# State of Tennessee v. Shawn Nelson Smoot

> Court of Criminal Appeals of Tennessee · October 1, 2018

URL: https://www.frixlaw.com/law-library/cases/4317194

## Case

- **Court:** Court of Criminal Appeals of Tennessee
- **Decided:** October 1, 2018
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge J. Ross Dyer
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4317194

## How later opinions describe it (automated extraction)

- concluding autopsy reports are competent evidence and admissible at trial pursuant to Tennessee Code Annotated section 38-710, now section 38-7-110
- concluding “any error as to the flight instruction” was harmless given the “overwhelming proof of [the defendant’s] guilt”
- 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”

## Opinion text

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
___________________________________

No. E2017-00367-CCA-R3-CD
___________________________________

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
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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
- 25 -
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
- 26 -
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. §

- 27 -
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

- 28 -
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.”

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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 Decem

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4317194. Public record. Not legal advice.