsession towards the victim. The State called eleven

witnesses, including Mrs. Meredith, Dr. Hall, Ms. Okal, and Mr. Cordell, to testify.

Following the hearings, the trial court entered a written order finding, in part:

The [d]efendant has pleaded not guilty to the first degree murder of the

victim. So, identity, premeditation, intent, lack of accident or mistake,

common scheme or plan, and motive are at issue in this case. Several

witnesses testified about [the] [d]efendant’s obsessive behaviors, acts of

violence, and harassment toward the victim. The [c]ourt finds these

witnesses to be credible and based on their testimony, the [c]ourt finds by

clear and convincing evidence that the [d]efendant committed the acts.

These crimes, wrongs, or acts that were actually witnessed by those

testifying at the hearing are admissible to show identity, premeditation,

intent, lack of accident or mistake, common scheme or plan, or motive.

The [c]ourt further finds the probative value of the testimony is not

outweighed by any danger of unfair prejudice to the [d]efendant.

Mrs. Meredith, Dr. Hall, Ms. Okal, and Mr. Cordell each rendered testimony at

trial that was consistent with the testimony rendered during the pretrial evidentiary

hearings. Each witness’s testimony was relevant to a material issue in the case, including

identity, premeditation, intent, and/or motive. The defendant’s argument that the trial

court did not substantially comply with the requirements of Tennessee Rule of Evidence

404(b) prior to admitting their testimony is without merit. The defendant is not entitled

to relief on this issue.

A. Carol Meredith’s Testimony

The defendant contends Mrs. Meredith’s testimony was irrelevant propensity

evidence offered to prove the defendant acted violently towards the victim on January 16,

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2011, so must have been violent again on October 15, 2011. The State argues the proof

was admissible under Tennessee Rule of Evidence 404(b) to show the defendant’s settled

purpose to harm the victim. We agree with the State.

Here, the trial court substantially followed the procedures outlined in Rule 404(b).

First, it held a hearing outside the presence of the jury regarding the nature of Mrs.

Meredith’s testimony. During that hearing, Mrs. Meredith rendered testimony regarding

the January 16, 2011, incident that was consistent with the testimony she rendered at trial.

In a subsequent written order, the trial court found the existence of relevant issues other

than the defendant’s character, including identity, premeditation, intent, lack of accident

or mistake, and motive. The trial court found Mrs. Meredith, and the other proffered

witnesses, to be credible. For this reason, it found the proof of the defendant’s actions, in

Mrs. Meredith’s case the defendant’s forced entry into the victim’s apartment and

subsequent attack of her, to be clear and convincing. The trial court further found the

danger of prejudice did not outweigh the probative value of the defendant’s actions.

Having concluded the trial court substantially complied with the procedures set forth in

Tennessee Rule of Evidence 404(b), we must give great deference to the trial court’s

decision to allow Mrs. Meredith to testify regarding the January 16, 2011, incident.

For the same reason we found the order of protection documents admissible under

Rule 404(b), Mrs. Meredith’s testimony was admissible under Rule 404(b). Her

testimony established that the defendant broke into the victim’s apartment, damaged a

window, and assaulted the victim. This proof was admissible to show the defendant’s

identity, lack of accident or mistake, nature of the defendant’s relationship with the

victim, settled purpose to harm the victim, premeditation, and intent. Moreover, Mrs.

Meredith’s testimony established the defendant admitted “[w]omen tend to make us do

crazy things,” which was relevant to the defendant’s intent and motive to kill the victim.

The trial court did not abuse its discretion when allowing Mrs. Meredith to testify.

B. Dr. Michelle Hall’s Testimony

The defendant challenges the trial court’s order allowing Dr. Hall, the defendant’s

ex-wife, to testify regarding the defendant’s relationship with the victim. The defendant

contends Dr. Hall’s testimony violated an order of the trial court precluding Dr. Hall from

testifying as to statements made by the victim and constituted evidence of prior bad acts

that were improperly admitted under Tennessee Rule of Evidence 404(b). We disagree.

At trial, Dr. Hall testified regarding an incident occurring January 4, 2011, during

which she learned about the defendant’s relationship with the victim. While in the car

together, the defendant told Dr. Hall the victim was crazy and wanted to call her and

confess to having an affair with him. The defendant, however, denied the affair. During

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their discussion, the victim called the defendant on his cell phone. Dr. Hall took the

phone and had a lengthy conversation with the victim.

After her conversation with the victim ended, Dr. Hall asked the defendant how

the victim knew intimate details like the color of the defendant’s underwear and the

presence of a scar on his penis. The defendant said he must have left the bathroom at

work without fastening his pants entirely, allowing the victim to see his underwear. He

also claimed the victim had knowledge of his scar because they were close friends. Dr.

Hall then asked why the victim knew about past conversations the defendant and Dr. Hall

had with one another. The defendant again explained he and the victim were close

friends, so he told her everything. Dr. Hall asked why the victim could describe the

pictures in their house. The defendant said once while Dr. Hall was out of town, the

victim came inside the house before the two went out after work. After further questions

from Dr. Hall, the defendant ultimately admitted only to having an improper relationship

with the victim that included kissing and spending time together. The defendant and Dr.

Hall ultimately divorced as a result of his affair with the victim.

The defendant objected at trial to any testimony by Dr. Hall regarding statements

the victim made to her. The trial court sustained the objection. The trial court, however,

allowed Dr. Hall to testify as to statements made by the defendant in response to

questions posed following Dr. Hall’s conversation with the victim.

Before the State called Dr. Hall as a witness at trial, the trial court substantially

complied with the procedures set forth in Tennessee Rule of Evidence 404(b). Again, the

trial court held an evidentiary hearing in advance of trial, during which Dr. Hall offered

testimony consistent with her trial testimony. The trial court subsequently issued a

written order, in which it found Dr. Hall and the other witnesses to be competent and

clear and convincing proof of the defendant’s actions. As related to Dr. Hall’s testimony,

the bad act evidence included the defendant’s interactions with Dr. Hall concerning his

infidelity. The trial court found material issues other than the defendant’s character,

including motive. The trial court further found the danger of prejudice did not outweigh

the probative value of Dr. Hall’s testimony.

Giving deference to the trial court’s findings, we review the trial court’s order

allowing Dr. Hall to testify as to her interactions with the defendant on January 4, 2011,

for an abuse of discretion and conclude the trial court properly admitted the testimony

pursuant to Tennessee Rule of Evidence 404(b). The manner in which Dr. Hall learned

of the defendant’s relationship with the victim, which led to an immediate separation and

ultimately divorce, was relevant to the defendant’s motive to kill the victim. Intertwined

with the defendant’s argument that the trial court erred when admitting Dr. Hall’s

testimony is his contention the evidence was based on inadmissible hearsay. The trial

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court, however, limited Dr. Hall’s testimony to her interactions with the defendant about

the victim’s phone call, which included statements the defendant made in response to

questions posed by Dr. Hall. These statements were admissible under Tennessee Rule of

Evidence 803 as party opponent admissions. See Tenn. R. Evid. 803(1.2)(A) (providing

that “[a] statement offered against a party that is . . . the party’s own statement in either

an individual or a representative capacity” is “not excluded by the hearsay rule”); see also

Lewis, 235 S.W.3d at 145 (holding that pursuant to Rule 803(1.2), “[a]nything the

opposing party said or wrote out of court is admissible in court against that party”)

(internal citations omitted). The trial court did not abuse its discretion when allowing Dr.

Hall to testify as to the circumstances surrounding the defendant’s ultimate admission to

having an inappropriate relationship with the victim.

C. Kaitlyn Okal’s Testimony

The defendant next challenges Ms. Okal’s testimony. The defendant argues it

constituted improper evidence of the defendant’s violent character, and the trial court did

not did not substantially comply with the requirements of Tennessee Rule of Evidence

404(b) when admitting it. We disagree.

At trial, Ms. Okal testified that she met the defendant on two occasions. The first

meeting occurred sometime in 2010 when Ms. Okal and the victim were having dinner in

a Mexican restaurant. The defendant was also present and had been drinking heavily.

When Ms. Okal and the victim got up to leave, the defendant grabbed the victim’s arm

and followed her to the car. The victim did not feel comfortable getting into her vehicle

and asked Ms. Okal to come with her. After that, the victim appeared frightened around

the defendant. Ms. Okal next saw the defendant when attending a homeowner’s

association meeting with her husband. The defendant approached her and asked that she

not say anything to his wife about the victim. At the time, the defendant referred to the

victim as his girlfriend.

The trial court conducted an evidentiary hearing prior to trial. During this hearing,

Ms. Okal offered testimony consistent with the testimony she rendered at trial. In its

subsequent written order, the trial court found the existence of material issues other than

character, including identity, premeditation, and motive. In its written order following all

the Rule 404(b) hearings, the trial court found Ms. Okal to be a credible witness, and as

such, found proof of the defendant’s interactions with Ms. Okal to be clear and

convincing. The trial court further found the probative value of Ms. Okal’s testimony

outweighed any prejudice.

The trial court did not abuse its discretion when admitting Ms. Okal’s testimony

regarding her prior encounters with the defendant. Contrary to the defendant’s assertions,

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these encounters were not introduced as evidence of the defendant’s violent character.

Rather, they were evidence the defendant and victim knew one another, had a strained

relationship, and the defendant wished to keep his relationship with the victim a secret

from his wife. This evidence goes to the defendant’s intent and motive, both very much

at issue during trial. The defendant is not entitled to relief.

D. James Cordell’s Testimony

Finally, the defendant challenged the admission of Mr. Cordell’s testimony under

Tennessee Rule of Evidence 404(b), arguing it was irrelevant and only offered to prove

the defendant was a violent man. Moreover, even if admissible under Rule 404(b), its

probative value was vastly diminished by its prejudice to the defendant. The State asserts

the trial court properly allowed Mr. Cordell to testify after finding his proffered testimony

admissible to show premeditation, intent, and motive. We agree with the State.

Mr. Cordell was a friend of the victim’s and testified that the defendant showed up

at a birthday party for one of the victim’s friends. The victim became upset, so Mr.

Cordell asked the defendant to leave. The defendant refused, so Mr. Cordell asked a

restaurant employee to make the defendant leave. During the dispute, the defendant told

Mr. Cordell, “You don’t know what she’s done to me. She went to my house, told my

wife.” The defendant proceeded to tell Mr. Cordell how the victim had “ruined his life.”

Again, prior to trial the trial court held an evidentiary hearing to determine the

admissibility of Mr. Cordell’s testimony. The testimony rendered by Mr. Cordell during

this hearing was consistent with the testimony rendered at trial. Following the hearing,

the trial court entered a written order in which it found Mr. Cordell, and the other

witnesses, to be credible, and the proof of his interactions with the defendant to be clear

and convincing. The trial court found material issues other than the defendant’s

character, including premeditation, intent, and motive. The trial court then noted the

probative value of this, and all other Rule 404(b) evidence, was not outweighed by

prejudice to the defendant.

Our review of the record shows the trial court substantially complied with the

requirements of Tennessee Rule of Evidence 404(b), and the trial court did not abuse its

discretion when allowing Mr. Cordell to testify. Mr. Cordell’s testimony showed the

defendant was upset about the impact of the victim’s actions on his marriage and felt she

had ruined his life by telling his wife about their relationship. The trial court properly

found his testimony was relevant to premeditation, intent, and motive, and its probative

value was not outweighed by prejudice to the defendant. The defendant is not entitled to

relief on this issue.

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VII. Denial of Motion for Trial Continuance

The defendant next asserts the trial court erred when denying his motion for a trial

continuance in order to obtain a mitigation expert, resulting in prejudice and the denial of

a fair trial. The State contends the trial court did not abuse its discretion because the

matter had been continued six times, and defense counsel had ample opportunity to

obtain a mitigation expert after commencing his representation of the defendant in

February 2015. We agree with the State.

The decision to grant a trial continuance lies within the sound discretion of the

trial court. State v. Russell, 10 S.W.3d 270, 275 (Tenn. Crim. App. 1999). The trial

court’s denial of a motion for continuance will only be overturned where the trial court

abused its discretion, and the denial resulted in prejudice to the defendant. State v.

Thomas, 158 S.W. 3d 361, 392 (Tenn. 2005). “An abuse of discretion is demonstrated by

showing that the failure to grant a continuance denied [the] defendant a fair trial or that it

could be reasonably concluded that a different result would have followed had the

continuance been granted.” Id. (internal citations omitted).

On June 17, 2016, the defendant filed a motion to continue the trial set for July 25,

2016, because he needed additional time to obtain a mitigation expert and provide that

expert with the information needed to prepare for trial. The trial court heard the motion

on July 21, 2016, and denied it. The trial had previously been continued from December

8, 2015, to March 29, 2016, and again from March 29, 2016, to July 25, 2016. Both

continuances were made at the defendant’s request, and the final continuance had been

granted, in part, so the defendant could obtain a mitigation expert. Finding, “[H]ere we

are three months later and seem to be in the same position,” the trial court denied the

motion.

A Roane County grand jury indicted the defendant on June 18, 2012, and prior to

the defendant’s most recent request for a trial continuance, the trial court had already

continued the matter at least four times. Current defense counsel took over the case

around February 12, 2015. The defendant became aware of the State’s intent to seek a

life sentence without the possibility of parole no later than February 12, 2016, and

requested a continuance on March 23, 2016, in part to obtain a mitigation expert to assist

the defense during the sentencing phase of trial. At that time, the trial court continued the

matter from March 29, 2016, until July 25, 2016. However, the defendant failed to offer

an adequate explanation for his failure to retain a mitigation expert during the four

months in which the trial court continued the matter. The trial court, therefore, did not

abuse its discretion when denying the defendant’s motion for a trial continuance. See

State v. Cazes, 875 S.W.2d 253, 261 (Tenn. 1994) (holding the trial court did not abuse

its discretion when denying a capital defendant a trial continuance where prior counsel

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worked on the case for thirteen months before withdrawing, current counsel had been

appointed to the matter two and one-half months prior to the trial setting, and many

continuances had already been granted at the defendant’s request). The defendant is not

entitled to relief on this matter.

VIII. Amendment of Indictment Twelve Days Before Trial

The defendant further contends the trial court erred when allowing the State to

amend its indictment to include Special Agent Michael D. Frizzell, an expert in historical

cell site data analysis, twelve days before trial. The State maintains the trial court

properly allowed the request, as the duty to list witnesses on the indictment is merely

directory, and the defendant has not demonstrated prejudice as a result of the State’s

untimely disclosure of Agent Frizzell as a witness. We agree with the State.

Tennessee Code Annotated section 40-17-106 provides:

It is the duty of the district attorney general to endorse on each indictment

or presentment, at the term at which the indictment or presentment is found,

the names of the witnesses as the district attorney general intends shall be

summoned in the cause, and signed each indictment or presentment name

thereto.

Tenn. Code Ann. § 40-17-106. The purpose of this statute is to prevent surprise and

allow the defendant time to prepare a defense to the State’s proof. State v. Kendricks,

947 S.W.2d 875, 883 (Tenn. Crim. App. 1996). This disclosure requirement, however, is

directory and not mandatory. State v. Dellinger, 79 S.W.3d 458, 489 (Tenn. 2002). For

this reason, witnesses who have not been disclosed are not automatically disqualified

from testifying at trial. Id. Instead, the defendant must demonstrate prejudice, bad faith,

or undue advantage in order to obtain relief from the State’s nondisclosure or untimely

disclosure of a witness. Kendricks, 947 S.W.2d at 883; see also State v. Goodman, 643

S.W.2d 375, 380 (Tenn. Crim. App. 1982). The decision to allow a witness to testify lies

within the discretion of the trial court. State v. Harris, 839 S.W.2d 54, 69 (Tenn. 1992).

Here, the State disclosed Agent Frizzell as a potential expert witness on July 13,

2016. The motion to amend the indictment to include Agent Frizzell included the expert

report prepared by Agent Frizzell regarding his cell site and sector analysis of the

defendant’s cell phone usage the night of October 15, 2011. The defendant objected to

the late disclosure of Dr. Frizzell, arguing it greatly prejudiced his right to due process.

The parties addressed this issue with the trial court via phone conference on July 22,

2016, and the trial court granted the State’s request to amend the indictment to include

Agent Frizzell as a potential witness.

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On appeal, the defendant avers that due to the late disclosure of Agent Frizzell’s

expert opinions, he was unable to properly review the report and obtain the assistance of

a similar expert to review and challenge Agent Frizzell’s opinions. The defendant argues

Agent Frizzell’s testimony prejudiced him, yet he has not explained how additional time

to review the report and/or contact a similar expert would have changed the defense

strategy or the outcome of the trial. Moreover, aspects of Agent Frizzell’s testimony

potentially supported the defense theory that the State failed to present evidence placing

the defendant at the crime scene the night of October 15, 2011. None of the cell phone

towers Agent Frizzell opined the defendant’s cell phone communicated with on October

15, 2011, were in close proximity to the crime scene. Instead, the cellular activity

identified by Agent Frizzell arguably corroborated the defendant’s story to Investigator

Vittatoe that after being with the victim the night of October 15, 2011, he drove towards

South Carolina, changed his mind, turned around, and returned to his residence.

Agent Frizzell’s testimony was also consistent with Agent Nealon’s analysis of the

defendant’s cell phone records. Both Agent Frizzell and Agent Nealon noted there were

no inbound or outbound communications from the defendant’s cell phone from 6:32 p.m.

to 8:50 p.m. Agent Frizzell further opined that once communications resumed around

8:51 p.m., towers close to Altruda’s Restaurant and the defendant’s residence were

pinged, again arguably corroborating the defendant’s position that he dropped the victim

off at her car at Altruda’s Restaurant after leaving Wild Wings Café.

The defendant had access to the defendant’s cell phone records prior to trial and

could have retained an expert witness to conduct a similar analysis but did not.

Additionally, despite the timing of the State’s disclosure of Agent Frizzell’s expert

opinions, the defendant conducted extensive cross and re-cross examinations of Agent

Frizzell that included questions regarding the placement of the cell phone towers listed in

Agent Frizzell’s report, an admission there were towers not included in the report,

questions regarding the speculative nature of Agent Frizzell’s opinions regarding the

defendant’s location the evening of October 15, 2011, and an admission by Agent

Frizzell that his analysis revealed only the defendant’s general location and not his

specific location. The defendant has not met his burden of demonstrating prejudice, bad

faith, or undue advantage gained by the State as a result of its late disclosure of Agent

Frizzell as an expert witness. The defendant is not entitled to relief on this issue.

The defendant also avers the trial court erred when granting the State’s motion to

amend its indictment to include Agent Frizzell as a witness because a similar analysis

could have been conducted on the victim’s cell phone but those records were not

preserved by the State. The defendant raises this argument for the first time on appeal, so

it has been waived. See State v. Adkisson, 899 S.W.3d 641, 645 (Tenn. Crim. App. 1994)

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(concluding “a party will not be permitted to assert an issue for the first time in the

appellate court”). The defendant is not entitled to relief on this issue either.

IX. Denial of Motions for Mistrial

The defendant further avers the trial abused its discretion when denying his

motions for mistrial following improper testimony rendered by Detective Wolfe and

Investigator Vittatoe. The State contends the trial court instead gave appropriate curative

instructions, and there was no resulting manifest injustice. We agree with the State.

A mistrial is an appropriate remedy when the trial cannot continue or a

miscarriage of justice would result if it did. State v. McPherson, 882 S.W.2d 365, 370

(Tenn. Crim. App. 1994). The burden is on the party seeking the mistrial to establish its

necessity. State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). The

decision to grant a mistrial is within the discretion of the trial court, and this Court will

not overturn that decision absent an abuse of discretion. State v. Brown, 53 S.W.3d 264,

284 (Tenn. Crim. App. 2000).

A. Detective Wolfe’s Testimony

The defendant first argues the trial court erroneously denied his motion for a

mistrial following Detective Wolfe’s testimony regarding the defendant’s failure to

appear for his arraignment and subsequent contact with the defendant’s attorney.

Detective Wolfe rendered the following testimony on direct examination:

Q. Was there a court date set for the defendant after that indictment?

A. Yes, ma’am.

Q. Were you aware of that court date?

A. I was.

Q. Was the defendant in the courtroom during that date?

A. He was not.

Q. What did the Court do that day?

A. The Court issued a warrant for his arrest.

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Q. After that warrant was issued, did that get you back involved [in] the

same investigation or was it a little bit of a different investigation at that

point?

A. It was a little bit different investigation at that point.

Q. How was that different?

A. It was different because I was directed to contact his attorney at the

time and see if that attorney knew his whereabouts.

The defendant objected, and a bench conference ensued during which the

defendant argued the attorney reference was inappropriate, and the record indicated the

defendant was actually not represented by counsel at the time. After holding a hearing

outside the presence of the jury to determine the basis for Detective Wolfe’s comments

and what information he would have provided had the questioning continued, the trial

court denied the defendant’s request for a mistrial, stating:

Based on what the [c]ourt has heard so far, the Court finds that there

is no manifest necessity [] for a mistrial based upon Detective Wolfe’s

testimony that after the defendant failed to appear in court on June the 25th

of 2012, he was directed to contact what he believed to be [] the

defendant’s attorney, Paula Hamm, contacted Paula Hamm, and she

advised him that she was not representing the defendant.

The parties and the trial court then discussed the best remedy. Given the trial

court’s ruling, the defendant asked that “[w]e just move on to a different subject and that

the [c]ourt [] instruct the jury to disregard the last statement that was made by Detective

Wolfe.” The trial court then proceeded in the manner suggested by the defendant and this

exchange ensued:

THE COURT: Before we broke for lunch, Detective Wolfe

was on the stand testifying. And we had a bench conference that I

explained that we would have from time to time. An objection was raised

and we had that bench conference. And so I am going to instruct you now

to disregard the last response given by Detective Wolfe prior to our lunch

break. And you shall not consider it for any purpose. Is that understood?

JURORS: Yes.

- 46 -

The trial court did not abuse its discretion when denying the defendant’s motion

for a mistrial and instead offering curative instructions. Jurors are presumed to follow

the instructions of the trial court, and we see no reason to deviate from that presumption.

State v. Robinson, 146 S.W.3d 469, 494 (Tenn. 2004). The defendant has not met his

burden of proving manifest injustice and is not entitled to relief on this issue.

B. Investigator Vittatoe’s Testimony

The defendant next avers the trial court abused its discretion when denying his

motion for mistrial after Investigator Vittatoe referenced the defendant’s refusal to

answer further questions upon learning he was not under arrest, arguing the comment

violated the defendant’s right against self-incrimination. When questioned about the

conclusion of his encounter with the defendant, Investigator Vittatoe testified:

Q. Did you have any further conversation with [the defendant]?

A. I did. I wanted to press him just a little farther. I didn’t think he was

being honest with me. So I told him that I – that I thought he was present

when it happened, and I think that I would like to have the truth. Even told

him that I thought he was responsible. That I thought that he killed [the

victim], and I would like to get to the truth while we were there.

So he asked me if he was under arrest, and I told him that he was

not. So he said that he would respectfully decline to answer any further

questions. So at that time –

The defendant interrupted Investigator Vittatoe’s testimony, requested a bench

conference, and made a second motion for a mistrial. The defendant argued Investigator

Vittatoe’s testimony violated the defendant’s constitutional rights. The State informed

the trial court that Investigator Vittatoe had been instructed prior to trial not to comment

on the defendant’s decision to end their conversation upon learning he was not under

arrest. The trial court denied the motion and stated, “Well, he didn’t say he want[ed] to

invoke his right to an attorney, he just said he wasn’t going to answer any more

questions. It’s close, but I don’t think it goes to [] manifest necessity for a mistrial.” The

trial court then admonished the State to better prepare its witnesses for trial, stating, “I’m

telling you, it’s getting close, and you better talk to all of your witnesses that are about to

come up here that are in law enforcement. They better not make any mention at all about

anybody talking to an attorney, their right to have an attorney.”

The defendant asked the trial court to instruct the jury to disregard Investigator

Vittatoe’s statement. The trial court agreed to the request and instructed the jury to

- 47 -

“please disregard [Investigator] Vittatoe’s last statement” and told them “not to consider

his last statement for any purpose at all.” The jurors acknowledged their understanding

of the instruction.

Again, the jury is presumed to have followed the instructions of the trial court.

State v. Jordan, 325 S.W.3d 1, 66 (Tenn. 2010). The jurors heard five days of testimony

during the first phase of trial. Investigator Vittatoe’s comment was brief and made the

second morning of testimony. Even when considered in conjunction with Detective

Wolfe’s statement about the defendant’s refusal to answer additional questions, the

defendant has not established manifest injustice necessitating a mistrial. The trial court

did not abuse its discretion when denying the motion, so the defendant is not entitled to

relief.

X. Admission of Autopsy Report as Evidence

The defendant next asserts the trial court erred when admitting the autopsy report

as evidence following Dr. Cogswell’s testimony because it was a prior consistent

statement. The report was plainly admissible under Tennessee Code Annotated section

38-7-110(a) and fell under the hearsay exceptions for business and public records set

forth in Rules 803(6) and 803(8) of the Tennessee Rules of Evidence. The defendant’s

argument is wholly without merit.

Tennessee Code Annotated section 38-7-110 states:

(a) The records of the division of post mortem examination, the county

medical examiner, or transcripts of the records certified to by the chief

medical examiner or the deputy medical examiner or the duly appointed

representative of the chief medical examiner, as the reports of the

toxicology laboratory examinations performed by the testing laboratory or

transcripts of the reports certified to by the director of the testing laboratory

or the director’s duly appointed representative, shall be received as

competent evidence in any court of this state of the facts and matters

contained in the records or reports.

(b) The records referred to in this section shall be limited to the records

of the results of investigation, of post mortem examinations, of the findings

of autopsies and toxicological laboratory examinations, including certified

reports of the toxicological laboratory examinations performed by the

testing laboratory, and shall not include statements made by witnesses or

other persons; provided, however, that persons who prepare reports or

records given in evidence pursuant to this section shall be subpoenaed as

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witnesses, in either civil or criminal cases, upon demand by either party to

the cause, or, when unable to appear as witnesses, shall submit a deposition

upon demand by either party to the cause.

Tenn. Code Ann. § 38-7-110.

The autopsy report admitted at trial was signed by Dr. Cogswell, the deputy chief

medical examiner for Knox County, and authorized by Dr. William Bennett, the chief

medical examiner for Roane County. Tennessee law authorizes county medical

examiners to perform or order autopsies on the bodies of “any person in a case involving

a homicide; suspected homicide; a suicide; a violent, unnatural or suspicious death; an

unexpected apparent natural death in an adult; sudden unexpected infant and child deaths;

deaths believed to represent a threat to public health or safety; and executed prisoners.”

Tenn. Code Ann. § 38-7-106(a). Here, the victim’s autopsy occurred after the discovery

of her body in a pool of blood at the intersection of Blair Road and Old Blair Road in

Roane County, Tennessee. The records were certified as authentic by a representative of

the TBI director and introduced through Dr. Cogswell at trial. It is well-established that

autopsy reports documenting autopsies performed following suspicious deaths are

admissible at trial, and we see no reason to deviate from this precedent. See Douglass v.

State, 378 S.W.2d 749, 751 (Tenn. 1964) (concluding autopsy reports are competent

evidence and admissible at trial pursuant to Tennessee Code Annotated section 38-710,

now section 38-7-110)). The defendant is not entitled to relief on this matter.

Moreover, despite the defendant’s argument to the contrary, the autopsy report

was not excludable as hearsay. Autopsy reports fall under the hearsay exceptions set

forth in Tennessee Rules of Evidence 803(6) and 803(8) for business and public records.

State v. Davis, 141 S.W.3d 600, 622, 630 (Tenn. 2004) (adopting the Court of Criminal

Appeals’ conclusion affirming the admission of autopsy reports as business records under

Rule 803(6) and public records under 803(8)). Accordingly, the defendant is not entitled

to the relief sought.

XI. Prior Statement of Brett Meloccaro

The defendant argues the trial court erred when admitting the prior consistent

statement of Brett Meloccaro into evidence. The State contends the statement was

admissible to rehabilitate Mr. Meloccaro, and given the overwhelming proof presented at

trial, any error in admitting the document was harmless. We agree the statement should

not have been admitted as substantive evidence, but any error in its admission was

harmless.

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Prior consistent statements are generally inadmissible as a means of bolstering a

witness’s testimony. State v. Herron, 461 S.W.3d 890, 904-05 (Tenn. 2015). This rule

prevents “the jury [from] being influenced to decide the case [based] on the repetitive

nature of or the contents of the out-of-court statements instead of the in-court, under-oath

testimony.” State v. Tizard, 897 S.W.2d 732, 747 (Tenn. Crim. App. 1994). There are

exceptions to this rule. Herron, 461 S.W.3d at 905. Prior consistent statements are

admissible to rehabilitate a witness following impeachment inferring the trial testimony

was a “recent fabrication” or “deliberate falsehood.” State v. Benton, 759 S.W.2d 427,

433 (Tenn. Crim. App. 1988). “This exception permits the prior consistent statement to

be used as a means of rebuffing such attacks and showing that the witness’s trial

testimony is consistent with statements made before any improper influence or motive to

lie existed.” Heron, 461 S.W.3d at 905. Such statements, however, are to be used only

as rehabilitative evidence, not as substantive evidence of the truth of the matter asserted.

Id.

At trial, the defendant attacked Mr. Meloccaro’s credibility with questions

regarding his reticence to testify, his failure to attend a prior hearing, his extradition from

Guam at the expense of the State, and the fact he would get released from jail following

testifying for the State. In an attempt to rehabilitate Mr. Meloccaro on redirect, the State

questioned Mr. Meloccaro regarding the statement he had previously given to law

enforcement, and the trial court allowed its admission into evidence. In a bench

conference, the defendant objected, arguing the statement was a prior consistent

statement and not admissible as substantive evidence. The State averred it was using the

statement to rehabilitate the witness following the defendant’s cross-examination on bias.

The trial court agreed with the State, overruled the objection, allowed the admission of

the statement, and allowed the defendant to then re-cross examine Mr. Meloccaro on the

statement. Mr. Meloccaro’s statement, rendered October 24, 2011, stated:

I met [the defendant] in May of 2011 at Wild Wing Café. I was in town

looking for a house due to relocating to Knoxville, TN. We started talking

and he mentioned he was also looking. We ended up getting the condo at

the above address. I was out of town for work and came back the 11th of

October. [The defendant] was at a golf tournament and when he came

home he set a Kel-Tec P-32 or P-3AT on the kitchen table. It had an after-

market pocket clip, was black, and had some wear on it. I picked it up to

check it out and asked him about it. He said he carr[ies] it in his car and

was getting his car detailed so he took it out. That was the first and last

time I saw that gun.

This statement was consistent with Mr. Meloccaro’s trial testimony. Upon

request, the trial court could have instructed the jury to consider the statement only for

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rehabilitative purposes, but the defendant did not make such a request, and the trial court

did not render a limiting instruction. See Tenn. R. Evid. 105 (stating “[w]hen evidence

which is admissible as to one party or for one purpose but not admissible as to another

party or for another purpose is admitted, the court upon request shall restrict the evidence

to its proper scope and instruct the jury accordingly”). To the extent the trial court

admitted the statement as substantive evidence, the trial court erred. Given the strong

evidence of the defendant’s guilt presented at trial, however, this error was harmless.

The defendant is not entitled to relief on this issue.

XII. Exclusion of the Victim’s Text Messages to Friends

The defendant maintains the trial court erred when precluding the defendant from

introducing text messages sent by the victim to her friends as evidence she used the word

“f***” as part of her regular vocabulary and would not have felt threatened by the

defendant’s use of the word. The State asserts the victim’s use of profanity with her

friends was irrelevant to the defendant’s use of profanity in text messages to her. We

agree with the State.

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.” Tenn. R. Evid. 401. Relevant evidence is typically admissible, while

irrelevant evidence is inadmissible. Tenn. R. Evid. 402. “Generally, the admissibility of

evidence rests within the trial court’s sound discretion, and the appellate court does not

interfere with the exercise of that discretion unless a clear abuse appears on the face of

the record.” State v. Franklin, 308 S.W.3d 799, 809 (Tenn. 2010) (citing Lewis, 235

S.W.3d at 141). This Court finds an abuse of that discretion when the trial court applies

“an incorrect legal standard or reaches a conclusion that is ‘illogical or unreasonable and

causes an injustice to the party complaining.’” Lewis, 235 S.W.3d at 141 (quoting State

v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006).

Here, when cross-examining Agent Williams regarding the text messages found

on the victim’s cell phone, the defendant attempted to ask Agent Williams about text

messages sent by the victim to a friend named “Dina.” The State objected to the

relevance of those messages, and the parties had the following exchange with the trial

court during a bench conference:

[DEFENSE COUNSEL]: They are making a big deal about the use

of the word f***. We want to show that that is a major part of [the

victim’s] vocabulary in reference. And we are just going to refer to two of

them to show that [] she used that word over and over again.

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[PROSECUTOR]: Are we trying to attack the character?

[DEFENSE COUNSEL]: No, I’m trying to show that she knew that

language and used it.

THE COURT: How is that relevant?

[DEFENSE COUNSEL]: If it’s not relevant, then how does it have

to do with the argument about that “f” meaning something that you are

getting ready to make?

I’m just trying to show that, as we talked about in jury voir dire, that

it’s a word that she’s familiar with and uses.

[PROSECUTOR]: Why is that relevant in any way, shape, or form?

How does it get to relevance? How?

THE COURT: I don’t think its relevant. Let’s move on to

something else.

The defendant was charged with the first-degree murder of the victim, which

required proof of intent, premeditation, and an unlawful killing. Tenn. Code Ann. § 39-

13-202. Nothing about the victim’s text message to a friend using the word “f***” was

relevant to the crime the State sought to prove or any other matter at issue in this case.

The trial court did not abuse its discretion when excluding the text messages at trial. The

defendant is not entitled to relief on this issue.

XIII. Jury Instruction on Flight

The defendant argues the trial court erred by instructing the jury on flight because

the evidence did not support the instruction. The State counters that it presented more

than sufficient circumstantial evidence to support the instruction. We agree with the

State.

Every criminal defendant “has a right to a correct and complete charge of the law,

so that each issue of fact raised by the evidence will be submitted to the jury on proper

instructions.” State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000); see State v. Leath,

461 S.W.3d 73, 105 (Tenn. Crim. App. 2013). This Court must “review the charge in its

entirety and read it as a whole” when determining on appeal whether a jury charge was

erroneous. State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997). A jury instruction is

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considered “prejudicially erroneous,” only “if it fails to fairly submit the legal issues or if

it misleads the jury as to the applicable law.” Id. The propriety of a jury instruction is a

mixed question of law and fact, so the standard of review is de novo with no presumption

of correctness. Carpenter v. State, 126 S.W.3d 879, 892 (Tenn. 2004).

The trial court can only charge the jury on flight if there is sufficient evidence to

support the instruction. State v. Berry, 141 S.W.3d 549, 588 (Tenn. 2004). There is

sufficient evidence to support a jury charge on flight when there is proof the defendant

left the scene of the crime and of a “subsequent hiding out, evasion, or concealment in the

community, or a leaving of the community for parts unknown.’” State v. Burns, 979

S.W.2d 279, 289-90 (Tenn. 1998) (emphasis omitted) (internal quotations omitted). The

subsequent hiding out, evasion, or concealment requirement can be satisfied by evidence

from which a jury may infer such action. See State v. Joshua Hill-Williams, No. W2015-

01743-CCA-R3-CD, 2017 WL 1907735, at * 12 (Tenn. Crim. App. May 9, 2017), perm.

app. denied (Tenn. Aug. 18, 2017). “Any contradictory evidence that serves to rebut the

[S]tate’s proof merely raises a question for the jury to resolve.” Id. This Court has

explained:

The law makes no nice or refined distinction as to the manner or method of

a flight; it may be open, or it may be a hurried or concealed departure, or it

may be a concealment within the jurisdiction. However, it takes both a

leaving the scene of the difficulty and a subsequent hiding out, evasion, or

concealment in the community, or a leaving of the community for parts

unknown, to constitute flight.

State v. Dorantes, 331 S.W. 3d 370, 388 n. 16 (Tenn. 2011) (quoting Rogers v. State, 455

S.W.2d 182, 187 (Tenn. Crim. App. 1970)). The defendant may rebut evidence of flight

by a “credible explanation of some motive other than guilt.” Hall v. State, 584 S.W.2d

819, 821 (Tenn. Crim. App. 1979).

Here, the trial court charged the jury with the following instruction on flight:

The flight of a person accused of a crime is a circumstance which,

when considered with all the facts of the case, may justify an inference of

guilt. Flight is the voluntary withdrawal of oneself for the purpose of

evading arrest or prosecution for the crime charged. Whether the evidence

presented proves beyond a reasonable doubt that the defendant fled is a

question for you to determine.

The law makes no precise distinction as to the manner or method of

flight; it may be open, or it may be a hurried or concealed departure, or it

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may be a concealment within the jurisdiction. However, since it takes both

a leaving the scene of the difficulty and a subsequent hiding out, evasion, or

concealment in the community, or a leaving of the community for parts

unknown, to constitute flight.

If flight is proved, the fact of flight alone does not allow you to find

that the defendant is guilty of the crime charged. However, since flight by

a defendant may be caused by a consciousness of guilt, you may consider

the fact of flight, if flight is so proven, together with all of the other

evidence when you decide the guilt or innocence of the defendant. On the

other hand, an entirely innocent person may take flight and such flight may

be explained by proof offered, or by the facts and circumstances of the case.

Whether there was flight by the defendant, the reasons for it, and the

weight to be given to it, are all questions for you to determine.

The defendant contends that based on the proof presented at trial, the instruction

was inappropriate. In support of his position, the defendant points out he did not leave

the Knoxville area for Pearl River County, Mississippi, where he grew up, until

approximately two months after the victim’s death. Moreover, testimony regarding the

defendant’s failure to attend his arraignment, of which he did not have notice, could not

be used to support a flight instruction.

In response, the State argues there was more than sufficient circumstantial

evidence of flight to support the instruction. The defendant failed to show up for his

arraignment and was stopped the next day with a gun, clothes, and a sleeping bag in his

truck. Further, despite the trial court’s flight instruction, the defendant was free to argue

against a finding of flight in his closing argument, and the trial court instructed the jury

that “flight alone does not allow you to find the defendant is guilty of the crime charged.”

The State introduced sufficient evidence of flight to support the jury charge

regarding the same. Only after the defendant did not appear for his arraignment did

authorities realize the defendant could not be found in the area. When Sheriff Allison

arrested the defendant in Pearl River County, Mississippi, the defendant had a shotgun,

clothing, and a sleeping bag in his car. This evidence is sufficient to prove the defendant

left Roane County, the location of the victim’s murder, following her death and during

the pendency of the criminal proceedings, for “parts unknown.”

Moreover, the trial court instructed the jury that “flight alone does not allow you

to find that the defendant is guilty of the crime charged” and “an entirely innocent person

may take flight and such flight may be explained by proof offered, or by the facts and

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circumstances of the case.” The defendant was free to rebut the flight theory by offering

his apparent explanation for this departure, he returned to his hometown to live following

the victim’s death, and failed to do so. Further, given the overwhelming, albeit

circumstantial, proof of the defendant’s guilt, any error in giving the flight instruction did

not affect the outcome of the case and was harmless. See, e.g., State v. Smith, 893

S.W.2d 908-18 (Tenn. 1994) (concluding “any error as to the flight instruction” was

harmless given the “overwhelming proof of [the defendant’s] guilt”). The defendant’s

argument is not well taken, and he is not entitled to relief on this issue.

XIV. Prosecutorial Misconduct

A. Improper Statements

The defendant argues this Court should vacate his conviction because the State

made at least four improper comments to the jury regarding evidence, thereby

establishing a pervasive pattern of misconduct that affected the verdict to the defendant’s

detriment. In response, the State contends that on all four occasions the defendant either

waived his objection or the statement did not rise to the level of prosecutorial

misconduct. We agree with the State.

To prevail on a claim of prosecutorial misconduct, the defendant must establish

the conduct complained of was so inflammatory or improper that it adversely affected the

verdict. Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965); State v. Gray, 960

S.W.2d 598, 609 (Tenn. Crim. App. 1997). The defendant does not allege the State’s

comments infringed on his constitutional rights, so this Court considers the following

factors:

1. The conduct complained of viewed in context and in light of the facts and

circumstances of the case.

2. The curative measures undertaken by the court and the pros

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